Amnesty Hearings — Messina — 2000-07-04

CHAIRPERSON: But wouldn't that then of the names mentioned by you, only affect one of them, the person who was in charge of intelligence?

MR WAGENER: Mr Chairman, I was a soldier myself.  An operation is planned and authorised in the final instance by the Chief of Operations and by the Army Commander and that the Chief of Intelligence merely plays a significant role in the receiving of, ...(indistinct) of and co-planning of the operation, but in the final instance, it is the Chief of Operations with the overall Army Chief.  If I may be allowed to give somewhat slight evidence in this regard, but that has been my experience over thirty years with the military.  Except if there are any further questions, that's my argument to you in this regard, so I specifically ask for Mr Joe Modise, the Army Commander, Mr Lambert Moloi the Chief of Operations, and Mr Ronnie Kasrils as the Chief of Intelligence at Military Headquarters where this campaign was planned and authorised as set out in the ANC's documentation, that they be subpoenaed and come and testify on this campaign and specifically on the orders, the mandate, the parameters.  I think it's highly relevant and that is our request, Chairman.

ADV BOSMAN: Mr Wagener, may I just ask, for the purpose of argument, you drew an analogy between the Lesotho Raid matter and this particular matter.  I'm just asking this to clarify the issue in my own mind.  In the Lesotho Raid the evidence that was sort-of questioned was that of the person who actually gave the order and in this matter we have three footsoldiers' evidence and the middle person, the one who gave the order to them, is missing in the whole scenario.  How does that affect your argument?  I know that you are not particularly relying on the Lesotho Raid as a precedent, but you did mention it extensively and I would just like to hear you on that.

MR WAGENER: Chairman, why I referred to that incident briefly, in that matter Gen van der Merwe said:  "I" van der Merwe, "gave the orders."   He said that all along, he gave the authority.  He did not discuss it with the Commissioner of Police.  What he did say is he can't remember, but he would have discussed the matter with certain other colleagues in the intelligence community and if so, it would have been on the probability, Dr Barnard of National Intelligence and Mr van Heerden of Foreign Affairs, but he never said they gave the authority.  The question there was, the way I understand it, is the test is slightly different in terms of Section 20(2)(b) than 20(2)(a) because in terms of 20(2)(b) a member of the Security Forces must also show that he was acting within the course and scope of his duties and his mandate, or that he objectively believed that he was doing so and that was the issue there, by way of cross-examination, which I may add if I'm allowed to, based on speculation by the lawyers of the victims ...(end of tape) Committee in that matter can reach the correct decision.  So all I'm saying is, if I'm confronted with an argument, I try to pre-empt that by mentioning the Lesotho Raid and maybe also as a matter of interest Mr Chairman, it was suggested to Gen van der Merwe that that Lesotho Raid was in fact a revenge attack regarding this very incident that we're here today for, because it took place four days later on the night of 19 to 20 December 1985, and that was also part of the "disputes" (in quotes) if I may say that, because it was a real dispute, but the Committee found that, or ruled that they must be satisfied in the end, in terms of Section 20(1), exactly as your position here today and that's why they decided to have all those people subpoenaed and that's the only reason why I refer to that matter, but of course, I accept what Adv Bosman says is that the facts are not exactly the same, but to me Mr Chairman the principle is the same.

ADV BOSMAN: Thank you Mr Wagener.

CHAIRPERSON: Mr de Beer do you wish to say anything?

MR DE BEER: I'd just like to say that I don't object in any way to the bringing of this application.

CHAIRPERSON: Mr Koopedi, do you have anything to submit on this?

MR KOOPEDI ARGUMENT: I do, Chairperson.
	Firstly, I wish to point out that I believe that the subpoenaing of the three people mentioned by Mr Wagener, will be a complete waste of time and taxpayers' money.  It will also ensure the prolonging of this hearing unnecessarily, Chairperson.
	It's my submission that the three people will not take the evidence in this matter any further.  My submission is that they will in no way be able to assist this Honourable Committee to come to a particular conclusion or decision as to whether or not to grant amnesty to the three applicants.
	It is my personal view, Chairperson, I must stress, my personal view is that simply because Pik Botha, Gen Coetzee were subpoenaed or are to be subpoenaed in another matter, it therefore means that in this matter also then Ronnie Kasrils, Joe Modise and Lambert Moloi must be subpoenaed.  I do agree that the matter in which, the Lesotho Raid, where the other people are being subpoenaed, cannot be seen as a precedent, but perhaps it's something worth looking at.  
	I would therefore then also take you through to another hearing which the subject thereof was landmines.  I believe this hearing was in Mpumalanga.  A number of people, Gen Nyanda notably appeared and asked for amnesty for those landmines.  At no stage were any of the three people mentioned or at no stage was there even a thought of subpoenaing them.  I know I was told that in that matter there was no opposition and perhaps that's why they were not subpoenaed, but the facts are clear that they would not in any way be able to take the matters any further.
	Chairperson, the applicants before you gave evidence and their evidence is that none of them, none of the three were ever given instructions, briefed or even debriefed by any of the three gentlemen.  The evidence before you is that the unit of twelve was commanded by Mancheck.  Evidence before you is further that when they got into the country, they then had other Commanders, Chilies and Agrippa.  
	It's my submission Chairperson that these would be the people, I'm referring to Chilies and Agrippa, these would be the Commanders or the senior people who should be subpoenaed if they were not part of this hearing.  These are the people who made the decision as to - that is when they were on the ground.  These are the people who pointed out where the mines are to be put.  You've heard evidence from one of the applicants that at some stage when they were in the country, they didn't even have the maps as to where to put these.  This clearly tells you that everybody relied on what the Commander said.  If the Commander said we plant it in the sky, they would have to do that and without questioning.
	My submission is therefore that, Chairperson, we do not need to call any person into this hearing.  I would at the risk of being repetitive, go back to the application of - the broad application of Mr Kasrils where he speaks about landmines.  He clearly sets out what his role was and perhaps, Chairperson, I should for record purposes read what he says in that, that is on page 7 of your bundle of documents.  I'm reading from the third line of that paragraph.

ADV BOSMAN: Could you just give us the page number again?