Amnesty Hearings — Cape Town — 2000-06-21

MR KAHANOVITZ: Yes, but it flows, I am not talking about a hypothetical proposition, from what you are saying now, the input that you put in, was never negative, it was always positive?

DANIEL F DU TOIT BURGER: Yes, in so far as the carrying out of the project was concerned.

MR KAHANOVITZ: And the selection of the target?

DANIEL F DU TOIT BURGER: Yes.

MR KAHANOVITZ: Now, you say that you did not apply for amnesty in respect of the burning of Anton Roskam's car, because that wasn't a gross violation of human rights, is that your evidence?

DANIEL F DU TOIT BURGER: At that stage.

MR KAHANOVITZ: Are you claiming that you received legal advise that you only apply for amnesty in respect of incidents involving gross violations of human rights, are you saying that is what your lawyer told you?

DANIEL F DU TOIT BURGER: Yes.

MR KAHANOVITZ: Which lawyer was that?

DANIEL F DU TOIT BURGER: Mr Hattingh.

MR KAHANOVITZ: Now, so let's go through this process.  It must follow then that you are claiming that "Project Apie" was a gross violation of human rights?

DANIEL F DU TOIT BURGER: It was regarded as a gross violation.

MR KAHANOVITZ: Would you care to explain to me why?

DANIEL F DU TOIT BURGER: We assumed that the briefing we got from our legal representatives were correct, that we must apply and that it might be a crimen injuria case against the character of Desmond Tutu.

MR KAHANOVITZ: You are not answering my question, I am asking you, I am not asking whether it is a crime, I am asking you why you are saying it a gross violation of human rights?

DANIEL F DU TOIT BURGER: That was the advise I got.

CHAIRPERSON: Were they actually talking about gross human rights violations at that stage?

DANIEL F DU TOIT BURGER: Yes Chairperson.

CHAIRPERSON: In 1991?

DANIEL F DU TOIT BURGER: Yes.

CHAIRPERSON: Because ...

MR KAHANOVITZ: What is your understanding of what gross violation of human rights was under the Act?

DANIEL F DU TOIT BURGER: I beg your pardon?

MR KAHANOVITZ: What was your understanding of what a gross violation of human rights was, what was your understanding at the time as  a lay person?

DANIEL F DU TOIT BURGER: I would say where you were involved in crimes of violence, potential violence.  I think that is about the best I can do, how I can put it.

MR KAHANOVITZ: So, burning someone's car, you don't regard as violence, an act of violence?

DANIEL F DU TOIT BURGER: Not towards a person.

MR KAHANOVITZ: But hanging a monkey foetus in their tree, is?

DANIEL F DU TOIT BURGER: That was my advice.

MR KAHANOVITZ: Are you seriously suggesting that you told your Advocate, you divulged to him the details of your involvement in the burning of Mr Roskam's car, this notwithstanding he advised you that it is not necessary to make any mention of that incident in your application, is that what you are saying?

DANIEL F DU TOIT BURGER: Yes.

MR KAHANOVITZ: Well, even as a lay person, reading that form, you will recall that there are questions for instance ...

CHAIRPERSON: The 1991 form now, the present form?

MR KAHANOVITZ: No, I am talking about the present form.  Let's look at your form at pages 130 to 136.

CHAIRPERSON: It is Bundle A.

MR KAHANOVITZ: Look at page 132.  As I understood your evidence in chief, your current Attorney says he wishes to accept responsibility for the fact that the word "no" was inserted under the question "state whether any person was injured, killed or suffered any damage to property" as a result of such acts, omissions or offences", are you with me?

DANIEL F DU TOIT BURGER: Yes.

MR KAHANOVITZ: So I infer from that that the Attorney sitting next to you, is the person who was giving you advice at the time that you filled in this form?

DANIEL F DU TOIT BURGER: Mr du Plessis referred us to Adv Swiegelaar.

MR KAHANOVITZ: Excuse me?

DANIEL F DU TOIT BURGER: Adv Swiegelaar assisted us with these forms.

MR KAHANOVITZ: Who is he?

DANIEL F DU TOIT BURGER: It is a she?

MR KAHANOVITZ: She?

DANIEL F DU TOIT BURGER: Cecile Swiegelaar, Adv Cecile Swiegelaar, Johannesburg Bar.

MR KAHANOVITZ: Yes, and are you saying you went to her office and she gave you advice to enable you to fill in this form?

DANIEL F DU TOIT BURGER: Yes.

MR KAHANOVITZ: And that the Attorney who attended on that occasion, was who?

DANIEL F DU TOIT BURGER: Mr du Plessis gave us the instruction.

MR KAHANOVITZ: Mr du Plessis was the Instructing Attorney?

DANIEL F DU TOIT BURGER: Yes.

CHAIRPERSON: I think Mr Kahanovitz wants to know was he there at the consultation?

DANIEL F DU TOIT BURGER: No, he was not present.

MR KAHANOVITZ: So the form was prepared at your Advocate's chambers?

DANIEL F DU TOIT BURGER: Yes.

MR KAHANOVITZ: And you subsequently swore an oath that what was contained in that, was true and correct?

DANIEL F DU TOIT BURGER: Yes.

MR KAHANOVITZ: Where did that happen, at the Advocate's chambers?

DANIEL F DU TOIT BURGER: I cannot remember.

MR KAHANOVITZ: You cannot remember?

DANIEL F DU TOIT BURGER: No.

MR KAHANOVITZ: Who was the Commissioner of Oaths?

DANIEL F DU TOIT BURGER: Mr du Plessis.

MR KAHANOVITZ: Is Pieter Jacobus du Plessis your Attorney sitting next to you?

DANIEL F DU TOIT BURGER: I only know him as Piet du Plessis, I don't know if he is Jacobus as well?

MR KAHANOVITZ: He seems to indicate that he is.  I would infer from that, that you took this form back to his office if he wasn't at the Advocate's chambers and you swore an oath on the 2nd of December 1996, that what was contained in this form, was true and correct?

DANIEL F DU TOIT BURGER: Yes.

MR KAHANOVITZ: And  why is it that your Attorney is claiming that it is his fault that the form was filled in in such a way that where it said that no property was damaged or anybody was injured, why is he saying that it is his fault if there is such a mistake in the form?
	Maybe I should preface it by pointing out you did initial each page and signed the end, are you with me?

DANIEL F DU TOIT BURGER: Yes, I did.

MR KAHANOVITZ: Why should it be his fault?

DANIEL F DU TOIT BURGER: I think sir, the responsibility to fill in the forms and check them properly, was the responsibility of my legal representative to do that, and I wouldn't attach my statement to that form, in which I then state exactly the opposite.

MR KAHANOVITZ: Mr Burger, I am going to put it to you that there is no prospect that any competent lawyer who you told about the Roskam incident, would have told you that you cannot apply for amnesty for that, because it is not a gross violation of human rights.

DANIEL F DU TOIT BURGER: Well, that was the advice given to me at the time of my application.  I accepted it.

MR KAHANOVITZ: Did you also tell your Advocate and your Attorney that you lied under oath at the Harms Commission and the Webster Commission?

DANIEL F DU TOIT BURGER: Yes.

MR KAHANOVITZ: You did tell them?

DANIEL F DU TOIT BURGER: Yes, I told this Mr du Plessis.

MR KAHANOVITZ: And you sought advice from them as to whether or not maybe you should apply for amnesty for perjury?

DANIEL F DU TOIT BURGER: No.

MR KAHANOVITZ: You didn't?  Now, I am going to put it to you that the reason you didn't apply for amnesty in respect of the Roskam incident, has got nothing to do with the version that you are putting forward now, that you received legal advice of the sort that you claim, when you and the other members of the CCB, who are applying for amnesty here, filled out the forms and attached the statements, your approach was to only apply for amnesty for those things that you were aware of, that other people already knew about.  You were only prepared to talk about those things that were already out in the public domain, by and large as a consequence of what happened during the Harms Commission?

CHAIRPERSON: Are you saying Mr Kahanovitz, that that could be linked to the applicants?

MR KAHANOVITZ: Yes.