Amnesty Hearings — Durban — 1999-10-09

HENDRIK JOHANNES PETRUS BOTHA: Chairperson, my evidence before the Committee today is my final evidence regarding these incidents.

MR WILLS: Can you answer my question please.

HENDRIK JOHANNES PETRUS BOTHA: It does not appear anywhere in the initial application, my evidence before the Committee today is my final evidence.

MR WILLS: Why did you not include it in your first affidavit under oath?

HENDRIK JOHANNES PETRUS BOTHA: Because I did not regard it as significant enough, if somebody dies it would be an important event to me.  If her assault was the cause of her death, and in my opinion if that was the case, I would have stated so, but in my opinion she died as a result of a heart attack.

MR WILLS: Do you know that there's a requirement in order to get amnesty, that you have to fully disclose the circumstances of your involvement in a gross human rights violation?

HENDRIK JOHANNES PETRUS BOTHA: That is correct, Chairperson.

MR WILLS: Did you know that at the time when you filled this application in?

HENDRIK JOHANNES PETRUS BOTHA: That is correct, Chairperson.

MR WILLS: So surely you must concede that being a policeman, on your version, present at a serious assault which some people have described as torture, involves a gross human rights violation?

HENDRIK JOHANNES PETRUS BOTHA: Once again I will say, that is why it was included in my supplementary evidence before the Committee today.

MR WILLS: I want to know why, in your full knowledge that this was a gross human rights violation, why you did not include it in your first application?

HENDRIK JOHANNES PETRUS BOTHA: I will reiterate so that Mr Wills can understand it, perhaps he does not understand Afrikaans.  I will, perhaps we could just interpret it more clearly for him.  I did not regard it as significant enough to include in my initial application, later I was advised that it would be better to include it.

MR WILLS: I put it to you that you were hiding this fact and hoping that nobody would uncover it.

HENDRIK JOHANNES PETRUS BOTHA: It was not mentioned in the initial application, but that was not the purpose behind it, I simply did not regard it as significant enough.

MR WILLS: I put it to you that it's an extremely significant aspect of the application and the proceedings and that you knew at the time that it was and you purposely hid it.

HENDRIK JOHANNES PETRUS BOTHA: No, Chairperson, I deny that.

MR WILLS: Can you tell me, I want to refer to page 16 of your initial application, your answer to paragraph 9 (a)(i).  Now I want you to tell me what you actually are applying for amnesty for in respect of the death of Mrs Khubeka.

HENDRIK JOHANNES PETRUS BOTHA: Chairperson, I will read it to you.

MR WILLS: I'm  wanting you to read first of all paragraph 9(a)(i) in the application on page 16.

HENDRIK JOHANNES PETRUS BOTHA: I will read it to you
"Deeds, Omissions or Offences:  Defeating the ends of justice.  I hereby apply for amnesty for any offence and unlawful deed based upon my involvement in this"
and I continue:
"unlawful arrest of Nthombi Kahiso Khubeka, unlawful detention, culpable manslaughter with regard to the death of mentioned Khubeka, assault of mentioned Khubeka or any such minor deed which may emanate from the circumstances including conspiracy, aiding and abetting, or defeating the ends of justice in terms of the aforesaid incident, any other offence or unlawful deed which may emanate from the evidence."
That is what I am applying for, Chairperson.

MR WILLS: Are you applying for the murder of Mrs Khubeka?

HENDRIK JOHANNES PETRUS BOTHA: No, Chairperson.

MR WILLS: So you're saying that you could not foresee in the manner she was assaulted in those circumstances, that she might have died as a result of that?

HENDRIK JOHANNES PETRUS BOTHA: That is correct.

MR WILLS: Now, why is it that in your initial application, you emphasised this obstructing or defeating the course of justice and nothing else?

HENDRIK JOHANNES PETRUS BOTHA: Chairperson, this statement was compiled by myself without any legal representation.  It was compiled at a very late stage, very speedily and this was my version of my application.  Later I was advised with the complete version by my legal representative.

MR WILLS: Why didn't you write assault there?

HENDRIK JOHANNES PETRUS BOTHA: Because I did not write it down.

MR WILLS: That's why I'm asking, I would have thought that you would have.

HENDRIK JOHANNES PETRUS BOTHA: Well I didn't think so.

MR WILLS: Why not?

HENDRIK JOHANNES PETRUS BOTHA: Because I don't think the way that you do, Mr Wills.

CHAIRPERSON: Did you not think that you had been associated with, that you had associated yourself with the assault upon Mrs Khubeka, Ms Khubeka?

HENDRIK JOHANNES PETRUS BOTHA: Chairperson at the stage of submitting my amnesty application, I did not regard it as such.  To me her death was a natural death which created an unfortunate situation.

CHAIRPERSON: I'm talking about the assault, the assault committed by Col Taylor upon her, the lashing of Ms Khubeka with a sjambok, did you not consider yourself to have associated yourself with that assault and therefore that you might be liable in some respect or culpable in some respect relating to that assault?

HENDRIK JOHANNES PETRUS BOTHA: No, Chairperson, assault was not a consideration for me to apply for amnesty.  I've already testified about this yesterday.  I'd already received indemnity for such deeds.

ADV BOSMAN: Did you associate yourself with the assault?

HENDRIK JOHANNES PETRUS BOTHA: Yes I did.

MR LAX: Why did you apply for amnesty at all if you believed you had received indemnity?

HENDRIK JOHANNES PETRUS BOTHA: For assault.

MR LAX: Well surely the indemnity covered all the offences that you might have ...

HENDRIK JOHANNES PETRUS BOTHA: Chairperson, I think you should just consult the Act.  There's a very clear definition of it.

MR LAX: I want to know what was in your mind, you don't have to tell me what to read and what not to read.  I've read the law, I know the Indemnity Act and the Further Indemnity Act.   I'm asking what was in your mind?

HENDRIK JOHANNES PETRUS BOTHA: Assaults, explosions, something during which people were killed, not as the result of a planned set up, or seriously injured as a result of a planned set up.

MR LAX: And this disposal of the body, it wouldn't have been covered by the indemnity?

HENDRIK JOHANNES PETRUS BOTHA: No Chairperson, in my opinion it was that I'd committed defeating the ends of justice, that the death of the person was covered up.  I felt that it would not fall into that category.

MR LAX: Please carry on, Mr Wills.

MR WILLS: Thank you Mr Chairperson.  Mr Botha, I want to give you an opportunity to tell us what happened in that room.  The family members are here.  They've travelled from abroad.  We want to know what happened in that room on that last day.  Can you proceed?  Tell us exactly what happened from the time you got her into the room.

HENDRIK JOHANNES PETRUS BOTHA: Chairperson, what took place 13 years ago is difficult to describe in detail.  I've tried my best to explain to you in my evidence who was present.  The extent of the questions which were put to her, what followed when there was a negative response or when Col Taylor would deal the blows with the sjambok to her in order to emphasise the seriousness of his point, to the point that she gasped for breath, fell over and passed away.

MR WILLS: Do I understand your evidence that you, on your version, associate the assault as a nexus and a cause of the death that followed?

HENDRIK JOHANNES PETRUS BOTHA: No Chairperson, that which took place, brought me under the impression that she had died as the result of a heart attack.  The manner in which it took place, the fact that she urinated, that she fell over, that she gasped and urinated and then died.