Amnesty Hearings — Cape Town — 2000-11-21

BUSISISWE MOKOENA: Yes, that happened.

MR MALAN: Can you remember the time of day?

BUSISISWE MOKOENA: I think my grandfather had just gotten home from school  I think he used to leave school at round about 12.  My school was not far from where we resided, but my grandfather used to pick me up from school and he would just drop me off at home.

MR MALAN: And you say you saw flashes of light.  If it's in the middle of the day and they take a photograph of a house, why would one use a flash?

BUSISISWE MOKOENA: I spoke about cameras because I saw them.  They were these big cameras and the windows of the bakkie were tinted.  The window was slightly opened and the lens of the camera was protruded through the window, during which time a picture was taken.

MR MALAN: But can you - what struck me was that you remember flashes.  Was that a mistake?  Was it just you saw the camera?

BUSISISWE MOKOENA: I saw the camera and on seeing the camera being pointed towards the residence, I concluded that they were taking pictures of the homestead.

MR MALAN: Thank you.

JUDGE MOTATA: Ms Mokoena, did other people call your grandfather Dick Mtsweni Nkulu, because of his age, or was it just the family that called him Nkulu?

BUSISISWE MOKOENA: It had become common practise to call him Nkulu because he was an old man.

JUDGE MOTATA: When you eventually managed to get out of the window, what happened to Thebogo?

BUSISISWE MOKOENA: He remained inside the one room that we used to use, that's where I left him.

JUDGE MOTATA: Did he survive?

BUSISISWE MOKOENA: Yes, he did.

JUDGE MOTATA: Thank you Chairperson, I've got no further questions.

CHAIRPERSON: Yes, thank you, you are excused.

BUSISISWE MOKOENA: Thanks.
WITNESS EXCUSED

MR BERGER: Chairperson, the last witness was going to be Ms Rose Machoabane, her statement is at pages 8 to 10 of bundle B.  Unfortunately this morning she received news that her mother has passed away and she has gone home.  She's not able to come and give evidence, so unfortunately we will not be leading her in evidence.  That then concludes the evidence from our side.

CHAIRPERSON: So there's no more witnesses?

MR BERGER: No more witnesses.

CHAIRPERSON: Mr Steenkamp is there any other matter on the role?

ADV STEENKAMP: Mr Chairman, there's only the application for Coetzee.

CHAIRPERSON: When will we continue with that?

ADV STEENKAMP: Mr Chairman at the moment I don't know what the position is because he's Mr Wagener's client.  Apparently Mr Coetzee is available on short notice.  I don't know if he's available now, but that's the only matter on the roll.

CHAIRPERSON: Well that brings an end to a long hearing.  We've discussed the matter amongst the Panellists and we're quite satisfied that there's been an accumulation of evidence upon which we can make a finding, unless anybody has anything else to add, I don't propose to hear anything else.  Is there anything else anybody wishes to add?

MR COETSER: All I'd like to say Mr Chairman is if there are any aspects in relation to Mr Olifant's application that you would like to hear me on, then I would invite that, otherwise I'm happy.

CHAIRPERSON: Thank you.  You appeared for Mr Olifant only?

MR COETSER: That is correct.

CHAIRPERSON: Mr Visser?

MR VISSER: Chairperson, obviously it would depend on what the Panel has decided.

CHAIRPERSON: Well, we haven't decided anything yet.

MR VISSER: Yes.  Clearly the Panel has heard the evidence Chairperson and from questions put by the Panel, we are confident that the Panel has come to proper grips with the evidence and the issues and requirements set by the Act.  We ask you though that if there is anything that you might consider against the applicants for whom I appear, that you would alert me to that and that we would be given an opportunity to reply to that, but Chairperson, all that I have to add is that really this is a very straightforward application and we don't have anything to add of fundamental concern.

CHAIRPERSON: What are you clients, let's see first.  You appear for who?

MR VISSER: Coetzee, Pretorius, de Jager, Steyn ...

CHAIRPERSON: You went too fast.

MR VISSER: Sorry, Chairperson.  If you looked at Bundle 1 ...(intervention)

MR MALAN: Is it not all but Olifant and McPherson?

MR VISSER: Absolutely, yes, it's eight of them.  Chairperson, might I just add that as far as the issue of what they are applying for amnesty for is concerned, they're all clearly associated and identified with the fact that there was going to be an attack, they all clearly there, after the attack, did not make public what their knowledge about the attack was, so we submit that as far as association is concerned in the broader sense and as far as defeating the ends of justice are concerned, all these applicants were clearly involved.  What might be ...(intervention)

CHAIRPERSON: But aren't they at the very best guilty of conspiracy?

MR VISSER: Yes.  I referred accumulatively to an act of association, because there can also, if one wanted to be technical, there can also be the question that they might be guilty of some crime in a sense of attempt, Chairperson.  You will recall that the evidence was, especially by Pretorius, that they gave evidence about other people as well, Tim Williams and so on, who were not struck and that would have been an attempt.

CHAIRPERSON: You see, the legal position, Mr Visser and I'm sure you'll agree with this, the goals or offences were committed in Botswana.

MR VISSER: Yes.

CHAIRPERSON: It wasn't South Africa.  All that they did in South Africa in which jurisdictionally we need to examine, is the conspiracy, "die beplanning".

MR VISSER: Yes.

CHAIRPERSON: And of course the defeating of the ...

MR VISSER: The ends of justice.  But we must bear in mind, Chairperson, that the Act goes wider and gives you the power to give amnesty also in regard to delicts and the delicts of course, that is something that hasn't been dealt with by our authorities before and that would obviously be relevant Chairperson, so as far as the delicts are concerned, that would include murder as well as damage to property.

CHAIRPERSON: Mr Visser, people who are foreigners to South Africa, are not, in my view, bound by this Act.

MR VISSER: No, that's true.

CHAIRPERSON: If necessary, I accept that a delictual action cannot be brought if we grant amnesty.

MR VISSER: Correct, not in this country.

CHAIRPERSON: It cannot be sustained in South Africa, but they could go to the Hague, or wherever else.

MR VISSER: Oh yes, no there's no question about it, Chairperson and when we've asked for amnesty in regard to cross-border excursions, it's always been subject ...(intervention)

CHAIRPERSON: ... basis.

MR VISSER: Oh yes.  It's always been the acceptance Chairperson.

CHAIRPERSON: Thank you.  Mr Coetser, Mr Olifant is in a slightly different position than Mr Visser's clients.  He went across and was part of the execution of that plan but prior to Hammanskraal, he was never party to the conspiracy.  What would he be guilty of, bearing in mind what I just discussed with Mr Visser?

MR COETSER: Well it depends on how one classes his activities.

CHAIRPERSON: Well let's start from the beginning.  What's he applying for amnesty, in respect of what?

MR COETSER: Well no, obviously he's applying for amnesty in relation to any offences arising out of what occurred at Botswana, but certainly in so far as the South African aspect of the preparation of the raid is concerned, his activities at Hammanskraal, whether one can define those as simply acts of preparation or whether they go further than that, is probably what needs to be decided.

CHAIRPERSON: You see, and I'm just asking this because I don't want to be faced with having to answer the question in your absence, prior to going to Hammanskraal, all he did was to go observe.

MR COETSER: Yes.