Amnesty Hearings — Durban — 1999-08-30

MR VISSER: Yes well assault in all it's various forms would fall under assault.  Well, Chairperson, that I leave in your discretion but we're thankful for having been alerted to the issue which Commissioner Bosman has brought up.  It would appear, Chairperson, speaking off the top of my head that the difference between an assault and torture would certainly involve also the mental agony to the victim and certainly, if on the facts of the matter it is found that there was such mental agony and apparently there was, then torture would be the correct thing to apply for.  Chairperson, may I just on that score and I don't want to take up more of your time than is absolutely necessary, we  have submitted very recently that perhaps, Chairperson, as you know that from the beginning we all have had difficulties with certain provisions of the Act which could have been a little clearer and one of the remaining issues, Chairperson, is - and I know very well what Commissioner de Jager's attitude about this is in specifying offences for which you apply for amnesty but the question really here is does the Act really expect the Committee to find on the facts which precise offences or delicts had been committed or is it not really the function of the Committee in the intention of the legislature simply to grant amnesty for all offences and delicts committed in the confines of a particular incident.  Now I don't want to take that much further but if my submission is correct that on a proper reading of the Act the interpretation must be that it is not your function and that all that is expected of you is to grant amnesty for any delict or offence committed specifying a particular offence.  Then Chairperson, all these issues fall away.

CHAIRPERSON: Thank you.  Do you agree with that?

MR NEL: I agree with Mr Visser, thank you Chairperson.

MR VISSER: I'm sorry, my attorney is again more clever than I was, I didn't think of this.  There is of course no offence, torture.

CHAIRPERSON: Yes I know that, I know that but maybe just to - one could bring it in, you know, just to indicate that a hearing was held in this matter because there was torture and therefore a gross human rights violation.

MR VISSER: And apart from that then perhaps Commissioner Bosman's suggestion to me just now is becoming to make more sense to me that one should rather then perhaps speak of assaults in any of it's forms.

CHAIRPERSON: Yes.

MR VISSER: I'm not quite sure that one has to start with the intent to due grievous bodily harm because if you gave amnesty for assault, Chairperson, I doubt very much whether the Attorney General is going to prosecute for assault with the intention to do grievous bodily harm but be that as it may, Chairperson.

CHAIRPERSON: Yes, thank you.  Mr Gordhan, are you ready to make any submissions now?

MR GORDHAN: Thank you Chairperson.
	In the first instance, Chairperson, I want to say that as far as Mr Duhr, Mr Bothma and Mr Greyling are concerned, I believe that the spirit in which they have approached this hearing and application is one in which they seriously regret their past conduct, that they have a commitment to building a new South Africa, that they have a commitment to being part of our new nation and above all they have a commitment to reconciliation and in those circumstances and given their political role, certainly in as far as the assault is concerned, I have no problems in agreeing to any decision that you would make that they be granted amnesty in that regard.

CHAIRPERSON: Thank you.

MR GORDHAN: I must however point out that as far as the last interaction about what is torture and what isn't and whether it's a human rights violation or not, the Committee might want to take into account that solitary confinement where you are a total captive to the whims, fancies, desires or otherwise of a group of persons who are there to perpetuate a racist ideology is one that must be considered a serious violation of human rights.  If one is in the situation where you have no contact with family, no contact with law, you only have contact with the lawyer, a doctor that they can choose, you have no access to your own medical personnel, you have only access to a bible, upon request you can get religious material of any other denomination, you have no access to reading material, they will only allow clothes that they deem fit that a family might want to send to you, they might allow an odd packet of biscuits to reach you from time to time otherwise nothing if they desire not to, you'll have a bath at their leisure and pleasure, you won't have it if they don't want you to have it, if you can shave if they want you to shave, you don't shave if they don't want you to shave and I can go on, Chairperson.  That's the condition in which people who subsequently played a leading role in both the negotiations for this country, that brought us where we are and in it's first democratic government were subjected to during the course of what we described as this set of events here.
	The second thing, Chairperson, is Mr Visser has in the absence of Mr Maharaj tried to recapture his version or his interpretation of the set of events from 1988 leading right up to 1990.  I don't want to counter every fact or detail, all I want to say is that one needs to balance that out with the evidence that a previous Panel which included two of the people that are here heard from Mr Maharaj as a contrary or alternate set of facts.  But there is some interesting terminology used there when he says that during the weekend of the 7th and 8th when Mbuso Shabalala and Charles Ndaba were in the hands of Mr Botha and others, he used the word "the light goes up" and suddenly there's an understanding on Mr Botha's part of what were the circumstances that were prevailing in relation to the Vula project.  I submit to you, Chairperson, that how can a light suddenly go up when here for four to six weeks you've had free access to an informer who is allegedly working for you from 1988?  That at that stage no computer tapes, computer disks, computer material, computers or any other personnel were in the hands of the security police or Mr Botha but just having - and earlier I think we heard that Mr Shabalala was also not cooperative, so the same person who was the informant, having spent a weekend with Mr Botha, suddenly becomes the source of the lights going up.  I think that's a very dubious interpretation to be granted to the circumstances of that point in time.
	As far as moles/informants accessed by the ANC in the pay of the police or security branch are concerned, there's a long standing practice in the ANC, Chairperson, at that time to actually recruit the police.  It's not something new, The Owl wasn't the first person to be recruited by the ANC, nor was it the last at that point in time.  So moles or informants who were connected to the ANC were a permanent feature of the struggle for democracy as far as the ANC was concerned.  Why there had to be this inordinate desire to suddenly find out who The Owl is and do it personally and then do it vindictively is something that in my view lacks credibility from the evidence that we've heard.

ADV BOSMAN: Mr Gordhan, if I may just sort of come in here?  Should one not perhaps look at the extent of the Vula Operation and accept that, you know, the fact that the Vula Operation was seen to be such an extensive and almost dramatic operation that made it perhaps a little more important to find a particular mole?