Amnesty Hearings — Port Elizabeth — 1997-09-24

HERMANUS BAREND DU PLESSIS: I cannot comment on that, I don't think that was the testimony that they were given tablets to drink.  I think it was probably put in coffee or cold drink for them to drink.

MR PHOSA: Anyway I am skipping the details for obvious reasons.  I know, we know what happened the gory details.  Now, you as an individual, had a number of days at least two days, to reflect upon the nature of your action, the consequences and how terrible it was, isn't it?

HERMANUS BAREND DU PLESSIS: That is correct, Your Honour.

MR PHOSA: You had these people before you and you could see that they are unsuspecting that they are about to be killed?

HERMANUS BAREND DU PLESSIS: That is correct.

MR PHOSA: You probably were even giving them food to give the resemblance of normality?

HERMANUS BAREND DU PLESSIS: It was unfortunately so, Your Honour.

MR PHOSA: One of you got diesoline, or petrol, whatever.  One of you got petrol, isn't it?

HERMANUS BAREND DU PLESSIS: Diesoline.

MR PHOSA: And who did so?

HERMANUS BAREND DU PLESSIS: Mr Nieuwoudt did this.

MR PHOSA: Who instructed him to do that?  Who instructed him to do that?

HERMANUS BAREND DU PLESSIS: Your Honour, I can't remember who exactly said that.  It could have been me.

MR PHOSA: At night, were they locked up in the cells or were they just allowed to sleep as if nothing had happened?

HERMANUS BAREND DU PLESSIS: No, they were kept in the house not in the cells.

MR PHOSA: Were they allowed to sleep?

HERMANUS BAREND DU PLESSIS: They did sleep, Your Honour.

MR PHOSA: Having had supper, I suppose?

HERMANUS BAREND DU PLESSIS: That is correct.

MR PHOSA: Did they even ask at all, hey, what are we being kept for here?  Didn't they question, it appears to me they were the talkative type, didn't they say to you why are you keeping us?

HERMANUS BAREND DU PLESSIS: Your Honour, we did interrogate them, so-called, it is possible that they had asked this, I would believe that they had and I believe we would have replied to them, but I can't remember what the answers were.

MR PHOSA: I suppose you were not even taking proper notes or were you taking any notes at all of their answers?

HERMANUS BAREND DU PLESSIS: No, we didn't.

MR PHOSA: All I am trying to show Mr Du Plessis, in conclusion is that you and your colleagues, acted cruelly in circumstances where you had ample opportunity to correct your conduct, in other words you understand me, I am not saying it wasn't an accident or acting on the rush of the moment, there was ample opportunity to correct your conduct and you didn't stop yourselves.

HERMANUS BAREND DU PLESSIS: That is correct.

MR PHOSA: May I just have some time, sorry.  Right, then just what I put to others before.  The real problem that you had at all times was that you were afraid that if you are detected to have killed them, you would be charged.
	I am going to give you a long thing, because I think you will answer with the other, you will be charged and if you are convicted, you will be sentenced and that sentence in those days might even be the death penalty, isn't that so?

HERMANUS BAREND DU PLESSIS: That is correct.

MR PHOSA: And notwithstanding how much you didn't care about killing, you did not want to die?

HERMANUS BAREND DU PLESSIS: That is correct.

MR PHOSA: Thank you Mr Chairman.

ADV SANDI: Mr Du Plessis, it seems from what you have said that when you had to take this decision to eliminate Mthimkhulu and Madaka, it was one would say, it was a turning point in your career, in the history of your career as a policeman, am I correct to think that?

HERMANUS BAREND DU PLESSIS: I think the turning point was the Kondile matter.

ADV SANDI: You found yourself in a situation where the ordinary law could not assist you to deal with the problem?

HERMANUS BAREND DU PLESSIS: That is correct, that is what I thought, Your Honour.

ADV SANDI: A drastic step had to be taken namely elimination?

HERMANUS BAREND DU PLESSIS: That is correct.

ADV SANDI: Is there any other step which you could describe as drastic, which was taken to try to deal with this situation which you depicted this morning?

HERMANUS BAREND DU PLESSIS: No, I cannot remember of another.

MR PHOSA: I am through with my cross-examination, thank you.

MR PHOSA: .

CHAIRPERSON: Mr Brink, have you got questions you want to put?

MR BRINK: Mr Chairman, I have one or two Mr Chairman.

CHAIRPERSON: Would you rather do them now or after the adjournment?

MR BRINK: I think after the adjournment.

CHAIRPERSON: Very well, we will now take the adjournment till quarter to two.
COMMISSION ADJOURNS

HERMANUS BAREND DU PLESSIS: (s.u.o.)

CHAIRPERSON: Mr Brink?

MR BRINK: Thank you Mr Chairman.  Colonel, early in your evidence you made mention of a statement which Mthimkhulu had made which you said couldn't be used for some legal reason, which I will come to later.  Was that a statement in terms of which he confessed to some offence?

HERMANUS BAREND DU PLESSIS: No, Your Honour.

MR BRINK: What was the contents of that statement?

HERMANUS BAREND DU PLESSIS: Your Honour, it is impossible for me to remember the contents, but he had replied to questions put to him.  But nothing positive which incriminated him legally.

MR BRINK: Oh, I see, I may have made a mistake in my note, but I have a note saying his statement couldn't be used because it was made under force or duress?

MR BOOYENS: Mr Chairman, if I might perhaps come in here.  That actually came from me.  You would recall that all statements made under Section 6 of the Terrorism Act, would by reason of law, not be admissible in evidence.  That was that statements that they had to be made to the satisfaction of the Commissioner or otherwise until his detention can serve no further purpose.
	I think that may be my responsibility more than my client's, he just confirmed that.

MR BRINK: Yes, I am obliged to counsel.

MR PHOSA: I don't know if this is an appropriate stage to argue this, I do not want to argue that point, I may not be here when it is raised later.  The Eastern Cape Division had a different view on that.
	They actually were the ones who were using those statements.  Now, if it is going to be a matter of importance, it would have to be researched.  We used to fight and find that the Eastern Cape Branch was actually making use of such statements.

MR BRINK: Colonel, you obviously visited Mr Mthimkhulu when he was in detention?

HERMANUS BAREND DU PLESSIS: I do believe so, yes.

MR BRINK: Can you not remember?

HERMANUS BAREND DU PLESSIS: I cannot recall it now, but I believe that I had visited him.

MR BRINK: You can't remember what his physical condition was at any stage of his detention?

HERMANUS BAREND DU PLESSIS: I think his physical condition was good, if it was bad, it would have occurred to me that it was so.

MR BRINK: You have obviously had sight of the statement which he made to his Attorneys?

HERMANUS BAREND DU PLESSIS: That is correct.

MR BRINK: And serious allegations were made against both you and Mr Nieuwoudt.

HERMANUS BAREND DU PLESSIS: That is correct.

MR BRINK: But I take it, you deny those allegations?

HERMANUS BAREND DU PLESSIS: That is correct.

MR BRINK: Now, I must put to you ... (intervention)

CHAIRPERSON: I have been asked to request people in the middle of the audience, to either move to the front or the back because there is a piece of the roof that is loose in the middle of the building.  If you look around now, you can see the young lady there and she can indicate to you where you should move away from.
	Right, we will continue if we can please have quiet.

MR BRINK: Colonel, during the course of the discussions which you had with your co-applicants in April, is it your evidence that the fact that (a) a summons claiming damages as a result of alleged poisoning was not discussed?

HERMANUS BAREND DU PLESSIS: That is correct.