Amnesty Hearings — Durban — 1999-08-17

MR VISSER: I fully concede that.  It would be wrong for me not to concede that.  We're talking about events which took place 11 years ago, Mr Chairman and you as a seasoned judge know that people reconstruct and if I were to submit to you that you didn't listen to a fair amount of reconstruction, I would not be honest with you.  No clearly, Mr Chairman, but what I would submit to you is not to place too much emphasis on the use of the word research, they had no research available to them other than to talk to each other and clearly to reconstruct matters.  Now one thing that is clear from du Preez's evidence is that Taylor gave them a limpet mine together with Mr Ninela and as Commissioner Bosman has just put to me, isn't this the logical inference, which today du Preez will come and give evidence about?  He will assume that it was found in the possession of Ninela, which is a logically human inference to draw Mr Chairman.

CHAIRPERSON: That's just a possibility.

MR VISSER: It's a possibility.

CHAIRPERSON: But the way the evidence was given was not that.  The way the evidence was give was, they were told that this man was found in possession of a limpet mine.

MR VISSER: Yes.  I'm just arguing the point as to why they would have told you that.  It's because the limpet mine and Ninela were given to them in a package.  Again that, for example, Mr Chairman, just to show how cautious one has to be, supports the evidence of Mr Taylor in that regard, where he says he told them to go and kill him and blow him up.  That's why he gave them the limpet mine.  So, Mr Chairman, with great respect, it is true that there must be a measure of reconstruction, people are giving evidence about what happened a long time ago, but unless you can find that what they are telling you is blatantly false, Mr Chairman, with respect, the test must be that before you can hold it against them of not having made full disclosure and to come to the equation of falsity is non disclosure, it must be falsity in that sense, the sense of deliberately coming to you in order to mislead you and that Chairman, with great respect, we say that these applicants certainly did not do.  They manifested themselves as witnesses who attempted to tell you all they knew, albeit on a question of reconstruction and recollection, Mr Chairman.
	Mr Chairman, I believe that I might have ended, or come to the end of my submissions, I have not looked at my notes.

CHAIRPERSON: I'll give you another chance if you really think that it's something very pertinent that you've left out.

MR VISSER: Yes.  I was going to suggest Mr Chairman, perhaps if you wish to take the adjournment now until quarter past.

CHAIRPERSON: I'd rather we carry on.

MR VISSER: Alright can I ask you a few seconds just to look through my notes Mr Chairman?

CHAIRPERSON: Yes.  But you may look through it and if you think that you want to raise a point at a later stage I'll allow you that.  Mr Rorich, have you anything to say at this stage?

MR RORICH: Yes, Mr Chairperson, I'll be very brief.

CHAIRPERSON: Mr Visser, you will have an opportunity.  Is there anything material which you feel that you have left out, you may do so at a convenient stage.

MR VISSER: Thank you, Mr Chairman.

CHAIRPERSON: I'm just trying to save time, so we can carry on in the meanwhile.

MR VISSER: Yes.

CHAIRPERSON: Mr Rorich.

MR RORICH: Yes, Mr Chairperson as I said, I will be brief on this issue.

MR RORICH: I submit that the application for amnesty should be successful in this matter.  The reason for that is being that the abduction was done under the orders from either Myeza, or Col Taylor, this was elicited in evidence.  The political objectives sought by the applicant abducting the deceased was in furtherance of the objectives of his commanding officers, being the maintainers of the security of the Government of South Africa and the action was against a possible enemy of the state at that time.
	The abduction clearly falls in the context of the struggles of the past.  I think this is beyond dispute.  There has been full disclosure on all the aspects.  This is confirmed by the other applicants who acknowledge the abduction by the askaris and Mrs Ninela herself who confirms the applicant's version in that the applicant was at the house, he did drop off a note.  Even the contents of the note were verified.  That was the meeting in Pinetown.  There was doubt as to the time, but I submit that's irrelevant for the purposes.
	The applicant's version of the drop-off point of the abducted person, Blessing Ninela in Port Shepstone, the other applicants refer to that as a shooting range.  The other applicants also confirm that Mr Mwelase was not a member of the team that murdered Blessing Ninela.  In actual fact they confirm that he wasn't there at all.
	Mr Chairperson, with all due respect, Mr Mwelase hasn't changed in any meaningful aspect.  The applicant was an employee of the state, even if that was under the auspices of the Security Police as it was then.  It is clear that the applicant had no autonomy of his own and acted under orders.  He verified it was either Col de Kock at one stage which is ... (indistinct) for these purposes, or Col Taylor and in fact the applicant never knew of the death of Col Taylor until now.  Even though the applicant may not have believed it was legal, he nevertheless believed that it was with authority and therefore in the course of his duty.  In actual fact if he didn't do it, he knew what the consequences of that would be due to his experience with the Security Forces.

CHAIRPERSON: I didn't catch that point, what was this?  What is the point you're seeking to make there?

MR RORICH: Mr Chairperson, I said that even although the applicant may not have believed it was legal, he nevertheless believed it was with authority and therefore in the course of his duty, due to the experience with the Security Forces in the past.
	The applicant's motive for the matter, as stressed before, is either coercion or fear, was in reaction to a bomb blast which may be irrelevant for the purposes of the abduction and was during the peak of the struggle and the abduction was to obtain information.  To his best knowledge the abduction was not to murder, only for the sake of gaining information.
	The applicant did receive financial remuneration from the state, but he received no reward for this.  The applicant stated to this Commission that he received beers, whether that can be classified as a reward he doesn't know.
	The applicant did not act out of malice, as I established before the Commission.  He didn't even know the deceased's name until the TRC hearings began.  
	In respect of proportionality, I would submit that the abduction was just a furtherance of the arrest, whether it was legal or illegal to him would have made not difference, he was just following orders at that stage.
	On these grounds, it is submitted the applicant should be successful in the amnesty and I would like to point out to the Commission that the probabilities are in the applicant's favour in this regard.  Thank you, Mr Chairperson.

CHAIRPERSON: Thank you.  Ms Gabriel.

MR VISSER: Mr Chairman, before Ms Gabriel goes on, there are one or two points that I'd forgotten about and perhaps it's better that I mention them before Ms Gabriel argues.

CHAIRPERSON: Yes, do, yes.