Amnesty Hearings — Nelspruit — 1999-02-04

MR O'FARRELL: No sir.

MR BLACK: These could have been visitors or whatever?

MR O'FARRELL: No sir, we didn't do it at all.

MR BLACK: Oh.   And did Mr Sambo immediately object to Mr Van der Spuy's opening, messing, fiddling with this vehicle or inspecting his vehicle?

MR O'FARRELL: As stated already, Mr Sambo then proceeded from the 626, carrying on, shouting, etcetera, etcetera, into the premises, still shouting and carrying on, walked straight past me shouting and carrying on, and then he went and confronted Warrant Officer Van der Spuy.

MR BLACK: Yes.   Now, at that stage were you wearing any arms, carrying arms rather?

MR O'FARRELL: Firearms?

MR BLACK: Firearms, ja.

MR O'FARRELL: Yes, I was carrying my 9mm Z88 and Warrant Officer Van der Spuy was armed with a 9mm Parabellum... (intervention).

MR BLACK: All right.

MR O'FARRELL: ...Baretta Parabellum.

MR BLACK: Because, you see, I'm just referring again to Annexure C, Corporal Nel's affidavit, where it says in paragraph 11, at about 12 o'clock that day, Captain Kaggelhoffer arrived at the base with his patrol and Kaggelhoffer had said that one Voice Sambo at the Block B, Tonga, premises had refused that his premises be further searched without a warrant, a search warrant, and that members of the Tonga Police Station couldn't communicate much further or couldn't get much out of Voice, and that Kaggelhoffer had then informed Corporal Nel that Van der Spuy did not join them, had not made contact with them.

MR O'FARRELL: Sir... (intervention).

MR BLACK: I just want to know, would it have been possible for... (intervention).

CHAIRPERSON: How would he know, Mr Black, how would you expect him to know that?

MR BLACK: No, I'm just putting this, that here allegedly there'd been communicated to the previous soldiers who had been on the premises and who had searched the premises that the owner or the occupier of those premises required that should there be further investigation that a search warrant be produced.   Would it have been possible for Ndbane or Kaggelhoffer or anyone to communicate with you people in your vehicle, radio-wise or otherwise?

MR O'FARRELL: Yes, Sergeant Ndbane would have been able to keep contact with us.   However, the army and the South African Police radios work on different frequencies and are so set, so we have no means of communicating via radios to each other.

MR BLACK: So you mean that the army couldn't communicate with the police?

MR O'FARRELL: As stated here, sir, they used a telephone.

MR BLACK: Ja.   Well, let me further just clear up another issue, you - just for clarity's sake please, you talk about an assault that would appear that - or five or six people preventing you or pinning your hands down and preventing you from shooting at the applicant?

MR O'FARRELL: Yes sir.

MR BLACK: Ja.   You later, is it later on then, after you come back to investigate the condition of Sergeant Van der Spuy with the ambulance, that you were then attacked... (intervention).

MR O'FARRELL: That is correct, sir.

MR BLACK: ...fairly savagely?

MR O'FARRELL: That is true, sir.

MR BLACK: Okay.   Because looking at your affidavit here, I just wanted clarity about that, because paragraph 19 of that, you speak "van deure", this is before the shooting, and when your hands were pinned down, you say that
"Ek is toe deur 'n horde mense toegesak",
jy is toegesak deur 'n horde mense?   It's a horde of people, but I understand that was the five or six people, paragraph 19?

MR O'FARRELL: Yes, I'm just trying to trace it.

MR LAX: It's five lines from the bottom of that paragraph.

MR O'FARRELL: Okay.   In that situation six people are a reasonable - at that time, as I stated, my build was much less than at my current moment, so six people on top of me results in a horde.

MR BLACK: And you have correctly stated that at the time you were say 20 years old and this whole incident - and details of the incident left you in a state of shock?

MR O'FARRELL: Sir, it did, it left me in a state of shock, however, as also told to me by certain people, as well as from my persona knowledge, all the facts pertaining to this case I remember as if it happened yesterday, and it's been branded into my memory, so I remember every inch, everything as it happened.

MR BLACK: And this is equally so, I would respectfully submit, the applicant has testified in as much detail as he could as to the events leading up to it, and there are differences, that we are all aware of and the record is - he will deny your allegations that he is a liar.   He further denies emphatically, I don't know how you can make such a statement under oath, that during the course of his evidence he was answering questions put to him in English before the Swazi translation had been completed.   I don't - were you listening to the translation in Swazi?

MR O'FARRELL: No sir, I was sitting at the back and before, even before the question was being - before Madam Chair had finished the question, the applicant had already answered in a Swazi language.

MR BLACK: Well as far as I'm concerned, I can't recollect one of those (indistinct), one instant.

MR O'FARRELL: I don't know, that's opinion.

MR BLACK: Ja.   It is opinion, it's... (intervention).

MR O'FARRELL: Same as (indistinct) by Judge Curlewis.

MR BLACK: Exactly, precisely, and I suggest that that is exactly where you get these allegations from... (intervention).

MS THABETE: Objection, objection, I don't know where this is leading.

MR BLACK: Well, it doesn't matter.

MS THABETE: He's stated that it's his opinion, he saw it, I don't know what else you want him to say.

MR BLACK: I'm coming to that, if I may.

CHAIRPERSON: Just come to that point.

MR BLACK: Yes.   No, it's - I'm obliged to raise it because it's a form of character assassination.

CHAIRPERSON: It is not, as far as we are concerned.   At the end of the day, we have to evaluate the evidence and we will decide... (intervention).

MR BLACK: That is so.

CHAIRPERSON: ...and really we are not interested in any evidence that seeks to assassinate anyone's character, except what is before us in terms of the Act, and that is to apply the criteria, as well as the requirements of section 20.1 with regard to full disclosure and as we are fully conversant whether the offences for which amnesty is being sought are offences which can be classified as acts associated with a political objective.

MR BLACK: Yes.   As the Court pleases.

CHAIRPERSON: So we would not be interested in any issue being traversed on any aspect of a witness' character.

MR BLACK: So, can I just understand the grounds of your objections to the granting of amnesty.   You mentioned this as one of the grounds, is that the main ground is that he's not telling the truth?

MR O'FARRELL: Both that, and that he left a child without a father, he left a wife without a husband, and basically all in that it was a cold-blooded murder.

MR BLACK: Okay.   I've got no further questions, thank you.
NO FURTHER QUESTIONS BY MR BLACK

MR O'FARRELL: Madam Chair, may I just say something?

CHAIRPERSON: Yes, you may, Mr O'Farrell.