Amnesty Hearings — Cape Town — 2000-03-17

MR KHANOVITZ: But the same would not have applied to the CCB because as you've already pointed out, the military disciplinary code did not apply to the CCB?

ABRAM VAN ZYL: We had our own code of conduct and our own rules which was underlined in the Defence Force structure but we did not work in uniform so the uniform and specific units in the Defence Force's code of conduct was not applicable to us.

MR KHANOVITZ: Maybe if I can just put to you what was quite obviously a logical proposition.  The system of orders in Defence Force was governed by the Defence Act, are you aware of that?

ABRAM VAN ZYL: That is correct.

MR KHANOVITZ: The CCB could hardly have fallen under the Defence Act because the CCB went out of it's way to distance itself from the SADF and to set itself up separately as a private civilian company, correct?

ABRAM VAN ZYL: I do not know if I can agree with you one hundred percent because at the end of the day it doesn't matter how one looks at it, Mr Chairperson, the CCB was still a Defence Force structure.  Although we worked as civilian people outside our command structure at senior level was a General of the Defence Force, it was a General who was in command of Special Forces and we were a division of that special force.  In other words you certainly cannot take the CCB away from the Defence Force structure.

MR KHANOVITZ: Mr van Zyl but the simple point would be this, if Staal Burger gave you what you might wish to call an order or an instruction and you said "I'm not going to comply", you could not have been locked up in the military detention barracks, correct?

ABRAM VAN ZYL: In all probability not but I think I would have lost my job.

MR KHANOVITZ: Well you would have lost your work in the sense of any employee who doesn't obey an instruction from their boss?

ABRAM VAN ZYL: I believe that is the case, yes.

MR KHANOVITZ: You could also not have been charged under the Defence Act for failing to obey a lawful command from a superior officer?

ABRAM VAN ZYL: I do not believe so.

MR KHANOVITZ: You would also agree with me that even if there had been such a thing as a lawful command in the CCB, you would know from your experience in the South African Police Force that you are never obliged to obey an unlawful command?

ABRAM VAN ZYL: That is correct.

MR KHANOVITZ: And you will agree with me that no commanding officer would ever be in a position to give a lawful command to a soldier or policeman to go and murder a civilian?

ABRAM VAN ZYL: Mr Chairperson, under normal circumstances yes I would agree one hundred percent with that but I think the circumstances under which we functioned were not normal.  It was abnormal, it was a unit in the Defence Force who were specifically created to commit these crimes and to execute these unlawful instructions and in that context I would like to disagree with you.

MR KHANOVITZ: I don't understand your answer, Mr van Zyl, in what circumstances - let me preface this question by the following, how many years experience did you have in the South African Police?

ABRAM VAN ZYL: Ten years.

MR KHANOVITZ: During that time you would have received both training and experience in the area of criminal law?

ABRAM VAN ZYL: Mr Chairperson, I know what a crime is and I know what a crime is not.  The question to me was did I know, indirectly did I know that I was committing a crime?  Yes I knew it.  Why did I do it?  Because it was an instruction.  Why did I execute an unlawful instruction?  I did not see it as an unlawful instruction, Mr Chairperson, I saw it as a lawful instruction within the context of what the aims were of the CCB and in the context of the existence of the CCB.

MR KHANOVITZ: Well I can't accept your answer.  How is it possible for anybody to ever give a lawful instruction to murder someone?

ABRAM VAN ZYL: No I agree with you, technically it is impossible to do that, I agree with that one hundred percent but my evaluation of that instruction was not based on a legal technical basis, it was done in the context of we are busy with an undeclared war and you have heard this story a hundred times before this Commission.

MR KHANOVITZ: But Mr van Zyl, the word lawful has a legal technical meaning, there's no other way of understanding what is lawful other than by looking at the law?

ABRAM VAN ZYL: I agree with you.

MR KHANOVITZ: So would you agree with me you can never give somebody a lawful command to murder a citizen of the Republic of South Africa?

ABRAM VAN ZYL: I agree with that.

MR KHANOVITZ: You would also no doubt agree with me that if the uniformed members of the South African Defence Force had been free to commit crimes in order to disrupt the enemy there would have been no need for a unit such as the CCB?

ABRAM VAN ZYL: That is correct.

MR KHANOVITZ: You could have just sent a unit from the castle to Adv Omar's chambers, taken him out and shot him, correct?

ABRAM VAN ZYL: That is correct.

MR KHANOVITZ: Now as far as people who collaborated in CCB projects to eliminate people were concerned, it would seem to me - now I want to deal with certain general propositions with you, that if a person who was involved in one of these projects is asked to explain their reasons as to why they complied with an instruction say from a Regional Manager to kill a civilian, they could say one of the following things and I'm going to give you some options and ask you where you would fit yourself in, one of the things you could say is I was an unaware member of the CCB, in fact I was a gangster, I did it purely for money, I had no political objective.  You'll agree with me, that's one option?

ABRAM VAN ZYL: That is correct.

MR KHANOVITZ: Another option you could take is you could say I was an aware member of the CCB, let's assume it's a project to eliminate Frank Chikane, you could say I was an aware member until I received the instruction to kill Frank Chikane I'd never even heard of him, I never asked why he was being targeted because it wasn't my project but I still agreed to comply with the instruction, don't ask me whether Mr Chikane was an enemy of the State or not, it didn't concern me.  Do you agree that that's an option?

ABRAM VAN ZYL: I hear what you are saying.

MR KHANOVITZ: Do you agree with me that that's an option?

ABRAM VAN ZYL: That is an option.

MR KHANOVITZ: A third option is you can say I was an aware member, Frank Chikane was my project, I agreed to kill him because I personally believed that it was necessary to kill him to protect the people of South Africa against the total onslaught?

ABRAM VAN ZYL: I hear what you're saying.

MR KHANOVITZ: Alright.  Now I'm going to ask you in each of the cases that you've applied for amnesty, which of the scenarios applied to you and please, in answering the question I want you to consider what was happening at the time that you agreed to comply with the instruction, not anything you'd heard afterwards about these people?  In the case of Gavin Evans, can I ask you did you personally believe that Gavin Evans was an enemy of the State?

ABRAM VAN ZYL: My knowledge regarding Gavin Evans at that stage was somewhat limited, I did know that he was a reasonably prominent figure within the End Conscription Campaign.  We also had a little bit of information, let me put it in the following way, I also gathered some information in the hallways that he then had a connection or a very close connection with Johan Grosskopf - Hein Grosskopf, it was limited and I would say that in this case scenario number two would be applicable.

MR KHANOVITZ: Well your answer actually is in terms of scenario two because scenario two is one where you say "I didn't really know why this man was being targeted, I can't tell you whether he was or wasn't an enemy of the State, I just agreed to comply with an instruction that came from Staal Burger"?