Amnesty Hearings — Durban — 1999-10-19

MR BOOYENS: Yes, it's worse because on the second explosion it would certainly have been a much more grisly experience, so I would submit that that fact one certainly cannot use Mr van Zyl, I would respectfully submit the probabilities are that he honestly and bona fide, when he made his application, he honestly and bona fide believed that there were two explosions but like he said yesterday, it's 20 years ago, I can make a mistake.  Mr Chairman, as far as the - so I would respectfully submit that it cannot be said on any basis that Mr van Zyl did not make a full disclosure of the material and the relevant facts.
	Now if we come to his position in so far as to the "why", in the first place he is contacted by Col Visser whom he had known from before, who tells him:  "We've got a problem with a man who is an MK double agent, MK then police agent, now double agent, who's threatening our situation and tells him that Head Office has in fact given an instruction that the man must be eliminated and his body must be destroyed.  So although the instruction is not given directly to van Zyl, to van Zyl is: "I've got an instruction, will you help me carry it out?" and van Zyl, listening to what is being told, says that he would assist Col Visser.  
	The position is that van Zyl there makes a decision, not as to the merits or the demerits of the order because the order has been given and he is not in a position to check the intelligence and as Commissioner Sandi has so clearly pointed out on a number of occasions, we have heard enough evidence, the Committee has heard enough evidence, that in the hierarchy these people were working, if a Colonel tells a Lieutenant:  "This is an order from Head Office", you do not go back as a Lieutenant, sit back and say:  "But wait a bit, let me just check that intelligence that they've got, is it correct, is this reliable?"  It's just not the way it worked.  He says he knew Visser.  He says he regarded him as reliable and he had no reason to disbelieve Visser when Visser told him that:  "I've got instructions from Head Office, this double agent must be killed."  And van Zyl being as Visser described him, a loyal policeman and fighting for the cause at that stage Mr Chairman and I didn't bore the Committee once again with leading all the evidence that you have heard ad nauseam, about how they were brainwashed and so on, I think one only needs to look at the Cronje decisions and I think that what the full Committee there found as to the background of the entire struggle and the entire war and so on, clearly this is the background against which all these offences were committed and I would ask the Committee to take that factor into account.  So Cronje - van Zyl was acting bona fide at the time.  He believed that he was acting in opposing the struggle being waged against the then government of South Africa.  He was a member of the Security Forces coming from a certain background and for that reason, Mr Chairman, I would respectfully submit that in so far as his position is concerned, seeing that there was an order, although the order wasn't given directly to him, but there was an order that it must be done, that he falls squarely within the ambit of those who qualify for amnesty and I would respectfully submit, with reference to Section 20, 21 (a) that (a) his application complies, that the act was associated with a political objective, Section (b) and that there can be no argument that he didn't make a full disclosure of the facts as well as he could remember them.  He is, in so far as the political objective is concerned, he is in the position of Section 20 (ii) (b), as an employee of the State, committed bona fide with the object of countering or resisting the struggle or at the very worst for him, he is in the position of Section (f) that being a person referred to paragraphs (b) (c) and (d) who on reasonable grounds believed that he or she was acting in the cause and scope of his duties and within the scope of his express or implied authority.  It cannot be suggested that it would have been unreasonable for him to rely on a senior officer and even if the Committee may have a doubt, which I submit the Committee should not have, that he qualifies in terms of (ii) (b), I would in any case submit that he clearly qualifies within the ambit of (ii) (f).
	Mr Chairman, in so far as what he should be granted amnesty for is concerned, I would respectfully submit that he should be granted amnesty for the murder of the deceased in this matter.

CHAIRPERSON: If amnesty is given, I'm only referring to orders made in other matters recently, for any offence flowing, for any offence or delict flowing from the death of a person on such and such a date, at or near Josini and then it would include even the disposal of the body, but we could mention that inter alia as one of the offences connected therewith. ...(mike not on)  the evidence given before us.

MR BOOYENS: Mr Chairman, I would submit that that would be the appropriate order to make, because otherwise if ...(intervention)

CHAIRPERSON: That wouldn't on the other hand include anything that's not been revealed before us.

MR BOOYENS: Mr Chairman, yes, I would then ask for an order, any offence or delict associated with the killing of and I would ask, and this is just ex abundante because I don't know what other evidence, the killing of, the death of O R Madondo or a person known as MK Scorpion, which killing occurred near Josini dam during 1980 because we haven't even got certainty unfortunately as far as the date is concerned.

CHAIRPERSON: The farm was mentioned as being Leeuspoort.

MR BOOYENS: Yes, that's what Mr Schoon said, but I'm not so sure if that is indeed the same farm because, well, ...(intervention)

CHAIRPERSON: I think we will be able to describe the vicinity so that it could be identified and not be confused with another incident.

MR BOOYENS: The only reason why I say Leeuspoort, I see the reference to Leeuspoort is actually in connection with, at page 37, it's the farm Leeuspoort, in connection with the Ngome ...  Is it the same?  I'm informed by my learned friend, Ms van der Walt that in fact it's the same farm, so Leeuspoort, I think, would be safe.  The farm Leeuspoort in the district of Ngotje, near the Josini dam.  I think that would cover it Mr Chairman.
	Unless there's something specific that the members of the Committee would like to hear me, those are the submission I wish to make.  If necessary, Mr Chairman, I would, depending on what other evidence might be forthcoming, it may be necessary for us to appear again.  I do not foresee that as a possibility at this stage, and if necessary we would submit further argument, if we think anything else that directly relates to the position of my client is concerned.  Those are my submissions, Mr Chairman.