Special Hearings — Mandela United Football Club Hearings — 1997-11-24

JAN DANIEL POTGIETER: No I wouldn't say he was not guilty, he had answered all questions satisfactorily, therefore the reason for further detention, I couldn't tell lies and apply for his further detention.

MR SEMENYA: No what I'm asking is if you  had reason to believe that you have a prima facie case in terms of which he would be arrested, detained, prosecuted, you would have done that?

JAN DANIEL POTGIETER: If I had a criminal case against him and one weighed up the value of him rather testifying as an askari or being prosecuted on the one hand, one would have had to weigh up the pros and the cons.  That decision would of course have been with the Attorney General and/or the advocate who would look at the matter.

MR SEMENYA: I don't want us to go into conjecture and guesswork, I'm just asking you your state of mind at the time that this happened. You had formed a view there was no way in law you could further hold Mr Mabota.

JAN DANIEL POTGIETER: Yes.

MR SEMENYA: And am I to infer from that that you over the period of the six months court there was nothing prima facie under which you could have him prosecuted?

JAN DANIEL POTGIETER: I think if I really wanted to I could have prosecuted him for still being a member of the ANC, something less important, but it wasn't my style.

MR SEMENYA: It wasn't your style.   Okay now as a police officer you had come to the conclusion that the only deserving decision in the circumstances was to release the man, is that right?

JAN DANIEL POTGIETER: I had no option or of course charge him for something and then of course if I had charged him my relationship with him would have gone down the drain.

MR SEMENYA: Let's not debate these issues.  You had formed a view that the most deserving course of action to take is to release him.

JAN DANIEL POTGIETER: I've said that Commissioner.

MR SEMENYA: That's correct right.

JAN DANIEL POTGIETER: Ja.

MR SEMENYA: Why does the conduct of releasing somebody, why does it constitute a dilemma?

JAN DANIEL POTGIETER: It constituted a dilemma because I wanted him to remain in attendance in some way or another.  If Mr von Lieres had decided to appoint an advocate to look at the docket and to interview witnesses, the last thing I wanted was for von Lieres to say you're giving me a docket but there aren't witnesses.

MR SEMENYA: Give it to me slowly.  Why is it a dilemma to release an innocent man?

JAN DANIEL POTGIETER: The release wasn't a dilemma, my dilemma was keeping him in attendance in a voluntary manner.  That is why he voluntarily agreed to go to Vlakplaas.

MR SEMENYA: What was not a dilemma, was it's not a question of releasing him.  What was then a dilemma?

JAN DANIEL POTGIETER: Mr Chairman I can't follow the ...(intervention)

UNKNOWN: Mr Chairman, with respect, the witness has answered the question.

MR SEMENYA: I'm pleading totally confused. Can you repeat it for me.  If the dilemma is not to release the man, what was the dilemma?

JAN DANIEL POTGIETER: It was part of the dilemma; you cannot say this little bit and that little bit, and that is why I had a discussion with Mr de Kock and say this is my dilemma, I cannot detain this Mr Mabota any longer, I need him to remain in attendance, that was my dilemma.

MR SEMENYA: I'm going to ask it for the last time.

CHAIRPERSON: Can I try and be of some help here.  The way I hear the witness, he is saying that the dilemma was that he had to release him, that wasn't the dilemma, you were right, the dilemma was how was it going to be possible for him to secure him in order if he was needed to be a witness in a trial on which a decision hadn't been made.

MR SEMENYA: Is that interpretation what you are trying to convey to me.

JAN DANIEL POTGIETER: That is correct yes.

MR SEMENYA: So you wanted to find a way in which you can deprive this man of his liberty in a manner that is not lawful?

JAN DANIEL POTGIETER: I wouldn't say it was unlawful because he wasn't compelled, I gave him the option.

MR SEMENYA: Sorry Sir, that meaning is that you wanted to have a hold on the man in a manner that was not permitted in law.

JAN DANIEL POTGIETER: Clinically I suppose...(intervention)

MR SEMENYA: Clinically!

JAN DANIEL POTGIETER: Clinically I suppose it wasn't correct.

MR SEMENYA: But let me test another theory that you offer.  Mabota knew where Vlakplaas was, isn't that correct?

JAN DANIEL POTGIETER: Yes.

MR SEMENYA: Why don't you give him a train ticket or taxi ticket to go to Vlakplaas?

JAN DANIEL POTGIETER: Just to report there? No let's be, it just didn't cross my mind to tell the man go and report to Vlakplaas, I mean it was never done before.  With all the askaris they were either fetched or they were delivered to Vlakplaas.

MR SEMENYA: You create an impression you and Mabota are the best of friends, you have this trusting relationship, you also even go out to organise a train ticket for him to go home.

JAN DANIEL POTGIETER: That was an alternative.

MR SEMENYA: Now you are saying, give another 50c for him to go to Vlakplaas.

JAN DANIEL POTGIETER: You're putting it very simplistic I think it's ...(intervention)

MR SEMENYA: It is that simplistic unless you have sinister intentions.

JAN DANIEL POTGIETER: Now it's not a simplistic matter and I don't think we should deal with it as simplistically as you're trying to.

MR SEMENYA: Give me a rational answer which is less than simplistic.  Why don't you give the man a taxi fare to go to Vlakplaas.

JAN DANIEL POTGIETER: No I think you are being unreasonable.  It was never done in that manner and surely you cannot just tell a man go and report to Vlakplaas, it's just not done in that way.

MR SEMENYA: Your records indicate that you could not be associated with the killing of policemen, is that right.

JAN DANIEL POTGIETER: That is correct, I have no evidence to that effect.

MR SEMENYA: Did it have to take you six months to come to that conclusion?

JAN DANIEL POTGIETER: No.

MR SEMENYA: Why didn't you release him sooner?

JAN DANIEL POTGIETER: Because I was building on a relationship and if the six months had only expired at this stage I would have still kept him.  I think I must differentiate here Mr Chairman as well, although the stipulations of Section 29 amount to solitary confinement which is a form of torture, when in building a relationship of this nature you allow the detainee certain lenience, newspapers and visits to sort of alleviate the stresses of the detention. I was awaiting the decision of the Attorney General, that is why he was kept up to the maximum time that the law permitted me.

MR SEMENYA: No the Act says he will be detained until such time as he is unsatisfactory to your questions.

JAN DANIEL POTGIETER: Yes.

MR SEMENYA: Now according to you he would have done that sooner than the six months.  The question is, why didn't you release him earlier, you can't say you were awaiting the decision of the Attorney General.

JAN DANIEL POTGIETER: I was awaiting the decision of the Attorney General.

MR SEMENYA: Do you need the decision of the Attorney General to release a man under Section 29?

JAN DANIEL POTGIETER: In most cases we kept people in detention and when the Attorney General issued a certificate of noli prosecute the person is released at any stage of the investigation.

MR SEMENYA: Well let me finally ask you one last question.  You keep telling us that assaults are not your style.  Is that right?

JAN DANIEL POTGIETER: That's correct yes.

MR SEMENYA: People assaulted in your presence, not your style?  And my reading of the promotion of the National Unity and Reconciliation Act, tells me that you only apply for amnesty in respect of human rights violations.

JAN DANIEL POTGIETER: Gross human rights as I understand it.

MR SEMENYA: Yes.  Now is it your style to perpetrate gross human rights violations?

JAN DANIEL POTGIETER: I do not understand the ...(intervention)