CHAIRPERSON: I see we have a brief summary of your argument. Carry on Mr Visser.

MR VISSER IN ARGUMENT: Thank you Chairperson. Good morning, Members of the Committee.

Chairperson yes, you have before you a document which we have, for want of any further explanation, just simply called argument because we've had an argument, brief argument, extracts of argument, and briefer argument and very brief argument and Heads of Argument and now we're just calling it Argument. Chairperson, we're hoping that the document before you might enable us to go rapidly through the submissions which we wish to place before you. At page 1 we say for whom we appear and we have entered there the identity numbers and the amnesty application numbers for your convenience. The references to the record in the Ndaba bundle are given for each of the applicants at page 2. If I may pause for a moment. Under the heading Amnesty Applied for Chairperson, on the evidence it would seem that Shabalala was basically abducted and hence we ask for the unlawful arrest of Mr Shabalala. It would appear in the light of the absence of contradictory evidence, that Mr Ndaba was probably lawfully arrested at the time. There's no evidence

before us one way or the other, but we assume that Chairperson, but clearly Mr Ndaba was unlawfully detained, he wasn't free to go if he pleased and therefore we ask ...(intervention)

CHAIRPERSON: Oh, wasn't he?

MR VISSER: No, Chairperson. Quite clearly he wasn't free to go. It was a decision, it was Botha's decision whether he could go or not.

CHAIRPERSON: Yes and Botha in his statement says ...

MR VISSER: Well I think you're referring to the fact that Ndaba asked him to remain there until the Monday.

CHAIRPERSON: The Tuesday.

MR VISSER; The Tuesday, which seems to indicate ...(intervention)

CHAIRPERSON: Yes, Ndaba agreed that he would stay with me till Tuesday. It seems to indicate that if he wants to go, he would go.

MR VISSER: Yes, well we know that he wouldn't have been allowed to go if he wanted to go, that's quite clear, because Botha also testified that in the light of the arrest of Shabalala, a whole number of permutation of possibilities had arisen which he had to work out and try and find a plan to place Ndaba back into circulation in Operation Vula, but Chairperson, for so far as it may be necessary then, unlawful detention of both Ndaba and Shabalala.

Then the murder, which is self-explanatory. Chairperson, it is also clear that two weapons were used which were not "legal" weapons and therefore Chairperson, we ask for amnesty for any contravention of legislation pertaining to the use, possession or conveyance of weapons and ammunition.

Defeating the ends of justice. There is quite an abundance of evidence about.

CHAIRPERSON: Now shouldn't we describe (c) in a little more detail?

MR VISSER: Chairperson, you will recall that we once addressed you in argument on that issue and the gist of that argument was, one can draw up a long list of various sections ...

CHAIRPERSON: No, one merely says: used in the killing.

MR VISSER: Yes. Oh, on that basis, yes.

CHAIRPERSON: It's not an unlimited contravention and it's a certain incident.

MR VISSER: Oh it certainly has to be. All of this has to be related to this particular incident, you're absolutely correct, yes. I didn't wish to give any different ...

CHAIRPERSON: Just to add at the end: to use, possession ...

MR VISSER: Used in this incident, or whatever.

CHAIRPERSON: Illegal.

MR VISSER: Yes.

MR LAX: If you added the words: "in relation to this instance", that would be ...

MR VISSER: But let me make it clear that all of this must relate to this incident. We're certainly not asking for anything beyond the boundaries of this incident. The same would apply to (d), defeating of the ends of justice and (h), the housebreaking and entering to steal and theft of documentation and equipment. It's all related.

CHAIRPERSON: Well, it's not related to this incident. This incident being the killing of - housebreaking and entering with intent to steal and theft, documented on the 6th and 7th of July.

MR VISSER: 7th and 8th of July, Chairperson, yes. Then Chairperson, perhaps ex abundante, but still unlawful disposal of the human remains of Ndaba and Shabalala and the failure to report their deaths are regulations that provide that that has to be done, of both Ndaba and Shabalala and Chairperson, in line with what we have we have submitted to you in Pretoria, what will really cover all of that is amnesty in regard to any offence or delict committed by them in regard to this incident which we say in (i).

Chairperson, we refer you at page 3 to the meeting, which you well recall, on the 5th of February last year and the gist of it and all of your Committee Members have heard this before, we draw a general background which serves as Exhibit A, which is incorporated by each of the applicants and then an abbreviated synopsis of written argument. Now Chairperson, we have handed that up before. That has of necessity changed again in the meantime since we last met here in Durban eight months ago. We will leave one copy behind for you, if necessary, but I don't anticipate to refer to it at all at this stage.

Now Chairperson, at page 5, paragraph 3, we just make mention of the fact that certain fresh Judgments have come out, decisions of Amnesty Committees, after we last met and those are listed from 1 to 5.

Chairperson, in regard to Operation Vula per se, we have given you an extract in Exhibit B, or the book of Stadler which you are aware of. In the Ndwandwe record, where you chaired, Mr Chairperson, the reasonably full evidence about Operation Butterfly and Operation Vula were given by Botha and we give you the reference, page 516 to 611. I must apologise, on the previous occasion when we appeared before you, I seem to recollect it was the Cele record, and we give you the reference there at page 967 of our present record where I was referring to the Cele record and that was incorrect, it was the Ndwandwe record and that reference I've already given you.

As far as the background of the applicants is concerned, Chairperson, we recall that on the 23rd of August, due to the unfortunate illness of Justice Mall, you yourself took over and at that stage, in order to bring you up to speed as it were, Mr Chairman, we gave a summary of the evidence that had passed before you came to the Chair and those are in the present Ndaba bundle at page 968 to 980. I must now immediately preface what follows by saying that most of this that now follows was already told you at that time in that passage which I referred you to, in the pages that I referred you to, but that because it wasn't complete and in order to be of some assistance, if possible, we have decided to give you a summary of the evidence from page 1 onwards at page 5 and Chairperson, I'm not going to repeat this fully. With your leave I will simply summarise and talk to the issues regarding the background facts from page 5 onwards, paragraph 1.

Botha testified that he recruited Charles Ndaba during 1988. Paragraph 2. At the time Tommy Zulu became suspected by the ANC as being a sell-out and he was recalled to Zambia, which left Mr Charles Ndaba as the incumbent Commander of the Natal MK machinery, Botha gave evidence that he became anxious that Ndaba was going to become a target because of his new position. You heard Adv Poswa, in cross-examination, put to one of the applicants that in fact she has evidence to indicate that Ndaba was on a hit list. We say that is what we are talking about and that confirms the evidence of Botha. Chairperson whether Botha himself arranged with the Swazi government or Swazi police or somebody on behalf of the Security Police for Ndaba to be deported or whether it happened for some other reason, is not relevant or important in this hearing. We submit what is important is that Ndaba was in fact deported and we say in paragraph 2 he was transferred to Zambia. Now Chairperson the question is, we don't know when exactly that happened, there is no reference to that in the Heads, but if you pencil it in, Exhibit J 5 at page 18 will tell you that at least - it's hard to read Chairperson, it's paragraph 2.4 of J5, it's very hard to read, it was highlighted and it messed up the photocopy. It seems to read Z C Ndaba, MK Charles and then there's a reference number, S4 and it goes on and it says:

Very hard to read, but that's, I think, an accurate version of what is typed there.

Now if you look up the page, on page 18 Chairperson, you'll see a date, which is also hard to read, but it would appear to be 1988-08-31, so it would seem that by, at least by the 31st of August 1988 Mr Ndaba had been deported from Swaziland. There is no other evidence that I'm aware of that can place a closer date on his deportation, than that.

So Mr Ndaba has now been deported and Botha says in paragraph 3 - well he first said four to six weeks and it later turned to perhaps seven weeks, it doesn't matter much, not much turns on it.

Prior to the 7th of July Ndaba made contact with him, he also explained to you that he made contact on a telephone number which Botha had given him in 1988 and he says that there was a meeting and Ndaba told him what had happened to him in the meantime and he told him that in the beginning of 1990 he re-entered the Republic of South Africa and he spoke about an operation of the ANC to which he referred as the President's Committee. We give you the references there.

May I remind you that Mr Maharaj in his evidence, I haven't got the page number but you will recall that he said that, I think, that Ndaba re-entered the Republic on the 6th of February, so it would have been in the beginning of 1990, February. We're perfectly happy to accept Mr Maharaj's evidence that it was February 1990.

Now he - in paragraph 4, we briefly state what Ndaba tells Botha and it concerns the infiltration of prominent ANC/SACP leaders into the RSA in order to launch a long term-project for mass revolts in the country and that the project included claiming military and political strategies, the establishment of structures, military training and a sophisticated communication and intelligence network and what his function was, was to write a programme in regard to the military training and arms infiltration for the project. We give the references as we go along, Chairperson.

Ndaba also informed Botha that certain prominent figures had already infiltrated and this was also confirmed by Mr Maharaj, particularly the names that Botha gives, Nyanda, Kasrils, Maharaj, Proven Gordon, Dipak Patel. Then also at some stage during one of the three meetings, Ndaba provided Botha with addresses of a number of safe houses in Durban, Chairperson and later also with keys to one of them and that happened after the 7th of July and we'll come to that.

Now Botha, Chairperson, admitted frankly that he didn't grasp the significance of what he was told. He attempted to explain that he was in a mindset of being influenced by the fact that negotiations were underway, that peace at last was going to come to the country and he did not place the correct significance on what he had heard from Ndaba on that information at the time. He says, and I deal with that in paragraph 8, that:

and as it turns out, Chairperson, on the 6th of August of that very year, 1990, during a meeting at Pretoria which manifested in a Pretoria Minute, the arms struggle was in fact suspended by the ANC.

We submit Chairperson that one might criticise Botha today, as he has been in his evidence in cross-examination, that he didn't see the full significance of the information and he didn't understand it properly, or grasp it properly, but Chairperson, his evidence is not so unlikely that it can be said to be untrue. In those circumstances, and we know it's 10 years ago, Chairperson and we know that it is human nature very soon to forget unpleasantries of the past, but we know that in 1990 the situation was one of hope for the future, that at last things were going to happen to bring to an end the armed conflict and the misery that was in this country. Chairperson and we say that it is not so incredible that Botha, even in the position in which he was, could have mistaken the significance of this information. We deal with that in 8 and 9 Chairperson and then we come to the arrest of Mr Ndaba on the 7th of July. Now you've heard all of this. This has been re-hashed by all the witnesses apart now from Gen Steyn. The fact that Botha cannot remember Goodwill Sekakane, is neither here nor there in our submission, Chairperson. Botha then - in paragraph 12 we say Botha, when he discovered Ndaba there, took the people whom we mention there to another office and explained to them that Ndaba was his informer, we will refer you slightly later when we deal with Col Andy Taylor. Taylor became upset about that and said: "The whole operation is now a mess", or words to that effect. Charles is then released to Botha, he is taken to the safe house at Verulam, as we now know it was Blackburn, Chairperson, and there he is kept.

Now Botha's evidence was, he can't remember when, it was either on the way to the safe house or shortly after they arrived there, that Ndaba told Botha of a pre-arranged meeting with Mr Shabalala near the Greyville racecourse. You will recall that there were doubts, according to Botha, in the mind of Ndaba whether he should attend this meeting, not knowing whether the news of his arrest might have become known and fearing for his own safety, that it was decided that he should nevertheless attend, but a signal was agreed upon which Ndaba was to give if he felt threatened in any way. Those are paragraphs 14 and 15. What transpired at the racecourse, Chairperson, is not really of much significance, in our submission. Botha and van der Westhuizen got out, followed Ndaba, and du Preez and Wassermann stayed behind in the car with which they arrived there. They were later told where the blue Toyota Corolla of Mr Shabalala was. They went around the corner, they saw it, they kept observation, the signal was given and then there follows the "arrest" of Mr Shabalala and off they all go back to the safe house. Chairperson, on the way Botha says in paragraph 19, - Botha told the Committee that on the way he asked Ndaba why he had given the signal that he was in danger and it appeared that Ndaba had lost his nerve and he expressed his fear to Botha that if the ANC became aware of his arrest that morning, they might suspect him of being an informer of the SAP.

Now Chairperson, stated coldly like that, in an atmosphere of a Court room 10 years later, it may raise an eyebrow, but one must remember, Chairperson that this fear of Ndaba may not have been so unjustified if one just thinks that nobody feels as guilty as a guilty person and him knowing that he was an informer obviously was foremost in his mind. If the ANC finds out I'm an informer, I'm in trouble. So it is perfectly logical and reasonably acceptable that that would have been the situation.

Now Botha attempted, Chairperson, to explain the problem which had arisen as a result of Shabalala's arrest, which he'd never intended to happen. He couldn't prosecute him because the only witness that he could have to testify against him would be Ndaba, which would have blown Ndaba's case. He told you that he needed no information from Shabalala because he had the full co-operation of Ndaba. It is true that Botha was under the impression that Shabalala operated under the command of Ndaba whilst Mr Maharaj said it was the other way around. Be that as it may, it is not important Chairperson, the fact is Botha - what is important is that Botha didn't need another informer, he got his information from Ndaba and to just continue on that score, Botha told the Committee that there was a very good relationship between him and Ndaba and he kept taking Ndaba into his confidence and that materialised and was shown to be so, that every time there was a new development in the whole Operation Vula saga, he went to Ndaba and informed him. So Chairperson, with respect, we say there is nothing suspect about this evidence at all.

So the problem with Shabalala is they're now stuck with him and Shabalala might put two and two together and realise that Ndaba is an informer and did lead the police to him and if he is then either released or detained where it would not be possible to prevent him making contact with messengers of the ANC, it would place Ndaba in a difficult situation and in a dangerous situation.

Paragraph 21 Chairperson, we deal with those two issues of the suspicion that Botha feared Shabalala might have and then in 22 we say and that was on a question from one of the Committee members, Botha said at that stage, thinking back at that stage, the possibility of Mr Shabalala's elimination had already become a real possibility in his mind and we give the reference.

Back at the safe house, Chairperson, Botha debriefed Ndaba further and the question then was what Ndaba was going to have to do and how to protect his position. He then told Botha of a fall-back date on the 10th of July and it was decided, in fact at the request of Ndaba, to which the Honourable Chairperson has referred me earlier, that he stays with Botha at the safe house until the 10th of July. This resulted in both of them being kept at the safe house at that stage, over the weekend.

Chairperson, I'm not sure whether you have the days of the dates, I've made a little list, it just occurred to me that you might want to refer to it. Perhaps I should hand it to you, but the easy way to remember the days was that that Friday was Friday the 13th and you can count forward and backwards from that point.

So Chairperson, we then reach the evening of the 7th. Ndaba had now given Botha keys to one of the safe houses, I believe it was the safe house at the Knoll and he had told Botha of the addresses of two others. Botha and du Preez then went and burgled two of those safe houses, in which they confiscated documentation and computer printouts. We deal with that in paragraph 27. Throughout all of this, Botha told the Committee that he kept Gen Steyn, his Commander, informed and with the fresh information from Ndaba and especially from the documentation found at the safe houses, Steyn decided that the matter should be reported to Security Head Quarters in Pretoria.

Botha and Steyn are then off to Pretoria on the 10th of July 1990, where they speak to Gen Basie Smidt, who was then the Security Chief, spoke to Bob Beukes, Alfred Oosthuizen and Andre Preiss and Col Jimmy Taylor and Brig Paul Abrie. Now after the briefing of the meeting, Basie Smidt said: "No, hang on, this is a bit too much for me, you'd better talk to the Commissioner tomorrow morning", which was the 11th of July and we deal with that in paragraph 29, where Gen van der Merwe said: "Hang on, you know, this is so sensitive we'd better inform the State President and the Ministers and Foreign Affairs and certain Embassies before we start arresting people" and this is the instruction and whether it's expressed as a request or not, Chairperson, you are free to accept that that was an instruction and an order. If the Commissioner of Police says: "Will you please do this?" Your wish is always my command, in that circumstance.

So Chairperson, on the 11th Botha comes back to Pretoria. There was, he couldn't really remember whether it was the 11th or the 12th but I believe that all the facts point to the fact that it would have been on the 11th. He comes back to Durban and he speaks to Ndaba, we say in paragraph 13, informed him of what had taken place and of the decisions in Pretoria and he says to Ndaba: "If arrests are going to be effected, will you be prepared to give evidence against your mates in Operation Vula?" and Ndaba said: "There is no way I'm going to do that."

In the meantime, Chairperson, Botha finds that while he was away, Shabalala had come to suspect Ndaba of being an informer and in fact he's told by his people that Shabalala had openly expressed this opinion to them. No, he says that he doesn't know quite what had given rise but questions given, questions posed by Commissioner Lax, show that there may have been a whole number of reasons why Shabalala in fact would have become aware and in point of fact, one would have been surprised if he didn't become aware in the circumstances in which they were kept. Well, perhaps that was stupidity, as Mr Maharaj says, or negligence on the part of Botha or anyone else as to how they were detained, but fact is Shabalala had become aware. Chairperson. It now transpires that Gen Siphiwe Nyanda is arrested on the 12th of July and this takes place around noon and he's arrested by du Preez and Wasserman and others. Mr Nyanda himself says there were two cars when he was arrested and about 10 white policemen, no black policemen. Du Preez and Wasserman explained in their evidence as to how it came about. They said that Nyanda became aware that he was being observed. Botha was cross-examined about that and du Preez and Wasserman, as to how that could have happened that he had become aware and Mr Maharaj had a few things to say about that as well. All of that is not important Chairperson, because in a report which is referred to as the Idasa report, it's Exhibit G, pages 34 to 47, you will find at page 39, where this report deals with Gen Nyanda, that on page 40 it is clearly stated and this is obviously based on the evidence which he gave in Court, Nyanda gave in Court, on the way there Nyanda realised that he was being followed, so that corroborates, in our submission with respect, the evidence of Wasserman and du Preez that he had become aware that he was being observed.

Anyway, he is arrested, Chairperson and taken off to CR Swart Square and we know that his car is later searched and we know that some weapons are found and we've given you those references. We don't believe that it's particularly relevant to the present application for you to concern yourself with, but this causes a chain-reaction of further arrests and during the day of the 12th of July Chairperson, some 12 to 15 further people are arrested.

Now Chairperson, I have just lost my way in the written argument.

MR LAX: Number 36.

MR VISSER: Is it 36 already? Well, then I must take you back to paragraph 34 because there appears to be a typing error, it was late at night last night, the last reference to Wasserman, Ndaba record, says 1238 and then it's got 95 and a 6. I think you must just - oh I see, I see, that's how it works, it's 123829, the 5 and the 6 must just be struck out, Chairperson.

Botha now informs Ndaba about the arrests and Botha's evidence was that he became visibly upset and as a result now of the arrest, Chairperson, the next meeting is held in Pretoria, attended by Gen Steyn and he is accompanied by Botha. At that meeting in Pretoria orders are given that a special investigation unit was to be established and Steyn gave evidence to say that he chose Col Zen de Beer to head this Special Investigation Unit and on the 30th of July Steyn learned during that meeting, that a decision had been taken, a political decision had been taken, that none of the people who had been arrested would be subject to prosecution. On the way back, and this appears quite clearly from the cross-examination by Mr Wills of Botha, it appeared that on the aeroplane back to Durban from Pretoria, from Johannesburg, Steyn informed Botha of what had transpired.

Botha now comes back to Durban, returns to the safe house and at paragraph 40, at Verulam and he says he found Ndaba in a terrible state. He was morbid and unsure of himself he says and when he informed him about the fact that there will be no prosecutions of those arrested people, Ndaba became even more upset and then Ndaba says to him: "Look, isn't it better that I go back to the ANC, play open cards with them and perhaps I will be forgiven?" and this, according to Botha, made a whole change in the whole situation as at that time.

Now Chairperson, we just, in parenthesis, at the bottom of page 13 drew your attention to the fact that we believe that Botha must have been wrong in Exhibit D as to when he had heard that there would be no prosecutions. Not much turns on it, but we just refer you to it for the sake of completeness. The fact is that it must have happened on the 13th of July, on the way back to Durban.

Paragraph 41 Chairperson, Botha attempted to explain himself by stating that the state of mind which Ndaba was in at the time, wanting to confess to the ANC, prevented him from being released and that is why we say Chairperson that he wasn't just free to go, it was, throughout it was Botha's decision whether he was going to go or not, the reason being that if Ndaba were to tell the ANC about the fact that Shabalala had been unlawfully abducted and detained, it would have caused a serious embarrassment, but there was another more important reason, Chairperson and that is that if Ndaba were to talk to the ANC and to divulge to them the knowledge which he had of contact persons, and I'll come to that slightly later because Botha was cross-examined about that, that would have seriously endangered those contact persons and with it the information network in a sense of the Durban Security Police.

We say also in paragraph 41 at the same time Chairperson, Shabalala also could not be released for the same reason, but in addition, he could well have drawn the inference if that was to happen now that Ndaba wanted to go to the ANC and he is eliminated, that that is what would happen and he might express that notion to the ANC, which would have caused an embarrassment and I'll come to the political question of embarrassment slightly later.

Botha then speaks to Steyn on the morning of Saturday the 14th of July 1990 in Steyn's office and he brings him up to speed with the latest developments and what is clearly of concern now to Botha is that Ndaba is now going to play open cards with the ANC. Steyn, obviously, says to Botha: "Well, you must try to get his head straight, you must try to persuade him not to do so" and Steyn gave frank evidence in this regard and said well he realised that if Ndaba's head could not be gotten straight, he would have to be eliminated. Botha attempted thereafter to persuade Ndaba and there was evidence, Chairperson, which you didn't hear but it is on record, that Botha had previously already arranged for an amount of R50 000 to be allocated and paid out in order to relocate Mr Ndaba in a proposed resettlement programme. Even this Ndaba would not accept, in fact part of that R50 000, according to Botha, would include plastic surgery to change the appearance of Mr Ndaba, but he didn't want to accept that.

Chairperson, paragraph 44, we have as best we could from the word go, from Mr Shabalala's arrest, tried to summarise what Botha stated. His considerations were as time went by and it kept on changing Chairperson and he, in paragraph B, there is reference to this "information network" about which he was vigorously cross-examined and Chairperson he explained that before Ndaba was deported to Zambia in 1988, he had given the name and telephone number of a contact person in Malawi to Ndaba as well as one in Swaziland. Those were two contact persons and Chairperson, one must be careful, in our respectful submission, not to underestimate or underplay this particular issue. To the conflicting parties to the conflict of the past, the protection of informers was of the highest order of preference. They had to protect their informers and they had their informers to see that they were protected because that's the way in which all wars and also the conflict in our past was fought.

Now Chairperson, a very similar situation arose in the Kondile amnesty application. In the Kondile amnesty application Barend du Plessis, Barend - I've forgotten his name, a police officer, du Plessis - Herman du Plessis, while Mr Kondile was in custody and detained, discovered a note under his mattress addressed to somebody in the ANC in which Mr Kondile said that he was detained by the police, he is playing along with the police, pretending to become an informer, but the ANC mustn't be worried and he'll be in contact later and this, in effect, Chairperson, led to his death on this basis that du Plessis gave evidence before the Amnesty Committee to say that he had given Kondile a contact person, the name and address of a contact person in Lesotho, through which contact could be had with him, du Plessis, by Kondile and that if he had released Kondile, that person's life and position would have been endangered and as we know on that basis, the Amnesty Committee hearing that application had granted amnesty to the applicant.

We say, Chairperson, that it has been accepted by Committees for Amnesty through the amnesty process, that it is incredibly important, it was incredibly important for members of the Security Forces to protect their informants even to the point of killing, to protect their identities.

Botha considered, we say in C(f), at page 15, all the alternatives. He considered detention which was for obvious reasons not the answer, because if you detain a man you don't prevent him from getting messages out and from making statements, in fact if you hold him in terms of Section 29, he's obliged to make statements. But however that may be, Botha decides detention is not on, he deals in E with the initial position of Shabalala and how it later changed and he refers to a paradox, Chairperson, to say that the paradox was that Shabalala's fate had already been decided in order to protect Ndaba initially, while now it turns out that Ndaba wanted to go and implicate himself with the ANC. Now when Botha decided that he could not allow Ndaba to go back to the ANC and therefore what to do with him, the considerations in regard to Shabalala had changed as well. If Ndaba were to be eliminated Chairperson and Shabalala to be released, clearly Shabalala would have voiced in his report to the ANC, his suspicion that Mr Ndaba had been eliminated, Chairperson and then there was also the question of the fact that Mr Shabalala had been abducted and unlawfully held by the police. Now with respect to Commissioner Lax, it was put by Commissioner Lax to some of the applicants: "But how could, if you think of the life of Shabalala, how could the mere fact that he was abducted and detained, have been so important?" leaving aside now the question of the possibility that he may have told the ANC that Mr Ndaba had been eliminated by the Security Police, but taking that as a fact on its own, how could that have been so important so as to justify killing Mr Shabalala? Chairperson, it's but ten years ago and one forgets easily what the situation was at the time and what that situation was was that in 1990 the people of this country were on a political hype, there were expectations, Chairperson, there was a juggling and a jockeying for political position. If we sit still for a moment and think back we can remember how each side tried to find something to place him on a higher moral ground and we also know, Chairperson, that from the early eighties, the detention of political prisoners had become a very emotive subject in this country and the press gave preference and made a big thing of the question of detention of detainees. You will recall, Chairperson, from your own experience, with respect, how many applications came to your Court in regard to political detainees and request for their release.

MR LAX: Sorry, I've got to stop you here and just make this comment. It certainly didn't stop the Government having states of emergency and detaining thousands and thousands of people in spite of the applications to Court, in spite of the press, in spite of everything. I mean the fact is, they weren't embarrassed, they just carried straight ahead and did what they had to do in their opinion, so it may have elicited a whole range of responses but it didn't stop the detentions and it didn't stop that conduct.

MR VISSER: Yes, I take your point Commissioner, except that here we're talking of - what you are talking about is so-called "lawful" detentions in terms of emergency regulations etc. That wasn't the position with Shabalala, he wasn't lawfully detained.

CHAIRPERSON: One week, Mr Visser, would that really have caused any stir, any damage to South Africa's already tattered reputation in those days?

MR VISSER: Mr Chairperson, where the National Party is sitting down with the ANC, where Nyanda had already suspected on the 10th that something had happened to Shabalala and to Ndaba, where he had voiced that concern to Mr Maharaj by calling him in Johannesburg, where Mr Maharaj had spoken to Mr Mandela and had mentioned Ndaba and Shabalala, that's his evidence.

MR LAX: You see, that is so, but there were also other bigger fish on the fry at the time. There was the whole question of the Caprivians that was being brought up, there were a whole range of, there was the so-called black on black violence that was on the go, these were all matters that were developing around about that time and the context wasn't one of a peaceful country in transition, not by a long chalk.

MR VISSER: Conceded, Chairperson, conceded, but what we're dealing with here is what was going on in the minds of these operatives and sometimes what went on in the minds of operatives, as we well know, differed, sometimes radically from what the objective situation was and what we're dealing with here is what was going on in the mind of Botha and he told you Chairperson that he considered, and Steyn corroborated that, they considered that it would be a huge embarrassment to the Government, sitting at the negotiation table, when it appeared that Mr Shabalala who was quite a important cog in the wheel of Operation Vula, was abducted and detained by the Security Police in Durban.

CHAIRPERSON: And what embarrassment would it have been to the ANC sitting at the negotiating table to have to disclose that they had set up Operation Vula, that they had Mr Shabalala there as one of the operators? Would that not have caused them far more embarrassment? We have heard about Vula, we have read about Vula, it was a mammoth operation whilst peace was being discussed?

MR VISSER: Absolutely, you are absolutely correct, Chairperson, but with great respect, how does that change the way in which Botha ...?

CHAIRPERSON: But you can't score points by saying one of our Vula Operatives has been detained for a whole week because the other side gets up and says: "And what was he doing here?" and all.

MR VISSER: Yes, but Chairperson, can one really expect Botha in his position to say: "Ach well, I think that's a political chance that we can take, let's release him"?

MR LAX: You see the important thing is that by the time Botha takes the decision, he's now aware of the import of all of this, he's aware that there's a whole political game going on and instead of being prudent and grasping the situation and Botha's no fool, that's pretty obvious, he in this incredible haste suddenly doesn't get hold of Steyn, doesn't wait a few more hours till he does get hold of Steyn, makes this decision on his own, when the context indicates that in fact here was a huge point-scoring exercise to be made of which this detention was just a tiny little detractor and you've conceded that already.

MR VISSER: But it goes further Chairperson. On that line of argument and I'm agreeing, we're agreeing, on that line of argument if Botha used his nut, with great respect, and if matters were dealt with differently with Ndaba and Shabalala, that very fact of their arrest could have been used to great political advantage at the time by the National Party, but Botha's no politician, Chairperson, he didn't think of all these things. It didn't occur to him. you may say that he was stupid, you may say that he over-reached himself, you may say that he was too hasty.

CHAIRPERSON: They say that as a policeman he should have asked for instructions from his superior officer, instead of concealing the fact from them, because we had evidence, didn't we, repeatedly that steps were taken to conceal?

MR VISSER: Chairperson, you're absolutely correct in a perfect society and it wasn't the situation at the time. We know that operatives, because they, from a misguided sense of loyalty point of view or from whatever point of view, they thought that this is what was expected from them, they had to bring the situation to normality and we know that they didn't ask for instructions and for orders and we know they didn't report back, because they thought that was the way to go about it. Chairperson, but ...(intervention)

MR LAX: Sorry, Mr Visser, can I just add one last thing? I know we're taking a lot of your time. You see, where I have a difficulty with Botha's mindset is that if he had consistently stuck to his misunderstanding of the import of all of this, I would then understand his subsequent decision as being consistent with that. However, he grasps the import, he makes it clear in his evidence that by the time he then goes to Steyn and they go to Pretoria, the import and the political relevance of all of this is grasped by him, so much so that he expresses his own disappointment at the politicians when there are not going to be prosecutions, so it's not as if he didn't have that grasp, he clearly did.

MR VISSER: Yes, but that's why he says that he couldn't release either Ndaba or Shabalala for the mere fact that they were unlawfully detained, that's how he interpreted the situation, in the light of that grasp which he had of the importance of Operation Vula. How would it have looked if the whole lid was blown off Operation Vula and Botha turns up and Steyn turns up and say to Zen de Beer or to Gen van der Merwe: "But hang on, we've got two of the operatives here in unlawful detention, do you want to speak to them?"

MR LAX: You see, that unlawful detention could easily have been converted into a lawful detention very quickly and you know - let me just say this, in my experience of those days, unlawful detentions were converted into lawful detentions. Yes, there were minor civil actions for the few days where there was unlawful detention, but nobody lost much sleep about that.

MR VISSER: But it didn't make the unlawfulness of the first detention go away, Chairperson and we're talking here about a time frame of very intense political activity and please ...

MR LAX: Look, we accept your argument. Let's put it another way, we hear your argument.

MR VISSER: Thank you and we live in the hope that you will in due course accept it, Chairperson, but may I make it absolutely clear that we are not trying to justify what Botha did. He's asking for amnesty. What he did was wrong and it is very difficult to try and justify somebody who did wrong. The only justification for Botha's conduct lies in the TRC Act, in that he acted in terms of what he considered to be a political objective and it was during the course of the conflict of the past and it was directed at members or supporters of liberation movements, Chairperson. We're not trying to justify it, not at all. With hindsight, of course, let us immediately concede that with hindsight, particularly in amnesty applications, one can think of millions of other ways in which they should have gone about things, but they didn't. We know that. That's a reality Chairperson. If I may return to ...(intervention)

CHAIRPERSON: Now, you've got about half-way through your argument.

MR VISSER: Yes. Chairperson, it's tea time I notice. I was hoping to have gone much faster than this. We've reached page 60. Yes, Chairperson, do you want to take the tea adjournment now?

CHAIRPERSON: How long do you think you'll be Mr Wills?

MR WILLS: Chairperson, probably about an hour, three quarters of an hour.

CHAIRPERSON: Do you think we can - if we do take an adjournment we'll try to make it as short as possible, but I'm conscious as ever of the other people who are working to make the hearing possible, who have been sitting for some hours and I think they should get the opportunity. We'll take a short adjournment now.

MR VISSER IN ARGUMENT: (cont.)

If I may proceed, Chairperson. We have just given you the reference to pages 14, 15 over to 16 of paragraph 44 where we attempted to summarise the evidence of Botha in that regard and we've now dealt with that. Chairperson, it is now history that, as we say in paragraph 45, that Botha in his mind after considering the options, decided that he could release neither Mr Shabalala nor Ndaba and that they had to be eliminated. He attempted to discuss the situation again with Gen Steyn on the afternoon of the 14th of July 1990 but could not contact him. Chairperson, it's not too difficult to infer that Steyn was then on his way to Pretoria for the meeting of the 15th which we know he attended. He then called du Preez in and informed him of his decision and in that sense du Preez was party to the "decision" because du Preez told you that he agreed with what Botha told him.

And then, Chairperson, we deal with what happened and the actual execution of these two persons, at pages 16, 17 and at paragraph 55 on page 17, Chairperson, we make note of the fact that their clothes were removed and burned at Verulam and that thereafter the blue Toyota Corolla of Mr Shabalala was taken out on the Ndwandwe road and burned. We will refer briefly back to that issue a little later on and then he reports on the 16th of July, we say at page 18 paragraph 57, to Steyn and Steyn ratifies and associates himself and that's the basis of Steyn's application for amnesty.

We've just given you a reference to the affidavit of Col Andy Taylor, where he in fact supports what Botha had said about the meeting in the office where he informed Taylor that Ndaba was his informer.

Chairperson as far as Steyn, du Preez, Wasserman and van der Westhuizen are concerned, we submit that their evidence was in support of the evidence of Botha. We realise that there were certain contradictions in their evidence, as one would expect in a matter where the events took place ten years before. We submit that there were no material discrepancies, Chairperson, and we submit that all of these persons showed that they came to this Committee to make a full disclosure of their participation in the events.

Chairperson, in paragraph 60 as far as du Preez, Wasserman and van der Westhuizen were cross-examined about the basis for the decision, we submit Chairperson that although they attempted to be of assistance, they really couldn't give you the answers because the answers lay in the mouth of Botha and they were only there and executed the orders of Botha and we say that, Chairperson, in paragraph 61 and 62.

Coming then to page 19 Chairperson and please stop me if I go too rapidly, from page 19 we deal with the evidence of Mr Maharaj and it really is self-exaplantory if you read this, what we've stated because we did it fairly completely, but I'll deal with it very briefly. Chairperson what you find in a, b, c, d to e at page 19, is simply for your convenience, a reference to what the documents contained in Exhibit J are and as far as we could establish, also the dates of those documents. Now as for as the dates are concerned, there is a problem and the problem is that some of the exhibits, you would have noticed, refer to a date when the information was received. Now that is not necessarily the date of the report. Because we couldn't find the date of the report, we have used that date as if it is the date of the report. As long as you understand where the dates come from that we've mentioned here. Then in one instance Chairperson, in Exhibit J 4, we couldn't find any date at all. Hang on, there is one, it's 16-07-87, yes, no of course, I'm sorry, I misled you there. It is 1987. No it's quite correct. Anyway, Chairperson, be that as it may, we start in paragraph 63 by summarising what Mr Maharaj testified and that is that basically his point was that Mr Ndaba could not have been an informer of the Security Police and he says that because there was this very strict screening procedure in which he was himself involved for persons elected to serve in Operation Vula, that he was a handpicked soldier and that he was incorruptible and it's almost impossible to resist saying, Chairperson, that we all thought that Hansie Cronje was also incorruptible.

CHAIRPERSON: On this, isn't one of the problems that on Botha's evidence, Ndaba was recruited as an informer when he was actively working with the ANC in Swaziland? it's not a question of him ever having been captured and turned, they must have spoken to him when he was an ANC activist, occupying a fairly responsible position in Swaziland and at that stage, Botha considered his life so valuable that he tried to take steps to make sure that nobody else in the South African Security forces could injure him and that meant removing him from where he was an informer, to get him sent out of the country where he might well have ceased to have any information at all.

MR VISSER: Absolutely, Chairperson, that may be so, but that was the mind frame of Botha. Rather have him out of the country, out of reach of the Security Police, than having him dead on my hands in Swaziland. That was his line of thinking and you will recall that his evidence was that he gave him the contact number of two persons, one in Swaziland and one in Malawi, clearly in the hope that information might be filtered through from Ndaba in Lusaka, but we submit that Botha can't be blamed for having felt that it would be better to have him out of the country, seeing or bearing in mind his new elevated position as Deputy Commander of MK. Now on that score, Chairperson, we must immediately say that Botha himself arranged for the deportation. Whether somebody, the politicians or head office on Botha's behalf arranged for it, or whether it just happened by the Swazi police, really does not seem to be either here or there, the fact is Botha had a concern that Ndaba was going to be a target and that has been corroborated by what Ms Poswa had put and by what we know. We know that the Piet Retief incident was in fact an incident of de Kock where they went to attempt to assassinate Ndaba, so it is clearly a position of danger in which he found himself after Tommy Zulu had been replaced. So Chairperson, what we say about Mr Maharaj is that was his evidence and we say that really it's speculative evidence, he's giving you facts from which he's asking you to draw an inference and the question is whether there is other evidence from which you in fact can draw the inference that because he was a hand-picked soldier, because of the screening process and because he was so incorruptible, he was in fact not a police informer. We say in paragraph 64, Chairperson, that Mr Maharaj attempted to do that with reference to Exhibit J which are copies mostly of reports of the Security Police, which he had in his possession and which he handed in in order to sustain the inference which he asked you to draw and as we understood his evidence, it was basically two things. The one is, he says with reference to Exhibit J, we say in paragraph 64a, that he would have expected that had Ndaba been Botha's informer, that it would have appeared from Exhibit J, that Botha would have attempted to disguise the fact that, or to disguise Ndaba or to disguise the fact that he was an informer. We say, this is from the record at page 1140, he says no attempt was made to protect the identity of Ndaba by the Security Branch and in particular Botha, who would have found a way to do so, he says. Now Chairperson, and he doesn't say what way should have been found, but he says that's his point and then in (b) he said that Exhibit J, that is what he said in his evidence-in-chief, Exhibit J showed that when the Security Police wanted to protect their informers, they always stated next to their names, "of no security interest" and we give you the reference at 1093 of the record.

Now as far as (a) is concerned Chairperson, that was based on basically an argument by Mr Maharaj, concerning Exhibits J (i), J (ii) and J (iii) and we have analysed that and we believe, with respect, that what we've stated here is the correct position. Chairperson and I'm quickly going to read it.

Now according to Mr Maharaj, Ndaba was thus identified to be ringfenced by him for action against him and that you'll find at page 1127 of the record in my cross-examination. I say, in brackets, Chairperson:

And I've given you that reference as well, 1166, but I take that no further at this stage.

We say, Chairperson, in order to cast doubt on the evidence of Botha and Steyn, that Ndaba was an informer with the above reference, it has to be established that this identification occurred after Ndaba had become an informer, otherwise it's meaningless and this is the one problem which this inference has, because the report, Chairperson, is dated the 14th of February 1988. That is the year, well my attorney says it's the 15th of February, sorry the 15th of February, it was handed in on the 14th of February, it was the 15th of February, that's Exhibit J (i), so we don't know, Chairperson, with respect, when this recruitment of Ndaba took place, other than what Botha says that it was during the first half or the early part of 1988. Now unless there is certainty that Ndaba by the 14th of February 1988 had already been recruited as an informer, this whole inference falls away. We say then, Chairperson, with reference to Exhibit J (ii), that is dated the 14th of September 1988.

and the word informer has fallen out there, and I give you the reference, Chairperson and now dealing with that argument we make the following points: Exhibit J (ii) nowhere shows that Botha identified Ndaba. It shows that informers did so and a person by the name of Miles drew up a report to tell the Eastern Transvaal Security Branch that informers had identified Mr Ndaba from a photograph as Charles Ndaba. So it's not Botha. That's the first point we make.

The second point we make, Chairperson, is the important one and that is that Exhibit J (ii), which chronologically follows Exhibit J (iii), is a reaction or a reply to a report of the Eastern Transvaal Security Branch and in Exhibit J (iii), the Eastern Transvaal Security Branch already identifies Mr Ndaba. They identify him, now under those circumstances it would have been madness by Botha to come and say well, it's not Ndaba, because after all the man was Second in Command in Swaziland at the time. So Chairperson, Mr Maharaj's suggestion that Mr Botha should have found a way for Ndaba not to be identified to the Eastern Transvaal Security Branch, doesn't hold water. They identified him. They apparently asked for confirmation from Durban because a photograph, either then with that report, or later, was sent to Durban and this photograph was identified according to Exhibit J (ii) by other informers as Mr Charles Ndaba.

So we say in (c) Chairperson, it is clear from the dates referred to, that the identification of Charles Ndaba from a photograph and the report in regard thereto in Exhibit J (ii), occurred after Ndaba had been deported to Lusaka, because it's dated the 14th of September, Chairperson and we've already given you the evidence to show that before that he'd been deported. So, it is submitted Chairperson that no significance can be attached to this whole argument of Mr Maharaj, in fact it falls flat on it's face.

Chairperson, we just deal in paragraph 70 with the import of J (iv) and J (v) and we repeat Chairperson that J (v) says that Mr Ndaba was deported at the time of J (v( which was in September 1988. Now just by the by, Chairperson, we say in paragraph 71, one wonders what weight one can attach to what Mr Maharaj says, because he himself confuses two different persons with each other and one doesn't know who he has in mind when he gives his evidence. He confuses Zandile with Zwelakhe and he later apologised and admitted that, Chairperson. We just make the point and we take it no further than that. One has to have a doubt as to whether Mr Maharaj knows exactly which person he's referring to when he talks about the facts.

Then Mr Chairperson, we come to the second point that he makes and that is that once a person was an informer of the Security Branch, he would be referred to with a qualification: Not of security interest. Now that appeared to be Mr Maharaj's big point with reference to the various documents in Exhibit J. Now we took that up with him and Chairperson we referred him and we also refer you to Exhibit J (i) page 11. Now there in paragraph 41 under the heading "Uitkenning persone" there's a reference to Jabu- "Nie van veiligheidsbelang", a Lucky - "Nie van veiligheidsbelang" and a Zondi - "Nie van veiligheidsbelang" and it was put to Mr Maharaj, but if you are correct in your assessment of how this qualification was used by the Security Police, then please explain to us why would Zondi and Jabu be not of security interest, because they were clearly "on the other side" and the answer as far as Jabu was concerned, by Mr Maharaj, he said he smells a fish here, he doesn't understand it, but the point is there was not basis or reason to believe that the Security Police would have wanted to protect her because she was an informer, because she wasn't and the same appears as far as Zondi is concerned. Zondi is the man who was sent into Natal, to Pietermaritzburg by the ANC to kill Inkatha people, we know that. Well, we know that, I say, that appears from the very Exhibit J (i) as a result of the information of informer PN666 and Chairperson when we came to Jabu and Zondi, Mr Maharaj says: "Yes, yes, I concede but let's get to Lucky, let's get to Lucky." And Chairperson, we got to Lucky and the problem which the argument of Mr Maharaj hit as far as Lucky is concerned is yes, he was an informer, yes, we say that in paragraph (d) at page 23, but he had become an askari and the moment a person is an askari, it's an open secret now who he is because he's registered as an askari at Head Office. There is no sense in saying "not of security interest" in order to protect the askari, he isn't of security interest because he is an askari. So Chairperson, with great respect, we say in any event in (e), if it was so customary for Security Policemen to qualify their informers by saying not of security interest, well then everybody would have known every time they read not of security interest, they would have assumed that this was an informer, so what would have been the point? There would have been no protection and no secrecy of the identities. It would have been an open secret.

Now Chairperson, having put these things to Mr Maharaj, we say in (f) and we give you the references, page 1168 to 1170, we say, Chairperson, he conceded in the end that Exhibit J does not reveal any identities of any informers apart from Lucky as he was before he was or he became an askari and his was mentioned because he became an askari. So we say, Chairperson, that that argument has been settled by the very witness who presented it and muted it in the first place. He has conceded that. And the result Chairperson, we submit in paragraph 74, that it cannot be argued that Exhibit J supports the contentions of Mr Maharaj.

Now we conclude, and please allow me just to make these submissions. We submit Chairperson in the circumstances during 1988 that it would have been madness for Botha to have suggested to Security Head Office that Charles Ndaba, the then acting Commander of the Natal MK Machinery in Swaziland was of no security interest. It just doesn't follow. When this was put to Mr Maharaj, he couldn't give an answer and the reference is there, you can read it. 1167. He just couldn't - he was flabbergasted, he didn't expect the question and he couldn't give an answer. If Mr Ndaba was indeed not an informer, the question is how Botha came to know of the information which he says he received from him. Now Mr Wills suggested that he was picked up fortuitously together with Shabalala and through torture they learned of it, but Chairperson, that's not really the answer you see, because with respect, Mr Maharaj gave evidence to you to say that Ndaba actually knew nothing. He wasn't briefed. They were not so stupid as to send operatives into the country fully briefed because if they were caught they'd tell people.

Now the fact of the matter is, Botha's evidence was that he got certain information and it was as a result of that information that the whole Vula Operation's lid was blown off, so the probabilities are overwhelming that he got this from Ndaba. Now Mr Wills says he was tortured, Botha says he was an informer, we say, Chairperson, that the fact that he got this information is neither conclusive of the one or the other, but one must look at the evidence of Botha and weigh it up against the contradictory evidence by Mr Maharaj, that Ndaba knew nothing and we say that it's overwhelmingly probable that Ndaba did know the things that he told Botha and that Botha did get this information from Ndaba and not as Mr Maharaj says or seems to indicate that Botha ex post facto when the matter became investigated and facts came out, then projected his later knowledge onto the situation at the time.

So those are the submissions we submit Chairperson are of importance. There is, in our submission we say in 78, no evidence at all to suggest that Ndaba or Shabalala were tortured. Ninela did suggest in his affidavit that some of the members did slap Ndaba around a bit, Exhibit F page 22 to 28 and Botha has denied it. In fact all the applicants who were there have denied it Chairperson and in any event as you quite correctly and poignantly pointed out to Mr Wills, that is not by any means a torture, slapping them around a few times. That's talking about CR Swart. At the safe house, Chairperson, you have the word only of the applicants to go by, but there is one other probability that is important and that is C20's people are there and they speak to Ndaba on the 8th of July and remember on the 7th of July that night already, there's a burglary based on inference received from Ndaba, so presumably if they tortured him to get information and presumably the keys of the house from him, that would have happened on the 7th, on the Saturday. The C20 members talked to him on the Sunday and we submit with great respect, that if Ndaba had been severely tortured to the extent that he couldn't be exhibited to the public or to anyone else thereafter, then Botha would have never made him available to C20.

MR LAX: Why? Why not?

MR VISSER: Because those people would have realised, would have seen that the man was tortured.

MR LAX: So what? They wouldn't necessarily have ...(intervention)

MR VISSER: Well ...(intervention)

MR LAX: Let me just finish. Would C20 necessarily have revealed to anybody the fact that a detainee had been tortured?

MR VISSER: But that question doesn't take us to the root of the problem, Chairperson. The question is, could Botha take the chance that they might, not necessarily, but if they might, why should he take that chance?

MR LAX: Just stop for one second and ask yourself this question. We've heard hundreds of applications involving Security Force people, all of them in Section C and Security Branch and so on and we know that there was a general pattern in which torture and assaults were covered up. You can't deny that Mr Visser.

MR VISSER: Are you talking about operators, Chairperson? Yes, these were researches from Section C 20.

MR LAX: You're saying that they would have blown their colleagues out the water by revealing that?

MR VISSER: I say I don't know. I say Botha would have been mad to take that chance that they might. And Chairperson, who of Section 20 have you heard that have applied for amnesty before you? I'm not aware of a single one of them. They were researchers, they were not operators, with great respect. We submit, Chairperson that in view of the lack of any evidence, positive evidence that there was a torture or an assault, you will not accept that there was such a torture or assault.

Now Chairperson, in paragraph 79 we say that Mr Maharaj's evidence was, at best, inferential evidence and he conceded at the end of the day that he cannot prove that Mr Ndaba was not Botha's informer, for obvious reasons and that he is working, not with probabilities, but with possibilities and we say, Chairperson, that we're all just as surprised to hear certain confessions from our ex-cricket captain and Mr Maharaj must perhaps live with the reality that people are not always what one expects them to be. We say, Chairperson, with great respect, that all in all the evidence of Mr Maharaj was of little assistance to you.

Chairperson, I'm not going to deal with each and every one of them. I've given you all the references in paragraph 82. We're constrained to submit that Mr Maharaj adapted his evidence, contradicted himself in material respects and we give you the references, comparable references. He was a hostile witness, a very hostile witness to the applicants, Chairperson and if any proof of that is necessary, it is there. He was an evasive witness, Chairperson and he sought the Committee to draw adverse inferences against the applicants where no grounds existed and there's one reference in that regard.

Chairperson as far as the blue Toyota Corolla is concerned, the matter - some dust was kicked up about the chopping up of a blue Toyota Corolla by Zebron Thusi and Philip Zungu, Chairperson. We give you the references in Exhibit F. We say, Chairperson, that none of these persons gave evidence and in view of that fact, we ask you to accept the evidence of the applicants that the car was in fact burned out. They don't specify even what year they saw that chopped up Toyota Corolla Chairperson and even if you wanted to accept their statement, you couldn't bring it to be the Toyota Corolla of Mr Shabalala based on that fact. They didn't even say what year it was that they saw this.

Chairperson, Mr Wills put it to van der Westhuizen yesterday as a fact that no burned out wreck was reported or entered by the South African Police in their books. Chairperson, we're not aware of any such evidence. Perhaps my Learned Friend has evidence which we were not made privy to, but we certainly know about that, but I'm not going to deal with it because it doesn't take the matter any further because you see Chairperson, the argument is this, even assuming the police found the wreck, found the engine number and the chassis number, they would have traced it to Mr Shabalala, not to the applicants. They couldn't possibly trace it to the applicants and if they traced it to Mr Shabalala, then so what? They found Shabalala's car burned out.

CHAIRPERSON: That information would have been available, wouldn't it?

MR VISSER: Well it is ...(intervention)

CHAIRPERSON: We know that the matter was investigated.

MR VISSER: Yes, but Chairperson, we don't know what happened. We don't know what happened to that wreck. It may have been taken away by the City Council, whoever, the Municipality there, we don't know.

CHAIRPERSON: Well what we haven't been told, at least I think we haven't been told, it may be somewhere in the record, it was in fact somewhere near a dump.

MR VISSER: Yes.

CHAIRPERSON: But I don't think we have been told in any of the evidence precisely the nature of the dump.

MR VISSER: No. No we haven't. No it was simply stated to be a "...(indistinct) terrein", a dump site and in fact, Chairperson, when the Investigative Unit went out there, they had difficulty finding even the dump site. They couldn't even, as I read the report, they had difficulty identifying that it was a dump site, so it was probably not a big dump site and a dump site could mean anything, as we all know, so we don't know, you're quite correct, but fact of the matter is, Chairperson, that's the end of that.

Wasserman and du Preez, Chairperson, did, when it was put to them in cross-examination, did say that they knew of the fact that cars were chopped up there, but they categorically stated that it wasn't Shabalala's car because that one was torched. There is no other evidence which we have to deal with Chairperson, that has been presented to you. No evidence of evidential value. Mr Wills in his cross-examination outlined, Chairperson, the objections at page 980 to 981. One is that it's disputed that Ndaba was an informer, we've dealt with that. It was suggested that Ndaba was arrested and tortured, we've dealt with that. Then it was decided to go to Pretoria to take further instructions and then a big point is made of the fact that the - of the arrest of Gen Nyanda and Mr Wills sought to import ill-will or malice into it by saying that that was a direct order which was not followed and it was done because of ill-will or spite, but now Wasserman and du Preez, Chairperson, gave you evidence to say that Nyanda had become aware that he was being observed. He could only have been observed by the Security Police, by no-one else and that necessitated his arrested and both of them said even if there was such an order, it would never have stood in their way under those circumstances to arrest him and we ask you to accept that, Chairperson, because it just makes perfectly good sense, because if they didn't and he had become aware, he would have blown the whistle and all the operatives would have gone into hiding, as in fact happened. It in fact happened, there is evidence on record that on the next day people in Johannesburg had gone into hiding and couldn't be found.

Chairperson I just refer you to the fact, in paragraph 92, I don't know whether anything turns on it, that Mr Wills suggested to Steyn, clearly on the evidence of Mr Maharaj, that two other people were arrested before Mr Nyanda. Chairperson, we have it differently. with respect, we can't take the matter any further. We don't accept that evidence of Mr Maharaj, we have to accept the evidence of our witnesses. Ms Poswa who suggested that the evidence that Ndaba was on the wanted list is in 93 and the references Chairperson and we say, Chairperson, that the acceptance by the Committee of all evidence against the applicants depends on reliability and credibility and we ask you to accept that of the applicants.

As far as the assault of Charles Ndaba is concerned, we refer to that on page 96, paragraph 96, with the references, Chairperson and we simply say in 97, if Botha is correct that Ndaba was an informer, none of what Ninela says makes any sense at all, because then there's no point for Botha to have questioned Ndaba about his hiding place when he had already received so much more from him.

Chairperson, slightly on a legal aspect, both Mr Wills and Ms Poswa attacked the applicants on the basis that their conduct was not authorised. Chairperson, that deals with Section 20 (ii) (b) which deals with members of Security Forces acting within the scope of their authority and within their express or implied authorisation. We refer very briefly to the fact that we have argued for these past two years that the section contains an inherent paradox and we say, Chairperson, that the amnesty decision in Khotso House at pages 5 to 7 have finally put that matter to rest and there the Amnesty Committee hearing the Khotso House amnesty application, of which you were the Chairman, at page 5 and I'm going to refer very briefly to it, said:

and I just read some extracts:

Over the page at page 6:

and then again:

Well, I'm sorry, I'm sorry.

and then the Judgement of Appellate Justice de Villiers as page 400:

And then further down the page, at page 400:

And then with reference to the Appellate Division case in Van der Bijl v Swanepoel, the Judgment of de Villiers, J A:

and it goes on, Chairperson, and it says at the end of the day that what the words in the Act mean, as interpreted by the Committee that sat in that case, means that once the servant does something whilst in the service of his master, then it is within the scope of his authority and the exercise of his duties and with great respect, Chairperson, that matter has been laid to rest and it has been interpreted to mean that which he did while he was a policeman, not in his private capacity and which were related to his services or duties, as he saw it, as a policeman and an employee of the State.

Chairperson, as far as Section 20 (ii) (f) is concerned, we submit that that was conceded by Mr Wills, paragraph 108 at page 30, in the Ndaba record 104, that it was conceded as far as Steyn was concerned, that he reasonably believed that he was doing the right thing or words to that effect and we say there's no logical reason to distinguish the other applicants as having also thought so.

Chairperson, as far as full disclosure is concerned, we want to submit to you that as Botha said, answering a question, he said:

and one must ask oneself the question, why this fantastic turn of events? Why these changing events as time went on, if it weren't true? And we submit, Chairperson, that it shows that the applicants really attempted to make a full disclosure to this Committee in regard to their participation. The very fact that the facts are so complicated and so hard to explain and Botha found it hard to explain for various reasons which Mr Lax has also put to me, we say there was a full disclosure. We make some other submissions there as well on that point.

Chairperson, as far as the political objective is concerned, we have dealt with that and complying with their duties and their authority, we're not going to read all of that, it's there. The ill-will or malice, we say there is no evidence to support that finding. As far as the proportionality is concerned, that is closely related to the political aspects, Chairperson.

I see it's ten past twelve, I'm going as quickly as I can. And we say, Chairperson, that one must view it against the total background of the political situation at that time and even if we today say that Botha was wrong, he over-reached himself, he was stupid, it doesn't matter what, but at the time this is what he says he believed and we say, Chairperson, that his evidence in that regard should be accepted. As far as the victims are concerned, we know they were members of a liberation movement against whom the security forces found themselves in battle, if I may use the word, during the conflict of the past and we say, Chairperson, with great respect, that the applicants in the present case complied with all requirements of the Act to enable them to obtain amnesty and we ask you then to favourably consider granting them the amnesty as they have applied for. Thank you Chairperson and I do apologise for having been so long.

CHAIRPERSON: Before Mr Wills comes on, can I ask you a couple of questions? Oh no, the one is for Mr Wills, I see.

MR VISSER: I'll answer those also.

CHAIRPERSON: Whether Ndaba's police record at internal Security Head Quarters, Pretoria, had been obtained? This is the last page of Wannenberg's report. It's about the question of Ndaba being an informer, but the other two then which you can perhaps comment on, that Ninela in his affidavit says not only was Charles asked about where he had hidden himself, but that he told them and that he was with Nyanda and Shabalala, this was after the slaps on the face. It appears from one of the other affidavits that it's possible Botha arrived after the questioning of Ndaba had started and in the same affidavit, I don't know if one can draw any inferences in this, for the capture of Ndaba who was a police informer, he was paid the sum of R8 000. Would that have been done, in fact? What are the probabilities?

MR VISSER: Well, Chairperson, I can tell you from experience as a fact that the askaris were paid a commission, if you will, for each arrest. Whether it was R8 000 in Natal or not and whether that was the going rate I don't know, but on your question where it is an informer, that's something that hasn't occurred to me to ask, but it's a shrewd question. I don't know the answer to that.

CHAIRPERSON: Mr Wills.

MR LAX: Just one thing, before you go Mr Wills, it just struck me. I meant to put to you the fact that Botha arrived after the initial slaps had happened and just - let me finish - that, and I didn't because I knew that factor was irrelevant, but in the light of what the Chairperson has just suggested, how would Ninela have known that information that he then says in that affidavit as what Ndaba told them?

MR VISSER: Are you finished, Chairperson? Well, Chairperson, two answers to that. One is yes, it was in fact put to Botha that this may have happened before you arrived and I believe, if I remember correctly, he would have had to concede that and I think he went on to say: "I didn't see any signs of any assault on him", but on the second issue, one must really analyse what Ninela says and he really says nothing. If he wanted to go and sit down and suck something out of his thumb, he would have come up with this. They asked him where his hiding place was and who his confidants were and that kind of thing.

MR LAX: The point is the names, he gives the exact correct names who Ndaba would have been with and you see, if you link that to Sekakane's killing, the reason Sekakane was killed was because he was about to reveal the fact that Ndaba and Shabalala had in fact been eliminated.

MR VISSER: Chairperson, I'm quite happy to concede that this may have happened. The only point that we're concerned with here, and that's why I didn't deal with it in detail, is whether these applicants were part and party of that.

MR LAX: But you see, that then implies if what Ninela says is correct in his affidavit, it implies that at that very earliest stage, Ndaba has spilled some beans as a result of being slapped around.

MR VISSER: I accept that.

MR WILLS: Thank you Mr Chairperson.

MR WILLS IN ARGUMENT: Mr Chairperson, the applicants clearly oppose the granting - sorry, the family members clearly oppose the granting of amnesty to all of the applicants. I hope to be able to convince the Panel that firstly the acts were not associated with a political objective.

CHAIRPERSON: Sorry, before you go on, can I confirm, this is being recorded, is it?

MR WILLS: That all members concerned were not acting in the course and scope of their duties, they were not acting with an express or implied authority and particularly not, in the case of Ndaba, directed against a politically known liberation movement or any opposition. They were not committed bona fide with the object of countering or resisting the struggle and they did not, on reasonable grounds believe they were acting within the course of scope of their implied authority.

Mr Chairperson, I turn to consider the motive of the applicants and the way my argument is structured is, basically I've used the Act as my framework.

Looking at Section 20 (iii) (a), the motive, the main theme as regards why Ndaba was killed and this I'm taking from at the point when the decision was made to kill him or at the material time when he was killed, i.e. on the 14th, was that he was going to reveal intelligence networks to the ANC.

CHAIRPERSON: And possible agents.

MR WILLS: Yes, and possible agents, I've just used that as a globular term. I submit with respect, Mr Chairperson, this cannot be believed. The probabilities are that Ndaba didn't have much knowledge and the information he had was very limited. He hadn't been an informer since he left for Zambia in 1998 and it's been confirmed that he had absolutely no contact with Col Botha during his time in Zambia. Then we've established he comes back to South Africa on the 7th of February 1990, he makes absolutely no contact with Botha, on his evidence, prior to about May 1990, that's some four months, and neither did Botha make any contact with him, which I submit if he was an active informer at that stage, Botha would have known precisely when he had come back and would have known precisely how to get hold of him and basically, as the evidence of Mr Maharaj, which I think is ...(intervention)

CHAIRPERSON: I think it's common cause, isn't it, that he had been an informer with Botha but that this had lapsed. There had been no contact. He was not an active informer when he came back to this country and he is the one who, as I understand the evidence, it was his choice in May to reopen the contact.

MR WILLS: Yes, well that is the evidence of Botha, Mr Chairperson. I agree with that although I don't accept that evidence and I will detail why I don't accept that evidence as I go through. The fact that he had very little evidence, apart from what Botha had said, is based on the fact that people would only have evidence on a need-to-know basis, even if he was an informer, so the possibilities of his, of great damage to intelligence networks and/or informers in other countries, is minimal.

The main motivation for the killing of Shabalala as we know, was initially the decision that he had to be killed to protect Ndaba being disclosed, but that later changed and it became the issue of embarrassment for him being detained for so long and also later that if released, he could release Ndaba. I submit that there can be no basis for this. Obviously the issue of embarrassment, I submit, for a couple of days detention, is a minor issue and wouldn't have caused any embarrassment whatsoever to anybody in high office, particularly in the light of the numerous detentions and atrocities over the years and to my mind and with respect, there would have been no real problem if Shabalala had revealed that the police had Ndaba, particularly after the 12th of the seventh, when the whole Operation Vula was made public and a number of people had already been arrested and I submit that there was potentially, in the minds of the applicants, there must have been far more of a potential embarrassment if it had become known that the two deceased persons had in fact been murdered. It was far more of a potentially dangerous situation.

Mr Chairperson, turning to the context and I submit the context is extremely important in the light of the decisions taken by the applicant and I submit it reinforces the fact that there couldn't have been a political objective for the reasons which they out forward. Vula had been exposed and very senior people had been arrested on the 12th of the 7th, prior to the murder. This surely reduces the need to deal with the two people in the way that they were in fact dealt with. The main Operation Vula had been exposed. Why are you wanting to kill somebody to protect info which might prevent something coming out the bag, which had already come out the bag?

The other context was that, part of the context was they knew Ndaba hadn't been involved, on their own, in intelligence gathering operations since 1998. The other important context, and I submit this is an extremely relevant factor, is the fact that the negotiation process was taking place and I submit that this is the reason why this issue took such a high priority and people of the highest political office became involved and people of the highest political office, both politically, the evidence of Maharaj that was to the effect that Mandela had been briefed on the disappearance of these people and de Klerk had undertaken to try and find these people and de Klerk answered that the Security Branch know nothing about this, so it was dealt with at the highest possible level and it was also dealt with at the highest possible level within the police. Gen van der Merwe himself got involved on an urgent basis to deal with the - and had the meeting with Botha and Steyn on I think it was the morning of the 11th. There was not at that stage, with respect, an extreme war situation going on. I submit the applicants should have known that the position had changed. The whole negotiation process must have made them come to realise that it was important for them to listen to the instructions that they got from their superiors when dealing with such an important event. Specifically the context holding two people who would have been needed for de Beer's investigation team, the national structure had set up this team to deal with Vula, it would have been more important for the Government to hand these people over to de Beer so that that process could have been facilitated and they could have contributed to that process. The other aspect of the context, particularly when one considers the date of the killing, there was no need to rush this killing, there was no need for them to find on their version, which is disputed, that simply because for a 24 hour period, or even less, Ndaba had become disturbed, that they had to go through with the killing immediately and I submit that is a significant factor when one considers the gravity of their act.

CHAIRPERSON: Can you suggest why they did? Because accepting now that Ndaba was a highly trained man, a man who knew a great deal about Vula, who'd already told them a great deal about Vula, surely any policeman who was interested in the proper investigation of Vula, would have wanted to have kept Ndaba available for further consultation, further inquiries.

MR WILLS: Yes and I submit that that was exactly the reason why van der Merwe had appointed through one of the applicants, Gen Steyn, this national investigative team. He was needed for the purpose of scoring the most political points for the National Party, through this investigative team, so why, it is a question as to why he was ...(intervention)

CHAIRPERSON: Can you suggest an answer?

MR WILLS: Well, unfortunately Mr Chairperson, we're in the position where we - the only information that we have on what happened is taken from the people who were there. We didn't have any witnesses there. It will be my submission that the two people had been so severely beaten that it would have been extremely embarrassing for them to release them at that particular point in time and I'll go on to argue that point in more detail at a later stage.

There is also the issue of the - in answer to your question Mr Chairperson, the issue of, the evidence was accepted that all of the applicants were very disappointed by the fact that no action was going to be taken against these persons. It is clear that they all knew that in the final analysis, all people involved in this operation, the senior people and possibly also the two people they had were going to, in fact, get away scott free and I submit that they were not happy with that at all and they decided to take the law into their own hands.

MR LAX: But then why didn't they kill Nyanda? They had him as well at that stage?

MR WILLS: Well, my understanding was that Nyanda was arrested in different circumstances. He was arrested by 12 persons. That 12 or sorry, was it 8? That a number of persons ...(intervention)

MR LAX: Including some of these applicants though.

MR WILLS: Including some of the applicants, he wasn't held at the house, he was exposed to a different arrest scenario. I'm not sure where he was detained, but clearly he wasn't held secretly and also his existence was known by - at that time discussions about his presence int he country had obviously taken place between the applicants and their seniors in Pretoria, so it would have created a serious problem for him had it become known that they had arrested him, or members of their unit had arrested him and then he'd simply disappeared. So I submit that there was very real reason to distinguish between Nyanda and these two, who were in fact kept a secret from their superiors.

ADV BOSMAN: Mr Wills, Mr Ndaba's arrest was also on record, wasn't it?

MR WILLS: Yes, it was on record. The position with Ndaba though is he was immediately taken away and the persons surrounding him at that particular point in time, well at least at C R Swart, were mainly colleagues of the applicants, they were Col Andy Taylor's unit, but I submit that I'm quite surprised and I can't really give an answer to this, but I'm quite surprised as to why Zen de Beer hadn't followed up that arrest and established where he was from that point in time, but the only possibility is, and we know from the applicants that Zen de Beer was asking about this and asking them about this and according to Wasserman, he was given the direct order not to co-operate with de Beer's unit and in that sense they put him off the track, but that, I concede, is speculation.

CHAIRPERSON: The other problem there, it may be irrelevant, but it's a problem to me, is Andy Taylor.

MR WILLS: In what regard is the problem?

CHAIRPERSON: As I understand it, he stormed out of the meeting on Saturday morning in a temper. One would have thought he wouldn't have been covering up for people.

MR WILLS: Yes, well I would assume that because of the nature of I think it was Col Taylor's work, that he was in the same boat as these individuals and I'd say that his relationship to Capt Botha as a direct colleague, was that he wouldn't interfere with his business at all.

CHAIRPERSON: Would he have told de Beer: "Look, they've got a couple of witnesses who should be able to help you get started"?

MR WILLS: Well, possibly not, but I submit that that doesn't take the applicants' case any further, what Taylor would have done, respectfully, Mr Chairperson.

The other contextual fact which I think is important in terms of Section 20 (iii)(b) is this absolute incredible, to my mind, position that at no stage was Shabalala questioned on their version and I submit that that is totally unbelievable. The position here is you've got an informer. He then leads you onto Shabalala, they see fit to release him to the C20 unit to be questioned for identification purposes but for some strange reason nobody seeks to have any information, interrogation session with Shabalala and I submit, in probability that just cannot be believed. At the very least - sorry.

CHAIRPERSON: As I understand it, somewhere in this record, I think it was Mac Maharaj, when Ndaba arrived out here, he was a highly qualified person, but he had no local knowledge so he couldn't be appointed as Commanding Officer. They appointed Shabalala. Later they swopped positions as I understand it, so if Ndaba was an informer, presumably he would have told Botha who this man Shabalala was that he was going to meet on Saturday afternoon and Botha decided it was so important that they should do so, even though the evidence is that Ndaba wanted to postpone the meeting and said he had a fall-back meeting on the Tuesday, but Botha said no and persuaded him to go and see Shabalala on the Saturday and yet when they are, and I accept that they were forced to arrest him by the misunderstanding or unfortunate incident, they just don't question him. It is incredible that they have got this person they know to be senior, they suddenly are now being told all about Vula, everything is blowing up and they just leave this man sitting there.

MR WILLS: Yes, indeed. Mr Chairperson in addition to that, the usual practice which was admitted by I think Wasserman and I think it's common knowledge that if you've got two people, both involved on the same operation, it would clearly not be wise, particularly of somebody like Botha's skills and experience, he's been in Security Police for 17 years, that he wouldn't at the very least question Shabalala and corroborate that information with his informer. There's no doubt that, it doesn't take a person with 17 years experience to realise that two people are in different positions, the one could have more information than the other. At the least they should have questioned Shabalala and I submit that Botha was deliberately lying on that point. I cannot believe his evidence that there was no need to interview Shabalala because Ndaba had all the information, particularly when Botha knew that Shabalala had been internal, he'd been an activist, he said on record he was an activist in the UDM or the UDF and he was an internal person and he knew that his person, his alleged person had been outside the country for so long, so common sense dictates, if you know both of those things, you'd want to find out what the internal person had to know, simply because he's been internal.

MR WILLS: Obviously I have no objection to that at all, Mr Chairperson. Thank you. Thank you for that indulgence, Mr Chairperson.

Turning to Section 20 (iii) (c), that's the section that deals with the factual nature and the gravity of the offence, my submission is that this was a callous assassination designed to cover up deeds of a particularly heinous nature, even from their own superiors. Their own version of killing somebody who has given vital info, the informer. How can you treat your own informer this way? You give him less than 24 hours to come right in a particularly stressful situation and then, in the case of Botha, you actually execute him yourself. I submit that there cannot be more grave acts than that. The rush also is particularly menacing for the applicants in this regard, i.e. there was no chance given to Ndaba, they did not even bother to give Ndaba an opportunity to regain his sanity. The other aspect which I find particularly grave is the fact that on all the evidence at no stage did they even try and recruit Shabalala. It was conceded that had Shabalala been recruited, then their problems would have been solved. There would have been no need to have taken that action and I submit that this intensifies the gravity of the act because they didn't even bother to think of ways or to act on a possibility whereby they could have avoided this act, on their version. It's particularly grave in the context where an investigation team has been set up to investigate the very operation that they've been involved with.

Briefly on the objective of the act and there's just one point that I want to make here, Section 20 (iii)(b), on their own version and in respect of Ndaba, this was not directed against a political opponent. Botha through the questioning of my colleague, Ms Thabethe at page 935 of the record clearly states and this is in the context of right up at the point of killing him, he makes the quote that he regarded Ndaba as "one of their own". I submit the real objective was a cover-up of the wayward unit's activities, which was totally out of line with the rank and file of the structures within the security establishment. The main point however, Mr Chairperson, I want to concentrate on is, my submissions in respect of Section 20 (iii) (e), Execution of Orders. Well clearly it's common cause that Botha and Steyn were not acting under orders. However, what is important about their activities is they acted contrary to orders and the two orders that I refer to in this regard is firstly the order given by Gen van der Merwe not to make any arrests before the week commencing the 16th of July 1990 and it's common cause that this order was given before 7.30 on the 12th and also the second order that a National Investigation Team under de Beer be set up and Steyn specifically was ordered to set this up.

Now as regards the order not to make arrests, there was some dispute throughout the course of evidence as to whether or not this was an order. I submit that this is just not acceptable. Botha at page 852 concedes that he received a direct order from van der Merwe not to make arrests before the 16th. Mr Chairperson the importance of this order and I submit it is crucial to your assessment of this application was that this order was given in the full context of the negotiation process and as such, it should have been obeyed. Here we know that they know, the applicants know and particularly Botha knows and particularly Steyn knows, that this is an extremely sensitive operation which they have uncovered. On their own admission, that is the case. They act on that and they go and see their superiors in Pretoria to reveal this. Now then they get an order, they get a response on how to handle the situation, but they don't even bother to communicate it to those who are doing the surveillance, they don't even bother to phone anybody in any way and in circumstances where it was admitted by van der Westhuizen that at the time, it would have taken half an hour or less to communicate with them. Now we know that the arrests were on their version, started to occur at about midday on the 12th. The best case for them is that they had from 7.30 on the 12th to midday to communicate with their juniors. Steyn also admits that this was an order at 949 of the record and 1006 he says:

At 116 he clearly states: "That was the order" and that was specifically the order that no arrests were to be made before the 16th. He goes further and Steyn admits at 1008 of the record, that he should have communicated the order but what damages Steyn's case further, and I find it peculiar, that even after the arrest, Steyn does not communicate with anybody in Pretoria to inform him of this development. Now I submit that that is indicative of his complete disregard for the order. One would think at the least that he knew he had that order. He was contacted by Botha soon after the arrest of Nyanda. Surely in the political sensitivity of the matter, bearing in mind the personalities involved in his own military structure, or his own Security Force structure, he should have at least communicated with people in order to let them know what was going on.

As regards the order for a National Investigative Team to be set up to deal with the matter, it is important that that team was specifically set up to deal with this matter because of the political sensitivity of the matter. Now this was basically ignored by this wayward unit. Botha admitted that he actually hid the arrests, the fact that these two people were arrested. It wasn't just a coincidence, he admitted constructive, conscious non-disclosure to de Beer and at 891 he states quite blandly and I quote:

Steyn also at page 1000 concedes he consciously hid the fact that Ndaba and Shabalala had been arrested from the Investigating Team. Now I submit this is indicative of somebody not acting on the business of their master. In a quasi-military structure or a military structure as the police were in those days, you take you orders from the top. If your master has communicated to you about a specific point, that becomes your business. I, with respect, do not see how Mr Visser's argument can be sustained in these circumstances, where essentially what Mr Visser's argument amounts to is merely because they were policemen, they were acting on the behalf of their master. here the distinguishing factor from the Khotso House Judgment is that they had specifically received, Botha and Steyn had specifically received orders to the contrary and they disregarded those orders, so I submit with respect they were acting directly and consciously outside their authority. Steyn again at page 134 admits he made a conscious decision not to reveal arrests to de Beer and he admits at 135, the right procedures would have been for Botha to have conveyed all the information he had in his possession to the investigating team.

CHAIRPERSON: What page?

MR WILLS: Sorry, this is page 1035 of the record.

CHAIRPERSON: 1035?

MR WILLS: Yes. And then he goes further and I submit he had no choice that at 1040 he admits:

Wasserman indicates at 1294 that Botha told them not to co-operate with the investigating team. van der Westhuizen was aware of the Investigating Team and did nothing to assist it and he conceded in his evidence yesterday that he should have.

Now, I submit - sorry is my - Mr Visser, are you wanting to say something?

MR VISSER: ...(indistinct - mike not on)

MR WILLS: Thank you. The other order which I submit was disregarded by Botha was the fact that Steyn said to Botha to get his head right. Now I submit that Botha made no effort to - Steyn said to Botha:

and I submit with respect that in the circumstances that was just - there was no attempt made to do that whatsoever.

CHAIRPERSON: Wasn't it after that that he spoke to him and told him that he had R50 000 to resettle him?

MR WILLS: It's quite difficult, with respect Mr Chairperson, to know exactly when this occurred, because when this discussion between Steyn and Botha occurred, in Steyn's application he states clearly that the first he knew of the murder of these people was post facto on the 16th when he was phoned. He was very vague in his evidence about whether or not this meeting took place on the 16th, but even if that did occur after he'd had this meeting with Botha on the 14, as Botha alleges, then I submit that if you are dealing with someone who, on your version, is mentally unstable, then clearly you can't expect him to act rationally to a proposition at that point in time and particularly in view of the fact that on Botha's version he's been a good informer, he's given this information, I would submit that the correct thing would have been to have given him a chance to recompose himself in order that he can react rationally to any offer. On Botha's version, whatever you said to Ndaba at that point in time, would not have made any difference.

Considering the case of the more junior applicants and that is Wasserman, du Preez and van der Westhuizen, in regard to their failure to co-operate with de Beer's unit, I submit that in order for them to rely as a political objective on the fact that they were ordered to do so, that order must be given in a political context which justifies such a position and I submit the usual case is that there's a war between two parties. Somebody says: "Go and kill" and they go and kill and the general context of the order is in line with the military structures. Now it is my submission what their problem is that this order not to co-operate and the order - well sorry, no just the order not to co-operate with de Beer's unit, was given in a situation where it was contrary to what they knew to be their master's, to use Mr Visser's term, position. Their master, General van der Merwe, had orchestrated this national investigation team and I submit that they had knowledge of that. It's clear. Wasserman says - he doesn't say: "They told me", he specifically says at 1294 that Botha told them, in plural, not to co-operate. We know ...(intervention)

CHAIRPERSON: Isn't the problem in this Mr Wills, or one I certainly see, they are members of a specialised unit with senior officers in charge of them whom they rely on for orders and guidance. Over this period those officers were flying up to Pretoria to see the top brass, coming back the next day and then coming to see them and say: "Do this. Do this." Wouldn't they automatically assume, wouldn't any junior officer assume, well that's what they've decided in Pretoria?

MR WILLS: Yes. I looked at that specifically, with respect Mr Chairperson but the evidence indicates that they became aware clearly that this national investigative team had been established to look at the very problem they were dealing with and that they were specifically told not to co-operate with it.

CHAIRPERSON: How many Commissions and Committees have we had in this country where various sections of Government have not co-operated with, but the public are told: "Oh it's alright, we've set up a committee to deal with it." Doesn't that happen Mr Wills with great regularity?

MR WILLS: It does, it does.

CHAIRPERSON: They are told a committee has been established and then told by their own commanding officer, who has come from the General who established the committee that: "You are not to collaborate with it."

MR WILLS: Well, Mr Chairperson, the only thing I can say in regard to that is that they as policemen in the, with their experience, would have known that they had valuable information which could be utilised by this investigative committee. They would, on the other hand, have known that this was a particularly sensitive issue. That it had resulted in a national committee being established and in that context, they subjectively should have assessed what I submit was a totally illegal or unlawful order given to them by Botha. It wasn't in a vacuum. They were dealing with these people and they knew that this other ...(intervention)

CHAIRPERSON: They were dealing with them, who was? Botha was the person dealing with them. Botha was the person speaking to Ndaba, wasn't he?

MR WILLS: Yes.

CHAIRPERSON: He was the one who knew what the information was, they didn't know.

MR WILLS: But they did know certain things, with respect Mr Chairperson. The things they knew were, there were two people who were involved with Operation Vula whom they were holding. Now that in itself, I submit, would have been very useful information to de Beer, particularly on I think the admission by, I can't remember specifically who, but at least two of the junior applicants, that they were aware of the fact that de Beer was looking for these people. It wasn't as if nothing was happening from de Beer's side and with respect, I can't take it much further than that, but it is my submission that they would have realised the unlawfulness of this activity by not co-operating with de Beer's unit and they should, as reasonable policemen, have questioned that.

MR LAX: Mr Wills, sorry, the issue of de Beer's unit, as I understand it, de Beer's unit was set up to look at the whole of Vula. De Beer wasn't there to look at the disappearance of Shabalala and Ndaba. His object was to find as much information as possible to embarrass the ANC. In that respect de Beer's goal and everyone else in the Security's goal would have been one and the same thing.

MR WILLS: The point that I'm making is that clearly, even if that was the case, de Beer would have been able to make use of two people who had knowledge of this operation. I concede and I agree, I think it's common cause that de Beer was set up to investigate the whole of the operation, but here we have two people, one of whom is an informer who should know a lot about this.

CHAIRPERSON: And has been Botha's informer for two or three years and has co-operated with Botha and has told Botha all about Vula. Do you think that, to a policeman, means he must now hand him over to some other body, or do you think it means Botha will continue to get the information and he will pass the information on to de Beer?

MR WILLS: Well, Mr Chairperson, in the light of the admissions, particularly by Steyn, that they were actively concealing this from de Beer, indicates that there wasn't a convergence or a co-operation between the two units, it wasn't as if de Beer was acting with the knowledge that these two were being dealt with by Botha. There was an active concealment going on here. Now Wasserman, du Preez and van der Westhuizen knew this to be the case. They had been given orders in that regard and I submit that it would have been extremely useful for de Beer to have access to these people and particularly to Shabalala. The evidence is clear. The evidence of the three junior applicants is that Shabalala was not even questioned. Surely at the very least he would have been useful to de Beer. On Botha's evidence he didn't question him. I realise and the evidence indicates, I realise that what the junior officers say is exactly what you're putting to me, with respect Mr Chairperson, that it's a usual procedure that they don't disclose informers to other units, but I submit that in this, this is as Botha, in his own evidence admits, this is an exceptional circumstance. It's not the ordinary circumstance. Here we have the position where a national team has been set up. National orders have been given. People are flying to Pretoria. They know people are flying to Pretoria. They know Pretoria have set up this investigative team and I submit in that context that a reasonable policeman in their position would have acted differently and should have acted differently. That's as far as I can take it, Mr Chairperson. And just to ...(intervention)

CHAIRPERSON: When was the national unit set up?

MR WILLS: On the 13th Mr Chairperson.

MR VISSER: With great respect, that's not true Mr Chairman. That's when the decision was taken.

MR WILLS: The decision was taken to set the Commission up on the 13th but the point is that what did they do before then?

CHAIRPERSON: Well there was no Committee to tell anything. The decision was taken to set up a Committee on the 13th, when it was set up I don't know, whether de Beer had returned to Durban I don't know, but they killed these men on the 14th.

MR LAX: Mr Wills, if I remember correctly, yesterday van der Westhuizen said that it was after the murders that he saw de Beer and his men in the passages of CR Swart Square. You see, I'm just having a bit of difficulty grasping the thrust of your argument Mr Wills in this respect and that is that the object of their non-co-operation was the concealment of the murders, not the concealment of Vula per se and it's that aspect that then, if you're going to say they didn't have a political object in doing that - is that what you're saying? That the concealment of the murders had no political object?

MR WILLS: Yes, I mean my argument, with respect, is that the concealment of the murders had no political objective, in the sense that what they were doing was covering up their own tracks and covering up decisions that had been made by a senior person of a unit who had no authority to act in the way he did and in fact he had direct orders to act in a contrary manner.

MR LAX: Therefore he couldn't be acting within the course and scope or even implied authority.

MR WILLS: Yes.

MR LAX: Okay. Got you.

MR WILLS: Mr Chairperson, I can't take that matter any further, suffice to say that as I've said to Committee Member, Mr Lax, that the - even in the worst or the best case scenario for the applicants, had this Commission been set up after the murders, the point is, is that the knowledge of this Commission was made available to the individuals concerned and post facto after the murders it reveals an indication on the part of the parties not to co-operate with something that had been lawfully established. I want to turn now to the proportionality aspect and the directness to the objective. I submit that this act, the murder of both individuals, was disproportionate to the objectives attained. Botha and Steyn knew that there was going to be no prosecutions of the Vula operatives, they knew that in that sense Ndaba at least - the issue of a witness of his reluctance to be a witness had fallen away, they knew that the importance of these two people to the Security establishment at that point in time, had been diminished. Again the issue of what would have been the consequences of Ndaba going to the ANC and revealing all of his information about the Durban Security Branch's networks and informers, I submit, objectively that the knowledge he had was of a minimal nature and to make this a major justification and I think the only justification for the decision to kill him, is with respect, extremely disproportionate.

CHAIRPERSON: As I understand it, he was here in 1988, he then left the country and he was given two telephone numbers of people outside the country. One in Swaziland and one in Zambia, was it? In Malawi. There is no evidence before us that he had any other contact with any South African Security Branch informer, agent or anyone else before his return to this country in 1990. It would appear that he had no contact with anybody in that category till he contacted Mr Botha in May 1990 because if he had contacted informers, one would have thought Mr Botha would have learned of it and endeavoured to make contact with him, but he didn't and he met him three times in between May and July.

MR WILLS: Allegedly yes.

CHAIRPERSON: And there is no evidence that there was anyone else present at those meetings, any other informer or anyone else.

MR WILLS: In fact when he was arrested, it appears that the only person who knew that he'd been an informer was Steyn. It was a surprise to Taylor.

CHAIRPERSON: Botha.

MR WILLS: No apart from Botha, the only other person was Steyn. It was a surprise to Wasserman, it was a surprise to du Preez, it was a surprise to van der Westhuizen and it was a surprise to Taylor.

CHAIRPERSON: So there's no suggestion that he was a danger to a large number of people.

MR WILLS: Indeed.

CHAIRPERSON: But he had been a good informer and for this he was killed.

MR WILLS: Yes, that's exactly the nub of my argument. Mr Chairperson I'm going to be probably another 20 minutes. I see that according to my watch it's after one. Do you want to take the adjournment at this stage? Is my watch correct?

CHAIRPERSON: If you look to your right I think you will see troubled faces of people who have come from far.

MR WILLS: I'm perfectly prepared to continue Mr Chairperson.

CHAIRPERSON: I'm asking to find out whether the interpreters are happy to continue or whether they would like a short adjournment at this stage. Can they please let me know?

INTERPRETER: We're happy to continue.

CHAIRPERSON: It didn't come through on mine, I had a very different sound. Carry on.

MR WILLS: Thank you Mr Chairperson.

CHAIRPERSON: Sorry. Do any of you want a short adjournment?

MR WILLS: I'm happy to continue at this stage Mr Chairperson.

CHAIRPERSON: Right.

MR WILLS; The issue that was raised about the political embarrassment, with the greatest respect, is minuscule in comparison with the deed and certainly does not justify the deed. I submit the fact that they didn't even try and recruit Shabalala as an informer indicates that whilst they had a so-called problem in that the problem they had with Shabalala was that he could go and expose the fact that they had Ndaba, wasn't considered seriously in this regard because at least they should have made an attempt to recruit Shabalala and that would have solved their problem, but also, if they had released Shabalala at this stage prior to the killing of Ndaba and had they not killed Ndaba, we're talking about their motivation prior to the act, there would have been no problem in releasing Shabalala. All he could have said is that they've - Shabalala could have just gone out to the ANC and said they've got Ndaba, but I suspect that he's an informer and then they could have hidden Ndaba for some period to protect him, or detained him lawfully. It wasn't necessary, in other words, I cannot see a justification in these circumstances for cold-bloodedly killing the two individuals concerned. I emphasise that they didn't give Ndaba a chance to recover and what is then also important about that is that Wasserman and du Preez specifically state that they dispute that Ndaba was in a bad state of mind. du Preez said there was nothing funny about him at all. Whilst he didn't speak to him on the morning of the 14th, he saw him sitting in the room and he clearly says there was nothing funny about him. Wasserman has got similar evidence, so that, and I'll turn to that when I address the issue of full disclosure, but if that wasn't the case, if Ndaba wasn't in this bad state, - sorry Mr Chairperson, I withdraw that. I've just lost my train of thought. I'll continue, if it comes back to me, I'll re-raise the issue.

Mr Chairperson, I can see no reason that they did not process these people, albeit a few days late, four or five days late, through the normal legal channels that they had at the time. There were already 12 persons arrested and who were being presumably processed in this way. The operation had been exposed. They could have just simply detained the two individuals according to Section 29 if they had spoken at that stage and this is the stage after the 12th. I can concede that there was a need to hold them prior to the 12th because at that stage they were still gathering information, but by the 12th the whole situation had blown. There was no need to kill them after the 12th. They could have been processed. It wouldn't have compromised the main operation because the operation, arrests, had already been made. I submit that they didn't even consider handing these people over to de Beer. Even on their own version, if they wanted to score political points against the ANC and for the National Party or the Security Police at the time, that would have been a more sensible thing to do. It would have given de Beer the ammunition that he required to do just that, or more ammunition to do just that. To my mind, as I think the Chairperson has rightly stated, had they been, had the fact of their arrest been published, it would have been more damaging to the ANC in the circumstances than it would have been to the National Party. Here you have, in times of negotiation, two people who are coming, on their version, to facilitate an armed revolution and I submit that that would have been far worse for the ANC than it was for the National Party. From the 12th the only difficulty with these people as far as embarrassment goes, was the fact that they'd been arrested for a few days since the 7th or the 8th.

Also, I submit that whilst this is a fairly cruel argument, I submit that it should have been considered by them that Ndaba's problem about being revealed by Shabalala, or that they had Ndaba in the main, would have been resolved by the elimination of Shabalala. What I'm suggesting is that there's no real justification at that point in time for killing Shabalala. What damage could he have done to their operation had he been released? The damage was minimal. All he could have said was: "The Security Police have got Ndaba and I suspect that he's an informer." That's the only damage he could have done. Then on the other hand it wouldn't have been necessary to kill Ndaba on the basis that he himself could well have been protected by the Security Establishment at the time.

There are many ways.

CHAIRPERSON: But he didn't want to be. You must take - unless you can say those facts are unacceptable, the evidence we have had is that he said: "I have had it, I am going to play open cards with the ANC and tell them I've been an informer."

MR WILLS: Yes, I accept that that's what they say. I don't accept their evidence in that regard, but I'll get onto that aspect later, but my submission is basically that there were many other things that could have been done to the two, including just a normal detention without and that would have been a - there was no need to kill the people and the killing of the two deceased was disproportionate in the circumstances, for the political gain that they alleged to have achieved.

I want to now turn, Mr Chairperson, to discuss the issue of full disclosure and I'll be brief. The first issue I want to raise, it is my submission that the probabilities exist, or the probabilities are, with respect, that Ndaba was not an informer and that the evidence to this extent, was false. On the evidence of Botha, had he been an informer, why did he only contact and make contact with Botha in May, when he'd been in the country since the 2nd of the 7th 1990? If, as Botha says, that 4 - 6 weeks before the arrest of Ndaba he had three or four meetings with Ndaba and at these meetings Ndaba revealed details of the fact that Maharaj, Nyanda, Kasrils and others are in the country at that stage and there is no apparent action taken by Botha in that regard, I submit that is incredible. There you have three of the most highly positioned persons in Umkhonto weSizwe, who are in the country, who are up for grabs. Someone, with respect, in Botha's position in the Security Establishment, he would have immediately have done something about that, but he doesn't. He doesn't communicate with anybody in Pretoria, on what the most junior Security policeman would realise was of vital information. It's also, in my submission Mr Chairperson, that the full implications of Vula only become apparent on the 7th or the 8th after the arrest of Ndaba. If Ndaba was an informer, why is there this coincidence, why is it only at that time when he comes clean and he reveals all the information to Botha, if he was an informer? It's just too much of a coincidence that this information is only revealed after his arrest. I would submit that this information in all probability would have been revealed before that, even in the 6 weeks before that.

My submission is that it would be that an informer would come back, he would realise that he is going to impress his handler and he would reveal that information as soon as possible. Supportive and corroborating that argument is the fact that it's only after the 7th and the 8th that any serious attention is given to this matter. It's only then that they go to Pretoria and inform their superiors about this.

Now it's my submission that that, on balance, shows that there weren't these meetings four to six weeks before, that the only information - the information was revealed for the first time on the 7th and 8th and that was after the arrest of Ndaba. I submit that Ndaba had his information from when he came back on the 7th of February. He might have picked up a little bit more information about the internal operations and the personalities involved in the internal operations subsequent to that, I concede that, but in the main, the main basis of his information, he had fully, in early February when he came back and I submit that it is improbable that if he had up to three meetings with Botha and if he was an informer as indicated by Botha, this information would have been given over immediately and at least at the stage of those three meetings, but coincidentally it only happens after his arrest and coincidentally at his arrest he is slapped around.

Also, the factors mitigating against the fact that Ndaba was an informer was the way he was handled subsequent to the arrest. I think that - I mean clearly on Botha's evidence, he on two occasions and I have the references, indicates that when the set-up was made where it's a ...(indistinct) that Shabalala was also arrested, i.e. outside Greyville Racecourse, Botha indicates that the circumstances of their arrest were such that it was likely or in similar words that Shabalala would have known that Ndaba would have not been arrested. Now I submit that that wouldn't be the way to treat an informer. I am alive to the fact that there is a contradiction between Botha's evidence and the other person's evidence in this regard, but I find it particularly instructive as regards Botha because he's supposed to be the one who's handling the informer and he would have been the one who would have made absolutely certain that the fact that Ndaba was an informer was not revealed to Shabalala or anybody else.

ADV BOSMAN: Tell me, is it your argument that all the information regarding Operation Vula was extracted from Ndaba and/or Shabalala from the afternoon of the 7th until the 8th? Is that your argument?

MR WILLS: That's my submission. Yes, look I can't say, with respect, that it's all the information. What I am saying, I don't know what other sources of information they had and I would imagine that a Security Branch of that nature would have sources to other information, but what I'm saying is all the information that they got from Ndaba, they got after the 7th and that the probabilities are that they did not get any information from Ndaba prior to that and my main focus there is that clearly they would have acted had they known that these senior persons had been in the country six weeks before.

ADV BOSMAN: Another aspect which I'd like you just to deal with very briefly is how come that so soon after his arrest Ndaba willingly took them to Shabalala? Do you have any argument in that respect?

MR WILLS: I submit that at that stage Ndaba must have at least known that he was in serious trouble and that information was extracted from him.

ADV BOSMAN: Thank you.

MR LAX: Do I understand you to be saying that it was under duress then and not willingly?

MR WILLS: Yes, certainly, he was under duress. I know that I've got the problem here and I've got this problem particularly because the bodies have been discarded in such a way and there's absolutely no evidence about their state at the time of their death, but at the very least, being in that situation with Security Policemen, he was acting under duress. He at no stage volunteered information to Botha. That's my position.

MR LAX: You see, while there are contradictions between some of the applicants' versions on some other aspects they're all ad idem with regard to his co-operation.

MR WILLS: I know that to be the case, but I expect that to be the case. They are wanting to put a united front to this Commission. If one falls, they all fall and I mean the evidence under my cross-examination was clear that they have spent a lot of time together in framing their application, so I would submit that it wouldn't be far-reaching to expect that they made their applications consistent with one another and they maintained that version.

If I may continue. In addition to the way - apart from the arrest in Greyville, the way that Ndaba was handled at the safehouse ...(intervention)

CHAIRPERSON: Sorry, before you go on, can I ask you one more that causes me a great problem? If Ndaba was not an informer, if he was under duress, compelled to tell them about Shabalala, is it likely that Botha would have allowed them to go to the place near Greyville, for Ndaba to get into the motor car with Shabalala in the driver's seat and for the police motor car to then drive around the block? These were two dangerous high profile men and that is how they treated them on that Saturday afternoon, is that likely?

MR WILLS: Well Mr Chairperson again we're relying on their version as to what occurred, but I submit that they were, even on their version, it is clear that they were extremely close to the situation, they monitored the situation from very close quarters and they could have dealt with the individuals quite quickly.

CHAIRPERSON: The other car went round the block, that's not close quarters. They could have driven off, Shabalala and Ndaba.

MR WILLS: Well, Mr Chairperson, with the greatest respect, we do not know what happened in those communications with Ndaba from the point of his arrest to that occurring and I concede that there's not a lot of time, but it's not beyond the realms of possibility that, for a number of reasons, he agreed to co-operate at that point in time.

MR LAX: Sorry Mr Wills. Please continue.

MR WILLS: Thank you. Mr Chairperson, obviously I'm at a considerable disadvantage in the sense that I don't have witnesses as to exactly what happened, but it's not inconceivable that Ndaba's co-operation at that stage, was established through a whole variety of forms of duress. For example, we know that they know where the family stays, we know that the Security police had been visiting the family on occasions prior to that. It's not - whilst I concede it's speculation, if Ndaba had been told, for example, the first thing that comes to my mind, if Ndaba had been told at that stage: "You go there, you start co-operating with us, you pull one move wrong, besides the fact that we will get you, we know where your family is" and I submit that that is a possibility in the circumstances. Why was it necessary, with respect Mr Chairperson, to guard him? Why was he not free to go from the safehouse? Why was he in cuffs most of the time? He was treated exactly in the same way as Shabalala was treated. Now their argument for that is that they didn't want to disclose this to Shabalala, but I submit that there's an equally powerful argument exactly to the contrary. The other equal explanation is that yes, he was treated in exactly the same way as Shabalala because he was detained in exactly the same way and for the same reasons as Shabalala.

If you would just bear with me please Mr Chairperson. Yes, the other thing which is also to my mind instructive, is the admission under questioning by Mr Lax of one of the more junior officers and I think it was Wasserman, that Botha actually shot and murdered Ndaba and it was conceded that this was a very unusual position for somebody to kill his own informer. I also noted your position Mr Chairperson about the payment for the arrest of Ndaba. That I submit - and Mr Chairman, I'm not submitting that any one of these aspects that I've raised in itself can prove on a balance that Ndaba wasn't an informer. My submission is that there are so many things, I've listed 8 factors which I've mentioned which I submit sway the balance in my favour.

Mr Chairperson, the other thing which you raised earlier and which I think is also unbelievable, is the allegation that Ndaba said to Botha in those last days, that he was going to go over to the ANC. If one assesses that objectively I submit on balance that cannot be believed. You've got a person who is a highly trained person, he's been experienced in military activities, he's experienced in underground activities, he's been thoroughly trained, he comes there and he says to people who are holding him against his will, clearly Mr Visser's argument conceded that he was held at that house against his will and he is going to say to those people: "No, I am going to the ANC." I submit that in effect would have amounted to him signing his own death warrant and I submit that is unbelievable. He wouldn't have done that. If they'd said to him - a far more probable things: "Okay, I'll continue acting for you" and then get outside and run away or do his own thing when he got outside. I submit that it is so highly improbable that that is the case that I make the submission that it cannot be true.

There's also the position as I've alluded to before about the not questioning of Shabalala which I also think is unbelievable. They needed all the info they could get. They saw fit to let C20 question him, but what is, I think, important in this regard is the changing version of Botha. Botha's affidavit, his initial affidavit for application goes through the considerations in respect, which he bore in mind in respect of the decision to kill Shabalala and he states clearly there amongst six or seven considerations, he says that Shabalala gave no co-operation, he was not prepared to testify and that he was not prepared to become an informer. Now I think that is instructive. His version is different to that in his viva voce evidence and his evidence in Exhibit D and I think it's page 18, Mr Chairperson of the bundle. Sorry let me find it for you. I think it's page 18. It's page 18 of his application. I don't know what page number that is in the bundle, but it's ...(intervention)

CHAIRPERSON: It's page 18 in the bundle.

MR WILLS: Page 18 in the bundle.

CHAIRPERSON: Page 43 ...(indistinct - mike not on)

MR WILLS: Yes, thank you. It's clearly options in relation to Mavuso Shabalala, gives no co-operation, not prepared to testify, not prepared to become an informer. Now we know from Wasserman and we know from du Preez that the usual practice of arresting detainees was not followed because they were told not to try and recruit him. We know from Botha himself that they didn't talk to him. Now we also know from Wasserman's admission, that he agreed with me that when somebody isn't prepared in those circumstances to testify that the probabilities are that he'll be assaulted. Now I submit that this is very instructive. Why is it that Botha initially gives these reasons for his co-operation and at the end of the day we are left with 1) that his suggestion could reveal Charles as an informer and that, sorry, the second one, that his detention would be a political embarrassment, but effectively all of the others don't apply and he didn't rely on them. He did, I submit, did rely on the fact that the release would harm further Vula investigations but that wasn't the consideration on the 14th. The consideration that Botha applied on the 14th as, in his evidence with Steyn, was that he had to cover up the fact that they had Ndaba and he had to - he could be politically embarrassing for them.

Now my submission is that Botha in this regard, was accurate and that all the evidence about the fact that Shabalala was not questioned by any of them, is in fact false and that the only way that Botha could come to this, to make this statement under oath as he did, was that had he questioned Shabalala and he had put, I mean this is an instructive thing - not prepared to testify, that was the issue against Ndaba and that also had fallen away when it became known to them that there weren't going to be trials. Be that as it may, I submit that at that time Botha must have spoken to him, on his own evidence, he must have tried to recruit him and he must have resisted that recruitment. Now why does Botha change his evidence in this regard? I submit that that lends one to the probability of the fact that Shabalala had been ill-treated or assaulted to the extent that they didn't want to reveal him to anybody.

Chairperson, I'm going to deal briefly with the issue of the vehicle. It's again very difficult, I can only submit as I do that the probabilities are on the evidence that the vehicle was not burned out and that the correct vehicle was that as testified to by Zungu and Zebron Thusi that this vehicle was chopped up. I think it's common cause that no wreckage has been found. It's common cause that attempts were made by some of the applicants according to the TRC report to point out the site accurately, which they failed to do. There was no attempt to disguise the vehicle in any real way on their version. I mean surely the first thing to do would have been to at least as I think the Chairperson indicated, take off the number plates. It was a very unsafe way of trying to dispose of evidence in circumstances where they had other avenues open and particularly in circumstances where both Wasserman and du Preez, Wasserman in particular indicates that he has chopped up vehicles on numerous, he uses the word numerous occasions and that those vehicles are used - numerous occasions at the farm in Camperdown, I think it's Mountain View farm and that those vehicles are used for informers. It would seem to me that that was a fairly common practice by the use of the words numerous. Why would they treat this vehicle differently? Surely they needed vehicles for informers, it would be an advantage to have a vehicle that was disguised in such a way that they could make use of in broader operations. There would be no point, it would be to their detriment to burn it from a practical value and also to their detriment to burn it in the sense that this whole disappearance could be traced. The safest way to deal with the vehicle would be to chop it up and I submit that Zungu and Thusi point out that this vehicle was there and I submit that the probabilities are that that was the vehicle.

Chairperson, finally, I just have to concentrate, I think I have in the main, on the probabilities as to why they were killed. The question which obviously struck my mind is why would people come and admit they killed persons and not reveal the circumstances surrounding that actual killing and I submit that the probabilities are that they were killed in order to hide the way they were treated. I cannot believe that Shabalala was not assaulted, in the light of Botha's evidence that he refused to become an informer and in the light of Wasserman's evidence that people in this position are, in all probability assaulted. It would not have been embarrassing for them, for the fact of the arrest to be revealed to any party for that matter, and particularly to their superiors. There must have been some other reason as to why this fact was hidden and actively hidden, particularly on Botha and Steyn's part, from their superiors and this cogent reason, I submit, is the way they were treated and the way that they were assaulted.

Mr Chairperson, I'm not in a position to dispute the manner of the killing, but I submit again the manner this was conducted in, the circumstances and particularly in the light of the ways other people had been killed, was a very complicated procedure and very involved, to deal with the matter in this way. Unfortunately not having a witness available, I'm not in a position to throw any more light on that, but I submit that it was improbable that they were killed in that manner, taken to the Tugela and dumped.

Mr Chairperson, that concludes my argument, unless there are any questions that you wish to raise with me.

CHAIRPERSON: ...(indistinct - mike not on)

MR WILLS: Yes, well it is to an extent Mr Chairperson, but I'm ...(intervention)

CHAIRPERSON: Now if one wants to say they were treated in such a way that they were covered in blood, their bodies were put in the back of Shabalala's car and driven up to the Tugela and Shabalala's car was then burned to hide the blood and the blood stains.

MR WILLS: Mr Chairperson, unfortunately I'm in that position where I ...(intervention)

CHAIRPERSON: It's surmise again. Your argument, and I have every sympathy with you, you have no witnesses, is based on the idea - idea is wrong - there doesn't seem to be logical reasons for what happened, so one has to conjecture and then one finds oneself with all sorts of possibilities.

MR WILLS: Yes, indeed Mr Chairperson, but I think that the conjecture is based on certain established facts and there are certain established facts here that are unique to this application and are certainly surprising and that is the manner in which the individuals concerned and particularly the two senior individuals, disregarded their instructions from Pretoria.

CHAIRPERSON: ...(indistinct - mike not on) Thank you.

MS THABETHE: Thank you Mr Chair. I will need your guidance here because my argument in essence, supports Mr Wills' argument, so I'll find myself repeating some things that he has said.

CHAIRPERSON: I don't think there's any need to repeat. If you merely say that you agree with the submissions he's made in this regard, that will be sufficient.

MS THABETHE: Mr Chair, maybe I can just emphasise a few facts, if you would allow me to, in support of his argument. Should I proceed, Mr Chair? Thank you.

MS THABETHE IN ARGUMENT: The argument that I had also prepared was that, Mr Chair, the applicants' version is very improbable both with regard to Ndaba and Shabalala's abduction and detention. With regard to Ndaba's detention, what is improbable, Mr Chair, are the reasons behind the decision to kill Mr Ndaba, Mr Chair. What I can argue, Mr Chair, is that it's improbable that an intelligent man like Mr Ndaba, especially with the high status he had in the ANC, would inform Mr Botha that he wants to go and play open cards with the ANC. I think that's very improbable, Mr Chair, but Mr John Wills has covered that. I just wanted to emphasise that. Instead what he could have tried to do was to pretend as if he was still working for Mr Botha and then decide afterwards to spill the beans or to seek refuge with the ANC.

And Mr Chair, what I would argue or emphasise in support of Mr Wills' argument is that what probably happened is that as Ninela has indicated in his affidavit, they were probably both arrested because they were a team, they were working together as a team, they were probably both arrested and were both detained and they were both questioned, but Mr Ndaba co-operated and Mr Shabalala did not co-operate and as a result it led to their killing. Thank you Mr Chair.

MR WILLS - FURTHER ARGUMENT: Sorry Mr Chairperson, there's one other thing which has been brought to my attention by the family member and that is, I meant to actually mention this, if I may just add it to my argument at this stage? Thank you.

Mr Chairperson, it involves the time of the arrest of Ndaba and the time of the arrest of Shabalala. You will recall and the evidence reflects that it is the family's clear indication that Shabalala was in fact arrested on the 8th and not the 7th, where it is clear that Ndaba was arrested on the 7th. Now obviously the import of this and it's just been made alive to me by the questioning from the Panel, the Committee, is that had that been the case that Ndaba was arrested on the 7th and Shabalala only at lunchtime on the 8th, then obviously there would have been far more time to extract information out of Ndaba and lead to that position and clearly the record reflects the family's position. I think that ...(intervention)

CHAIRPERSON: It may be their position, is there any evidence to that effect?

MR WILLS: Mr Chairperson, all I can say is that I have put their position to the witnesses in this regard and a decision was taken by me, possibly incorrectly, not to call that witness

specifically for that purpose. I didn't at the time, realise the import of that, but that is their position and all I can ask is for the committee to take cognisance of the fact that that was put to the witnesses.

MR VISSER IN REPLY: Chairperson, on just dealing with that point, those witnesses denied it. Chairperson, I'm going to make my points only once, and they're very brief. On your query of the R50 000, page 795 to 6, it would appear that it takes place on or after the 13th. Our understanding was that it was after the 13th, on the 14th, but we're happy to accept if the interpretation of this evidence is on the 13th, that's the reference.

Chairperson, then the issue of the information network. In our submission it's important to look at Botha's evidence as to how it worked as it appears at page 798 and the point here, which is perhaps being missed, is that he said that these contacts were used also by other informers, so it's not as if Ndaba knew of a huge number of informers. The point was that the contact person for Ndaba was also the contact person for other informers. That was the point that Botha made and that appears at 798.

CHAIRPERSON: Does this suggest that Ndaba would have named the contact person, who would then have named all the other people?

MR VISSER: Well, we don't know Chairperson, now we're speculating.

CHAIRPERSON: You didn't speculate, you killed them for this.

MR VISSER: Well, this is the point, but you're asking me.

CHAIRPERSON: You're saying it's speculation.

MR VISSER: It's speculative, but that's obviously what Botha feared and that's what he testified about.

MR LAX: Can I just say, Botha feared that obviously, that's what he's told us, but as I put to you earlier, Ndaba never used those sources and in no way and we're talking about something now three years later, two years later at the very least.

MR VISSER: Yes, Chairperson, we can again speculate and say well perhaps he lost the numbers etc, but the fact of him not using it doesn't mean that he didn't have it and it doesn't mean that he didn't have the information to convey to the ANC, clearly.

MR LAX: Yes, but it does tend to show that the potential danger and damage, is minimised substantially.

MR VISSER: Chairperson, the other issue which mr Wills attempted to make about extracting all the information which his witness or Ms Poswa's witness had said that Ndaba didn't have, to extract all that information on the 7th, you can have regard to page 785, whence it is quite clear that what Botha says is, after the break-in on the Saturday night, they got a huge amount of documents and then from these documents and computer print-outs, it says at the foot of that page: "which we seized, a certain picture became clear of a larger scheme of what Operation Vula was about. So clearly the documentation was an important and relevant part as far as that is concerned.

Chairperson, may I be allowed just to place this whole issue of the so-called disobeying of orders in context? The applicants before you are not applying for amnesty for arresting Gen Nyanda, they're applying for amnesty for murder. Whether they did or didn't disobey an order from Gen van der Merwe and I conceded it was an order, and everybody conceded it was an order, has nothing to do with the application before you, with great respect and as far as Zen de Beer is concerned, Chairperson, the decision was taken on the 13th as you correctly already pointed out and we know how things worked in those days. It would have taken a week or two, perhaps, I don't want to speculate, but it was after they had already been killed, so they couldn't produce them Chairperson, with great respect.

CHAIRPERSON: There's some evidence I think from one of your applicants which appears to indicate that he overlooked that and he spoke about de Beer, not giving information to de Beer before the killing.

MR VISSER: Yes, I'm sure he was mistaken, Mr Chairperson.

MR LAX: Mr Visser, just one thing on that. Doesn't part of the argument though, that Mr Wills is raising, go to the issue that your clients couldn't have believed they were carrying out their master's bidding in killing these people, in the light of the fact that they knew there were going to be no prosecutions, that they knew de Beer was actually going to get as much information to embarrass the ANC? You see and this is the subtlety of it for me, is that the issue here was not that there weren't going to be prosecutions and I didn't pick this up earlier when I raised the matter with Botha, the thrust of de Beer - de Beer's exercise wasn't an exercise in futility, as I put to Botha, it was an exercise in futility to the extent that there weren't going to be prosecutions, but the object of that exercise was in fact to get as much information as possible to embarrass the ANC not to prosecute and that subtlety was lost on me at the time because for a whole range of reasons but anyway, and maybe that subtlety was lost on Botha too. I readily concede that, but the point is that in Botha's mind, he knew that there weren't going to be prosecutions, but he also knew that de Beer was going to investigate Operation Vula. This is before he took the decision to kill these people and if I understand Mr Will's argument correctly, he's saying in the light of that understanding, that de Beer was going to uncover the full extent of Vula, why did they go and kill these guys?

MR VISSER: Well, Chairperson, the answer is clear, with respect. Perhaps I don't have the understanding that Commissioner Lax has, but it's quite clear, there were other considerations. The one is that Ndaba has now told that he's going to spill the beans to the ANC, but you've got to think that away and if you do and if it's only the fact that you've just put to me, then perhaps there's an argument that Botha should have considered that more seriously, yes, but there were other considerations and he's explained them.

MR LAX: Well you see the only other two considerations are one, the question of the embarrassment to the State, which we've dealt with already and two, potential threat to other informants. Those are the only two real considerations that really would have exercised his mind, the rest are neither here nor there.

MR VISSER: Chairperson, I stick to the evidence. Those were the two considerations. I'm not going to try to pretend that there were others. May I just make this one point? It's all very well for my Learned Friend Mr Wills to argue and speculate, but he was here throughout the hearing and Chairperson, it's a common rule of evidence, that if you're going to argue against somebody, the least you should do is put it to that person. Not half of what my Learned Friend is arguing, he ever put, or Ms Poswa put, to Botha, in fact when Mr Maharaj gave his evidence, we made a point of placing that on record. The week beforehand we drew special attention to certain documents which we never even discussed with him and things that should have been put to Botha were put to Steyn and Wasserman and van der Westhuizen, who couldn't answer them and please Chairperson, just bear that in mind.

Chairperson the question of page 18 of the bundle is a practical demonstration of what I've just said. It was never put to him. Now the question - Chairperson, I'm not even going to deal with it. I rest my case with my argument in chief.

CHAIRPERSON: We'll take time and that concludes today's hearing. It concludes this week's hearing I think. We adjourn now till Tuesday.

MS THABETHE: Yes, Mr Chair.

CHAIRPERSON: What time?

MS THABETHE: 9.30.

CHAIRPERSON: 9.30 on Tuesday morning.