Amnesty Hearings — Durban — 1999-08-17

MR VISSER: Mr Chairman on two matters, Mr du Preez had been implicated, the one is assaulting Mr Ninela at a previous arrest in 1987 and the other as having pretended to be an attorney in order to question Mr Bengu.  Well, Mr Chairman, the evidence of Mr Bhengu is weak in that regard and it is denied.  Mr du Preez could not remember even the incident of the arrest of Mr Ninela and consequently he couldn't deny that he ever assaulted him.  What he did say is that he certainly can't remember it.  That's the furthest a witness in that position can do Mr Chairman and we submit that you would find in both these instances that insufficient evidence has been brought before you in order to make a finding that he in fact did either assault Mr Ninela or pretend to be an attorney.  And secondly, Mr Chairman, again we say that, with respect, that has nothing to do with the present application and the ambit within which you move.
	Mr Chairman, the other issue which I neglected to mention on the point of whether there were other alternatives which Taylor could have followed and the question of the limpet mine either being in possession of Mr Ninela or not found later etc is this, certainly the Committee will consider the evidence to scrutinise whether an applicant before you in his evidence had not given evidence which is so illogical and inherently improbable that you cannot accept his evidence and you have to draw the inference that he attempted to mislead you.  That is one issue, but of course one must not confuse oneself by thinking that in all these cases it was necessary in order to obtain amnesty that the person had to consider alternatives.  That certainly is not the spirit of the Act, in fact Mr Chairman, it has been expressed as follows in the past.  The applicant is not here to justify his actions, far from it, he committed a crime and part of his crime might well be that he should have prosecuted rather than to kill the man, in fact in most cases it will probably be like that Mr Chairman and I just wanted to make that point and then lastly the point which I forget is the point that Mr du Preez made on the issue of the limpet mine and where Taylor might have got it from when he handed Ninela over to him and Wasserman.  He says that "For all I know, if I have to speculate, Taylor could have assaulted the man.  In fact there is an allegation by the one witness here that he was assaulted by Taylor.  Taylor could have assaulted the man to point out the limpet mine in which event again one would then say, well under those circumstances, can he now take the man and have him prosecuted through the normal channels?  Also Mr Chairman, we don't know exactly when Mr Ninela had been arrested and how long he had already been held unlawfully after the abduction.  All these matters.  Mr Taylor could have told us, could have filled us in on, Mr Chairman, and the difficulty which you and we have is that he is unfortunately not here in order to assist with these matters but I ask you not to hold it then against Wasserman and du Preez and their evidence.  Thank you Mr Chairman.

CHAIRPERSON: Ms Gabriel.

MS GABRIEL: Mr Chair, I have about 10 minutes of submissions to make.

CHAIRPERSON: Make them.

MS GABRIEL: The first is that the problem in this case as we suggested was with full disclosure.  Full disclosure is not necessarily limited to just a portrayal of the relevant facts, but as was apparent from my cross-examination, full disclosure in this case must mean something more than selective disclosure.
	Let me start with the application of the 4th applicant.  At this point the family wishes to state quite clearly that they have no opposition to the amnesty application of the 4th respondent, 4th applicant, pardon me.  They are satisfied that he has made a full disclosure and that his objectives at the time were proportionally related to the instructions that he had received.  His versions of events have been consistent and they were made at the earliest possible opportunity.  As against that we have two versions set apart by some two and a half years submitted by the second applicant and the third applicant.  
	What's interesting in these applications is that they seek to distinguish their earlier versions about not recalling detail and suddenly in the second application recall a massive amount of detail when confronted with evidence by the family, seem to recall it and then when confronted by questioning recall even more details including what we were thinking at the time.
	So apart from distinguishing the fact that they could not remember earlier, they also seek to distinguish Taylor's version.  They point out that Taylor gave them the order.  They point out that Taylor was mistaken in believing that, and I quote: 
"Myself, du Preez and Laurrie Wasserman realised on questioning him that there was no evidence which we could take to court, although he himself admitted that his mission was the placing of bombs."
The question is why?  Why seek to distinguish these other aspects of Taylor's evidence?  On Taylor's version we see that the objective was to eliminate, not because of a lack of evidence, not merely because of a lack of evidence, but not because this man was suspected to be of serious and imminent danger, suspected to be a terrorist, but that is Taylor's version and he is dead and we will never know.  By seeking to distinguish this, what the applicants have done is to extract themselves out of all complicity in the planning and in the execution of Ninela's death.  
	What they have done is to confine themselves very clearly to the limited ambit of taking instructions and the minute they do that they are exonerated from having to explain the basis of their actions.  They are exonerated from having to explain whether the manner in which they reacted at that point, was justifiable and proportional in the circumstances.  So that, on my submission, is really the basis on which they seek to distinguish Taylor's  evidence.
	Now the explanation we are given, one of the explanations we are given is that Taylor had a bad memory.  If that is so, it is highly unlikely that he would remember detail.  It is highly unlikely that he would remember that the applicants were in fact with him.  It is more probable that a man suffering from lack of memory or bad memory would in fact remember very little.

CHAIRPERSON: It may be also not just remembering little, it may be a jumbling of information, confusion of facts from one case with the facts of another case.  That might have happened as well.