Amnesty Hearings — Durban — 1999-08-30

MR GORDHAN: I submit not, the armed struggle has been going on from 1961 and from day onwards the ANC has been infiltrating cadres, it's been training cadres, it's been recruiting people within the country, it's been setting up structures and I can go on, Advocate Bosman.  So Vula, whilst it was a big operation, should not be seen in isolation from the history of the struggle that this country has actually gone through.
	Reference was then also made to the fact that the armed struggle was still continuing at the point in time that the assault took place.  That's not true Chairperson.  The fact of the matter is that Mr Maharaj was detained on the 25th July, that in his pocket when he was detained was the actual draft of the ANC's proposal to be tabled in the discussions leading to the Pretoria Accord dated the 6th August 1990 which stated explicitly as the court itself will demonstrate that the ANC had the intention to suspend armed actions and that in any event was the implicit understanding that both the government and the ANC through the dialogue that they were having from February 1990 onwards and indeed prior to that, through Mr Mandela and Mr de Klerk, Mr Mandela and Mr Botha while Mr Mandela was still in prison.  That was the understanding that was already beginning to develop and to justify the assault on the grounds that either the Vula operatives or any other ANC operative was still engaging in active armed struggle is being less than frank with us.  Equally problematic, Chairperson, is to deflect the importance of what was happening here by making reference to problems between the ANC and IFP in KwaZulu Natal.  Now that alone will take many days of evidence ...(intervention)

CHAIRPERSON: Yes and I know and it was getting hotter and hotter at that period, it was the period with the SDUs and all sorts of things.  All three of us here, Mr Gordhan, are fully acquainted with it having ...(intervention)

MR GORDHAN: I have no intention of repeating the facts, saves ...(intervention)

CHAIRPERSON: In fact it crossed my mind when I was listening to the evidence about the cessation of the armed violence etc., it didn't take into account particularly what was happening here in KwaZulu Natal which continued right up through to 1994.

MR GORDHAN: But equally important is that a colleague of Mr Botha's of the same name Louis Botha was an instrumental person in passing on resources to the IFP and there's many things that have happened that I don't want to recall now save to say that that in my view and submission is purely a diversion which the Committee shouldn't become too preoccupied with.
	Then Chairperson, there are a number of contradictions that we've heard in the course of the day, contradictions about whether I was calm or aggressive, contradictions about my level of cooperation, or otherwise the duration of the whole assault itself, the difference in time between when the first interaction took place with Mr Botha and the second interaction, contradictions about the time of my arrest in relation to that of Mr Nyanda, contradiction about whether there was daylight or dark when this whole set of sagas actually emerged and all of which I believe indicates the fact that we haven't had sufficient frankness in the evidence put to us by Mr Botha himself.  It is my view that in the first instance, Chairperson, although Mr Botha has been quite frank about the fact that he solely took the decision to assault myself and that he went through some of those details in a fairly frank way.  He still has not, I think, addressed sufficiently and persuasively the type of equipment if you can call it that and how it was obtained in my view and in that sense in part we do not have sufficient detail being put before the Committee about the facts of the matter.  As far as political motive is concerned, Chairperson, there's no doubt this was a personal decision, it was part of a pattern which I believe Mr Botha has practised within the police, he admitted that he has operated outside the law, he has admitted that the Minister wouldn't necessarily be informed about what's going on.

CHAIRPERSON: Sorry, I think on that one, Mr Gordhan, all these amnesty applications relate to offences or crimes so if it wasn't out of the law, there's no point in somebody applying for amnesty for an entirely legal act so that is given that it should be an offence or a crime.

MR GORDHAN: Well let me put it in - thank you for that clarification.

CHAIRPERSON: Sorry or a delict I might say because one of the effects of the granting of amnesty is to affect the right of the victim to sue for compensation.  So it's a crime or delict.

MR GORDHAN: Well even the law which prescribed how detainees should be maintained and that law - and in fact guidelines were initiated during my first detention in 1981 when Mr Agget was in our view murdered or killed in the hand of - committed suicide I believe whilst in detention in Johannesburg.  But those laws are not followed, magistrates are ignored, district surgeons are not taken seriously so you have a paraphernalia, a set of mechanisms put into place which in fact are there for window dressing purposes and nobody actually took seriously.  One can only say, Chairperson, that a very high level of personal vindictiveness and culture of violence was or the previous position to violence was the motivating factor in this regard.
	As far as proportionality is concerned, I believe I have addressed that, the bulk of the information was available already.  As far as moles are concerned there was no impelling reason to find out who that mole was in that point in time, information that we wanted we already had and many things were done with that particular set of information and in any event that particular mole called The Owl was not a unique phenomenon in the relationship between the ANC and the police at that point in time.
	Finally, Chairperson, I believe that as the previous president would say we will have had less than frank answers, I believe, in the submissions put to you that there is no serious remorse about the kind of actions that were taken and the approach of Mr Botha as far as reconciliation is concerned is still wanting in sincerity in my view and I want to leave him with an appeal that he think seriously, not in my case, but having been party to the killing of Mbuso Shabalala and Charles Ndaba, that he gives very serious thought to letting those families have the bodies of their people, let those bodies be buried with dignity and with caring by their families and that perhaps when all these proceedings are over he should at least cooperate in that final and very important step of reconciliation to leave their minds at rest.  My assault doesn't necessarily feature in this regard.  Thank you.

CHAIRPERSON: Yes, thank you Mr Gordhan.  Mr Lalla do you have any submissions you would like to make?

MR LALLA: Yes Chairperson.  In regard to Mr Greyling, I have no objection to his amnesty application.  In regards to Mr Botha I'm in a bit of a dilemma.  Although I respect the Commission's viewpoint that his amnesty is for the individual assault of torture, I find it difficult to isolate all those various different assaults, incidents and killings which he himself has admitted to and to distinguish this between his personal character and that of an officer fulfilling the duties of a higher command.  But however, I leave it to the wisdom of the Commission to decide on his fate.  Thanks.

CHAIRPERSON: Thank you Mr Lalla.   Ms Thabethe, do you have any submissions?

MS THABETHE: No submissions, Chairperson.
NO ARGUMENT BY MS THABETHE

CHAIRPERSON: Any reply Mr Visser?