Amnesty Hearings — East London — 1999-04-21

CHAIRPERSON: I see what you are getting at, but what happens if he had the three incidents and he was paid after the second incident, then one could safely say that that payment was for payments certainly of the second incident, maybe of the first, but definitely not for the third.  If he gets paid after the last incident, one can argue that that payment is in respect of the last incident only, but does it exclude payment for services rendered over the last eight months, all for basically the same purpose, all basically the same sort of transactions?  You know, here is a bag full of money for what you have done, it is yours.  Why is it necessarily restricted to the third only?  Just for purposes of argument, you know, on your argument then, he could have gone back and said okay, now pay me for the second one, and pay me again for the first one to Nieuwoudt?

MR HATTINGH: I follow what you are conveying to Mr Chairman, but you've got to with respect look at the evidence on the second incident, that is the only evidence that you have to deal with at this stage.

CHAIRPERSON: Yes, but we know that money was paid after the third incident, but we don't know whether that was only for the third incident or for all.

MR HATTINGH: Well Mr Chairman, I suppose it could be argued that it could have been intended for all three, but is that clear?  Can you arrive at that conclusion without the evidence of Mr Nieuwoudt that he intended that to be payment in respect of this incident as well?  That is why I am saying you've got to be guided by the evidence.  There is no evidence that that payment was intended as payment in respect of all three incidents.  My Attorney draws my attention to the fact that on Mr De Kock's evidence, his understanding of that payment was that that payment was only in respect of the third consignment of arms, but there is certainly no evidence to the effect that that payment was payment in respect of this particular incident as well.  With respect Mr Chairman, you cannot draw the inference as an only reasonable inference that that money was paid in respect of all three transactions without any evidence to that effect.

CHAIRPERSON: I think in just speaking, it has just come to mind now, in matters of this nature, very often we have applications that aren't opposed.  They are not opposed very often, because people don't really have a vested interest in the outcome, etc, so we are getting evidence coming mainly from the applicants, not always, but very often in these matters.  Should one in those situations then apply the normal test that is applied in the civil law or the criminal law, with regard to the assessment of evidence, in other words, when you are just getting the version coming from the one side?  In such situations, can we not place heavier emphasis on probabilities?

MR HATTINGH: With respect not, Mr Chairman, you have wide powers in terms of the Act, and if you feel that there is a one-sided version before you and that there are possibly other people who might place a different complexion on the facts before you, you have the powers to subpoena such a person to appear before you and to give that evidence.  We submit therefore Mr Chairman, that quite clearly the inference that you are seeking to draw, should be an inference based on the evidence as being a reasonable inference, applying the same test or standard as you would in a criminal or in a civil trial, regardless of the fact that there is no other party before you.  That is all that is before you, we submit, and that is why I stressed the point at the beginning of my argument Mr Chairman, that you have got to base your decision with respect, on the evidence, you cannot speculate.
	The evidence before you is to the effect that that money was paid in respect of the third transaction.  Bear in mind with respect in this regard Mr Chairman, that on the affidavit of Nieuwoudt and on the evidence of De Kock, Nieuwoudt wasn't even involved in the negotiations for the delivery of the weapons relating to the second incident.  He didn't deal with him.

CHAIRPERSON: Except there is something on his application I think it is, where he says that he got R100 000 or made motivation for R100 000 which was given to Duli and Duli signed for it to obtain the weapons, so he was involved in that sense in the coup at that stage and also in the acquisition of weapons for the proposed coup?

MR HATTINGH: That may be so Mr Chairman, but De Kock wasn't aware of that.  De Kock only met Nieuwoudt when they went to a hotel or a bar or somewhere after the coup had failed.  He bumped into Nieuwoudt there and from the discussion that he had with him, it appeared that Nieuwoudt had some knowledge about it, but the fact of the matter is Mr Chairman, there were no negotiations, prior negotiations, between De Kock and Nieuwoudt.

CHAIRPERSON: Yes, I think that is quite clear, I mean there is nothing on the evidence to suggest that prior to the second one, there would be payment.

MR HATTINGH: That being so with respect, Mr Chairman, it lends credence to the evidence of Mr De Kock, that the payment which he did receive, was in respect of the transaction where he negotiated with Nieuwoudt, there he personally negotiated with Nieuwoudt for the supply of arms.  All he knew about Nieuwoudt's knowledge about the second incident, was the discussion which took place in the bar and therefore even in De Kock's own mind, even if for some reason or other, Nieuwoudt intended this payment to be in respect of the second incident as well, De Kock couldn't possibly have been aware of that fact, that that was Nieuwoudt's intention because he didn't negotiate the second transaction with Nieuwoudt, why would Nieuwoudt be paying him money for arms which was delivered on the second occasion, if Nieuwoudt was not involved in the negotiations which led up to the delivery of arms in respect of the second transaction?  We submit that quite clearly that money was paid for the firearms which were delivered on the third occasion and there is no evidence to the contrary.  You cannot with respect, therefore Mr Chairman, find that prior to this incident, that there was an agreement to the effect that De Kock would received compensation in exchange for the weapons which he delivered.
	I have already addressed you on the issue that even if you do consider this payment as a payment in respect of the second transaction as well, then it is once again something which occurred after the event, and that could not affect the political motive or objective which De Kock had when he agreed to deliver the arms and in fact supply them and that you should follow the approach in this regard, which was followed by the Committee in the Tshikilanga matter, where it is clear that the money which they received was a reward for the act which they actually performed there, and despite that, the Committee found that that doesn't affect the objective which they had in mind at the time when they performed the act in question.
	Mr Chairman, De Kock didn't have to disclose the fact that money was paid over to him, there were only two people on his version who could have known about it, being himself and Nieuwoudt.  It is true that Mr Nortje in his statement mentions the fact that De Kock and others benefited.

CHAIRPERSON: Van der Westhuizen.