Amnesty Hearings — Nelspruit — 1999-02-04

MR O'FARRELL: That is incorrect, sir.   As I already stated earlier, we were told that we would meet the army at the premises.

MR BLACK: Meet the premises?

MR O'FARRELL: Yes.

MR BLACK: But you did not know where the premises were?

MR O'FARRELL: That is correct, sir.

MR BLACK: Now how were you to meet the army at the premises, when you didn't know where the premises were?

MR O'FARRELL: We were told to drive along the main street, the premises was along the main street and the army would be waiting for us.

MR BLACK: Okay.   You didn't meet the army?

MR O'FARRELL: No, that is true, sir.

MR BLACK: And if one looks at the affidavit, on paragraph 9 of Nel, it says
"Ons het kaptein Kaggelhoffer per radio gekontak en hom meegedeel dat lede van die Voertuig Diefstal Eenheid, onder andere Van der Spuy, te Blok B, Tonga, besig was en later by hul patrollie te Blok B sou aansluit."
That's the affidavit of Captain Nel, or I don't know what his rank is, sorry.

MR O'FARRELL: He's a corporal.

MR BLACK: Corporal.   Right.   Now, I just want to put it to you that, as far as you were concerned, how did you know that these were the correct premises that you were on?

MR O'FARRELL: Sir, it was pure coincidence, as I also stated in the supreme court case, it was by mere chance that we did get to that address with the - as I said, it looked a bit suspicious in that area, with four vehicles standing under a tarpaulin netting.

CHAIRPERSON: But isn't it your evidence that you didn't know that that was the place which you had earlier on been requested... (intervention).

MR O'FARRELL: Ja, that is correct, madam, it was... (intervention).

CHAIRPERSON: ...to go to and that you saw cars that looked suspicious and that's what made you to get into those premises?

MR O'FARRELL: Yes, madam, just to... (intervention).

CHAIRPERSON: It's not coincidental?

MR O'FARRELL: Yes, madam, as - I just want to clarify something for Mr Black, is that we were told to meet the army in the main street, that's my evidence where I stated we drove up the main street until the main street ended, we then did a U turn at the top of the main street, not finding the army, we then proceeded back towards the Tonga Road, upon which we then saw these vehicles standing on these premises, under this tarpaulin netting, at which we just stopped by chance.   The Mazda 626 in question upon which we were initially asked to inspect was unfortunately behind the house, so only once we had got out of our vehicles and were proceeding onto the premises was I able to see the 626 behind the house.

CHAIRPERSON: So it wasn't because you saw the 626 Mazda that you had earlier been told that you had to go and attend with a view of investigating because it had been stolen, you didn't stop because you saw the Mazda?

MR O'FARRELL: That is correct, madam.

MR BLACK: Now, you see, the evidence was that Sergeant Van der Spuy started to inspect the BMW when this incident took place, that he opened the door?

MR O'FARRELL: That's correct.

MR BLACK: And that's without any permission or a search warrant having been shown to Mr Sambo?

MR O'FARRELL: Sir, that's said earlier, is, as you should know, and this is Criminal Procedure Act, within a 10 kilometre radius of any international border, allowing us to search any premises without a search warrant.   We also had reasonable suspicion, on the grounds that the vehicle, the four vehicles, expensive vehicles in that area, that there was reasonable grounds to search the vehicles.   We also, as I already stated, Warrant Officer Van der Spuy also spoke to the only person we could find on the premises, informed him that we were going to check the vehicles, and there was no objectoin by said party, so we continued our inspection.

MR BLACK: So are you suggesting now that the late Mr Van der Spuy actually spoke to Mr Sambo and, or... (intervention).

MR LAX: His evidence, Mr Black, is that he spoke to the person who was sitting on a pile of sand, or busy on a pile of sand.

MR BLACK: Did you inquire who this person was?

MR O'FARRELL: No sir, as I already stated earlier, Warrant Officer Van der Spuy approached the gentleman, and I could not hear what the gentlemen were saying between them.

MR BLACK: Okay.   But was Mr... (intervention).

CHAIRPERSON: How can you therefore say that he spoke to someone and that person did not have any objection towards you searching the car?

MR O'FARRELL: Madam Chair, my mere assumption there is the gentleman didn't react in any form.   He in no way answered, as far as I can tell, didn't answer Warrant Officer Van der Spuy, nor did he rise in any way to object, so I just assumed that the gentleman had no objection, from my mere observations.

MR BLACK: Did you see... (intervention).

CHAIRPERSON: But I thought you... (intervention).

MR BLACK: Sorry.

CHAIRPERSON: ...I thought you said you could not hear what the conversation went like between Van der Spuy and the gentleman?

MR BLACK: Yes, that is correct... (intervention).

CHAIRPERSON: I'm a little confused there, won't you just clarify that issue, was there such a conversation, did this gentleman say anything, by conversation what do you really refer to, are you only referring to what was said by Van der Spuy?

MR O'FARRELL: Yes, madam, I'm just basically saying the - I'm not - as I said, he spoke to the chap, that was it, it wasn't really a mutual conversation between both parties... (intervention).

CHAIRPERSON: It was only one person speaking and the other person did not respond?

MR O'FARRELL: That is correct, madam.

CHAIRPERSON: And you merely are assuming and speculating that there was no objection?

MR O'FARRELL: That is correct, madam.

CHAIRPERSON: You cannot say that as a matter of fact?

MR O'FARRELL: That is correct, madam.

CHAIRPERSON: Thank you.

MR BLACK: And did you see Mr Sambo, Voice Sambo, on the premises before opening the doors, say, of the BMW?

MR O'FARRELL: He only entered the gate once Warrant Officer Van der Spuy had indeed opened the door of the BMW, did he enter the premises through the gate.

MR BLACK: Where was the Mazda 626?

MR O'FARRELL: Oh sir, you take my - this happened six years ago, I'm unfortunately not too sure on that question.

MR BLACK: No, but that was a specific vehicle you were looking for?

MR O'FARRELL: Oh, the 626 of his?

MR BLACK: Yes.

MR O'FARRELL: As I said, it was approximately, there was one empty plot next to us, and then the Mazda 626 was behind the house where he was initially sitting.

MR BLACK: Where you could see it?

MR O'FARRELL: That is correct.   As I said, I speculated that it was a 626, because of the shape of the vehicle.

MR BLACK: But he was, you say he was sitting at the 626?

MR O'FARRELL: That is correct, sir.

MR BLACK: So you could see him?

MR O'FARRELL: Yes, I could see him.

MR BLACK: When you went to this vehicle?

MR O'FARRELL: Yes sir.

MR BLACK: And you didn't ask him, because here's the person sitting on the 626, which you thought was a 626, the vehicle that you were actually looking for, specifically looking for, you didn't go to that vehicle, you didn't ask the person sitting there whether this is the vehicle, or did you just act, with due respect, in an almost, these Draconian sort of regulations which you've just explained to us now, that you can walk onto premises and search, provided they're within a certain area?

MR O'FARRELL: Sir, in that regard, you must talk to the people who wrote the Criminal Procedure Act, not myself.   We, however, did set priorities, we either dealt with four vehicles or we dealt with one vehicle, so we continued inspecting the four.

MR BLACK: Ja.   No, I'm not - perhaps those regulations are correct, what often is is the implementation of those regulations.   So at no stage did you think that, "There's the vehicle we're actually looking for, let me go and see how is that vehicle perhaps connected with these other four"?