Amnesty Hearings — Durban — 1999-08-11

CHAIRPERSON: We will be able to get it.

MR VISSER: Thank you, Mr Chairman.  It's a very brief decision, it will take no time at all for you to read it.  And the relevant part, Mr Chairman, runs from page 5 - sorry - yes from page 5 to page 8.
	Mr Chairman, perhaps lastly, we were struck by some similarities between the present case, the facts of the present case and that of the one which you presided in concerning Mr Kondile.  You will recall, Mr Chairman, that in Kondile's case he was first arrested when he came across the Swazi border.  There was some suggestion under false pretences.  He was arrested by the Security Branch in Bloemfontein and then he was placed over to Port Elizabeth.  At Port Elizabeth he was assaulted and eventually he ostensibly agreed to become an informer.  Du Plessis was the person who dealt with him.  And he told you at the time that Mr Kondile indicated that he would become an informer and he, that is du Plessis, believed him, believed that he was genuine and started exposing some contact persons to him and some information routes, after which, on a particular day when du Plessis went to visit Kondile, he sat on his bed and he found a note which was written by Kondile and which was obviously intended to be smuggled out of the prison, in which he informed the ANC that he was assaulted and compelled to agree to become an informer, but that he wasn't going to become such an informer and that he would report to them the moment he is released.
	You will recall, Mr Chairman, that a decision was then taken together the then Brig van Rensburg and Gen Erasmus, and it was decided that in the circumstances they couldn't release him, they couldn't charge him and therefore they eliminated him.  And that decision, Chairperson, has also come to hand, it is under AC/99/0037, where you as I said before, were the Chairperson and where you were assisted by Judge Pillay and Adv Gcabashe and Adv de Jager.
	And we submit, Mr Chairman, that your decision in the Kondile matter finds application to a great extent in the present case, the only difference being that in this case Mr Cele did not indicate that he was prepared to become an informer after he was abducted, but apart from that and apart from the degree of the assault, Mr Chairman, there appears to be very little difference between the two matters.  And we would ask you in the light of the decision in Kondile's case, to favourably consider granting the amnesty as prayed for also in the present case.
	What was impressive, if I may say so Mr Chairman, about the decision in the Kondile case, is that it showed the insight of the Amnesty Committee in placing the assaults on Mr Kondile in proper perspective vis-a-vis his killing.  And that we found very interesting, Mr Chairman.  And again we say with respect, that we ask you with respect, to deal with the assault in this case albeit it of a far minor nature, in the same sense, Mr Chairman.  Would you grant me a moment please, Mr Chairman?

CHAIRPERSON: Yes, certainly.

MR VISSER: Yes, Mr Chairman, yes, we have presented before yourself and Commissioner Lax, argument in regard to an issue which might arise because of the fact that part of the incident took place in another country where this Commission has no jurisdiction.
	You will recall, Mr Chairman, that the submission which we made and which has been accepted, I believe by Justice Miller and his Committee, in the Zero Hand Grenade, if indications which we received from the Committee can be relied upon, that is clearly not the concern of the Committee, of the Amnesty Committee what the value of the amnesty which might be granted to an applicant, will be to him.  The Act in fact does give indications that that must be so.  The Act speaks of "committed inside or outside the country" etc. 
	Now clearly, if you granted amnesty in the present case and these applicants went to Swaziland for a weekend to celebrate, they might find themselves being arrested and they won't be able to rely on your amnesty which you granted them.  But that must not be held to stand in the way of you doing your duty in terms of the Act, as we submitted before and as we now submit again.
	In what we will give Commissioner Bosman tomorrow, there is towards the end a little heading dealing with that issue as well, Mr Chairman.  Suffice is it to submit to you that the fact that an incident took place partly within the country and partly outside the country is no - now I'm looking for a word, there's no bar to you granting amnesty.  Actually I was hoping Commissioner Bosman was going to give me the latin word.

CHAIRPERSON: She may yet do it.

MR VISSER: She may yet, Mr Chairman.

ADV BOSMAN: Impedimentum is the word, Mr Visser.

MR VISSER: Impedimenta, yes, yes.  Impedimenta.
	Mr Chairman, we submit that the evidence which you heard from my clients would have struck you as being evidence which was tendered in a spirit of full co-operation.  They have attempted to remember all the issues relating to this incident.  They have made such concessions as one would expect reasonably of them to have made.  And we would submit that there is no reason for you not to believe them.  We submit that there is no opposition to the application and therefore ask you to favourably consider granting the applications as we prayed for.
	Mr Chairman, I don't believe it will be necessary unless you ask me to do so, to go through what exactly each of the persons is applying for.

CHAIRPERSON: It's set out in the ...(intervention)

MR VISSER: We dealt with it in the evidence and we would accordingly move for such amnesty to be granted.  Thank you, Mr Chairman.

CHAIRPERSON: Thank you.  Yes, Mr Nel?

MR NEL: Thank you, Mr Chairperson.  I'm left in the lucky position of having senior counsel arguing the matter before me and there's not much that I can add except to say that the clients that I represented here were part of the group, although their participation in the whole operation was minutes, if I may call it that.  	I submit also with respect, Mr Chairperson, that their applications, that of Mr Brooks and Mr Verwey complies with the requirements of the Act and that it is associated with a political objective and also in the way that they gave their evidence they made a full disclosure, even though Mr Brooks admitted that at a previous occasion he did not tell the truth about this incident.
	And it's in light of that, Mr Chairperson, that I also with respect ask you to consider their application favourable.  Thank you, Sir.

CHAIRPERSON: Anything you wish to say?

MS THABETHE: Thank you, Mr Chair.
	Mr Chair, with regard to the requirements of the Act, as my learned has indicated we have no opposition, we have nothing to oppose on, more especially because the victims were not there when these things happened and clearly it was done in the context of political conflicts of the past.
	However, Mr Chair, I've been requested by the family to raise a few concerns on their behalf.  And Mr Chair, I would like to put it on record that I did explain to them the difference between what is factual and what is emotional.  However, they have requested me to put this on record, so I would like Mr Chair to allow me to do so.

CHAIRPERSON: May I just interrupt at this stage and say now who of the dependants are present whom you represent?

MS THABETHE: Mr Chair, I've got the brother to Mr Dion Cele and two sisters.

CHAIRPERSON: Thank you.

MS THABETHE: And also an aunt.

CHAIRPERSON: Thank you.  Yes, do carry on.