Amnesty Hearings — Durban — 1999-08-23

MR VISSER: There wouldn't be prosecutions of the people that had been arrested or will still be arrested.  Sorry, thank you, Chairperson.  Now, up to this stage the problem with Shabalala, you will recall, was that he might endanger the position of Ndaba.  Now suddenly Ndaba himself has become a problem, because Ndaba then told Botha and the others apparently that he thinks it better for himself to go and take his chances with the ANC, to make a clean breast of it in the hope that he would be forgiven, rather than to stay on with the Security Branch as an informer.
	Mr Chairman, when this happened, Botha considered the circumstances and he went and discussed it with Steyn and they said to each other that under those circumstances unless Mr Ndaba is brought to a different insight, he can't be released.  Steyn tells Botha to go back and to see to it if he can, to get Ndaba "se kop reg", he must get his head straight.  Botha went back to Verulam and according to him attempts were made, serious attempts were made, but Ndaba had become very morbid and very worried and he stuck to his guns that he would rather go and talk to the ANC and see whether he could obtain remission from them.
	Botha then decided that in the circumstances he had no option but to eliminate Ndaba because he couldn't release him, he certainly couldn't charge him of anything and thus his fate was sealed.  The situation then, Mr Chairman, as far as Mr Shabalala was concerned, changed slightly because where previously he was kept and could not be released in order to protect Ndaba, Ndaba himself was now going to be eliminated and Botha explained to the Committee that what his considerations were in regard to Mr Ndaba and these were the following.  He said that in that time when negotiations were under way and where they had strict instructions to do nothing which would jeopardise the position of the National Party at the negotiation table, he was afraid that if Shabalala was released, he would tell the world that he was abducted, he was held against his will, that is unlawfully, and the probabilities were that he might have put two and two together that Ndaba was eliminated and he might have made that inference of his public and the mere publication of such matters was a thought too horrible to contemplate because that would have jeopardised precisely the South African Government and the National Party where that was the one thing which they were ordered and instructed to avoid.
	Then Mr Chairman, having decided that, the night of the 14th/15th of July, Mr Ndaba and Mr Shabalala were taken to the Tugela Mouth, where they were both killed execution style by Botha, Wasserman, du Preez and van der Westhuizen.  Those members then went back, took the car of Mr Shabalala, that is the blue Toyota Corolla, drove it out on the Ndwandwe Road to a place which could not be identified later, although attempts were made, it was there sprinkled with petrol and set alight and burned out.  Now Mr Chairman, as brief as I could, that is the background and I hope that I haven't slanted any of the facts, but if I have my learned friend will certainly tell you about that and after that Gen Steyn has given evidence and his evidence was as you can imagine, simply confined to those areas were he personally had knowledge and that is, he visited Pretoria with Botha on two occasions and he himself went to Pretoria on three occasions, the last being without being accompanied by Botha and the evidence of Botha as to what was discussed between them, was confirmed by Gen Steyn and presently he is awaiting to be cross-examined, Mr Chairman.  I may just point this out Mr Chairman, in cross-examination two issues on the facts were placed in dispute.  The one is whether Mr Ndaba was in fact an informer and secondly, Mr  Chairman, it was suggested that the reason why Mr Ndaba and Mr Shabalala had to be killed was because they had been tortured to such an extent that they could not be released.  Those were, as far as we are concerned, the two main disputes which arose from the cross-examination on the facts, Mr Chairperson.
	Perhaps my learned friend would like to, well my learned friends would like to address you on something which I might have left out?

MR WILLS: Yes, thank you Mr Chairperson.  Basically Mr Visser has given the evidence from his client's perspective.  I submit that much of what he says is contested by ourselves.  I don't think it would be appropriate for me to go through every aspect of what is contested.  I am alive to the fact that you're going to be referring to the transcripts of the proceedings and much will come to your attention therein, but there are certain things that I think are important for me to highlight.  	First is that it is clear that our position is that we dispute that Ndaba was an informer.  We submit that Ndaba was arrested on the 7th, he was tortured to release names, it was then that Vula, that the planning around Vula became known to the Security Police.  They then decided to go up to Pretoria and take further instruction.  They got specific orders from Gen van der Merwe and this is common cause that further arrests should be delayed until the week commencing the 16th of July.  These orders were not adhered to.  The - our version is that they were deliberately not adhered to through reasons of personal ill will and malice towards those who'd been arrested.  The version for the applicants is that, as given by Mr Visser, that circumstances concerning Gen Nyanda were such that he was alive to the fact that he was being followed and hence was likely to escape unless they acted.  We dispute that.  Our version is that further, sorry, as a result of the evidence that was given, it's common cause that it was in the knowledge of both Col Botha and Gen Steyn that prosecutions would not proceed and that as a result of the fact that these people were already held, they acted and killed these people in the full knowledge that prosecutions wouldn't proceed.
	There is a certain amount of dispute about the way the executions occurred.  That in short, summarises our dispute to the application on the facts so far.

MS POSWA: I don't have anything to add, Mr Chairman.

CHAIRPERSON: Thank you, Gentlemen, for that.  I take it when you come to address us finally after we've had a chance of reading everything, you will bear in mind what you've already told us.  We're now going to proceed with cross-examination are we?

J A STEYN: (s.u.o.)

MR WILLS: Thank you, Mr Chairperson.

MR WILLS: Mr Steyn, your first affidavit was made in November 1996.  Is that correct?  That was the affidavit attached to your application?  And I'm referring here to the voluminous application which is attached to the original bundle.

J A STEYN: That's correct.

MR WILLS: It was signed on the 16/12/1996.

J A STEYN: Yes.

MR WILLS: And then you've made this other statement which my copy is unsigned and undated, but which we received on Friday, is that right?

J A STEYN: Yes.

MR WILLS: Now, I have a problem in a sense that in your application, the one application and the affidavit that is dated December 1996.  You make no mention of you even knowing or coming to terms with the fact that Ndaba would be eliminated and you even, bringing this up with the first applicant, Botha, at any stage, the first mention you make of any elimination is when you say on page 89, where you say
"On 16th of July 1990 Col H J P Botha informed me that he had eliminated Ndaba and Shabalala."
The bottom of the page 89.  Is that correct?

J A STEYN: That's correct.