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DATE:&#9;23-06-1999
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 DATE:&#9;23-06-1999

MATTER:&#9;ARGUMENT - MURDER OF JOHANNES &#9;&#9;&#9;MABOTHA

DAY:&#9;&#9;18

--------------------------------------------------------------------------CHAIRPERSON: We have now reached the end of the evidence in the matter concerning the murder of Johannes Mabotha and we come to argument. I take it, Gentlemen, that, as has happened throughout this hearing, you have had discussions amongst yourselves and have decided on the order of argument.

MR HATTINGH IN ARGUMENT: I will begin, Mr Chairman.

&#9;Mr Chairman, Members of the Committee, I would like to commence my argument by submitting to you that there is no room for an argument that there might have been a misunderstanding between Mr de Kock and Mr Potgieter. It is either the one version, or the other version. I submit to you, Mr Chairman, that Mr Potgieter's version is so improbable that it simply cannot be believed. I will deal with some of the improbabilities. I don't think it's necessary to deal with all of them. There are some aspects that are so glaringly improbable, that, in my submission, that should enable you to make up your mind as to whether you're going to believe Mr de Kock, or whether you're going to believe Mr Potgieter.

&#9;The first of these improbabilities, Mr Chairman, is the 

question as to whether Mabotha was going to be a witness in a high treason trial against Mrs Mandela and possibly other accused. If you look at Mr Potgieter's statement, page 137 of the bundle relating to this incident.

CHAIRMAN: The bundle?

MR HATTINGH: Yes. He says, in paragraph 22.9, perhaps I should start off by 22.8 "I observed the interrogation of Mabotha personally and took a Section 29 statement from him. Although the statement is no longer in my possession and I last studied it during 1989, the core thereof was about the following." He tells you that although he hasn't seen the 29 statement since '89, he can recall the gist of it. Then he sets out 6 points on page 137 and 138. He conceded, in cross-examination, Mr Chairman, that only point 5 and possibly point 6 are relevant to the treason trial, the others are not really relevant to the treason trial. In re-examination he indicated that possibly point 4 could also be relevant. The submission that I would like to make, Mr Chairman, if you examine the 29 statement, Mabotha B, then it becomes clear, in my submission, that that was the only Section 29 statement which he took from Mr Mabotha and that that was the only information that he was able to obtain from Mr Mabotha, and therefore he had no real evidence against Mrs Mandela, from Mr Mabotha. I submit, therefore, Mr Chairman, that it is highly improbable that Mr Mabotha was going to be a witness in a treason trial against Mrs Mandela. On this point, Mr Chairman and Members of the 

Committee, there are various aspects that I would just like to briefly refer to.

&#9;He says that there was another statement and he must have had other information from Mr Mabotha, but he can't remember what the other information was. Why does he remember these points, which he sets out on pages 137 and 138, and not the most important point, or the most important aspect, namely Mabotha's ability to incriminate Mrs Mandela in a high treason trial? That he can't remember and that is what he was investigating. He wasn't investigating the Stompie Sepei murder, that had nothing to do with his investigation as such. He can't remember what evidence Mabotha would have been able to give against Mrs Mandela. The whole way in which he treated Mr Mabotha indicates, Mr Chairman, that he was attempting to obtain further evidence from him. He receives Mr Mabotha, or he places him under detention in terms of Section 29, on the 4th of April. He says Mr Mabotha co-operated with him from the outset and he was able to establish a very good relationship between himself and Mr Mabotha, yet he detains him for the full six months. He can't remember what he put in his report or in his written recommendation to head office and to the minister for the further detention of Mr Mabotha after 28 days, or 30 days. He can't even remember what he put in that report, but he detains him for the full six months and he couldn't really give a satisfactory explanation as to why it was necessary to detain him for the full six months. I submit, Mr Chairman, that he suspected that Mr Mabotha was involved in terrorist activities and that he was hoping to obtain that information from Mr Mabotha and that is why he detained him for the full six months. Only once it became clear to him that he wasn't going to get any further information from Mr Mabotha, did he decide to release him. It is highly improbable that Mr Mabotha would have been a witness in a treason trial against Mrs Mandela.

&#9;The second improbability that I would like to briefly deal with is ...(intervention).

CHAIRMAN: Did you say that he decided to release him?

MR HATTINGH: After six months, Mr Chairman.

CHAIRMAN: So we must accept that Mr Potgieter decided to release...

MR HATTINGH: Mr Mabotha from further detention, yes, yes, 

indeed.

CHAIRMAN: ...(indistinct) the word release.

MR HATTINGH: No, well perhaps I shouldn't use that word now that you've pointed it out, Mr Chairman. He decided that he could no longer detain him, he couln't justify his further detention in terms of Section 29. 

&#9;Now, the second improbability that I'd like to deal with, Mr Chairman, is his version that Mr de Kock agreed to his request to accept Mr Mabotha back at Vlakplaas and to keep him there safely. Having regard to the fact that Mr de Kock testified that he was involved in a very severe and degrading assault upon Mr Mabotha and having regard to the fact that, according to the evidence of Mr Klopper, Mr Bellingan, who was also a member of Vlakplaas, was also involved in that assault, and that Mr Mabotha was further assaulted by Askaris from Vlakplaas at Soweto, I submit, Mr Chairman, that it is highly improbable that Mr de Kock would have agreed to accept him back. Furthermore, Mr de Kock knew that Mr Mabotha had been a member of the ANC, a trained MK member and that he betrayed the ANC by becoming an Askari and that thereafter he betrayed Vlakplaas by going back to the ANC. His evidence is, "I would not have accepted him back in the light of those facts". I submit, with respect, Mr Chairman, that it is highly improbable that he would have agreed to accept him back.

&#9;It's clear that he didn't accept the version that Mr Mabotha had been abducted and I submit that it was reasonable for him not to believe that version because it is clear from the evidence that Mr Mabotha was moving around on his own, he was arrested near Marble Hall or Groblersdal and that he had ample opportunity to return to Vlakplaas, if indeed he'd been abducted. 

CHAIRMAN: That really wasn't the evidence, that he hadn't been abducted, was it? It was evidence that he had turned again, the fact that he was walking around freely?

MR HATTINGH: Yes, I was just going to say, Mr Chairman, even if you accept that he'd been abducted, then he had ample opportunity to get away from his abductors and to return to Vlakplaas.

&#9;The third improbability, Mr Chairman, is why Mr Mabotha would have agreed to go back to Vlakplaas. Once again, he'd been severely assaulted by the commanding officer at Vlakplaas and by another member of Vlakplaas. If one is to believe the version of Mr Kloppers, then also by Askaris. Why would he now be prepared to go back to them?

&#9;Next improbability is ...(intervention)

CHAIRMAN: Isn't there a far stronger reason there,though? Forget about the assaults by de Kock and Klopper. We have, over the course of the years, heard a great deal of evidence about assaults by South African policemen on Askaris, terrorists and other people and they may well have learned to accept this as part of the game, but what I find far more unlikely is, that if the word was out that Mabotha had changed allegiance again after becoming an Askari, that he had then gone back to the ANC, Umkhonto, that he would have named, or was likely to have named all the other Askaris and I would have imagined that would have been an enormous deterrent against his going back to Vlakplaas. There's where he could expect danger from, not from Mr de Kock or Klopper, but the Askaris who had reason to believe that he may well have betrayed them, if betray is the right word in the context that they were in the process of betraying the organisation that had sent them into the country. Be that as it may, it seems to me a very strong reason why he should not have wanted to go back to Vlakplaas.

MR HATTINGH: Yes, indeed, Mr Chairman, that was one of the submissions that I was going to make as well. I submit Mr Chairman, that it is highly unlikely that he would have been so willing to return to Vlakplaas as Mr Potgieter tried to persuade you to believe.

&#9;Next improbability, Mr Chairman. De Kock agrees, according to Mr Potgieter's evidence, to receive him back at Vlakplaas and then promptly, on the day on which he has to go and fetch him, arranges for his murder. He sends people in a car with explosives to Penge Mine and he goes in two vehicles to go and pick him up. They take him directly from there to Penge Mine and they kill him there. That is so improbable, Mr Chairman, that I submit that that simply cannot be accepted. 

&#9;Next improbability is the evidence of Mr Potgieter about the handing over of Mr Mabotha at the De Deur police station. It is clear, Mr Chairman, that Mr Potgieter contradicted his affidavit, which he made, in this matter. Why, if his version is to be accepted, why would Mr de Kock go there? First of all, why would he go personally just to fetch a man who is going to become an Askari? The Vlakplaas commander would go all the way from Vlakplaas to De Deur. Secondly, ...(intervention).

CHAIRMAN: Because there had been a misunderstanding, which you rejected entirely at the beginning. Doesn't this go to show that there might well have been? There is no doubt that Mr de Kock went there, is there?

MR HATTINGH: There is no doubt that he went there, Mr Chairman, but I submit he went there because he had been requested to do something...(intervention).

CHAIRMAN: Because he understood that he was going there to eliminate this man.

MR HATTINGH: Yes, indeed, indeed, Mr Chairman. 

&#9;Now secondly, Mr Chairman, why would he go in two cars if he was simply going to fetch a man to take him to Vlakplaas? Why did Mr Potgieter not give him taxi fare and tell him to go to Vlakplaas, Mr de Kock has agreed and you are willing to go. Why did he not take him personally? He couldn't give you an explanation for this in his evidence, Mr Chairman. The evidence of Mr Potgieter on this aspect is most unsatisfactory, to say the least about it, Mr Chairman. First of all he says "I saw a person in de Kock's car. I believed it was Mr de Kock. I accept now, having heard the evidence of other witnesses, that I may be mistaken in that regard." Why, if he is prepared to accept that, why is he not also prepared to accept that there was another meeting some 2 kilometres away from the police station? Why would he see de Kock's car there, if the evidence is that de Kock was travelling in his car with Mentz? On that version he couldn't possibly have seen Mr de Kock's car at the De Deur police station. Why does he have a recollection of having seen Mr van Niekerk there, if it's on the evidence of Mr de Kock and Mr Britz, Mr van Niekerk was not travelling in Mr de Kock's car? The only explanation for that must be, Mr Chairman, that he did see Mr de Kock's car, he did see Mr de Kock, he did see Mr van Niekerk, but he saw them at the meeting some 2 kilometres away from the police station. He says in his affidavit that he even had a brief discussion with Mr de Kock at the handing over. How could he possibly have made that mistake, Mr Chairman? On de Kock's version, that is correct. They did have a brief discussion when they met, when the three vehicles came together some 2 kilometres away from the police station and therefore his version is, in my submission, the one to be accepted in this regard. The reason for the meeting at that particular place is clear. de Kock didn't want people to observe Mr Mabaotha being handed over to them and that is why this elaborate scheme was agreed upon at the meeting some two kilometres away.

CHAIRMAN: Isn't it more probable that the meeting was for other purposes that we perhaps have not been told about?

Mabotha wasn't at the meeting was he?

MR HATTINGH: He wasn't at the meeting, no.

CHAIRMAN: Wasn't the meeting perhaps held in case it would be necessary to make arrangements about how to hand over an unwilling Mabotha? de Kock wanted to make sure that everything was going to happen smoothly before they went to collect him.

MR HATTINGH: Indeed, Mr Chairman, and that is also why he took so many men with him, to be able to overpower Mr Mabotha, in case he wouldn't come willingly.

&#9;Then Mr Chairman, we come to the evidence about the alternative arrangement that Mr Potgieter says he made with Mr Mabotha. That is so improbable that it's not worthy of reasons, Mr Chairman. He says, "I had two concerns. Firstly, I wanted Mr Mabotha to be available, should he be needed, to testify against Mrs Mandela" and secondly, he needed a place where he would be safe from the ANC. Yet, he arranges with Mr Mabotha, in case he was not happy at Vlakplaas, to go to Pietersburg. He buys him a train ticket knowing that the ANC had already made enquiries about Mr Mabotha's whereabouts at Pietersburg. He says, had he phoned me from Pietersburg, I would then have considered an alternative plan to keep him safely and available as a witness. He doesn't tell you what that plan would have been. He couldn't tell you why he didn't tell Mr Mabotha to phone him from Vlakplaas, or to phone him from Erasmia, or Pretoria? Why did he first have to go to Pietersburg, where he would have been in grave danger from the ANC?

CHAIRMAN: I'm not sure that, as I understood his evidence, and I must say I found it totally confusing, it did appear that his instructions were that he should phone from Pietersburg before he'd gone to his home. He was to travel to Pietersburg and then phone him and he would make arrangements. So, he may not have actually put himself in danger of the ANC, but why he should have to go to Pietersburg rather than telephone from the nearest public call-box is very difficult to understand.

MR HATTINGH: Totally inexplicable.

CHAIRMAN: Because he had to find his way, as I understand it, from Vlakplaas, and you gentlemen being locals can correct me, either to Pretoria or Johannesburg to get a train that would take him to Pietersburg, because the line travels in that direction, I think.

MR HATTINGH: Indeed, Mr Chairman, and why buy him a ticket to travel from Johannesburg? He's going to Vlakplaas, the nearest rail, Pretoria is much closer to Vlakplaas than Johannesburg.

CHAIRMAN: That's a few rand, its easier to send his stooge out to buy a ticket in Johannesburg where there are offices, than to send someone to Pretoria.

MR HATTINGH: That could possibly be, Mr Chairman. I submit that the whole version about him having made alternative arrangements with Mr Mabotha is simply something that he cooked up to explain why he wasn't really, why he didn't make enquiries about Mr Mabotha's whereabouts and why he wasn't particularly concerned about the fact that he'd been told that he was gone, that he was no longer at Vlakplaas. Then, he hands him over. He makes no inquiries, he doesn't phone up to find out how Mr Mabotha was, especially having regard to the fact that he anticipated that Mr Mabotha would not be happy at Vlakplaas. He makes no attempt to contact him in any way whatsoever. He happens to meet Mr de Kock at head office, asks him where Mr Mabotha is and, on being told that he'd left, he makes no further inquiries from Mr de Kock at all. Human nature tells us, Mr Chairman, that he would have asked Mr de Kock "oh, when? Why?" Nothing, nothing of that nature, he simply accepts it and then commences to make his own enquiries and then once he established that Mr Mabotha did not arrive at his family home in Pietersburg, he leaves it there. All of a sudden his concern for Mr Mabotha's safety disappears. He says "at that stage I'd already accepted that there wouldn't be a prosecution of Mrs Mandela and that he would therefore not be required as a witness and therefore I made no further inquiries". All of a sudden he is no longer concerned about Mr Mabotha's safety. He admits that he had the whole security police machinery behind him, he could have called on Mr de Kock and his Askaris to assist in this regard, he did nothing.

I submit that that is so improbable, Mr Chairman.

ADV SANDI: Mr Hattingh, given his evidence, do you believe that he ever made such enquiries? Is it probable that he did make such enquiries, as he claimed to have done?

MR HATTINGH: I submit that the probabilities are that he made no such enquiries, Mr Chairperson. He couldn't produce a document, at first he couldn't remember who he had spoken to and all of a sudden, it now becomes covert inquiry, whereas he has never mentioned that fact before. I submit that the reason why he says that here is because he realises that the family would probably contradict him, if his version is that policemen went to their house to make enquiries about him.

&#9;I submit Mr Chairman, that Mr de Kock's version is far more probable than Mr Potgieter's version. Mr de Kock knew that Mr Mabotha had gone back to the ANC because he'd been told that the man was arrested at Marble Hall or Groblersdal, and that he'd gone back to the ANC. He participated in the assault upon him and the interrogation of Mr Mabotha at Marble Hall and he then realises that Mr Mabotha is now taken into custody by the security police at Soweto. I submit, Mr Chairman, that it is only reasonable to accept that Mr de Kock would have realised that Mr Mabotha had changed allegiance again and that he would probably return to the ANC if he is released from detention.

CHAIRMAN: Mr Hattingh, isn't it also a little surprising that Mr de Kock showed so little interest?

MR HATTINGH: Well, Mr Chairman, I submit that that makes his version more probable. He has now interrogated the man. He says "I couldn't obtain any information that he'd spoken about Vlakplaas and that I had to make arrangements for the safety of the Askaris at Vlakplaas", and he now accepts that the security police will deal with this man. The very fact that he'd made no inquiries thereafter shows how little interest he had in this man any further.

CHAIRMAN: As to whether he had said anything about Vlakplaas, because, really, this so-called interrogation at Marble Hall was largely a brutal assault. Mr de Kock told us that the questioners changed hour by hour. As they got tired, they pushed off and probably went to have a beer and the assault continued, so nobody knew, had a comprehensive story about what he had been telling. Mr de Kock was not there the whole time, none of them were. They were taking this man into a room, they were putting the tube over his face, they were questioning him, they were then taking him outside, assaulting him further, and it was, as far as one knows, nobody was in charge, keeping a note of everything he said, yet after that day of assault, as far as I can gather from the evidence, Mr de Kock never phoned up and said "Look, did he say anything? Has he made a statement? Is there anything in it about Vlakplaas that I should know about?"

MR HATTINGH: Mr Chairman, as far as I recall, that proposition, which you are now putting to me, was never put to Mr de Kock. He was never asked why he didn't, perhaps he could have furnished an explanation, but I concede that one...(mike turned off) unless his version, that he was satisfied that the man had not spoken about Vlakplaas and that he therefore didn't have to take any measures to safeguard the askaris at Vlakplaas, that's his version, and I submit that under those circumstances, he would not have been concerned as to whether Mr Mabotha, or let me rather put it this way, that he wouldn't have been interested in what else Mr Mabotha had to tell the security police during interrogations and so forth. Mr Potgieter conceded the possibility that he may have told, during a discussion with Mr de Kock, may have told him that some of the, shall I call them followers of Mrs Mandela, were in fact involved in the killing of policemen. I think a gentleman by the name of Sithole was mentioned and two or three others, I can't recall exactly how many, and most important, Mr Chairman, he also conceded that at some stage he considered the possiblity that Mr Mabotha himself was involved in such attacks. Now doesn't that make it highly probable that he could have told Mr de Kock exactly that?

That is Mr de Kock's version, Mr Chairman, and I submit that that is the probable version. He'd been told that Mr Mabotha had been involved in attacks, but, at the very least, he was associating himself with people who were responsible for attacks on policemen. 

&#9;I submit therefore, Mr Chairman, that if you accept Mr de Kock's version, then he knew that the man was back with the ANC, he knew that Mr Potgieter had no evidence on which he could really prosecute Mr Mabaotha, he knew that Mr Potgieter was going to have to release him from detention and he realised that if that happens, Mr Mabotha would probably go back to the ANC. He would not have been acceptable at Vlakplaas, Mr Chairman, and for his own safety he would have been obliged to go back to the ANC, to explain to them, listen, I've been arrested and detained in terms of Section 29, I didn't tell them anything and here I am, I'm prepared to co-operate with you and probably go out of his way to prove to them, having been told by them that his matter had been referred to Lusaka, I think he said in his statement, and that they would decide what would happen to him. The probabilities are that Mr de Kock would have accepted that Mr Mabotha would return to Mrs Mandela and become involved in acts of terrorism, which would have included attacks on members of the police. If you accept that, Mr Chairman, then I submit that he clearly had a political motive to kill Mr Mabotha. The objective was a political one, being the killing of Mr Mabotha, in order to ensure that he would not become involved in acts of terrorism again, this trained person, trained in warfare, handling of firearms and so on.

CHAIRMAN: What would you say to the suggestion that the motive for the killing was that he was not prepared to allow Askaris to leave Vlakplaas and return to their previous allegiances.

MR HATTINGH: Mr Chairman, Mr de Kock did say that the fact that Mr Mabotha could give information about Vlakplaas, was a consideration, but it wasn't his primary consideration because he realised that he could have, that he had had ample opportunity to give that information already.

CHAIRMAN: But it would still be an act with a political objective.

MR HATTINGH: Yes, indeed, Mr Chairman and that was still a consideration, as far as he was concerned. If you accept his version, Mr Chairman, then he got the information from a reliable person. When I say reliable, I should rather rephrase that by saying that he obtained the information from a person who should have known, a member of the security police in Soweto, who'd been dealing with Mr Mabotha, who detained him in terms of section 29, and who interrogated him.

He had every reason to accept the information which Mr Potgieter conveyed to him.

&#9; May I refer you, Mr Chairman, then to the document which was handed in on Vlakplaas, as part of Mr de Kock's original application? On page 247 thereof, Mr de Kock deals with members of Vlakplaas using their own discretion. He sets out there that it was expected of them and perhaps more so him, being the commanding officer of Vlakplaas, to use their own discretion. We make various submissions there and we refer inter alia to what Gen. van der Merwe said in this regard on page 248. We quote, Gen. van der Merwe saying, asked the following question, "Now would it be correct that where a commander of a section, as was the case with Mr du Toit, it would not be necessary to go through chanels, for example to the head of the security branch, or the second in command?" This was an instruction which he himself could have given to de Kock without referring to someone above him. Gen. van der Merwe's answer was, "That is correct, Chairperson. To a great extent, in our divisions and branches, we expected of them to act independently. It would have been impossible, in each case, to carry this through to the highest authority." Later on he was asked by my learned friend Mr du Plessis, "secret operations in this department", this is now Intelligence, "are carried out on the basis of an authoritative organisation implying disciplined acceptance of instructions. Lower ranks are commanded and controlled by senior ranks, although decisions are often required on lower levels and, as such, are permitted." van der Merwe's answer was, "Correct, Chairperson". Mr du Plessis then puts it to him, "That was the manner there was acted in the branch, all decision were not taken by senior officers." Gen van der Merwe, "No, as I've already said, people at grassroots level had to, in certain circumstances, make decisions of their own." Now, Mr de Kock made this decision. It is the bundle containing the general submissions, which form part of his original application, and then you will recall Mr Chairman, on the first two days of the hearing of this cluster, we spent two days on Vlakplaas, as such, and on the supplementary affidavit, which was placed before you and I have now been quoting from that supplementary affidavit, Mr Chairman. I placed it in my own bundle, I don't know if it's bundled together in your file.

CHAIRMAN: ...(mike not on) have you had the transcript of his evidence?

MR HATTINGH: Of Mr de Kock's evidence? Yes, Mr Chairman.

I've read it, I don't recall him reading all that into the record, he merely confirmed the contents of that particular document.

CHAIRMAN: Yes, don't leave too quickly at the end of this, I want to get mine from downstairs and make sure I've got the same passage as you.

;MR HATTINGH: I will do that, Mr Chairman.

&#9;Now, Mr de Kock, therefore, had information from a person on whom he could rely. He doesn't say that I received an instruction from Mr Potgieter, he says Mr Potgieter made a certain suggestion, but I then considered that and I independently decided that that is the way the matter should be dealt with. He specifically said Mr Potgieter is not his "lewenslyn", his lifeline or his anchor. He doesn't rely on his suggestion as an excuse for having acted in the way in which he did. He says, "I considered the position and I arrived at the conclusion that the suggestion made by Mr Potgieter was the correct way to deal with Mr Mabotha." I submit, with respect, Mr Chairman, that he acted bona fide, that he was bona fide in his actions in this regard, that he made a full disclosure. He accepted responsibility for his own actions, as well as the actions of the members who served under him and who were involved in this particular incident and I submit that he's made out a clear case for amnesty. I would request you therefore to grant him amnesty, Mr Chairman. We will let you have a written list of the crimes for which he is seeking amnesty. I am aware of the fact that we still owe you such a list also in respect of the other incidents, but we will attend to it.

CHAIRMAN: ...(indistinct) altogether.

MR HATTINGH: Altogether. We'll do that, thank you, Mr Chairman. Those are my submissions, thank you Mr Chairman.

ADV SIBANYONI: Just before you start, I want to ask Mr Hattingh some few questions. Is it not probable that Mabotha was initially abducted by the ANC and thereafter persuaded, we don't know by what means, to return to his old allies, in other words, that he didn't just walk away from Vlakplaas?

MR HATTINGH: I suppose that it's quite possible, Mr Chairman, but nothing really turns on that. It's clear that once he was back with them, probably out of fear for his own safety, he then co-operated with them. He probably went out of his way to prove to them, and he says in his statement, he says in his Section 29 statement, if I may quickly refer you to that particular passage in the statement. I will quickly try and find it. Paragraph 18 on page 4 of Mabotha D, Mr Chairman, he says on the last sentence of paragraph 18, "I kept on denying that I had been arrested and co-operated with the system" and he probably went out of his way to try and convince them that he hadn't been co-operating with the system, so it's quite possible that he was abducted. His abduction, according to this statement, occurred in December of 1988 and he says on page 6 paragraph 22, "I remained in W. Mandela's company from December '88 till 22nd of February 1989."

ADV SIBANYONI: I've got three little, short questions. The second one is, shouldn't he be believed when he said he never spoke about, or shouldn't it be accepted that he never spoke about Vlakplaas, because he was arrested on the 22nd February '89 while he was having in his possession some notes or a report, to talk about Stompie Sepei. One would expect that if he had spoken about Vlakplaas, what would be something sensational to report to the media was about Vlakplaas, a report coming from an Askari, or a person who has been to Vlakplaas personally.

MR HATTINGH: Yes, Mr Chairman, he probably wouldn't have told the ANC that he'd been an Askari at Vlakplaas because in his very statement he says, "I kept on denying that I'd been arrested and that I was co-operating with the system". Therefore, if that is accepted, then one must, in my submission, also accept that he wouldn't have told them about Vlakplaas, because there was evidence in some of the other incidents that we dealt with in this cluster, to the effect that the Askaris at Vlakplaas were considered to be impis, traitors and he must have realised that if he'd confessed to them, that for some months he'd co-operated with Vlakplaas, that his life would probably have been in grave danger. If he'd told them about that, they would no doubt have used that information to cause great embarrasment to the security police by informing the press about it.

ADV SIBANYONI: Yes, and it wouldn't have only come when Mofomela spoke somewhere at the end of the year, somewhere in October 1989.

MR HATTING: That is correct, yes, Mr Chairman, that was when Vlakplaas was really, or that was when the existence of Vlakplaas became public knowledge in the sense that it was published in most newspapers all over the country.

ADV SIBANYONI: The last aspect is whether your client told us everything, the whole truth, insofar as the circumstances when Mabotha was taken from De Deur police station, taken through to Penge Mine in Burgersfort. According to Mr de Kock and the other applicants, he never suspected that there was anything sinister. The circumstances of the handing over was supposed to tell him that there was something going wrong and then also when he arrived at Penge Mine, according to de Kock, he was just operating, asking some few questions, where are the weapons and he just laughed, and also there is one, I can't remember the applicant, who spoke about Mabotha being chained to a pole. Now my question is, have we been told everything?

MR HATTINGH: Mr Chairman, in this regard, if I could just find my note. Mr de Kock's evidence was that there must have been, they must have decided on some plan as to what Mr Mabotha would be told at the meeting that they had there, some two kilometres away from the police station. He just couldn't recall it. He did, in his trial, which was something like three or four years ago, he did say there that, you, Mr Chairman, pointed it out to him, I can't exactly remember, but something to the effect that they would tell Mr Mabotha that they were taking him to the station to catch a train, or something to that effect. There must have been some reason given to Mr Mabotha to persuade him to go willingly. It's just that Mr de Kock can't remember any more what it was, and he says so. He said in his evidence, and that is the note that I would like to try and find, in his evidence he said... Mr Chairman, I did make a note of that, because I wanted to refer you to it in the record, but he specifically said, "we did have such a discussion, we must have had such a discussion, but I cannot remember what the plan was that we decided on." Then I submit that that is reasonable, Mr Chairman. He's not deliberately withhold information from the Committee, he simply says, I cannot recall what the plan was. They probably gave Mr Mabotha some reason as to where they were taking him, and it's clear, according to the evidence of I think it was Mr Flores, that there was a prearranged signal, which was when de Kock drove past them, they then overpowered Mr Mabotha. Up until that stage he went willingly. They overpowered him and handcuffed him and from there on he was certainly not, he certainly didn't go with them willingly, he was forced to go with them. Mr de Kock didn't give evidence about him being handcuffed to a pole, I think that was the evidence which was given by Mr Mentz in his application. Now, Mr Chairman, once again there I would submit to you, although I may be mistaken, but as far as Mr Hugo and myself are concerned, we were not informed of that hearing, and Mr de Kock was certainly not represented. Mr Mentz wasn't cross-examined about that version of his. Mr Mentz was the only person who spoke about that. None of the other people, Mr de Kock, Mr Flores, Mr Britz, none of them tells you about the fact that Mr Mabotha had been handcuffed to a pole, or something to that effect.

ADV SANDI: Is it not correct to say that perhaps the person who is most likely to have told Mr Mabotha, whatever he may have told him, to co-operate and go willingly, is Mr Potgieter? None of the members of Vlakplaas seem to have been present when any conversation took place between Mr Mabotha and Mr Potgieter. There must have been something Mr Potgieter told Mr Mabotha, which must have made him to give his co-operation and that they will not know.

MR HATTING: That is possible, Mr Chairman, but I submit that it's more probable that they would have, if Mr Potgieter had told him something, that he would inform Mr de Kock about that. He would have said to Mr de Kock, "I told him that you are taking him to the railway station", or words to that effect, so that Mr de Kock would know what to say to Mabotha in case he made enquiries as to where they were taking him. I submit that there must have been some excuse given to him, because apparently, on all the evidence, he went willingly. He was probably misled to believe that he was going to be taken either to the station, or perhaps even to Vlakplaas.

CHAIRMAN: Why some excuse if we don't believe Mr Potgieter's version?

MR HATTINGH: Well, Mr Chairperson, the only reason why I say that is, because of the fact that on the evidence, Mr Mabotha seemed to have been quite willing to go with them, he didn't put up any resistance.

CHAIRMAN: No, he'd been in detention for six months, eight months. He'd being obeying orders for eight months. He was told by Potgieter, "okay, get in that car and go with them". So he says, "yes sir" and goes. Except on Mr Potgieter's version, which you have told us we must reject, was he told that he was going to be released? Was he told that the Section 29 was going to lapse? Did he know this, or was this just another thing? He'd been transferred to De Deur Police Station, he'd been transferred to Jan Vorster Square.

MR HATTINGH: We wouldn't know, Mr Chairman. It's possible that he was told, but I'm now going to be ...(intervention)

CHAIRMAN: Because Mr Britz's evidence was to the effect that he was told to get into the car and he got in.

MR HATTINGH: Yes, that is correct, Mr Chairman. Either versions are possible, Mr Chairman. It's possible that he wasn't told anything at all, but it's also possible that Mr Potgieter did give him some excuse because the fact that they suddenly set upon him, overpowered him and handcuffed him, seems to indicate that there was some excuse given to him, which he had accepted and therefore went willingly and it was only when they handcuffed him, that he must have realised that whatever they had told him before, was not the truth.

CHAIRMAN: Because of where they were travelling. You get put into a car and it's said "we're transferring you". Allright, you sit, and suddenly you notice they're not, they're going out into the country somewhere.

MR HATTINGH: Yes, that is also possible, Mr Chairman.

CHAIRMAN: So much of this is conjecture, possiblities, assumptions, this little bit is true, but that bit isn't. Can't we only accept the facts that we know existed and that is that he was taken out of the police station that morning and handed over to the people from Vlakplaas?

MR HATTINGH: That you certainly can accept, yes, Mr Chairman, but I submit that you should also accept that ...(intervention)

CHAIRMAN: ...(indistinct) that morning, it was after 5 o'clock in the afternoon.

MR HATTINGH: Yes, but I submit, Mr Chairman, that Mr de Kock, to the best of his ability, told you everything that he knows about this incident. One must be reminded, this happened in 1989, Mr Chairman, it's a long time ago and this is not as if this was the only type of incident that Mr de

Kock was involved in, he was involved in a lot of incidents, as you will notice from his application for amnesty, Mr Chairman. One can't expect him to remember everything that happened such a long time ago.

MR CORNELIUS IN ARGUMENT: Cornelius on behalf of Britz, Snyman, Vermeulen and Flores. 

&#9; Mr Chairman, I have submitted very brief heads of argunent, which are before the Committee, in which I submit my applicants conform to the requirements of Act 34 of 1995, so I'm not going to discuss each and every section as far as that is concerned.

&#9;It is my submission, Mr Chairman, that in a well-structred organisation like the South African Police, it is clear that the applicants served in a very definite command structure as junior officers and they could be described as footsoldiers. The decision taken by their commanding officer, Mr de Kock, was conveyed to 

them in the form of instructions. They religiously carried out these instructions. As is clear from some of the applications, they also knew that Johannes Mabotha, the unfortunate deceased, had turned to the ANC and that he could be, as Mr Snyman puts it in his application, be branded as a traitor. They also knew that there was sensitive information which could have been disclosed and so it is my submission, in the light of this, that the four applicants, although they received instructions from de Kock, had the necessary political motivation, as required by the Act.

&#9;I would just like to elaborate on four or five small improbabilities which came to my notice during the cross-examination of Mr Potgieter. The one thing that bothered me is the fact that he admitted that they worked on a need-to-know basis, that he gave an extraordinary instruction to Mr de Kock, they reached an agreement for the safe custody of Mr Mabotha and then, although there's an absolute breach of this agreement, he makes no attempt whatsoever to raise it at any of their safety meetings or sanhedrin meetings. He said he attended sanhedrin meetings, but very close to sanhedrin meetings. He made no attempt whatsoever to take this matter any further and investigate this contravention of Mr de Kock. I find that extremely strange.

CHAIRMAN: Well, he made no attempt, on his evidence, to ask de Kock.

MR CORNELIUS: Yes.

CHAIRMAN: Isn't that more improbable than failing to raise it with others at meetings where he might have had to explain why he had done it this way and that way, to find out first what had happened?

MR CORNELIUS: Yes, that is so.

CHAIRMAN: This man might have been sent to a safe place down in the Cape.

MR CORNELIUS: Quite correct, Mr Chairman, that's most improbable to me. Then he goes to all the trouble to draft a telex and send a telex to the family, instead of just picking up the phone and dialing de Kock.

CHAIRMAN: The telex, I understood, was not to the family, but to the police.

MR CORNELIUS: To the police, that's correct, but I mean, it's more effort than to pick up the phone and ask de Kock what happened to his favourite witness.

&#9;The second thing which is highly improbable to me, Mr Chairman, with respect, is the fact that he built up this relationship of trust with Johannes Mabotha and then we find that, although there was a brutal, absolute brutal assault on Johannes Mabotha, Johannes Mabotha does not disclose this to him. I think this would be one of the first things, which I have found in my experience, which the people disclose is an assault, especially this type of assault. It is quite clear that as a result of the Marble Hall assault he must have sustained severe injuries, which he had to recuperate from and I think that explains the strage lapse of time that we find, since the assault, up until the Section 29. Now, to then state that these visits by magistrates and people to prisons, it's very easy to hide somebody, Mr Chairman, and this man had to recuperate and I think ...(intervention)

CHAIRMAN: He would have recuperated from everything by the time he became Section 29, wouldn't he? Two months later.

MR CORNELIUS: Two months should have given him ample time for recuperation.

&#9;The third thing that worries me, Mr Chairman, is the fact that Mr Potgieter came to the perception, during the investigation, that information was leaked to the ANC and to the Winnie Mandela contingency. This he denies. He says he did not disclose this to de Kock. I think, it's very probable he should have disclosed de Kock. To expect that a detainee like Johannes Mabotha should return with the train ticket to Pietersburg from Vlakplaas is highly improbable. If you look at the structure at Vlakplaas at that time, Mr Potgieter should have known what he was releasing Mr Mabotha to.

&#9;As far as my learned colleague, Mr Hattingh, elaborated on the previous meeting, prior to the collection at De Deur, it's clear, Mr Chairman, that this meeting should have taken place, there must have been some logistical approach to arrange this meeting. To expect that they would just arrive in a disorganised manner, as Mr Potgieter is trying to testify, and then take control of Mabotha, is improbable. My colleague also elaborated on this, if we just look at the force that arrived and the arrangements made prior to the collection, it is improbable. Then if we, furthermore, take the testimony of Mr Potgieter that he said, when he phoned Mr de Kock, he's referring to the Marble Hall case, it is improbable, then he's trying to say that he knew much more about the Marble Hall incident.

&#9; What troubled me during my cross-examination of Mr Potgieter was, when I asked him about the arrest, I specifically asked him if he consulted with the arresting officers who arrested Johannes Mabotha at Marble Hall. He said, yes, he did. I said, "Did they convey to you that there was this torture to obtain information from Johannes Mabotha" and he said "no, they did not". Although there was an amplitude of people present at that brutal torture and assault, nobody, everybody seemed not to convey any information to Mr Potgieter, who is the investigating officer. I mean the first logical question which I would ask of the investigating officer is, "what did Mabotha tell you?" Then we get this strange answer that nothing was disclosed. The man was just brutally assaulted and everybody forgot about it. It's highly improbable. 

&#9;I contend, in conclusion, that my applicants, all four of them, have complied with the requirements of the Act and I wish to request the Committee to grant amnesty as I've set out in the handwritten document for the crimes and offences and acts, as set out in this short document, which I would like to table as part of my amnesty application. Thank you, Mr Chairman.

MR HATTINGH: Mr Chairman, before my next colleague argues, may I just, I have found the reference that I was looking for. On page 157 of the record of the proceedings before this Committee, Mr de Kock said, Ms Patel put the following question to him, "No, my question is, the purpose of the question is to ascertain whether there was an arrangement, sorry, an agreement between yourself and Potgieter that this is what would be told to him, to Mabotha, prior to his handing over to you.

de Kock: Chairperson, we did undertake planning, not over the phone, but next to the road where we gathered, a distance from de Deur, just before we moved into position. I am not certain what the nature of our discussion was, but I do believe that this would have been done for the sake of thoroughness, because we had to prepare for the event of Mabotha saying no, I am not going with these people. What I'm trying to say is that we may have foreseen something like that and we made arrangements for that."

CHAIRMAN: Page?

MR HATTINGH: 157 over onto page 158, Mr Chairman and then also on page 207. I am re-examining him and I'm putting the following to him, "And you say you cannot recall what was exactly arranged, but the arrangement and what was said there was done there, where the three vehicles were together there?"

And he says "That is correct, Chairperson."

CHAIRMAN: Can you tell me, or perhaps somebody else may be able to tell me, were the three people who picked up Mabotha known to him? Was there any evidence as to this?

MR HATTINGH: I think there was evidence that, I can't remember exactly who said so, but one or more of them said that they knew him and therefore I assume that they were also known to him, Chairperson.

MR CORNELIUS: Mr Chairman, when Mr Mabotha was at Vlakplaas, if you look at his Section 29 statement, ...(intervention)

CHAIRMAN: He hadn't been there for some 9 months.

MR CORNELIUS: He'd been there, I can give you the dates, Mr Chairman. He says he entered the RSA in 1987, he was arrested...

CHAIRMAN: August 1987 he got arrested. He was offered a job to join the police force.

MR CORNELIUS: He was detained for some 9 months, he said, and then he was released to Vlakplaas. So if you take 9 months from August.

CHAIRMAN: May 1988.

MR CORNELIUS: May 1988 to December 1988, yes, Mr Chairman. Thank you , Mr Chairman.

MR DU PLESSIS: Mr Chairman, Roelof du Plessis on record for Wouter Mentz. 

&#9; I just want to make a few very short observations, Mr Chairman, and submissions, as my client already has received amnesty. Mr Chairman, in respect of the political motive. In the judgment of Wouter Mentz's amnesty application, it was stated that the Committee then accepted that subjectively Mentz believed that the Askari was killed because he became a security risk. Mr Chairman, that is exactly the position all these applicants find themselves in and that is a fact. As you pointed out just now, that is a fact, that was one of the reasons why he was killed. That gives the applicants all a political motive and cadit quaestio, that's the end of the quetsion, Mr Chairman. Any other questions surrounding any other issue, Mr Chairman, are really irrelevant pertaining to this. This is indicated clearly in the evidence of de Kock on pages 27 to 28, pages 40 to 42 and page 46 specifically. Mr Chairman, in the judgment in the bundle of judgments, it appears at page 18.

CHAIRMAN: 18?

MR DU PLESSIS: Yes. And that's the end of the matter, Mr Chairman. That's the end of the enquiry pertaining to political objective, in my submission. 

&#9;Mr Chairman, a few discrepancies appeared in the evidence between the evidence of Mr Mentz and some of the other applicants which, I believe, are totally irrelevant for purposes of judging full disclosure. I just want to mention one or two things, Mr Chairman, and that is that de Kock testified that it was dark, very dark at the place, on pages 49 to 50, and he testified that nobody drank when he was there. He testified that on pages 172 to 173. So there always remains the possibility, Mr Chairman, that he either didn't see them drink, that they did it in such a way that he didn't see them, or at least in respect of Mentz that was the case, and all the other applicants conceded that it was possible that Mentz did consume liquor. They all know Mentz, Mr Chairman, and I also know Mentz. So, Mr Chairman, from that point of view, I submit that there was a possibility that at least from Mentz's point of view, he did consume liquor before and after. 

&#9; Then the question of the handcuff to a pole. Mr Chairman, if he was hancuffed to a pole, or if he was handcuffed, it does not make any difference whatsoever. The question of the chair, in my submission, is also an insignificant issue. 

&#9; And lastly, I just want to make the submission that one should remember that when Mentz testified, he didn't have the benefit of being here, hearing evidence, having his memory spurred by the evidence of other applicants, so one should accept that, to that extent, he testified all alone from his memory and it may be that his memory did fail him in respect of the question of the chair and the question of the drink and the question of the handcuff to the pole. I have no further submission, Mr Chairman, thank you.

MR LAMEY IN ARGUMENT

MR LAMEY: Thank you, Mr Chairman. I have prepared a typed summary of the offences and delicts for which Mr Klopper applies for amnesty and I beg leave to hand it up.

ADV SANDI: Mr Lamey, before you proceed, I just want to come back to Mr du Plessis. Mr du Plessis, just tell me, would it be correct to say in this matter, even if there is no evidence that Mr Mabotha had leaked out anything about Vlakplaas and the involvement of former members of the MK at Vlakplaas, at the time the decision was taken to kill him, he was still a security risk, not so?

MR DU PLESSIS: Yes, he was still a security risk, Mr Chairman, and we must accept that there is no evidence that he had not leaked the information out, but that's as far as it goes. One doesn't know if he did do so. One doesn't know if some evidence was leaked out in some way or another. One would never know if some MK cadres had some information which was leaked out, so on that basis we can only go as far as saying that there's no evidence that any information was leaked out, but he still remained a security risk.

ADV SANDI: Yes, the fact of the matter, as I understand it, is that at some stage or the other, later, he would still leak out this information about Vlakplaas.

MR DU PLESSIS: Yes, there was that possibility, Mr Chairman. There was also the possibility, if he was utilised in any other way, that would have happened because of the fact that he had left Vlakplaas before and he couldn't be trusted anymore. Thank you.

ADV SANDI: Thank you.

MR LAMEY: Thank you, Mr Chairman. 

&#9; Mr Chairman, according to the evidence of Klopper, he was at this stage a sergeant or a warrant officer. He was called to Marble Hall by Maj. Grobelaar, his commanding officer, to apparently assist with interrogation on Mabotha, who was at that stage arrested. He was accompanied by Capt. Jacobs. 

&#9;Mr Chairman, from all the evidence, his version is corroborated in what he stated, that he learned at Marble Hall that the telephone of Winnie Mandela was tapped and through that it was discovered by the security branch, Soweto, that Mabotha had been in contact with Winnie Mandela. Now, this is also corroborated specifically by the Exhibit Mabotha D, and it would also appear that it was, by virtue of this communication with Winnie Mandela, that they managed to arrest him at Marble Hall. 

&#9;Mr Chairman, it is clear also from Mabotha D that Mabotha was a trained MK, that his contact with Winnie Mandela was of great concern, must have been, in all probabilities, of great concern and that further, what Kloppers learned when he arrived at Marble Hall, that this Mabotha was an Askari who absconded from Vlakplaas. Now, that in total, puts in the mind of Kloppers, as an applicant, that here we have a trained person who is finding himself now again among the ranks of the ANC and is, as such, a very dangerous threat to the further security of the state and the security police. Kloppers also testified further that such a person was branded as a traitor. The purpose of the interrogation and the assault, according to him, was to obtain information from him, his cohorts, arms caches, and also the safehouses that he could possibly point out. Now, Mr Chairman, Mr Kloppers couldn't recall exactly what information in this regard was divulged through the interrogation, but if one has regard to the fact that he was taken later that evening to point out certain safehouses, one, in all probability, could infer from that, that Mabotha must have given some information during the interrogation and as a result of that interrogation.

&#9;Mr Chairman, it is my submission that Mr Kloppers has made a full disclosure. He has been frank about the severety of the assault and the way in which it happened. Mr Chairman, I would submit that this assault, although very severe and reprehensible, if one approach, armchair approach to that, but putting it in the context of that time and in the way that a person such as Mabotha and the risk that he posed was viewed by the security forces and specifically the security police, that although very brutal, that this was, to a certain extent, could be understood, if one has regard to specifically his background, his training and the context in which it happened and specifically also against the background that he absconded as an Askari from Vlakplaas. I also wish to mention that although Klopper hasn't specifically mentioned that, that Lieut. du Toit was present, he was actually part of the investigting team there at Marble Hall during that interrogation and being part of the investigting team of Soweto, it must be inferred from that, that there must have been a possibility and a reasonable possibility, that information could possibly be extracted from Mabotha and which could be very useful, from the point of view of the investigating team of Soweto.

&#9;Therefore, my submission, Mr chairman, although this assault was very brutal and reprehensible, I submit that there has been a political motivation made out by Kloppers and a political objective for this, and further, that he has made a full disclosure and therefore he qualifies for amnesty in terms of the Act.

&#9;Thank you, Mr Chairman.

CHAIRMAN: He was very much a baby there, wasn't he? There were senior officers from all over, other stations. It would have been expecting a great deal to have expected him to stand up and protest, wouldn't it?

MR LAMEY: Yes, Mr Chairman. In his background it appears that he only joined the security police in 1987, so he was two years within the security police and despite that, he was also relatively young at that stage.

CHAIRMAN: You're not going to be very long, are you, Mr Wagener?

MR WAGENER IN ARGUMENT: Jan Wagener, Mr Chairman. &#9;Only a few short submissions on behalf of Col. Grobelaar and Brig Schoon. Regarding Col. Grobelaar, Mr Chairman, you will have noticed that in his written application for amnesty, Mr de Kock did not mention anything about the assaults on the farm in Marble Hall, although at the Section 29 hearing he did mention this, but his evidence was that, according to his memory, Col. 

Grobelaar was present during the assault, but he did not partake. This is page 515, page 517, sorry, of that bundle.

In his evidence before this Committee, Mr Chairman, Mr de Kock has stated on a number of occasions and in argument a few minutes ago, Mr Hattingh has again stressed that Mr de Kock has been involved in many incidents. It can't be expected from him to remember everything, so therefore, Mr Chairman, I don't think it was surprising that, under cross-examination, Mr de Kock was unable to dispute the version of Col. Grobelaar that he, that is Grobelaar, was not present at all at the time of the assault, due to problems he had with his vehicle. This is all said in his affidavit, Mabotha B. 

&#9; Mr Chairman, I submit that you will also take into consideration the statement by Grobelaar that he, himself, had also applied for amensty in respect of other incidents and had he committed any criminal offence or delict or been part of it, he could very easily have applied for amnesty in this regard as well. In view thereof, Mr Chairman, on the evidence as it stands before you, I submit that the Committee ought not to make any negative finding in respect of Col. Grobelaar.

&#9;Concerning Brig. Schoon, Mr Chairman, you will have noted the different versions given by Mr de Kock. They are set out in Mabotha A, the affidavit of Brig Schoon. I am not going to repeat that. In his evidence before you in this hearing, he said that, I have it as page 72 of the present record, words to the effect "the problem we had with the Askari no longer existed" and apparently that was about the sum total of what he said to Brig. Schoon. Now, Mr Chairman, one can speculate a lot on this aspect, but it seems that the problem regarding this Askari was that he had run away previously from Vlakplaas and that he had been arrested at a later stage, and he had been detained in terms of Section 29 of the Internal Security Act. With that in mind, Mr Chairman, I submit that you should consider the response by Brig. Schoon in Mabotha A, where he says in paragraph 5, and it is 5(d), that he can't deny that a conversation may have taken place between him and de Kock in that last month of his service as a policeman, which we all now know was quite a turbulent month for the security branch, and that in the process de Kock may have endeavoured to convey some message regarding Mabotha to Schoon. But, Mr Chairman, Brig. Schoon says he is quite convinced that, had that been the position, it would have been done in such indirect way that he could not and did not understand Mr de Kock to mention to him that he had murdered Mabotha. Once again, Mr Chairman, Brig. Schoon says that he had applied for many incidents for amnesty, and you are aware of that, and he could easily have done so in this instance as well, had he been guilty on his own part of some criminal offence. 

&#9; Mr Chairman I think that we can accept that a measure of veiled language did happen in the police, specifically in the security branch at the time, but Mr Chairman, I think one should be cautious not to take this aspect too far. We have heard many examples, some of them I think are quite clearly to mean a certain thing, but also Mr Chairman, we can go on mentioning many other examples, which can mean anything. I think one should be cautious not to take this whole issue of veiled language too far.

CHAIRMAN: Although nobody said it, I should perhaps have asked somebody, it is probable, is it not, that veiled language was used more on telephone calls than when people were talking to one another in the privacy of their offices?

MR WAGENER: Of course, Mr Chairman. So, to cut a long story short, Mr Chairman, I would submit also on behalf of Brig. Schoon that, on the strength of the evidence now before you, that the Committee ought not to make any negative finding in respect of Brig. Schoon to the extent that he knew, or should have, or would have known about the murder of Mr Mabotha. Thank you.

MR ROSSOUW IN ARGUMENT: I'm going to be very brief, Mr Chairman. 

&#9; Mr Chairman, my instructions are from my client not to argue the matter, as he is of the opinion that any finding that this Committee makes concerning his role in this incident, would be 

immaterial. Mr Chairman, he's not an applicant here, therefore the Committee is not required to make a finding as to whether they have satisfied you to grant him amnesty or to refuse him amnesty.

CHAIRMAN: Any finding we would make, as I understand, my colleagues and I have discussed the matter, would be whether on the evidence he has given we would be obliged to reject the evidence of Mr de Kock. It's on that basis only, and where there is a doubt, Mr de Kock is entitled to the benefit of that doubt.

MR ROSSOUW: Indeed. Mr Chairman, as far as the further aspect is concerned, this is also not a criminal court where Mr Potgieter is an accused, so any finding would be immaterial as far as that's concerned. However, Mr Chairman, I do have some aspects which I would just like to point out, which I do not intend to raise in issue, or debate, with the Committee. &#9;Firstly, Mr Chairman, the fact that I'm not going to react to all of the improbabilities that Mr Hattingh has raised and Mr Cornelius, does not mean that we acceed to that and it should not be held against my client at any later stage, should it come to that. Mr Chairman, firstly, from the beginning my client has made his attitude clear that he is not opposing the application of Mr de Kock. He has not said that Mr de Kock is lying and he has told you that the fact that he's made that concession that Mr de Kock is not lying does, not mean that he is not telling the truth. Mr Chairman, the probabilities relating to the circumstances of the investigation that was conducted under Section 29 of Mrs Mandela and whether Mr Mabotha would have been used as a witness, Mr Chairman, with all due respect, not all the documentation is before you, the Section 29 statement is not complete and to hold to that as an absolute fact, Mr Chairman, I think it would be uncalled for under the circumstances. We know, Mr Chairman, that most of the documentation was destroyed and to make a finding on incomplete documentation, would not be fair to any of the applicants or to the implicated party.

&#9;Mr Chairman, so my client's attitude is, the fact that he says that Mr de Kock is not lying does not mean that he is not telling the truth and that, as far as he is concerned, the telephone conversation which took place must definitely have acted as a catalyst for something to happen. Mr Chairman, the words that were used, my client cannot recall them, but he has accepted, he cannot dispute the words that Mr de Kock recalls, and Mr Chairman, as you yourself have indicated, under cross-examination, the word used is open to possible interpretation. As far as the veiled language usage is concerned, Mr Chairman, I fully agree with Mr Wagener that one should not take that too far. To say that in a certain group, yes, Mr Chairman, if there are certain cliches in a certain group that are generally used, one can definitely say there can be no doubt that this is what is meant by a certain term and a certain phrase. Mr Potgieter has told you that somebody said a guy should be "taken out", it had, in the context of the cliches used in the security police, only one meaning. Does that necessarily translate to, make a plan?

&#9;Then you have to go and look, I would submit, at the surrounding circumstances, which brings us to whether there was a shooting at policemen. The possibility, the suspicion that the group in which, or the people in the group around Mrs Mandela was involved in such shootings. Mr Potgieter has come and told you about that. He says, and this might be a reason why Mr de Kock thought this, but he had no evidence about that and he didn't tell Mr de Kock that. Mr Chairman, just on that point, it's interesting that none of the other applicants giving reason for why Mabotha was to be killed, mention that. They all just refer to the security risk as far as leaking information of Vlakplaas is concerned, nothing about shooting at policemen. 

&#9; So Mr Chairman, there is some doubt once again. On the probabilities you might find that it must go in Mr de Kock's favour. My client has said that he's not opposing the application, he's not saying Mr de Kock is lying but it doesn't mean that Mr de Kock can speak for what subjectively went on in the mind of my client when the telephone conversation took place. You see, Mr Chairman, the real question is, what was in his mind at the time when the telephone call was made? Did they there have a meeting of minds that Mr Mabotha was to be killed? You have noted from one of the applications that it was only at Penge Mine that one of the applicants said that after the interrogation it then became clear that now they're going to kill Mabotha, so there's also some doubt as far as that is concerned.

CHAIRMAN: At that stage the explosions were already in position. They had been taken out before they even took him there. I don't have much doubt there.

MR ROSSOUW: Yes, Mr Chairman, except for the fact that he might have been led to believe that they are going to have this training there and that the explosives were for that purpose.

CHAIRMAN: He may have. I am talking about those in charge of the operation. They had no doubt.

MR ROSSOUW: Yes, Mr Chairman, but these people are, I'm not going to take it any further Mr Chairman, what I'm saying is that those aspects are at least open to some doubt. As far as the handing over is concerned, Mr Chairman,let me first say this. Mr Potgieter has been cross-examined extensively and I've noted the attitude of the Committee as far as recollection is concerned and whether he made certain enquiries, and whether he discussed and what he discussed with some people. Mr Chairman, with the greatest of respect, I would challenge anybody to recall exactly what they said and whom they met on the 4th of April 1989, today. It is virtually impossible. Mr Chairman, the extent of the investigation...(intervention)

CHAIRMAN: But when somebody suddenly tells you that your most important witness against one of the leading political figures in the country has gone, you don't ask him where, when? That I find very hard to believe.

MR ROSSOUW: Mr Chairman, that might be so. The fact of the matter is that a further arrangement was made and the fact is that it might be improbable, but it does not mean that he is lying or that he is trying to hide anything when he says that he made an enquiry after that and there's, with all due respect, Mr Chairman, no basis to find that he did not make an enquiry.

CHAIRMAN: Why did he never ask Mr de Kock, the man who had him in his control, who could have told him when he left, how he left? Explain that to me and then say it doesn't affect his credibility.

MR ROSSOUW: Mr Chairman, I am not going to because there is no explanation on the evidence before the Committee, except that Mr Potgieter said that he made his own enquiry. Mr Chairman this is

CHAIRMAN: But we're not interested in his credibility.

MR ROSSOUW: Indeed. I also, in the same sense Mr Chairman, I'm reiterating that I am not attacking the credibility of Mr de Kock, I'm merely pointing out where there are points of difference and that there is a possibility of other interpretations as to what has happened. Whether it was discussed with other people at Soweto police station, at Protea, Mr Chairman, you have noted from the affidavit by Mr Grobelaar that Mr Nienaber, who was the commanding officer at the station, informed him that Mabotha was apparently to be tranferred to Vlakplaas. 

&#9;Mr Chairman, just one aspect and I would submit that the inference that why Mr Mabotha didn't resist at the time of his transfer, that it could have been that it was just a further transfer, Mr Chairman, and that he would have accepted that he's now coming, a policeman, to pick him up. I would submit, Mr Chairman, this was not canvassed, but I cannot for the life of me accept that because to transfer a person under Section 29, you would definitely not clear him out through the District Surgeon, firstly. You would definitely not transfer him in this way. It will have to be a structured transfer with a Writ issued by Head Office, Mr Chairman, so this would not be something that can be accepted as the normal procedure, that would not raise suspicion with Mr Mabotha. The fact is he didn't resist and the fact that he didn't resist is also likely because he agreed with Mr Potgieter that he was going back to Vlakplaas. He was there previously, he was an Askari. That's also a possibility Mr Chairman, it's not only that he was misled or that he thought he was just being transferred to a different facility where he was to be detained further. &#9;I have no further submissions Mr Chairman.

MR MARIBANA: Thank you, Mr Chairman.

CHAIRMAN: I'm looking at the time now, will you be long, the two of you? Should we take an adjournment or do you think we can finish now?

MR MARIBANA: I think we can finish now, Mr Chairman. Mr Chairman my instructions ...(intervention)

CHAIRMAN: Sorry. Ms Patel, what do you think?

MS PATEL: Depending on what Mr Maribana says, I may or may not be too long.

CHAIRMAN: Then perhaps we should take an adjournment now. We'll take a short adjournment.

COMMITTEE ADJOURNS

ON RESUMPTION

MR MARIBANA IN ARGUMENT: Thank you, Mr Chairman. &#9;My instructions, Mr Chairman, are going to make me a man of very few words.

Mr Chairman, it is my instructions not to oppose amnesty to Mr de Kock and the same Mr Chairman, it is my instruction that it applies to the other applicants since they have acted on the instructions of Mr de Kock. Then under &#9;the circumstances, Mr Chairman, I don't think it will be necessary for me to give an 

analysis of evidence before this Honourable Committee. Thank you, Mr Chairman.

CHAIRMAN: Thank you.

MS PATEL IN ARGUMENT: I am thinking whether I should reconsider my position, but maybe not. I'd probably be remiss in my duties to you if I didn't at least say what I had intended to say, Honourable Chairperson.

&#9;Chairperson, in considering this matter, I will ask you when deciding whether the criteria of the Act has been met, I will ask you to consider, in respect of the question of political motivation, whether the decision to kill Mr Mabotha was in fact a reasonable one, as is required in terms of Section 20, subsection (f), Honourable Chairperson.

&#9; Now, let us consider the evidence that we have before us, upon which the decision was in fact taken. Honourable Chairperson, Mr de Kock has stated to us that, had it not, and this is in response to a question from Adv Sandi, he said that had it not been the conversation that he had had with Potgieter, he would not have taken the decision to kill Mr Mabotha. So to a large extent, the content of that discussion is crucial and also the information that Mr de Kock had at that stage about Mr Mabotha is crucial. Mr de Kock has stated that Mr Mabotha was not involved in any covert operations during his time at Vlakplaas and that he didn't have any problems with him before he had deserted. During the interrogation, the first assault, if I may put it that way, after he was arrested, despite the gruesomness of the assault, there was no information given over to Mr de Kock that he had felt had placed Vlakplaas and the position of the Askaris in jeopardy. Honourable Chairperson, it is my respectful submission that that position had not changed in between the period of the initial interrogation at the farm and the time when Mr de Kock had the conversation with Mr Potgieter. 

&#9; We also sit with two versions in terms of whether the question of the attacks on the police, whether that information was ever given to Mr de Kock or not. Be that as it may, Honourable Chairperson, the primary objective of Mr de Kock, in terms of his evidence to us, was to prevent the killing of policemen, that the question of the information on Vlakplaas was of a secondary nature, those were his words to us. During that 6 month period when, or not longer than six months, from the time of Mr Mabotha's arrest to the time of the telephone call, we're looking at some eight months, there was no concern by Mr de Kock as to what security risk Mabotha would pose to Vlakplaas during that time. There was no questioning as to whether Mr Mabotha was still in custody, whether he had been released, or what the position was. So the question of the security risk, Honourable Chairperson, my submission is, was minimal in terms of Mr de Kock at that time.

&#9;I will also ask you to take into consideration, Honourable Chairperson, that when we look at the question of full disclosure, it is my respectful submission that the applicants have not made full disclosure. How probable is it, Honourable Chairperson, that a man, after having been assaulted in the way that he was during that first interrogation, despite what version might have been given to him when he was handed over at De Deur to the people of Vlakplaas, that there wouldn't be some objection from him at some stage? We know that he was handcuffed. It was like drawing teeth trying to get the applicants to admit that there was indeed some kind of scuffle in the van when he was being handcuffed. That was not information that was given to us willingly. Even then the applicants skirted around the issue of whether there was in fact some kind of objection from Mr Mabotha, or not. Then we also have the evidence of Mr Flores, who stated that after Mr Mabotha was handed over, that Britz signalled to them and they stopped the car and de Kock came over and said to Mr Mabotha, "do you think you're clever?" Surely that sets the tone for what was to happen to him afterwards, Honourable Chairperson. 

&#9; Furthermore, it was only Mr Flores who had stated to us that, when Mr Mabotha was in fact at the last moments of his life, that he was begging for his life. None of the other applicants have said that to us and is that not the most probable way in which a man goes down? In fact the other applicants stated, when they were at the mine, at a particular point they realised that Mabotha was going to be killed.

&#9; Furthermore, Honourable Chairperson, in respect of full disclosure and if we look at the first assault, I will ask you to take into consideration that it was not Mr de Kock who had told us about the use of the ice cubes by his fellow, one of his members from Vlakplaas, it was indeed Mr Kloppers who stated that Mr Bellingan was responsible for that. That's in direct contradiction to Mr de Kock. In fact Mr de Kock's evidence is that he was so apalled by what was going on that he left the room, yet it was one of his own members who was responsible for conduct that was reprehensible to him. Also, to take into consideration that both Mr Klopper and I think Mr Grobelaar had stated to us in his affidavit to us, that Mr de Kock was in fact one of the persons who was in charge of that interrogation. Yet he would have us believe that he only questioned Mr Mabotha during the time that he was being given a rest, Honourable Chairperson. My submissions are that that is highly improbable, Honourable Chairperson, that that is the only time in which he would have questioned the man.

CHAIRMAN: But he'd been arrested by another group for another purpose, hadn't he? He was not arrested by de Kock and the Vlakplaas people, he was arrested by the Soweto Security Branch who were investigating Winnie Mandela, as a result of the telephone tap.

MS PATEL: That is correct, Honourable Chairperson, yet Mr de Kock was called very soon after Mr Mabotha was arrested, on the recognition, I would imagine, that Mr de Kock had a crucial role here.

CHAIRMAN: Wasn't it to confirm whether this man had been an Askari? From the way I read the evidence, everyone was very surprised when they suddenly learned that the man they had arrested was an Askari from Vlakplaas.

MS PATEL: That may be so, Honourable Chairperson, but then where was the need then for Mr de Kock to be an important part of the interrogation, if the purpose of having him there was solely to confirm whether or not the man had been an Askari? Would the position then have been that the man is handed over to Mr de Kock separately for a separate interrogation in order to ascertain what kind of risk the desertion might have posed to Vlakplaas? So my submission is that he had a crucial role in that interrogation, it was important to him to know whether his unit was... (intervention)

CHAIRMAN: But the man never was handed over to him, which is what I put to the others. I cannot understand, the whole thing is extremely mysterious. There are all sorts of conjectures and we can go on all day.

MS PATEL: That supports my contention, Honourable Chairperson, that we haven't had full disclosure. The fact that we still need to resort to conjecture about what might have been and what might not have been and look at the probabilities in terms of what possibly could have happened.

Honourable Chairperson, in my respectful submission, the onus lies on the applicants to leave us without any doubt as to exactly what would have happened.

ADV SANDI: Sorry, I just want to make sure that I fully ....

but is there any evidence here that any one of the applicants had a personal grudge or malice against Mr Mabotha?

MS PATEL: No, we have no evidence of that, Honourable Chairperson.

ADV SANDI: Do you accept that they have given a full disclosure insofar as the picture pertaining to the brutal assault, the murder and that the body was subsequently blown up with explosives? 

MS PATEL: That is exactly what I am saying. We don't have a full picture on, my submission is that it is improbable that a man who is going to be led to his death, goes to his death quietly, especially given the history that Mr Mabotha had had with members of Vlakplaas, during the interrogation, the fact that he was assaulted by askaris, the fact that he was handcuffed in the vehicle, the fact that the vehicle was stopped at some stage and Mr de Kock made a sarcastic comment to him, the fact that he was asked, interrogated very briefly about the weapons and then said come, let's go and that's the end of the matter. I'll ask you to accept Mr Flores' evidence to us that the man in fact pleaded for his life, which is something no one else has said to us.

ADV SANDI: Is any one of the applicants in a position to tell us what exactly transpired in the conversation between Mr Potgieter and Mr Mabotha?

MS PATEL: Which conversation are you referring to?

ADV SANDI: The discussions between Mr Potgieter and Mabotha. Mr Potgieter told us that he had a good relationship with Mr Mabotha. Shouldn't we accept that none of them were ever present at any stage during the time Mr Potgieter was having a discussion with Mr Mabotha? They would not know what Mr Potgieter might have told Mr Mabotha which induced him to give what seems to have been co-operation, to go willingly to wherever he was being taken to.

MS PATEL: No, I cannot comment on what Mr Potgieter might or might not have said. I would concede that he might have gone willingly when he was handed over at De Deur. My submission is that that position would have changed as soon as he was handcuffed. That is, in terms of full disclosure, that is the point at which I would say we do not have full disclosure.

CHAIRMAN: Once again, that's an assumption. Here, this is a man who has been captured, interrogated, captured, interrogated, three, four years of it. Now he realises that he's once again been let down. He thought he was going to be taken somewhere for safety. They suddenly jump him and handcuff him. I don't find it very difficult to believe that the man at that stage would think well this is an end to it and just sit and do nothing further. What's he supposed to do? There are three armed men in a vehicle with him and he is handcuffed.

MS PATEL: If that is the case, Honourable Chairperson, why would Mr Flores say to us that he in fact begged for his life, when nobody else said that?

CHAIRMAN: At the last moment he did.

MS PATEL: But Mr de Kock doesn't say that. Mr de Kock is very clear on his evidence to us that Mr Mabotha, when he was in the mine, at that point, he assumes must have realised he was going to be killed, turned around, looked at him, looked as if he was going to say something and then he was shot, which is very different to a man begging for his life, Honourable Chairperson.

CHAIRMAN: That's when Mr de Kock is turning around to get hold of his firearm that he sent for, pulling back the thing to load it, and then he turns around and shoots the man. Did he say something then that Flores heard and de Kock didn't? I'm not prepared to make an assumption.

MS PATEL: With the greatest of respect, Honourable Chairperson, they were present together at the point where Mr Mabotha was shot and killed. They must have been in close proximity to each other. In any event, Honourable Chairperson, I will not take it further than that. I'm just double checking whether I said ...(intervention)

ADV SANDI: I personally do not, well, I'm speaking for myself, I don't think that it is material whether or not the deceased went along wilfully or offered some resistance to the applicants as he was being transported to this other place, Penge Mine, where he was killed. I don't think that's material. The fact of the matter is that he was handed over and the applicants have confessed to taking part in that process of having him handed over to the Vlakplaas group and that the man was killed in the end.

MS PATEL: With respect, my submission in respect of full disclosure is that it is still material exactly who did what to the applicant.

ADV SANDI: The relevant provision of the Act says "Full disclosure of relevant facts", not everything, which may be peripheral or immaterial in the circumstances.

MS PATEL: With respect, then we can debate about the question of how far one is to take full disclosure in terms of your participation. Is it material to the Committee whether a person shoots somebody 10 times, or whether he admits to us that he only shot the person twice, whereas he might have shot the person 10 times? Is it immaterial in coming to your decision of full disclosure? If your attitude then to me is that it is not material, then I will not argue the matter any further. My submission is that it should be material to the question of full disclosure.

ADV SANDI: Anyway, each case would have to be dealt with according to its own special circumstances.

MS PATEL: And then also just one final thing. When you are making your decision I will ask you to take into consideration that the question of the shooting of the policeman, as Mr Rossouw has correctly pointed out, the only person who mentions that as a motivation is Mr de Kock. All the other applicants have stated that the motivation, in terms of what they were informed was the question of the security risk that Mr Mabotha had posed to Vlakplaas, and I will ask you then, in light of that, to consider that Mr de Kock has said to us that the primary objective in the killing of Mr Mabotha was the question of his involvement with police shooting and to prevent that situation from arising in the future and that the question of the security to Vlakplaas was in fact a secondary by the way motivation.

&#9; Those are my submissions Honourable Chairperson. Thank you.

MR HATTINGH: Mr Chairman, would you permit me very briefly to reply to Ms Patel's, some of Ms Patel's submissions? I promise you I'll be short.

CHAIRMAN: You'd better be very short.

MR HATTINGH: Thank you, Mr Chairman. I fail to understand why a person who confesses to a gruesome murder and a brutal assault would deliberately refrain from saying, I also handcuffed him, or there was a struggle in the car. I think Mr Sandi put his finger on it when he says that the applicant has made a full disclosure of all relevant facts. Mr de Kock knows that his credibility is at stake. He knows that if he's found to be untruthful in this application, he might as well withdraw all his other applications. I sumbit, Mr Chairman, that those little discrepancies are not relevant to the enquiry. That is all I wish to say. Thank you, Mr Chairman.

CHAIRMAN: We'll now adjourn the hearing. 

&#9;Before doing so, I would like to thank all of you who have taken part in it, for your co-operation. We, no doubt, will see one another again at some stage again in the future. I would also like to thank those who have been responsible for arranging the hearing and we tend to forget the people who sit hidden in the box behind us, whom we all owe a great deal to. I would like to thank all of them and the others responsible for the mechanical devices and things that have worked so smoothly during the hearing. Thank you all and I now say goodbye till the next one.

HEARING ADOURNS

 

 

 

 

 

