Amnesty Hearings — Johannesburg — 1998-05-06

MR TRENGOVE: The category of acts that he refers to as "those committed by me and those under my command".  And in relation to that whole category of acts he says that I can't give particulars of all of them and he explains on occasion that some of them were committed without my knowledge and no records were kept.

CHAIRPERSON: I think it is quite clear what is being said.

MR VISSER: Mr Chairman yes, clearly my reading of the English language differs from my learned friend's, but if my learned friend tells you that the application before you does not concern any acts committed by Mr Ismail, which he had forgotten about, then we can step on to the next question.  Because I am going to argue at the end of the day that if that is part of his application it is not permissible in terms of the requirements of the Act.

CHAIRPERSON: Subject to correction and subject to what Mr Ismail may say my impression was that he said that he's applying for all acts that may have been executed by himself or under his command, even those acts which he cannot - which haven't been placed on the list which he - for one reason being that he cannot recall.  Is that correct Mr Ismail?

ABOOBAKER ISMAIL: It is so, Chairperson.

MR VISSER: Well that is precisely what I put to the witness now.

MR TRENGOVE: Chair may I just make it quite clear that there is no ambiguity and that it's not said later that because we stood by and said nothing we failed to clarify any ambiguity.

CHAIRPERSON: I understand Mr Trengove and also perhaps this is also a question for argument as well as to what acts are covered by the Act if you - acts that you can't remember are covered by the Act.

MR TRENGOVE: The applicant will in the first place seek amnesty for everything that he did in the three capacities he mentioned.  Firstly as instructor.  Secondly as member of the command of special operations and thirdly as chief of ordinance.  The application in other words in the first place relates to his own conduct and not to the conduct of other people.  That conduct of his in those three capacities, everything that he did in those three capacities rendered him liable, both civilly and criminally for the conduct of others within the country, whether on the basis that he was a co-perpetrator in certain of the consequential offences committed within the country and the delicts committed in the country, or on the basis that he was an accomplice or an instigator of those who committee the offences and delicts within the country.
	So that his application for amnesty relates in the first place to all his conduct from mid-1978 to 1994 in the three capacities we have identified.  That conduct would have rendered him liable civilly and criminally at least for the crimes and delicts committed by those directly under his command, but we would submit on the basis of the doctrine of common purpose also for those who were not directly under his command but acted on behalf of MK within the country. 
	Insofar as those offences and delicts are capable of identification they have been identified in his evidence with reference to the general MK list in the first place, and with reference to his own special operations list in the second place.  
	But those crimes and delicts for which he will also specifically seek amnesty are crimes and delicts for which he is liable on the secondary basis as we've explained by reason of his conduct in the three capacities that we have referred to.  
	There may well have been, as he has explained, many other crimes and delicts not included in those lists for the reasons that he has given to the Commission. 
	And therefore, and so far as he accepts that he may be criminally and civilly liable for crimes and delicts within the country committed by others, he is unable to furnish the Commission with a complete list.  And it is to that extent that he seeks amnesty for crimes and delicts which he is unable to identify. But what he is able to do is to describe his own acts and omissions which render him so liable, i.e. his own conduct in his capacity as instructor, leadership of special operations and chief of ordinance.  
	Now it speaks for itself that the witness doesn't remember everything that he did on every day from mid-1978 to 1994.  So in that sense I suppose it would be correct to say that he doesn't have a recollection today of every act and every omission for which he seeks amnesty, but he certainly has a general recollection of everything he did during that period, and has testified to it and has offered to give further particulars of it insofar as it might be required.

CHAIRPERSON: Yes thank you Mr Trengove.  So I think it's clear from that that he's - the applicant is applying for amnesty in respect of all incidents in respect of which he may have been civilly or criminally liable committed during the period mid-'78 to 1994 in his capacity as a member of MK either as an instructor special ops or ordinance and even in respect of certain incidents which, at this stage, cannot recall.

MR VISSER: Yes Mr Chairman I am not going to labour the point in cross-examination.  I just wanted to give the witness an opportunity.  I will make submissions in argument about this.
	But flowing from what your counsel has just told us am I then correct to say that in essence what you are applying for is for amnesty for everything which you did over a certain period of time?  Those were his words, not mine.

ABOOBAKER ISMAIL: Yes, that is so.

CHAIRPERSON: Which obviously which would have rendered him civilly or criminally liable.

MR VISSER: Yes, well that's understood, that's understood.  Because it's only in regard to those acts which will render you criminally or civilly liable by way of delict for which you are entitled to be granted amnesty.  So if I don't repeat it every time obviously that is meant to be included.

CHAIRPERSON: Before you proceed Mr Visser I may mention if it gets hotter you can please remove your jackets if you wish.

MR VISSER: Thank you very much Mr Chairman.
	But apart from seeking amnesty for whatever you did during a certain period of time it also appears to us that you are seeking for amnesty rather in regard to your conduct.  In fact I think you said so, your counsel said so in his introduction.
	In his evidence it would appear that, those are my notes, that -
"...he's not so much applying for amnesty in regard to incidents but rather for his conduct".
Would that accord with your intention?

MR TRENGOVE: Insofar as I am quoted Chairperson I am not sure that the quotation is correct.  It is clear that he is applying in the first place for amnesty for his own conduct in certain three capacities over a certain period.  He is then also applying for amnesty for those particular crimes and delicts which he has been able to identify.  It's not the one or the other but...

CHAIRPERSON: It's a bit difficult to separate one's conduct from an incident.  I mean if I attack somebody the incident is the attack but my conduct is hitting the person.  How does one separate cleanly and neatly an incident from a conduct if a person is involved in that incident?