Amnesty Hearings — Messina — 2000-07-04

MR WAGENER: Chairman, I have read the submission of the ANC to the TRC, that is the official submission, the two parts that we always refer to, and in the submission of May 97 on page 71, that is page 327 of the bundle before you, it is clearly stated and explained how the ANC decided on this campaign of landmines.  That it was decided upon at Military Headquarters and the same page specifies the instructions that went out to the units involved.  We've all read that.
	Chairman, having listened to the applicants, you should be satisfied that they comply with the provisions of Section 20(1)(a), (b) and (c) before any amnesty can be granted.  At this stage, we've heard evidence by and I will lastly confine my argument to the evidence of the applicant, Nondula, because he was apparently involved in the incident regarding my client, that he and his sub-unit clearly went outside the parameters of the campaign to such an extent that according to the documentation of the ANC Head Office, or Headquarters, they realised this soon afterwards and called the whole thing off and even to the extent that the members in the higher echelon do not ask for amnesty.
	Chairman, this we find very strange.  If this operation was, this campaign was in any way, was conducted as set out in the presentation of the ANC, then surely - and this was even conceded by the said applicant - then surely there must have been proper reconnaissance, intelligence gathering, and surely this must have been returned to the division of Mr Ronnie Kasrils and surely his intelligence component evaluated those intelligence and prepared an operation in co-operation with the division Operations in connection with the Commander as is the position in any military entity that I know of.
	So Mr Chairman, before you can decide, with respect, that you are satisfied that these applicants comply with Section 20(2) and 20(3), the whole question arises to what extent were they acting within orders, within parameters, whether they did act on behalf of this liberation movement as specified in Section 20(2)(a), or not.  With great respect, Chairperson, I can't see that being done without the evidence of the following individuals and I refer you to page 52 of the same submission where the ANC itself sets out the structure of their Military Headquarters in this timespan and I would submit that we require the evidence of the Commander, Mr Joe Modise, the Chief of Operations Mr Lambert Moloi and indeed the Chief of Military Intelligence, Mr Ronnie Kasrils, to come before you and give evidence about the exact nature of the instructions given to these two units and whether these units, specifically the one of Mr Nondula, wasn't on a frolic of their own, totally outside the aims and interests of the ANC at the time and only then, it is submitted Mr Chairman, will you be in a position to reach a decision whether you are in fact satisfied or not, as required in Section 20(1).
	By way of precedent, Mr Chairman, we had another matter that is at present still part-heard, where one of your co-members, Adv Bosman, is also involved in and I refer you to the Lesotho Raid which took place four days after this incident of my clients, where a client of mine, Gen Johan van der Merwe, applied for amnesty saying he gave the instructions that this operation should take place at the request of the victims, the then Commission of Police was subpoenaed, Gen Johan Coetzee, he had to come 1000 kilometres to attend the hearing, the then Minister of Foreign Affairs, because he made certain statements later on, Mr Pik Botha, was subpoenaed to try and sketch the full picture.  Later the matter was even further postponed to get the evidence of two other senior officials, the Chief of National Intelligence and the Director General of Foreign Affairs, Dr Barnard and Mr van Heerden, to establish whether Gen van der Merwe was in fact speaking the truth or not when he said that he gave the orders himself.
	Now I realise Chairman that it can never be seen as a precedent in the strict legal sense, but by way of analogy this is what happened in a previous hearing where a similar Panel to yours decided to follow that route in order to get to the truth, in order to be in a position to judge on all the facts, all the relevant facts.
	So it is on that basis - sorry, you were saying?

CHAIRPERSON: No, I was just wanting to just ask for your views, we have here the situation that - we know that from the documents before us and from what we've heard that the landmine campaign, that the orders were given by the hierarchy, so we know that the orders were given by Military Headquarters and the NSC etc. and we also know that at one stage the whole campaign was called off because the victims of the campaign were not the targets that were expected, there were too many innocent people.  That we know, it's not being denied.  So one can infer from that that the people in Headquarters etc were not satisfied with the way things were going.  Now what sort of evidence beyond that would you expect to give?

MR WAGENER: Chairman, I will answer it in this way.  The applicant must satisfy you that he complies, or they comply with Section 20(1), specifically (b), dealing with the issue of the political motive and in turn you will have to be satisfied of Section 20(2)(a), 20(3), all the elements.  Now part of that is whether they were acting - maybe we can read the words, the wording of the sub-section, that's 20(2)(a)
"Whether they were acting on behalf of or in support of the organisation"
Now what we do know Chairperson is that the organisation decided on the landmine campaign, but subject to certain parameters.  That I read on that page 327 of your bundle.  Now what we know here is that Mr Nondula and his sub-unit were not acting according to that.  So the question arises whether he can satisfy you in terms of Section 20(2)(a) and that is why this request is made, to bring those witnesses to tell us exactly what was envisaged by this plan and to question them on the objective facts of what happened eventually, specifically in the case of my clients and then to test that against the initial plan and then in turn to test that, whether the applicant can satisfy you in terms of Section 20(2)(a).

CHAIRPERSON: And also just for what your views are on this aspect, what - it would also seem that - well it's very impossible, but Agrippa would have been an important person to call.  Would the calling of these senior people in Headquarters, NEC wherever, who were not on the ground at all, who made the decision relating more to policy than anything else, assist with regard to the role played by Agrippa, because these applicants say look, they merely obeyed what Agrippa told them.  Now let's assume that Agrippa was on a frolic of his own,

MR WAGENER: Chairman , yes.

CHAIRPERSON: You understand that problem?

MR WAGENER: Yes, I do.  Chairman, no it's not that simple.  It's not that simple at all.  The higher structure in this instance cannot be said that they were merely involved on the basis of overall policy.  If you read page 327 of the bundle and we also heard evidence to that effect, that in this instance we had prior reconnaissance by the two smaller unit leaders some months earlier and that they reported back to their head quarters, for what purpose, Chairman?  The way I understand the evidence and also the broad mandate was that they had to return with their intelligence, they had to take it up with their head office for evaluation, for specific target identification, we've heard evidence that that was done, the prior reconnaissance, the reporting-back and then there was a specific operation set up with apparently plans identifying the specific targets and that the landmines were planted at those places, that was what I heard.