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ON RESUMPTION ON 04-06-1999
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 ON RESUMPTION ON 04-06-1999

ARGUMENT

MATTER:&#9;DE KOCK HEARING 1

DAY:&#9;&#9;8

--------------------------------------------------------------------------ON RESUMPTION:

CHAIRPERSON: Right, shall we continue.

MR LAMEY: Mr Chairman, may I just say something, it would appear that I was under the - I misunderstood that we would start at half past nine, I wish to apologise. I was the reason for delaying everybody here. I just want to express my apology.

MR HATTINGH IN ARGUMENT: Thank you Mr Chairman, members of the Committee. Mr Chairman, we submit that most of the facts relating to this incident, are either common cause or are not really hotly disputed. We submit that the primary objective of the operation was to eliminate the Chand house in order to prevent the passage of PAC so-called terrorists to and from Botswana. We submit that the evidence clearly establishes that the Chand family provided a facility for PAC activists on their way to and from the RSA and that there was no or very little evidence to the contrary.

CHAIRPERSON: Tell me, does the evidence go so far or is one driven to the conclusion that the Chand family were operating this transit facility before Oosthuizen became involved, that he learnt about it and then persuaded in some way, persuaded Chand to become a double agent?

MR HATTINGH: Mr Chairman, we submit that one can draw such an inference from the evidence before you.

CHAIRPERSON: The evidence is not that Oosthuizen established the route? There is nothing to suggest that?

MR HATTINGH: Certainly, nothing to suggest that Mr Chairman. It seems clear therefore Mr Chairman, that the DCI lost control over the passage of terrorists into and from the RSA and that led to problems with members of the South African Police, there is some suggestion that there was an incident at Lichtenburg, members of the South African Police were seriously injured as a result of a handgrenade going off.

CHAIRPERSON: Coming back to this, question the use of the word "lost control", is there any evidence that they ever had control?

MR HATTINGH: Yes, Mr Chairman, if they ...

CHAIRPERSON: The evidence we have heard, as I understand it is that on occasions Mr Chand would inform Oosthuizen of the movement of terrorists?

MR HATTINGH: Yes.

CHAIRPERSON: But at the same time large numbers were coming into the country which he had no knowledge of check of, he waited at places where he expected to find them, they wouldn't come, they went different routes and that sort of thing?

MR HATTINGH: That is correct Mr Chairman. They may established arms caches here in the Republic in the process, so we submit Mr Chairman, that the political objective has clearly been established. It is also clear with respect, Mr Chairman and members of the Committee that De Kock in his capacity as a member of the South African Police, received instructions from his superior Officers being Generals Engelbrecht and Van Rensburg, to carry out the operation. We accept, we assume Mr Chairman, that Gen Van Rensburg was notified by the Committee as being an implicated person in this incident. He has not seen fit to appear or to give evidence and we submit that one can accept therefore that what is said about him giving the order, is common cause as far as he is concerned. As far as Gen Engelbrecht is concerned, Mr Chairman, there is an affidavit before you containing bland denials. As opposed to that you have the evidence of De Kock and Mr Nortje and some of the other members, their evidence was tested under cross-examination, we submit that there is no reason why that evidence should not be accepted. We submit therefore that it has been clearly established that De Kock and the members under his command, acted on the instructions of their superior Officers and that they carried out this operation as members of the South African Police in the bona fide belief that they were acting against the enemy, so-called enemies of the government of the day.

CHAIRPERSON: The only direct evidence of instructions was that of De Kock himself, wasn't it?

MR HATTINGH: Correct yes, Mr Chairman.

CHAIRPERSON: But as I recollect it, a number of the other applicants gave evidence to the effect that overseas operations never have been conducted without approval from higher up?

MR HATTINGH: Yes.

CHAIRPERSON: Local operations could sometimes have been done by local, but overseas, cross-border operations, always had to be approved?

MR HATTINGH: Yes, that is correct Mr Chairman, and there is logic in that evidence. Clearly an operation across borders, is a very sensitive operation that can have far reaching implications for the government and to suggest as it is suggested by Gen Engelbrecht in his affidavit, that De Kock acted on his own and at the request of a member of DCI, is with respect, ridiculous Mr Chairman. We submit that subjectively therefore, Mr De Kock and the members of his Unit under his command at the time, believed that they were acting against enemies of the former government. 

&#9;Mr Chairman, the next issue that we would like to address is the question as to the killing of the third son. We submit that they gathered as much intelligence before the operation was carried out as it was possible for them to do in the circumstances, having regard to the fact that the terrain is quite open and it was difficult to get to the house itself and that they had to observe the house from across the border, with binoculars and so on. In doing so it was established, we submit according to the evidence, although Mr De Kock himself had no recollection of having been told this, we submit that Ras' evidence is quite clear that he informed Mr De Kock that there were two sons and that they were also involved in assisting the PAC members to cross the border into the Republic.

&#9;As far as the youngest son is concerned Mr Chairman, it is tragic, but the evidence, the only evidence before you is that they were unaware of the youngest son's presence in the house at the time. One wonders where the information that was published in "Die Beeld", was obtained from, because clearly there the names of the three sons and the fact that two of them were deaf and mute and that their ages were given and according to that report, the youngest son was at home during school holidays. Be that as it may Mr Chairman, the evidence before you establishes that Mr De Kock and his members were unaware of the presence of this young child and as tragic as it might be, he was caught up in the cross-fire of the operation.

CHAIRPERSON: Doesn't it go further though? You keep saying "young child", he was a young man of 16, wasn't he?

MR HATTINGH: 17 actually, yes.

CHAIRPERSON: 17? We have heard I regret to say numerous applications where there has been evidence of people of that age leaving the country for military training or returning and the - as I understand the evidence - the group had been told that they must be on their guard against possible PAC persons being in the house. They had been led to believe that there may be other young men in the house who would be assumed to be PAC?

MR HATTINGH: Yes, indeed, that is quite correct Mr Chairman. I think that you have probably heard evidence on numerous occasions where children or young men of that age, were involved in the armed struggle against the government of the day. It is also inconceivable or difficult to accept Mr Chairman, that if this child was living there, that he was unaware of the activities that were going on in that house. It is clear that a large number of operatives came through that house, that they were put up there for more than just a brief while, they spent nights there. It is also clear that they came, carrying arms and possibly even explosives to establish arms caches in the country and it seems clear in our submission therefore Mr Chairman, that even this young child, if he was living there permanently, must have been aware of the activities of his father, mother and two older brothers.

&#9;We submit that it is unfortunate if he was in fact an innocent bystander, that he was killed, but that in the circumstances of this particular operation, that couldn't be avoided. The same with respect, applies to the guard, Mr Chairman. The evidence doesn't show where in relation to the shop, the guard's house or shelter was, it is not clear whether he was guarding the house or the shop. If he was guarding the house, then one is almost driven to conclude that he was aware of the political activities that were going on at that particular house.

CHAIRPERSON: Wasn't the evidence that he was, he came from a guard house inside the fence surrounding the house?

MR HATTINGH: Yes, indeed Mr Chairman, that was the evidence.

CHAIRPERSON: And I think we were also informed that he was on duty 24 hours a day?

MR HATTINGH: Yes.

CHAIRPERSON: And obviously then would have been aware of all that was going on at the house?

MR HATTINGH: Indeed, yes, Mr Chairman. We submit therefore Mr Chairman, that the applicants, Mr De Kock, more particularly, made out a case for amnesty in respect of this particular operation. Mr Chairman, you will have noticed that I have taken the liberty of placing before you certain decided cases dealing with the question of personal gain. There is no evidence that Mr De Kock received anything, in fact the only evidence is to the contrary. He himself says that he didn't get anything at all, but this issue is going to arise again and again and perhaps it should be addressed at this early stage to save time in future Mr Chairman.

&#9;I am not going to deal with it at great length. May I first of all refer you to the decision in the Southern Rhodesia as it was, the matter of R v Higginson and I would like to read to you from page 298 where His Lordship, Mr Justice Beadle said the following -

&#9;&#9;"... it will be seen that the Section makes it an offence to practice as a Doctor 'for gain higher or hope of reward'. The vital issue therefore is what is meant by the words 'for gain higher or hope of reward'."

&#9;Might I pause here to point out that in this Act, no provision is made for a hope of reward, it simply says for personal gain.

&#9;&#9;"... the crown case is that these words mean nothing more than for payment, that once it is proved that an accused practised and that payment was received for such practice, the offence is proved and that whether or not the accused intended to obtain any material benefit from the practice, is irrelevant to the inquiry. This argument warrants careful consideration but do the words of the Statute support it? It must be observed that the offence is to practice for gain. The word "for" in this context can only mean with the object of. The offence therefore is practising as a Doctor with the object of gain. Can a person be said to be practising with the object of gain when his object is not to make any profit or receive any material advantage for himself whatsoever? I think not. The word gain is, in its common literal meaning involve something more than mere payment, it involves also an element of accretion."

&#9;We submit with respect Mr Chairman, that you must look at the object of the operation and naturally you must look at the object at the time or prior to the performance of the act in question. You cannot ex post facto come along and say but because of the fact that he received money, therefore he had the object of carrying out the operation for gain. It is something that can point towards such a conclusion, but it is not proof of such a fact, Mr Chairman.

&#9;In the Natal Provincial Division in the matter of S v Shangazi 1964 (1), the Court was dealing if I may refer you to page 777, with the following offence, that -

&#9;&#9;" ... the accused was guilty of contravening Section 32(bis)(1)(c) of Act 23 of 1934 in that upon or about the 28th day of December 1960, and at or near Durban in the district of Durban, the said accused did wrongfully and unlawfully whilst not being a practising Attorney, notary or conveyancer, for or in expectation of a fee, gain or reward, directly or indirectly draw or prepare or caused to be drawn or prepared an instrument or document relating to or required or intended for use in an action, suit or other proceedings in a court of civil jurisdiction within the Republic."

&#9;That was the charge, Mr Chairman. May I request you to turn now to page 781 of that judgment where His Lordship, Mr Justice Fannan said the following right at the top of the page -

&#9;&#9;" ... now an essential element of this charge against an appellant was that he prepared the instrument or document in question for or in expectation of a fee, gain or reward. The mere fact that he was afterwards rewarded for doing so, is not by itself conclusive of his guilt. The Act under which the charge was brought, does not contain a provision such as found in Section 90(2) of the Medical, Dental and Pharmacy Act, 13 of 1928, that a person shall be deemed to have performed such an act for gain, if he has accepted any valuable consideration in respect of such act. In order to secure a conviction therefore, it was necessary for the State to show that the appellant prepared the documents either for or in expectation of a fee, gain or reward direct or indirect and not merely that he had in fact received a subsequent reward."

&#9;May I refer you to an older decision in the Eastern Cape Division, 1918. I haven't given you a copy of the full report Mr Chairman, because it deals with other charges as well, on page - in the matter of Rex v Raffaty on page 31, the last paragraph on that page, the learned Judge said the following -

&#9;&#9;"... on the third count, one Venter saw the accused at the accused's shop in Middelburg. Venter was residing at the time at Grootfontein College. Venter informed the accused that he was sick and asked him if he could give him medicine. Accused said 'possibly I can and will come out and see you.' The accused then called on Venter, told him to put out his tongue, felt his pulse and the same or following day, brought him some medicine. Venter says he asked the accused what he owed him for the medicine and all his trouble and the accused replied 'I am no Doctor and cannot charge you anything.' As the medicine had done him good, Venter states that he subsequently from Bloemfontein, sent the accused a present of $5. Venter's evidence is certainly remarkable, but if he is speaking the truth, although the accused examined him and prescribed for him and supplied him with medicine, he did so gratuitously and even informed him he would make no charge. Had the evidence enabled me to find the accused was in the habit of performing these acts in the hope of or and expectation of being rewarded by fees, and that his refusal to make the charge, was mere (indistinct) to evade the law, this charge would assume a different aspect, but I must take the evidence as given and the fact that the accused accepted the monetary present as not just to (indistinct) holding, that he either made a charge for his services or even expected to be paid for them."

&#9;In a separate judgment, His Lordship Mr Justice Hattingh agreed with this judgment and expressed similar sentiments on page 36 of his judgment, Mr Chairman. Lastly may I refer you to a civil matter, the matter of Laird v Machik Witwatersrand Local Division, His Lordship Mr Justice Schabbort, here I would like to refer you to page 302, opposite the letter (G) -

&#9;&#9;"... I shall assume without deciding that the plaintiff acted as an intermediary as envisaged in Section 1(b)(4) of Section 40 between the defendant and Joffe. I therefore also assume that the plaintiff had laid the bets on behalf of the defendant. This is an expression that can bear different meanings. It can mean 'as agent of' in the sense of representation in the legal connotation (the narrow sense), or it can mean 'for the benefit of, to the advantage of or in the interest of (the wide meaning)'"

&#9;In Botha in Premier Milling and the reference is given there and the Judge continue -

&#9;&#9;"... the final question to be answered is whether the plaintiff acted for gain as contemplated in Section 40(1)(b). The word 'for' in the context of 40(1)(b) can only mean 'with the object of' ..."

&#9;and then he refers to the Higginson matter to which I have already referred you. Then he continues on page 303, perhaps I should read from where I stopped on 302 -

&#9;&#9;"... as far as the meaning of the word 'gain' in this context is concerned, I shall assume without deciding that it extends beyond personal gain and material benefit, advantage or reward actually received. The intermediating act for gain must however, at least, proceed from a profit directed motive as the causal inducement, compare R v Higginson. There is in my view no evidence that the plaintiff actually contemplated that profit would or could accrue to him personally to rustle, lead, racing or to any other entity from his act of intermediation. There is further, if such evidence must be taken, there is no evidence that the plaintiff's intermediation was done in pursuit of such contemplated profit."

&#9;Here Mr Chairman, what is the evidence that you have before you? The evidence is that on a rather haphazard, in a rather haphazard manner, bonuses are sometimes paid to the members of Vlakplaas. Some of them testified that sometime after this operation, they received money. One of them, if I remember correctly, even says that he was told that it was in respect of this operation. Mr Chairman, Mr De Kock's evidence in this regard is very clear and we submit that he is supported by the objective evidence here. If it was the intention to compensate all the members for their role that they played in this particular operation, then surely each one of them would have received a reward. Why would some of them be paid and others not? 

&#9;The evidence before you establishes quite clearly that Mr Willemse and Mr Britz and Mr Tait, they all said they were involved in the operation, but they received nothing for it and that bears out Mr De Kock's version that they weren't paid in respect of particular operations and from time to time, they were given bonuses, not connected to a particular operation. We submit that that is the evidence before you, there is no evidence to contradict that evidence Mr Chairman. Even if it is accepted that they received money after the operation, then the evidence still clearly establishes that they did not expect to receive such money, they weren't promised that they would be paid in respect of the operation. The authorities to which I have referred you, then comes into application with respect Mr Chairman, that the mere fact that they did receive money after the operation, does not prove that they performed the act or the operation for reward as contemplated by the Section in question. We submit therefore Mr Chairman, that as the Committee did in the Mentz' application, Mentz was one of those members who testified in his application that he in fact received a reward in respect of this particular operation and despite that, the Committee held that that was not by implication, I assume, it was not specifically dealt with, but held that that was not the reward in terms of the Section in question.

&#9;In the Mxenge matter, there was also evidence that Tchikalanga, Mamasela and Nofomela were paid certain amounts after they killed Mr Mxenge and there too, the Committee specifically ruled that was not reward as contemplated by the Section of the Act. We submit therefore Mr Chairman, that there is no evidence that the operation was performed for personal reward or for personal gain as provided for in Section 20(3)(i), the operation was not carried out for personal gain. We submit therefore Mr Chairman, that amnesty should be granted in respect of Mr De Kock and we apply for amnesty for conspiracy to commit murder in contravention of the provisions of Section 18(2)(a) of the Rioters Assemblies Act, 17 of 1956, we also apply for amnesty in respect of the illegal possession of firearms in contravention of the provisions of Section 32(1) read with Sections 1, 39 and 40 of Act 75 of 1969.

CHAIRPERSON: I think we have already said and I am not sure if it was at this hearing, that we would ask the parties applying for amnesty, to let us have details of what they are applying for. Can you let us have these written out?

MR HATTINGH: We will do that, yes, thank you Mr Chairman. That is all I have to submit to you Mr Chairman, thank you.

MR BOOYENS IN ARGUMENT: Thank you Mr Chairman. Mr Chairman, in so far as the position of - Booyens on record - the position of Mr Tait is concerned, it is my respectful submission that in the first place, in so far as his evidence is concerned, as to how he was involved, how he got involved and what he did, stands virtually unchallenged. In any case, although there may be minor differences between him and some of the other applicants as to who walked in where and when and at what stage, those are differences that are in fact understandable but does not go to the root of the matter and I would submit that his application should be approached on the basis of that the evidence he gave, is correct.

CHAIRPERSON: Shouldn't we approach his evidence and all the other evidence, that the evidence the people gave is correct to the best of their ability because I think we must be conscious of the fact that people are telling us about something that happened a long time ago, two o'clock in the morning, under great tension, it is hardly surprising if there are slightly different versions and I don't think we can pick any one person and say "well, his is the correct one."

MR BOOYENS: No, I quite agree with you Mr Chairman, that should be the approach. Then based on that fact, Tait tells us that he didn't know about the DCC connection, it is understandable, he was one of the footsoldiers. The whole background as to whether Tony Oosthuizen should be warned or not be warned or whatever there might have been there, is not relevant in so far as Mr Tait is concerned. Tait gets told shortly before the operation that "there is a house in Botswana being used as a transitu for people, for enemy forces that infiltrate into South Africa. You are to go together with your colleagues, you are to destroy this facility and kill everybody in the facility." Those are his instructions.

&#9;He has no reason to disbelieve his instructions, he has no reason to disbelieve his information and it clearly establishes a political motive for him because the whole purpose, the whole raison d'être for the Security Police, they were there to combat this very type of people, members of the ANC, so he fits in exactly, or the PAC or in this case, APLA in all probability, so it fits in exactly for why he is there and for that reason it is clear that Tait's, what he did, what he gets involved in, must fit in 100 percent with how he understands it.

&#9;Two aspects that my learned friend referred to already Mr Chairman, that is the issue of the child and the night watchman. Apart from the fact that I agree with my learned friend, the other aspect that we should remember as far as Tait is concerned in any case, that the person, that there was no persons that could obviously be called children. A person of 17 years old, under a blanket and so on, looks as big as a person of X, it doesn't really matter. So in the circumstances it may indeed be so that two innocent people were killed in the cross-fire. Mr Chairman, may I remind you that in the Mitchell matter, a case that you yourself is very much aware of, Mitchell in fact attacked the completely wrong premises but for a political motive, and he was granted amnesty by the Amnesty Committee.

&#9;For that reason it is my respectful submission that this Committee should consider that Mr Tait had a political motive, that that political motive in the circumstances, we must remember it is a cross-border operation, they were using silenced firearms, there are indeed if one deals with the proportionality aspect, it is understandable why they had to act quickly, there was little time to think and once again if people were killed in the cross-fire, it was unfortunate but one of those things that could have happened with cross-border operations.

&#9;In so far as the crimes are concerned, in his application he referred to all crimes relating to the death of the six members of the PAC and the destruction of the house. Obviously Mr Chairman, that was for what was committed, although as I understand the Act, you can apply for amnesty for something that you committed cross-border, but in so far as specific offences are concerned also, there would be a conspiracy that he was part of to commit murder on South African soil and then obviously also the unlawful possession of firearms. That is all as far as that, but in our submission, as I understand the Act, although it is a question of some debate as to what value it will have, but a gross human violation is in paragraph 1(iv) which emanated from the conflicts of the past, which are committed during the period March 1960 to cut off date, in or outside the Republic, etc. It is our respectful submission that for whatever value that may have, that the Committee could also grant amnesty as far as that is concerned. That was obviously the intention of the Legislature, maybe the intention was that if he is granted amnesty and a foreign State should bring extradition proceedings or something like that, that that can be said "well, as far as this Court is concerned, there may be some argument open as far as that one is concerned."

&#9;I would accordingly also ask for amnesty for the murder and for the ...

CHAIRPERSON: Will you let us have details?

MR BOOYENS: Indeed.

CHAIRPERSON: I think in applying your mind to that, you must ascertain precisely what firearms your client was carrying because I have an idea they are vastly different provisions whether it is an automatic machine gun ...

MR BOOYENS: Yes, very well Mr Chairman. Could I do that in writing and supply that to you. Thank you, unless there is something else, those are my submissions Mr Chairman.

MR LAMEY: Mr Chairman, we have arranged Mr Jansen will proceed with Ras, and then I will follow him, thank you.

MR JANSEN IN ARGUMENT: Thank you Mr Chairman. Mr Chairman, the first point I wanted to deal with was the general approach to the evidence and I leave it at agreeing with the remark you made about the amount of consideration that must be given to the fact that the incident happened some time ago and under circumstances where one would expect faulty memory and different types of reconstruction a while later, Mr Chairman. You should also consider in your general approach to the evidence that in amnesty applications in general, the applicants recalled a vast number of incidents which they were involved in over a long period of time for purposes of their amnesty applications. In other words, a person such as Mr Ras recalled some 20 incidents which he was involved in in a period of some eight or nine years, and one can expect that because of that, in circumstances where people certainly never had the opportunity of refreshing their memory because they certainly never expected to testify about any of these incidents, that that would lead to unreliable evidence and that under these circumstances, one must be very cautious to make any inference of dishonesty, in other words that the unreliability of the evidence is because of dishonesty. In fact, what I am therefore submitting Mr Chairman, is that one should be even more cautious than one is under normal circumstances. Mr Chairman, there is however one issue that I believe should be dealt with specifically and that relates to the children. The information that was available in respect of the children of the Chand's and I am to some extent preempting and expecting an argument that the differences in this respect, not only is indicative or explicable by the nature of these other issues that we have spoken about, but specifically relates to an issue that the people have been wanting, that the applicants have been wanting to avoid or have been trying to deny for reasons of what was convenient. Mr Chairman, firstly that does not apply to Ras for the simple reason that Ras tells you what his information was and he is the person that can be expected to have had the best knowledge. 

&#9;Mr Chairman, it would be clear with respect if one considers some of this evidence, that there were clearly misapprehensions, misunderstandings at the beginning as to what the ages of these children were. I would suspect and I respectfully submit, correctly so, that these misunderstandings in respect of the children's ages and their if one may put it in inverted commas, their "legitimacy" as a target, seems to have emanated from quite close to the incident itself, in other words just the information that came to the applicant's knowledge shortly after the incident. For some or other reason they were under the impression that young children were killed. We can start off with the application of Mr Wouter Mentz. Mr Chairman, if you look at page 151, the fourth paragraph, it is the last one, this is what is in his application, I don't have his evidence as such, but it says -

&#9;&#9;"... nobody knew who was in the house before the house was entered. The instruction was to eliminate the occupants of the house. There was no information that there would have been children inside the house and nobody expected to find children inside the house."

&#9;In other words, it is clear from the context or from the impression one gains, is that Mentz is saying we did not expect children there in the sense that they would have been persons we would not have targeted, in other words, children that would normally have been targeted. Mr Chairman, if you then go to - sorry Mr Chairman, I am just trying to find - if you go to Colonel De Kock's application again and I submit the evidence is really very much in similar vein, this is found at page 5, it starts there towards the end of that last paragraph.

&#9;&#9;"... the only information which was available to us with regard to the Chand's was that they were a man and wife living alone in a house near the border post. The name of the border post, I cannot recall at this moment. It also came to our knowledge that there were no guards and that any other person on the premises, could be regarded as a PAC member."

&#9;Then he goes on as to say, talking how he gave Ras the instructions but on the next page, at the bottom of page 6, that last paragraph starts off with -

&#9;&#9;"... later I determined that among others, children had been killed in the house, however nobody knew who was in the house before we entered it. Our instructions were clear that all the occupants were to be eliminated."

&#9;Mr Chairman, if you take that clearly mistaken view of what the actual facts was, and you compare it with what De Kock then says in the very next paragraph, this is important, on page 7 -

&#9;&#9;"... to the best of my knowledge, there were four persons in the house."

&#9;So, at the very same time of recollecting that there was not supposed to be any children in the house, De Kock's memory also tells him that there were four people killed in the house. It is clear that the reconstruction was that there would have been four adults, four "legitimate targets" in the house and it may be Mr Chairman, that in the way that Ras dealt with the information, it was certainly not stressed that these other people in the house were the Chand's children, although it would seem that the fact that it was his children and that they were deaf and speech impaired, was mentioned. Mr Chairman, the reason for that is Willemse's, is Mr Douw Willemse's application, more specifically Exhibit C which is his supplementary affidavit made as far back as last year, July 1998, completely independently Mr Chairman, where he says if one looks at Exhibit C, I am just trying to find the passage, it is on the third page of that document Mr Chairman, right at the bottom, that last sentence, paragraph 10(b) -

&#9;&#9;"... during the briefing session, it was specifically stated that the Chand children were also involved in assistance to the PAC activists by among others walking ahead or travelling with them in a group when the border was to be crossed."

&#9;In other words, there his memory tells him that the children seemed to have operated as decoy's. Ras as he relates it in his supplementary affidavit, is that his information was that they were guides. The fact of the matter is Mr Chairman, it would seem that there is at least as far as those two children are concerned, a very definite explanation why somebody would not have made a very clear mental note of the fact that they were children, but would have regarded them in their recollection at least, simply as other grown up's involved, part of four people expected in the house.

&#9;Mr Chairman, that leaves ...

CHAIRPERSON: That would mean the two eldest sons and the parents?

MR JANSEN: Yes.

CHAIRPERSON: Or what they expected, which would tie in with the suggestion, I forget, yes it is, that the other boy was at school still?

MR JANSEN: Yes. And Mr Chairman, that is Ras' evidence. If you look at his application and at his supplementary affidavit also, he says one of the issues he disagrees with with all the other applicants, except with John Tait is that there were six people killed. He recollects that there were six people killed, the only other applicant is Tait which remembers that there were six people killed. Mr Chairman, I am just looking for the reference, that is page 81, paginated page 81. Tait and Ras obviously has the correct recollection in that regard, if I am not mistaken, most of the others if not all of the other applicants, speak of five people, the guard outside and four inside.

CHAIRPERSON: Well, he says he was told about six being killed, that presumably was on the journey back by the others who had been there, who had shot people. It may be that his arithmetic was better than others or he listened more carefully?

MR JANSEN: Yes, he says "I heard from the other members". But in any event, his recollection of what was said at that stage, was better than I believe the other persons' recollection was. Mr Chairman, there is nothing to suggest the contrary to what Ras said and especially if one looks at his supplementary affidavit which was made fairly recently. He says he does not know what the identity of the sixth person was, it was only thereafter that it came to our knowledge that it was in fact also another child, another son of the Chand parents and there is nothing to gainsay that the fact that Ras did not receive that information from the PAC members, the ascaris which he interviewed and from whom he collected information. At the very least, even on the assumption that the youngest child, Imraan, was a permanent inhabitant at that house, at the very least, one can also accept that that information, or the presence of that child, was not conveyed to him by those PAC members at Vlakplaas, therefore whatever the reason is Mr Chairman, it remains a fact that that information was not conveyed and it was therefore not conveyed to the others.

&#9;In that regard, so what is the position with Imraan Chand, Mr Chairman, is that he is then certainly an innocent or an unforeseen civilian target or an unintended civilian target. Mr Chairman, in that respect, one must to some extent have a look at some of the other operations that Vlakplaas and the military and the Police were involved in. My respectful submission is Mr Chairman, that it was not uncommon for civilian targets or for civilian persons to be killed in the cross-fire.

CHAIRPERSON: Was he an unintended target? I understood from the evidence that we heard, that they were told to kill all the people in the house? He was one of the people in the house?

MR JANSEN: Yes, no Mr Chairman, certainly he was an intended target in that sense. I am just again preempting the type of argument which I and the finding which I believe respectfully, to be erroneous in respect of the Mentz decision, where Mr Justice Ngoepe made the note to this incident that they should have foreseen people being in the house and that on that basis, because of that foreseeability, it would appear not to be justified or that it fails on the proportionality test or one of those tests in 20(3)(c) I think.

ADV SANDI: But in this particular case, Mr Jansen, was it not dark, it was at night and I am sure they could not even, well, according to their evidence, they could hardly see the people they were wanting to kill there, according to the order.

MR JANSEN: Yes, absolutely Mr Chairman, and to the extent that you are with me in your approach on that, I will leave it at that and I will just shortly make some submissions in expectation, I would assume arguments to the contrary. Mr Chairman, in this regard I will ask you to some extent, take cognisance of what was said in the broader report or findings that was made in the report by the Truth Commission itself, and refer you to knowledge which I believe that the Committee by now will have of other raids. Mr Chairman, one of the other raids, I am referring at this stage Mr Chairman, to the appendix to Chapter 1 of Volume 3 of the Commission's report which is, the appendix is a chronological listing of events which fell in the mandate period of the Commission.

&#9;One of the issues there omitted is a cross-border raid in 1980 in Swaziland, but it does form part of the Dirk Coetzee amnesty application. It will also in future form part of the application by Mr Chris Rorich of the Ermelo Branch. That was a more typical cross-border raid Mr Chairman, in the sense that what was done was that the explosives were placed on the outside of the buildings and explosives or handgrenades were hurled into the buildings. In other words, the houses at that incident was not penetrated. The obvious reason being Mr Chairman, that penetrating of houses are obviously a lot more dangerous, inherently more dangerous than simply blowing them up. 

&#9;In that incident Mr Chairman, a nine year old child, one Mowick Nkosi was killed, that is June 1980. It is Ermelo Branch. Mr Chairman, in 1981 we have the Matolo raid in Mozambique, this is a military operation Mr Chairman, typical to military operations Mr Chairman, they are conducted from a long distance, either from the air or with artillery over a distance, that Mr Chairman, with respect obviously increases the chances or the danger of civilians being killed in the cross-fire. I use this as example because Mr Chairman, I believe it is important in the bigger context of things, to see what was regarded as proportional, not proportional or what was regarded as the nature of the battle, or the nature of the campaigns.

&#9;Mr Chairman, in 1982 there was a military attack on flats in a residential area in Maseru, Lesotho, 42 people were killed, 12 of whom were Lesotho nationals. This was intended to kill Mr Chris Hani who was apparently not there or was not killed, but Mr Chairman, in 1985 there was again an SADF raid in Gaberone. As far as I know, this was a combined air and land attack, I am not sure, but in any event, 12 people were killed of which eight were South Africans. No further detail is given in the Commission's report. In 1985 Mr Chairman, there was the South African Security Force's raid in Maseru. I believe this was also a Police matter which you will be hearing evidence about in due course. Six South Africans, including MK operatives and three Botswana citizens were killed. In 1986 Mr Chairman, there was an Air Force raid in Harare in Lusaka and Gaberone, on the 19th of May. I believe that is a fairly well known cross-border raid, but again one from the air. Again I don't know who was killed or not, but certainly the foreseeability of people, of ordinary civilians being killed in this kind of operation is certainly far greater than the type of operation that we are dealing with in this specific instance.

&#9;Mr Chairman, just to conclude I wish to refer you to the findings of the Commission in respect of the Chand incident, findings that were made on the basis of what was gained from Section 29 enquiries. It is found in Volume 2, chapter 7, paragraphs 44 and further. The following is said and I believe this to be correct findings -

&#9;&#9;"... the Chand's were victims of rivalries within the Intelligence community, specifically in this case between the Western Transvaal Security Police and Military Intelligence's Directorate of Covert Collections. According to evidence before the Commission from the Section 29 hearing of Captain Hendrik Christoffel Nel."

&#9;Mr Chairman, I believe that may be incorrect, it may have to be Christo Nel, I believe there is a difference between, there are three Nel's in Military Intelligence, Hendrik Christoffel Nel, Christo Nel and At Nel. But in any event -

&#9;&#9;"... in the hearing of Captain Hendrik Christoffel Nel in the late 1980's, DCC operative Tony Oosthuizen recruited Chand as a conduit for the infiltration of PAC members and APLA guerillas into South Africa. Chand acted as a source for the Western Transvaal Security Branch but had been put on ice as they felt they had the PAC in Botswana under their control."

&#9;Then it goes on to analyze Nel's evidence. Mr Chairman, so to the extent that there was a suggestion that this matter should have been discussed with Military Intelligence, in other words that another type of solution should have been found to this problem, Mr Chairman, none of that can really be held against any of these applicants here, unless you find that Mr De Kock is not telling the truth about what his orders were. The fact of the matter is, there seems to have been some talk about it. Furthermore, it seems to be that the Intelligence community in the Police, decided at worst that they simply were not going to countenance this military operation and that they were going to eliminate a source of the military. That decision at the time, Mr Chairman, cannot reflect on any of the applicants before you.

&#9;Mr Chairman, to conclude, Mr Ras is one of those applicants that did receive an amount of R5 000 some time after this incident, he does in his application relay it to this incident, but the specific reason for relating it to this incident is not given. I respectfully submit that it falls absolutely within the pattern as described by Mr De Kock in the evidence last week, the general evidence relating to these type of bonuses if one may call it that, and I certainly go along with the submissions made today by Mr Hattingh in this regard, and therefore I do not believe that this receipt of money which is very, which is typical of those instances where money was received by Vlakplaas members, and that there is findings by Amnesty Committees on record, that does not, that these type of receipts afterwards without having been promised it or without the expectation thereof, does not fall within the wording of the Act where it talks about acting for personal gain.

&#9;Mr Chairman, I believe as far as the other requirements of the Act is concerned, they are all, I respectfully submit they are all met and to the extent some of the issues in this case may be problematic Mr Chairman, I do not believe that Mr Ras' position is materially different to that of Mr De Kock's position, they were both fairly prominent in this instance, but both of them in any event, acting under orders.

&#9;For these reasons Mr Chairman, I respectfully ask that amnesty be granted. I will similarly Mr Chairman, put it in writing and let you have it Monday or Tuesday, thank you Mr Chairman.

MR DU PLESSIS IN ARGUMENT: Mr Chairman, I have requested my learned friend, Mr Lamey if I could make some submissions to you. I will be very brief in those submissions before he carries on. Mr Chairman, my position, it is Roelof du Plessis on record on behalf of Wouter Mentz, differs somewhat from my learned colleagues because of the simple fact that Wouter Mentz, that his application was heard by a different Committee and a decision was made by that Committee in respect of this incident, relating to him.

&#9;The decision which was made by the original Committee of which only yourself, Mr Chairman, was a member, was to the effect that amnesty was given to Mr Mentz in respect of Mr and Mrs Chand, but as I read the decision, it doesn't state that amnesty was refused but amnesty wasn't granted, so one must accept that amnesty was refused in respect of ...

CHAIRPERSON: Well, wasn't it a case where he said "I was not guilty of any offence in connection with them. I didn't know they were there, I didn't enter the house, I did nothing?" You don't grant amnesty where people say they are not guilty.

MR DU PLESSIS: Yes, Mr Chairman, as I read his, I read his evidence again because the decision doesn't make it 100 percent clear on what basis he was not granted amnesty. That could be one of the arguments, the reasons were not given properly, so I - or not properly, the reasons were not given in detail, so I find myself in a very difficult position Mr Chairman, in that I have to make a decision to advise my client if one should act upon that or not. 

&#9;The one attitude would be the one that you have raised now, that it simply did not constitute an offence, he cannot be prosecuted for it, and cadit quaestio. 

&#9;The other question would be that one should deal with it in a different way. That would obviously lead to a review application, some sort of request that the evidence at this hearing be placed before the original Committee to reconsider their position, I am not 100 percent sure what route we are going to follow, I am just placing that on record to place my position in perspective, Mr Chairman. 

&#9;The submissions however that I wish to make here, I make on the basis that I will make a decision later pertaining to Mr Mentz' position and I wish to make these submissions in support of the applications of the other applicants here and specifically ...

CHAIRPERSON: Before you go on to something new, my recollection and I have not as good a memory as most of the applicants, was that the question of the children was largely an after-thought, that we all assumed they were children. One can see that Judge Ngoepe's objection was "well, if you deal with a family, that the children will be at home at night", while thinking of little children.

MR DU PLESSIS: Yes, I was under that impression too, Mr Chairman. Everybody was under that impression.

CHAIRPERSON: The age hadn't been given at that stage.

MR DU PLESSIS: Yes. That is obviously something new which has arisen now after the facts, and one has now to consider how do you approach that.

CHAIRPERSON: That may well alter your question that you would not feel you want to take the original Committee on review, because they haven't applied their mind to it, but that evidence had now emerged which created a different position.

MR DU PLESSIS: Yes, that is the route I am considering Mr Chairman, not that the original Committee did not apply their minds to the facts properly before them at the time, but to consider the position pertaining to new evidence which came to light now and obviously other evidence of other applicants which may have a bearing on that, but it is something that I will have to make a decision about.

&#9;The only submissions I want to make Mr Chairman, relate to this question of firstly the third child who was in the house and the other persons who were in the house. We have heard evidence that they were targets in the sense that there was an instruction that everybody had to be eliminated who was present in the house, and that is one way to look at it, but what I want to raise Mr Chairman, is the argument pertaining to so-called innocent civilians.

&#9;We have heard evidence that the older two were involved to a limited extent with what their parents did, but in respect of the younger son, it is a different story. This situation you are confronted with, is a situation which has arisen previously before other Committees Mr Chairman, and it is going to arise again. May I just refer you, I am sure you will remember that other situations, but the one application Mr Chairman, where you were involved in, was the one of Mr Raven and Mr Williamson, in respect of Katryn Schoon which is still sub judice. The other application was the child in the bomb attack on Scheepers Morudu's house and those were small children, Mr Chairman. Then other examples where innocent people were killed and where consideration has already been given to this issue, are the applications of Brian Mitchell, the St James Church incident, the Amy Biehl incident and the Heidelberg Tavern incident. Mr Chairman, you have heard my argument and you probably know the argument already by now, because I have argued it quite a few times before you, but I cannot recall that I have argued this before the other two members and made this specific point. It may be that I did that in the Pebco matter before Mr Sandi, but I cannot recall.

&#9;The point is simply this Mr Chairman, it refers to Section 20(2)(b). This is the way this issue in my submission, should be dealt with where one deals with an innocent civilian who is killed in the cross-fire if I can put it like that. How do you approach that and in this Section which makes provision for acts of employees of the State at the time, it is important to note that there is a distinction made between two different kinds of approaches. When the act is considered, the act that lead to the death, this subsection says the following -

&#9;&#9;"... that it should have been done by an employee of the State in the course and scope of his duties ...",

&#9;etc, and then it starts with the word 'directed', and it says -

&#9;&#9;"... directed against a publicly known political organisation or liberation movement engaged in a political struggle against the State or a former State."

&#9;And then comes the most important word in this Section Mr Chairman. There is not the word "and", one finds the word "or" which means there is an alternative -

&#9;&#9;"... or against any members or supporters of such organisation or movement."

&#9;Mr Chairman, where you act against a specific person who was a member or supporter of an organisation or movement, it is easy because you fall under the second alternative in this subsection. If you prove that the person you acted against, was a member or supporter of the organisation or movement, you have succeeded in proving the requirements of this subsection. But, in a situation where you have acted in the course of your action, you have also acted against a innocent civilian, how do you approach that and in my submission, that is what the first alternative is there for, exactly to make provision for situations where you have to deal with the death of innocent civilians.

&#9;The first alternative if we can read it again, says -

&#9;&#9;"... directed against a publicly known political organisation or liberation movement."

&#9;Either you must prove that you acted against a member or supporter, or you must prove that you acted against a political, well known political organisation. Most of the times it will be both, you will satisfy both, but in the case of an innocent civilian, one cannot simply say this is an innocent civilian, so this person should be denied amnesty because he didn't act against a supporter or member of a well known political organisation. Because of the fact that if he acted against a publicly known political organisation, when he committed the act, he satisfies the first requirement. Then the question if a civilian was killed or not, does not come into play in respect of Section 20(2) at all. The only place where that question can come in and can be relevant for the whole enquiry, is the last subsection of subsection (3), the one that refers to proportionality. That is the only place where it can be relevant.

CHAIRPERSON: Isn't this your act directed against your publicly known liberation movement, could for example be the blowing up of the building.

MR DU PLESSIS: Correct.

CHAIRPERSON: If people get hurt, that is covered?

MR DU PLESSIS: That is correct.

CHAIRPERSON: But where you deliberately pick a person not knowing who they are, and kill them, how is that an act directed against a liberation movement?

MR DU PLESSIS: That is when you pick a person Mr Chairman.

CHAIRPERSON: Yes.

MR DU PLESSIS: A specific person.

CHAIRPERSON: As they did in this, they went into this house and they picked people lying in bed, covered with blankets and killed them?

MR DU PLESSIS: In this instance - no Mr Chairman, in this instance, in this incident and this is why I want to draw the distinction, in this incident the action cannot simply be seen as an action against specific identified persons, and that is why the building was blown up. The whole action Mr Chairman, was directed against elimination of this transitu house ...

CHAIRPERSON: But wasn't it on the basis that they understood that anybody found in that building, would be members or supporters ?

MR DU PLESSIS: Yes, from a subjective point of view, yes. Yes. And from that point of view, one could also obviously then bring this application in under the second alternative, Mr Chairman, that is so. The only reason I am advancing this argument to you Mr Chairman, is in respect of perhaps the third child, depending on how you regard the evidence in this matter and the possibility that you may consider the whole question of civilians caught in the cross-fire. If you are satisfied that the evidence satisfies the second requirement in that they thought that everybody in that house would have been members of a well known political organisation, cadit quaestio, then one doesn't have to fall back on the other alternative, but if you find that the evidence is not good enough, one has to fall back on the first alternative and if you have to fall back on the first alternative, in my submission, the evidence satisfies it as well, Mr Chairman, because the act was then directed against the elimination of this transitu house and it was directed against a political organisation. The question if a civilian was caught in the cross-fire can then only become relevant in respect of proportionality and in that regard, I have referred you previously to the Rafolo decision of His Lordship Mr Justice Van Dykhorst and numerous decisions of the Amnesty Committee previously, the Brian Mitchell application specifically becomes applicable. That is the only point I am trying to make Mr Chairman, and obviously it is important for my client, the decision that this Committee may make in respect of the incident and specifically the children, so as to consider my position thereafter and what I should do in regard to my client. Thank you Mr Chairman, I have no further submissions. Mr Chairman, may I perhaps be excused? Thank you Mr Chairman.

MR LAMEY IN ARGUMENT: Thank you Mr Chairman, may I proceed. Mr Chairman, I have drawn a list of what I view at this stage to be the relevant offences and acts committed by my clients at least, I am not so sure - the list is exhaustive, I will consider it further and if necessary provide you with a supplement, may I beg leave to hand this up in the meantime? Mr Chairman, I am in the advantageous position that I had the benefit of listening also to the arguments on behalf of the other applicants and I would submit that the applicants that I represent and who were part of the operation in Botswana, that much of what has been said is also relevant in respect of them and I also support the submissions made by my colleagues. I also wish to ask this Committee to consider also the broader context as has been considered in the judgments of Cronje and where references were made to also the submissions by Gen Van der Merwe and which gave a picture of the broader context in which the Security Police found themselves and we have also had the general background of Colonel De Kock before this Committee and specifically also the role and function of Vlakplaas.

&#9;We are looking at an incident which happened in 1990, in April 1990, subsequent to the unbanning of the liberation movements. I wish to point out that from the submission which Gen Van der Merwe has made in October 1996 and the statistics which has been listed in that submission, one will see for example that necklace murders in 1990, persons killed through that amounted to 48 as opposed to 1989, 12. The statistics of setting alight of persons in 1990, 101 as opposed to 72 in 1989. I am merely making the submission in that still despite the unbanning of the liberation movements at that stage and this operation being carried out after that, that there was a real imminent threat and still danger of the stability of the government at that stage, and that the PAC as being one of the well known liberation movements, was part of that.

&#9;In this regard I want to state that if one looks at the evidence in total and also then as the picture which Nortje had in his mind, for that matter also Willemse, that the target was the transit house being used as a facility for the infiltration of armed PAC guerillas. The target was further the persons in that house who information as Ras has testified, were supporters of, clearly supporters and allowed these infiltrations to happen. In order to also, just to add to what Mr Du Plessis has submitted, it is my submission that we have here both the criteria as mentioned in Section 20(2)(b) would apply, namely that the operation was firstly aimed at the PAC and its members as such, and the prevention of infiltration, and then secondly also, the supporters of that organisation.

&#9;We have in this case, Mr Chairman, in my submission also independent evidence as has emerged from the testimony of Mr Nel before the Investigation Committee of the TRC, totally independent which clearly supports what Ras has testified. It is my submission that this weigh also heavily with this Committee. We also in that evidence, it is clear that also the wife of Chand was also involved or reasonably suspected to be involved in the infiltration of the PAC guerillas. Mr Chairman, as the submission has been made before, I think it is clearly normal and understandable that various applicants would have different recollections of what was said, what was the motivation at that stage, etc. &#9;We have a good example in this case where Willemse for instance recall the role of the sons. As Mr Jansen has pointed out, that recollection of him when he made his affidavit, was totally independent. Nortje had difficulty in recalling that specific detail. If we have a look at Nortje's - his whole - what came to his knowledge prior to his involvement in the operation, it became quite clear that he was, as De Kock, previously before the operation, bits of information came to his knowledge. He also had difficulty to recall being present at a briefing and I would submit there is nothing, nothing should be negatively concluded from that. If one considers that he as an applicant was also involved in many incidents, one would presuppose that there were many briefing sessions in previous incidents and one cannot really expect him to recall all the detail. If he was present at that briefing session, to relate everything that was said. &#9;

&#9;The other possibility, and that is also a very strong possibility is that being also, having had some knowledge beforehand, he might have been told along the line by De Kock what his role would be and receive the instructions from him, and it was not really for him necessary to be at that briefing session, where specific as in the evidence of Ras, specific mention was made of the sons. The gist of it Mr Chairman is, or the most important factor I would submit is that in his mind, people that they could have expected in that house, was PAC infiltrators and people that assisted them.

&#9;This thing about the children according to his evidence was mentioned afterwards and as also, which has become clear from the evidence of Colonel De Kock and other members, that this thing created confusion in their minds. Given the circumstances prevailing at the operation, the darkness, the sort of crisis that they found themselves in after the guard had been shot, I would submit that is perfectly understandable. I submit that a case has been made out in Mr Nortje's case and that also of Willemse, that they qualify for amnesty. It is my submission that to the best of their ability, they have made a full disclosure. Where they could not recall certain detail, my submission is that no negative inference should be drawn from that. 

&#9;It is also my submission that they fall within the ambit of Section 20(2)(b) or at least Section 20(2)(f). I support the submission in report of the innocent civilian made by Mr Du Plessis and I am not going to elaborate further there on. As you have also correctly pointed out, the circumstances at the scene of the operation inside that house, was also not of such a nature that they were in a position to calmly and clinically assess the situation and to make a distinction on the scene about possibly innocent people. That is also not the information that they had beforehand. Mr Chairman, as far as the personal gain aspect, I am not going to address you on that. Mr Nortje has conceded it is possible, but he has no recollection of that.

&#9;I may just mention that and if necessary the Committee could have a look at that, that in matters where he could connect a benefit to a specific operation, he has made mention of that and he has also referred to that in his testimony of the Greytown incident and that is, I can just add the killing of Goodwill Sekakane.

&#9;Mr Chairman, then I also represented a client Bosch who was involved in the cover up or to create the alibi afterwards. In that regard my same submissions as regards to the political objective, is also applicable to him. He also acted under orders as the other applicants and with this type of operation, they had all reason to believe that it was approved from the higher ranks and specifically Security Headquarters. In view of the involvement, although Bosch did not know about that of the Directorate of Covert Information, I would submit that there was also very good reason why this incident, this alibi had to be created and therefore it is my submission that it also falls within the criteria in Section 20(3). Thank you Mr Chairman, that is my submissions.

CHAIRPERSON: How long do you think you are going to be?

MR WAGENER: 15 minutes Mr Chairman.

CHAIRPERSON: Do you want to take the adjournment now, we can't finish the whole hearing now, I don't think. We've got Ms Patel to come, so we will take the adjournment, a short adjournment.

COMMITTEE ADJOURNS

ON RESUMPTION:

MR WAGENER IN ARGUMENT: The applicants in this hearing apply for amnesty in respect of an attack on a PAC facility in Botswana on the 21st of April 1990. Apart from Mr De Kock, all the other applicants have testified that they served under his command and in taking part in this attack, they were merely acting on his instructions. Thus this aspect, Mr Chairman, has to be accepted by my client, Gen Engelbrecht. 

&#9;The only evidence by any of these other applicants, that is now apart from Mr De Kock, disputed by my client, is that of Mr Nortje in so far as he briefly testified that my client was involved in certain criminal acts to the extent that he was involved in certain unlawful cover ups.

ADV SANDI: Sorry Mr Wagener, if I can just come in there, I thought the other applicants had said they believed that Mr De Kock must have received an order from his superiors. I don't recall them to be making any claim of a direct knowledge to that effect here?

MR WAGENER: That is correct Mr Chairman, that is why I don't deal with that aspect at all. Coming back to the evidence of Mr Nortje where he made certain allegations of unlawful conduct by Gen Engelbrecht, Mr Chairman, this has been denied by the General in his affidavit and as I have indicated, I do also not intend dealing with those issues at this hearing. It seems to be appropriate to deal with that in due course when those incidents will form the subject matter of future amnesty hearings.

&#9;Mr Chairman, regarding the Chand incident, the only issues to be addressed on behalf of Gen Engelbrecht are the following allegations by Mr De Kock. The first is that Engelbrecht was present when Van Rensburg instructed him, that is De Kock, to proceed with the attack and thereby associating Engelbrecht with the instructions. In the second instance, De Kock testified that Mr Engelbrecht requested De Kock to allow him to take part in the operation by accompanying De Kock and his team to Botswana. This request was turned down by De Kock.

CHAIRPERSON: This was the statement that it wasn't an African safari, wasn't it?

MR WAGENER: That is correct Mr Chairman.

CHAIRPERSON: But we haven't asked any - I have refrained from asking anyone because I didn't think it was particularly relevant but it may have applied here, the place they went to was somebody's shooting farm, wasn't it?

MR WAGENER: Sorry Mr Chairman?

CHAIRPERSON: The place they went to where they stayed, was in fact a farm owned by somebody for shooting purposes?

MR WAGENER: Correct Mr Chairman. Now Mr Chairman, when weighing the probabilities of the aforesaid two issues, I would submit that the following 16 points should be considered by yourselves. The first is Mr Engelbrecht was a Detective from June 1969 to December 1990. The second is as a Detective, he had little contact with the Security Branch and its members, specifically prior to October 1989. The third is that the Security Branch always operated as a closed group and always applying the need to know principle even within their own ranks. The next would be the line of authority within the Security Branch where we heard evidence that the Security Branch took operational instructions within the Security Branch only and not from outside. The next would be that and actually it is coupled to the one of the need to know principle Mr Chairman, that this operation was regarded so sensitive by De Kock, that not even his second in command, that is Mr Baker, had any knowledge of the operation.

ADV SANDI: Mr Wagener if I could just interrupt a little on that, that is on the fourth point where you say the members of the Security Branch were taking instructions only from within the Security Branch division and not from the outside, but I thought the evidence is that from Colonel De Kock, the order was given by Mr Van Rensburg in the presence of Mr Engelbrecht. Can one say the order was from Mr Engelbrecht, he was just there and at the time he was in the Detective Division of the Police Force?

MR WAGENER: Mr Chairman, yes the member is absolutely correct although you will also remember that at the same meeting, this will also form the subject matter of future hearings, that Mr Engelbrecht allegedly gave certain instructions in respect of Brian Ncqgulunga and this happened at the same meeting. But in the first instance, yes, Mr Van Rensburg was the immediate Commander of Mr Engelbrecht, all I am saying and those are my submissions, is that and I am addressing the issue of probabilities, would instructions have been given in the way as testified by Mr De Kock, that is all I am trying to do Mr Chairman.

CHAIRPERSON: Did you say Mr Van Rensburg was the immediate Commander of Mr Engelbrecht?

MR WAGENER: If I said that Mr Chairman, it is wrong, of Mr De Kock, sorry. The next point Mr Chairman is that during April 1990 Mr Engelbrecht was a Brigadier in the Detective Branch of the South African Police, as National Commander of the Murder and Robbery Branches and someone in the words of Mr De Kock as he testified in his criminal matter, someone with "a shining career as a Detective." Then Mr Chairman, Mr Engelbrecht in 1990 was already a middle aged man, unfortunately I haven't got his exact date of birth but he already had 32 years' service in the Police, as far as I am aware he was roundabout 50 years of age. He had no Security Branch operational experience. In other words Mr Chairman, he was not a fit, young man who would have volunteered for a dangerous operation like this. Then Mr Chairman, at the time the Harms Commission was investigating Vlakplaas and its operations and De Kock was suspended from official duties as a result thereof. This also makes the alleged instructions by his Commanders more improbable. Then Mr Chairman, Mr De Kock had on many occasions committed himself in illegal operations without any instructions from senior Officers but only on his own initiative. His amnesty application shows on his own version, more or less 30 such incidents. This also deals with the point raised during argument of some of my colleagues that whether all operations were in fact authorised by his Commanders or not. On his own version the answer is no.

&#9;Then Mr Chairman, his application also reveals, that is his amnesty application, at least six incidents where he committed crimes without higher authority when requested for assistance by friends of his connected to DCC where they had problems in certain areas, and this included cross-border operations. They requested Mr De Kock's assistance and he readily provided that on own initiative, without higher authority. Then Mr Chairman, in this instance, we also had a DCC operation apparently going wrong, where we know that the Project Leader or the Operation Leader, Mr Oosthuizen, had already requested De Kock's assistance some two years earlier. Mr Chairman, a further point to be considered is the evidence of Mr De Kock that for purposes of transborder operations, Botswana was allocated to the Defence Force and not to the South African Police. Then Mr Chairman, on the reading of the initial application papers, it seems as if this was an operation that went wrong in the sense that the media reported that children were killed and that in view thereof, Mr De Kock was most probably expecting more trouble than usual and it became even more important to have a so-called instruction from a senior Officer. Then Mr Chairman, I submit that you should consider the apparent bitterness of Mr De Kock against what he calls "the Generals", he has often referred to in evidence, in this respect. Mr Chairman, you should also consider the fact that Mr Engelbrecht has denied his involvement in this operation, under oath. In this last instance, Mr Chairman, the fact that Mr Engelbrecht was instrumental in a large number of Policemen applying for amnesty and that he had no reason not to apply himself, had he committed any crime or delict. So therefore Mr Chairman, it is my submission that after considering and weighing these issues, you will reject De Kock's version regarding his alleged instruction and Engelbrecht's role therein. 

&#9;Moving on Mr Chairman, Mr De Kock gave evidence on a wider basis than merely this incident. In doing so, he implicated Engelbrecht in respect of a number of incidents the essence of which seems to be that Engelbrecht was known to be a so-called Sweeper, who cover up and manipulated evidence and condoning such acts as the filing of false claims. Mr Engelbrecht has denied all such allegations under oath. The improbable nature thereof, has clearly been illustrated in cross-examination and in the affidavit of Mr Engelbrecht. It is therefore submitted Mr Chairman, that this Committee would not make any findings in this regard against Mr Engelbrecht.

&#9;Lastly Mr Chairman, Mr Engelbrecht does not oppose these applications, including that of Mr De Kock. His only desire is to show where De Kock has his facts wrong and to protect his own rights in the process. Thank you Mr Chairman.

CHAIRPERSON: Thank you.

MS PATEL IN ARGUMENT: Thank you Honourable Chairperson, Ramula Patel on record for the victims. Honourable Chairperson, it is my respectful submission that the applicants in this matter, bar the footsoldiers and with the exception of Mr Vermeulen of the footsoldiers, should not qualify for amnesty. I will deal with the argument regarding Mr Vermeulen and the footsoldiers later, I will start with Mr De Kock first.

ADV SANDI: Sorry Ms Patel, do you mind if I can just before you do that, can I ask just for my own clarity, is it denied that the house of the Chand family was being used as alleged by the applicants, is that being denied by the family?

MS PATEL: Honourable Chairperson, the family are not in a position to say whether the house itself conclusively was used for the purposes for which the applicants have stated.

ADV SANDI: Is the family able to give any light on the political affiliation of Chand and family, were they really PAC members as alleged?

MS PATEL: In terms of their information, Mr Chand was a PAC member. 

ADV SANDI: Thank you.

MS PATEL: Thank you Honourable Chairperson. In considering this matter, I will ask you to take the following factors into consideration - the applicants have argued at length that this was an operation that was targeted against the PAC and with the objective of stopping an infiltration route that was coming in, infiltration route of PAC members from Botswana into the country, however, I would like to place this in a different context from which they have asked you to place it into. I want to ask you to take into consideration Honourable Chairperson, that Mr Chand on their own evidence, was a source for Tony Oosthuizen. Mr De Kock was not in a position to deny that Mr Chand was in fact set up by Tony Oosthuizen by giving him the 4 x 4 and the money as stated by Christo Nel in the Section 29. Regarding your earlier comment Honourable Chairperson, regarding whether it was just a question of whether Tony Oosthuizen had lost control over the source or whether he in fact ever had control, I will refer you to page 2 of Christo Nel's Section 29 to us and to the third last paragraph in which it is stated -

&#9;&#9;"... then Tony Oosthuizen went along, who recruited Sam Chand because Sam Chand was not newly recruited into the system. He used to be an old source of the Police and then they stopped their operation with him or they put him on ice. Then Tony Oosthuizen came from the sideline as a sort of intruder into the Western Transvaal and into Botswana in the Police in Botswana."

&#9;The inference Honourable Chairperson from that, is in fact that the entire operation and the infiltration route, was then set up by Tony Oosthuizen. Can it then be argued Honourable Chairperson, that given that Mr Chand was set up with a specific purpose of bringing people into the country, that he was then acting as a double agent. Surely not, Honourable Chairperson. There is no basis upon which the applicants can draw that inference. They have based it on perhaps a couple of operations that they say may have gone wrong, but Mr De Kock's assessment of the working relationship between Tony Oosthuizen and Vlakplaas as at that stage, he says they had a very good working relationship and he in fact went further to say that there was a written agreement by which this relationship was in fact set out and regulated.

&#9;He states at some stage however, that Ras was upset after being asked to assist Tony Oosthuizen in the Pietersburg operation and thought that Tony Oosthuizen was trying to disguise something. Can one infer from that that Mr Chand was in fact the person who was doing his own thing and was allowing people into the country, contrary to an arrangement with Tony Oosthuizen? Surely not, Honourable Chairperson.

CHAIRPERSON: But haven't we heard evidence that something like 70 people came through this route, armed PAC cadres?

MS PATEL: With respect Honourable Chairperson, my response in terms of that is that it was an operation that was set up by DCI and Military Intelligence and that is something that they accepted the risk of. We have had no information as to what their objective was in terms of setting up the infiltration route to start off with, there is evidence that they planned to follow them into the country and them assess what they were doing, but still the risk was there, they set up the operation, Honourable Chairperson.

CHAIRPERSON: And it didn't work as I understand the evidence, they weren't following them into the country, they weren't seeing what they were doing in the country, they were just creating a great risk which the Police then operated against?

MS PATEL: But who should accept the responsibility of that risk, Honourable Chairperson, in terms of ...

CHAIRPERSON: The people who were killed, the people who died in this country, should they accept the responsibility or should the Police seek to prevent it happening?

MS PATEL: Let's consider that question Honourable Chairperson, who would the logical and reasonable target in terms of preventing the infiltration into the country, have been? My respectful submission is that it should have been Tony Oosthuizen, he should have been disciplined not the parties who had been set up by them to do exactly what the applicants have sought to set aside. Surely Honourable Chairperson, if one looks then at the motive, what was the motive? The motive was to prevent the infiltration route from being operational. The person in charge of that operational route from the start, was Tony Oosthuizen, not Mr Chand. 

&#9;In terms of the target selection itself, Honourable Chairperson, Mr De Kock was very clear in his evidence in chief, he said his instructions from Mr Van Rensburg was that it should be the husband and the wife, he said the rest of the people in the house were expected to be PAC members. It is in that light, Honourable Chairperson, that credence is lent to Mr Ras' testimony that he said his instructions were of an operational nature. It is more probable Honourable Chairperson, at the end of the day that the instruction was to as all the footsoldiers have stated, to eliminate everybody in the house; that there was no proper reconnaissance done in terms of who was to be expected in the house, in fact Mr De Kock and other applicants have stated in respect of the guard, that they were surprised by his presence there. One of the applicants have stated that well, as part of the general operation planning, they would have killed whoever. If the guard was there, they would have killed him. But in terms of what Mr De Kock and Mr Ras would have us believe that there was proper reconnaissance done, in terms of who was to be in the house and who was to be taken out, my respectful submission Honourable Chairperson is that that is a fabrication. 

CHAIRPERSON: Did you say Ras did not speak to the four PAC ascaris?

MS PATEL: No, I don't say that Honourable Chairperson.

CHAIRPERSON: You have just said you submit it is a fabrication?

MS PATEL: I submit that in that respect, that he spoke to them in terms of the location of the house and the sketch and ...

CHAIRPERSON: And who was in the house, who they had seen there?

MS PATEL: Okay, all right, yes, Honourable Chairperson, my apologies in terms of that. However, in terms of the proper reconnaissance of the house, there were other ascaris at Vlakplaas who would have been able to give them information on the infiltration route and what they could reasonably expect at the Chand house, in fact the information is that the infiltration route from Botswana that the Chand house was the only route into the country from Botswana. Mr Ras has stated that there was an askari from the Lichtenburg incident, who had come through that route who they didn't seek to, or he couldn't recollect whether they had spoken to the particular Howard or not. Surely Honourable Chairperson, Vlakplaas was a specialised Unit, they cannot seek to say that they were not in a position to do their job properly. They have raised the question of the urgency of the operation. Our information in the Lichtenburg matter at least, is that those PAC members came through the country two years prior to this operation having been carried out. I believe it was Mr Nortje who gave us information on the numbers that had already infiltrated into the country, some 76 people. The average infiltration would be about five or six people per month, so there was no clear urgency as they would have us believe that they were not in a position to check out their facts properly, they had access to files. Mr Ras said that he had access to files and he stated that certain information about the Chand house being used as a transit house had been gleaned from those files. There is no reason why they couldn't have done a better job in terms of exactly who was to be found in the house.

&#9;Then in terms of the position of the third son not being home, the "Beeld" article was tendered. I would submit that that is ex post facto evidence Honourable Chairperson, that couldn't have had a bearing on the applicant's state of mind at the time that they entered into the operation. In as much as they can't rely on Mr Christo Nel's testimony regarding Mrs Chand's involvement or alleged involvement with the PAC infiltration route, that I would submit is also ex post facto evidence. In fact Mr De Kock is clear in terms of the position of Mrs Chand. He said they weren't really sure, all they could say was that she must have been aware that there were PAC people who were sleeping at her house, who were coming into the country. That is as far as they could take it. Let's look at another ...

CHAIRPERSON: Well, don't we know that you have told us that Mr Chand was a member of the PAC, you cannot contest that his house was used as a transit house, there is evidence of large numbers of people having come through that? All of that you can't contest?

MS PATEL: Certainly not, Honourable Chairperson.

CHAIRPERSON: So Mr Chand put his whole family at risk by turning his house into a PAC transit house and anyone who heard of the amount of people going through that house, would have to believe that everybody in that house, knew what was going on, wouldn't they?

MS PATEL: Except Honourable Chairperson, if one considers the risk that he put his family under, it is a risk that he undertook, I would imagine because there must have been an assurance from Tony Oosthuizen. He didn't set up this route on his own, Honourable Chairperson, it was with the assistance of Tony Oosthuizen, so where would the risk have come from in terms of ...

CHAIRPERSON: And of the PAC who sent the people to him, he was working with the PAC? He was guiding trained PAC, armed, trained PAC cadres who were being sent to him from elsewhere, into this country. That was not Tony Oosthuizen's doing, that was the PAC's doing? You can't hide the whole thing behind and say "oh, he was just helping Tony Oosthuizen". He wasn't, was he?

MS PATEL: With respect Honourable Chairperson, that is my submission that he was assisting Tony Oosthuizen, there is no other evidence on record that he was acting independently and that he had set up an infiltration route prior to Tony Oosthuizen's contact with him. Another point, Honourable Chairperson, in respect of who was to be expected in the house in terms of the son's involvement, it is my respectful submission that none of the applicants on the papers before us, have made out a case or had even remotely bar Mr Willemse, had made out a case for why the sons would have been a legitimate target. It is only after the confusion had been raised whether or not the sons were children or adults, that this version was then placed before us. Mr De Kock, in his evidence in chief, or under cross-examination, had not alluded to the fact that those sons were used to assist the PAC in coming to, in moving to the border and in the infiltration route itself, Honourable Chairperson. It is my respectful submission that in that regard, this is a version that was fabricated ex post facto, because of the allegations in the media about whether or not there were children in the house and possibly also because we had already - not we, sorry Honourable Chairperson - the Amnesty Committee had already made a decision in the Mentz matter that the children were not foreseen as targets, and so we come ...

CHAIRPERSON: Because the evidence, everyone at that hearing believed we were talking of little children which is why Judge Ngoepe made the finding about children being at home with their parents at night? You don't say that about 23 and 27 year old men?

MS PATEL: Be that as it may Honourable Chairperson, the question still remains why did the applicants not make out a case in their papers for why the sons were a legitimate target? They haven't Honourable Chairperson. Furthermore Honourable Chairperson, in respect of the third son and which it is stated that he was an innocent victim. The argument raised by Mr Du Plessis in respect of Section 20(b) was that they fall into the category of not that they were - not in terms of the second leg of them being members or supporters of the movement, but in terms of the target against a liberation movement or a political organisation. My submission in that regard, Honourable Chairperson, this was not a target, that the political organisation in this regard, wasn't the target. The immediate target was Mr Chand. That is borne out also by the instructions of Mr De Kock from Mr Van Rensburg. I bring you back then again to my initial argument about the context within, or my submissions about the context within which this operation took place. Then also in that regard Honourable Chairperson, can one state that given that it was that Mr Chand was the target, that this, that the objective was countering or otherwise resisting the struggle? My argument in that regard or my submissions in that regard Honourable Chairperson, that it is not a question of countering the struggle, it was the problem that was created by the State itself, by the Security Forces themselves. It was an internal thing, it is not a question of a conflict against an opposition party, Honourable Chairperson.

&#9;My respectful submission is that the applicants bar the footsoldiers that I will not argue on, except for Mr Vermeulen which I will come to shortly, that they haven't made out a case that this was politically motivated or that they have made full disclosure in terms of the target selection, Honourable Chairperson, and the overall motive. The immediate objective or the consequence of the objective, might have been that the infiltration route is being stopped, but that would not have been the motive.

CHAIRPERSON: What was the motive? What motive do you suggest?

MS PATEL: The motive I suggest Honourable Chairperson, should be directed at Tony Oosthuizen and what DCI had intended with that infiltration route, which we have no evidence of here, which the applicants haven't submitted evidence on, Honourable Chairperson. My submission in that regard, it was an internal thing, not against an opposition party.

CHAIRPERSON: If the applicants say it wasn't their motive, so they haven't submitted any evidence on it, what evidence have you got that this was aimed at Tony Oosthuizen and it was not aimed at stopping the infiltration of PAC cadres?

MS PATEL: They have stated from the start Honourable Chairperson, that it was Tony Oosthuizen who had created the problem. It was aimed at him, he was the one who had set up the infiltration routes, he was the one who in terms of their understanding of Tony Oosthuizen's working or functioning in terms of the infiltration route that he had lost control, so it was about him, Honourable Chairperson.

CHAIRPERSON: The danger was the infiltration route and that is what they wanted to stop?

MS PATEL: But that would be a secondary consequence, Honourable Chairperson, in terms of the primary problem.

ADV SANDI: Is it not very possible that Mr Chand was, in this relationship he had with Mr Oosthuizen, he may have been using Oosthuizen to achieve the military ends of the military wing of the PAC, is it not a possibility?

MS PATEL: In the realm of possibilities, Honourable Commissioner, what is the basis for that possibility? We have no evidence before us to speculate on the reasonableness of that possibility. Honourable Chairperson, if I may just in terms of the footsoldiers, they have all stated that they followed instructions, that the instruction was to eliminate or kill everybody present. Mr Vermeulen however, poses a problem Honourable Chairperson. I have had a look at the supplementary Heads of argument, filed by his legal representative. If one looks at page 2 of that supplementary argument, he states that on the second paragraph, he states that due to the fact, he gives a general background and then he says -

&#9;&#9;"... I do not find it necessary to apply formally for amnesty for this incident, but I am prepared to disclose all the relevant facts I have knowledge of to assist the Commission."

&#9;I am not quite sure where that leaves us Honourable Chairperson, given that in his evidence in chief, he then went on to say that he was applying for conspiracy to murder? Be that as it may, if one just considers his testimony in any event, bar the difficulty with these submissions, Mr Vermeulen would have us believe that he packed first aid equipment, yet if one looks at both, if Mr De Kock's evidence and Mr Tait's evidence, they have both alluded to the fact that Mr Vermeulen's involvement would have been because he would have assisted in the 

packing of the explosives. There is the one contradiction. Also he says that he did not know whether there was a political objective attached to this specific operation. Furthermore at some stage in his papers and in his evidence in chief, he alluded to the fact that he was to an extent acting under duress, that if he didn't follow orders, there would be serious consequences for him. He said that he would have been in danger and victimised at some stage. In his Heads of argument in fact, he says on page 5 that -

&#9;&#9;"... the possibility existed that I may have been murdered."

&#9;And then on page 6 he goes even further to say -

&#9;&#9;"... I would have been killed."

CHAIRPERSON: Was he asked any of this, he gave evidence, didn't he?

MS PATEL: This information Honourable Chairperson, was handed to us during the time that he was, during the course of events yesterday Honourable Chairperson, we were not placed in possession of these documents a reasonable time before he had testified Honourable Chair, I assumed that these were simply the Heads of argument that I would deal with later. I didn't at that stage anticipate that he would state in his Heads of argument that he wasn't applying for amnesty.

CHAIRPERSON: No, I am talking about the - he gave evidence saying that he packed first aid things and that wasn't challenged by anybody?

MS PATEL: It was my omission Honourable Chairperson, but still, it is a contradiction that stands on record.

ADV SANDI: I must say to me, Mr Vermeulen was quite vague as to what exactly his role was in the incidents, the events in question, leading on to the killing of the Chand's and after they had been killed, when they went to Richards Bay, it was not very clear to me. We will have to read the record again.

MS PATEL: In any event Honourable Chairperson, given his submissions in his Heads of argument, I am at a loss as to what his position is. However, I would argue that if this is clarified and I would imagine that we would have to with Mr Cornelius, that even if there is an amendment to these Heads of argument, I would submit however still that he hasn't made out a case in terms of which he qualifies for amnesty.

ADV SANDI: Yes, but I understood him to say that he is being implicated in this matter and that he should apply for amnesty and I have always thought that the test one applies there is not a reasonable prospect of criminal prosecution. If one's name is mentioned in an incident which is a crime, one would have to apply for amnesty as well. That is not uncommon in this Committee, where we come across applicants who believe that they could be charged in future, even if there is a theoretical possibility that this person could be charged, they still apply for amnesty.

MS PATEL: Yes of course, that is the decision, but that does not mean that that is a sound basis upon which he can qualify for amnesty.

ADV SANDI: Whether or not he qualifies for amnesty, is another question.

MS PATEL: Just finally I think Honourable Chairperson, on the question of bonuses, I will not make any submissions in that regard. The Amnesty Committee has time and again I think made a ruling on their understanding of the allocation of bonuses to members at Vlakplaas. I will however, submit that in as much as the applicants who would have received bonuses, did not embark on these operations for the purpose of qualifying for those bonuses, I would however submit that in the overall course of the position at Vlakplaas, that it was indeed an incentive. I cannot see on what other basis the function or the objective of a bonus can be seen. I do not however state that it was an incentive for this specific incident, that is not my submission.

ADV SANDI: You have made a point about urgency and where you say it was not really urgent that the applicants carry out this operation because at that stage, already about 70 members of the PAC had been infiltrated into the country, but the way I understood it as I was listening to the evidence from applicants, urgency started from the time the order was given. They were told "look, you have to carry out this order as a matter of urgency", that is the way I understood it.

MS PATEL: Just for clarity, Honourable member, which specific applicants are you referring to? Are you referring to the footsoldiers as well, or are you referring to Mr Ras only in terms of his preparation for the operation?

ADV SANDI: That will be in my recollection, that will be Mr De Kock and Mr Ras, that the order was to be carried out without a delay?

MS PATEL: My respectful submission in that regard is that they haven't made out a case for urgency, that this infiltration route had been there for two years at least, from our information, at least, that two years prior there were already problems with that. Suddenly to say that we only have two weeks or three weeks within which to conduct this operation and that is the reason that we didn't reconnoitre the place properly or we only spoke to four ascaris and we didn't think of speaking to others, that what we felt given that it was urgent, what we did, the preparation that we did, given the urgency was sufficient is in my submission unacceptable.

ADV SANDI: Maybe that is the question one would have to ask Mr Van Rensburg, why did he think it was urgent if the route had been used for the past two years, why did he give an order to his footsoldiers that "you have to do this now, now, now and without any delay"? Maybe he would be the best person to answer the question.

MS PATEL: Well, in that regard, perhaps the applicants should have considered subpoenaing Mr Van Rensburg.

ADV SANDI: Speaking for myself, I would be very surprised if a person who has not applied for amnesty, and is alleged to have given an order, this person comes here to say "I confirm that I did give this order", I would be very surprised if that type of thing happened.

MS PATEL: It is the difficulty with this process, I feel that we will never know the complete truth if such a thing exists. Honourable Chairperson, I believe those are my submissions, if there are any further points that you would like to hear me on?

CHAIRPERSON: No, I think like you, I think there is a level beyond which we don't, we haven't managed to progress. I trust you will all let me have details about what you claim the amnesty 

is. I presume most of you or many of you will be here next week?

FURTHER ARGUMENT BY MR LAMEY: Mr Chairman, I don't see any of my other colleagues, I just wanted to say something shortly in reply. May I take the opportunity, just one aspect and this is if one reads the evidence of Christo Nel in that extract of his evidence before the TRC, one clearly sees that the Western Transvaal Security Force Branch had a real problem with the operations of Tony Oosthuizen, in fact it states here -

&#9;&#9;"... there was a Colonel Wikus Loots who felt that this should be stopped, but they could not get Tony Oosthuizen under control and he continued with his operations."

&#9;This in my submission, in all probability is an indication that there was discussions and there were attempts in order to bring Tony Oosthuizen under control, but it did not work. What one also can in all probability infer from this, because it gave this aspect, the Security Branch in Western Transvaal such a big headache, then one can in all probability conclude that Western Transvaal Security Branch must have discussed this with Head Office and that is how the order came via the route of Brigadier Van Rensburg to Vlakplaas, that was normally the channel that would have been used, of the Branch taking it up with Head Office and then from Head Office, Vlakplaas would get the specific instructions. My submission is also that one must not forget that the internal security within the borders of South Africa, were primarily during the course of the struggle, the headache and the problem of the Security Police as such and not, although the Defence Force also had their role in defending the country and we have ample evidence before the Committee in other cases, where it was primarily the task of the Security Police. I think from all this, one can make a very probable conclusion as to that they couldn't get Tony Oosthuizen under control with other means and they had to do something about this, because they had, it was their primary duty. Thank you Mr Chair.

ADV SANDI: Are we not dealing here with the situation where one hand did not know what the other hand was doing?

MR LAMEY: I think that happened, but if the other hand wouldn't listen that you've got a primary duty and you have different approaches, and there are as Ras has also testified, there were indications that there were communication gaps from Chand as to specifics, as to where the people, the infiltrators would be located. It is a reasonable conclusion for that is that it was not by purely a lack of communication on purpose that some of the infiltrators and the route inside South Africa were communicated, but others not. What conclusion does one come to if others were not communicated and that is where the conclusion, the reasonable conclusion of the double agent comes into the picture that some were, Tony Oosthuizen must have been advised of only some of it and others not. You've got this huge number of infiltrators that is coming into the country and unlocated, and then you have also in this extract of Christo Nel's evidence, specific incident at Lichtenburg which appear, were people were injured in a handgrenade explosion, was the result of the fact that Oosthuizen lost control. If you think about the role of the Security Police, then in my submissions, one can perfectly understand the whole rational about putting a stop to this thing from Head Office and in all probability at the request of the Security Branch, Western Transvaal.

CHAIRPERSON: Thank you. 

COMMITTEE ADJOURNS

