Amnesty Hearings — Bloemfontein — 1998-01-29

MR VISSER: Mr Chairman, you are absolutely correct, and I hope I didn't indicate that I am saying anything different, but what I am saying is this: If an applicant comes to you and says, 'I killed A, give me amnesty', you are going to say to him, "But hang on, I can't give you amnesty unless I hear something more from you'. If you then, Mr Chairman, as a Committee come to know, come to understand that it was an act associated with a political objective, surely the man who is asking for the amnesty - and this is my only point - must come and tell you why he wants amnesty. He was ordered to do it, he thought he was acting within the course and scope of his employment. Those qualifications which I mentioned to you. 	I fully agree with your setting out of the legal situation, Mr Chairman, and if you are wrong certainly I am wrong, and if you are right I think I am right. I didn't intend to differ from that. What I am saying is, these two applicants must now come and tell you why they are asking for amnesty, and all they say is, 'We were ordered to do so'. What I am saying because of that is that when you look at the evidence, there is the one question that has to be answered in their favour in the affirmative, and that is, on the balance of probabilities you have convinced us that Coetzee and Erasmus and Shaw gave you the instructions as you said.

BERNARD MAKGABO NGOEPE: But surely, Mr Visser, it won't be such a big problem once we believe that they committed those things, which is the big question of course. Once we believe that they committed those things in the course of their duties, and so on and so forth, how likely is it that they could have gone there on their own, junior policemen as they were? How likely is it that a junior policeman would on his own escapade, on his own errand, petrol-bomb the clinic of, say, somebody of the political profile of Ms Mandela? How likely is that?

MR VISSER: Mr Chairman, I'm not a mindreader, I don't know. People do things for various reasons by various motivations. We are going to suggest to you some reasons why these people could have come to you and apply for amnesty without them having done it. It may be even possible that they did. It may be possible that they did, but at the end of the day you have them and you have some witnesses who are victims, who have a very real interest in them succeeding with their applications for amnesty. But against that you have a bulk of a denial, and unless you are going to adopt a biased approach to say that, merely because they are policemen I am not going to believe them when they deny. Because as my learned friend Mr Stander and Mr Memani said, we read of all over the country where it was different. Well, that may be ...[intervention]

BERNARD MAKGABO NGOEPE: That is why I was careful to say "if" and it is of course a big "if", if we believe some of these things that they are saying. That shouldn't worry you because I was just trying to find out - the process of trying to find out whether or not they acted on orders. In the process of trying to think so, one of the things we take into account, subject to the big, big "if" that I have made, one of the things that we have to take into account is, is a junior person likely to just go on his own and so on and so forth.

MR VISSER: Absolutely. Of course you've got to take that into account. I am sorry, - let me try to put it this way: The point I am trying to make is when I deal with an application for amnesty which I know is going to come before you, Mr Commissioner, I look at the facts, and I look at the act, and I say to myself: Where do I slot in with this particular witness? Oh well, this was the general, he gave the instruction for whoever to be eliminated. That is the top of the scale. The bottom of the scale, we've got a foot soldier here that it told to come along and to fetch firewood or whatever the case may be. There is a vast difference. Then, of course, you've got the other segment in the middle, which is perhaps the most difficult one.
	What I am saying here, Mr Chairman, is, these two are the bottoms ones. They're the ones who say: We acted on instructions; we didn't have any personal view. Subject to what Commissioner De Jager said, and again he is quite correct. But that is the only point I'm making and coupled with that, as far as Mr Ngo is concerned, those incidents that came before the 10th February 1986; in other words, the incidents which the applicants have not convinced you on the balance of probabilities, fell after the 10th February 1986; they cannot obtain amnesty for, Mr Chairman, because they fall between two chairs. They cannot apply for amnesty - Ngo cannot apply for amnesty for those acts because he wasn't a policeman, so he does not fall under Section 22(b).

MRADV DE JAGER: I know we haven't got all the - but could you perhaps in your written argument refer us also to the definition of a member of a force, as far as possible; whether it would include, say, part time members, volunteers or whatever it may be, informers or what the position may be?

MR VISSER: Yes, Mr Chairman, I am going to deal with this issue. May I say why I'm mentioning now? It is to alert my learned friend Mr Memani to this argument because he hadn't addressed this argument at all. He may wish to do so in his written argument. That is the only reason why I advanced this argument at this stage, but it certainly will be repeated in my written argument. Mr Chairman, I will then step off ...[intervention]

ADV MEMANI: Just a second, Mr Chairman. You know, I don't like my name to be often mentioned by - I haven't mentioned his name once when I was addressing him, and if he can help it, I don't like it being mentioned, especially when I've got reservations about why I'm being mentioned.

CHAIRPERSON: The reason that he mentioned it is, he wanted you to know that this is a matter which could be dealt with. You had no other motive, had you, Mr Visser?

ADV MEMANI: As far as I am concerned, Mr Chairman, the Act is before you and you are aware of the provisions of the Act.

MR VISSER: Well, Mr Chairman, thank you.
	Yes, as I mentioned before, I will deal with the question of who are members of Security Forces, the whole issue of against which, I think, is something which needs to be dealt with and clarified.
	Mr Chairman, on the question of the evidence, I don't believe that it will serve any purpose for me in attempting even to address the issue right now. The only sensible way of doing that would be with references to the record which we cannot give you now. Certainly I can't do justice in the time remaining to an argument on the probability. It could as easily be addressed on paper. With respect, Mr Chairman, you might not be too disappointed to know that I would submit that at this stage we should perhaps call it a day and we will follow up with written argument.

CHAIRPERSON: When, Mr Visser?

MR VISSER: I'm going to start tomorrow morning and Saturday, and the only outstanding issue is the question of the record. We really have a problem with obtaining records, Mr Chairman. In fact, we obtained our record on the Friday before we left for Bloemfontein, on the Sunday. I believe that we will work on our notes, obviously, but to avoid arguments we would prefer to have been able to obtain the record. But if you ask us to do it sooner than the time it will take for us to wait for the record, we will do it.

CHAIRPERSON: I think it will be more convenient for us not to wait for the record, we are also aware of the delays that occur.

MR VISSER: Mr Chairman, it is always difficult to make undertakings but I would say that I'm hoping that I could let you have it by Friday next week.