Amnesty Hearings — Durban — 1999-08-11

MR VISSER: Yes.  Yes, that certainly is our impression.  We may be right, we may be wrong, but it accords with your impression.  Certainly from an interstateal agreement point of view there is no evidence which we are aware of that suggests that members of the Security Forces of this country could enter Swaziland and act unhindered, one rather gets the impression as you've just pointed out, that perhaps in government as you've pointed out, but certainly in the Police Force in Swaziland, there were certain people placed in certain positions that were sympathetic to the cause.
	And if one had to speculate, Mr Chairman, and I don't want to go too far off the beaten track, but if one had to speculate, one would imagine that if the Swazi Government had a real problem with a person who is incidentally also the enemy of the South African Government, they would have turned a blind eye to any action taken against such person in Swaziland.	
	But for all practical purposes, Mr Chairman, it's quite clear that the applicants in the present case went into Swaziland.  Although they entered legally through the border gate, what they did in Swaziland they did stealthily.  It wasn't as if there was a normal arrest, a taking to a police station, a booking of Mr Cele etc., nothing of the kind, he was abducted, it was done stealthily.
	Now Mr Chairman, Mr Cele is now taken out of Swaziland and as Vorster said to everyone's surprise, he was not amenable to work with the South African Police.  In fact, Vorster says that he thought that he had been misled by Goodwill.  Be that as it may, the fact of the matter is that there was - as was exactly the case with Portia Ndwandwe, suddenly a dilemma.  The dilemma was twofold in regard to releasing him, and that is the position of Goodwill.  
	And of course here the Security Branch had a man who was a high-ranking official by all accounts in MK, and which they would not be able to release because the whole point of the war was to eliminate, and I use that in the broader sense of the word, not necessarily killing, but to eliminate people in key positions in order to bring disarray in the organisation of the opposing enemy.
	So Mr Chairman, at Amsterdam it doesn't work, Vorster says that the intention was if he would be amenable to be recruited, he would be replaced in Swaziland as soon as possible for him to start operating.  Clearly, that makes good sense as well because once a person stays away fro any length of time, some people might start asking for explanations and for reasons.  So one can't find fault with that intention expressed by Vorster.
	Now at Amsterdam the plan does not come to fruition, he's taken down to Pietermaritzburg, he is by all accounts for the better part of the day, further interrogated and attempts were made to recruit him at the farm near Elandskop without success, Taylor then speaks to Vorster and Wasserman and says "We've got a problem and it seems to me that we're going to have to eliminate this gentleman because he doesn't want to co-operate.  We can't release him, we can't charge him and this seems to be the only way out".  And that is what then came to pass.  We don't need to go into the details, Chairperson, but you heard the somewhat emotional evidence of Mr Wasserman, of how exactly it came about and what happened thereafter.
	Mr Chairman, we submit with respect, that bearing in mind the bigger picture of the conflict, the political conflict of the past, and bearing in mind what Mr Cele stood for, not in the sense of his person, but in the sense of his organisation and particularly the fact that it was an MK member, that the act was proportional to the objective that was sought to be achieved, and that was first of all to eliminate him as a key person in the MK machinery and secondly, to protect the identity of Goodwill Sikhakane.
	Now Mr Chairman, we are in possession now of certain decisions that have come down.  I referred to them earlier.  Mr Chairman very briefly, referring to the decision in the Jack Cronje application, 2773/96, we would rely on particularly what was stated from pages 1 to page 4.  The original Amnesty Committee of which you are the Chairman, dealt with many of the aspects, Chairperson, which place the actions of members of the Security Forces in perspective.  And we don't need to read it to you again, Chairperson, you're very well aware of the decision, having been part of it, other than to say that we rely on - actually it's page 1 to 6, and we would ask you to incorporate the decision there taken also in - as far as the principles are concerned, in our application presently before you.
	Now Mr Chairman, there was at one stage some argument before another Amnesty Committee as to the binding effect or otherwise of amnesty decisions which had been handed down.  We were the first and we still are the first to concede that a Commission of Inquiry and also this particular Amnesty Committee is not a Court of law, where its judgments have precedence and have to be followed unless clearly wrong.  But Mr Chairman, and I'm certain I don't have to convince you of this point, one would expect that in the interests of reasonable administrative action, one would expect - and of course also from a point of view of certainty, one would expect other Amnesty Committees to follow what was stated in decisions of previous decisions.
	Mr Chairman, in that vein we refer you to the Khotso House incident amnesty decision for one reason only.  You will recall that until very recently we grappled with the problem of the wording of Section 20(2)(b), because on the plain wording it would seem to indicate that the legislature had in mind with its authorisation which it specifies in that sub-section, that the act, omission or offence had to be authorised before it could be stated that it fell within the express or implied mandate of the security member who acted.  And you will recall, Mr Chairman, that for a long time in our argument when we addressed this sub-section, we referred you to what appeared to us to be an inherent paradox, because the paradox being that amnesty may only be granted for acts and omissions which are also offences.  And certainly as you put it in the Kondile case to General Erasmus, no act existed at the time which authorised any policemen to kill Mr Kondile.  	Now in the matter of the Khotso House bombing, Mr Chairman, there is a part of the judgment which deals very specifically for the first time, with the wording of sub-section 20(2)(b).  I might just tell you how it came about, Mr Chairman.  We appeared a week or two before the judgment came out, or perhaps even longer, before this judgment came out, in Johannesburg in other amnesty applications before a Panel of the Amnesty Committee, which inter alia included Adv de Jager and Adv Gcabashe.  During that hearing the merits of, and the interpretation of (b) of Section 20(2) was argued, I may add, quite hotly so, and we then asked for permission, for time to prepare a proper argument and we did so and that argument was presented to that Committee.  As it turns out, Mr Chairman, it would appear that in the Khotso House matter this argument that was presented in another matter, as I've just explained to you, was included in this decision probably because two of the Commissioners, two of the four Commissioners in the Khotso House incident, were Adv de Jager and Adv Gcabashe.  
	So Mr Chairman, what we submit to you is that from page 5 of that decision, which you no doubt have, we submit you will find a correct interpretation of sub-section 20(2)(b), starting with authorities such as MKHIZE vs MARTINS in 1914AD referring to British law and running up to 1945AD in FELDMAN'S case, which appeared to us, with respect Mr Chairman, still the existing law in our country.  We are not going to repeat it, Chairperson, we merely wish to direct your attention to the fact that we believe that there is now a correct interpretation of that sub-section before you and we would ask you with respect, to follow that interpretation as presented in the Khotso House matter.
If you don't have a copy of the Khotso House decision, Chairperson, we can make one available.