TRUTH AND RECONCILIATION COMMISSION 

AMNESTY HEARING

DATE: 18 MAY 1998

NAME: PEBCO 3 - ARGUMENT

DAY 1

______________________________________________________CHAIRPERSON: Today is the 18th of May 1998. We are back with the Pebco matter, just to listen to oral argument, over and above heads of argument which either have been filed or will soon be filed.

I think for the information of other people who are helping us in these proceedings, such as the interpreters, we should mention it now that we intend to finish the argument, with this argument, today, we don't plan to proceed tomorrow, we are going to finish today, so that you should be able to make appropriate arrangements.

We will start with Mr Booyens. Before you start, Mr Booyens, the purpose really here is not to go into every detail. We ourselves propose that we should have part of the argument argued orally before us, because we felt we might need to raise a few queries with counsel here and there. We know that we have asked for written argument, and normally that is sufficient, and we have been deciding several matters on that basis. What we really want to do is to raise one or two other issues which would need clarification from counsel, we may or we may not do so, and also counsel of course are free also to highlight certain points which they feel they should highlight, which are in their heads of argument, or in their written argument, and those who have not, as yet, submitted their argument can perhaps just dwell on one or highlight one or two other issues which they feel should be dealt with today.

We envisage that if we put aside 45 minutes, 30 to 45 minutes to each counsel, that should more or less enable us to clarify such issues with which we feel should be clarified and to enable counsel of course also to highlight certain points. This, of course, is not cast in stone, but we intend to keep to that as far as possible.

Mr Booyens?

MR LAMEY: Mr Chairman, before we commence with the argument, on behalf of Mr Koole, I indicated during the evidence part of it that consideration will be given to a medical legal examination of the physical ability of Mr Koole with regard to specifically the evidence of Mr Mamasela, who testified that Mr Koole strangled Mr Hashe with brute force and with both hands for approximately half an hour until he was lifeless.

Mr Chairman, such an examination has been done. I am in possession of a medical legal report, of which copies have been given this morning to all the other legal representatives. With your permission I beg leave to hand up that report, and I would submit that this is a relevant aspect to be taken into consideration.

CHAIRPERSON: Yes, you will refer to it when you address us, if you haven't referred to it in your heads of argument already.

Mr Booyens?

MR BOOYENS IN ARGUMENT: Thank you, Mr Chairman.

Mr Chairman, I think I have got an advantage in some respect, that I understand that the members of the committees had my heads of argument for some time. May I just enquire whether that is indeed the position, then hopefully I will be able to, subject to what emanates from the bench, probably be able to keep well below what you indicate.

Mr Chairman, let me sum up my heads of argument. The first issue I deal with is the issue, what sort of, and I use this word advisedly in quotation marks "onus" are we looking at in these proceedings?

In this regard of important, I'm not going to repeat the authority again, of importance is the following: the legislature, who has got the whole of the language available to itself, have chosen to use the word "satisfy", not "prove". There must be some significance in that. It is something that I seem to remember from my early days as a law student that if you say, the legislature is usually expected to say what he intends to say, if they wanted to say, use the word "prove" and then, depending on the wording of the Act, would have been proof in the civil sense or the criminal sense, they would have said so. They chose to use the word "satisfy" and in my submission, especially the AD decision that I referred you to in the, I think it's the Botha matter at page 3 of the heads, satisfy means, we submit, that there must be, as an accused has got to satisfy the Court, that is as I understand Smalberger's judgment, that the test is can that story be reasonably possibly true.

Now what would follow on that then, Mr Chairman, is, not infrequently in a criminal case does one have the situation where you've got to say, "I cannot necessarily disbelieve the State witnesses, but I cannot necessarily disbelieve the accused, his version may be reasonably possibly true". It would follow in these proceedings the Committee finds itself in a situation where we've essentially got the, let's call it the Askari version and we've go the Port Elizabeth version, and the two versions cannot, there is a conflict between them, to some extent. Of course there's also the Mamasela version, but that I will refer to later.

But my submission is, Mr Chairman, that on none of these versions can this committee go and say that because of the demeanour of the witnesses, because of the contents of what they said, because of the way in which they gave their evidence, that it can necessarily be said that the version of either the Askari version or the PE version is false beyond reasonable doubt.

That being the case, it is my submission that it's not a case of, this is not a criminal trial, or a civil trial, where you've got to weigh the one against the other, it is my submission that both the Askari faction and the PE faction can get amnesty, even if there are contradictions between them.

Mr Chairman, that is as far as I want to go with what it means to say the committee must be satisfied, I've dealt with the rest in my heads of argument.

The next question is, Mr Chairman it must be an act with a political objective. Now I deal with that from page 6 in my heads of argument, paragraph 13.

Once again, I do not want to belabour the point. I think perhaps the best way to summarise the question whether these acts were committed with a political motive is the following: it is a matter of history that there was a bitter battle in Port Elizabeth between the Civics Organisation, PEBCO, on the one hand, fighting for those rights that they think they are entitled to. On the other hand, you had the front line soldiers of apartheid in the security police opposing that. The only reason why these two opposing factions came into a clash with each other, and that is the only one, Mr Chairman, must be because of clashing political ideologies, the political ideology of the liberation movement on the one hand, the political ideology of the then government of the country on the other hand, who believed that the liberation movements would cause a total collapse of law and order as they perceived it, expressed through their minions on the ground, the security policemen.

It's not the security policemen who thought up this political motivation, it was there, it was there for everybody to see. You, Mr Chairman, and every member of the committee have heard this evidence in other matters, and we've all grown up in this country, we know that it was there.

What may become relevant here, Mr Chairman, is, and something was made of it, but these people that died were not people that themselves were involved in killing of people, themselves physically involved in the actual commission of acts of violence. That may indeed be true, but as I referred to in my heads of argument, Mr Chairman, as the De Klerks and the P W Bothas and the Adriaan Vloks were the political thinkers of the one side, similarly the deceased in this matter were the political leaders, or the, whether they be on local level or so, on the other side.

In fact, in real terms, wars don't get started by soldiers, they get started by politicians, soldiers fight them, and I think I referred to it, one knows of plots during the second world war to kill Churchill, to kill Hitler, to kill Mussolini, we know of the assassination of Heidenreich who was the administrator or Czechoslovakia, the political leaders, in fact I think there were some efforts on the part of the Americans to get to Saddam Hussein during the Gulf War, the political leaders in fact supply the fuel for the political conflict which is fought out on the lowest level. So all I'm trying to say there, Mr Chairman, is that it would be wrong, in my submission, to say because they targeted political leaders, for that reason they need not necessarily have killed them, it's disproportionate.

In this regard, I have specifically referred the commission to a number of decisions by the commission, making it very clear that I'm aware that this is not precedent, but I would also like to refer the commission, if one looks at the aspect of professionality, to the amnesty application of Hendrik Jacobus Steyn, which I haven't referred to in my heads, Mr Chairman, that's application No 69 of 1996. Mr Chairman, you yourself and Mr De Jager would remember that one. I myself, unfortunately, remember it rather well, it was one of my unsuccessful defences. Mr Steyn was, as you would recall, the policeman in Zululand who executed the two wounded men on the back of the bakkie, and he said he was a member of Inkatha. And if one looks at the motivation of Steyn as it came out in here, it is apparent that his situation was certainly no worse than the perpetrators of this offence insofar as proportionality is concerned.

Mr Chairman, an aspect which I think, and I think I think so with some justification, which must have caused this committee some concern, is the following: were there, in fact two things, number one, were there assaults perpetrated on these people in the period when they were, I'll use the word advisedly, when they were detained at Post Chalmers, and I think, linking on to that, how long were they detained there? There's of course a difference in the evidence here. In main, it is my submission that I've said already that on the quality of evidence before you, the committee cannot really make the finding that there were or were not assaults, and for that reason the applicants that I represent should receive the benefit of the doubt as far as that is concerned. There is, however, an alternative argument to that, Mr Chairman, and by that I'm not indicating that I'm conceding that there were assaults, but if one looks at the wording of the Act, dealing with the section with full disclosure, because that is the only basis on which this can become relevant, if an assault, or that which you apply for amnesty, you must make a full disclosure about that. Let's take the following scenario: the PE, well let's not say the PE men, let's just say the perpetrators, because this is a theoretical example, the perpetrators go and kidnap somebody, they take him to a deserted police station, the purpose in the kidnapping is to murder him, but one or more of the perpetrators have got a personal grudge against the victim, a personal grudge that's got absolutely nothing to do with the political motive, now in the period between the kidnapping and the killing of these people, they commit a brutal assault upon this person, but not an assault which contributes to his death, in other words it's an independent assault, let's first take that scenario to a situation in a criminal court for purposes of prosecution.

If you want to successfully prosecute these people, you will have to charge them with abduction or kidnapping rather, you'll have to charge them with murder, and the important thing is, you'll have to charge them with that assault in the middle as well, because the competent verdict situation on the murder charge will cover a situation where, you must have had that experience yourself, Mr Chairman, and any of us who have been in practice have had that experience, we sometimes, and more often than not in a culpable homicide situation, you get a situation where it is proved that A assaulted B. What is not proved is whether that assault contributed to his death.

You get the acute neurogenic cardiovascular arrest situation sometimes, as you would know, Mr Chairman. Now, in a criminal court it would be competent to say that assault that is directly linked, in other words hit the man with a stick, he falls down and he dies, you cannot prove that it's because of the hitting with the stick that he died, but the competent verdict in terms of the Criminal Procedure Act would cover that assault, but the earlier assault on the previous day would never be covered in terms of a competent verdict unless you can prove a causation situation. The only way the prosecution would be able to get a conviction there would be a charge with kidnapping, a charge with assault on day two, a charge with murder on day three.

Now, developing from there, the situation is that if we accept that there was such an assault, that these applicants never applied for amnesty for that assault, because this is an independent assault on day two, it's not the murder on day three, it's an independent assault on day two, they've never applied for amnesty for that. This committee, Mr Chairman, if they testified about that, would not have been able to give them amnesty for that, because it's an independent assault. It follows that it would also not be a defence, if they get given amnesty for the kidnapping and the murder, it would not be a defence if they are prosecuted for the assault, to say "we've received amnesty", because they haven't, they've never applied for amnesty and they were never given amnesty, and in fact, if given amnesty, that amnesty would have been competent in my respectful submission.

So it is for that reason, and looking at the wording of the Act, that my submission is that it cannot be said that failure not to make a full disclosure about another offence is failure to make a full disclosure about the offences which they were involved in, and for that reason the offences for which they can apply for amnesty. That is my alternative submission in this regard, Mr Chairman.

CHAIRPERSON: Sorry to interrupt you. Where are we going to draw the line, what if, apart from refraining from disclosing the question of assault on day one, what if an applicant actually, extending that same argument with regard to murder, for which he applies for amnesty, he says, "Well I'm only obliged to disclose, to make a full disclosure with regards to my personal participation, I'm not obliged to make a full disclosure with regards to the participation in the murder incident, participation about another applicant, I'm only making full disclosure of material facts relating to myself"?

MR BOOYENS: He can't do that, because the test is relevance, relevance in respect of that offence.

CHAIRPERSON: Well that is the point, you see...

MR BOOYENS: Yes.

CHAIRPERSON: ...the assault on the previous day, you see it's part of a pattern on the part of the applicants, a consistent conduct on the part of the applicants to deal with the deceased in a particular way, and you can't compartmentalise their activities into watertight compartments. It starts from the point, doesn't it, from the point where they are kidnapped right up to the minute they are killed, so you, shouldn't it be so that you must make full disclosure from that point onwards and not start - because all those things could very well be relevant. You are saying, just the point, that the question is relevance. Now relevance may very well start from the time they are kidnapped, and to now start trying to say, "Well you don't have to make a full disclosure with regard to kidnapping, because you don't make application for amnesty for kid-napping, you don't have to tell us what happened between the airport and the farm, you don't have to make a full disclosure, because you are not making application for amnesty for that", and then you start compartmentalising it into watertight compartments.

MR BOOYENS: Mr Chairman, perhaps I should, I said relevance, relevance in the sense of the word relevant to what would be relevant to the proof of that offence for which you are committed. If the two of us are involved in the assault, I cannot go and say, "No, I'm not going to talk about the other party's involvement", because there you are dealing with a common purpose and so on, of course the other party's involvement is relevant, but let me just take this whole scenario that you mentioned, Mr Chairman, of running through the period, let me just take that and on these facts, if the Mamasela story is true, I'm not conceding for one moment it is, and I'll argue strenuously that it's not, but if the Mamasela story is true, in other words they were assaulted to death, then obviously the assault is relevant. That's why I made the point initially, there is no possibility, if the State were to prosecute, let's for a moment accept the version of the PE men, that the deceased were drugged and shot, if the State were to prosecute on that murder charge, counsel appearing for the accused would be entitled to object to any evidence as inadmissible being led about the assault the previous day.

CHAIRPERSON: Not when you tell us that the purpose of kidnapping them was to go and kill them. A plan was hatched in advance.

MR BOOYENS: Yes.

CHAIRPERSON: I would understand that argument if being taken to kill them started on day two, then counsel would object against evidence being led about the assault on day one, but in this case, where it is your very clients' case that the plan to kill them was hatched even before they were arrested, so that makes the difference, the fact that there was an agreement in advance to kill them, makes a huge difference.

MR BOOYENS: No. Mr Chairman, no, with respect, I think one must be careful there. Let's say, it is indeed correct, the plan to - the kidnapping was for the purpose of killing them, I think we can accept that, I've got to accept it, that's what my client said.

CHAIRPERSON: And the agreement was never that "we should kill them on day three"? As far as we know, they were candidates for murder from the moment they were taken from the airport?

MR BOOYENS: Yes, they were candidates...

CHAIRPERSON: Once you hit him with a stick, the minute you put him in the kombi from the airport, you hit him with a fist, that process of killing them has started...

MR BOOYENS: No, with respect...

CHAIRPERSON: ...and it's going to continue...

MR BOOYENS: With respect...

CHAIRPERSON: ...unless you tell us that no, day one and two, it was basically agreed that day one and two, they were not to be touched by anybody, they are to be killed on the third day, anybody who touched them on the first and the second day did so at his own peril and it's not part of the whole process of killing them.

MR BOOYENS: Yes. Mr Chairman, that is certainly part of it, because on what we have heard of Koole and Mogoai, what was the purpose of the questioning? The purpose of the questioning was to get information and kill them, that...

CHAIRPERSON: Huh. But...

MR BOOYENS: The reason why they wanted to kill them...

CHAIRPERSON: ...you can't kill them before you get information.

MR BOOYENS: No, with respect, the reason why they wanted to kill them, that plan was mooted days earlier in Snyman's office, when he gave permission for it, and the reason why they were to be killed was because of their PEBCO activities, that is why they were to be killed, not because they refused to answer questions, or they will refuse to answer questions, but because of their PEBCO activities. Now they kidnap them. The purpose of kidnapping is, unless Du Plessis tells us we have been spotted, we are going to carry on with this scheme. They get taken to Post Chalmers and get killed there, the PE applicant says on the second night, there's a dispute about that, but then, in this interim period, between the time when I grabbed the man and the time when I pulled the trigger, there's a period where they are being what they are, security policemen, they get involved in questioning of the people. The questioning has got absolutely nothing to do with the fact that they're going to be killed, they've already been sentenced to death. The questioning is to get more information.

CHAIRPERSON: Yes, but Mr Booyens, I think if you look at the evidence that has been led in this matter, that itself is debatable because, according to one of the applicants, there was not supposed to be any interrogation, even the interrogation which, in the end, he concedes happened, it was meant to mislead the Vlakplaas people as to the real intention of the abduction which was elimination, that is debatable...

MR BOOYENS: Yes.

CHAIRPERSON: ...but can I ask you a question, isn't there a fundamental difference between the criminal court process which you have referred to, as I understand in a criminal trial, the accused does not have to say anything...

MR BOOYENS: Yes, that's...

CHAIRPERSON: ...he does not really have to say anything, but this process is fundamentally different to that, because one of the requirements here to qualify for amnesty is to give a full disclosure, and that cannot be confined to the technical elements of a crime if this person were to appear in a criminal court.

MR BOOYENS: Mr Chairman, with respect, you can only give him amnesty for a crime or a delict, you cannot give him amnesty for anything else.

CHAIRPERSON: Yes, but are you saying that anything that happens to this person, from the point of the abduction, is irrelevant, things like torture, assault, those things are irrelevant, all he has to tell us about is the act of eliminating this person?

MR BOOYENS: He's got to tell you. let's take one of the things that must have been a, was a small, unimportant thing here, but which was mentioned, the, let's call it the stealing of the watch. Now, the stealing of the watch cannot have a political motive, it cannot be relevant to the killing of these people, it cannot be used to prove the killing of these people because it's not suggested that it was the motive for their killing, can it seriously be said that if anybody were to say that in this day in between, let's use an absurd example, let's say in this day in between they got hold of the man's bank card and they said to him, "Give me your pin code", and they went to the bank and they drew R1 000,00 out of his account, that's plain theft, and the mistake we must not make, Mr Chairman, and I would suggest that will be a mistake, is to say everything that happens in between must be relevant as far as full disclosure is concerned. It's simply a case of we cannot shy away from the fact that you can only give amnesty for delicts or crimes, and you apply for amnesty for a crime in this instance, it's a delict also, you apply for amnesty for a crime, you must make full disclosure as far as that crime is concerned. The crime you're applying for is murder.

CHAIRPERSON: Ja, but the circumstances and the overall manner in which this crime was committed, is that not relevant, is that not to be disclosed?

MR BOOYENS: Mr Chairman, let's deal with the crime of murder, how was the murder committed?

CHAIRPERSON: What happened before that act of murder was committed, is it not relevant?

MR BOOYENS: No, what happened be..., they chose to apply only for the murder, that's why I say let them be prosecuted for the assault if there was an assault. What I am saying is, what are the facts that relevant to the murder? What is relevant to the murder is the conspiracy, where the decision is taken, what is relevant to the murder is the kidnapping, because that is with the intention to go and murder them, what is relevant to the murder is the giving of the sleeping tablets or sleeping draught, I can't remember what it was, in any case some sleeping medicine, the pulling of the trigger, the concealing of the bodies. Why, Mr Chairman, with respect, is the fact that in between one or more of these security policemen, and the only one that we know is mentioned is Nieuwoudt, one or more of these security policemen decide, on his own agenda, that, "I want to question A, B and C and find out who they corroborate with in Lesotho or something", why is that, with respect, relevant if we take into account what the initial conspiracy was? It was never challenged by anybody, and I would submit it can never be disputed that the conspiracy was, get hold of illegally and kill the PEBCO leadership, that was the conspiracy.

CHAIRPERSON: That is as far as your clients are concerned, but not as far as Mr Lamey's clients are concerned, for instance.

MR BOOYENS: Mr Lamey's clients didn't know the truth.

CHAIRPERSON: Ja, because they weren't part of the conspiracy there?

MR BOOYENS: No. They became part of a conspiracy to kidnap and take away, they became part of a kidnapping conspiracy, I think they never thought it was an arrest.

CHAIRPERSON: Ja, well not part of the conspiracy, but part of the kidnapping, because if they didn't know there was a conspiracy to kidnap and murder, they only took part in the kidnapping for the sake of interrogation, according to their version, I'm not saying...

MR BOOYENS: Ja.

CHAIRPERSON: ...it's a true version.

MR BOOYENS: Yes, no, Mr Chairman, no, I think we're improvising and I carry no brief for Mr Lamey's clients, I've got no serious quarrel with them either, if Mr Lamey's clients knew beforehand that it was going to be, the removing of these people is not going to be an arrest, then they would be part of a conspiracy to kidnap, but that's as far - they were certainly never part of the conspiracy to murder, never ever.

CHAIRPERSON: So that would, according to your argument, illustrate that there are separate crimes, because they're definitely part of the assault?

MR BOOYENS: Yes. Well...

CHAIRPERSON: But they may not even have known that the people will be murdered, according to them their evidence is that they didn't realise that these people would be murdered in the end.

MR BOOYENS: Yes. Mr Chairman, that may indeed be so. What we must remember is, I'm not sure, but it must be one of what I referred to in my heads of argument as the PE group, that is now the three there at Post Chalmers, or it could have been Du Plessis, is one of the PE group in any event, if not more of them, certainly said that the Vlakplaas faction were never told that the intention was to murder these people. Their story is, the PE group's story is, they used Vlakplaas for one reason only, and that is because they went to the airport where everybody could see them, and even then, and that illustrates the truth of what they say. Even then, remember, the intention was, these people are not coming back, Mr Chairman, and even at that stage, that is why they used the Vlakplaas faction because then Mr Hashe and those people are seen being kidnapped by unknowns, not by the well-knowns like Nieuwoudt and the other members of the PE Security Branch.

CHAIRPERSON: If I would agree to this extent, the cause of death, according to your clients, was shooting, they were killed by shooting, the assault didn't play any part in the cause of death?

MR BOOYENS: Yes.

CHAIRPERSON: So they would have been found guilty of murder, shooting the people, and because the assault wasn't part of the cause of death, it would constitute a separate crime...

MR BOOYENS: It's a separate charge.

CHAIRPERSON: ...the assault, but that may be the position as far as different crimes are concerned, but does that answer the question of full disclosure?

CHAIRPERSON: Yes, Mr Chairman, if one looks at the wording of the Act, it does, in my submission. If they were involved, the example I mentioned earlier on, if they were involved in the stealing of money, forcing somebody to disclose his pin code, for example, the stealing of the watch, which is an on the ground example here, you can certainly not say that if, in the process of committing what is a politically excusable offence, you have committed offences which had absolutely nothing to do with politics, that it's relevant to disclose those offences before it can be said that you have made full disclosure. Now if that is correct, and I submit it is, then surely, assuming that it was arguable that the assaults were politically excusable, and they probably would have been, I don't know, we haven't led the evidence, but because they chose not to disclose those offences, what difference does it really make, with respect, because it's an independent offence, it's an offence for which they could never be convicted in a criminal trial if they've not applied for it, but most important, it's an offence for which this commission, Mr Chairman, cannot give them amnesty, because they haven't asked for it.

Let's say they got here and they told the story and they said, "Yes, we assaulted him and so on", it wouldn't have been competent for you to give them amnesty, because they haven't applied for it.

So, in those circumstances, how can we say that if we couldn't give them amnesty for it, they have failed to make a full disclosure? That is the gist of my argument, Mr Chairman, and that is why I say one must always go back to the Act, and the Act says you, this commission, can give him amnesty for an offence, for an offence or a delict that he applied for and made full disclosure in respect of, and that is why I stress again, the murder has got its own line that runs through, in between there's a new act that comes in, that is the interrogation and the assault, but neither Snyman nor Du Plessis nor anybody said the purpose of the kidnapping was (a) to interrogate, and (b) to murder, that was never the initial purpose of the conspiracy. If they wanted to interrogate these people, Mr Chairman, they could have picked them up at any time. This was just an opportunity that arose as a result of circumstances, and that is why I say even if you do not believe them, and I do not abandon my initial argument that there is still, the committee will still have to get past the point to say can their version not reasonably possibly be true, the committee will still have to get past that point, but if you can get past that point, I would submit that it will be wrong to say because an independent offence during the time span would be necessarily an offence which you can use to say they didn't make full disclosure.

Mr Chairman, that is as far as my submissions can go as far as that regard is concerned.

As far as Mamasela is concerned, Mr Chairman, unfortunately I was in the position that at the time when I prepared my heads of argument, I tried to comply with the presiding officer's request insofar as possible, I did not have Mamasela's evidence in my possession. However, it is my submission that, in the first place my colleague, Mr Du Plessis, dealt far more fully with why we should not believe Mamasela. I make common cause with his argument. But if I may just lift out a few further aspects about the evidence of Mamasela.

Mr Chairman, demeanour is certainly one of the factors that we've got to take into account. Mr Mamasela behaved as if he was on a political stage making political speeches more often than not. You, Mr Chairman, yourself had to reprimand him on a number of occasions to answer questions. A few inherent improbabilities in Mamasela's evidence relating to this incident are: No 1, there is this, although he claims that he initially, that he referred to the 15 motor cars arriving there only on the second day. If one reads his evidence carefully, and I have done so now, it is clear that he initially certainly conveyed the impression that the 15 motor cars arrived there on day two. Perhaps just to get clarity for ourselves again, Mr Chairman, if I talk about day one, I talk about the day of the kidnapping, the night of the kidnapping, day two is then the second day and day three is the day of the killing, on Mamasela's version, we say there never was a day three, we say there only was a day two, but the arriving of the 15 motor cars at, and the convention of the joint security forces, Mr Chairman, it is so far removed from the evidence of anybody else, any of the other applicants, that that puts a question mark, that is a further problem.

Let us just try and think ourselves into the logic of this situation. If they wanted to have this convention to question these people, why on earth would it be necessary to kidnap them from the airport? The security police in those days had enormous powers, they could have picked them up and they could have had their convention with Cradock and Cape Town and the National Intelligence Service and I don't know who else were there, and asked them their questions, Mr Chairman. It is so inherently improbable that they would have this enormous gathering and literally beat these three people to death, as was claimed by Mamasela, that one can ignore that factor. That is, Mr Chairman, Mr Mamasela has spoken many a true word at the trial in Durban, I have given you part of that record, where he seems to have the inability to distinguish between lie and exaggeration, apparently an exaggeration is not a lie, and perhaps one can sometimes say that to a motor car salesman, make that applicable to them, but an exaggeration is something that is removed from the truth, and that is the problem with Mr Mamasela. Mr Mamasela, and it is clear wherever he got into a witness box, and there are a number of occasions, or whenever he purported to give evidence or facts, he would exaggerate, he would sensationalise, because he's playing for the pavilion, and in the process of sensationalising the facts, one would have the situation where the truth was the first casualty, and that is what happened here, because of Mamasela's sensationalising the facts. Mr Chairman, if one takes for example what, he claims that, I think one can say with one justification, in his initial evidence led by my learned friend, Mr Brink, that, well initially he said it was Venter who gave them the instructions, later Eugene de Kock gets drawn there as well, but he certainly conveys the impression that up in Pretoria already they were given the instruction that they were coming down here for the purpose of eliminating somebody, eliminating people. Now once again that is not the evidence of any of the other of the Vlakplaas contingent. The rest of the Vlakplaas contingent made it clear they were coming here for their normal purpose of identifying insurgents in the township. In fact they said that they were told that they couldn't go into the townships, because it was too dangerous for them to go in there, they must patrol in the white areas and see who they can see. That doesn't give the impression of a group that was here for the purpose of coming here to eliminate somebody. So there Mamasela is unreliable.

I referred to his many admitted, in general as a unreliable witness, his many admitted lies that he told in the past about other people, the lies that he told in the Griffiths Mxenge trial, admittedly, the lies that he told about Joe Mshlangla, that the man was an informer of Krappies Engelbrecht, his admission that his morals, unless he's under oath, his morals allow him to lie.

Mr Chairman, it will be extremely dangerous for this committee to rely on the single witness whose entire description of the event, except insofar as the fact, and even there he differs from the others, let us say Mamasela is correct, his evidence is the same that they were in PE, though he differs why. It is correct that they were at the airport to remove the three, but he differs as to how it happened. You would recall, Mr Chairman, that the PE people said that the three Askaris removed them, Koole said that the white people removed them, they think it was the PE men, and Mamasela was that he and I think it's Venter, yes that he and Venter did the kidnapping. So there is a contradiction.

What happened that first night there differs completely. The PE men said there was a sort of a superficial inquiry, the Askaris said there was a questioning which involved a few smacks and a few blows, if I recall correctly, Mamasela said nothing happened that first night, the assault with the iron pipe started on the first morning. Neither the PE men nor the rest of the Vlakplaas contingent talk about this cavalcade of motor cars that arrived there, 14 to 15, neither do they talk about the fact that these people apparently did not sleep at Post Chalmers but would go away and come back the next morning.

Mr Chairman, the bottom line is, to rely on Mamasela to refuse these amnesty applications, bearing in mind the tests you must apply, would be extremely dangerous and I would urge upon the commission not to rely on Mamasela's evidence in this regard.

Mr Chairman, I, at the risk of being repetitious, I think I have covered what I wanted to cover, in addition to my heads of argument. If I may just hear from my attorneys whether there's anything else they want me to deal with?

Mr Chairman, just one aspect that I would submit that the committee will have to take into account also in...

CHAIRPERSON: Sorry, sorry, I'm sorry, I, it's my mistake, can we just hold on for a minute? I'm sorry, Mr Booyens, if you could just repeat what you said?

MR BOOYENS: Oh. Yes, certainly, Mr Chairman, just a few points I wish to raise, Nieuwoudt at some place said, "I have assaulted Steve Biko and I applied for it", in his evidence here during cross-examination. The important thing is that, and that's what they all said, "If we had assaulted these people at Post Chalmers, we would have applied for amnesty". Mr Chairman, if the assault was perpetrated during the course of an interrogation to obtain evidence of the activities of the PEBCO 3, their political activities, it would fall squarely within the ambit of the Act, and what's more, in fact Nieuwoudt at one place said, I think the reference is in my heads, that Nieuwoudt at one place said that both MacAdam and his own legal representatives said to him, "If there are assaults, you must tell us about it", he says, "I did not perpetrate assaults and I will not admit to something I haven't done", and one must ask yourself one question, Mr Chairman, why? These security policemen are not that stupid that they would come and apply for amnesty for the most serious crime that one can imagine, but persist that the far less serious crime was not perpetrated by them. There's some jump of logic there that I've got a problem with, and one has to ask yourself to what extent were Mr Koole and Mr Mogoai influenced?

There is the one thing at the back of my head that's been bothering me for a long time in this matter, I know Mr De Lange sat there and very confidently stated that whatever Mr Mogoai said to him he put into that statement. There must be some significance that Mr Mogoai said that but on a number of occasions he didn't mention Nieuwoudt's name. Why is it in that statement and why does Mogoai deny it? The Askaris had to justify their existence there for some or other reason. They wouldn't admit that they were involved in the kidnapping, which is the only logical reason why they would be necessary, because if they didn't want to use Vlakplaas for the kidnapping, they could have used their local cronies here and lessened the risk of outsiders knowing what nefarious activities they were getting up to. There's only one logical reason why they were there, and that logical reason is exactly to make sure that if anybody see, they wouldn't know who did it.

Mr Chairman, those are the submissions I wish to make, unless there's something else, I'm indebted to the committee for the opportunity of addressing you and the gentlemen.

CHAIRPERSON: Yes, thank you, Mr Booyens. Should you, after we adjourn today, should you feel that you wanted to add anything, you could do so, but it should be within the next 14 days.

MR BOOYENS: Yes, certainly Mr Chairman.

CHAIRPERSON: Beyond the next 14 days...

MR BOOYENS: We'll have reached the point of no return.

CHAIRPERSON: Yes, otherwise we'll never finalise this. We are going to start working on the judgment two weeks from now.

MR BOOYENS: Yes.

CHAIRPERSON: Mr Du Plessis?

MR DU PLESSIS IN ARGUMENT: Thank you, Mr Chairman.

Mr Chairman, I'd like to deal with the argument in the following way: I've presented you with complete heads of argument and I would like to take you very shortly through the heads of argument, but I've decided that I will do that at the end of my argument.

I perceive the vexed question of what is full disclosure as to be the biggest problem that the committee faces and that is why I would like to start with that question and deal with that question first, before I get back to the heads of argument.

Mr Chairman, we've all been involved in this process for a long time, we've all read the Act over and over, we've all looked at evidence in argument, but may I ask you to do the following: let us take the Act and let us look at the Act, and what I want to do is, I want to point out specific places in the Act which I'm of the view would assist you immensely in respect of the question of what should be full disclosure and how one should interpret it.

The first point I want to refer to is the heading of the Act. The heading of the Act refers to the granting of amnesty to persons who make full disclosure of all the relevant facts. The main purpose of this Act is to provide amnesty in respect of criminal acts and dealings and offences.

Now, keeping that in mind, Mr Chairman, I want to refer you to section 19, which is the section that starts with, or section 18 is the section that starts with applications for the granting of amnesty. Now if one reads section 18.1 closely, and I'm going to read it to you again, it says:-

"Any person who wishes to apply for amnesty in respect of any act, omission or offence on the grounds that it is an act associated with a political objective."

So what we see there, Mr Chairman, is we see a reference not to acts, omissions or offences, but a reference to the singular, any act, omission or offence. Now one should read this together with further sections in the Act, namely, for instance, section 19.3, which makes provision again for the same, where it states the committee may decide on amnesty and it can say, and if it's satisfied that the application does not relate to such an act in the absence of the applicant and without holding a hearing, refuse the application, or the committee may, if it's satisfied that the requirements have been complied with, and the act, omission or offence to which the application relates, the act, omission or offence to which the application relates, and one finds this example quite a few times. In these sections, application is related not to acts, omissions or offences, it's related to an act, an omission or an offence. That means, Mr Chairman, and I will go further in the Act to give you further examples which strengthen the argument, but it means at the end of the day that when you apply for amnesty, if you make an application for amnesty, an application is an application relating to an act or an offence or a delict. The con..., or more than one, or more than one in the same document, in the same document lodged, but at the end of the day, every criminal offence you apply for amnesty for is a separate application in terms of the Act. Now we should always keep in mind, Mr Chairman, the provisions of, and if I could just, if you could just bear with me, the provisions of section 19.5(b), because there one finds the support for my argument. 19.5(b) says:-

"Notwithstanding the provisions of section 18.1, the committee may consider jointly the individual applications in respect of any particular act, omission or offence to which such applications relate."

And that is what we're doing here, Mr Chairman. We have one set of documents, we have a list of offences set out, each offence that is applied for constitutes a separate application in terms of the Act, it relates to a particular act, omission or offence, as provided for in section 19.5(b).

But it goes further than that, Mr Chairman, section 20, which deals with the granting of amnesty says the following, 20.1 says:-

"If the committee, after considering an application for amnesty, is satisfied that the application complies with the requirements of the Act, then:-

(b) The act, omission or offence to which the application relates is an act associated with a political objective."

This presupposes, Mr Chairman, that an application should relate to an act, omission or offence, not acts, omissions or offences. And (c), and that is the important part, Mr Chairman:-

(c) The applicant has made a full disclosure of all relevant facts."

And then, the conclusion supports this interpretation again:-

"It shall grant amnesty in respect of that act, omission or offence."

So if you read section 20, Mr Chairman, it speaks of application, act, offence, omission, and it says:-

"...grant amnesty in respect of that act, omission or offence."

Now, if that is so, Mr Chairman, the question relating to full disclosure of relevant facts can only be a question relating to the relevant facts pertaining to that act, that omission or that offence that amnesty is sought for.

It is further supported by section 20.5. Section 20.5 deals with the information that the commission should provide to any person when amnesty is granted of a decision, and it says the following:-

"The commission shall inform the person concerned, and if possible any victim, of the decision of the committee to grant amnesty to such person in respect of a specified act, omission or offence."

CHAIRPERSON: Sorry, Mr Du Plessis, I really, I don't quite appreciate this argument. Don't we know that, or am I wrong in thinking that, as far as interpretation of stages is concerned, the singular will include the plural? Is your point any different from the point which Mr Booyens was raising?

MR DU PLESSIS: No, Mr Chairman, my point, and I'm trying to give you a different perspective in respect of this point, that if you, on a proper reading of the Act, on a proper reading of the Act, Mr Chairman, and one must remember that I'm dealing with what does full disclosure mean, on a proper reading of the Act full disclosure is related to that specific act or offence which amnesty is sought for. Now, the...

CHAIRPERSON: Because that must be sought, I mean nobody would say that they must make a full disclosure in respect of facts which are not relevant to the act for which they are applying for amnesty. I would be surprised if anybody were to argue that, and nobody could be understood to understand the Act that way. We must all be understanding the Act the same way, that the material facts which they must disclose must be the facts relevant to the incident for which they applied for amnesty.

MR DU PLESSIS: No, Mr Chairman, relevant pertaining to the act, omission or offence the application relates to. That means, in this instance, in respect of my client's situation, Warrant Officer Beeslaar, one must look at the question of abduction, which is a separate act, omission or offence, one must look at the assault, the kick that he testified about, which is a separate act, omission or offence, and then further you will see I included in the heads of argument, and I just raised the argument...

CHAIRPERSON: I'm sorry, you see I'm saying to you, you see an applicant cannot dictate to the committee what to consider and what not to consider by merely excluding a particular act or omission from the process of amnesty, because, if, for example, if there is a question of abduction, which is an offence, assault, which is an offence, murder, which is an offence, an applicant who brings an application for murder and assault and then excludes abduction with the hope that you will come before us and say, "No, no, no, don't look at abduction, because I have not plead for amnesty", he may find himself in trouble, because despite the fact that he has not made an application for abduction, we may find that abduction is relevant to acts and murder, he can't simply...

MR DU PLESSIS: Yes.

CHAIRPERSON: ...he can't tie our hands and dictate to us...

MR DU PLESSIS: No.

CHAIRPERSON: ...by excluding amnesty for a particular thing.

MR DU PLESSIS: No, Mr Chairman, the question is, in respect of the whole sequence of events, and I'm trying to come to that, because I'm trying to, and eventually I will give you the answer of the problem that you have with this, is, the question is, what is amnesty sought for? It is sought for a criminal offence. Now the question is, what must an applicant prove before the committee to show that he should get amnesty for a specific offence? He must prove that he committed that offence, Mr Chairman, that there is such an offence for which the committee can give amnesty. Now, if he has to do that, what must he show? He must show and indicate the facta probanda of such an offence. So if we look at murder, he must prove that he acted, that there was a murder, and then one must look at everything surrounding that act, the evidence that you should present surrounding that act, that death ensued, that there was intent and causation.

Now causation is the one requirement, Mr Chairman, that will answer your problem, because, for instance, in this situation, where intent in respect of the Port Elizabeth policemen, arose quite early in the incident, one has to relate the intention eventually to the end result. The only question is, in respect of that, and in respect of causation, which acts during that whole period up to and including the murder are relevant for purposes of murder, which of those acts, what information is relevant pertaining to murder? Now, Mr Chairman, in that situation one must ask yourself what are the facta probanda, and if there is a causal connection between the intention to murder and to murder eventually, the question for instance if, let's take certain facts or certain incidents that happened and could have happened in this process of time, let's say, for instance, that the people who removed the bakkie took the bakkie home and used the bakkie for their own purposes. That would have probably constituted theft with no political motive.

Now my question is, Mr Chairman, why should that be relevant pertaining to the application for amnesty for murder? The same goes, for instance, with the reference to the watch, where my client is implied. Let's take for a moment, let's ask ourselves the question for a moment, which wasn't the evidence, but let's say for a moment the watch was taken by Beeslaar during interrogation, I mean he took the watch and he kept it for himself.

The question arises, is that evidence important for purposes of the full disclosure question pertaining to the application for amnesty for murder, for instance, if let's say he had applied for murder, let's say he was involved in that as well, is that relevant, is the question of the watch for instance relevant for purposes of full disclosure to the kick, Beeslaar applies for when he applies for assault on one of the activists? And if it is relevant, Mr Chairman, how far does one go, how far does full disclosure go? If he tried to sell the watch afterwards, one doesn't know how many other offences or other acts could follow from that.

So the vexed question here, Mr Chairman, the moment one goes off the road of the legal principles which are the jurisdictional facts in the Act, which have to be regarded, have to be taken into account, the moment one goes off that track, you land into a very, very difficult situation. The...

CHAIRPERSON: Sorry, I'm sorry to interrupt you, I thought I wouldn't but you see you have it all wrong. You speak of facta probanda, we may pronounce the words differently, but, and then, you know, you must be careful, because in terms of the argument you elevate the facta probanda to the elements of the crime, and you are saying that an applicant is only obliged to make full disclosure with regard to things which are germane to the offence for which he commits an offence, and by using the words facta probanda, I understand you to really mean, coming very close to meaning the elements of the crime...

MR DU PLESSIS: Correct, Mr Chairman, because that is what you give amnesty for.

CHAIRPERSON: ...but that is not so, it may be that not only must he make a full disclosure of facta probanda, but also facta probantia as well, because you see, for example, kidnapping is not a facta probanda, it can't be in terms of if we understand that to be elements germane or facts germane, elements of the crime of murder. It could be a facta probantia, kidnapping, and in fact it is, but it's a material thing which must be disclosed, even though it's not a facta probanda, as a mere facta probantia it must be disclosed.

MR DU PLESSIS: Yes, Mr Chairman, I'm - yes.

CHAIRPERSON: So you come very close to saying an applicant is only obliged to make a full disclosure with regard to the elements of the offence for which he makes an application, that can be so.

MR DU PLESSIS: But, Mr Chairman, the facta probantia, the facta probantia are the facts which you have to introduce in evidence supporting and surrounding the elements, the elements of the act. The moment you go further, the moment you go further, Mr Chairman, in respect of this procedure and you say that other facts which may not be facta probanda or facta probantia become important because it's a sequence of events that lead to an end result at the end of the day, you open yourself up, Mr Chairman, to a serious problem in relation to what should be disclosed and what should not be disclosed, it becomes a thumbsuck question. The problem is, Mr Chairman, what I'm trying to do is, I'm trying to present an argument to you where, according to legal principles, one could apply the Act, and the argument I'm presenting to you relates to the jurisdictional facts that the committee have to take into account when they make this decision.

In this regard, Mr Chairman, I have dealt with the authorities on, specifically on that, at page 28 of my heads of argument, where I dealt with the question of, Mr Chairman where I dealt with the question of what the meaning of "satisfied" is, and where I referred you to the authorities on the question what kind of discretion the committee has to exercise in respect of the Act. The authorities are clear on this, Mr Chairman, the discretion is not an unfettered discretion, it is a bound discretion which is bound by jurisdictional facts, and in those authorities it's clear that in a situation such as this the committee should apply its mind according to the requirements of the statute and the tenets of natural justice.

Now, Mr Chairman, it doesn't mean, if we read the Act properly, it doesn't mean that the committee has an unfettered discretion, the question is what kind of discretion does the committee have? The committee must make a decision according to the principles set out in the Act, and as I've indicated to you, on a proper reading of section 20, the only possible interpretation, which is supported by other sub-sections in the Act, is that the full disclosure of all relevant facts relate to a specific act, omission or offence that amnesty is applied for.

Now, Mr Chairman, that means that evidence and facts of an incident which includes a series of offences, but which are not relevant pertaining to a specific act or offence amnesty is sought for, need not be disclosed, because it's not relevant, Mr Chairman, that is the only legal way to look at this. The moment, if you go further than that, you go wider than that, Mr Chairman, the question becomes, what should be disclosed and what not, what is then relevant, how do you decide what is then relevant in respect of amnesty for an act, omission or offence? There is no legal test then. Then it becomes an unfettered discretion, and the Act specifically makes provision for the way the committee has to exercise its discretion in terms of section 20.

There is a further problem, Mr Chairman, in this regard, if full disclosure means going further than simply the facta probanda and the evidence surrounding that, and that is section 31 of the Act, Mr Chairman. Section 31 of the Act, Mr Chairman, deals with the compellability of witnesses and inadmissibility of incriminating evidence given before the commission, and this provides for an incident, for instance the watch incident, where a person who gives evidence before the commission cannot be forced to give an answer which may incriminate him or her except if the commission has complied with the requirements of section 31.2, which means the commission should have consulted with the attorney-general, has satisfied itself that to require such information from such a person is reasonable, necessary and justifiable in an open and democratic society, has satisfied itself that such person has refused or is likely to refuse to answer a question or produce an article, on the grounds that such an answer or article might incriminate him or her. That means, Mr Chairman, that if you have committed a common law offence within the happening of a series of events, you need not give evidence about that if it incriminates you, except if the committee decides that under these circumstances in section 31.2 you should give such evidence.

Now, Mr Chairman, in my example, in the example that we have here, let's say for instance we take the example that the bakkie was taken by one of the policemen and kept at his house, if we take such an example, which did not happen here, we take the example, then that would be a common law offence, which had no political motive and which need not be disclosed at a hearing in terms of section 31, except if the commission forces a person in terms of section 31.2. Now that gives an indication, Mr Chairman, that such facts not relating to the specific offence applied for, can never be facts regarded to be important and relevant for purposes of full disclosure.

ADV DE JAGER: Bakkie, with a political motive?

MR DU PLESSIS: Yes, if you take the bakkie with a political motive, Mr Chairman, and you apply for amnesty for that specific...

ADV DE JAGER: No, but you're not applying for amnesty for that, for taking the bakkie, but you took the bakkie with a political motive, should you disclose it or not?

MR DU PLESSIS: If you took the motive for a political - if, Mr Chairman, if it relates to any of the facta probanda of any of the other offences he applied for, Mr Chairman. If it's not relevant pertaining to any of the other offences, why must any of it be disclosed? It's not relevant, the committee does not have to look at it. In a criminal case for murder, it would not be relevant facts, if you look at the evidence. Obviously the facts would probably be introduced, but it would not be relevant for the decision at the end of the day. The question is, what facts are relevant and the only facts that are relevant are facts pertaining to the specific act, omission or offence.

Now, Mr Chairman, if that is correct, if that is correct, Mr Chairman, that would also lead to the following conclusion, which accords with the heading of the Act, and that is that an applicant will be afforded amnesty if he makes a full disclosure of such criminal actions that he was involved in and he makes full disclosure of the facta probanda.

It would also have the following effect, Mr Chairman, and that is that the only question where contradictory evidence can then ever arise is where there is contradictory evidence pertaining to a relevant fact pertaining to the facta probanda of an offence for which amnesty is applied for, such as in this case. How did the killing take place? Was it because of the alleged assaults, Mamasela's version, or was it because of the shooting, the Port Elizabeth policemen's version? There you have a contradiction in facts and in the evidence pertaining to relevant facts, facta probanda in respect of the application for murder, and there, in that instance, Mr Chairman, and only in that instance, one will then have to make a decision between the different versions.

The interpretation I give to you, Mr Chairman, gives you the opportunity to consider each applicant's application separate from the others, and only consider questions of credibility and contradictions where it becomes necessary. If we do not do that, Mr Chairman, what is going to happen, what will be the end result? You will be forced at the end of the day, Mr Chairman, to accept one version and reject all the others. That would, in this instance, for instance, mean if the interpretation, His Lordship, Mr Justice Ngoepe put to me, if that interpretation is correct, and the question is, did you make full disclosure of the whole sequence of events right from the start to the finish, with no reference to the facta probanda, the question is, how do you make the decision between contradictory versions? The only way you can do it then, Mr Chairman, is to accept one version and reject all the others, which means, in this specific incident, you will have to accept Mamasela's version and reject all the applicants' applications.

ADV DE JAGER: I suppose the conclusion would be, I don't know which version reflects the truth.

MR DU PLESSIS: Well, if you say you don't know which version reflects the truth, Mr Chairman, then you come back to the question, was there full disclosure, and if you come to the conclusion, and I was coming to that point, Mr Chairman, maybe I should come there in proper sequence, if you could just bear with me for a moment.

Mr Chairman, so at the end of the day you may end up in a position that you have to make a decision pertaining to one specific version, say that that is the credible version, we act as if we're a criminal court, we accept that one version, we reject the other versions, and because you reject the other versions, for instance on the question of assault, you cannot then grant amnesty in respect of the abduction, you cannot grant amnesty in respect of any other incident or act or offence applied for. Now was that the intention of the Act, Mr Chairman, if one looks at the heading of the Act and the whole gist of the Act? It could never have been the intention of the Act. It could never have been the intention of the Act. The only, the only time when contradictory evidence becomes important, and where you have to make a decision, is when there is a serious contradiction pertaining to the facta probanda of a specific offence applied for, such as here where you have to decide between how were these people killed, were they assaulted to death or were they shot to death? Mr Chairman, and for that purpose I submit that the question pertaining to the assaults or alleged assaults that the Port Elizabeth security policemen were involved in, and eventually it seems that the evidence was also that Colonel Venter and Warrant Officer Beeslaar were also involved in these assaults, because they didn't apply for amnesty for assaults, Mr Chairman, and because those assaults, if you accept the version that they were shot to death, those assaults did not participate to causing the death of the activists, that information and that evidence is not relevant and that evidence does not constitute relevant facts pertaining to full disclosure.

If they must be prosecuted, so be it, Mr Chairman, then we'll meet Mogoai, Koole and Mamasela in different environments, Mr Chairman, and fortunately for us, we'll know what to expect then.

In respect of the abduction, Mr Chairman, it is my submission that all the applicants, including Koole and Mogoai, made a full disclosure in broad terms of what happened there. There were small little differences in their evidence.

Coming back to Mr De Jager's question, if you sit back and you have four different versions, three main different versions, here and you find that all the witnesses were credible witnesses, and where there are contradictions, it's simply impossible to make a decision, the question is, how should that affect full disclosure, how should that affect full disclosure? Now, Mr Chairman, if you cannot make a finding ...

TAPE CHANGES - POSSIBLE WORDS LOST:

...pertaining to an application for an act of an applicant, that a specific fact should have been disclosed but was not disclosed, which is relevant, the applicant should have the benefit of the doubt, because then you, as a committee, cannot say, on any basis, be it beyond reasonable doubt or on a preponderance of probabilities, that there was a relevant fact that an applicant should have disclosed which he didn't disclose. Only if you say that where there are contradictory versions, you decide on the one and you accept that one and you reject the other one, you would have no problem. If you cannot do that, you have not made a decision between any version and there are no facts which then have objectively been found to exist which an applicant should have disclosed which he did not disclose. So that benefit of the doubt should be afforded to such an applicant, Mr Chairman, and...

CHAIRPERSON: It sounds right though in law, your argument, except that it could make the Amnesty Committee look silly, because it would mean that all of them must be deemed to have made a full disclosure, with conflicting versions.

MR DU PLESSIS: Yes.

CHAIRPERSON: Your argument in law may sound correct, but as I say, it looks a little bit silly that you have got five people, each one making a different version, contradicting the other, and because you are not able to pinpoint a particular fact as a truthful fact which was not disclosed, you give all of them the benefit, you must, you can't give one of them the benefit, in terms of your argument, you probably have to give all of them the benefit.

MR DU PLESSIS: Yes, you have to give all of them the benefit.

CHAIRPERSON: But then, I mean you give five people with opposing different versions, all of them you deem them in terms of the Act to have made a full disclosure...

MR DU PLESSIS: Mr Chairman, there's a good...

CHAIRPERSON: ...(indistinct).

MR DU PLESSIS: No, there's a good reason for that, and a good, and there's a proper substantiation, and that is the following, Mr Chairman: we had this hearing here because of convenience purposes. We could have had the hearing, as envisaged in the Act, for instance in the following way: that one applicant comes and he testifies and he's the applicant, and all other concerned people and implicated persons arrive there, they come and give their versions. Then you've dealt with the one application. Then you have the next person's application and you have to go through the whole procedure again. We are dealing with separate applications, Mr Chairman, separate applications for separate offences. That is how the Act was written. Now

we must remember that this is a very difficult process, it's an administrative process, it's a different process from a criminal court, it's a different process from a civil trial. We are not dealing here with opposing parties, we are not in an adversarial situation here. We are dealing with each separate applicant's application separately, and a good example, while we are doing this, Mr Chairman, is the fact that Colonel Venter's application was heard separately from the other applicants here.

CHAIRPERSON: Yes, but all those applications refer to the same incident.

MR DU PLESSIS: That is true, that is 100% true, they relate to the same incident, but what I'm trying to convey to you is that you have to look at each separate applicant's application separately, which means that if we come back to the vexed question that was posed to me, if you look at Beeslaar's application, and we have a situation where he disclosed one act of assault, that he kicked an activist, and we have a version that he was involved in other kinds of assaults, but nobody has stood up and has said, "No, it's impossible, because I was with Beeslaar the whole time, he never kicked an activist in the way he testified". If we come to that conclusion, that there is no contradictory evidence pertaining to that act of assault, Warrant Officer Beeslaar, if he complies with all the other requirements, should receive amnesty for that act. If he was involved in other assaults which he does not apply for amnesty for, he must be prosecuted. If, for instance, we had evidence of the following nature, that Mogoai came and he said, "Well I was with Beeslaar the whole time, the whole time, and my evidence is that he was involved, not in a kick, that's a lie, he didn't kick anybody, but he hit them with sticks all over the place", then you would have had a contradictory evidence situation, and then the question is, can you make a decision between the two different versions? If you can, then you must. If you can't, the applicant should be afforded the benefit of the doubt. That means that in that situation, in respect of Beeslaar's evidence, he would have complied with the full disclosure question, because you couldn't make a finding, Mr Chairman, that there were other facts and other happenings which shows that he lied about the kick. That must be the deduction at the end of the day, and if the end result is, Mr Chairman, that on different applications of different applicants, even though they differ in respect of certain aspects, you have to give amnesty on those applications, then so be it, Mr Chairman, that is the gist of the Act, that's the meaning of the Act. Otherwise, Mr Chairman, we're going to end up in a situation where every time we have a conflicting version, you can only give to one of the parties amnesty, if there's a conflicting version on one important aspect on facta probanda, you can only give to one of the applicants amnesty, and to the rest you cannot give amnesty, even though they would have been involved, let's say 90% of the incident would have been purely politically motivated, 100% correct, fully disclosed, you will not be able to give them amnesty. In this incident it would mean, Mr Chairman, if you accept Mogoai's version, for instance, and you accept his version on the assaults, and you accept that all the Port Elizabeth security policemen were involved in the assaults, as Mogoai testifies, you reject the other versions, it means, Mr Chairman, that not one of the other applicants can get amnesty, on the interpretation you put to me, on any of the acts applied for, including the abduction, and that can never, with respect, be so, Mr Chairman.

It must be that you have to make a distinction, you have to look at it in compartments, you have to say, if you look at the abduction, the applicants made full disclosure pertaining to the crime of abduction and they should get amnesty, because all of them, their evidence accords, even Mamasela's evidence is more or less the same, except for the radio and the monitor.

If you get to the assault stage, Mr Chairman, then one should look at the question if there are conflicting versions. The Port Elizabeth applicants do not apply for amnesty for assault. So what you should do is, you should say then, "They don't apply for amnesty for assault, so I am not looking at their applications and any evidence pertaining to assaults. I look at the application of Mogoai, he makes a full disclosure of evidence pertaining to assaults", then you should ask yourself, "Is there a contradictory version pertaining to these assaults?", which says no, he didn't assault them in this way, he assaulted them in that way, or whatever. Then you should look at Mamasela's version. Mamasela's version relates to a different set of facts pertaining to the assault, with reference to the sticks and the irons, etcetera, and the way Koole and Mogoai were involved in the assaults, and then, if...

ADV DE JAGER: But then you've got the other version, that there was no assault at all.

MR DU PLESSIS: Yes, you've got the other version that there was no assault at all, in respect of the assaults, Mr Chairman. But now we're only dealing with Mogoai's application, and then you should make a finding in respect of Mogoai's application, which version should you accept, the version of the other applicants in respect of Mogoai's application, the version of the other applicants that there was no assault, the version of Mogoai and how he was involved in the assaults, or the version of Mamasela? If you cannot make a decision, you'll have to give Mogoai the benefit of the doubt. The same goes for Koole. If you look at Van Zyl's application, Mr Chairman, and we get to the assault stage, we see oh, he didn't apply for amnesty for assault, so we need not bother with it. We go to the next one, we see murder, all right, now we look at the situation pertaining to murder, we look at the facta probanda, and only if you decide that the evidence pertaining to the assaults is relevant pertaining to murder, then you can start looking at the conflicting versions pertaining to the assaults again. If it's not relevant, then you don't look at it, and that is the way, with respect, Mr Chairman, each and every application should be dealt with in this process and this procedure. That would mean that you would look at every applicant's application separately, you would deal with it separately, you would look at every offence separately, deal with it, and make a finding at the end of the day in respect of that.

Now, Mr Chairman, if I could, in that regard, for purposes, make it easier for you in respect of conflicting versions, I have dealt with the evidence pertaining to this matter, from page 192 of my heads of argument - Mr Chairman, I don't know when you would want to, it may be an appropriate time where I'm going over to the evidence, I don't know whether you want to stop, I mean...

ADV DE JAGER: I'm not sure whether, with respect, as far as the evidence is concerned, we've got your heads here, I don't think that that's our problem. We appreciate your effort to assist us with problems in law, but as far as the facts are concerned, we could read your heads...

MR DU PLESSIS: All right, Mr Chairman, maybe I'm making...

ADV DE JAGER: ...as far as I'm concerned.

MR DU PLESSIS: Yes.

ADV DE JAGER: I'm sorry, (indistinct) a problem with my...

CHAIRPERSON: No, that is very true, quite frankly, when we asked for oral argument, we had in mind precisely the points which were raised by Mr Booyens, the point as raised by Mr Booyens regarding the conflict and so on, how we should deal with that kind of situation, because it would have been very difficult to deal with that on paper, and also the points that you have been developing now. We were not really concerned about who said what and - we know all those things, we've got the record proceedings, we've got your (indistinct), but we have always been worried about the question how to deal with the matter where you have got a number of conflicting versions and people want amnesty nonetheless. Really that's the gist of our problem, and quite frankly we wouldn't mind if the parties could restrict themselves to that, and perhaps other things which they feel they should, but that's the gist of our problem.

MR DU PLESSIS: As it pleases you, Mr Chairman, that is why I started with that aspect, and I must say, Mr Chairman, I've had a discussion with Mr Nolte and Mrs Strydom and Mr Britz about this, because I realised during the hearing that this is a vexed question. We've discussed it to and from, Mr Chairman, and the end conclusion we came to is that we should try and give the committee a way out which is justifiable in law, because we're dealing with a legal process here, Mr Chairman. At the end of the day, I know there are all, there are lots of other principles pertaining to this whole procedure, but at the end of the day, if you have to sit down and make a decision on amnesty, it's a legal decision and you have to apply legal principles, and the approach that I've outlined in my argument to you now gives the committee a way out to deal with these vexed problems, and a legal way out to deal with these vexed problems, Mr Chairman.

If this approach which I have propounded now is not accepted, Mr Chairman, I don't know how you're going to deal with it, with respect, it is going to cause a serious problem at the end of the day, because you're going to have to define somewhere the lines that you draw on how do you decide on full disclosure? We have not, there are lots of other applications still coming, Mr Chairman, we don't know what kind of factual situations may arise, where you have, for instance, an intention which was formed to murder somebody, you have a series of events thereafter, all developing into that, which can all be regarded as preparatory acts, and then a year or two years later, you have the murder, and then the question will arise what should be disclosed in respect of this period in between?

I was thinking, for instance, about the Ribeiro matter, where you get closer to that situation, and then the question arises, how much information should an applicant supply in respect of all the planning, all the meetings, everything that took place, as preparatory groundwork for the eventual act that took place, and if you don't have a legal jurisdictional set of rules which you apply, which accord with accepted legal principles, you're going to run into, with respect, Mr Chairman, a minefield.

CHAIRPERSON: Would this be a convenient stage to adjourn, Mr Du Plessis?

MR DU PLESSIS: Sorry, Mr Chairman?

CHAIRPERSON: Oh, well maybe we can still go on, I thought it was close to - maybe we can adjourn at quarter past if you are nearer towards the end.

MR DU PLESSIS: All right, I don't think I'm going to finish, I'm going to be another 15 minutes or so, Mr Chairman.

CHAIRPERSON: Well, maybe we must adjourn and we start in 15 minutes time, at twenty past.

MR DU PLESSIS: Thank you, Mr Chairman.

COMMITTEE ADJOURNS

ON RESUMPTION:

CHAIRPERSON: Mr Du Plessis?

MR DU PLESSIS CONTINUES ARGUMENT: Thank you, Mr Chairman. Mr Chairman, in respect of the evidence, I'm not going to take you through the evidence, as you've pointed out to me, all I want to - the only point I want to make in that regard is, I gave you a summary of the problems in Mogoai's evidence and the problems in Koole's evidence, so that if you come to the conclusion that you have to look at the versions as a whole against each other and not just in respect of contradictory versions where it is relevant, you would be able to do so. My argument in that instance would then be that if you have regard to the problems pointed out by me in the heads of argument pertaining to Mogoai's evidence, and especially Koole's evidence, you should have serious regard to that and there are certain problems which makes their evidence either not truthful in certain instances and not credible in other instances.

I highlighted all the problems in Mamasela's evidence for you, and in my respectful submission, if one has to make a decision between different versions in total, Mamasela's version in total should be rejected.

Mr Chairman, but just in conclusion to the legal argument put to you, my main submission is that it's not necessary to make a decision between full versions of different witnesses. At the end of the day you should only deal with contradictions in the way, in my submission, in the way I've pointed out to you, when it's really relevant in respect of something that pertains to the principles of a specific offence.

Mr Chairman, I may just mention that the legal representatives of the victims cross-examined in respect of certain facts, they put certain versions to the applicants, but they never sought to place any evidence before you, and in that regard I submit that wherever you have a situation where a contradiction arises between some version put by the representatives of the victims, as against the version in evidence by the applicants, one cannot have regard to a version put in cross-examination without ever having been substantiated. So any reference to Mr Feze or people who saw the victims months after the assaults and the deaths, and that they were still living, the one reference that one of the victim's body was found burnt, that can never be taken into account as evidence, and in that regard it cannot stand contradictory to anything the applicants have testified. If the victims wanted to properly contradict the applicants, they could have called these witnesses, and especially Mr Feze, he was present previously, he could have been called as a witness. So in that regard their insinuations and what they - their versions that they put during cross-examination cannot be taken into account.

Mr Chairman, lastly, perhaps I can - if you'll just give me a moment - if I can just shortly explain to you, in respect of the heads of argument, perhaps just for purposes of Mr Sandi, because the other two members have had sight of my heads of argument, the main part of it, what I have done is, I have endeavoured to set out a legal approach to the proper principles which should be applied in respect of an application for amnesty, that relates to section 20.2(a), section 20.2(b) and then obviously section 20.3 and all its different requirements. You will find, perhaps the most important parts I could perhaps highlight for you and give you the page numbers.

I refer to the RAFOLO decision of His Lordship, Mr Justice van Dykhorst on page 7, which was a decision on the old Indemnity Act, but which was a decision pertaining to the same principles that we find in section 20.3, the Norgaad principles, and which gives a good indication of how to deal with, for instance, proportionality and some of the other principles set out in section 20.3. That you'll find on page 7 of the heads of argument.

The reference to the previous Indemnity Acts you'll find on page 14, and in my submission, especially as the current Act makes provision that one can have regard to this, it is important to note the wide test applied in terms of the previous Indemnity Acts.

The Norgaad principles and their applicability is discussed from page 20 to 24, and then again you will find reference to those principles on page 148.

The onus I deal with from page 28, the meaning of the word "satisfied", and I also make common cause with my learned friend, Mr Booyens's argument pertaining to what "satisfied" means.

Page 35 you will see that I started with the requirements of the Act, actually page 33, I deal first with section 21(a) and the meaning of that, then 21(b) on page 35, and that goes on to page 62. You will see that there are references to Cronje and Van der Merwe's evidence. You will remember that in Beeslaar's evidence, he confirmed the correctness of Brigadier Cronje's evidence pertaining to the political background, the struggle and everything concerning that. Brigadier Cronje gave evidence on behalf of all his subordinates when he gave evidence during his amnesty application, and he said that he also accepts responsibility for what his subordinates did, that is why I included a lot of references to that evidence. You will find that until page 62.

Then from page 62, I give you a little bit of background of where the definition of political offence comes from in the Law of Extradition, the international Law of Extradition, and then that goes on until page 74. You will also, if you read that, see where the whole proportionality test comes from and how it is applied in international law.

Then page 74 I deal with the meaning of offence or delict.

Page 76, the words "advised, planned, directed, commanded", section 20.2, and against...

ADV DE JAGER: Your attorney hasn't got perhaps a split pin? Ours...

MR DU PLESSIS: Mr Chairman, I'll give...

ADV DE JAGER: Ours won't last and it's...

MR DU PLESSIS: I'm sorry I can...

ADV DE JAGER: ...falling apart.

MR DU PLESSIS: I can give you an extra one, Mr Chairman, I'll make - loosen of mine.

ADV DE JAGER: It's not only my problem, it's everybody's problem.

MR DU PLESSIS: I beg your pardon, Mr Chairman I had to do this on Saturday and those were the only split pins we could buy at CNA. I asked for longer ones, but they didn't have longer ones, Mr Chairman.

Then, Mr Chairman, you will see section 20, it should be referenced 20(3), page 77, oh sorry, no, it's 22(a), deals with that section and then 22(b), page 80, and that goes on until page 125, where you will see I've started to deal with section 20(3).

ADV DE JAGER: Mr Du Plessis, I really think those aspects, you know where we would find those things, we will find it, we were going through these arguments, we've already done that and the aspects we want to ask some questions about, we may have some more questions, I've already posed that to you and I don't think it's necessary for you to go through this anymore.

MR DU PLESSIS: (Indistinct) to do this for Mr Sandi's sake, but if it's not necessary, then I won't, I won't. Right, you will read it, Mr Chairman.

May I just mention one last aspect, Mr Chairman, and that is that I have referred to certain documents which I haven't provided you the annexures again of, because you know the volume of the annexures. If any of the annexures may be relevant, and for purposes of Mr Sandi, if he wants any of the annexures to read a little bit further about that, I would please request that such a request be made and I'll make it available immediately. Mr Sandi the annexures were 1 500 pages, so I didn't want to make it available to everybody again, it was made available to the Truth Commission previously in the Cronje matter.

ADV SANDI: Yes, but those annexures, aren't they transcripts of previous proceedings before this committee?

MR DU PLESSIS: No, no, Mr Chairman, some of the annexures here are for instance the Norgaad report, which was the report of Professor Norgaad, where he applied the principles of question 20.3 in Namibia and the way he applied it. I've dealt with it fully in the heads of argument, I don't think it's going to be necessary to read some of those annexures, but if there are some of the documents that you want to read further, please don't hesitate, we'll make it available.

Mr Chairman, I don't know if you want anything further from me on the argument presented to you in respect of full disclosure?

CHAIRPERSON: No, at least not for now.

MR DU PLESSIS: Thank you, Mr Chairman.

CHAIRPERSON: Mr Lamey?

MR LAMEY: Thank you, Mr Chairman.

MR LAMEY IN ARGUMENT: Mr Chairman, the medico legal report that has been handed in, may I request that it be accepted as EXHIBIT W, I think W would be the next numbering of exhibits?

CHAIRPERSON: It will be Exhibit W.

MR LAMEY: W?

CHAIRPERSON: That's correct.

MEDICO LEGAL REPORT HANDED IN AS EXHIBIT W

MR LAMEY: Mr Chairman, this medico legal was only finalised on Saturday. I haven't dealt with it in my heads of argument. By means of oral argument, I would say that the contents thereof speaks for itself. I can just indicate that there's a report, Dr Kruger was instructed to do the medical legal examination. For purposes of compiling the report, Mr Koole was also sent to the University of Pretoria, where a biokeneticist conducted an examination, the report of a certain Esmé Heidenreich forms part of these documents, and then there's also a report, which was also done at the request of Dr Kruger from Dr Peter Kritzinger, a neurologist, who also did certain tests.

I merely want to, and this is, the relevance of this pertains more to the evidence of Mr Mamasela, who testified to the manner in which Mr Koole, with brute force, strangled Mr Hashe with both hands for approximately half an hour until he was lifeless.

Now, the conclusion, following the test that has been done, to which Dr Kruger arrives is that the - and in the conclusion part he says, he comes to the conclusion that it is improbable that he could have done so at the time of the alleged offence as a result of the previously sustained injury on his right hand.

CHAIRPERSON: Mr Nyoka and Ms Hartle, have you seen this report and the conclusion thereof?

MR NYOKA: I have seen the report, Mr Chairman. (Indistinct).

CHAIRPERSON: Do you accept the correctness of what stands in the conclusion...

MR NYOKA: On the face of it, yes.

CHAIRPERSON: Or do you place it in dispute?

MR NYOKA: On the face of it, yes, Mr Chairman, on the face of it, yes, we accept it.

CHAIRPERSON: Mrs Hartle?

MS HARTLE: We do as well, Mr Chairman, accept it on the face of it.

CHAIRPERSON: Sorry?

MS HARTLE: We accept it as the truth on the face of it.

CHAIRPERSON: I'm really not sure I understand what that means.

MS HARTLE: Mr Chairman, we accept that what is stated in the report is what - we accept the correctness of what is stated in the report by the medical practitioner. We don't have any evidence to gainsay that.

CHAIRPERSON: You accept that the conclusion he comes to, he says:-

"I come to the conclusion that because of an injury, Mr Koole, or a previous injury he sustained earlier, that it is improbable that he, because of an injury to his right hand, could commit this act being ascribed to him."

MR LAMEY: That it is improbable that he committed the acts that he allegedly have, that have been contributed to him.

CHAIRPERSON: So that is accepted, do I understand you as accepting that?

MR NYOKA: Yes, yes, Mr Chairman.

CHAIRPERSON: Yes, Mr Lamey, you can proceed.

MR LAMEY: Thank you, Mr Chairman.

Mr Chairman, while I'm busy with the evidence of Mamasela, I have made submissions regarding the merit of his evidence, which is contained on page 30 onwards to page 32 of the heads of argument, I'm not going to repeat that. What I merely wish to add here is that Mr Mamasela's evidence, to a great extent is, he's a single witness to a great extent with regard to the seriousness of the assaults as he described it, as well as the fact that it led to the death of the victims. My submission is that the cautionary rule has to be applied in this matter also with regard to his evidence, namely that of a single witness, and I want to also refer to the work of HOFFMAN AND ZEFFERT, THE SOUTH AFRICAN LAW OF EVIDENCE, THE FOURTH EDITION, where on page 573 up to and including 575, the proper approach is to be applied with assessing the evidence of a single witness. In this work, reference is made to the decision of former Appellate Division, by JUDGE OF APPEAL DIEMONT in the matter of S v SAULS AND OTHERS, where the following was stated:-

"There is no rule of thumb test or formula to apply when it comes to a consideration of the credibility of the single witness (see the remarks of RUMPFF, J A IN S v WEBER). The trial judge who will weigh his evidence will consider its merits and demerits and having done so will decide whether it's trustworthy and whether, despite the fact that there are shortcomings or defects or contradictions in the test, he's satisfied that the truth has been told. The cautionary rule referred to by DE VILLIERS, J P in 1932, the first MAKWENA case, may be a guide to a right decision, but it does not mean that the appeal must succeed if any criticism, however slender, of the witness' evidence were well-founded. It has been said more than once that the exercise of caution must not be allowed to displace the exercise of common sense."

What is important here is that, as I read this extract, is that the approach followed by DE VILLIERS, J P IN R v MAKWENA has not been departed from by the Appellate Division. DE VILLIERS, J P said in R v MAKWENA, it's also quoted on page 573 of this work of HOFFMAN AND ZEFFERT...

CHAIRPERSON: Mr Lamey, I think you can accept that we will apply the cautionary rule.

MR LAMEY: Yes, Mr Chairman.

Mr Chairman, in my heads then, I refer to reasons why this committee should not rely on the evidence of Mr Mamasela and, as I say, I am not going to repeat what is stated in the heads of argument.

I want then to come back,Mr Chairman, to the interpretation of the provisions of the Act, which I have dealt with on page 3, up to and including page 5 of the heads of argument. What I have pointed out here is also what my learned friend, Mr Booyens, has referred to, I haven't said it in his exact words, but if one has regard to the spirit and purpose of the interim constitution, the preamble of the Act under which amnesty is to be adjudicated, then my submission is that a narrow approach is not to be followed, and that the more liberal approach would be the proper approach to be followed.

I also state here that with regard to the requirement of full disclosure of all the relevant facts, my interpretation of the Act is that it is aimed at establishing the truth in relation to past events, the motives and circum-stances in which gross violation of human rights occurred, and to enable the committee to determine whether the act is associated with a political objective.

In the paragraph 3, which is page 5 to page 8 of the heads of argument, submissions are made with regard to the requirement of an act associated with a political objective, with reference to the application of Messrs Koole and Mogoai.

I want to highlight the submission that it is clear that the applicants, I'm referring to Mogoai and Koole, were moved to participate by means of orders they received and by means of a false impression created by the members of the Police Security Branch that the PEBCO 3 were only to be interrogated to gain information.

I make these submissions on the assumption of the rejection of the evidence of Mr Mamasela and on also on the assumption that they did not know of any prior plan to kill or eliminate the PEBCO 3 leaders.

They were also motivated by a particular interest to obtain information regarding MK insurgents in the area and possible hidden arms, which were in line with their general duties and in line with the purpose of their presence in Port Elizabeth.

Their participation in the assaults had been motivated, according to their own evidence, to obtain information from the activists who were not co-operative and refused to divulge any information.

In this regard, Mr Chairman, I have also referred to extracts of the evidence of Venter, who testified in the previous hearing that he was also under the impression inter alia that the purpose of this whole exercise would have been interrogation, and he also stated that he expected that assaults would take place during such interrogation in order to extract information.

Now, to conclude this aspect, I would submit that, although this possibly was not the real intent of the plan, as evidenced by the testimony of the Port Elizabeth group, certainly Mr Mogoai and Koole did not know this, and their motivation was therefore bona fide with regard to their participation.

I also make the submission, I submit that they therefore meet the requirements of the Act and the offences which they have applied amnesty for is an act or offence associated with a political objective.

The alternative submission is made under paragraph 3.2.7, that they at least had reasonable grounds to believe that they were acting in the course and scope of their duties, as stipulated in section 20.2(f) of the Act.

Mr Chairman, in paragraph 4, I deal in general with the requirement of full disclosure of all relevant facts. It also is correct that this is the most difficult question to, perhaps to decide in this case, and my submissions as to how the committee should approach this requirement is stated under this paragraph 4. What must be borne out here is also as to what my learned friends have pointed out, that we don't have any contradictory evidence by the family members of the victims who are opposing these applications. We have a line, or co-applicants, a situation of co-applicants, in my submission the individual merits of their applications should be considered and in order to determine whether the individual applicants have fulfilled the requirement of full disclosure of all the relevant facts, my submission is that the probabilities of each applicant's version, in order to determine whether there has been a full disclosure of the relevant facts, is to be considered, and I further make the submission that an applicant under these circumstances can only fail to meet the requirement of full disclosure of the relevant facts should the committee be in a position to make a finding that a particular applicant's version is improbable or for any reason not trustworthy.

I may add, Mr Chairman, that I have based my heads on the assumption that the requirement of full disclosure is to be tested on the probabilities. I'm not saying that, in order to determine that, the committee should weigh up, or have to make a finding necessarily that the other applicants' versions are improbable in comparison to that of the applicants that I represent, I merely say that if a particular applicant's version is probable, not for any reason, and to, or trustworthy, then he meets the requirement of making the full disclosure.

I want to also add that Mr Booyens has made the submission that the requirements are that the committee has to be satisfied, and this does not indicate an onus. I also say that I do agree with that approach, I have based my submissions on the assumption that the committee will weigh up the probabilities, and therefore I have addressed also the evidence on the dispute of facts on the basis of a probability finding to be made.

I want to submit that if the committee comes to the conclusion that, for instance, the version of Mr Mogoai, insofar as their version, there's a dispute in certain aspects of their version with the other applicants, that if the committee finds that their version is probably true, then they should be granted amnesty. If there's an equal probability with regard to a dispute of fact which has been testified by the other applicants, and if that version is found to be equally probable, then still they would qualify to be granted amnesty.

I then deal with the application of the probabilities of the applicant measured against that of their co-applicants and against other objective or undisputed facts, in paragraph 5, and I have approached it on the basis of what I perceive to be the major dispute of facts with regard to the question whether the applicants knew, that is Koole and Mogoai, of a prior plan to kidnap the PEBCO 3 and who apprehended the victims at the airport, the question whether the PEBCO 3 or any of them were assaulted while being detained at Post Chalmers near Cradock, and the duration of the stay of the applicants at Post Chalmers.

Now, what I want to just explain is that these submissions are made on the assumption that the committee is duty bound to weigh up the probabilities with regard to these disputes, and in paragraph 5.2 I deal with the probabilities with regard to question A and why I state that, or why I make the submission that the version of Koole and Mogoai cannot be said to be improbable with regard to that question.

The dispute of facts regarding the assaults are dealt with in paragraph 5.3, and there also the reasons for the submission why these assaults did take place as a matter of probability, as testified to by Messrs Koole and Mogoai, are outlined.

And then the duration of the stay, which I make the submission also that this aspect of dispute is very much closely related to the previous question whether assaults did take place.

Paragraph 6, I have made submissions regarding to the credibility of Messrs Mogoai and Koole, and the gist of this is that, in my respectful submission, Mr Mogoai was an impressive witness, he gave a logical, detailed and clear narration of the events as he recollected it, he was cross-examined at length and in detail, especially about the assaults and other aspects that were in dispute amongst the co-applicants, my submission is he never contradicted himself once. I may just add in a material aspect, a previous statement which has been handed in also proved the consistency in his version. There was a statement, I think it was Exhibit - I can't remember the exhibit now, but the previous police statement that he made. A factor here, which I submit must not be overlooked, is that there is a remarkable ring of truth in his description in which the manner in which Mr Hashe was detained in a room which had rings on the floor and which is depicted in photograph No 13 of Exhibit 2. Now, as opposed to that, a totally different house was pointed out by Mr Nieuwoudt in the bundle of photographs which he has given. Now if one also assumes the distance of these two houses from the one that Mr Mogoai has described, one fails to understand how Mr Mogoai could have been able to give a description of the rings in the house if it wasn't indeed true that Mr Hashe was tied to those rings. The photographs in Exhibit P2 reflect rings in that room, in the old farmhouse, as described by Mr Mogoai, the whole description of that house shown in the photographs actually matches the evidence of Mr Mogoai.

With regard to Mr Koole, it is common cause that a lot of cross-examination centred around a purported previous affidavit which he made. This previous statement is, or the alleged affidavit, could be relevant with regard to a credibility finding, or the trustworthiness of his evidence. What I have indicated under this paragraph dealing with this aspect is that his initial amnesty application referred to a statement in the hands of the attorney-general. That did not specify which statement it was. My submission is, for purposes of deciding whether there was a different version in a previous amnesty application, one is not certain on the evidence of Mr Koole to which statement that referred to, his evidence was that there was another statement, we don't have that statement, so my submission is that that previous statement in a previous application and in the form that has been submitted initially, cannot be taken into account to determine whether there's a discrepancy.

The submission is also made, by virtue of a difficulty that was foreseen, in that initial amnesty applications were submitted on behalf of several State witnesses to the Amnesty Committee during December 1996 by staff of the attorney-general, and when the applicants' attorneys were instructed, round about April, shortly before the, what I call the second cut-off date in May, I know that the cut-off date was extended later until September, there was a very short period in which to consult with the various applicants, and therefore I have attached correspondence between the applicants' attorneys and the Amnesty Committee and where in so many words the concession was made that, provided that short particulars of the acts which the applicants seek amnesty for are merely listed, the applicants may substitute or supplement their applications. Therefore, I make the submission that what is really to be looked at...

ADV DE JAGER: I don't think it can be substituted, it can be supplemented, but I can't imagine that you could apply for amnesty and later withdraw the whole application and make a new application after the cut-off date substituting the previous one, but it would be supplemented, but I don't think we've got, there's problems about that.

MR LAMEY: As it pleases you, Mr Chairman. I think the substitution also came in where the applicants did not have an opportunity to be properly advised by legal representatives, and in the correspondence also provision was made for substitution, for instance where there could have been acts disclosed upon which, upon later closer scrutiny, would not qualify at all to be an act associated with a political objective.

ADV DE JAGER: But there can't be added other acts that have not been asked for - they can't be substituted, as far as I'm concerned, but we haven't got problems with yours, so you need not address...

MR LAMEY: Thank you, Mr Chairman.

Mr Chairman, under this paragraph, I have also dealt with reference to the evidence of De Lange, who admittedly, may I just get back to why I've made the submissions, if the committee finds that there was a previous statement, although then not part of a previous amnesty application, but a previous statement that was made by Mr Koole, I've made submissions why that previous statement does not necessarily impact on his credibility.

I must say that it is clear from Exhibit O and his amnesty application that there are differences. My submission is that those differences are not of such a serious nature that it really impacts on his credibility and that the committee can come to a finding that his evidence before the committee is therefore not trustworthy.

Here before the committee my submission was that his evidence was in line with his supplemented amnesty application. He was cross-examined at length with regard to the dispute of facts by the co-applicants. He was taken through and back with regard to the sequence of the assaults, on whom it was perpetrated, in his oral evidence. It is my submission that his evidence, his oral evidence, coincided with his supplemented application, and the committee also had the advantage of seeing Mr Koole weighing his evidence against the cross-examination about the sequence of the assaults, on whom it was perpetrated, etcetera, and it's my submission that his evidence was not, he didn't contradict himself, neither did he contradict him with regard to his amnesty application in any material respect.

As far as the previous statements are concerned, my submission is also that it's open to serious doubt whether that was properly affirmed to by a commissioner of oaths. Mr De Lange testified and even admitted that the practice was adopted with regard to the amnesty applications also had to be attested to before a commissioner of oaths, that he didn't follow the procedure there, that that amnesty application be attested in front of him in the presence of Mr Koole.

I also make the submission here which I think is a very important aspect here, there must have been a previous document drafted by Mr De Lange, because the Exhibit O reflects portions also of evidence regarding to the pointing out at Cradock. We don't know what the previous document has said, but this brings us in line with the evidence of Mr Koole that he recalls signing another statement at the office of De Lange. Now after the pointing out, a document has been drawn in the office of De Lange, and according to De Lange's evidence, he goes from Pretoria to Brits to have this affidavit signed before him. What is quite awkward about this procedure, Mr Chairman, is that De Lange should have at least foreseen the possibility that when this document is presented to him, that there could, that the witness might possibly not be satisfied with aspects and want to correct them. Now it is therefore quite strange that he drives all the way, in view of that possibility, to Brits, whereas a more expeditious procedure could have been adopted by calling Mr Koole to his office, as he has done before by verifying the contents of the affidavit with him and let him sign it before him under oath...

CHAIRPERSON: Mr Lamey, you know what our problems are, I don't know whether it's really helping us, you're engaged in some hair-splitting exercise, minute details which have got their own dynamics. I don't know whether you are helping us very much about the problems that we have, we have articulated what our problems are in this particular application. We were sitting here together when the evidence was led, we know the evidence, we have got a transcription of the record, and I'm not so sure whether we are deriving a great deal of assistance by engaging in this type of hair-splitting exercise. You know, you can't just make certain submissions which will assume that certain people had dealt improperly with all sorts of motives. We must be careful about that.

MR LAMEY: No, I'm not saying that certain people acted with improper motives...

CHAIRPERSON: Irregularly, you're suggesting they acted irregularly.

MR LAMEY: Well, I'm just saying why, I don't want to go as far as to say that they acted irregularly. The point is, Mr Chairman, is that we have the evidence, I want to make just a submission why the evidence of Mr Koole is probable, because he says that he didn't sign this before Mr De Lange, that is his evidence, and I'm, as a legal representative, I just feel that I should also make the submission with regard to the probability of this aspect, but I've also made the submission, Mr Chairman, in my heads, and that is why I say I'm not suggesting any motive on the part of Mr De Lange, all I'm saying is, what I've actually said also is, even if we assume that this was a properly taken affidavit by him with Mr Koole, one would expect there different people or draughtsmen of the affidavit, where they interpret a narration of the events and they express it in certain language, and two people, two different people, have dealt with a witness in drafting an affidavit, that it is expected that there will be differences. My submission is, if one has a look at the gist of that affidavit, purported affidavit...

ADV DE JAGER: I think our problem is not whether you've got those kind of differences. Your client confessed that he assaulted the deceased. Mr Mamasela in fact testified that your client killed the deceased, and that's the difference, whether he assaulted him by slapping or kicking or whatever it means, he assaulted him and that's common cause, but whether he signed an affidavit here or at his house or all those kind of things, we can't, because credibility in our procedure can't be tested to such an extent that we could really find this or that, because there isn't time to do it. Let's stick to the main features. Let's not, as my learned chairman pointed out, let's not go to hair-splitting on all the finer details, let's have whether he, what was the acts he's committed, did he make a full disclosure of the acts connected with the assault?

MR LAMEY: Thank you, Mr Chairman. My submission is that Mr Koole and Mogoai have indeed made a full disclosure with regard to the facts within their knowledge and with regard to the assaults that had taken place. The only person that stands potentially in the way of their evidence in this regard, I submit, is Mr Mamasela's evidence, because according to him, those assaults were much more of a grievous nature and in fact resulted in the death of...

ADV DE JAGER: ...(inaudible)

MR LAMEY: I didn't hear...

ADV DE JAGER: The other applicants, they deny that there was any assault at all.

MR LAMEY: Mr Chairman, the question that I also ask in my heads of argument, why would Mr Koole and Mr Mogoai confess to assaults if that had not taken place? I've also made my submissions in the heads, I could refer to them, but the gist of that is that certain, there are clear indicia(?) of surrounding circumstances, for instance the evidence of the other co-applicants that Hashe disclosed the existence of an AK47 at his sister's house. Now that, and I make the submission that if we assume that these people were, the victims were fearless of the security police, that they were uncooperative, then...

ADV DE JAGER: ...(inaudible)

MR LAMEY: Yes. Mr Chairman, unless there's anything else, I've made my submissions why I also say that the versions of Mr Mogoai and Koole are probable with regard to those aspects in dispute, and I've listed them in my heads of argument. If there's anything else that you want to hear me on, then I will make an attempt to address you thereon.

CHAIRPERSON: This Exhibit W, Dr Kruger, did you know that this man, the deceased, had his hands handcuffed behind his back when he was allegedly throttled, was he told that, if one has to believe the evidence of one of the witnesses?

MR LAMEY: Mr Chairman, the evidence that Mr Kruger was given is to whether it was physically possible for Mr Koole to strangle a person with both hands with brute force for a half an hour until he was lifeless. I didn't give him the total evidence of Mr Mamasela, I instructed him to focus on that aspect because, in my view, that was the most important aspect pertaining to this physical disability, regarding, it was relating to the strangling of Mr Hashe with both hands for half an hour with brute force, as explained by Mr Mamasela until he was lifeless, and in general the nature and the effect of the injury which Mr Koole sustained previously was examined.

I may just refer you, Mr Chairman, to the history of the injury which Dr Kruger also described in the first paragraph here of his report...

CHAIRPERSON: No, I see that, I see that, but the conclusion on which an expert would come, the force thereof would depend on the accuracy of the facts on the basis he so decides? I mean if the factual basis was not accurately given to him, that would affect the validity of his conclusions? I don't know what this man had in mind, I don't know, there's no summary of the facts, he hasn't like experts sometimes do, he hasn't furnished a summary of the scenario and say, "Well this is a problem, I'm told this is what happened, and therefore against the background of that set of facts, my conclusion is that this could not have happened", it's not there. It may be that he was under the impression that he was asked to comment on whether Mr Koole could alone strangle an adult person and overcome him, overcome with brute force and then strangled him to death, I don't know, but I want to know whether in particular he was told that the victim, whether he was told that there's an allegation that the victim, at the time when he was strangled to death, had his hands handcuffed behind him?

MR LAMEY: May I take one instruction please? Mr Chairman, yes, Dr Kruger wasn't told that the hands of Mr Hashe was tied behind his back at that stage, but I don't think that was, that is the evidence of Mr Mamasela, but I think that, I don't think that was the evidence of Mr Koole or Mr Mogoai at that stage.

CHAIRPERSON: If we accept Mamasela's evidence, which we are not saying we are going to, how valid then, or how useful then, is Dr Kruger's opinion...

MR LAMEY: Well...

CHAIRPERSON: ...if he was not told that the victim had his hands handcuffed at the time when he was strangled?

MR LAMEY: Mr Chairman, the summary of the gist of what was given to Dr Kruger is stated here in his conclusion, he says:-

"I was requested as an expert to investigate the physical injury to Mr Koole who allegedly throttled a person by using brute force for a period of about half an hour until the person was lifeless."

So that aspect was the gist of Mr Mamasela's evidence, and those...

ADV DE JAGER: I think the problem is whether, even if he's got this problem, suppose Mr Hashe was, for instance, unconscious, would he be in a position to exert the necessary pressure to strangle him, or to kill him, if there's no resistance, with his weaker hand, or not? 

MR LAMEY: Mr Chairman, yes, we don't have the advantage of Dr Kruger here and be in a position to answer to all those aspects, but what has been put to him, as what Mr Mamasela has testified, that this was done with both hands. Dr Kruger hasn't made a finding that there's anything wrong with the left hand of Mr Koole, that is conceded, but Mr Mamasela testified and clearly described a manner which was ferocious, in his own terms, with brute force, with both hands, a strangling that actually killed Mr Hashe.

CHAIRPERSON: Why did the police take such a useless person with them, to go and help them kidnap some people?

MR LAMEY: Well, Mr Chairman, certainly Mr Koole was not a lame person, he was able to function to a certain extent, he had knowledge and experience and in my view was, as he also testified, that he was more of an overseeing, a supervisory capacity of the Askaris underneath him.

CHAIRPERSON: If he was so handicapped as not to be able to strangle to death somebody who, for example, is unconscious or has had his hands back tied, handcuffed behind his back, then I don't know of what use he could have ever have been to the police.

MR LAMEY: Mr Chairman, with respect, I think that takes the argument a bit far, that is not automatic, that he wouldn't have been of any use to the police.

CHAIRPERSON: No, I'm surprised he could have been brought all the way from Pretoria to PE when he was so severely handicapped.

MR LAMEY: Well we don't say that he's severely handicapped in general, we say that his right hand is handicapped, and with regard to the, and that is relevant with regard to the strangling of a victim until he was lifeless, but Mr Chairman my submission is that Mr Koole himself said in his evidence that as a result of this handicap he wasn't capable of doing it. All this report says, this gives some corroboration to that evidence and...

CHAIRPERSON: Dr Kruger assumes, he's working on the assumption that Mr Koole's condition today, 12 years later, was exactly the same as it was?

MR LAMEY: No, I can, no, no, he was specifically instructed, and that is what he says:-

"I was further told that the act had taken place during May of..."

it was of particular importance to establish whether that was also the case in 1985.

CHAIRPERSON: How can he possibly, how can Dr Kruger say that, that Mr Koole's condition today is exactly the same as it was 13 years ago?

MR LAMEY: Well he came to that conclusion.

CHAIRPERSON: How can he, how on earth can he come to that?

MR LAMEY: Well perhaps, perhaps, Mr Chairman, he must be called. I've got no problem if we call him, I can arrange for him to be on a flight tonight and be here tomorrow.

CHAIRPERSON: No, no, he'll be giving useless evidence if he was to come here and to say that.

MR LAMEY: Mr Chairman, with respect...

CHAIRPERSON: He never saw him 13 years - how can he say, "I'm seeing this man now, I'm positively saying 13 years ago he was exactly in the same condition"?

MR LAMEY: Mr Chairman, I could just perhaps explain this. If you have been, to an extent, disabled as a result of a gunshot wound in 1980...

CHAIRPERSON: He is going to be told, he never saw him in 1980. If I ask him, if he comes here, the first question I ask him, "Did this man have this injury in 1985?", what is he going to say? He's going to say, "I don't know".

MR LAMEY: No, no, no, that's correct, no, indeed, Mr Chairman, no, that is correct, it is based on the assumption that the injury did take place in 1980.

CHAIRPERSON: Then I will ask him the next question, "How grave or serious was the injury then, in 1995?" He's going to say, "I don't know", isn't it?

MR LAMEY: Well, Mr Chairman, I think that if he was in a position not to come to the conclusion that it was with any reference to 1985, then he would have said, "I cannot comment what the position was in 1985, today I can only come to the conclusion that it's improbable if he does it today", but I can just say that if we assume it is correct that this happened in 1980, which is also the assumption which Dr Kruger makes, clearly this assumption does depend on the evidence of Mr Koole, and if he has been disabled as a result of that incident, then surely one must also give Mr Koole the benefit of the doubt that if this happened in 1980, then as a matter of probability it was also, his right hand was disabled to the extent in 1985.

CHAIRPERSON: We will give Dr Kruger's opinion the weight it deserves, Mr Lamey. We will consider it very seriously and give it the weight that it deserves, not less, not more.

Do you have anything further to say, Mr Lamey?

MR LAMEY: I've got no further submissions.

MR NYOKA IN ARGUMENT: Thank you, Mr Chairman.

Mr Chairman, I wish to deal with my argument in two phases, the first one is a response to counsel's submissions, very briefly, I won't take more than 30 minutes combined, and then the other one is my argument. I have not framed them in the form of heads of argument, but I've prepared the entire argument under headings, as an attorney will do.

Mr Chairman, if Mohamed Ali was present today, he would have envied legal counsel for fanciful footwork in interpreting the meaning of full disclosure, he would have looked like a toddler by comparison. It is submitted that it is fanciful and very technical to argue that one has to make full disclosure about an act or offence for which one has applied for amnesty and not those he or she did not, which are very material and amazed in the evidence that are in dispute, the reasons being that, firstly, the preamble's very first line states that, I quote:-

"To provide for the investigation and the establishment..."

underline "establishment":-

"...of as complete a picture as possible of the nature, causes and extent of gross violation of human rights, and the granting of amnesty to persons who make full disclosure of all relevant facts related to acts associated with a political objective."

The intention of the Act is the bona fides of an applicant, not technical hiding around these issues.

Secondly, section 21 states three requirements independently of each other to be shown and satisfied by an applicant. If the Act or legislature intended full disclosure to relate only to the particular act or omission, it would definitely not have section 21(c) standing on its own as it presently does. It would have incorporated that under (b), that is qualifying (b) to meaning full disclosure of the particular act, and not full disclosure of all relevant facts.

Thirdly, Your Worship, the assault was accompanying part of the entire episode, from the abduction to the murder stage. The relevance relates from the stage of the abduction to that of murder. Furthermore, the assault was closely related to and the build-up to the murder, to the extent that it was relevant for it to be disclosed by those who committed it, even if they did not apply for amnesty for it, and even by those who did not commit it but observed it being committed by others.

In any event, the argument that applicants did not apply for amnesty for assaults falls away when, after being asked under cross-examination, they denied the assaults. Surely the denial is relevant to the issue of credibility, insofar as the offence mainly of murder, as alleged by them, relates, as they denied that the PEBCO 3 died as they alleged. In other words, the applicants implicated in the assault never responded to questions by saying that, quote, "We will not answer those questions as we did not apply for amnesty for them", that was not the answer, it was a flat denial that related to credibility.

The concept of full disclosure is very simple, it is being complicated by the twisting and turning of the concept by legal representatives to suit their clients' cases. Full disclosure means only one thing, to say or write everything relating to what one is saying or writing, and not everything about the elements only of the act, omission or offence, that's a different thing. The concept of disclosure on its own means everything, and the legislature used in addition the word "full" to "disclosure", ex abundanti cautela, out of abundant caution, just to ensure that there is no mistake about the fullness of the disclosure, consistent with the spirit of bona fides of an applicant to uncover human rights violations.

The saying goes, "If it ain't broken, don't fix it", full disclosure is simple and very clear, let's not try to make it complicated here.

ADV DE JAGER: Mr Nyoka, on that argument, suppose there was quite a different occasion of an assault three months prior or three months after this occasion on quite a different person, and that was not disclosed, should we take that non-disclosure in consideration as far as the particular act for which they've applied is concerned?

MR NYOKA: What I'm saying, Mr Chairman, Mr De Jager, is that the full disclosure must relate to that incident, but where there are similarities, it can be argued, even if one is wrong, like I've argued that there was an incident three months later of Mr Jack, where again there are similarities to the one of the PEBCO 3, Mr Nieuwoudt was central in that assault, an instrument was used, and thirdly the reasons for the assault are so similar, I have argued that.

ADV DE JAGER: Ja, but suppose he'd made the disclosure here and he didn't disclose, as he did, he didn't give evidence about Mr Jack's assault in this particular application, I wasn't sitting in the other one, so I don't know anything about it, should I take that into consideration, that he again didn't disclose that act?

MR NYOKA: Not, you should not, Mr Chairman, but we're talking about the PEBCO 3 incident from the abduction stage through to the murder one. Thank you.

Related to this, the TRC process is unique and a new one. It will be highly dangerous and fanciful to use criminal considerations to such a simple requirement like full disclosure if on a charge of murder while not be necessarily convicted separately from assault. That is again using fanciful footwork.

Regarding the argument that there was no opposing evidence on our side, the applicants made sure, when they committed the deed, that such an event was eliminated, but we're relying, to gainsay what they are saying, on the probabilities which I will now come to.

The probabilities of an assault are that, firstly, we are not opposing the applications for amnesty for Mr Mogoai or Mr Koole, although we are going to state for the record that Mr Koole was a very poor witness, but we are definitely opposing the applications for amnesty for all the others, from Mr Snyman to Mr Beeslaar. Why will they make this allegation implicating themselves of an assault if it did not occur? They could easily have only made an application for abduction and not include assault. If they were sensationalising their applications, they could have also further sensationalised it by adding murder, like the other applicants.

Let us leave aside Mogoai and Koole and look at the probabilities. Why were the PEBCO 3, after being abducted from the PE airport, taken about 260 kilometres away to Cradock, instead of being killed within or just outside PE like the Cradock 4 six weeks later on 27 June 1985 if there was no such an assault, and on reaching Post Chalmers, why were they not killed immediately if the objective was a quick kill, why did they have to be interrogated, and even if there was to be an interrogation first, why were they not killed first thing at sunrise in the morning, because that interrogation did not achieve any results, it was of no consequence, and if the presence of Askaris was the prohibiting factor, then the leaders could have been shot with a silenced weapon in the garage before sunrise and their bodies disposed or burnt later on after the departure of the Askaris, and if there was no substantial information acquired, why did the applicants continue with the fruitless exercise of interrogating when there was no meaning, when they knew in the end that there was going to be a violent death, and if there was no assault, and this is very important, why did Mr Hashe volunteer a lie, if there was no assault, and if he did, and the purpose of talking about the AK47 was not to waste time, what time was it that did not have to be wasted, what was the urgency? If you don't want to waste time, you don't volunteer a lie, you volunteer the truth, unless you are being assaulted. If, as alleged, the three were at ease and never assaulted up to the final moment when they sat and drank coffee, their captors, then would they not ask the security policemen and the Askaris who had captured them as to why they were so dramatically abducted from the airport, as to why they were taken so far away, as to why they were never informed of being detained in terms of the security laws or charged of an offence, as to why their heads were covered, according to Mogoai, Koole and Mamasela, Venter and Beeslaar, and why would Mr Beeslaar slightly kick one of the persons merely because he wanted to talk to them, and because his head was covered? Mr Beeslaar could firstly have called out to him by referring to what the person was wearing, or touching him and saying what he wanted to say, he kicked him because an atmosphere of violence was created by the other applicants.

The counter argument has been advanced that if the applicants admitted murder, why would they not admit assault? The replies are threefold.

Firstly, if the assault is admitted, and which happened to be vicious, then the acts committed, that is the assault and murder, would combined be disproportionate to the objectives sought, and thus their actions will neither be political acts with a political motive, but criminal acts with a criminal objective. The case of Rapaulo is only saying that, which was annexed, is only saying that, is counter argument to the fact that in no civilised country can a killing be justified on political grounds, but does not say that if the killing is not accompanied by another offence which is not necessary, such a killing will not comply with a political motive. The refusal to admit the brutal assault is aimed at making the offenders' actions humane from the time of the abduction to the time of drinking coffee at the lounge, drugging them and shooting them while unconscious. Granted, this is not necessary to sustain the argument whether the killing had a political motive, but the abduction on its own is a necessary act towards the killing, because before you have to kill someone, you have to secure his presence or attendance, so the abduction was necessary, but in between the abduction and the murder, there's the assault, which is not necessary, and therefore it means that it went beyond the bounds of political motive. If the act is disproportionate to the objective of political motive, that is the act of assault. Abduction is necessary, because they've got to abduct someone before you kill him.

I have referred also to the Jack incident which is similar, Mr Nieuwoudt was similarly involved in that. The reasons for the assault was the stubbornness, of Mr Jack, like the stubbornness of Mr Hashe was, and he also used an instrument at the PEBCO 3, like he did with Mr Jack.

This argument may be deemed not necessary for argument, but I stand to be corrected if it is wrong, it is my firm belief that it is necessary to show similarities, I've got the right to be wrong.

CHAIRPERSON: And (indistinct) you are right to be wrong?

MR NYOKA: Yes, and I'm enjoying it in the process, Mr Chairman.

The general probabilities, Mr Chairman, I'll just go through briefly, I'm not going to - but I just wanted to deal at length with the assault one, which I've finished. How was the feat accomplished that only those three PEBCO leaders were to be at the airport? My argument is that any person who turned up at the airport would have been killed, but the main one who was targeted was Mr Hashe who was phoned, any other person was going to be killed. It is respectfully submitted therefore that Mr Kotolise and Mr Galela were there by chance, they were not meant to be there, otherwise, if that was to be the case, why did the person who phoned PEBCO offices not phone the president? Out of courtesy you phone the president if you want anything to be done, not someone who's not the president.

How is it that only these three in particular had to be killed when their collective influence in the PEBCO executive started only in March 1985, that is 1 months before their death, whereas political mobilisation and stabilisation started earlier, much earlier in 1994?

TAPE 3 BEGINS - POSSIBLE WORDS LOST:

The bulk of the 80 or 70% of their applications related to generalisation of the political scenario, then only a tiny 20% on the Act.

If the three leaders were shot all at Post Chalmers, then why is it that the three cartridges were not retrieved from the scene by such experienced security officers as a precautionary measure, as already silenced firearm was allegedly used in shooting them so as not to arouse the attention of possible intruders, passers-by and neighbouring farmers, and why was the blood not cleared, because they were shot on the lawn, not on the path wood as alleged by Mr Lotz? (Indistinct) being shot on the head, each body will leave a pool of blood on each spot where each body laid and also a trail of blood from the place where the bodies were shot to the path wood where they were placed?

It is furthermore improbable and strange that if the three deceased were shot by each of the three applicants, only Mr Nieuwoudt remembered who he had shot, and not the other two, who had to ask Mr Nieuwoudt during the hearing as to who they had shot. I will argue that, as they had sat with them and drank coffee cordially, surely they will remember who each of one shot? It's such a traumatic situation, you must know who you shot, unless the (indistinct) was pure theatre on their part to make these shootings real.

If the three bodies were burnt, and burnt for about six hours, after sunset, how could this have occurred without arousing the attention of neighbouring farmers, passing by motorists and even pedestrians, as Post Chalmers was known to be a disused police station and was very close to the National Road?

This argument is fortified by the fact that a silenced weapon had to be used and also the cover of darkness. I make a ridiculous example: if a farmer or a passer-by or motorist was to go there, he would have seen three serious looking males watching over a big fire without any evidence of braai meat or liquor. Surely he will either phoned the Cradock police or the nearest asylum next to Cradock? But suspicion was the last thing in the mind of the applicants, especially under the skilful operative called Mr Van Zyl, he would not have left that to chance.

Also, it is questionable the quantity and quality of the burning material used. It was never, it is submitted, sufficient to sustain such a fire non-stop for six hours, and to have caused the bodies to burn to ashes. Only wood and diesel was used, not even tyres, and dry wood taken next to the river.

Regarding Mr Nieuwoudt's refusal to identify and disclose the PEBCO 3 informer, it is argued that his failure not to mention such an informer was non-compliance with the full disclosure requirement. I have quoted the case of ex parte Minister of Justice R v PILLAY 1945 (A), where the HONOURABLE JUDGE, CHIEF-JUSTICE WATERMEYER said that:-

"The exclusionary rule should only operate when public policy requires the name of the informer or his information to be kept secret because of some confidential relationship between State and informer, or because the State desires such information to be kept secret, for the reason that the informer's information relates to matters in respect of which he might not inform if he were not protected."

The judge goes on to say that:-

"To give a comprehensive definition which will include all such cases will be impossible."

CHAIRPERSON: Sorry, on this point, I don't know, I must tell you that I see that you say that there was an understanding between...

MR NYOKA: Yes.

CHAIRPERSON: ...us the legal representatives?

MR NYOKA: No, not this particular committee.

CHAIRPERSON: The Amnesty Committee?

MR NYOKA: Yes.

CHAIRPERSON: No, it's not meaning an agreement or an understanding. I must tell you that it was a ruling by a full committee of five, three judges and two members, that a person would not be obliged to make such a disclosure, so I don't think you'll get round that.

MR NYOKA: Did it relate to the facts or if someone was mentioning an informer by the way?

CHAIRPERSON: An applicant mentioned an informer, and he was asked to name, to give the name of any informer, and the parties had to argue on that point, we adjourned and the following day they argued, made full submissions around that point and the committee adjourned and deliberated on the issue and the following day we gave the ruling...

MR NYOKA: I wish to submit...

CHAIRPERSON: ...so we can't go around that now, it's a matter of, I think we must just accept that your point won't stand, because there is such a ruling by full committee.

MR NYOKA: Mr Chairman, I therefore do not agree with that ruling, even though it was made. Some decisions are over-turned on appeal and some rulings are not agreed with. I do not, therefore, agree with that ruling, for the reasons stated, it is against public policy that such a person's identity should be concealed, especially in this new concept called the TRC.

CHAIRPERSON: We don't know whether it's against public policy, we don't know whether that person, the following year, for example, may not be stoned to death and all that kind of thing. It's not only your case, by the way, the question of disclosure of informers relates to a number of cases and if we were to go about compelling people to make such a disclosure, I don't know, I don't know whether public policy would require that, I don't know whether, if we go about naming these informers whether the following day they won't be necklaced, we don't know about that, but the fact of the matter is that that is the decision of the Amnesty Committee...

MR NYOKA: Yes.

CHAIRPERSON: ...and we can't get round that point.

MR NYOKA: All right, even in the light of the argument that he should have taken aside the committee and told them in chambers, without us knowing, he will have complied with full disclosure to the committee. We are not sure as to find out who he is, but we want the family to observe him telling the committee who committed that offence, what would he have made with that information? No, we would not have made it, we don't want to know...

MR CHAIRPERSON: You didn't ask for that, I know.

MR NYOKA: No. I'm saying, Mr Chairman, that it...

CHAIRPERSON: It puts paid to your argument, you didn't ask for that, and we can't go around that ruling of the Amnesty Committee, Mr Nyoka, really we cannot.

MR NYOKA: All right.

CHAIRPERSON: We have three members, a committee of five, we three judges made a ruling on that point, and with reference to Appellate Division judgments.

MR NYOKA: And then the last issue on full disclosure is the probability that other people, seniors, parallel members, must have known about the abduction and murder, as I've stated that seriatim point by point, I'm not going to repeat that, but I'm just going to state that it is strange that the regional commissioner who sat with Mr C Snyman in the GSMC Joint Security Management Centre and reported, Mr Niemand reported to him daily, he did not fall within the need to know basis, that he was excluded from being told about the plot to abduct and murder them. It is very, very strange. Brigadier Swart ought to have known. So is the case with the national commissioner, so is the case with the cabinet, especially as Mr Louis le Grange suggested that they must make a plan. Why is it that if you say to someone, "make a plan", the person to whom that suggestion is made do not go back to him and say, "We've done something about what you said in Cradock earlier on in the year, we've done this and this and this", why did that not, why was that not done? And it is strange that coincidentally Mr Le Grange was here a day before the abduction, and did not even see Mr Snyman who was the head of the region.

There is also the question of those seven identical letters which were written a day before the habeas corpus application. They were so identical, whereas three of them emanated from three different cities, Port Elizabeth, Grahamstown, Uitenhage and Cradock, yet they were similar from the first word to the last. If there was no collusion to suppress information, why such an uncanny identification, if people do not know, and how did the applicants, the four of them...

ADV DE JAGER: Can't we accept that there was collusion to suppress the information?

MR NYOKA: Yes. My point is they...

ADV DE JAGER: Was that a fact?

MR NYOKA: Yes. My point is that, Mr Chairman, if there was a collusion, why did none of them say that "we colluded with A, B, C about this"? They said no-one else knew. That is my point.

ADV DE JAGER: But if there wasn't a collusion, these matters would have been known years ago?

MR NYOKA: No. My point is that they should have said, "Yes, we colluded with A, B, C", as part of their full disclosure in this committee. They did not say so. That is my point. I have no argument that there could be collusion, but they denied that. Why did they deny it?

ADV DE JAGER: They testified that they were bona fide and of the belief that they acted on instructions to eliminate people.

MR NYOKA: That is what we are rejecting, that's my point exactly. It went beyond that, they colluded with others, and there was a joint meeting to discuss both the PEBCO 3 and Cradock 4 murders, they were jointly discussed from above, that is exactly my point, but the intention is to conceal those people who have not applied for amnesty, to take the blame, those that applied, they want to take the blame for themselves, for reasons best known to them. I do not want to enter into wild speculation as to why they were not mentioned.

If, on a ridiculous note, you are a couple, you are married, and you say to your children, "Please misuse the family sugar to your children", and your children do so, how could they not tell you and say, "Father and mother, we have embarked on that sweet mission of destruction", and hide behind that on the ground of clandestineness? They will report gladly, because that's the instruction.

So if the instruction from the (indistinct) was to the effect that "you must make a plan, you must eliminate", I find it strange that they didn't go back to them and say, "This is what we have done so far, we have done a grand job of that", it's very ridiculous, even though the interests are not the same, sugar and killing, but it's an appropriate example, just to illustrate the point.

There was also the sufficient cover that they could have used in telling their superiors if they say they did not tell them, sufficient covers being the AZAPO and UDF feud, and also the possibility that the three could have gone into exile, they could have told the JSMC, they could have told the State Security Council that "we have done this, but we have got the cover of the UDF and AZAPO", it was not difficult for them to tell them.

I therefore submit that the entire truth, the whole truth and nothing but the truth, has not been told today and the five applicants are not entitled to amnesty, but I will close by saying that they are physically absent today, but their spirits live in the form of 27 April 1994 and the new constitution. The families accept that reality, but what they cannot accept is why peaceful activists like their husbands, who were engaged in the struggle like the PFP legal opposition party members were engaged, were killed, that is the million dollar question that they cannot accept. I thank you.

CHAIRPERSON: Mrs Hartle?

MS HARTLE IN ARGUMENT: Mr Chairman, my argument is very much in line with my colleague. I'm not going to add anything, except to say that this committee should perhaps take some guidance from the approach adopted in the three bench, three member, decision in the matter of Mr Nieuwoudt in relation to the assault on Mr Magusele Jake, where the requirement of full disclosure of all relevant facts is accorded particular prominence.

The members say that in order for the applicants to comply with the requirement of full disclosure, they must not only give a truthful and complete account of their roles, but also of the roles all other perpetrators in the particular acts forming the subject matter of the amnesty applications.

I have nothing further to add.

CHAIRPERSON: Thank you. Mr Brink?

MR BRINK IN ARGUMENT: Thank you, Mr Chairman, I'll be very brief.

I listened with great interest to the, with respect, very, very persuasive arguments of my learned friends Mr Booyens and Mr Du Plessis justifying in their submission what I would call the single act theory. In other words, you can apply for amnesty for a kidnapping, and that's that episode. Then you can apply for a murder a day later, that's that episode. My submission is that that argument is, with respect, flawed, because what happened in the PEBCO 3 business was an episode commencing physically with the abduction of these men, and terminating with the burning of their bodies and disposal in the Fish River.

Now, full disclosure is, as a phrase, not described in the dictionary, but full details and full is, and if I could just read an excerpt, full, in relation to full details, means, amongst other things, to be complete, reaching the specified user limit, and then again, whole, without abridgement, without abridgement, so the whole full disclosure means exactly that, there must be complete detail submitted by the applicants when bringing their application.

Now, Mr Chairman, the other matter which deserves consideration is that the applications for amnesty do not only concern this committee, but they also concern very, very closely the next of kin, or any surviving victim, and indeed, my learned friend, Mr Booyens, and his very able written heads, which I may say one expects from a member of the Kwazulu/Natal Bar, puts up, as an annexure, the judgment of JUSTICE MAHOMED in the AZAPO matter, which you know about, and if I could refer you then to page 685 of that judgment, which is before you, against the letter (g) or just before the letter (g), if I could just read these couple of sentences:-

"The Amnesty Committee may grant amnesty in respect of the relevant offence only if the perpetrator of the misdeed makes a full disclosure of all relevant facts. If the offender does not, and in consequence thereof the victim or his or her family is not able to discover the truth, the application for amnesty will fail."

ADV SANDI: That's page?

MR BRINK: Page 685, Advocate.

So that what has to be considered is the relevant facts, whether the applicants have made full disclosure in regard to the relevant facts, whether in the sense contended for by my two learned colleagues, namely the single act theory, as I've described it, or whether it should go beyond that, that of course is the very difficult task which faces you, Mr Chairman and your co-members. And of course that is exactly why next of kin and victims are given notice in terms of section 19.4, to enable them to be present, in the hopes that with their legal representatives, if they have a legal representative, that the truth will come out.

Thank you very much.

ADV SANDI: Maybe, Mr Brink, what you've just referred the committee to can be read in conjunction with what appears at page 684 of the same decision, 684(d), where it reads as follows, that is on the general purposes of the Act, the learned judge says the following:-

"The Act seeks to address this massive problem by encouraging the survivors and the dependants of the tortured and the wounded, the maimed and the dead, to unburden their grief publicly to receive the collective recognition of a new nation that they were wronged and crucially to help them to discover what did in truth happen to their loved ones, where and under what circumstances it did happen and who was responsible."

MR BRINK: Yes, Mr Chairman.

CHAIRPERSON: Perhaps I should say that, thank you, Mr Brink, I mean I should say in the end that I'm sure everybody agrees that there must be a full disclosure of all material, relevant facts. I don't think there's a problem about that, they are saying the same thing, counsel for the applicants, you say the same thing, Judge Mahomed, the Chief-Justice Mahomed would say that, I don't think there's a problem about that, I think the problem though is at which stage is a particular fact a material one which had to be disclosed, I think that's just the problem. It's only at that stage that, at that point that people differ, but I don't think there's a problem about the fact that a full disclosure of all material facts needs to be made. The only problem is at which stage does a particular fact become or cease to be a material fact which has to be disclosed, I think that's the only problem.

MR DU PLESSIS: Mr Chairman, may I perhaps be afforded the opportunity, if you would allow me to, just ...

CHAIRPERSON: Yes, briefly.

MR DU PLESSIS: Yes, just to indicate one or two thoughts that arose during the argument of Mr Nyoka, which may assist you in this regard.

Mr Nyoka referred, for instance to the possibility of a meeting where the Cradock 4 and this incident could have been discussed at the same time. If that, let's say, for instance, that was so in this incident and that was proven true, would that have been a fact that should have been disclosed? I'm just trying to create examples for you to indicate the problems one is going to have if you go further than our suggested way of looking at it.

Another possibility: Mr Nyoka spoke about the collusion with A, B and C, and that the names weren't disclosed. Does that requirement go that far, the full disclosure requirement, and how far does it go?

Look at, for instance, reports back to superior officers after the incident, how far does your evidence have to go in that regard, because that is also part of the whole process, how far does it have to go?

Evidence pertaining to the surveillance of the PEBCO 3 and PEBCO as an organisation before the incidents.

Knowledge of the security forces about the PEBCO 3's involvement in political acts that spurred the decision eventually to act against them.

How far does one go, where do you cut it off, where do you, how do you find where to stop? Take for instance the disclosure of informants. The committee themselves made a decision there that informants do not have to be, the names do not have to be disclosed, albeit on the basis of other requirements as well, but at the end of the day the question remains, where do you cut the line, where do you stop it? And Mr Brink gave what I would call the wide interpretation theory of the meaning of full disclosure, but Mr Chairman, it is an unruly horse that is going to throw the rider off one day in one application. Maybe one can get past in this application, maybe the next one, maybe the next five, but we're going to face, at some stage, an application where we're going to have a serious problem with that unruly horse, and I would...

CHAIRPERSON: I think you only have a problem because you made a wrong submission and I didn't respond to it, you argued that we had no discretion, there was no measure of discretion allowed on the part of the Amnesty Committee, which is a wrong argument. The very fact that the Act says we must decide whether there's been a full disclosure of material fact in itself suggests that we have discretion, it is within, it us up to us as the Amnesty Committee to decide whether a particular fact is materially relevant or not, it is for us to decide that, and therefore we are the ones to draw the line, and rightly or wrongly that kind of discretion has been given to us, and we will know as to when this is not a necessary or is not a material fact to be disclosed or not, and we will know as to - it will be for us to say, "Well no, here now we'll be getting on an unruly horse", but the determining factor here is going to be, wisely or unwisely I don't know, but we have that discretion, in other words each case is going to be decided by us in the light of its own circumstances and all that sort of thing.

MR DU PLESSIS: Mr Chairman, I understand that. My argument pertaining to the discretion was not directed to persuade you that you don't have a discretion, all I wanted to say is that the discretion should be exercised with taking into account the requirements of the Act, because the jurisdictional facts were set out in the requirements of the Act. I don't dispute for one moment that you have a discretion, but the submission was simply that the discretion has to be exercised with reference to the jurisdictional facts.

The only last point I want to make, Mr Chairman, is if my learned friend Mr Brink's way of looking at the question of full disclosure is to be accepted, it would lead you necessarily to a situation where one has to make a decision between conflicting versions, and it would, at the end of the day, mean that a lot of applicants who may have left one fact out, or something out of their applications, will be denied amnesty for a series of other criminal offences in respect of which they have made full disclosure, simply because what they didn't testify about or what they left out was part of a series of events, and my submission is, Mr Chairman, that could never have been the intention of the Act. I've yet...

CHAIRPERSON: Sorry, Mr Du Plessis, just one point here, you see, if one looks at the constitution, and the interim constitution in particular, as well as the preamble to this Act, you find that there's a reference to this mythical historic breach. Now if the applicant chooses what he's going to disclose, what he's going to tell the committee as to what happened, now how does the applicant and the victims, or the families of the victims, cross this historic bridge together?

MR DU PLESSIS: No, Mr Chairman, I'm not saying that an applicant can or should withhold relevant information from the committee, that's not the argument. I'm just arguing the question where do you draw the line, where do facts become relevant and when are they not relevant, and all I tried to submit to the committee is, I tried to place before you a legal test to be able to do that, and that was simply the argument.

The other argument is that if you don't apply it on that basis, then it is going to cause all sorts of practical problems, which I tried to place before you to indicate what kind of practical problems it will cause.

CHAIRPERSON: Shouldn't the legal test be, each case has to be dealt with according to its particular circumstances and the evidence that has been led in the case?

MR DU PLESSIS: Mr Chairman, yes, as long as the committee takes into account the jurisdictional facts in the Act, and the requirements in the Act, and obviously, obviously in respect of the discretion, one should take that into account, but one should also remember that if my argument is correct that you should have regard to the facta probanda of each incident and you should have regard to each specific incident for which amnesty is applied for, it's not necessary to have regard to anything further and it was not necessary to disclose anything further around that. That is simply a method of determining what should be fully disclosed or not. If you move further away from those parameters, it may become a very difficult situation, and that was the submission I wanted to make.

At the end of the day, my submission is that the discretion of the committee is not unfettered, but should be limited according to such an interpretation.

As it pleases you.

MR BRINK: Just one question to anybody who could assist me, is there an onus on anybody to convince the committee that a full disclosure hasn't been made?

ADV DE JAGER: Has not been made?

MR BRINK: Has not been made. On what basis should the committee decide whether a full disclosure has been made or not been made?

MR BOOYENS: Mr Chairman, that's the, unless somebody wants to volunteer on that one, it seems to me I'll have to. If one looks at the wording of the Act, the requirement is that the committee must be satisfied (a), (b) and (c), (c) being a full disclosure having been made. Now, satisfied would be the same situation, as I said in my heads of argument, satisfied means an accused in a criminal case hasn't got an onus, but if his evidence is such that the Court finds itself in a position where it says, "I may not believe you, but it may be reasonably possibly true", that is the effect of the cases that I've quoted to you, Mr Chairman, so the onus, if one wants to call it that, and I don't think onus is the right word here...

CHAIRPERSON: No, I agree with you.

MR BOOYENS: I think one would rather call of the, a duty which, it's probably not the correct word, but I think you understand what I'm getting at, Mr Chairman, that there's a duty on him who wants amnesty to put before the Amnesty Committee a certain set of facts, which may not necessarily be true, the committee may feel it's not necessarily true, but as long as there's a reasonable doubt that it may be true, the committee will have to give him the benefit of the doubt there.

If I may just join, in that regard, Mr Chairman, and I promise I won't be long, in something that the chairman said to my learned friend, Mr Du Plessis, "What do we then do if we have got five different applications, all of them different, and we cannot decide which one is the truth?" The logical answer to that seems to me to be, the chairman said it will make the committee look stupid, I do not agree, with all due respect, if you have similarly got a situation of five accused telling different stories, you cannot reject them, they're entitled to the benefit of the doubt, and the biggest problem is, if you've got five applicants, five stories, they tell you five stories, you don't know which one to believe, so any one of them may be true, are you now going to prejudice the man that is telling the truth because you cannot say who you should believe? That is really the question, Mr Chairman.

Mr Chairman, I think that is as far as I can take it, unless there's something else. Thank you.

CHAIRPERSON: We will reserve our judgment. It will be given in due course. We thank everybody who co-operated and helped us to enable us to be here today and to hear the argument. We will adjourn.

COMMITTEE ADJOURN