DATE: 17TH MAY 2000




DAY: 3

--------------------------------------------------------------------------CHAIRPERSON: Today being the 17th of May, in the year 2000, we are going to commence with the application of Mr Phillipus J C Loots, application number 5462/97.

The person who will be sitting to chair these proceedings will be myself, Judge Sisi Khampepe, and my colleagues who will assisting me, on my right-hand side is Mr Wynand Malan, on my left-hand side, Mr Ilan Lax.

We have been advised in chambers that Mr Loots is being legally represented by counsel, as well as the victim, Adv Dikgang Moseneke. We'll request the legal representatives to place themselves on record.

MR ROUX: As it pleases you, Madam Chair. My surname is Roux, I am from the Pretoria Bar. I act on instructions of the firm Strydom Britz, on behalf of Mr Phillipus Johannes Cornelius Loots.

MR MALEKA: May it please you, Madam Chair and learned Members of the Panel. My name in Vincent Maleka, I'm a member of the Johannesburg Bar. I appear on behalf of Adv Moseneke C. I have been instructed by Maleleke Msimang and Associates firm of attorneys.

ADV STEENKAMP: I'm Andre Steenkamp, I'll be the Evidence Leader. Thank you, Madam Chair.

CHAIRPERSON: What is the position, Mr Steenkamp?

ADV STEENKAMP: Madam Chair, Honourable Members, I have been informed by the lawyers for the applicant that there will be an application for a postponement sine die in this matter. There was some consultation with the legal representation of the victims and there was some understanding. My suggestion is at this moment that there are certain specific indications given to me by my learned colleague for the applicants, and I would beg for him to put it on record for the Committee to make a decision in this regard. Thank you, Madam Chair.

CHAIRPERSON: Mr Maleka, you are appearing on behalf of Adv Moseneke?

MR MALEKA ADDRESSES: Yes, Madam Chair. Madam Chair, we have managed amongst ourselves, as lawyers for the applicants and the victim, to reach an agreement that the matter should be postponed sine die. We have also agreed that subject to your approval, the Panel should issue a directive relating to three matters.

The first direction relates to an investigation by the Committee for the location and production of the file which was kept by members of the Security Branch, relating to Adv Moseneke. You will recall that that file has been mentioned in the application by the present applicant. The investigation in question should be done by the Committee, exercising its statutory powers under Section 19(2), and we would request the Committee to try and help define the mandate of the Investigator who is going to do the investigation, to the extent that if the file in question is not located or its whereabouts cannot be determined, the investigator should then write a report to the Committee about the steps taken in relation to the location of the file and why that file was not located by him or her.

We request such direction because we are being told that there has been a destruction of files kept by the members of the Security Branch. We would try to urge the Committee to make sure that honest and earnest efforts are taken to locate that file, and if it is not located, a report should be make to the Committee why the file was not located. Obviously the file is important for my client to try and adopt an attitude as to whether or not he is going to oppose the application. I have been instructed to place on record that my client is willing and able to help and assist the Committee in relation to the location of the file.

The second direction on which we reached the agreement, relates to access by ourselves as the victim, to the transcript of evidence which was given by persons who previously testified before the Committee, relating to the files kept by the members of the Security Branch. We would like to have access to that information or that evidence, in order to see what they said in relation to the destruction of the file, or the files kept by them.

CHAIRPERSON: Have you been given to understand that we do have such documents, we do have such a transcript from the Security Police, with regard to the destruction of files?

MR MALEKA: Yes, I have been told, Madam Chair, that several witnesses appeared before the Committee to testify about the destruction of the files. We have not yet had sight of that evidence, the recorded evidence. We would like to have access to that evidence, to see whether or not there were indeed such witnesses who testified about the destruction of the files, and if so, why were those files destroyed. We do understand that under our present legal regime, documents kept by the State constitute State assets and there has to be particular procedures adopted in relation to the disposal of those documents. And as far as we are concerned, those documents must be somewhere in the State's archives, if not, they must have been destroyed by following the procedure set out, amongst others, in the State Archives Act. That is the reason why we would like to have access to that evidence.

The third aspect on which we reached some agreement, relates to the production of testimony by witnesses who testified about a conspiracy by members of the Security Branch, to eliminate Adv Moseneke. We are told, amongst others, that W/O van Vuuren testified about this incident. We would like to have access to his evidence and review it. There may be other witnesses who testified about this incident. If there are, we need to have access to their evidence. As you can imagine, we want to have sight of that evidence so that we should review our position on whether or not to oppose this application.

We may place on record now, Madam Chair, that as far as the application is concerned, at the moment we oppose it. We oppose it on two grounds, and it's not necessary for us to enter a debate on why we oppose it at this stage, but having looked at it and having looked at the motivation behind the application, we oppose it at this stage. We may review our position once we have had access to the documentation I've just referred to.

CHAIRPERSON: Mr Roux, do you have anything to say with regard to what Adv Maleka has put before this Committee, with regard to the agreement that you have reached amongst yourselves? Pertaining to the postponement of this matter.

MR ROUX: I have got no objection to the postponement, it was by agreement. Concerning the other propositions made, I've got no problem with that either.

CHAIRPERSON: Mr Steenkamp, can you also give us some indication with regard to the transcript of evidence, regarding the destruction of files? Is our office in possession of such documents?

ADV STEENKAMP: Madam Chair, to the best of my memory and recollection of the process which ensued when there was a discussion by the TRC at the time about the destruction of documentation, there was indeed certain submissions made about this incident. If I'm not mistaken, there was also specific reference to this type of, or this issue, in the Final Report of the TRC. Whether or not specific - I know specific individuals testified. In any event, those transcripts must be available. I've indicated to my learned colleague, we're talking about bulk, the information is supposedly available on the Internet, to save some time and costs, but where possible all efforts will be made to make sure that that information is being handed to my learned colleague.

That information at the present moment is public knowledge, they are documents prepared by the TRC and were published. I don't want to refer to Mr Wagener at this moment, but some of those applicants, like the Commissioner of Police specifically, if I remember correctly, made certain submissions and I will make sure that that documentation - at least my colleague will have access to it.

There's a question of cost involved, which I have to take up with the CEO of the Committee, of the TRC at the moment. I've indicated to my colleague that certain costs will be incurred, but that's something we can discuss afterwards, but the information must be available and is available. Thank you, Madam Chair.

CHAIRPERSON: Mr Maleka, would you be amenable to a payment of a fee in the event that our office should give such a direction?

MR MALEKA: Madam Chair, yes, it goes without saying, but if there is some other speedier method of accessing the documentation via the Internet, we will also welcome such a method.

CHAIRPERSON: Yes. I think with regard to the transcript of the record of Mr van Vuuren's evidence, as well as any other witness who might have given evidence when Mr van Vuuren's application was heard by the Committee, you should be able to access that information via the Internet. That I know. I am not sure however, whether you can be in a position to access the transcript of the record with regard to the destruction of files, in the Internet. I think it's the matter best pursued with our office.


CHAIRPERSON: Having considered the application brought by Mr Maleka, on behalf of Adv Moseneke, and having been apprised of the fact that there is an agreement by the parties with regard to the issues raised by Mr Maleka, we therefore give the following directive:


This matter is postponed sine die, subject to the following:

That the Investigative Unit of the Amnesty Committee, take the necessary steps and measures to investigate the location of the file or files kept by the Security Police, which contains or contain particulars with regard to the activities of Adv Moseneke, for the period under review in these proceedings, and produce such files or a file to Mr Moseneke through Mr Maleka, who is his legal representative, within a reasonable time.

We may just mention that it will be difficult to give an indication with regard to time, because we don't know how long it is going to take the Investigative Unit to investigate this issue, taking into account that we don't have such a good capacity since our staff has been significantly reduced in the past few months. We hope however, that it will not take a period of more than eight weeks. Upon the location of such files, it is our directive that the file or files must be produced to the victim, as well as the applicant, and that the necessary documents must be given to the offices of Strydom Britz, who are representing Mr Loots.

Secondly, we direct that our office should make available the transcript of the evidence regarding the destruction of files by the Security Police, and that such documents are to be given to the victim not later than eight weeks from today. It is not necessary for our office to give a transcript of the record of Mr van Vuuren's evidence in relation to this matter, and we request that Mr Maleka make every effort to get these documents through the Internet.

All fees to be incurred in respect of the production of such documents, shall be borne by the victim, as well as the applicant.


CHAIRPERSON: Do we have any other matters to dispose of in relation to this application?

MR MALEKA: Madam Chair, speaking for ourselves, we are indebted to you and Members of your Panel, for your directives.

MR ROUX: No further comments, thank you, Madam Chair.

CHAIRPERSON: Thank you very much to all the parties for attending, and for having come to an amicable settlement. Thank you.



--------------------------------------------------------------------------ADV STEENKAMP: Madam Chair, the next matter generally called the "Boom" matter. There was a request by the legal representatives of Mr Wagener, or the applicants then, to discuss certain issues with yourselves and Honourable Members, in chambers, and there's a request from Mr Wagener and Mr Visser to ask for an adjournment for three to five minutes to discuss certain issues before the matter is scheduled then for public hearing. If that is amenable to yourselves. Thank you, Madam Chair.

CHAIRPERSON: We'll take a short adjournment.



CHAIRPERSON: Good afternoon. We were supposed to sit and hear the applications of the following persons, Mr J J Jager, Mr L M Jantjie, Mr C A P Robert Shaw, and Mr D D Tulo.

Mr Louis Visser, instructed by Muller and Wagener, appears on behalf of all the applicants in this application. Mr Malindi is appearing on behalf of the relative of the victim, namely, Mr Sietisi Mokgele. Mr Brian Koopedi appears on behalf of the relatives of the victims, namely, Tobeka Ngono, Maria Sijana Mane, Phyllis Dee Siwe. And Mr Steenkamp is our Evidence Leader.


We were approached as a Committee, in chambers, wherein the legal representatives who are appearing on behalf of all the parties in this application, were able to articulate their feelings with regard to the continuance or otherwise of this matter. We do not propose to have those feelings repeated during these proceedings, suffice it to say that it has come to our attention that some of the victims, namely, those who are representing the interest of Mr Ngono, Sijana Mane and Mr Mogele, were not properly notified as we as a Committee are enjoined by our Founding Act. In the premises we have decided that it would be prudent to postpone this matter sine die, to enable such notification to be effected properly.

In our quest to balance the interest of the applicants to have their applications disposed of as speedily as possible, we also have to balance the rights of the victims in terms of Section 19(4) of the Act, which provides that they be given reasonable notice. It is unfortunate that we as a Committee, are responsible for the position in which the status of this matter is today.

We would like to extend our apologies to the victims, who have travelled from so far as Port Elizabeth and Bloemfontein, with a view, some of them, of ultimately knowing what had happened to their loved ones, and for others who came in thinking that they're going to be better informed about what measures would be taken to proceed with these applications.

We also want to extend our apologies to the applicants who would like to turn a final page on these applications, by being afforded an opportunity to be heard with a view of enabling the Committee to decide on whether they're going to be granted amnesty or not. It is unfortunate that we have postpone the matter. It is our decision therefore, that in view of the improper notice, the applications will not proceed, and the matter is postponed sine die.

We however hope that we will learn from such a mistake and ensure that proper measures are taken, which are going to achieve better prospects for this process. I thank you.

MR VISSER: Chairperson, if I may, just a question. Bearing in mind the logistical difficulties which it may entail, it just occurred to me that although you're not seized with this matter, in a jurisdictional sense, because you have some background now on this matter, whether it is possible that there could be a note made, or whatever, or advice given to your office in Cape Town, as we would prefer this matter to come before the same Panel again. And I say this subject to the logistical difficulties that I know that you have with the constitution of your Panels, but if it's possible. It would certainly go a long way to establish and reinforce the credibility of the process if this could come before you again, Chairperson.

CHAIRPERSON: Mr Visser, I don't think we are in a position to give such a directive, as you yourself have already alluded to the difficulty of reconstituting a Panel at any given stage. It is because of that that we cannot give such a directive. Indeed, I think for pragmatic reasons, it will be easier if the matter was to be heard by the same Panel, because as we were about to be seized with the matter we are already familiar with all the issues that should have been canvassed in this hearing, but we cannot give a directive for the same Panel to be reconstituted with a view of a hearing in the near future.

MR VISSER: Chairperson, lastly, may I just place on record that what we have provided this Committee with - and hopefully, if another Committee takes over from you at the next hearing, these documents will be made available, we have made available the general background to the amnesty applications which you're familiar with, and we have given you statements of each of the applicants, which supplements their application, Chairperson. That's just a matter to be placed on record, so that when we arrive here next time before another Committee, we don't find ourselves in the position that they haven't heard of these documents.

CHAIRPERSON: We'll take note of that. Is there anything that you wish to say, Mr Koopedi or Mr Malindi?

MR KOOPEDI: Nothing from me, thanks Chairperson.

MR MALINDI: Nothing from me, Chairperson. Thank you for your indulgence.

CHAIRPERSON: Mr Steenkamp.

ADV STEENKAMP: Madam Chair, I don't want to have the last word, but I can just give the Committee the assurance that from our side we will endeavour to give this matter all the priority it deserves, to make sure that this matter be enrolled as soon as possible and we're properly prepared. Thank you, Madam Chair.

CHAIRPERSON: I may tangentially mention that Mr Koopedi has agreed to accept service of notices on behalf of the victims, which really should go a long way in facilitating the process.

We'll adjourn for the day.