Amnesty Hearings — Durban — 1999-10-19

MR WILLS: Thank you, Mr Chairperson.
	I submit that my client, Mr Gold, also satisfies the requirements as contained in Section 20 (i) of the Act in that first of all his application complies with the requirements of the Act, that the Act was an act committed with a political objective, committed in the course of the conflicts of the past and that the applicant has made a full disclosure.  He too falls under Section (ii) (b) in that he was an employee of the State, acting within the course and duties or within the scope of his express authority and the act was directed against a known liberation movement at the time.  As regards the aspect of whether or not the act was bona fide, I think that's clear and it's amply described in his viva voce evidence, but succinctly in paragraph 20 (i) of his affidavit on page 12 where he indicates how he was totally convinced that his role in operating against the ANC and its communist influence, was the right thing for any loyal South African to do.
	I don't think, with respect, that there can be any question about whether or not he should have followed the instruction given to him by his superior, the then Lieutenant van Zyl, particularly in the light of the fact that at a later stage there was even a more senior officer present, which would have, from his perspective, as he indicated, corroborated the fact that that decision came from a higher authority and particularly in view of the fact that my client had a relatively junior rank, in the circumstances.  
	In any event, I submit that should the Committee find that he doesn't meet that criteria, which I submit it  should, with respect, he therefore would still fall into the category of Section 20 (ii) (f) where he was acting on reasonable grounds.  I submit that is quite clear.
	His political motivation, it was quite clear, is based on an order and that hasn't been disputed.  As regards the full disclosure, he has made a detailed affidavit and indicated to the best of his knowledge, taking into account this incident occurred 20 years ago, he's relayed every material fact.  I think what is significant in this application is the Committee can see that whilst the parties have been represented by different counsel, that they largely corroborate each other and clearly that I think supports the fact that they are all ...(intervention)

CHAIRPERSON: Are you suggesting it's not negotiated.

MR WILLS: Yes, that's exactly what I'm saying.  What I'm saying, if I could, the evidence in it's essential, in other words material, the event as described, the material facts are corroborative in every respect.  There were incidents where my client was obviously reminded or given more detail and his version changed slightly as a result of him, (1) having read the other persons' versions prior to coming here and also hearing the viva voce evidence of the first applicant, but I submit that essentially it stayed the same throughout and as a result of that, I submit that there can be no finding made against his credibility.  	There's no suggestion whatsoever, Chairperson, that this act was done for personal gain, or that it was done out of personal malice or spite directed against the victim.  I submit on two legs, firstly the fact that he was given an order, but secondly the fact that all he did was essentially blew up the body, that the issue of proportionality doesn't even come into consideration at this point.
	I submit my client would - he has been involved in the murder of this person, although not directly, clearly there was a common purpose, he knew what was going to happen to this person when he was alive and I submit that Adv Booyens' suggestions as regards the order, I concur with completely.  I think that it's fair to say and it's justified a decision to the effect that it involves any incident or any crime flowing from the murder of a Mr Madondo, or a person known as MK Scorpion, which occurred during 1980 in this particular location.
	Like Mr Booyens we have nothing to say as regards, or nothing to gain or lose as regards the actual identity of the body and so I cannot make any submissions in that regard.  It was obviously immaterial as regards my client's involvement, as to who that person was.  It could have been anyone, from his point of view.

CHAIRPERSON: Could you perhaps assist us?  We must make an order recommending whether people should be considered as victims in terms of the Act.  We would only be in a position to do so, I think, unless you could help me, that I'm wrong in this, if we could find on the probability that the person killed was related to the family here and was in fact Oupa Madondo, the brother, if there's no room for finding that on the probability, can we make a recommendation on other grounds perhaps?

MR WILLS: Mr Chairperson, I think that clearly, as regards the scope of this application, the only time one would be able to make a finding in regard to this particular witness as a victim, would be if you related, if you made a finding on the probabilities that the deceased person was in fact related to this person, I submit that the probabilities are for her in this instance.  I submit that it's just highly improbable that there would be an informer by the name of Martin van Rooyen who went looking for his informer at her house after the event, particularly in the light of Mr Visser's evidence, that he disposed of this person in circumstances where no other member of his Security Branch was informed and so he hid it from them.  So it's just too coincidental for me now that you've directly asked me this question, to sort of imagine that this van Rooyen would pitch up at this house at about this time, looking for this particular person.  Obviously this issue isn't finalised and I haven't applied my mind fully to the issue, because obviously it doesn't impact directly on my client.
	However, should you wish for argument on that, I submit I'd only be in a position to do that after the evidence of, I believe, Mr Meyer and when the evidence is finalised.

CHAIRPERSON: Yes,  no I only asked for assistance, I realise that it is not within the ambit of your brief actually.  Could I also inquire, I've asked yesterday whether there could be some arrangements in order to point out the scene to the people present.  I don't know whether you people had the opportunity to discuss it or not?

MR WILLS: I have spoken to my client about it.  He would be able to take any person to the exact location of the site and he'd be very willing to help in that regard.  In fact his version is quite clear that he would like to help the victim actively to find that spot, should that be her desire.

MS VAN DER WALT: I think, Honourable Chairperson,  you do not necessarily need to hear me.  The seniors have spoken already.

CHAIRPERSON: Would it make any difference to the application of your client if it were indeed Oupa who was killed?

MS VAN DER WALT: If the Honourable Committee is to accept Mr Visser's version that the person was a double agent and that the situation was of such a nature that he
couldn't do anything but that, then it would make no difference.  However what does scare me is that the Committee may, I do not say this is the case, but there is no evidence, but I just don't want - the suggestion was made that due to the assault, something had happened and I would like really to rule that out totally, especially if one looks at Mr Gold's evidence and what he has expressed towards you, as to how he felt, I would like to say to you that if the person in any way was assaulted so badly, I do not say there is no such evidence, that they had to get rid of him, then Mr Gold would have been the first person to tell the Committee about it.  If you rule out that, then it would make no difference to the application of my client.