CHAIRPERSON: ... as far as I can recollect, yesterday we made it quite clear that these proceedings will commence at nine thirty. I therefore would appreciate an explanation from the legal representatives of the various applicants, who are in involved in the KwaNdebele incident, why they were not here when we came in as a Committee.

MR VISSER: Chairperson, Visser on record. Chairperson, by half past nine we didn't notice any of the Committee Members here, or just slightly before half past nine and we assumed, obviously incorrectly, that there may be a hitch with the starting time and we thought that we would go and grab a quick cup of coffee. Now this hasn't happened before, this is an exception Chairperson, and I will take the blame for that.

I don't appear for applicants in this matter, but we got to discuss certain interesting things and we just didn't watch the time go by. And certainly on behalf of all my colleagues and myself, we do apologise. But you know it doesn't happen, it hasn't happened before and certainly it won't happen again. Will you be lenient on us this time, Chairperson, and accept this apology?

CHAIRPERSON: I hear what you are saying, Mr Visser, but you are not involved in these applications, in respect of the KwaNdebele incident. I would like to hear the legal representatives involved in respect of the KwaNdebele incident.

MR MEINTJIES: Chairperson, appearing on behalf of Mr van Jaarsveld. I can only confirm what Mr Visser has submitted to you just now and tender my sincere apologies for what happened.

CHAIRPERSON: Mr Rossouw?

MR ROSSOUW: Madam Chairman, I was also part of the discussion that was explain to you by Mr Visser.

MR ROSSOUW: ... my documents in order to proceed slightly before half past nine, and the Committee was not there. I also assume ...(intervention)

ADV DE JAGER: No, the Committee was here at half past nine. We can't stand outside and wait for you until you come again.

MR ROSSOUW: Madam Chair, my sincere apologies. I confirm what was explained by Mr Visser.

CHAIRPERSON: Mr Polsen?

MR POLSEN: Madam Chair, I was here very early this morning and I had my documents ready and I perhaps laboured under the misapprehension that there was some delay, and I confirm what was said by Mr Visser, I was part of the discussion. I'm sorry, I tender my apologies, it will not happen again.

CHAIRPERSON: I must on behalf of my Committee state that we take a very dim view on this kind of conduct. We expect counsel to conduct themselves with the necessary decorum. We hope this kind of a conduct will not be repeated again.

Since you were not here, I had initially started by saying that our Chair will not be here today, thus necessitating a change of guard. The Panel that will now sit to hear all outstanding applications set down on the roll comprises myself, Advocate de Jager and Mr Ilan Lax.

Ms Lockhat, are we in a position to commence with the KwaNdebele matter?

MS LOCKHAT: Indeed we are, Chairperson. We call on Mr A C Kendall.

MR VISSER: Chairperson, just before Mr Kendall commences, may we just place on record - Visser on record, Chairperson, that we are not involved in the KwaNdebele 9, nor are we involved in the next matter which I understand to be the Cele matter that we are aware of.

We would like to be excused, but obviously we would not like to cause an inconvenience should matters run quicker than we anticipated. We will be involved in the Motasi matter on behalf of General Stemmet, who is an implicated person. So we're peripherally involve there and we would like to attend that hearing.

What I would like to put to you Chairperson, is that perhaps if you would excuse us until this afternoon so that we can come around again this afternoon to establish how far matters have progressed and perhaps sit in this afternoon. We will certainly be back tomorrow morning at the latest, because we have no indication or idea as to how long these matters will last. Unless you have reason to believe that these matters will last an hour or so, well then we'll stay, because we certainly don't know.

CHAIRPERSON: Mr Visser, I have my own estimate on how long the KwaNdebele 9 is likely to run, but that's my personal view. I am really at the hands of the people who will be presenting evidence and putting questions after each applicant has presented his evidence-in-chief.

So in such circumstances one is unable to really say how long an application will last. We would like to appeal, whilst talking about this issue, to the legal representatives concerned to please place the evidence that is relevant and material to the issues on whether amnesty should be granted or not to an applicant concerned.

The way we have read the KwaNdebele 9, it is a matter that is capable of being concluded within a few hours time, but then that is not for us as a Committee to decide. We will be controlled by the evidence that will be placed before us. We don't want to be understood to be suggesting to counsel that they should conduct their client's applications in a manner that will ultimately result in them not doing justice to their clients' instructions.

However, an indication has been made by Ms Lockhat, our Evidence Leader, that it is very unlikely that the Thibedi matter will be capable of being proceeded with at all today. We had thought this would be a matter that would proceed today. We are told that Mr P J C Loots will not be available today, will only be available tomorrow. He also is involved in the incident regarding the killing of Richard and Irene Motasi, in which Mr Visser you have an interest as an implicated party.

We have also been advised in chambers, and I thought this would have been canvassed by Ms Lockhat with the necessary parties involved, that Mr du Plessis still has to give an indication on the availability of Mr Ras, who is an important applicant in the incident involving the killing of Richard and Irene Motasi.

MR DU PLESSIS: Chairperson, may I perhaps comment on these two incidents. I spoke to Ms Lockhat this morning about the situation. General Ras in the process of being examined and there is a good possibility that he will have to undergo a heart bypass operation tomorrow or Thursday. We will know during the course of today, and then I will be able to inform you.

I don't know if it would be prudent, well in my submission it won't be, but I'm in your hands pertaining to the Motasi matter, if one should go ahead with Colonel Loots' evidence without General Ras being present or if the application should be postponed. I will be able to give you an indication during the day.

And then I've had a discussion with Ms Lockhat and Mr Thibede this morning about the Thibede application. Colonel Loots lives in the Klein Karoo and we had to give him notice to come up when matters would be finalised. I indicated to Ms Lockhat that he will be here during the course of tomorrow, but I'm not 100% sure if he is going to be available at 10 o'clock. I asked her if it would be possible to deal with the Thibedi matter on Thursday, when I know Colonel Loots will be available. And it was discussed with Mr Thibedi and he gave an indication that he would be able to attend the hearing on Thursday, as I understood him, Thursday morning.

I don't want to do Ms Lockhat's work, but I suggested to her that the best possibility in my view would be to hold the Motasi matter over and I will let you know during the day what the position is, and that one then proceeds with the Kruschev matter after the KwaNdebele 9 matter. The Thibede matter in my estimate would not take longer than, I think a half an hour.

CHAIRPERSON: I think then to come back to your pertinent problem, Mr Visser, we would not be in a position to indicate to you when the Motasi matter will be commencing, until we have heard from Mr du Plessis during the course of the day.

I would suggest that you make contact with Ms Lockhat after lunch. Will that be the right time, Mr du Plessis?

MR DU PLESSIS: Yes, I think so. I have sent Mr Britz's clerk to phone again now to try and determine if we have new information today. This morning 7 o'clock I spoke to Mr Britz and he couldn't give me an indication if there was a final decision on General Ras, but after lunch time that would be fine.

CHAIRPERSON: Yes. Mr Visser, would you then get in touch with Ms Lockhat, who will be a position to give an indication of whether the matter will be proceeding or not?

MR VISSER: Thank you, Chairperson. My attorney and I have already told each other that we'll come here at 2 o'clock in any event, to find out what the situation is. Thank you.

CHAIRPERSON: Yes, you are excused.

MR VISSER: Thank you.

CHAIRPERSON: Are we in a position to commence with the KwaNdebele 9 incident? Mr Polsen, I believe your client will be the one to commence giving evidence?

MR POLSEN: Yes, that's correct, Madam Chair. My position however is that now that we have a new Member of the Committee, I'm faced with the question as to whether I should lead the evidence with I led in the Ntuli matter once again, for the benefit of the new Member of the Committee. Otherwise I had thought that I could merely refer to that evidence, ask that it be incorporated also in this application with regard to this particular incident. Perhaps this is the correct time then to give you the background once again on the situation in KwaNdebele. If you would give me some guidance on that, otherwise I can make the application a lot shorter.

CHAIRPERSON: May I just confer with the Members of my Committee. Mr Polsen, we would prefer that you do not refer to the evidence that you've already given when your client was giving evidence in the Ntuli matter. In any event, one of the Members of my Committee who was not here when we sat to hear the Ntuli matter, will definitely not be prejudiced because that information is contained in the application of Mr Kendall, the same information is contained in this. So he has read and he understands issues of background. You don't need to go through that.

MR POLSEN: Thank you, Madam Chair. Madam Chair, may I ask that Mr Kendall be sworn in please?

ABRAHAM CHRISTOFFEL KENDALL: (sworn states)

ADV DE JAGER: Will you please give us your full names.

MR KENDALL: Abraham Christoffel Kendall.

MR POLSEN: May I proceed, Madam Chair?

CHAIRPERSON: You may proceed, Mr Polsen.

MR POLSEN: The application is found in bundle 5, Madam Chair, and the first three - the application as we now know was filed on the 12th of December 1996. It was supplemented in terms of an agreement by the Attorney-General with the Committee and once again there was a further supplementary application. So the first three items consist of the entire application. The particular incident which we are dealing with is found on page 7. It is a hand-written 7 and says:

I will commence leading that evidence, Madam Chair.

CHAIRPERSON: Yes, you may proceed.

EXAMINATION BY MR POLSEN: I will also at this stage get confirmation.

Colonel, you have read the evidence and you have also partially heard the evidence of General van der Merwe.

MR KENDALL: That's correct.

MR POLSEN: Would you like for that evidence to be incorporated into this application of yours?

MR KENDALL: Yes, that's correct.

MR POLSEN: Can we return to the issue of the KwaNdebele 9. Your position was that you were the manager of the Security Branch, or the Head of the Security Branch, stationed at Bronkhorstspruit during June 1986?

MR KENDALL: That's correct.

MR POLSEN: Now during June 1986, with regard to the KwaNdebele matter, do you have it in mind, do you know what it is about?

MR KENDALL: That's correct.

MR POLSEN: On that day you received a telephone call, is that correct?

MR KENDALL: Yes, that's correct.

MR POLSEN: From whom was this telephone call?

MR KENDALL: From Brigadier Jack Cronje.

MR POLSEN: What was the order which you received?

MR KENDALL: I was informed that I was to attempt to determine whether or not there were any black youths in the area of the Bundu Inn Hotel in KwaNdebele.

MR POLSEN: The Bundu Inn is a hotel which belonged to the Shabangu’s, is that correct?

MR KENDALL: Yes, that's correct.

MR POLSEN: And it was situation on the way to Marble Hall from Bronkhorstspruit.

MR KENDALL: That's correct.

MR POLSEN: How far is that?

MR KENDALL: Chairperson, it was in the Nitsi area, but it was transferred to the KwaNdebele area, the land there.

MR POLSEN: Approximately how far from Bronkhorstspruit?

MR KENDALL: Approximately 80 kilometres.

MR POLSEN: Very well. What did you do after you received the order from Brigadier Cronje?

MR KENDALL: Chairperson, by means of a contact at the hotel a black woman, Happy Shabangu, I determined that there were a number of black youths that had been noticed it the area of the hotel. I can no longer recall whether she mentioned that they were on the premises or outside the premises.

MR POLSEN: And this discussion that you had with Brigadier Cronje, what was the purpose of the order which was given?

MR KENDALL: If I still recall correctly, Brigadier Cronje told me that these were persons who were under way abroad for military training.

MR POLSEN: And you had to determine whether or not they were in the area?

MR KENDALL: Yes, that's correct.

MR POLSEN: And did you make any telephone calls or did you go there to carry out your order?

MR KENDALL: I personally spoke to Happy Shabangu regarding the matter or the persons who may have possibly been there.

MR POLSEN: And what was the information that you received back?

MR KENDALL: She did confirm that there were some strange black youths in the area.

MR POLSEN: What did you do after that?

MR KENDALL: I conveyed this information to Brigadier Cronje. I can't recall whether this took place personally or telephonically. Brigadier Cronje then informed me that he would send a black member, Joe Mamasela, to the Bundu Inn so that I could introduce him to the people at the hotel.

MR POLSEN: Did you at that stage already know Mamasela, had you already met him?

MR KENDALL: No.

MR POLSEN: Where did you meet him?

MR KENDALL: I knew about Joe. I'd often seen him in the Compol building, in the branch of Northern Transvaal, so I knew who he was, but I never had any personal contact with him, nor did I work with him.

MR POLSEN: Who was Joe Mamasela?

MR KENDALL: As far as I knew Joe Mamasela was an Askari who had been transferred from Vlakplaas to Division Northern Transvaal.

MR POLSEN: And then I assume that you carried out your order to introduce Joe Mamasela, or at least to take him to the Bundu Inn?

MR KENDALL: That's correct.

MR POLSEN: And when did this take place?

MR KENDALL: I can't recall whether I myself took Mamasela to the Bundu Inn or whether I met him there at the hotel. I can recall that I sat with him in Happy Shabangu’s office, but how he arrived there, whether or not I took him or whether he personally arrived there, I can't recall, but I did introduce him to Happy Shabangu.

MR POLSEN: And after you introduced him to her, what did you discuss in Mrs Shabangu’s office?

MR KENDALL: I can't recall what was discussed. If I had to think back I would have made the introductions and I believe that I departed after that. I had nothing further to do with the matter because Mamasela, or in terms of what Mamasela's purpose was at the hotel.

MR POLSEN: Did you know what his purpose there was?

MR KENDALL: I knew that he was there to collect information regarding the 9 black youths who had been noticed in the area.

MR POLSEN: Did you have any knowledge about what his orders were with regard to the 9 black youths?

MR KENDALL: No.

MR POLSEN: Did you discuss it with him?

MR KENDALL: No.

MR POLSEN: After you had introduced him at the Bundu Inn to Mrs Shabangu, what did you do?

MR KENDALL: I must have departed, but with regard to any further connections between me and Mamasela and Shabangu, I can't place anything there.

MR POLSEN: Did you go back to Bronkhorstspruit?

MR KENDALL: I assume that I went back either to Bronkhorstspruit or to Siyabuswa, the capital of KwaNdebele.

MR POLSEN: What was the next matter that you knew about?

MR KENDALL: Chairperson, I can recall that it wasn't very long after that that - the morgue was very close to my office in Bronkhorstspruit, and the district physician came to tell me one morning that there was a horrible bunch of corpses from KwaNdebele and that I was to come and look while he was conducting the autopsies. I can only remember that van Niekerk also had clinics in KwaNdebele and that he was informed about the political situation in KwaNdebele. And if one considers the time period in which these things took place, I would believe that van Niekerk believed that the Mbogoto and the Security Police were co-operating because I can remember him telling me as we were going to the morgue, don't you think that your Mbogoto has gone just a little too far?

MR POLSEN: Very well, that is what he thought, but you arrived there and what did you find there?

MR KENDALL: Chairperson, I can recall that he opened two drawers for me and I saw two of the bodies and at that stage I also thought that these were corpses that had come in as a result of the unrest in KwaNdebele.

MR POLSEN: Did you recognise any of the bodies?

MR KENDALL: No.

MR POLSEN: Did you then, with regard to the information which you received at the morgue, ever visit the scene or make an attempt to determine from where these bodies had come?

MR KENDALL: I did not visit the scene. As has already emanated from the evidence here there were Special Investigative Units and I was not any further involved in the investigations.

MR POLSEN: So you were not involved with the rest of the matter at all?

MR KENDALL: No.

MR POLSEN: May I just place this matter into a time context, was this before the Ntuli matter took place?

MR KENDALL: I'm not certain, but I would assume that this was before the Ntuli incident, because I see in the evidence you state that it was in June, and if my memory does not fail me the Ntuli matter took place on the 29th of July 1986.

MR KENDALL: Chairperson, then it must have taken place before the Ntuli incident.

MR POLSEN: I have no further questions.

CHAIRPERSON: Mr Kendall, in your application you've also indicated in paragraph 9, that the incident happened on the 15th of July 1986. What worries me is that you did not approximate, you seem to have indicated the date if we check 1.7.

MR KENDALL: Chairperson, I'm not quite certain from where you have obtained the date of the 15th of July.

CHAIRPERSON: Your application, 1.7, paragraph 9.A.2. 9.A.I read with 9.A.II and also page 1.2, again with regard to a response under paragraph 9.A.I and II.

MR KENDALL: Chairperson, initially I made this affidavit with the Special Investigative Unit of the Attorney-General. This application which I have before me is a supplementary application which I made to Mr Polsen. I did not consult this application again, and if the date of 15th July 1986 is given as the date upon which these events took place, I would believe that that is the date upon which the incident took place, the day upon which these 9 persons were murdered. However, I have not looked at this initial application of mine for quite some time. I don't think that I even have it in my possession still.

CHAIRPERSON: Yes. I think it's important for us to ascertain the date, for obvious reasons. Can you give an indication of how soon after you had been telephoned by Brigadier Cronje did this incident happen?

MR KENDALL: Chairperson, it took place quite some time ago and this is the first time that I was confronted by the investigative unit for my involvement in the matter and I can't remember the time period that elapsed between these events.

CHAIRPERSON: Are you not even able to give us an estimate whether it was immediately, after a few hours that you had been telephoned by Brigadier Cronje, that you were able to lay the information, you informed by Happy Shabangu about the presence of these suspicious looking people and that on the same day Mamasela was then brought to you to be introduced to Happy Shabangu? These are matters of detail that would assist this Committee particularly in regard to the evidence that we already have that has been tendered by Brigadier Cronje and Captain Hechter.

MR KENDALL: Chairperson, I assume that I would immediately have attended to the matter, however with regard to the time periods I immediately attended to this matter in order to determine, and after I had determined that there were black youths from Happy Shabangu, I would immediately have conveyed this to Brigadier Cronje. I believe that the incidents followed very closely upon one another. If it had been two or three days, then I believe that that would have been a long time.

CHAIRPERSON: Thank you very much, I think that will assist us and I'm sure Mr du Plessis will be greatly interested in that aspect of your evidence. Does that conclude your evidence-in-chief, Mr Polsen.

MR POLSEN: Yes, that does.

MR DU PLESSIS: Chairperson, may I proceed first?

CHAIRPERSON: Yes, it would appear that you are the only one who is sitting on that side of the table, so we will allow you to proceed.

CROSS-EXAMINATION BY MR DU PLESSIS: Thank you.

Mr Kendall, you did not know who these youths were, you didn't see them or know exactly who they were?

MR KENDALL: No.

MR DU PLESSIS: You also did not know how many there were?

MR KENDALL: No, I didn't know.

MR DU PLESSIS: All that you knew is that these youths were on their way, are you sure that they were on their way or did they want to go for military training, or were they already under way to military training?

MR KENDALL: If I can recall correctly, Brigadier Cronje's words to me were that they were on their way abroad for military training.

MR DU PLESSIS: Who was Happy Shabangu?

MR KENDALL: Happy Shabangu was at that stage the manageress of the Bundu Inn Hotel in KwaNdebele. Her father was the owner of the hotel.

MR DU PLESSIS: Did she know that you were a member of the Security Police?

MR KENDALL: Yes.

MR DU PLESSIS: Was she one of the informers or not?

MR KENDALL: I wouldn't say that she was an informer, but she was a contact for the Security Police because I think her father - and I can't confirm this, but her father was also involved with the KwaNdebele Cabinet. I wouldn't say that he was friends with them, but he knew about the Mbogoto and because of that they were favourably inclined towards the Security Police.

MR DU PLESSIS: Would it be correct if I put the following to you, and that is that you do not know whether or not the youth that you are speaking of here today were the ultimate nine who were killed in the shooting incident?

MR KENDALL: That's correct.

MR DU PLESSIS: Very well. Would you agree with me that it's possible that the instruction which Brigadier Cronje gave to you, according to your evidence, may have had to do with a completely different group of youths than those who ultimately died?

MR KENDALL: That's correct.

MR DU PLESSIS: And the reason why I'm putting this to you is that neither Brigadier Cronje nor Captain Hechter gave evidence that you were involved in the identification of these specific nine. In fact their evidence was that Joe Mamasela had come to Brigadier Cronje with information that there were youths who wanted to go for military training and that ...(intervention)

CHAIRPERSON: Mr du Plessis, are you putting the correct facts to Mr Kendall?

MR DU PLESSIS: Yes.

CHAIRPERSON: If so, those facts appear on which page of Brigadier Cronje's evidence?

MR DU PLESSIS: May I refer you to page 764 of bundle 2(f).

CHAIRPERSON: Bundle 2(f)?

MR DU PLESSIS: Yes

CHAIRPERSON: Mr du Plessis, without entering into a debate, is that not the evidence of Captain Hechter?

MR DU PLESSIS: I'm sorry, I can't hear what you're saying, Judge Khampepe.

CHAIRPERSON: Is that not the evidence of Captain Hechter that you are referring to?

MR DU PLESSIS: Yes.

CHAIRPERSON: Because if I recall, Brigadier Cronje disclaimed any knowledge about this incident. In fact the thrust of the evidence is that he was not around the office during the occurrence of this incident.

MR DU PLESSIS: Yes, I'm sorry.

CHAIRPERSON: So you are not putting the correct facts to Mr Kendall.

MR DU PLESSIS: Thank you, Madam Chair, you ...(intervention)

CHAIRPERSON: Would you please withdraw your question.

MR DU PLESSIS: Yes, I will. Thank you, Madam Chair, I am indebted to you.

Mr Kendall, let me put it to you like this. The Chairperson is entirely correct, Brigadier Cronje did not have any knowledge about the incident, I should have referred to Captain Hechter's evidence. And Captain Hechter's evidence, on page 764 states:

You do not dispute that evidence?

MR KENDALL: No.

MR DU PLESSIS: And should it appear from the evidence, and this would be the evidence of Captain Hechter, that Cronje was not in his office at the time that these events took place, I would like to put it to you that it appears that the youths who are being discussed here are probably not the youths who died in KwaNdebele.

MR KENDALL: That is possible.

MR DU PLESSIS: Thank you, Madam Chair, I have no further questions.

CHAIRPERSON: Mr van den Berg? Mr Rossouw, you are involved in this matter.

MR ROSSOUW: I'm sorry, I think I have to come to you before getting to the objectors' legal representatives.

MR ROSSOUW: Thank you, Madam Chair. I have no questions for this witness.

CHAIRPERSON: Yes, thank you. Then your turn, Mr van den Berg.

MR VAN DEN BERG: I'm not sure whether Mr Meintjies has any questions.

CHAIRPERSON: Oh, Mr Meintjies is involved in this incident. I'm sorry, Mr Meintjies.

MR MEINTJIES: Thank you, Madam Chair. I have no questions for this witness.

CHAIRPERSON: I seem to have actually skipped you as if I knew you had no questions, both of you and Mr Rossouw. Mr van den Berg?

CROSS-EXAMINATION BY MR VAN DEN BERG: Thank you, Chairperson.

The information which - did you receive any information from Shabangu regarding who these youths were and what they were doing in KwaNdebele?

MR KENDALL: Chairperson no, she simply confirmed that there were indeed persons or youths who were unknown to her, who had been noticed in the area surrounding the hotel.

MR VAN DEN BERG: So you did not receive any information from her that they were activists or that they had gone for military training or anything like that?

MR KENDALL: No.

MR VAN DEN BERG: Thank you, Madam Chair, I have no further questions.

CHAIRPERSON: Mr Lockhat?

MS LOCKHAT: No questions, Chairperson.

CHAIRPERSON: Mr Kendall, I think the problem that seems to be apparent to me, is that either we are dealing with a different incident altogether or there is a serious discrepancy somewhere, because Mr du Plessis has already put to you the evidence that is before this Committee, which was tendered viva voce by Captain Hechter, Brigadier Cronje was not involved in this incident, he did not know anything at all about this incident. It therefore would be inconceivable for him to have telephoned you to request you to establish the whereabouts of these youths, because according to the evidence tendered by Captain Hechter, there was no need to make any such finds because Mr Mamasela came with the information of what the activities of the youths were, what they intended to do, that they intended to undergo military training outside the country. Mr Mamasela when he approached Captain Hechter, already knew the whereabouts of the youngsters who were involved in this incident. Do you see where our difficulty is with regard to your application in relation to the KwaNdebele 9?

MR KENDALL: Chairperson, yes I will concede that it could have been completely different youths who were murdered to this group that has been mentioned here. However, that I did receive an order and that I did take Mamasela, or introduce him to Happy Shabangu is so. However, the youths who were murdered at Vlaklaagte and the youths who were noticed at the Bundu Inn may have been two completely groups.

CHAIRPERSON: To your knowledge, do you know where the youths that you were advised of by Mr van Niekerk were, were you able to establish the house of where this incident happened?

MR KENDALL: Chairperson, this was a long time ago. I can simply recall that he told me that these were youths who had been brought from KwaNdebele to the morgue, but I can't remember whether he told me exactly where the incident had taken place.

CHAIRPERSON: Yes, thank you. Mr de Jager, do you have any questions to put to Mr Kendall?

ADV DE JAGER: The place Tweefontein, do you know where that is situated?

MR KENDALL: Yes.

ADV DE JAGER: Is it close to the Bundu Inn?

MR KENDALL: No.

ADV DE JAGER: Vlaklaagte is also mentioned, is that close to the Bundu Inn?

MR KENDALL: No, Tweefontein and Vlaklaagte are two adjacent areas and they are approximately 30 kilometres away from the Bundu Inn.

ADV DE JAGER: Closer to Pretoria, so to speak?

MR KENDALL: Yes, close to Pretoria.

ADV DE JAGER: Thank you.

CHAIRPERSON: Mr Lax, do you have any questions to put to Mr Kendall?

MR LAX: Just one question, Chairperson.

Mr Kendall, I'm a little puzzled in the light of all the evidence, as to why you've actually applied for amnesty at all for this matter.

MR KENDALL: Chairperson, if I might put it like this. I was confronted by the Special Investigative Unit of the Attorney-General regarding this matter and I believe that because the name Happy Shabangu was mentioned to me, that they had information about me or that they had some form of a statement in this regard. That was the primary motivation for my application.

MR LAX: But you in your mind, would I be correct in saying there is nothing that you have done that constitutes an offence or a delict or an omission in relation to the deaths of these nine people, for which amnesty might be granted?

MR KENDALL: That is my sentiment.

CHAIRPERSON: And that would be so in respect of the incident, not necessarily the KwaNdebele 9 incident. Even if you are applying for the incident of the murder in which you were instructed by Brigadier Cronje to collect information about the whereabouts of the youths, you wouldn't have constituted any offence or a delict because all that you were required to do was to collect information, which information you did not know whether it would be used for a commission of any offence or delict.

MR KENDALL: That's correct.

CHAIRPERSON: Yes.

MR LAX: Thanks Chairperson.

ADV DE JAGER: Mr Polsen, for which offence or delict have you applied?

MR POLSEN: Chairperson, the idea was that there would not be any doubt, and that is how I understood it. That is why the application was originally served by means of the Attorney-General, that there would be a connection between the death of the nine in the morgue and Vlaklaagte, but it appears to be clear that this is not the case and that it could have been somebody else. And it would be that this application has been made due to over-cautiousness because there was some unclarity regarding the introduction to Shabangu, which would indicate that there may have been some idea that the persons in the morgue would be persons that had been killed by Mamasela, or rather as a result of that action ended up in the morgue.

And this would appear to be an application that was lodged through over-caution. It would not appear that any crime was committed before the actual offence and that any contribution was made by the applicant and he would not be able to state who the nine were if he does not know what the offence was that ultimately killed these nine. It would appear that this application loses its stratum.

CHAIRPERSON: Obviously when we come to argument you probably will not persist with your application.

MR POLSEN: It is likely. I would like to take instructions.

CHAIRPERSON: Yes.

MR POLSEN: I wasn't here at the time when Brigadier Cronje and Hechter gave their evidence and I wasn't aware of whether there'd been a connection between this particular incident and the activities of my client.

CHAIRPERSON: Yes, precisely. And you have now just been presented with all these many bundles which is the evidence which was tendered at a previous hearing of Mr Hechter and Brigadier Cronje.

MR POLSEN: That is correct, Madam Chair.

CHAIRPERSON: And obviously you will now be able to take instructions and when it comes to argument you will be in a position to indicate to this Committee whether you still want to persist with your client's application.

MR POLSEN: I certainly will, thank you, Madam Chair.

WITNESS EXCUSED

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CHAIRPERSON: Yes, thank you. Ms Lockhat, who is to give evidence after Mr Kendall?

MS LOCKHAT: We call on the applicant, Mr D Gouws.

CHAIRPERSON: Mr Rossouw, you seem to be a little unhappy with an indication by Ms Lockhat that Mr Gouws is next to give evidence. Would you like Mr Oosthuizen to go first?

MR ROSSOUW: Madam Chair, if I can ask the Committee to indulge us. We have prepared on that basis, to lead the evidence of Mr Oosthuizen first. I don't want to prescribe, I'm merely asking for an indulgence.

CHAIRPERSON: Yes, I think it is alright to give an indication to this Committee as whom you'd like to call first. We will therefore grant you the right, it's not an indulgence.

MR ROSSOUW: Thank you, Madam Chair. May applicant Oosthuizen be called first?

CHAIRPERSON: Yes.

ADV DE JAGER: Mr Oosthuizen, your full names?

STEFANUS ADRIAAN OOSTHUIZEN: (sworn states)

EXAMINATION BY MR ROSSOUW: Thank you, Madam Chair. Chairperson, you will find the application of Mr Oosthuizen in bundle 5, on page 29(a) and further.

Mr Oosthuizen, do you have a copy your application before you?

MR OOSTHUIZEN: That is correct, Chairperson.

MR ROSSOUW: Just an amendment ...

...(end of tape 1 side A)

MR ROSSOUW: ... Committee that there is an entry on the first page, page 29(a).1, your identity number. You have already requested an amendment in previous applications. You ask for an amendment that the last number has to be a 5 and not a 9?

MR OOSTHUIZEN: That is correct, Chairperson.

MR ROSSOUW: Mr Oosthuizen, you apply for amnesty in this incident for the murder and the incident that is known as the KwaNdebele 9, is that correct?

MR OOSTHUIZEN: That is correct, Chairperson.

MR ROSSOUW: As background a list has been prepared and I would like to refer to this list. You have referred to the content of this application that has served before other Committees and this Committee, do you want the contents of this document to be incorporated into your application, is that correct?

MR OOSTHUIZEN: That is correct.

MR ROSSOUW: Madam Chair, I beg to hand up - for the convenience of the Committee I've made a typed list of the relevant portions of the evidence that we've referred to. Madam Chair, this is similar to the evidence that was led in the Ntuli matter. I've just for your convenience typed it and will let the witness confirm it.

Mr Oosthuizen, can we return back to before this incident took place. Can you tell the Committee ...(intervention)

CHAIRPERSON: Before you proceed, Mr Oosthuizen, can we give this an exhibit number? What number, Ms Lockhat?

MS LOCKHAT: G, Chairperson, Exhibit G.

CHAIRPERSON: Yes, thank you.

ADV DE JAGER: ... the first exhibit in this KwaNdebele case?

MS LOCKHAT: It is the first exhibit, but we've continued with all the exhibits for the entire hearing, we've just named it and continued and so forth.

ADV DE JAGER: Oh I see.

CHAIRPERSON: You may proceed, Mr Rossouw.

MR ROSSOUW: Thank you, Madam Chair.

Mr Oosthuizen, we know that before this incident you had worked in KwaNdebele in a Special Investigative Unit, can you for clarity and for the new Member of the Committee, can you please briefly explain to the Committee what this unit entailed, what your purposes were and where you were deployed.

MR OOSTHUIZEN: Chairperson, I was attached to a Special Investigative Unit that had been operated from headquarters. We worked countrywide. Our investigations were directly involved with the investigation into unrest as well as murders countrywide at that stage.

During this incident we were in KwaNdebele. We stayed at the Waterworks camp at Siyabuswa where we were investigating approximately 300 murders that were political in nature. And not only in KwaNdebele, but countrywide as well we liaised with the relevant security branches. ...(intervention)

MR ROSSOUW: Mr Oosthuizen, on that point, can you please explain to the Committee why it was necessary for your investigative unit to have contact with the Security Branch. Did you operate in unrest related areas?

MR OOSTHUIZEN: That is correct, Chairperson. Our task overlapped with the work that the Security Branch had done in those areas. We did not investigate criminal related incidents, but unrest related incidents.

MR ROSSOUW: Mr Oosthuizen, on that point, may I refer you to Exhibit E, do you have a copy of that before you?

CHAIRPERSON: When was this exhibit accepted, can someone refresh my memory? Because Mr Rossouw, I do not remember this exhibit having been handed up to the Committee.

MS LOCKHAT: Chairperson, if I can just come in on that. Mr Rossouw had given me the exhibits during the course of yesterday and I asked the secretaries to make it available to you yesterday. I was not aware that you did not have a copy. I have extra copies here, I shall present it to you.

CHAIRPERSON: I do have an extra copy, but I just saw an exhibit and it has never been accepted by the Committee as an exhibit.

MS LOCKHAT: Chairperson, I just took the liberty of, just for the sake of convenience, just by making extra copies previously and then just marking them accordingly.

CHAIRPERSON: May I appeal that we do not saddle this Committee with unnecessary documents, we already have bundles and bundles of documents to go through.

I had an occasion to go through the exhibit, though I didn't know how it came to be assigned Exhibit E, I had an occasion to go the exhibit nevertheless and what I found was that it was completely unnecessary for this document to be presented to us because we already have the bundles, which I must assume have already been accepted by agreement at a rehearing conference by all parties. Now this exhibit forms part of bundle 2(f) and bundle 2(g). Is that not so, Ms Lockhat?

MS LOCKHAT: That is indeed correct, Chairperson.

CHAIRPERSON: So why should we have an exhibit which already is part of the documents that we have in our possession?

MS LOCKHAT: Chairperson, I think Mr Rossouw can answer you regarding that because he was in possession of these bundles and he couldn't for some reason find it and therefore he took this from the Internet. But I think he can just answer you on that.

CHAIRPERSON: Mr Rossouw, didn't you have bundle 2(f) and bundle 2(g)?

MR ROSSOUW: Madam Chair, unfortunately those bundles were not forwarded to me. I have endeavoured in discussions to obtain copies thereof and due to the fact that the weekend was coming up last week and I still didn't have a bundle to read the evidence, I took the liberty of tracing this evidence on the Internet and I then made a printout of the relevant portions thereof. My apologies for duplicating the reading work for the Committee, Madam Chair. This was the only place where I could find it in order to prepare my clients for their testimony.

I will however offer to, if the Committee will allow me to lead the evidence on the exhibit, or on the documents, I will endeavour to reconcile the page numbering with those in the bundles that you've got, and then can I come back to you at a later stage and give you the relevant page numbers?

CHAIRPERSON: That's right. We will not accept this as an exhibit, it is not necessary to do so. I will allow you to refer to this document because you've already arranged your questioning in accordance with this document. However it will be necessary for you to refer us to the page numbers as appearing in the bundles before us.

MR ROSSOUW: Madam Chair, I will do that. Unfortunately, when one traces this evidence on the Internet, the page numbering does not correspond with the bundles, that's the problem that I have. I will reconcile them.

CHAIRPERSON: Yes, the other added problem was that I was unable to go through the document because it's a small, small print, it presented me with serious difficulties. I don't have a very good eyesight and I haven't had an opportunity of going to an optometrist. You may proceed, Mr Rossouw.

MR ROSSOUW: Thank you, Madam Chair.

Mr Oosthuizen, if I can refer you to the document that was titled Exhibit E - we know it's not an exhibit in these matters, can I refer you to page 6 thereof. You will see that there Captain Hechter gave evidence that he received instructions from Brigadier Cronje to closely co-operate with the Murder and Robbery Unit with regard to terrorist weapons.

Later in the evidence it is mentioned that you and Mr Gouws as well as Captain Mentz from the Murder and Robbery Unit ... You have already mentioned that you were part of the Special Investigative Unit. This evidence of Captain Hechter is therefore not correct, but can you possibly explain to the Committee why that confusion exists?

MR OOSTHUIZEN: Indeed Chairperson, I assume it's a confusion that - and there are several reasons, and this is my own assumption, it is the only logical one that I can come to, is the fact that we investigated murders, that we had close co-operation with Wouter Mentz, who was attached to murder and Robbery and we would have been transferred to Murder and Robbery, which happened later.

I would accept that such a confusion would have existed before this Committee and I would like to say that I was not a member of Murder and Robbery at that stage, but indeed of the Special Investigative Unit that investigated the murders.

MR ROSSOUW: Mr Oosthuizen, can you briefly elaborate to the Committee what the extent of the co-operation between yourself and the Security Branches was in these investigations?

MR OOSTHUIZEN: Chairperson, there was close co-operation between the special investigating team and the Security Branches, not only, in this case the Security Branch Northern Transvaal, but this was applicable countrywide wherever we worked. And we worked with the Security Branch we were under the command of their officers.

We received instructions from them to perform certain tasks because we were in these areas and it was accepted that we worked there and everybody knew that we were investigating these murders. We gave feedback to the Security Branch Northern Transvaal.

Our liaising persons were Brigadier Jack Cronje and Captain Jacques Hechter. This was on a continuous basis.

MR ROSSOUW: Mr Oosthuizen, we shall return to this point, but can you please tell the Committee how it happened that you had knowledge of this incident and how did you become involved in this incident.

MR OOSTHUIZEN: Chairperson, if my memory serves me correct, I cannot help the Committee as to what the date or how long before this Captain Jacques Hechter contacted us, but if I remember correctly it was at his office and he said that there were activists who would leave the country for training, terrorist training. A decision was taken that these persons had to be eliminated or be killed before they could leave the country.

I cannot remember whether he mentioned Deon Gouws' name, but I would assume that we had to assist the actions during this operations.

CHAIRPERSON: Were you part of the decision to eliminate the activists before leaving the country?

MR OOSTHUIZEN: No, Madam Chair, I was not at the initial planning and the identification of these persons.

MR ROSSOUW: Mr Oosthuizen, was it mentioned to you that Joe Mamasela had identified the persons?

MR OOSTHUIZEN: Chairperson, I cannot recall the exact detail, but it concerned the fact that the activists were identified and they would come from Mamelodi and that files existed on these people, which would confirm these allegations. I did not check the files myself. I knew that Joe Mamasela would be involved in some manner in this incident. I assumed or accepted, and I had no reason to doubt that these people had been identified on the grounds of acts that had happened in Mamelodi.

MR ROSSOUW: Mr Oosthuizen, ...(intervention)

CHAIRPERSON: You haven't answered Mr Rossouw's question, Mr Oosthuizen. The question was, was it mentioned to you that Mamasela had identified the activists?

MR OOSTHUIZEN: Chairperson, it is possible that Jacques Hechter might have mentioned it. I cannot recall the detail, but I know that Mamasela played a part in this incident.

CHAIRPERSON: When you say you knew that Mamasela played a part in this incident, what are you saying? Did you know that he had played a part in the identification of the targets? Because we also know that you will soon give evidence that he actually participated in the actual elimination of the activists.

MR OOSTHUIZEN: It is so that he indeed played a part in the identification and the run-up to this incident. I know thereof, but I do not know the details thereof. I have heard evidence of that before the Committee, but I did not deal with Mamasela directly or heard of this myself from him.

CHAIRPERSON: Mr Rossouw?

MR ROSSOUW: Thank you, Madam Chair.

Mr Oosthuizen, did you at any stage have knowledge before this incident, that attempts were made by the Security Branch to convince activists who wanted to leave the country, not to go?

MR OOSTHUIZEN: That is correct, Chairperson. Jacques Hechter informed me that attempts were made and that these attempts were not successful. In which manner it was done and when this was done, this I cannot tell you.

CHAIRPERSON: When was that, when were you informed by Captain Hechter of these attempts to dissuade the activists from leaving the country?

MR OOSTHUIZEN: Chairperson, this was during our discussion. It is possible that it could be the day when he approached me and gave me the instruction to become involved, or it could be from that day up to the incident.

I cannot tell the Committee what the time period was there, but there was a discussion between Hechter and myself and during this discussion it was told to me.

CHAIRPERSON: So you were advised of all this information in the process of your instructions to be involved in the elimination of these activists who intended to leave the country?

MR OOSTHUIZEN: Chairperson, I did not hear you correctly.

CHAIRPERSON: Were you advised of this information in the process of Captain Hechter's instruction to you to be part of the operation to eliminate the activists who intended to leave the country?

MR OOSTHUIZEN: Yes, Chairperson.

CHAIRPERSON: Thank you.

MR LAX: Mr Oosthuizen, at that stage did you have any knowledge of any unrest related incidents in Mamelodi, where young activists were involved?

MR OOSTHUIZEN: That is correct, Chairperson.

MR ROSSOUW: Can you briefly tell the Committee about these incidents?

MR OOSTHUIZEN: This involved buildings being burnt down, innocent people being necklaced, boycotts and intimidation, Chairperson.

MR ROSSOUW: Mr Oosthuizen, can you please tell the Committee what this implied to you, that activists would leave the country and receive training, military training, what did this imply to you?

MR OOSTHUIZEN: It was clear to me, Chairperson, that if these persons should leave the country they would return or they could return as trained terrorists, who would then turn on innocent persons, which would include their own people in the townships as well as police officials who were targets at that stage and that the tracing of such persons would be much more difficult, whilst he could be identified before he went for training.

MR ROSSOUW: Can I refer you to page 31 in the document entitled Exhibit E, the evidence of Captain Hechter. You will see that there Captain Hechter gives evidence about the implication of what it would mean if these persons would leave the country and receive training. He refers to it as the pre-emptive strike, would you agree with this?

MR OOSTHUIZEN: Undoubtedly this was my viewpoint with regards to this action.

MR ROSSOUW: Did you have any reason to doubt the instruction or the information about these persons were identified?

MR OOSTHUIZEN: I had no reason to doubt this because at that stage I was aware that they had a thorough network of informants in Mamelodi, and that their information was very accurate.

MR ROSSOUW: This information, did you share this with the Security Branch? You have seen how accurate their information was.

MR OOSTHUIZEN: That is correct, Chairperson.

MR ROSSOUW: Mr Oosthuizen, I would like to refer you to the finding of the Amnesty Committee in the Nietverdiendt incident. You were not involved there, but the finding of the Committee on page 13 of the judgment of the Committee on Brigadier Cronje, it is mentioned that their actions against the Nietverdiendt 10 were a pre-emptive operation to eliminate them and to make sure that they did not leave the country to receive training. You've referred to that section of the judgment, would you say that the same purpose was in mind with the KwaNdebele 9?

MR OOSTHUIZEN: That is correct, Chairperson.

MR ROSSOUW: Mr Oosthuizen, can you tell the Committee on which basis preparations were made for this operation? From whom did you receive instructions and what preparations were made?

MR OOSTHUIZEN: Chairperson, as I have explained already I cannot with certainty say when and how long before the incident it was when I was informed by Jacques Hechter. I want to be certain that it was at his office during one of my visits there, that we would be involved with this action. He explained to me what the planning should be and shortly thereafter Deon Gouws and myself as well as Jacques Hechter went to a holiday resort in Bronkhorstspruit and had a meeting there, where the ammunition that would be used in the incident was cleaned.

MR ROSSOUW: Could you please tell the Committee what you mean with cleaning the ammunition.

MR OOSTHUIZEN: Chairperson, firstly we had to ensure that the weapons were in a working condition, in other words, the AK47s that we would use which was given to us by Jacques Hechter, the ammunition and weapons had to be cleaned of any fingerprints because we knew that the shells would remain at the scene. I have to mention that it was just myself, Jacques and Deon Gouws that were present there. Thereafter I'm uncertain where we me for this operation, but on the evening, but no the evening of the incident, I cannot recall if it was the evening before the incident or the same evening, I'm not sure, but ...(intervention)

MR ROSSOUW: Before we proceed to that point, you know that you liaised with Captain Hechter, do you know where Brigadier Cronje was?

MR OOSTHUIZEN: I cannot say where Brigadier Cronje was. I was never present, or Brigadier was never present where this incident was discussed.

MR ROSSOUW: Is it correct that before this operation you had some concern as to whether you were caught or not? Did you discuss this with someone?

MR OOSTHUIZEN: That is correct.

CHAIRPERSON: I didn't get you, Mr Rossouw, what was his concern before the operation?

MR ROSSOUW: Madam Chair, there was a concern that they might be found out and that he discussed it with somebody. He's going to tell you now what transpired there.

CHAIRPERSON: Found out by whom?

MR ROSSOUW: By either the police, I'm placing words - he should tell you.

CHAIRPERSON: You may proceed to respond, Mr Oosthuizen.

MR OOSTHUIZEN: Chairperson, I'm almost certain that at the first mention or instruction that I received from Jacques Hechter, I asked him what would happen if we were caught in that area, because I knew that the army were relatively active in that area. And that would seem so from their evidence, that the army was indeed there.

Hechter explained to me that this was not my concern, it has been taken care of. I accepted that that was the system that would ensure that we were safeguarded and that a system was in place. And I mentioned it in my application, that this is the only advantage that I had from these actions and that is that the system protected me in these instances.

MR ROSSOUW: Very well. Mr Oosthuizen, can you please tell the Committee what the further preparations were?

MR OOSTHUIZEN: Chairperson, we met that evening. The planning was that Joe Mamasela and Deon Gouws would handle the weapons and Wouter Mentz would drive the vehicle, and Jacques Hechter was in possession of a container with petrol. This was to be used at the scene after the shooting incident to set fire.

We drove to Vlaklaagte and in the area where we had to do the operation we spotted some army vehicles patrolling the area. It was a problem for us. We then decided to go to the one, to set fire to a bush on the one side of this area. I cannot recall who set fire to the bush, but we did set fire to the bush indeed. The idea was to divert the attention of the army and to remove them physically to that area to clean up the area in which we had to drive into.

The plan was effective, it did happen. We drove in and we stopped at the particular house which was pointed out to us by Joe Mamasela. There was a high gate which was locked. Joe Mamasela climbed over while we waited outside. He returned with a key and opened the gate. Deon Gouws and myself were standing behind a wall of a house on the same premises and waited for Joe Mamasela to call us. Wouter Mentz pushed the vehicle backwards into the property.

Mamasela indicated to us that we could come in. The plan was that these people would receive a crash course in the handling of weapons ...(intervention)

MR ROSSOUW: Is that the reason why you had AK47s with you?

MR OOSTHUIZEN: That is correct. The reason why we had these AK47s was to shoot them, but they would accept that we came to give them some training.

We went into the room. Joe Mamasela led the way and Deon Gouws was behind him and I was third in line.

MR ROSSOUW: Where did Mamasela stand in relation to the door?

MR OOSTHUIZEN: The door was to the side of the room. Joe Mamasela went in and stood on the left-hand side of the door. Deon Gouws went in before me and stood on my left and I stood on the right-hand side of the door and we started shooting

MR ROSSOUW: Can you tell the Committee where these persons were at this stage in the room?

MR OOSTHUIZEN: The persons stood in a row before us. During this process I saw that I shot Deon Gouws' weapon. At that stage I decided to leave the room which was also the same for Joe Mamasela and Deon Gouws. We ran out to the vehicle.

If I recall correctly, and I'm not sure about this point, but either Jacques Hechter or Deon Gouws poured petrol onto the bodies and somebody set them alight. I don't - I assume it was one of the two of them. We climbed into the vehicle and we drove away. I assume that we drove back to Pretoria.

MR ROSSOUW: Mr Oosthuizen, with regard to this matter we know that the evidence of Captain Hechter was that he gave the order and that you as his subordinates executed his orders. I refer you to page 34 in the document, Exhibit E.

MR OOSTHUIZEN: That's correct, Chairperson.

MR ROSSOUW: You confirm this?

MR OOSTHUIZEN: Yes, I confirm this.

MR ROSSOUW: What was your rank at that stage?

MR OOSTHUIZEN: Warrant Officer.

MR ROSSOUW: Would you as a subordinate officer have been in a position or in any way considered it to question an order given by a Captain or an officer like Captain Hechter?

MR OOSTHUIZEN: No.

MR ROSSOUW: Why not?

MR OOSTHUIZEN: In the police hierarchy it never worked that way, that a subordinate officer would disregard, or disobey the order of a senior office. Furthermore, we were under his command during certain operations in which we were involved with the Security Branch.

MR ROSSOUW: Mr Oosthuizen, I would like to refer you to the evidence of Mr Mentz with regard to this matter, the document entitled Exhibit F, page 7 of that document. There during cross-examination of Mr Mentz, it was debated - let me ask you this first, Mr Mentz was at that stage not a member of the Security Branch, he was with Murder and Robbery.

MR OOSTHUIZEN: Yes, that's correct.

MR ROSSOUW: When did you become aware that Mr Mentz would also be part of this operation, can you tell us this?

MR OOSTHUIZEN: If my memory does not fail me, Chairperson, on that evening when Wouter Mentz arrived there with the motor vehicle, for the first time I heard that he would driving the car.

MR ROSSOUW: Did you find it strange that there would a member of the Murder and Robbery Unit that would be a member of this operation?

MR OOSTHUIZEN: No, simply because I also knew that there was an overlap of work between the Murder and Robbery Units and the Security Branch at that stage in the country.

MR ROSSOUW: Mr Oosthuizen, then on page 7 Mr Mentz states that despite the fact that he was with Murder and Robbery, he says:

As a policeman, did you also regard this as part of your duties to combat terrorism and also to take preventative action in combating terrorism? Did you regard this as part of your duties?

MR OOSTHUIZEN: Yes, that's correct, it was like that from the very first day that I joined the police, until the conditions in this country changed, that terrorism had to be fought with everything.

MR ROSSOUW: Mr Oosthuizen, do you also know about the Amnesty Committee's decision with regard to the political objective in this matter and the amnesty decision of Mr Mentz and Captain Hechter?

MR OOSTHUIZEN: That's correct.

MR ROSSOUW: Do you also confirm the finding regarding the political objective?

MR OOSTHUIZEN: Yes, I confirm that.

MR ROSSOUW: Mr Oosthuizen, did you draw any benefit from this action, or was it in any way aimed as a result of malice which you felt against these persons or this person?

MR OOSTHUIZEN: No, and there was no gain.

MR ROSSOUW: Financial gain?

MR OOSTHUIZEN: There was not financial gain.

MR ROSSOUW: Mr Oosthuizen, is there anything that you wish to add regarding this incident?

MR OOSTHUIZEN: No, Chairperson, that which I wanted to say about the gravity of the deed has already been submitted in my amnesty application.

MR ROSSOUW: Do you confirm this?

MR OOSTHUIZEN: Yes, I confirm this as well.

MR ROSSOUW: Thank you, Madam Chair, that is the evidence-in-chief.

CHAIRPERSON: I think this might be the appropriate time to take the tea adjournment until twenty five past eleven.

OOSTHUIZEN:

CHAIRPERSON: ... on the table because the Committee was two minutes late. It was because of Mr du Plessis having to see us about something in chambers. Who wants to go first? Mr du Plessis?

MR DU PLESSIS: I have no questions, Chairperson.

MR VISSER: Neither do I.

CHAIRPERSON: Mr Polsen?

MR POLSEN: I have one question, Madam Chair.

CHAIRPERSON: Yes.

CROSS-EXAMINATION BY MR POLSEN: Mr Oosthuizen, you have stated that you liaised with every Security Branch before you would undertake any activities within any given region, can you recall whether in this case you liaised at all with the Security Branch in Bronkhorstspruit and with Mr Kendall himself?

MR OOSTHUIZEN: Chairperson, we never liaised with Kendall, but directly with Security Branch, Northern Transvaal.

MR POLSEN: Thank you.

CHAIRPERSON: Mr van den Berg?

CROSS-EXAMINATION BY MR VAN DEN BERG: Thank you, Madam Chair.

Mr Oosthuizen, do you know about Johannes Skosana?

MR OOSTHUIZEN: No, Chairperson.

MR VAN DEN BERG: What information was given to you in relation to the persons who you later murdered? For example, were the names ever provided, were any particulars provided with regard to what they were allegedly busy with?

MR OOSTHUIZEN: Chairperson, the information which was conveyed to me came from Jacques Hechter. No names were given, neither were ages given, it was about activists who had been identified and about whom there were files in connection with their activities and deeds and that they were about to leave the country in order to receive terrorist training.

MR VAN DEN BERG: One of the persons who was murdered is Mabuso Malabolo, do you say that you have no knowledge of names or that sort of particular?

MR OOSTHUIZEN: Yes, that is my evidence.

CHAIRPERSON: Can you spell the name of the person for us?

MR VAN DEN BERG: His first name is Mabuso; M-A-B-U-S-O and surname; M-A-L-A-B-O-L-O.

CHAIRPERSON: Thank you.

MR VAN DEN BERG: He wasn't from Mamelodi, he was indeed from KwaTema and he was visiting his parents, or at least his grandparents, his grandmother and grandfather. You have no knowledge of that?

MR OOSTHUIZEN: I have no knowledge of that, Chairperson.

MR VAN DEN BERG: In fact he had only been in Mamelodi for three days with that visit, when he disappeared and his grandmother was later informed, a week after the incident, that he had died.

MR OOSTHUIZEN: I'm very sorry, Chairperson, but I cannot be of assistance to you on that point. I cannot dispute it, neither can I confirm it.

MR VAN DEN BERG: The evidence of Hechter as I understand it, is that a group of persons in Mamelodi had been infiltrated by Mamasela and that they had told him that they wanted to go for training, do you know about that?

MR OOSTHUIZEN: I did not discuss those details with Jacques Hechter. How the information came to his knowledge I accept was partially through Joe Mamasela as well as possibly, and I have no substantiation for that, by means of feedback from informers in the relevant area. And on the grounds of that files were kept.

MR VAN DEN BERG: When were you transferred - you were a member of a task force for specific investigations as I understand it, when were transferred to that particular unit?

Unfortunately I was not here when you gave evidence regarding Ntuli, so if you have already answered this question before, I apologise.

MR OOSTHUIZEN: I don't think that I have previously answered that question, it could possibly have been a year or two before the KwaNdebele incident, that I was deployed to the Special Investigative Unit Head Office, Pretoria.

MR VAN DEN BERG: If one studies Captain Hechter's evidence which is on page 762, Madam Chair, in bundle 2(f) ...(intervention)

MR VAN DEN BERG: Mr Rossouw, do you have the bundle?

MR ROSSOUW: I do not have it. Madam Chair, can my learned colleague perhaps just read what is said there to the witness?

CHAIRPERSON: Yes.

MR VAN DEN BERG: I will put it to the witness, Madam Chair.

CHAIRPERSON: You may do so, Mr van den Berg.

MR VAN DEN BERG: Hechter was questioned about how he involved you in this matter and he was examined by Mr du Plessis:

Hechter answers:

Would you agree with that?

MR OOSTHUIZEN: Chairperson, Jacques Hechter's evidence is by and large correct, with the exception of the point - and for the same reason I indicate that there could have been some confusion about this, Deon Gouws and I and Hechter and Wouter Mentz were at a certain stage stationed at Brooklyn.

However, this was a long time before the incident and I think that his memory is failing him to a certain extent. I think in one of his other applications he stated correctly that we were in Siyabuswa, busy with an investigation and that from there he contacted us. At that stage ...(end of tape)

... evidence. I would not say it's a lie, I think he may be confused regarding that point.

CHAIRPERSON: Mr van den Berg, can one not also read one sentence to have meant that at some stage they had worked together, they had worked together very closely for several years in Brooklyn?

MR VAN DEN BERG: Yes, I agree with that. I just wanted his interpretation as to the facts.

CHAIRPERSON: Yes.

ADV DE JAGER: There is another aspect of the question. He states that he contacted you that afternoon, before the evening on that very same day.

MR OOSTHUIZEN: That is correct, that he would have telephoned me and informed that the action would take place on that particular day, but if my memory serves me correctly, the initial involvement and order to execute this project took place before this particular day.

CHAIRPERSON: Over period would you say?

MR OOSTHUIZEN: Chairperson, I would like to assist the Committee in that regard, but my memory is not as fresh regarding that. It may have been three to four days or even longer. I apologise, but my memory fails me in that regard.

CHAIRPERSON: From what has been read to you by Mr van den Berg suggests one thing and one thing only, that the information came to light to Captain Hechter, he then contacted you and requested you to execute the operation the very evening.

MR OOSTHUIZEN: I do not dispute that, that he phoned me on that particular day and told me that the operation would be undertaken on that specific evening. But as far as I know, with regard to the contact between me and Hechter that there would be such an operation, this took place before that day. I accept that he would have telephoned me and told me that the operation would take place today. I cannot dispute that, but my memory serves me insofar as to say that the initial discussion between me and Hechter took place before then.

CHAIRPERSON: Thank you, Mr van den Berg.

MR VAN DEN BERG: Thank you, Chairperson.

CHAIRPERSON: Ms Lockhat, did you want to say something?

MR VAN DEN BERG: I still have a few questions, Madam Chair.

CHAIRPERSON: I'm aware, I thought she was pressing her button to draw my attention to something that she wanted to say. I know you still have lots of questions to put to Mr Oosthuizen. I'll try not to take too much time, Madam Chair.

Mr Oosthuizen, may I refer you further in the record of the previous applications, on page 842. How did the decision come about as to who would be undertaking the shooting, how did you arrive at that decision?

MR OOSTHUIZEN: Could you repeat your question please.

MR VAN DEN BERG: How did you decide, or how was the decision taken regarding who would do the shooting?

MR OOSTHUIZEN: I accept, Madam Chair, that the planning was undertaken to such an extent that Wouter Mentz, who was approached singularly by Jacques Hechter, would drive the vehicle. By nature of the situation, Joe Mamasela negotiated with these people and he said as a cover-up that these people would receive training in order to get us into the venue. And there was a joint decision that Deon Gouws and I would participate in the shooting and Jacques Hechter would be in control of the action or the situation that was jointly decided. It also stood under the command of Jacques Hechter in that way.

MR VAN DEN BERG: The extract that I want to put to you is part of Captain Mentz' evidence. If I can take you from where he begins his evidence on 842. He states as follows:

Would you agree with that?

MR OOSTHUIZEN: Chairperson, it is improbable to me that we would have volunteered at that stage to do the shooting, seeing as we were already in possession of the AK47s, Joe Mamasela as well as myself and Deon Gouws. I can accept that Wouter Mentz would have drawn the inference, seeing as we were already in possession of these weapons.

MR VAN DEN BERG: Your evidence was that when you ...(intervention)

CHAIRPERSON: Mr van den Berg, may I interrupt. Don't you want to take that issue further, because there is a reference, I'm just trying to go through my notes, wherein Captain Hechter himself states quite unequivocally that Mr Oosthuizen, Mr Mamasela and Mr Gouws volunteered to do the shooting. They didn't do it at anyone's instructions.

MS LOCKHAT: Chairperson, I can assist in terms of the page reference.

CHAIRPERSON: Yes.

MS LOCKHAT: It's in bundle 2(f), page 770, in relation to Hechter's evidence. That is exactly what he also confirms. He said that they said they would like to do the actual shooting and he mentions their names.

And then for the purposes of Mr Rossouw, it's page 12 of his bundle, annexure.

MR VAN DEN BERG: Shall I put that to the witness, Madam Chair?

CHAIRPERSON: Yes.

MR VAN DEN BERG: My page has been badly copied, so a portion of it I may not be able to read. That's Hechter's evidence and he states as follows:

Do you care to comment on that?

MR OOSTHUIZEN: Chairperson, as I have already stated, I think that at the point when we were cleaning these weapons, it had already been accepted that Deon Gouws and Mamasela and I would undertake the shooting. If any witness then states that we volunteered, I cannot dispute it before the Commission.

My memory fails me when I would say don't do it, I'll do it or I want to do it. I never said that I wasn't going to do it or that I didn't want to do it. If the witnesses then state that Deon Gouws and Mamasela and I volunteered to do it, I would not be able to dispute this before the Commission. I just think that - I don't think that it was brought about by the volunteer attitude, I think it was just accepted that we would undertake the shooting.

MR VAN DEN BERG: Well you had three guns, so that would indicate that three people would be shooting.

MR OOSTHUIZEN: That's correct. And already with the cleaning of the weapons it had been accepted that we would be doing the shooting. Whether we would have confirmed it in the car where Wouter Mentz was involved and Mamasela and Gouws as well, it will not be disputed that we said yes, we'll undertake the shooting. It would not be fair to dispute that point because we were already in possession of the weapons.

CHAIRPERSON: The point of the matter is that it wasn't a joint decision, you volunteered to have a particular role in the operation.

MR OOSTHUIZEN: That's correct.

CHAIRPERSON: With five of you there it could have been Mr Mentz, it could have been Captain Hechter himself who could have done the shooting, but you of your own accord volunteered to do the shooting, which is different to what you have evidenced just now viva voce, that the shooting was as a result of a joint decision taken amongst yourselves as participants in the operation, is that not so?

MR OOSTHUIZEN: I would agree with you on that.

CHAIRPERSON: Yes.

MR VAN DEN BERG: What was said to you in regard to the use of fuel and the fact that the bodies would be burnt or set alight after the incident, what was said to you in that regard?

MR OOSTHUIZEN: Madam Chair, nothing else was said to me regarding the scene of the incident, other than the fact that the bodies would be set alight in order to eliminate any kind of evidence.

MR VAN DEN BERG: But it is that particular aspect which has brought much pain upon the family members of the victims, the aspect that after they murdered their bodies were handled in such a way. You have noticed the reaction of the family members when you gave that evidence, do you have any comment regarding that?

MR OOSTHUIZEN: I accept the impact which it would have on the family. I can only mention to the Committee that part of the reason why these people were set alight is to create confusion, because it was the general thing that if the activists were to kill one another, the bodies would be set alight and that is the reason why this scene was also set alight, and in order to eliminate any other evidence which may be left behind on the scene of the incident.

CHAIRPERSON: You see Mr Oosthuizen, the other reason that you are advancing and that is the reason that the bodies were set alight in order to destroy evidence was not the reason advanced by the person who instructed you, and that is Captain Hechter, he only advanced that reason that it was to stage the accident as if the operation had been carried out by other activists. He only advanced that reason. Now where do you get the reason, the other reason that you are now advancing before us? Was it by his instruction, did he inform you that you had to set the bodies alight in order to destroy evidence?

MR OOSTHUIZEN: Chairperson, I agree wholeheartedly with what Jacques Hechter's statement was. The second aspect is my own assumption that it would be beneficial to set the scene alight. This was not from Jacques Hechter, but from me.

CHAIRPERSON: I think you must try and answer your questions, questions put to you, pointedly. If they are on the basis of your assumption you must say that because otherwise ultimately we would think there is something wrong with your evidence if you put your evidence as if its a fact, it's something that was within your knowledge. If it is an assumption you must state that it is an assumption, it is your opinion and it is not a fact.

MR OOSTHUIZEN: I beg your pardon, Madam Chair. The part surrounding Hechter's statement was also an order from him and the fact that I say that evidence which could be used against us could be destroyed by setting the scene alight, it is from my own assumption, this does not come from Jacques Hechter, if I understand you correctly. That this would be the primary reason why Jacques Hechter suggested that the scene be set alight in order to create confusion and to make it appear as if this was an action undertaken by activists against activists, if I understand you correctly.

MR VAN DEN BERG: You are not the person who poured the fuel over the bodies or set the bodies alight?

MR OOSTHUIZEN: No.

MR VAN DEN BERG: Do you have any knowledge of who it was? As I recall your evidence you said you cannot recall whether or not it was Hechter or Gouws.

MR OOSTHUIZEN: That's correct, I can't recall.

MR VAN DEN BERG: What was Captain van Jaarsveld's role in this matter?

MR OOSTHUIZEN: As far as I know, Captain van Jaarsveld performed no role in this incident.

MR VAN DEN BERG: Thank you, Madam Chair, I have no further questions.

CHAIRPERSON: Thank you. Ms Lockhat?

CROSS-EXAMINATION BY MS LOCKHAT: Mr Oosthuizen, you said there was a file on the activists, is that correct?

MR OOSTHUIZEN: That is correct.

MS LOCKHAT: Did you see the file, did you deal with the file?

MR OOSTHUIZEN: No, I simply went with the information which Jacques Hechter gave me.

MS LOCKHAT: Do you know who compiled the file?

MR OOSTHUIZEN: I accept that it was compiled by the Security Branch in the Northern Transvaal at their offices.

MS LOCKHAT: You said that Hechter informed you that there were attempts to dissuade the activists to, not these activists but just generally, to prevent them from going across the border for training, is that true?

MR OOSTHUIZEN: Yes, he did mention this to me.

MS LOCKHAT: Were these attempts also carried out on these activists?

MR OOSTHUIZEN: Not as far as I know.

MS LOCKHAT: Did you ask him why not?

MR OOSTHUIZEN: I did not ask Jacques Hechter whether this was of application to these activists, for the reason that it was determined that an action would be undertaken against these people.

MS LOCKHAT: Tell me, is it right for me to assume that your Commandant van Wyk also did not have any knowledge regarding this incident?

MR OOSTHUIZEN: I did not inform him before the incident, nor did I inform him afterwards.

CHAIRPERSON: Your evidence is that when you acted on operations of the Security Branch you were under the orders of the commanding officer of that particular branch within the Security Police.

MR OOSTHUIZEN: That's correct.

MS LOCKHAT: On page 39 of the bundle I just want to refer to a statement that you made and I just want you to comment on it. You said:

Can you comment on that statement?

MR OOSTHUIZEN: Chairperson, may I just read this paragraph please?

MS LOCKHAT: It is on page 39 of bundle 5.

CHAIRPERSON: What paragraph on page 39, Ms Lockhat?

MS LOCKHAT: The paragraph, the third line from the top. It says:

Can you just comment on that for us please.

MR OOSTHUIZEN: Very well, Madam Chair. I wrote here that my sentiment after the deed was that the possible impact of this incident on the families was that they possibly would never know what exactly happened to their family members. At that stage after the incident we didn't know that we would be sitting here today. And that was a statement of my sentiment after the incident.

MS LOCKHAT: Do you feel today that they are completely in the full picture of what occurred on that day?

MR OOSTHUIZEN: That's correct.

MS LOCKHAT: Thank you, Chairperson, no further questions.

CHAIRPERSON: Mr de Jager, do you have any questions to put to Mr Oosthuizen?

ADV DE JAGER: No.

CHAIRPERSON: Mr Lax?

MR LAX: Just one question, Chairperson. I just want to make absolutely sure. Will you just bear with me one moment?

I want to refer you to page 38 of the bundle, it is the fourth paragraph on that page and this is an annexure to your application, in which you expand on the facts. You said we - and I'll read the whole thing so that the whole context is clear:

My question is this, in your viva voce evidence you seem very unclear about who actually threw the petrol, yet in this statement and in your subsequent statement there is absolutely no doubt in your mind who did it. Could you just explain that for us please?

MR OOSTHUIZEN: I can explain it. During the submission or the compilation of this application this was my first recollection regarding what happened there. After that many consultations took place and it became uncertain to me later whether I had given a clear representation of the facts and that is why I say to the Committee today that I am uncertain regarding who poured the fuel. There is no other reason for that.

MR LAX: I just want to take you back to one aspect very early on in your evidence. You were asked about the extent of the co-operation between your unit and the Security Branch - before I go on with that I just want to be clear about your unit. You refer to it as a Special Investigation Unit, how was it established, why was it so special? What was special about it?

MR OOSTHUIZEN: The wording of Special Investigative Unit was because it was the only group which was compiled from head office in order to investigate all unrest related incidents on a nation-wide basis, murders as well as actions against people who sat behind the incitement of these incidents. There is no other reason why it was a Special Investigative team.

It could be in order to distinguish this team from a regular investigative team which was in place at that stage. And the persons who were involved in this were very competent investigators. I cannot think of any other reason why else it was called a special team. There were no other qualities attached to these persons.

ADV DE JAGER: But they dealt only with politically related or allegedly politically related matters, they didn't deal with criminal investigations?

MR OOSTHUIZEN: That's correct, it was only about politics and unrest within the country.

MR LAX: You see my, just from my own experience there were unrest investigation units, whose specific task was to investigate unrest matters. They were distinct from Murder and Robbery, they were distinct from all the other crime investigation services and they were often the very best detectives that could be got together. And I'm aware, for example I come from Pietermaritzburg, there was a unit in Pietermaritzburg that operated extensively investigating unrest matter. Are we talking about the same thing or the same kind of thing?

MR OOSTHUIZEN: I think we may be talking about the same kind of thing. We fell directly under the command of head office, or resided under the command of head office. The units such that which you have described in Pietermaritzburg fell under the command of the division, they were regionally bound to investigations within their regions. We worked on a national basis and that is where the distinction comes in. We were also operating in a supportive capacity from head office in Pretoria.

MR LAX: Now just to take you back to your evidence, having established that context. You said you worked together with the Security Branch and that you said that your liaisons with the Security Branch were Brigadier Cronje and Captain Hechter. Did I hear that correctly?

MR OOSTHUIZEN: That is correct.

MR LAX: Well if that was the case and if they were in fact your liaison points, how could Captain Hechter have made the sort of mistake you have referred to? If he was this liaison at Murder and Robbery when in fact you weren't at Murder and Robbery, and he was the liaison with you, how would that mistake have come about?

MR OOSTHUIZEN: Chairperson, as I've already explained or attempted to explain, I think that Jacques Hechter has referred to a time period which was confusing for him because we used to work together at Brooklyn and after that we became involved with the investigative team which dealt with political murders or politically related matters.

During this special investigation which operated in KwaNdebele, there was talk that I would be transferred to the Murder and Robbery Unit or the Security Branch and indeed thereafter for a number or years, I was with the Murder and Robbery squad. And I think for this reason it has confused him somewhat. However, that there was indeed liaison is the truth.

MR LAX: Now one last question from me. You were part of a special investigative unit, it was your job to investigate unrest related matters.

MR OOSTHUIZEN: That is correct.

MR LAX: And you indicated earlier in answer to a question from Ms Lockhat, that your commanding officer in that unit didn't know anything about these activities of yours, these other activities of yours.

MR OOSTHUIZEN: That's correct, I never reported it to him, I didn't report back to him and I didn't inform him about the actions or the incidents or the murders or the planning thereof, it was confidentially conveyed to me and accepted by me that it was to be kept confidential within the circle in which it was discussed and planned and that is why he was never informed by me, because he had never been a member of the discussion, the planning or the execution thereof.

MR LAX: The point I want to make and ask you to comment on is, is it not arguable, at the very least, that what you did you didn't do in your official capacity as a member of the Police Force, you did it in some other capacity. You did it as a volunteer or out of a misconceived sense of duty or whatever else, but you didn't do it in your position that you were appointed to as a member of the Police Force.

MR OOSTHUIZEN: I cannot see it in that light because at that stage we were in a state of war, it was war which was being fought with methods beyond the fixed rules of the police or the forces. We didn't act as vigilante groups, we acted upon instructions of respected people who undertook calculated planning and made calculated decisions. It was not a case of us being on our own mission, these were high-profile matters and they were handled accordingly.

And the fact that I was involved in the Special Investigative Unit as well as actions undertaken by the Security Branch, was not outside bounds because there was specific liaison and support with regard to specific operations and not everybody was involved in these operations, and that was the order of the day.

MR LAX: The simple point I'm making is it wasn't your official job, you were a detective to investigate unrest matters, that was your job, what you did was way beyond the call of your normal job.

MR OOSTHUIZEN: In the light of the circumstances and the conditions within the country, it was not beyond the ambit of my duties although they were not officially part of my duties, such actions which stood under the instruction of senior officers were indeed part of my duties.

MR LAX: Thank you, Chairperson.

CHAIRPERSON: Mr Oosthuizen, I had not intended to ask you any questions, but I want your comment emanating from the questions put to you by my colleague, Mr Lax, with regard to whether you conducted this operation within the course and scope of your duties as you understood them and particularly with reference to the evidence that has already been given to this Committee of this close co-operation that existed between the various units of the South African Police as well as the South African Defence Force, in particular Special Forces.

Captain Hechter gave evidence before this Committee and his evidence would suggest, and I must stress suggest, he doesn't say so, but his evidence would suggest that you were requested together with Mr Mentz and Mr Gouws to participate in this operation because you were his friends. And that appears on page 803 of bundle 2(f). What would be your comment to that?

MR OOSTHUIZEN: Madam Chair, I think the reason why he has referred to that is because there was a situation of confidence among us ...(intervention)

MR ROSSOUW: Madam Chair, may I interrupt at this point?

CHAIRPERSON: Yes.

MR ROSSOUW: May I be corrected if I'm mistaken, but as I recall it this was not the evidence of Captain Hechter, this was a question or a statement made by Judge Wilson.

CHAIRPERSON: Yes, to which he conceded. He says that is correct. That appears on 803. And that is why I'm stressing that it would suggest that he requested them because they were his friends. The question from Judge Wilson is:

Now he had already mistakenly put Mr Gouws and Mr Oosthuizen as being attached to the Murder and Robbery Squad unit. And his simple answer to that question is:

MR OOSTHUIZEN: Madam Chair, I cannot agree wholeheartedly with that because the action was not undertaken by a group of friends who had simply decided to go and do that, it followed from instructions and was regarded in that light. I cannot accept that I was simply there because I was a friend of Jacques Hechter. I can recognise that there was indeed a situation of confidence however.

MR OOSTHUIZEN: Pardon?

CHAIRPERSON: No, I just wanted to get your comment on that because it's part of the evidence that is before us.

Further, I would like your comment to what Mr Mentz went on to say when he gave evidence. He conceded that in participating in this operation he was on a frolic of his own. And that appears on page 840.

MR ROSSOUW: Sorry.

CHAIRPERSON: Yes?

MR ROSSOUW: Madam Chair, may I again interrupt. I have read that portion of the evidence very, very in-depth and from the re-examination afterwards by Mr du Plessis it would appear that there was some sort of confusion in the translation because he said:

And then in re-examination it was stated:

But apparently it was stated that there might have been a problem with the translation or with his understanding of it and he then was specifically asked:

And he said:

So this was addressed later on.

CHAIRPERSON: Yes.

MR DU PLESSIS: Madam Chair, may I perhaps just come in there? That's on page 847, where this was specifically dealt with by me in re-examination and I mentioned it specifically there and I can recall that I did so for record purposes, referring to the possible misinterpretation and the possible problem of the interpretation into Afrikaans.

You will recall that I did that on a few occasions during that hearing because there were problems with the interpretation into Afrikaans sometimes and every time that happened, I placed it purposely on record so that it is on record. That is how I recall the situation, Madam Chair.

CHAIRPERSON: Thank you for drawing that to my attention. But would you consider your participation to have been that of a person who is acting on a frolic of his own? - in your case Mr Oosthuizen.

MR OOSTHUIZEN: Definitely not, Madam Chair.

CHAIRPERSON: Mr Mentz if I also recall, went on to say that he personally felt that his participation in that operation did not fall within the scope and course of his duty. What would be your response, would you say your participation was within the course and scope of your duties?

MR ROSSOUW: Madam Chair, may I again interrupt? I'm sorry, I'm just worried that this might be slightly misleading. If the portion of that evidence can perhaps be put to the witness because something flows from the answer which is very important, you will note from that portion of the evidence.

CHAIRPERSON: That appears on page 838. I think the thrust of his evidence was that he did not think this was within the course and scope of his duties because the instructions had not been received from his commanding officer at Murder and Robbery Squad. I just want Mr Oosthuizen to comment, because he stands obviously in a different category from that of Mr Mentz.

MR ROSSOUW: Madam Chair, I was perhaps labouring under a, thinking about a different portion of his evidence.

CHAIRPERSON: Yes, no, I know.

MR DU PLESSIS: Madam Chair, I'm sorry. I just read a little bit further. Mr Mentz testified, on the bottom of page 839, top of page 840, that he concluded that he, or that he believed that the approval or bore the approval of the then Commissioner, who was under the General, right up the ranks up to the government. He did testify that so ...

CHAIRPERSON: Yes, I'm aware of that.

MR DU PLESSIS: Yes, thank you.

CHAIRPERSON: I'm just interested with this particular aspect of the evidence.

MR DU PLESSIS: Yes, thank you.

CHAIRPERSON: Did you consider yourself to have acted outside the course and scope of your duties?

MR OOSTHUIZEN: No, Madam Chair.

CHAIRPERSON: Were you a friend of Captain Hechter?

MR OOSTHUIZEN: Yes, we were friends.

CHAIRPERSON: And your friendship stretched for what period, prior to this incident?

MR OOSTHUIZEN: Three/four years.

CHAIRPERSON: Before this incident occurred?

MR OOSTHUIZEN: Yes. Although at the beginning of this period of time we were not that close, we became better friends later.

CHAIRPERSON: Thank you, Mr Oosthuizen. Mr Rossouw, do you have any re-examination emanating from the questions from the Committee?

MR ROSSOUW: Thank you, Madam Chair. May I ask that I be a granted a little bit of leeway to lead some evidence specifically for the benefit of the new Member of this Committee, which I've used in argument in the Piet Ntuli matter, which I feel is important for this Committee as it sits now.

CHAIRPERSON: Can I confer with the Members of the Committee if that will strictly necessary? We can always bring him up to speed if need be.

MR ROSSOUW: Madam Chair, maybe I need not lead the evidence, I can just now point you to which portions I'm going to single out.

CHAIRPERSON: Yes, okay.

MR ROSSOUW: This is included in Exhibit G, that you've received, the documents and testimony and specifically what I'm going to refer to with regard to the question of whether murder, to commit a murder, was not part of the duty sheet of any policeman, but it must be seen in this light of the evidence of Minister Vlok in the Khotso House matter and more specifically page 76 thereof, and I'll ...(intervention)

ADV DE JAGER: Mr Rossouw, I think it's clear that on the duty sheet you couldn't commit any crime, that was not a task of the Police Force. But I think, you've referred to this, you've given us a reference to a certain case. I think there's a case in around 1937, Rex v Smith, if I'm correct, which deals fully with what is meant by "in the scope" of your employment and doing a criminal act "within the scope of your employment.

MR ROSSOUW: Thank you, Madam Chair, then I will not take it any further. May I just clear up one further point with the witness?

CHAIRPERSON: And hopefully we are still going to get your written Heads, because I think you weren't quite at length with regard to this particular point when you were addressing us in argument.

MR ROSSOUW: I will endeavour to do that, Madam Chair.

CHAIRPERSON: So the Member of my Committee who was not present will then be able to be brought up to speed with the evidence that has already been tendered before us.

RE-EXAMINATION BY MR ROSSOUW: Thank you, Madam Chair.

Mr Oosthuizen, from the questions posed by the Chairperson regarding whether or not you indicated that you would do it out of a voluntary sense, the distinction between that and a joint decision, I'm very not certain about it.

Firstly, I would like to refer you to the evidence of Captain Hechter - and Madam Chair, you'll find this on page 13 of the document titled Exhibit E. I'd like to read this to the witness, where Captain Hechter testifies and says:

... and proceeded there with his evidence.

As you sit here today, can you tell us whether or not this was a case of, when you were informed about a possible operation, you said; I want go and eliminate these guys or did you understand it as an instruction and did you say; well I will undertake the obligation and carry it out? In other words, did the initiative emanate from you or was it in response to an instruction, as per Captain Hechter's evidence?

MR OOSTHUIZEN: It was in response to an instruction and as I have explained during my evidence to the Committee, it was a joint venture. When the weapons were cleaned, everyone accepted that the weapons should be clean and in a working condition. It wasn't a question of one person raising his hand and saying; I want to do it.

The operation was planned, the instructions were given for this operation to be executed and if by occasion I may have said, when Wouter Mentz asked; who was doing the shooting and I said; I will, and Deon will be doing it and Joe Mamasela would be doing it, I could accept that, but I didn't say that I would accompany them on one condition and that would be for me to undertake the shooting, it was an instruction along with mutual planning.

CHAIRPERSON: I think that's quite clear, Mr Rossouw.

MR ROSSOUW: I was just worried for some confusion.

CHAIRPERSON: Yes, it's quite clear that they were instructed to eliminate. All that they did was; well my role would be to do the shooting.

MR ROSSOUW: Thank you.

CHAIRPERSON: There can't be any problem with regard to that.

MR ROSSOUW: Thank you, Madam Chair. Then I've got no further re-examination.

CHAIRPERSON: Thank you. Ms Lockhat, this should bring us to the end of this matter.

MS LOCKHAT: Chairperson, we still have two other applicants, D Gouws and van Jaarsveld.

CHAIRPERSON: I think I am being too presumptuous, looking at my watch. Who are we going to have next?

WITNESS EXCUSED

ADV DE JAGER: Your full names please?

DEON GOUWS: (sworn states)

EXAMINATION BY MR ROSSOUW: Thank you, Madam Chair. You'll find the application of Mr Gouws on page 17 of bundle 5.

Mr Gouws, do you have a copy of your amnesty application before you?

MR GOUWS: That is correct, Chairperson.

MR ROSSOUW: Mr Gouws, you apply for amnesty for murder, which is now known as the KwaNdebele 9.

MR GOUWS: That's correct, Chairperson.

MR ROSSOUW: And any other offences that might flow from that?

MR GOUWS: That is correct, Chairperson.

MR ROSSOUW: Do you confirm your application as it appears on page 17 to page 21?

MR GOUWS: That is correct, Chairperson.

MR ROSSOUW: In your previous evidence you have requested that certain extracts and bundles that have been handed up before this Committee, be read along with your application and has to be seen as the background of your application.

MR GOUWS: That is correct, Chairperson.

MR ROSSOUW: Madam Chair, the witness has just confirmed what has been handed in as Exhibit G.

May I take you to page 22 of your application, as to your background, and page 23, your progress in the police service. Do you confirm that?

MR GOUWS: That is correct.

MR ROSSOUW: Page 24 to 25 deals with this incident. Can you please tell the Committee briefly, before this operation, - you heard the evidence of Mr Oosthuizen, that you were part of this investigative unit?

MR GOUWS: That is correct, Chairperson.

MR ROSSOUW: He gave in-depth evidence as to the workings of this unit, where you worked, what co-operation there was between the Security Branch and your unit, do you confirm that?

MR GOUWS: That is correct, Chairperson.

MR ROSSOUW: Can you tell the Committee how you became involved in this incident, or how were you involved in this incident.

MR GOUWS: Oosthuizen and myself were contacted by Captain Hechter. I cannot recall if we met with him at his office or where we met, but the end of the story was that we went to the Bron. It was a holiday resort. There was an AK47 handed to me.

MR ROSSOUW: Did he at that stage already tell you that such an operation was planned?

MR GOUWS: That is correct, Chairperson.

MR ROSSOUW: And did he say - what information did he give to you?

MR GOUWS: He said that these persons wanted to leave the country for training and that they had to be eliminated.

MR ROSSOUW: Did he indicate to you where he received the information?

MR GOUWS: He said he got it from Joe Mamasela.

MR ROSSOUW: Did you know Joe Mamasela?

MR GOUWS: Yes, I did, Chairperson.

MR ROSSOUW: You met at the Bron, what was the plan, what would happen with the operation?

MR GOUWS: We would eliminate these nine persons.

MR ROSSOUW: Was that the instruction from Captain Hechter?

MR GOUWS: That is correct, Madam Chairperson.

MR ROSSOUW: You met at the Bron, you received your weapon, what did you do there?

MR GOUWS: We cleaned the weapons, we cleaned the rounds.

MR ROSSOUW: Very well. From the time when you cleaned the weapons, can you please tell the Committee what period thereafter, was it the same day or a few days later that this operation took place?

MR GOUWS: According to my knowledge it was the same day.

MR ROSSOUW: Is that your recollection?

MR GOUWS: That is my recollection of the story.

MR ROSSOUW: Can you possibly give the Committee an indication as to, at which stage did you receive the instruction before you cleaned the weapon? Can you give us that time period there?

MR GOUWS: It is difficult, it could have been a day or two or three before we went to the Bron. I cannot recall correctly.

MR ROSSOUW: Very well. Can you please tell the Committee, this particular day you went there, or can you first tell the Committee what would be the execution thereof, what would be the logistics thereof, who would drive the vehicle, what was the plan.

MR GOUWS: The plan was, because Joe Mamasela had previously contacted these persons he would go into the residence, Oosthuizen and myself would do the shooting and Captain Hechter would pour the petrol over them afterwards.

MR ROSSOUW: Would Joe Mamasela also do some shooting?

MR GOUWS: Yes, that's correct, he offered some training to these people and he was also given an AK47.

MR ROSSOUW: This particular evening you left for this area, did anything happen on the way?

MR GOUWS: That is correct, there was an army buffalo vehicle in this particular area. We set a tree alight to divert the attention from us and then we went to this particular residence.

MR ROSSOUW: Can you please tell the Committee, from the time you arrived at the residence, what happened up to the time the operation was executed.

MR GOUWS: We stopped at the residence. The residence had a fence around it. Joe Mamasela climbed over the gate. The gate was locked at that stage. After a while he returned and unlocked the gate, Wouter Mentz reversed the vehicle onto the premises. Oosthuizen and myself went into the house. I went into the room, I started shooting. Joe Mamasela was to my left, Oosthuizen was somewhere behind me. I cannot recall exactly how far behind me he was.

MR ROSSOUW: You don't mean that he was right behind you.

MR GOUWS: No, he was to the right somewhere behind me.

MR ROSSOUW: You started shooting, and what happened then?

MR GOUWS: When we stopped our shooting, right opposite this room there was another room, a black woman came out of the room and I heard some children crying and I pushed her back into the room so that she won't be part of the nine that was to be taken out. Jacques Hechter poured petrol over the bodies, I used the match and from there we left.

MR ROSSOUW: Very well, Mr Gouws. On page 28 you give the political objectives of this operation.

MR GOUWS: That is correct, Madam Chairperson.

MR ROSSOUW: You are aware of the evidence of Mr Oosthuizen, that there was reference made to the evidence of Captain Hechter, as to what the objective of this operation was?

MR GOUWS: That's correct, Chairperson.

MR ROSSOUW: Do you confirm it?

MR GOUWS: That's correct, Chairperson.

MR ROSSOUW: And you heard his confirmation that the objective was similar to the Nietverdiendt 10 incident?

MR GOUWS: That's correct, Chairperson.

MR ROSSOUW: And he confirmed that it was similar to the incident to which, the incident of the Nietverdiendt 10 of Captain Hechter, do you confirm that?

MR GOUWS: That's correct, Chairperson.

MR ROSSOUW: Can you please tell the Committee, did you regard it as necessary that activists who wanted to leave the country for terrorist training, that they had to be eliminated? Was there anything else you could do?

MR GOUWS: According to me it was absolutely necessary that it had to be done because if they returned from abroad, the violence that reigned in KwaNdebele would have been much more.

MR ROSSOUW: And this was applicable to any activist, no matter where he operated in the country?

MR GOUWS: That is correct, Chairperson.

MR ROSSOUW: Sir, can you please tell the Committee what your rank was at that stage?

MR GOUWS: I was a Sergeant.

MR ROSSOUW: Therefore, Mr Oosthuizen was your senior at all times, at all relevant times during this operation?

MR GOUWS: That is correct, Chairperson.

MR ROSSOUW: Who did you accept instructions from in this operation?

MR GOUWS: It was Captain Hechter.

MR ROSSOUW: Did you have any reason to question his orders?

MR GOUWS: Not at all, Chairperson.

MR ROSSOUW: Did you have any reason to question the information that he conveyed to you about these activists?

MR GOUWS: Not at all, Chairperson.

MR ROSSOUW: Were you in a position to question an order from a Captain in the police and you were a junior officer, to say no, I will not execute your orders?

MR GOUWS: Not at that stage, Chairperson.

MR ROSSOUW: Mr Gouws, is there anything else that you would like to add to your amnesty application?

MR GOUWS: No, Madam Chairperson.

MR ROSSOUW: Is it correct that you did not benefit from this personally?

MR GOUWS: Not at all, Chairperson.

MR ROSSOUW: And you did not act out of malice towards these persons?

MR GOUWS: Not at all, Chairperson.

MR ROSSOUW: Thank you, Madam Chair, that's the evidence-in-chief.

NO FURTHER QUESTIONS BY MR ROSSOUW CHAIRPERSON: Thank you, Mr Rossouw. Any cross-examination Mr du Plessis?

MR DU PLESSIS: I have no questions, Madam Chair.

CHAIRPERSON: Thank you, Mr du Plessis. Mr Polsen?

MR POLSEN: I have no questions, thank you, Chairperson.

CHAIRPERSON: Mr Meintjies?

MR MEINTJIES: I have no questions, Madam Chair.

CHAIRPERSON: Thank you, Mr Meintjies. Mr van den Berg?

MR VAN DEN BERG: Thank you, Madam Chair ...(intervention)

ADV DE JAGER: Sorry, before you continue, how far is this area, this Tweefontein/Vlakfontein area from Mamelodi in Pretoria?

MR GOUWS: Chairperson, if I have to make an estimation, from Mamelodi it's approximately 60/70 kilometres, more-or-less.

CHAIRPERSON: You may proceed, Mr van den Berg.

CROSS-EXAMINATION BY MR VAN DEN BERG: What was Captain van Jaarsveld's role in this operation?

MR GOUWS: I do not know, Chairperson.

MR VAN DEN BERG: But haven't you stated that he's the one who poured petrol?

MR GOUWS: No, that was Captain Hechter, van Jaarsveld I don't know what his part was.

CHAIRPERSON: Was the question what was Captain van Jaarsveld's role?

MR VAN DEN BERG: It's Captain van Jaarsveld, Madam Chair.

CHAIRPERSON: I have it as Hechter, I'm sorry.

MR VAN DEN BERG: Mr Gouws, I am not sure whether you have the bundle of applications before you, but on page 15 of Captain van Jaarsveld's application, under Incident 3, he says the following:

Do you have knowledge of this?

MR GOUWS: I cannot recall anything of this nature, Chairperson.

MR VAN DEN BERG:

Do you know of this?

MR GOUWS: I do not remember, Chairperson.

MR VAN DEN BERG: Was it your evidence that when you walked into the room, this is now the room where the activists were, that they stood in a row?

MR GOUWS: That is correct, Chairperson.

MR VAN DEN BERG: Can you just elaborate on this, it seems strange.

MR GOUWS: The room had four walls. They stood to the left, in front and on the right side. That is what I mean with a "row", they stood along the walls.

MR VAN DEN BERG: As if they expected something?

MR GOUWS: It's possible.

MR VAN DEN BERG: Mamasela had been into the room before you entered if I remember your evidence.

MR GOUWS: That is correct, Chairperson.

MR VAN DEN BERG: Did he tell you, did Mamasela tell you what he did there?

MR GOUWS: He said that he was busy with training.

MR VAN DEN BERG: According to you Hechter poured the petrol over the bodies.

MR GOUWS: That's correct.

MR VAN DEN BERG: If one has regard to the record in the previous incident, page 771, bundle 2(f), if one has a look there he does not mention the fact that he poured the petrol, he says for example:

He does not mention that he poured the petrol.

MR GOUWS: Chairperson, according to me, Captain Hechter poured the petrol.

MR VAN DEN BERG: We look further in the record, page 796, he is asked by my learned friend Mr Poe, Mr Poe asks him as follows: ...(intervention)

MR LAX: It's page 34 of your extract.

MR VAN DEN BERG: Thank you, we're indebted.

Hechter answers:

Would you comment on this?

MR GOUWS: Chairperson, according to me, Captain Hechter poured the petrol.

MR ROSSOUW: Madam Chair, I'm sorry to interrupt, this might be a little bit misleading. To set something alight and to throw petrol is two separate things. Mr Gouws has testified that he set them alight. So this is a little bit confusing.

CHAIRPERSON: Yes, and his evidence is that Mr Hechter poured the petrol.

MR ROSSOUW: Yes, but there's a difference to confronting him with this evidence, where the question was put to Hechter whether he set them alight.

MR LAX: Mr Rossouw, it goes further and frankly the point that's being made is dealt with again on the next page, page 35. If you look down about 10 lines the same issue is raised, he says:

So it's clear that in Hechter's mind he never ever had anything to do with the pouring of petrol or the setting anyone alight. And he's saying that the present applicant before us did all of that.

ADV DE JAGER: But in fact, Hechter or Mentz testified that Hechter had the petrol with him when you went in and that he approached the room with the petrol and maybe he handed it to you or whatever, but he at least had the petrol in his hands ...

MR GOUWS: Chairperson, I would like to clear this up. I had an AK47. I don't have any place to hold onto a petrol can, that is why I say Hechter poured the petrol

and I lit it thereafter.

MR VAN DEN BERG: You mention in your viva voce evidence and in your application of nine activists, were you informed specifically that there were to be nine activists?

MR GOUWS: That is correct.

CHAIRPERSON: May I interrupt? I've been wondering where I had seen some reference also by Captain Hechter that Mr Gouws is the one who poured petrol and I've just remembered now that I made a note thereof. It appears on bundle 2(f) and that's on page 797, from line 13. This is Captain Hechter giving evidence:

I think there is something missing, the sentence must properly read:

MR VAN DEN BERG: Shall I ask him to comment on that before I move onto ...

CHAIRPERSON: Yes.

MR VAN DEN BERG: Would you like to comment on that point?

MR GOUWS: Captain Hechter poured the petrol and I set the bodies alight.

CHAIRPERSON: You can take the matter no further, Mr van den Berg.

MR VAN DEN BERG: I intend to move onto another point, Madam Chair.

CHAIRPERSON: Yes.

MR VAN DEN BERG: I have asked whether mention was made of nine activists because it seems from your viva voce evidence and your application is that the information that was conveyed to you, the fact that there were nine activists?

MR GOUWS: That is correct, Chairperson.

MR VAN DEN BERG: Do you have knowledge of their names or particulars or any other information regarding them?

MR GOUWS: Not at all, Chairperson.

MR VAN DEN BERG: You don't have knowledge of a Victor Sithole?

MR GOUWS: Not at all, Chairperson.

CHAIRPERSON: Why would he have knowledge of Victor Sithole, of what relevance is he in these proceedings?

MR VAN DEN BERG: Victor Sithole is a person who alleges that he was part of this group and that on that particular evening he was somewhere else except in this specific place. Do you have any knowledge of that?

MR GOUWS: Not at all, Chairperson.

MR VAN DEN BERG: I have no further questions, Madam Chair.

CHAIRPERSON: Thank you, Mr van den Berg. Ms Lockhat, do you have any questions to put to Mr Gouws?

MS LOCKHAT: Just one question, Chairperson.

CHAIRPERSON: I'll hold onto the one question.

CROSS-EXAMINATION BY MS LOCKHAT: Yes, Chairperson.

Mr Gouws, can you just comment on the issue as to whether you were acting beyond the course and scope of your duties as a policeman.

MR GOUWS: This was work that had to be done, Chairperson.

MS LOCKHAT: Can you comment on the fact that you were also friends of Hechter and therefore you entered into this operation?

MR GOUWS: I was friends with Captain Hechter, but the work that we had to do was necessary for me.

MS LOCKHAT: Thank you, Chairperson, no further questions.

CHAIRPERSON: Thank you, Ms Lockhat.

Mr de Jager, do you have any questions to put to Mr Gouws?

ADV DE JAGER: No questions.

CHAIRPERSON: I have no questions to put to you, Mr Gouws. Mr Lax?

MR LAX: No questions.

CHAIRPERSON: You are excused, Sir.

MR GOUWS: Thank you.

MR ROSSOUW: Thank you, Madam Chair, that concludes the evidence for the applicants that I appear on behalf of, Madam Chair.

WITNESS EXCUSED

CHAIRPERSON: The next applicant is Captain van Jaarsveld.

MS LOCKHAT: That is correct, and Mr Meintjies appears on behalf of him.

CHAIRPERSON: And Mr Meintjies is appearing on his behalf. Mr Meintjies, I note that it's five to one, will this not be the appropriate time to take an adjournment instead of starting with Captain van Jaarsveld and breaking up after about five minutes of him giving his evidence-in-chief.

MR MEINTJIES: I agree with you, Madam Chair. The evidence-in-chief will be very short and brief, but we have no control about cross-examination.

CHAIRPERSON: Yes. I'm thinking about cross-examination.

MR MEINTJIES: I agree with you, Madam Chair.

CHAIRPERSON: We'll take a lunch adjournment, we'll reconvene at five to two. Is that convenient for all of those who are concerned here? Maybe some people have made other arrangements for lunch, lunch meetings. Is that appropriate, Mr du Plessis, I know you have to take instructions from Mr Ras. Will it be convenient for us to come back at five to two?

MR DU PLESSIS: Yes, it will be.

CHAIRPERSON: We'll reconvene at five to two.

MS LOCKHAT: Please stand.

CHAIRPERSON: Ms Lockhat, before we proceed with the cross-examination of Mr Gouws, can you just - Mr van Jaarsveld's evidence, can you just make an indication to us with regard the matters which are set down for tomorrow morning, what is the arrangement?

MS LOCKHAT: Chairperson, preferably we want to attempt with the Jerry Thibedi matter tomorrow. Advocate Roelof du Plessis can later today confirm whether his client will be available tomorrow morning. If not, we will commence with the murder of Kruschev, Marx and Moatshe matter.

CHAIRPERSON: Is that in order with you, Mr Visser?

MR VISSER: Chairperson, yes, Ms Lockhat informed us what she's just told you. We have all the hope that we will be able to start tomorrow if required to do so. There are two, possibly three of our witness who might not be able to make it tomorrow, but we're hopeful that we'll get all of them, if not most then all of them here tomorrow. Yes, we could start tomorrow.

CHAIRPERSON: Are they witnesses or applicants?

MR VISSER: Applicants, applicants.

CHAIRPERSON: Would you be in a position to proceed with those who will be here definitely tomorrow morning?

MR VISSER: Oh yes, and I may add that most of the applicants will be here.

CHAIRPERSON: Can we therefore arrange that we start with Mr Visser's matter in the morning at 10 o'clock, just to make sure that everybody is here.

MS LOCKHAT: That's in order, Chairperson. Then just the other matter, the killing of Richard and Irene Motasi, just to inform the Committee that this matter has been removed from the role, due to the operation that Mr Ras is going to undergo.

CHAIRPERSON: Yes. Will you please make sure that, or Mr van den Berg is here, can you please just explain to the people who are appearing, for whom you are appearing, why the matter has been removed from the role?

MR VAN DEN BERG: I hope, Madam Chair, that I'll be able to intercept them before they leave. I know that they have made arrangements to come and stay over in Pretoria and that they would have left today, so I hope that I will be able to speak to them before they leave Soweto. If not, I'll certainly speak to them this evening in Mamelodi.

CHAIRPERSON: Yes.

MR DU PLESSIS: Chairperson, I'm sorry, may I mention the two other matters in which my deceased client was involved in, the Cele and the Sibaya and Mpho matters. I accept that they've been removed from the roll. May I just enquire from you, I presume that the matters will then, these matters will be dealt with in chambers because of the fact that there may still be civil liability against Mr Crafford's estate and obviously I can't present evidence, so I'll have to rely simply on the evidence in the amnesty application.

CHAIRPERSON: That is so, Mr du Plessis.

MR DU PLESSIS: Thank you.

CHAIRPERSON: That will be done in accordance with the provisions of the Act.

MR DU PLESSIS: Yes, thank you, Madam Chair, I just wanted to make sure, thank you.

CHAIRPERSON: We will then proceed with the ...(intervention)

MS LOCKHAT: Mr van Jaarsveld.

CHAIRPERSON: ... with the cross-examination of Mr van Jaarsveld.

MS LOCKHAT: His evidence-in-chief, Chairperson.

CHAIRPERSON: Oh, we stopped Mr Gouws cross-examination, we are now starting with a new application.

MS LOCKHAT: That is correct, Chairperson.

CHAIRPERSON: You are excused again, Mr Visser, until tomorrow morning.

ADV DE JAGER: Mr Visser, I heard something about 10 o'clock, I don't know whether - could it be nine thirty? We really want to try and finish all the applications this week because we're needed it in Cape Town next week, if possible but if not possible, it's not possible.

MR VISSER: Madam Chair, I wasn't aware of that. I was under the impression we've got next week as well and I thought that there wasn't any pressure, but now that you've told me well now certainly it's going to influence the whole situation, the way we lead the evidence etc., etc. I must now certainly prepare documentation to place it before you, to enable me to go quickly over the evidence and all sorts of things, but you say half past nine tomorrow morning? I'm sure we can start at half past nine tomorrow morning, Mr Chairman - Madam Chair.

CHAIRPERSON: Mr Visser, I was accommodating you because I know that you were expecting the Motasi matter as well as the Thibedi matter to be heard first, and that we had earlier on said we'll accommodate counsel so as not to detain them here and obviously prevent them from making big fees which they would be making whilst they are in their chambers. So I was saying 10 o'clock just to accommodate that particular eventuality.

MR VISSER: It certainly didn't ...(intervention)

CHAIRPERSON: ...(indistinct) client's were not expected to be early in the morning.

MR VISSER: It didn't go unnoticed and we do appreciate your gesture, but by the same token, if there's going to be an urgency that's crept into the issue, then we'll be here tomorrow at half past nine.

CHAIRPERSON: No, I think we can start at 10 o'clock. I appreciate my colleague's problem with regard to a thirty minute delay, but I think let's make sure that we do also accommodate your particular problem.

ADV DE JAGER: Or perhaps we could make it up lunch time tomorrow and sit, half only half an hour adjournment then.

CHAIRPERSON: Yes.

MR VISSER: Madam Chair, again, thank you very much for your consideration that you are showing, but we really can start tomorrow morning at half past nine.

CHAIRPERSON: If you are very sure that all your clients or most of them will be here by that time, I'm really in your hands, but I wouldn't like you to think that we are unreasonable and not accommodating the problems that we know you are likely to experience because you were not expected to be in this matter tomorrow morning.

MR VISSER: Thank you yet again, but I believe that we can be ready to go on at half past nine, thank you.

CHAIRPERSON: We'll then proceed at nine thirty. You are excused, Mr Visser.

MR VISSER: Thank you, Madam Chair.

CHAIRPERSON: Mr Meintjies, are you in a position to proceed?

MR MEINTJIES: Yes, Madam Chair.

ADV DE JAGER: Mr van Jaarsveld, your full names?

JAKOB JAN HENDRIK VAN JAARSVELD: (sworn states)

EXAMINATION BY MR MEINTJIES: Mr van Jaarsveld, the general political situation in the country has been set out by you in your application with regard to the death of Mr Ribeiro and Mrs Ribeiro. This is also of application to this application?

MR VAN JAARSVELD: Yes, that's correct.

MR MEINTJIES: You have heard the evidence of the other witnesses in this specific application and it appears that the specific political motivation is situated therein, that Security Forces wanted to oppose the onslaught of liberation movements.

MR VAN JAARSVELD: That's correct.

MR MEINTJIES: And that it was regarded as a pre-emptive strike.

MR VAN JAARSVELD: That's correct.

MR MEINTJIES: Mr van Jaarsveld, I would then like to take you to the day upon which this incident, known as the KwaNdebele 9 incident, took place.

MR VAN JAARSVELD:

ADV DE JAGER: What was your rank relationship at that stage?

MR VAN JAARSVELD: At that stage both of us were captains.

MR MEINTJIES: Did he give you any further information regarding the operation?

MR VAN JAARSVELD: Yes, Chairperson, he also informed me during our discussion that the operation would take place in KwaNdebele, surrounding youths who had already - let me just establish the point here. They were youths who had already undergone a certain measure of training. They had been identified by Joe Mamasela and they were underway to leave the country for further training by the ANC.

MR MEINTJIES: Did you regard it as your duty as a member of the Security Police to go along?

MR VAN JAARSVELD: Yes.

MR MEINTJIES: Why do you say that?

MR VAN JAARSVELD: The duty emanates from a discussion and a general instruction which had been issued earlier, on the 12th of February 1986, at five thirty that morning when Brigadier Viktor, or in Brigadier Viktor's offices.

MR MEINTJIES: What took place during this meeting?

MR VAN JAARSVELD: During this meeting and the discussion with Brigadier Viktor, as stated in the evidence during the Cronje matter before the Committee, Brigadier Viktor told us that Pretoria was burning and that we had to fight fire with fire.

ADV DE JAGER: Could you please give the date of the meeting once again?

MR VAN JAARSVELD: The meeting took place on the 12th of February 1986, at five thirty a.m.

CHAIRPERSON: Was it a.m. or p.m.?

MR VAN JAARSVELD: It was five thirty a.m.

MR MEINTJIES: Chairperson, perhaps I can refer you to an exhibit in the application of the Cronje five. I don't know what the number of the exhibit was, but it was a document prepared by my client in respect of The National Security Management System, where on page 10, about the last quarter he gives full particulars regarding the meeting with Brigadier Viktor, or General Viktor.

Can you then proceed and tell the Committee what happened and what your participation was?

MR VAN JAARSVELD:

MR MEINTJIES: After this specific evening, did you receive any feedback with regard to the incident?

MR VAN JAARSVELD: Yes, the following morning at the office I asked Jacques how the operation had gone, he then told me that they had shot dead nine youths in a house. He also informed me that Deon Gouws, Joe Mamasela and Andre Oosthuizen had fired shots. He himself had not fired any shots. Wouter Mentz drove the vehicle and he also didn't fire any shots. He then told me that he poured the petrol in the room and that Deon Gouws threw the burning match into the room.

MR MEINTJIES: May I ask you whether you would have held back if you had accompanied the group or would you have participated fully in the incident? What was your purpose in your agreement to accompany them?

MR VAN JAARSVELD: I would have participated fully in the incident.

MR MEINTJIES: I have no further questions.

CHAIRPERSON: Thank you, Mr Meintjies. Mr du Plessis, any cross-examination?

MR DU PLESSIS: I have no questions.

CHAIRPERSON: Mr Polsen, do you have any questions to put to Captain van Jaarsveld?

MR POLSEN: I have no questions, Chairperson.

CHAIRPERSON: Mr Rossouw?

CROSS-EXAMINATION BY MR ROSSOUW: Thank you, Madam Chair, just a couple of questions.

Mr van Jaarsveld, in the evidence which you have given with regard to the matter of Mr Nutili, I will ask you to redeliver this by and large for the sake of the new member of the Committee. Might I ask you, you were a member of the Security Branch and we have these persons from another unit, this Special Investigative Unit, did you find it strange that they were involved?

MR VAN JAARSVELD: No, not at all.

MR ROSSOUW: Why not, could you elaborate on that?

MR VAN JAARSVELD: The units, as I have given evidence with regard to the Ntuli incident, co-operated with one another and the special operational group which was active with the Northern Transvaal Security Branch consisted of specialists who would have worked in that area. And the agreement between Brigadier Cronje and Suiker Britz, with regard to the members of Murder and Robbery, or at least Brigadier Cronje and Daantjie van Wyk of the Special Investigative Unit meant that members of those units would be active with the Security Branch and fall under the command of the Security Branch.

MR ROSSOUW: Would you say that subordinate officers such as Mr Gouws and Warrant Officer Oosthuizen at that stage were in any position to question the commands or orders of a higher ranking officer?

MR VAN JAARSVELD: No, not at all.

MR ROSSOUW: Would you say that under their circumstances it was expected of them to report back to senior officers regarding their involvement in operations?

MR VAN JAARSVELD: It is very difficult for me to say whether or not that would be expected because it's difficult to say what the relationship of that senior or subordinate officer was with his commander, but because of the circumstances due to the agreements between Cronje and his colleagues on an equal rank level, I don't think it would have been necessary because it would have been accepted that that which took place would remain there as a result of the secrecy.

MR ROSSOUW: Finally, might I ask you the following. When these persons arrived at your house, Mr Gouws says that he cannot remember it at all, however when they arrived at your house, what was your impression, your previous impression and your knowledge of this operation? Did you know or think that these people were going out on a frolic of their own to shoot a couple of people, or was this in your mind a bona fide operation of the Security Forces, with the support of the police? What was your sentiment regarding that?

MR VAN JAARSVELD: Chairperson, it is very difficult to say that policemen operated on frolics of their own and any assumptions or ideas of that nature are, with regard to the circumstances of that time and the context within which orders were given and operations were undertaken, I will once again refer you to the counter-revolutionary strategy of the government, which was established by the National Security Management System in the local JMCs, as well pertinently in the case of Northern Transvaal, the structures which were established and the strategy with regard to the combating of the UDF, these were operations that were not undertaken as frolics, but these were operations that were undertaken as a result of definite orders that were given.

MR ROSSOUW: Thank you, Madam Chair, I have no further questions.

CHAIRPERSON: Thank you, Mr Rossouw. Mr van den Berg.

CROSS-EXAMINATION BY MR VAN DEN BERG: Just a few questions, Madam Chair.

You did not receive an order from Hechter to participate in this operation, is that correct?

MR VAN JAARSVELD: Let me ask you, how would you quantify or qualify an order?

MR VAN DEN BERG: If we study your evidence you have said:

Do you agree with that or not?

MR VAN JAARSVELD: That's correct.

MR VAN DEN BERG: The information which Hechter gave you was that he was the person who had poured the petrol and that Gouws had set it alight, is that correct?

MR VAN JAARSVELD: That's correct.

MR VAN DEN BERG: No further questions, Madam Chair.

CHAIRPERSON: Thank you. Captain van Jaarsveld, you and Captain Hechter were both Captains in the same unit.

MR VAN JAARSVELD: Yes, that's correct.

CHAIRPERSON: Were you in a position to take instructions from Captain Hechter?

MR VAN JAARSVELD: Chairperson it was a question of me being a unit commander for the Special Investigative Unit and at that stage, Brigadier Cronje brought along the unit of which Hechter was in command, and as a result I would have reported back to him in equal rank and as such I also would have received orders from him.

CHAIRPERSON: So what you are basically saying is that you were in a position to take instructions from Hechter?

MR VAN JAARSVELD: That's correct.

CHAIRPERSON: Notwithstanding the fact that you both were Captains in the same unit?

MR VAN JAARSVELD: We were both Captains. I would like to explain to you again that I was the unit commander of a specific investigative unit, Unit B, and Captain Hechter at that stage was the commander of the operational unit.

CHAIRPERSON: Thank you. Mr de Jager, do you have any questions to put to Captain van Jaarsveld?

ADV DE JAGER: With the facts at your disposal, would you yourself have issued any instructions under those circumstances?

MR VAN JAARSVELD: Chairperson, I would probably have questioned Mamasela's information.

ADV DE JAGER: Why would you have done that?

MR VAN JAARSVELD: I beg your pardon, Chairperson. I have a problem with Joe Mamasela and his approach to these youths and the information which he collected regarding them, this is my personal opinion in this matter, and that is that Joe Mamasela acted as an agent provocateur and that he incited these youths to go for the so-called training.

CHAIRPERSON: Is that the opinion that you held of Mr Mamasela?

MR VAN JAARSVELD: Chairperson, that is the opinion which I currently hold over Mamasela. At that stage that was not my opinion of him.

CHAIRPERSON: Are you responding to my colleague's question, not as a fact which you had or an opinion which you held at that time when you were approached by Captain Hechter?

MR VAN JAARSVELD: It is pure opinion which I'm canvassing at the moment after I've heard all these matters. As a student of international politics and specifically strategy, I cannot say that I'm an expert regarding the ANC counter-revolutionary strategy, I would like to say that that is my current opinion.

CHAIRPERSON: Mr Lax?

MR LAX: Thanks, Chairperson. Was this - do you have any knowledge whether this particular operation was authorised through any JMC structures or not?

MR VAN JAARSVELD: No, the operation would not have been approved by any national security management structure per se, but in terms of the existing strategies which reigned at that time, for example the counter-revolutionary strategy as well as the strategy for the combating of the UDF.

MR LAX: You see your earlier evidence was that operations of this nature would have been sanctioned by the local joint management structures. That was your evidence. So I'm asking, and in the light of that, was this one authorised and now you're saying well matters of this nature wouldn't have been authorised, but were part of a general strategy. So I just want you to reconcile the two bits of your evidence. On the one hand you said operations of this nature would have been authorised by local JMC structures and now you're saying something subtly different, that this was just part of a general strategy.

MR VAN JAARSVELD: Chairperson, perhaps I should give you the situation surrounding the National Security Management System and the JMCs as well as the branches. I have submitted such a document ...(intervention)

MR LAX: Sorry, if I can interrupt you. We are very familiar with the structure, that's why I'm asking you these questions. I heard you evidence very clearly and I made a note of it to ask you this question, that's why I'm asking it, because you spoke about local structures as opposed to national structures. You spoke about operations of this kind would have been authorised at local level, that's how you put it. But that's really why I'm asking such a focused question. I'm fully familiar with the whole JMC structure, from State Security Council downwards. I personally made a study of it many years ago, but anyway ...

MR VAN JAARSVELD: I must reiterate it is not a question of I think, this operation would not have enjoyed approval on JMC level, but in terms of the structures such an operation would have been planned within the Security Police or the army or National Intelligence, whoever resided in that structure and that is where the approval for these operations lay, because a person within that structure would have had to seek out the approval for such an operation on a higher level if the senior commanding officer was not capable of the power to approve such an operation.

MR DU PLESSIS: Chairperson, may I be afforded to ask one or two questions flowing from the questions of the Committee?

CHAIRPERSON: Yes. Mr Lax is still busy putting questions to Captain van Jaarsveld.

MR DU PLESSIS: Oh, I thought he was finished, I'm sorry.

MR LAX: Just one other aspect. You've implied, from answers arising from questions that have been asked of you, that Captain Hechter was in essence, you were subordinate to him even though you held the same rank, have I understood you correctly?

MR VAN JAARSVELD: That's correct.

MR LAX: And that in that sense you took instructions from him and in particular with this operation, have I understood you correctly?

MR VAN JAARSVELD: Yes, that's correct.

MR LAX: Now the difficulty I have with that statement is based on the annexure to your application, and I refer you to page 15, the second last paragraph where we begin to talk about this Incident 3, and I'll read you the paragraph so it is clear, the whole context.

Now it's clear from that that he invited you, he asked you if you wanted to come along, he didn't order you to go along, he didn't say you must come with me, this in an order. You could have chosen not to.

MR VAN JAARSVELD: Chairperson, it was as such that between officers there would be a word such as cordiality and officers of the same rank would ask each other things instead of telling each other things. That has always been the custom in military structures and that is exactly what I meant by this. Whether to ask later whether or not I would have taken orders from him, the answer is yes, I would have, but it was done according to this fashion.

MR LAX: Thank you, Chairperson.

CHAIRPERSON: Thank you, Mr Lax. Mr du Plessis, you will now be afforded an opportunity to put a few questions.

CROSS-EXAMINATION BY MR DU PLESSIS: Thank you, Chairperson.

Mr van Jaarsveld, might I ask you the following. These actions are actions where only a limited number of people were involved or would have been involved, is that correct?

MR VAN JAARSVELD: Yes, that's correct.

MR DU PLESSIS: And that would be the reason why it did not go through the usual JMC structure, because not everyone knew about these operations or had to know about these operations.

MR VAN JAARSVELD: Yes, that's true.

MR DU PLESSIS: And can one actually describe it as almost an alternative chain of command or structure of command which existed beyond the usual structures?

MR VAN JAARSVELD: Yes, certainly.

CHAIRPERSON: Mr du Plessis, may I caution you, you are not the witness, Captain van Jaarsveld is the witness. Put your questions pointedly, in such a way that he's the one who is giving evidence and not you.

MR DU PLESSIS: Well Chairperson, I am cross-examining, but I take note of what you say.

Now Captain, I would just like to put to you what Captain Hechter testified regarding his recollection of the order and the operation and his discussion with Joe Mamasela, but before that, might I just ask you whether or not you were involved in any way in this incident in discussions with Mr Mamasela with reference to youths who were leaving the country and so forth?

MR VAN JAARSVELD: Not with regard to this particular incident.

MR DU PLESSIS: So you don't have any knowledge of discussions between Hechter and Joe Mamasela?

MR VAN JAARSVELD: No.

MR DU PLESSIS: So then you would not be able to dispute Hechter's evidence where he says that he gave specific instructions to Mamasela. In the following sentence he testified:

CHAIRPERSON: What's the reference page, Mr du Plessis?

MR DU PLESSIS: I'm sorry?

CHAIRPERSON: What's the reference page of what you are reading?

MR DU PLESSIS: Page 817, I beg your pardon. Page 817, bundle 2(g).

Then Captain Hechter said:

The question is, you didn't have any factual basis upon which you could dispute this evidence?

MR VAN JAARSVELD: No, not at all.

MR DU PLESSIS: And as I understand you, the evidence regarding Mamasela was a perception, which only after this entire incident took place, if I understand you correctly, this perception has only taken roots in the past year or two?

MR VAN JAARSVELD: Yes, that's true, it's a perception that was formed after 1988.

MR DU PLESSIS: Thank you, Chairperson, I have no further questions.

MS LOCKHAT: Chairperson, I have just one question to ask the witness.

CHAIRPERSON: Before you do that, Ms Lockhat - I want to understand you, Captain van Jaarsveld, I'm getting a little confused from the questions put to you by Mr du Plessis with regard to when you formed an opinion about Mr Mamasela. Did you at the time when you were approached by Captain Hechter, already have this opinion about Mamasela or this is an opinion that was formed two or three years ago?

MR VAN JAARSVELD: It's an opinion which was formed in later years at that stage. As I said earlier it is a post 1988 opinion.

CHAIRPERSON: Yes, because I did not understand your evidence to be to the effect that that was the opinion that was formed only a few years ago, I thought your evidence to a question put by Mr de Jager was that you already had a problem with Mr Mamasela, particularly with the way in which he collected information.

MR VAN JAARSVELD: Chairperson, no, it's possible that there could be a misunderstanding, that is not what I meant. All of us trusted Mamasela at that stage, but during later years it became clear after I had left the force, that one could no longer trust that man, we could not trust him at that stage.

CHAIRPERSON: Thank you, that really clears my confusion. Ms Lockhat?

CROSS-EXAMINATION BY MS LOCKHAT: Mr van Jaarsveld, I've got one question to ask you, what was your role supposed to be in this operation?

MR VAN JAARSVELD: My role would have been purely logistical, I would have either driven the vehicle or provided external defence.

MS LOCKHAT: What do you mean by external defence?

MR VAN JAARSVELD: In any form of an operation there would be various levels. To protect the operatives there would be people on the outside who would provide defence, they would not participate physically in the incident, but should anybody else arrive on the scene they would act to prevent anybody that was involved in the incident from being discovered.

MS LOCKHAT: Thank you, Chairperson.

CHAIRPERSON: In essence, you would have participated in the operation in whatever role would have been assigned to you by Captain Hechter?

MR VAN JAARSVELD: That is correct.

CHAIRPERSON: I think this is the end of Captain van Jaarsveld's evidence. Captain van Jaarsveld, you are excused.

MR VAN JAARSVELD: Thank you, Madam Chairperson.

CHAIRPERSON: Ms Lockhat, we are now in your hands.

MS LOCKHAT: Chairperson, we will commence with argument in this matter.

CHAIRPERSON: We will appreciate it greatly if we can do so. Can we do that immediately?

MS LOCKHAT: Yes, Chairperson.

CHAIRPERSON: Thank you.

MR DU PLESSIS: Chairperson, may I be excused?

CHAIRPERSON: You may be excused, Mr du Plessis.

MR DU PLESSIS: Thank you.

CHAIRPERSON: Who is going to commence, is it Mr Rossouw or Mr Polsen?

MR POLSEN: ...(inaudible)

CHAIRPERSON: Yes.

MR POLSEN IN ARGUMENT: ... and therefore I can perhaps deal with it very quickly. After the remarks and the evidence that was given this morning, I considered carefully what remains of the application for amnesty in my instance and I have only a slight concern which I wish to put to you and I wish to leave in the hands of the Committee, in the sense that the Committee can decide whether to refuse perhaps the application, should they feel that there is no substance in this application.

As far as the murder for the KwaNdebele 9, there is no evidence to show that Colonel Kendall was involved actively in the commission of the murder, or that he aided and abetted the commission of that murder in the sense that he's an accessory before the fact or a socius criminis. But what does concern me is that given the fact he is an employee of the state, he is a policeman with a particular area of jurisdiction and KwaNdebele falls within that jurisdiction, he is supposed to know what is happening in his particular area.

Given that against the background of the evidence set forth by Minister Vlok, General van der Merwe, to a certain extent the Mortimer Report, which we have made part of the application, and the findings of the Amnesty Committee in the matters of Cronje and Hechter, we know now that the functions of the police somewhat changed. He knew about the request received from Brigadier Cronje to introduce Mamasela to Shabangu, with regard to the existence or non-existence of a group of youngsters in that particular area.

He then a few days later finds or is requested by Doctor van Niekerk to inspect the number of burnt bodies in the mortuary. Given - or let's postulate normal times, a policeman with that knowledge would I think have a duty to at least inform the investigation team tasked with the investigation of that particular circumstance, of his knowledge for what it's worth.

In the sense that he did not do so, he must have taken a conscious decision not to reveal this information to the investigation team. Insofar as he did that, he may have developed the intention to conceal this information, thereby defeating the ends of justice. But ...(intervention)

CHAIRPERSON: Before you proceed, he would have consoled information in respect of which act?

MR POLSEN: Well it would have been information which may have led to the detection of the perpetrators of a particular crime. Now whether it is this particular act, the commission of a murder, he wasn't aware of the fact that somebody had committed that murder, but after having viewed the bodies he clearly must have suspected that the bodies, well that a murder must have been committed. Now obviously ...(intervention)

ADV DE JAGER: But why should he suspect that the bodies he's seen and which he might have expected there was a murder, why should he expect that those bodies related to the people that's been seen at the Bundu Inn, it's 30 kilometres from there, so it might have been another group. Why should he relate the murdered people to those youngsters that might have been at the Bundu Inn?

MR LAX: Can I add this to the brew and then you can reply to both in a sense. The other thing was that on his evidence before us, the bodies were severely burnt, and what van Niekerk put to him was; this is the Mbogoto, don't you think your Mbogoto has gone too far, and he didn't think any more of it, that is clear from his evidence, he assumed it was them. So in the light of that, how was he to then create the link between the two?

MR POLSEN: Madam Chair, yes, I understand your difficulty. I also have a difficulty in making that paradigm shift. I don't think I can take this matter any further, but I am reluctant to withdraw the application with regard to that particular residue of the application as it were. And it is a matter of being very cautious, one doesn't want this person to be prosecuted for something at a later stage. I don't think I'll take this matter any further, I cannot. I will leave it there.

CHAIRPERSON: You do appreciate though, Mr Polsen, that on the basis of the entire evidence before this Committee, the persons that are now called KwaNdebele 9 could definitely not be the persons that Mr Kendall was requested by Brigadier Cronje to investigate because the information or the evidence, the clear evidence of Captain Hechter is that Brigadier Cronje knew nothing of this operation, that there was no need to do anything in terms of having to identify the whereabouts of the young activists because Mamasela, when he approached him, already knew where the youngsters were. Not only did he know where there youngsters were, he actually knew the address and the house.

So if we are to go on the basis on which you want to persist with your application, it then would present us with problems because your application is based on the fact that Cronje telephoned Mr Kendall in order to establish the whereabouts of the young activists, whereas the person who was in charge and in control and supervised the operation, Captain Hechter, has evinced that Mamasela already knew that kind of information, so this can't be the same incident. This is the problem that we want to make you aware of, and that will be the difficulty in not being able to entertain this kind of an application.

MR POLSEN: Thank you, Madam Chair, for that. I have noted the difficulty that the Committee will have, and if I may have one minute to take a final instruction?

CHAIRPERSON: Yes, you may do so.

MR POLSEN: Thank you. Madam Chair, in the light of our discussion here and the argument, I withdraw the entire application, thank you.

CHAIRPERSON: Thank you, Mr Polsen. Mr Rossouw?

MR ROSSOUW: Thank you, Madam Chair.

ADV DE JAGER: Not the entire application, in relation to this incident?

MR POLSEN: Yes, of course, only with regard to this particular incident, thank you.

CHAIRPERSON: You may proceed, Mr Rossouw.

MR ROSSOUW IN ARGUMENT: Thank you, Madam Chair. Mr Rossouw on behalf of applicants Gouws and Oosthuizen.

Madam Chair, as far as the requirements of the Act are concerned, very briefly I submit that both applicants have complied with the requirements of Section 20(1)(a). Their applications were lodged before the first cut off date, on the 12th of December 1996 ...(intervention)

CHAIRPERSON: You don't have to address us on that. On the procedural requirements we are happy. You may proceed to address us with regard to the requirements of Section 20(2)(b), whether you meet those or not.

MR ROSSOUW: Thank you. Madam Chair, there can be no question that objectively they were members of the, or the were employees of the state, they were Police Force members.

The question whether they acted in the course and scope of their duties, Madam Chair, you're heard the evidence by senior officers at that time, that they would not be in a position to question orders given by senior police officials. Now Madam Chair, in my mind I've also got some questions about this and maybe it's because I was not in the Police Force at any time, I don't know how the structures worked and therefore I would submit that one cannot view this as an armchair critic, one should place yourself in the situation at that time. And that is the reason why both applicants have referred to the evidence as set out in Exhibit G. I ...(intervention)

ADV DE JAGER: Even if they could question it, but decided not to question it because they thought in their minds it was national interest, what would the difference be?

MR ROSSOUW: Madam Chair, maybe, yes, I apologise for saying question it. I would like to say that the evidence is that they were in no position to refuse to carry out such an order. Taking into account - so the fact is that they regarded this as their duty, I specifically led the evidence that where Mr Mentz said that it was still part of his duties to fight the onslaught, the revolutionary onslaught. And that, Madam Chair, I would submit that that is the evidence by these two applicants, they saw it as their duty. I think for somebody with a rank of a Sergeant being involved in this operation with such senior ranking police officials as a Captain, what applicant Gouws said that he regarded this as work, is the essence of how they saw their duties.

I would therefore submit that there can be no question that in the light of the background at that stage, testified by Minister Vlok, that they were police officials on the ground who bona fide believed that they could conduct, they could partake in this operation even though it was an illegal one.

We've heard the evidence of Mr Oosthuizen, that he'd even discussed this with Captain Hechter prior to the operation and he asked them what will happen if we were for instance found out so to speak, because he knew that the army was also employed in that area, in KwaNdebele and the assurance was given to him that it's taken care or.

Now Madam Chair, with respect, if a Captain in the Security Branch tells that to a Warrant Officer, I would submit that the only reasonable deduction that can be made from that is that illegal operations can be carried out by the police, that you will be taken care of by the system, as he has testified, if in the event the army were to discover you at the scene.

CHAIRPERSON: I think the pointed question to me would not be whether they bona fide believed that they could conduct this operation even if this wasn't a legal one, the question is did they bona fide believe that they could carry out instructions from Captain Hechter.

MR ROSSOUW: Thank you, Madam Chair. We've touched on this aspect in the matter of Piet Ntuli as well.

CHAIRPERSON: I would like you to just limit yourself to that question.

MR ROSSOUW: Thank you, Madam Chair.

CHAIRPERSON: And whether subjectively they thought the action would be directed primarily at a political opponent.

MR ROSSOUW: Madam Chair, as far as the question whether they were in a position to bona fide believe that they can take instructions from Captain Hechter at that stage, I would refer you to the evidence that was led. They were not just part of a criminal investigative unit, Murder and Robbery, they actively worked in close relationship with the Security Branch in unrest related areas and politically related offences. That is the testimony before you, it's uncontested, it stands.

Madam Chair, you further heard the testimony by Mr van Jaarsveld, that there was an arrangement between the head of their unit, reference was made to Brigadier van Wyk, who was their superior at that stage, that their unit, the Special Investigative Unit should pro-actively work in close relationship with the Security Branch. So this, Madam Chair, would mean that it's not something that they've dreamt up here to come and tell you, this is something that was testified to by a senior officer in the Security Branch and there is no evidence to suggest that that was not the case.

But it goes much further than that, Madam Chair, this was the whole point of their operation and this is the point that I would like to stress again. This unit was deployed nationally, it would make no sense to say that they as an Investigative Unit, would go into an unrest politically sensitive area where offences were committed and now conduct an investigation without having the opportunity to make use of the information of the Security Branch, which we know made use of informers on the ground.

This is an investigator coming into an area, would know the area and the only way for them to really do their work properly would be to work in the relationship with the Security Branch, share the information, take instructions from members of the Security Branch.

In that regard I would suggest that they - I would not suggest, I would argue, Madam Chair, that it's not merely a subjective factor of whether they believed that they could take orders, the actual situation was that they did take orders because this would be the function of their unit. How else would they be able to operate in the political unrest areas?

Madam Chair, you've also heard that they reported back to members in the Security Branch. The evidence was that Captain Hechter and Brigadier Cronje were their liaison officers, they reported to them. I would submit to you therefore, that they had reasonable ground, as covered in Section 20(2)(f), to believe that they were acting within the course and scope of their duties and that they were taking instructions from people they were indeed authorised, or they could take instructions from them.

CHAIRPERSON: That's Section 20(2)(b), not (f).

MR ROSSOUW: Madam Chair, Section 20(2)(f) refers to people set out or mentioned in 20(2)(b), but who had reasonable grounds, who believed that they were acting in the course and scope. So I would submit that firstly, the factual position was that this was what was happening on the ground, they did take orders from these people.

Now let's take for instance the question whether they shouldn't have considered, but aren't we, isn't this not part of our duty, to take an order from an officer outside our unit. I can imagine, and this is my submission, that we know that there was an arrangement between the senior officials within these units, that there would a close working relationship.

I would submit that if they were working on the ground in KwaNdebele and they took instructions from the senior personnel in the Security Branch, they reported back to them, that if this was something that the commander of their unit, Brigadier van Wyk did not authorise or impliedly, silently did not authorise, he would have said; you are not working with the Security Branch, you can't take instructions from these people.

CHAIRPERSON: Is there evidence that Brigadier van Wyk was at all material times aware of these operations an of the fact that his members were participating in these operations?

MR ROSSOUW: Madam Chair, apart from the Ntuli matter ...(intervention)

CHAIRPERSON: Yes, with regard to this particular matter, the KwaNdebele matter.

MR ROSSOUW: Yes, with regard to this matter there is no evidence that we could lead on that aspect, but apart from what Captain van Jaarsveld testified, that there was an arrangement between them. Now Madam Chair, maybe ...(intervention)

CHAIRPERSON: Captain van Jaarsveld was also taking instructions from Captain Hechter, he himself was a subordinate.

MR ROSSOUW: Indeed so Madam Chair, but that doesn't affect the fact that he stated that was an arrangement between the senior personnel of these two units. Now there's no evidence that we could have led on this aspect to suggest that Brigadier van Wyk knew about this, but you've heard testimony that the investigators in this matter, Mr Gouws and Mr Oosthuizen, that they shared information with the Security Branch. We know while they were deployed in KwaNdebele, Brigadier van Wyk was also at that camp. This was not in this portion of the evidence, but in the Ntuli matter. He was present there.

In that instance the security personnel were present also when they went to conduct the operation, but Madam Chair, the point is, if you have this agreement that there should be co-operation, that information should be shared, because if there is no sharing of information there can be no effective way for this unit to conduct their specific investigations. So ...(intervention)

CHAIRPERSON: Brigadier Cronje was even present in relation to the Ntuli matter.

MR ROSSOUW: Indeed.

CHAIRPERSON: Who is quite a senior officer.

MR ROSSOUW: Indeed. Madam Chair, therefore my submission is that objectively reasonable ground existed why I can state that Brigadier van Wyk would have been aware of the co-operation between the units. And if he held the opinion that juniors in his unit were not to co-operate or take instructions from members in the Security Branch, he should have told them or he should have said no, you can't take instructions from these people, you're not to liaise with them. And this we know did not happen.

I therefore submit that there can be no question that they held the reasonable belief that they could take instructions from members of the Security Force.

ADV DE JAGER: We've got the dates, we've got dates about the Ntuli one, well if it's correct, the 14th, and it seems as though Mr van Jaarsveld had some system of keeping dates because he could give us exact dates, but we haven't got the exact date of the Ntuli one and in the Ntuli one the date should be easily ascertainable, I mean there should be a, we know there was newspaper reports, a minister has been killed, couldn't somebody assist us in getting the exact date there?

MR POLSEN: Madam Chair, perhaps I can be of assistance. If I remember correctly, Colonel Kendall said that the Ntuli matter took place on the 29th of July of 1986.

ADV DE JAGER: So that would have been after the nine activists.

MR POLSEN: KwaNdebele, as I understand from Captain van Jaarsveld, took place on the 14th of July and the Ntuli matter took place on the 29th of July, if I remember the evidence correctly.

CHAIRPERSON: I think if I recall - this really is a problem and this point has to be established in order to either come to the assistance of Mr Rossouw, will probably be against Mr Rossouw. The Ntuli matter happened later, the KwaNdebele matter happened first. That seems to be the suggestion flowing from the evidence that we have heard in these proceedings and the evidence that we have earlier heard in the proceedings involving Cronje and others.

MR ROSSOUW: Madam Chair, I accept that, we've extensively consulted on this and both the applicants were not sure in their own minds, they couldn't recall this. Now we've told you this. Unfortunately I didn't have time to objectively determine this from outside sources, but I said that.

Madam Chair, what I'm trying to say to you is that I'm not using the argument that because there was a Piet Ntuli first, therefore they accepted that they can now also conduct the KwaNdebele 9, I'm speaking to you, I'm submitting to you with regard to the working relationship that existed between these two units, the fact that there was discussion that there should be co-operation with their senior, as testified by Captain van Jaarsveld.

CHAIRPERSON: But then a pattern then developed as a result of that arrangement, that close co-operation arrangement. Shouldn't that come to your assistance as well?

MR ROSSOUW: In the later incidents I will very, very obviously argue that that also subjectively worked on their minds, but I'm sitting with the first incident.

ADV DE JAGER: I think what's not sort of suggested, but we've got a set of what happened there, a set of things being put together in order to execute this incident on the 14th. Now 14 days later what we sorted suspected here is confirmed by van Wyk seeing his soldiers climbing into the car with Cronje and that's the furthest, I don't think you could take it any further.

MR ROSSOUW: Thank you, Madam Chair, I don't think I can make the point more clear than Commissioner de Jager in that instance. I would therefore submit that they fall within the provisions of the Act, Section 20(2)(f). On the basis - if the Committee were to hold that there was in fact no grounds for them to act in this manner, I submit that they had reasonable grounds to believe that they were acting in the course and scope.

But I think, Madam Chair, maybe on second reflection, that they fall within 20(2)(b) because of this working relationship and which was subsequently confirmed, that Brigadier van Wyk didn't take any steps subsequent, or maybe a fortnight later, when the Piet Ntuli incident occurred.

Madam Chair, I have not, or may I also refer you to the amnesty that was granted to Captain Mentz in this instance. Mentz found himself, I would submit, in the same position as my two applicants and amnesty was granted to him. I ...(intervention)

CHAIRPERSON: If not in a worse position.

MR ROSSOUW: He was in a worse position because he was a Captain if I'm not mistaken. That was his rank.

ADV DE JAGER: I'm aware of the decision of Judge Southwood, that we're not acting according the president system, we're not bound by that.

MR ROSSOUW: I'm not suggesting for one minute that the Committee is bound by anything or its own decisions, Madam Chair, I'm merely pointing to you that this is not something that my client has now come up and dreamt of, this is something that has been dealt with in the past, we've dealt with it as far as my clients had the possible knowledge to place the facts before this Committee, they did this. And I would submit that there is no reason that you cannot be satisfied that Warrant Officer Oosthuizen specifically, was not telling the truth about this incident.

In every material aspect the relationship was confirmed by Captain van Jaarsveld. It's unfortunate that we didn't have the opportunity of having Brigadier Cronje and Captain Mentz and Captain Hechter here in order to canvass it with them. But I submit that there's enough in their evidence to support the submissions that I am making to you, in their evidence, not the finding of the Committee.

We know that this is not an unusual thing for units to co-operate, from the evidence of Captain Mentz, that even Murder and Robbery who was purely concerned with criminal investigations had to co-operate with the Security Branch. And I would submit that in this special unit that the two applicants were in, even more so.

Madam Chair, then may I deal with the question of whether this friendship relationship that they had with Captain Hechter led to a situation where they were on a frolic of their own.

Once again, Madam Chair, I cannot take it I think, more pointedly to state the evidence by Mr Gouws who said that he regarded it as work. They specifically confirmed the evidence given by Minister Vlok in this regard, on how junior policemen saw their role in the total onslaught and how the counter-revolutionary operation was implemented. They've told you that in their minds they had no other means but to eliminate these people, to prevent them from receiving training, coming back and committing acts of terrorism. This Madam Chair, are the factors that will reflect on whether they were just with their buddies out on a killing spree that night. There's no evidence to suggest that and I would submit that you can be satisfied that they were acting under the instructions -I mean, Madam Chair, the evidence of Captain Hechter was:

He said:

So Madam Chair, as far as any suggestion is concerned that they were on a frolic of their own, and the work volunteer in that sense would mean that they were on a killing spree and they were quite happy to go with these people, is unfounded, there's ...(intervention)

CHAIRPERSON: I don't think there was any suggestion that the usage of the word "volunteer" is suggestive of what you are putting to us.

MR ROSSOUW: Madam Chair, I might be over cautious, but I take note of your point in this regard, I will not labour it then further.

Unless there are any further aspects that you wish to hear me on - maybe also on this aspect, they testified that they had no personal gain in this matter, they didn't act in any ill feelings towards the victims and that would also reflect on whether they would have been on a frolic of their own.

CHAIRPERSON: Yes.

MR ROSSOUW: Madam Chair, there is no evidence to suggest otherwise, they've told you in all sincerity.

Lastly, Madam Chair, on the question of whether they made a full disclosure, I would submit that there is nothing to suggest that they did not make a full disclosure, they've testified sincerely, they have not distanced themselves from this incident, they told you what they did, in all material aspects they've placed the facts before you.

The one aspect that was canvassed, who threw the petrol and who set the bodies alight, I think there can be no doubt that the testimony by Mr Gouws is correct, that Captain Hechter threw the petrol over these bodies, that's confirmed by, admittedly that's hearsay evidence, that was confirmed by Mr van Jaarsveld and apart from that aspect I can't remind myself that there was any other aspect that could reflect on whether they are trying to hide anything from you. I submit they made a full disclosure and I would request the Amnesty Committee to consider their amnesty applications favourably.

CHAIRPERSON: Thank you, Mr Rossouw.

MR ROSSOUW: Are there perhaps any further aspects that the Committee wishes me to address you on specifically.

CHAIRPERSON: I think where the Committee had its concerns it has already spoken to you and you've responded to their concerns.

MR ROSSOUW: Thank you, Madam Chair.

MR POLSEN: Madam Chair, before we continue, may I be excused please?

CHAIRPERSON: You may be excused, Mr Polsen. I'm sorry, I should have done that a few minutes ago.

MR POLSEN: Thank you very much.

CHAIRPERSON: Mr van den Berg?

MR MEINTJIES: Chairperson ...

CHAIRPERSON: Oh, Mr Meintjies, I'm sorry, that's because you are sitting on the other side.

MR MEINTJIES: You keep on forgetting about me.

CHAIRPERSON: Yes, I'm sorry.

MR MEINTJIES IN ARGUMENT: On behalf of Mr van Jaarsveld, I very briefly want to submit the following to the Committee. In the first place, I submit that ...(intervention)

CHAIRPERSON: Before you make your submission, can you just give us an indication in respect of which acts Mr van Jaarsveld seeks amnesty?

MR MEINTJIES:

CHAIRPERSON: On what basis would he want amnesty for murder?

MR MEINTJIES: The application as far as murder is concerned, is based on the principle of common purpose. Mr van Jaarsveld did testify expressly that he had a purpose, together with the other applicants, to kill the nine activists ...(intervention)

ADV DE JAGER: Even if he had the purpose and he wilfully, for whatever reason, withdraws, says; I can go, my child is ill, so I'm not continuing, then he's still guilty of the conspiracy, but it's hard to see that he ...(inaudible).

MR MEINTJIES: My submission to the Committee is that even after withdrawing, he aids and abets the actions of the other applicants by allowing them to leave their cars at his house and after the fact, to come and pick it up, the cars up at his house.

ADV DE JAGER: And after it's been reported to him he associated himself with it and didn't report it? So it's an accessory after the fact and because of that guilty of murder. That may be.

CHAIRPERSON: Will that be your argument? Will that be the argument that you will be relying upon?

MR MEINTJIES: That is correct, Chairperson.

CHAIRPERSON: You may proceed with your submission.

MR MEINTJIES: My submission is that the applicant made a full disclosure of all material facts that he knew of. It is quite clear that the incident relates to the conflicts of the past, was associated with a political objective, as testified by the applicant. The applicant acted within the scope of his duties as a member of the Security Branch, Northern Transvaal. He acted upon the instructions of Captain Hechter, which he knew was in line with the blanket instructions given to both himself and Captain Hechter by General Viktor.

CHAIRPERSON: That's where I have a problem, Mr Meintjies. Would you say if instructions, general instructions are given to me by Brigadier Viktor to conduct certain operations, if I don't take an initiative and somebody else does, then I would be acting on somebody else's instruction, when in fact the same instructions were also given to me? From the evidence of Captain van Jaarsveld, both he and Mr Hechter were given these general instructions by Brigadier Viktor, so why should he be acting on the instructions of Captain Hechter when he was in the same situation with regard to the issuing of instructions by Brigadier Viktor as Mr Hechter?

MR MEINTJIES: The evidence of Mr van Jaarsveld was that as far as operational situations were concerned within his branch, he was in fact subject to the orders of Captain Hechter and he did not initiate this specific incident.

CHAIRPERSON: So simply because he didn't initiate, he then considered himself to be acting under instructions from Captain Hechter, even though he was similarly given the same instructions by a superior officer and that's Brigadier Viktor. That's your submission?

MR MEINTJIES: That is correct, Chairperson.

ADV DE JAGER: Hechter gave the instructions without, in this instance, consulting Cronje, his line function superior, but Hechter was involved a month earlier in the Nietverdiendt thing where Cronje was involved in the same kind of operation and Cronje not only, well approved of it, in fact he ordered it. So Hechter one could argue, would have been aware that this kind of operation is approved by his superior and then he took the decision on his own to carry out the same sort of operation.

MR MEINTJIES: I agree with that, Chairperson.

ADV DE JAGER: So whether it was again approval in terms of Viktor's general instruction, we had an instruction by Cronje in the same kind of operation a few weeks before, wouldn't that have influenced Hechter, that this kind of operation is in terms of the policies of the day?

MR MEINTJIES: I am in total agreement with that, Chairperson.

CHAIRPERSON: I think there is no dispute about that, that Hechter acted because of the general instructions from Brigadier Viktor and he believed that he could carry out an operation of this nature consequent to those instructions.

My problem was, the same instructions were equally given to Captain van Jaarsveld, why should he then believe that he can take instructions from Captain Hechter when they were both given the same instruction? But you then responded by saying they belonged to different units and in terms of the line of command in respect of those units, it was required of Captain Hechter in an operation of this nature, to take instructions from Captain Hechter.

MR MEINTJIES: In operational matters, Chairperson.

CHAIRPERSON: Yes.

MR LAX: Could I maybe just put it in a subtly different way? What's puzzling me and maybe what is in the back my head is, we're being faced with a proposition where in order to fall within the parameters of the taking instructions sections we're relying on two lines of command here, mutually, and in a sense what occurs to me is they are in a sense mutually exclusive in a sense, you can't have them both at the same time. Either your client acted on Hechter's instructions, in which case he couldn't have acted on a general instruction, although it may have been in the back of his mind, but he can't rely on it for the purpose of this operation, or he's relying on a general instruction, in which case the evidence has got to back up that he acted on a general instruction and not on a specific order. So that's my difficulty that I have.

MR MEINTJIES: I understand that, Chairperson. My submission to the Committee was that the applicant acted on the instructions of Captain Hechter, which he knew was in line with the general instructions of General Viktor, he did not act upon those general instructions and that was never my submission.

CHAIRPERSON: Because he was, those were operational issues and he was not in command of such operational issues, only Captain Hechter was in command of such operational matters.

MR MEINTJIES: That is correct, Chairperson. That is my argument.

MR ROSSOUW: Madam Chair, sorry to interrupt you, my apologies. I have not told the Committee for which specific acts my clients are applying for amnesty, may I do so? And may I also be allowed to mention one aspect that I've neglected to point out to you? - I'm sorry.

CHAIRPERSON: Can we probably allow Mr van den Berg just to make his submission, then we'll come back to you.

MR ROSSOUW: Madam Chair, can I - just one submission in argument, which he might like to respond to, may I make that?

CHAIRPERSON: Okay.

MR ROSSOUW IN FURTHER ARGUMENT: The point that I wish to point out is that as far as the application of Mr Gouws is concerned, that he was the subordinate of Mr Oosthuizen.

CHAIRPERSON: Yes, I think the evidence has borne that out.

MR ROSSOUW: Yes, I'm just pointing that out to you, thank you, Madam Chair.

CHAIRPERSON: Thank you. Mr van den Berg?

MR VAN DEN BERG IN ARGUMENT: Thank you, Madam Chair.

This is an act in some ways similar to the incident of which we've heard evidence in respect of Nietverdiendt. This is an act later in time to Nietverdiendt, but the modus operandi seems to be fairly similar. We have a group of activists who have been infiltrated by a security policeman, whether he solicited, enticed or recruited them we cannot say. Captain van Jaarsveld's evidence this morning, or sorry, after lunch, I found quite instructive. Whether it's an ex post facto observation or whether that was his observation at the time, I am still confused about. But the fact of the matter is that there was a security policeman involved and directly as a result of his involvement this group of nine people were killed.

Gouws and Oosthuizen say that as far as they were concerned, the considerations of; could we get them to change their minds and so on, it was not something that they considered. At the time that they were approached with the operation, a decision had been made to kill these young people. So insofar as 20(3)(d) is concerned, we're left with the difficult question of what does one make of a situation where there's a possible entrapment concerned?

CHAIRPERSON: Are you submitting that when Oosthuizen and Gouws took instructions they couldn't have thought that the targets that had been identified for elimination by Hechter, were activists in manner described in the evidence?

MR VAN DEN BERG: I didn't understand their evidence to be that that was something that they considered, I understood their evidence along the lines that this particular operation had progressed to a certain point and a decision had been made to eliminate them. So what they had been involved in previously, I don't think that they took that into consideration, I don't think that ...(intervention)

CHAIRPERSON: Is the evidence not that Captain Hechter advised them of what the young activists had been involved in and what they further intended to do in terms of undergoing further military training outside the country?

MR VAN DEN BERG: If I understood correctly, what was conveyed to them was that these youngsters were on the point of leaving the country, that they were going to receive military training and it was before they left that they ought to be killed. Now I'm not so sure that this incident is exactly on par with Nietverdiendt, in terms of the police were then facilitating or shamming that they were, shamming the facilitation of their departure. I haven't seen that evidence anywhere, either in this set of applications or in the Cronje applications. But I'm still left with the question of, is this something that these youngsters would have embarked upon without the intervention of a security policeman.

Insofar as the instructions are concerned, I've heard the evidence that because there were lower ranking officers concerned here and the distinction is made between van Jaarsveld and Hechter in terms of operational and logistical and so on, I still remain unconvinced that, and it's my submission, that there was no specific instruction here, that they were approached by Hechter to say; I'm planning this operation, will you assist me. I don't understand to stand in the ...(intervention)

ADV DE JAGER: Isn't that, if you're approached by a senior officer who says; will you assist me, isn't that sort of giving an order? Suppose a General would approach you as a private in the army and say; would you do this? Isn't that an order?

MR VAN DEN BERG: The difficulty one has, and I know that certainly Gouws and Oosthuizen have gone the route of saying there was all of this evidence by former Minister Vlok, there was all this evidence by General van der Merwe as to the milieu in which we operated, but the fact of the matter is that they were requested to participate in an unlawful act. That is my difficulty. And I think that regardless of what they say, it remains an unlawful act and I still believe that they were entitled to refuse that act. No steps would have been taken ...(intervention)

ADV DE JAGER: I've got no problem with that submission, but if they didn't refuse because they themselves had the political motivation that they thought it should be done, apart from the order, receiving the order, I can refuse, apart from what consequences it may have for them if they would refuse, but they themselves are politically motivated, saying; we agree with this kind of operation. Would that disentitle them to amnesty?

MR VAN DEN BERG: In a sense then we're looking at whether they're not so much in terms of Section 20(2)(b), but rather 20(2)(f) and (d), whether this is something with which they associated themselves. And I have difficulty making submissions in that regard. It seems to me that ...(intervention)

ADV DE JAGER: The trouble is, if you've been on either side you're associating with the objectives of the side, whether it was the liberation side or whether it was the government side, to put it like that, and you're prepared to be on that side and to fight for that side if it comes to it.

MR VAN DEN BERG: The evidence has been that, or certainly the evidence from these applicants has been that there was an instruction ...(intervention)

CHAIRPERSON: I think that's pointedly your problem, that there is reliance greatly on instructions having been given by them and that as junior officers they were in no position to question those instructions.

MR VAN DEN BERG: My difficulty is precisely that and also the fact that whatever the instruction was or the request was, it came down to an illegal or an unlawful act, and I'm not sure that one can then clothe it in a form of an instruction, I would have been more comfortable if they had come here and said; we associated ourselves with this particular thing.

CHAIRPERSON: But haven't they relied on both?

MR VAN DEN BERG: Well they've gone to great lengths to say that they were not on a frolic.

ADV DE JAGER: No, but in their applications that have been confirmed I think both of them said; we were brought up like that, we believed in this, we followed the Nationalist Party's instructions and we believed in their policies, and all that. It wasn't oral evidence here, but it's evidence in the papers.

CHAIRPERSON: More importantly the evidence that really comes closer to their reliance on Section 20(2)(f) is the fact that they knew of this close co-operation that existed between the members of the, the various units within the South African Police.

MR VAN DEN BERG: Madam Chair, I really can't take the argument any further than what I have.

CHAIRPERSON: Yes, I think that being so, I think that you ...(intervention)

MR VAN DEN BERG: If I can then just address you on the question of the proportionality of this thing. They associate themselves without questioning whether it would have been possible to confront these youths, to detain them to deal with them in another fashion. I made this submission in respect of Nietverdiendt, that at that time there was an average of approximately I think - just let me have a look at my note ...(intervention)

CHAIRPERSON: You said 8 000 per day, people were detained.

MR VAN DEN BERG: That is correct, my note says

8 000. That was the average number of people in detention on any particular day. And so that it was possible to have taken those kinds of steps. There were also I suppose further possible illegal steps they could have taken in terms of assaults, coercion which could have been exercised on them. And then we're left with the unpleasant facts of the matter, that they were gunned down and then that their bodies were set alight. Those are my submissions. Insofar as there are discrepancies between ...(intervention)

CHAIRPERSON: Mr van den Berg, you obviously have been part of these proceedings.

MR VAN DEN BERG: Correct.

CHAIRPERSON: And you know what the evidence that we have always been confronted with is that where Mamasela was there was no way they could come up with a prosecution because they were scared that Mamasela would be exposed. That has been the problem that this Committee has been sitting with in relation to taking that route of prosecuting any activist where Mr Mamasela ever had an involvement.

MR VAN DEN BERG: There is of course the incident of Scheepers Morudi who was detained and he was exposed to Mamasela, he was in fact handled by Mamasela. But ja, I really can't take it any further than that. Apart from - there are minor discrepancies, factual discrepancies, but I don't think that they go the same route as my submissions in respect of the Ribeiro's and Nietverdiendt, these are things which can be put down to the passage of time. As to whether it was Hechter or Gouws, I don't think that anything particularly turns on that. As the Committee pleases.

CHAIRPERSON: I think the probability is that Mr Hechter might have made a mistake in his evidence.

MR VAN DEN BERG: Well if we'd been arguing Hechter now I would have said that he'd made steps to distance himself from it, but that's not what we're dealing with now.

CHAIRPERSON: It's neither here nor there.

MR VAN DEN BERG: Correct. As you please, Madam Chair.

CHAIRPERSON: Thank you, Mr van den Berg. Ms Lockhat.

MS LOCKHAT IN ARGUMENT: Chairperson, there's just one issue that does bother me and that's the relationship between their commander, that is Gouws and Oosthuizen's commander Mr van Wyk, in relation to the two of them, whether, as Mr van Jaarsveld had said, there was this close relationship between Cronje and van Wyk. And it seems that van Wyk was left out of the chain here and it seems very unlikely, or why did Oosthuizen and Gouws ask Hechter as to you know, if there are any problems will they be safe in that sense and Hechter said; don't worry everything is taken care of. Were they scared that if they had informed van Wyk about this operation, that he would actually report them, or did they believe they didn't have the necessary authority to actually continue with this operation? That's the only issue that also concerns us.

And then they continue to talk about the code of secrecy and therefore they didn't actually inform van Wyk, but as van Wyk was their commander and was supposedly aware of these operation because of the co-operation between the units, it seems that maybe they were not going to get the authority to actually enter into this illegal action.

CHAIRPERSON: Is it your submission that there hasn't been full disclosure? Your concerns, what are they aimed at, as they aimed at indicating to the Committee that there hasn't been a full disclosure?

MS LOCKHAT: That is correct, Chairperson, and that is my submission.

CHAIRPERSON: Thank you.

MR LAX: Sorry, just to pick up on your point, or maybe you can just check this. Doesn't it go back to the very core of Mr Rossouw's argument, which was that - and this was something I raised in questions and I'm still uncomfortable about it, so I'm going to raise it and maybe Mr Rossouw can just address it one last time at the risk of flogging a dead horse.

What you've just raised, the issue of van Wyk and van Wyk not being told about this thing and in fact not knowing about it at all, you see the issue of co-operation is all very fine, yes, of course an investigative unit must co-operate with the Security Branch, one would expect that, but that's qua investigation, not qua murder, not qua eliminating enemies of the state. And I want to separate out the two levels of co-operation, I want to separate out the two kinds of instruction, because for me they're quite different operations.

One would expect Security Branch people and investigators in unrest matters to work together while they investigate matters of an unrest nature. For that co-operation to then move into another milieu, which is one of elimination and murder and counter-information and so on, that's a different issue and that was my difficulty when I asked why van Wyk hadn't been informed, or whether they had explained it to him.

CHAIRPERSON: Mr Rossouw, I also promised that I will come back to you to enable you to indicate to us in respect of which specific acts your client are seeking amnesty. You may respond in the process of doing that, to Mr Lax's question.

MR ROSSOUW IN FURTHER ARGUMENT: Thank you, Madam Chair. May I then firstly deal with that aspect. Madam Chair, that is the reason why we have throughout referred you to the evidence of Minister Vlok, what is contained in Exhibit G. Whether you can now separate a working relationship with regard to investigations and then committing illegal acts it is pointedly important, Madam Chair, to have a look at what is said in that evidence.

I'm going to refer you now specifically to page 76 in the evidence of Minister Vlok. This is not something that will be agreed ...(intervention)

ADV DE JAGER: Bundle?

MR ROSSOUW: Sorry, Madam Chair, this is in the first day hearing in the Khotso House matter, where Minister Vlok testified.

CHAIRPERSON: That's contained in Exhibit G, isn't it?

MS LOCKHAT: No, Exhibit G just refers to all the documentation which they wish to rely on, Chairperson.

MR ROSSOUW: Madam Chair, I'm sorry, I specifically took this out because I'm arguing it, it's in support of my point. You see, whether you can now say you are an investigative unit, you work with the Security Branch, fine, there is no question that you can co-operate with them to commit illegal acts, Madam Chair it must be seen in the light of what happened in the whole area and the struggle that was going on at that stage. And this is important, that's why I've put to you one should not be an armchair critic ...(intervention)

CHAIRPERSON: No, I note that Exhibit G does make page references, which was what I was trying to establish from you.

MR ROSSOUW: Thank you. But specifically, may I read to the Committee what is said on page 76 of that part of Minister Vlok's testimony? He firstly - and if you read it from the pages that I've put out in Exhibit G, you'll see he deals with the onslaught, the counter-revolutionary strategy, which is something that was known throughout the Police Force. I mean these people knew they were fighting a war, they knew there were acts of terrorism being committed, they knew about MK, they knew this. Madam Chair, now I've asked them to confirm this, that they knew about this and that their applications must be read against the background of this testimony.

Then the conclusion that Minister Vlok comes to is this:

So Madam Chair, this is not a situation where you can simply say two units are co-operating to do an investigation. The Security Branch for instance was never - I mean nobody is going to come and admit that the Security Branch had as part of its duties to commit illegal acts, they were there to gather information on activists and from other sources, but we know that the Security Branch established the thing called Vlakplaas, we know that there were murders committed by the Security Police, why does it follow now that they can make that jump from their investigative function to commit illegal acts? Madam Chair, with respect, one must see it in the light of the war that was being waged.

This Committee has found in the Cronje decision, that there was a bona fide guerrilla warfare continuing in this country. Now how is a patriotic loyal South African policeman going to interpret the statements by a policemen, a senior policeman, by politicians? We know that in the Cronje matter reference was made to Minister, or Prime Minister P W Botha publicly stating that we should fight back against the enemy.

Madam Chair, I would submit therefore that it is what it came down to in Wouter Mentz' testimony. He said yes, - I haven't got the page number with me, I'm sorry, but he said yes, it was my duty at Murder and Robbery to investigate murders and so forth and so forth, but he said, it was also my duty to combat terrorism, ipso facto to the two applicants now. This is what they told. I specifically referred them to that passage and asked them to confirm it.

Madam Chair, Minister Vlok continues:

And then on page 77:

So Madam Chair, with the greatest of respect, one cannot focus squarely on the relationship between these two people, between these two units, sorry, and the functions that they had and whether it also included a function to now go and eliminate people. One must see it in the light of this testimony. I see that it's a problem for the Committee. I deal with this specifically to tell you that these applicants were taken to this testimony, they were referred to it so as to tell you why they could make that jump from saying; this is our function, but we can also commit an illegal act. And Madam Chair, I can't take it any further than what is said in that testimony by Minister Vlok.

CHAIRPERSON: Would the reference that was made to the evidence led in the Armed Forces Hearing be of any assistance to you?

MR ROSSOUW: Madam Chair, I must confess, I didn't read all of that, I was also not part of the Armed Forces Hearing.

CHAIRPERSON: You haven't gone through the evidence?

MR ROSSOUW: No. Madam Chair, the problem is ...(intervention)

CHAIRPERSON: At least you were here and you were here when Mr Grobler took us through the relevant sections or portions of the evidence tendered by General Geldenhuys with regard to for instance, the Joubert Plan.

MR ROSSOUW: Madam Chair, I'm not sure whether - well let me say, what I can submit in that regard to you is that we know that there was a war waging in this country, we know to such an extent that the function of the South African Police was changed to combat an internal war. This was something that you would expect the military to do when there is a war situation going on. It boiled down to a point where there was such close co-operation between Special Forces and the military and the South African Police, which I submit supports my point.

The reason why we can't argue this on a subjective level is because the two applicants were such junior members of the Security Force, of the police, they didn't know about any Joubert Plan. Objectively, I would submit to you yes, we know that there was a Joubert Plan in respect of other operations, similar to the Nietverdiendt 10, but we know further that after it came to - I don't know if it came to the knowledge of General Geldenhuys, I don't want to implicate anybody here, but we know that there was thereafter a procedure prescribed for this.

Now Madam Chair, to say that if you have a procedure to go and kill people, by top people in the military and the police, to say that two policemen on the ground such as a Warrant Officer and a Sergeant should be denied amnesty because they could never in their lives have figured that they can make this jump from investigating to committing an illegal act would ...(intervention)

CHAIRPERSON: We are now happy, Mr Rossouw, I think. We are satisfied with your submission, you don't need to elaborate further. Can you therefore come back to the issue of which acts you seek amnesty for both Mr Gouws and Mr Oosthuizen?

MR ROSSOUW: Thank you, Madam Chair. The specific acts that we are applying for amnesty is:

Madam Chair, I'm not going to ask for conspiracy to commit murder because they received an instruction, they didn't plan this. I am going to ask for conspiracy to commit the other offences, because ...(intervention)

ADV DE JAGER: If there is a conspiracy and once you have committed the offence itself, could there ever be - suppose two people are charged for murder, ordinary criminal things, would you charge them for the conspiracy to murder and also for the murder? Wouldn't that be a splitting of charges?

MR ROSSOUW: Yes, Madam Chair, I would submit that would be the case. You have to ...(intervention)

ADV DE JAGER: Once it's carried out the conspiracy sort of falls away and is included in the act.

MR ROSSOUW: Thank you, Commissioner de Jager, for pointing that out. Those are the acts that we are then applying for.

CHAIRPERSON: Well this brings us to the close of our proceedings in relation to the KwaNdebele matter, does it not, Ms Lockhat?

MS LOCKHAT: That is indeed correct, Chairperson.

CHAIRPERSON: This Committee will adjourn until tomorrow morning at nine thirty.

MR ROSSOUW: Sorry, I'm sorry, may I have the last word?

CHAIRPERSON: The proceedings have closed.

MR ROSSOUW: Thank you, I'm very glad. Madam Chair, I have no further applicants in this matter, may I be excused from tomorrow's proceedings?

CHAIRPERSON: You are excused, Mr Rossouw. We thank you for having assisted us.

MR ROSSOUW: Thank you, Madam Chair.

CHAIRPERSON: May we also express our gratitude to all the legal representatives who were involved in this matter, for the assistance that they've rendered to this Committee. We know lawyers are by virtue of their profession, a pain, but I've always maintained that they are a necessary pain. In this case they really have been a welcomed pain in that they have assisted us and we hope that this will enable us to come to a just and equitable decision when we consider these applications. I thank you all.

May we also express our gratitude through Mr van den Berg to the relatives of the deceased for having attended these hearings. We hope such hearings will go a long way in facilitating the healing that we know they greatly need. Thank you very much.

MS LOCKHAT: Please stand.