CHAIRPERSON: Good morning everybody. My name is Motata, from the TPD and on my left, Mr Malan from Jo'burg, and on my right, Adv Sandi from East London. This week we will hear the following incidents: Masuku, Modimeng, Brown, Ramakope, Maake, Mokape and Sefolo, and lastly, Motasi incidents. We will commence with the incident of Maskuku, and the applicants in that respect would be Messrs Hechter, Viktor and Coetser. Would counsel place their names on record. Should we start on my left.

MR ROUX: As it pleases you, Chairperson. My name is Jaco Roux, from the Pretoria Bar, under instruction from the firm, Strydom Britz. I am appearing in the first application, on behalf of Jacques Hechter, as well as Jack Cronje, who at the time of the pre-trial conference was incorporated as an applicant. As it pleases you.

MR VISSER: May it please you, Chairperson. My name is Louis Visser, I'm instructed by Wagener Muller of Pretoria, and we act for J J Viktor.

MR LAMEY: May it please you, Mr Chairman. My surname is Lamey, I'm from the firm Rooth and Wessels from Pretoria, and I represent the applicant J D L Coetser, also known as Tiny Coetser. Thank you.

CHAIRPERSON: Thank you, Mr Lamey.

MR TOEFY: If it pleases the Chairperson, thank you. My name is Agmat Toefy, I'm from the firm Cheadle Thompson and Haysom in Johannesburg and I represent the victims in this matter, the Masuku family.

ADV STEENKAMP: As it pleases you Honourable Chairperson, I'm Andre Steenkamp, I will be the Evidence Leader. Thank you.

CHAIRPERSON: By waving your hand you say you are a spectator and observe, I suppose.

MR RICHARD: In this matter I'm not involved yet.

CHAIRPERSON: Thank you. Which applicant are we hearing first?

MR ROUX: Hechter. As it pleases you. Before I commence with Hechter's application, during the pre-trial conference a decision was taken that an affidavit by Jack Cronje would be submitted during these proceedings. The position is unfortunate that the original thereof is still under way here via the post. I am in possession of a copy of the original, as well as an original of which the second page has been waylaid. I request to submit conditionally the submission of Jan Hattingh Cronje, and to have it read in with the record.

CHAIRPERSON: Do I understand you to say that the copy you have is not complete?

MR ROUX: The copy in my possession is complete, however I also have an original in my possession, of which page 2 was waylaid in the post. The only complete set that I have is unfortunately a copy.

CHAIRPERSON: We shall accept the copy.

MR ROUX: It has been attested to. Will it be necessary for me to read it into the record, Chairperson?

CHAIRPERSON: Let's see first.

MR ROUX: As it pleases you.

MR HECHTER: Do other interested parties in this matter have the Cronje affidavit?

MR TOEFY: Yes, we do, Mr Chairperson.

CHAIRPERSON: Just at the mere sight of this affidavit, it would appear the copy is a bad one. I suppose you will agree with me. For those reasons that we don't logistical problems, I would suggest that this affidavit be read into the record.

MR ROUX: As it pleases you.

CHAIRPERSON: You may proceed.

MR ROUX READS AFFIDAVIT OF J H CRONJE INTO RECORD: I'm indebted to you. This document is entitled "Truth and Reconciliation Commission in connection with Oupa Masuku, in connection with Brown."

This affidavit was signed at Swellendam on the 18th of March 2000 and was attested to by Jan Hattingh Cronje on the 18th of March 2000. As it pleases you.

CHAIRPERSON: Thank you, Mr Roux.

MR ROUX: Chairperson, I must just add that everyone is well familiar with Jack Cronje's situation, he is a condition of illness and underwent a quadruple bypass operation last year and that is why he is unable to attend these proceedings.

CHAIRPERSON: I am personally aware thereof, I do not know of the other Members of the Committee. Are you aware?

MR MALAN: Yes.

CHAIRPERSON: Adv Sandi, are you aware of the condition of Mr Cronje?

ADV SANDI: No Chair, I was not aware thereof.

CHAIRPERSON: Mr Visser, is there anything that you wish to add?

If we could begin by saying that we note that this document will be marked as A.

MR ROUX: Chairperson, I request for it to be marked as B. My learned friend Mr Visser SC, has informed me that he will be handing up a bundle that we have already agreed to be marked as A, therefore I request that this document be marked Exhibit B. As it pleases you.

CHAIRPERSON: Mr Visser, you wanted to add something.

MR VISSER: Chairperson, after what my learned friend has just told you, I have nothing to ask or to say. I have no objection to this affidavit at all. I've noticed though that in the affidavit, in paragraph 4, certain names are mentioned which names do not include J J Viktor. You will hear evidence from him that he also acted under the command of Brig Jack Cronje, but I don't have to take up your time with that now.

CHAIRPERSON: Thank you, Mr Visser. Mr Lamey.

MR LAMEY: Chairperson, what my learned friend, Mr Visser said, also applies to the applicant Coetser, who also served under the command of Brig Cronje, who was the Commanding Officer of the Security Branch at that stage. I have also got no problem with this affidavit being handed in.

CHAIRPERSON: Mr Toefy.

MR TOEFY: Mr Chairperson, there's just two issues I'd like to raise. Number one, in principle we have no objection to the affidavit being handed in as part of an application by Mr Cronje, however as far as opposition to the application is concerned, seeing that Mr Cronje is not here, to what extent should I at this stage reveal to the Committee on what basis we are opposing such application? I seek the guidance by the Chairperson, please.

CHAIRPERSON: The tenor of the affidavit is that he is aware of those incidents and that they got his blessing. I don't know from that point of view whether you would say or ask the applicants how they obtained those instructions or whatever, but it would appear he was not present there, but he gave his blessings.

MR TOEFY: Mr Chairperson, then to the extent that this affidavit by Mr Cronje alleges that he has absolutely no knowledge of these acts which were committed by for instance, Mr Hechter etcetera, we would have liked to have been in the position to challenge that contention and in that from the bundle that we have in our possession, there's at least some indication that he would have had knowledge of this particular incident. We're talking about this particular incident of the Masuku incident, and we really would have liked to have challenged his contention that he has absolutely no knowledge thereof.

CHAIRPERSON: Now could I understand you clearly. Firstly I somewhat heard you that you had no objection to this affidavit being admitted and unfortunately I am personally aware of his health condition, that he would not be present here. Are you saying under those circumstances these hearings would not proceed normally until we hear Mr Cronje, or what is your attitude thereto?

MR TOEFY: Mr Chairperson, our attitude is that we will accept the document that has been handed up as his application, but we will oppose his ...(indistinct)

INTERPRETER: The speaker's microphone is not on.

MR TOEFY: ... on the basis that he's not making sufficient disclosure.

CHAIRPERSON: Let me just finish with Mr Steenkamp.

ADV STEENKAMP: Honourable Chairman, if I'm not mistaken I think previously there was by Adv du Plessis, actually testimony led about the medical condition of Mr Cronje. That's all I can add. I remember clearly there was definitely evidence led at one stage about his condition. I don't know if my learned colleague is aware of that, but that is how I remember it. That's all I can add. Thank you, Honourable Chair.

CHAIRPERSON: In this instance I had had personal knowledge when previously Mr Cronje appeared before a Panel where I was a Member, and we heard medical evidence as well of his health condition, and on those basis we accepted that he is not a man who could appear before us and be heard because he wouldn't even sit for 10 minutes in this place. So along those lines we said it would not be prudent for the Committee to subject a man of such ill health to these proceedings. And over and above that, his evidence would have centred around that some incidents he knew beforehand and some he was told thereafter and he gave his blessings because he was the Head of the Security Branch.

I don't know if that takes you any further before I hear his counsel, what he's got to say in that respect, but speaking for myself and looking at the process we are dealing with, is that we are not here to persecute but to listen to people who come and apply, but if your condition is of a nature that you cannot be present and be subjected to examination and cross-examination, we would not be encompassing the spirit of the Act which brought us here. And that in the true sense or the stricter sense thereof, that he was not a perpetrator per se but a head, wouldn't the evidence of the other applicants probably throw light and let's come back to Mr Cronje after we have heard the applicants, if we may so wish or so rule. And on those basis you can reposition yourself, what your attitude is towards Mr Cronje, and that we provisionally at this juncture accept this affidavit.

MR TOEFY: Mr Chairperson, we do accept the affidavit as being his application and thank you for the suggestion, we will take it - we will heed to it.

MR VISSER: Mr Chairperson, I don't act for Brig Cronje, but just in an attempt to be of some assistance to you, if you look at the Modimeng bundle, I don't know whether you have it before you ...(intervention)

CHAIRPERSON: I left it in chambers, Mr Visser, but you may proceed, I have an idea about that application.

MR VISSER: At page 140 of that bundle, 140, the judgment of the original Amnesty Committee, in the case of Brig Cronje, was delivered and they deal there at the foot of that page, with a schedule 11. And I will read it, it's very brief, because it seems to me Chairperson that this might solve the impasse that we have with Brig Cronje not being here. It says -

... as the heading. And then it goes on to say -

And over the page, the Committee finds -

So it would seem an open-ended type of decision, depending on the evidence which the underlings gave at that stage and presumably will still give in future, upon which his amnesty is dependant. I just thought I'd draw your attention to that fact.

CHAIRPERSON: Mr Visser, I'm indebted to you and the adage is somewhat true, that you'll find ...(indistinct) grey hair. Thank you very much.

MR MALAN: Sorry Chair, if I understood the representative for the victim for Masuku correctly, the argument is that on the basis of some of the information contained in the documents before us, there is an indication that Cronje indeed had more knowledge than he discloses. I didn't pick that up but I think that was the basis of the opposition. But that would then remain for argument, Mr Chairman, if I understand it correctly. May we just heard from ...

MR TOEFY: Yes it would, and that is why I initially asked the Chair for some direction as to whether I should address those problems right now, because in principle we don't have a problem with the affidavit being handed up as his application, but it's simply as to the merits of our opposition that I was wondering if we should deal with it now seeing that - well I'm not sure how the matter will be taken further now, whether this will be considered closed and only afterwards we deal with the closing arguments.

CHAIRPERSON: No hence I said we will accept this affidavit provisionally and we hear the evidence of the three applicants and your cross-examination and what you get out of it, and in argument that can be addressed, whether under these circumstances where Cronje is involved, would he also get amnesty. Does that satisfy your ...

MR TOEFY: Yes, it does, thank you very much.

CHAIRPERSON: Thank you. Who is due to begin, Hechter I believe.

MR ROUX: That is correct, Chairperson. Just one aspect. I have listened to my learned friend and it is indeed possible to clarify the problem of my learned friend via this evidence, especially when it comes to instructions and orders. And furthermore, I understand that this is a question for argument because it is the only evidence that will be presented on behalf of Jack Cronje.

CHAIRPERSON: Thank you, I think that's how I ruled that we should be proceed. Would we proceed with Hechter now?

MR ROUX: As you it pleases you.

JACQUES HECHTER: (sworn states)

CHAIRPERSON: Thank you, Mr Malan. You may proceed.

EXAMINATION BY MR ROUX: As it pleases you, Chairperson.

Mr Hechter, if you will look at the bundle in which your application is contained, in order to save time and not reiterate evidence which has been given by you on previous occasions during previous applications and also by other previous colleagues, will you please look at the content of page 1 to 4. With regard to your personal particulars, your work record and the capacities in which you served, as well as the historical political objectives, would you confirm the content of pages 1 to 4.

MR HECHTER: I agree with you, Chairperson.

MR ROUX: Will you then look at pages 5 to 19 and the information embodied therein. Without elaborating on it, does it include among others, the structures of command, the actions and handling thereof, the use of violence, informers, identifications and weapons, the content and context of these events as well as the files and destruction of such files?

Mr Chairperson, I have just been told that page 4, which is also the paginated page 4 in the bundle, there is the number 2 and the letter C18, it would appear that a page is missing because apparently the page is back to front. The marked page 2 has the heading "page 3", which begins with "quartermaster". It would appear that this page has been switched and it will make better sense if the paginated page 3 is read first, followed by 2, and then 4. I offer my apologies for that.

CHAIRPERSON: Yes, I wanted to bring your attention to that because it you look at the paginated 3, it's supposed to be 2 and the paginated 2 is supposed to be 3.

MR ROUX: That is indeed correct, Chairperson, and I apologise for that.

CHAIRPERSON: Your apology is accepted, you may proceed on the basis that the same has been superimposed.

MR ROUX: As it pleases you.

Mr Hechter, would you then study the information embodied from page 5, under the various sub-headings, up to and including page 19 and confirm this information.

MR HECHTER: I concur with it, Chairperson.

MR ROUX: Would you then page to pages 23 and 24, which once again contain personal particulars and so forth, and then also confirm this information, as well as page 25.

MR HECHTER: I concur with that, Chairperson.

MR ROUX: The information embodied on page 25, could you give the Chairperson an indication whether the facts that you recall as contained from page 26 and onwards, with regard to the Masuku incident, indicates personal knowledge that you possess or not.

MR HECHTER: Chairperson, no, after I heard the - or saw the application of Mr Coetser, I associated myself with it. I know that I was involved in various incidents in Atteridgeville, the name Masuku is also familiar to me, but the specific particulars pertaining to this incident I can unfortunately not recall. I will however abide by what Mr Coetser states regarding the incident and I know that I was involved with these incidents and that I was in command of these incidents. Therefore, I abide by what he knows and states about it insofar as it affects this application.

CHAIRPERSON: Just to interpose here, is that the family would want to know your involvement and if you say you will abide by another applicant, what weight should be attach to that because you appear as an applicant and you apply specifically for this incident and for you to be granted amnesty you must make a full disclosure. Let's just look at one leg about this incident, and if I understand you correctly, sitting there you remember nothing but other co-applicants remember about this incident. Would you be able to furnish in that respect, full disclosure of what occurred at the Masuku house?

MR HECHTER: Chairperson, unfortunately I cannot recall this incident at all, I was involved with various bomb explosions. I cannot recall the particulars thereof or the specific persons. After I read Mr Coetser's statement I knew that this was the normal modus operandi of my actions at that time, at that time I followed a specific modus operandi.

I associate myself with the modus operandi and I also associate myself with what Mr Coetser has stated in his affidavit, that I was indeed there, that I was in command or in control of this action. I cannot even recall who the other persons were that were there with us. Unfortunately I cannot recall this at all. I am not trying to hide anything from the Committee, I am prepared to accept the responsibility and anything that accompanies that responsibility, but unfortunately I cannot do anything more than that.

CHAIRPERSON: I do follow that. Previously I've been involved in hearings where the Security Forces were involved and a particular modus operandi was the order of the day, but the question revolves here, even though there is that thread that runs through, the question is that the family must be satisfied that you know about this incident, not that your other co-applicants know about this incident and that you were present, but what your participation was, you personally, not other people. Because you must bear in mind that it is not the other applicants who are applying on your behalf, as it stands you are an applicant by yourself.

MR HECHTER: I understand, Chairperson. Unfortunately I cannot add to that. I would have been physically in control, I would have been physically on the scene. The modus operandi was that I personally would have had that bomb in my hands physically and a person with me would have accompanied me, we would have placed the bomb, I would have placed it myself, and then I would have run away after I had set the bomb. That was the modus operandi.

If it was different in this regard, I am not able to tell you, but I do believe that it would have been. I myself would have gone, I would have been there myself, I would not have sent any other persons. I was there physically myself, and I do accept the responsibility thereof, that I was there and I placed the bomb there.

I am not saying other people did it, but I physically myself did it. Someone was with me, but I cannot recall who it was. I cannot even recall that we were at a specific house. For example, I would never be able to find that same house again if I had to go there, I do not know where it is at all.

At that stage I was familiar, all the source reports came through me, it came to my desk, I saw who the activists were, I saw where they lived and as the reports came through I formed an image of who these persons were and then I went out and during the day I went and had a look where this particular residence was. Two days or the evening or whatever the case may be, later, I would go to this residence during the night, usually after twelve I would go to this residence, and whatever the case may be, I set it alight or placed the bomb, depending on how active the member was or the person was, or the person who was tasked. If it was a smaller activist and if it was a greater activist like Masuku - I have to refer to the normal operation, I cannot recall the detail there of it. I can see in Oupa's statement itself, where he says how great an activist he was. I cannot recall him at all. I might bump into him and I do not know who he is, although I knew what he looked like back then. That is my problem now. But as I have said, I myself would have been there, if the other applicants place me there, then I accept it because that type of conduct was done by myself. I was in command of the branch, that was my conduct and I did it myself then.

CHAIRPERSON: Let me not suffocate this hearing by what I put before you, rather let me let your counsel - but he knows the difficulty I'm encountering, that your counsel would lead you to the satisfaction of this Committee.

MR ROUX: Chairperson, at this stage, in the bundle of Modimeng - I know you do not have it before you, but may I just refer to it. On page 178 thereof, in the judgment reference is made to the application of Jacques Hechter, that is attached to this bundle -

And previous schedules on page 167, schedule 8, 17, 19 and 23, I wish to read this extract to you. My thanks to my learned friend.

CHAIRPERSON: Page?

MR ROUX: 167. At the bottom of that page the Committee did refer to the applicant's physical and mental condition at the beginning of this decision.

...(intervention)

CHAIRPERSON: Could I stop you there. It is quite clear from what you have just read to me, and with the assistance of Adv Steenkamp, I've got it in my possession, that his mental condition was led and before us there is nothing of that nature. And if we read the decision, I don't know what it contains, I'm seeing it for the first time, is the decision not based on what you heard, not necessarily what other people decided? Wouldn't it be decided by the evidence before us?

MR ROUX: It may be so, Chairperson, but where with regard to the opposition in this case particularly, I deduce from my learned friend, where it is about full disclosure in this judgment it says on page 168, the Committee says the following -

Therefore, what I wish to propose to you is that yes, the specific evidence will be offered insofar as it is possible and insofar as Mr Hechter's recollection enables him to do so. Therefore I support this part of the judgment with regard to the full disclosure insofar as it is possible bona fide.

And then with regard to the rest of the evidence with regard to the incident.

CHAIRPERSON: I think when Mr Hechter was talking, I stopped him and said I'll leave it your hands rather than suffocate this, that you lead the evidence that would be sufficient for this Committee to probably grant amnesty, or to decide on the evidence you have led thusfar and cross-examination thereupon, I think I had a good start to it.

MR ROUX: As it pleases you, Chairperson. I will then proceed to lead the evidence of Mr Hechter.

With regard to this specific incident, Mr Hechter, are you in a position to recall with what Oupa Masuku and the person who was killed during this incident, Joyce Masuku, had involved themselves with, with regards to activist conduct?

MR HECHTER: Chairperson yes, I have gone through the documents and relying on my own memory, I cannot recall, I cannot place Oupa Masuku at all, but I have looked at his statements and that is in line with the action against him. The fact that he was a prominent activist in the so-called freedom struggle of the past and the action that would followed would have led to the fact that he was arrested for terrorism. And he was involved in violence, public violence, he belonged to SAYO(?), he belonged to several of these banned organisations, the ANC and so forth, so he was a tremendously active person according to these documents and because of that action my action followed.

MR ROUX: Can you have a look to page 98, it is an extract from the Sowetan, can you make any further inferences from this, what the involvement of Oupa Masuku was?

MR HECHTER: It was clear from that that the whole family was involved in mass action that was propagated then in Atteridgeville and Saulsville. Not a day went past where houses were not set alight, where the police were not stoned, where the other civilians were killed in these areas. By whom we do not know. At this stage I am not able to say, but at that stage that was normal practice in the townships and the Masuku family were involved in this. There would have been files at the Security Branch.

MR ROUX: And what type of information would these documents have held?

MR HECHTER: This information would have been received from source reports, complete source reports, the sources or informers would have been members of these movements, who would have worked for the Security Police. Certain prominent persons within the struggle would have been tasked and one would have tried to have as many, or recruit as many informers as possible around this person to monitor his movements and to report.

MR ROUX: The organisation SAWU, Saulsville/Atteridgeville Women Organisation and amongst others, does this ring a bell with you when you read this newspaper extract?

MR HECHTER: I believe that they do ring a bell. I have read the article. Whether it came about then or not, they were well-know organisations with the township at that stage, where the people were involved against the government. These organisations, specifically at that stage, tried to oppose everything that the government had tried to do.

MR ROUX: Very well. This information that you had gained with regard to the activists, amongst others Oupa Masuku and Esther Masuku, how is this information collected physically?

MR HECHTER: Chairperson, the who informants were tasked around them would submit a written report weekly that would have been processed by the subordinates and those processed documents would come to my desk. I could read exactly what the Masukus and other persons were busying themselves with in the townships, and those reports would be promoted to head office, with copies which would be kept at the branch. So the information came from several sources, not only from one or two informants. It came from several sources. I am unfortunately not able to tell you how many sources, but it would have been various sources.

MR ROUX: I do not want to go through aspects which you have already confirmed, but if you study page 17 of your application, in order to give an idea to all those present, what would have happened with that information that was embodied in these statements and documents?

MR HECHTER: At a later stage - I only found this out during our discussions with the Commission, because in 1988 after a motor vehicle accident, I unofficially left the force and in 1991 I officially left the force, but from 1988 I worked on an informal basis. I was on sick leave and then I worked and then I was on sick leave and then I worked and then I found out that all documents at a later stage on instruction of unknown persons in head office, all documents with regard to the black force activities and ANC and source reports and so forth, everything was destroyed.

MR ROUX: And none of this information exists today that you would studied back then when information was collected and when actions were planned?

MR HECHTER: According to the information that I have, that is correct Chairperson.

MR ROUX: Very well. Which types of actions would be necessary against the Masuku family? Seen in general.

MR HECHTER: Because they were so active and Oupa had on various occasions been detained and this not curtail his activism, according to the information here what I can see here it did not help to curtail him and I would have then decided that this was a tremendously active young man, he had to be taught a lesson, he had to be intimidated in such a fashion that he would cease his activities and then I would have decided whether it would be a bomb in order to frighten him ...(end of side A of tape) ... be afraid to continue with his activism.

MR ROUX: Can you possibly tell the persons present here, can you indicate what types of bombs were used?

MR HECHTER: The one was a petrol bomb and this was set alight and thrown a window of a residence, the damage was limited because only one room would be burnt. The activists knew - or may I just finish, and then in more serious cases I used a bomb because of the effect of such a bomb explosion would have on you and your family, we used a bomb. The petrol bomb would burn the house and people would be able to extinguish the fire early to prevent any serious injuries. When I decided to build such a bomb which was built with pentolite in a can, the flash and the accompanied shrapnel had a more and serious type of intimidation effect and it could have led to a death, but at that stage I felt that this was the way in order to intimidate these people so that they would cease their activism.

MR ROUX: What actions took place against Masuku? Inasfar as you have knowledge of what factually had taken place, are you able to tell us?

MR HECHTER: Not at all, I can imagine how it would have happened. My colleagues and I who would have participated in the operation would have met that evening at the office of the Security Branch, I would have already built the explosive device and then we would have gone to the address which had been previously confirmed, we would have placed the bomb and then we would have run away. I never returned to any of these scenes again, I placed the bomb and then I stayed away.

MR ROUX: Who were the members who in all probability would have accompanied you, were there specific persons?

MR HECHTER: I saw in Mr Coetser's statement, I think he said it was he and I. At this moment I am not certain, I did not read his application in detail. I know that it was he and I. If I recall correctly at that stage Joe Mamasela had already been working with me.

I have also heard of Mr Viktor, Brig Viktor, that he had been with me that evening, therefore I shall accept that these were the persons who were with me. I cannot recall myself at all who were with me. I know that Mr Viktor and I worked together and I know that Tiny and I worked together initially, I don't know how many times, maybe once or twice. And then, Joe Mamasela had been working with me for quite some time, I don't recall how long and I do not know whether he was always with me during all these incidents.

MR ROUX: Very well. When you decided to place a bomb as you put it, what information did you have with regard to the residence of such an activist?

MR HECHTER: We more-or-less had an idea of where the activist spent the evening, more-or-less, and we usually would place the bomb as close to his room as possible or in front on the lounge.

MR ROUX: This information you also obtained from informants and sources?

MR HECHTER: That's correct, or from my members. If it was practically possible some of my members would visit the residence a week before and try to surmise where the activist spent the night.

MR ROUX: You as you have testified now, cannot recall anything further of this specific incident. Chairperson, we then apply on behalf of Mr Hechter for the acts as set out on page 26, under the heading 9(a)(i), bomb explosion, possession of explosives, Act 26/56, murder or attempted murder and any other delictual accountability.

To conclude, Chairperson - Mr Hechter, the date under (ii), 5th of March 1986 and the place under (iii), 44 Mashifane Street, Atteridgeville, can you recall that?

MR HECHTER: Not at all, Chairperson.

MR ROUX: That is the evidence, Mr Chairperson, on behalf of Mr Jacques Hechter.

CHAIRPERSON: Thank you. Gentlemen, I see we started late and we are past teatime, would you want to wet your throats or should be proceed to lunchtime? Mr Visser?

MR VISSER: Chairperson, thank you for asking but I'm fine to go on, if it's okay with the others. And of course, if it's okay with the Panel.

CHAIRPERSON: It is okay with the Panel, I just want to find out from you gentlemen. Mr Lamey?

MR LAMEY: I'm also okay, Chairperson.

CHAIRPERSON: ...(indistinct - no microphone) are you okay.

ADV STEENKAMP: We can proceed, Mr Chairman. Thank you.

CHAIRPERSON: But in all honestness, we have people who are working very hard, let me find out from the interpreters whether they can just bear with us and continue. What is your feeling, are you able to continue? Shaking of heads does not record, I want to hear you speak.

INTERPRETER: We would appreciate a break, Chairperson.

CHAIRPERSON: Gentlemen, let's accommodate them and have a 10 minutes break. We shall adjourn for 10 minutes.

JACQUES HECHTER: (s.u.o.)

CHAIRPERSON: Thank you, I hope the interpreters are fresh now. And Mr Roux, I believe you are finished with your evidence-in-chief.

MR ROUX: Yes, Chairperson, there is just something that I wish to add at this stage, and it is that the psychological and physical report with regard to the memory and condition of Jacques Hechter, I am attempting to obtain this for submission, possibly not today because it is somewhat problematic to obtain it, but with your leave I will attempt to once again submit the report regarding which evidence has been given previously.

CHAIRPERSON: Let me find out from Mr Toefy. Have you heard Mr Roux? Have you heard what Mr Roux said?

MR TOEFY: Unfortunately not, I do apologise.

CHAIRPERSON: He wants to present evidence of Mr Hechter's psychological condition, but is not able to do so today, so he says he will give us a report on that regard. Not necessarily to lead evidence, it was given in previous hearings but he wants for the purposes of probably arriving at the decision by this Panel, to give us those reports, that we should take then into consideration when we deliberate.

MR TOEFY: We have no objection thereto.

CHAIRPERSON: Thank you, Mr Toefy. We are satisfied, Mr Toefy is satisfied.

MR ROUX: I'm indebted to you, Chairperson, that then concludes the evidence of Jacques Hechter.

CHAIRPERSON: Mr Visser, you surely don't have questions, do you?

CROSS-EXAMINATION BY MR VISSER: Chairperson, unfortunately I do have a few, with your permission.

Mr Hechter, there are just a number of aspects that I want to put to you for your comment. Mr Viktor tells me that during the period of February to May 1986 he was the Commander of the Mamelodi Unrest Investigation Unit, can you recall this or can you comment on that?

MR HECHTER: I would not be able to say what period of time it was, but I know that in that stage he was working in Mamelodi.

MR VISSER: Yes. And if I put it to you that due to the nature of the investigations which he conducted into unrest related matters, he as well as you at the Northern Transvaal Security Branch, were basically occupied with the same task.

MR HECHTER: Yes, we were narrowly involved with one another, we saw one another on a daily basis.

MR VISSER: Yes, that was actually the following point that I wanted to put to you. He states that due to the fact that you did the same work for that period of time, for those few months, he worked very closely with the members of the Northern Transvaal Security Branch and he also became involved in the bomb attacks of which we now have an example before us. Is that correct?

MR HECHTER: Yes, that is correct.

MR VISSER: His recollection of that period of 1986 was that Pretoria was burning so to speak and that there were numerous incidents of petrol bomb explosions, murder, intimidation and damage to property, which were all at the order of the day. Is that also your recollection?

MR HECHTER: Yes, that is correct.

MR VISSER: And he will give evidence here that the experience taught that for the South African Police, and particularly the Security Branch, it became impossible to control matters by means of the usual legislation and powers at their disposal and that action had to be taken beyond the parameters of the law, in order to control the situation.

MR HECHTER: Yes, that is correct.

MR VISSER: And that the purpose thereof was a sort of counter intimidation. If you were certain of somebody's status as an activist who had been involved in intimidation and damage to property and petrol bomb explosions, you then counter-intimidated such a person so that he would be aware that he could not simply continue with such activities and that at some or other point he would also be reckoned with.

MR HECHTER: Yes, that is correct.

MR VISSER: He also tells me that the purpose inasfar as it concerns his involvement, was not to kill anybody. How do you recall it? In this case - I am referring to the Masuku case, he will testify specifically that it was not the objective to kill somebody although the possibility was foreseen that somebody could be injured or killed during an attack on a house.

MR HECHTER: Yes, that is correct, Chairperson. Previous evidence has indicated clearly that when we tasked somebody to eliminate someone, then he would be specifically hijacked or a bomb would be placed under his vehicle but then he specifically would be killed. In these cases there was serious intimidation and we foresaw that people could die, but it was not the specific objective, it was more to create a psychosis

of fear among these people, so that they would cease their intimidation.

MR VISSER: And just to conclude that aspect, in the cases where you for example, personally targeted persons for intimidation, you have applied for amnesty and you have stated it as such.

MR HECHTER: Yes, and I did explain to the Committee or the Commission at that stage, and I also received amnesty for those cases.

MR VISSER: The reason why I have put this question to you is because Mr Coetser stated in his amnesty application on page 55 of the bundle that he recalls - and we are referring to paragraph 9(a)(i) on page 55, Chairperson, in the middle of that paragraph he states that Oupa Masuku was the target of the attack, but in all fairness towards him, on the previous page, page 54, in paragraph 2, at the top of the page he states that the objective of the action would be to launch an attack on a black political activist's home. So it is somewhat contradictory, but inasfar as it concerns you he was not the target, the house was the target.

MR HECHTER: Yes, that is correct, but we knew that he was in the house.

MR VISSER: Very well.

MR HECHTER: So that is how it was.

MR VISSER: And part of the reason why you acted as such - or perhaps I shouldn't lead you too extensively regarding this, I will just ask you the following. Your experience during that time, when it came to taking activists to Court and taking successful criminal action against them, did this have a high degree of success or what was the position?

MR HECHTER: No, Chairperson, as a result of the tremendous intimidation which the activists maintained among their own people, the legislation at that stage had a very minor effect on the activists. On the contrary, if an activist was detained and when he returned to his area he would be viewed as a hero and this then incited the other youths to join him.

MR VISSER: Is it correct that Viktor, during the time when he worked with you, if I may put it as such "worked with you", that he was also actually under the command of Brig Jack Cronje, who was the Commander of the Northern Transvaal Security Branch?

MR HECHTER: Yes, that is correct.

MR VISSER: So your omission of his name in your application on page 26, is by accident? At the bottom of the page.

MR HECHTER: Yes, the fact that his name does not appear is due to the fact that I couldn't remember that he was present and I assume that - I didn't see this affidavit of Brig Cronje, but as far as I can recall, Mr Viktor was present with me at all times during the period of these attacks and we received the orders directly from Brig Cronje. I think it may just be an oversight on Brig Cronje's behalf.

MR VISSER: And if he states that the orders for such illegal actions were sometimes conveyed to him by Brig Cronje himself and sometimes by means of you, it would be correct?

MR HECHTER: Yes, that is correct.

MR VISSER: Just an aspect which the Committee might find of interest. You refer to information which the Security Branch received from sources and informers, was any action taken based upon the information received from informers, or was this information controlled or evaluated before you took any action?

MR HECHTER: As I have already testified to before the Committee, there were various independent sources on the basis of which information we would take action, and this information was collected over a period of time, it would not only be based upon one report that arrived at the desk on one particular day. If we looks at Oupa's history, it stretched over a long period of time during which he had been active and the detentions which had preceded, would have occurred as a result of informer reports.

MR VISSER: So at the time of taking action against somebody, the Committee can then accept that thorough research would have been conducted regarding this particular person.

MR HECHTER: Yes, that is correct.

MR VISSER: Thank you, Mr Chairman.

CHAIRPERSON: Thank you, Mr Visser. Before I give you an opportunity, Mr Lamey - Mr Hechter, did I hear you correctly that when Oupa's house was attacked, Oupa Masuku, you knew that he was present, not that you wanted to attack the house per se, but that he was in the house? Do you possess personal knowledge of that? From the evidence you have given thusfar.

MR HECHTER: Chairperson, it is difficult for me to say yes, he was there, we would have assumed that he was there because it was very difficult, one couldn't just send somebody to his house an hour or two before the time and know that Oupa was there, we would have assumed that he was there and he would have known then that this attack was aimed at him. If we look at the statement - I beg your pardon, on page 58 or perhaps just somewhat further ahead, he states, paragraph 5 on page 59, where he states -

Now whether it was us or the other activists among one another I cannot tell you at this stage, but the activists were aware that they were targets of ours. But the Committee must also consider that there was conflict among these street committees, certain leaders were envious of one another and then attacked one another and then we also saw that their homes were targeted and that we were not involved in such targeting.

I cannot tell you whether Morotoba(?), Ledwaba, whether or not we targeted their houses, but this was the sort of action that would have taken place. As a result of the actions taken by the activists we would have targeted them, then the house would be attacked so that the activist would be aware, but normally we assumed that he would be there. You wanted to teach him a lesson, not his parents, you were not angry at his parents, you were angry with him as a person and the easiest would be to show him that his house is a target. Because he was attacking the residences of others, so you would attack his residence. If he was there, it would be acceptable because you would then accept that he was there. If he was in jail you wouldn't attack his house because that would be futile, you would wait until he was at home and then attack. And then it would usually be late at night when there weren't many other people on the streets and he in all probability would already have been in bed.

CHAIRPERSON: Thank you, Mr Hechter. Mr Lamey?

CROSS-EXAMINATION BY MR LAMEY: Thank you, Chairperson.

Mr Hechter, I suppose that you are suffering from the so-called post-traumatic stress disorder and that this impacts on your recollection.

MR HECHTER: It is according to the psychological report pertaining to my lack of recollection of these incidents.

MR LAMEY: I would just like to ask you - please assist me when your recollection fails you, because I'm not certain of what precisely you can recall of that time, what you can recall and what you can't recall, and the reason why I'm going to ask you - well let me begin as such. Is it correct that Mr Coetser was a Sergeant at the stage of this incident?

MR HECHTER: Yes, he worked with me.

MR LAMEY: And he worked with you in the same section, in the section of the Northern Transvaal Security Branch, of which Mr Jack Cronje was the Commander?

MR HECHTER: That is correct.

MR LAMEY: Where in the line of command did you reside? You were an officer?

MR HECHTER: Yes, I was an officer.

MR LAMEY: And you had the rank of Captain?

MR HECHTER: No, at that stage I was a Lieutenant.

MR LAMEY: And just above you was Capt van Jaarsveld.

MR HECHTER: No, he was a Lieutenant at that stage.

MR LAMEY: Very well. In terms of rank and also within the structure of the section you were the senior to Sgt Coetser and you had direct liaison to the upper levels with Brig Cronje.

MR HECHTER: That is correct.

MR LAMEY: Is it correct that with regard - or let me put it as such, is it correct, can you recall that this case during which Esther Masuku passed away, was it the last case in which Sgt Coetser was involved? According to my instructions he was involved in a total of four incidents in the former portion of 1986, February to March 1986, which then includes two petrol bomb attacks at Mamelodi and Soshanguve and then this bomb attack at Atteridgeville and then there was one in Ekangala.

MR HECHTER: Chairperson, if Sgt Coetser maintains that I will accept it. I can recall that he spent a very brief time with me. I cannot tell you specifically what he was involved with.

MR LAMEY: Furthermore my instructions are that there was a relatively uniform modus operandi with regard to his involvement and as far as he knows, that during the course of the day, and specifically with this case in Atteridgeville, he was given orders by you to report at the office that evening and from that point onwards he would receive his instructions from you. He drove the minibus and he would follow your instructions to the place, stop the bus and so forth. That was his role every time.

MR HECHTER: Yes, it would be so. I cannot recall precisely, but I assume that that would have been his role.

MR LAMEY: And I also want to ask you, if I may use the word "the target determination", did you conduct the target determination yourself or in consultation with anybody else? If you did this in consultation with anybody else, who was this person?

MR HECHTER: It is difficult, some of the orders came from above and some of the targets were identified by me and then some of the targets were also identified by head office or from the upper levels, from the Commanders, and in such cases I would simply receive instructions to execute the operation.

MR LAMEY: Can you recall whether or not you identified the target yourself with regard to this case?

MR HECHTER: I cannot recall, but I assume that I would have identified it myself because that information would have reached my desk.

MR LAMEY: But my instructions are that Sgt Coetser did not have any information regarding to the target determination from his position, this information came to him.

MR HECHTER: He would have had insight into that source of documents, but it would not have been his decision, not at all.

MR LAMEY: And with regard to this case, he stated in his application which role and which activities Oupa Masuku participated in and why the plan to eliminate him was not known to him, but he accepted that Cronje and Viktor and Hechter would have more information regarding this. Mr Coetser is uncertain today and cannot pinpoint Mr Masuku's role and activities and link this to the identification of a determined organisation. What he does know and what he definitely understood was that he was a well-known political activist who was active in the area.

MR MALAN: Mr Lamey, how do you expect of Mr Hechter to assist you with such a statement? Didn't he testify that he has no recollection whatsoever, not even regarding the name Masuku?

MR LAMEY: As it pleases you.

I then understand that you cannot recall specifically with connection to this incident, who determined the target.

MR HECHTER: Unfortunately not, but what we can do is refer to the newspaper cuttings and then Mr Masuku's statement itself. Unfortunately I cannot assist you any further.

MR LAMEY: What you have seen from the newspaper extracts and the information contained therein, I want to refer you specifically to page 99, the report from a newspaper, I'm not certain which newspaper it was exactly, but on page 99 of bundle 1 there is mention that -

MR HECHTER: The so-called SAYO, yes.

MR LAMEY: You knew of this.

MR HECHTER: Yes, it was very active in the power struggle within the black residential areas.

MR LAMEY: This SAYO that you refer to, was this according to your knowledge of that time, a so-called organisation which associated itself with the struggle which was waged by the ANC?

MR HECHTER: Yes, as far as I know.

MR LAMEY: And was regarded by the Security Branch as a front organisation.

MR HECHTER: Yes.

MR LAMEY: Of which the members according to the information that you had at that stage, were closely involved with the violence and the unrest in that area.

MR HECHTER: Yes.

MR LAMEY: And then so also with regard to the connection of the South African Council of Churches, it was also the South African Council of Churches which was regarded as an organisation which gave assistance to the struggle.

MR HECHTER: That is correct.

MR LAMEY: My learned friend has asked you questions which confirmed that the residential areas surrounding Pretoria during this time in 1986, were burning as a result of this violence. I don't know if you can recall, but is it correct that a State of Emergency was announced later during that year in 1986?

MR HECHTER: I cannot recall this, but it will have been placed on the record elsewhere.

MR LAMEY: Gen van der Merwe in his submission to the Truth Commission, on page 18 and 19 thereof, I don't know if you have this before you, it is a document which is relatively well-known to the TRC, on these pages he has drawn up a table of necklace murders, the statistics pertaining to necklace murders and then also on page 19, setting alight of persons. I just want to mention to you what Gen van der Merwe has given statistically and determine what your comment is, whether you would accept it as such in the light of ...(intervention)

MR MALAN: Please Mr Lamey, the relevance of necklace murders to this application against the background of the urban unrest, it really isn't relevant, please don't waste our time, please just ask the questions that you need to ask.

MR LAMEY: Chairperson, the reason why I have referred to this is because we are referring to 1986 and unlawful actions and the question pertains to the political context of that time.

MR MALAN: But Mr Lamey, isn't the political context something which has been sketched by Hechter and Cronje before us? Doesn't your client's application rely on the facts which have been confirmed by Mr Hechter in terms of the orders, and that your client just received orders to go along and carry out the operation?

MR LAMEY: As it pleases you. I will argue it later.

Mr Hechter, you have stated in your application that you were present during a meeting in the office of Brig Viktor, is that correct?

MR HECHTER: Yes, that is correct.

MR LAMEY: May I just ask you, was that meeting a significant change with regard to the action which would then be taken by the Security Branch in 1986? I am referring to the petrol bomb and the bomb attacks.

MR HECHTER: Yes, that is correct.

MR LAMEY: My instructions from Sgt Coetser are that he was also present during that meeting. You cannot place or recall him?

MR HECHTER: I cannot even recall him, all I know is that Mr Viktor was with me and I think also Mr van Jaarsveld, I know that we were involved. I do not recall that Mr Coetser was involved or present.

MR LAMEY: And you then refer on page 6 of the bundle, to that meeting where Brig Viktor spoke to the Security Police members and pressurised you to do something about the situation in order to bring it under control.

MR HECHTER: That is correct.

MR LAMEY: My instruction from Mr Coetser are that he was definitely under the impression during that meeting, that activists who caused problems also had to be eliminated. I am not saying that this would be done in all cases, I'm just saying that the order was not a licence to kill every activist, but that if somebody were to be killed during the process, it wouldn't have been a problem.

MR HECHTER: Chairperson, if he says so it may be so, I cannot recall the specific details, it is possible, if he interpreted it or understood it as such. I cannot comment on that.

ADV SANDI: Sorry, that's not very clear to me. Did you personally also fall under the same impression that regarding the steps that were to be taken by the Security Police, killing or murder was not excluded? What was your impression of tone of the meeting?

MR HECHTER: Chairperson, to tell you the honest truth, if I think back to it, possibly not at the beginning or possibly at the beginning, if one looks at the actions from the first time, it started with petrol bombs and then as we began to task the more serious activists it went over to bomb attacks and then there were specific activists who were removed and eliminated from society. It is possible that that may have been his impression at that stage, but I cannot swear that that was the intention, that the intention was to tell them to take these people out. It is possible that he implied it but whether he really said it is something that I do not know.

MR LAMEY: I'm not referring specifically to the case of Masuku as such, I'm speaking in general terms.

MR HECHTER: He was a serious activists, that I planted a bomb, his deceased mother was also very involved in these activities and unfortunately she died during the incident, and this is something that we are all very sorry about. With the planting of a bomb one has to foresee that people could be injured or killed. So yes, somebody was killed, but whether at that stage it was the intention, I would have to answer no but it was foreseen, it was foreseen, otherwise - let us suppose that we could have attempted to abduct him, do you understand what I'm saying, the objective was to intimidate him seriously, that was the basic objective. Somebody was killed during the incident and more serious intimidation took place.

MR LAMEY: Let me just put it to you otherwise. If somebody was in a house and was killed during the process of a bomb attack which was conducted with the purposes of intimidation, wouldn't this have been in contradiction to what Brig Viktor told you during the meeting?

MR HECHTER: No, it would not have been contradictory.

MR VISSER: Mr Chairman, please allow me to come in here. Visser on record. Mr Chairman, this whole issue what Brig Viktor had said or had not said on this occasion when his son, Mr Viktor, who is now before you, and Mr Hechter and van Jaarsveld, visited him at police headquarters in Pretoria, Security Headquarters, was the subject of a separate investigation by the original Amnesty Committee under the chairmanship of Justice Mall. There was evidence presented by Brig Cronje as to what his discussions were and the evidence was already on record of what van Jaarsveld - I'm not sure about van Jaarsveld, but what Mr Hechter had said, and the Amnesty Committee has brought out a decision, Chairperson, and we before this hearing had said to ourselves we will studiously avoid getting entangled in that issue again and as far as the applicants are concerned, and we've discussed it with the applicants' representatives, they accept as we do, what the Amnesty Committee has found. Now I just want to warn my learned friend, Mr Lamey, if he's now going to go beyond the Amnesty Committee has found, this may give rise to a rehash of that whole hearing and I'd really hate to see that happening.

Now I want to tell you, Chairperson, that it was accepted by the Amnesty Committee, that Viktor never gave instructions to anyone to eliminate people. That has what has been found. And I can refer you to page 124 of the Modimeng bundle, where you have the decision of the original Amnesty Committee, and I would seriously suggest to my learned friend, through you, Mr Chairman, that we leave it be. This is not a forum for the persecution of Gen Viktor, and in fact our instructions are that Coetser wasn't even at that meeting.

But be that as it may, whether Viktor did or didn't give an instruction, makes hardly any difference to the amnesty applications which you have to decide upon, which are before you now. And I just want to sound a word of warning that we don't get involved in a side issue because it is a side issue, which took us two or three days to sort out before the original Amnesty Committee, and about which you have at page 124, the judgment.

CHAIRPERSON: Mr Lamey, I think Mr Malan was trying to bring you back but I did not interfere, thinking that you want to make a point, but as it is brought out it actually reads -

So I say let's stay within the parameters of this incident because you will recall when I saw you outside chambers, all counsel or legal representatives involved here, I asked Mr Toefy what his objection was all about and he placed on full disclosure. So if we were to say what was the situation like during 1986, it would give us the impression that all of us in this room were worse than Rip van Winkel. So let's just narrow ourselves to the issues, Mr Malan.

MR MALAN: With your permission, Chairperson, I would like to confirm what Mr Visser has stated here, that we should recall that discussed this during the pre-hearing conference and that this should not be revisited, that is not of the essence pertaining to these applications. And Mr Lamey, once again I would like to bring you back to the application of your client. He does not allege anywhere in his application that the objective was to eliminate Oupa Masuku, in fact on the contrary, the intention was to launch an attack on his house. So really, I cannot understand why you persist in investigating things which are not relevant to Mr Coetser's application.

Please, I implore you, if you have any further questions for Mr Hechter, regarding which he has information to assist you, please do not reiterate matters that he has already testified about unless you want to place it into dispute. Put these things to him, but do not put unnecessary questions to him, do not take this investigation beyond the parameters of what is relevant.

CHAIRPERSON: ...(indistinct - no microphone) Mr Lamey, that it has come to my attention that you were not present at the pre-trial hearing.

MR LAMEY: Chairperson, may I just come in here. I don't want to go unnecessarily into aspects that concerns other applicants whose amnesty applications have been heard, who have made submissions.

Firstly I just want to place on record that I don't represent any applicant in the Modimeng matter, I have not been provided with the bundle of those applicants, I haven't seen up to today what my learned friend, Mr Visser, has referred to. None of the applicants I have represented in any applications thusfar, and that includes Mr Coetser, have been given notice of that hearing which Mr Visser refers to, where that issue was canvassed.

What my learned friend has just stated to you is a bit of a surprise. I'm working before this Committee from a vantage point of a person who was a lower-ranking officer at that stage, who did receive an order to accompany Hechter on a particular evening to, what from the circumstances appeared to be an attack on a house. He wasn't privy to the instruction that came from above, he received his instructions to accompany Mr Hechter, ultimately somebody was killed.

And then further as is stated on page 52 of his amnesty application, he was indeed present at, according to him, at an initial meeting in the beginning of 1986, in a meeting in the office of Brig Viktor, where he understood from the contents of that discussion, that political activists should be eliminated. Whether ...(intervention)

MR MALAN: But Mr Lamey, that is not in dispute and it was also not disputed during the first finding that he could understand it as such, that is not what Mr Visser has stated. The decision during the pre-hearing conference where you were not present, where Mr Paulse from your office was present, was that we would not revisit this and that the decision as it stands could be accepted as a reasonable inference, as well as the inference that your client drew from that first meeting with regard to the elimination of activists.

But with all due respect, Mr Lamey, this does not form the basis for his application with regard to Masuku, because Masuku who was the activist, was not killed, somebody else was killed and as a result of the death of an innocent citizen, he has requested to be excluded from such activities. So I reiterate, Mr Lamey, and I am sure that I will be speaking on behalf of the whole Panel, that we will not regard this as relevant to the application of Mr Coetser with regard to the bomb which was placed at Mr Masuku's home, during which Mr Masuku would be the target of counter-intimidation.

CHAIRPERSON: If it be so listening to your line of cross-examination and saying you want to know what obtained when they met that morning, who said what, I don't think it's a question that can be put to Mr Hechter, but to Mr Viktor, because if there was a discussion, reading what Mr Coetser's application says, he says it is Mr Viktor who said "now these blacks are giving problems, it's about time that they should be eliminated", but not Mr Hechter. Or are you saying - because you must also bear in mind that he does not, and he was upfront with this and not pretending in any way, that he cannot recall precisely about this incident. Now if he does not recall this incident per se, can we say he even recalls conversations that took place before this operation was executed?

MR LAMEY: No, Chairperson, but as I understood my client's version, it was - that meeting was in the beginning of January was the beginning of his involvement in subsequent events for which he applied for amnesty. Now all I'm saying is, if he wasn't privy to the direct instruction, whether Oupa Masuku was to be eliminated, certainly ...(intervention)

MR MALAN: Mr Lamey, he does not allege such an instruction in his application.

MR LAMEY: No, indeed, because he wasn't privy to that but everybody ...(intervention)

MR MALAN: But there was no such instruction, there's no evidence that there was any instruction to eliminate Oupa Masuku. What are you referring to?

MR LAMEY: Chairperson, but if I can just put it in this way. Everybody including the - well let me speak about the applicant and as Mr Hechter has also testified, he foresaw that in the process somebody may be killed and that Mr Coetser will also testify that. And therefore I submit it is important if you had a particular instruction, whether it was just to attack a house, but you foresaw somebody would be killed, whether that ...(intervention)

MR MALAN: Could be killed was your argument. Not would be but might be killed.

MR LAMEY: Yes, or might be killed. That for such an event that might have taken place there was some prior authority either explicit or by implication or tacitly. And that was why in his background he referred to that meeting with Brig Viktor, and he understood from the context of that meeting, that - and we're not saying that in each and every incident in which he participated, there was a direct instruction to eliminate, that specific aspect, but there was this general discussion. And I will argue at the end of the day that from his point of view the fact that somebody was killed, was not out of line with what his superiors, or what he reasonably believed the instruction was from his superiors. And that's why I asked Mr Hechter about this because he was present at that meeting.

MR MALAN: Mr Lamey, Mr Hechter has given that exact evidence, he said that they accepted that people may be injured and killed in these explosions. I don't understand why you are continuing to cross-examine him on matters that he says he doesn't remember, if he says he doesn't even remember your client's presence. So it's not at issue. He's confirmed that to be part of the practice of all the bombings.

MR LAMEY: The purpose of my cross-examination is not only to put an issue, the purpose is also - and that's why I was very careful because I know of the difficulty of Mr Hechter, of his problem with post-traumatic stress syndrome, that he might not recall certain things, but it is also I think, important from the vantage point of a lower-ranking officer to, where possibly - and another applicant who was a higher ranking officer and who was privy to more information and higher up in the structure, could confirm that. And it's just a question if he can confirm it, so be it and if he cannot, also so be it, but I just wanted to investigate that aspect. It's not that that is ...(intervention)

CHAIRPERSON: No, but when we look at - when we now look at his evidence closer and that emanated from cross-examination by yourself, Mr Hechter says at the beginning we wanted merely to intimidate these people and we did that by placing bombs at their houses, but subsequently - and he's not sure when, is when the actual elimination came in. In other words, now these people have to be dealt with severely, so the intimidation falls off. But he cannot remember that. But in this specific incident he says no, quite certainly we foresaw that if you place a bomb somebody might be killed in the process, and I don't think we really can debate about that because if you can remember he says he cannot even recall who everybody was there. Unless you want to put something specific that says he will come here and say you were present and we had a discussion prior to leaving for the Masuku residence, probably. Because we must understand that in the process, whatever we want to place to him is that we must bear in mind that he doesn't recall ...(indistinct). He says "bona fide I had forgotten about this incident and I cannot recall this incident, but other applicants would assist me."

MR LAMEY: Chairperson, I won't take that matter further, I have put to him what Mr Coetser's understanding was of that meeting and I'll leave it there.

Mr Hechter, just another aspect, it is not of so much import but Mr Coetser's recollection is that Mr Mamasela - you refer to Mr Mamasela's presence with regard to this incident, that Mr Mamasela did not accompany you on this specific incident. On the contrary my instructions are that in the four instances which are limited instances in totality of the bomb explosions and petrol bomb attacks, Mr Mamasela did not accompany him once.

MR HECHTER: That is quite possible, Chairperson. I do know that Mr Mamasela in most of the incidents worked with me. I shall not argue with him if he says that Mr Mamasela was not present.

MR LAMEY: Thank you, Chairperson, I just want to make sure whether I've covered everything.

CHAIRPERSON: We'll grant you that opportunity.

MR LAMEY: Chairperson, I've got no further questions for the applicant.

CHAIRPERSON: Thank you, Mr Lamey. Mr Toefy.

MR TOEFY: Thank you very much, Mr Chairperson. There's just one issue I just want to raise that's arising from what the Chairperson said earlier. If I understand correctly I think it was Mr Roux that said earlier that our clients, the victims' objection to the application is that of non-disclosure. That is one of it. The other one is also the proportionality of the action that was taken was not warranted by the political objective and aims that was being sought by this act. Just a point of clarification.

CHAIRPERSON: No, no, it's your opportunity now that - you are going to attack this on two legs, proportionality and full disclosure?

MR TOEFY: Yes.

CHAIRPERSON: Thank you, you may proceed.

CROSS-EXAMINATION BY MR TOEFY: I hope not to be too long.

Mr Hechter, I have to bring you back to the question of orders. From your application, tell me if I'm correct, it appears if there were two kinds of orders that were received, the first one was the general order that was received from Brig Viktor, that has been the topic of discussion recently, and the other kind of order - if I can refer you to page 8 on your application, where you say in the second paragraph, the third sentence you say -

Mr Hechter, the order or the decision to bomb the house of Oupa Masuku, was that based on the general order or was that a specific order that you received from Gen Ras or Brig Cronje?

MR HECHTER: Chairperson, if one looks at Brig Cronje's application he says that he cannot recall whether he gave an instruction here. I accept that entirely, that I had undertaken this operation on my own, based on information that I had obtained, in execution of the general order where activists had to be opposed. Do you understand my meaning?

MR TOEFY: So it was really your decision then to bomb the house?

MR HECHTER: It was my decision insofar as I can recall.

MR TOEFY: Mr Hechter, you said earlier in evidence that typically what would happen is that the day before it would happen or on the day, if you were going to attack during the night, then you would in fact make the bomb.

MR HECHTER: Correct, Chairperson.

MR TOEFY: Is it most likely that you probably made the bomb in this instance as well?

MR HECHTER: In all probability that would have been the case, Chairperson. Insofar as I can recall I manufactured all the bombs myself.

MR TOEFY: Now if I can very briefly refer you to the application of Mr Viktor on page 7, paragraph 26 ...(intervention)

CHAIRPERSON: Firstly, prior to this had you seen Mr Viktor's application? Prior to ...(indistinct) asked now.

MR HECHTER: Yes, Chairperson, I have it in my bundle.

MR TOEFY: Thank you.

MR HECHTER: Please repeat what page it was.

MR TOEFY: On page 7, paragraph 26.

CHAIRPERSON: The incident of Masuku would start on page 26.

MR HECHTER: 36? In my bundle it is 36, his statement. If you would lead me, then we shall find it.

MR TOEFY: I do apologise, the copy that I got was not marked according to ...(indistinct)

MR HECHTER: I see that they are different.

MR TOEFY: It's paragraph 26 and it deals, it's under the heading -

MR HECHTER: No, unfortunately I do not have this.

CHAIRPERSON: I'm also at a loss, Mr Toefy, ...(indistinct - no microphone)

MR TOEFY: Yes, it is.

CHAIRPERSON: Mr Roux, can you be of assistance? ...(indistinct) to the bundles per se, but the statement handed in.

MR ROUX: Chairperson, I am also surprised myself, we do not have such an extra affidavit.

MR VISSER: Mr Chairman, Visser on record, may I explain. At the pre-hearing we understood, Chairperson, to make available during the course of last week, a full statement of the evidence of Mr Viktor, which we did. I'm distressed to hear that some of the people haven't received it yet. I understand that you also haven't received it until this morning.

CHAIRPERSON: That's correct, it was made available to me this morning.

MR VISSER: Well I'm absolutely surprised that my learned friend hasn't got one. Can we offer him a copy now, with your permission?

CHAIRPERSON: Mr Visser, I'm saying in proceedings of this nature it would only be advisable that counsel, Mr Roux for Mr Hechter, must have seen this document beforehand and looked at it, that his being under cross-examination and the document is just made available - I'm not placing the blame on you, that I would say under the circumstances they should be given an opportunity to look at the document and I would say - my watch says it's quarter to one, could we come back at one thirty? Have lunch right now and come back at one thirty, a forty five minutes break. Are we all agreeable?

MR TOEFY: As it pleases the Chairperson.

JACQUES HECHTER: (s.u.o.)

CHAIRPERSON: Thank you, gentlemen. Would you remind me that at three we should adjourn for a short while, I've been requested by the interpreters that they want to catch their breath by then. Mr Toefy?

CROSS-EXAMINATION BY MR TOEFY: (Cont)

Thank you very much, Mr Chairperson. It's really quite a simple point I was wanting to make, Sir, I was taken by surprise that it caused an early lunch. If I can just repeat the question.

Mr Hechter, if I can just draw your attention to page 7 of the supplementary affidavit, which I hope you have in your possession and you have read, paragraph 26, do you have it before you? Of Mr Viktor. If I can read the last two or three sentences, it says -

On reading that statement by Mr Viktor, would it be correct then in assuming that some bombs that were "die geprakseerde ploftoestelle", some of them had shrapnel and some of them did not have shrapnel? Is that a fair assumption to make?

MR HECHTER: Negative, Chairperson, a bomb is a charge of explosives which is set off, that is the basic description of a bomb. How those bombs were manufactured is that they were placed in a tin and then pentolite, which is a tremendously charged explosive with a detonator and a length of cord which was approximately the width of a thumb, that tin would then be placed in a window or tossed through a window into or in front of the room.

During an explosion, everything in the vicinity would be shrapnel. The glass would be shrapnel, the window frames would be shrapnel, the roof plates as well, because with an explosion everything in the vicinity would be drawn closer and then blown away and the pentolite would explode at approximately 7 000 metres per second. So it would be a tremendous blow.

MR TOEFY: So this statement by Mr Viktor then is not completely accurate in saying that there was no shrapnel put in - that there was shrapnel put into the bomb?

MR HECHTER: No, the shrapnel would be caused by the explosion itself, it wasn't necessary to place items in the tin itself.

MR TOEFY: Sir, so then can you confirm that you never put anything in the bomb?

MR HECHTER: No, we never did.

MR TOEFY: Thanks. You say in your application and now as well in evidence, that you would have a vast number of informants that would inform you and monitor various activists and that it would be based on this information that you would in fact target a particular activist.

MR HECHTER: That is correct.

MR TOEFY: If I could ask you - I have to ask you this because the family is sitting here, they want to know, on what basis did you decide - on whatever information that you received, on what basis did you decide that the house of Oupa Masuku or that Oupa Masuku must be targeted and intimidated?

MR HECHTER: Chairperson, at this stage it is not possible for me to highlight specific incidents I can no longer recall, however, he would not have been targeted if he was not narrowly involved. I can refer you to his own statement where he explains how active he was, and from that we can deduce that he was a tremendously busy activist. And the statements or the reports which were sent through by the informers, at that stage, on a weekly basis, if it was a case where for example we heard Saturday there would be a mass meeting, on the basis of those reports the informer would have contacted one and said "listen be careful, there's going to be a big meeting in Atteridgeville on Saturday." Then we wouldn't wait for a written report for example, we would act immediately, we would submit written affidavits and obtain authorisation from the Magistrate, to prohibit that meeting. Those reports from the informers, and there were various informers, it was not a question of two people who didn't like him, there were twelve to sixteen informers, different informers and ...(intervention)

CHAIRPERSON: Mr Hechter ...

MR HECHTER: I beg your pardon, Chairperson.

CHAIRPERSON: Mr Hechter, is your answer that you do not recall?

MR HECHTER: I do not recall.

CHAIRPERSON: Then because what you are saying to us now is merely speculation of what obtained.

MR HECHTER: Yes, that is correct, it is speculation.

CHAIRPERSON: Thank you. You may proceed, Mr Toefy.

MR HECHTER: Thank you, Chair.

MR TOEFY: Mr Hechter, you also said earlier in evidence that based on reading the bundle, and particularly the newspaper clippings that are in the bundle, that it appeared as if the entire family, the Masuku family were active in the struggle.

MR HECHTER: Chairperson, I cannot recall, I simply looked at what was in the newspapers. I just relied on what was in the newspapers, I can no longer actually recall.

MR TOEFY: So could you - so can you also not remember whether the mother of Oupa Masuku, Mrs Esther Masuku, whether you viewed her as an activist or not?

MR HECHTER: Unfortunately I cannot give you a positive response to that, I can no longer recall.

MR TOEFY: But what is clear to you is that the target was Oupa Masuku.

MR HECHTER: That is correct.

MR TOEFY: So your intention was never to intimidate Esther Masuku, but only Oupa Masuku.

MR HECHTER: I cannot tell you, perhaps it was. I cannot tell you at this stage yes, it was only Oupa or it was Oupa and his mother or it was Oupa and his entire family. The effect of the intimidation was that his parents would tell him, "listen stop your nonsense", because it is known that the parents of the activists would leave them, but I am speculating once again, I cannot give you a positive response unfortunately.

MR TOEFY: Well Mr Hechter, surely there are various manners in which you can get the message across. If you want to intimidate someone to stop doing something, surely you can tell X, you can take him in, smack him around a couple of times and tell him to stop it. You can blow up his car while he's not there, you can slash his tyres, what made you decided to bomb his house?

MR HECHTER: I don't know whether or not you have studied page 58, or if you could at least study Ezekial Oupa Masuku's statement ...(intervention)

CHAIRPERSON: And he mentioned in his evidence-in-chief that according to what he has referred you to, that Oupa Masuku was detained at various times and when he was released he became a martyr and all the youth would take after him, and that was not how to stop it, and they decided to intimidate him in the manner in which brought us here today.

MR HECHTER: Thank you, Chairperson, that is what paragraph 1 will tell you in essence, paragraph 1 will tell you that he began in 1977 and with none of those actions was he ever hindered and then we had to go to extreme measures.

MR TOEFY: I hear you - and thank you Mr Chairperson, for reminding me. However in paragraph 1 he speaks of actions which the State took against him in the normal course of the law, but according to your background information that you've given and so on, it was accepted that you must now act outside of the normal course and the normal system.

MR HECHTER: That is correct.

MR TOEFY: Why then go to that extreme? Why go to the extreme of bombing his house, running the risk knowing full well, as you have said earlier, knowing full well that people may be injured or hurt? Your aim is to intimidate, your aim is not to kill, if the law cannot help you out - if the law didn't help you out back then, why make the jump from a number of other steps that fall outside of the framework of the law to an act which caused the death of another person?

MR HECHTER: Have I not answered this sufficiently? He had already been detained, he had already been intimidated via the regular ambit of the law. All of these things had already been applied to him and he still didn't want to listen, so the next step would be to treat him as he treated those around him, give him full intimidation.

MR TOEFY: I'm accepting that - let's assume that everything within the ambit of the law was attempted, he was held without - he was detained without any trial, he was interrogated and he was held under various acts, that we accept and that is all that you are saying, that he was interrogated in terms of the law and he was held in terms of the law and then you take an act which is outside the normal course of the law. Now there's various categories of acts which you could have perpetrated outside of the course of the law, you've chosen to take an act which resulted in the death of someone and you knew it could have resulted in that, why did you not choose ...(intervention)

MR HECHTER: No, we didn't it, we foresaw it, there's a difference.

MR TOEFY: I didn't say it would.

MR HECHTER: Ja, you said I knew it would have resulted.

MR TOEFY: You knew that it could have resulted in the death of someone.

MR HECHTER: I foresaw it, I foresaw that it could happen, I didn't know that it was going to happen.

MR TOEFY: So all I'm asking you is, you have a wide range of acts that you could have done outside of the framework of the law, why did you choose the act that could have had such a huge and such a grave result? - which it did. That's the simple question.

MR HECHTER: According to my opinion it was the only way in which to stop him, that is all that I can tell you at this moment. I can no longer recall the precise motivations of that time. You must remember that we were involved in a situation of warfare, we were fighting the enemy, at that stage he was my enemy. I'm assuming that it is Mr Masuku who is seated next to you.

MR TOEFY: Yes, it is.

MR HECHTER: He was my enemy at that stage, I fought him tooth and nail because he was trying the existing system and he tried this via the means of intimidation and all other methods which we also used and they used. So that is what is was about. The precise motivation I can longer tell you at this stage, I cannot recall anymore, I do not have the files before me, I no longer possess the precise information.

MR TOEFY: So you can't say whether you've in fact tried any other action against him or not?

MR HECHTER: Yes, we did, here it is ...(intervention)

MR TOEFY: No, no, outside the ...

MR HECHTER: ... there were seven methods, or seven incidents during which we tried other manner, not I ...(intervention)

MR MALAN: Sorry to interrupt you Mr Hechter, but the question is, why didn't you take other steps which fell beyond the framework of the law, which were not as drastic? That is the question.

MR HECHTER: I beg your pardon. Thank you, Chairperson. He was a serious activist and - I don't know what the correct word is, he was an activist who was very closely involved and we had on many previous occasions then attempted to prevent him and none of these attempts had worked. We had to try this option, otherwise the only other option would be to eliminate him directly.

I do not know exactly why we did this. At this stage I cannot explain to you beyond any reasonable doubt or tell you one hundred percent that this is why we did it, I'm assuming that that was the decision that I took at that stage and I believe that I took it alone. I do not know if I discussed this at a table with anybody else, I can no longer recall. But we accept that ...(intervention)

MR MALAN: I beg your pardon Toefy, for interrupting once again.

The question actually indicates that in this case it is on record with us that various actions were taken within the framework of the law. You told us that there were various methods of intimidation, sort of the first step being a minor attempt like a burn wound, but here you would go over directly to a bomb attack which caused serious damage and it wasn't a petrol.

MR HECHTER: That is correct.

MR MALAN: The question is, why didn't you do anything intermediary?

MR HECHTER: Due to the fact that we had already attempted to detain him via the regular methods and seen that this did not decrease his activism, that his activism was still as intense as what it had been. I am inferring that that is why I decided that it wouldn't help to burn his house only, that we should plant a bomb which would cause a dramatic event in anybody's life and this would deter him seriously. I have to infer that this was my motivation.

CHAIRPERSON: Mr Hechter, did I not understand you in your evidence-in-chief, that you said all the legal methods within the framework of the law did not work and it was a decision of the Security Forces that you should go a step further and go outside the ambit of the law as well? But I hear you now to say in respect of Masuku, Oupa, you know decided that you would rather bomb his house to scare him off.

MR HECHTER: That is correct, but it was part of a general instruction that we received, I received an instruction to intimidate the activists to control their activist activities, that was the instruction to me, and it was left over to me as an officer to decided after I had received and studied the necessary informer reports, to determine who the offenders were, who the activists were against whom action had to be taken. I assume that this information would have been in the file because we had the entire history of a person in his file, all his previous arrests, all his previous actions. Some people's files were this thick, some of them became bundles due to all their actions, and on the basis thereof along with the instruction that I had already received, I decided to commit this act.

CHAIRPERSON: So would I understand you correctly to say the general instruction gave you a discretion in the process of what other methods beyond?

MR HECHTER: That is correct.

CHAIRPERSON: Thank you, you may proceed. I'm sorry Mr Toefy.

MR TOEFY: Mr Hechter, I want to put the following proposition to you and I would like your comment. It is - the evidence before us and as you have - before us on paper and from what you have said now, indicates that no other act was taken against Mr Masuku outside of the framework of the law other than bombing his house. And I put it to you that your decision to bomb his house in order to stop him from intimidation, was an act that was not warranted by the circumstances and it was out of proportion to your aims of wanting to stop him or to intimidate him to stop his activities. What do you say to that?

MR HECHTER: I cannot answer the first half of your question, could you please repeat the first section of the question because it's a double statement or a double question that you have put to me. Could you repeat the first half of your statement.

MR TOEFY: I said that on the evidence before us, on papers and from what you have said, that the only act that you took against Mr Masuku outside of the framework of the law, was to bomb his house.

MR HECHTER: I cannot answer you there because I cannot remember, I cannot recall. Perhaps I brought him into the police station or to the Security Branch, perhaps I interrogated him, perhaps I assaulted him, I cannot recall, it is possible. Mr Masuku will be able to tell us. If you tell me that we didn't do it, then we will just automatically return to this section. We tried everything and when we saw that nothing was being effective with this man - if someone spent that much time in jail, it was proof that he really didn't want to listen and we had to take serious action against him.

MR TOEFY: So you're saying you simply can't remember if you did anything else to him?

MR HECHTER: I cannot recall because I cannot even recall this incident in detail. It is probable that I bombed his house and I'm sure it is so, especially in the light of the evidence put by the others, but I cannot recall precisely that I went to the police station that evening, went to his house, bombed it and so forth. I know that I bombed house.

MR TOEFY: Let's go to the second part of the proposition. Mr Hechter, your aim was to intimidate him to stop his actions, your decision to bomb his house which had the possibility - which you have admitted, the possibility was there that people would be killed as a result of that bomb, your decision to effect and to detonate that bomb at a house where people could reasonably be at that hour of the night, that that decision was an unreasonable one in the circumstances and that you could ...(intervention)

MR HECHTER: You were not there, I was there, at that stage it was a war. We are seated here in a very relaxed and calm atmosphere and it sounds implausible to hear that you would go to someone's house and bomb it, but at that stage it wasn't unreasonable, the man didn't want to listen and we were trying everything in our power, we had detained him, he knew we were watching him, he knew that informer reports were being sent through to us, he knew how these things operated, but despite everything he continued with his activities, how were we to stop him? What do you do then?

CHAIRPERSON: Grant me an opportunity. Mr Hechter, I would appreciate it if you could just answer the question put to you by the legal representatives of the victims. But I would strongly discourage you to say to him "you were not there, no we were there" - I mean, we were all not there but we've got to even adjudicate on this, and please bear with the legal representatives because he's simply just doing his job.

MR HECHTER: I'm sorry, I didn't mean to antagonise him, that was not my intention, I'm just referring to that period in time, during which you would have been one of the victims, you knew how things were in the black residential areas, it was ...(intervention)

CHAIRPERSON: No, I'm happy if it's not your intention, I'm merely happy if it's not your intention.

MR HECHTER: I apologise, Chairperson, it was really not my intention to patronise him, it was purely a situation of warfare during which we dealt with these people on a daily basis and it really didn't help to intimidate them in the normal fashion because if we did so, this bomb would never have exploded. Once again I am busy with a supposition that if he had listened, this bomb would never have gone off because there would never have been a reason to do so.

However, quite obviously, he must have continued with his activities to give me a reason to place the bomb. Once again I say to you, from our position today it sounds awful but at that stage it wasn't awful, it was a daily occurrence. If I didn't do it, he would have done it in all probability. And that is how it was in the black residential areas, the black non-activists were attacked by the black activists, who also intimidated them by means of tossing handgrenades into their houses, by setting their houses alight, by tossing manufactured explosive devices into their houses, that was the practice of the day, and now you ask me whether or not I think that I could have done something else. Possibly, it is very possible.

If I have to observe this in retrospect, I would not have taken this decision if I didn't believe firmly at that stage that this was the only way in which to stop his intimidation or his actions, his activist activities.

MR TOEFY: Just one question on this issue, or at least from what you were saying. Are you saying that is was an "oorlog situasie" and the situation was so bad that you would in fact indulge in actions which would cause for ...(intervention)

MR HECHTER: I beg your pardon, could you speak up, I cannot really hear you.

MR TOEFY: Are you saying that times were so bad back then that you indulged in actions that could have, and in these circumstances did, cause the death of an innocent person?

MR HECHTER: Chairperson, it is clear from what has occurred that innocent - which was a relative concept because from took place later, it was clear that Mrs Masuku was also involved in this activism and in these movements, but yes innocent people could have died and we acted with the full knowledge of this possibility, that is correct.

MR TOEFY: You also say in your application that Esther Masuku is Oupa Masuku's sister.

MR HECHTER: I inferred that, I never re-examined the details ...(intervention)

MR TOEFY: I just wanted to know if you are still of that view or not.

MR HECHTER: If you look at these reports they mention that she is 39 and that he is 28, and that is how the confusion may have originated, that one would have thought that she was his sister. At that stage I never returned to any of these scenes, so I wouldn't know in detail.

That is on my "Top Secret". So on the basis of this information, I cannot recall, it may have been that I knew that she was his mother at that stage, but I submitted my application on the basis of this information.

MR TOEFY: You also said earlier in evidence, Mr Hechter, that - and you alluded to it now as well, that the entire Masuku family was probably involved in the struggle, and you took it further, and you said that there would have been files on each person in the family, is that right?

MR HECHTER: Not necessarily every person, but once again this is a supposition, I am not able to tell you yes or no, it was a general observation that I had made. I see that the mother was involved, Oupa was an activists of format, he was not just a common activist, the mother was involved with AZRO and SAWU, so therefore that was an inference I had drawn here. I do not know what had happened that time, possibly I had a file for every one of them, it is possible, I am not able to tell you yes or no. It's possible that they were all innocent, that is also possible, except for Mr Masuku. I would never have attacked him if I did not have a file on him, that would never have happened. Because in all my applications thusfar, I have never launched an attack on anyone who was not involved in the freedom struggle.

MR TOEFY: So you don't know if you had a file on Esther Masuku?

MR HECHTER: No, I cannot tell you, no I don't know.

MR TOEFY: This "Top Secret" document that you referred to earlier ...

MR HECHTER: This was from a file, it was taken from a file.

MR TOEFY: That summarises the incident?

MR HECHTER: Yes, but it could have been a dossier as well, I do not - it was also not sent to my desk, it was sent to C1. This comes from the terrorist file, in other words from the investigative unit, this document comes from the investigative unit, C1, who did investigations. So it would have been an independent document. I've never seen this before on my desk.

MR TOEFY: You'll see there that when they refer to - under paragraph 2(a) and (b), at (b) they say that the person that was injured was a black man, Ezekial Oupa Masuku and in then in paragraphs ...(intervention)

MR HECHTER: NT(?). That is not black force, that entry is the C1 division, you'll see on page 58 that he was detained for terrorism, C1 worked with terrorism, we worked with black power. So C1 would not know whether I had a file on those persons.

MR TOEFY: And S4 file?

MR HECHTER: I beg your pardon, let me have a look - where is that?

MR TOEFY: Is that one file?

MR HECHTER: I do not understand your question.

MR TOEFY: You say here -

... and then there is S4.

MR HECHTER: That would be the same file. I don't know, I cannot tell you what the NT and the S4 are, I do not know what the S4 is.

MR TOEFY: So would you then deduce from paragraphs (a) and (b) that they actually didn't have a file on ...(indistinct)

MR HECHTER: I cannot draw that inference, not from this.

MR TOEFY: You did not have a file on Esther Masuku?

MR HECHTER: No, I cannot draw this inference. It's possible that there was a file, but it's possible that there was no file.

MR TOEFY: And it's possible that you may have had a file.

MR HECHTER: It's a possibility, it's a possibility that I cannot ignore.

MR TOEFY: Further questions that I have to ask you, Mr Hechter, the family is here. Can you remember who your informants were that informed you about the Masuku family?

MR HECHTER: Chairperson, first of all I cannot recall and secondly at previous occasions I was taken for hearing, a Section 28 Hearing in Cape Town, where there Mr Denzil Potgieter - we spent a day with Mr Denzil Potgieter there and we said that for South Africa's peace in future, no informants will be disclosed. That was a decision that was taken there and it was left there. Informants names will not be disclosed.

MR TOEFY: Mr Chairperson, I have no further questions.

CHAIRPERSON: Thank you, Mr Toefy. Mr Steenkamp, any questions?

CROSS-EXAMINATION BY ADV STEENKAMP: Thank you Mr Chairman, if you'll allow me a few questions.

Mr Hechter, you were also a member of the Security Branch of Northern Transvaal, is that correct?

MR HECHTER: That is correct, Chairperson.

ADV STEENKAMP: W/O Dos Santos, was he also a member of your branch?

MR HECHTER: Yes, he was also a member of the branch, but he had no knowledge of my actions. We worked on a need-to-know basis. He was not attached to my unit, he was attached to another unit. He was a member of the branch, but with another unit, he was with Unit C1.

ADV STEENKAMP: If you have regard for pages 61 and 62 of bundle 1, do you have that? You will see page 61 is the covering page of a dossier and page 62 is an affidavit of W/O Dos Santos, where he says that he was a member of the Security Branch of Northern Transvaal.

MR HECHTER: That is correct, Chairperson.

ADV STEENKAMP: What I'd like to ask you is, what I do not understand is, it appears that a member of the same branch, of the same unit had undertaken this investigation.

MR HECHTER: That's correct, because it was an act of terror. Acts of terror were investigated by the Security Branch, bomb explosions specifically, petrol bombs would be investigated by the local police, but W/O Dos Santos was an explosives expert and all explosive related incidents were investigated by the Security Branch.

ADV STEENKAMP: I understand that, but according to page 61 you will see that the investigative officer was W/O Dos Santos.

MR HECHTER: That is correct, he investigated the matter.

ADV STEENKAMP: But a member of your own unit investigates something that you were involved with?

MR HECHTER: That's correct, no-one at the branch was aware of what I had done. There were persons who did know, my boss knew and some of the members who worked with me. My boss, Brig Cronje, he knew. His Commander, W/O Dos Santos' Commander was a Capt Prinsloo, he didn't know what happened.

That matter, just for your information, the bomb explosion, the incident, the following day all the officers met in the Brigadier's office and the incident was mentioned there and then Capt Prinsloo would come in and he would say there was a bomb explosion in Atteridgeville last night, someone died. Briefly we discussed and later the dossier would be handed over to Brig Cronje. Neither he nor Mr Dos Santos were informed.

ADV STEENKAMP: But my question is, would W/O Dos Santos not have access to information from sources?

MR HECHTER: Not our source, because he was in another division, he was with C1, who monitored acts of terrorism and terrorists, the bomb division, there were several of us who underwent bomb or explosives training. He would have known that we might have had a file of Mr Masuku, but he would not have known the particulars of it. He could have drawn it to study it, but it was not information that was withheld from him, he could have studied it if he wanted to.

ADV STEENKAMP: Do I understand you correctly, he could have had access to source reports?

MR HECHTER: Not specifically the source reports, but the processed report, my sources or my unit's sources belonged to the unit, it was not general knowledge for the other members of the branch. The report would have gone to my Commanding Officer and he would have said that "Capt Loots, I want Oupa Masuku's file, do you mind if I have a look at the file", and then the reports would be given to him, but the processed reports. Sgt Coetser received reports from his sources and he obtained four/five reports, Mr Joubert or Sgt Pieterse and Sgt Joubert would receive five reports each and all of them would write one report of the total information that they gained and that would be filed.

ADV STEENKAMP: I would like to mention to you that I find it strange that if one looks at the cover page of this dossier, it would appear that this was never submitted for any investigation.

MR HECHTER: I don't know if it was. Firstly, my copy is poor and secondly I do not know, I cannot answer you.

ADV STEENKAMP: It appears that according to this document no Prosecutor ever studied it.

MR HECHTER: It says GDO, I don't know if that's the Prosecutor who wrote that that I can see.

ADV STEENKAMP: There's no signature of a Prosecutor.

MR HECHTER: I do not know, Sir.

ADV STEENKAMP: Was it not used in order to file such dossiers?

MR HECHTER: This one would have walked that road, but I cannot answer to that.

ADV STEENKAMP: The actual point which I would like to ask you in conclusion is, it would appear that this investigation was purely academic. If one looks at the type of investigation, the person and the documents which appear and the fact that the dossier was not placed before a Prosecutor, it was just purely academic.

MR HECHTER: I do not know whether there was a complete investigation or if this is the complete dossier, I believe that this docket would have gone to the Prosecutor, but I am not able to answer you.

ADV STEENKAMP: So much more, where according to your evidence Mr Dos Santos had access to further information?

MR HECHTER: No, not further information, my information was never put in writing anywhere, my information was in writing, but the action that I had launched was never supported in documents.

ADV STEENKAMP: A final question. Were you aware that Mr Dos Santos handled the investigation?

MR HECHTER: Yes, I would have been aware of it. I would known the particulars of it but I would have known that one of the explosive experts in the branch, I do not know which one because you had on standby more than one, but one of those explosive experts would have gone to the scene.

ADV STEENKAMP: And you - I would just like to ask you, you should have known that this investigation would lead nowhere.

MR HECHTER: I did not know that, that we did not know because these people did not know, but I knew at the scene there would be no evidence to be found because I knew what had happened there.

ADV STEENKAMP: Thank you, Mr Chairman, no further questions.

CHAIRPERSON: Thank you, Mr Steenkamp. Mr Roux, before you re-examine I will give the Panel an opportunity to put questions, so that when you re-examine, in the interest of time, you have probably a picture of what you should re-examine on.

MR ROUX: I am indebted to you, thank you.

CHAIRPERSON: Adv Sandi?

MR HECHTER: Thank you, Chair, just on one or two things.

You have referred to a Section 28 Hearing, which you attended in Cape Town, I understood you to say a decision was taken there that names of informers should not be disclosed, can I ask you whose decision was this?

MR HECHTER: Chairperson, I was subpoenaed in accordance with Section 29 and I can recall Mr Chaskelson, Mr Denzil Potgieter and then there was an Advocate from the TRC, I cannot recall his surname, and I think there was another person, it was my legal representative, Mr du Plessis, Mr Britz, myself and some of the other members who were not present in the hall at that stage if I recall correctly, because it was an in camera hearing. Let's call it a hearing, I don't know what you call it.

In then the morning Mr du Plessis submitted his legal points where he set out as to why according to the law, the informants could not be exposed, and then the other Advocate, I cannot recall his name, he then put forward his legal points for the Committee present, and then in the afternoon it went back and forth, no answers were forthcoming and then during the afternoon at some stage we put off the tape recorders and we met around the table and we said for peace and the future of South Africa, it would better if the identities of the informants would not be disclosed because of prosecutions, because the families would want to take revenge and then the person who were tasked by us would have their revenge. And people from society, they are still living in society and today they have important positions in society and those positions would have been jeopardised, they personally would have been attacked, and in order to promote this reconciliation it was left there. That was the plea, it was discussed and I was never again subpoenaed and there was no mention of it that anybody else would be subpoenaed in order to disclose this information or to disclose the identities of informants.

CHAIRPERSON: Just before you do, Mr Sandi - Mr Hechter, am I understanding you that there was no decision per se, but what you have just said to us is a gentleman's agreement around the table?

MR HECHTER: That is what it boiled down to, Chairperson, there was no judgment passed, it just remained there, I was never again subpoenaed, everything remained there and it was never mentioned again anywhere.

CHAIRPERSON: Thank you.

MR HECHTER: Thank you, Chairperson.

ADV SANDI: Thank you. The next question again around the issue of informers, these informers were getting paid for supplying all the information to you.

MR HECHTER: That's correct, Chairperson.

ADV SANDI: How reliable - in your experience, how reliable would you find the information that would supplied to you from time to time?

MR HECHTER: Chairperson, because we had various informants one did not rely or react to one or two informants' reports, one tried to recruit as many informants in the community as possible in order to gain information. Back then we referred to a subject, one would have ten or twenty informants who would give information with regard to Mr Masuku as well as other activists, then it becomes quite clear that this man is prejudice, he just speak about Mr Masuku, he doesn't speak about Mr Joubert or anybody else, and he makes up the most tremendous stories. It is easy to determine then that this man's information because we refer to intelligence confirmation. So if five informants give the same information, then one can accept that the information is correct.

ADV SANDI: Thank you. Just one last question. You have said as far as you were concerned you were fighting a war, now I want to know, how far were you prepared to go in waging this war? The notion or the concept of innocent civilians was not part of your vocabulary?

MR HECHTER: Chairperson no, we never tasked innocent civilians. Unfortunately in such a situation where one uses explosives, it does happen, and we limited it, we tried to limit it to as little as possible and as we progressed, later at a stage we started tasking individuals and abducted them and eliminated them as time went by. As we began more experienced we realised that there were better methods, eliminate the activist right there and then, because in blowing up the house there is that danger of innocent bystanders being injured, that is so. When one uses explosives that is the case unfortunately. Although we were embroiled in a war situation, we did not task or target innocent civilians.

ADV SANDI: Would you take any steps to - if you wanted to attack a particular political activist who was staying in a particular house with other people, it could be parents, sisters, brothers or anything of that sort, what steps would you take, if any steps at all, what steps would you take to ensure that the people who are staying with him who were not even involved in the rough and tumble of the struggle, how would you ensure that they don't get affected once you throw a bomb there?

MR HECHTER: Unfortunately none, Chairperson, we foresaw it and there was unfortunately nothing we could do about it.

ADV SANDI: Yes, but in those cases where you wanted to eliminate or to attack a certain activist because his profile in the struggle, would it not perhaps be better if you attack this person in the street whilst he's walking alone at night?

MR HECHTER: That was not so easy, it sounds easy in theory and it sounds easy when we speak about it, but to isolate one person in Atteridgeville during that time, when you as a white person could not even enter into the residential area, it would be very difficult to do that, Chairperson, it was actually impossible to follow such a person and to eliminate him.

The thought has taken formation with me now, I don't know whether it was part of our objective, when one hits such a house you know - once again it's a supposition, it might have been part of our reasoning, I do not know - you know your child is an activist, you do not do anything about it, now my house is attacked because my child is an activist and I did not do anything, would I not tell him "stop your actions"? I do not know, Chairperson, it's a supposition. I think might it not have been part of my argument then? I do not know.

ADV SANDI: Finally, do I understand you to say that you took no steps whatsoever to ensure that so-called innocent civilians who were staying in the same house with a targeted person, you took no steps to ensure that those people would not be affected? That's what you are saying.

MR HECHTER: Chairperson, to a very limited extent, yes, because one knows more-or-less where this person sleeps, but one does not know who shares his bed. One would not go and place the bomb in the mother's room, one would place the bomb in his room or where it is the easiest for you. If there are houses on the sides, one would not go to the side to throw the bomb, one would throw it through a front window. We had an idea more-or-less.

ADV SANDI: Thank you. Thank you, Mr Chairman.

MR HECHTER: Thank you, Chairperson.

CHAIRPERSON: Thank you, Adv Sandi. Mr Malan?

MR MALAN: I have no questions thank you, Chair.

CHAIRPERSON: Mr Roux, have you any re-examination?

RE-EXAMINATION BY MR ROUX: Chairperson, there are two minor aspects, I would not like to spend too much time on them.

In your own mind, Mr Hechter, with reference to the Masuku incident and the information which was in all probability available to you with regard to the informants information and files that you had and the circumstances as it had reigned then, let us be specific, in Atteridgeville and the circumstances in general in the country, in the execution of your duty, in your own mind were your actions in retrospect, justified? This specific action.

MR HECHTER: Yes, Chairperson, otherwise I would not have gone through with it.

MR ROUX: You upon a question posed by the legal representative on behalf of Mr Masuku, answered that you could not recall whether it was possible that previous steps had been taken against Oupa Masuku before this attack, is that correct?

MR HECHTER: I think the question was "outside the law", I cannot recall Chairperson.

MR ROUX: In other words, is it quite possible that there may have been verbal admonishments, a few slaps, a hiding or two?

MR HECHTER: I think Mr Masuku may be able to answer that, I cannot recall it at all.

MR ROUX: Very well then, but were such actions possible before this bomb was exploded?

MR HECHTER: It is possible.

MR ROUX: Thank you, Chairperson, those are the questions in re-examination.

CHAIRPERSON: Thank you, Mr Hechter, you are excused.

MR HECHTER: Thank you very much, Chairperson.

MR ROUX: Thank you, Chairperson.

CHAIRPERSON: I take it the next applicant, Mr Visser, would be Mr Viktor.

MR VISSER: As it pleases you, Mr Chairperson.

MR VISSER: Thank you, Mr Chairman. Mr Chairman, as we have mentioned before, we act for Mr Viktor. He's available and ready to take the oath, he has no objection to taking the oath.

JOHANNES JACOBUS VIKTOR: (sworn states)

CHAIRPERSON: Thank you, Mr Malan. Mr Visser, you may proceed.

MR VISSER ADDRESSES: Chairperson, it has been some time since I've had the pleasure of appearing before you and this calls for some explanations to be given as to what had happened in-between. Chairperson, Mr Malan, with apologies to Mr Malan, he's heard this introduction so many times, I think he knows it by heart, but I'll go as quickly as I can. Chairperson, in February last years, on the 5th of February, a meeting was held by Mr Malan and Justice Wilson on behalf of the Amnesty Committee, with legal representatives who appear for applicants and some implicated persons etcetera, in order to attempt to find ways and means of expediting the process because the process appeared to be getting bogged down and a lot of time was taken on issues which it was felt, could be dealt with greater dispatch.

At the time, Chairperson, various suggestions were made, most of them good ones, and what has happened since then is that with reference to the decision of the original Amnesty Committee in the Jack Cronje matter, you will recall - and I'm not going to refer you to it, but it simply boiled down to the fact hat the issue of background and personal experiences of policemen and the issue of the war that waged etcetera, etcetera, as you referred to Rip van Winkel, but at that stage Chairperson, amnesty applicants could not take the chance of not fully explaining their views and their position, and in the Jack Cronje decision the Amnesty Committee suggested - first of all, it dealt with a lot of that background and then it suggested that in future it may be helpful if applicants, Security Force amnesty applicants could simply refer to that decision and without ado, continue with the facts of the matter and thereby save a lot of time.

What was raised at that meeting, Chairperson, was that - of course unfortunately no decision can always cater for all circumstances and we raised the problem which we had, that there were certain issues which fell outside the decision of the Jack Cronje amnesty applications and it was decided that we should draw a document which covered most issues which will be applicable in any circumstances, concerning a member of a Security Force. And that explains, Chairperson, a document which we have called "General Background to Amnesty Applications", of which I sincerely hope that you do have a copy, because we have made that available. Which we would ask, Chairperson, you will accept as Exhibit A. And the basis on which this is handed to you is that each applicant for whom we appear is asked at the beginning of his evidence, whether he agrees with portions of that document and if so, with what portions. Some would agree from their personal knowledge and experience, with everything, the particular applicant before you now will only agree to part of it. We will draw your attention to it.

The idea is then thereby to lay that before you as has been done for the past year, and to invite Members of the Committee that if they read it and they have a problem with any part thereof, that we will then address that particular aspect, but for the rest accept it as read and accept it as part of the evidence.

CHAIRPERSON: We have been furnished with that document and we shall mark it Exhibit A. My reading - personally I don't have any questions as regards that, but as you have alluded to the fact that you might just highlight us to certain portions which do not generally apply to each and every applicant who was engaged with the Security Forces, we would gladly accept that.

MR VISSER: Thank you, Chairperson. There isn't much, it really is just putting on a little bit of flesh, if I may put it that way, to the decision of the Cronje matter. For example, on the issue which my learned friend has raised on whether there was a war and to what extremes people would go in the war, we've addressed that issue and we have given you quotes from various players, role-players like AZAPO and the ANC and the Security Forces, so as to create a balanced picture or to attempt to create a balanced picture of what the war was about for us who didn't know what was really going on, Chairperson. As Mr Hechter says we weren't there.

Chairperson, with that brief introduction, may I also add that what we also undertook to do and what we have stuck to, was an undertaking before each of the hearings, to present all interested parties with a document of the full evidence which the applicant will give in order to save time of writing it down and in order to study it beforehand, so that everybody could know exactly what the evidence is going to be.

Now in the present case, Chairperson, we have done that again and you will find before you a document that says -

Could we ask that you mark that Exhibit C, Chairperson, you've already got an Exhibit B. And then, Chairperson, attached to your Exhibit C you will see that there's another affidavit. May I immediately explain that to you.

CHAIRPERSON: Sorry about that, Mr Visser, may you continue.

MR VISSER: Have you found that document, Chairperson, it's headed -

Now Chairperson, I'm not sure whether you want to mark that separately or whether it should just be considered to be part of Exhibit C, but it may be preferable to mark it Exhibit D. And then the very last page, Chairperson, there's a letter by Lindy Burger, that could perhaps be Exhibit E. And Chairperson, ...(intervention)

CHAIRPERSON: Why don't we mark this one D1?

MR VISSER: D1. ...(indistinct - no microphone) and we will deal with these documents very briefly during the evidence, it's not necessary for you to read Exhibit D, but we will explain to you as we go along, what those two documents are about.

Chairperson, if I may then be permitted to refer you to Exhibit C. This is an application, Chairperson, for amnesty for those acts and delicts set out at page 2. Chairperson, I've often tried to translate this from the Afrikaans and every time I've succeeded in not succeeding, but it's malicious injury to property, by way a home-made bomb, as it was referred to; the murder of one, Madiposo Esther Masuku; attempted murder or any lesser offence regarding those people who were injured in the attack, Chairperson, and that includes Oupa Masuku, his brothers, Chris Masuku and Mdumazi Masuku, or any other person that we're not aware of, Chairperson. And then also 1.4, the unlawful possession, transportation and use of explosives contrary to existing laws at the time. Conspiracy, Chairperson, assisting before or after the act and defeating the ends of justice, Chairperson, insofar as the true facts were not made available. For example, to Mr Dos Santos, who was the investigating officer, or any other offence or delict arising from the facts, Chairperson.

Chairperson, on page 1 we refer to the evidence that has been given before Amnesty Committees, this is more a summary for the benefit of the various Committees before whom we appear, in order to be able at one glance to know where all references to relevant type of evidence may be found, Chairperson. One of them is Exhibit A, to which we'll come now, but the others are basically the evidence of a witness who appears before you. This particular witness has given evidence, for example as you will see in B1 in an amnesty application of Gregory Tulare and Godfrey Kwabe. And then basically we refer to the amnesty decisions which had been given by various Amnesty Committees, Chairperson, it's the Cronje 5, the Khotso House, London Bomb and Cosatu House applications, to which we might not refer you at the time we address you in argument.

CHAIRPERSON: Thank you, Mr Visser, you may proceed.

EXAMINATION BY MR VISSER: Mr Viktor, you are an applicant in this matter and you have listened to the introduction that I have rendered previously. Is it correct that you are applying for amnesty for the offences and delicts that I have explained to the Committee?

MR VIKTOR: That is correct.

MR VISSER: You have studied Exhibit A.

MR VIKTOR: Yes, that is correct.

MR VISSER: That is the general background. Could you then tell the Committee whether or not there are portions of that exhibit regarding which you would not be able to testify.

MR VIKTOR: Paragraphs 47 to 62 are not of application to me.

MR VISSER: And particularly the issue pertaining to the role of the neighbouring States and what went on in Swaziland, Botswana, Lesotho and so forth.

MR VIKTOR: Yes, that is correct.

MR VISSER: In other words, you confirm from page 1 to page 12 at the top.

MR VIKTOR: Yes, that is correct.

MR VISSER: Did you say 47 or 57?

MR VIKTOR: I beg your pardon, it would appear that the paragraphing differs - yes, to page 63.

MR VISSER: So from 64 onwards you cannot confirm. Your amnesty application can be found from page 108 to 119 before this Committee - no, that cannot be correct. Oh, in this bundle before you now, it's at page ...(intervention)

CHAIRPERSON: 36.

MR VISSER: Yes, Chairman, I was referring to the other bundle which was the first bundle we got. I do beg your pardon.

Do you confirm as far as you know and as far as you can recall, the information which is embodied from page 36 before this Committee, to page 44?

MR VIKTOR: That is correct, Chairperson.

MR VISSER: Could you turn to Exhibit C and address the Committee regarding that which you can recall pertaining to the incident at hand.

MR VIKTOR:

...(intervention)

MR MALAN: I beg your pardon for interrupting. Mr Visser, I don't think that you expediting the process if you give us a twenty minute long introduction and reiterate everything on the record, by means of a further body of information. There must be a way in which to shorted this.

MR VISSER: Chairperson yes, the difficulty that one always has is of course what to leave out and what to lead the evidence on, but I can attempt to do as requested, Chairperson, in the hope that I won't do it in a way which might be to the disadvantage of ...(intervention)

MR MALAN: But I think it would be a good start to get him to confirm the statement that he has prepared at the very least.

MR VISSER: Mr Viktor, his statement that you just began reading, Exhibit C, could you tell the Committee how it came to be that this statement came to light.

MR VIKTOR: Chairperson, it was compiled after consultation with my legal representation.

MR VISSER: And from what you could recall and what you told to your advocate and your attorney, a document was compiled and you were asked to study it and to see whether everything was correct. And are you the of the opinion that everything that appears here is your evidence and everything is true and correct?

MR VIKTOR: Yes, that is correct.

MR VISSER: Do you then confirm the complete content of Exhibit C?

MR VIKTOR: Yes, I confirm it.

MR VISSER: From the cross-examination by myself of Mr Hechter, you will recall that he confirmed that you co-operated closely with the Northern Transvaal Security Branch, and that this took place under the command of Brig Cronje and that eventually you also went over to unconventional or unlawful actions against activists. Do you confirm this?

MR VIKTOR: Yes.

MR VISSER: You referred in your statement, to the violence and intimidation which reigned at that stage and the problems that you experienced in having cases brought successfully to Court.

MR VIKTOR: That is correct.

MR VISSER: And do you concur with what Mr Hechter has said, that detention and imprisonment of activists usually had the opposite effect to that which was actually desired?

MR VIKTOR: That is correct.

MR VISSER: Questions were put by Mr Lamey regarding a meeting in the office of your father, the then Brig J J Viktor - we will call him Viktor senior, during which there was a discussion of the unrest situation, is that correct?

MR VIKTOR: Yes, that is correct.

MR VISSER: And do you agree with what Mr Hechter has said in this regard pertaining to suggestions of counter-intimidation operations which had to be launched?

MR VIKTOR: Yes, that is correct.

MR VISSER: Did you have the impression that an order had been given to kill people on that day?

MR VIKTOR: No, Chairperson.

MR VISSER: Can you recall whether Mr Coetser was present on that day or can you not recall?

MR VIKTOR: Chairperson, as far as I know he was not present.

MR VISSER: Now with regard to the orders for these unlawful actions, who would have issued these orders according to what you knew or what you accepted?

MR VIKTOR: The orders for specific actions came from Brig Jack Cronje personally, that was when I was present, or it was frequently relayed via Mr Hechter.

MR VISSER: Mr Hechter testified here that in the case of Oupa Masuku, he possibly could have taken the decision himself, according to his recollection. Do you recall this or what is the position?

MR VIKTOR: Chairperson, I wouldn't have known about it, I would have assumed that it came from Brig Cronje.

MR VISSER: You stated in paragraph 14 on page 4 that you never doubted or questioned the orders or the necessity for these orders and that you accepted in good faith that the members of the Security Branch with their extensive network of informers, possessed the necessary confirmed and reliable information which would serve as the basis for all unlawful actions in which you participated.

MR VIKTOR: That is correct.

MR VISSER: And then also in paragraph 15 you have pointed out that you wish to emphasise that at no stage was there any impulsive action, but that action was taken only on the basis of what was regarded as confirmed and reliable information.

MR VIKTOR: That is correct.

MR VISSER: On page 5 you refer to incidents during which you say that in this period from March to May, you were responsible for a number of incidents which you have referred to and then you refer to the persons that acted with you, according to your recollection, Capt van Jaarsveld, Tiny Coetser and Capt Hechter, and then there was also Joe Mamasela, but you cannot recall at this very moment in time who acted with you where and when.

MR VIKTOR: That is correct, with the exception that Capt van Jaarsveld was not involved with us in this operation.

MR VISSER: Then on page 5, with regard to the full disclosure of relevant facts, in your statement you have dealt with this, could you tell the Committee whether or not you have a good recollection.

MR VIKTOR: Chairperson, at this stage I do not have a good recollection.

MR VISSER: What do you ascribe this to?

MR VIKTOR: Chairperson, I'm suffering from post-traumatic stress disorder for which I am still receiving therapy.

MR VISSER: And what was your experience with regard to the acts of violence that you participated in and the acts of violence that you witnessed during your police career?

MR VIKTOR: Chairperson, it was an attempt to suppress all these incidents so that I would not remember them.

MR VISSER: Now on two prior occasions you were requested by the Amnesty Committee to provide particulars in terms of the stipulations of the Act, with regard to your reasons for applying for amnesty, is that correct?

MR VIKTOR: That is correct.

MR VISSER: And shortly before this hearing you were requested by means of a letter, to answer certain questions with regard to that which you can recall of certain incidents.

MR VIKTOR: That is correct.

MR VISSER: And on page 6 in paragraph 22, you have stated that your recollection is very weak and try as you might you cannot recall the particulars of approximately forty incidents in which you were involved, but since you submitted your amnesty applications your memory has been refreshed.

MR VIKTOR: That is correct.

MR VISSER: What led to this?

MR VIKTOR: Chairperson, it is the applications of other members from which one could determine what one had been involved in and then also discussions with some of these members.

MR VISSER: Did you also make enquiries at a certain stage at a certain place?

MR VIKTOR: Yes, I enquired with the investigative team of the then Attorney-General, in order to determine which matters they were investigating against me, and certain facts were made known to me.

MR VISSER: And then in paragraph 22, in the light of your refreshed memory you have stipulated these incidents that you can remember to a greater or a lesser extent, from (a) to (e).

MR VIKTOR: That is correct.

MR VISSER: And you have also recalled that with regard to the current incident pertaining to the attack on the home of Oupa Masuku in Atteridgeville, you were also involved in this operation.

MR VIKTOR: That is correct.

MR VISSER: In paragraph 23 you have stated that you would have wanted to consult Capt Jacques Hechter because the orders sometimes came through him, but his memory is just as bad as yours.

MR VIKTOR: That is correct.

MR VISSER: And by means of your attorney you made enquiries regarding applications in which your name may have been mentioned and Mr Steenkamp who is acting as the Evidence Leader here today on behalf of the Committee, has also assisted you in this regard.

MR VIKTOR: That is correct.

MR VISSER: And just to take you through, among others you have also studied Mr Tiny Coetser's statement.

MR VIKTOR: Yes, that is correct.

MR VISSER: If I may refer you, Mr Viktor, to page 7, paragraph 26 in the second-last sentence there you have stated -

...(inaudible) your attention to where that comes from, it's at page 96. If you look at page 96 you will see in paragraph - that is marked "Top Secret" in your bundle -Chairperson, I did ask whether the bundles were going to be identified separately, I heard somebody referred to this as bundle 1, should we refer to it as bundle 1?

CHAIRPERSON: Bundle 1, yes.

MR VISSER: Bundle 1, page 96, you will see under paragraph 2(a) -

Now we took that to imply Chairperson, rightly or wrongly, that it was something that was built into the bomb and with the explosion went flying out. Now that was before we heard the explanation from Mr Hechter, and I want the Committee please to consider what has been stated there in the light thereof - this witness, well perhaps I should ask him.

Do you have any personal knowledge of how these bombs were manufactured, these home-made explosive devices?

MR VIKTOR: No, I wasn't present.

MR VISSER: And would you personally have had any knowledge as to whether or not there was any shrapnel within these devices?

MR VIKTOR: No.

MR MALAN: Mr Visser, just for the record, isn't shrapnel the result of the explosion due to the explosion of the cover and everything else in the vicinity? Isn't that the generally accepted meaning?

MR VISSER: Chairperson, yes or no, you will see that the medical doctor that performed the autopsy here, thought it came from the bomb itself, he actually referred to it as "handgranaat skrapnel", which are those little pieces of tortoiseshell on a handgrenade that fly up. But nothing turns on it really, we just wanted to explain that, Chairperson.

Mr Viktor, I'm now on page 7 of your affidavit, Exhibit C, paragraph 27. You have already stated that you knew about the content of the amnesty application of Sgt Coetser, do you have any independent recollection regarding the details of this particular action?

MR VIKTOR: No, Chairperson.

MR VISSER: Can you confirm the correctness of Mr Coetser's version regarding the facts and the circumstances of the incident?

MR VIKTOR: No.

MR VISSER: You have already referred to the meeting which was held with your father, Brig Viktor, and there is the other aspect which pertained to what according to you was the purpose behind the action of that day.

MR VIKTOR: Our objective was to intimidate revolutionaries and activists.

MR VISSER: Wasn't the objective to eliminate Oupa Masuku?

MR VIKTOR: No, it was not.

MR VISSER: If that had been the objective, would there have been other methods that you could have applied?

MR VIKTOR: Yes, I believe so.

MR VISSER: And you say that this was not the objective.

MR VIKTOR: No, not at all.

MR VISSER: You also gave evidence and you state once again in your statement, Exhibit C, that although with regard to any particular actions that you took with the Security Branch, it was not your intention to kill anybody, you accept that there was the probability or the possibility that people could be killed or injured.

MR VIKTOR: That is correct.

MR VISSER: And is that still your evidence today?

MR VIKTOR: Yes, that is correct.

MR VISSER: And would this also be of application to this night of the attack on the house of the Masukus?

MR VIKTOR: That is correct.

MR VISSER: After the attack on the house were you aware that somebody had indeed been injured or killed?

MR VIKTOR: No, Chairperson, the first that I came to hear of that was with the application of Mr Coetser which I read.

MR VISSER: And did you read this before or after you had completed your amnesty application?

MR VIKTOR: It was a number of years subsequent to the completion of my amnesty application.

MR VISSER: Could you remember what the names of the persons were and the addresses which you have stipulated in your statement, of the victims of the action of that evening?

MR VIKTOR: No, I do not have an independent recollection thereof, I accept that what Sgt Coetser states with regard to the identity and the address, is indeed the identity and the address pertaining to the incident.

MR VISSER: And then there is also information which was obtained by the administrative personnel of the Amnesty Committee, which has been put in the bundle, which will shed further light on such matters.

MR VIKTOR: That is correct.

MR VISSER: I just want to discuss the issue of whether or not the actions to which you have referred were indeed actions which led to the desired results. What is your opinion on that? I think it is on page 8 that you deal with this.

MR VIKTOR: Chairperson, I believe that our actions succeeded in decreasing the situation of violence and intimidation. Some of the information also indicated that these persons were planning certain actions and after counter-intimidation operations such as this it usually did not take place.

MR VISSER: It will be argued on your behalf towards the end that in the light of the statement made by Mr Masuku, this is precisely what happened in this case.

MR VIKTOR: Yes, it would appear so.

MR VISSER: I just want to pause with you with regard to your recollection. We have already heard from you that you were previously requested to provide information and you then tried to recall at the hand of the information which you had already received, what your personal recollections were regarding incidents in which you participated.

MR VIKTOR: Yes, that is correct.

MR ROUX: Chairperson, I do not wish to interfere but I have noticed that the interpreters have indicated something to do with time, I assume that they must be somewhat tired at this stage and I do not wish to interrupt them just like that ...(intervention)

MR VISSER: If the interpreters would give me three and a quarter minutes, I'll be finished, but if you want to take the ...(intervention)

CHAIRPERSON: No, from my - when I'm following what you are doing it would appear we won't take long before we finish with his evidence-in-chief. I don't know if I'm mistaken.

MR VISSER: I'm just about finished.

CHAIRPERSON: Thank you. Could you please bear with us for the last three minutes.

MR VISSER: In order to attempt to answer these questions according to the best of your knowledge did you decide to do so by means of an affidavit which would then embody as much of the incident in which you were involved so that the administration of the Amnesty Committee could then understand what precisely you are applying for amnesty for?

MR VIKTOR: Yes, that is correct.

MR VISSER: And if one examines Exhibit D, then that is exactly what you have done, and if we look at page 3, reference is made to incidents that you can recall having taken place in Pietersburg.

MR VIKTOR: That is correct, Chairperson.

MR VISSER: Then page 4 there is a residence in Ekangala.

MR VIKTOR: Yes, that is correct.

MR VISSER: And then also on page 4, the attack on the residence of Dr Ribeiro in Mamelodi.

MR VIKTOR: Correct.

MR VISSER: Then we have other incidents in Mamelodi, which is on page 5.

MR VIKTOR: That is correct.

MR VISSER: And also on page 5 we have Britz, Okasi.

MR VIKTOR: Correct.

MR VISSER: Soshanguve.

MR VIKTOR: That is correct.

MR VISSER: And then at the bottom of that page we come to Atteridgeville, and it would appear as if there are two cases, the case of Oupa Masuku which we are now dealing with and then another incident.

MR VIKTOR: Yes, that is correct.

MR VISSER: Could you just tell the Committee what you can recall prominently with regard to your action against Oupa Masuku.

MR VIKTOR: Chairperson, the thing that comes to mind is that dogs were barking, dogs were barking tremendously while we moved toward the house and after we withdrew from the house, and I also have a recollection, I do not know whether it was at this place, but I recall that I saw a person who was watching us from the window of another house.

MR VISSER: After the compilation of this statement it was also noted - Mr Chairman, at page 79 of bundle 1 - after you gave the instructions it was noted in the affidavit of Oupa Masuku, on page 79 paragraph 3, where he indeed also mentions -

Do you then recall at the hand of this that you were involved in this particular incident?

MR VIKTOR: Yes, that is correct.

MR VISSER: Is there anything else which could be of assistance that you can recall from your own memory?

MR VIKTOR: With regard to this incident, no, Chairperson.

MR VISSER: Would you then have to depend upon what Mr Coetser states, seeing as he can remember much more than you and Mr Hechter put together?

MR VIKTOR: Yes, that is correct.

MR VISSER: If I may then just deal with Exhibit D1, Chairperson, it is a letter sent by Lindy Burger. Who is Lindy Burger?

MR VIKTOR: She is the psychologist who I am in therapy with.

MR VISSER: And upon our request she wrote a letter in which she has given a brief summary of her connection with you, is that correct?

MR VIKTOR: Yes, that is correct.

MR VISSER: And in this letter she has referred to the fact that you suffered a serious trauma a few years ago when your second child passed away.

MR VIKTOR: That is correct.

MR VISSER: Mr Chairperson, perhaps to save time I may just read it. She says in the third sentence in the second paragraph -

And then she says that she is treating him.

Is that what she told you as well?

MR VIKTOR: Yes, that is correct.

MR VISSER: I'm taking longer than my three minutes, Chairperson, I'm at the last issue.

Would you then look at Exhibit C, your affidavit, page 8 thereof. There you have stated that your actions were not for personal gain and that all your actions which were unlawful while you were in service as a policeman, were committed in the heat of the struggle of the past and were aimed against supporters of liberation movements.

MR VIKTOR: That is correct.

MR VISSER: And your objective with the actions were to protect lives and property and to maintain the National Party government and to protect the government and also to attempt to divert the revolutionary onslaught.

MR VIKTOR: That is correct.

MR VISSER: Did you regard what you did as the execution of your duties as a policeman although they were unlawful?

MR MALAN: Mr Visser, I think you can save time, he has already confirmed this, it is all before us.

MR VISSER: As it pleases you, Chairperson. That is the evidence-in-chief, thank you Chairperson.

CHAIRPERSON: Thank you, Mr Visser. We will take a fifteen minutes break. I apologise that it would have been better to take a break after we've heard all the evidence rather than have a break before then. Thank you, we shall take a fifteen minutes adjournment.

JOHANNES JACOBUS VIKTOR: (s.u.o.)

CHAIRPERSON: Mr Visser, have you finished leading Mr Viktor?

MR VISSER: Chairperson, there's just one further issue I wish to clarify, but not with the witness, rather with the Chair and that is this question, Chairperson. I was wondering, Chairperson, whether irreparable harm would come to the decorum of the proceedings if we removed such articles of clothing as are incompatible with the weather conditions.

CHAIRPERSON: I think we can remove sufficient articles, but not to the extent that it would be offensive.

MR VISSER: Thank you, Chairperson.

CHAIRPERSON: Mr Roux, may I start with you? Any cross-examination?

MR ROUX: Chairperson, I have no questions that I would like to put to this witness.

MR ROUX: There is only aspect and that is, earlier I promised that the reports with regard to Jacques Hechter be made available, it has become available and I would before I forget about it, hand it up. I see that my learned friend, Mr Steenkamp, has marked it as Exhibit F, and I ask permission to hand it up to you.

CHAIRPERSON: It is actually the old numbering, would you suggest that we stick to this numbering because this document is going to be used again subsequently, in other hearings.

MR ROUX: I would propose that it remains FF then.

CHAIRPERSON: Thank you, Mr Roux. Do you have the document FF, Mr Toefy? Jan Robertse. Thank you. We will now come to you, Mr Lamey. Any cross-examination of Mr Viktor?

CROSS-EXAMINATION BY MR LAMEY: Thank you, Chairperson, just a couple of aspects.

Mr Viktor, in paragraph 27 of your application you mention in the last sentence -

Do you dispute that Sgt Coetser has attended a meeting at Security Head Office during which you and he and Brig Viktor as well as Jacques Hechter were present? Early in 1986.

MR VIKTOR: ...(inaudible)

MR LAMEY: I beg your pardon, may I put it to you that his recollection is clear that he was present there along with you, Brig Viktor and Hechter, although he cannot recall Capt van Jaarsveld.

MR VIKTOR: Chairperson, that is how I recall it, but I think I have to state it clearly that if that is how Mr Coetser recalls the incident I cannot dispute it.

MR LAMEY: So when he says that he attended such a meeting - I don't know whether he refers to the same meeting, but he did attend a meeting where Brig Viktor, yourself and Hechter were present you would not dispute it, do I understand you correctly?

MR VIKTOR: Chairperson, I cannot dispute that he attended this meeting which I deal with here in my evidence.

MR LAMEY: The meeting that you do refer to, according to your recollection was this early in 1986?

MR VIKTOR: That is indeed so, Chairperson.

MR LAMEY: The other incidents of attacks - or may I ask you as follows, were you also involved in attacks with regard to petrol bombs being thrown at houses in residential areas?

MR VIKTOR: That is so, Chairperson.

MR LAMEY: Did this happen after this meeting at Brig Viktor's office?

MR VIKTOR: That is indeed so, Chairperson.

MR LAMEY: What you can recall from that discussion as I understand your evidence, is that you had to go over to action with regard to intimidation of the activists. That's more-or-less what I can recall of your evidence, is that correct?

MR VIKTOR: That is so, Chairperson, that such a suggestion was made that counter-intimidation action could take place.

MR LAMEY: Would that have been outside the ambit of the law?

MR VIKTOR: That is so, Chairperson.

MR LAMEY: Can you recall whether it was said during the discussion as to how such intimidation would take place?

MR VIKTOR: Chairperson, as far as my memory allows me it was a case of if these persons set houses alight and bombed houses, then their houses should also be set alight by the police in order to counter-intimidate them.

MR LAMEY: And the use of explosive devices, would this also be in line with that discussion?

MR VIKTOR: Chairperson yes, it could be in line with the suggestion that was made.

MR LAMEY: In your statement - I would just like to get to the particular paragraph, in paragraph 11 you say that -

Did you at that stage at that meeting realise that such operations would indeed realise that?

MR VIKTOR: No, Chairperson.

MR LAMEY: Not at all?

MR VIKTOR: This meeting that had taken place there, instructions were not given there that these things had to take place now, these were suggestions that such action could be taken.

MR LAMEY: No, I am not saying that you had to go over to specific targets but what had taken place afterwards, was this emanating from, and to use your words, the suggestions which were made during those meetings?

MR VIKTOR: Chairperson, I received my instructions from Brig Jack Cronje, but this suggestion did place some pressure on us or on me, that we came to the realisation that here is pressure upon us that results have to be shown and that is a possibility that had to take place.

MR LAMEY: Because you are saying now that you realise that persons would be injured during the process if these operations were realised. Did you realise this during that meeting, that persons could be injured during this process if operations were realised?

MR VIKTOR: That is correct, Chairperson. When one works with petrol bombs there is a possibility that persons could be injured.

MR LAMEY: And explosive devices?

MR VIKTOR: If one uses explosive devices, then the possibility also exists.

CHAIRPERSON: Mr Lamey, not to just interrupt you, I do not follow your line of cross-examination. I suppose if I follow it the way I do, that your client who is a co-applicant, would also come with a version which is not consistent with what was discussed in that meeting, that for instance since these bombings of houses by the activists should be countered by intimidation of bombing their houses as well, that they must realise there's no a full-scale war? I hope that would be the line you are taking if I understand you correctly.

MR LAMEY: Yes Chairperson, I will get to that, Mr Coetser has a version of his recollection of that meeting, what he understood from that meeting. I just want to have an opportunity to establish from Mr Viktor, as far as he can recall.

MR MALAN: Mr Lamey, won't you go short and state that version to Mr Viktor for his comment please.

MR LAMEY: Very well. I shall not cross-examine on this aspect, I shall just put it to you that it was definitely Mr Coetser's impression during that meeting at Brig Viktor's office - as he states on page 52, paragraph 1.8 of the background to his amnesty application, that steps had to be taken to eliminate activists who caused problems, and Mr Coetser says what he recalls of the discussion and the import of it - he cannot recall everything that was said about it there, it was quite far back according to him, but that is what he recalls and that is the impression he left that office with.

MR VIKTOR: Chairperson, I cannot dispute what his impression was afterwards, but it was definitely not instructions to eliminate.

MR LAMEY: May this is an issue of comprehension and interpretation of the discussion, but what I would like to ask you is, if it was foreseen that explosive devices would be used, you mention persons being injured, would this have been unreasonable or farfetched that it was foreseeable during that discussion that persons during this process could be killed?

MR VIKTOR: Chairperson, I foresaw that when one foresees injuries one must foresee death also, so if he gained that impression then I cannot dispute Mr Coetser's impression.

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

CHAIRPERSON: Thank you, Mr Lamey. Mr Toefy?

CROSS-EXAMINATION BY MR TOEFY: Thank you, Mr Chairperson.

Mr Coetser, the - I want to start off ...(intervention)

CHAIRPERSON: No, no, he's Mr Viktor.

MR TOEFY: My apologies, Mr Viktor. Firstly, we take note that as you put in your statement - I'm not sure which addendum it is at this stage, but you made it clear that it's a painful experience for you to remember these things and we appreciate that you're here today in trying to assist us to uncover what had happened on that night. You also say in your statement that you've been privy to the application of Mr Coetser, that you've seen Mr Coetser's application and that except for the fact that he was not at the meeting at Wachthuis, I think it was, other than that you accept his version of what happened and of the incident, is that correct?

MR VISSER: Other qualifications were made, Chairperson, it's unfair to put the question in that way. There was also the qualification that he didn't think that they went there to eliminate Oupa Masuku. It's unfair to put the question that way.

CHAIRPERSON: Ja, I think you could hone on the question, it's too wide, if you had listened to the qualifications he made, Mr Toefy, in all fairness to him. Just try and hone your question a bit narrower so that he can follow what you're asking him.

MR TOEFY: Okay, then let me rephrase it. Are there any - or at least, what issues raised in Mr - how many firstly, how many issues raised in Mr Coetser's application do you not agree with?

MR VIKTOR: Chairperson, the fact that there was instruction at Wachthuis to eliminate, I do not agree with that, there was a suggestion to go over to counter-intimidation and to launch such actions, but with regard to the facts of that evening and the identity of the victim, I have to accept what Mr Coetser says.

MR TOEFY: So do I understand you correctly that there are two issues that you do not agree with, number one, that he was not at the meeting at Wachthuis and number two, that at Wachthuis the order was not given to eliminate people?

MR VIKTOR: Chairperson, with regard to the first one I've already conceded that it is possible that Mr Coetser was there, I cannot say absolutely no, he was not there. I have made that concession. My interpretation of what had happened that day was that here was a suggestion. If we have a look at why we did not regard it as an instruction, Brig Viktor was part of the Counter-Insurgency Unit and I was a Detective, at that stage I was a Detective, Mr Hechter and Mr Coetser were Security Police officers, there was no direct line of command from Counter-Insurgency to our people on the ground.

MR TOEFY: We'll accept that you say he may or may not have been there, is that what you're saying? And the second issue that you are not agreeing with is that the order was given that people should be eliminated, at Wachthuis. Is that point - are you contesting that point that the order was given at Wachthuis that people should be eliminated?

MR VIKTOR: Chairperson, no such instruction was given, but under cross-examination I have already said that if Mr Coetser understood it as an instruction to eliminate, I cannot argue with him as to what went on in his mind, but I did not regard it as an instruction to eliminate.

MR TOEFY: And you say you accept that what he says about the incident at the Masuku residence, you accept that as correct?

MR VIKTOR: Chairperson, I have no independent recollection thereof, that is why I have to depend on what Mr Coetser says of what happened that evening.

MR TOEFY: Mr Viktor, do you at least know who the target was that night?

MR VIKTOR: Chairperson, I believe that we would have known that evening, but that is only speculation. I cannot recall this specific incident with regard to what had happened there but because of confirmation we would have known which house we would have gone to and what target there would be there.

MR TOEFY: So you're saying you cannot confirm that Oupa Masuku was the victim, or at least the target?

MR VIKTOR: Chairperson, at this stage I cannot recall whether he was the target, I assume from Mr Coetser's statement that Mr Masuku was the target.

MR TOEFY: Mr Coetser also says something else about that incident that night, he says on what is page 56 of my bundle, he says in paragraph 10(b)(i) -

Now if I can take you back to your affidavit, paragraph 26, paragraph 26 where you say -

You accept that his version of what happened that night was correct, now his version was that Mr Masuku was to be eliminated and yet you say here now that it was actually to intimidate, how do you explain this seeming inconsistency?

MR VIKTOR: Chairperson, my ...(intervention)

CHAIRPERSON: How can it be an inconsistency? I suppose he would refer to his own evidence, but you are referring to somebody else's evidence and on paper which we haven't have viva voce evidence on, I don't regard that as an inconsistency. Unless it arises from what he has said this far, then we can have inconsistencies.

MR TOEFY: Mr Chair, it's just that I've understood that he's accepted in evidence now that the - in cross-examination, that the incidents, or at least that Mr Coetser's version of what happened that night and the way that it happened that night is correct. And that includes Mr Coetser's allegation that the aim was to eliminate, not to intimidate.

CHAIRPERSON: But the evidence he's given in regard to the elimination is that whilst they foresaw that people would be injured and even death resulting, but that was not the primary objective of placing the bomb at the Masuku residence. Even though they foresaw, but that was not their primary objective if I understood him correctly.

MR MALAN: Mr Toefy, if I may also ...(indistinct) come to your assistance, on page 54 in paragraph 2 of the bundle, that's that same statement just earlier on, Mr Coetser also states or he firstly states that the purpose of the action that evening would be to attack a black political activist's house in Atteridgeville. So I really think we should try and get to the bottom of it when we have the viva voce evidence on that side.

MR TOEFY: Certainly, I ...(intervention)

MR LAMEY: Chairperson, I don't know whether it will be appropriate for me to just come in here, I must just say that as far as the cross-examination might be taken from the affidavit of Mr Coetser in this regard, and as you've pointed out there is that paragraph 2 and then further on also that other aspect, I just want to say I've taken further instructions in this regard, Mr Coetser will in his evidence viva voce explain what he meant by that, as to what he understood. I did say earlier that it is not as if Mr Coetser was regarding to this specific target privy to the decision making and everything, it is a conglomerate of circumstantial aspects here that he deduced. Perhaps the wording, and that also I've discussed during the adjournment with him, the question of "bewus", that word "bewus" might have been an unfortunate word selection in this context, but he will explain that further in his evidence.

CHAIRPERSON: And if you read the application in its totality "he acted on instruction", and that does not say he was given those instructions personally by the one above, he had to act on what his immediate Commander was instructing him to do.

MR LAMEY: Yes, and it boils down to the foreseeability of somebody might be killed and knowledge somehow along the line that Oupa Masuku was the target. So as I say he will explain further in his viva voce evidence, Chairperson.

CHAIRPERSON: Ja, but if you follow what Mr Toefy is saying, he says Mr Viktor agreed that during the discussion actually elimination was mentioned and what Mr Viktor actually said, he said that was not done but if he formed those kind of impressions in his own mind, I cannot disagree with that because those are impressions related by him in his own mind, and then I say but if he says ...(no sound) it's not correct in respect of the evidence of Mr Viktor. That's what I'm saying merely. Not what you are going to come up with and the impressions he formulated, but you must look at the cross-examination, it's around that meeting, what was said in that meeting. So I'm merely correcting him that Mr Viktor doesn't say he agrees that the instruction was elimination, he says but if Mr Coetser formulated that in his own mind, he cannot dispute what happened in his mind. That's basically what he was saying. Do you follow me? And you, Mr Toefy?

MR TOEFY: Yes, I do, Mr Chairperson.

MR MALAN: I wonder Mr Toefy, just before you proceed. Mr Lamey, you must please assist me, we now have two contradictory impressions as to what Mr Coetser's evidence will be. You have undertaken cross-examination amongst others about the meeting but you did not put his version. It would make it easier for everyone else and in particular for Mr Toefy, if he knows what it is.

It does not assist us in any way if he says that later he shall explain what he meant, you have consulted with him and the specific question is, according to your client's version they went out that evening to Oupa Masuku's house with the purpose of eliminating him. Is that the version or did they just go there to place a bomb because he was busying himself with certain activities which they wanted to stop? Or is there another version? But you can put it to him.

MR LAMEY: Chairperson, it is not that easy. I shall explain to you. With regard to paragraph 1.8 on page 52, I have put it to the applicant with regard to the discussion ...(intervention)

MR MALAN: No, we are not speaking of that, we are referring to going out that evening to Atteridgeville, that is the only thing. What was the purpose, because there are two versions, the one version is that the purpose was in order to launch an attack on his house and then he continues under political objective -

... which he did not.

But one of the two cannot be correct.

MR LAMEY: Chairperson, Mr Hechter testified that they foresaw the possibility that someone could be killed during the process - may I just explain. That aspect was not disputed with Mr Hechter because my instructions in the more broader context in this regard, is that the possibility was foreseen by my client that someone could be killed during this process. And then during the drawing up of his amnesty application he kept the discussion in mind ...(intervention)

MR MALAN: I'm sorry that I am interrupting you again. But then your version according to what you have said now is that they went that evening in order to kill Masuku, that was the objective.

MR LAMEY: That is what I'm trying to say, that in his viva voce evidence he shall give further explanation with regard to the situation. And as I have said, initially he was not privy to a discussion that what specifically the purpose of the explosion would be that evening. In other words, in essence what is stated here, and these are my instructions following on further instructions, this is based on an inference that he drew from the totality.

MR MALAN: Mr Toefy, then I think it's clear that the version also of Mr Coetser is that they went for a bombing and that they did foresee the possibility of someone being injured or killed, but that the purpose was not specifically go out there an eliminate Mr Masuku. You may proceed. I think that clears up a lot of ...(indistinct)

MR TOEFY: Yes, it does. Just for the record, it's Toefy, T-o-e-f-y.

Mr Viktor, you said earlier now in cross-examination that you accept that the target was Oupa Masuku ...(intervention)

MR VISSER: Mr Chairman, I don't know where my learned friend gets this from, really, that's the last thing he said.

MR MALAN: Sorry no, with respect Mr Visser, the suggestion is not that the target was Oupa Masuku to be ...(end of side A of tape)

MR TOEFY: And then therefore you also accept, is the question, do you accept that Esther Masuku was not the target that night? Let me rephrase it to make it more clear. The aim was to intimidate Oupa Masuku, was the aim also to intimidate Esther Masuku?

MR VIKTOR: Chairperson, I would have to depend on what Mr Coetser says as to who the target was that evening, I have no personal recollection of who was the primary target and who was the secondary target and so forth.

MR TOEFY: Did you have any personal information at that stage on Esther Masuku?

CHAIRPERSON: Before you do, he said -

Am I getting - is that what you said to me?

MR VIKTOR: Yes, Chairperson.

MR TOEFY: Ordinarily then, would - the aim was to intimidate but you foresaw that people may be killed, was it part of the forethought at least or what was within the purview of your actions, that an innocent person may also be killed in these actions as a result thereof?

MR VIKTOR: Chairperson, in war there are always innocent persons who are struck by the crossfire, and if I say that I foresaw that persons would be injured or killed, then it has to include persons who today would be regarded as innocent.

MR TOEFY: Mr Viktor, I'm going to pose the same question to you as I did to Mr Hechter, despite you being of the view that it was "'n oorlog situasie", was the situation so bad that you would embark upon actions that would result in the death of innocent people?

MR VIKTOR: Chairperson, I am of the opinion that the circumstances were indeed of such a nature as is being proposed now.

MR TOEFY: So therefore the death of Esther Masuku, not being the target of the intimidation, was completely in line with what you understood your duty to be.

MR VIKTOR: That's correct, Chairperson.

MR TOEFY: And you say it was completely reasonable.

MR VIKTOR: Chairperson, it was reasonable to take these actions, whether it be petrol bombs in this regard or a manufactured explosive device. And as I have already said, when one works with these things there is a possibility that persons could injured and/or killed.

MR TOEFY: Now as you've heard earlier by Mr Hechter, he was in fact the one that decided to go ahead and do the bombing, it wasn't a specific order as you allege in your papers. However it was explained that at the time you did think there was a specific order.

MR VIKTOR: Chairperson, I have already given evidence about this. The instructions came personally from Brig Jack Cronje or from him via Capt Hechter. I accepted that this instruction had been approved in this light, and once again, the circumstances which reigned before this as to who gave what instructions, I am not able to say here with conviction. But that is how the structure worked.

MR MALAN: May I just ask you, in the command structure during these attacks, were you under the command of Hechter, could he give you instructions that you had to follow?

MR VIKTOR: Chairperson, because I was under the impression and of the ...(intervention)

MR MALAN: Would you not like to answer the question, we did hear. I just want to know from you, in terms of the hierarchy, were you under the command of Hechter?

MR VIKTOR: Chairperson, no.

MR MALAN: Thank you.

MR TOEFY: However you still acted on his instructions on this particular night.

MR MALAN: Mr Toefy, with respect, I asked this question specifically in line of his previous answer, against the background of his previous answer where he said that he was under the impression that the order, or he is of the impression that the order would either have been directly from Cronje or relayed by Hechter, originating from Cronje. That was the reason for my question, to make sure whether Hechter could give him any instructions because he's never claimed that he operated under what he perceived to be the instructions of Hechter.

MR TOEFY: Thank you, Mr Malan.

You have mentioned in your evidence-in-chief that there are specifically two incidents or two happenings that night that you remember and that is the barking of dogs and also that someone was watching you through a window. Now the barking of the dogs, can you remember -you said that the dogs barked while you were going to, or are you saying that the dogs were barking when you were coming back from placing the bomb on the stoep?

MR VIKTOR: Chairperson, in both instances.

MR TOEFY: So you remember both before - on your way to the stoep you remember the dogs barking and then on your way from the stoep you remember the dogs barking, but you don't remember what happened on the stoep?

MR VIKTOR: Chairperson, I can recall an incident in Atteridgeville where the dogs were barking. Following on what I have seen in the documents that were made available by the research team, I assumed that there is a reasonable possibility that this was the place to which we referred to because Mr Masuku also referred to dogs. My evidence is that I do not have an independent recollection of this specific incident, it is an inference that I have drawn that the dogs barked, or the dogs barked that is a fact. It is an inference that I drew that this was during this incident.

MR TOEFY: So you don't know for sure whether this memory of dogs barking is the memory of that particular night and that incident, you don't know that?

MR VIKTOR: No, Chairperson.

MR TOEFY: Mr Viktor, I want to put a proposition to you that you took part in an act which resulted in the death of an innocent bystander that night, the death of someone who wasn't the target of whatever action you took, with the intimidation action, and that the gravity and extent of the act that you partook in heavily outweighs the aim of wanting to intimidate Mr Oupa Masuku into ceasing his activities as an activist. What do you say to that proposition?

MR VIKTOR: Chairperson, the purpose was to attack the house in order to intimidate persons and I am of the opinion that the action was not out of proportion.

MR TOEFY: Mr Viktor, if I can move on to what your views are on the success of your - in achieving the aim, you say in your application that you feel it was successful, that the actions that you took were successful, is that so in this instance as well?

MR VIKTOR: Chairperson, I cannot recall this incident specifically, I am of the opinion that our actions in general did have an effect, it was successful, I believe that we protected lives and we prevented serious injury to persons and we prevented damage to property. So I believe we were successful.

MR TOEFY: So in this particular incident, even though you say you can't really remember, you are just accepting that this was successful in the broader scheme of things? That in other words, Mr Oupa Masuku probably stopped his actions or his activities in the struggle.

MR VIKTOR: Chairperson, that is an inference I can draw. His place was not attacked again and he was not killed, so I can assume that he stopped his conduct after this incident.

MR TOEFY: Do you know if there was any attempt at eliminating him?

MR VIKTOR: Chairperson no, I do not know.

MR TOEFY: So there may have been an attempt to eliminate him but it was unsuccessful?

CHAIRPERSON: ...(inaudible)

MR VIKTOR: I'll withdraw that question.

At this stage I have no further questions for Mr Viktor.

CHAIRPERSON: Thank you, Mr Toefy. Mr Steenkamp, any questions for Mr Viktor?

CROSS-EXAMINATION BY ADV STEENKAMP: Thank you, Honourable Chairman.

Mr Viktor, I have just one or two questions for you. The post-mortem inquest speaks of an explosion and Mr Dos Santos refers to a manufactured explosive device, do you know what type of device was used at the explosion at the house?

MR VIKTOR: Chairperson, the explosive devices that we used were the standard ones which were manufactured by Mr Hechter. So I assume that it would be the same in this instance.

ADV STEENKAMP: I would just like to ask you, during 1986, did you have broader powers under the State of Emergency during 1986? You were able to detain persons and detain them for 90 days and thereafter again for 90 days if this person was a threat to the society there. Do you agree with me?

MR VIKTOR: Chairperson, I was not part of security per se where we applied this legislation, I cannot answer Mr Steenkamp's question in that regard.

ADV STEENKAMP: The only thing I would like to ask of you which I find it a bit difficult to understand, did you - according to Mr Hechter's evidence there was complete information with regard to the Masukus, there was a file about Mr Masuku.

MR MALAN: Mr Steenkamp, he made a construction, he's has no ...

ADV STEENKAMP: If one at least looks at the information which has been collected and newspaper reports, and I also think that Mr Hechter said that he could not recall anymore, but he was of the opinion that Mr Masuku, there was an application to remove him because nothing worked.

CHAIRPERSON: No, no, no, nothing like that is before us, Mr Steenkamp.

ADV STEENKAMP: Maybe I should rephrase the question. The question is, was there no other option open to you to arrest the Masukus or Mr Masuku or any of the Masukus, in order to prosecute them?

MR VIKTOR: Chairperson, it was not my decision, Brig Jack Cronje told us to intimidate him. My personal recollection of the circumstances which reigned was that normal criminal procedures did not help, but one had many accused and there were no witnesses because the witnesses were intimidated or killed. We have to bear in mind that there was no witness protection programme during those years, so every witness was left to his own devices, he was on his own.

ADV STEENKAMP: Was that the reason why the Masuku house was attacked, because you thought there could not be any successful prosecution?

MR VIKTOR: Chairperson, in general the houses were attacked, for various reasons, because no successful prosecution could result and of fresh information which we had obtained that this person gave instruction that certain other houses be attacked or set alight. Court directed dockets would have had no effect at all.

ADV STEENKAMP: We do see that a Court directed dossier was followed, but ...(intervention)

MR MALAN: What do you refer to, Mr Steenkamp?

ADV STEENKAMP: Chairperson, I refer to the docket with regard to the explosion.

MR MALAN: But that was not a Court directed dossier, but at the explosion at his house.

ADV STEENKAMP: Yes, I refer to that dossier, but I withdrew the question.

MR MALAN: But then must chose your words properly.

ADV STEENKAMP: The last question which I'd like to put is that after the incident did you report anything that happened to any person that evening?

MR VIKTOR: Chairperson, we never had any meeting in retrospect of these things, but I think the following morning we did report to Brig Jack Cronje that the operation had been completed successfully.

ADV STEENKAMP: Thank you, Mr Chairman.

CHAIRPERSON: Thank you, Mr Steenkamp. Mr Visser, we'll adopt the procedure we adopted with Mr Roux, do you have any objection to that?

MR VISSER: No objection, Chairperson.

CHAIRPERSON: Thank you. Adv Sandi, any questions?

ADV SANDI: Yes, thank you, Chair, just one thing not to the witness. Mr Toefy, just help me here, at page 98 of the record where there's a newspaper cutting, the Sowetan of the 6th of March 1986, the second paragraph of the article where it says - it gives the names of the people who were affected by this bomb attack and it says they were all political activists, is that a fact or what? What is the position?

MR TOEFY: My instructions Mr Sandi, are that Oupa Masuku was in fact the only activist in the house.

ADV SANDI: Thank you. Thank you, Chair.

CHAIRPERSON: Mr Malan.

MR MALAN: I have no questions thank you, Chair.

CHAIRPERSON: Any re-examination, Mr Visser?

MR VISSER: None thank you, Mr Chairperson.

MR VISSER: May the witness be excused?

CHAIRPERSON: Certainly. Thank you very much, Mr Viktor, you are excused.

CHAIRPERSON: I suppose Mr Lamey, you are next with your applicant.

MR LAMEY: Yes, Chairperson. Are we going to start now?

CHAIRPERSON: Yes, immediately.

MR LAMEY: Chairperson, I was requested just to move over to that table there by one of the logistics people.

CHAIRPERSON: Ja, you may move, certainly.

MR TOEFY: Mr Chair, I'm apologise for cutting in, but is there - I know we are really running late, but is there a possibility - I'm from Johannesburg, I need to make arrangements with my wife, she'll be waiting for me at work. If we can have a five minute pit-stop I'd really appreciate that and then we can continue.

CHAIRPERSON: We'll accommodate Mr Toefy to communicate with his wife. We'll have a five minutes adjournment.

MR TOEFY: Thank you very much.

CHAIRPERSON: Are you comfortably placed now, Mr Lamey?

MR LAMEY: Thank you, Chair.

CHAIRPERSON: Have you tested if both mikes would work at the same time?

MR LAMEY: Yes, thank you.

-------------------------------------------------------------------------- CHAIRPERSON: Thank you, I'll ask Mr Malan to administer the oath.

JOSEPHUS DANIEL LOURENS COETSER: (sworn states)

CHAIRPERSON: You may proceed, Mr Lamey.

MR LAMEY: Chairperson, before I commence with the evidence, you will see that the applicant's application is embodied from page 45, or at least the extract of his application which is of bearing to this application, is up to page 57. You will see that it has been signed by the applicant on the 12th of February 1998. As with other applicants and their applications in which our firm has received instructions, the applicants were referred to us via the office of the Attorney-General and it is also my instruction that there was an initial application which the applicant undersigned. At the moment I do not have that document in my possession, I can bring it along tomorrow morning if you so desire. The understanding was that the initial application, although it lacked the details and the particulars, would be accepted with the understanding that it could be supplemented at a later date. Therefore what you have before you is indeed the supplementary statement of Mr Coetser with regard to all the incidents for which he has applied for amnesty.

CHAIRPERSON: Is it going to - this further particulars which appear on this application, going to enable you to be able to lead the applicant?

MR LAMEY: Yes no, this we regard, this supplementary as his recollection at the time of signing it of the events, Chairperson, and he will further orally then explain further.

MR MALAN: Mr Chairman, you may know that in many of these instances the applicant simply applied saying as per the statement in possession of the Attorney-General, and then this followed through but in the administration and at our office we accepted this as the application which is before us. It has it's number and it's validly before the Committee, in terms at least of the decision of the office, and as far as I'm concerned we can proceed with this and dispense with the original which is in our possession.

CHAIRPERSON: Thank you. You can accept that we do have the original which as scanty information in our possession. You may proceed.

EXAMINATION BY MR LAMEY: Thank you, Chairperson.

Mr Coetser, I would like to go immediately to page 45, 46 and 47, which is your application form, and this has been signed by you before a Commissioner of Oaths, and with regard to various questions such as 9 to 10 and 11 and further on, you refer to Annexure A of which an extract has been made from your original application which is contained in the bundle from page 51 and further.

MR COETSER: That is correct.

MR LAMEY: Very well. Just with regard to the following, you confirm the correctness of the information with regard to your service in the South African Police, as embodied on page 46 under paragraph 8(b).

MR COETSER: Yes, that is correct.

MR LAMEY: Just to supplement that, is it also correct that you are no longer in service to the South African Police, and that you retired due to medical problems?

MR COETSER: Yes, that is correct.

MR LAMEY: And if necessary, if it is relevant at a later stage we can discuss this, but you are experiencing medical problems, is that correct?

MR COETSER: Yes, that is correct.

MR LAMEY: And then can we just come to your background which has been set out from page 51 to 52. You have had the opportunity to study this once again and is it correct that you confirm what is embodied on those pages?

MR COETSER: Yes, that is correct.

MR LAMEY: Then there is one aspect which has been introduced during this hearing pertaining to the meeting that you deal with in paragraph 1.7 and 1.8 on page 52, where you state that everything began on a particular day early in 1986, when Capt Hechter informed you that you were to go to the Security Head Office where Brig Viktor wanted to see you.

MR COETSER: Yes, that is correct.

MR LAMEY: And at that stage you were a member of the B Section of the Security Branch of Northern Transvaal.

MR COETSER: That is correct.

MR LAMEY: Is it also correct that at that time Capt Hechter told you that he was a Lieutenant? Do you accept this?

MR COETSER: Yes, I accept this.

MR LAMEY: And later he became a Captain.

MR COETSER: Yes, that is correct.

MR LAMEY: You worked in the same section of the Security Branch as he, the B Section and in the rank order you fell under his command.

MR COETSER: That is correct.

MR LAMEY: The Commander of that section was Col Loots, is that correct? Is the rank correct?

MR COETSER: Yes, it is Col Loots.

MR LAMEY: And then there was also Capt van Jaarsveld.

MR COETSER: Yes, that is correct, at that stage he was a Lieutenant however.

MR LAMEY: And your rank at that stage was Sergeant.

MR COETSER: That is correct.

MR LAMEY: In terms of your position, particularly in regard to 1986, you state that you also had informers and so forth that you were handling, was it also your impression at that stage that there was a revolutionary climate in South Africa, as well as a climate of unrest which was at the order of the day in the areas for which the Northern Transvaal Security Branch was responsible?

MR COETSER: That is correct.

MR LAMEY: Then if we can return to this meeting at the Security Head Office, could you explain to the Committee what your recollection was pertaining to the discussion during that meeting in Brig Viktor's office.

MR COETSER: The Brigadier informed us that we had to eliminate black political activists. That was my inference from the discussion.

MR MALAN: Please be specific, did you say that he told you, but then you say that you inferred? Those are two different statements.

MR COETSER: From the discussion I inferred that that was what it boiled down to.

MR LAMEY: Very well. During the period of February to March you were also involved in certain incidents during which petrol bombs were launched on the homes of activists and you were also involved in an incident in Ekangala, is that correct?

MR COETSER: That is correct.

MR LAMEY: And the incident at Ekangala, is it correct that an explosive device was also used during this incident?

MR COETSER: That is correct.

MR LAMEY: And these are the only four incidents in which you were involved, unlawful incidents for which you have also requested amnesty.

MR COETSER: That is correct.

MR LAMEY: The one that we are dealing with currently is the death of Esther Masuku and then also the attack on the home of Oupa Masuku, was that the last incident in which you were involved?

MR COETSER: Yes, it was the last incident.

MR LAMEY: Can you recall before this event occurred, from whom you received the instruction and how long after the incident or how long before the incident did the instruction come?

MR COETSER: Could you repeat that please.

MR LAMEY: With regard to this incident specifically, the attack on the home of the Masukus, did you receive any instruction from anybody to become involved?

MR COETSER: Yes, Lieut Hechter.

MR LAMEY: Can you recall how long before the incident took place you became involved?

MR COETSER: We were instructed on the day to meet at the office that evening, I cannot say precisely what time, but the incident took place at night.

MR LAMEY: And what were you supposed to do?

MR COETSER: I drove the minibus.

MR LAMEY: And when you departed, can you recall whether at that stage you knew where you were going and what you were supposed to do?

MR COETSER: I cannot recall precisely whether or not I knew, but Lieut Hechter informed me that we had to drive in the direction of Atteridgeville.

MR LAMEY: And you then drove the minibus in that direction.

MR COETSER: Yes, that is correct.

MR LAMEY: Tell the Committee, from that point onwards what you can recall, what else happened.

MR COETSER: We moved into Atteridgeville, Lieut Hechter explained to me which route to take and where I was supposed to stop ...(intervention)

MR LAMEY: May I ask you, were you aware as you were driving that there was some or other device that accompanied you?

MR COETSER: Yes, there was a manufactured explosive device in the back of the vehicle.

We stopped and at this point Lieut Hechter and the then Maj Viktor, disembarked from the vehicle. Lieut Hechter took the explosive device and went to the back of the vehicle among the houses.

MR LAMEY: What did you do?

MR COETSER: I remained in the vehicle and waited for them. A few moments later the two came running up to the minibus, they climbed back in and we departed. There was a tremendous blow and there was a white flash of light behind the vehicle. We returned to the Security Branch Northern Transvaal and from that point onwards we all went home.

MR LAMEY: And subsequently were there any aspects that came to your knowledge?

MR COETSER: That morning we returned to work at the usual time, 7 o'clock for seven thirty, once we arrived at the office we resumed our normal duties. I heard, I think it was Col Loots my immediate Commander or Lieut Hechter, told me that a black woman had died. I was very unhappy about the matter.

MR LAMEY: Did her name come to your knowledge?

MR COETSER: No, I did not know her name.

MR LAMEY: Not at that stage?

MR COETSER: No.

MR LAMEY: Very well.

MR COETSER: I went down to Brig Cronje, the overall Commander of the Northern Transvaal Security Branch, and I asked him whether or not I could withdraw from these activities and return to my normal duties and he gave me the permission to do so.

CHAIRPERSON: And when you drove to Atteridgeville, did you know which house was targeted? Did you bear information?

MR COETSER: Could you repeat that please, Chairperson.

CHAIRPERSON: I say when you were instructed by Hechter and directed to Atteridgeville and where you stopped and waited for them to come back, did you know the purpose of that visitation to Atteridgeville, which house was targeted?

MR COETSER: At that stage I cannot recall whether I found out subsequently or whether I knew prior to the incident, but it emerged somewhere that it was Oupa Masuku's house.

CHAIRPERSON: Thank you, you may continue Mr Lamey.

MR LAMEY: Thank you, Chairperson.

Very well. And did you then go to Brig Cronje the next day?

MR COETSER: That is correct.

MR LAMEY: And can you recall what you told him?

MR COETSER: I simply requested him, I told him "please, this isn't my sort of work, could I return to my normal security duties"?

MR LAMEY: Why did you put in this request?

MR COETSER: I did not join the South African Police to do this sort of work, that isn't my sort of work Mr Chairperson.

MR LAMEY: Very well. And at that stage did you think that the woman who had died during the explosion was innocent?

MR COETSER: I assumed so, Chairperson, because in the black community the mother of the family was usually the breadwinner, the one who held the family together and I did not associate her with a political movement or organisation or anything unlawful.

MR LAMEY: You have already responded to a question put by the Chairperson, that you cannot recall when but the name of Oupa Masuku came forward, you cannot recall whether this was prior to the incident or subsequent to the incident. You mention this in paragraph 5 of your written affidavit.

MR COETSER: Yes, I have stated this, but I cannot recall the precise time when they told me that it was his house.

MR LAMEY: Is it also correct that you also hoped that Mr Hechter and Mr Viktor would be able to cast more light on the matter, but that it appears that their recollection about his is also very vague? You also mention this in your amnesty application pertaining to the precise information and so forth regarding Oupa Masuku the activist.

MR COETSER: I had hoped that they would have been able to cast more light on what exactly took place at that stage.

MR LAMEY: Very well. May I then ask you whether or not in the course of your work before you became involved in the incident, had ever heard the name of Oupa Masuku and what he was involved with?

MR COETSER: I had heard of Oupa Masuku, I knew that he was involved with some or other political organisation or political activities, but I didn't know precisely what because I never worked with his file.

MR LAMEY: And when you received the instruction did you accept that Capt Hechter or someone else would have possessed all the necessary information regarding Oupa Masuku which then led to this incident?

MR COETSER: At that stage I believed that Lieut Hechter and other officers would most probably have conducted the necessary research regarding Oupa Masuku, in order to go over to this type of deed.

MR LAMEY: Very well. And when did you determine that the person who had died, this woman, was indeed Esther Masuku?

MR COETSER: In 1996 after Maj de Lange from the A-G offices contacted me.

MR LAMEY: Did you understand either before or after the time, that Oupa Masuku was the target or would be the target of this operation?

MR COETSER: Yes, that is correct, Chairperson.

MR LAMEY: You do not have any personal knowledge regarding the instruction which Hechter received before this operation was launched?

MR COETSER: That is correct, Chairperson.

MR LAMEY: Is it also correct, and I fixed your attention on this during the adjournment with regard to a paragraph on page 56 where you state that you were only aware that the action would be taken to eliminate Oupa Masuku. As you have already stated you did not have any personal knowledge of what the specific operation on that evening involved.

MR COETSER: No, I didn't know.

MR LAMEY: But you knew that an explosive device would be used and you foresaw that it would be used at a house.

MR COETSER: Yes, that is correct.

MR LAMEY: Is it also correct that you foresaw that a person or persons could be killed?

MR COETSER: Yes, that is correct.

MR LAMEY: May I just ask you this, when you compiled your amnesty application you stated that you were aware that the objective of the operation would be to eliminate Oupa Masuku who was a prominent activist, is it correct that you knew at least at that stage that Oupa Masuku was an activist and a target?

MR COETSER: That is correct.

MR MALAN: Mr Lamey, that is very unclear, what kind of target was he, a target for elimination?

MR LAMEY: I will clarify that shortly.

MR MALAN: Well then please do this directly, please don't take us around the bend.

MR LAMEY: I will.

That which you have stated here, how would you describe it today? Did you indeed have personal knowledge that the objective was to eliminate him, or how would you describe it? Is that an inference that you drew or is it something that you foresaw at that stage perhaps?

MR COETSER: I would say that at the time of my submission of this application I was under tremendous pressure and as a result of a condition of illness I may have expressed myself incorrectly. As it was clarified earlier, the objective of the attack on the home of Oupa Masuku was to do so by means of a manufactured explosive device.

MR MALAN: I beg your pardon, Mr Lamey.

Can you recall, at the time of the compilation of this application, whether or not you were in possession of your original statement that you gave to the Attorney-General?

MR COETSER: No, I don't believe so.

MR MALAN: Can you recall whether or not this statement was compiled by whoever took it down from you at the legal representatives and were you instructed regarding this statement?

MR COETSER: Yes, before I signed the document.

MR MALAN: And was any interview conducted with you before your affidavit was compiled, or was there an initial statement when you arrived there?

MR COETSER: I think there was an initial draft statement.

MR MALAN: Is a copy of that affidavit available? This is the same path that we have walked with previous situations.

MR LAMEY: I do not recall that I have any signed affidavit by Mr Coetser from the A-G's office with regard to this incident, I will have to go back and have a look. At times we have had a draft version, sometimes we have a computer printout thereof. I will have to return to my office to find it. Unfortunately I do not have it here with me.

MR MALAN: Never mind, we won't take it any further than that.

MR LAMEY: Mr Coetser, you indeed foresaw that when your amnesty application was compiled you knew that Oupa Masuku was the focal point of the operation.

MR COETSER: Is that when I compiled my application?

MR LAMEY: Yes, his activities.

MR COETSER: Maj de Lange from the A-G's office informed me that Oupa Masuku was the focal point of this.

MR LAMEY: Then may I ask you, in paragraph 5 of your statement you say -

What I want to know is whether or not at that stage in 1986, whether it was the evening before the incident or subsequent to the incident, what is your recollection?

MR COETSER: I cannot recall whether or not it was before or after.

MR LAMEY: But you did not come to hear of this for the first time in Maj de Lange's office?

MR COETSER: No, I knew about this prior to that meeting.

MR LAMEY: Due to the fact that you foresaw that somebody could be killed due to the explosive device and given the idea that Masuku was the prominent focal point, did you infer from that that he had to be eliminated, is that why you have stated it as such in your application?

MR COETSER: Yes, that is correct.

MR MALAN: Mr Lamey, he has just stated that he doesn't know why he said it and that he was under pressure and now you have stated something contradictory to this and he has confirmed it, could you please clarify your position?

MR LAMEY: As it pleases you, I will do so.

If you could just look at this paragraph, the choice of words there about being aware, how would you describe that choice of words?

MR COETSER: I would describe it as incorrect, Chairperson.

MR LAMEY: And is it correct that ...(end of side B of tape) ... choice of words was not immediately noticed by you when you signed your affidavit for the purposes of your amnesty application.

MR COETSER: Yes, that is correct.

MR MALAN: I beg your pardon, Mr Lamey, just for my information - Mr Coetser, what I have inferred from your evidence is that what you can really recall, what you are certain of in your evidence before us, is that you received an order during the course of the day from Hechter, to arrive at the office that evening.

MR COETSER: That is correct.

MR MALAN: Hechter gave you the order to drive the minibus and he gave you directions according to the route and where you were to stop, and you knew that there was a bomb in the car.

MR COETSER: That is correct.

MR MALAN: And you knew that an attack would be launched with this bomb on a house in the vicinity of the place where you stopped.

MR COETSER: That is correct.

MR MALAN: Hechter and Viktor went in and returned momentarily or very swiftly thereafter, jumped back into the kombi, you drove away, you heard a blow and saw a white flash of light in the night sky.

MR COETSER: That is correct.

MR MALAN: Then you found out that Esther had died.

MR COETSER: That is correct.

MR MALAN: And on the basis thereof ...(intervention)

MR COETSER: I found out subsequently that a black woman had died.

MR MALAN: Very well. And on the basis thereof you requested to be withdrawn from these responsibilities and to be returned to your former duties.

MR COETSER: That is correct.

MR MALAN: You did not testify to us that Hechter told you who you were going to be targeting that evening, or did Hechter tell you?

MR COETSER: I cannot recall.

MR MALAN: You cannot recall. It wasn't said to you that the man would be eliminated or that the house would be bombed or that the man would be present or anything like that, you weren't given any information, you were only the driver of the vehicle.

MR COETSER: Yes.

MR MALAN: So what else do you know, without going to the affidavit, emanating from your own knowledge of this incident?

MR COETSER: Nothing more, Chairperson.

MR MALAN: Mr Lamey, you may continue.

MR LAMEY: Thank you, Chairperson.

Then could you look at page 57, this is the section pertaining to the order or approval. Upon the question of whether or not you enjoyed approval for this order, your answer is "yes", and then you state -

You do not say that he gave the orders specifically for this operation, you are just relaying it back to that original discussion.

MR COETSER: That is correct.

MR LAMEY: And then you state that with regard to the execution of the incident, your orders came from Capt Hechter.

MR COETSER: That is correct.

MR LAMEY: And then you also accept that Brig Cronje who was the overall Commander of the Security Branch, Northern Transvaal, also knew about the incident and that it took place with his knowledge and approval.

MR COETSER: That is correct.

MR LAMEY: May I then ask you whether at any stage that you know of, you or Hechter or anybody else were reprimanded by somebody of a higher rank, due to the fact that somebody was killed during this incident?

MR COETSER: I don't know about anything like that.

MR MALAN: Mr Lamey, is there any other relevant matter that you must lead or is that the end of the evidence-in-chief?

MR LAMEY: That was the final matter or relevance. Thank you, Chairperson.

CHAIRPERSON: Thank you, Mr Lamey. Mr Roux, any cross-examination?

CROSS-EXAMINATION BY MR ROUX: There is only one aspect, Chairperson.

Mr Coetser, upon a question put by Mr Malan, you have conceded that with the exception of this specific incident and the fact that you were instructed to drive the minibus vehicle, you don't really possess any other information. In other words, and this is my question by inference, that you did not have any information pertaining to Oupa Masuku and Esther Masuku's involvement in the black liberation movements. Is that correct?

MR COETSER: That is correct with regard to Esther, that I had heard of Oupa Masuku previously, I cannot say which specific political organisation he belonged to.

MR ROUX: So then I can also infer, paragraph 7, page 54, where you say -

... that this use of the word "innocent" is your subjective inference when subsequently you heard that a black person had died.

MR COETSER: Yes, that is correct.

MR ROUX: Thank you, Chairperson, nothing further.

CHAIRPERSON: Thank you, Mr Roux. Mr Visser.

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

CHAIRPERSON: Mr Toefy?

CROSS-EXAMINATION BY MR TOEFY: I do have a few, yes. Thank you, Mr Chairperson.

Mr Coetser, you say in your application that this was a real turning point for you and this incident caused you to go to Brig Cronje and ask that you be relieved from these duties.

MR COETSER: Yes, that is correct.

MR TOEFY: Can you - you also said in your evidence-in-chief that what you told Brig Cronje at that stage was that you - or at least, can you please refresh my memory, what exactly did you tell Brig Cronje, as to why you want to be relieved from your duties?

MR MALAN: His evidence was that he said to Cronje that this was not his type of work and he wanted to return to his normal security duties.

MR TOEFY: Was that all that you said?

MR COETSER: Yes, that is correct, Chairperson.

MR TOEFY: So you didn't have to motivate any further in that the death of someone who was not the target you found unacceptable?

MR COETSER: No, nothing, the Brigadier just accepted it as that and sent me back to my regular duties.

MR TOEFY: Can you remember how long after the incident this meeting took place?

MR COETSER: The next day.

MR TOEFY: The very next day?

MR COETSER: Yes, that is correct.

MR TOEFY: Can I then ask you, you say that you accepted that people might have been killed as a result of your actions.

MR COETSER: That is correct.

MR TOEFY: Now if you accepted it then, then why did you find it unacceptable when somebody in fact died as a result of your actions?

MR COETSER: Could you repeat that please.

MR TOEFY: You accepted that someone might die as a result of your actions, is that correct?

MR COETSER: Yes, that is correct.

MR TOEFY: Then you partake in this particular action which results in the death of someone, why then do you find it unacceptable afterwards, when beforehand you partook willingly in this exercise, knowing full well that someone might die.

MR COETSER: I was a Sergeant during the incident, I had a Lieutenant above me, a Major and a Brigadier as well, and I had tremendous respect for all three these persons, if they gave an order I would carry it out. It was my dream to be in the Security Police, due to the fact that the Security Police was regarded as the cream of the South African Police staff, and I was afraid that if I decided beforehand that I wasn't willing to participate they would chase me back to the uniform branch or somewhere out there.

After the incident I decided that I wouldn't be continuing with this work and that they could chase me away if they wanted to and I asked the Brigadier to excuse me, that this wasn't my sort of work, that I did not become a member of the SAP to kill people, I was there to protect them.

MR TOEFY: Can I then ask you, Mr Coetser, had Oupa Masuku in fact died and not Esther Masuku, would you have found it equally unacceptable?

MR COETSER: Yes, exactly the same thing would have happened.

MR TOEFY: You would have applied or at least ...(intervention)

MR COETSER: I would have left, Chairperson, I would not have continued with that sort of work.

MR TOEFY: Thank you. Mr Coetser, are you remorseful for your participation in this act?

MR COETSER: Will you repeat that please.

MR TOEFY: Are you remorseful for your participation in this act?

MR COETSER: Yes, that is correct, for the last 14 years I have not slept through one single night.

MR TOEFY: Sir, then let me ask the question, in retrospect, was it a reasonable act to participate in? Bearing in mind the political motives, bearing in mind the situation at the time, do you think it was reasonable act to in fact perpetrate?

MR COETSER: I cannot speak on behalf of others, only for myself. It was not acceptable to me.

MR TOEFY: Are you saying that some other act could have been embarked upon in order to achieve the aims that were being sought?

MR COETSER: I didn't know what to suggest at that stage, they also wouldn't have listened to me, I was a Sergeant, not an officer.

MR TOEFY: I thank you, Mr Coetser. I have no further questions.

CHAIRPERSON: Thank you, Mr Toefy. Mr Steenkamp?

ADV STEENKAMP: No questions, thank you Honourable Chairperson.

CHAIRPERSON: Mr Lamey, would you accept that we follow the procedure we have followed, that you would re-examine after all questions have been asked, even by the Panel? Adv Sandi?

ADV SANDI: Thank you, Chair, I don't have a question to ask.

CHAIRPERSON: Thank you, Mr Sandi. Mr Malan?

MR MALAN: No questions, thank you.

CHAIRPERSON: Any re-examination, Mr Lamey?

RE-EXAMINATION BY MR LAMEY: Mr Coetser, from the response that you provided to the question which was put by the legal representative of the families as to whether or not you thought that your action was reasonable, you said that you had orders to carry out and you said that the consideration of the reason behind this action was left to your Commanders and that stage.

MR COETSER: I cannot recall whether or not I even thought about it.

MR LAMEY: Very well, just another final aspect. The other incidents in which you were involved before this one, did they also bother you, and was this particular incident the turning point at which you couldn't bear it any longer?

MR COETSER: Every incident bothered me, but particularly the last one, it was the final straw, I didn't want to continue with this any longer.

MR MALAN: Now that Mr Lamey has opened this point, I don't wish to follow on cross-examination, but with your permission, was any person killed in any of the other three incidents, that you were aware of?

MR COETSER: Not that I was aware of, Chairperson.

MR MALAN: Thank you. Mr Lamey.

MR LAMEY: I have nothing further.

CHAIRPERSON: Thank you, Mr Coetser, you are excused.

WITNESS EXCUSED

CHAIRPERSON: Mr Toefy, are you leading any evidence?

MR TOEFY: No I'm not, Mr Chairperson.

CHAIRPERSON: You're not calling any witness?

MR TOEFY: No I'm not, Mr Chairperson.

CHAIRPERSON: Thank you. Gentlemen, I notice it's just past five and I was of the view that we could have short argument in this matter. I shall start with Mr Roux.

MR ROUX IN ARGUMENT: As it pleases you, Chairperson.

I'm appearing on behalf of two applicants. I submit with respect regarding Mr Cronje's application, that his knowledge - and he goes as far as the general instruction which was given against the background of which everyone was aware and of which much evidence has been given, and that is why I submit with respect that pertaining to Cronje amnesty be granted. I just want to be certain of what the relevant list of offences ought to be.

MR MALAN: Mr Roux, I think that you can leave that aside.

MR ROUX: I beg your pardon, Chairperson, because I've seen that with the affidavit there is not a specific application embodied in the bundle, but I will leave that with the rest of the applicants and the offences for which they have applied and allow it to resort under that, so that we do not waster any further time.

Pertaining to the application of Jacques Hechter and particularly his evidence, taking into consideration the evidence regarding his medical condition, which I handed up to you and regarding which evidence has been presented on a previous occasion, I submit with respect, that inasfar as it was within his knowledge he has given a full disclosure of relevant facts according to his recollection, from which various inferences based upon modus operandi and the general actions during this period in time, can be read in the light of the specific circumstances which he has confirmed from page 1 to 19, there has then been a full disclosure of relevant facts. I submit with respect that with regard to Sections 19 and particular 20 of the Act, that he has fulfilled with the requirements of both these acts and their sub-sections and sub-sub-sections, that the prerequisites regarding proportionality and the disclosure of relevant facts - I've already addressed you regarding the latter, with regard to proportionality, I submit with respect, that the test which is applied with Section 20(3)(f), is an overall subjective test. This has been argued previously by du Plessis, my learned leader, and has been accepted according to various principles, among others the Norgard Principles.

CHAIRPERSON: But he never argued that before me and he's not your leader today.

MR ROUX: As it pleases you, I do not wish to waste your time unnecessarily. My submission then is that Section 20(3)(f) should be interpreted according to a subjective test. This subjective test has been expressed in the Norgard Principles, which appear in the book by Rautenbach -

At page 152 to 158 thereof.

Where this specific subjective test is applied, I would submit that the subjective test within the mind read against the background of this specific applicant, indicates that there was war in this country, that fire had to be fought with fire and that his action against Oupa Masuku, or the residence of Oupa Masuku, was accompanied by intimidation. In his own mind and bearing in mind the subjective test, it is connected with the deeds and the activistic activities of Oupa Masuku, and it must also be borne in mind what Oupa Masuku had to say about himself and what Hechter attached to this. Within the legal context, this person was involved - if I may refer you specifically to his affidavit from 1977 already, in activism. Under Section 22 of the Terrorism Act, he was arrested and later in terms of Section 6, also with regard to public violence. And in 1978 he was in jail, in 1979 he was in jail, in 1980 he was arrested under way to Swaziland.

Hechter elaborated on the fact that despite all these legal actions it was clear that Masuku, in terms of his modus operandi of which information was obtained by a network of informers, did not cease his activities. And it also clear from the article in the Sowetan of the 6th of March 1986, that Masuku, Oupa Masuku specifically, was involved in the Saulsville/Atteridgeville Youth Organisation, the youth organiser of the South African Council of Churches. This appears specifically from this article in the Sowetan. That where Hechter believed subjectively that he targeted a specific activist who refused to cease his activities, this action was beyond the parameters of the law but fell into the context within which Hechter operated at that stage.

Therefore I submit that opposition had to fall in this case and that Hechter like Cronje, ought to receive amnesty for this specific deed. And then also with regard to the list of offences which has been mentioned - I do not wish to refer you to it specifically, but it appears on page 26 of his application, and I would also propose that page 26 under the (i) under 9(a), would also embody the deeds for which Jack Cronje ought to receive amnesty.

CHAIRPERSON: Wouldn't it probably with Jack Cronje, encompass because of the general instructions, murder and attempted murder and not unlawful possession, and probably thirdly, any act or delict flowing from the two? Not necessarily the list which Mr Hechter would, if we give amnesty, get.

MR ROUX: I would propose that that would be the best solution. I hear of any delictual action which might emanate from this, I think that I added this during the initial stages of Hechter's evidence and that shall be added to the list of offences for Jack Cronje. But I would propose that that would be the applicable manner to deal with it.

"In ieder geval, as ek u net daarop kan toespreek, waar hierdie dade voorsien is, uit hoofde van 'n algemene opdrag, dan sou die voorsienbaarheid toets ook van toepassing vind by Jack Cronje, met betrekking tot die gebruikmaking van toestelle en/of ammunisie, en dit sou seersekerlik daaronder tuisgebring kon word. Maar indien u dit so stel, moord, poging tot moord en enige ander handelinge voortvloeiend daaruit, dan behoort dit dit te omvang. Soos dit u behaag."

CHAIRPERSON: Thank you, Mr Roux. Mr Visser.

MR VISSER IN ARGUMENT: Thank you, Chairperson and Members of the Committee.

Mr Chairman, the invidious situation which we all find ourselves in this particular incident, is the lack of the ability to remember the detail, and a question which will certainly exercise your mind is one which has been put by Mr Toefy, and that boils down to this, in how far can the lack of memory eventually be said to be a lack of full disclosure? Chairperson, that in my submission, must be the single most important issue in the present applications. My submission to that is that if one views the requirements of the Act in Section 20, it blandly states that an applicant for amnesty must make full disclosure of all relevant facts, in order to obtain amnesty.

We submit however, that on that objective reading of the Act, one must add qualifications. And the first qualification is clearly that there is no indication in the Act, that a lack of memory for whatever reason, as long as it's a genuine and bona fide lack of memory, is not a bar to amnesty. And so much the more I would argue to you, that must be the case, in view of the epilogue in the Interim Constitution, read together with the foreword in the TRC Act, which is quite clear that the legislature intended amnesty to be granted in the widest possible meaning of the word. And you are well aware of the AZAPO case, AZAPO vs STATE PRESIDENT, where His Lordship, then Constitutional Judge Mohammed, said exactly the same thing. If one takes that as a reading together, Chairperson, I submit that it justifies the submission that the mere fact that a man is unable to remember, is not by itself a bar to his receiving amnesty.

If I am right so far, then one has to put a qualification on that again, and that is to say that that lack of memory mustn't be manufactured, it must appear to the Committee to be a genuine lack of memory. Now it can be because by reason of the fact of post-traumatic stress syndrome, as you've heard here today in the case of both Hechter and Viktor, or it could be other factors, or it could be a combination, Chairperson, but you must be satisfied that it is genuine.

I want to submit to you, Chairperson, that in the case of Viktor, it was genuine. When he drew his amnesty application he told his attorney "I really can't remember, but I want to apply for amnesty for what I did wrong." And you would have noticed, Chairperson, that he refers to some 40 incidents and in spite of having said that in his amnesty application, today he can remember only five. And he's made an affidavit to tell you that, and I've referred you to Exhibit D. Now that is not the actions of a man who is not genuine in his attempt to remember. If you look at Exhibit D, he has made attempts at remembering an incident by virtue of something that stuck in his memory. In the one case he said he remembers in Mamelodi, that when they were on their way there it started pouring with rain and they were all sopping wet. That's something that stuck in his memory, and he now knows that he was involved in an incident in Mamelodi.

In this particular case, Chairperson, he seems to remember dogs barking, which has now been established to be corroborated, and a remembers a person looking through a window. Now in the normal course of events, those are not terribly important, but it is important to show here is a man who by two facts that he can remember, plus the fact that Coetser recalls that he was there, comes to you and says "I'm applying for amnesty because I am absolutely certain that this is one of the incidents in which I must have been involved."

Chairperson, the applicants - none of the applicants have anything to gain by hiding any of the facts which they might remember, from you, they only stand to gain by remember(sic) facts. And it is my submission to you that it stands their credibility in good stead that they did not come and attempt to fabricate evidence before you of what they remember, they were quite willing and courageous enough to testify that although they were advised that there may be a problem with full disclosure, they came to you and told you exactly what they remembered. And I'm talking about Hechter and about Mr Viktor. Chairperson, the matter of full disclosure I can't take much further than that. To summarise, the important point to remember is in terms of the Act, the mere loss of memory is not a bar to amnesty. And for that reason I would ask you to find that there was a full disclosure by Viktor in the present case.

Chairperson, there seems to have been some doubt cast upon how serious the conflict of the past was. I am not going to take up your time, the Amnesty Decisions are full of reference to that. The Human Rights Violations Committee heard evidence for weeks on end from all sides of the conflict, and it's quite clear that we were in a gruesome war. It's true that many people in this country didn't know about it, but that doesn't take away the fact that we were in a gruesome war where people were killed. And the question of proportionality in terms of a proper interpretation of Section 20, must be adjudicated upon against the background of that war. And what is the test that the Act places on proportionality? It is something that was done during the conflict of the past, directed against the other side. I'm just broadly speaking of the other side, the Act is more precise.

That is the context, Chairperson.

Now I find myself in disagreement with my learned friend, that the question of proportionality is a subjective test, because with respect, I believe that the submission should be that that is an object of test. What is true however, is that the question of political objective is a subjective test and that that may have relevance in regard to an adjudication on proportionality. That is true. But the Norgard Principles are applicable to political objective, not the way I read the law, vice versa.

So as far as political objective, Chairperson, is concerned, we say the test is subjective, but it is also in a sense objective. It's much like a ...(indistinct) man test, it's not entirely subjective, it can also be objective. And one knows that by a reading of (3) of Section 20. There are subjective elements but there are also objective elements. And the objective element is the proportionality. It is certainly for the Committee, objectively, to determine whether an act, omission or offence is so disproportionate to the purpose which it was intended for, that you can say, objectively this is disproportionate. The question is, is that the case here before you? And we would submit it isn't. We would submit, Chairperson, bearing in mind the conflict of the past, bearing in mind the well known fact that 1986 was the worst year as far as the conflict was concerned. There was a build-up since 1979, but it certainly reached a pinnacle in 1986.

Bearing in mind the fact that people's lives were at stake, bearing in mind the fact that the police considered it their duty and it was in fact their duty to maintain internal security, which includes the protection of the population, we say, Chairperson, that the intent of scarring somebody off, to commit acts of violence and sabotage and intimidation by placing a bomb at his home, can not be said to be so disproportionate to the aim that they wish to achieve, so as to refuse amnesty for that reason alone.

Now Chairperson, in that respect it is significant, with great respect, if one looks at page 58 of bundle 1, to what Oupa Masuku says about himself. And please bear in mind, Chairperson, and I'll ask you to draw an inference from this, that Oupa Masuku has been here, he's heard the allegations made by Hechter and he has chosen not to give evidence to contradict it. And I would ask you, Chairperson, to accept what Hechter has said has now been established by virtue of it not being contradicted.

If you look at paragraph 1 at page 58, a picture evolves that from 1977, this man, Oupa Masuku, became involved in what is termed "participated in a liberation struggle". And it is clear that this went on until 1979, and I'm asking you to draw an inference that in the middle of that paragraph where 1979 is referred to, it refers to an arrest by him, together with nine others - I'm sorry, 1980, not 1979, 1980, he was intercepted and arrested on his way to Swaziland -

And I want you to draw the inference, Chairperson, as a reasonable inference, that he was on his way out to receive armed training. For what other reason would that have been? And then over the page, Chairperson, it appears in paragraph 4, that during the inquest in 1986, resulting from this attack, he was again detained under the State of Emergency. The State of Emergency came in on the 12th of June 1986, you will recall, Chairperson. And then he says most of his life, he says in paragraph 5 -

And then he explains why he says so.

Chairperson, but another significant fact that appears from this in our submission, is that since 1986, according to himself, apparently he didn't come into conflict with the law again. One would imagine if he had he would have mentioned it. And again we would ask you to draw an inference from that, and the inference is that the bomb scare worked. It worked in his case.

Chairperson, it only remains, unless there are matters which you wish me to deal with, with one other aspect and that is the issue of innocent bystanders. Now Chairperson, that is a topic that you have heard me debate with Mr Aboobaker Ismail at length, and my learned friend, Mr Trengove(?) as well - I don't want to rehash all of that, but we know of the Kabwe Conference in 1985, we know of the ANC decision, we know of the press statement that Mr Oliver Tambo made thereafter, to say that the time has come where the ANC cadres cannot shy away from targets merely because innocent bystanders might be affected. You have heard -we have all heard of many instances of incidents where members of the Security Forces went in to hit a target, particularly in a house, where innocent people were affected. We know that. We know that the only times on record up till now, where amnesties have been refused, were in cases where they knew or had to know for certain that there were little children in the house or people entirely innocent and they went ahead nonetheless. But in a genuine case of caught in the crossfire, as we submit this one is, even assuming that Esther Masuku was an innocent bystander, we would say, Chairperson, that it falls within the ambit of a war situation as explained by the ANC to the Human Rights Violations Committee, as explained in their written presentations. I believe it was at page 85 of the August 1996 presentation, where they dealt with Kabwe and the killing and injuring of innocent people.

Chairperson, let nothing that I am saying now be taken to be justification, all that I'm saying, Chairperson, is that this is what happens in a war, people get killed and injured, and perhaps more innocent people get killed and injured than the fighting people. But those are the facts of life.

Chairperson, as far as Mrs Esther Masuku is concerned however, we submit Chairperson, that - bearing in mind what is at page 98, and one would have expected that if it's untrue, that Mr Masuku would have come to the witness stand and denied it, and it was put by Commissioner Sandi, the second, the third paragraph -

And Chairperson, with respect, one must bear in mind the circumstances in which the happened. The evidence on paper in bundle one is - Oupa Masuku slept in an outside room next to the stoep. Apparently the bomb, according to Crafford, must have been placed on the windowsill, or it may have been Dos Santos that said that, Chairperson, and I probably am referring to page 62 - yes, the bottom of page 62 he says - his finding is in his opinion a manufactured explosive was used -

And the reason why he finds that, Chairperson, is that he found what he calls shrapnel, both inside and outside the house. In fact, there was damage to the wall on the outside, which does appear to support Dos Santos' finding that the bomb was placed on the outside.

But the point I'm leading up to is this, that they heard a sound like an aerosol can going off, and we know, we've heard some evidence about this kind of thing, is that that was the fuse, the fuse makes a "shew" noise, and apparently that, or the footsteps or the dogs or a combination of all of those, and the crying out of Oupa, who called "Thambo, Thambo, Thambo", according to Simon's affidavit, brought three people into the lounge who wouldn't have been there under any other circumstances, they were already asleep, and that's where they got hurt, Chairperson. So on the facts as we know it from the Masukus, it was fortuitous that they were there at the moment when the bomb went off. And I want you to please bear that in mind, because it certainly does not indicate an intention to kill people in that house. And that is corroboration for both the evidence of Hechter and Viktor, that the prime - and as it turns out, of Coetser as well, as his evidence has turned out, that the prime reason for the attack was not the elimination of anybody.

Chairperson, we can spend a lot of time on these subjects which I've covered, but you did preface your invitation to argument by the qualification "short", I heard quite clearly. I'm ...(intervention)

MR MALAN: We're just not sure that you heard us, Mr Visser.

MR VISSER: I've already been - I was just going to say, in the view of Commissioner Malan I've probably exceeded my short time that you've allotted to me. If there's anything that you wish us to address, we would certainly do that. My attorney's just found the reference to the Kabwe Conference, it's not 85, it's page 51 and onwards, where a full statement about innocent civilians have been made, with which we have found ourselves in agreement because of the practicalities of a war situation. And Justice Motata who was sitting in that case, will probably remember we taking that point of view in not criticising the ANC because of that, all that we ask is don't criticise the applicants before you because of that. Thank you, Chairperson.

CHAIRPERSON: Thank you, Mr Visser, for having been short. Mr Lamey, would you also take the queue and be short?

MR LAMEY IN ARGUMENT: Thank you, Chairperson, I will be very brief.

Chairperson, my submission and my request to this Committee is that to place yourself in the position of the lower-ranking officers at the time, who had neither - who were not in a position to question orders - and this is confirmed also in submissions that have been made which you probably will find in the general background, Exhibit A, where the position of the lower-ranking security policemen is dealt with there. Chairperson, where they were not in a position to verify always information that led to a decision to attack or ...(end of side A of tape) ... or a targeted house. Chairperson, so as far as the factor of proportionality is concerned, that factor lies within the powers of the decision makers at the time. Now unfortunately Mr Coetser also came to this Committee in the hope that Mr Hechter or Mr Viktor, as he states in his political objective, would have been in the position to give more detail to the Committee, unfortunately they were not in the position to do so regarding the specific information that they had, the target selection that was made, precautionary measures etcetera. So to a large extent, Coetser was in the hands of his superiors on which he relied upon their judgement and their decisions and carried out orders in this regard.

Chairperson, that also being the position of the footsoldiers, if I can call them that, they also don't have the benefit of all the knowledge which we find in the general submissions, such as Exhibit A before this Committee, as well as other submissions like de Kock in his general background as to the broader political perspective. Chairperson, and as far as that could be taken in favour of also lower-ranking officers like Coetser, I would request you to do so.

Without unnecessarily ponder on this aspect, I just want to point out that in this submission of Gen van der Merwe, which is referred to by reference in Exhibit A, there is the statistics, and you will find that 1986 in comparison to all the other years, was one prominent years of political violence in the country.

Chairperson, my request is similar to the list that has been provided to you in the application of Viktor, that amnesty also be granted to Mr Coetser. Chairperson, in his written application he states -

More specifically I would wish to add here in my submission, malicious damage to property and also offences in terms of the Explosives Act, which is also referred to here in the application of Viktor.

ADV SANDI: Whilst you're dealing with offences, what about defeating the ends of justice, because he knew about this and he did not report it. He didn't do a thing, but he knew that a crime had been committed.

MR LAMEY: Chairperson yes, it may possibly also extend that far. He as a policeman strictly speaking - I didn't think of that for the moment, but strictly legally speaking as a policeman he should have been in a position to report unlawful acts by superiors. Chairperson, in that regard as far as that is concerned, that could also be a possible offence that could be formulated, Chairperson, but on the other hand there is no evidence that he had specific knowledge of the investigating team and Dos Santos, like Hechter perhaps who was involved with the investigations. We didn't deal with that in the evidence of Coetzer but being also - well there's no evidence by Coetzer that he was aware of an investigation done by some of his fellow colleagues at the Security Branch on the probabilities, being also an unrest sort of related type of offence that was committed, it could be argued that, on the probabilities, he must have foreseen also that some investigation would be done by the Security Branch and he didn't really do anything about that. Yes, Chairperson I would request that that then also be extended as far as he is concerned.

Chairperson I don't know whether there is anything else regarding his specific application, that you would like me to address you on. I think here is a case of, also in the case of Coetzer, a subjective understanding that what ultimately happened, well that he, well he testified that he foresaw a possibility that people could be killed in the process of using the explosive device. At some stage, either prior or after that, he learnt that Oupa Masuku was the specific activist here. The fact that a person died here, I've listened to the submissions of my learned friend, Mr Visser, I don't have anything to add thereto and I submit that that argument does have merit, but as far as the subjective belief of Mr Coetzer is concerned, I submit you must also take into consideration that he understood from that meeting in the office of Viktor, that people could be eliminated. Whether that was in fact so said, he's not certain today, but that was the subjective belief that he had at the time, Chairperson and that is why he made the connection in his amnesty application regarding this specific instant, also to the broader instruction that emanated from Viktor. The fact that Hechter himself foresaw also the possibility of death, Chairperson, also I think points out that as far as Coetzer is concerned, he had the implied, at least the implied authority to participate in this act, where it was foreseen that people could be killed during this attack.

As it pleases you Chairperson.

CHAIRPERSON: Thank you Mr Lamey. Mr Toefy.

MR VISSER: Mr Chairman, I'm finding myself in a personal difficulty the later it gets. I didn't anticipate that we would sit after 4 o'clock. Is there a reason why we can't just continue tomorrow?

CHAIRPERSON: It has just come to our attention that, because of the pre-hearing conference, matters were loaded because certain agreements were reached there that incidents would be dealt with speedily and we are running against schedule and I must apologise, but Mr Visser, if you are not going to make any further submissions or reply, I would release you.

MR VISSER: I would rather not run that risk. I'd then rather do my explanation elsewhere and stay, Chairperson.

MR TOEFY IN ARGUMENT: Mr Chairperson, the applicant - the Masuku family opposes the application for amnesty of all four applicants on the following basis. We oppose the application of Mr Cronje, Mr Hechter and Mr Viktor to the extent - in that they have not made full disclosure in terms of Section 20(1)(c) and we oppose the application of all four applicants on the basis that they do not, on the basis of Section 20(3)(f) in that the proportionality of the act was not warranted by the aims sought to be gained.

If I can just very briefly start with Mr Cronje. All that we have before us is this affidavit and as I said earlier, to my mind it appears as if an inference can be made from documents before us in the bundle, that Mr Cronje did in fact have personal knowledge of this particular incident and for him to make the statement in his paragraph 7 that:

we find unacceptable, Mr Chairperson. If we look at pages 94 to 97, we'll see two documents that are drafted by himself and signed by himself which sets out the entire, which sets out the happenings on that night. I understand that these documents were drafted the day after the incident and I understand it may have been in the normal course of events that he in fact drafted these documents as part of his task, but for him to say that he doesn't have any knowledge of it, is very different from saying that he cannot remember.

A further point that I wish to draw to the Committee's attention, is that Mr Coetzer went to him and told him after the incident that: "I need to withdraw from these activities", based on the Masuku incident. Again a particular relation to the Masuku incident. Under those circumstances we find that he does have knowledge of these incidents and that his application should at least correspond to those allegations which he had made in these, or at least the points which he has made in the two documents that I draw the Committee's attention to and also besides these issues, besides the - based on the evidence that I've raised, we too still find that he, in any event, has not complied with providing relevant facts of the incident for which he is applying.

As far as Mr Hechter and Mr Viktor are concerned, with the non-disclosure of relevant facts, we accept that they make certain, or that Mr Viktor was able to remember certain issues, in fact two little issues of the incident, but again we find it to be inconceivable that those are the only two little factors of that incident that he's able to remember and we feel that he has not made full disclosure in that regard as well.

The exact same points are tendered in support of our opposition of Mr Hechter's application with regard to non-disclosure.

I think I just briefly now want to just talk to, if the Committee will allow me, talk to the inferences which Mr Visser has suggested that the Committee should make on various documents, especially with regard to the statement by Mr Masuku. The fact that he was arrested whilst on his way to Swaziland with 10 other people, it really is - it would really be a far stretch of the imagination for the Committee simply to accept that the reason why they were going there was simply to get military training. We don't know who those 10 people were, it could have been 10 children, it could have been 10 females who are not ordinarily going over the border for MK training, so on that basis I feel that for the Committee - I feel that the Committee should not make such an inference as suggested by Mr Visser.

The next point I wish to raise, which Mr Visser has raised, with regard to inferences is that after 1996, you hear nothing about Mr Masuku with regard to his run-in with the law and here I assume we're talking about the ordinary course of the law and not the law which, the actions of police officers which was really outside of the framework of the law, but Mr Chairperson, the fact that he was not apprehended again after that does not mean that he therefore ceased his activities. It does not mean that he has ceased his support for the struggle, that he has ceased to be a youth organiser. It simply means that the police did not apprehend him after that again. That's all that it means. It means that either they didn't seek to arrest them anymore because it was not helpful, based on his past record, or it means that they may have been embarking upon other actions against him, which was outside of the normal course of the law. So again, I find, or at least I suggest that an inference that it was successful, that the bomb was in fact successful, based on the inference that Mr Visser would have the Committee accept, is simply a non sequitur.

I wish now to move on to the issue of proportionality and here we oppose the application of all four applicants to the extent that they were involved in this act. Mr Cronje has accepted responsibility for it, for the actions of his "onder geskiktes", so our argument here would apply to him as well.

As can be gleaned from the cross-examination that was pitted against the applicants, it is our view that the act upon which Mr Hechter decided upon to embark and which was and where the other applicants were accomplices besides Mr Cronje, that act was simply disproportionate to the aim which he was seeking. He was seeking ...(intervention)

CHAIRPERSON: Should we, Mr Toefy, accept it as a submission, than you view, because I've got to make a decision.

MR TOEFY: I'm sorry, can the Chairperson please repeat?

CHAIRPERSON: I say when you said when it comes to proportionality it is your view, or you said actually: "It is our view", but I say don't tie my hands, I've got to make a decision, make submissions which I could decide upon.

MR TOEFY: I do apologise for the unfortunate phrasing. It is certainly our submission that the act was disproportionate to the aims that they sought to achieve. Mr Hechter was unable to say whether other means were sought, other means outside of the law. He was unable to say: "Yes, we did try to blow up his car, or we tried to slash him - yes, we did slash his tyres, yes we did try to take him down to the police station and "klap" him a bit". He was unable to ...(intervention)

CHAIRPERSON: No, no, no, he said, through Oupa Masuku's own admissions, when you read page 58, that he was detained several times, interrogated and it did not work, so I would say just that portion, I think your submission would be disproportionate to what you are saying.

MR TOEFY: Then just for clarification, then I understood him, when he was asked whether any lesser acts were taken against Mr Masuku, outside of the framework of the law, he was unable to confirm or deny that and the fact that he was unable to confirm or deny that, it certainly cannot be accepted that lesser steps outside the framework of the law were indeed taken against Mr Masuku.

MR MALAN: May I just ask you, could you explain to me, are you not blowing hot and cold if you argue on the non-disclosure and the inferences drawn by Mr Visser, that he was, that he did not cease his activities, that an inference, or that we might as well accept that he continued with all his activities, so if that is to be an inference or possible inference or a suggestion from your side, then it appears that even the bombing of the house as they did, did not have the necessary effect. What would you then argue in terms of proportionality?

MR TOEFY: Well that would then just simply also mean that, it will also indicate the futility of the act itself, that even if you went and bombed an activist's house, it didn't have the effect of stopping them, it had the effect of urging them on even more to oppose the State.

MR MALAN: I think with hindsight, the futility of everything is really clear but the question then was, what was the situation on the ground, so to speak? Amnesty is only given for illegal acts, not for what happened within the law, so really, if we talk proportionality, we should talk proportionality.

MR TOEFY: I'm sorry, I just lost my train a bit.

ADV SANDI: Sorry Mr Toefy.

MR MALAN: My apologies.

ADV SANDI: Sorry, I thought what Mr Malan is trying to say to you is that you are only succeeding to argue against yourself, because if you say in spite of the fact that this particular operation was taken against Mr Oupa Masuku, it still did not make him stop his activities. Now where does that put your argument in terms of proportionality? I hope I'm not misquoting you Mr Malan.

MR TOEFY: Well in terms of proportionality, I see it as two different issues. The fact that it didn't stop him, it just means that the act was completely misdirected. If you wanted it to stop - to have him intimidating or stop his activities, then to bomb his house is not going to achieve that and it didn't.

MR MALAN: Sorry, Mr Sandi. Could you - you never suggested, you will recall that at some stage I did suggest to the applicant the possibility of a petrol bomb instead of this stronger heavy utility that they used, but you never suggested an intermediate step to the applicant that I can now off-hand recall.

MR TOEFY: No, I did. I asked: "Did you take any other lesser acts that were less extreme than that against him?" and he was unable to confirm or deny that.

MR MALAN: You see the difficulty that I have with your argument and I'm not buying, provisionally at least, the inferences indicated by Mr Visser, that those inferences could be drawn. I'm not arguing - I'm not accepting that for the moment, I'm only saying - I remember now, you did say: "Why didn't you pull him and get him to the office and give him a few "Klaps"?" If your argument is that even the bombing wasn't successful, it was futile, why do you suggest then that they even should have taken a lesser action and does that not defeat your argument of proportionality? That's really my question.

MR TOEFY: But really, with respect, they didn't know that. They didn't know that lesser act or any act, which proportion of severity, which act with which proportion of severity would in fact be successful, they just - the submission is they simply went to a very grave proportion.

MR MALAN: I follow you now, thank you.

ADV SANDI: Just one thing Mr Toefy, for my own clarification, does the Act require that an applicant for amnesty demonstrates that there was a prospect of success of that particular action he had taken? I thought the Act simply requires that a perpetrator must say: "I committed S, Y, Z action which is a crime in law and my objective was A. B, C." Does it have to go beyond that inquiry? Do we have to look into the question whether that particular act could have assisted the applicant to achieve the stated objective? Do we want to go that far?

MR TOEFY: Well certainly, that's certainly why it wasn't part of our, the reasons why we are opposing the application, that it was not successful, because the Act doesn't require that but it does give an indication as to how misdirected or directed the act was. Were they applying their minds in a proper manner in seeking out the course of action which would attain the aims and objectives which they were seeking. It's simply for that reason. And if it didn't, then surely they were misdirected in their actions.

ADV SANDI: Anyway, I'll leave it at that.

CHAIRPERSON: You can recollect yourself, I think they must have derailed your train of thought, Mr Toefy.

MR TOEFY: I don't think the train is much longer. Just again one issues I want to raise that was raised by Mr Visser and that is that it was really fortuitous that those that were injured an killed in the "sitkamer" were there. Under the circumstances, when Mr Oupa Masuku called out "Thabo, Thabo, Thabo", it was under circumstances when he heard a hissing sound outside, he heard footsteps outside on the stoep and he may have been well aware that activists houses were being bombed and for him to call out to the family members, would have been an instinctive one, simply to protect yourself or do something, there's trouble around, but that really is of irrelevance, the fact that he called out people. We've heard here today that they placed the bomb there knowing full well that people would have gotten hurt, or could have gotten hurt, so they didn't know who was sitting on the other side of the window. The fact that there was no-one in the window, that no-one in the room at the time they placed the bomb, that was fortuitous. They didn't really know whether it was, the intention was to intimidate by placing a bomb there and whether that meant injuring someone, which wasn't really part of their main aim, then so be it. So the fact that they were called in there fortuitously, it is our submission that that is irrelevant. That will be the end of the closing argument.

CHAIRPERSON: Thank you Mr Toefy. Mr Steenkamp.

ADV STEENKAMP IN ARGUMENT: Chairperson, I have listened to all the arguments. The main argument, basically I think that my submission will be the main decision will have to be obviously whether or not full disclosure was made and secondly, whether or not proportionality or the test of proportionality was met. I've got nothing further to add to what my colleagues have said, except maybe to say that in my personal view I find it a bit difficult that, I would agree with my colleague here, that no other steps were taken to either prosecute or ...

CHAIRPERSON: Unfortunately they have taken some of the earphones, so could you just repeat?

ADV STEENKAMP: Sure Mr Chairman, I said my basic difficulty is and this stems from the testimony basically of Mr Viktor, why were no other steps taken to prevent the action of the Masuku's and specifically Mr Oupa Masuku? why could they not be prosecuted? Why could they not be arrested? Why could not normal legal action be taken? In that regard I would tend to agree with my Learned Colleague here. This still begs the answer, why was this never done? why was this immediate action taken? That's basically my argument, Mr Chairman, ...(indistinct) I would like to submit.

ADV SANDI: In other words you're trying to say, they threw a bomb there knowing very well that Mr Oupa Masuku was staying with some other people there? There's no evidence here that they, during the day or at any stage immediately before this operation, that they went there to check who was going to be there that night, they just came around and threw the bomb.

ADV STEENKAMP: No, no, my argument is basically, why couldn't they have taken, they had the powers, they had the manpower, they had the full information, full knowledge of the involvement of specifically Mr Oupa Masuku, why was no other legal, legitimate action taken, except this specific action, that's my only question.

MR MALAN: Mr Steenkamp, is the difficulty not that we have no evidence? We have a construction of evidence really turning around the bundle before us and specifically Mr Coetzer's evidence. We have no evidence that no other steps were taken, there might have been, that's what Mr Hechter is saying. " We might have pulled him in, I don't know, I simply don't know." There's no-one who can give us evidence on that question of yours.

ADV STEENKAMP: Thank you, Honourable Chairman. I don't know, I would tend to agree but my view still would be, the applicants are carrying the onus here and ...(indistinct) the victims, but I agree, there is no evidence on this point. Thanks.

CHAIRPERSON: The question raised in argument by Mr Visser was that if somebody has forgotten details and according to the Act, does that debar such a person to get amnesty?

ADV STEENKAMP: Honourable Chairman, there's clearly no requirement in the Act of that obviously and I would tend to agree with Mr Visser, if a proper legal case can be made out, that there's legitimate reason for a person not giving full details, that can clearly not be held against that specific individual, saying that not - I simply couldn't apply, or I can't remember the details on the pure facts of the incident because of whatever the reason may be, but looking at the matter hindsightedly, it's still a difficulty and that's, the whole question of full disclosure is then brought into the picture.

CHAIRPERSON: There's no hindsight here. They say: "Hey, because we were even traumatised and receiving medical attention up to today it's still difficult", they are not fabricating, as Mr Visser has put it, he says no, they don't even attempt that. They said: "Please, we thought others would probably assist here, but we can't be of much assistance than to say we were involved" and I say that is where he came with the argument that if you don't provide such detail which, if we look at detail closely, would say full disclosure, what actually happened, but as if we don't have that detail and now you somewhat agree with him and say no, the Act does not buy you with that lack of detail, but there is no full disclosure. I get muddled up, personally.

ADV STEENKAMP: Mr Chairman, I'm not taking the point before ...(indistinct), what I'm saying is, looking at what was actually happening on the ground at the time, the police, that's my respectful submission, could have done something else except only attacking the house of Masuku, they could have taken other legal action, but there is no evidence on that point.

MR MALAN: But Mr Steenkamp, if they had taken legal action, they wouldn't have been applicants, so the question is really, what other illegal action should they have taken?

ADV STEENKAMP: I think the only point I was trying to make was, my Learned Colleague here was trying to make, was it really necessary proportionately, what was happening at the time, for the applicants which they did.

CHAIRPERSON: What Mr Malan is putting to you, he says first, for us to look at the whole matter, the action of the person before us as an applicant must have come with an illegal action and if we say: "what is the illegal action here?" it is the attack on the house of Mr Oupa Masuku and a beloved relative losing his life in the process, hence they are before us, because had they taken all the necessary steps for instance, incarcerating, charge him under the terrorism Act, there wouldn't have been any illegal action, because don't look at just the three steps of amnesty, but the most important before an applicant comes before us, that action for which he applies, firstly must be illegal and it must have emanated from the conflict of the past. It must be illegal and emanated from the conflict of the past.

ADV STEENKAMP: Honourable Chairperson, I can't take it any further than that. Thanks.

CHAIRPERSON: Thank you, Mr Steenkamp. Mr Visser, I think you are the one, I wonder if you do have any reply to this?

MR VISSER IN REPLY: Chairperson, I didn't want to, but I'm compelled to make just two points. The one is, Chairperson, that it is no requirement of the Act for an applicant to show that there were less harsh methods which he could have used to attain the same objective. There is no such requirement. The requirement is that you have to objectively decide whether there was a proportionality between the act and the aim achieved. That's something entirely different and we've dealt with that.

ADV SANDI: But I thought that is implicit, if I may call it a requirement, proportionality, the issue of a lesser action to have taken in the circumstances, is that incorporated in this notion of proportionality? I thought it was implicit.

MR VISSER: Chairperson, but we don't argue with that. We say that you must view that against the background of a war situation, where the test changes, or is different from what we experience in normal society, as Commissioner Malan said, where you deal with legal actions and the question is, when does a legal action become illegal because you transgressed the rule of proportionality in that sense. No, no, we're not arguing with that, Chairperson. The point I'm making is that there is no requirement, that it must be shown that the aim achieved could have been achieved in some other way, because in a war there's no time to sit ...(intervention)

MR MALAN: Sorry, just to correct your wording, could not have been achieved in some other way. There's no obligation on the applicant to show that it could not have been achieved with lesser measures. That's really what you're arguing.

MR VISSER: I'm sorry. Well, could or could not, I'm not sure with the double negative, but you get the point, thank you Chairperson. And the other thing, Mr Chairman and this again is a long argument, but there is no onus of proof before you. The Act says you must be satisfied and we know what Attorney-General of the Transvaal vs Botha 1994(i) says. Chairperson, if you want these authorities, Mr Malan has them from pervious written arguments which we've handed in, Johannesburg Local Transportation Board vs David Morton and particularly that judgment which says that expressions of onus of proof is misleading and it says:

You must be satisfied on the evidence, Chairperson, there's no onus. Thank you Chairperson.

CHAIRPERSON: And if you read our judgments, we always say: "We are satisfied" because we want to comply with the tenor of the Act.

MR MALAN: Or we are not satisfied.

CHAIRPERSON: Or we are not satisfied.

MR VISSER: We don't want to hear that.

CHAIRPERSON: This brings us to the end of the incident of Mr Oupa Masuku. I must apologise profusely that I did not beforehand advise counsel and everybody involved in these proceedings but I'm appreciative of the co-operation that has been given by all legal representatives. I must say you have given us so much to think about that at this juncture we reserve our decision. It shall be given before the process ends, that is the amnesty process, you will definitely get a decision and I must say to firstly Oupa Masuku, the Panel, and I'm speaking on behalf of the Panel, we are happy that you came forward to be relieved of what obtained a long time ago, approximately 14 years ago, that we might have opened wounds, but you can be rest assured that those wounds would be closed today, you would no longer have to go through that and that goes to your family as well and all other interested persons who came forwards. We thank you very much. And for your patience that I extended you to well after six. Thank you very much. And those who are involved from tomorrow, we start at nine thirty. Thank you. We adjourn for the day.