CHAIRPERSON: Good morning, it is now ten past ten. Where is Mr Memani?

MR RAPHADANA: Mr Chairman, we realised that we forgot the argument in the hotel room, so he has just gone to pick up that.


MR RAPHADANA: He forgot the argument in the hotel room. He just realised once we were here.

CHAIRPERSON: He knew he was to argue here at 10 o' clock this morning, you're now telling us he forgot the argument in the hotel room. What sort of conduct is that by a so-called 'legal practitioner'?

MR RAPHADANA: Well, Mr Chairman, unfortunately it happened like that. We do apologise for that, but I don't think he will be longer than 10 minutes.

CHAIRPERSON: So we all have to sit and wait for Mr Memani?

MR RAPHADANA: Well, that is the unfortunate part of the ...[intervention]

CHAIRPERSON: Why did he not come and see us and explain and ask leave to go?

MR RAPHADANA: Well, Mr Chairman, he requested me to come and explain to you and then I contacted Robin. Robin said there was no need, he will explain to you.

CHAIRPERSON: What do we do?

MR BRINK: Mr Chairman, before I had an opportunity of talking to you, you were brought into the hall.

CHAIRPERSON: Are you ready to start, Mr Stander?

MR STANDER IN ARGUMENT: I am ready to start, Mr Chairman. I can start.

Mr Chairman, in my argument I am going to refer you to the various victims and I am going to refer to each of them. I am not going to refer in detail, but shortly then, with your permission, I am going to expand on the legal position and show the improbabilities regarding the police evidence.

Mr Chairman, I am going to start with Oupa Makubalo's evidence. You will remember that he was involved in two incidents.

The first one - and he also put it like that, in chronological order - was the incident when he was arrested in the street and shots were fired at him. According to him it was chronological that the first incident was according to this applicant.

Shortly, he told the Commission that that day he was standing there, he said was only wearing his trousers, he was relaxed. A police vehicle came there and it came to a standstill, and then immediately shots were fired at him. I am talking under correction, but he said that Mr Mamome had fired the first shots. Later on he could not tell us who else had fired shots at him because, as he said in his evidence, when you are being shot at and you are running away you just try to get away as quickly as possible. He also told us that later on he was very tired and that he stood still.

ADV DE JAGER: The incident you are referring to is 6.16 under Mr Motsamai's application, the very last item.

MR STANDER: Mr Chairman, just one minute.


MR STANDER: That is correct, Mr Chairman. Thank you.

ADV DE JAGER: It would assist us if you are referring to which item you are busy with.

MR STANDER: Just be patient with me; unfortunately I did not have the specific document with me while I was preparing my argument. I wanted to refer you to the specific applications.

CHAIRPERSON: 15 and 16.

MR STANDER: As it pleases you, Mr Chairman, and I will continue like that.

Shortly, with reference to Mr Makubalo, then he was thrown onto the ground, he was assaulted and he identified specifically once again Mr Mamome and Mr Motsamai. He then told us that he was taken to the Security Branch and was further assaulted there.

The further incident he was involved in is item 6.15, and that was the group of 19 who tried to skip the country. I am not going to try to provide detail about what happened on the border, it is well known information.

What is, however, important according to me is the fact that he was brought there, he was brought to the Security Branch, there he was identified as one of the leaders of that group. For three consecutive days, according to him, he was assaulted, and he identified Mr Mamome, Terreblanche and Mafisa and others. And he said that he knew Mr Motsamai very well and also Ngo who was on the scene.

He also told us that as a result of the injuries he was treated in hospital and still has problems with his ears at the moment because of those injuries sustained.

Mr Chairman, what I think regarding this witness, I think his evidence was given in a truthful way. In no way whatever during cross-examination it was found that he was telling a lie. I can't deny that one or two differences were shown during cross-examination but these differences can be attributed of less than importance.

ADV DE JAGER: Can I just hear from you - did the police take him to a doctor?

MR STANDER: That is correct, Mr Chairman. I am talking from memory and you can help me, but I think he referred in that respect to the hospital.

ADV DE JAGER: Was it during one of those three days, as far as you can remember?

MR STANDER: As far as I can recollect it was not during one of those three days, it could have been afterwards. I can't say precisely which day he was taken to hospital, but I think that one of the police witnesses said that it could have been on the third day, but I stand to be corrected on that point.

Mr Chairman, the second witness, the second victim which I will be referring to is Mr China Oliphant. He is implicated by the applicants regarding items 6.15. He was also a member of that group who was brought back after they had tried to skip the country. He was identified as a leader of that group and he identified then Mr Tsoametsi.

ADV DE JAGER: Swanepoel, Terblanche?

MR STANDER: Mamome, Erasmus, Motsamai, Ngo, Kopi and Miningwa. He also tells us that he, for three consecutive days, was assaulted. You will also remember that he testified that his face at a certain stage was so swollen that one of the police officers, I think it was Mr Erasmus, referred to him or said he looked like a monkey.

According to me, he was also a victim regarding the murder - just give me a minute to control - in the trial of Mr George Musi. It is item 6.1, the murder in Melk Street.

Mr Chairman, you will remember that Mr Oliphant testified that as a result of disinformation which was distributed by the Security Police, he was branded as the murderer of Mr George Musi. He also tells us that his family up till this stage has rejected him totally as a result of that disinformation provided. You will also remember that here in the dock while he was interrogated regarding this incident, that he burst into tears and some members of the Truth Commission had to assist him. As a result of this what was done to him according to his uncle's murder, he can also be regarded as a victim.

I am going to refer to the Lekiklane ladies together to save time.

CHAIRPERSON: Before you go on, he went to a mental hospital as a result of his treatment.

MR STANDER: I am sorry, I forgot to tell you that. He went to a mental hospital and he underwent that type of treatment because of the assault on his head. The Lekiklane women, they are also part of item 6.15. Shortly, they testified that they were assaulted physically, exercises done, they were hit with electrical wires, and they also identified Mr Motsamai, Mamome, Ngo and Erasmus and, to a lesser degree, Mr Kopi, they implicate them in their assaults. One of them said she did not do exercises because she was wearing a dress. I think that was Doreen Lekitlane. Yes, that is correct. I stand to be corrected in that respect.

The fact of the matter is that those three ladies were seriously assaulted and in spite of the fact that they were women, I think that the members of the Security Branch did not care about their sex, etc.

I think this matter of Annie Phalane can be associated with that. She was hit with an open hand, she saw Ngo and Motsamai there but according to her the person who do most of the torturing was Mr Du Plooy.

She was detained for a period and she tell us that she received no medical treatment, there as no medical treatment available after that incident where they sustained the injuries. And important, according to me, she also denies that Mr Erasmus would come to Glen police station to do a kind of inspection there.

Mr Chairman, the matter of Mr Jwayi - he was a member of the group of 19, 6.15 - he identifies Mr Ngo and Motsamai, but he says the person who assaulted him was a certain Mr Killian. He identified particularly Mr Killian. He said that he was detained afterwards, but he also was assaulted with the fist, hit with an open hand and they swore at him. He also, I mean, is a victim of the actions of the Security Police and specifically the common action of all of them.

Mr Chairman, Serame Molefe, you will remember that he testified how he after he had come back from Robben Island was harassed because of Mr Motsamai's actions, lost his job ...[intervention].

ADV DE JAGER: Mr Stander, you don't have dates when he came back from Robben Island? Do you have a date?

MR STANDER: Mr Chairman, I will get instructions from him, I can't remember it offhand. Just give me and I'll find out; he is here.

ADV DE JAGER: I have a note saying: "During 1994 I was a member of the PAC and returned from Robben Island".

MR STANDER: That is what I remember, but I will get the precise date.

After his return from Robben Island he first worked at a certain institution, I think it was Coca Cola, no it was Metro - that was the first place - and as the result of the information which Motsamai conveyed, they discriminated against him and he lost his job. Then he started working for Coca Cola and precisely the same thing happened, and he also lost his job there. According to him he applied for jobs at various other places but every time when a reference was made to Coca Cola or Metro he did not get the job. It was refused and he says it was based on the activities of ...[intervention]

MRADV DE JAGER: I'm sorry, Mr Chairman, I didnít catch which item on the pre-trial conference my learned friend is referring to.

MR STANDER: Mr Chairman, I am indebted to my learned friend. While presenting this evidence we put it under item 13 on page 148 of bundle A, and it is based on that, that the Commission allowed that evidence. I agree that it does not resort per se under the so-called incidents in the pre-consultations but I think we can put it under item 13 on page 148 of Mr Motsamai's application.

Mr Chairman, this brings me to Mr White Mohape. I want to start by saying that he made a very valuable contribution to these proceedings. He was very certain of all the facts, he was convincing in telling all the sorrow which he sustained, and I also think that in all respects we can believe what he told us. Mr Chairman, his matter will be found under 2.2 in the pre-trial matters.

According to me it is so that Mr White Mohape gave us a detailed statement on what had happened to him, from the beginning to the end. He told us that he was detained, firstly because of the fact that there was an alleged accusation against him, namely that he had tried to commit murder, you remember the knife incident that he was found not guilty and was acquitted. And then on the 27 April 1984 while he was being detained at the Bayswater police station - and immediately I want to interrupt myself by saying that Mr Mohape was not certain about the specific date when those things took place regarding the year.

ADV DE JAGER: Can you give us the dates of the attempted murder on Mr Ngo so that we can have the precise dates of those matters?

MR STANDER: I am sorry, that date I think was somewhere in November, but I am sorry, it must have been in 1984 but I am speaking under correction. I can't remember. I can't provide those dates. I am sorry, perhaps one of my learned colleagues could assist you in that regard. It seems to me they are not assisting me, so the date we will try and determine from previous records. I think, however, that it had to be in 1984 that that happened because shortly afterwards Mr Ngo, in any case, went to Ladybrand, but I stand to be corrected. I can't give the precise dates.

Mr Chairman, it is very clear what I was saying is namely that I agree that Mr Mohape was uncertain about his dates. I think it was one of the Committee members - I think it was you, Mr De Jager - who asked him to give us the chronological dates and then him changed them round, turned them round. After I questioned him and you questioned him, he changed those dates. At a later stage I conceded that it did happen on 27 April 1984, while I think he mentioned 1986.

ADV DE JAGER: We are ad idem; he and Mr Ngo were still at school. I mean he said 1984 while he was arrested he was still in std. 8, at the Lerikuld High School in Bloemfontein. I am talking about Mr Mohape.

MR STANDER: Mr Chairman, he tells us that two unknown people assaulted him there, that they used hammers and also crowbars in attacking him, and more people joined them but he could not identify any of those. According to him those assaulters purposely tried to hide their identity by pulling balaclavas over their heads.

CHAIRPERSON: That was not when they first came - the two people first came to him, There was no attempt to hide their identity, was there?

MR STANDER: That is correct, he said, but at that stage when he was arrested, when he had the opportunity, they were wearing balaclavas, but the balaclavas were pulled up above their eyes. If I remember his evidence correctly, he did not try to identify them but accordingly to him, earlier that day he was informed that Security Police would take him to his house. As it usually happened, when he was arrested every time they took him back to his house afterwards and, based on that, he did not deem it necessary because the people were discussing things with him; the discussions were usually held by Security Police.

ADV DE JAGER: The problem is that as far as I can remember, there is no testimony that before 1984, before he was in std. 8, that he had been arrested beforehand.

MR STANDER: Mr Chairman, that is like that. We can draw an inference from his evidence that that was usually done at that stage and that he had been arrested before. I can't take it any further, and I want to tell you that was what was usually done according to him.

It is also clear that because of this incident, he sustained serious injuries and, according to his evidence, he was later treated, I think by Dr Makome. I stand to be corrected, but I think it was Dr Makone. He also identified the marks on his legs. Important is, the fact that he is blind in his one eye does not have anything to do with this incident.

He also gave evidence of an incident where here in Fontein Street he was detained and there, according to him, Mr Erasmus told him to look out of the window and, according to him, a bag or some other object was pulled over his head and then broomsticks and other objects were used to hit him. I think we can put this under item 2.15. No, I'm sorry, item 6.15.

Mr Chairman, it is important to note that also Mr Mohape, according to me, stuck to his version of the story except for the problem regarding the dates. But I think one can accept that this had happened so long ago and can accept it in this regard. In various instances he was arrested by the police that it is not reasonable to expect from him that he should remember the precise dates. I think that his evidence could be accepted as such.

Also important is the fact that he was the chairman at that stage of Cosas who, according to him, was affiliated to the UDF.

CHAIRPERSON: Was he Chairman of Cosas in 1984 when he was in std 8? I find that hard to accept.

MR STANDER: Mr Chairman, he was on the Executive of Cosas at that stage, at least a member then. I can't say whether he was the chairman or the vice chairman in 1984, but he was definitely a member, and as a result of that the Security Police was very interested in his activities. That we can accept as a fact. In other words, his actions would have been important.

CHAIRPERSON: He must have been a very junior member.

MR STANDER: It could be, Mr Chairman. I can't take it any further, there is no direct evidence that he was on the Executive in 1984 already.

ADV DE JAGER: I think there was evidence that when he was in std. 9 he was on the Executive.

MR STANDER: That is indeed so. Thank you, Mr De Jager. When he was the vice chairman, that is correct, when he was the vice chairman of Mico and when he went to Durban.

Very important, Mr Chairman, is that at stage he was politically active and therefore his activities were monitored by the Security Police because of his politically inspired activities.

ADV DE JAGER: How would you describe the relationship between him and Mr Ngo during their school years?

MR STANDER: He told us in his evidence that there was a good relationship between and Mr Ngo. He also said that initially he could not believe that Mr Ngo was a police informer. After he started believing that, he was extremely disappointed and tried everything to expose this person in public. According to me one cannot describe as there being a hate relationship between the two of them.

ADV DE JAGER: What was the attitude regarding informers in general?

MR STANDER: Mr Chairman, I am sorry. It is well known that the persons were regarded - the people did not like those people and the papers were full of stories about these people who were killed by necklacing. I don't think there was a friendly relationship between them. At least one can say that they did not accept this relationship; these people were not accepted. But I think history has proved itself and at least among some people there were feelings of hate.

Regarding Mr Matthews Mzuzwana, it is item 6.8, the so-called attempted murder of Mzuzwana. Mr Chairman, I also think that he can be regarded as a victim. He explained his political activities as a member of Mico, the youth congregation, and he tells us in detail how on that day, after having attended a sermon, police officers shot at them.

During cross-examination regarding Mzuzwana's evidence, there was once dispute regarding the involvement of Mr Ngo, and there was a difference of opinion regarding what was mentioned in a civil action and here. What is important is that his face is enough evidence of what had happened to them. There could be no doubt that he was shot with a stopper gun, and as Mr Motsamai said in his application, he was present when he was shot with a stopper gun. The fact that there was a dispute about the people who was involved is irrelevant and should be negated be the Committee.

ADV DE JAGER: Who was the perpetrator? Who should get amnesty in this regard?

MR STANDER: Mr Motsamai applied for amnesty because he was part of this group or who had the specific purpose of eliminating him. Mr Chairman, I can't take it any further.

There was a so-called common purpose, at least with Mr Motsamai, when this incident took place.

Mr Chairman, I told you that I would later come back to some of these members. Mr Makubalo, I think - I just want to find the place - he was a member of the Mico, this is the so-called Mangu Youth Congregation who was affiliated to the UDF. The Group of 19 were all members of the same organisation, namely Mico. Mr Mohape was a member of Cosas, Mr Molefe, a member of the PAC, Mr Matthews Mzuzwana was also a member of Mico. What I am trying to say is that all the members of the prejudiced people or all these victims had a political affiliation and therefore, I think, they meet that requirement.

Mr Chairman, this brings me back to the improbabilities that you should be taken in consideration regarding the evidence of the police. I am not going to refer to specific officials, but I am going to refer in general to eh police evidence without referring to some specific person. What could be said of one could be said of everybody.

Mr Chairman, we have heard here about, as a monotonous

way of denying all the evidence. Every time the matter when it was mentioned, he denied that he had been there or he denied that he was involved in whatever way, or he just said in general that he denied it. What is important is the fact that the Security Branch in Bloemfontein at no stage did any assaults, tolerate it, or allowed it, despite the fact that not this Committee, but also other Committees knew that in other centres people were readily assaulted and maltreated.

This Security Branch said this never happened here. What is very important is, when these police officers were asked, but if Mr Motsamai and Ngo referred to that, they were branded as the only people who could have been part of those incidents, the probabilities just point to the opposite.

The aspect of the Group of 19. Nobody heard any shouting; nobody saw anything. It is a large group of 19 who were assaulted there; nobody knew anything about that except Mr Ngo and Mr Motsamai. It is highly improbable and at least, Mr Chairman, it is a blatant lie.

ADV DE JAGER: Can you explain to me: this was a building flanking on two streets; it is a building where there were other people also, for example the chaplain. It is near the High Court, Supreme Court; it is near the Attorney-General. For three days, if there was a shouting and screaming and assaulting for three days, is it not probable that it would have been heard outside the building?

MR STANDER: Mr Chairman, I wondered about the same thing.

ADV DE JAGER: Was the screaming and the shouting so soft that it could not be heard outside the building?

MR STANDER: Mr Chairman, I don't think one could say the shouting was so soft that it could not be heard outside the building, all that I can say is that the people, the other occupants of the building probably became used to this type of activity, and because of that no action was taken. I've tried to think of a solution to this problem and I could draw no other inference than that.

CHAIRPERSON: Isn't the inference what my brother said to you, that there wasn't this loud shouting and screaming. Apart from anything else, as well as the chaplain, you had the commissioner, didn't you, on the third floor? The rest of the building, I think we were told, were occupied by his offices.

MR STANDER: Mr Chairman, yes, it is like that, but my learned friend just brought it to my attention that on 6 April 1986 was a public holiday at that stage, it was Van Riebeeck Day.

In other words, the rest of the building could have been empty.

MR NGOEPE: Mr Stander, if your neighbour beats up his child in the bathroom and the child cries, you do not always hear the child, do you? It depends on how loud the child cries. Isn't that so?

MR STANDER: That is so, Mr Chairman. Moreoever, there was the suggestion that some of these offices could have been soundproof. I know it was never indicated in evidence, but it is a possibility. I mean therefore, Mr Chairman, that there was shouting...[intervention].

ADV DE JAGER: Or perhaps the assaults were of such a nature that although they had taken place, there was not such an amount of shouting that it could be heard outside.

MR STANDER: That could be a possibility, yes. I think one can take it even further by saying that some of these members, for example the identified leaders, had become used to that treatment. You must remember that some of those members, some of the victims testified that their heads were covered by some or other object and therefore their shouting was not so audible. I think that could be an explanation.

Mr Chairman, I don't want to refer to Mr Memani's argument but it is very strange that Mr Ngo and Mr Motsamai would apply for amnesty for something which had not happened at all. Why would Ngo and Motsamai try to incriminate themselves and expose themselves and then for the application to be refused for something they had not done?

ADV DE JAGER: It is my duty to bring it to your attention that they were not accepted by their community. They were people from the community who were working for the Security Police. They were rejected by their communities and now, by coming to the fore, they perhaps would be accepted by their communities.

MR STANDER: Mr Chairman, with the greatest respect, Mr Ngo is in prison. This incident about which I am arguing will not assist to be released from prison. It possibly be true in respect of Mr Motsamai, but how would you take this in consideration regarding Mr Ngo? It would not assist him whatsoever.

ADV DE JAGER: But if he could be released from jail, how would he be accepted in his community?

MR STANDER: Mr Chairman, with the greatest respect, he was already exposed as an informer.

ADV DE JAGER: Yes, but now he is compensating by telling the truth. I am not saying he is not telling the truth.

MR STANDER: I hear what you are saying. The community has already rejected him but one day when he comes back into the community, by that stage they might have forgotten it already. These incidents, these matters has a way of being covered by dust in people's memories.

ADV DE JAGER: Do you think he is not going to get amnesty?

MR STANDER: That is not what I am saying. I hear what you say but there is a difference between the amnesty which he will get regarding this incident and the amnesty for the Venter incident. If he is not going to get amnesty for the Venter incident he is going to remain in prison.

CHAIRPERSON: Mr Stander, isn't your contention stronger? It appears very strange. They might have invented this incident, but it appears that they should talk about assaults in Fountain Street if they had never seen an assault there in all these months they had worked there. That is precisely what all the other policemen say; they say there was never an assault there. Isn't it perhaps surprising that these two should invent something that never happened at all?

MR STANDER: Mr Chairman, I can't put this better than what you have done. It is very strange that only two members of the Security Branch said that assaults had taken place and all the others say it never took place. All these victims testified here in that regard. They told us that it had happened. They had nothing to prove here. It was not necessary for them to get amnesty for anything they had done. They are coming to tell you: 'We were assaulted, we were hit; we were tortured'. I can't take this argument any further, at least regarding the victims. It's very certain that they ...[indistinct]

MR NGOEPE: ...[inaudible] until only now when they make applications for amnesty. Apart from the case of the gentleman who was shot and maybe also the assault of Mr Mohape, is there any indication to the fact that your clients did make this known. Did they complain between then and now? Did they complain to anybody in Sohawu?

MR STANDER: Mr Chairman, we heard no evidence that they instituted charges. I am not trying to say what they had done, but I am trying to tell you why they did not institute any charges.

MR NGOEPE: I would understand why they did not go to the police. Most tell you that they did not have the confidence in the police. You can be assaulted by a policeman; they report on other policemen. You know, there was that kind of attitude. But I am not restricting it to that. It is a pity that this issue was not raised during evidence, but I am talking of not just the police but of non-governmental organisations; people of influence in the areas, and so on.

MR STANDER: Mr Chairman, I think that this incident is clearly - was mentioned in the political organisations; it was talked about. If it was not like that this group would not have been planning to skip the country. Mr Mbawana testified Makubalo said that he was tired of being detained and assaulted, that is why he wanted to skip the country.

But regarding Mr Makubalo, that was his evidence why he was going to skip the country. And then also, Mr Chairman, we have the evidence of Mr Mohape who said that he did lay a charge but nothing happened after that, nobody was charged afterwards, etc. What I am trying to say is precisely what Commissioner Ngoepe just said. There was no trust in the Police Force because the police officials assaulted them. They investigated those matters and therefore they had not trust in the Police Force. I can't take this argument any further than that.

Mr Chairman, I make haste to say or to ask the Committee to, in terms of s 22 of the Act, refer all these victims to the Rehabilitation Committee. I want to refer to s 22.

ADV DE JAGER: I don't know about the rest of the Committee members, but I don't think it is necessary that you mention this any further.

MR STANDER: As it pleases you. There is just one other aspect which should be mentioned, and that is the other victims who did not bring or give evidence here. Their evidence or their sworn statements cannot be ignored. I don't want to say - what I am trying to say, it is a pity that they were not here to give their version of the stories. You know, you have their sworn statements.

ADV DE JAGER: Did you send their sworn statements to other Committees?

MR STANDER: No, I can't answer that. I don't know whether their statements were sent to other Truth Commission Committees.

ADV DE JAGER: But in any case, you must keep that in mind. If there are relevant statements we should give that to the other Committees; they should evaluate them.

MR STANDER: Mr Chairman, I have nothing to add to this, except if you want to ask me some questions.

CHAIRPERSON: There is one point I would like to ask you about, and that is connected with what was said by my brother Judge Ngoepe a moment ago. The Botshabelo incident involved what - 40 people, we were told. How many people complained about that one?

MR STANDER: Mr Chairman, I did not have any client regarding the Botshabelo incident. You will remember...[intervention]

CHAIRPERSON: The only information I think we had is that one of the persons named was interviewed by investigators and they were told she was not assaulted.

MR STANDER: I want to assist the Committee further regarding that group. There was a request via Radio South Sotho - I think that is the name of the radio station - to broadcast a news item to invite those people to come to the fore, but nothing happened afterwards. They are not my clients, I cannot give and answer.

CHAIRPERSON: Was there such a broadcast? And there was no response?

MR STANDER: Mr Chairman, I can't say whether there was a broadcast. There was a request that such an item should be broadcast over the radio; whether it was done I unfortunately cannot say.

CHAIRPERSON: You had no response from them?

MR STANDER: No reaction.

CHAIRPERSON: I am informed that it was done.

JUDGE NGOEPE: They might have possibly gone to the other Committee.

MR STANDER: The Rehabilitation Committee?

JUDGE NGOEPE: I was just thinking aloud that there could be a possibility that they might have gone to the Truth Commission.

MR STANDER: It is indeed so, Mr Chairman. I cannot take this aspect any further. I do not know if there is anything else you want to refer to. This is what I have to say.

JUDGE NGOEPE: I wanted to ask you what do you make - or it's not so important, but what do you make of the sign 'Violent Street'?

MR STANDER: Mr Chairman, you have asked me. This aspect I wanted to leave to my learned colleagues.

JUDGE NGOEPE: If you still would like to leave it to your colleagues, you can leave it.

MR STANDER: Just allow me, because you have pertinently asked me - I am going to haste to say that it is highly improbable that there was a so-called sticker on that wall while we have had evidence here referring to the attempts by police officers not to propagate assaults or allow it, and that the members of the executive team of the police officers saw that notice on a daily basis and did not do anything about it. You will also find that there is an indication that this type of action took place on a daily basis, and the sticker was left there because there was nothing strange about it.

CHAIRPERSON: And what is the excuse this time, Mr Memani?

MR MEMANI: My Lord, one of the problems is that when we adjourned you just said we are taking a short adjournment.

CHAIRPERSON: Which is 15 minutes, the normal short adjournment. Or have you not had experience of that, Mr Memani? Aren't you aware of that, that is what a short adjournment consists of?

MR MEMANI: I know, Mr Chairman.

CHAIRPERSON: But you ignore it. Will you now carry on with your argument?

MR MEMANI: As the Chair pleases.

MR STANDER: Mr Chairman, before Mr Memani continues - I do not want to interrupt you - Judge Ngoepe asked me whether there are any members of the Group of 40 in Botshabelo who came to the fore. During the adjournment I was informed that Mr Mfazwe - I hope that is the correct spelling - did appear before the Human Rights Violation Committee regarding this incident. That is the only information I can provide.

MR MEMANI IN ARGUMENT: Mr Chairman, may I proceed? As the Chair pleases.

Mr Chairman, I should like to refer to an issue which you raised with Mr Stander about the fact that the offices of the Security Branch are near the Supreme Court. My instructions

are that at the time the Supreme Court was not situated where it is today, and this new Court started operating in 1997 as the Supreme Court.

CHAIRPERSON: That is the extension of the building. The Supreme Court has been where it is for a long time. They have extended the building up towards Aliwal Street, haven't they?

MR STANDER: Mr Chairman, can I assist you? I think that extension has been there for about a year or two. There was a little building which was demolished and then the Supreme Court was extended. This just happened during the past two years, I am not sure about the date.

MR MEMANI: Mr Chairman, a remark was also made about the fact that people might apply for amnesty purely because they want to be accepted by their communities. That in itself suggests that the people had done something wrong. The thing that is wrong that they have is what they are applying amnesty for, and there is nothing wrong with people applying for amnesty to be accepted by their communities because it is the very object of the Act that we should be reconciled. So I would see nothing wrong if people are motivated by a desire to be accepted by their communities.

What is of importance, Mr Chairman, is that on (inaudible) of the facts, is it probable that they did commit these acts?

Mr Chairman, I will then proceed to deal with the application of Mr Motsamai because his evidence is still fresh in our minds. Mr Motsamai was a member of the Security Branch at all times and in respect of all the incidents for which he has applied for amnesty, Mr Motsamai has given an account which is logical and complete. The account which he gives in each instance is not fraught with improbability. It finds corroboration from victims and in the case of George Musi from an inquest report.

In giving his evidence, Mr Motsamai at no stage has appeared to be minimising his role in the commission of his offences. In fact, in all the confessions he appears to have been the key player. He is the one who manufactured petrol bombs; he is the one who throws them; he is the one who shot at Musi while Mamome was present, and Mamome had at all times had the gun. In the case of Maguwalhu he does admit that "I also shot". His commission of these offences, Mr Chairman, was obviously not for personal gain but was motivated by ...[intervention]

ADV DE JAGER: Could I just ask you about Oupa's - Mr Makubalo's arrest? If there was common purpose for an attempt to murder, where was that common purpose formed? At the office, in the kombi, or after they had arrived at the scene?

MR MEMANI: If we are to determine that question, my answer, Mr Chairman, is at that at the time unknown they formed a common purpose to shoot.

ADV DE JAGER: Would you say all the people had a common purpose, the one standing next to the kombi?

MR MEMANI: Mr Chairman, they might not even have had a common purpose, but perhaps it could be properly described as joining in matter, that when it started with Mamome shooting and the others deciding to shoot too.

ADV DE JAGER: Or may have had the purpose to murder? In the end they arrested the man, he was close to him, he could have shot him. Can we say it was an attempt to murder or was it only an assault?

MR MEMANI: Mr Chairman, if you fire a gun - it is not assault if you shoot at someone, it is attempted murder. The evidence was that they fired shot and the missed. Three, Mr Motsamai told us that when they went there, they went there to kill or arrest, whichever occurred first, and what occurred first was to arrest him, and they had indeed tried to kill him.

CHAIRPERSON: Weren't the shots fired during the course of an attempted arrest to stop him escaping?

MR MEMANI: The evidence is that they were fired whilst he was standing there.

CHAIRPERSON: It depends on which evidence you listened to.

MR MEMANI: I will be dealing with Makubalo, maybe we should just finish him off anyway, Mr Chairman.

In the case of Makubalo, Mr Chairman, my submission is that the evidence of all the other policemen who testified should be rejected as being false. Clearly, they were not being truthful about the incident.

One, Mamome, for instance, suggests that he used the vehicle to chase Mr Makubalo while the evidence of the rest of the people suggests that the vehicle was stationary where they had found Mr Makubalo. That would be motivated by a desire on his part to deny that he was chasing after Makubalo and that he fired shots at Mr Makubalo.Two, he made the ridiculous suggestion that there is a policeman who never carries a firearm, and that clearly was motivated by a desire to deny that he fired shots on that day.

He also denied ever having worked with Motsamai when, in fact, time and again from evidence spontaneously it did appear from the evidence that he did work with Motsamai. And the latest case was that of Coetzee who said that he used to work with Motsamai and Mamome.

The rest of the witnesses were clearly conspiring against Mzuzwane. That conspiracy is evidenced by the fact that each of them was certain that Mr Motsamai was the only one who shot at Mr Makubalo at all times, and yet during cross-examination it appeared that on their evidence Mr Motsamai and Mr Makubalo were not in their view at all times when the shots were being fired. Now, you would ask yourself, what made them then believe that it is Motsamai only who shot? The only explanation is that they just ganged up against him and decided that they were going to say that Motsamai shot.

Mr Chairman, there is also the difficulty that each one of them had, which is that they never applied for amnesty, and it cannot be said that the shooting of Makubalo was lawful. In order for the shooting to have been justifiable in terms of, I think, s 49, it would have required that he first should have been warned. There was no suggestion that he was warned.

Firstly, there was no suggestion that he was warned that he was about to be arrested.

Secondly, there was no suggestion that any warning shots were ever fired at him. So, clearly, not one of them regarded the shooting at Makubalo as being lawful, hence the desire on their part to distance themselves from the shooting.

Mr Chairman, the probability is that Mr Makubalo, rather Mr Mamome was the first to shoot. He would have been the first to shoot because the victim was on his side. He was the driver, he was sitting on the right side. He would have been the nearest to Mr Makubalo, and that also explains the fact that eventually he caught Makubalo.

ADV DE JAGER: He was really eager to murder this man, why didn't he shoot him? He was running behind him, he grabbed him, why didn't he shoot him?

MR MEMANI: He shot and missed. It does happen that people shoot and miss.

CHAIRPERSON: After he had tripped him and he was lying on the ground in front of him, why didn't he shoot him?

MR MEMANI: Well, Mr Chairman, you would have to ask the same question about Mr Motsamai as well. Why didn't Mr Motsamai shoot him after he was caught?

JUDGE NGOEPE: Well, the answer would be because they didn't want to kill him.

MR MEMANI: As the Chair pleases.

JUDGE NGOEPE: Another problem is, the suggestion that almost everyone fired shots. To say that everyone of them fired shots, you must also say that everyone of them missed. I mean to me this whole thing really causes me problems. It is one thing to say, after they caught him they assaulted him - that is a different thing - but to say those people wanted to kill this man and so many of them fired shots - everyone of them missed this man he would have been a very lucky person.

MR MEMANI: Mr Chairman, the evidence was that Mr Mamome fired shots and he missed. The victim ran away, and in an attempt to encircle him, one group went on the one side and Motsamai apparently does not say whether he was with another person on the side of the house, went on the other side. Whilst he was on the other side he heard shots. He does not say that all of them shot, he says that he heard shots, and that is not a suggestion that everyone of them shot. But the suggestion is that it is now being said that he is the only one who shot because there is a conspiracy against him.

Mr Chairman, we cannot say at the end of the day that because several shots were fired at Makubalo and people missed Makubalo, therefore there was no intention to shoot him or that no shots were fired at Makubalo. Of importance is that Mr Motsamai is applying for amnesty as a result of the fact that he together with other policemen fired shots at Makubalo, reckless as to the consequences of firing those shots at Makubalo. It is not his application that they purely wanted to kill him; he says, "we went there to arrest him or to kill him, we did not care", and that is the basis of his application.

Mr Chairman, may I look through the notes? At the time I was interrupted I was saying that Mr Motsamai's commission of these offences was clearly not for personal gain and there was no personal malice that motivated Mr Motsamai to commit these things. If there had been any friction between the people that he attacked and himself, it arose only because of the fact that they were activists and he was a policeman.

CHAIRPERSON: Why would they want to catch Makubalo?

MR MEMANI: Makubalo was alleged to have killed ...[intervention]

CHAIRPERSON: Motsamai's informer, wasn't it?

MR MEMANI: On his version it was Mamone's informer.

CHAIRPERSON: The other version is that it was Motsamai's informer, a very clear personal reason.

MR MEMANI: Mr Chairman, this is exactly what I am saying, that it is not a personal reason; it is something that arises because Makubalo is an activist, Kozi is a political informer and Motsamai is a policeman.

CHAIRPERSON: And the evidence that was led before us was that he felt strongly, wasn't it? We had that evidence, we can't ignore it. You can say that it is on the probabilities or something else but you cannot ignore evidence, Mr Memani.

MR MEMANI: Mr Chairman, it is not suggested that you cannot feel strongly about someone who messes you up because of your functions as, say, a policeman. He could have felt strongly about it but the fact remains, he was doing it during the course and scope of his employment.

Again, Mr Chairman, the evidence of the applicant was that that informer was in fact Mamome's informer. The situation here seems to be that we cannot disbelieve Motsamai when he says that the informer was Mamome's. At the same time we cannot necessarily disbelieve the police. We have the policeman who says it was his informer. It seems that the matter should be left there as being that there is a dispute as to whose informer Kozi was, and we should rather then ask ourselves whether or not Motsamai has told the truth in all material respects in this matter.

It seems to me, Mr Chairman, that there has been substantial compliance with the requirement of full disclosure in respect of this application.

Mr Chairman, I now deal with the application of Musi,

George Musi. We have heard again that Motsamai was a policeman. He, together with Mamome, went and shot George Musi. There hasn't been any suggestion of any personal relationship between George Musi and Motsamai.

ADV DE JAGER: ...[inaudible] of 6.1 - the Melk Street one.

MR MEMANI: That is correct, Mr Chairman. He gave an account of how Mr Musi was shot. He told us that he fired one shot at the head of the deceased. That is corroborated by the inquest, the post mortem report. There is an injury in substantially the area where Mr Motsamai alleges that he would have aimed at when shooting Mr Musi.

The question then that arises is, why would Motsamai fabricate his involvement in this incident? Mr Chairman, there does not seem to be any logical reason why he would fabricate this incident and be correct in his description of the incident. Besides the inquest report, the post mortem report, he is corroborated by Etito who suggests that he was playing top in the home opposite and he heard screams, and he saw a person run away and thereafter saw flames. That accords with the evidence of Mr Motsamai that he was there with Mamome, he shot at the person and he, Motsamai, poured petrol and Mamome set the corpse alight.

Mr Chairman, we have to draw an adverse inference against Mamome because he denies working ...[intervention]

MR STANDER: But Tito said there was only one person.

MR MEMANI: Tito said he saw a person; he did not say there was only one person, and he does not know why he did not see the second person.

Mr Chairman, I also want to then say that it is improbable that a policeman would have been sent out alone to go and kill someone. What Mamome has said must not be believed. First he denies every working with Motsamai; he denies belonging to any club with Motsamai, and at the same time he says he has no differences with Motsamai. And Motsamai himself is not motivated by any malice in implicating Mamome.

Mr Chairman, the probability that he would have been instructed by Coetzee is strong. Oliphant is in detention when Mr Musi is killed, but whilst he is in detention members of the Security Branch approach him and say, 'yes, you killed your uncle'. Later on he is released from detention, he is ten ostracised by him family because it is believed that he killed his uncle.

The killing of George Musi occurs after people who were using his house as a safe house, are detained, attempting to skip the country.

Mr Chairman, I then wish to deal with the application regarding Nicos. All the policemen who testified here, testified that they knew Nicos; they used to go to his night-club just to enjoy drinks. They never had anything to do with him that was work related. On the other hand, Mr Chairman, Mr Motsamai tells us that, 'no, amongst other things I and harassed Nicos'. Perhaps a better word would have been 'to monitor'. At the same time he says that, 'I harassed Serame Molefe'. There is a connection between Molefe and Nicos. Serame Molefi was employed by Nicos after he had been to Robben Island. Mr Chairman, it is common knowledge that the police monitored people who had just been released from prison for politically related offences. Therefore, it is probable that they would have followed Molefi and too they would have wanted to know what it is that they shared with Nicos that would have made Nicos employ Serame. Serame told us - I am sorry that I keep on referring to him by his first name - Mr Molefi told us that he was followed; every time when he got employment the police went there and spoiled things, and every time he was dismissed.

There was no attempt at all when evidence was led to deny that these things did happen to Mr Molefi and therefore his evidence stands. Insofar as Nicos is concerned, Mr Molefi tells us that he decorated his shop and his house in colours that resembled the colours of the ANC and/or the PAC. The police were not too happy about that fact.

Mr Chairman, the police have come and testified here, they have not denied these things, save to make a bad denial that they did not have anything to do with Nicos. But one would have expected them to come and say, 'we did see the painting'. This is not a submission I want to make; what I wish to make is, if Serame were fabricating they would have come and said, 'look, his house was not painted in such a way', and would have had nothing to do with it. They would also come to say, 'look, even if the house had been painted in ANC or PAC colours, it would not have mattered to us; this man is lying'. So his evidence, in my submission, on that aspect stands.

He further told us that Nicos used to help comrades - that is now Motsamai, Mr Chairman. He used to help comrades at their funeral.

MR STANDER: But he also gave a room to a Security policeman.

MR MEMANI: That is indeed so, Mr Chairman, but that does not mean that he did not help comrades.

MR STANDER: I would find it strange that with the Security policeman on the premises, comrades would feel safe at his house.

MR MEMANI: Mr Chairman, you will recall that we were told that we were told that he was a courier, he was a person operating underground. We were told, again Mr Motsamai, that such people were not overtly associating with political activists, and the police had difficulty dealing with them.

Now it might have been again part of the misleading of the police to allow a member of the Security police to live with him. In any event, we do not know why the policeman lived there and how Mr Nicos felt about it. But the fact of the matter is that evidence was further led that he assisted in bringing Chris Hani into the country when he came in 1990.

Now, Mr Chairman, it is not material that it was after 1990, what is material is that it shows you that Nicos was someone who cooperated with the ANC, and there would have been a reason for the police to have something to do with Nicos, and that would have provided a motive for the instruction that his shop should be bombed.

Mr Chairman, we must also draw an adverse inference against the policemen insofar as their denial of knowing about this incident is concerned, for the fact that despite that there are also these indications that the Security Branch could have had an interest in Nicos, they have denied that they had an interest in Nicos. Too, they tried to explain the Nicos incident by suggesting to their counsel that Nicos's shop was bombed because of the death of the child. None of them came and led that evidence, Mr Chairman, not a single one, and it did not become clear where Mr Visser got those instructions, but it is obvious, Mr Visser doesn't live here, he is a lawyer and we have confidence in him. He must have got these things from his clients.

When it was put to Mamome that the incident regarding the child was not pursued because it appeared that the child had been killed by another child, he conceded that.

Mr Chairman, I now wish to address you on the Bloemfontein 19 incident; this is the incident of 6 April 1986. All I wish to say here is that the probability is that there were assaults which took place; those assaults took place with the knowledge and under the instruction of superiors and all the persons implicated by both Ngo and Motsamai. These persons all participated in the manner described by Motsamai and Ngo.

I now wish to deal with the following matters all at once: the shooting of Mzuzwana when he was cleaning Winnie's house ...[intervention]

MR STANDER: That is item 6.8, the numbers?

MR MEMANI: That is correct.

MR STANDER: Will you kindly read out the numbers you are dealing with?

MR MEMANI: Mr Chairman, I was not following the pre hearing and it is going to be a kind of waste of time if I go back to it now ...[intervention]

MR STANDER: The trouble is, Mr Memani, I have requested you to do so, that is why a copy was made for you to assist us. But if you consider it a waste of time, please continue your way.

MR MEMANI: I am sorry, Mr Chairman, I heard the Chairman yesterday to be saying we should not bother with references and so on. It is Winnie's house, Situ Mzuzwana's parental home, Bobby Sebotsa's brother's house, Janie Mohape's car, Tawhata's car, Bolasha's hous ...[intervention].

ADV DE JAGER: Sorry, I'm afraid you will have to start all over again, Mr Memani. I am trying to write them down as you speak.

MR MEMANI: I started with Queenie's clinic, with Mzuzwana and then Queenie's clinic, Winnie's house, Situ Mzuzwana's parental home, Bobby Sebotsa's brother's house, Janie Mohape's car, Tawhata's car, Bolasha's house, Kuzi's house, Sekgopi Malebo, the mission house in Botshabelo.

Mr Chairman, my attorney indicates that these are matters 6.3, 6.4 and 6.6 to 6.14.

In all these incidents again Mr Motsamai had no political ..rather no personal conflict at all with the victims. All these people were political activists, and Mr Motsamai has been described as a good policeman by his colleagues. There has been no suggestion that he was motivated by misconduct in attacking these people. If he was a good policeman he would have been a policeman who carried out his instructions, and he carried out the instructions.

Mr Chairman, the Police have no version about these incidents. They have denied knowing about the incidents and we had the somewhat surprising position taken by Bester, for instance, when he dealt with Winnie Mandela's bombing that he regarded it as an unrest thing, that he would leave it there.

He says the thought had not occurred to him that he might - that the Security Branch or certain members of the Security Branch might have been behind the bombing. Mr Chairman, that simply cannot be true. He did not follow it up because he knew he was responsible for it and it was himself - the incident that he did not direct his attention towards the Security Branch.

Mr Chairman, the only reasonable explanation for the denials is that these policemen were responsible, and to admit that they were responsible would lead to their prosecution probably. They have also not applied for amnesty for these incidents.

On occasions these policemen attempted to discredit Mr Motsamai. They attempted to discredit him by saying, suggesting things like Nicosi's house was bombed as a result of a ritual murder. These things were just not followed up. No evidence was led, no-one claimed that he ever gave those instructions, and my submission is that an adverse inference

should be drawn against them for having made these suggestions and no evidence having been led about them.

Mr Chairman, in conclusion I humbly submit that Mr Motsamai is entitled to be granted amnesty in respect of all the offences for which he has applied for amnesty.

PERSON 2: Mr Memani, by the way, is Mr Motsamai still a member of the Police Services?

MR MEMANI: Mr Chairman, he resigned around May, I think, last year, after the mediation hearings. You will remember we were here, I think, around May last year. I think he resigned after those sittings.

Mr Chairman, this brings us to the application of Mr Nelson Ngo. I would like first to deal with the kidnap of Mr Mohape. Although Mr Ngo says that the incident took place during 1986, it appears that at page 23 of, I think it is bundle A, He says in his first sentence, at page 23: "During 1986 while I was a member of Cosas and at the same time working with the Security Police, I took part in the arrangements made by the Security Branch members to kidnap the regional secretary of Cosas, Mr White Mohape". Mr Chairman, that makes it clear that Mr Ngo was still a student at the time when this kidnap took place; it therefore follows that he is wrong in respect of the date and that he is correct - the correct date then would be 1984, because we know that in 1986 he was no longer a student.

MR STANDER: Mohape made the same mistake, isn't that so?

MR MEMANI: Mr Chairman, we are talking about things which occurred 13 years ago.

MR STANDER: (Inaudible)

MR MEMANI: Of saying what?

MR STANDER: He also said it was 1986, and it has been conceded now by everybody, it was 1984.

MR MEMANI: Yes, Mr Chairman, if there is anything that would arise from that error, I do not see the reason why there would have been a conspiracy between Ngo and Motsamai - rather an Mr Mohape about the wrong date. It is clear, in the first place, on the part of Mr Ngo it is a somewhat reckless mistake. He was a policeman in 1986 but he says during 1986 he was a student and members of Cosas. I don't see a reason why a victim would lie about when he was injured, and I also don't see a reason why a person who seeks amnesty would lie

about when he did something.

Of importance is that Mr Ngo describes the incident and paints a logical and complete picture of how the thing occurred. He provides names of people who participated in an incident which is described by Mr Mohape which occurred whilst he was not present. If I may repeat, Mr Chairman. What I want to say is that Ngo tells us that two people were instructed to go and kidnap Mohape. He knows those people. He corroborates Mohape who says,'near Bayswater police station I was attacked by two unknown policemen'. He further says that the instruction was that they would drive him to a certain veld, and he says that they later joined the group that had abducted Mr Mohape. That is corroborated by Mr Mohape himself. Mr Mohape says that it was four people who attacked him. He does say that he, Ngo, was with Umhjala and Cronje, and in his description of the incident he says that Cronje did not participate in the beating up.

Mr Chairman, insofar Ngo would have implicated Mr Motsamai he explained, firstly, that he had a tendency to confuse Mr Motsamai's name with Mr Mtyhala's name. Two, one has to bear in mind that Mr Ngo was describing incidents which occurred many years ago.

PERSON 3: Sorry, Mr Memani, just on that point. I can't help bringing in this point - maybe I should have raised it when you argued with Mr Motsamai. Twice you have already said with regard to Mr Ngo that he was talking about incidents which happened a long time ago. It may be that no doubt Mr Visser will argue this point, but how important is it for the granting of your client's application for us to believe that the people that he names, that he implicates were in fact there. Secondly, how certain are you or your client can be having been involved in so many incidents that he might not on one or two occasions bring in by mistake the names of people who were not there? How do you exclude that danger?

MR MEMANI: Mr Chairman, there is a danger that Mr Ngo has implicated others that were not in fact involved, and the first question I would answer by saying it appears to me that what is important is - let me say, the approach should be that it is clear that if he is believed on the description of the incident, it is clear that an incident took place and that he probably participated in that incident, but he could be erring about the names of other persons involved. I do not think that it is essential for the finding that there should be certainty about the correctness of the names furnished in all material respects. It seems to me that even in cases where a person says, 'I went to kill someone; when I left I was with Tame and when we arrived there we were joined by John or Tholi. I am not sure whether it was John or Tholi whom we found there. And we killed the person, the three of us'. It seems to me that you would give amnesty despite the fact there is uncertainty about the third or fourth person who was involved.

PERSON 3: Yes. And what about the fact that the applicant is not prepared to make concessions and say, 'Well, I made a mistake here, maybe so-and-so was not there'. That applicant at all time, on all these incidents was adamant that so-and-so was there, so-and-so was there. How far does that imperil his credibility, or shouldn't it?

MR MEMANI: Mr Chairman, I think the approach would be there to acknowledge that he is not completely reliable, despite the fact that he is adamant, and one would then have to look at other things that may tend to corroborate him where those things are available.

PERSON 3: When I interrupted you, you were at the point where you said he was being corroborated by Mr Mohape. You were talking about the assault on Mr Mohape and you were saying that he was being corroborated in certain respects by Mr Mohape.

MR MEMANI: I am indebted to the Chair. Mr Chairman, there is a probability that Mr Ngo would have participated in an attack on Mr Mohape at the time. You will recall that at the time he was an informer for the Police and there were some indications at some stage that they were suspecting Mr Ngo. A further reason for accepting his evidence as not being fabricated is that there was a concession that Mr Mohape was arrested, and there was a concession that on occasions detainees were taken home by the police. So an incident as is described by Mr Mohape and Mr Ngo could have taken place.

CHAIRPERSON: This took place, did it, in 1984?

MR MEMANI: That is correct.

CHAIRPERSON: At a time when Ngo had not been exposed as an informer?

MR MEMANI: Mr Chairman, we are not sure as to whether he had been eventually exposed but there was this gradual progress towards his being suspected. I think on two occasions he was - before he left school he was suspected. In December 1984 he was excluded from a conference and I think he was also excluded from a conference in December. The suspicions started in December 1983 in Durban and then in December 1984 the suspicion was strongly confirmed by his being there without him being invited. So at the time when this incident took place there must have been some indicators.

CHAIRPERSON: Yes, but he hadn't been exposed as yet.

MR MEMANI: He had not been exposed as yet, Mr Chairman.

CHAIRPERSON: Surely there would have been every attempt made to keep him away from Mohape.

MR MEMANI: Mr Chairman, the attack took place at night. The attack took place by people who were wearing balaclavas. It was dark where it took place.

CHAIRPERSON: Mr Memani, somebody who you know well, somebody who was at school with you, who was on the same Committees as you, you recognise him by his voice, by the way he moves, by all sorts of things. I am putting it to you that, as Mohape has said, he was suspicious but he had not - there were suspicions about him but he had not been exposed;there would have been every attempt made to keep him away from Mohape, one of the people who were seeking to expose him.

MR MEMANI: Mr Chairman, one, you must recall that Mr Mohape himself spoke, testified that he did not suspect that Mr Ngo was present at all. Two, we can't speak for the police. You are right, there should have been attempts made to avoid him becoming known, but we do not know why they sent him there to join the others.

CHAIRPERSON: I put it to you, it is most unlikely because we do know that the police, Security Police in particular, were careful of their informers.

MR MEMANI: The difficulty that we have, Mr Chairman, is that even if we see this as being somewhat unlikely, there is no evidence that says that he was not there. The only evidence that is before us is that he was there. We can't get away from that.

PERSON 3: Without belabouring the point, but that is the point. I think what Judge Wilson is saying to you is that, fine, we have his evidence in which he says he was there. But this improbability that Judge Wilson is pointing out to you is contained in that very same evidence that you are referring to. Therefore, if there are improbabilities inherent in fact within that very same evidence of his, they tend to weaken that very evidence. In some instances improbabilities can go so far as to weaken what would have otherwise been the only evidence, to an extent that we can safely say technically there is no evidence.

MR MEMANI: Mr Chairman, let me address the point further then. One, it seems to me that those who gave the order to Kozi not to involve Mr Ngo at the time when he was being caught in town where there is some street lighting; he was allowed to join only at a time when it was dark.

CHAIRPERSON: But they didn't need him for any purpose whatsoever, did they?

MR MEMANI: Mr Chairman, we don't know what went on in their minds, but you will recall that the scheme of things was such that Mr Ngo could not easily be identified. It might have been a risk that they took, rightly or wrongly, and if they took that risk they won because Mr Mohape could not identify them.

Mr Chairman, I don't know how often you go into rural areas, but it is very dark. You will even miss your brother ...[intervention]

MR STANDER: With so many other Security policemen available to do this job, why would they send one that could be identified? There is another thing that I think we should deal with and that is the personal bad blood between the two.

MR MEMANI: Mr Chairman, let me answer the question about why - about other people being available. He was part of the pool and they would use him if they wanted to use him.

CHAIRPERSON: He was a schoolboy informer at that time, wasn't he?

MR MEMANI: Yes, he was.

CHAIRPERSON: He wasn't a Security policeman.

MR MEMANI: Yes, he was,


MR MEMANI: He wasn't, Mr Chairman.

CHAIRPERSON: No, he was a schoolboy informer. He was not part of the pool of policemen.

MR MEMANI: He was part of the pool that they were using to do their job, Mr Chairman.

CHAIRPERSON: I understood he was used to supply information,

MR MEMANI: Mr Chairman, you will recall that Mr Ngo was used extensively on Mr Mohape. He was the person at one stage who was asked to phone Mr Mohape and lure him out of the house so that he could be attacked. He was a person who probably reported a lot about Mr Mohape.

Mr Chairman, these difficulties we cannot answer, we do not why they chose to use an informer who was not a full member of the Security Branch at the time, and we do not know why they took the risk of sending someone known to Mr Mohape.

But it doesn't seem that there was any suggestion that those policemen who were sent to Mr Mohape were absolutely unknown to Mr Mohape. They could have been known to Mr Mohape, and these people were wearing balaclavas.

We also know that the Security Branch were in some way above the law. They had a way of preventing prosecutions when they wanted to prevent them, so they could have taken the risk, knowing that if they failed they would cover it up.

Mr Chairman, the other matter which I would like to deal with is Mr Papi's matter. Before I go to that, Mr De Jager had asked me about the personal ill feelings between Mr Mohape and Mr Ngo. I think the suggestion that there was personal malice between the two of them is not justified by evidence. Both of them testified that 'we did not have differences which were personal as such'. What created difficulties was that it emerged at some stage that the one was in one camp and the other was in another. Mr Chairman, you can't describe that as personal malice.

The next matter is 2.7, the murder of the activist Papi. Mr Ngo describes this incident, and this Papi, or JJ, is not known to him by any other name. There is no-one who corroborates him on this incident and no suggestion can be made that he made this application in order to gain acceptance from his community, or that he conspired with anyone else. This person can simply not be traced.

Mr Chairman, insofar as the incident itself is concerned there is no conflicting version and there is no inherent improbability. There is of course the difficulty that he initially implicated Mr Motsamai and later on said he thinks it was Mtyhala and not Motsamai.

I have already said that it seems to me that if we are satisfied that Mr Ngo participated in an incident and he does not waiver as far as the incident is concerned, where we find difficulties about the names of the people that he implicates, the finding should be that he has disclosed that he committed an offence with certain other people. He implicates those people but it is not certain - it cannot be found perhaps that those person were in fact present, that all the persons he implicates were present while he committed that offence.

ADV DE JAGER: Shouldn't we bear in mind that he is not prepared to concede whenever he names another policeman that that policeman couldn't have been there? The only cases in which he conceded that he may wrong is where Mr Motsamai was involved.

MR MEMANI: Well, Mr Chairman, there must be an explanation for that, and the explanation is, one, Motsamai is also applying for amnesty. The other people are not applying for amnesty. He has had perhaps an opportunity discuss the matter with him and he has become satisfied that he erred in that respect, whereas the others have not approached him and said, 'let me remind you, you are erring here, this is what could have happened'.

Mr Chairman, you will see that, as it was pointed out in fact by Mr Justice Ngoepe during his testimony that he was a person who was not prepared to say that he does not remember, but it is obvious that he discussed his application at some stage with Mr Motsamai. That would explain his application where he says that he was told that he went to bomb the house of Makubalo. Later it was pointed out to him that he was wrong, at the time he was still a student, the house that was burnt was not the house of Mr Makubalo, but it was the house of Citi Mzuzwana.

Again, Mr Motsamai has made an application in respect of the house of the parental home of Citi Mzuzwana where in he says he was with Ngo. That tends to explain that on one occasion Mr Ngo did something relating to the Mzuzwana's and he was in the company of Mr Mzuzwana. Whether you would believe him on the rest of the people that he implicates, is a different question. It seems to me that it is one of those things which explains that this is a person who is telling the truth, but has got a difficulty with conceding that he might be erring on some aspects.

JUDGE NGOEPE: The explanation you have given is good for him to the extent that it can show that when he, for example, implicated Motsamai wrongly, he didn't do it maliciously or whatever. When Motsamai discussed the matter with him he said, 'Okay, okay, okay, that's fine'. But the other side of the coin would also mean that war unto them, those who have not for whatever reason had the occasion to discuss the matters with him. Had they had that opportunity, he might possibly have said, 'Oh, okay, okay, I am wrong'.

MR MEMANI: Mr Chairman, what one has to bring himself to is, firstly, whether war - Let me say the first question one must ask oneself is whether the incident that he tells us about could have taken place or did take place. Once you are satisfied about that then you go to the second question and ask yourself, is he telling us the truth about what was done?

If you have no reason to disbelieve him on that, then you are satisfied in your mind that Mr Ngo was involved in this commission of this offence. Then ask yourself then whether or not he is telling the truth about who he was. You will then, in the case of Ngo, probably find that you cannot be certain about whether he was with all the persons that he mentions. However, from the nature of the incident, it is probable that he was with some of the persons, or some persons who are not specifically mentioned in that particular application.

Mr Chairman, I would then say that on the totality of the facts alleged in this application relating to Papi, it appears as though Ngo was present at one stage when something was done to this Papi, and that we are uncertain about who he was with at that stage. However, there is no reason to believe that Ngo was deliberately misleading the Committee in implicating persons who might not have been involved in these applications.

I now refer to the incident involving the Bloemfontein 19, this is matter no.2.13. Mr Chairman, the evidence of Ngo on this issue has been corroborated by the victims and Mr Motsamai, and there is no reason to believe that he is lying. I do not think that I need to say more than that.

Mr Chairman, the next one is the ...[intervention]

ADV DE JAGER: I might say I have taken cognisance of your remark that 6 September was a public holiday - 6 April, sorry, l986, but I also want to remind you that I don't know what the 7th and the 8th was.

MR MEMANI: Mr Chairman, you seem to be holding something up your sleeve.

ADV DE JAGER: Assaulted for three days, and you said I should bear in mind that 6 April was a public holiday. I am taking cognisance of that fact and I could imagine there would be people nearby on 6 April because it is a public holiday.

MR MEMANI: Mr Chairman, if you want me to address you on that one, the 6th April, as I already said, was a public holiday. The 7th and the 8th you say were working days, but you will recall that most of ...[intervention]

ADV DE JAGER: It could even be a Saturday and Sunday, I don't know.

MR MEMANI: Let us assume then that it was on a working day. One, you will recall that most of the assaults and most of the group were assaulted on the 6th, so most of the noise would have been on the 6th. Two, we haven't been told that there were - the buildings were so close to each other that the screams would have necessarily reached the other building. Three, we haven't been told about the positions of the various windows. Four, we haven't been told that these people ...[intervention]

CHAIRPERSON: What do you mean 'the various windows'? I'm afraid I am not with you, Mr Memani.

MR MEMANI: The windows of the various buildings Mr Chairman.

CHAIRPERSON: At Fountain, the police building, we have been given a plan showing every window.

MR MEMANI: But then, Mr Chairman, it might happen that the Attorney-General's offices side which is next to the building does not have windows facing the ...[intervention]

CHAIRPERSON: It faces it across the road, we were told, it is not next to it.

MR MEMANI: Mr Chairman, we were not told across which direction; it was just said, across the road.

ADV DE JAGER: Mr Memani, I think you've made your points in that regard and I have listened to it, and I think it should seriously be considered, all the factors. It might have been that the screams were not so loud that it could be heard elsewhere. We will take that into consideration.

MR MEMANI: As the Chair pleases.

The next incident is the incident involving Mtsabelo. I am told that it is 2.14, Mr Chairman. There is no version on how this incident occurred excepting Ngo's version, and all the objectors have denied any knowledge of the incident. However, Mr Ngo finds some corroboration from Mr Motsamai about the fact that the incident did take place. Mr Motsamai says:

"Mr Ngo does implicate me in this, but he is mistaken insofar as he says I tortured people. He was amongst the group of people who were torturing people and they passed them on to us for interviews".

So then this incident did occur and the only version we have about the incident is that of Ngo. Again, Mr Chairman, what I can say is that we cannot say that it must be found as a fact that all the people that he implicates were present. But we can find that some of the people he implicates must have been present.

One has some form of corroboration of this incident from the fact that people like Warrant Officer ...[indistinct] who were in command in the area, deny knowledge of this incident and do not seem to have taken steps adequately to ensure that Ngo is correct or is not correct.

Mr Chairman, you must remember that Mr Ngo's lifespan as a policeman was very short. He was a policeman only for about three months and I am sure that although people were arrested during those years, surely we will not find perhaps more than two big groups in three months being detained at one time. So that if steps had been taken seriously to go through the books, something would have been found that would have indicated that certain people were arrested during that period. What further ...[intervention]

ADV DE JAGER: Just to be clear: you said Mr Ngo was a policeman for only three months?

MR MEMANI: During 1986.

JUDGE NGOEPE: Sorry, Mr Memani, can I interrupt you? You said that they denied knowledge of this incident. I am not so sure whether that can be said with regard to all of them. My impression was that they said that they did not recall the incident. It seems to me, you are putting it a little bit too strong in saying that they denied the incident. I thought that they said, 'well, many people were arrested during that time, and so forth'. They said they did not seem to remember that incident which, if that gives you some comfort, would to some extent corroborate Ngo in saying - well, perhaps not corroborate but certainly not a serious dispute against Ngo that it did not happen.

MR MEMANI: That is correct, Mr Chairman. I agree their evidence was in fact that they did not recall the incident.

The next matter I would like to deal with is the matter involving the bombing of the clinic, that is 2.4. Mr Chairman, Mr Ngo again finds some corroboration in his description of this incident from Motsamai who says that on the occasion when they went to bomb the clinic, along the way to Brandfort he saw Ramoseou's car parked in the - facing in the direction of Brandfort. That is some corroboration for Ngo who says that he was with Ramosoeu and Bester in a vehicle and they were there to make sure that the house, the clinic was bombed.

Mr Chairman, I do not want to add anything this to application unless of course there are some questions about the evidence regarding the bombing of the clinic.

The next incident that I am dealing with is 2.16, the conspiracy to murder Khotoi. Mr Ngo, as I have already pointed out, was only with the Bloemfontein police as a policeman for a period of three months. He would not have had intimate knowledge of their affairs outside Bloemfontein before that, and the fact that he knows about the two persons, Pitso and Ntsoabole, whom he says were informers of Ramosoeu, tends to strengthen his evidence. That must be seen in the light of the fact that Ramosoeu was not in Bloemfontein but was in Brandfort. Ngo tells us that these people were informers.

Ramosoeu had told us that no, he never keeps informers but he only kept contacts. However, he then said, when confronted about these two people, Pitso and Tsalo, 'no, I only tried to recruit one of them as an informer'.

Mr Chairman, it is clear that Mr Ramosoeu was not being truthful about whether he kept informers or not. It was pointed out to him that a contact is not a person who gives information deliberately, but someone who is somehow tricked into giving information. And his answer was not in the negative; it was a matter of saying, 'well, I don't know that'. Mr Chairman, he is an experienced policeman, he should have been able to say that no, a contact is not that type of person but a contact is this and that type of person, or that we don't have any name for that type of person, but he did not do that.

Ngo would not have known or have the slightest idea that Ramosoeu even tried to recruit this person as an informer because Ngo was not working in Brandfort on his version. because Ngo never worked with him so how could then Ngo have come to know that Ramosoeu in particular had something to do with Pitso and Ntsoabole? The evidence of Ramosoeu compel us to accept the evidence of Ngo.

Mr Chairman, I now wish to deal with the matters 2.9 to 2.12 - 2.8 to 2.12. These I have lumped as the Mamelodi incidents. On all these matters the only evidence which we have about how the houses were burnt is that of Ngo. There has not been any denial that the houses were not burnt.

MR BRINK: Mr Chairman, my recollection is that at the pre-hearing conference item 2.11 was withdrawn. That related apparently to an attack on his girlfriend's house.

MR MEMANI: That is indeed correct.

ADV DE JAGER: That being the case, we have got evidence that he attacked and burnt his own girlfriend's house with no political motive. How could that impact on the burning of other houses?

MR MEMANI: I concede that, for instance, you could not say that you accept that a policeman acted unlawfully once the he then acted unlawfully every time. So would I say that the fact that you have evidence that Ngo at some stage bombed his girlfriend's house, you can't then infer that he must have bombed the other houses as well for personal reasons. As the Chair pleases.

Mr Chairman, what counts in favour of Ngo in this matter is that initially he had included the attack on the house of Sandra Matabata, but when he got the opportunity to explain that he did not burn that house for political - as a result of his being employed as a policeman, he pointed that out. The correction was made even before he gave evidence in his second application, and there is no suggestion that anyone pressured him, or pressurised him to withdraw that application. So what it means is that Ngo removed the incident that was not corrected before yourselves and we remained with those matters that are corrected before yourselves. As I have said, there is no competing version on how the incidents occurred.

Ngo's evidence and suggestion that he did these things within the course and scope of his employment as a policeman attached to the Security Branch finds some corroboration from the fact that Captain Loots who came to testify here, denied ever having seen Ngo except for a few minutes, and that he saw him once. It was pointed out to Loots that, 'You had been told that you had gained a good impression, as you said, during the interview; you had gained a good impression of this young man and you wanted him, but from that day you never took any steps to recruit him. This was not compatible with the fact that you needed him'. Secondly, he tried to explain that he had nothing to do with Ngo because there was a shortage of staff. However, it was attempted to make the Committee believe that Ngo did not work with the Security Branch but instead worked with Koja and Koja only. As it turned out from an inspection of the pocketbooks, Mr Ngo had been to the Security Branch on many occasions. He had gone to see Captain Loots; he had gone to see a certain Nieuwoudt and on another occasion he had gone with Bokaba for what was called a place location. We were told that this place location was a form of orientation of a recruit when introducing him to the area where he is going to operate. Capt. Bokaba did not say that there is no such thing. He said that he is not aware of such a name, and one would have expected a policeman of his seniority to have said, well, I recall that type of procedure X. He did not offer an alternative name, and when Ngo made those entries in his book he did not know that he would come before yourselves and ask for amnesty. It was a record which was kept in the course of ordinary business.

Mr Chairman, Mr Ngo also showed an intimate knowledge of what was called Horse. In an attempt to oppose Mr Ngo's application, Loots and Bokaba denied that Security Branch had anything to do with an office such as Horse. Now one would wonder why Security Branch would not have had an interest in an office such as that one, that no-one would have got reports from that office and that no member of the Security Branch would have gone into that office. That makes me believe that the attempt to say Security Branch was not involved with Horse was motivated by a desire to deny that Ngo was associated with the Security Branch because Loots and Bokaba knew that Ngo whilst involved with Security Branch had committed these offences.

Again, Mr Chairman, some suggestion was made that Ngo could not have been with the Security Branch because he was stationed at Mamelodi police station and working there has a housekeeper. However, his pocketbook showed that for a considerable time Ngo was working at Tembisa, despite the fact that it appeared that he was working at Mamelodi.

Mr Chairman, I do not know how committed you are to taking the lunch adjournment.

CHAIRPERSON: How much longer are you going to be? Yesterday you estimated your time as an hour and a half, you now have been an hour and 35 minutes. How much longer do you think you'll be?

MR MEMANI :I have blown the budget, Mr Chairman, and I need about another half an hour.

CHAIRPERSON: No more than that. We will adjourn now until half past one and we will have finished with you by 2 o'clock.

Mr Visser, you said you would be short; I hope that is still the position.

MR VISSER: Mr Chairman, yes, the situation has changed somewhat, but I am in your hands. I can deal with this on paper. I will be as brief as I can.

CHAIRPERSON: I have no doubt that Mr Memani - on paper also; he has dealt with the facts, he will give us the references, as for example the pages of the pocketbook and that sort of thing, later and then you can do the same. There is no need for you to give us the precise references.

MR VISSER: May I ask, Mr Chairman, I think I heard that your flights are booked for 4 o'clock, half past four?

CHAIRPERSON: One of them is half past four.

MR VISSER: Is that the earliest flight?

CHAIRPERSON: That is the earliest.

MR VISSER: Well, then that means that you've got to be out of here by half past three.

CHAIRPERSON: Well, slightly before that ...[intervention]

MR VISSER: Slightly before that, three, quarter past three. We'll fit it in.

ADV DE JAGER: I don't think we should be bound by that. If we've got to sit later we'll have to sit later.

CHAIRPERSON: While talking about estimates of time, the first one was probably, I hope, the worst one - 15 became 55.



MR MEMANI: Mr Chairman, before we proceed I wish to make a correction. Earlier on Mr Brink said that the application relating to Sandra Matowato was the result of Mr Ngo having bombed his girlfriend's house. The true facts are that he bombed the house of the Mayo member because that Mayo member was accusing his girlfriend of having a relationship with a policeman and intimidating and saying that she is an informer. The reason why it was withdrawn is that he took his own initiative without instructions and went to bomb the house.

MR BRINK: I apologise for innocently misleading the Committee.

ADV DE JAGER: But that is exactly what was said to us at the pre-trial conference. I've got a note on my pre-trial conference.

MR BRINK: I think I referred at this hearing earlier this morning that this was withdrawn because it relates to his girlfriend. It wasn't in fact his girlfriend; but it was connected to his girlfriend's.

MR MEMANI: Mr Chairman, if you are looking for the reference, it says here A45, the first sentence.

MR VISSER: Mr Chairman, I think there is still a bit of confusion. Perhaps one should just read page 45 and particularly the middle of the page. It appears to us as if it is his girlfriend's house, or where the girlfriend was sleeping, that was attacked. I think my learned friend was correct.

CHAIRPERSON: At the top of the page, Mr Visser, you will see there that there seems to be a spelling mistake or something: "During 1988 a personal clash between me, Nelson Ngo, the Mayo member namely Sadra", and then in the passage you are referring to, "the room where Sadra was sleeping". that is the Mayo member, isn't it?

MR VISSER: Mr Chairman, I am not even involved in this but I am trying to be of assistance. The paragraph starts with the words, "I then filled them with petrol and drive to B4 where Sandra was staying".

CHAIRPERSON: That is the Mayo member.

MR VISSER: Yes. "On my arrival there I throw all four petrol bombs at a room where Sandra" Oh, I see. Yes, of course.

CHAIRPERSON: Yes. I think it is a mistake reading it, if when one does read it, it looks as if he is talking about Sandra, but it is in fact the name of the Mayo member.

MR MEMANI: Mr Chairman, I wish to deal with the matter of Mr Venter. It is common cause that Mr Venter - that Mr Ngo was an informer handled by Erasmus. On the version of Mr Ngo, he was introduced to Mr Venter by Mr Erasmus. However, Mr Erasmus has denied having introduced Mr Ngo to Mr Venter. One finds this denial difficult to accept. Firstly, Ngo was an informer of Mr Erasmus on matters occurring in black townships and black schools. Mr Ngo then moves, apparently without notifying his handler, to another address. He then leaves that address and later he informs the handler that 'I am leaving to a different place now, you must come and see me there'. I find that improbable; one would expect that the Security Branch would require of their informers to remain where they are and when they have to leave, when the leave the place where they are living to at least inform them that they are about to change their addresses.

Mr Chairman, one also would expect the Security Branch to want to know the type of person their informer is living with. That would then have prompted Mr Erasmus to make some enquiries about Mr Venter. From what he told us he was not bothered at all. That is an improbability in my submission. I am sorry to repeat then; one would expect that some enquiry about Mr Venter should have been made.

On the other hand, Mr Ngo gives a plausible explanation for his living at Venter's house. He says, 'I was living in the township until the day I became exposed; from that day onwards the Security Branch decided that I should live with Mr Venter'. That's the most plausible explanation. Mr Venter was a white person, removed from the black townships and it could not have been easy for schoolchildren to reach Mr Ngo at Mr Venter's house. So on this aspect the probabilities favour Ngo. This probability is strengthened by the fact that despite the fact that an allegation was made very early that two members of the Security Branch took Ngo to Mr Venter's house, when Mr Erasmus testified it did not appear he took any steps to ask from members of the Security Branch, 'who of you, by the way, took Ngo to Mr Venter's house?' Secondly, none of the persons who testified here and were implicated by Mr Ngo, said that they ever took Mr Ngo to Mr Venter's house.

Mr Chairman, in my submission, if Ngo had been simply incorrect about the identity of the persons who took him there, we would have expected some correction.

It was suggested that Mr Ngo went to live there because he was a gardener and helped in the house. Mr Chairman, I find this to be somewhat difficult to believe. At that stage Ngo was a schoolchild. I am not aware, since the time I was born, of anyone who employs a gardener who is a student fulltime, or one who employs a man to do internal domestic work like washing dishes and so on. I am not aware of those things.

Some suggestion was made by Mr Erasmus that Mr Ngo apparently had a homosexual relationship with Mr Venter. Mr Chairman, if you look at the affidavit submitted on behalf of Mr Erasmus, it is in chronological order. If you have listened to the evidence as a whole, you will see that at the time when he made the affidavit he intended to lead us to believe that he had discovered that Mr Ngo had a homosexual relationship with Mr Venter before the trial. If we look at how the incidents are put there, the trial emerges much later.

The impression that one gets is that he discovered before Ngo went to Pretoria that he had a homosexual relationship with ...[intervention]

ADV DE JAGER: Was it a fact or a suspicion ...[indistinct] though they discovered that in fact it was a fact at some stage or other? I am not worried about that but I am worried that things are stated about a person being dead and we don't know whether it is true or not. If it is only a theory, let it be a theory, but it shouldn't be conveyed as a fact if we are not sure about the fact.

MR MEMANI: One wonders that if we are not sure and we had this suspicion, why did we include it in our affidavit in these proceedings?

ADV DE JAGER: One person who could have said something about it, and he didn't, and that was Mr Ngo. So we are not sure about it and I myself are not sure about it. Somebody is holding a suspicion, and I think it is unfair to tell the world through a public media today that he was involved in a certain situation which might never have been.

MR MEMANI: Mr Chairman, the fairness lies with Mr Visser's clients. The affidavit is a public document and I'm doing no sin by mentioning this. Secondly, he was cross-examined on that and he denied having a homosexual relationship with Mr Venter.

The suggestion, in my submission, was meant to suggest that Ngo killed Mr Venter because of this homosexual relationship, because a difference had arisen between him and Mr Venter. This ought to be rejected as false; no basis was offered for the suspicion. It was just thrown in, just as much as the ritual murder thing was thrown in in the case of Mr Motsamai.

Mr Chairman, Ngo was Mr Erasmus's informer. As he said, he was a good informer and he valued him. One then would expect that Mr Erasmus would have an interest in the safety of Mr Ngo, and he himself would have made the arrangements for the transfer of Mr Ngo.

CHAIRPERSON: But he said he knew Ngo lived there and he went to visit him there.

MR MEMANI: I am asking you to reject that as being false, and I am saying that it is probable that he arranged it because he loved Ngo who was a good informer, he did not want to lose him. Ngo's version on the reason for his living at Mr Venter's place was more plausible than any other reason we have been given. It is that, 'my life became endangered and I had to be removed from the township'.

Mr Chairman, another aspect which makes it the more probable one is that it is a somewhat neutral fact; it is a fact which is part of the narrative of the history of Ngo. It is not meant to implicate anyone. Ngo tells us about how he came to live with Mr Venter, and he says: 'I was an informer, I lived in the township and then, because I got injured, went to live with Mr Venter'. At that stage when he gave his evidence in chief, he had no reason to believe that that would be denied. Two, no reason suggests itself for him to fabricate this fact on the probabilities.

In my submission the police distanced themselves from having anything to do with Ngo living at Mr Venter's because they were afraid that it would tend to corroborate Ngo's version that he was later asked to go and kill Mr Venter. They wanted to suggest that they did not know him at all, just as they had done in the presentation of their case. I see Mr Chairman appears to be puzzled at this ...[intervention]

CHAIRPERSON: Erasmus has told us that he knew him, that he visited him, he had coffee with him and you have just now said they wanted to pretend that they did not know him at all. I don't understand it, Mr Memani.

MR MEMANI: I should then qualify it that they did not know him at all, except until Ngo introduced them to him. They wanted to pretend as if Ngo - Venter was not their friend but a friend of Ngo's, and my submission is he was their informer as Ngo has told us.

Mr Chairman, there is corroboration which arose during the evidence of Mr Erasmus. Ngo seemingly did not know where Mr Venter worked but he knew that he was working with the Railways Unions, Railways and the Unions. And Mr Erasmus confirmed that Mr Venter was working with the Railways.

As far as why Ngo would have been the person chosen by the police to kill Mr Venter, is concerned, my submission is that Ngo was the most suitable person to do the job. Ngo was known to Venter. Venter trusted Ngo, Venter would have given Ngo access to his house at any stage and would not have been surprised by his arrival.

Mr Chairman, again, in an attempt to deny that the police had anything to do with Mr Ngo, it was put to Mr Ngo that he was suspended at the time when the incident occurred.

We waited and waited and waited and nobody came to tell us that Mr Ngo was suspended. He raised the issue under cross-examination and he said, 'Who said I was suspended? I was paid until I was convicted. I was never called before any inquiry where I was told that I was ...[intervention]

ADV DE JAGER: I think Mr Venter's sister in her letter said she attended the trial and it was clear that he was suspended at that stage because he had been involved in other criminal incidents.

MR VISSER: Page 56 of bundle B, Mr Chairman and page 72.

ADV DE JAGER: I would like to know from Mr Memani what is the status of that letter?

MR MEMANI: I am trying to look at page 72. Yes, this allegation that Mr Ngo was suspended was based on B72, not on the letter.

Mr Chairman, it was clear in the evidence that Mr Ngo was denying that he was suspended at the time. It was then required of the objectors to come and say that, this is the evidence that we have that he was suspended. It was also clear that I did not accept these documents as proof of what they contain as indeed some of these documents have been shown not to be entirely correct.

What I would say then is that we do not have any evidence before us that Mr Ngo was suspended. What you have is something which says 'Application for transfer' before you, We don't know who the author of that was and where it came from. My understanding is that if a witness disputes something which is contained in a document, then you have to call the author of that document and you have got to call others who might support that evidence, Mr Chairman.

The letter, I think it is Mrs Gadiski or whatever, the letter was also not accepted by me. I objected to his sending it in and a member of the Committee reminded me that all that can be said is that a letter had been sent in, and if the person is not called to testify, the matter ends there. As matters stand, we do not even know that the letter was in fact written by Mr Venter's sister. All we know is that we've got which is alleged to have been written by Mr Venter's sister.

Mr Chairman, this must be then weighed against the evidence of Mr Ngo who is adamant that he was not under suspension. In fact, there is something odd about the claim that Mr Ngo was suspended at the time because the very objectors sent a Mr Kojo to come and tell us that, 'no, I worked with Mr Ngo until he left'. That Mr Kojo would not say that Mr Ngo was suspended at that time. And that Mr Kojo, it turned out, had last seen Mr Ngo around July, on his evidence. In his evidence he had said that Mr Ngo had deserted him and it turned out that he could not then explain how he could say that he was with him at all times and how, if Mr Ngo had deserted him on the 21st July 1988, that on 22nd July 1988 he was already working with Ramala.

In my view, Mr Chairman, that totality of evidence shows a conspiracy to deny that Ngo was a member of the Security Branch and was working with the Security Branch, and was instructed by members of the Security Branch to come and kill Mr Venter.

CHAIRPERSON: How was he instructed to go and kill Mr Venter? To go there on his own with the SA Mutual form, or was it Old Mutual form?

MR MEMANI: Yes, Mr Chairman, although it is not on his own as such, it is a quite involved operation. I think two policemen, I think Tsoametsi and Ramosoeu, if I am not mistaken, took him there.

CHAIRPERSON: But he was to go in by himself, on his own?

MR MEMANI: Yes, because he is known to Mr Venter and he is capable of shooting him alone.

Mr Chairman, it also seems probable that Mr Ngo would have come in handy for the purpose of killing Mr Venter. Besides the fact that he would have easy access to Mr Venter, he was at the time based in Pretoria and those involved would have been in a position to deny any involvement and probably, if things had not gone wrong, Mr Ngo would have had some reasonable safety from prosecution.

ADV DE JAGER: It is recorded that he had been in hospital and there were operations on him; 'since August until December you've been in a hospital here in Bloemfontein, being involved in a car accident'. The papers would show that in fact he was in Bloemfontein.

MR MEMANI: The only suggestion that we have is that until November he might have been in Bloemfontein, but December and January we can't say that he was in Bloemfontein. In December and January, especially January and early February there is no suggestion that he was around; he probably had been in Pretoria at the time.

Mr Chairman, the next aspect is the evidence of Mr Ngo regarding how the body was disposed of. This is a very difficult aspect of the application. It is clear that no submission can ever made that the explanation was satisfactory. The next question is, how does that affect his application to make a full disclosure? I would venture to suggest that in these circumstances one must ask oneself whether Ngo deliberately attempted to conceal his involvement in the disposal of the body. In my submission there is substantial compliance with the requirement of full disclosure in this regard in that, despite the fact that he is not satisfactory - his evidence is not satisfactory on matters such as how there came to be a wire and on matters such as whether the brothers would not have been surprised by the wire around Mr Venter's neck, in my submission these are matters which are related to detail rather than matters that relate to an unwillingness to involve one's involvement in the commission of an offence. I want to suggest, Mr Chairman, that you should imagine the situation if, for instance, Mr Venter's whereabouts were not known at the time when the application was made. His evidence would have allowed you to reach and find Mr Venter's body and know where it was disposed of. All in all what I am saying is, Mr Ngo gave a full account of what occurred to Mr Venter from the moment when he shot him right up to the moment when Mr Venter was found.

Mr Chairman, in weighing the evidence as a whole, one must have regard to the fact that there has been this general pattern of denial of all incidents or most of the incidents in all material respects by the police. It is improbable that Mr Motsamai incorrectly implicated any of the policemen. The denials of the police must be seen in the light of the fact that it is known that during the era in which these things are alleged to have occurred by Ngo and Motsamai, the police themselves have admitted that the situation had become such that legal means of suppressing resistance were not sufficient and the had to resort to unconventional means. One does not have any reason to understand why the police in Bloemfontein would have been immune from this pressure and the temptation to do something, something which might be illegal. Their denials anyway are not borne out by the evidence that has been led in these applications.

Mr Chairman, lastly, in the assessment of the evidence of Mr Ngo generally one must recall that these things occurred today about 14 or 15 years ago, starting from the 1984 incident. Most of these incidents appear to have occurred within the space of about two to three months only, and it appears that in that short space of time Mr Ngo did an awful lot in both senses of the word, and some of the inconsistencies of his evidence should be understood in that context. Those are my submissions, Mr Chairman.

JUDGE NGOEPE: May I just ask you something on how ...[indistinct]

MR MEMANI: I beg your pardon?

JUDGE NGOEPE: I am going to ask you something - the difficulty which I have in this case. I asked your client, he said what he said. I want to know from you - my problem in Venter's case is that Mr Ngo went to court on trial with his brother or brothers and he testified against his brothers, and on the version that he is telling us he would have done that knowing that he was lying against his own brothers. Knowing at the time that his brother could have been sentenced to death, he didn't tell the court the truth to try and absolve his brothers, and disclose everything and said, 'Well, this is what happened'. He did not do that. Do you really, Mr Memani, think that that does not count against him, tell us against him in a very, very fundamental way? Was he prepared to sacrifice his brothers and himself in order to protect the police?

MR MEMANI: Mr Chairman, at some stage I received instructions that his brother was going to testify before this Committee in his amnesty application and I was under the impression that this application would be determined together with the application of his brother as the Chair indicated at some stage. I there, according to the instructions I received then, expect him to say that what occurred prior to the appearance in court, is that the brother occasionally was taken by the police and taken out, and taken home to change clothes and be taken out by the police ...[indistinct] and it was clear the police were going to use him against Mr Ngo. That resulted in there being conflict between them, and I hope they will hear that evidence when he testifies before you and you will be able to assess that.

CHAIRPERSON: But his brother had already given evidence when Mr Ngo gave this evidence at the trial saying that his brother was responsible. He had heard his brother. His brother had not given evidence against him, had he?

MR MEMANI: Yes, I remember that it was pointed out that he was Accused No.1, but what I am saying you should expect to hear in his brother's application is that prior to the trial the police somehow befriended his brother. They used to take him out; they would go out with him, he was allowed to go and change at home. If he wanted to go somewhere the police would go with him. That made it become clear that he was collaborating with the police and that he was going to testify against Ngo. Ngo then decided to testify against him.

ADV DE JAGER: Well, he didn't testify against Ngo.

MR MEMANI: He did not become a state witness, but he gave evidence, if I recall, which was adverse to Ngo.

JUDGE NGOEPE: Mr Ngo was in court; he was the first one to testify.

MR MEMANI: That is correct.

JUDGE NGOEPE: He started to implicating in court his brother, even before his brother came to testify, isn't it?

MR MEMANI: That is correct. What I am saying, Mr Chairman, is that already at the time when - what I am saying, Mr Chairman, is that already at the time they testified, Ngo had already seen that his brother was collaborating against the police and he anticipated that this brother would testify and give evidence that was adverse to him.

CHAIRPERSON: So he was prepared to commit deliberate perjury which might have resulted in a death penalty for his brother? As my brother said, is that not a fact that we must consider?

MR MEMANI: As to risking his brother's life, his answer was that - if I may use the words that he used - his answer was that the loyalty that he had was the same as the one that would have made him shoot his brother if he had come to discover that he had become a terrorist.

CHAIRPERSON: ...[inaudible]

MR MEMANI: Apparently there is something here, Mr Chairman, I don't know whether it is important.

CHAIRPERSON: You can submit further written argument as we explained, if you wish to. We expect Counsel to do so if they wish to raise any other points.

MR MEMANI: Mr Chairman, I can't hear.

CHAIRPERSON: You can submit further written submissions if you wish to. We have made it clear, if Counsel wish to raise any other points, they may do so.

MR MEMANI: As the Chair pleases.


MR BRINK: Sorry, Mr Chairman, before Mr Visser addresses you. In fairness to the name of the late Mr Venter; indeed, in fairness to Mr Erasmus in regard to his affidavit, could I just call the Committee's attention to page 64 of bundle A, line 6. Mr Memani was examining Mr Ngo and he said:

"Now there has been a suggestion by Paul Erasmus that you had a homosexual relationship with Mr Venter, what is your comment. -- It is a story that I told the Judge to try and cover the case, but as far as I know Mr Venter was not a homosexual"

MR MEMANI: "Did you have any homosexual relationship with him? --- No. I am not a homosexual and I am not aware of him being a homosexual but I did say that in the case and that was a lie."

CHAIRPERSON: And Mr Erasmus explained that it was only after the trial that he became aware of this, that during the trial Mr Ngo himself said it.

MR MEMANI: I don't think the matter is still in my hands, My Lord.

MR VISSER IN ARGUMENT: Thank you, Mr Commissioner. Broadly speaking, the matter has to be approached on basically two bases to which regarded has to be had. The one is the requirements of the Act and the other is of course the evidence. I'm not going today to discuss the evidence with you, but what we intend to do is to approach our argument to you on those two bases, and if I may say that in regard to the first section, the question of the requirements of the Act, we believe that what is important there is to draw your attention to what precise measure of proof or standard of evidence it will be expected of an applicant to give before this Committee. Then, most importantly, what is the precise basis of the applications now before you on the evidence of the applicants. That will entail, Mr Chairman, the question of whether both applicants at all times could have been regarded as 'member of the Security Force'. Then, of course, the last aspect in that regard is that there is also the qualification that the acts or offence had to be directed against, and then the sections are set out.

As far as the evidence is concerned, Mr Chairman, we will on paper present to you the dissecting of the evidence un der four headings; first of all, matters which are common cause, which will search through the records and placed before you. Secondly and tying in with that, matters which are objective facts which cannot be denied and must be accepted. Thirdly, we will discuss the probabilities which my learned friend Mr Stander has done this morning, and my learned friend Mr Memani. Lastly we will deal with the credibility of witnesses.

Mr Chairman, I'm only going to deal with the first aspect, the requirements of the Act to lay some thoughts in your midst as to how this matter, according to our submission, ought to be approached.

First of all, as to what standard of proof has to be put before you, Mr Chairman, of course the Act is silent. The Act speaks in s 20 that the Committee must be satisfied. That begs the question, of course. Does one apply the normal standard of the balance of probabilities, or is it something less? We would submit, Mr Chairman, that most appropriately the ordinary accepted standard of proof on balance of probabilities should be the most acceptable standard if only by reason of the fact that it has been applied for many, many years and that there is some clarity about what standard of proof entails.

We know from our case law in all matters which allowed for a discretion to be exercised upon a person being satisfied or a judge being satisfied, there have been legal arguments and there has been a diversity of opinion. What the Act says is, you must be satisfied. We say, Mr Chairman, it could be on a balance of probabilities or something less. It is going to be something less, then of course it depends on the person to person and how each person sees a certain situation. We will address you on that basis, that it is perhaps something less. We will take it against us without conceding that ...[intervention]

MR MEMANI: I don't think the "less" exists. I think the most bottom one is probability, balance of probabilities.

MR VISSER: Mr Chairman, I am very pleased to hear you say that because I was afraid you may say something different. But if that is the case, Mr Chairman, then we all know where we stand and then approach this matter on the question of, where do the probabilities lie? We will address you on that when we deal with the evidence.

What is more important, Mr Chairman, is, what is the basis of the applications of these two applicants? we submit that the basis upon which they have advanced their applications to you is not that they themselves had a political objective to do what they did. They explained to you, as we understood their evidence, that their commanders had a political object, but they only acted on instructions. Mr Chairman, this is so important because that restricts the whole inquiry, with great respect, to one question and one question only, and that is that you must find at the end of the day in each and everyone of these cases that they were instructed on a balance of probabilities. That is the issue before you. I don't intend to over-simplify the matter, but I will read the section of the Act to you in a moment.

First let me refresh your memory about the evidence because both these applicants have been asked this very same question to make it absolutely clear.

As far as Mr Ngo is concerned, I would refer you to the record, page 101, at the bottom, going over the page to 102. May I be allowed to read it to you, Mr Chairman? It is myself cross-examining and I will read it slowly, if you don't have it before you, so that it has time to soak in, so to speak.

It goes as follows:

"MR VISSER: Would it be fair to say, Mr Ngo,that on your evidence in regard to all these incidents that you testified before this Committee, your evidence was not that you personally had a political objective which you wished to accomplish, but that the reason why you perpetrated these acts were because you were instructed to do so."

May I pause here, Mr Chairman, and direct your attention to the fact that I am referring to all his incidents, not one or more:

"Would that be correct?" he was asked.

"MR NGO: I was instructed to do so, yes.

MR VISSER: You didn't have any personal reason why you wanted to do any of these things? --- Yes, I didn't have."

We submit that makes it plain beyond a doubt.

As far as Mr Motsamai is concerned, you have exactly the same situation at page 850. Half way down the page I would read to you; it is again my cross=examination. I will leave the first sentence out.

"Let us just emphasise one fact here. Is it correct to say that in not one single one of the incidents for which you apply for amnesty, you apply on a basis that you acted with a political objective. The basis of your application being that you were instructed to do so and as a member of the police you had to obey orders. Am I correct"?

MR MOTSAMAI: Yes. I was supposed to receive commands from my officers."

We submit, with respect, Mr Chairman, that the witness - neither of these witnesses could have been in any doubt - if you read the body of their evidence - as to what was being asked of them, and they made it quite clear. So, my submission then, Mr Chairman, is that they must stand and fall by instructions, and that is set out in the Promotion of National Unity and Reconciliation Act and Section 20, as you well know. I will read it very briefly. And, Mr Chairman, please take note of when the legislature speaks of acts committed with a political objective that it is clearly intended to mean by that person applying, not by someone else. It reads as follows:

"Granting of amnesty and effect thereof: If the Committee after considering an application for amnesty is satisfied that the application complies with the requirements of the Act,

(b) the act, omission or offence to which the application relates is an act associated with a political objective committed in the course of the conflicts of the past in accordance with the provisions of subsection (2) and (3)"

and (2) says this - and, of course, (c) says

"the applicant has made a full disclosure, it shall grant amnesty".

(2) says this - and only 2(b) and 2(f) are the ones that are relevant, could possibly be relevant to the present applications. It says:

"In this 'act', unless the contents otherwise indicates an act associated with a political objective means any act or omission which constitutes an offence or a ...[indistinct] which according to the criteria in subsection (3) is associated with a political objective and which was advised, planned, directed, commanded, ordered or committed within or outside the Republic during the period 1st March to the cut-off date."

(a) deals with:

"a member or supporter of a publicly known political organisation, a liberal movement",

and then we come to (b), Mr Chairman.

"Any employee of the state or any former states, or any member of the security forces of the state or any former state, in the course and scope of his or her duties and within the scope of his or her expressed or implied authority directed against the publicly known political organisation or liberation movement engaged in the political struggle against the state or a former state or against any members who support such, etc, etc."

I am sorry, is this being interpreted? I didn't realise that this is being interpreted. I am sorry.

MR BRINK: Don't worry, we can let her have a copy of the Act.

MR VISSER: Thank you Mr Chairman. I just want to read the last relevant part:

"(f) by any person referred to in (b), (c) or (d) who on reasonable grounds believed that he or she was acting within the course or scope of his duties and within the scope of his express and implied authority."

Mr Chairman, we submit that it is quite clear that what the applicants came to you on is the basis: I was a policeman, I was ordered to do certain things and as a foot soldier I carried it out. Now that is perfectly acceptable, and then it depends on whether that is the evidence which you accept at the end of the day. But, Mr Chairman, ass far as Mr Ngo is concerned, my learned friend has this problem. Mr Ngo, we know, becomes a policeman on 10 February 1986. We know on the evidence before you that he was suspended on 2 January 1989.

Now without splitting hairs, Mr Chairman, a policeman who is on suspension cannot claim that he then can act in the course and scope of his duty. It is a logical argument. Logic would have it that he can't say that.

What we say is this, Mr Chairman, and this my learned friend Mr Memani has neglected to do. The applicant, Mr Ngo, would have to convince you on each and everyone of his applications that they fell within that period of time.

JUDGE NGOEPE: Sorry, but I have a problem. You seem not to distinction between a suspended policeman and a dismissed policeman. I have no problems with your argument if you are saying he had been dismissed, but you say if he was suspended, which is an internal, inter-departmental process. In my mind we have to distinction between somebody who has been suspended, which is an inter-departmental process, and somebody who has actually been dismissed from the police force. To me the situations are not the same.

MR VISSER: Mr Chairman, I am not pretending that they are. All that I am saying is that any person who is suspended is prohibited from performing official duties in his employment. I mean, that stands to reason.

JUDGE NGOEPE: No. Well maybe you will address - because you see, he can be called back any time to come and do the work, even if he is suspended. He can still be paid even if he is suspended. He can still enjoy all the benefits of a policeman. He can still use the medical scheme. His children can still be taken to a doctor, to a hospital, using the medical scheme to which he subscribes.

MR VISSER: But he can't perform official duties because he is under suspension. With all due respect, Mr Chairman, what does it mean when you suspend somebody? You suspend him from performing duties.

JUDGE NGOEPE: Well vis-a-vis the outside world, I am saying simultaneously disciplinary measures. Vis-a-vis the outside world, if he comes to do work vis-a-vis somebody outside ...[intervention]

MR VISSER: Mr Chairman, may I make this submission to you? Objectively, a man who is under suspension cannot perform official duties but if - Mr Chairman, I am not going to split hairs about this. If you feel that at the time when Mr Venter was murdered, in February he was under suspension but he could still fall within the ambit of s 20(2)(b), well then Venter's case falls within that ambit. And then I will say this, then my learned friend had to show you at least that all the incidents for which Mr Ngo applies for amnesty had to be placed within the period of 10 February 1986 until November 1989, because I believe that that was - I am not quite sure - but it does not matter when it was going to be in 1989 - then he has to show that all the acts fell within that period of time.

JUDGE NGOEPE: I hope that I did not mislead anybody into thinking that I am saying you are wrong. The purpose of oral argument was precisely to debate some of the issues, because we will think about it.

MR VISSER: Absolutely, Mr Chairman. As I have said on record once before, that is one of the few advantages of argument, it causes people to think about things and to debate it. I certainly did not take it in any other way. But the point is ...[intervention]

ADV DE JAGER: I don't know whether it is convenient because it relates to your first submission that they themselves didn't have a political objective. I don't think that's what the Act requires. The Act requires that the act that they committed should be associated with a political objective. So, my objective could have been whatever it might be, but if I am participating in an act associated with a political objective - the police wanted to arrest persons who acted adversely to the state's interest as they saw it, so they called me to go with them. The act was associated with a political objective. Whatever my opinion is could only be a factor in terms of s 20(3). To ascertain when we investigated whether the act was associated with, my personal motive could be one of the criteria, not a requirement but one of the criteria to see whether the act was in fact associated with a political objective. So they still fall within the criteria of an act associated with a political objective, although, maybe, my own motive might have been something different. Isn't that a ...[intervention]?

MR VISSER: Mr Chairman, you are absolutely correct, and I hope I didn't indicate that I am saying anything different, but what I am saying is this: If an applicant comes to you and says, 'I killed A, give me amnesty', you are going to say to him, "But hang on, I can't give you amnesty unless I hear something more from you'. If you then, Mr Chairman, as a Committee come to know, come to understand that it was an act associated with a political objective, surely the man who is asking for the amnesty - and this is my only point - must come and tell you why he wants amnesty. He was ordered to do it, he thought he was acting within the course and scope of his employment. Those qualifications which I mentioned to you. I fully agree with your setting out of the legal situation, Mr Chairman, and if you are wrong certainly I am wrong, and if you are right I think I am right. I didn't intend to differ from that. What I am saying is, these two applicants must now come and tell you why they are asking for amnesty, and all they say is, 'We were ordered to do so'. What I am saying because of that is that when you look at the evidence, there is the one question that has to be answered in their favour in the affirmative, and that is, on the balance of probabilities you have convinced us that Coetzee and Erasmus and Shaw gave you the instructions as you said.

JUDGE NGOEPE: But surely, Mr Visser, it won't be such a big problem once we believe that they committed those things, which is the big question of course. Once we believe that they committed those things in the course of their duties, and so on and so forth, how likely is it that they could have gone there on their own, junior policemen as they were? How likely is it that a junior policeman would on his own escapade, on his own errand, petrol-bomb the clinic of, say, somebody of the political profile of Ms Mandela? How likely is that?

MR VISSER: Mr Chairman, I'm not a mindreader, I don't know. People do things for various reasons by various motivations. We are going to suggest to you some reasons why these people could have come to you and apply for amnesty without them having done it. It may be even possible that they did. It may be possible that they did, but at the end of the day you have them and you have some witnesses who are victims, who have a very real interest in them succeeding with their applications for amnesty. But against that you have a bulk of a denial, and unless you are going to adopt a biased approach to say that, merely because they are policemen I am not going to believe them when they deny. Because as my learned friend Mr Stander and Mr Memani said, we read of all over the country where it was different. Well, that may be ...[intervention]

JUDGE NGOEPE: That is why I was careful to say "if" and it is of course a big "if", if we believe some of these things that they are saying. That shouldn't worry you because I was just trying to find out - the process of trying to find out whether or not they acted on orders. In the process of trying to think so, one of the things we take into account, subject to the big, big "if" that I have made, one of the things that we have to take into account is, is a junior person likely to just go on his own and so on and so forth.

MR VISSER: Absolutely. Of course you've got to take that into account. I am sorry, - let me try to put it this way: The point I am trying to make is when I deal with an application for amnesty which I know is going to come before you, Mr Commissioner, I look at the facts, and I look at the act, and I say to myself: Where do I slot in with this particular witness? Oh well, this was the general, he gave the instruction for whoever to be eliminated. That is the top of the scale. The bottom of the scale, we've got a foot soldier here that it told to come along and to fetch firewood or whatever the case may be. There is a vast difference. Then, of course, you've got the other segment in the middle, which is perhaps the most difficult one.

What I am saying here, Mr Chairman, is, these two are the bottoms ones. They're the ones who say: We acted on instructions; we didn't have any personal view. Subject to what Commissioner De Jager said, and again he is quite correct. But that is the only point I'm making and coupled with that, as far as Mr Ngo is concerned, those incidents that came before the 10th February 1986; in other words, the incidents which the applicants have not convinced you on the balance of probabilities, fell after the 10th February 1986; they cannot obtain amnesty for, Mr Chairman, because they fall between two chairs. They cannot apply for amnesty - Ngo cannot apply for amnesty for those acts because he wasn't a policeman, so he does not fall under Section 22(b).

ADV DE JAGER: I know we haven't got all the - but could you perhaps in your written argument refer us also to the definition of a member of a force, as far as possible; whether it would include, say, part time members, volunteers or whatever it may be, informers or what the position may be?

MR VISSER: Yes, Mr Chairman, I am going to deal with this issue. May I say why I'm mentioning now? It is to alert my learned friend Mr Memani to this argument because he hadn't addressed this argument at all. He may wish to do so in his written argument. That is the only reason why I advanced this argument at this stage, but it certainly will be repeated in my written argument. Mr Chairman, I will then step off ...[intervention]

MR MEMANI: Just a second, Mr Chairman. You know, I don't like my name to be often mentioned by - I haven't mentioned his name once when I was addressing him, and if he can help it, I don't like it being mentioned, especially when I've got reservations about why I'm being mentioned.

CHAIRPERSON: The reason that he mentioned it is, he wanted you to know that this is a matter which could be dealt with. You had no other motive, had you, Mr Visser?

MR MEMANI: As far as I am concerned, Mr Chairman, the Act is before you and you are aware of the provisions of the Act.

MR VISSER: Well, Mr Chairman, thank you.

Yes, as I mentioned before, I will deal with the question of who are members of Security Forces, the whole issue of against which, I think, is something which needs to be dealt with and clarified.

Mr Chairman, on the question of the evidence, I don't believe that it will serve any purpose for me in attempting even to address the issue right now. The only sensible way of doing that would be with references to the record which we cannot give you now. Certainly I can't do justice in the time remaining to an argument on the probability. It could as easily be addressed on paper. With respect, Mr Chairman, you might not be too disappointed to know that I would submit that at this stage we should perhaps call it a day and we will follow up with written argument.

CHAIRPERSON: When, Mr Visser?

MR VISSER: I'm going to start tomorrow morning and Saturday, and the only outstanding issue is the question of the record. We really have a problem with obtaining records, Mr Chairman. In fact, we obtained our record on the Friday before we left for Bloemfontein, on the Sunday. I believe that we will work on our notes, obviously, but to avoid arguments we would prefer to have been able to obtain the record. But if you ask us to do it sooner than the time it will take for us to wait for the record, we will do it.

CHAIRPERSON: I think it will be more convenient for us not to wait for the record, we are also aware of the delays that occur.

MR VISSER: Mr Chairman, it is always difficult to make undertakings but I would say that I'm hoping that I could let you have it by Friday next week.

CHAIRPERSON: Let's be a little kinder than that. Is it proposed that you would have sighted one another's heads before they are filed - if it is merely any further submissions you wish to make, you can do so in writing by the 15th February.

MR VISSER: Mr Chairman, I know that that is the normal procedure, but I would suggest to you that if we are going to have to wait until we receive - and I'm not mentioning names of anybody here ...[intervention]

CHAIRPERSON: You don't have to wait. You don't wait. You all have until the 15th to file any further written submissions.

MR VISSER: The 15th is a Sunday, my attorney tells me. Incidentally, the 6th April was also on a Sunday. So, is it the 16th?


MR VISSER: Thank you, Mr Chairman. We will certainly do our best endeavours to let you have it.


MR MEMANI: Mr Chairman, can I request that I be exonerated from submitting further heads? I don't think that any heads will make any of the cases better, but I would of course love an opportunity to reply to his heads if the need arises, and that would require ...[intervention]

CHAIRPERSON: When we have received the heads of those parties who submit them, if we require further information we will ask for it. Perhaps we will grant you that, Mr Memani. The heads will be served on you the 16th and you can file any further arguments you wish to by the 20th. The 20th will be the Friday.

MR MEMANI: What about the 27th, Mr Chairman, because it gives me really only four days to ...[intervention]

CHAIRPERSON: Five days. Let's make it the 23rd.

MR VISSER: Mr Chairman, may enquire, is the idea that my attorney has to serve on the attorney of Mr Memani?


MR VISSER: Has he been placed on record, Mr Chairman, because we have no information.

CHAIRPERSON: I understood that he was at the commencement when the other attorney withdrew.

MR VISSER: No, I mean his information. Well, we'll sort it out, Mr Chairman.

MR STANDER: Mr Chairman, I want to confirm that I do not intend to give any written submissions, whether you provide amnesty or not, it has nothing to do with the victims.

CHAIRPERSON: If you wish to do so, you may, but if you don't want to you don't have to. It is merely that I think the applicants should be given a right of reply.

ADV DE JAGER: As it pleases you.

CHAIRPERSON: Sorry, I have overlooked the fact that we have Leader of Evidence whom I haven't give a chance to speak.

MR MEMANI: Mr Chairman, ...[intervention]

CHAIRPERSON: No, we are dealing with Mr Brink now, he is the Leader of Evidence.

MR BRINK: Mr Chairman, I have listened to the arguments and I propose to have nothing, unless you want me to deal with anything specific.

CHAIRPERSON: And can you, when you have received the written arguments you may ...[intervention]

MR BRINK: If I may wish to.

CHAIRPERSON: Thank you. Mr Memani?

MR MEMANI: Mr Chairman, to place the attorney on record as requested, he is Mr Raphadana: R-A-P-H-A-D-A-N-A of Kgoroeadira: K-G-O-R-O-E-A-D-I-R-A, Raphadana R-A-P-H-A-D-A-N-A, and Partners, 3rd Floor, Khotso: K-H-O-T-S-O House, 62 Marshall Street, Johannesburg, 2001, and the P O Box 8406, Johannesburg, 2000; telephone: (011) 838 3220, fax (011) 939 3620.

CHAIRPERSON: You've been reading from a card; can you make that card available to get it photostatted and copies can be given?

MR MEMANI: As the Chair pleases.

CHAIRPERSON: We will now adjourn, and I would like to thank everyone for the assistance they have given us. We have finished well within the time, thank you.