Amnesty Hearings — Durban — 1998-11-17

MR MALAN: Mr Visser sorry for interrupting you, your reference to the Promotion of National Unity and Reconciliation Act, Section 23(i), is that the correct reference?

MR VISSER: Please refer me to the paragraph.

MR MALAN: It is paragraph 45.  You refer here to rewards and then you refer to our founding Act, Section 23(i).

MR VISSER: There should be an (f) in between Mr Chairman, it is Section 20(3)(f).

MR MALAN: Yes, thank you.

MR VISSER: Sorry, that has fallen out in the wash Mr Chairman.  Mr Chairman, really the point about which we wish to make about the public interest, is this, and we make this in paragraph 48 and I want to conclude my argument with that.
	The public interest which is served by the whole process of amnesty, is that of the promotion of national and reconciliation.  That really adds a new dimension to the tests which have existed up until Carla's case.  Mr Chairman, the question will be for you to decide how ordering the disclosure of the identity of a witness, is going to advance int he present circumstances, national unity and reconciliation.
	And with respect Mr Chairman, one needs not to be very astute to realise immediately that it will do everything but, it will only kindle hatred, promote violence which is directly in opposition to the spirit and intention of the TRC Act.
	Mr Chairman, we would ask you not to allow questions in cross-examination directed at establishing the identity of informers and that you would not order witnesses to answer questions by which it is reasonably possible that the identity of informers might be established, thank you Mr Chairperson.

CHAIRPERSON: Sorry, before you stop, let me put one of my difficulties to you.  Saying now that these men were, I don't know if accomplice is even the right word, they were part of the team that went to Swaziland to unlawfully kidnap Ndwandwe.  They played a very active role in the kidnapping.
	Can, if the applicant refuses to tell us who the other policemen were who went with him, would he have made a full disclosure in terms of the Act?  Can he select which policemen he is not going to tell us about, or must we say he hasn't made a full disclosure, he is concealing information?

MR VISSER: On your question Mr Chairman, as it stands, the answer is yes, to may find that he didn't make a full disclosure.  The difference here is in his mind, and he may be wrong, as you pointed out, but in his mind, these people although they participated actively, were his informers.
	That is what makes the informers, and with respect Mr Chairman, it has been put to me on the basis that I don't gain anything from protecting these people.  If you want to know the names, I can give it to you, but you must know one thing, there is going to be a huge problem, because the police as, the present police are going to suffer because people will suddenly realise that they are not being protected as informers any more.

CHAIRPERSON: As I said, this was somewhat different from the ordinary police informer, it was a troubled part of our past.  One might have to, if one is going to make any general ruling on that, have more evidence as to how these people were treated and what has happened to them subsequently.

MR VISSER: You know Mr Chairman, Mr Ramatolo sat here, he was called by my learned friend, he flatly refused to answer certain questions which didn't even involve informers, it involved his own past and nobody suggested that he should be compelled to answer.  It is the same basic problem Mr Chairman, there are things of the past which are better left alone and one of them is the identity of informers.

MR NGUBANE: Thank you Mr Chairman.  Mr Chairman, at the initial state I would like to indicate that I have been informed that Botha specifically conceded yesterday that these people were not informers.  That is what I am told, I don't know.

CHAIRPERSON: Where was this concession made, do you say?

MR NGUBANE: I was just made to understand that, I am not sure whether that is correct or not, but if that is correct, then my Heads of argument ...

ADV PRIOR: Mr Chairman, may I assist.  I informed Mr Ngubane because he wasn't present, that what Botha conceded was that the information about Portia Ndwandwe's whereabouts, never came from these two persons, that he alleged were informants.
	The evidence was quite clear that he knew the address and the reason for those questions was to obviously enquire around the circumstances of the alleged informers.  That was conveyed to Mr Ngubane.
	I don't think Mr Botha categorically stated the position as is stated by Mr Ngubane.

MR VISSER: Mr Chairman, if I may say so, it was quite clear that Botha said that at the time when they went into Swaziland, in order to find out where exactly Ms Ndwandwe was, they made use of Visagie, who at that time gathered that information.  There is nothing that says that Visagie didn't gather it through those two informers for example, or that the informers didn't observe and monitor Ms Ndwandwe prior to that time Mr Chairman, so if it is going to be regarded as a concession, that these people were not informers, well then clearly Mr Chairman, we are at loggerheads.