Amnesty Hearings — Durban — 1998-11-13

MR NGUBANE: You were set to catch him?  I mean when I say you, the Security Branch were set to catch him, is that right?

MR BOTHA: No Chairperson, we gather intelligence with regards to his activities.  Witnesses and evidence is one, and information is another aspect.

MR NGUBANE: Immediately after his acquittal, there was no intention on your part to arrest Nxiweni, is that your evidence?

MR BOTHA: No Chairperson.

MR NGUBANE: Do you know whether Taylor or Wasserman wanted to arrest him or not?

MR BOTHA: No Chairperson.

MR NGUBANE: According to your intelligence, was Mr Nxiweni a man who was hard to find?

MR BOTHA: No, he was available or he lived at the Allan Taylor residence.

MR NGUBANE: I see.  When you arrested Nxiweni, he had committed acts in South Africa, is that correct?

MR BOTHA: That is correct.

MR NGUBANE: And he also gave you information about the acts of terror, is that correct?

MR BOTHA: That is correct.

MR NGUBANE: And you decided not to prosecute him, is that correct?

MR BOTHA: That is correct.

MR NGUBANE: And during the interrogation, he was not assaulted badly, is that right?  It was just a slap on his face and a few punches on his stomach, according to your evidence?

MR BOTHA: That is correct.

MR NGUBANE: And when he admitted, didn't you think of taking him to the Magistrate to make a confession?

MR BOTHA: No Chairperson, I did not consider it.

MR NGUBANE: But that was an option that was open to you, do you agree?

MR BOTHA: That was a possibility, but I decided not to do it.

MR NGUBANE: You decided to act illegally in spite of the fact that you could get a confession out of him, and convict him on the strength of that confession?

MR BOTHA: Chairperson, I already gave evidence this morning to that effect.  There were reasons as to why I did not consider prosecution.

MR NGUBANE: I see.  Now you say that you had problems with convicting people in the Durban court.  Do you mean the Magistrate's court or the High Court, what is the position?

MR BOTHA: We had troubles with the legal process, yes.

MR NGUBANE: Yes, what troubles were those?

MR BOTHA: From the first instance of arrest in terms of Section 29.  Our normal questioning would have been hampered by interdicts that they would have gotten and they would have wasted out time by civil actions, instead of the time that we could spend in the investigation of these matters, witnesses who refused to testify, intimidation.

MR NGUBANE: But according to Annexure A, I see you were successful in some cases in convicting people for terror acts?

MR BOTHA: That is correct Chairperson.  Would you like to point out those cases?

MR NGUBANE: No, no.

MR BOTHA: Then you would see that most of the matters have to do with the Ramlakan case.

MR NGUBANE: And the McBride case?

MR BOTHA: McBride's case, yes.

MR NGUBANE: And the Zondo case?

MR BOTHA: This is together with the Ramlakan matter.

MR NGUBANE: Well, our understanding is that these are two different matters so far.  Well, be that as it may, the point of the matter, the point that you have made is that you didn't want to prosecute people because you would get interdicts and so on, is that correct?

MR BOTHA: In his case, it was the consideration, yes.

MR NGUBANE: In other cases after the Nxiweni matter, did you succeed with prosecuting people successfully and have them convicted?

MR BOTHA: There may have been some such cases yes Chairperson, every case was handled on its own merits.

MR NGUBANE: And in those cases, you were not scared of these interdicts that you are talking about?

MR BOTHA: Once again Chairperson, every case was dealt with on its own merits.  I can just testify to the matters where I was involved.

MR NGUBANE: No, the Nxiweni matter, you had him for about two days, is that correct in your custody?

MR BOTHA: That is correct.

MR NGUBANE: How did you evaluate the merits within this short period that this man would not be convicted on the strength of the merit, we are going to get the interdicts?  I don't follow you?

MR BOTHA: Chairperson, I already took the decision that Nxiweni was abducted, that he would be eliminated.  My decision regarding that, looking at his acts, was enough for me.

MR NGUBANE: I see.  So you didn't care whether he admitted to the offences, whether he was prepared to make a confession, you just took a decision to eliminate him?

MR BOTHA: That is correct Chairperson.

MR NGUBANE: So the option of prosecuting him, doesn't feature here?  You didn't ...

MR BOTHA: I have already said so Mr Ngubane.

MR NGUBANE: Okay.  I put it to you sir, that you did not weigh any options when it came to Nxiweni.  You continued with your dirty tricks and decided to eliminate him.  Do you agree?

MR BOTHA: It was my decision to eliminate him, Mr Ngubane.

MR NGUBANE: Your submission at paragraph 9 of your application, the last paragraph that you discussed various options with Taylor including his continued incarceration with the aim of prosecuting him, is false?  That is his amnesty application Mr Chairman.

CHAIRPERSON: What page?

MR NGUBANE: That is page 9, the last paragraph Mr Chairman.

MR BOTHA: Mr Ngubane, could you repeat the question please.

MR NGUBANE: What you wrote there in your amnesty application that you and Colonel Taylor, you had the following options, you considered the following options, that is the options including his continued detention and prosecution and you found that it was going to be useless, in the light of what you have said, that is incorrect, is that right, it is a lie?

MR BOTHA: No Chairperson, it is not a lie.

MR NGUBANE: Bhila was arrested, what date was it, the 4th of November 1988?  Sorry, that is Nxiweni?

MR BOTHA: It was the 4th of November 1988, that is correct.

MR NGUBANE: At what time approximately did you take him to C.R. Swart Square if you can recall?

MR VISSER: Mr Chairman, he never gave evidence that he took him to C.R. Swart Square.

MR NGUBANE: Sorry, if it is not C.R., into your custody where you started questioning him?

MR BOTHA: It was in the afternoon Chairperson.

MR NGUBANE: Okay, and you kept him there, interrogating him, is that correct?

MR BOTHA: That is correct.

MR NGUBANE: Until when?

MR BOTHA: Until the evening, when I went to bed.

MR NGUBANE: Yes, what was the time approximately when you went to bed?

MR BOTHA: It was about twelve o'clock or so.

MR NGUBANE: And you say he was a difficult man, he was not cooperating, that is why you had to slap him and give him a few fists?

MR BOTHA: That is correct.

MR NGUBANE: After you had, well, did you assault him at the initial stages of the interview or later on?

MR BOTHA: I would say right from the start.

MR NGUBANE: Did he then cooperate and tell you about instances of terror?

MR BOTHA: Chairperson, with any person who refuses to answer questions, but after you hit him, he remembers better, and then he will give you details.

MR NGUBANE: And that took about, well you say you arrived there in the evening where you questioned him, is that correct?

MR BOTHA: That is correct.

MR NGUBANE: Can you place some time?

MR BOTHA: It was dusk when we arrested him.  Dusk around here would be around half past five, six o'clock.

MR NGUBANE: All right, so you interrogated him for approximately six hours?

MR BOTHA: Negative.  I did not interrogate him continuously.

MR NGUBANE: Yes, for how long did you interrogate him?

MR BOTHA: Uninterrupted during that period until I went to bed.

MR NGUBANE: I didn't get your answer.

MR BOTHA: I said with pauses in the interrogation, because during  that same period Du Preez and Van der Westhuizen went to the scene as Rosborough where the explosion took place.  They came back and reported to me.
	What I want to say is he was not continually interrogated.

MR NGUBANE: Yes, you were left behind with him, is that correct?

MR BOTHA: That is correct.