Amnesty Hearings — Cape Town — 2000-11-21

MR MALAN: May I just ask you this?  If I can summarise your argument on this point, you're saying to us that, you've quoted Williamson, that the intelligence was of the best.  The intention was never to go at the military, but to cause havoc at the level of the civilian, these people knew exactly what they were doing and they were targeting non military targets and they're simply not disclosing, they're lying to us?

MR BERGER: Not that they were targeting only non-military targets, they were targeting the ANC in Gaberone, whether they were military, political or civilian and they are not being frank with you on that score.  Yes, that is my submission.

CHAIRPERSON: And you base that submission on the ...(indistinct) of what happened?

MR BERGER: I base it on the evidence that I've presented to you.  I base it on the lack of evidence on the side of the applicants to actually identify any, come forward with any concrete evidence to show that any of the deceased were involved militarily and the fact that the people who were supposed to have been being observed at page 65 of bundle 1, none of them were killed.  Why is it that we have the deceased - not one of the deceased is on that list at page 65 and then of course the whole question of what they knew about what Vic McPherson, what they knew about Kabwe, that whole argument that I've already presented about the escalation of the concept and the time, the time in which we lived, 1985, the middle of 1985.  I ask the Committee to think back to what was happening at that time and how things were rapidly spiralling out of control.
	And then finally there were just two applicants, you will recall, there were two applicants, I forget their names now, whose evidence was that they were asked to gather certain information and they had no idea what that information was going to be used for.  Well they can't possibly have the requisite mens rea for any effects.

CHAIRPERSON: Who were those two?

MR BERGER: Krause and Smit.

CHAIRPERSON: Yes.  What's your attitude towards those two, Mr Visser?

MR VISSER: Chairperson, if my Learned Friend could finish, there are just one or two issues that I would just wish to reply and I will do that at the same time.

CHAIRPERSON: Because it slipped my mind.  That is quite correct.

MR BERGER: So Chairperson, those are submissions and I would ask, both on the question of full disclosure, because they're interlinked, the question of full disclosure and the requirements of 20 (3) of the Act on either of those bases, I would submit that the applicants are not entitled to amnesty.

CHAIRPERSON: Thank you.  Mr Visser.

MR VISSER IN REPLY: Chairperson, with your leave, very briefly.

CHAIRPERSON: Is that a promise?

MR VISSER: That's a promise, Chairperson, I want to go home.  Chairperson, the whole issue of the attacks and the targets, there are two issues that one must recall.  One is that the evidence of Loots and the evidence of Pretorius, supported by the other applicants, was that it was facilities, as far as they were concerned, were the targets.  That's the first thing.  The second thing, with people in them, obviously, but it was the facilities that were the main targets and they mentioned them to you.  The second thing Chairperson is that Steyn and Loots made it quite clear that what they brought or took forward was a summary of about five years of intelligence.  They made no decisions.  What they did is they brought the most prominent facilities and/or persons forward for somebody else to make the decision.  So, my Learned Friends whole argument as to what the purpose or intention of the raid was, really does not affect the applicant before you here, for the simple reason that they were neither part of making any decisions, nor were they part, apart from Mr Olifant, of participating in the raid.
	Chairperson the argument of my Learned Friend that this attack was to intensify the conflict, is based on pure speculation, there is nothing before you to support that, with great respect, but what we know ...(intervention)

CHAIRPERSON: There's great suspicion though.

MR VISSER: There might be suspicion.

CHAIRPERSON: I'm not saying that is sufficient.

MR VISSER: Yes, there may be suspicion Chairperson, certainly, but not sufficient for you to act upon.
	Chairperson what we say is it would be naive to assume for a moment that the military would go into Botswana and pick out only people who were confirmed MK people.  We know what would have happened and what did happen.  They would have hit everybody they knew were supporters of the ANC because that's what the Act talks about Chairperson.  Members or supporters of a political organisation or the political organisation itself.  That's one aspect my Learned Friend didn't deal with.  We say at least they acted against the political organisation itself.
	Chairperson then second lastly, my Learned Friend says the applicants presented no proof of MK association of these people.  May I refer you to bundle 2?  Just two references, page 4 and page 11.  At page 4 Mrs Mtsweni, that's Dick's mother - I'm sorry, Dick's daughter, gives this evidence.  
"He wanted to fight for the nation or for the freedom of the people because he was a member of Umkhonto weSizwe."

JUDGE MOTATA: What page is that?

MR VISSER: This is page 4 of bundle 2 Chairperson.  At the bottom, third last paragraph.  Ms Mtsweni, she wasn't called as a witness, we don't know why, but there she is.
	Chairperson at page 11 Mrs Mkhize, the mother of - I'm sorry, Mrs Mnyele who is the mother of Thami Mnyele gives evidence and she's asked by Mrs Mkhize:  "When you say a white policeman killed your son.." so it's with reference to Thami Mnyele, she says this at the bottom of the page:
"He had just undergone training for MK."
Now my Learned Friend just ignores this, he doesn't draw your attention to that, he doesn't tell you why these witnesses are not called.  We were waiting for them to be called to put this to them, they were not called, but my Learned Friend can't argue to you that all these people were as innocent and we can only refer to the evidence ...(intervention)

CHAIRPERSON: If you make the point, why didn't you call them?

MR VISSER: Chairperson, must I call a witness to break him down, because I don't know whether that's ...(intervention)

CHAIRPERSON: No I'm saying, you're criticising the victims for not calling a witness, those people in my view are free witnesses, they can easily be called.

MR VISSER: They're the clients of my Learned Friend.  He pronounced himself to be representing all these people.

CHAIRPERSON: He mentioned who he is representing.

MR VISSER: Yes, including these people.

CHAIRPERSON: Is it?

MR VISSER: Absolutely.

JUDGE MOTATA: He mentioned families.

MR VISSER: Yes.

CHAIRPERSON: In any case, are you done?

MR VISSER: Yes, no Chairperson there's the last issue, that's the question of Krause and Smit.  As Krause and Smit told you that they were field workers, or they collected information, Smit was the field worker who passed on the information to Krause, neither of them could remember much.  I think Krause remembered Mr Mnyele, if I'm not mistaken, but one of them, but he couldn't remember any information about any of the others and then in cross-examination, in evidence-in-chief he was asked whether he associated himself with the raid and he said yes.  In cross-examination he was asked:  "Did you know before you gave the information that it was going to be used in the raid?" and he said no and Smit also said no.  Chairperson, we say that with respect that makes no difference to the fact that they knew at the time of the raid, that the information that they had provided was going to be used.

CHAIRPERSON: No but if they want to be party to the conspiracy, shouldn't they know why they are contributing to ...?

MR VISSER: Well, Chairperson ...(intervention)