DATE: 26TH JUNE 2000




DAY: 1


CHAIRPERSON: Good morning. It's Monday the 26th of June 2000. We're about to start the hearing in the KwaZulu Natal Province, sitting at the Pinetown offices. The Panel consists of myself, Chris de Jager, Adv Sigodi and Mr Lax. The Evidence Leader is Ramula Patel. Could the representatives of the other parties please put themselves on record.

MR BERGER: Thank you, Chairperson. I'm Danny Berger, I'm instructed by Mr Eric van den Berg, of the firm Bell Dewar and Hall in Johannesburg and we represent the three applicants today, Mr Ismail, Mr Saloojee and Mr Rohan.

CHAIRPERSON: Ms Patel, could you kindly put on record what the position of the interested parties and the victims are.

MS PATEL: Thank you, Honourable Chairperson. The victims that we have managed to trace have all indicated that they will not be attending the hearing. An ad was in fact placed for the victims in two out of the four incidents that we are about to hear. The one incident there in fact no victims and the final incident, well it's not an incident, but it's an application for possession of firearms. So as it stands today, unfortunately no-one is going to be present out of the victims.

CHAIRPERSON: Yes. Right, we'll see during the hearing whether we could assist in anything there. Mr Berger.

MR BERGER: Thank you, Chairperson. As I indicated in chambers, we propose to lead the applicants in the following order: Mr Rohan, followed by Mr Saloojee, followed by Mr Ismail.


MR BERGER: Before I call Mr Rohan, I beg leave to hand up a statement which Mr Rohan will be reading from. We've prepared copies for the Committee. My learned friend, does she have a copy?

CHAIRPERSON: Thank you. Mr Berger, before we start could we get clarity on exactly what instances you'll be asking amnesty for? Am I correct in saying, if we look at page 40, you're applying for count 8?

MR BERGER: Chairperson, we're applying for a number of counts. We're applying for the counts - in relation to Mr Rohan, we're applying for the counts on which he was found guilty.

CHAIRPERSON: That's counts 8, 13, 18, 20 ...

MR BERGER: Chairperson, if you have a look at page 130 of the bundle, you will see in the judgment of the Court, at line 22 the Court said:

"To sum up. On counts 8 and 13 the accused is convicted of sabotage in contravention of Section 54(3) of Act 74/82."

so that's 8 and 13. Then on count 20 the accused is convicted of wilfully causing an explosion. On count 25 the accused is convicted as charged of possession of handgrenades and arms.

CHAIRPERSON: That's correct.

MR BERGER: On count 27 the accused is convicted as charged of possession of machine guns or machine rifles. On count 28 the accused is convicted as charged of possession of firearms. On count 29 the accused is convicted as charged of possession of ammunition. On the remaining counts, they're all set out, the accused if found NOT GUILTY and discharged.


MR BERGER: Mr Rohan is not applying for amnesty for any of the counts on which he was found NOT GUILTY.

CHAIRPERSON: And he's not applying for any further instances?

MR BERGER: No further instances either.

CHAIRPERSON: Thank you, then it's clear.

MR BERGER: Could we mark the statement of Mr Rohan, Exhibit A.

CHAIRPERSON: Yes, thank you.

MR BERGER: And if Mr Rohan could be sworn in.

CHAIRPERSON: Will he be giving evidence in English?

MR BERGER: In English, yes.

CHAIRPERSON: Your full names please.

MOHAMMED RAFIQ ROHAN: (sworn states)


EXAMINATION BY MR BERGER: Thank you, Chairperson.

Mr Rohan, you have a bundle of documents in front of you, I'd like you please to turn to page 1 of the bundle. Now you'll see the bundle is paginated, do you confirm that the document from page 1 through to page 7 of the bundle, is your application for amnesty?

MR ROHAN: Yes, I do.

MR BERGER: Now the acts for which you seek amnesty are set out at page 2, paragraph 9(a)((1). There are four acts:

(a) The placing of the limpet mine at the Ridge Road Radio Headquarters;

(b) The bomb explosion at Natal Command;

(c) The bomb blast at CR Swart and;

(d) The illegal possession of arms and ammunition.

Do you confirm that those are the only acts, and obviously all acts incidental to those acts, but those are the only acts for which you seek amnesty?

MR ROHAN: Yes, that's correct.

MR BERGER: And do you confirm also that those are the acts for which you were convicted?

MR ROHAN: That's correct, yes.

MR BERGER: Alright. Now is it also correct that you prepared a statement, Exhibit A?


MR BERGER: I'd like you please to turn to Exhibit A and we'll take the Committee through it and we can stop at appropriate points and add where necessary.

CHAIRPERSON: Sorry Mr Berger, I think (c):

"The South African Police Headquarters, CR Swart"

that would be count 18, if I'm not mistaken and he was found NOT GUILTY on count 18, so ... Isn't that count 18?

MR BERGER: Chairperson, if you have a look at count ...(intervention)

CHAIRPERSON: Oh I see it's as a separate ...

MR BERGER: Count 20.

CHAIRPERSON: Count 20 is a separate count to count 18?


CHAIRPERSON: So count 20 is dealing with that one. Thank you.

MR BERGER: Chairperson, what happened was there were a lot of counts that constituted duplication of charges and it's the attempted murder charges of which he was found NOT GUILTY.

Mr Rohan, reverting back to your statement, if you could read it into the record.


"I am presently employed by the Sowetan newspaper as its Political Editor. During October 1988 and whilst I was a journalist with The Post newspaper in Durban, I accompanied a delegation that was to meet with representatives of the ANC in Lusaka. The delegation was made up of members of the Transvaal Indian Congress and the Natal Indian Congress.

Whilst I was in Lusaka covering the story of the meeting, I met Aboobaker Ismail who was known as MK Rashid, at the time the ANC's Chief of Ordinance. As a result of my meeting with Rashid, I agreed to work for the ANC. Although Rashid wanted me to assist in Ordinance, I wished to be deployed operationally. Rashid and I agreed that I would return to South Africa and that if I still wished to participate in the armed struggle, we would arrange a further meeting."

MR BERGER: Mr Rohan, let me stop you there. Why was it that you wished to be deployed operationally rather than in the Ordinance section?

MR ROHAN: It was a personal decision that I took. It was just something that I wanted to - I was totally committed to the struggle against apartheid and this for me would be the ultimate example, or commitment of my contribution to the struggle. I wanted to rather go the route of the armed struggle, rather than working in Ordinance.



"Although it was my chosen profession to be a journalist, I often felt that I was not doing enough in the struggle for liberation. My view was that the armed struggle was necessary because of the Military's role in maintaining apartheid. By striking at the Military, I would be striking at the heart of the apartheid State.

When Rashid contacted me approximately two weeks later, I informed him that I was ready and willing to be deployed operationally for the ANC. I accordingly met with Rashid in Harare, shortly thereafter. Rashid introduced me to a person called Kelvin Khan. I subsequently learnt that Kelvin Khan is Riaz Saloojee.

Over a period of time I received intensive basic training from Kelvin. I went to Zimbabwe on several occasions, with my stays there ranging from several days to a week at a time. Kelvin trained me in the use of explosives, including limpet mines, Makarov pistols and AK47s. I also received political education on the policy of the ANC and the broad guidelines of the armed struggle, as well as training in military combat work, i.e. how to operate in an underground military environment."

MR BERGER: Mr Rohan, let me stop you there. How was it possible for you to keep on leaving the country, going to Zimbabwe, coming back? You were going there for training and yet you managed - am I correct, you managed to leave and enter South Africa legally at that time.

MR ROHAN: Yes, it was actually easy, it was part of my work. Being a political reporter meant I travelled a lot, so it was very easy for me to slip in and out of the country quite legally, working on a story.

MR BERGER: So your cover was that you were doing stories on what was happening in Zimbabwe at the time?

MR ROHAN: That's correct, yes.

"I told Kelvin that I was only prepared to be involved in operations that were directed against Security Force targets and personnel. I did however accept the possibility that civilians might be injured or killed as a result of my operations and informed Kelvin accordingly. It was also agreed that I would operate on my own."

MR BERGER: Mr Rohan, you say in paragraph 7 that you received political education on the policy of the ANC, but at the time, is it correct that you were a political reporter?

MR ROHAN: That's correct, yes.

MR BERGER: And your political knowledge, your political understanding, how developed was it at that time?

MR ROHAN: I had a basic understanding of the political realities around the African National Congress, around all the other political parties as well. The training that I got from Kelvin was a lot more intense.

MR BERGER: And as far as paragraph 8 is concerned, you said that you wanted to be involved in operations which attacked military or, would I be correct to say Security Force targets?

MR ROHAN: Correct, yes.

MR BERGER: But you always foresaw the possibility, is that correct, that civilians might get injured or killed in your actions?

MR ROHAN: Yes, absolutely.

MR BERGER: And why were you prepared to reconcile yourself with that fact? Were you aware of any policy directives of the ANC in that regard?

MR ROHAN: Well the '85 Kabwe Conference of the ANC discussed the issue of civilians getting caught up in the crossfire and I had reconciled myself to that reality.

MR BERGER: So you were aware of the proceedings at Kabwe?

MR ROHAN: Yes, I was.

MR BERGER: Alright, please continue then with paragraph 9.


"During the training sessions with Kelvin, we discussed certain possible targets, including the Police Radio Headquarters in Ridge Road, the Natal Command and CR Swart Square. On the 28th of January 1989 I placed a limpet mine at the foot of the transformer of the Police Radio Headquarters in Ridge Road, Durban. According to the evidence at my trial, the limpet mine was discovered by the Police, moved into the road and detonated there. To the best of my knowledge there were no injuries."

MR BERGER: Mr Rohan, before you go on, could you explain to the Committee how it worked with Mr Saloojee. Did you discuss all these targets at one go, in other words, before the 28th of January 1989, then come into the country - and as we go through your statement we'll see the various attacks that you carried out, or did you go back to Zimbabwe or communicate with Mr Saloojee between operations?

MR ROHAN: We communicated between operations.

MR BERGER: And how did you do that, did you go to Zimbabwe or did you communicate by other means?

MR ROHAN: Well I either went to Zimbabwe, or we did - we had a system of communication, using code language and stuff like that, through telephones.

MR BERGER: Alright. So the first attack we're talking about is paragraph 10.


MR BERGER: Then paragraph 11?


"On the 10th of March 1989 and as a result of my work as a journalist, I had learnt that there was to be a military function at Natal Command. That day I placed a limpet mine and two square charges in a cooler bag and drove to Natal Command."

I just want to say here that there could be a difference in terms of the types of mines and explosives I used, it was so far back I can't remember the exact details.

MR BERGER: In relation to what? Are you saying that there could have been more than one limpet mine?

MR ROHAN: There could have been more and there could have been less, yes.

MR BERGER: Alright.

MR LAX: Sorry, could I just interpose for a moment.

Would you accept that the evidence at your trial is an accurate description of what was used? In other words, at your trial for example, in one instance it said you used two mini-limpet mines together with four charges of high explosive.

MR ROHAN: I guess that would be more accurate, yes.

MR LAX: So if that detail in contained in the transcript or at least in the judgment in your trial, you'd be happy to concede that that's an accurate description?

MR ROHAN: Yes, I would.

MR LAX: Thanks.


"That day I placed a limpet mine and two square charges in a cooler bag and drove to Natal Command. I parked the car across the road and walked to the premises. I placed the cooler bag under some shrubs next to the wall of the building in which the function was taking place. I set the device to explode 15 minutes later. Several people were injured in the explosion."


ADV SIGODI: Sorry, just before you go on with that, you say that you got this information about this military function because of your work as a journalist?

MR ROHAN: That's right.

ADV SIGODI: And now the decision to place the limpet mine, did you communicate it with Kelvin, or did you communicate it with somebody before?

MR ROHAN: No, it was communicated with Kelvin.

ADV SIGODI: Thanks, I just wanted to confirm that.

MR BERGER: Before you attacked Natal Command, was Kelvin aware of your intention to carry out that attack?

MR ROHAN: Yes, we discussed it in detail.

MR BERGER: In your words could you describe how you went about the mines, how you actually got into Natal Command.

MR ROHAN: Well obviously I'd reconnoitred the place before I carried out the operation and when I decided - I knew the times when the function was taking place, I got to the area, again I reconnoitred it, parked my car across the road, got out of the car, took the cooler bag, walked to the front, well I had to jump over a very short fence, it wasn't a very high fence, I jumped over that fence. I had the cover of darkness as well. I've just got to say also that there were Army protecting the perimeter, but they had - I watched their movements as well and they had actually moved off. So at that particular moment there was nobody who could see the front of the building, so I walked over the fence, walked to the front of the building, I placed the cooler bag on the floor between the shrubs and I set the times for the limpet mine and I walked off.

MR BERGER: And the building against which you placed the mine, inside that building was where the function was being held?

MR ROHAN: Where the military function was taking place, yes.

"After the explosion at the Natal Command I intended to launch another attack on the base ..."


MR BERGER: I'm sorry, before you go on, you said at the end of paragraph 11:

"Several people were injured in the explosion"

how do you know that?

MR ROHAN: By reports that I got in the news afterwards.

MR BERGER: You say in your amnesty application that 17 people were injured.

MR ROHAN: That's correct, yes.

MR BERGER: Is that the detail that you got from the reports?

MR ROHAN: Well not necessarily, the detail came out in the court case.

MR BERGER: And you don't - do you accept the correctness of the evidence in that regard, that was placed before the Court?

MR ROHAN: Yes, I did.

"After the explosion at Natal Command I intended to launch another attack on the base. However, the area was by then too heavily guarded. Kelvin and I had also discussed CR Swart Square as a target in the event of Natal Command proving too risky. I accordingly planned to attack CR Swart Square. The attack was supposed to be my last operation. I had advised Kelvin that I was feeling the stress of operating alone. We had agreed that I would lay low for a while after the operation and reassess the situation.

I drover into the CR Swart complex near the male Police residences and placed a limpet mine and two square charges that had been packed into a kitbag. I primed the devices and got back into my car ..."


MR BERGER: Again if I can interrupt you. Your reference here to a limpet mine and two square charges, if the evidence at the criminal trial shows different detail in relation to the charges, would you accept that the evidence at the trial is probably more accurate than your recollection now?

MR ROHAN: Yes, I would.

MR BERGER: Alright.


"As I was driving out of the premises two policemen driving in my direction saw me. They indicated that I should stop. Since I still had the pin from the limpet in my possession, I decided not to stop and sped away. They turned around and gave chase. During the chase I drove through a Police roadblock and was subsequently involved in an accident. I got out of my car and attempted to escape on foot. During the ensuing chase I was shot and subsequently captured."

MR BERGER: Could you just pause there and describe for the Committee where it was that - well, how was it that you were involved in an accident?

MR ROHAN: Well once we had left - once I came out of the building of the CR Swart Square, I drove - the police car gave chase, I drove around the block, there was a roadblock, I drove through the block heading towards central town ...(intervention)

MR BERGER: So you smashed through the roadblock?

MR ROHAN: ... and I smashed through the robot, yes.

MR BERGER: No, the roadblock.

MR ROHAN: Yes, I did.

MR BERGER: And then you got to a red robot?

MR ROHAN: I got - well I drove through a series of red robots down, I think it's Stanford Hill Road, towards central town and in all that time the police were behind me giving chase, firing shots. There wasn't too much traffic around that night. The police were shooting at me. In fact I recall at some stage that the back of the car, the car windows shattered as bullets went through them, but I continued driving through till we got to one of the main intersections. I can't remember the road, I think it was Ordinance Road, there was quite a lot of cars coming through, but I continued through that red robot and I smashed into the back of a car. I think my car somersaulted and I got out of the car and ...(intervention)

MR BERGER: And started running.

MR ROHAN: ... and started running and it was at that point that I got shot.

MR BERGER: Now at that time the bomb hadn't yet exploded?

MR ROHAN: No, it hadn't.

MR BERGER: And you continued running until you landed in a ditch, is that correct?

MR ROHAN: That's correct.

MR BERGER: Now that ditch is today where the Convention Centre is.

MR ROHAN: That's right, yes.

MR BERGER: Could you describe very briefly for the Committee what happened while you were lying in that ditch.

MR ROHAN: Well I just must say that I wasn't aware at that particular moment that I'd been shot, because when I got out of the car I was okay. I ran out of the car onto the pavement, onto a grass verge and then there was a hedge, but I realised that something was wrong because I felt that my body was very lopsided and I couldn't quite figure out what was going on. I fell through this hedge and I landed in a very shallow ditch, but the area that I landed in was covered, it's not as it is now, it had lots of shrubs and overgrown grass and stuff like that.

I landed in the ditch and then I tried to get up and I couldn't get up and I felt down at my leg and I found that my leg had been shot and it was - say a person's leg faces in that way, my leg was shot just below the ankle and the whole leg was broken in that direction and I was actually running on the bone. The bones of my leg had come out and I was dragging my leg behind me running into the bush and I fell down and that's why I couldn't get up.

MR BERGER: And so then you were lying in the ditch?

MR ROHAN: Yes, I was.

MR BERGER: And eventually, after a search, the police found you, is that correct?

MR ROHAN: Yes, it took a long time for them to eventually get to me. What happened was that I was laying in the ditch and there - I mean there were like literally hundreds of them that had arrived there as well, now they were under the impression - as I said the area was very overgrown, they were under the impression that I had gotten somewhere to the middle of this vacant land, but I was right under their noses because I could actually hear the operations they were giving to each other.

They lined the whole area up with police and police dogs and they swept the area first down. Before that they were firing shots into the bush, into the bushy area. I heard people screaming. I think there were actually vagrants staying in that area. I don't know what happened to them, but I did hear them screaming as the shots were being fired, but I lay still in the ditch and then they first went across, they swept the area with the dogs. In fact at one stage the dog stepped - the first sweep, the dog stepped on my side and they moved on to the end of the field and then they came back a second time, again sweeping and they were very close to each other, and this time the dog stepped on my face. Then they moved and I think they were going to come back for a third sweep and at that particular moment the bomb went off at CR Swart Square and it kind of created panic amongst them and most of them retreated but some of them stayed behind.

MR BERGER: Then eventually they found you.

MR ROHAN: Well I lay in the ditch for some while as they tried to search the area, trying to locate me. I realised also that - because of the condition that I was in, that my leg was bleeding quite profusely, I was getting weaker and weaker all the time and I realised then that if they don't catch me I was going to die, I was going to bleed to death, possibly.

So at some point, I think it was a couple of hours later because there weren't that many policemen around, there were a few vehicles parked and I could actually see them, and at some point there was a policeman who came to walk down the area where I was laying in the ditch and again he walked past because I heard the dog barking and then I realised at that point that it was a good time to actually give myself up so that I can at least get some kind of attention and not die where I was. Again, he moved past with the dog and they literally walked right past me and I started moaning and he turned round and he came back and he saw that I was lying there and the dog charged at me. Yeah, and that's how I got caught.

MR BERGER: Then after you'd been caught, there's an incident that you describe in your statement about a decision taken by some of the policemen there, to execute you.

MR ROHAN: Yeah, what happened, at the time when this policeman who came, the lone policeman who came with the dog, when he came up to me, when he spotted me lying there, he first asked me who I was and I gave him a false name, I said my name was Allan Jones. He asked me what I was doing there, I said well I was a victim of a hit and run car accident and I landed up in the ditch. He was uncertain, 'cause he was shining the torch in my face all the time. So what he did, I think at the same, in immediate succession he radioed in to the police and then he also radioed in to the hospital, or to some medical services. Within seconds the police were there on the spot. They came through the hedge. A lot of policemen remained on the other side of the hedge, about 20 of them I'd say, came to where I was laying and again the person who was in charge shone the torch in my face and asked me my name. I gave the same name, Allan Jones. He asked me what had happened to me, I gave him the same story that I was a victim of a hit and run accident.

But there's something I was saying here before we got to this point, is that whilst I - before I was found, I tried at some point to mobilise my leg, so that I could maybe get away. So what I'd done - but the bone was sort of sticking out, my leg was sort of - you're leg is that, my leg was down this way, the bone was sticking out but the flesh was very tight around the bone that was sticking out, so I was actually trying to pull my leg out and push it back into this broken bone. Well every time I did that I passed out, so at some point I decided what I was going to do was to take the shoelaces off my shoes, break a couple of branches of the trees surrounding me and try and create some kind of a splint to strengthen my leg and maybe I'll be able to get up and walk, but that didn't work. So when this policeman was asking me for my details, he shone the torch in my face and he was uncertain as to whom I was and then he shone the torch down to that part of my leg ...(intervention)

MR BERGER: To where the splint was?

MR ROHAN: To where the splint was, and he said - he said in Afrikaans "This they learn in the bush, this is our man. This is the man we are looking for." So that convinced him that I was the person they were looking for.

There was no violence or anything like that, but they sort of formed a caucus around me and they decided that - again they were discussing this in Afrikaans, they said that I would be taken in, I'd had expensive lawyers and I'd probably get a couple of years in prison and I'll get out. So they had taken a decision that they were going to execute me there on the spot. They took the decision that they were going to execute me, so all of the men that were on the side of the fence with me, stepped out and three of them stayed behind. Sorry, can I just ...

MR LAX: Do you want some water, Mr Rohan, there's some water next to you there.

MR ROHAN: So they took the decision that they're going to execute me - as I said, there were just now three of them and myself laying in the ditch, so - I know there was standing on this side of me and there was another one standing, I think, just behind me. I can't be exactly certain because more of the time I kept my - from that point on I sort of kept my eyes closed because I was expecting that this was it, that I'm going to die now. So the person who was going to carry out the operation, put the gun to my head and held the gun very close to my temple and he was about to pull the trigger and I could actually feel him pulling the trigger of the gun and at that point I think - because I told you earlier that the hospital services were contacted as well, and at that particular moment the ambulance sped up quite dramatically to the scene and shone its lights on this whole incident.

At that point I sensed that the person who was standing behind him, as he had the gun to my head he pushed the gun away and the bullet went off just in front of my face and I passed out at that point. I don't remember what happened after that.

MR BERGER: Subsequent to that you were detained under police guard in hospital.

MR ROHAN: That's right, yes.

MR BERGER: Ultimately you were charged in the High Court, then the Supreme Court. The Charge Sheet is in the bundle. And we've already discussed that there were a number of counts, many of which you were acquitted of and some of which you were found guilty of. I want to refer you to page 102 of the judgment, and you'll see there that the Judge lists - there's a whole list of arms and ammunition that was found at your residence.


MR BERGER: Is it correct that you don't dispute any of the arms and ammunition that you were accused of having possessed during the trial?

MR ROHAN: No, I don't.

MR BERGER: Mr Rohan just very briefly, you were sentenced to a total of 15 years imprisonment, is that correct?

MR ROHAN: That's correct, yes.

MR BERGER: And during your evidence in mitigation you said that you were a member of the ANC and a member of MK and that - you were asked a question in fact: "Would you do these acts again, would you commit these acts again?" Do you remember what your response was?

MR ROHAN: I think I said that if the circumstances were the same as they were, yes I would.

MR BERGER: And if you were instructed to do so, you would?

MR ROHAN: If I was instructed to do so, yes.

MR BERGER: After conviction, where were you sent? Or after sentence I should say.

MR ROHAN: After sentence, the very next day I was sent to Robben Island and I served, I spent about a year on Robben Island and I was released under the Indemnity Act.

MR BERGER: Is it correct that you had to embark on a hunger strike before you were released?

MR ROHAN: That's right. I was with the very, very last group of political prisoners on Robben Island that was released. We had passed the cut-off date that they had set for the release of all political prisoners and there were a number of us who felt that - well, the rest of us were there for political reasons but for some reason the State wouldn't release us, so we embarked on that hunger strike on the 1st of May.

MR BERGER: Mr Rohan, why is it that ...(intervention)

CHAIRPERSON: Sorry, were you then granted indemnity?

MR ROHAN: Yes, I was.

CHAIRPERSON: When were you granted indemnity?

MR ROHAN: I don't have the exact date, I think I was released ...(intervention)

CHAIRPERSON: Round about.

MR ROHAN: ... round about the 20th of May 1991, I think it was.


MR LAX: So that would have been under what was called at that stage, the Indemnity Act. There was a further Indemnity Act in '92, so it couldn't possibly be under that second set of legislation.

MR ROHAN: The first one.

MR BERGER: Mr Rohan, why is it that you are applying for amnesty for the offences for which you were convicted?

MR ROHAN: For the simple reason that I want to have my record expunged from the record books.

MR BERGER: Your motives in carrying out these attacks, you're already told the Committee that you wanted to strike at the heard of the apartheid State, were there any other motives? Was there any financial motive, or any other personal motive that you had in mind when you joined MK and carried out these attacks?

MR ROHAN: No, there was none, none whatsoever. My motivation was purely me dedication to the struggle and that was it.

MR BERGER: Mr Rohan, is there anything else that you'd like to add at this point?


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


CHAIRPERSON: Ms Patel, any questions?

CROSS-EXAMINATION BY MS PATEL: Thank you, Honourable Chairperson, just one thing perhaps.

Mr Rohan, during the time of the planning of the attack at the Natal Command, were you aware that present at the party would be personnel who were not necessarily SADF members? Were you aware of the fact that their wives would be present at the party as well?

MR ROHAN: I don't think I was aware, I just knew that there was going to be a military function involving pretty high ranking Army personnel. I can't say that I was aware that they would have been with their wives as well.

MS PATEL: Okay. During your discussions with Mr Saloojee in preparation for this operation, did you take into account that persons other than SADF members, would in fact be injured or killed?

MR ROHAN: Yes, I did.

MS PATEL: And you reconciled yourself to that.

MR ROHAN: I reconciled myself to that, yes.

MS PATEL: And the same with the bombing at the CR Swart Police Station.

MR ROHAN: Yes, absolutely.

MS PATEL: Thank you, Honourable Chairperson, I have no further questions.



MR LAX: Just one question. In essence this goes not to an essential part of our process at all, but there are no victims present here and very few of them have been able to be contacted, the actual people who were injured in some of these blasts and so on. How do you feel and would you have any message for those people? It's not a requirement of our statute that you show any remorse, so I'm not insisting on that at all, I just wondered as a human being, looking back, what you might feel about your participation in what affected those people.

MR ROHAN: Well all of it was unnecessary, in terms of that it was all a result of what apartheid did to the people in this country. Do I feel any remorse? Perhaps I do, but I'm not here to ask this Commission for forgiveness for what I did.

MR LAX: Thanks. I have no further questions, Chair.

CHAIRPERSON: Mr Berger, I don't suppose there's any re-examination?

MR BERGER: No re-examination, thank you Chairperson.


CHAIRPERSON: Thank you, you may stand down.


MR BERGER: Chairperson, the next witness would be Mr Saloojee. We're just going to have to swop chairs.



--------------------------------------------------------------------------MR LAX: You can remain standing, Mr Saloojee, if you'll just switch on your mike please. Your full names for the record please.

RIAZ SALOOJEE: (sworn states)

MR LAX: Sworn in, Chairperson. You may be seated, thank you.

MR BERGER: Thank you, Chairperson. Chairperson, I have here statements by Mr Saloojee and Mr Ismail, they've been stapled together, so if I could hand them both up to the Committee at this point. If the first could be marked Exhibit B, that is the statement by Mr Saloojee and then the statement by Mr Ismail, Exhibit C.


EXAMINATION BY MR BERGER: Thank you, Chairperson.

Mr Saloojee, is it correct that you are presently a Brigadier-General in the South African Air Force?

MR SALOOJEE: That's correct.

MR BERGER: You have applied for amnesty for a number of acts. If you would turn to page 8 of the bundle and have a look at the document running from page 8 through to page 13. Do you confirm that that is your application for amnesty?

MR SALOOJEE: I can confirm that.

MR BERGER: Now if you would have a look then at page 9, paragraph 9(a)(1), there are a number of acts stated there, starting with your joining of the ANC in 1982, running all the way through to page 10 to what you were doing during the period May 1991 to 1994. Now in relation to what is written on page 10, the period May 1991 to 1994, is it correct that you've already been granted amnesty in respect of those acts?

MR SALOOJEE: That is correct.

MR BERGER: But that amnesty was granted in chambers, you did not testify before any Committee, is that correct?

MR SALOOJEE: That's correct.

MR BERGER: Now as far as Mr Rohan's application is concerned, you referred to that at page 9, paragraph 9(a)(1), in that paragraph that deals with the period 1988 to 1990. You'll see there that there's reference to the application of Mr Rohan. But is it also correct that in addition to the acts for which Mr Rohan seeks amnesty, you also seek amnesty in addition for the commands and the acts that you committed in relation to other operatives?

MR SALOOJEE: That's what the amnesty application says, yes.

MR BERGER: Alright. Perhaps we should turn to Exhibit B and if you could read the statement into the record and I will then stop you again at appropriate points.

MR SALOOJEE: Thank you.

"I'm presently a Brigadier-General in the South African Air Force. During the period 1988 to 1990, I was the ANC's Regional Commander of Ordinance in Zimbabwe. I reported directly to Rashid, Aboobaker Ismail, who was then the Chief of Ordinance of MK. My responsibilities were to infiltrate weapons and ammunition into the country. I had a number of operatives working under my command."

MR BERGER: If I could stop you there. What is Ordinance?

MR SALOOJEE: Ordinance in the context of MK, is essentially that element of the armed struggle that provided the equipment, the ammunition, the weapons, which facilitated the execution of operations.

"Given the nature of our operations we did not keep records. It is therefore not possible for me to recall all the detail of the orders given by me. Our usual mode of infiltrating weapons into the country was to conceal the weapons within a vehicle. Once inside the country, the operative would cache the weapons in the ground, prepare a sketch of the cache and return the sketch to me. I in turn would hand the sketch to Rashid. The distribution of the sketches was the responsibility of Rashid and MK Military Headquarters. I have no knowledge of what happened to the weapons thereafter."

MR BERGER: Can I stop you there. In paragraph 2 where you refer to the operatives working under your command, are these the operatives that you referred to in paragraph 3, the operatives who would infiltrate - who'd be responsible for infiltrating the weapons into the country?

MR SALOOJEE: Yes, they were all members of MK and were specifically responsible for the infiltration of weapons. They were not responsible for any operations that were conducted by MK.

MR BERGER: And they fell under your command, you instructed them to infiltrate the weapons into the country.

MR SALOOJEE: As I've indicated, I was the Head of Regional Ordinance, with the responsibility for infiltrating weapons into the country. Obviously in that position I had a number of operatives and units working under my command.

MR BERGER: Alright. Now there's an error in paragraph 4, is that correct?

MR SALOOJEE: Yes, it's not August, it's October.

MR BERGER: So the word "August" should be deleted. Alright, please continue.


"In October 1988, I was instructed by Rashid to take charge of an internal operative, Rafiq Rohan. I accompanied Rashid when he met Rafiq in Harare and explain that Rafiq would report to me. I have read the statement of Rafiq Rohan and confirm that the contents thereof are true and correct insofar as they refer to me."

MR BERGER: Let me stop you there, please. You've also now heard the evidence of Mr Rohan, do you also confirm that the contents of his evidence are true and correct insofar as they relate to you?

MR SALOOJEE: I can confirm that.

"All the operations that Rafiq undertook and that are referred to in his statement, were discussed at length with me prior to his embarking thereon. Rafiq reported back to me after each operation, with the exception of the CR Swart Square explosion. I in turn reported to Rashid.

I have been advised that this Committee only intends to deal with the operations carried out by Rafiq. I point out that my amnesty application covers the period 1982 to '94. I have already been granted amnesty in respect of the acts committed between 1991 and '94. A copy of the notification in this respect is attached."

MR BERGER: Unfortunately it's not attached to - but Chairperson, we do have copies of that. If I could hand it up to the Committee. Perhaps it should be marked Exhibit B - I was going to say B1, but ...

CHAIRPERSON: We'll mark this Exhibit D.


Then you go on to say that if the Committee has any questions in regard to the other acts for which you seek amnesty, you are prepared to answer them now or at any other time, is that correct?

MR SALOOJEE: That's correct.

MR BERGER: Now that really refers - if we go back to page 9, that really refers to joining the ANC in 1982 and to training for one and a half years in Angola, then 1983 to 1985, being based in Botswana and being in charge of training for armed propaganda units and then '85 to '88, being based in London where you were working on special projects on behalf of the ANC. It's that period, '82 to '88, that you haven't yet given evidence about, but that you are prepared to if necessary, is that right?

MR SALOOJEE: That's right.

MR LAX: Can I just stop you for a second. None of those aspects are matters for which any prosecution is likely to take place, they were offences under a whole battery of security legislation under the apartheid regime.


MR LAX: But under the present constitutional dispensation, none of things are likely to be regarded as offences at all.

MR BERGER: Indeed.

MR LAX: You've never been prosecuted for those things, is there any need for amnesty? At a purely objective level, there's no likelihood whatsoever that he'll ever be prosecuted for those things.

MR BERGER: No, practically there is no need, but they were, technically, offences.

MR LAX: Yes.

CHAIRPERSON: Were you ever granted indemnity in respect of any weapons or carrying of weapons?

MR SALOOJEE: Well when the integration of the Armed Forces took place, as part of the agreement on indemnity, all the weapons and explosives and ammunition that were infiltrated into this country as part of the agreement during the TRC, was handed over to the State, ...(indistinct) we got amnesty for that.

CHAIRPERSON: Yes, and I think that was a condition, if you hand it in you wouldn't be prosecuted.

MR SALOOJEE: No, no, this was part of an agreement between the parties at the TRC and the government at that point in time, it had nothing to do with the general amnesty that ...(intervention)

CHAIRPERSON: With the handing in of weapons before ...(intervention)

MR LAX: If I could just correct you, that was the TEC as opposed to the TRC.

MR SALOOJEE: Excuse me, the TEC, yes.

CHAIRPERSON: And wasn't it part of that agreement that people handing in their weapons wouldn't be prosecuted?

MR SALOOJEE: It was part of that, but this was a special arrangement that the ANC had come to with the State and we handed the weapons over to the then ... yes, new Defence Force.

MR LAX: It was part of the agreement at demobilisation and cessation of hostilities.


MR LAX: That all the dead letter boxes and so on would be uncovered and - the same agreement, for example, that applied to IFP as well, but the sort of, for example, the stuff that Mr Powell a year or two ago produced should have been under that same agreement.

MR SALOOJEE: That's correct.

MR BERGER: Mr Lax, in response to your question, what is described here during the period '82 to '88, goes a bit broader than what we've been discussing, because for example - okay, there are the armed propaganda units in Botswana, but then there's also the special projects whilst Mr Saloojee was in London.

MR LAX: I accept that there may be offences inherent in all of that. We don't have the detail before us at all and I'm not sure that any of that's been investigated yet either, but we're not going to hear that today as I understand it, per se, but ...


MR LAX: I think just leave the door open on that for now.

MR BERGER: What we just wanted to do was to alert the Amnesty Committee to the fact that for some reason Mr Saloojee was given amnesty for one period, 1991 to 1994, and then this application was set down and then there's still a section of his amnesty application that hasn't been considered and we just didn't want the Committee to ...(intervention)

MR LAX: Yes, no, no, I understand that, but part of the reason why that first amnesty was granted was that you will know that the other individuals involved in the same operations were actually heard in Durban. I was on that Panel, although I wasn't party to this decision, but they were also granted amnesty in respect of those same activities. So I think there was just a link-up made between this particular decision and those activities.

CHAIRPERSON: And as a matter of fact, on page 10 some detail was given about where weapons were stored, where they were, what was the period, that sort of thing, it wasn't a blanket sort of statement that he carried weapons and he didn't say where to and for what purpose. So some details have been given there and I think that was also a factor why amnesty was granted in respect of those incidents.


MR LAX: Can I just ask one last question in this regard. You haven't received any notification that any aspects of your application have been refused yet?

MR SALOOJEE: No, not to my knowledge.

MR LAX: Okay, because there are cases where some applications are partly granted and partly refused and so on, I think to the extent that the rest of this application hasn't been dealt with, Ms Patel can investigate that and the Amnesty Committee will obviously look into the matter and decide how to deal with it further.

MR BERGER: Then, Mr Saloojee, we just have to deal with the

period 1988 to '90. You've dealt with it in our statement, you've

dealt with it in your evidence, but just to be absolutely certain.

It says, from 1988 to 1990 you were based in Zimbabwe and you

were the Regional Commander, responsible for the internal

Ordinance section. You've already testified to that.

"Individual operatives who worked under my command have applied separately for the operations they undertook"

and you refer there to the application of Mr Rohan. Would I be correct in saying that the additional acts that you seek amnesty for today, are the acts where you instructed, advised, commanded the operatives under your control to infiltrate weapons into the country, using the mode that you've described in your evidence of arms caches, sketches and so on?

MR SALOOJEE: That would be correct, it's specifically related to the infiltration of weapons.

MR BERGER: And would it also be correct to say that during this period, '99 to '90, the only operative who actually carried out attacks, was Mr Rohan?

MR SALOOJEE: That's correct, yes.

MR BERGER: Because as you've explained in your evidence and in your statement, none of the other operatives were responsible for carrying out attacks and in fact you do not know what happened to the weapons after the sketches were handed to Rashid.

MR SALOOJEE: That's correct, yes.

MR LAX: Sorry, if I could just clarify.

The only offensive operations as opposed to Ordinance type operations, are those we're dealing with now?

MR SALOOJEE: That's correct, yes.

MR LAX: And that was because Mr Aboobaker commanded you to work directly with Rohan?

MR SALOOJEE: That's correct, yes.

MR LAX: Okay.

CHAIRPERSON: Mr Berger, just to have clarity, I've got no trouble in you applying for amnesty as far as the incidents where Mr Rohan was involved, what other incidents are you asking for now?

MR BERGER: We're asking for amnesty for acts - you see I've had this debate on numerous times, the problem arises when you're dealing with applicants who were in a command position.

CHAIRPERSON: Ja, no I understand.

MR BERGER: Because they never carried out any of the operations, they gave instructions and commands. So we're asking for amnesty for the acts that Mr Saloojee carried out, which would be the giving of commands, the giving of instructions.

CHAIRPERSON: Ja, but at least then he should be able to give us the names of the operatives to whom he's given the instructions.

MR BERGER: Indeed, yes.

CHAIRPERSON: So that at least we could identify a specific offence or a delict, because we can only give amnesty for delicts and offences identifiable.

MR BERGER: Well I'll have to argue that to you at the end, because my submission is that the Act is that an applicant can be given amnesty for an act which ultimately would amount to a delict. Now we know that the, or in fact we don't know that all the weapons ultimately were used.

MR LAX: Can I just ask this, the asks of infiltrating Ordinance into the country do not in and of themselves amount to gross violations of human rights.


MR LAX: Therefore they are not matters that would normally be dealt with at a hearing. The only matter which do amount to gross violations of human rights are the ones presently before us in respect of Mr Rohan.

MR BERGER: That is so, but there is the ...(intervention)

MR LAX: I mean it's a matter of convenience to deal with them now if it's possible to and get them dealt with.

MR BERGER: But there's also the possibility, and this is really the issue that concerns us, there's the possibility that Mr Saloojee gives an instruction to an operative to infiltrate weapons into the country, the weapons then get infiltrated and stored, the sketch then gets sent out of the county, another instruction comes from Headquarters to another unit, to then go and get those weapons and arms and those weapons are then used in an offence. Technically Mr Saloojee is culpable.

CHAIRPERSON: Well he's culpable of bringing weapons into the country illegally.

MR BERGER: Well he's either an accomplice or he's an accessory, but he's also involved in the chain of events which ...(intervention)

CHAIRPERSON: Because it was brought in for that purpose and he in fact foresaw that it would be used.

MR BERGER: Indeed, indeed.

MR LAX: But I mean it's the usual causality debate, how far do you go, do you go back to the prime evil slime, you know all that whole issue. In his case he had no specific knowledge of any other operations, other than these before us today.

MR BERGER: That is correct.

MR LAX: And although he foresaw that they were being used, that was his function, to make sure that there were weapons and explosives and so on, whatever else there were. He had no personal knowledge of the individual acts that were going to be committed, other than he foresaw it in general terms they would be used for waging the liberation struggle.

MR BERGER: And he foresaw that they would be used for killing people or injuring people.

MR LAX: Oh yes, yes.

MR BERGER: And damaging property.

MR LAX: But so does everyone who manufactures a firearm, he foresees that it would be used at some time or other.

MR BERGER: But someone who manufactures a firearm within the context of the law prevailing at the time could argue that "I foresaw that it would only be used for a lawful purpose." Within the confines of the law at the time, the purposes for which Mr Saloojee intended the arms to be used were clearly unlawful.

MR LAX: Fair enough, fair enough. I think these are all matters of argument, I think let's deal with it at that stage.

MR BERGER: Well except from the point of view of full disclosure, the Chairperson has said that at least Mr Saloojee must be able to name the operatives who worked under his command in caching the weapons and that's a matter for evidence.

CHAIRPERSON: I think that would even - we would then be able to say well, we're giving amnesty linked to this and not a general amnesty for carrying weapons, but linked to those weapons which he instructed people to bring into the country and were those weapons brought in by those people into the country?

MR BERGER: Yes, although those people in turn wouldn't be able to tell you who ultimately used the weapons.

CHAIRPERSON: No, that's another thing.

MR BERGER: We would never be able to link them to a specific operation.

CHAIRPERSON: Ja, but we'll at least be able to link them being brought into the country illegally as far as that is concerned.

MR BERGER: Indeed.

ADV SIGODI: And also the fact that if the sketches were taken back, then it would be the person in charge of the sketches who would give the direction to another operative to go and use those arms. He would not have given that command.

MR BERGER: No. We'll hear from Mr Ismail what happened to the sketches.

MR LAX: You see the other thing is that these are matters that would more appropriately be dealt with through a whole range of further investigations, requests for further particulars and stuff like that. I mean, just for argument's sake, let's say right at this very moment we ask Mr Saloojee to give us ten names and he gives us ten names and he forgets three because of the heat of the moment, and then we only grant him amnesty for ten instead of thirteen, it's not a proper way to deal with it right now, I don't think. I think it would be far better and safer to sit down and get the further particulars asked and for him to scour his mind in a calm environment and then it is a matter that might properly be dealt with in chambers.

MR BERGER: Alright.

CHAIRPERSON: Mr Berger, except that I wouldn't like this to sort of hang in the air again. If it would be possible for him to get the details today or tomorrow, can't it be handed to us, because really we want to finish the work, we don't want have it sent through to the office and it's misfiled or whatever there and nobody pays attention to it. So see what you could do about it.

MR BERGER: If you could just give me a few moments, I'll just take instructions.

Chairperson, we will scour our minds and if we can hand a list to Ms Patel by the end of the week, if that would be in order.

CHAIRPERSON: Yes, and could you kindly hand it to this Panel because otherwise it would - they wouldn't have the background that we've got now, so that we could deal with it in the same decision if possible.

MS PATEL: Certainly, Honourable Chair.

MR BERGER: Thank you, Chairperson. Again, we just didn't want this to slip through the cracks so that it never got dealt with.

Mr Saloojee, besides the list that we still have to draw up, is there anything else that you'd like to mention to the Committee at this stage?

MR SALOOJEE: Specifically in relation to Mr Rohan's issue?


MR SALOOJEE: I think at all times I acted within the confines of the ANC's policies, specifically in regard to the conduct of the armed struggle. I was a soldier of Umkhonto weSizwe and a member of the African National Congress and obviously in the training that I conducted with Mr Rohan, it was explicit that we will not operate in any manner which would go beyond the confines of the policies and the strategy of the ANC and MK, specifically in regard to the execution of military operations. And I think if you view the nature of the attacks that took place and the manner in which those operations were executed, I believe it confirms that we stayed within the confines of those policies.

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


MR LAX: Can I just, again - I know there are no victims present, but they will be traced in due course and they may want to read on the transcript whether you have any message for them.

MR SALOOJEE: The fact that I'm sitting here before you today is recognition that I accept that what has happened in the past needs to be dealt with in a manner in which we all understand the context within which a lot of these activities took place. I personally am of the view that it was regrettable that individuals were injured and in other MK operations, that people were killed. I was a committed solider and I am a committed soldier now. I'm a member of the National Defence Force and in my responsibility to the execution of my role, I have to accept that people get injured and killed in the execution of my work, but that everything that I did and all the instructions that I gave and all the individuals that I trained, were trained as I've indicated earlier on, within the ambit of fighting a just struggle. And in that process if individuals were affected, I obviously would not have liked that to have happened but I do accept the fact that in the nature of the kind of war that we were fighting, that that was a possibility and I accept the full consequences of that. So yes, obviously it's regrettable and that is why I'm here today. Thank you.

MR LAX: Thank you.


MR BERGER: Chairperson, would you like to adjourn for tea or should we continue?

CHAIRPERSON: Yes, perhaps this would be a - we'll take the short adjournment.




MR BERGER: Thank you, Chairperson. The next witness is Mr Aboobaker Ismail, who will also take the oath.




ADV SIGODI: Could you give us your full names for the record.

ABOOBAKER ISMAIL: (sworn states)

ADV SIGODI: Sworn in, Chairperson. You may be seated.

MR BERGER: Thank you, Chairperson.

CHAIRPERSON: Just for clarity, he's given evidence on the 4th to the 12th of May, was it in his own application? Only to trace the evidence.

MR BERGER: Yes, it was in his application in relation to the bomb in Church Street, Pretoria. And related incidents.

CHAIRPERSON: And the other one?

MR BERGER: And then the other one is the Durban hearings, 25 October to 5 November, that was in relation to the bomb outside the Parade Hotel in Durban, the so-called Magoo's Bar.

CHAIRPERSON: But also in his own application, not in other applications?

MR BERGER: No, in his own.


MR BERGER: In fact, in the Durban one there were a number of applicants, Mr Ismail I think was the first applicant and then I think there were another eight or nine applicants.

EXAMINATION BY MR BERGER: Mr Ismail, as I've already said you've testified a number of times before the Amnesty Committee at some length and it's all been related to your application for amnesty which is now being copied and included in the bundle, do you confirm that the document from page 202 through to 220 is a copy of your amnesty application?

MR ISMAIL: It is, Chairperson.

MR BERGER: Now I just want to highlight certain parts of the application because it really is quite wide-ranging. If I can refer you to page 203. It starts in 1973 when you joined the ANC underground structures at the University of Durban Westville and goes right through to 1991 and then takes over in 1994 when you became a member of the SANDF. Is it correct that you're no longer in the SANDF?

MR ISMAIL: Yes, that is so.

MR BERGER: What's of relevance for the purposes of today is again at page 203, 7(b), during July or August of 1987 when you left Special Operations and you were then appointed Chief of Ordinance, becoming a member of the Military Headquarters of MK. You confirm that?

MR ISMAIL: Yes, that is so.

CHAIRPERSON: Sorry, to where are you referring now?

MR BERGER: Chairperson, I'm referring to page 203, paragraph 7(b) "Capacity". In March 1984, Mr Ismail was appointed the overall Commander of Special Operations and then just below that, July/August 1987 he was appointed Chief of Ordinance.


MR BERGER: How long were you Chief of Ordinance?

MR ISMAIL: Well from August of 1987 until the integration into the South African National Defence Force.

MR BERGER: Now it's correct is it not, that the specific events that, or specific operations that Mr Rohan testified to are not expressly mentioned in your application for amnesty.

MR ISMAIL: Yes, that is so.

MR BERGER: But you nevertheless seek amnesty in respect of all commands and instructions which you gave as Chief of Ordinance, in infiltrating weapons into the country.

MR ISMAIL: Yes, I must state that I also acted as a member of the Military Headquarters and during my other applications we also at that time, spoke of the Dolphin Unit which also continued to carry out some operations after I became Chief of Ordinance and it was accepted that as members of Military Headquarters, we would continue with carrying out operations wherever necessary or possible. And in the case of Mr Rohan specifically, again I was given the mandate to continue with the overall command of the operations carried out there.

MR BERGER: Now I just want to read into the record of this hearing what is at page 204 of your application. Chairperson, I'm referring to the second last paragraph of 204, which says the following:

"I state that the information contained in the application is correct insofar as my memory serves me, given the time period of 22 years covered by this document. I wish to apply for amnesty for all acts carried out by me or those under my command and which fall within the ambit of the Truth and Reconciliation Act. Many of the operations are not listed as I cannot recall all those which were carried out under my command, by various units over the years. In addition to this many of the commands, orders and instructions were verbal, given the extremely tight security situation within which we operated. Under these circumstances it was not always possible or desirable to keep written records."

and then you say:

"I wish to reiterate that I'm applying for all acts, including those which may not appear in this application, which were committed by me and those under my command and which fell under the political authority direction and leadership of the African National Congress and its armed wing, Umkhonto weSizwe."

Do you confirm what I have just read into the record?

MR ISMAIL: Yes, I do.

MR BERGER: You then go on at 205, you say:

"This application will deal, insofar as this is possible, with operations that were carried out by units under my command between 1980 and 1987, as well as for my role as Chief of Ordinance from 1987 onwards. I take full collective command and political responsibility for these operations and actions and for the consequences thereof. Individual applications for amnesty will be submitted by operatives who took part in operations, as well as those who provided material for units working within the country. As will be seen in the application, a number of operatives with whom I worked were killed by South African Security Forces. Individual applications for the operations in which they were involved will not be submitted by them. The operations themselves will however be dealt with."

Now again you confirm that?


MR BERGER: Now the operations that we are dealing with today, the operations that Mr Saloojee referred to about infiltrating weapons into the country, as well as the specific operations carried by Mr Rohan, those are not expressly dealt with but am I correct in saying that when you refer to operations that are not expressly mentioned, you include the operations referred to by Mr Rohan and by Mr Saloojee?

MR ISMAIL: Yes, I do.

MR BERGER: Why - I know you've said this before at other hearings and you've asked that the evidence that you've given at the other hearings in Pretoria and in Durban, be incorporated as part of your evidence here, but very briefly again, if you could just tell the Committee why was it necessary for you to have this caveat in your application.

MR ISMAIL: Chairperson, my application covers a wide span of activities. In 1978 I was posted to the Funda camp of the ANC and MK, where I was responsible for training and after a short while I became the Chief Instructor there and firstly, I cover an entire period where operatives were being trained and prepared for their missions inside the country, and as such I had to deal with all of these operatives, I was part of their training. It's very difficult for me, and often I don't know of all of these operatives and exactly what operations they carried, I have to apply for amnesty for that. So for my role as being an Instructor, I apply for amnesty.

Secondly, I apply for amnesty as a member of the Special Operations Command which I joined. After I was an Instructor in the camps I came to Mozambique. I came into the country, I did some reconnaissance work inside the country, when I returned I had again - we had decided we shouldn't carry out that operation, I was then placed on the command of Special Operations and as a member of the command of Special Operations, I gave orders, commands, I was part of the planning of the operations. And in 1983 when Joe Slovo became the Chief of Staff of MK, I became the Commander of Special Operations and again I continued with giving the orders and commands etcetera, which is quite widespread.

In 1987 I became the Chief of Ordinance and again continued in that role. In addition, I was ...(intervention)

CHAIRPERSON: In 1984 you became the - after Joe Slovo became ...

MR ISMAIL: The Commander of Special Operations.


MR ISMAIL: In 1987 I became the Chief of Ordinance and a member of MK Headquarters. And as a member of Headquarters, we took collective decisions about operations that needed to be carried out inside the country and I was also responsible for commanding operatives that had to get weapons into the country and this continued all the way through. Post-1990, with the whole question of attacks that were carried out against our people, I became part of the collective which dealt with the Self-Defence Units and for my role of giving weapons to operatives or members of the ANC in the Self-Defence, I again applied for amnesty.

So the roles that I played were often or most often that of being in a command position, being in a leadership position and as such it's very difficult to pinpoint specific operations as such. I believe that Commanders need to have broad ranging amnesty for what they did, but I apply for amnesty for all of those periods, and that was led at the Pretoria hearing at the outset.

MR BERGER: You've explained that there were so many instructions, so many orders given that it hasn't been possible for you to list everything. I think it's also been led in a number of hearings, that records were not kept, is that correct?


MR BERGER: But now if we come to the specifics of today ...(intervention)

CHAIRPERSON: Before we get to those specifics, Mr Ismail, could you perhaps indicate to me what would be the difference between your position, generally speaking as a Commander all over and taking responsibility for all that, and the position of for instance, Mr Modise?

MR ISMAIL: Chairperson, I was at various times specifically a Commander of Special Operations whereas Mr Modise for instance, was the Commander of MK at that time and in some senses it may differ, in other senses it does not because I was also in a similar position to him where I was an overall Commander and I was a member of Military Headquarters, but I was not in MK Headquarters at all times, I was an Instructor and then Commander of Special Operations.

CHAIRPERSON: He was in a similar position as a Commander taking responsibility for what happened under his command.

MR ISMAIL: Yes, but in that sense I also had that responsibility for the time that I was a member of Military Headquarters.

CHAIRPERSON: And your position would also be in a sense, similar to that of say a person like Gen Viljoen.

MR ISMAIL: Yes, I presume so.

CHAIRPERSON: He also applied and took responsibility for what happened under him as a military ... and as a later leader of a section of the political arena.

And Mr Tshwete for instance?

MR ISMAIL: Well Mr Tshwete at some point was also the Commissar of MK for a brief period.

CHAIRPERSON: Ja, thank you. Perhaps Mr Berger, that's the sort of problems that we'll have to deal with in argument, that's why I'm asking about it.

MR BERGER: Well Chairperson, I think it needs to be dealt with also in evidence and perhaps if I could ask Mr Ismail these questions.

You've been asked questions about whether your position is similar to the position of other leaders and in a sense you've said yes, your position is similar, but I want to also ask you, besides taking collective responsibility in a political sense, what about your responsibility for commands actually given by you, instructions actually issued by you? Would it be correct to say, or not, that you were involved in hands-on work, or were you only in a political leadership position or military leadership position?

MR ISMAIL: Chairperson, it is often difficult to distinguish between a hands-on position and an overall command position or responsibility. In my case, in a very hands-on way I instructed people, I trained people. Subsequently I came into the country and carried out reconnaissance. Then I was a member of the Headquarters, I briefed units, I commanded subordinate Commanders or units to carry out certain operations and so, and those are very specific acts, which is why my amnesty application was framed in that way, to cover those specific acts as well. What I'm saying is, I'm not just taking general overall political responsibility, I'm saying there are those things which I had been party to and I had specifically instructed people to do things and for that I am applying for amnesty.

CHAIRPERSON: But you've named them, where you specifically instructed people to do things.

MR ISMAIL: Not completely, in as far as my memory serves me at that point in time. The hearing today is a case in point you know, at that time when we made application etcetera, I didn't necessarily think of every single operation and said well look there's this operation and that, there may be other operations that may come up which will prompt and say well, are you not part of it? But I say that for any of those I do take responsibility, because in a sense I gave orders directly to Mr Saloojee, I recruited Mr Rohan directly, I personally recruited him. And there will be other cases where I personally would have acted in one way or another. Yes, subsequently, after recruiting him I handed him over to Mr Saloojee to command and take charge of, but they were both at all times during the period, under my command and Mr Saloojee would have reported back to me to say, look this is what's been happening and I would then say well, yes continue along those lines.

CHAIRPERSON: But all the people under Ordinance were under your direct command.

MR ISMAIL: Yes, yes, even in the camps where we stored weapons etcetera, they would have been under my command.

MR LAX: But I mean in a sense there's a difference between applying for amnesty for training hundreds and hundreds of people who then go off into the world and you don't actually know exactly what they get up to.


MR LAX: Whereas in this case there may be operations where you gave commands, the details of which you have forgotten and as in this instance, somebody applies that triggers your memory and suddenly you're linked, is that the difference? Say between you and someone like Mr Modise, whose amnesty application didn't deal with particulars and details of individual operations. So at that level, that's a fundamental difference between you, whereas at another level, yes, you are also globally and politically responsible as one of the leaders of the "struggle".

MR ISMAIL: Mr Chairperson, it's very difficult to distinguish between all those different roles. Again in Mr Modise's case he may have directed given orders or commanders, in other cases he may have given orders through other people, or he may have caused something to be done. It is very difficult you know in this case to sort of say exactly an amnesty application had to be framed on one way or another way.

MR LAX: You see the crucial detail here, and this is really what you're evidence is about, is what was your intention when you applied for amnesty? Were you making a symbolic application or were you making an application in which you wanted to take responsibility for things that you did?

MR ISMAIL: Mr Chairperson, my intention was to take responsibility for the things that I did, that I was responsible for and for all the acts carried out by people under my command. That where political responsibility also comes out from the actions that flow from these activities, I also take responsibility for. But it's broad, it's holistic. You know it's very hard to separate out one from the other. But I must state that this is a very specific application and I say I take responsibility for the things that I did.

MR BERGER: And that's why at the bottom of 204, as I've already read out, you said:

"I wish here to reiterate that I'm applying for all acts including those which may not appear in this application, which were committed by me."

MR ISMAIL: Yes, that is the intent.

MR BERGER: Chairperson, I overheard that you mentioned the application of Brig Schoon, but the - and I've had occasion to look at that application because it came up in another hearing, and the difference between that application and Mr Ismail's application is that in Brig Schoon's application he said "I'm applying for these acts, twenty acts" and that was it. And the ruling of - then subsequently his memory was jogged and there was another incident that he then wished to apply for. I'm not going to argue whether the ruling is correct or not, but I'm going to argue that the ruling is distinguishable in any event, because in that case the Committee ruled that there was no framework in Brig Schoon's application by which any incident other than the twenty that were listed there, could be brought into account. He didn't expressly manifest an intention in his application like Mr Ismail has, to say that "I'm saying at the outset that I'm applying for amnesty for all the acts committed by me in the various capacities in which I acted and I'm stating at the outset that there are many that I cannot recall, but I intend to include those in my application." So that's the distinguish ...(intervention)

CHAIRPERSON: That was my problem in saying how could a Commander know, he's saying "Go out, implement the policy". He wouldn't even know whether Mr X or Y put the explosives next to the telephone pole or what happened.


CHAIRPERSON: And that's the difficulty we had in other applications.

MR BERGER: But he does know, and on the basis of the doctrine of common purpose he's drawn in. He does know, he says "I am ..." - for example, let's take Ordinance, he's saying "I am infiltrating weapons into the country and I intend for those weapons to be used, I don't know exactly where or when or how, but I intend for those weapons to be used against military or Security Force personnel targets and buildings and I expect that, or I foresee the possibility that civilians might be killed as a result and I anticipate that people are going to be injured or killed." He may not know what ultimately happens but his intent is clear to cause that result. Maybe not in relation to that specific person, but to someone in that position. And for that, that is an offence or a delict which he is personally liable for, even though he may not know what the end result is, but he intended that result.

CHAIRPERSON: Ja, but that's my trouble with for instance, this decision.

MR BERGER: Which decision?

CHAIRPERSON: The 37 decision, I would say.

MR BERGER: Well the 37 decision, there on their own case they were out of court, because you'll recall there's the letter that the ANC sent and in that letter - if I could just get to it, they say at page 9 of the decision, at the bottom:

"Accordingly, the list of 29 cover the period 1960 to 1994 and included people who had been members of various Committees of the ANC from the NEC downwards. Further, the group was also selected on the basis that to the knowledge of the ANC, none of the people on its list had been involved in any individual action or actions for which they would require to apply for amnesty. From the aforegoing it should be clear that 29 would not be able to answer any questions which they sought to establish the specific acts for which they were applying for amnesty since there are none."

and then a bit further down, the underlined portion:

"The ANC would be willing to join these to the 29 after having established in each case that the persons involved meet the criterion, that they have no need to apply for amnesty for any specific act."

Now that is not what we're saying here, we are saying here that Mr Ismail committed certain acts, most of them are - well I can't even say most ...(intervention)

CHAIRPERSON: ...(indistinct) defined.

MR BERGER: Many of them are defined but many of them he can't detail or list, but he's saying "I committed those acts, I infiltrated weapons, I ordered people to infiltrate weapons into the country, which ultimately were used for certain operations and it is for that act of ordering and that liability that ultimately attaches to me, that I seek amnesty." Which is completely distinguishable from the 37.


MR BERGER: Mr Ismail, we've gone far and wide and we've covered a lot of what's in your statement. Before we get to Mr Rohan's specifics, you heard the evidence of Mr Saloojee about how weapons were infiltrated into the country, and we will get the list from Mr Saloojee before the end of the week, but could you just explain how you fitted into the picture as Chief of Ordinance. With the infiltration of weapons and ammunition into the country, how did you fit into the picture and into the chain with the sketches?

MR ISMAIL: Chairperson, if I may just clarify. Do you want me to explain generally how Ordinance worked, or do you want me to explain how I fitted in in that specific case?

MR BERGER: I want you to explain how you fitted in in those specific cases.

MR ISMAIL: Chairperson, firstly I would direct the type of material or weapons and ammunition that we sent into the country. This I would glean from a general understanding or an understanding of the requirement of the Headquarters and possible plans that they had, or in some cases generally the kind of thing that we thought may be required from time to time. On the basis of that I would then give instructions to the units in the forward areas to infiltrate the weapons into the country. In the case of Mr Saloojee I would say to him send in the following kinds of material etcetera. Often we would be confined by space considerations etcetera, but we would then say okay, let's give them broad guidelines to say look, get specific equipment into the country. They would ...(intervention)

CHAIRPERSON: Sorry. Then you're receiving instructions from Headquarters that a certain type of weapon should be imported or exported into the country and then you give instructions to your subordinates and they carry out the job?

MR ISMAIL: Yes. They would then get the units to bring the weapons in. And these transfers would have taken place in the way it has been described, in caches or something, then in other cases they would have been through transfers to other units inside the country who would then have cached them and sent the sketches out, or in some cases there were transfers to units directly. But in as far as I recall for Saloojee, by and large it would have been people that would have made sketches, the sketches were then sent out to him and these sketches were then passed on to me. We would then keep them ready, we would report to the Headquarters about the kind of sketches we had available and when the need arose, these would then be passed on to the Chief of Staff or the Chief of Operations, to then hand to any unit. This would of course have been transferred through their command chains.

MR BERGER: So in other words, once the sketch left your hands it was passed on, you then had no more to do with how the weapons were ultimately used?

MR ISMAIL: Except in as far as I was a member of Military Headquarters, I often - I knew of the nature of the units that were operating and the kind of operations that they then carried out.

MR BERGER: But you were not involved in those operations afterwards.

MR ISMAIL: I did not direct command those units except in the case of Dolphin or Rafiq, etcetera.

MR BERGER: Ja. No, Dolphin and Mr Rohan are specific instances, other than that you were not involved in the operations.


CHAIRPERSON: But on the same basis then, if he foresaw that these weapons could be used, the chain hasn't been broken, he still foresees.

MR BERGER: Indeed, and that's why he has to apply for amnesty.

CHAIRPERSON: Even if it happens, it's not out of his hands. The moment he hands over the sketch he knows that that sketch would be used for the commission of some or other delict or offence.

MR BERGER: Absolutely, absolutely, and that's why he has committed acts for which he has to apply for amnesty.

MR ISMAIL: Chairperson if I may, technically, and that means that my application would be that any of the operations carried out by the ANC and MK during my time as a member of the Military Headquarters and as Chief of Ordinance, I apply for amnesty for all of those. Technically that is the requirement.

CHAIRPERSON: Technically it's my problem that that would bring us back to the other people mentioned.

MR BERGER: The 37?


MR BERGER: But their problem is the way they framed their application. That's their ...(intervention)

CHAIRPERSON: Right okay, we'll leave that for argument ...(indistinct - no microphone)

MR BERGER: Mr Ismail, that in general is how you operated with Mr Saloojee in Zimbabwe, but now I want to turn to a specific case of Mr Rohan. You've heard the evidence again of Mr Rohan and Mr Saloojee, you've read their statements as well, as you say in your statement in paragraph 3, and you confirm not only that their statements are correct, but do you also confirm that their evidence insofar as it relates to you is correct?

MR ISMAIL: Yes, I do.

MR BERGER: Very briefly, could you just tell the Committee what happened, how you recruited Mr Rohan and your specific involvement in his operations.

MR ISMAIL: I met Comrade Rafiq Rohan when he accompanied the NIC and TIC delegations to Lusaka. I was part of the ANC delegation which met with them, and during that time we got to chatting about operations, we discussed on various occasions what we were doing and how operations were carried out and Comrade Rafiq then expressed an interest in doing more for the struggle, he saw himself as being someone who wanted to do more for the struggle itself.

I was constantly on the lookout for potential people who we could recruit for the armed struggle or into the ANC generally and I then through the discussions, put it to him that perhaps he should do some work with regards to taking weapons into the country as part of Ordinance. Comrade Rafiq then said to me, but you know, he wanted to do more than that, he wanted to be a combatant, he wanted to involved in the carrying out of those operations.

We spoke and I said to him look, it was not an easy thing, that it was a commitment and he should go and think about it. He said to me no, he was sure of what he wanted to do, but I said to him "Nevertheless go back and think about it, I don't want you to feel pressured on the spur of the moment", and we would be in contact. And if he agreed within about two weeks time, I arrange that - if he was interested, he would arrange to come out, if he was not interested he would say well he was not able to come out anymore and was not interested and that would be it, there would be no further contact in this regard.

When I contacted Comrade Rafiq he then said, he indicated he wanted to come out and wanted to pursue the discussions. We arranged for him to come out and at the time we met I was accompanied by Comrade Kelvin, we went to a hotel where we then had further discussions. I then expressed to Comrade Rafiq that whilst I have discussed this matter with Comrade Chris Hani and others at Headquarters, it was agreed that I would take charge of these operations, because Comrade Rafiq said he wanted to specifically work under me as he had confidence in me. He read or knew about the kind of work that I, because my name had appeared in the papers on various occasions ...(intervention)

MR BERGER: And had you as a fact discussed Mr Rohan's request with Chris Hani?

MR ISMAIL: Yes, I said that he wanted to be involved in military operations or conduct of operations as a combatant and generally we all felt yes, that was good because that is exactly what we wanted, that was the end that we were all working towards and if he wanted to do that, then we agreed upon it. I also said look you know, it wasn't strictly within my role as Chief of Ordinance and he said ja, but, you know we agreed that I would do that, I would continue to command the operations. We then discussed that I would get Comrade Kelvin involved to do the direct linking with him and command the operations himself.

MR BERGER: And Chris Hani at that stage was Chief of Staff of MK?

MR ISMAIL: Yes, because Comrade Joe Slovo had moved on and was in fact in the Party.

MR BERGER: Alright. So once you got the go-ahead from Military Headquarters, that this arrangements was approved, you then set up a meeting with Mr Saloojee and Mr Rohan in Harare.

MR ISMAIL: Yes, we had asked for Comrade Rafiq to come out. I then linked him to Kelvin, I then said to him look, I wasn't able to keep in touch with him on a day to day basis, I was in Lusaka, often telephones were monitored and it was better that he linked with Comrade Kelvin. I was also travelling a lot, I was moving around the front line States to quite some extent and that Comrade Kelvin would take direct charge of it and I would be supervising the activities of Comrade Kelvin. However we agreed that if he had any difficulty in the future he would then raise that with me.

MR BERGER: And was Mr Rohan happy with this arrangement?

MR ISMAIL: Yes, he indicated he would go ahead with it and if there were any difficulties he would raise that with me.

MR BERGER: Alright. After that you say that you received - this is in paragraph 6, you say you received regular reports on his progress from Comrade Kelvin. Were you kept up to date with what operations he was to carry out and what operations he had carried out?

MR ISMAIL: Yes. If I may, I think after the initial meeting between the two of them, I think I only met with Comrade Rafiq one other time, but that was before any of the operations were carried out and I then asked him if he was satisfied with the training he'd received and he felt happy and ready to go into operations, he indicated yes, and subsequently Comrade Kelvin reported to me about the operations that were carried out and we were happy with the operations that had been carried out.

MR BERGER: Mr Ismail, is there anything further that you wish to add, because I have no further questions for you?

MR ISMAIL: No, nothing.

MR BERGER: Thank you, Chairperson.



MS PATEL: No, thank you Honourable Chairperson.


CHAIRPERSON: This was a special occasion, that was the only one where you commanded sort of military operations in the sense of on the ground attacks?

MR ISMAIL: Chairperson, after I became Chief of Ordinance, prior to that, if you recall I was Commander of Special Operations, so ...(indistinct) But since then, no. There also was the issue of the Dolphin Unit and the Dolphin Unit again, there was ...(indistinct) special arrangement. Those were people who were very close to me, it was agreed by Headquarters that they continue to operate under my command, that they continued to carry out some operations and after which they then were switched to Ordinance work, but that took some time.

CHAIRPERSON: Ja. So after you've been in charge of Ordinance, the only sort of on the ground military operations you were involved in was this one and the Dolphin continuation?

MR ISMAIL: As far as my memory serves me, right.



MR BERGER: Chairperson, if I could just tell you that at the Pretoria hearings one of the annexures that was handed in, dealt with the activities of the Dolphin Unit. So it's already part of that record. Yes, it was Annexure D in fact, to the statement that was handed in in Pretoria. If you want we have a copy of that statement, we could have copies made and hand it to you now.

CHAIRPERSON: We'll consider it and tell you whether it's necessary to have copies made.



MR BERGER: We have no further evidence. That is the case for the applicants.


MS PATEL: There is no evidence that I wish to lead, thank you Honourable Chairperson.

CHAIRPERSON: Mr Berger, perhaps we could hear argument now or if you want to argue later it's another thing, but maybe you'll be able to finish before one.

MR BERGER: We can, Chairperson, I really don't have much more to add.

Chairperson, I'm going to deal with the applicants in the order in which they gave evidence.

CHAIRPERSON: I'm speaking for myself, as far as - and my colleagues can say whether they agree, I don't think it's necessary for you to labour on the arguments concerning the two applicants, the first, my only trouble is the fact whether we're granting amnesty for something that's not been applied for. That's what's troubling me at this stage. As far as Mr Saloojee is concerned, he referred in his application to the application of Mr Rohan, so that's incorporated there, it's not something that he's adding now that's not been referred to. So I'm satisfied that in fact he referred to ...

MR LAX: I'm happy as well.

ADV SIGODI: I'm happy as well.

MR BERGER IN ARGUMENT: Alright Chairperson. Thank you, Adv Sigodi. That makes my argument even shorter. I'm then just going to deal with ...

There is an element of Mr Saloojee's application that is akin to Mr Ismail's, although it is mentioned specifically at page 9 of the bundle, Mr Saloojee says, he talks about operatives who worked under his command during the period 1988 to 1990, and he told you this morning that his intention is to apply, it's always been to apply for amnesty, not only for the specific operations of Mr Rohan, but also for operatives who acted under his command who brought weapons, infiltrated weapons into the country.

He talks about being the Regional Commander responsible for internal ordinance and in military terms as I asked him, ordinance means the hardware, the infiltration of weapons into the country. And my submission is, and it's going to be my submission for Mr Ismail as well, and that is that the Act created a cut-off date for applications for amnesty and it dangled a carrot in front of people to entice them to come forward and apply for amnesty and it said "if you come and apply for amnesty and you expose your role, then you will be amnestied, you will be rendered immune from civil and criminal liability if you do that."

CHAIRPERSON: If he's been granted indemnity do you know whether that also included the, call it the illegal carrying of weapons or bringing in weapons into the country?

MR BERGER: I don't, I don't, Chairperson.

CHAIRPERSON: Because if that's been included, we're bound by that decision in accordance with the Act.

MR BERGER: Yes. I don't know if it extends to civil liability as well.

CHAIRPERSON: Ja, it extended - the previous ones also included civil ...(intervention)

MR BERGER: The Indemnity Act extended to civil ...

CHAIRPERSON: It didn't include the expunging of the record.

MR BERGER: Of the record.

CHAIRPERSON: But there's no record to expunge here.

MR BERGER: I don't know, Chairperson, but my argument goes wider, it incorporates both Mr Saloojee as well as Mr Ismail, and that is to say one has to look at the spirit of the legislation and what was intended. Clearly people who didn't apply for amnesty before the cut-off date, they missed the boat, but someone who comes forward and says "I was a Commander of MK during the period of the struggle", or like Mr Saloojee says "I was based in Zimbabwe and I was the Regional Commander responsible for the internal Ordinance section and there were operatives working under my command", anyone who knows anything about the history of that period knows exactly what that means, knows that that means that I commanded units who infiltrated weapons into the country for the purposes of carrying out attacks in which people were going to be killed. Bluntly put, that's what it means. And someone like Mr Ismail who says "This is my history. From 1973 to 1994, this is what I was doing, I was in the command structures of Umkhonto weSizwe. First Special Operations" - well I'm using shorthand because it's all there, "and then Ordinance." The whole point of MK was to wage an armed struggle against the apartheid State to attack Security Force targets, personnel, during which people were going to be killed. It's - I think the Afrikaans is "selfsprekend", it's so obvious that that is the ... And Mr Ismail and Mr Saloojee, they come forward and say "This was my role during the struggle and I'm applying for amnesty."

My submission is that it would be a very narrow interpretation of the Act to say that because you did not give a definitive list of the operations which could be attached to your name, you can't come and give further particulars at a later stage. In fact, the Act makes provision for the furnishing of further particulars. Section 19 I think it is.

CHAIRPERSON: But weren't further particulars asked? In the sense of "Tell us what you've been doing."

MR BERGER: Well not in relation to everything, no. For example ...(intervention)

CHAIRPERSON: Well you can't ask for particulars if you yourself don't whether they were involved in a certain incident, you can only ask if there's some reference to an incident.

MR BERGER: Well that's the problem with people in command positions. You know, for example I can refer you to the ANC's submissions ...(intervention)

CHAIRPERSON: No, I appreciate the problem there, it's a very practical problem but it's also a legal problem and how to link the two.

MR BERGER: At the start of Appendix 4, the list of MK operations in the submissions dated the 12th of May '97, the ANC say:

"Please note that the information in this list was drawn from press reports and annual surveys of the Institute of Race Relations. These are not MK records. There are probably omissions and errors due to censorship during the apartheid era and other difficulties in collecting information of this nature."

Then we know that MK did not keep detailed records. So we've got the problem where, and it's a practical problem, where the intention, clearly, of the legislation is to encourage people to come forward to say whatever they can say about their activities during the period. But once they have come forward and once they've exposed themselves, if they get reminded of something that they forgot to mention, they cannot get amnesty for that. And that in my submission runs totally contrary to the spirit of the legislation.

MR LAX: Mr Berger, just to play devil's advocate for a minute, let's say you're Brig Schoon ...(intervention)

MR BERGER: Hypothetically speaking.

MR LAX: Ja. ... and this is your application, in your case, in this context, your misfortune is that you forgot to put a caveat in. Does that necessarily still measure up to the broad spirit of the statute?

MR BERGER: No. Mr Lax, seeing as though you asked for me to make a submission on that ruling, I've submitted to you why it's distinguishable, because of the lack of the caveat, but I submit that that ruling is wrong. And I submit with respect, that Brig Schoon ought to have been entitled to raise the additional incident, because the Committee accepted, if I remember that ruling correctly, the Committee accepted that he was bona fide and that it was an incident that had totally slipped his memory.

And again, if one has to argue from his point of view, he comes forward and he says "I was the overall Commander of Vlakplaas." Now from what we know about what happened at Vlakplaas, the overall Commander of Vlakplaas was involved in illegal conduct day in and day out and yes, there are things that probably slipped his memory and I would never be able to argue that it was the intention of the legislature to exclude one of those events from his entitlement to amnesty. He came forward, he said "I was the Commander of Vlakplaas", and if this was one of the things that Vlakplaas carried out and which he genuinely forgot about, which was the finding, he shouldn't be denied amnesty for that.

ADV SIGODI: Just on that question, what do you think would be the position of an applicant like Mr Ismail if now after the whole process has been finished, then certain acts are now discovered afterwards, which the applicants in those matters have not applied for, where would that put them?

MR BERGER: I'd like to refer to a recent judgment or decision of the Amnesty Committee in the case of Gen Nyanda. It relates to the hearings which were conducted in White River. There were three applicants there, there was Gen Nyanda, there was Gen Shoke and there was Sgt Mkhonto, and it concerned Operation Ketchwayo, which was the landmine operation in the former Eastern Transvaal border, and on the 22nd of June, in fact last week, the Committee handed in its decision granting amnesty and I submit that the way in which the Order is framed is proper and takes account of the problems, Adv Sigodi, that you raised. There were certain landmine explosions that were at issue in that application, but Gen Nyanda said, as Mr Ismail says, he said "There were a whole lot of orders that I gave during that period and I can't tell you, I can't list them all for you because I simply do not know all of them, but I know that I commanded Operation Ketchwayo, I know that I instructed units to infiltrate the country and to plant landmines wherever they considered it appropriate within the broad guidelines of the ANC's struggle." So the Order reads that:

"Amnesty is granted in respect of all offences, delicts and acts or omissions committed and directly arising out of the activities of Operation Ketchwayo, during or about 1985 to 1987, at or near the Eastern Transvaal border, including the following landmine explosions: ..."

and then they are listed. So the point is it's not limited to those landmines, it includes all offences, delicts, acts or omissions related to that operation which spanned a period of over two years, called Operation Ketchwayo. And that I submit is the proper way of dealing with this problem.

Here Mr Ismail says "I was Chief of Ordinance during this period and I committed certain acts which amount to offences or delicts because I instructed people to go into the country and I knew what it was going to be used for and it is for that which I seek amnesty." So you don't have to have a closed list and so that problem can be dealt with, I submit, in this manner.

MR LAX: So basically, somebody seeking to claim amnesty would have to be able to prove to whatever forum they found themselves in, that they fell within the parameters of that order.

MR BERGER: Exactly, yes.

CHAIRPERSON: But it's limited to Ketchwayo, not to other landmine incidents.

MR BERGER: No, Ketchwayo was an operation which spanned a period of two and a half years in a particular area, that was what Gen Nyanda gave evidence about, that particular area. His operation did not span the former Northern Transvaal, so yes, in a sense it was limited, but a similar order could be drafted for the purposes of Mr Ismail's application. It's covering a period, we're talking about ...(intervention)

CHAIRPERSON: But didn't Gen Nyanda ask amnesty for Operation Ketchwayo?

MR BERGER: In his original application?


MR BERGER: No, in his original application he said two things, he said "I'm applying for amnesty for the role I played as a Commander of MK." That was in the one section and then in the other section, when he was asked about acts for which he sought amnesty, he said "I refer to these two documents, the ANC Submissions dated 12 May '97 and August '96, and he said "for further particulars."

And then when he was asked for specific ...(intervention)

CHAIRPERSON: So he included every incident?

MR BERGER: Every incident, yes.

MR LAX: Didn't he have a caveat of some description?

MR BERGER: In his original application he simply referred to these documents, in his further particulars he said "I'm going to now try and list the specific attacks that I can recall, but again I must say that it's not full and complete." But that was only in the further particulars.

MR LAX: Just as a matter of interest, because this is something that someone might argue, when were the further particulars submitted?

MR BERGER: The further particulars were submitted after the cut-off date.

MR LAX: And that Panel obviously gave that decision?

CHAIRPERSON: Well I suppose it was even asked after the cut-off date, in all probability.

MR BERGER: It was requested after the cut-off date. Ms Patel was in fact the Evidence Leader in that application. I could hand in a copy of the decision, perhaps we can make copies and hand them in at the close of proceedings.

CHAIRPERSON: We're always keen to say we're not bound by precedents. Thanks Mr Berger, we do appreciate it.

MR BERGER: Thank you, Chairperson.

Well that then - I've already argued about Brig Schoon, the difference between his application and Mr Ismail's, as well as the fact that I submit that that decision is wrong. And then as far as the ANC 37 is concerned, because the fear is always that the Committee is being asked to grant blanket amnesty, that's always the fear and blanket amnesty in my submission, is the kind of amnesty that the 37 sought where ...(intervention)

CHAIRPERSON: So they've made - on behalf of the ANC, they've presented us with those documents, they refer to a memorandum annexed, if I remember correctly.

MR BERGER: No but Chairperson, if you look at the decision, the history of the matter as I'm sure you're aware, was the decision was made in chambers, the 37 were granted amnesty, then the application was made to the High Court to have it set aside, it was set aside and referred back to the Amnesty Committee.

CHAIRPERSON: ...(indistinct) allowed to differ from other decisions of the Amnesty Committees, perhaps I could say I differ from that decision.

MR BERGER: Ja, you are, I'm just giving you food for thought.

CHAIRPERSON: Ja, thank you Mr Berger.

MR BERGER: And then once it came back to the Amnesty Committee, at page 7 there was - it says:

"Following the Court Order, the Amnesty Committee made further enquiries from the ANC's TRC desk, which represents at least the original 29 applicants, and gave directions in respect of the attestation of the application and requested for further particulars. As a result of such enquiries, a letter dated 10 November 1998 was received by the Committee from the ANC's Secretariat."

And it's this letter which formed the basis, in my submission, of the Committee's decision to refuse amnesty. Because you'll see again at page 9, the underlined portion of the letter is a denial by the ANC that the applicants had committed any acts for which they would require to apply for amnesty. And that is specifically what Mr Ismail is not saying. He's saying exactly the opposite, he's saying "I committed certain acts, I gave commands and orders."

CHAIRPERSON: ...(indistinct - no microphone)


And then the issues are then dealt with and there's constant reference back to this letter, referring to the various sections of the Act. At page 18, the Committee said the following:

"None of the applicants have disclosed any such act, omission or offence. On the contrary, pursuant to the enquiries made by this Committee in terms of Section 19, (which is the request for further particulars) the applications as amplified in the letter quoted herein above categorically state that 'none of its people on its list have been involved in any individual actions for which they would require to apply for amnesty.' That the persons involved meet the criterion, that they have no need to apply for amnesty for any specific act. That they do not have to apply for amnesty for 'specific acts since there are none.'"

And then at the end of the judgment, at page 20 under "Findings", the Committee finds:

"It is our finding that insofar as the applicants seek to apply for amnesty for acts committed by their members in the various institutions and structures on the basis of collective, political and moral responsibility, their applications fall outside the ambit of the Act and accordingly they do not require to apply for amnesty.

Insofar as the applications read with the amplification are concerned, we find that no amnesty can be granted to the applicants because:

(1) on their own version they have committed no offence or delict in the Act;

(2) their applications do not relate to any specific act, omission or offence in terms of Section 20(1) and therefore do not fall within the ambit of the Act."

And that was why amnesty was not granted.

CHAIRPERSON: ...(indistinct - no microphone) it's going further, he's accepting more than collective, political and moral responsibility, he's accepting full responsibility.

MR BERGER: Absolutely, absolutely. He says "I gave certain orders which had certain results and it is for that that I seek amnesty. It's not a political moral - he does accept political responsibility and he does accept moral responsibility, but he goes far further, he says "I did these things, I gave these orders and these commands, I commanded certain units and it is for that that I seek amnesty, because those acts amounted to civil and delictual liability.

CHAIRPERSON: If we're stretching the ...(indistinct) sequence so far, wouldn't it have repercussions in the sense of all Commanders?

MR BERGER: Yes. But they way they choose to disclose their role in the struggle, it's for them to disclose what they want to disclose and what they don't want to disclose.

As far as Mr Ismail is concerned, to put it bluntly, he's gone the whole hog and he seeks amnesty. The other way of testing it is to say "On his version, could he be held criminally or delictually liable?" If the answer is "Yes", then he's entitled to amnesty. On their version ...(intervention)

CHAIRPERSON: Ja, no I agree with that, except then a further thing would be whether he applied for it and you say we shouldn't interpret the Act as trying to sort of include - it should be a wide interpretation, not a narrow one.

MR BERGER: Yes. Because one has to look at what was the intention of the legislature. This is a legislature sitting in, I think it was in 1995, yes 1995, a post-apartheid legislature talking about granting amnesty for all -

"... the granting of amnesty to persons who make full disclosure of all the relevant facts relating to the acts associated with a political objective, committed in the course of the conflicts of the past."

Well I think that one can safely say that - I submit I should say, that one can safely conclude that the intention of the legislature was to grant amnesty to all those who were involved in the conflict of the past, and it must have been uppermost in the minds of the legislators, that that included Commanders such as Mr Ismail and Mr Saloojee. As well as people such as Brig Schoon, I might add.

CHAIRPERSON: Thank you, Mr Berger.

MR BERGER: I have nothing further to add. Thank you.

MS PATEL: Thank you, Honourable Chairperson. This issue has been canvassed so many times by so many different Panels, I don't believe there's anything extra that I can add or that will assist you in coming to a decision or a ruling on this matter. Thank you, Honourable Chairperson.

CHAIRPERSON: This would conclude the roll for today, we adjourn until tomorrow morning 9 o'clock. Thank you.