Amnesty Hearings — Port Elizabeth — 1997-09-08

MR VAN DER MERWE: Yes, it is quite evident that, if I can address the Committee as far as that is concerned, and that is why I was at pains with Mr Jack. It just does not make sense for Mr Nieuwoudt to come and sit here today, in front of this Committee and apply for one assault, when he quite easily could have applied for two assaults or three assaults.
	As far as the other allegations is concerned, which Mr Jack made about the court cases which was made against him.  We have no knowledge of this and I cannot react to that.  But it would be, I would agree, that if the Committee had to find that full disclosure wasn't made, that certainly my client would not be entitled to amnesty, but I would say in these circumstances the odds must weigh very heavily in his favour. There is no reason why he would come to the Committee with only one assault and not mention anything about the others. Especially in the circumstances where there was no pending criminal trial, a civil claim has been settled. There was actually nothing that coerced Mr Nieuwoudt to bring this application. I think if I did ask Mr Jack the question, he probably would have confirmed that this application took him by surprise.
	If I may just add. Obviously Mr Nieuwoudt has also filed various other applications, which this Committee and other Committees will deal with in the forthcoming weeks, which is far more serious, and I think it is highly unlikely that he would jeopardise his chances, given the circumstances, to something as simple as this matter, compared to the matters to follow.
	Thank you.
MR NYOKA ADDRESSES COMMITTEE ON MERITS OF CASE
	Thank you, Mr Chairman.  The Promotion of Truth and Reconciliation Act states two grounds upon which amnesty may be granted to an applicant. Namely, firstly that the act or incident applied for has to be politically orientated or motivated one.
	Secondly, underline and secondly, that the applicant must have made a full disclosure of the facts with regard to the act or incident applied for.
	Both sections must be shown or proved to satisfy the requirements of the Act or to ensure that amnesty is granted.  
	We respectfully submit that the first requirement of  political orientatedness was not proved by the applicant, in that he said himself that he assaulted Mr Jack because he was rebellious or stubborn. Therefore he may have done this in anger, due to his rebelliousness or stubbornness.
	Furthermore, the assault itself was not long, it was just for three minutes, and appear to be at random. It stopped at random, without any further discussions and without achieving any goal.
	We submit therefore, that this assault was purely a criminal one, not a political one. You cannot assault a person in the national interests for such a flimsy reason, and say it is in the national interest or in the interest of peace and security.  That will make a mockery of those phraseologies, even though they were used ad nauseam or nauseatingly in the previous regime.
	In so far as the assault related to the consumer boycott, one wonders how it can be construed as such, instead of being an economically motivated one, to protect the interests of the White business community rather than the broader national interest.
	I wish to refer to page 19 of Mr Nieuwoudt's application, where it is stated why they sought to stop the consumer boycott. It was not for political reasons but for economic ones.  Paragraph 17.2 says:
"White business was affected to such an extent by the consumer boycott, that it resulted in an unusually high liquidation and closure of businesses. Available statistics indicate a number of businesses liquidated and closed during the period 1983 to 1987.
And they are listed -
"In 1983 there were 49 businesses closed; in 1984 103 businesses, 1985 222, 1986 299 and 1987 81."
And then there is a big full stop. There is no mention about political orientatedness, only economic ones.  That is why we asked whether he was sent by big business to stop this consumer boycott.
	With regard to the second requirement of full disclosure of the fact.  We respectfully submit again that applicant has failed to satisfy this requirement.	In that, for instance, the direct commander.
	One of the further commander, the regional commander, were never informed of this assault. Why not?  
	Secondly, the fellow unit members of about 20, were never informed or even invited to be part of the interrogation, because important things could have emerged.  Why not?  
	He said he only assaulted Mr Jack once on the 12th of August 1985. Yet, he had done so, according to the uncontroverted evidence of Mr Jack before.
	It is strange for Mr Jack to deny that he was assaulted on the 12th of August, if that happened, only to find out that he had been assaulted before. Why would he deny this specific incident and admit others?  It does not make any sense.

CHAIRPERSON: What is the answer to the question that counsel makes, what advantage has Mr Nieuwoudt got to deny these assaults?  He is applying for amnesty.

MR NYOKA: I am coming to that, Mr Chairman.

CHAIRPERSON: Yes.

MR NYOKA: I am coming logically to that.
	If at all he only interrogated and assaulted Mr Jack on the 12th of August, why did he wait for about 10 days before he interrogated him?  My instructions from Mr Jack were not to oppose Mr Nieuwoudt's application, on the following two grounds.
	The first one, that Mr Jack, unlike other victims of apartheid atrocities, did not lose any life or limb, as a result of the assaults by the applicant.
	Secondly, that we greatly appreciated his application as initial and honest gesture towards reconciliation, in particular towards one of the institutions of our young democracy being the TRC.
	However, it seems as if the applicant is mocking the process by embarking on sterile half truths. He seems to have decided - and this is the answer, Mr Chairman - he will be man enough to go it alone in his decision to seek amnesty. In so doing, conceal the role of his colleagues by changing the facts to suit that isolated event where he had not assaulted Mr Jack, but interrogated him.  Perhaps trying to avoid any criminal prosecution against them.
	We wish to say that none of the security laws and states of emergencies of the previous regime, gave the security police or anyone exclusively or implicitly the right or perhaps the duty to assault detainees. However, draconian those laws there.
	Security officers, like Mr Nieuwoudt, who did so, knew fully well, as he has confessed, that it was not outside the law to do so, but they were acting above the law. It was not in advancement of the interests of the National Party, but because it was enjoyable to do so.  As Lord Acton stated:
"Power corrupts, absolute power corrupts absolutely."
The immense security legislation corrupted the security police of the previous regime.  
	Consequently, whilst the application is defective or non-compliance of the legal requirements of the Act, we are still not opposing it, and we leave the decision to grant or refuse the amnesty in the able hands of the Commission.
	Thank you.  (Applause).

ADV POTGIETER: Mr Nyoka, to the extent that there are differences, factual differences between the versions of Mr Jack and Mr Nieuwoudt on the number of assaults for one - I am just referring to the two, to my mind, material issues - and the circumstances of the assault for which this application is being made, what is your submission on those factual disputes?  What finding has this Committee got to make? Is there an onus; which way should be decide where there is a dispute.

MR NYOKA: Firstly, the evidence of Mr Jack in repudiation of that of Mr Nieuwoudt, has not been controverted by my learned friend.

CHAIRPERSON: Well, now it is Mr Jack who controverts Nieuwoudt and Nieuwoudt contradicts.

MR NYOKA: Yes.

CHAIRPERSON: That's how it works here, isn't it?

MR NYOKA: Yes.