Amnesty Hearings — Cape Town — 2000-11-19

MR LAX: It's a completely different R7 000, it's not the bits and pieces that he described making up in order to "break even", whatever that might mean.  It's a completely different amount.  If you like I'll ...(no sound)

MR MARTINI: Well I would appreciate that because the only R7 000 I'm aware of is, the discrepancy arose and this is the first time I hear this, I haven't even heard it, I haven't read it in the Heads and I haven't heard it in the argument.  The R7 000 was - why did Mr Hardien only get R18 000?

CHAIRPERSON: Yes, we know about that.

MR MARTINI: Now that was minus 7 which he added back to the 3 from the Omar project and handed back the R10 000 in total to one called Nick, which if you recall the evidence, was the new Co-ordinator.  That's on that issue.  I ...(indistinct)  I've got Bundle J, Chairperson.  If I may carry on on another point, just to get back to the proportionality issues as well, Chairperson, one of the issues Mr Bizos raised was, and I say there's no validity in that argument applicable to Mr van Zyl.  It might have application to maybe Mr Verster the General, why did Mr van Zyl, why didn't they consider other options?  That was, with respect, not their function.  Their function was, if you recall the hierarchy of how the CCB operated, was go out and do a pre-study for the elimination of Mr Omar, not come back and tell us if we can't, instead of eliminating him, what else can we do to him, with respect and at the end of the day Chairperson, you will recall that that decision to eliminate after all the pre-studies, could be stopped, one need not have gone ahead with that plan, so possibly that argument may have some relevance, given the structure of the CCB, to Gen Verster.  If there is any relevance in that argument, the only person who could have made those assessments would have been at the higher levels.  To suggest Mr van Zyl's function was not to go and verify the information, the undisputed evidence was it went, the information was sent through to the Co-ordinator who had his own links because of the secrecy of the organisation, to Trevits, Military Intelligence and all sorts of other information, so it could never have been expected of the foot soldier to now say:  "Well, I've received a mandate to put a bomb in the ELC, but I'm going there tonight and you know what, I'm going to throw paint over it instead."  It wasn't his function.  He was not authorised first of all to throw paint, he was authorised to blow up the hall, he was authorised, on Mr van Zyl's evidence, to monitor Minister Omar.  So with respect, that argument cannot have application to the foot soldiers, as I've put it.

MR LAX: Where it did have application and Van Zyl I recall specifically questioning him about this, conceded this aspect was that in determining the nature of the project and the "voorstudie", he would have been required to have a discretion to consider what alternatives to use and it was in that context that he chose particular actions, so that's the extent.  I accept your argument that yes, that would have gone up and they may have changed it, etc., etc., and that once it came back, he didn't have as much discretion in the matter, but it's at that point of choosing what is an appropriate action to recommend as part of the "voorstudie" that the discretion comes into it.

MR MARTINI: Well with Minister Omar, he was told eliminate.  He could have either eliminated Mr Omar by planting a car bomb, have him stabbed, but later the plan was changed to poison, but the act, as I recall Mr van Zyl's evidence in the ELC, I'm not sure that Mr van Zyl, I might be mistaken in my recollection of this evidence, actually suggested:  "We blow up the hall", but be that as it may, insofar as proportionality might be relevant Chairperson, you heard my argument which I submit in these circumstances of these applications where nothing really serious occurred, tragic, fortunately.  Proportionality has no relevance, but insofar as the Committee might find it is relevant, bearing in mind that these are only criteria to be taken into account, in a war situation, one's got to judge it in a war situation that South Africa was in at the time and Rafolla's case lends some assistance to the Committee in how to apply these principles.  I submit that's the only authority we've really found on a legal authority of how to attempt to apply these principles.
	Chairperson getting back ...(intervention)

CHAIRPERSON: ...(indistinct)

UNKNOWN: The page references are, the record at page 2281 and the diary entry at the 30th of May.  Maybe I can just hand my copy to Mr Martini.  Bottom left hand corner and the question that's put to Mr van Zyl is why is he getting R9 547, sorry that's put to Basson, is why was van Zyl paid R9 547 when his salary was approximately R3 500.
...(indistinct - mike not on)

MR MARTINI: Page 153 of the diary.  Now down bottom left.  No, May.

CHAIRPERSON: Then we see it says:  "Le Roux 954736" and then what Mr Kahanovitz read out ...(indistinct - mike not on)

MR MARTINI: But I've answered it, Mr van Zyl would have got a production bonus in about June 1989, now this is May. ...(no sound coming through)

MR LAX: This is what I had in mind.

MR MARTINI: Well this Mr Lax, I answered was Mr van Zyl's evidence was he got a production bonus in June.

MR LAX: I heard you.

MR MARTINI: Be that as it may, Chairperson, let's get on to the next point.  Barnard's evidence.  Chairperson, I dealt with that extensively.  Just one issue, Chairperson you raised yesterday and you recall the point about the issue of the gun in the ceiling, which I debated that whole issue, the improbability.  Chairperson, what's also significant, I forgot to refer yesterday, if you have reference to Barnard's evidence and in particular, I think it was under cross-examination, what is significant on the third occasion when he says he went down to Cape Town and he was meant to shoot on that occasion, he says he stayed in the Woodstock Inn, not the Inn on the Square.  Now his previous evidence was at both occasions he stayed at the Inn on the Square and he left the Makarov in the ceiling and he uses the words, and I submit the reason why he uses the word in cross-examination, he says every time he goes back to Cape Town, he says:  "Amazingly", now why does he use that word?  Because it's a fabrication.  It's really amazing that one would find the Makarov in the ceiling after months.  He himself uses that word.  Page 2677, Chairperson:  "... once again obtained the vehicle and the firearm which amazingly had remained in the same place".  Why does he himself use such a word and if I can find the reference of the hotel he stayed in - Mr Chairman, please bear with me, I had found it.  Chairperson it is there, I'm not sure if it was under cross, or ...

CHAIRPERSON: ...(indistinct - mike not on)

MR MARTINI: The third time he stayed at the Woodstock Inn and it deals with the evidence at the time where he says he had stayed out all night and he watched the TV and he saw Lubowski had been killed and he phoned van Zyl and said:  "Come and see me the next morning" and he was staying at the Woodstock Inn.  I have -  Chairperson I actually had found it and I flagged it.  Oh, the R7 000 of Barnard appears at page 2681 of the record where he says
"Mr van Zyl gave me an amount of R7 000 in cash to cover my costs.  It had nothing to do with salaries, I made three trips to Cape Town and I stayed in good hotels, so that R7 000 I used for that."

CHAIRPERSON: What page is that?