Special Hearings — Armed Forces Hearings — 1997-10-09

UNKNOWN: I believe it's my turn now.  Mr Chairman the name is Louis Visser.  I am instructed by Wagener, Muller and du Plessis, Pretoria attorneys.  We are briefed to act on behalf of General Johan Coetzee, General Johan van der Merwe, Brigadier Alfred Oosthuizen and Brigadier Willem Schoon.
 Mr Chairman if you would allow me, very shortly, there are one or two points of concern which we want to raise in the hope that it may clear the air and clarify matters to the extent that we could deal with the matters in hand expeditiously.
 Mr Chairman it refers to the Section 29 notices which my clients have received, at page 2 there are two paragraphs as you are well aware, the first and the second paragraphs.  Mr Chairman we appreciate your opening remarks this morning about the intentions of the Commission in what they are attempting to establish with a view of our future.  We were heartened by heartened by the passionate speech made by your Committee member, Mr Ntsebeza, yesterday afternoon, and of course we would like to accept, and we do, the bona fides of the members.  
 But you are well aware, Mr Chairman, that there has been in the past some resistance from the security force members to participate in the process which was foreseen by the legislature with the promulgation of our Act.  May it be known Mr Chairman, had it not been for persons like General Johan van der Merwe we would certainly not have seen as many of the old SAP members applying for amnesty as we have seen now.  
 But Mr Chairman the unfortunate reality is that all the doubts have not been removed.  There seems to be still a lingering perception that there is a witch-hunt going on, and Mr Chairman some of that may be justified, some may be unjustified. Why I mention this is that the clients of mine who are here today have come forward, not because they were subpoenaed to be here, but because they want to participate, and they have shown that by also applying for amnesty and made, according to them, a full disclosure of what they know about our checkered past of this country.
 Mr Chairman we wish to just make one point of this, and that is that we perceived some of the questions, and this is not intended as criticism but as a fact, we perceived some of the questions directed at some of the witnesses yesterday to be more in the nature of adversarial questions than elucidatory.  It does not serve to quell the fears of the persons for whom I appear if they suddenly find themselves here in an adversarial position, and that is why we do appreciate your opening remark that we are here to enquire Mr Chairman.  If we could do it on that basis certainly I believe that the witnesses will be more forthcoming and more helpful.
 Mr Chairman we have a particular problem with paragraph 2.  Before I go to paragraph 2 may I just say, to enforce, reinforce what I have just stated, you are aware that General van der Merwe has given evidence on three occasions already, twice in public, about what is really contained in paragraph 1.  General Johan Coetzee has made full representations, as has Brigadier Schoon, and that is why Mr Chairman we suggested the order, so that if any of these gentlemen could be of assistance to you through Mr Goosen to elucidate further matters for your clearer understanding of any issue they are here to do so and they are quite happy to be of assistance.
 Paragraph 2, Mr Chairman, in our view falls clearly outside the purview of your authority.  It's a matter which is to be dealt with by the Amnesty Committee.  The Amnesty Committee must in each case consider all the facts and circumstances surrounding every particular amnesty application before it.  
 Mr Chairman you may not know this but I can tell you that ever since 1914 our Appellate Division has grappled with the complex legal principles applying to scope and authority, we are afraid Mr Chairman that our clients may be asked questions which will place them in a position of being adjudged in regard to other applicants in other amnesty applications regarding what they perceived to be their orders and their instructions and what they perceived they might have done in our outside their authority.  Because, Mr Chairman, the reality of the situation is paragraph 2 filters through to virtually, directly or indirectly, to every single application which the Amnesty Committee will hear because they are charged with going into those issues.
 So Mr Chairman we are simply saying that we must tread with caution that the evidence elicited from the witnesses here today does not prejudice other applicants and in any event Mr Chairman when they are asked about other instances or hypothetical situations their answers could at most, and at best be hypothetical, with respect.
 Mr Chairman I am virtually finished.  As far as the amnesty applications are concerned which deal with cross-border applications there is a very real problem.  May I remind you, Mr Chairman, that letters have exchanged hands and Dr Boraine the Chairman today has, and we say quite rightly so, stated categorically on the 8th of May by letter, that the question of extradition is a matter that falls outside the scope of this Committee and we appreciate that, it's got to be so.  But please Mr Chairman you must also appreciate the predicament in which my clients find themselves, and perhaps Mr Williamson as well, but I don't want to speak on his behalf, to answer questions regarding cross-border raids when at the end of the day applying for amnesty, as they did, as some of my clients did, may be a useless exercise because they may not receive protection, and in fact this is the way it seems that it is going.
 Mr Chairman why I raise this issue is that on the 2nd of July Mr Hanif Vally, the legal representative of this Commission, wrote a letter and it says Mr Chairman, 
"We have raised the issue...."
the issue is cross-border raids and our applications for amnesty -
"...with both Archbishop Tutu as well as Dr Boraine.  Both have emphasised that no undertakings were ever given in that regard".
Well that may or may not be so, I am not going to go into that, but the letter then goes on to say that -
"...they undertook to raise the issue with the President and the Minister of Justice which they have duly done".
Now Mr Chairman I don't in open committee want to ask you for a reply in that regard or an explanation unless you of course want to give it, but what we say is that it would be helpful to know that there are some reassurances coming from somewhere because as matters stand now, and according to what we hear Mr Dullah Omar saying, it appears that there is no guarantee at all that applications for extradition, that any attempt would be made not to extradite and you can understand the situation Mr Chairman.
 So that with that in mind, and I am finished Mr Chairman, with that in mind I would appeal to Mr Goosen and to members of the Committee to bear those issues in mind when they direct questions.  But for the rest my clients are here and they are ready to proceed with their evidence Mr Chairman.