Amnesty Hearings — Durban — 1998-11-13

MR VISSER: With all due respect, I don't want to present a legal argument again about it, it is quite clear that there is very strong authority that there is no Police Force in the world to be expected to make available the identity of their informers from a point of view of their own safety and that of their families, Mr Chairman, and consistently also in our courts in this country, it has been held that unless there is a very special reason, and unless there can be very special provisions made for the protection of such a person, should the identity of an informer of the police, any branch of the police, ever be divulged.  I object to that Mr Chairman.

MR NGUBANE: Mr Chairman, I am speaking subject to correction here, but my impression is that the whole process is about full disclosure and the family members are very much interested to know who actually led to the arrest and the killing of their daughters and sons and I submit with respect, that special reasons do exist that they be disclosed so that they can be known.

CHAIRPERSON: The fact that there is that special interest in these troubled times that exist in our land, is that not underlying the danger to these people?

ADV PRIOR: Mr Chairman, I was also going to ask questions surrounding this issue.  I think we've got a distinction between information coming from informers in the normal course, but in the specific case, the informers were involved with the illegal acts of the applicants.
	In other words, they are in a class with respect, different to that of informers in the normal course.  They were actually co-perpetrators of at least kidnapping.  If not socii or accomplices in the planning to kill Ndwandwe and on that basis, I don't have any authority at this stage, but certainly there is a marked distinction between for example the informers that gave information which led to the arrest of the other and informers who were actually central to the criminal acts surrounding her abduction out of Swaziland.

CHAIRPERSON: Was any attempt made to find their names and to notify them Mr Prior?

ADV PRIOR: I asked the legal representatives of the applicants who had mentioned them in the applications, and we got no response from Mr Wagener in particular.  Once we had known them, we would have taken the necessary steps.
	I submit the machinery is in place, should those names be divulged in the proceedings, then Section 30 of our Act provides that immediate notice be given to them.

CHAIRPERSON: Doesn't that cause you some difficulty mr Visser, that they were more than informants, here they played an active part in the kidnapping of the victim?

MR VISSER: That makes no difference to the principle Mr Chairman, none whatever, that that differentiation was never made, and if you will allow me time, this is an important matter Mr Chairman, I have instructed my witnesses that they ought not to divulge these people, because they might be pronouncing the sentence of death on them.
	I will, it may be in the written argument which you received yesterday Mr Chairman, if it is not, I would ask for proper time to present you with proper argument, to refer you to the authorities Mr Chairman, and I suggest with respect, that there is no way that this panel will exceed to the request to make the identities of people available. 
	In fact Mr Chairman, on previous occasions, other members of the Amnesty Committee have refused these questions to be answered, and if there is any possibility that you may lean towards telling the witness to answer these questions, I would like to have proper time to address you properly on the law on this matter.

CHAIRPERSON: I must say I don't see any great need for it in that it has not been suggested, as I understand the evidence, that there was any relationship between the informers and the victim in this case.  They knew the position that she held, and they went there pretending to be looking for weapons is what we have heard.

MR NGUBANE: Mr Chair, I would respectfully submit that the need that exists is that the families are suspecting various people.  They received rumours about various people and they want to clear that up in their minds.  There are people who are pointed out fingers falsely in the township, that they are informers, they are the ones that sold out.  Those people are in danger, and they might be in greater numbers than the actual two informers, mere two informers.
	Then it is in the interest of the public that they be known, the names of the people who had been ...(indistinct), be cleared and the consciences of the families be cleared, and it is important for the families to decide whether they are going to forgive those people or not.
	In the spirit of reconciliation, my respectful submission is that it is vitally important that those informers be named.

CHAIRPERSON: You have just made it clear that the danger is a very real one, when you said those suspected might be in even greater danger.  That is the problem.  I think it will be wrong for us when as you say, they will be in danger, that their names should be exposed.

MR BOTHA: Chairperson, if I could say something.

CHAIRPERSON: We are adjourning now, and we will continue.
COMMITTEE ADJOURNS
H.J.P. BOTHA: (still under oath)

ADV PRIOR: About his association with the kwaMashu 3, he indicated to me that there appear to have been some problem with the translation of Mr Botha's evidence which created or may have created the impression in the minds of the public, that he possibly was an informer, who had given information relating to the kwaMashu 3.
	I have conferred with Mr Visser and Mr Wagener and what is agreed is that it must be made clear that the evidence related to him being the fourth member, the fourth person of that unit, who did not arrive at the rendezvous.  It did not go any further than that, so there was no suggestion in that evidence, that he was the informer or could have been the informer.
	I wish to make that quite plain Mr Chairman.

CHAIRPERSON: Before we took the adjournment, the question arose as to whether the applicant was obliged to disclose the names of two persons who were referred to as informers although that may not necessarily be the correct description of them.
	The question was objected to by Mr Visser and he raised the question as to whether in our law such evidence was admissible.  It is a matter which in my view, clearly has to be decided in terms of the law, which is not a discretionary matter, and I accordingly would request that all those interested in the subject, prepare argument, and we can hear argument on the matter, next week.
	We will prefer written Heads if possible.  It does not as I understand it, in any way effect the continuing cross-examination of the applicant.  The purpose we were told by Mr Ngubane was merely to supply information to the family.  They can await that information next week and you can continue with your cross-examination.
	What day would you suggest gentlemen?  Mr Visser has the advantage of having a laptop computer in front of him, which the rest of you don't.  Should we say Tuesday of next week?

MR NGUBANE: I think Tuesday would be fine Mr Chairman, because Monday I won't be available.

CHAIRPERSON: Monday you won't be here?

MR NGUBANE: That is correct yes.

CHAIRPERSON: Will you be ready to advance argument on this question on Tuesday, supported by written Heads if possible.  You can continue.

MR NGUBANE: (continued)  Thank you Mr Chairperson.

CHAIRPERSON: Sorry, before we go on, it struck me and I mention this merely, there may be a distinction between a person who participated in an act and an informant who merely gave information that was acted on, and this is something you might like to consider.

MR NGUBANE: Thank you Mr Chairperson.  Mr Botha, you went to Swaziland to abduct Ms Pila Poshua Ndwandwe, is that correct?

MR BOTHA: That is correct.