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&#9;TRUTH AND RECONCILIATION COMMISSION
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 &#9;TRUTH AND RECONCILIATION COMMISSION

&#9;AMNESTY HEARING

DATE:&#9;&#9;&#9;12 JULY 2000 

NAME:&#9;&#9;&#9;PAUL J VAN DYK

APPLICATION NO: &#9;AM5013/97

INCIDENT: &#9;&#9;DE KOCK 5 (CONT)

&#9;&#9; &#9;&#9;AMBUSH AT NERSTON ON THE

&#9;&#9;&#9;&#9;14TH AUGUST 1986

HELD AT:&#9; &#9;&#9;IDASA CENTRE, PRETORIA

DAY:&#9;&#9; &#9;&#9;16&#9;

--------------------------------------------------------------------------CHAIRPERSON: Returning to what has been referred to as the De Kock 5 Hearing, the Committee remains the same. There has been one change as far as I know in representation. Would you please place yourself on record?

MR ROUX: As it pleases you, Chairperson. My name is Jaco Roux, I'm from the Pretoria. On instruction from Strydom Britz on behalf of Mr Labuschagne, I replace Mr Roelof du Plessis.

CHAIRPERSON: Thank you. Are there any matters which any parties wish to raise before the hearing commences?

MR ROSSOUW: Thank you Chairperson, Rossouw on record. Chairperson, I represent applicant, Douw Willemse. Chairperson, Willemse you will recall at the first or the second day of when this hearing started, I made an application that his application be postponed as partly heard, adjourned as partly heard. Mr Willemse had a relapse, he is suffering from post-traumatic stress disorder. Chairperson, in view of this hearing, he again consulted his psychologist and I was provided with a letter from the psychologist in which he expresses the opinion that Mr Willemse would relapse again and that it could be life threatening, Chairperson, and that he recommended that Mr Willemse not be subjected to cross-examining. Sorry, Chairperson, psychiatrist - a Dr van der Merwe provided me with the letter. Chairperson, I've made copies of that letter available to all representatives around the table as well as the Committee and Chairperson, I would at this stage repeat the application I made at the previous hearing that Mr Willemse's application be adjourned again as partly heard and that it be dealt with after all the facts have been placed on record and that the Committee can make a finding on those facts.

&#9;Chairperson, as I have stated previously, there is a precedent for this application in the form of Brig Cronje who suffered a heart attack and in some of the applications, Chairperson, his application was adjourned and findings were made even though he did not testify. I don't know, Chairperson, if there are any objections to that application?

CHAIRPERSON: How far did we get with Willemse's evidence if at all?

MR ROSSOUW: Chairperson, he didn't testify.

CHAIRPERSON: He didn't give evidence, no. Subject - I would like to hear the opinions of the representatives of the other applicants and of the victims and interested parties. From the papers - only for myself, do not anticipate any great divergence in Mr Willemse's evidence and the other evidence we've heard and it appeared to me that if he were to put up a very brief affidavit, that it would not be necessary for him to give evidence unless for some reason or another any other parties feel there is need for that and would you like to express an opinion now or would you like to think about it?

MR HATTINGH: From our point of view, Chairperson, there is no need for Mr Willemse to actually testify.

MR ROUX: As it pleases you Chairperson, from our opinion we accept the request of Mr Rossouw and we do not have any problem with it if his application is done or dealt with by means of an affidavit.

MS VAN DER WALT: Chairperson, I also have no objection and I'm of the opinion that if Mr van Dyk has given his evidence then he would be able to confirm Mr Willemse's application because they were together.

MR LAMEY: Just for the record, Lamey representing Mr Fourie, I've got no objection to the application.

MR PRINSLOO: Chairperson, Prinsloo on behalf of Deetlefs and Pienaar, I have no objection and I share the opinion of my colleagues.

MR RAMAWELE: Chairperson, on behalf of A Nofomela, I do not have any objection although I have to put it on record that Mr Nofomela will however say that he was not with Mr van Wyk and Mr Willemse at the same point. He will either say that he was with Willemse and Badenhorst but we don't have any objection in Mr Willemse giving evidence by way of an affidavit. Thank you.

MR NTHAI: Yes, Chairperson, I will accept an affidavit but we will reserve our right in terms of having looked at the affidavit to call for cross-examination if needs arise.

MS COLERIDGE: Chairperson, just in relation to the letter that we have received, I just want to make a request to the legal representatives of Mr Willemse to furnish us with a copy of psycho-analysis report and the tests that were used on Mr Willemse in support of the findings hereof, Chairperson.

MR ROSSOUW: Chairperson, I'll make the necessary enquiries in order to attempt to obtain the test results and place it before the Committee. 

&#9;Chairperson, one aspect that I should just mention as far as Mr Willemse is concerned. He was here the first day of the hearing and it was after he heard Mr de Kock's evidence and you remember that I was specifically instructed to place on record that he is in agreement with Mr de Kock's version that the instruction was - final instruction was to eliminate all the people. Chairperson, that's on record but for that aspect an affidavit can also be obtained from him. That's not contained in his affidavit in the bundle.

CHAIRPERSON: Well if it's on record I think that's sufficient and I must say again speaking only for myself, I'm not speaking on behalf of my Committee in this. We have had evidence from various of the applicants that they were engaged in other actions that they may be confused when they say that A or B was with them, it may have been at some other time and it could have been B or C who was with them and I don't think that that sort of differences are going to play any great part in the findings of the Committee in this regard. So I think it's not necessary subject again to what you might say, if he prepares an affidavit for him to deal in detail with the evidence of all the other applicants who have already given evidence if he merely sets out briefly what he himself can remember. Do you agree?

MS COLERIDGE: In order, Chairperson. Shall we call this an Exhibit, Chairperson?

CHAIRPERSON: Well I'm trying to think what number it is.

MS COLERIDGE: The last was H, Chairperson. The last Exhibit was H.

CHAIRPERSON: H, so this will be J.

MS COLERIDGE: Thank you, Chairperson.

CHAIRPERSON: While we're talking about exhibits, I find an interesting sketch map lying in front of me which presumably we're going to be told about shortly. Should we call that K?

MS COLERIDGE: Thank you Chairperson.

MS VAN DER WALT: Thank you, Chairperson, that's the next applicant's evidence.

CHAIRPERSON: Right, are we ready to proceed?

MS VAN DER WALT: The following applicant who will be called is Mr van Dyk.

PAUL J VAN DYK: (sworn states)

EXAMINATION BY MS VAN DER WALT: Thank you Chairperson. &#9;Mr van Dyk ...(intervention)

CHAIRPERSON: Go on. Is it possible to turn that right hand light further up or further away from me please? Thank you.

MS VAN DER WALT: Your amnesty application, Mr van Dyk, is in bundle 1, the formal application page 212 to 214. The incident for which you apply for amnesty today appears on page 215 to 218 and the political motivation from page 219 to 226, is that correct?

MR VAN DYK: That is correct, Chairperson.

MS VAN DER WALT: You have also heard the evidence of the other applicants who have given evidence in this incident. I would like to take you to the incident as it appears on page 216, paragraph 2, where you make mention that certain arrangements were made with an informant who would take the persons crossing the border to a certain point. Do you recall that part?

MR VAN DYK: Yes, I recall that incident.

MS VAN DER WALT: And do you know what was the arrangement with the informer?

MR VAN DYK: Chairperson, according to my knowledge, as I recall it today, I myself did not deal with the informer. It was Mr Pienaar and Mr de Kock who spoke to the informer most of the time at that stage. They only informed me at the end that I had to go to a certain point close to the Nerston /Amsterdam /Lother crossing or junction where we had to set up an ambush in order to arrest or eliminate certain people who would come through.

MS VAN DER WALT: What was the instruction before you departed, that the persons would come in with a bakkie had to be arrested or they had to be shot dead?

MR VAN DYK: Chairperson, my instruction ...(intervention)

MS VAN DER WALT: No, I mean you were at another point but do you know what had to happen with the persons who came in the van? 

MR VAN DYK: The discussions, I would not say that I was present at any meeting or any great discussion but what I did infer or from what was informed or mentioned to me was that all the persons in the van or in the bakkie would be eliminated at a certain point.

MS VAN DER WALT: You mention in paragraph 2 that the arrangement was made with the informer that the person, the informer, would drive the bakkie up to a certain point where he would stop the bakkie and then they would attempt to arrest these persons. Do you know about that, that this was told to the informer?

MR VAN DYK: Yes, this was mentioned to me but this was only meant for the informer. They couldn't tell the informer that they would eliminate the persons, they told him that they would arrest the persons but that was meant for the ears of the informer.

MS VAN DER WALT: And paragraph 3 you mentioned that you were divided into three groups. Which group were you with?

MR VAN DYK: I might just say that the three groups, my group at the Nerston/Amsterdam junction.

MS VAN DER WALT: That is Exhibit K that you signed or which you drew up to assist the Committee?

MR VAN DYK: That is correct, Chairperson. There the group was divided into two because the old road joined the - had a junction with the Nerston/Amsterdam Road.

MS VAN DER WALT: You refer now to the Exhibit K that you drew up and you indicated north. If we can take it north,

the top of the document, is that correct?

MR VAN DYK: That is correct.

MS VAN DER WALT: And then the East will be on the right and then Nerston's border post would be in the Eastern side of Exhibit K. Then it is the Nerston/Lother Road and then the Amsterdam Road makes a T-junction with the Nerston/Lother Road. Now this road that you have referred to, you speak of the old road. Is that to the right hand side of the T-junction where it cuts through the angle?

MR VAN DYK: Yes, that is the old gravel road before the road was tarred that went through there.

MS VAN DER WALT: Very well, you said there were three groups, there were two groups at that point, is that what you mean?

MR VAN DYK: As I have said, Badenhorst and Mogadi was at one point, that was more to the Nerston border post side, it was not very far, it was a matter of 30 - 50 metres away from each other.

MS VAN DER WALT: And where were you?

MR VAN DYK: I was on the corner of the Amsterdam junction.

MS VAN DER WALT: You indicated there Van Dyk, Willemse and Mr Nofomela who were at that point?

MR VAN DYK: That is correct, Chairperson.

MS VAN DER WALT: What were your instructions, what did you have to do there?

MR VAN DYK: The initial instruction was, we suspected as the information led that we received that persons who would bring persons through are usually local people because he knows the area quite well, he will take the persons to a certain point and then he returns to Swaziland and information was also that Nox Dlamini would be waiting in a vehicle on the Swaziland side and we had to attempt, the person would bring the insurgents through, we had to catch him and then he had to point out the vehicle in Swaziland to us where we would also try to eliminate those people.

MS VAN DER WALT: You also made mention in paragraph 3 that the persons who would cross the border, you would arrest them, is that correct?

MR VAN DYK: Yes, the arrest - if there were no other people involved then it was chiefly the person who would bring these insurgents through, he just accompanies them through. The information that we had was that it was not a trained person, he was not armed, he would only bring the people through but he knew where the person on the other side was waiting and you wanted him to take him to the vehicle where the other person was?

MR VAN DYK: That is correct.

MS VAN DER WALT: What would you do at the other point?

MR VAN DYK: There, Chairperson, we would try to eliminate persons in the vehicle.

MS VAN DER WALT: So you would have killed them right there?

MR VAN DYK: That is correct.

MS VAN DER WALT: What happened on this particular evening? You went to this point?

MR VAN DYK: Chairperson, we held observations at this point and as far as I can recall, it was approximately 9 o'clock in the evening when these four persons moved past. The bakkie turned down the Amsterdam Road. I am not certain whether the bakkie arrived there before them or after them but when the bakkie arrived there, according to my information and as far as I can recall, the bakkie was there first. No, they were first then the bakkie came afterwards.

MS VAN DER WALT: When you refer to "them"?

MR VAN DYK: The four persons who came through from Swaziland.

MS VAN DER WALT: Very well.

MR VAN DYK: And the bakkie stopped approximately 100 metres from us. We switched off the headlights but the parking lights were still on and as there was some movement at the back of the vehicle, because they were moving past the tail lights of the car, the vehicle then moved away and we saw some persons coming back. There were two persons who were coming back. I would say approximately two or three metres away from us at the point where we were - that is now Willemse, Nofomela and I. We had a torch and we shone it on them and I noticed that the one person had a firearm over his shoulder.

MS VAN DER WALT: Continue please?

MR VAN DYK: Shots were fired to and fro, one person fell and the other person ran away.

MS VAN DER WALT: If I could just refer you to Exhibit K? You indicated a vehicle turning into the Amsterdam Road, that is there next to the or on the old road that you drew there. Is that the point where you saw the vehicle?

MR VAN DYK: Yes, that's where it was standing. 

MS VAN DER WALT: And the vehicle came from which direction?

MR VAN DYK: From Lother.

MS VAN DER WALT: And the persons walking?

MR VAN DYK: They came in from Nerston side.

MS VAN DER WALT: And you say the one person escaped? Do you know who was the person who escaped?

MR VAN DYK: The man who escaped was Mr Sindane.

MS VAN DER WALT: And the other person was killed?

MR VAN DYK: Yes that is correct.

MS VAN DER WALT: Very well and you have knowledge that the other persons further along the Amsterdam Road had set up an ambush for these persons, is that correct?

MR VAN DYK: That is correct.

MS VAN DER WALT: Did you later contact these persons?

MR VAN DYK: I'm not certain whether he had his vehicle there with a radio or whether there was just a vehicle hidden in the bush. I cannot recall whether I drove to them or whether I contacted them by radio but I did inform them.

MS VAN DER WALT: And what happened to the person whom you killed there?

MR VAN DYK: He ran across the Amsterdam Road over the Lother Road and there were trees that were cut down there, they were laying in lanes. He went through there and we couldn't find him that night.

MS VAN DER WALT: But the person who was killed?

MR VAN DYK: Oh, the person who was killed. Mr Botha picked him up.

MS VAN DER WALT: That is the applicant who still has to give evidence?

MR VAN DYK: That is correct, Chairperson.

MS VAN DER WALT: And then did you later return to where the other persons were who had shot the persons in the bakkie?

MR VAN DYK: Yes, I'm not sure to which point we went to, I did go back to the point where the person was shot with the bakkie but from there, as far as I know, I went back to Piet Retief or to Amsterdam, I'm not sure.

MS VAN DER WALT: So you have knowledge that persons were killed at the bakkie?

MR VAN DYK: Yes I do know.

MS VAN DER WALT: And at that stage under whose command did you serve?

MR VAN DYK: Under Col. de Kock.

MS VAN DER WALT: And where were you stationed?

MR VAN DYK: Security Head Office Pretoria and Vlakplaas.

MS VAN DER WALT: And the instructions to eliminate the persons, where did you get this instruction?

MR VAN DYK: This came from Col. de Kock. 

MS VAN DER WALT: There was a post-mortem inquest where certain statements were taken by Mr Pienaar. You also made a statement there and that is in the bundle, bundle 2, pages 15 and 16, is that correct?

MR VAN DYK: That is correct, Chairperson.

MS VAN DER WALT: You have gone through the statement and there are certain aspects that you would like to point out to the Committee, is that correct?

MR VAN DYK: That is correct, Chairperson.

MS VAN DER WALT: Paragraph 3, you make mention of Sgt Badenhorst who took up position along with you, what do you say about that?

MR VAN DYK: Chairperson, at this stage, this is the stage that Mr Nofomela picked up problems.

MS VAN DER WALT: You see you mention here that Badenhorst and Willemse took up position next to the tar road while Nofomela and Mogadi took up position, what do you say about that today?

MR VAN DYK: What I would like to explain that at this stage Mr Nofomela picked up those problems for which he is still incarcerated and I tried to take him out of the picture so that he should not give evidence in this incident and I placed him at another point.

MS VAN DER WALT: Where there was no shooting?

MR VAN DYK: Yes, where there was no shooting.

MS VAN DER WALT: And paragraph 10, on page 16, is that paragraph correct or not?

MR VAN DYK: As far as I can recall Chairperson.

MS VAN DER WALT: You mention that you'd said that - told the person that there was a policeman?

MR VAN DYK: That is correct, Chairperson. That is not how I put it, there was no talking so I did not tell the persons we were police officers, they had to stand still. We saw this person who was armed and then we fired shots. We didn't ask questions and nothing was said.

MS VAN DER WALT: So what you were saying there is a lie?

MR VAN DYK: Yes, that is not correct.

MS VAN DER WALT: And the rest of the paragraph you don't have a problem or the rest of the statement?

MR VAN DYK: That is correct, there's nothing further that I can see.

MS VAN DER WALT: You then apply before this Honourable Committee for amnesty with regard to the murder, the person that you shot as well as conspiracy to murder to kill the other persons who were in the van?

MR VAN DYK: That is correct.

MS VAN DER WALT: And the attempted murder of Mr Sindane?

MR VAN DYK: That is correct, Chairperson.

MS VAN DER WALT: And defeating the ends of justice?

MR VAN DYK: That is correct.

MS VAN DER WALT: And perjury because you made the statement under oath?

MR VAN DYK: That is correct, Chairperson.

MS VAN DER WALT: And any other offence which might flow from your actions there at the incident?

MR VAN DYK: That is correct.

MS VAN DER WALT: As well as any delictual accountability?

MR VAN DYK: That is correct.

MS VAN DER WALT: Thank you, Chairperson.

NO FURTHER QUESTIONS BY MS VAN DER WALT

MR HATTINGH: Hattingh on record, Chairperson, I have no questions, thank you.

NO QUESTIONS BY MR HATTINGH

CROSS-EXAMINATION BY MR RAMAWELE: Thank you Chairperson, it's A Ramawele for Mr Nofomela. I just have a few questions.

&#9;Mr van Dyk, you say that you were with Mr Nofomela at the corner of - at the T-junction - the corner of Lother and Nerston, at the T-junction of Amsterdam?

MR VAN DYK: That is correct, Chairperson.

MR RAMAWELE: And where was Mogadi?

MR VAN DYK: Mogadi was as I have said approximately 30 - 50 metres away from there.

MR RAMAWELE: Mr Nofomela will say that you were with Mogadi more nearer to the Nerston border gate, you were only two?

MR VAN DYK: No, I was at the Amsterdam T-junction along with Willemse and Nofomela.

MR RAMAWELE: And Mr Nofomela will further say that he was with Mr Willemse, Mr Badenhorst at the Amsterdam T-junction.

MR VAN DYK: If he says so, I will not argue with him but I was with Willemse and Nofomela at the T-junction. MR RAMAWELE: Are you saying that you're not going to dispute that, that it could be true that he was at that particular T-junction?

MR VAN DYK: Please repeat that question?

MR RAMAWELE: Are you saying that if you are not going to dispute what Mr Nofomela is going to say as to with whom he was at the T-junction, are you saying that it could be true? What do you say? Mr Nofomela?

MR VAN DYK: No, all that I'm saying is that I was with Nofomela at the T-junction. If he says I was somewhere else I differ from him but I cannot place words in his mouth.

MR RAMAWELE: And you are saying at the time when you were waiting at the T-junction the instruction was that people coming from Amsterdam towards going back to Nerston border gate were supposed to be arrested?

MR VAN DYK: That is correct, Chairperson. If there were no problems we would try to apprehend the man and take him over to Swaziland.

MR RAMAWELE: Because Mr Nofomela will say that there were no shots which were fired by any of the people who were going back to the Nerston border gate?

MR VAN DYK: That is not how I recall it.

MR RAMAWELE: If you will further say there were no instructions to arrest or catch them, the instruction was to eliminate them?

MR VAN DYK: That is not how I recall it.

MR RAMAWELE: And he will further say, Mr Nofomela, that before the shooting occurred there was no torch which was used, it was only used after the other one had escaped?

MR VAN DYK: Please repeat that question?

MR RAMAWELE: He would say that there was no torch which was used before the shooting, it was only used after the shooting when one of the people who were going back had escaped.

MR VAN DYK: No Chairperson, I cannot recall who all had flash lights but a light was shone there and that is how I saw that the man was armed and that is where the shooting ensued and afterwards no light was used.

MR RAMAWELE: Mr Nofomela will further say that there was absolutely no attempt which was made to arrest the people who were going back?

MR VAN DYK: Yes, I saw the persons were armed and we didn't take any chances, not with a person who had a firearm in his hand.

MR LAX: Can I just clarify something? You've just said the people were armed. Were they both armed?

MR VAN DYK: Only the one person, Mr Sindane, was armed. 

MR LAX: Please continue?

MR RAMAWELE: I've got no further questions, thank you.

NO FURTHER QUESTIONS BY MR RAMAWELE

CROSS-EXAMINATION BY MR LAMEY: Thank you Chairperson, just one or two questions.

&#9;Mr van Dyk, you did not actually expect that a person like Mr Sindane would go back with a firearm, do I understand you correctly? You would have tried to arrest him if there was a possibility?

MR VAN DYK: That is correct, Chairperson. Usually the guide would take the persons through, he was not armed and then go back again but in this case Mr Sindane was there and he was armed. It went different then what we planned. 

MR LAMEY: So it went different when he returned and he had a firearm?

MR VAN DYK: That is correct, Chairperson.

MR LAMEY: And you were in command on the scene or at the scene?

MR VAN DYK: That is correct.

MR LAMEY: And you could exercise your discretion with regard to the instruction from De Kock where there was a potentially dangerous situation to act according to what you thought was best?

MR VAN DYK: That is correct.

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

NO FURTHER QUESTIONS BY MR LAMEY

CROSS-EXAMINATION BY MR ROSSOUW: Thank you Chairperson.

&#9;Mr van Dyk, I would just like to take you through Mr Willemse's version and it would appear that you primarily agree but the one aspect what I would like to take up with you is that Mr Willemse said that the two persons who returned, it was said to the two persons who returned to stand still and you say no words were exchanged at all?

MR VAN DYK: Chairperson, this thing about the words that we would have told the people "we are the Police, stand still" that was not so, I can answer to that honestly. No words were uttered there.

MR ROSSOUW: So Mr Willemse is mistaken? 

MR VAN DYK: Yes, I think he is mistaken. This comes from beforehand when with the post-mortem inquest we decided that we would say that we warned these persons to add more credibility to the post-mortem inquest but it was not so. We did not utter any words.

MR ROSSOUW: And Mr Willemse also made a statement in the post-mortem inquest and you said that you decided upon this. Was he part of this decision, this discussion?

MR VAN DYK: Yes he was.

MR ROSSOUW: Then I would just like to ask you, Mr Willemse says that he heard that a firearm was cocked by one of the persons who returned. Do you have such recollection?

MR VAN DYK: I cannot recall. It is possible but as I have said it happened so quickly, the lights were switched on and it's possible but I cannot recall that it happened.

MR ROSSOUW: And you have said now, did I understand you correctly that you shot the person? The person who was killed there, did you shoot him or did Mr Willemse shoot?

MR VAN DYK: No, we all fired shots. I cannot say whether I shot him or Nofomela shot him or Willemse shot him. All three of us fired shots, so all three of us could be responsible.

MR ROSSOUW: Very well and then with regard to the instruction you would have noted that Mr Willemse in his statement said that the plan was to abduct the person who returned and then he had to point out where he came through the fence and you say it went further. He had to go and point out the bakkie on the other side of the border?

MR VAN DYK: Yes, there was vehicle on the other side of the border who brought the people to the border and it would take the guide back. He had to go and report back in Mabana or Manzini. 

MR ROSSOUW: So there was talk or consideration of arresting the person who would return?

MR VAN DYK: That is correct, Chairperson.

MR ROSSOUW: And then the final plan would be to eliminate that person along with the occupant of the bakkie on the other side of the border?

MR VAN DYK: That is correct.

MR ROSSOUW: So the final plan would be, as Mr de Kock had testified that everyone would eventually be killed?

MR VAN DYK: Yes, everyone would have been killed.

MR ROSSOUW: Mr van Dyk, what was your rank at that stage at Vlakplaas?

MR VAN DYK: I would imagine I was a lieutenant at that stage.

MR ROSSOUW: So you were senior to Mr Willemse?

MR VAN DYK: That is correct.

MR ROSSOUW: He was a sergeant at that stage?

MR VAN DYK: That is correct.

MR ROSSOUW: So you were in command there at the scene?

MR VAN DYK: Yes.

MR ROSSOUW: Thank you, I have no further questions.

NO FURTHER QUESTIONS BY MR ROSSOUW

MR PRINSLOO: Mr Prinsloo. I have no questions, thank you Chairperson.

NO QUESTIONS BY MR PRINSLOO

MR ROUX: Mr Roux, I have no questions, thank you.

NO QUESTIONS BY MR ROUX

CROSS-EXAMINATION BY MR NTHAI: The information that there would be people coming on that day, these ANC fighters, who gave that information?

MR VAN DYK: I received the information from Messrs Pienaar and De Kock.

MR NTHAI: Did they tell you where they got the information from?

MR VAN DYK: From an informant that was known to Mr Pienaar.

MR NTHAI: Was this information given to you at a meeting?

MR VAN DYK: No, not at all. It was just personally conveyed to me but there was no meeting.

MR NTHAI: Who conveyed that to you?

MR VAN DYK: Mr de Kock.

MR NTHAI: Is that at the same time when he gave you the order to go to the other side?

MR VAN DYK: Before that it was discussed already the information. I think we were there for another incident other than this one and I knew that an operation would be launched here, I just did not know exactly when it would happen, I was not sure, but Mr de Kock informed me but I cannot give you a specific time.

MR NTHAI: No, no. So you were not present when the discussion about the operation took place?

MR VAN DYK: I do not know of any discussion that had taken place. The discussion was most of the time between Mr de Kock and Mr Pienaar. I did not attend any big meeting but they told me that a decision was taken here and here and it was just told to me the afternoon and the evening of the incident that we would set up the ambush and that was that. They did not tell me long before the time but that there was information that persons would come through, I knew that a day or two before the time.

MR NTHAI: And then when you were given this information, were you given the details of who are the people who are going to come out and how many people were going to come?

MR VAN DYK: They only told me that persons would come through from Swaziland through the Nerston post and that this man would transport them.

MR NTHAI: And what was your order from Mr de Kock, what did he tell you?

MR VAN DYK: I had to go to the Nerston border post or the Amsterdam/Lother junction and set up an ambush there for the persons who would come in and then those who returned, I had to try and arrest them so that we could go back to Swaziland to find Mr Dlamini so that we could eliminate him.

MR NTHAI: When you say you set up an ambush, what do you mean?

MR VAN DYK: Please repeat that?

MR NTHAI: When you say you set up an ambush, you were told to go and set up an ambush, what did you understand?

MR VAN DYK: Yes, my instruction was to arrest first and then I would eliminate them so the ambush was duel. If things did not go right I would take a decision at the point.

MR NTHAI: No, Mr Dyk, I just want to understand what Mr de Kock told you. Did he tell you to go and ambush this person, did he tell you to go and arrest this person?

MR VAN DYK: I just said, Chairperson, my instruction was as I have said, I had to see whether the guide - if the guide was not armed we would abduct him or kidnap him or arrest him, whatever you want to call it. We would go to Swaziland and eliminate those people there but at the point there I would decide if things went wrong, I would decide what to do and the actual purpose of the whole operation as Mr de Kock put it, everybody had to be eliminated. Let's say the person that I found there at the Amsterdam junction and take that person to Swaziland to point out the bakkie and the persons there, they would all be eliminated. So it was a duel purpose.

MR NTHAI: So are you saying that Mr de Kock did tell you that you must arrest this person who was returning, is that what he told you?

MR VAN DYK: If it was possible but eventually he would also be eliminated.

MR NTHAI: Because you see, Mr de Kock was very clear that the order was to eliminate these people, there was no question of arresting anybody?

MR VAN DYK: Yes, eventually everybody would be eliminated. My instruction was why would there be two points, Chairperson.

MR LAX: Sorry, just explain for me, what is the relevance of there being two points? What's that got to do with your answer?

MR VAN DYK: Chairperson, what I mean by that is if we had to set up an ambush for these persons, we could have done it at one point and eliminate the persons there instead of having two points. The second points purpose was to find the man who returned so that he could point out the vehicle on the Swaziland side and then they would be eliminated but eventually Mr de Kock said everyone had to be eliminated, that's correct. The primary purpose was that he had to serve his purpose and then he would also be eliminated.

MR LAX: What you say doesn't make sense at all. For this reason, that - just listen to me. De Kock's already told us that the information, in the arrangement with the driver was that they would stop the vehicle at a certain place. You weren't part of the planning? So why are you drawing your own conclusions? You were simply told to go and put an ambush there. You've told us that twice already in your evidence. Once in evidence in chief and twice under cross-examination. Your precise words were "I was ordered to set up an ambush", correct?

MR VAN DYK: That is correct.

MR LAX: Well an ambush is not to arrest people, an ambush is to kill people? You set up and you lie and wait and you open fire when they pass you? Isn't that an ambush?

MR VAN DYK: Chairperson, I said a trap, not an ambush because a trap can mean anything, we can have a diamond trap where you can catch people smuggling diamonds, we can trap people to kill persons, a trap can mean many things and an ambush, I don't know what the Afrikaans word - that only means in English that you will just kill.

CHAIRPERSON: Mr van Dyk, as I understand your evidence, you were not to take part in the ambush where the people in the bakkie were killed?

MR VAN DYK: No, Chairperson, I was far from there.

CHAIRPERSON: You were to take into custody the people coming back to try to find, if you could, information from them where the other bakkie was parked and then to go there and kill all of them?

MR VAN DYK: That is correct, Chairperson. Where I was lying the bakkie picked up the persons and left and I would say approximately five or six kilometres where Mr de Kock was lying in wait. I apologise for not being clear there.

MR NTHAI: So there was a discussion between you and Mr de Kock on how the - what you call a trap - was going to be set up?

MR VAN DYK: That is correct, Chairperson, that was normal, he was in command. We discussed it.

MR NTHAI: And the order from him was that you must go and set up a trap and later on you must go and kill those people, is that what he said to you?

MR VAN DYK: That is correct, Chairperson. If things went according to plan. If I could abduct or kidnap someone there and then take it further then I could eliminate the persons there.

MR NTHAI: No, no, no, I just want to understand exactly your discussion between you and Mr de Kock. Did he say to you that you go and set up a trap and arrest those people and then thereafter go and eliminate those people the other side? Is that what he said?

MR VAN DYK: He told me go and set a trap and try to arrest the persons who would come through the guide. I had to attempt to arrest that man but at the point where we were lying I could take my own decisions as well if things did not go according to plan.

MR NTHAI: And what type of firearms were you carrying?

MR VAN DYK: Chairperson, I am not entirely certain but I know we had firearms with silencers. I cannot recall whether these were sub-machine hand carbines or pistols, I'm not certain. We had a variety of these firearms. The purpose of the silencers attached to the firearms was if the persons returned and we had a shooting incident there then we would not alert the persons who were moving in the bakkie.

MR LAX: How would the people driving in the vehicle hear you shooting? They would have driven away already at the time you would have had to open fire?

MR VAN DYK: That is correct, Chairperson.

MR LAX: They couldn't possibly have heard you?

MR VAN DYK: If they were not far away they would have heard if we used normal firearms.

MR LAX: Wasn't the objective of the silencers totally different? The objective of the silencers was to prevent the army people patrolling in that area from hearing?

MR VAN DYK: No, there was no such discussion.

MR LAX: Well that's what the other witnesses have said so far, there were people patrolling that area, you didn't want them to know what you were up to?

MR VAN DYK: No Chairperson ...(intervention)

MR LAX: Well that's why you - why otherwise would you use a silencer?

MR VAN DYK: My purpose ...(intervention)

MR LAX: No, no, no, not what your purpose was, why else were you given the order to use a silencer? Because you were ordered to take those weapons with silencers?

MR VAN DYK: If those people moved back quickly and that bakkie was still standing there, and it departed late, they would have clearly heard if we shot without silencers.

MR LAX: But anyway, the record will speak for itself. You've given your explanation. Sorry Mr Nthai, please continue?

MR NTHAI: Were all the firearms fitted with silencers?

MR VAN DYK: As far as I can recall, yes.

MR NTHAI: And where were these firearms coming from?

MR VAN DYK: We had many of these firearms at Vlakplaas.

MR NTHAI: So they all came from Vlakplaas?

MR VAN DYK: That is correct, Chairperson.

MR NTHAI: And the one that you were carrying, where did you get it, were you given it by Mr de Kock?

MR VAN DYK: Yes, usually because these firearms, if it was not used it was locked up at Vlakplaas. So Mr de Kock would usually supply us.

MR NTHAI: No, I'm talking about the firearm that you were carrying, you were given by Mr de Kock?

MR VAN DYK: If I used one with a silencer I would have received it from Vlakplaas and Mr de Kock was in control of these firearms.

MR NTHAI: You can't remember what type of a firearm you were carrying yourself?

MR VAN DYK: I'm not certain whether I had a hand carbine or a pistol.

MR NTHAI: You can't recall that you were carrying another one?

MR VAN DYK: No.

MR NTHAI: You never had another one?

MR VAN DYK: Another firearm? No, I did not have another one, I had a pistol or a hand carbine.

MR NTHAI: Now it appears you had a discussion with Mr de Kock in detail. Now you see, the one who ordered you to use the silencers, or that came from you?

MR VAN DYK: No, I think the proposal, I would not say that it came from Mr de Kock or myself but the discussion point was that I cannot recall who proposed it but the purpose was because this vehicle stopped close to us and if this person returned and shooting ensued, that the persons would depart in the vehicle and would not hear that there was a shooting because then the operation would be jeopardised

MR NTHAI: So you are saying that these people came in and they moved to where the bakkie was parked, is that correct?

MR VAN DYK: Correct, Chairperson.

MR NTHAI: And at that stage they were not aware of your present, is that correct?

MR VAN DYK: No they were not, that is correct Chairperson.

MR NTHAI: Was there a stage when they became aware of your presence?

MR VAN DYK: Only when they returned and we shone the light at them and the shooting ensued.

MR NTHAI: Did they shoot at you?

MR VAN DYK: According to my memory, yes they did.

MR NTHAI: And who - you are the people who opened fire first, is that correct?

MR VAN DYK: I would not be able to say who fired shots first, it happened so quickly there was no time. I am not able to say who shot first but we did shoot.

MR NTHAI: Do you still remember how many shots you fired?

MR VAN DYK: I cannot recall.

MR NTHAI: Now I just want to come to the point after the shooting. Are you saying that you tried to chase this other person?

MR VAN DYK: That is correct, Chairperson.

MR NTHAI: And how far did you go, to chase him?

MR VAN DYK: Chairperson, we did not get very far because he ran over the Lother Road and they were busy cutting down trees there, there were many branches and bushes there and things were lying all over the place. If we have a look at Exhibit K you would say I draw some lines there. That is how the things were lying in rows there and these heaps were easily five or six feet high, you couldn't go through them, you had to move around them and in the dark we lost the person entirely. 

MR NTHAI: And you were no longer worried about the other person in the vehicle who was waiting for them?

MR VAN DYK: The person in the vehicle? You mean the one in Swaziland? No, we knew that if we could not find that person and we could not execute that operation on the other side because we did not know where the vehicle was on the other side.

MR NTHAI: Now I just want to - and then when did you - let me put it, when did you see Sindane again, the person who escaped?

MR VAN DYK: I think it was the following day. Mr Pienaar found him as I understand it at the counter-insurgency unit. They arrested him somewhere. I'm not sure whether it was at Amsterdam or Piet Retief, but I did see him.

MR NTHAI: Was he injured when you saw him?

MR VAN DYK: Yes he was injured. I'm not sure whether he was shot through his upper leg or through his hip or through his arm but he was injured, yes.

MR NTHAI: And you can't recall where you saw him?

MR VAN DYK: I'm not sure whether it was at Piet Retief or at Amsterdam but Mr Pienaar was also there so I cannot recall exactly where it was.

MR NTHAI: And you recall the farm where he was taken to?

MR VAN DYK: The farm? No.

MR NTHAI: The place where you were there, where you had braaied.

MR VAN DYK: No, I was not there, I cannot recall that.

MR NTHAI: So after his arrest you say you never had any dealings with him?

MR VAN DYK: No, I only saw him once and not again thereafter. Why I recall that I saw him is that we all returned to the area the following day to see whether we can find the man. That is why I cannot recall where exactly I saw him afterwards and later, once again, it was in court in Ermelo.

MR NTHAI: And you don't remember and incident where he was being assaulted?

MR VAN DYK: No, not at all.

MR NTHAI: You did not see that?

MR VAN DYK: No, I did not see any such thing.

MR NTHAI: Well, you see, he's going to say that you assaulted him?

MR VAN DYK: No, Sir, sure not.

MR NTHAI: But do you recall him? Do you recall Mr Sindane?

MR VAN DYK: That is correct, I saw him. But assaulted? I never assaulted him, not at all.

MR NTHAI: I see. I want to take you to his affidavit that appears on bundle 2. That is page 75. Well, first of all I need to indicate to you that Mr Sindane is going to give evidence and in his evidence there are certain things that are not correct. Some of them I pointed out the other day. Now I want to take you in particular to paragraph 9 where he is saying:

&#9;&#9;"When they took off the blindfold I saw that I was surrounded by about 5 men in civilian clothes."

Oh, 19, I'm sorry. Paragraph 19, my bundle is a bit folded, I'm sorry. 19.

&#9;&#9;"Where I later discovered that members of the Security Police station in Piet Retief"

and he says in particular:

&#9;&#9;"I saw W/O Pienaar and W/O Botha. I believe that they were the ones who had beaten me. I was then taken to Piet Retief."

Did you see the blindfold when you saw him?

MR VAN DYK: No, Chairperson, I cannot imagine seeing anything like that.

MR NTHAI: You see, Mr Sindane is going to say that actually the person who is referred to as W/O Botha is actually you?

MR VAN DYK: No, Chairperson, then the statement is just as incorrect as the others. I did not assault him, I was not close to him. I only saw him and I had no further dealings with him.

MR NTHAI: The same applies to paragraph 20 where he says:

&#9;&#9;"En route to Piet Retief I was taking to a nearby farm where I was again beaten by W/O Botha. He hit me in my face."

MR VAN DYK: I have no knowledge of this.

MR NTHAI: Well he is going to say, Warrant Botha, it's referring to you because he had an opportunity to see you today?

MR VAN DYK: That is not true Chairperson.

MR NTHAI: And he is actually going to say that the reason why he put the name of W/O Botha was because he had a discussion with Masego while they were in prison and as they were describing the people who assaulted him, I think they gave him the name of Warrant Botha. He is now satisfied that you were the one that assaulted him with an open hand. You deny that?

MR VAN DYK: I deny that Chairperson. I never participated in any interrogation of Mr Sindane and I do not know Masego.

MR NTHAI: I want to show you another paragraph, that is paragraph 26. You must just tell me if you are finished looking at it?

MR VAN DYK: I've already seen it, yes thank you.

MR NTHAI: Are you saying you know nothing about the photographs that are mentioned in that paragraph?

MR VAN DYK: No Chairperson. I have no knowledge of this Msandile. Is that not the person who was shot there at the T-junction because I am not sure to whom you refer here.

MR NTHAI: No, I'm just saying do you know about the photographs that are mentioned there, photographs that were shown to him?

MR VAN DYK: I have no knowledge, Chairperson.

MR NTHAI: And you don't know of this person that he is referring to?

MR VAN DYK: I have no knowledge. 

MR NTHAI: Well he is going to say that you know about that?

MR VAN DYK: That's his problem.

CHAIRPERSON: Are you going to be much longer?

MR NTHAI: Yes.

CHAIRPERSON: Well I think we'll take a short adjournment at this stage.

COMMITTEE ADJOURNS

MR NTHAI: (continues) Thank you, Chairperson.

CHAIRPERSON: You're still under your former oath.

PAUL J VAN DYK: (s.u.o.)

MR NTHAI: Yes Mr van Dyk, I just want to take you back to the shooting incident. You see, Mr Sindane is going to confirm that what Mr Nofomela put to you that they never fired a shot on their side, do you dispute that?

MR VAN DYK: Chairperson, I shall deny that. We exchanged fire, it did not only come from one side.

MR NTHAI: Why are you sure, why are you sure that there was an exchange of fire?

MR VAN DYK: Well afterwards, as far as I recall, shells of the VZ25 that Mr Sindane had was handed in during the post-mortem inquest, that is far as I can recall, the shells were picked up there.

MR NTHAI: Did you pick up the shells?

MR VAN DYK: As far as I know we shone the flashlights there and we picked up the shells to ascertain how many shots were fired. I think we picked up two or four shells, I'm not sure.

MR NTHAI: When did you do that? At what stage did you do that?

MR VAN DYK: It was that night, that same evening.

MR NTHAI: No, but after the shooting you chased Sindane?

MR VAN DYK: That is correct, yes.

MR NTHAI: So you want to tell me you came back?

MR VAN DYK: That is correct, we came back to the point.

MR NTHAI: Just explain that? What happened? So you chased him and you came back?

MR VAN DYK: That is correct, Chairperson.

MR NTHAI: Why were you coming back?

MR VAN DYK: To check at the scene itself. The other person was shot there, he was dead he was lying there and Mr Sindane was gone at that stage and there was no way that we could find him that night and then when we returned to see if we could determine how many shots were fired and what happened there.

MR NTHAI: And where was - the body of Msandile was still lying there?

MR VAN DYK: Yes it was still there.

MR NTHAI: You left the body there and you chased Sindane, is that what you're saying?

MR VAN DYK: That is correct, Chairperson. I don't know whether if it was even ten minutes that we were gone from the scene.

MR NTHAI: Yes, so what happened first is that after the shooting you chased Sindane and you didn't check whether there was a person who was shot or not?

MR VAN DYK: No Chairperson, we ran after Mr Sindane directly because as I said it was dark and there was a wire fence there. We had to get through the wire fence and follow Mr Sindane. I know that area quite well, I worked there many years and I realised that there was no way that we would find him there in the dark and that is why I returned back to the point where the shooting had taken place.

MR NTHAI: Are you telling you only realised that you shot Msandile after you returned?

MR VAN DYK: No Chairperson, we saw the one man falling and we saw the other man running away and if I am not mistaken I think the other person was probably Mr Mogadi. I think someone remained behind. I cannot recall exactly what happened but some of the persons pursued Mr Sindane and the possibility that someone else remained behind is not excluded.

MR NTHAI: But when you came back there did you find somebody?

MR VAN DYK: Yes.

MR NTHAI: Who was there when you came back?

MR VAN DYK: Mogadi was there at that point.

MR NTHAI: So when you chased - yourself, I'm talking about yourself now, when you chased Sindane you were not sure whether that person was dead or not?

MR VAN DYK: At that stage I could not say for sure that he was dead but when I returned I saw that he was dead but at that stage when we ran after the other person, I did not stop next to the person to check. We just ran after Mr Sindane at that stage. But as I said, he had a head start and we had to get through a fence to get after him.

MR NTHAI: At that stage you were not aware who was the person who was shot, whether the person who was shot was the person carrying a firearm or not?

MR VAN DYK: No, according to what I recall the person who escaped was the person who had the firearm, he threw the firearm down and ran away.

MR NTHAI: You saw that?

MR VAN DYK: Yes, I could see that in the light of the torch.

MR NTHAI: Let me come to the torch, the torch thing. You see, Mr Sindane is also going to confirm that the torch was only used, in other words he is going to confirm what Mr Nofomela is saying, that the torch was only used after the shooting, not before. What do you say to that?

MR VAN DYK: He ran away, Chairperson, I cannot see how he could say that. I mean we shone the light at them and then I noticed that they had a firearm and that is when we started shooting.

MR NTHAI: So are you going to dispute that?

MR VAN DYK: Yes I will deny it.

MR NTHAI: Who was having this torch?

MR VAN DYK: I think there were two torches. Willemse as far as I know had one and I'm not sure whether Nofomela had the other one but I cannot recall whether I had it but I think there were two torches.

MR NTHAI: And the torches that you used to see this firearm, which one was that? If there were two torches?

MR VAN DYK: Well they were walking next to each other or behind each other, I'm not sure, I think Mr Sindane, they walked behind each other as far as I can recall. I'm not sure he walked in front or whether the other person walked in front but they walked together next to each other. When you shone the light at them you could see both of them, I would say.

MR NTHAI: Can you describe these torches, what kind of torches are those?

MR VAN DYK: A normal torch. 

MR NTHAI: A small one?

MR VAN DYK: No, it's a three cell torch.

CHAIRPERSON: And where did he have this firearm when you shone the torch and saw it?

MR VAN DYK: It was over his shoulder, Chairperson. Over his shoulder as far as I can recall.

CHAIRPERSON: How do you mean over his shoulder?

MR VAN DYK: It had a shoulder strap attached to it, it was over his shoulder.

CHAIRPERSON: Because as I recollect the evidence, that when Exhibit A, was it, was handed in with photographs, we were shown this firearm and it doesn't seem to have a shoulder strap on it. It is the one second to the right with a barrel on the red ...(indistinct). 

MR VAN DYK: Chairperson, are these the firearms that were found in the vehicle?

CHAIRPERSON: The others are, this is the firearm that was found at the scene of your shooting.

MR VAN DYK: Yes, but as I recall it had a shoulder strap. It's possible that he had it in his hand but I can recall, as I recall it, it had a shoulder strap.

MR LAX: That's what you testified earlier and it struck me, it struck me particularly when you were taken through your affidavit and you didn't correct that? You were specifically shown the paragraph dealing with what you saw, paragraph 10 on page 16 of bundle 2. It's the paragraph at the top of the page. If you look at the second last sentence, you say:

&#9;"I immediately observed that the one person had a firearm in his hand and that he had lifted it up."

That wasn't your evidence at all and you didn't correct that when you were given an opportunity to?

MR VAN DYK: Chairperson, if I said that I picked it up, that's correct. The question that was asked of me now was that can I recall that he had a shoulder strap which had hung from but if the thing was in his hands that was also possible. I cannot say now that it was so.

MR LAX: He couldn't have had it over his shoulder if he had it in his hands? He's holding it in two hands and he picks it up. Now that's very different to walking, as you demonstrated, like this, with a rifle as one would walk with a rifle with a shoulder strap.

MR VAN DYK: No Chairperson, what I mean is that if the strap was over his shoulder the firearm will hang down here.

MR LAX: But there's a big difference between walking with the shoulder strap whether it's pointing up or down is irrelevant and having it in your hands?

MR VAN DYK: But he had it in his hands.

MR LAX: But how could he have it in his hands if he had it on a shoulder strap.

MR VAN DYK: It was over his shoulder and he held the firearm with one hand.

MR LAX: Normally you hold a rifle with two hands, isn't that so?

MR VAN DYK: Yes if you want to get technical he could have held it with one hand or two hands.

MR LAX: You explain to me how in the time you saw him and you opened fire very quickly, right? Say yes, don't nod your head. Just answer, I said right? And you nodded your head. Do you mean yes? Hello?

MR VAN DYK: Please repeat the question then I'll answer?

MR LAX: I said you opened fire quickly and you nodded your head and then I said the nod is not going to get picked up on the microphone.

MR VAN DYK: That is correct, Chairperson, I shot when I saw the man had a firearm. 

MR LAX: Correct, now how could he fire shots at you so quickly that once he's got the rifle over his shoulder?

MR VAN DYK: I think he is a trained person. If he came in with a firearm and had to return and the purpose was to use it. I cannot see that he could not react if persons got up in front of him all of a sudden.

MR LAX: But you see, on your evidence the man threw the thing away and ran away?

MR VAN DYK: That was after the shooting, after he shot him he ran away. Yes, if shots had been fired at me I'd return fire and I ran away again, it has happened to me.

MR LAX: On the evidence as you've told it to us, what time did he have to do that? And he starts running away at the same time because he ran away so quickly you couldn't catch him?

MR VAN DYK: Chairperson, this all happens in a fraction of a second. We shone the light at the man, I saw he had a firearm and there was a shooting, everybody shot and the man ran away at the same time. At a fraction of a second there was no time for them to stand, it's a reaction that takes place immediately.

MR LAX: No, well carry on.

ADV SANDI: Excuse me Mr Nthai. Mr van Dyk, did you personally have any light with you and a torch?

MR VAN DYK: That is what I'm saying. I'm not sure whether I had the torch. I think Willemse had the one flashlight. I'm not sure whether Nofomela or I had the other one but I'm not entirely certain.

MR LAX: But you're sure you had a torch?

CHAIRPERSON: No, ...(indistinct) or Nofomela.

MR LAX: Oh, so you're sure you didn't have a torch?

MR VAN DYK: Nofomela or I had a torch, I'm not sure which one but as far as I know, we had two flashlights there.

MR LAX: Yes, but you would know if you were carrying the torch and firing with you other hand?

MR VAN DYK: Would it make a difference if I said that I had a torch?

MR LAX: Because previously you testified that you weren't sure which of the other two had the other torch?

MR VAN DYK: Let me put it as such. If I can exclude something I would say that I had a torch and Nofomela had a torch.

CHAIRPERSON: You have said consistently, haven't you, that Willemse had a torch?

MR VAN DYK: That is as far as I know, why I say Willemse had a torch, he tied it with tape to his firearm, the flashlight, because when one switches it on it will shine where you are shooting, that is how we did it. That is why I am not certain whether Almond or myself had the other torch but we had two torches.

MR LAX: If you'd used a carbine as you think you might have rather than a pistol, you would have taped it to the barrel of that carbine as well?

MR VAN DYK: That is correct, Chairperson.

MR LAX: Please don't talk to your attorney when you're testifying or to your legal practitioner. You're under oath, you're giving evidence. I've noticed you've done it a few times. You're not entitled to, if you want to ask a legal question of your attorney you're entitled to do that but you're not entitled to explain your evidence to her, over and over again. Please understand that.

MR NTHAI: Mr van Dyk, are you saying that you can't recall whether your firearm was attached with a flashlight?

MR VAN DYK: Because I am not certain whether I had a hand carbine or a pistol or if I had a hand carbine I would have taped it to the barrel, but it's not possible with a pistol.

MR NTHAI: Well you see, the reason why I'm asking you this is because this was put to Mr de Kock by your legal representative. It was put that your firearm had a flashlight?

MR VAN DYK: Mine? I'm not certain whether I had a pistol or a hand carbine, that's why I said if I had a hand carbine we would normally do it like that. If I had a pistol I could not have done so.

MR NTHAI: But you don't recall telling your legal representative whether your firearm had a flashlight or not?

MR VAN DYK: Not that I can recall, I'm not sure.

MR NTHAI: Yes, it was put, I can come to that specifically.

CHAIRPERSON: Have you got the reference to that?

MR NTHAI: It doesn't have pages, the one that ...(inaudible).

MS COLERIDGE: Chairperson, it's the cross-examination by Ms Prinsloo - Van der Walt, sorry.

CHAIRPERSON: Page 882, the top of the page?

MR NTHAI: Yes, it says - you see that?

MR HATTINGH: It's actually at the foot of page 881, Chairperson.

MR NTHAI: Yes, where it says 

&#9;"And he will also further give evidence that when these persons moved there, there was a flashlight attached to his firearm and when he showed his light on the person he saw that one person had been arrested and he saw that there was no possibility that anybody could be arrested. He then fired."

CHAIRPERSON: And that was later corrected to explain that the counsel had not meant to say "arrested" but had meant to say he saw that one person had been armed.

MR LAX: Yes, just let me place on record that we have slightly different numbering on some of the transcripts but we've quoted the correct paragraph.

MS COLERIDGE: Chairperson, I just want to explain the position regarding the numbering, is that some of the legal representatives have the internet facility so then it would be sent through the internet and others had received the bundles so therefore it changes in the numbering.

MR NTHAI: So your firearm had a flashlight?

MR VAN DYK: Not as far as I can recall.

MR NTHAI: So your legal representative didn't put it correctly to Mr de Kock?

MR VAN DYK: That could be yes.

MR NTHAI: Now I want to come to your affidavit. The affidavit you made for the inquest. That is the one that appears on page 15 of bundle 2. You are saying that the reason why you didn't place Mr Nofomela at the scene of the shooting itself, what was the reason?

MR VAN DYK: According to my knowledge at that stage, Mr Nofomela was involved in the matter for which he is currently incarcerated. The court case was pending at that stage and we wanted him to alter the picture so that he would not testify in the case.

MR NTHAI: So you want to tell me that you involved him in this operation while knowing that he was involved in a case?

MR VAN DYK: No, Chairperson. I think the hearing only took place later and the statement which we handed up later. At that stage when the statement was handed in and the post-mortem inquest had to take place, we decided to remove Mr Nofomela from the picture.

MR NTHAI: By then Mr Nofomela was not yet arrested, is that correct?

MR VAN DYK: No, he was not yet arrested but the case was pending.

MR NTHAI: What do you mean he was ...(intervention)

MR LAX: Sorry, can I just interpose? You made this affidavit on the 16th August 1986? 

MR VAN DYK: That is correct, Chairperson.

MR LAX: And this incident happened on the 14th August 1986?

MR VAN DYK: That is correct, Chairperson.

MR LAX: And if you knew he was already involved in a case Mr Nthai's original question to you stands? Why did you use Nofomela who was already involved in a case in this operation?

MR VAN DYK: Chairperson, I think the dates here, the dates that are mentioned here are probably not entirely correct. I'm not sure but the point of the matter is that Mr Nofomela was involved and I then knew that he was involved in a court case and we decided to remove him from the picture.

MR NTHAI: Mr van Dyk, can you just put this thing clear? The affidavit was made on the 16th, two days after the incident?

MR VAN DYK: That is correct, as it is stated here.

MR NTHAI: By then Mr Nofomela was not yet arrested, is that correct?

MR VAN DYK: No, he was not arrested, only after the court case was he arrested.

MR NTHAI: Correct. Now when you said there was a case pending what do you mean?

MR VAN DYK: It was his case that was pending as far as I can recall, the matter where he was involved in Brits.

MR NTHAI: No, but he was not yet arrested for that matter?

MR VAN DYK: No he was not arrested.

MR NTHAI: So you want to tell me two days after you knew that Mr Nofomela was having a case, is that what you're saying? Or there's something wrong with the date of the affidavit itself?

MR VAN DYK: No, I would not dispute the dates there, there would be a reason for that but we did use him and because he had this case pending we decided to remove him from the picture entirely.

MR LAX: If you decided to leave him out of the picture, why do you mention him at all? Why involve him at all in the story?

MR VAN DYK: No, we had him at the other point, that is why in that statement you will see that I had Nofomela and Mogadi at the other point where no shooting had taken place.

MR LAX: Here's a man who you know is involved in a court case on your version, he hasn't been arrested yet, but you know it's pending. You don't want to put him where the shooting is but you put him there. Now you've got a suspicious man who has already got a case pending against him. Why not leave him out completely if you don't want to involve him?

MR VAN DYK: Chairperson, this man always worked with me, we worked together many years and I used him, I trusted him and I regarded him as a good worker and we used him that day ...(intervention)

MR LAX: No, no, you're not answering my question. You haven't understood my question. My questions are really a simple one. You didn't want to involve him in this, that's why you changed the affidavit and told a different version. Why not mention him at all, why rather don't mention him at all in your affidavit so no one would know he was there, it was the end of the matter, he wouldn't be involved at all in the case?

MR VAN DYK: I could have done so Chairperson, but unfortunately it did not work like that, we just placed him at another point.

MR LAX: Well doesn't that sort of defeat the purpose of trying to leave him out completely because of his implication?

MR VAN DYK: I understood what you're saying to me today, that is true but unfortunately it did happen that way and I cannot change that.

MR NTHAI: When this affidavit was drafted, there was a discussion around the affidavits themselves, is that correct?

MR VAN DYK: That is correct, yes.

MR NTHAI: And who took the affidavits?

MR VAN DYK: Pienaar, as far as I know.

MR NTHAI: And you are the one who told him about the things that appears here?

MR VAN DYK: Yes, we decided beforehand how we would draw up this statement. Mr Pienaar did testify to that effect that that is what happened.

MR NTHAI: I'm talking about where you decided, that where you decided there was a meeting where you decided, is that correct?

MR VAN DYK: It must have been in his office as far as I can recall. Mr Pienaar's office.

MR NTHAI: And who came with the suggestion that Mr Nofomela's name must not be placed at the shooting itself?

MR VAN DYK: I'm not sure, it could have been I, it could have been Mr de Kock, but I think I made the suggestion. I'm not sure now.

MR NTHAI: You see, Mr Sindane - I mean he is going to say that, I mean, first of all he never shot at you and you shot at him and then he dropped the weapon and then he ran. Are you going to dispute that?

MR VAN DYK: Yes, I will deny that, Chairperson.

MR NTHAI: And you are saying that you never had any dealings with Mr Sindane thereafter, I mean after the shooting, after he was arrested?

MR VAN DYK: I never had any dealings with Mr Sindane thereafter or I had any conversation with him. He was Mr Pienaar and Botha's responsibility, they did the investigation.

MR NTHAI: And there was no stage where you were present when he was interrogated?

MR VAN DYK: Not that I can recall.

MR NTHAI: I have no further questions.

NO FURTHER QUESTIONS BY MR NTHAI

CROSS-EXAMINATION BY MS COLERIDGE: Thank you Chairperson.

&#9;Mr van Dyk, it is clear that Mr de Kock's version is that this was always clearly an ambush, is that correct?

MR VAN DYK: That is correct, Chairperson.

MS COLERIDGE: And according to you, you had some form of discretion in these circumstances, is that correct?

MR VAN DYK: That is correct, yes.

MS COLERIDGE: Who was your commander at that stage?

MR VAN DYK: It was Mr de Kock.

MS COLERIDGE: And when your commander gives you an order, an instruction, do you follow that?

MR VAN DYK: That is correct, Chairperson.

MS COLERIDGE: So in that instance, you don't really have a discretion, is that correct?

MR VAN DYK: No, but Mr de Kock always left room for if there was any problems where he was not present where one could take your own decisions.

MS COLERIDGE: Sure, I understand what you're saying but in this instance, his instruction was very clear from the outset that this was an ambush?

MR VAN DYK: Yes, one could describe it as an ambush. As I've said ambush probably means to you just kill but as I understood it, if we had find those persons first and then we'll them.

MS COLERIDGE: We've heard many definitions of an ambush and to accordingly, the record stands that an ambush is to eliminate people?

MR VAN DYK: I will not argue that.

MS COLERIDGE: I just want to refer the Committee to page 854 of the bundle. That's the transcripts where Mr de Kock states Mr van Dyk contacted him after the incident. I'll just read it to you, Mr van Dyk. Mr de Kock states:

&#9;&#9;"Yes, Mr van Dyk contacted me. I think it was on the radio, I'm not certain. I speak under correction and he told me that with the return of the two carriers they then led them into an ambush with the silenced weapons and one person was shot dead."

So that was your report back to Mr de Kock, is that correct?

MR VAN DYK: Yes it's possible, I'm not sure what was said there but it's possible that that's how I relayed it to him.

MS COLERIDGE: So it's very clear that ...(intervention)

CHAIRPERSON: I think you should read to the end of that sentence where he says following on the fact that that person had escaped, not to cross the border and to attack the vehicle to kill that ANC members. He is saying here clearly that the instruction was if they had not escaped, to cross the border and kill the other persons?

MR VAN DYK: That is correct, Chairperson.

MS COLERIDGE: And then I just want to take you through to the versions of the shooting again. Your versions and Willemse's versions are very different. That is the shooting and I just want to refer you to all the relevant parts so we don't get it wrong. Mr Willemse's version would be on bundle 2 page 13 at paragraph 10.

MS VAN DER WALT: I beg your pardon, is reference made here to the statements? That is not the statement or the version as it appears in the amnesty application?

MS COLERIDGE: That is correct. He states at paragraph 10:

&#9;&#9;"When the two Black men came close to us, we stood up and shone our flashlights at them. Lt van Dyk commanded the two in English to stand still and that we were the police"

Now we know that is incorrect, that did not happen. Then he goes on further:

&#9;&#9;"I noticed that one of the Blacks had firearm with him that he lifted up in our direction"

Paragraph 11:

&#9;&#9;"Lt van Dyk immediately started firing at them."

What is your comment regarding that?

MR VAN DYK: Chairperson, as I have said now that these are the previous post-mortem inquest statements here and the correction that I made according to my recollection and according to my knowledge that I have, when the lights were shone at the people, there was an immediate firing and that is when Mr Sindane through down the firearm and ran away.

MS COLERIDGE: And then in his amnesty application, Mr Willemse states at pages - this is just for the record, page 53 of bundle 1, it will be paragraph 2, line 12. He states that:

&#9;&#9;"We heard that one of the two persons cocked a firearm but before he could fire a shot we fired at the persons."

So basically his version is quite consistent in a sense that Mr Sindane or none of those operatives actually fired on you, is that correct?

MR VAN DYK: Chairperson, as I have said in my evidence I cannot recall the firearm being cocked. All that I can recall was that the lights were shone at them. We saw the firearm and we opened fire.

MS COLERIDGE: And then I want to refer you to Mr Sindane's statement that he made. That would be page 76, Chairperson, bundle 2, paragraph 12. He states very clearly, at paragraph 12:

&#9;&#9;"We were ambushed without warning as we walked along this footpath. Many shots were fired at us from the edge of the plantation. I was shot in my right forearm, left upper elbow, right hip and through both my thighs."

So basically it is clear that he states that it was an ambush, that according to his evidence as well as in his affidavit there was actually no time to actually shoot back?

MR VAN DYK: Chairperson, yes. In that fraction of a second of switching on the flashlight and the reaction takes a fraction of a second. For me it appeared that this man was a trained person, he could handle a firearm and my recollection is that we exchanged fire, it was not just from one side.

MS COLERIDGE: My other question to you is why did you use silencers on your firearms and the other persons at the other position had no silencers?

MR VAN DYK: Chairperson, as I have explained this was because of the mere fact that the persons who moved away in the vehicle, they would have been close enough to hear the gunshots if we did not use any silencers that was the only reason why we used silencers and the persons at the other point, they did not need it because it was the second ambush there.

MS COLERIDGE: It seems a bit strange, Mr van Dyk, because silencers, it is obvious that the persons in the vehicle would move once they'd dropped those persons there or once those persons crossed the borders and therefore you had silencers in order not to disturb the other persons moving across the border. What is your comment about that? That your intention was to ambush, to kill and not setting off a warning to the other persons crossing?

MR VAN DYK: No.

CHAIRPERSON: What other persons were crossing the border?

MS COLERIDGE: I want to just clarify that with Mr van Dyk.

MR VAN DYK: The only reason as I have said was to - the persons moving away, we did not want to alert them to the fact that a shooting was taking place behind them because a firearm without a silencer could be heard very far at night and they were persons who could have been in that area who could have heard the shots even with the silencer, it's not all that quiet.

MS COLERIDGE: And then just one last - Mr Deetlef's evidence was that when he was cross-examined by Mr Roelof du Plessis, his evidence was also in relation to the fact of the arrest. Obviously there's lots of versions about this arrest going forth and then he was specifically asked about the persons at the border and he conceded that the persons at the borders task was to eliminate persons. What is your comment on that?

MR VAN DYK: That is correct, Chairperson. If the operation went according to plan they would have all been eliminated anyway but we first had to find the person and then to eliminate them if we could find the persons on the other side of the border. 

MS COLERIDGE: And just in relation to Sindane, he was the guide, is that correct?

MR VAN DYK: Yes that is correct.

MS COLERIDGE: Wasn't he the first person that was shot?

MR VAN DYK: I think they were walking diagonally behind each other, he walked in front because he knew the area as far as I could recall. Mr Sindane was not hidden behind him, if I may put it as such.

MS COLERIDGE: And you never attempted to arrest the guide?

MR VAN DYK: Not when I saw a firearm.

MS COLERIDGE: Mr de Kock states that persons are talking about arrests, lots of people that's regarding this application and that most persons are lying about the fact that there was ever talk about an arrest and that this issue was very clear, it was ambush and it was to eliminate people.

MR VAN DYK: Chairperson, in this regard I must state it as follows, to state it clearly, these persons, even if they were arrested, even if we succeeded in arresting this person, as soon as they showed us the person on the other side we would have eliminated all of them. The main purpose was not to arrest and detain. If we arrested them and we didn't find the persons on the other side of the border, we would have still eliminated them.

MS COLERIDGE: Chairperson, if you would just give me one second?

Thank you Chairperson, I have no further questions.

NO FURTHER QUESTIONS BY MS COLERIDGE

CHAIRPERSON: Re-examination?

RE-EXAMINATION BY MS VAN DER WALT: Just on a singular aspect, Chairperson.

&#9;Mr van Dyk, for the record you have a beard, is that correct?

MR VAN DYK: That is correct.

MS VAN DER WALT: And during that time were you shaven?

MR VAN DYK: No, I had quite a beard.

MS VAN DER WALT: Have you had a beard all your adult life?

MR VAN DYK: Yes.

MS VAN DER WALT: No further questions, thank you Chairperson.

NO FURTHER QUESTIONS BY MS VAN DER WALT

MR SIBANYONI: Mr van Dyk, at one stage you used the words "you shot back" now I want to get clarity on that. Who fired shots first?

MR VAN DYK: It's impossible to say, I just know there was an exchange of fire because in such a situation to be able to say who fired first, in this regard I cannot say. If I had to accept that we had the advantage with the flashlights that we turned on and these persons were surprised then I could say we probably fired first. It is possible.

MR SIBANYONI: And the way I understood it, these persons were very close to where you were lying for ambush?

MR VAN DYK: Yes, I said two and a half to three metres approximately.

MR SIBANYONI: Yet Mr Sindane managed to escape?

MR VAN DYK: Correct, Chairperson.

MR SIBANYONI: Further, do you think of any reason why Nofomela would differ from you in his version?

MR VAN DYK: No, Chairperson. He may have seen it differently. As I've said that he was not involved in the post-mortem inquest originally because I placed him at another point and that may be why he differs.

MR SIBANYONI: Are you saying during the time of this incident on the 14th August 1986, Nofomela already had a case pending against him?

MR VAN DYK: That is as far as I can recall. The case was already pending for which he appeared.

MR SIBANYONI: Was he already charged or what was the position?

MR VAN DYK: I'm not sure but I know that there was some case pending. How far it was developed I did not know and how far it had progressed. I was not sure but that is how I recall it. That is why he was placed at another point.

MR SIBANYONI: Thank you Chairperson, no further questions.

MR LAX: Thanks Chairperson, just a few aspects.

&#9;Mr van Dyk, I may have mislead you when I asked you earlier about the purpose of the silencers. Are you quite clear that the main reason - you said the only reason in fact was that you didn't want the people in the vehicle to hear the shots?

MR VAN DYK: That is correct.

MR LAX: Now others have testified that the reason the silencers were to be used was because they didn't want the TIN people to hear?

MR VAN DYK: No Chairperson, I do not know why we would want to hide that. Other persons were also lying at some point. They made more noise than they did. The point was about the fact that the persons from the vehicle should not hear the shots.

MR LAX: Surely the other reason you would want to use the silencer and it's an obvious one, is that if you go and you're going into Swaziland, you don't want anyone in Swaziland to hear you shooting? You don't want the border guards to hear you shooting?

MR VAN DYK: That is also true, Chairperson, that is correct.

MR LAX: Now I made a note of what you said earlier. I just want to be clear about this. Where did the vehicle that picked them up come from?

MR VAN DYK: It came from Lother, Chairperson.

MR LAX: You see, the evidence is that that vehicle came through the border post?

MR VAN DYK: No, Chairperson, the border post closes at 6 o'clock, it couldn't have come through the border post and it definitely came from Lother's side and turned up.

MR LAX: So he came from Lother's side?

MR VAN DYK: That is correct, Chairperson.

MR LAX: And these people came from the Amsterdam side?

MR VAN DYK: No, they came from Nerston's side.

MR LAX: I see. And you're quite sure in your own mind that if Nofomela says he wasn't with you he is making a mistake?

MR VAN DYK: Yes Chairperson.

MR LAX: And you're absolutely sure in your own mind that if - well, you've just recently conceded it was possible. If Willemse says you opened fired first, he's quite clear about that?

MR VAN DYK: I see that that is what he says but I would accept that we the advantage and fired shots first but there was an exchange of fire.

MR LAX: You see, on all the versions, you made no effort at all to try and stop these people and capture them?

MR VAN DYK: There was no chance, I would not argue with a firearm, Chairperson.

MR LAX: Why didn't you just try and wound him, non-fatally?

MR VAN DYK: There was no chance, Chairperson, we opened fire and the reaction was that this person was armed.

MR LAX: One person was armed.

MR VAN DYK: I mean the one person was armed.

MR LAX: Why shoot the other person? He's not armed, you saw he wasn't armed, why shoot him?

MR VAN DYK: This was all in the cross-fire, we could not say that he did not have a firearm, he could have had a pistol in his pocket and we wouldn't have seen it at that stage.

MR LAX: But he was in front, you saw him first?

MR VAN DYK: Yes, but if had a pistol in his pocket or had it somewhere behind him we wouldn't have seen it.

MR LAX: Well you see, either you thought he might be armed and you shot him, which is one possibility, or he was hit in the cross-fire which is a completely different possibility. Now your version and the version of your other colleagues is that he was unarmed and you saw that?

MR VAN DYK: We saw that afterwards at the time when I saw he didn't have a firearm but I could not accept that he didn't have anything with him at that stage.

MR LAX: So he wasn't shot in the cross-fire, you intended to kill him?

MR VAN DYK: Yes, I shot to kill, there's no other explanation, Chairperson.

MR LAX: Thanks, Chairperson, I've no further questions.

&#9;Sorry, there's just one other aspect that was worrying me. You were all at the farm prior to this operation, is that right?

MR VAN DYK: Yes, every month at a certain time we were at the farm.

MR LAX: You were busy with the Glory Sedibi matter?

MR VAN DYK: The Sedibi incident was also from Piet Retief.

MR LAX: It happened the day before in fact?

MR VAN DYK: That is correct, Chairperson.

MR LAX: So were you part of that?

MR VAN DYK: That is correct, Chairperson.

MR LAX: So you were busy with it?

MR VAN DYK: That is correct, Chairperson.

MR LAX: And then fortuitously Pienaar spoke about this other thing and you guys then decided or at Colonel de Kock and Pienaar then between them decided they would do this little operation as well?

MR VAN DYK: That is correct, Chairperson.

MR LAX: How were you informed, what were you told exactly?

MR VAN DYK: Only that the information existed that trained MK members would come through and that this source would transport these people and that we would wait for them.

MR LAX: You see, what I'm trying to understand is, what exactly were you doing at the farm that day, what was your specific task? Can you even remember what you were doing there?

MR VAN DYK: I beg your pardon, Chairperson, I may have misunderstood you. When you referred to the farm I referred to Vlakplaas, not Piet Retief. 

MR LAX: You were at a safe farm where Sedibi was being held?

MR VAN DYK: There where Sedibi was being detained, when we brought him out we took him to the place at Piet Retief, the farm. I did not participate personally in the questioning myself. I may have been in or out of there but I did not participate. We had other work so from there we moved. They would contact them if they wanted to know.

MR LAX: So then the truth is you don't really know what you were doing that day?

MR VAN DYK: Not that specific day. After Sedibi was taken I did not participate in any questioning.

MR LAX: I'm not saying you did or didn't, I'm just trying to understand what you can or can't remember and how it was that you came to know about this operation?

MR VAN DYK: Mr de Kock told me.

MR LAX: Yes, where did he tell you that?

MR VAN DYK: It could have been there at the farm, it could have been in the offices, I'm not sure but he told me that there was an operation.

MR LAX: Did he speak to you personally, did he speak to the whole lot of you?

MR VAN DYK: He spoke only to me.

MR LAX: Only you?

MR VAN DYK: As far as I recall I was alone when he spoke to me.

MR LAX: And did he tell you about the rest of the operation or did he tell you what your part would be?

MR VAN DYK: No, in general he gave broad general information to me as to what we would do and what they would do. It was just general information.

MR LAX: But the fact is that you - as I see your testimony, you essentially have reconstructed what happened, you have no independent recollection in your own mind about what happened?

MR VAN DYK: Where I was present I know exactly what happened as far as I can recall but what happened at the other points I cannot recall, I am not able to say.

MR LAX: Do you have any independent recollection of these events in your own mind as you sit here today? Crystal clear about exactly where you were when he told you, etc etc?

MR VAN DYK: No Chairperson. It's too long back.

MR LAX: My point to you is as I can see your testimony and the way you're testifying, it's clear to me that you don't have an independent recollection, you're just going on what half of these affidavits say and what's been reconstructed between all of you?

MR VAN DYK: No Chairperson, as far as I can recall, I can tell you but things that I cannot recall so well I cannot tell you about. I would not want to say something that I myself do not believe.

MR LAX: Thank you Chairperson.

CHAIRPERSON: Thank you.

WITNESS EXCUSED

NAME:&#9;&#9;&#9;CORNELIUS JOHANNES BOTHA

APPLICATION NO: &#9;AM5015/97

_____________________________________________________

MS VAN DER WALT: The following, Chairperson, is Mr Cornelius Johannes Botha.

CORNELIUS JOHANNES BOTHA: (sworn states)

EXAMINATION BY MS VAN DER WALT: Mr Botha, your application is to be found in bundle 1, your formal application on page 242, the incident on 245 to 247 and the political motivation from 248 to 255, is that correct?

MR BOTHA: That is correct, Chairperson.

MS VAN DER WALT: You have also heard the evidence of the other applicants and you are aware that there were three groups. You were with the group that took up position with the vehicle, is that correct?

MR BOTHA: Yes that is correct, there at the Nerston/Amsterdam Road.

MS VAN DER WALT: And what were your instructions, what were you to do there?

MR BOTHA: We had to wipe out these persons, setting up a trap.

MS VAN DER WALT: And you have now heard that the vehicle came to a stop at a certain point, can you please tell the Honourable Committee where exactly you were standing when the vehicle came to a stop?

MR BOTHA: Chairperson, my position was second from the right, just left of Mr Labuschagne.

MS VAN DER WALT: If we have regard for the vehicle would this be towards the rear of the vehicle?

MR BOTHA: Yes, towards the rear of the vehicle.

MS VAN DER WALT: And how were you supposed to fire?

MR BOTHA: My idea was to fire through the back of the bakkie if there were persons on the back of the bakkie under the canopy.

MS VAN DER WALT: You say Mr Labuschagne was on your right?

MR BOTHA: Yes.

MS VAN DER WALT: Who was on your left?

MR BOTHA: I cannot recall, Chairperson.

MS VAN DER WALT: And you then opened fire there, is that correct?

MR BOTHA: That is correct, Chairperson.

MS VAN DER WALT: You in your application mention that the passenger - that's page 246, Chairperson, paragraph 5, that the passenger on the left hand side of the vehicle climbed out, is that correct?

MR BOTHA: He tried to get out, Chairperson.

MS VAN DER WALT: You have already heard the evidence of Mr de Kock and Mr Labuschagne that the door of the vehicle did not open, what do you say about that?

MR BOTHA: No Chairperson, the door did open.

MS VAN DER WALT: Could you see the door from your position?

MR BOTHA: Yes Chairperson.

MS VAN DER WALT: And did you see any firearm with this person?

MR BOTHA: He had something in his hand which looked like a firearm, Chairperson, looked like a firearm in the dark.

MS VAN DER WALT: And afterwards, did you see any firearms in the vehicle?

MR BOTHA: Yes Chairperson. On the back of the bakkie under the canopy there were many firearms and in front there was a handgrenade and I don't know whether it was a Makarov or a Tokarev but there was a hand weapon.

MS VAN DER WALT: And all the persons in the vehicle were shot dead?

MR BOTHA: They were all killed, Chairperson.

MS VAN DER WALT: You have heard the evidence of Mr van Dyk that you went to a point where he had taken up position. Did you transport the body of the person who was killed there?

MR BOTHA: That is correct, Chairperson.

MS VAN DER WALT: And the other persons who were killed at the place where you fired shots?

MR BOTHA: Yes, that's also correct, Chairperson.

MS VAN DER WALT: In the post-mortem inquest you made two statements? Chairperson, this is on page 22 as well as pages 9 and 10 of bundle 2. This only deals with regard to the transport of the corpses, is that correct?

MR BOTHA: That is correct, Chairperson.

MS VAN DER WALT: You did not make any statement with regard to the shooting in the post-mortem inquest itself?

MR BOTHA: No, Chairperson.

MS VAN DER WALT: You then apply before this Honourable Committee for the murder of the three persons in the bakkie?

MR BOTHA: That is correct, Chairperson.

MS VAN DER WALT: As well as conspiracy to murder? You conspired to murder the person who was killed at the T-junction?

MR BOTHA: That is correct.

MS VAN DER WALT: And the attempted murder of Mr Sindane?

MR BOTHA: That is correct, Chairperson.

MS VAN DER WALT: As well as defeating the ends of justice?

MR BOTHA: Yes Chairperson.

MS VAN DER WALT: And any other offence which might flow from your actions of the operation there at Nerston?

MR BOTHA: That is correct, Chairperson.

MS VAN DER WALT: As well as any delictual accountability?

MR BOTHA: That is correct, Chairperson.

MS VAN DER WALT: No further questions, thank you Chairperson.

NO FURTHER QUESTIONS BY MS VAN DER WALT

MR HATTINGH: Hattingh on record, Chairperson, I have no questions, thank you.

NO QUESTIONS BY MR HATTINGH

CROSS-EXAMINATION BY MR RAMAWELE: Thank you Chairperson, it's Ramawele. I just want to put to you just one submission that Mr Nofomela will say that the people who were going to go back to the Swaziland border were supposed to be eliminated and not arrested.

MS VAN DER WALT: Yes.

MR BOTHA: Yes Chairperson.

MR LAX: Mrs van der Walt, please. Don't say "ja" to the witness when he's answering. I can hear you from here. It's really unacceptable. Okay?

MS VAN DER WALT: I'll do that.

MR RAMAWELE: You say yes?

MR BOTHA: Yes Chairperson.

MR RAMAWELE: That's all Mr Chairperson.

NO FURTHER QUESTIONS BY MR RAMAWELE

MR LAMEY: Thank you Chairperson, Lamey on record, on behalf of applicant Fourie, I've got no questions.

NO QUESTIONS BY MR LAMEY

CROSS-EXAMINATION BY MR ROSSOUW: Thank you Chairperson.

&#9;Mr Botha, I would just like to put one question to you. There is one firearm that you had with you. Did you use tracer rounds in the magazine?

MR BOTHA: I cannot recall, Chairperson.

MR ROSSOUW: Can you recall if you saw any tracer rounds that evening of any of the other persons who fired shots there?

 

 

 

MR BOTHA: No, I cannot recall, Chairperson.

MR ROSSOUW: Nothing further.

NO FURTHER QUESTIONS BY MR ROSSOUW

MR PRINSLOO: Prinsloo, Chairperson, no questions thank you.

NO QUESTIONS BY MR PRINSLOO

CROSS-EXAMINATION BY MR ROUX: Roux, Chairperson, just one aspect.

&#9;Mr Botha, you were lying next to Mr Labuschagne on his left, that was your evidence?

MR BOTHA: That is correct.

MR ROUX: And that was right opposite the rear wheel in that vicinity?

MR BOTHA: Yes Chairperson.

MR ROUX: During your evidence, I did not hear you saying that the person tried to climb out or opened his door that was in the left in front with the pistol in his hand. You did not say that?

MR BOTHA: I did say that.

MR ROUX: Oh, you did say that?

MR BOTHA: That is correct.

MR ROUX: Your instruction was to fire into the back of the canopy, as you put it?

MR BOTHA: That is correct, Chairperson.

MR ROUX: Now when the shots were fired how quickly after the bakkie had stopped, shall I ask, did the shots commence?

MR BOTHA: Chairperson, I'm not sure but it was relatively quickly, it was only first just after the driver climbed out.

MR ROUX: Very well, the driver who climbed out and moved towards the back of the bakkie around the right hand side, did you see this person climbing out and moving in that direction?

MR BOTHA: No, Chairperson.

MR ROUX: Did you see him opening his door and getting out?

MR BOTHA: No, Chairperson.

MR ROUX: So I would assume the reason for this was that your attention was where you were instructed to check, you were firing at the canopy and you were looking at the canopy to see if you saw anyone there because you were to fire shots into the canopy?

MR BOTHA: That is correct, Chairperson.

MR ROUX: Very well then. Then your attention was not at the left front door, the passenger side of this bakkie, is that correct?

MR BOTHA: No, Chairperson.

MR ROUX: Please explain that? If your attention was focused on the back of the canopy and you were lying approximately two or three metres from the canopy which is quite close to you, how did you then observe all the other points like the left front door?

MR BOTHA: Chairperson, the bakkie is not very big and if I look at this person asking me the questions I can see the persons to the left of me, I do have a wide vision.

MR ROUX: I do not want to cross-question you too long on this but this is one of the aspects which bother me and this is with regard to the person who would climb out of the van with a pistol in his hand as Greyling also had said. You afterwards saw in which position this person was sitting in the van. This was when he was dead?

MR BOTHA: That is correct, Chairperson.

MR ROUX: The persons who had already given evidence said that he had his two feet in the inside on the ground of the bakkie with the firearm in between his legs and he lay sideways towards the steering wheel?

MR BOTHA: That could be so, Chairperson, I do not have an exact position of how he was lying.

MR ROUX: You would accept it the other persons testified to that effect that it could be indeed the case?

MR BOTHA: That is correct, Chairperson.

MR ROUX: Would then please advance an explanation as to why this person would be in that particular position if he was busy getting out with a pistol in his hand on the left hand side of the bakkie?

MR BOTHA: Chairperson, yes, this person was shot back into the vehicle.

MR ROUX: Because you see, Mr Labuschagne - he gave evidence and you certainly heard this, that no one was giving a chance except for the driver who climbed out and moved to the back of the van to do anything before shots were fired? The correct definition of the work "lokval" or ambush, the moment when that person climbed out Col. de Kock started firing and the rest of the people afterwards. No one was given a chance to make any move except for the driver. Now what is your attitude towards that?

MR BOTHA: But that must have been the position, Chairperson, but the door opened before the shooting started.

MR ROUX: I would put it to you that it is highly improbable and I would argue to that effect. Your comment?

MR BOTHA: That may be so, Chairperson. If it has to be argued he can argue it but that is how I saw it.

MR ROUX: Thank you Chairperson, no further questions.

NO FURTHER QUESTIONS BY MR ROUX

CROSS-EXAMINATION BY NTHAI: Mr Botha, who told you about this plan to ambush these people?

MR BOTHA: If I recall correctly, Chairperson, it would be Mr de Kock. It was Mr de Kock or Mr Pienaar.

MR NTHAI: What did he say was going to happen?

MR BOTHA: Chairperson, he only informed me that people would be coming through and we would set up a trap and we would shoot the people.

MR NTHAI: Did he say you were going to set up a trap or you were going to ambush the people?

MR BOTHA: Chairperson, I would use the English word ambush here as opposed to the Afrikaans word "lokval" or trap because ambush means more that we would kill them.

MR NTHAI: And did he tell you about what is going to happen to the driver?

MR BOTHA: Chairperson, yes. This I understood at the scene, if I recall correctly that the driver would also be killed because he was the informer and he would also be killed.

MR NTHAI: At that time when you were informed, the question of the driver never arose. You were never told about the driver?

MR BOTHA: Not that I can recall, Chairperson.

MR NTHAI: How did you come to learn about the fate of the driver at the scene? Who told you that?

MR BOTHA: I think it was Mr Labuschagne who was to the right of me. It was said it was his instruction that if the driver came around we should shoot him while we were busy with the preplanning and the setting out of the ambush.

CHAIRPERSON: No, no, who was supposed to shoot him? Were you supposed to shoot him or Mr Labuschagne was supposed to shoot him?

MR BOTHA: Mr Labuschagne was supposed to shoot him.

MR NTHAI: I see. Were you told as to how many people were going to come there in that bakkie?

MR BOTHA: Please repeat that question?

MR NTHAI: Were you told how many people were going to with the bakkie?

MR BOTHA: No, Chairperson, there was no definite number given, it could have been more or less people, no figure was given to me.

MR NTHAI: I see. Now why was Mr Labuschagne telling you that he's supposed to kill the driver? Did he tell you that he was not supposed to kill him initially? At the scene, why did he tell you that he was supposed to kill the driver? He just told you out of the blue?

MR BOTHA: Yes Chairperson.

MR NTHAI: Why would he do that because I mean, according to you, you were supposed to eliminate these people?

MR BOTHA: Chairperson, he just told me, I don't know.

MR NTHAI: Did he tell you perhaps that initially he was not supposed to kill this person?

MR BOTHA: Chairperson, it could have been, I do not know.

MR NTHAI: So you can't recall exactly what he said?

MR BOTHA: I cannot recall everything, Chairperson.

MR NTHAI: I see. Who fired first at the scene?

MR BOTHA: Chairperson, no, it was to the left of me, I'm not sure who it was.

MR NTHAI: And how long did this firing last?

MR BOTHA: Chairperson, once again, under correction, it must have been a few seconds.

MR NTHAI: And once the first fire went on and then there was just shooting at random, is that correct?

MR BOTHA: No Chairperson. After the first volley of shots, as I have said that first few seconds and then we ceased fire and everyone ceased fire.

MR NTHAI: So what I'm trying to say, it happened very fast, is that correct?

MR BOTHA: That is correct, Chairperson.

MR NTHAI: And immediately after the first fire you also started shooting?

MR BOTHA: That is correct, Chairperson.

MR NTHAI: And you were looking at where you were shooting, is that correct?

MR BOTHA: That is correct, Chairperson.

MR NTHAI: According to your instructions, is that correct?

MR BOTHA: That is correct, Chairperson.

MR NTHAI: And you were looking at the back of the bakkie, is that correct? That's where you were supposed to concentrate?

MR BOTHA: That is correct, Chairperson.

MR NTHAI: When the driver was shot, did you see that?

MR BOTHA: Yes Chairperson.

MR NTHAI: Now when did you have time to see this person was jumping out?

MR BOTHA: Chairperson, I was close to him, I could see it.

MR NTHAI: Now you are saying that this person opened the door and you said today that he had something like a firearm but in your application you were sure that it was a pistol?

MR BOTHA: Yes Chairperson, I was certain it was a pistol but if I may explain, it was dark, it's difficult. It could be possible that it could have been something else in his hands but at that time I believed that it was a pistol.

MR NTHAI: Did somebody tell you it was a pistol?

MR BOTHA: I saw the pistol in the front of the bakkie, Chairperson.

MR NTHAI: Now why today are you talking about something that - why today are you not specific about the pistol?

MR BOTHA: Chairperson, it must be the way that I speak. I was certain at that stage that it was a pistol and it could be that it could have been something else.

MR NTHAI: No, but I'm trying to say you were certain when at the scene that it was a pistol, is that correct?

MR BOTHA: That is correct, Chairperson.

MR NTHAI: There's no reason for you today to come and say that it's something in his hand. You have to say the pistol, is that correct?

MR BOTHA: That is correct, Chairperson.

MR NTHAI: So the question is why are you changing that now, talking about something that looks like a pistol.

MR BOTHA: Chairperson, there was no purpose, it was not intentional that I changed it that I said that I think it was a pistol, it could have been a pistol at that stage. I believed it was a pistol and I still believed today that he had a pistol in his hand. But in the dark an object a few metres away from you, one that looks like a pistol, one cannot categorically say that it is a pistol. There is a difference there.

MR NTHAI: No, but you said in your initial - in your application when you had time to recollect what happened, that it was a pistol, you were certain about that?

MR BOTHA: That is correct, Chairperson.

MR LAX: May I just interpose? Why were you categorical in your amnesty application if you're not sure? Surely you knew you had to tell the truth in your amnesty application?

MR BOTHA: No there was no specific reason for that, Chairperson.

MR LAX: Why didn't you say there was a gun-like object in his hand or a pistol-like object as you're saying now in your testimony?

MR BOTHA: Yes Chairperson, there's no explanation for that, I do not know why I wrote it that way.

MR LAX: Why did you say the man jumped out of the vehicle rather than he tried to get out of the vehicle which is what the truth actually is?

MR BOTHA: Yes Chairperson, there may be small differences. It appeared to me that he wanted to climb out and he was shot back and at that stage I saw it as such.

MR LAX: It looked to me like he tried to get out of the vehicle. You say he had categorically -

&#9;"the one passenger on the left hand side with a pistol in his hand who jumped out.."

it's not that he looked as if he was trying to get out of the car. That's categorical, you would concede that?

MR BOTHA: Very well, may I then correct that point? Then it appeared as if he wanted to climb out.

MR LAX: Why did you say that in your amnesty application and you swore on oath that that was the truth?

MR BOTHA: Yes Chairperson, I have no explanation for that.

MR LAX: Sorry, Mr Nthai, I've interrupted your cross-examination.

MR NTHAI: Isn't it you are not having an explanation because you are trying to change your evidence, is that not the reason?

MR BOTHA: No Chairperson.

MR NTHAI: Now you are saying that you are the one who picked up the bodies from the scene, is that correct?

MR BOTHA: That is correct, Chairperson. May I just - if I understand the question "picked up the bodies"? Chairperson, yes, there were persons who assisted me in picking up the bodies but I transported the corpses.

MR NTHAI: Yes, I'm coming to that.

MR BOTHA: Okay.

MR NTHAI: How many people assisted you in carrying the body to the ...(inaudible).

MR BOTHA: Chairperson, I cannot recall.

MR NTHAI: But there were people who assisted you?

MR BOTHA: That is correct, some of the persons who were there at the scene.

MR NTHAI: And how did they load the bodies? Was there somebody standing at the back of the bakkie and picking up the body, giving to this person?

MR BOTHA: That is correct, Chairperson. They passed it on and loaded up as one would usually load up a corpse onto a vehicle. One stands at the top and he pulls it up.

MR NTHAI: No, no, I just want to know exactly what happened. I mean if you don't recall you'd better say you don't recall. Was there somebody who was standing inside the bakkie and then somebody picked up the body and then give it to this person and they put it down?

MR BOTHA: No Chairperson, I cannot recall that specifically. 

MR NTHAI: Were you not observing when the bodies were put?

MR BOTHA: Chairperson, I was busy myself with the loading of the corpses.

MR NTHAI: You were also loading?

MR BOTHA: That is correct, Chairperson.

MR NTHAI: So you picked up a body and you loaded it?

MR BOTHA: I assisted, Chairperson.

MR NTHAI: No, but did you at any stage pick up the body - help in picking up the body and carrying the body physically carrying the body and putting it in the bakkie?

MR BOTHA: Yes Chairperson.

MR NTHAI: So you should remember whether there was any person who was inside the bakkie taking the body from you as you picked it up from the ground? You should remember that?

MR BOTHA: Chairperson no, I cannot recall whether somebody was standing on the van, I think it was we put him on the side and then we dragged it in but I'm not sure.

MR NTHAI: When you say you dragged it in, what do you mean? Just explain? Just explain, I mean it's a very simple thing, you should recall that? You will recall that there was a person jumping with a pistol, I mean you should recall that, you were personally involved in that?

MR BOTHA: Yes Chairperson, yes we dragged it, you drag it by the arms, you drag it deeper into the bakkie, Chairperson.

MR NTHAI: So you picked it up, dragged it and put it in the bakkie?

MR BOTHA: Chairperson, we would pick it up, put it on the back of the bakkie and then we would drag it further in.

MR NTHAI: The person who was picking up the body is the person who put the body in the bakkie and then you dragged him forward. Is that what happened?

MR BOTHA: That could be Chairperson. As I have said that I cannot recall in detail. One would just load up a corpse. We just loaded it up.

MR BOTHA: The ones that you loaded, this corpses were not thrown into the bakkie, is that correct?

MR BOTHA: No, Chairperson, not that I can recall.

MR NTHAI: Okay, so the evidence that the bodies were thrown into the bakkie is not correct?

MR BOTHA: Chairperson, not that I know of, I did not see anyone throwing a corpse onto the bakkie.

MR NTHAI: And you are sure because at least you were the person who was going to transport these people?

MR BOTHA: Yes Chairperson, I assisted in the loading, I did not load up each and every corpse.

MR NTHAI: I mean there was nothing that disturbed you while you were loading, you were there all the time, is that correct?

MR BOTHA: Chairperson, yes I was busy there at the scene. I was not only tasked, I may have assisted with the loading, I may have spoken to someone in the front of the van, I may have been at some other point, I'm not specific.

MR NTHAI: I just want to show you the - I'm sure your legal representative has got it, the sketch that was drawn by Mr de Kock of the scene itself. 

MR BOTHA: The sketch that has been drawn from the?

MR LAX: Yes, it's Exhibit B.

MR NTHAI: Exhibit B.

MR BOTHA: Okay.

MR NTHAI: According to Mr de Kock - you see there are those circles there? That indicates where the people were next to the vehicle, do you see that?

MR BOTHA: That is correct, Chairperson.

MR NTHAI: You were somewhere there also, is that correct?

MR BOTHA: That is correct, Chairperson.

MR NTHAI: According to Mr de Kock there were other people the other side, you see the other three circles there, the other side of the road, do you see that?

MR BOTHA: That is correct, Chairperson.

MR NTHAI: Do you see those people?

MR BOTHA: I see them.

MR NTHAI: Were they there?

MR BOTHA: No Chairperson.

MR NTHAI: So Mr de Kock is not telling us the truth when he says there were other people there?

MR BOTHA: No, there were no people on the other side.

MR NTHAI: I have no further questions.

NO FURTHER QUESTIONS BY MR NTHAI

CHAIRPERSON: How long are you going to be?

CROSS-EXAMINATION BY MS COLERIDGE: Just one question in relation to his amnesty application, Chairperson.

&#9;I just want to refer you to page 247 of your application, that's bundle 1, paragraph 8 in relation to Mr van Dyk. Can you just read the first few lines there of paragraph 8?

MR BOTHA:

&#9;&#9;"Paul van Dyk later joined us and reported to Eugene de Kock that the person who would accompany the two persons who were coming from Swaziland with them they had fired shots at them."

MS COLERIDGE: Was your interpretation in this application that the persons at the border first fired at Van Dyk's group before they actually opened fire?

MR BOTHA: That is correct, that is how I understood it, Chairperson.

MS COLERIDGE: And today you've heard and through the evidence you've heard Willemse say that he believed one person cocked the weapon but Mr van Dyk actually shot, he was the first person to shoot. You've heard what Advocate Nthai had said, what Mr Sindane's version is going to be that they never opened fire. Can you say that you were mistaken here? Does it look as if in this part of your application as if it was self-defence on the part of Mr van Dyk and his group?

MR BOTHA: Chairperson, no, that is how I heard Mr van Dyk reporting to Mr de Kock and may I also say that that is what he told me when I picked up the corpse.

MS COLERIDGE: So when did you hear him speaking to Mr de Kock regarding the shooting?

MR BOTHA: Just after he returned from his point back to our point and just after I arrived there also.

MS COLERIDGE: But you obviously weren't there?

MR BOTHA: At the point of Mr van Dyk? No I was not there, only with the picking up of the corpse, that's the only time I was there.

MS COLERIDGE: And then, just in relation to the man jumping out with the pistol in his hand, would this also regarding the post-mortem report look like self-defence on the part of the people at that point, that this man actually came out with a pistol and therefore threatening them?

MR BOTHA: No, Chairperson, that is how it happened, the only explanation I can advance why Mr Labuschagne did not see it was that because I was in between him and the door and in the dark Mr de Kock was right opposite the door, that's why he couldn't see it, that is the only explanation that I have but it could be some other way also but that's how I see it.

MR LAX: You said that you were between Labuschagne and the door?

MR BOTHA: That is correct, Chairperson, I could have been I said.

MR LAX: He was on your left?

MR BOTHA: He was on my right, I was on his left.

MR LAX: Oh, you were on his left?

MR BOTHA: That is correct.

MR LAX: Thank you.

MS COLERIDGE: And you were aware that Mr Deetlefs also gave this version that the person came out with a pistol in his hand?

MR BOTHA: I cannot recall that whether he also gave that evidence.

MS COLERIDGE: And then eventually he stated that it was a perception, it wasn't as if he could truly remember those facts, it was a perception at the time?

MR BOTHA: I cannot recall what he testified there, I'm sorry, Chairperson.

MS COLERIDGE: It was just under cross-examination by Advocate du Plessis, Chairperson, in relation to that, that he had no true real recollection of the man jumping out but he thought that it was - eventually it was just a perception on his part.

MR BOTHA: If I may come in here, Chairperson, I did not hear everyone's evidence, there was a day that I was not here, Chairperson.

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

NO FURTHER QUESTIONS BY MS COLERIDGE

CHAIRPERSON: Any re-examination?

MS VAN DER WALT: No questions, thank you.

NO RE-EXAMINATION BY MS VAN DER WALT

MR SIBANYONI: Mr Botha, how was the condition of light at the place where the vehicle stopped?

MR BOTHA: Chairperson, it was dark, it's a difference between a clear night and a dark night. In between the two.

MR SIBANYONI: Was there any moon or any source of light there?

MR BOTHA: I cannot recall seeing the moon but if I have to judge upon the strength of the light, there must have been half a moon.

MR SIBANYONI: Did the vehicle remain with it's lights on or were they off?

MR BOTHA: Chairperson, I cannot recall.

MR SIBANYONI: Were you able to see an object in this person's hand, the passenger whom you said was on the left hand side?

MR BOTHA: That is correct, Chairperson.

MR SIBANYONI: Was his hand up or did he just have his hand next to him?

MR BOTHA: Chairperson, I cannot recall exactly where the hand was, it was just silhouetted against the back where there was more light than on his side.

MR SIBANYONI: Now if you say he was shot back into the car, what do you exactly mean by that?

MR BOTHA: Chairperson, when he wanted to jump out or I should not use the word jump out, when he wanted to climb out or when the door opened, the shooting commenced and immediately when the shooting commenced the door and he went back. That is what I mean.

MR SIBANYONI: In other words he went back on his own, not that because of the shooting, the momentum put him back?

MR BOTHA: No Chairperson, that's not what I said. Along with the shooting it was simultaneous.

MR SIBANYONI: Chairperson, no further questions.

MR LAX: Thanks Chairperson. Mr Botha, I just want to be clear about one thing. If you look at Exhibit B, where were you in this exhibit in relation to the vehicle? Don't worry about the three dots and the six dots and so on, just situate yourself on that in relation to one of those dots.

MR BOTHA: Chairperson, if I can situate myself with one of those dots, the place where it is - second to the right hand side.

MR LAX: Second from the right?

MR BOTHA: That is correct, from the right.

MR LAX: Okay and then the next dot after you is Labuschagne?

MR BOTHA: On the right hand side, that's correct.

MR LAX: Is Labuschagne the last dot then?

MR BOTHA: That is correct.

MR LAX: Okay. You said you saw the driver come around?

MR BOTHA: No Chairperson, I did not see him coming around.

MR LAX: You saw him being shot though?

MR BOTHA: Chairperson, he was shot going around the back of the vehicle, I did not see him being shot.

MR LAX: But Mr Nthai asked you specifically did you see the driver being shot and your answer was yes, you saw it? Categorically, it was crystal clear, that's why I'm asking you?

MR BOTHA: No, Chairperson. I did not see him when he was shot, I saw him lying there after the shooting. If I gave that evidence then it was incorrect or I did not understand the question correctly.

MR LAX: You couldn't see the driver from where you were?

MR BOTHA: No Chairperson.

MR LAX: And you say you only saw him after the event?

MR BOTHA: That is correct, Chairperson.

MR LAX: You see, just explain to us then why you tell us in your application that the driver climbed out of the vehicle and came around the back running? You didn't see that happen at all?

MR BOTHA: No Chairperson, which application did I right that?

MR LAX: Just let me just make absolutely sure I'm not misdirecting myself? No, at page 246, paragraph 5?

You said:

&#9;&#9;"Later that evening a bakkie approached us and stopped opposite us. The driver immediately jumped out and ran around the back of the bakkie while the one passenger on the left hand side with a pistol in his hand jumped out."

So you never saw that first part of that sentence at all?

MR BOTHA: Chairperson, that's correct, I did not see the driver jumping out, it was impossible to see him because I was on this side of the van and he was on the opposite side, he was behind the van. That statement there is incorrect. 

MR LAX: Well can you explain to us why it's there at all if you didn't see it happen?

MR BOTHA: Chairperson, I can only assume that it was an assumption that I made there, that I tried to put into a fact which is not so.

MR LAX: So you don't know whether he ran or whether he walked, you've no idea at all?

MR BOTHA: No Chairperson.

MR LAX: Did anyone tell you why the driver had to be shot?

MR BOTHA: Chairperson, no, no one told me.

MR LAX: Now why have you applied for amnesty for the attempted murder of Mr Sindane?

MR BOTHA: Chairperson, because we ambushed these people and it was not ...(intervention)

MR LAX: You weren't there at all?

MR BOTHA: I was there, that's what I said.

MR LAX: Mr Sindane? Mr Sindane was ambushed elsewhere?

MR BOTHA: Oh, I beg your pardon.

MR LAX: You weren't present at all?

MR BOTHA: Yes I don't know. Not for Mr Sindane, only for the incident there at Nerston.

MR LAX: Thank you Chairperson, I've no further questions.

CHAIRPERSON: One matter I would like to clear up, I don't know if you can help us? When you were waiting for this bakkie to arrive at the scene, were you lying down in the grass, squatted down in the grass, standing up? What were you doing?

MR BOTHA: We were lying down Chairperson.

CHAIRPERSON: Thank you.

MR LAX: Just to follow on if I may Chairperson?

&#9;Did you fire from a lying position at the vehicle?

MR BOTHA: No Chairperson.

MR LAX: What did you do?

MR BOTHA: When the van stopped in front of us we stood up and moved closer and then we shot.

MR LAX: So you stood up, walked towards the vehicle, one or two paces, because you were only three metres from the vehicle?

MR BOTHA: That is correct, Chairperson.

MR LAX: Thank you. Thanks Chairperson.

CHAIRPERSON: Thank you.

WITNESS EXCUSED

MS VAN DER WALT: Those are then the applicants for whom I appear.

MS COLERIDGE: Chairperson, the next amnesty applicant is Isak Daniel Bosch.

NAME:&#9;&#9;&#9;ISAK DANIEL BOSCH

APPLICATION NO: &#9;AM3765/96

_____________________________________________________

MR ROSSOUW: Thank you Chairperson, I represent Mr Bosch and you'll find his amnesty application on page 57 of bundle A.

ISAK DANIEL BOSCH: (sworn states)

EXAMINATION BY MR ROSSOUW: Thank you Chairperson.

&#9;Mr Bosch, your amnesty application, page 57 of bundle 1, do you have that before you?

MR BOSCH: Yes I do.

MR ROSSOUW: Is that your application and do you confirm the contents thereof? The formal aspect from page 57 to page 63?

MR BOSCH: That is correct.

MR ROSSOUW: Is that your signature on page 63?

MR BOSCH: That is correct, Chairperson.

MR ROSSOUW: Mr Bosch, to clear up any uncertainties, would you just have a look at page 61? There reference is made to remuneration, whether you received any remuneration. You say there "yes, a bonus in cash", would you just tell the Committee what that was for?

MR BOSCH: This was for the attack in Lesotho.

MR ROSSOUW: This has no regard in relation to this incident?

MR BOSCH: No.

MR ROSSOUW: And then do you have an initial statement attached to your application, this is from page 63 to 69, is that correct?

MR BOSCH: That is correct, Chairperson.

MR ROSSOUW: And the specific paragraphs which deal with this incident you will find that on page 66, paragraph 11.4?

MR BOSCH: That is correct, Chairperson.

MR ROSSOUW: Mr Bosch, then you also supplemented your application with a further affidavit and is that the statement which we find on page 70 and further and is it your signature on page 78?

MR BOSCH: That is correct, Chairperson.

MR ROSSOUW: Mr Bosch, would you please tell us, in 1988 we know this incident took place in August of 1988. Where did you work and what was your rank?

MR BOSCH: I was working at security branch of Vlakplaas and my rank was sergeant.

MR ROSSOUW: Who was your commander at Vlakplaas?

MR BOSCH: Col. de Kock.

MR ROSSOUW: Very well, Mr Bosch, let us commence with this specific incident. On page 72 and further, would you please have a look at page 73? There in the first paragraph you mention ...(intervention)

MR LAX: I understood this incident took place in 1986, not 1988? You've just got him to agree with you that it happened in 1988?

MR ROSSOUW: Mr Chairperson, my apologies, I'm mistaken.

&#9;Mr Bosch, your recollection, when did this take place?

MR BOSCH: In 1986, Chairperson.

MR ROSSOUW: Mr Bosch, on page 73, the first paragraph, you mention that information was received at Vlakplaas with regard to these MK soldiers who would infiltrate the RSA from Swaziland. What is the correct position to the statement there?

MR BOSCH: We came from Vlakplaas with the Sedibi incident then after the Sedibi incident this incident took place, Chairperson.

MR ROSSOUW: Were you part of the Vlakplaas contingent who were deployed for the Sedibi case?

MR BOSCH: That is correct, Chairperson.

MR ROSSOUW: You mention information came from Piet Retief security branch and you also state that there was a planning meeting in Amsterdam. Where was this, was this in Amsterdam or where was it?

MR BOSCH: It was at the safe house in between Amsterdam and Piet Retief.

MR ROSSOUW: Is this the safe farm that you refer to?

MR BOSCH: That is correct, Chairperson.

MR ROSSOUW: Would you please tell the Committee what happened during this planning session? What was the plan?

MR BOSCH: According to what I can recall, there was source who would help persons to infiltrate South Africa with arms and we would set up a trap for them and eliminate them.

MR ROSSOUW: Very well, you also state that consideration was given to arrest MK soldiers. What do you recall about that aspect of arrest?

MR BOSCH: Chairperson, as far as I can recall the arrest for the source because no one would bring in insurgents if they know that they would be caught in a trap.

MR ROSSOUW: Is this what was told to the source?

MR BOSCH: That is correct, Chairperson.

MR ROSSOUW: Were you present or did you ever meet the source?

MR BOSCH: No Chairperson.

MR ROSSOUW: So the fact that this was conveyed to the source, this is hearsay?

MR BOSCH: That is correct.

MR ROSSOUW: And where did you hear this?

MR BOSCH: I cannot recall whether it was Col. de Kock or Van Dyk but somebody told us this is how the plan would be.

MR ROSSOUW: And you say in the final instance these persons would be killed?

MR BOSCH: That is correct, Chairperson.

MR ROSSOUW: Mr Bosch, you also say that the security members and the Vlakplaas members were divided into two groups. On page 73. Would you please tell the Committee was that part of the planning?

MR BOSCH: Yes, we would have set up the ambush next to the road and Mr van Dyk would be close to the border to get the people who returned.

MR ROSSOUW: So this, referring to the two groups on page 73?

MR BOSCH: That is correct, Chairperson.

MR ROSSOUW: You also state there that if the vehicle did not stop members of the security branch would pursue the bakkie, do you recall that?

MR BOSCH: I recall something like that, Chairperson, because we did not have any vehicle with us, we were on foot, we were lying next to the road and if that bakkie passed us along that road I think the group that Col. de Kock refers to, he says it's opposite us but they were far in front of us.

MR ROSSOUW: Do you know whether that evening at the operational scene a second group was deployed?

MR BOSCH: I cannot say that Chairperson.

MR ROSSOUW: Very well then, Mr Bosch, on page 74 you state all the persons who were involved in the operation, would you go through the list and tell the Committee what your memory is about these persons?

MR BOSCH: Chairperson, when I made this statement I was under the impression and as my memory has serves me Willie Nortje was present, Leon Flores was not present, Snor Vermeulen was not present and Joe Coetzer was not present but these were all people who worked with us on previous occasions and I'm getting confused with all the names.

MR ROSSOUW: These persons that you referred to are they Vlakplaas members?

MR BOSCH: That is correct, Chairperson.

MR ROSSOUW: You also state that there were other members whose names you do not know. Do you refer there to members from Vlakplaas or members of security branch?

MR BOSCH: Those were members from security branch Nelspruit and Piet Retief as well as Vlakplaas members.

MR ROSSOUW: Then Mr Bosch, on page 74 you describe the deployment next to the road. I would like to ask you to study Exhibit B, it's a sketch that Mr de Kock drew up and in that line of persons who were deployed on the left of the road, can you possibly tell the Committee where you were exactly along that line from the bottom?

MR BOSCH: I was the fourth of fifth person because my instruction was to fire through the canopy.

MR ROSSOUW: And Mr de Kock, in relation to you where was he?

MR BOSCH: He was to my left. I cannot say he was right next to me but he was on my left.

MR ROSSOUW: Very well Mr Bosch, the firearm that you had that evening, what type of firearm did you have?

MR BOSCH: It was a 9 mm mini-uzzi.

MR ROSSOUW: And what type of weapon is it?

MR BOSCH: It's an issued weapon that was issued by Police Head Office along with our pistols.

MR ROSSOUW: So it was an issued firearm? It was the firearm issued to you?

MR BOSCH: That is correct, Chairperson.

MR ROSSOUW: And this particular evening, did you load your magazine yourself?

MR BOSCH: That is correct, Chairperson.

MR ROSSOUW: And did you put any tracer bullets in the magazine?

MR BOSCH: I always had tracer bullets in my magazine.

MR ROSSOUW: So that was practice?

MR BOSCH: That is correct.

MR ROSSOUW: So you cannot recall whether you loaded them that evening?

MR BOSCH: No, but I usually did load tracer bullets.

MR ROSSOUW: Mr Bosch, would you please explain to the Committee what happened at the scene where the shooting had taken place?

MR BOSCH: Mr Chairperson, the vehicle came to a stop somewhat past us and the driver door opened, some climbed out but it was not slowly, he climbed out quickly and moved to the back of the vehicle and then the instruction came "fire". It was not a military instruction by Col. de Kock "fire, everyone fire". I was close to him and I heard him say "fire" and I heard him saying "cease fire" also, I can recall that.

MR ROSSOUW: You earlier testified what was your instruction, where did you have to fire towards the bakkie?

MR BOSCH: Because we did not know how many persons would come through in that bakkie, we were told that my task was to shoot through the canopy reasonably high because there would have been explosives in the bakkie and we were told to aim high.

MR ROSSOUW: After you ceased fire did you see anything else with regard to the passenger door?

MR BOSCH: Chairperson, according to my recollection, the door did open. I cannot say it opened entirely, nobody climbed out but the door did open.

MR ROSSOUW: Did you see anyone jumping out with a firearm in his hand or wanting to jump out?

MR BOSCH: No Chairperson, but afterwards we saw that this person had a pistol between his legs.

MR ROSSOUW: Was this pistol in the front of the bakkie, in the cabin?

MR BOSCH: Yes, that is correct, Chairperson.

MR ROSSOUW: Mr Bosch, would you just tell the Committee, after the shooting had ceased, did you find any deceased and how many of them?

MR BOSCH: There were two inside the bakkie and one outside the bakkie to the rear of the bakkie.

MR ROSSOUW: I would ask you to study Exhibit B again. You will see there a figure has been drawn to the right hand side of the bakkie, is that where the person was lying?

MR BOSCH: Maybe more to the rear of the vehicle that is more or less correct.

MR ROSSOUW: Very well, Mr Bosch, and on page 75 you also state that a variety of explosives and firearms were found in the vehicle. I would like you to study Exhibit A. The backpacks there and the arms, did you see that in the bakkie?

MR BOSCH: That is correct, in the bakkie - there on the photo it looks the same because I recall them photographing it .

MR ROSSOUW: Very well Mr Bosch and you also state that the deceased's bodies were taken to the Piet Retief Police Station. You heard Mr Botha testify that he was involved in the loading of these corpses. Were you involved or did you assist in the loading of these corpses?

MR BOSCH: No, Chairperson.

MR ROSSOUW: Mr Bosch, in the post-mortem inquest did you give evidence?

MR BOSCH: No.

MR ROSSOUW: Did you make any statement during this inquest?

MR BOSCH: No, Chairperson.

MR ROSSOUW: Mr Bosch, in your amnesty application you state that there were four or five persons who were killed. Now in hindsight we know that three persons were killed at the scene where you were deployed and another person. Are you able to tell the Committee how you come to the figure of five?

MR BOSCH: Chairperson, these were the persons who were killed in the operation. The fifth one must have been the one who was injured but as far as I recall it was four or five persons who were shot during the whole operation.

MR ROSSOUW: Mr Bosch you have heard the evidence of Mr de Kock with regard to the political motivation or objective of this operation. Do you agree with that?

MR BOSCH: Yes Chairperson.

MR ROSSOUW: And do you also on page 76 confirm the political objective which you wanted to obtain with regard to your participance in this operation?

MR BOSCH: That is correct.

MR ROSSOUW: Did you receive any remuneration for this operation?

MR BOSCH: No, Chairperson.

MR ROSSOUW: Did you act out of any malice towards these persons who would enter the country?

MR BOSCH: No Chairperson.

MR ROSSOUW: And did you at all times act under the instructions of Col. de Kock?

MR BOSCH: That is correct, Chairperson.

MR ROSSOUW: That's the evidence in chief, Chairperson.

NO FURTHER QUESTIONS BY MR ROSSOUW

MR HATTINGH: Hattingh on record, Chairperson, I have no questions, thank you.

NO FURTHER QUESTIONS BY MR HATTINGH

CROSS-EXAMINATION BY MR RAMAWELE: Mr Bosch, I just want to put it to you that Mr Nofomela will deny that Mr Paul van Wyk was at the Amsterdam T-junction?

MR BOSCH: Chairperson, he was definitely not with us, he and Douw Willemse were at the other ambush, if I can call it an ambush.

MR RAMAWELE: And Mr Nofomela will also say that the people who were supposed to come back to the Swaziland border was supposed to be shot and eliminated?

MR BOSCH: That is correct, Chairperson.

MR RAMAWELE: That is all.

NO FURTHER QUESTIONS BY MR RAMAWELE

MR LAMEY: Thank you Chairperson. Lamey on behalf of Fourie. I've got no questions.

NO QUESTIONS BY MR LAMEY

MR PRINSLOO: Thank you Chairperson. Prinsloo. I've got no questions, thank you.

NO QUESTIONS BY MR PRINSLOO

MS VAN DER WALT: No questions thank you.

NO QUESTIONS BY MS VAN DER WALT

MR ROUX: Roux on record, no questions thank you.

NO QUESTIONS BY MR ROUX

CROSS-EXAMINATION BY MR NTHAI: Mr Bosch, you talked about a planning meeting, where did this meeting take place?

MR BOSCH: Chairperson, it was not a formal meeting, it was on that safe farm where we collected all our firearms because we knew we were going on an operation.

MR NTHAI: Yes, who was there? Who was there at that place?

MR BOSCH: I think most of the people who were involved in the operation were, there were people there from Nelspruit and Ermelo. It was not that we sat around the table and said that we would discuss this and plan this. It was very informal.

MR NTHAI: But the operation was discussed, is that not correct?

MR BOSCH: That is correct, we knew that we were going out on an operation, Chairperson.

MR NTHAI: And everybody who was involved in that operation was there?

MR BOSCH: As far as I can recall, yes.

MR NTHAI: Is that the place where you heard about the operation for the first time?

MR BOSCH: Chairperson, no. The first time that we knew that something would happen was only just after Sedibi had been abducted and we heard that a source who said that people would be brought in so we did not know when it would happen so we waited about a day or two or maybe three but it was not immediately.

MR NTHAI: But I'm talking about - I mean where you heard that you were now going for an operation to now go and ambush people. That was for the first time you heard about that?

MR BOSCH: That is correct, Chairperson.

MR NTHAI: And you were getting this from Mr de Kock?

MR BOSCH: That is correct, Chairperson.

MR NTHAI: So he was briefing all of you who were involved in the operation, is that correct?

MR BOSCH: As far as I can recall, yes Chairperson.

MR NTHAI: And that is where it was then discussed that the other group would go the other side, is that correct?

MR BOSCH: That is correct, Chairperson.

MR NTHAI: Do you recall what was the order by Mr de Kock. What were you supposed to do with these people?

MR BOSCH: We would shoot these people.

MR NTHAI: That applies also to the other group, the other side?

MR BOSCH: Chairperson, I cannot say that it has regard for them but I would believe it was the same because everyone had to be eliminated. 

MR NTHAI: Yes, what I'm trying to say is - I mean you were saying you were present when it was said the other group was from the other side?

MR BOSCH: That is correct, Chairperson.

MR NTHAI: And your order was just you were going to eliminate these people?

MR BOSCH: Correct, Chairperson.

MR NTHAI: Not talk of arresting anybody?

MR BOSCH: No.

MR NTHAI: Now I just want to bring you to the incident itself. Do you agree that there was another group the other side as Mr de Kock has indicated there?

MR BOSCH: Chairperson, as far as I know there was a group on the other side. Not right opposite the vehicle. If the vehicle stopped here there could not be a group over there on the other side because we would shoot them but I suspected there was a stopper group at least a kilometre from our group. That is what my memory tells me.

MR NTHAI: Are you saying this group was almost a kilometre from where you were?

MR BOSCH: I cannot recall exactly but they were not directly opposite us, that is as far as I can recall because if this vehicle did not stop and it kept going because we never knew what could happen in the vehicle and this vehicle kept going then it had to be stopped at some other place.

MR NTHAI: Mr Bosch, are you telling us what you saw or what you suspected happened? Did you see this group that was ...(intervention)

MR BOSCH: No, I did not see it but there was talk of such a group, there was definitely talk of such a group.

MR NTHAI: Who was talking about such a group?

MR BOSCH: Mr de Kock.

MR NTHAI: Where did he talk about the group?

MR BOSCH: He said that he would set up a stopper group. I mean Mr de Kock, his planning was always one hundred percent, he would not have omitted something like this.

MR NTHAI: No, no, I just want to know where. Was it at that safe house? Where did he talk about his other group?

MR BOSCH: Yes I would suspect it was at the safe house.

MR NTHAI: No, no, did you suspect, did he say so? I mean just be clear about what you're talking about?

MR BOSCH: Chairperson, as far as I can recall, as I told you that my memory tells me that there was a stopper group but I cannot place it on black and white that there was indeed one.

MR NTHAI: So but now why are you disputing that there was a group standing opposite there, why are ...(indistinct)

MR BOSCH: Because there was no group opposite us, there was no group at the shooting.

MR NTHAI: So Mr de Kock is just getting this from his own head, this never happened?

MR BOSCH: Chairperson, I would like to have clarity about this but there were no people on the other side. According to my memory there were no people.

MR NTHAI: Who were the people, the people who we suspect were one kilometre. Who were these people?

MR BOSCH: People from the security branch from Piet Retief.

MR NTHAI: They were also present there at the meeting?

MR BOSCH: Possibly yes, Chairperson.

MR NTHAI: No, no, I'm asking you were they there? I mean when these groups were divided, was this group divided that it would go the other side? Did you see that?

MR BOSCH: Chairperson, I just said that my memory tells me that there was a stopper group and that is what I can recall.

MR NTHAI: I see. Now - and you are saying they has a vehicle?

MR BOSCH: Correct Chairperson.

MR NTHAI: You know that?

MR BOSCH: One cannot be a stopper group without a vehicle.

MR NTHAI: You didn't see a vehicle, not so?

MR BOSCH: No, Chairperson, I was not at that scene, I was at the scene where the shooting took place.

MR NTHAI: No but are you assuming that there was a vehicle?

MR BOSCH: I suppose that they should have had a vehicle.

MR NTHAI: And you say what was the reason this other group was there, that you could call a stopper group?

MR BOSCH: If these vehicle could not stop we could not say it was not our source. I never spoke to the source but let us suppose that source decided that he will not stop, he will just keep going, then we all sat there without a vehicle and then the weapons would come in. So it's always a chance that one has to take and some way from there the vehicle had to be stopped with another vehicle otherwise it's a useless operation.

MR NTHAI: I see. Was this vehicle also going to ambush, was there an order that they were going to ambush these people also?

MR BOSCH: No, Chairperson. If he did not stop here, then that vehicle had to stop him. As far as I can recall, that vehicle had to stop their vehicle.

MR NTHAI: It's very strange because we never heard that evidence? For the first time we hear about it?

MR BOSCH: That is how I recall it, Chairperson.

MR NTHAI: De Kock himself didn't give us that evidence?

MR BOSCH: Chairperson, as I have said that is how I recall it.

MR NTHAI: Now on page 74 you're talking about some names and your are saying these people were not there?

MR BOSCH: That is correct.

MR NTHAI: Were these people also from Vlakplaas?

MR BOSCH: All are Vlakplaas members, Chairperson.

MR NTHAI: The part of the group that came to abduct Sedibi?

MR BOSCH: No Chairperson.

MR NTHAI: Are you sure they were not part of the group?

MR BOSCH: No Chairperson.

MR NTHAI: Now if they were not part of the group that came to abduct Sedibi and they were not part of the group that was involved in the operation, why did you mention their names?

MR BOSCH: Chairperson, Willie Nortje, I always worked in the same area with Willie Nortje. We were always deployed in that area. Leon Flores was deployed with us in that area so at various other occasions they worked with us there. Pieter Botha worked with us there.

MR NTHAI: I'm with you but why do you mention them here?

MR BOSCH: Chairperson, I had no insight to anyone statement when I drew up this statement. This had to come from my memory and these were the appointed people who I suspected who would be there, I made a mistake here, I'm sorry for that mistake.

MR NTHAI: No, no, you see I just want to understand how the mistake came about? I understand you made - how the mistake came about because these people were not part of the ...(indistinct).

MR BOSCH: That is correct, Chairperson, they were not there.

MR NTHAI: And just because you know them, you just mentioned their names?

MR BOSCH: Chairperson, they previously worked in that area with us. It was many years ago, I cannot recall who worked with me on this and that day.

MR NTHAI: I see. Who came - I mean, the group who came to abduct Sedibi, it was yourself and who else?

MR BOSCH: Myself, Col. de Kock, Paul van Dyk, Joe Cooley was there, I think. There was a whole number of us.

MR NTHAI: And you are saying that you didn't see this person who opened the door as we heard in the evidence? The other person who came with a pistol, who tried to come out with a pistol?

MR BOSCH: Chairperson, I said that I saw the door opening but my attention was not supposed to be focused there, my attention was directed at the canopy. I recall the door opening, it did open. 

MR NTHAI: Yes. I just want to go back again to that meeting you had. At this meeting what were you told, were you told how many people were going to come there?

MR BOSCH: How many people would infiltrate?

MR NTHAI: Yes.

MR BOSCH: No, nobody told us, that is why we did not know and that is why Mr Botha also testified now that he received instruction to shoot through the canopy. If we knew that there were two people there we would not have had so many people there because we didn't know how many people would come in.

MR NTHAI: Were you told whether these people were armed or not?

MR BOSCH: We knew that they would be armed, yes Chairperson.

MR NTHAI: And you knew that they had explosives? That was said in the evidence?

MR BOSCH: That is why we fired high through the back of the canopy, yes.

MR NTHAI: And this was said by Mr de Kock?

MR BOSCH: That is correct, Chairperson.

MR NTHAI: You will be having explosives?

MR BOSCH: That is correct, Chairperson.

MR NTHAI: There's just one aspect that I wanted to hear from you. You know this question of five people that I mentioned who were killed, how did it come about? It's only yourself who mentioned it?

MR BOSCH: Chairperson, it was the three in the vehicle, the one with Mr van Dyk and Mr Sindane who was wounded.

MR NTHAI: No, but you talked about people who were killed?

MR BOSCH: Yes, I wrote here four or five.

MR NTHAI: I have no further questions.

NO FURTHER QUESTIONS BY MR NTHAI

CROSS-EXAMINATION BY MS COLERIDGE: Mr Bosch, just in relation to the meeting, was the original plan to eliminate the source?

MR BOSCH: Chairperson, as far as I can recall that was the plan right from the beginning, yes.

MS COLERIDGE: Because Mr Fourie says there was no plan to eliminate the informer or the source. Would he have been at that very same meeting where you were at?

MR BOSCH: Chairperson, Mr Fourie did the identification along with Sedibi at Piet Retief so he had closer contact with Mr Freek Pienaar so he would have had more information. You must remember we came from the outside.

MS COLERIDGE: So if certain applicants were stating that there was no plan to eliminate the source that that would be totally incorrect and that was never a fact?

MR BOSCH: I cannot say that, Chairperson. It may have been possible in the beginning stages but when we became involved that was not the case.

MS COLERIDGE: And then can you definitely say that the person in the front of the vehicle that opened the door, were your eyes focused on this person all the time? It wasn't all the time but did he ever jump out and wield the pistol?

MR BOSCH: No, Chairperson. What I can recall was the door opened and I did not have another look because that was not my area where I was supposed to work. My area was at the rear but I do recall that the door opened but nobody jumped out and waved a gun around. I would have seen that.

MS COLERIDGE: And then in your amnesty application you stated that the initial plan, initially it was discussed that the MK soldiers would be arrested. Who brought up that plan?

MR BOSCH: Chairperson, what I suspect happened there, as I can recall was that that was the original plan that was given to the source.

MS COLERIDGE: Fine. And then you said, well during the discussions, it transpired that all of the MK soldiers would be killed?

MR BOSCH: That is correct.

MS COLERIDGE: And then you state further that there were no measures put in place for an arrest as well, is that correct?

MR BOSCH: Nothing was discussed with me or what I knew of.

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

NO FURTHER QUESTIONS BY MS COLERIDGE

MR SIBANYONI: I've got no questions, Chairperson.

CHAIRPERSON: One aspect I'd like to get further information about, you were told that this vehicle was going to stop in front of you and that it contained armed men who would be a danger to you?

MR BOSCH: That is correct, Chairperson.

CHAIRPERSON: And you were lying there or standing up now, you stood up when the vehicle stopped?

MR BOSCH: That is correct.

CHAIRPERSON: There was nothing whatsoever happening at the rear of the vehicle, at the canopy?

MR BOSCH: No, there were no people in the canopy, Chairperson.

CHAIRPERSON: But you see a door opening where an armed man can get out and start shooting but you just look away and don't look further? How?

MR BOSCH: No, Chairperson. I knew that there were people on my left who would concentrate on the front of the bakkie. It was dark, Mr Botha said that there was some moonlight but I do not know who was lying flat in the back of that bakkie.

CHAIRPERSON: At that time it would have taken you another five, ten seconds to watch and see if the door opened. I just can't understand anyone in a position of that type where there is shooting taking place where their life may be in danger, looking away from what is a potential enemy? An armed enemy who may be emerging.

MR BOSCH: I hear what you say Chairperson. The fire power on our side was so much that no one would be able to get out of that vehicle. So it was not a concern for me on my side, to me personally.

CHAIRPERSON: So you just didn't bother?

MR BOSCH: That is correct, Chairperson.

MR LAX: Can I just follow up one thing Chairperson?

&#9;You said you just saw the door open?

MR BOSCH: That is correct.

MR LAX: How far did it open?

MR BOSCH: It's small bakkie, Chairperson, the door just opened. I did not recall that when the bakkie stopped and the man said he would take a walk that other man would also want to take a walk, I cannot say that and just afterwards the shooting ensued.

MR LAX: Yes, was the door opened six inches, did it open two foot?

MR BOSCH: I would say between four inches and eight inches.

MR LAX: So it was hardly open, it was just a tiny bit open?

MR BOSCH: It just started opening.

MR LAX: Now just to clarify this, because I've made myself confused by the remarks I've made on annexure B and I just want to clear that up with you. Exhibit B, I beg your pardon.

You said you were the fourth or the fifth from the bottom, that's how you put it?

MR BOSCH: That is correct, Chairperson.

MR LAX: If we put the page in landscape fashion like this, then you would be from the right hand side, the fourth or the fifth?

MR BOSCH: That is correct, Chairperson.

MR LAX: Thanks Chairperson.

CHAIRPERSON: Sorry, are you saying you were fourth from the right?

MR BOSCH: That is correct, Chairperson, approximately the fourth or fifth from the right hand side. I was to the rear of the bakkie.

CHAIRPERSON: Well that's not, in my understanding, that's not from, that is towards the right hand side?

MR BOSCH: Chairperson, if we look, I think it's Labuschagne who was first, then Botha who said it was him, then it was either myself and somebody else or myself then but we were towards the rear of the bakkie.

CHAIRPERSON: So you were looking at Exhibit B about in line with the bakkie?

MR BOSCH: With the canopy in front of me.

CHAIRPERSON: Yes.

MR LAX: Can I just clarify one thing? So the actual position in which the bakkie stopped, the canopy was in front of you?

MR BOSCH: That is correct, Chairperson, I recall it was standing skew, it was not standing parallel with the line in the road, it was standing a little bit skew with the backside in the road.

MR LAX: So it half pulled off the road in other words?

MR BOSCH: Yes, half pulled off the road. But that was the factual position? The intended position, however, was further back from that position? 

MR BOSCH: That is correct, Chairperson.

MR LAX: And in that case you would have been much closer to the front of the vehicle?

MR BOSCH: It actually passed us. It came and I think there was some barrier on the side and I knew I had to shoot towards the back because we knew that the bakkie had to stop next to the barrier. It was standing but when it stopped it was standing right in front of me.

MR LAX: My point is this, though, that had the vehicle stopped where it was supposed to stop rather than go past that point, you would have been much closer to the front of the vehicle?

MR BOSCH: That is correct, Chairperson.

MR LAX: And it would have made shooting at the canopy very difficult because you would have had to shoot through the cabin into the canopy?

MR BOSCH: That is correct, Chairperson.

MR LAX: Well that doesn't make sense, does it? If your job was to shoot at the canopy, why put yourself in a position where you have to shoot through the cabin?

MR BOSCH: I have no idea, Chairperson.

MR LAX: You'll agree it's totally improbable?

MR BOSCH: I understand, yes.

CHAIRPERSON: Any re-examination?

MR ROSSOUW: None Chairperson. Chairperson, may I ask that the applicant be excused on the same conditions as all other applicants?

NO RE-EXAMINATION BY MR ROSSOUW

WITNESS EXCUSED

MS COLERIDGE: Chairperson, before we call the next applicant, I've just had a request for a short adjournment for a call of nature, Chairperson.

CHAIRPERSON: We will probably finish hearing evidence tomorrow it seems and we will then start on argument. Would you want your client to be here at that time? There may be points that you want to consult of him on? So I'm merely suggesting - you've asked for his being excused. He can certainly be excused now but I'm wondering if you should ask him to be here tomorrow in case you might want to consult with him on anything? It's up to you, I don't know how much time you've had?

MR ROSSOUW: No Mr Chairperson, that's correct but I'm just asking for him to be excused now.

COMMITTEE ADJOURNS

NAME:&#9;&#9;&#9;BUTANA ALMOND NOFOMELA

APPLICATION NO: AM/0064/96

_____________________________________________________BUTANA ALMOND NOFOMELA: (sworn states)

EXAMINATION BY MR RAMAWELE: Thank you Chairperson.

&#9;Mr Nofomela - Chairperson, the person the application of Mr Nofomela, you see it on page 23 of bundle 1 until page 28 but particularly for this application the relevant page will be page 28.

&#9;Mr Nofomela, do you confirm the contents of your application which I've just mentioned to the Committee?

MR NOFOMELA: Yes I do.

MR RAMAWELE: Do you also confirm the political objectives as stated in your application?

MR NOFOMELA: That is correct.

MR RAMAWELE: As well as your particulars?

MR NOFOMELA: That is correct.

MR RAMAWELE: On this particular day you were actually based at Moolman, just before you came to Amsterdam?

MR NOFOMELA: That is correct.

MR RAMAWELE: Can you tell the Committee then with whom did you go to Amsterdam, to the place where this incident occurred?

MR NOFOMELA: Chairperson, I was with Mr Paul van Dyk, Badenhorst, Willemse, Mogadi and myself.

MR RAMAWELE: Can you further tell the Committee as to what was the purpose for your going to the place where this incident occurred?

MR NOFOMELA: I and together with the persons I've just mentioned were given instructions in Mr Pienaar's office. The instructions were that we were to proceed to the Nerston border gate where there would be people coming from Swaziland proceeding towards Amsterdam. Mr de Kock informed us that these were ANC cadres and we were instructed not to shoot them on their way but we will wait until they return from Swaziland upon which time I would then shoot them.

MR RAMAWELE: Was that the instruction?

MR NOFOMELA: Yes that is correct.

MR RAMAWELE: I see on page 29 of your application you say that Major de Kock at one stage informed you that - or you and the others that didn't have time for court proceedings and that these people should simply be shot. Do you confirm that?

MR NOFOMELA: That is correct, Chairperson.

MR RAMAWELE: So you then went to the place where you were supposed to go?

MR NOFOMELA: That is correct.

MR RAMAWELE: Can you explain to the Committee then how you arrived there and what happened?

MR NOFOMELA: We then arrived at that spot which was about 500 metres from the Nerston border gate. Mr de Kock informed us that I, Badenhorst, Willemse who were instructed to wait alongside the road and as per the instruction we were not supposed to do anything whilst they were on their way to Swaziland but on their return we would then shoot, kill them.

CHAIRPERSON: Did you do nothing while they were on their way to Swaziland?

MR NOFOMELA: Yes, on our way to Swaziland we were not supposed to do anything to them at that point. We would only attack them on their return.

MR RAMAWELE: I think let Mr Nofomela repeat slowly and interpreters just listen to what he says?

MR NOFOMELA: The instruction was that on their way to Amsterdam we would not do anything to them but on their return towards Nerston we would then shoot them.

MR RAMAWELE: Thank you. Any question of arrest?

MR NOFOMELA: That was not mentioned by Mr de Kock when he issued those instructions.

MR RAMAWELE: You had a firearm at the time when you were at the T-junction, Amsterdam T-junction? 

MR NOFOMELA: Yes I had a 9 mm which was fitted with a silencer.

MR RAMAWELE: Personally, yourself, what were you supposed to do?

MR NOFOMELA: I would shoot at those people who were from Amsterdam towards Nerston.

MR RAMAWELE: And you said where was Paul van Dyk and Mogadi?

MR NOFOMELA: Mr van Dyk and Mr Mogadi went down the road and were placed at a different spot. I cannot recall the exact spot because I was not familiar with the area and it was also dark.

MR RAMAWELE: Now as you were lying there or staying there, what happened?

MR NOFOMELA: We lay waiting for them and we saw them as they were passing. I think there were about six when they went past and they had luggage. I saw one having a rifle and I was satisfied that it was an AK-47. After they had left towards Amsterdam there was a car that came from the direction of Lother towards Amsterdam. After a while two people approached. At that time we were closer towards the road because when they approached we went closer towards the road and as they approached us we started firing.

MR RAMAWELE: What did you do before you shot them?

MR NOFOMELA: They did not do anything. They were just walking towards the direction of Nerston and as they came close to us we started shooting.

MR RAMAWELE: You heard the evidence of the other applicants relating to the torch, etc etc, what is your evidence relating to the torch, whether he had a torch or not?

MR NOFOMELA: The only torch that I saw was one that was one that was brought by Mr van Dyk as a big spotlight that was used by the police at the time. He brought that torch after the shooting, that is at the time when we were looking for the one who had fled.

MR RAMAWELE: Yourself, did you have a torch?

MR NOFOMELA: No, I did not.

MR RAMAWELE: What about Mr Willemse or Mr Badenhorst?

MR NOFOMELA: If they had had them in their possession I would have seen them using them. If they did have them then they did use them.

MR RAMAWELE: After the shooting what happened?

MR NOFOMELA: A short while after the shooting Mr van Dyk and Mogadi arrived. One person between Badenhorst or Willemse informed that that some person had fled and then he shone a torch on the person who was deceased to check whether he was indeed dead. He then instructed us to go look for the person who had fled. I cannot recall whether Mogadi or Willemse remained with the dead person but the three of us went into the forest to look for that person. So he shone the torch there and we were able to see the blood trail. After a while Mr van Zyl said we would not be able to locate him because it was dark so we decided to turn back.

MR RAMAWELE: You also shot several times at the two people when they came back from Amsterdam?

MR NOFOMELA: That is correct.

MR RAMAWELE: After shooting did you realise that one of them had escaped or was running away?

MR NOFOMELA: That is correct.

MR RAMAWELE: Did any of you chase him or what was the position?

MR NOFOMELA: Not at that time. We did realise that he was fleeing but we did not pursue him at that time. At that time we were looking for Mr Mogadi.

MR RAMAWELE: You came back after Mr van Dyk had indicated that he will not be able to locate the person who had run away. And then what happened?

MR NOFOMELA: On our arrival there to that spot we realised that the deceased person had been removed. We saw a group of people in a van, in fact it was a couple of dead persons in a police van, I'm not sure whether it was from the Amsterdam or Nerston side.

MR RAMAWELE: Before the shooting were you ever at a place Amsterdam where Mr de Kock and the others were?

MR NOFOMELA: Please repeat that question?

MR RAMAWELE: Just before the shooting at the two people who were coming back from Amsterdam, were you ever, before that stage, were you ever with Mr de Kock and the others at the place where they were as indicated in Exhibit B? That is at Amsterdam Road? Where were you?

MR NOFOMELA: I was not with them.

And is it true that you apply for amnesty for the murder of the person who was killed at the time when you and the others shot several times and the two people who were coming back from Amsterdam going to Swaziland?

MR NOFOMELA: That is correct.

MR RAMAWELE: And the attempted murder of Mr Sindane?

MR NOFOMELA: That is correct.

MR RAMAWELE: Now in your application you indicated that five people died. How many people died?

MR NOFOMELA: I am not certain up to this day because when I wrote five I thought that was the correct number because this incident happened at night and I was not certain but I 

can accept if given another amount. 

MR RAMAWELE: You heard the evidence of Mr van Dyk that you were placed not with him at the T-junction because somehow you had to be protected because of a case which was pending against you, the Brits case which was pending against you at that time? You heard that evidence?

MR NOFOMELA: Yes I did hear that.

MR RAMAWELE: Now, can you just tell the Committee as to when was the Brits criminal case, when was that offence committed, do you still remember?

MR NOFOMELA: It was on the 11 September 1986.

MR RAMAWELE: So you are saying that it was actually committed after the post-mortem, after this incident?

MR NOFOMELA: That is correct.

MR RAMAWELE: At the time when this incident occurred, it had not yet taken place?

MR NOFOMELA: That is correct.

MR RAMAWELE: You also heard the evidence of several of the applicants relating to the fact that the people who were going to come back to the Nerston border gate were supposed to be arrested? Where you were seated or placed at the T-junction, what is your comment relating to arrest? If you were supposed to arrest, what is your opinion, what would have happened if you look back at the situation?

MR NOFOMELA: As far as I know, Sir, if you are going to arrest somebody you must inform them that you are a police officer. The situation in which we were and our location did not give an impression that was what we were supposed to do and also for the fact that we were awaiting trained cadres and also people were not supposed to be in this country who were here illegally. It was not to be expected that you could inform such persons and tell them to stop and they do exactly that where else they are heavily armed. I do not think that would have made sense.

MR RAMAWELE: Effectively what you are saying is that if you were to effect an arrest you would have had to jump the fence to go to them?

MR NOFOMELA: That is correct.

MR LAX: Sorry, what do you mean jump the fence to go to them?

MR RAMAWELE: Or to go through the fence.

MR LAX: What fence, sorry? We haven't heard anything about a fence here.

MR NOFOMELA: There was a fence and we were on the other side of the fence and they were on the other side and we were shooting at them through that fence. If we had intended to arrest them we should have gone over the fence and effected an arrest.

MR RAMAWELE: That is our application, Mr Chairperson.

NO FURTHER QUESTIONS BY MR RAMAWELE

MR LAX: Can you just clarify what fence this was please? Was this the border fence you're talking about or is it a farm fence?

MR NOFOMELA: As is apparent in the sketch, that line is a fence. We were on that spot and we had jumped over that fence to lie and wait for them and that is the fence I'm referring to.

MR LAX: This is a line of inverted L shapes that runs along the north and west of that intersection, is that what you're referring to?

MR NOFOMELA: That is correct.

CROSS-EXAMINATION BY MR HATTINGH: Thank you Chairperson, Hattingh on record.

&#9;Mr Nofomela, did I understand you say that when you saw these people walking past you on their way from Swaziland in the direction of the Amsterdam, you observed one of them had an AK rifle?

MR NOFOMELA: That is correct.

MR HATTINGH: Was he carrying it quite openly, he didn't try to conceal it in any way?

MR NOFOMELA: I saw him as he was passing, I just saw the back of the rifle and he was carrying it.

MR HATTINGH: But you were able to see it was an AK assault rifle, is that correct?

MR NOFOMELA: Yes I was certain.

MR HATTINGH: Was it only one person that you saw carrying a firearm of any sort?

MR NOFOMELA: I saw just one person with a rifle, others carried bags.

MR HATTINGH: Because on page 29 of your application you states as follows:

&#9;"We waited in a plantation for the terrorists to arrive and after some time we saw about six men passing us with bags on their bags. Some of them were carrying weapons. What were you referring to there?

MR NOFOMELA: I said so because I was just assuming that perhaps that bags may have contained firearms.

MR HATTINGH: Very well, then on their way back to Swaziland two people came past or approached you, is that correct?

MR NOFOMELA: That is correct.

MR HATTINGH: And could you see that one of them was carrying a firearm?

MR NOFOMELA: No I did not see.

MR HATTINGH: Did you see him throw a firearm away when you started shooting at him?

MR NOFOMELA: No I did not see it, I only heard about it later when one of our White colleagues carried the firearm, that's when I learnt of it.

MR HATTINGH: Right, so when you say in your application once again on page 29:

&#9;"When the group came closer on their return to the border we started shooting at them. One member of the group ran away dropping his firearm."

You didn't actually observe that, you merely drew an inference from what you were told later?

MR NOFOMELA: That is correct.

MR HATTINGH: Now could you see the bakkie that the other people climbed into from where you were?

MR NOFOMELA: Yes I could see the bakkie although I could not see the occupants inside.

MR HATTINGH: Yes but did you actually observe them boarding the vehicle?

MR NOFOMELA: No, I did not.

MR HATTINGH: Could you see whether the driver of the vehicle got out of the vehicle when these people arrived at the vehicle?

MR NOFOMELA: No, I did not see.

MR HATTINGH: Thank you Mr Chairperson, I've got not further questions.

NO FURTHER QUESTIONS BY MR HATTINGH

CROSS-EXAMINATION BY MR LAMEY: Thank you Chairperson.

&#9;Mr Nofomela, when you first saw the men walking past you, that is now from the direction of Swaziland. How many of them were there?

MR NOFOMELA: As already stated there were more or less six of them who were going towards Amsterdam.

MR LAMEY: And who was with you at that stage?

MR NOFOMELA: Mr Badenhorst and Mr Willemse. 

MR LAMEY: And how far were they from you when they were passing you?

MR NOFOMELA: I am not certain but I estimate distance to be from where I am towards the interpreter cubicles.

MR LAMEY: So it is approximately four to five paces?

MR NOFOMELA: Please repeat that?

MR LAMEY: Is it approximately four to five paces?

MR NOFOMELA: Yes, it's possible.

MR LAMEY: I beg your pardon, Chairperson. I changed to Afrikaans, I'll continue in English.

&#9;Now you said that your instructions were to eliminate the group, is that correct? On the return back to Swaziland?

MR NOFOMELA: That is correct.

MR LAMEY: Did you know how many would return back to Swaziland?

MR NOFOMELA: I did not know how many there would be but there were only two who did.

MR LAMEY: Did you know who brought the MK people through? Was it a guide or another MK person or who would bring them through from Swaziland?

MR NOFOMELA: I do not have knowledge thereof.

MR LAMEY: Now, what I want to ask you is that when they passed you the first time you said it was four to five metres. You could have eliminated them by shooting them right there and there? Why did you have to wait if your instructions were to eliminate them?

MR NOFOMELA: I did not understand your question.

MR LAMEY: The approximately six men who passed you from Swaziland, you said that they passed you plus minus four to five metres from you and you had instructions to eliminate them. Why did you not eliminate them immediately while they were coming from Swaziland? Why did you have to wait for some of them to return?

MR NOFOMELA: Firstly, I did not know, I do not have independent information that those were coming. I was in front and instructed by Mr de Kock that people would be coming and he also instructed me on when to shoot at them so I could not do anything of my own.

MR LAMEY: Yes, but Mr de Kock was not there on the scene to give you any instructions?

MR NOFOMELA: For me to be on the scene it was on his instruction. He instructed me that I should shoot at them when they return.

MR LAMEY: Who was in charge of you and Willemse and Badenhorst?

MR NOFOMELA: No one was supposed to be in charge. It was Mr van Dyk who was in charge of the operatives then.

MR LAMEY: Mr Nofomela, isn't it not probable and something that you perhaps are not aware of, but that it was anticipated that a guide would bring the people through and that one of the - or the purpose was there, from you and the other members at that junction to establish the route that these people were brought through?

MR NOFOMELA: As I've already mentioned, Chairperson, I was not instructed to take on which route these people were on, I was just instructed to shoot them on their return.

MR LAMEY: And to shoot them when they return back to Swaziland?

MR NOFOMELA: That is correct.

MR LAMEY: Now how did you know that anyone would return back to Swaziland?

MR NOFOMELA: I was not informed who would return but I was only told of those who return, I would shoot them.

MR LAMEY: But did he know of anybody who would return?

MR NOFOMELA: From the instruction that I received I expected that some person or persons would return.

MR LAMEY: Right, I just want to put it to you that Mr Fourie's understanding was that the purpose of the members at that point was to determine the route that the MK's would be using and it was expected that they would make use of a guide. Can you rule that out?

MR NOFOMELA: That is his own knowledge, I bear no knowledge to it.

MR LAMEY: Alright, so you don't have personal knowledge of that but you don't rule out that it could have happened like that or it could have been the position?

MR NOFOMELA: That would not have been so because Mr de Kock would not have given different instructions on one mission, why what reason did we have to shoot at those people and why did he also shoot at them.

MR LAMEY: Who are you talking to now?

MR NOFOMELA: I'm referring to the people I was with.

MR LAMEY: Well, you say you don't have personal knowledge of the establishment of a route or a guide that would bring them through, is that correct?

MR NOFOMELA: I do not quite understand your question.

MR LAMEY: You don't have any personal knowledge of a guide that would bring the MK members through?

MR NOFOMELA: No, I do not.

MR LAMEY: But you can't rule that out as a possibility?

CHAIRPERSON: He has explained to us that because he was ordered to shoot them by De Kock, the commanding officer, he does rule it out.

MR LAX: On the basis that he wouldn't have received contradictory instructions, one lot to be shot, the other lot to locate a route, just didn't - the two aren't consistent with each other.

MR LAMEY: Yes but Chairperson, that's precisely what I'm trying to get at, I'm trying to ascertain whether his reasoning whether he's making it out as a reason or whether he has got personal knowledge of this. But I'll leave the question there, Chairperson, I won't ...(intervention)

MR LAX: Maybe I can help you. Do you know what instructions Mr Fourie got?

MR NOFOMELA: No, I do not.

MR LAMEY: I've got no further questions, thank you Chairperson.

NO FURTHER QUESTIONS BY MR LAMEY

CROSS-EXAMINATION BY MR ROSSOUW: Thank you Chairperson. Mr Nofomela, just a couple of very short questions.

&#9;Did you know or were you ever told about a person who would be waiting in Swaziland with a bakkie for the people who would return?

MR NOFOMELA: No, I was not told about that, Chairperson.

MR ROSSOUW: Thank you Mr Chairperson, I've no further questions.

NO FURTHER QUESTIONS BY MR ROSSOUW

MR PRINSLOO: Chairperson, Prinsloo, no questions thank you.

CROSS-EXAMINATION BY MS VAN DER WALT: Mr Nofomela, when your legal representative led your evidence he asked you with regard to the arrest of persons and you explained that the circumstances were of such a nature that no arrest could be made, is that correct?

MR NOFOMELA: I do not quite get the question?

MS VAN DER WALT: When your evidence was led by your legal representative, it was asked of you whether or not there was ever any talk of an arrest and you the stated that the circumstances dictated that it was not possible to make an arrest because you went further by explaining that the police had to identify themselves as the police and you were on the other side of a fence. Do you recall your evidence?

MR NOFOMELA: Yes I recall that.

MS VAN DER WALT: Very well, if you would look at Exhibit K, do you have that before you? The point which Mr van Dyk has indicated from where he and you would have been, can you see that? It would be if one has the sketch with north-facing to the top and east-facing to the right, he has indicated a point near the T-junction. That would be on the right side on the corner. Do you agree with that, is that the place where you were?

MR NOFOMELA: I do not quite understand.

MS VAN DER WALT: What is it that you don't understand? I'm trying to indicate the point to you on the map, do you have the map before you with east to the right and north-facing to the top section of the map. It would appear to me as if you are holding the map correctly. You then have the T-junction of the Amsterdam Road which forms a T-junction with the Lother/Nerston Road. Do you have that? 

MR NOFOMELA: Yes I do.

MS VAN DER WALT: Then in the corner on the right side of the Amsterdam Road, Mr Paul van Dyk has indicated a point where he, according to his recollection, you and Willemse would have been. Do you have that?

MR NOFOMELA: Yes I do see it. 

MS VAN DER WALT: Now I want to ask you, is that the place where you were on that particular evening?

MR NOFOMELA: Yes I was.

MS VAN DER WALT: And do you also see on the map still as you are holding it, there are certain marks, little lines with points and I want to put it to you that this is on the Nerston Road, the Nerston/Lother Road and then those very same marks are on the Amsterdam Road. Would that be the wire fence to which you have referred?

MR NOFOMELA: That is correct, Chairperson.

MS VAN DER WALT: Very well. Then according to you, where was Mr van Dyk?

MR NOFOMELA: He was further down towards the border gate but I cannot be certain of his exact position.

MS VAN DER WALT: Very well. Then I want to put it to you that Mr van Dyk's evidence was very clear regarding the arrest of the persons there. He still made use of the words that one could refer to it as an arrest, an abduction or a capture, but his evidence is very clear that those persons who had entered and were returning to Swaziland had to be taken so that they could identify the vehicle which was driven by Dlamini and then all the persons there, including those who had returned to Swaziland would be shot dead. Did you hear that evidence?

MR NOFOMELA: Yes, I did hear it.

MS VAN DER WALT: You see, it was never his evidence that they wanted to execute a legal arrest in order to take those persons into custody and place them in police detention. Do you wish to comment on that?

MR NOFOMELA: I hear you but what I know is the instruction I received was to shoot and kill those people and that is what happened, except for the one who fled.

MS VAN DER WALT: Very well, that is also Mr van Dyk's evidence, that he was in command of that specific group which was positioned near the T-junction and that the persons were shot there because the circumstances turned out differently. Do you agree with that?

MR NOFOMELA: I do not quite understand you. Please repeat that question?

MS VAN DER WALT: Mr van Dyk testified that he had discretion. He received the instruction from Mr de Kock to take up position there but he also had the discretion that if on ground level he had to take another decision, he was permitted to do so and that shots were fired at those persons at that time because the situation turned out differently. He saw the gun in the person's hands and a shooting ensued. Do you wish to comment on that?

MR NOFOMELA: What puzzles me is if he had received such discretionary powers by Mr de Kock, why would the rest of us be given different instructions or not be told complete instructions what we were supposed to do this before we do that because all we received was the instruction from Mr de Kock and Mr van Dyk did not inform us of any other instruction, he just left us there on the spot.

MS VAN DER WALT: Mr Nofomela, you are the only person who differs with regard to the persons who had to return over the Swaziland border?

MR NOFOMELA: It must be that I'm the only person who was instructed to kill those people alone.

MS VAN DER WALT: Very well, you have already responded to a question from Mr Willemse's attorney and you said that you did not know about the vehicle which would have been on the other side of the border, is that correct?

MR NOFOMELA: That is correct.

MS VAN DER WALT: Mr Nofomela. You have testified that Mr van Dyk was not with you at all. How do you explain this then if you say that he was further away towards the Nerston border post that he could have told the Honourable Committee that he saw the bakkie stopping approximately a hundred metres away on the Amsterdam Road and furthermore that he saw persons moving along the back section of the bakkie and that the bakkie departed thereafter. How would he have seen this if he was away from you towards the Nerston border post?

MR NOFOMELA: He may just be saying that, constructing it from what he heard from the people who were there.

MS VAN DER WALT: But Mr Nofomela, you had not even testified yet and according to your application it is the case indeed that the bakkie stopped there. Do you wish to comment on that?

MR NOFOMELA: I do not quite understand.

MS VAN DER WALT: Now you have testified, you have only testified just now, how would he have been able to alter his evidence regarding the bakkie which stopped approximately 100 metres away from that point?

MR RAMAWELE: Chairperson, I don't understand the question because what Mr Nofomela is saying, his answer was he could have heard it from the people who were there. Now I don't understand what my colleague is saying, I don't understand the question. He's not saying he could have heard it from me, he's saying he could have heard it from the people who were there.

MS VAN DER WALT: Mr Nofomela, may I proceed? In his evidence, Mr van Dyk stated clearly that he saw a person with a firearm, that there was a shooting, that one person escaped. Furthermore he testifies that he threw down his weapon, that would be the person who escaped, that he attempted to follow or pursue that person but because he had to go through or over a fence, the person had already crossed the road and had disappeared into the darkness. From where would he have obtained that information if he himself had not been present there?

MR NOFOMELA: As I've already stated, it is possible that he could have heard it from the people who were present and put it as such but I reiterate that he was not with me.

MR LAX: Can I just clarify something? Sorry, Ms van der Walt, to interrupt.

&#9;You did say though in your testimony that at the time you went looking for those people he was present and you followed blood marks on the ground, you spoke about all of that? And he instructed you that there was no point going any further because clearly in the dark at this juncture?

MR NOFOMELA: That is correct.

MR LAX: Yes so at which point did he become present there because are you saying he wasn't present there at all or are you saying he joined at a certain time or what are you saying? It's not clear.

MR NOFOMELA: I said he was not present when these people were shot.

MR LAX: Okay.

MS VAN DER WALT: Mr Nofomela, if Mr van Dyk had subsequently obtained these facts, he has also testified to in such fine detail to the extent that he had to pursue the person who ran away through a wire fence and you have also testified about the wire fence which you also had to cross or climb over, how would he have been able to obtain such fine details regarding the scene in order to be able to testify about it today? Do you have a response to that?

MR NOFOMELA: I do not know how else to respond to your question because I've just told you that that does not alter my stand. I maintain that he was not there at the spot, he may have obtained it from the other people.

MS VAN DER WALT: You see, Mr Nofomela, Mr van Dyk testified that this person dropped his firearm and then ran away and Mr Hattingh examined you about this and it is very clear in your application in the middle of page 29:

&#9;"One member of the group ran away, dropping his firearm."

From your application it appears very clear that it was your observation. You are not saying that it's something that you heard about subsequently. Do you have any response to that?

MR NOFOMELA: It does not mean that if he puts the facts as they are he was present, he may have heard about it.

MS VAN DER WALT: But I'm referring to you? You have made precisely the same allegation in your application. I know that you've attempted to explain it now but you have made precisely the same application in your application and it is very clear that:

&#9;"One member of the group ran away, dropping his firearm"?

MR NOFOMELA: Yes it is written that way.

MS VAN DER WALT: From your application it is clear that you saw this as well?

MR NOFOMELA: I did not see it, I assumed that is what he did and that is how I concluded it but I did not see him as I explained earlier on.

MS VAN DER WALT: So you assumed this but Mr van Dyk testified that he saw it. Do you have any comment?

MR NOFOMELA: I've already responded about Mr van Dyk's presence at the spot and I maintained that he was not there. Whatever he says happened is his own knowledge but he was not present.

MS VAN DER WALT: So Mr van Dyk is applying for amnesty for a person who was shot dead and whom he alleges he shot or at least one of you shot the person but he was never present? Is that correct, Mr Nofomela?

MR NOFOMELA: I've already stated it.

MS VAN DER WALT: Mr Nofomela, there is just a singular aspect which I do not understand about your evidence. Perhaps I made an incorrect note but according to me you said that Mr Willemse and Mr Mogadi came to say that one person had escaped. 

MR NOFOMELA: Please repeat that?

MS VAN DER WALT: According to your evidence, your evidence that you stated today, you said that Mr Willemse and Mr Mogadi came to tell you that one person had escaped. 

MR NOFOMELA: I do not recall saying that.

MR LAX: Just for the record, my note says:

&#9;"A short while after the shooting, Mogadi and Van Dyk arrived. We told them that the person had fled."

Then there was a story about the big torch and following trails of blood and so on.

MS VAN DER WALT: I can leave it at that, I think it was somewhat earlier but it won't make that much difference. 

CHAIRPERSON: I have a note, which could be incorrect, is:

&#9;"After the shooting Badenhorst or Willemse said one had fled."

MR LAMEY: I have that same note, Mr Chairperson.

MS VAN DER WALT: Thank you Chairperson.

&#9;You have just heard that according to your evidence you said that either Badenhorst or Willemse said that one person had escaped. Is that correct?

MR NOFOMELA: Yes.

MS VAN DER WALT: Didn't you say that? Didn't you see one person escaping?

MR NOFOMELA: I did see him.

MS VAN DER WALT: Mr Nofomela, you have heard the evidence of Mr Paul van Dyk. I will not repeat it, I just want to put it to you that Mr Paul van Dyk was indeed at the place, that he indicated on Exhibit K and that he shot the person. 

&#9;No further questions, thank you Chairperson.

MR NOFOMELA: I do not know about that.

NO FURTHER QUESTIONS BY MS VAN DER WALT

CHAIRPERSON: How long do you think you'll be?

MR NTHAI: Mr Chairperson, it's better that we adjourn now.

CHAIRPERSON: What time would suit you gentlemen and ladies tomorrow? Are any of you coming from outside Pretoria?

9 or 9.30?

MR HATTINGH: Sorry, personally I would prefer 9.30 Mr Chairperson.

CHAIRPERSON: Very well, we trust that everything will be working and that we can start at 9.30 tomorrow morning.

COMMITTEE ADJOURNS

