Amnesty Hearings — Durban — 1999-08-17

MR VISSER: Yes, certainly, Mr Chairman.  I don't foresee that I will, but if it's necessary, I will do so.
	Mr Chairman, dealing then with the incident itself, I do similarly not intend to traverse all the evidence that was given, but in brief, the witnesses du Preez and Wasserman told you that they were instructed to meet Mr Taylor, as it turned out, at a shooting range at Winkelspruit, where they met Taylor and some askaris in the company of Mr Ninela.  Col Taylor informed them that Mr Ninela was an activist who had been arrested and that he, that is Taylor, had considered what to do with him and had concluded that he could not charge him, nor could he release him, by virtue of the fact that he would continue with his activities.  They both recall that Mr Taylor had told them that Mr Ninela was responsible for previous explosions in the Natal area and that he was arrested according to their recollection, while in possession of a limpet mine.
	You heard evidence from Mwelase that when Mr Ninela was arrested, he was not possessed of any weapons of any description.  We have no reason to doubt his evidence.  Mr Chairman, the submission we make on that score is that it takes the matter no further, one way or the other, because all that Wasserman and du Preez could tell you was what they heard from Mr Taylor.
	May I deal immediately with the evidence of the last two witnesses, Mr Chairman?  We submit that the only relevance of that evidence is to show that Mr Ninela was not as innocent as might have been suspected when listening to the evidence of his mother, and it's understandable, I don't criticise her at all, for that reason, but it is quite clear that Mr Blessing Ninela was quite involved in activities, political activities, and the one fact that we know for certain is that at one time he had a limpet mine in his possession which he trained the Bhengu brothers on and handed it to them for obvious purposes.  
	The relevance of that Mr Chairman, is it gives colour to what Taylor had told Wasserman and du Preez.  It creates a basis of credibility for what they were told and it also, in our submission, is then easier to understand and to accept when du Preez and Wasserman told you that Taylor was a seasoned policeman and they had no reason at all to doubt his judgment in the matter.  So they simply carried out orders.
	Mr Chairman there was opposition by family members to the application.  At the inception Ms Gabriel told you that the opposition would fall on two legs.  Firstly that there was no full disclosure, as intended by the Act and secondly that the act was disproportionate to any political objective sought to be achieved.  We make the following submissions immediately from that.  
	First is that the other requirement of the Act namely that the act, omission or offence had to be associated with a political objective, has not been challenged before you and indeed we submit that it is quite clear that it has been established, particularly within the context, Chairperson of the general background which we argued to you and I can't refer to a specific page because really the whole document deals with it.
	Secondly, Mr Chairman, you would have noticed that my learned friend, Ms Gabriel did not direct any cross-examination nor put any statements to either du Preez or Wasserman in regard to proportionality.  Again we submit that it is understandable, when viewing proportionality as the Act charges us to do, Mr Chairman within the context of the conflict of the past, this particular matter certainly must pass that test of proportionality and for that statement, for that submission we rely on previous amnesty applications and decisions handed down by various amnesty committees.  
	Of course, Mr Chairman, the killing of one single human being is always disproportionate and that is clearly why the Act has defined that the proportionality spoken about in Section 20 sub-section 3 has to be adjudicated within the context of the conflict of the past.  So viewed Chairperson, we submit that that requirement has also been satisfied.  
	That leaves us on the opposition side Mr Chairman, with a question of full disclosure.  Now the issue of full disclosure relates to all relevant facts, says the Act in Section 20 sub (i) sub (c).  Now Mr Chairman, Ms Gabriel put questions in this regard to the witnesses, both du Preez and Wasserman and she started off by suggesting that there are many unanswered questions and when you limited my learned friend to tell us, to put directly what precisely was withheld, she made the following suggestions, (1) that there was a definite relationship between the Security Branch and Mr Ninela (2) that the statements relating to Mr Ninela's union activities were not divulged by the applicants and thirdly Mr Chairman, as we understood it, there was criticism on the basis that the information which is now before the Committee should really have been placed before, not by the family, but by the applicants.
	Dealing with those very briefly  in turn, we submit as follows.  Wasserman and du Preez told you that they had no relationship with Mr Ninela.  As it turned out and Wasserman conceded this, is that he may have been present, or may have been the person who arrested Mr Ninela because he told - did I say Wasserman?  I mean du Preez, because he told you Mr Chairman, at the time there was a group of people who were arrested and lists were given out to various police officers to assist in the arrests to, as you know from experience, when a group of people had to be arrested, it was always attempted to do so around and about the same time so that warnings could not go out and so on and he said to you that as far as he remembers, he would have arrested him merely on a list and a name, without knowing anything about the background.
	Now Mr Chairman, in fact this alleged relationship between the Security Branch and Mr Ninela also is contradicted by the evidence of Mrs Ninela who said that a week after his arrest, she had gone to C R Swart Square police station and asked to see her son, where a uniformed policeman told her that he was suspected of MK activities, which in our submission clearly points to the fact that the CID was busy with him and not necessarily Mr du Preez.  If I'm not correct with that submission Mr Chairman, I would refer you to what Mr Blessing Ninela himself says in regard to the Security Branch.  He says, Mr Chairman, at page 71 of bundle 2 at the bottom that, this is in a memorandum written to the Minister, that he was arrested on the 23rd, taken to C R Swart Square and he says there he was severely assaulted by a group of white security officers, "one of whom introduced himself as Mr du Preez."  Now the question is how far does Mr du Preez, on the assumption of the correctness of this, how far does his association with Mr Ninela run and we can adjudicate that by looking at what he then says.  He says,  "Mr du Preez informed me on the 25th of January" so that is the 23rd to the 25th and in that time on two occasions apparently, might be more, on his recollection du Preez had something to do with him.  On the 25th of January he was informed that he was being detained under the Internal Security Act Section 29.  Then other people take over Mr Chairman.  Then he goes on to say:
"He, Mr du Preez and the other security members, that is Basson, de Wet and Krause, told me they have reason to believe that I have knowledge of terrorists and arms found in the Inanda house, in the house at Inanda"
and then Mr Chairman, he is transferred to Pinetown and it would appear from his statement that that's the last, on his own show, that du Preez has anything to do with him, is when he was told that he was suspected on the 25th, because then apparently a Capt Krause took over, Mr Chairman, as we read the statement.  
	Now, the point I'm making here is that on the evidence before you, there does not appear to be independent evidence to corroborate the allegation that there was this relationship which my learned friend spoke about between the Security Forces and Mr Ninela.  When asked in evidence about that du Preez said there was no, he has no recollection of him having even been aware of Mr Ninela as an important person in their investigations and we would ask you to accept that Mr Chairman.  But, Mr Chairman, the question would be, what is the relevance to your decision whether amnesty is to be granted or not, whether or not there was a special relationship and we would submit, none.  If the evidence had been, Taylor called us out, he told us about Ninela, but we knew about this before, that would not have changed the situation at all, Mr Chairman.  That would not, in fact it would have made it better for the applicants, in all probability if that had been their evidence, but it isn't.   
	So we say, Mr Chairman, the first point of deliberately withholding information does not hold water.  Then the question of these union activities, du Preez told you that he and Wasserman were in the Intelligence Department in the terrorist section, they had nothing to do with union activities.  Sure, there were weapons found in a house which might have brought it under the auspices of the terrorist unit, but du Preez and Wasserman say they know nothing about that.  Again, Mr Chairman, it is not a relevant fact.  Then Mr Chairman, on the issue of the information which came to hand last week Thursday, now both these witnesses, du Preez as well as Wasserman, are retired police officers, they have no access to documentation with the police.  If we had been confronted with this documentation, and this is not a complaint but a matter of fact, earlier, my attorney might have perhaps made inquiries, Mr Chairman.  We were quite unaware that Mr Ninela had been arrested.  Had we known, we might have made inquiries to see whether there was a Section 29 statement for example, etc.  But we did not have that time, we had only Friday which was insufficient time to do a full investigation and apart from that Mr Chairman, Wasserman told you that du Preez and him went and pointed out the scene of the crime and later gave evidence, that is in January 1997 and in July 1997.  They were, he was, Wasserman says he was under the impression that the TRC investigation unit was investigating this matter thoroughly.  
	Now that brings two consequences with it, Mr Chairman.  The one is, once the TRC investigation unit is busy with investigations, it would be inappropriate, to say the least for applicants to do their own investigation in the light thereof.  We had this once before, Mr Chairman, where we specifically asked for permission to do certain investigations which we believed the investigation unit of the TRC should have done and didn't do and that was a special request we made and his Lordship Justice Miller, sitting as the Chairman of that Committee, that was in the Stanza Bopape matter, gave us the permission.  But secondly, Mr Chairman, is it so unreasonable to believe or to think, in the shoes of Wasserman and du Preez, that the matter was now being investigated properly?  We submit not, Mr Chairman and therefore on the arguments presented, or the questions put by Ms Gabriel on the issue of non full disclosure, we say that it holds no water, but apart from that, we asked the representative of the family, Mrs Ninela, what does she say what was held back and Mr Chairman you asked her quite a few questions about that, at the end of which it appears that they have a suspicion that there might be something else, but they don't know.  We say, Mr Chairman, full disclosure in this matter of relevant facts is the three persons coming forward, Taylor, Wasserman and du Preez to tell you that they participated in the killing of Blessing Ninela.  As far as the finer detail is concerned, sure as one would expect there is some measure of dispute, not dispute perhaps dissention, difference, but that does not make it a non disclosure of the relevant facts.  We would ask you Chairperson, to find that also, in that regard, the applicants have satisfied you that they have made a fully disclosure.  There is certainly nothing in their evidence which is inherently so improbable that their evidence should be rejected and consequently Mr Chairman, we ask you that on that basis alone, amnesty should be favourably considered.
	Mr Chairman, the evidence of Mr Bhengu, I've already addressed you on and perhaps I've already made the point sufficiently, Mr Chairman, but both him as well as Mr Ngobese's evidence, really relate to issues which fall outside the scope of your inquiry here because it deals with matters beforehand.  
	One matter, Mr Chairman, which remains and which I need to address you upon, is the question of differences between the evidence of du Preez and Wasserman on the one hand and the evidence of Mr Taylor. 
	Now Mr Chairman, Mr Nel has been from the beginning, the attorney who acted for Col Taylor.  In the hearing concerning various matters which we refer to as the Ndwandwe hearing, at page 731, when Col Botha is giving evidence, Mr Nel put to him the following.  Just below half of the page.  "I could put it to you" - well, my attorney says I must start reading from the top of the page.
"And you heard the evidence of Mr Wasserman who testified that he had personal knowledge of Mr Taylor's bad memory and you had something to say about that too.
Botha says, "That is correct."
The Mr Nel says, "And if we have,"  I'm not going to read that Mr Chairman, I'm going to go to just below half the page where Mr Nel says,
"I could put it to you that during, when he drew up the amnesty application with Adv Botha and myself, Col Taylor had very bad problems with his memory and he could not remember certain things."
Now that accords with the evidence as we understand it, of people who knew what the position or the condition of Mr Taylor was at the end of his days.  Now, Mr Chairman, against that background, I would refer you to bundle 1 page 4 where Mr Taylor deals with the killing of Blessing Ninela.  Now why it's necessary perhaps to deal with this in this fashion, Mr Chairman, is that my learned friend Ms Gabriel, has put it to the witnesses that they agree with what Taylor says only in so far as it suits them and only in so far as it supports their applications for amnesty.  I will demonstrate to you Mr Chairman, that that is far from the truth.  If you go through what he says, Mr Chairman, Taylor says: 	
"the aforementioned was an ANC activist, who was arrested on a mission to Natal."
Now first of all, Chairman, you will immediately observe the difference in the recollection  of du Preez and Wasserman on the other hand.  They were under the impression, I'm not quite sure what Wasserman said, but du Preez was under the impression that Taylor told them that he was arrested while he was in possession of a limpet mine.  I think Wasserman said something slightly different, but it matters not.  
"On a mission, being the placing of bombs, myself, Sam du Preez and Laurrie Wasserman realised, on questioning him, that there was no evidence against him which we could take to court although he himself admitted that his mission was the placing of bombs.  I decided that the only solution in this case would be to kill him."
Then he says: 
"We drove him to a railway line"
and further down he says:
"They, that is du Preez and Wasserman, were instructed to kill him and blow up his body to make it appear as if he blew himself up."
Now if du Preez's attitude was to rely only on the portions of Taylor's evidence which supported his version, in order to obtain amnesty, one must ask yourself, why did he differ from this opinion, from this evidence expressed by Taylor?  Because Taylor takes it upon himself that he told them to kill and blow up Blessing Ninela.  No, says du Preez, he's recollection's different.  He says he thinks that he decided about that.  Now on the probabilities Mr Chairman, it's not difficult to believe and I think Commissioner Lax put a question along those lines to du Preez, it's not difficult to - and Commissioner Bosman as well,  to believe that Taylor in fact told them to blow him up, it's not difficult to believe that.  So if du Preez wanted to be dishonest about it, and wanted to ride on the back of the dead as it was put to them, then this was his chance, Mr Chairman, which he never took and we say that that shows that there is nothing in that suggestion made by my learned friend.  But Mr Chairman, Wasserman and Du Preez told you that they believe that Taylor was confused with another incident.  That incident Mr Chairman, Taylor describes - Oh, I'm told you haven't got it before you Mr Chairman, which is a pity. relating to the killing of three unknown activists.  Perhaps I should just read it to you Mr Chairman.  He says, and this refers to the kwaMashu 3 and I will give you further references in a moment.
"I recall that on occasion I arrived at a farm in the Verulam area where Henti Botha was based, carrying on operations against terrorists."
So far so good.
"I was informed that they had three people that they detained who had admitted that they were involved in terrorist activities."
As you will see in a moment that is entirely incorrect, in a certain sense, but I'll come to that.
"And that it had been decided that these people were to be killed due to the fact that there was no admissible evidence available against them.  Subsequently we left from the farm and Botha, Sam du Preez and Laurrie Wasserman and other members whose identities I cannot remember, took the people out and went with them in the direction of a railway line in the vicinity of Verulam.  A while later they returned and the next day I heard that there had been an explosion on the railway line"
Which is not correct, Mr Chairman as I'll point out in a moment.
		"I have no personal knowledge as to whether the people were killed"
That's also entirely incorrect,
"but assume that they were blown up on the railway line and that this was the explosion I heard about."
	Now Mr Chairman, Wasserman and du Preez say they believe that's the incident which is confused here.  Now if you look at the evidence in regard to that matter presented by Botha in the Ndwandwe amnesty application page 707 and I would read it to you Mr Chairman.  Botha says this:
"Chairperson, we made contact with a unit in kwaMashu and one of the informers there infiltrated the unit in order to find information  to the identity, their logistics, their infrastructure and so forth.  he won their trust and they trusted him with information for planned operations.  On 18th November 1988 he reported that the railway line at Phoenix was targeted."
Now Commissioner Lax asked pertinently, this pertinent question, "Why take Ninela to Bulwer, while previously you did the same thing to others at Verulam, much closer?"  So, the point here is that the railway line at Phoenix was targeted.  Then Mr Chairman, Mr Visser:
"At that date, is that the 18th, is that correct, that the identification occurred?
Mr Botha,	"That is correct."
Then he continues:
"Arrangements were made with the informer that he would lead the unit to a specific place where we could arrest him"
and then Mr Chairman, what is important:
"Me, du Preez and Wasserman waited for them at the Avoca bridge.  We expected 4 members, only 3 turned up.  That made it necessary, Mr Chairman, that these three activists be killed at the spot which they themselves identified because otherwise a 4th person would have immediately known had they been killed at another location."
Over the page, Mr Chairman, we ask:
"Who were they"
and it's stated:
		"Sibosiso Ndlovu, Manzi Vilikazi and Elias Gift Ntjali"
Now they were the three people killed, Mr Chairman.
"What did you do there at the Avoca bridge?"
		"We arrested them and we went, we transported them with a kombi to a safe-house"
He tells us that that's the same safe-house where Ngobeso was kept, and I ask him:
"Was there anyone there, when you got there?"
		"Taylor waited for us at the safe-house.  At the safe-house we questioned the three of them."
Now you will recall Taylor says that in Ninela's matter, Wasserman and du Preez questioned Ninela with him, which they say they didn't and they said that he's confusing it with the kwaMashu 3.  Here is the evidence, Mr Chairman.  There they all questioned him.  Then I ask:
"When you arrested them, or captured them, did they have anything with them?"
		"Yes, Chairperson, they were in possession of 3 SPM limpet mines with the detonators.  The limpet mines were not armed."
		"Where were these limpet mines?"
		"They were in a carry bag."
Mr Chairman, that deals with two issues where it is quite clear that Taylor was confused.  The last issue you will find at page 714 of the evidence, at the bottom of the page where Botha says:
"Everyone, me, du Preez and Wasserman"
I'm sorry, that makes no sense, you've got to read the previous statement, he says they were each armed with a Scorpion, everyone, him, du Preez and Wasserman, then he goes on:
"Whilst Taylor stayed at the kombi, we took the three of them out of the kombi, removed the cuffs and each of us took them by the arm or by the trousers or by the shirt, I cannot remember where, and we walked in the direction of the railway line and thereafter they were asked to identify the spot which they did and they were there killed."
So, the third point is, Mr Taylor was present at that time.