Amnesty Hearings — Durban — 1999-10-09

MR VISSER: May I refer you to page 1 of Exhibit B??  Mr Chairman, perhaps with your leave I should perhaps address you in argument on the point that I mentioned yesterday in regard to what is expected of the Amnesty Committee in this regard.  Under the influence of directions of Commissioner de Jager we have attempted throughout to set out every single offence, Mr Chairman, and that has again happened here, for example on Evell's case, all the people in the room which stood by while Mrs Khubeka was being assaulted, might find themselves guilty of culpable homicide, at least of assault.  Perhaps we can ...(intervention)

CHAIRPERSON: I think we can leave it for the question of argument because it will also depend on circumstances, for instance if somebody applies for assault common and it turns out that it's murder, there might be a problem.  If he applies for murder, then to include a host of lesser offences that may be involved in the circumstances is easier, you know, so I think after the evidence we can deal with it.

MR VISSER: But the important thing here, Mr Chairman, and perhaps I should leave this for argument is the fact that they disposed of a body unlawfully, that is the crux of the matter and defeating the ends of justice.

CHAIRPERSON: Yes and it's also fairly common to give orders, if an order is granted, you know, the description of the offence and any other delict or crime that might arise there from, that sort of thing.

MR VISSER: As it pleases you, Mr Chairman.  That is the evidence which we wish to present from this witness.
NO FURTHER QUESTIONS BY MR VISSER

CHAIRPERSON: Thank you, Mr Visser.  Mr Nel, sorry just before you proceed, you say you're appearing for Mr Taylor who is now deceased?

MR NEL: That is correct Mr Chairman, this matter was ...(intervention).

CHAIRPERSON: Is there an application before us in regard to Mr Taylor?  Well, there's an application form, but ...

MR NEL: Mr Chairman, this matter ...(indistinct)

MR LAX: Sorry, your microphone.

MR NEL: Sorry, Mr Lax.  This matter we discussed during the previous hearings where Mr Taylor also featured when Judge Mall was presiding and he had suggested that the Committee will not hear an application for Mr Taylor, as he is deceased, but at the end and on conclusion of all the incidents where he was present and which he applied for amnesty for, I should submit in writing whether his application should be considered even though he's dead and especially in the light of the fact that his estate might still be held liable in some form of way and it's for those reasons that I have a mandate from the State to act on behalf of him, although he is late.

CHAIRPERSON: Yes, we can hear legal argument on that at a later stage.

MR NEL: There is just one, if I may ask Mr Botha a question with regards to Mr Taylor's application which is found in the bundle?

MR NEL: Mr Botha in bundle 1 on page 6 in the middle of the page Mr Taylor says in his application
"the woman was never assaulted and I am not aware of any injuries she might have sustained."
And what I want to put to you in this regard is that during the drawing up of Col Taylor's amnesty application, it was never my instructions that the woman was assaulted in any manner.  I just want to put that to you and then I wish to refer you ...(intervention).

CHAIRPERSON: Perhaps if he could comment on that.

HENDRIK JOHANNES PETRUS BOTHA: I accept Mr Taylor's memory must have failed him about this.

MR NEL: Mr Botha if I may refer you to the same bundle, bundle 1 page 28, the same part which Mr Visser has referred you to in paragraph 44 where Mr Mbane also says at the end of the page
"...by Myeza, Lawrie and Coetzer to somewhere."
I assume this might refer to my client with whom he is implicated, Mr Vusi Myeza, you are convinced that this did not happen?

HENDRIK JOHANNES PETRUS BOTHA: Chairperson, Mr Myeza was not there that day.

MR NEL: Thank you, Chairperson.
NO FURTHER QUESTIONS BY MR NEL

CHAIRPERSON: Mr van der Merwe, do you have any questions you'd like to ask?

MR VAN DER MERWE: Thank you, Mr Chairman.

MR VAN DER MERWE: Mr Botha, as you have indicated in your affidavit on page 3 that Capt Baker was the visiting officer from C1 in Pretoria.   My instructions are that Capt Baker will testify that a short period before this operation he arrived in order to have a look at the Vlakplaas contingency which was used over a long period here in Durban.  Is that correct, according to your recollection?

HENDRIK JOHANNES PETRUS BOTHA: Yes, that is my recollection, Chairperson.

MR VAN DER MERWE: And my instructions are furthermore that Mr Baker, they had several people in this area who helped with the tracing of terrorists and this specific operation was one of many which were ongoing at that stage.

HENDRIK JOHANNES PETRUS BOTHA: That's correct, Chairperson.

MR VAN DER MERWE: During the questioning which had taken place there, Mr Baker's interest was with the interrogation, was with the fact that he wanted to hear whether there was any information with regard to terrorists which could be acted upon.  He mentions Mr Frank McCarter who would have been supplied with the information.  Is that, according to your recollection correct?

HENDRIK JOHANNES PETRUS BOTHA: That would be so, Chairperson.

MR VAN DER MERWE: And then if we can continue to the assault that had taken place during the interrogation, my instructions from Mr Baker are that he is not sure how many times, but he moved in and out during this interrogation and that he did not see any of the assaults but that he accepted that he saw signs and that it was clear that pressure was placed upon this woman to co-operate at that stage.  Is that correct?

HENDRIK JOHANNES PETRUS BOTHA: Chairperson, I cannot recall at which times he was present and what he had seen.

MR VAN DER MERWE: And he also indicates that - I don't know if my learned colleague has a problem, Mr Chair.  I beg your pardon.  My instructions are also and he will testify later, that at the stage when he was inside the room, he took note of the fact that a black object, he does not know whether it was a pipe, but he does not recall in whose possession it was, but he did see a black object there and you are saying it was a sjambok?

HENDRIK JOHANNES PETRUS BOTHA: Yes, my recollection is that it was a sjambok.

MR VAN DER MERWE: And finally, Mr Baker has a recollection that at some stage he left with Mr du Preez to buy food so he was not present during the whole period and the fact that - he was not present at the time when Mrs Khubeka had a heart attack.  Do you have a recollection that he had left along with Mr du Preez to obtain food?

HENDRIK JOHANNES PETRUS BOTHA: I cannot recall.

MR VAN DER MERWE: Thank you, Chairperson, no further questions.
NO FURTHER QUESTIONS BY MR VAN DER MERWE

CHAIRPERSON: Thank you, Mr van der Merwe.  Mr Hugo, do you have any questions you'd like to ask the witness?

MR HUGO: Yes, thank you, Mr Chairman.

MR HUGO: Mr Botha, you I accept were a member of the Security Branch at C R Swart when this incident had taken place?

HENDRIK JOHANNES PETRUS BOTHA: That's correct, Chairperson.

MR HUGO: Did the Security Police at C R Swart have the services of a group of askaris locally in Durban at that stage?

HENDRIK JOHANNES PETRUS BOTHA: No, Chairperson.

MR HUGO: Was this one of the reasons why C1's members had been called in to be of assistance with the infiltration of the so-called ANC cell which existed at that stage?

HENDRIK JOHANNES PETRUS BOTHA: Not exclusively, Chairperson, this was services that they rendered from time to time in the vicinity.

MR HUGO: And as you know, I act for Mr Radebe and Mr Radebe will say that surrounding these incidents, his recollection is that the whole Vlakplaas contingency had been in Durban, tasked with several operations.  Can you recall that, that there were a number of people from Vlakplaas?