Amnesty Hearings — Durban — 1999-08-30

MR GORDHAN: So that evidence was on oath, there was cross-examination on the part of the legal representatives of the other side.  Secondly, I think you've had a fair balance of exposure to facts both from Mr Botha and others and the benefit of the questions and these huge piles of documentation available and thirdly is unfortunately, even if we start that now, I don't think we'll finish before the end of today and I'm afraid I'm not actually available to stay over until tomorrow.  So those are the reasons so that you don't think that I'm slighting the Committee in any way.

CHAIRPERSON: No, it's not a question of us thinking you're slighting it, Mr Gordhan, but thank you.  Mr Lalla?

MR LALLA: I've also given this a great deal of thought and I'm sure that this chapter will not remain closed after we leave here but for the interim I leave the process in the hands of the Committee to take further action or further decision.

CHAIRPERSON: So you both now confirm that, your decision that you will not be testifying?

MR LALLA: Yes.

CHAIRPERSON: And you also of course have the right to call witnesses, do you have any intention of calling any witnesses?

MR GORDHAN: ...(inaudible)

CHAIRPERSON: Yes well thank you, that then concludes the leading of evidence in this matter and what remains now is for submissions to be made.  It's for the information of Mr Gordhan and Mr Lalla, the submissions will be made.  The applicants get the opportunity to make through their representatives submissions and then you two answer and then the applicants have the right to reply to your answer.  Mr Visser?

MR VISSER: Thank you Chairperson.  Chairperson, I'm going to be brief.  This is an application before you for the assault on both Mr Gordhan and Mr Lalla.  One of the outstanding features here, Chairperson, is that there is no dispute about the method or the intensity of the assault as testified to by the applicants through Mr Gordhan's or Mr Lalla's cross-examination.
	Chairperson, least I forget, the application for amnesty, I specified specifically assault at page 1 of D, Chairperson, or any other delict or offence.  I did not specify, Chairperson, the obvious one and that is defeating the ends of justice by not having reported it later but in line with previous applications, Chairperson, we will ask you to include that under that general heading under B.
	Chairperson, Botha has given evidence on a number of occasions about Operation Vula.  You have documents before you about Operation Vula.  We know what it was more or less about.  What Botha said at the hearing when you were not present, Chairperson, was that he had received information - well, perhaps I should just fill you in on the background.
	Botha says he went to Swaziland in 1988 and approached Mr Ndaba directly to become an informer and Mr Ndaba did so.  Mr Maharaj gave a very good reason why that would have happened.  He said that at the time in 1988 ANC MK operatives in Swaziland was under pressure because the enemy was making life very difficult for them.  Perhaps that might have been the reason why Mr Ndaba decided to become an informer but that's not relevant why he did so.  Mr Botha says he did.
	Then Chairperson, in 1988 Mr Ndaba became the deputy commander of the Natal urban machinery of MK in Swaziland.  That was a very important event because Mr Botha explained the moment that happened his name automatically was placed on the list of Trevits who was security organisation composed of different sections of the security establishment in order to identify targets in other countries, particularly in our neighbouring countries.  And then Chairperson, what he did, that is Botha, is he suggested to Mr Ndaba that he should try to arrange for him to be recalled to Lusaka because Botha was afraid that Ndaba might be eliminated.  That's just a little bit of background, Chairperson.  He then gave Ndaba a name of a contact person in Malawi plus his address and telephone number as well as a contact person in Swaziland and his telephone number.
	Then Chairperson, we come to 1990.  According to Mr Maharaj, Ndaba came into the R.S.A. illegally on the 4th or the 7th February 1990.  That accords with the evidence of Mr Botha who says it was early in 1990.  Approximately six weeks before the 7th July 1990, Botha says Ndaba contacted him, it was a direct contact, telephonic and certain meetings were then held.  Botha could remember as I remember his evidence of two or three such meetings.  During this time Mr Ndaba informed Botha that he had become involved in an operation which was headed by Mr Oliver Tambo himself and he referred to the President's Committee and he gave Mr Botha certain information.  Mr Botha was quite clear that he was unable to recall what information was precisely given to him at what date but what is important, Chairperson, was that Ndaba was arrested on the 7th July by an askari, as it turned out later by two askaris.

CHAIRPERSON: Sorry, but what date was that?

MR VISSER: Saturday, 7 July.  Botha is called down to C.R. Swart Square and when he arrives there he finds Ndaba there and obviously he wants Ndaba to be released.  There's already a risk because an askari, as it later turned out, two askaris had knowledge of the arrest and Ndaba is then taken - and I don't want to dwell too long on Ndaba, Chairperson, but Ndaba is then taken to a safe house in Verulam where he is debriefed by Mr Botha.
	Very shortly after arriving there Botha is told by Ndaba that he has a prior arrangement to meet Mr Shabalala and to cut a long story short, Chairperson, due to circumstances prevailing at the time and what happened there, Mr Shabalala is arrested and also taken to the safe house.  As a result of information, Chairperson, received from Ndaba on the 7th and on the 8th July that weekend on the Saturday and on the Sunday, suddenly the light goes up for Botha and he starts understanding how this whole operation of the president's committee or whatever you want to call it, fits together.  He is given addresses of safe houses by Ndaba which are later confirmed, Chairperson.  I refer you to Exhibit H, that is the statement of evidence by General Steyn in the Ndaba matter where he quotes from the judgement of the magistrate in the bail application of Mr Nyanda where the addresses were confirmed as were other things for example weapons importation etc. etc. and because of this new picture, Botha informs Steyn and Steyn says lets go to head office which they do on Tuesday the 10th.  Now Chairperson, Mr Maharaj as well as Mr Gordhan has made a point of attempting to convince you that Mr Ndaba was no informer.

CHAIRPERSON: Sorry, just before you proceed, this particular Panel sitting on this hearing will make no finding in that regard because we have not received that evidence, that will be for the Panel dealing with the so-called Ndaba and Shabalala incident but ...(intervention)