______________________________________________________ CHAIRPERSON:   Mention was made yesterday of what time would we be adjourning tomorrow, and I made certain remarks. One of my colleagues pointed out to me later that because I happen to be spending the weekend here I was perhaps being a little unsympathetic to others, and suggested that we should, if we can, shorten the lunch hour today to half an hour, to start a little earlier tomorrow morning, if we can, and to continue tomorrow’s hearing until two o’clock, which would make up for the two hours that we then don’t sit for, so there would be no question of us sitting shorter hours. I gather that somebody is having some meeting this afternoon that makes it difficult for us to continue this afternoon late, so we won’t sit late this afternoon. Does that suit you all, gentlemen? I gather you get your lunch here and that you don’t have to go anywhere, so that half an hour ...

Very well gentlemen, we’ll operate on that basis, and when I say adjourn at two, if somebody finishes arguments at half past one, quarter to two, we adjourn then. If he needs another fifteen minutes - but we’ll aim for that, so you can make your arrangements accordingly. Right?

MR DU PLESSIS IN ARGUMENT:   Thank you Mr Chairman. Mr Chairman I have presented you with two sets of Heads of Argument which are quite voluminous.

   Mr Chairman both yourself and Mr de Jager will be well conversant I hope and suppose with the Heads and general tenor of the Heads. These are more or less the same Heads of Argument that I presented you, with the Cronje matters. All I have done is I have worked the evidence of this matter, as well as the Court’s own Cosatu House matters when I presented those Heads, into these Heads of Argument, so the further we go with this process the longer my Heads are going to become. Mr ...(intervention)

MR BIZOS:   Mr Chairman I don’t want, I merely wish to place on record that I’m not arguing anything at this stage because I’ve just been given these two volumes. Mr Chairman we reserve our rights on the right of the applicants to place what evidence was led in other proceedings, of which we had no opportunity of traversing, and on a cursory look of these heads it would appears that such evidence is incorporated in these Heads. I merely wish to state that as a reservation of our rights, I don’t know to what extent it may assist or prejudice any of the parties, but we reserve our rights to object to either the whole or the specific passages that ...(intervention)

CHAIRPERSON:   I don’t know what portions you’re referring to Mr Bizos, but it is our practice, and will continue to be our practice, in an endeavour to complete our task within a reasonable time, to have regard for evidence led at other hearings by persons like General van der Merwe, and Ministers and others, that we do not have to repeat such evidence at each hearing. It is evidence which has been led before us and which we accept as the, what would have been led if it was led again. If you wish to attack any particular passage in it, or any particular assumption, what we had in mind then was notice should be given and that person should be recalled to be subject to cross-examination on that point. But otherwise we seek to avoid repetition of what we could perhaps call formal evidence. Now I don’t know if you’re talking about that sort of thing, or actual factual evidence as to events.

MR BIZOS:   I only see that there are numerous passages in relation to evidence referred to there, to which we have not been privy hereto Mr Chairman. So that we reserve our right in that regard.

MR DU PLESSIS:   Mr Chairman, before I go ahead I would like to respond to that now. We can deal with it later as well, but in the evidence of Mr Raven, of my client, and I believe in the evidence of Mr Bizos' clients as well, and I think Mr Williamson’s evidence, I elicited that in cross-examination too, reference was made to the evidence of Brigadier Cronje, of Mr Vlok, of General van der Merwe. There was at that time, as far as I can recall, no opposition from Mr Bizos or anybody else. If there was opposition we would have dealt with it, and if it was necessary we would have recalled these witnesses which we don’t regard as necessary.

Secondly, Mr Chairman, in various decisions of the Amnesty Committee you approached the matter in the way that you indicated that you will approach it, and we approach it on that basis too, Mr Chairman. The records have been on the Internet site for, I think, well over a year, or a year and a half now, in respect of the Cronje matter, and the Cosatu and Khotso House hearings have also been available on the Internet, and from the Truth Commission.

ADV DE JAGER:   I think the only thing is, whenever you want to sort of incorporate something, or refer to something specifically, I think every interested party’s attention should be drawn to that. You can’t expect an interested party to go through all the records in Internet, and that sort of thing. If you want to use such evidence you should refer to it, and I may say Mr Bizos included some of the, by reference, some of the previous statements, the Security Force statements, we had the ANC’s submissions to the TRC, that sort of thing. But let’s go on. I don’t think we need argue it now. Mr Bizos made us aware and so we’ll deal with it when it comes up.

MR DU PLESSIS:   Yes Mr Chairman. I have obviously not in the Heads referred you to the specific passages where, this evidence was led incorporating the evidence, I will go back and I will give you those passages. I led that evidence specifically, of Mr Raven, of what he includes. I didn’t refer to specific parts of the evidence, but in, in respect of the political background, and that’s really where this evidence comes in, not pertaining to the specific facts of this matter.

Mr Chairman, unless you indicate to me otherwise, perhaps because of your knowledge of some of the arguments in the Heads of Argument, I intend to deal with some of the arguments, not everything, with some of the arguments until you give me an indication that you do not want to hear me further on a specific point, Mr Chairman. That is the attitude I want to approach in this regard.

Mr Chairman if I may refer you to the Heads of Ruth First and Jeanette Schoon. What I did Mr Chairman, I presented you now with two sets of Heads of Argument. What I did was, in respect of Gerry Raven, I incorporated all the references with respect to the London bomb incident, also into the Ruth First and Jeanette Schoon Heads. So although there are two sets of Heads of Argument, I’m not going to take you through both. I’m going to argue the three incidents with reference to the Heads of Argument with Ruth First and Jeanette Schoon. And at the end I will refer you to the last few pages of the London bomb Heads of Argument, just with specific reference to certain aspects. I did this to make it easier for you, Mr Chairman, otherwise you would have had to have regard to both sets.

CHAIRPERSON: ...(indistinct)

MR DU PLESSIS:   Yes I don’t have any objection Mr Chairman. The Ruth First, Jeanette Schoon Heads of Argument would then be volume one and the other set would be volume two.

Mr Chairman, then if I can start with the beginning of my Heads of Argument, volume one, I have endeavoured to set out the principles which have to be proved by the applicant with reference to the specific sections of the Act. Now I don’t intend to draw your attention specifically to the sections of the Act because I’m sure after now you know this Act probably by heart already, Mr Chairman.

However, I want to point out to you certain aspects, and certain provisions in the Act, which I submit are important, and which one would have to constantly keep in, or take into account when you deal with this.

Firstly, I want to refer you to paragraph 7 of the Heads of Argument on page 3. To section 20, Sub-Section 4. There it is specifically stated that the criteria applied by the previous Indemnity Acts should be taken into account. Now that becomes applicable later in the argument, because of the way those Acts were formulated. Those Acts were formulated much more broadly than the current Act. They were applied on a very broad and wide basis, and secondly, an important aspect in the argument, namely the application of a subjective test overriding certain objective factors, is much more eminent in those Acts than in the current Act.

Now Mr Chairman there are really two important aspects which one has to prove, and that appears from, three actually, section 20 Sub-Section 1, A, B and C. Sub-Section 1 is simply the formalities of the Act, which I submit have been complied with. C refers to a full disclosure of all relevant facts, and I will deal with that part of the argument right at the end. And then B, one must prove that the act, omission or offence to which the application relates is an act associated with a political objective, committed in the course of conflicts of the past. And then in respect of the question if an act is associated with a political objective, the factors set out in section 20 Sub-Section 3 become applicable, and they have to be applied to determine if a person acted with a political objective, or if the act was associated with a political objective.

Now, Mr Chairman, that takes care of the Heads of Argument up to paragraph 8. In paragraph 9, section 20 Sub-Section 2, is dealt with. Now, Mr Chairman, in terms of the Act an applicant has to prove either that he falls under section 20 Sub-Section 2 Sub-Section A, in respect of the applicants, or Sub-Section B. The requirements are repeated in paragraph 9, and I can, I refer you to my Heads of Argument, they really repeat the Act, Mr Chairman.

The requirements of section 20, 2 A, are really four, as set out in paragraph 9. An applicant has to prove that he was a member or supporter of a publicly known political organisation, that he acted on behalf of or in support of such organisation or movement, bona fide in furtherance of a political struggle waged by such organisation, against the State or another publicly known political organisation, or liberation movement.

Now Mr Chairman, in respect of these four principles referred to in paragraph 9 of my Heads of Argument, and set out in Section 20(2)(a) of the Act, my submission is that my client, Mr Raven, is covered by, or his evidence covers, these principles. You would have noted that in his evidence, as well as the evidence of all the other applicants at this hearing, as well as evidence of the applicants at previous hearings, a lot of emphasis was placed on the fact that they acted for and on behalf of the National Party. They acted as the police of the National Party. They acted as supporters of the National Party, which was a publicly known political organisation. And they acted on behalf and in support of that organisation, and then they acted in a political struggle against the liberation movement. Then Mr Chairman, that is as easy as that. I could really have ended my argument here, because in my submission ...(intervention)

CHAIRPERSON:   Did they act as members or supporters of a political party, or did they act as employees of the State?

MR DU PLESSIS:   Mr Chairman, both. But for purposes of Section 20(2)(a), it is not important if they acted as employees of the State. It is important that you have regard to the fact that their actions were actions also as members or supporters of a publicly known political organisation, in support of such organisation. They testified that the Security Police was really the military arm of the National Party. It was a political institution. In my submission, the fact that they were employees of the State obviously makes Sub-Section B relevant, but it doesn’t mean that it, they cannot be included or fall under the auspices and the wording of Section A, Sub-Section A. They fall under that Sub-Section, Mr Chairman. And you ...(intervention)

ADV DE JAGER:   Perhaps then an account should be sent for their travelling expenses, to their party.

MR DU PLESSIS:   Well Mr Chairman, in the light of the evidence that was presented here, it was clear, and I refer in the Heads of Argument later to that Mr Chairman, in their evidence that they have at all relevant times been supporters of the National Party and that they acted to keep that party in power, and that that was, that they acted as such from a political perspective.

Now Mr Chairman I don’t have to rely on Sub-Section A. One can rely on Sub-Section B, which was clearly written into the Act for purposes of Security Forces, and it makes the test a little bit more difficult in terms of Sub-Section B. Sub-Section B requires that an applicant had to be an employee or a member of the Security Forces, that he had to act in the course and scope of his or her duties, within the scope of his or her express or implied authority. And one should read that together with Section 20(2)(f), which states that any person referred to in Sub-Section B, who on reasonable grounds believed that he or she was acting in the course or scope of his or her duties and within the scope of his or her express or implied authority. So it’s not just a question, an objective question, did he act within the scope of his express or implied authority, but you have to read it with (f), which says, did he believe on reasonable grounds that he was so acting, even if he wasn’t, from an objective point of view. So Sub-Section F introduces a subjective test, whereas in Sub-Section B, one has an objective test pertaining to the question did he act within the scope of his or her express or implied authority. Now I will come back to the evidence pertaining to this, but the evidence, in my submission, before you, is that both these tests have been satisfied in respect of the evidence.

Then on page 6, 10.3, must have been directed against a publicly known political organisation or liberation movement engaged in a political struggle against a State or a former State. Now that would be the liberation movement such as the ANC, PAC, SACP of which we had lots of evidence in this area. Or against any members or supporters of such organisation or movement. We’ve had ample evidence that all the victims at these hearings, especially in the Schoon and First incidents, were supporters of the ANC and the liberation movements. And then ...(intervention)

CHAIRPERSON:   Who?

MR DU PLESSIS:   Schoon and First, in the Schoon and First incidents.

CHAIRPERSON:   You said something about all ...(indistinct)

MR DU PLESSIS:   No, no I said the victims in the Schoon and First incidents. That would be Ruth First, Jeanette Schoon, and I will come to the argument in respect of Katryn Schoon.

CHAIRPERSON:   You cannot say she was a member.

MR DU PLESSIS:   No, no obviously I cannot Mr Chairman, but I’ll come to the argument about civilians and how one should deal with it. And especially a child in her position. An then five, which was committed bona fide with the object of countering or otherwise resisting the struggle.

Now in respect of that Mr Chairman, what I intend to do in the Heads of Argument is to deal with each of these requirements separately. I also intend to deal with each of the requirements in Sub-Section 3 of section 20, where one has to test if an act, omission or offence is an act associated with a political objective, to apply each and every one of them to the facts in this matter and test the evidence, and see if the evidence complies with those requirements.

Mr Chairman, in paragraph 12 I refer to the Transvaal Provincial Division decision, which was a judgment of Mr van, his lordship Mr Justice van Dykhorst, in respect of the previous Indemnity Act. And he dealt with the application of the principles in that Act, which were really the Norgaardt principles, which were really just repeated in section 20 Sub-Section 3 of the Act. And in my submission Mr Chairman, it is very important to have regard to this judgment, as this judgment gives a, or has formulated, a particular approach towards the Norgaardt principles in Sub-Section 3.

Now I just want to refer you to one or two points from this decision, and I will get back to the decision later. In respect of section 20(3)(b), which relates to the context in which the act, omission or offence took place, which has to be taken into account, his lordship Mr Justice van Dykhorst found that:

So, he really found that the meaning of Sub-Section B in Sub-Section 3, means that it does not necessarily just have to relate to a political uprising, disturbance or event but also to the war situation which was prevalent in the country at the time.

Section 20(3)(d), which refers to the object or objective of the act, his lordship found that the test in terms of this guideline was not whether the act is lawful, but whether a cause was served. For example the political opponent or its property was targeted, as opposed to private individuals and their property.

And then F which refers to the so called proportionality test, this is important Mr Chairman. His lordship Mr van Dykhorst found that in that regard, something akin to a war situation has to be envisaged, and he found that it could never be that the killing of a political opponent would mera motu not be proportional to a political objective. So he found that the killing of a political opponent can under the circumstances be proportional to the political objective.

And then Sub-Section E, which refers to the question of authority, or, you will note that Sub-Section E is a bit wider than section 20, 2, B, because it doesn’t only refer to the authority in a legal way, but it also says whether the act was committed with the approval of the organisation, institution or liberation movement, or body of which the person who committed the act was a member or supporter. So it goes wider than simply the authority test. It refers also to the question if the person acted with the approval of the organisation. His lordship Mr Justice van Dykhorst referred to the superior order test, that’s paragraph 13.4 of the Heads of Argument, where he referred to the fact that a private soldier is protected from liability for acts done in obedience to the orders of a superior office, if the orders are not so manifestly illegal that the soldier must or should have known them to be so, and if a soldier honestly believes that he is doing his duty in obeying them.

Now, Mr Chairman, if we can then turn over to paragraph 15 of the Heads of Argument, I refer to the du Preez decision, it has been reported now in the Law Reports. I have included the reference, but it’s well known. And then the AZAPO case in paragraph 16.

Mr Chairman before I go on maybe I must just mention that I was under immense pressure yesterday to finalise the Heads of Argument, so there will be some spelling mistakes and certain other mistakes, which I apologise for. I didn’t have time to correct it. And certain references were repeated, which I had to take out, which I didn’t have time for. So I just draw your attention to that.

Mr Chairman, then if we can turn over to page, to paragraph 18, if I can refer you to that, reference is made in this paragraph to the argument in the AZAPO case about the applicability of the Geneva Conventions. Now I’m not going to belabour this point, Mr Chairman. It has been dealt with in the Heads of Argument, and my argument has been set out later in much detail. The only important point in respect of the AZAPO decision, was that the Court found that it was doubtful if the Geneva Conventions really apply to the situation in South Africa.

Mr Chairman then, paragraph 23. I refer again to the previous Indemnity Acts and I emphasise the use of the word shall be taken into account. Again Mr Chairman that is important when one has to decide if a narrow or wide approach in the interpretation of the whole section 20 should be applied.

Mr Chairman then I refer in paragraphs 24 and 25 to the guidelines and the principles applicable to the previous Indemnity Act. I’m not going to go through them, but it is important, Mr Chairman, in paragraph 28, if one reads the wording of the further Indemnity Act of 1992, it is clearly, it was clearly formulated with a view to a subjective test. (a) at the bottom of page 15 refers to a person who acted with a view to the achievement of a political act, for the promotion or combatting of an object or interest of any organisation, with a bona fide belief, which is again subjective, or with the approval, or an instruction, or in accordance with the policy of such organisation.

In my submission, Mr Chairman, this clearly indicates a subjective approach to amnesty. It is not a question of objectively determining was there a political motive? Did a person act with a political motive? It is a question, what was in the mind of this person when he acted? Did he, was he, convinced that he acted with a political objective? And I will come back to that argument again. I want to make the point now already Mr Chairman that from scrutinising your judgements, or the Committee’s judgements in other decisions, it has become clear to me that it has been applied every time with the emphasis on a subjective approach instead of an objective approach.

Paragraph 29 I refer to the fact that the test is a very wide test, and it should be an indication of that section 20 should be interpreted in a wide fashion.

Then I refer in paragraph 30, to members of the ANC who received indemnity, other indemnity notices in respect of other people who received indemnity.

Paragraph 34, I refer to the Groote Schuur minute, which referred to the definition of political offences in the South African situation, and the Norgaardt principles were endorsed by that minute.

Then paragraph 35 I refer to the Norgaardt principles and the fact that they were applied in Namibia. Mr Chairman the second last sentence of that paragraph 35, I say that the Norgaardt principles were applied in a wide and embracing way in Namibia. And this clearly reflects an attitude of benefit of doubt in the applicant for amnesty, and latitude in applying the principles. I will come back to the Norgaardt principles Mr Chairman, but the essence of the argument is that if one has to interpret Sub-Section 3 of section 20, one had to have regard to where this, where these principles come from, where were they derived from, and where have they been applied in similar situations? Now the only place where these principles have practically been applied previously, before the South African situation, was in Namibia, where they were applied by Professor Norgaardt himself, who were also the author of these principles. These principles were formulated by Professor Norgaardt with reference to international principles pertaining to the political offence, defence in extradition law. There is a vast body of authorities referring to that in international law. I refer later in the Heads of Argument thereto. It is important Mr Chairman, therefore, to have regard firstly, in the interpretation of Sub-Section 3, to how the Norgaardt principles were applied in Namibia, firstly, and secondly, where do they derive from and how did it come about that they were formulated in the way they were formulated. It is important for this reason Mr Chairman, and that is that if one analyses the international extradition law, one realises the dichotomy between a subjective test of a political offence, and an objective test. And then if one looks at the approach of Professor Norgaardt in Namibia, and you determine how did he apply his own principles which he formulated, one sees that he formulated those principles with an overriding emphasis on the subjective application of these principles. The subjective principles of Section 30(3), were more important in his application than the objective.

ADV DE JAGER:   Would that not only apply if we ourselves could not interpret the present Act, if there is doubt about interpretation then we could go to sort of other sources in order to help us with the interpretation, but if the Act of itself is clear, and could be interpreted on the words of the Act?

MR DU PLESSIS:   Yes, no Mr Chairman, obviously that’s the normal way of interpretation, but in my submission, it is important to have reference to how these principles arose. I know that from the strict interpretation principles of interpretation of Statutes, you interpret the Statute and only in a case of doubt you have reference to all extraneous factors. It is, however, important to present you with argument pertaining to the origin of these principles, and especially how they were applied in other jurisdictions, Mr Chairman. With reference to a comparative analysis of the Act. It is a principle that you can take into account when you interpret the Act. I’m not saying you have to Mr Chairman, I’m trying to present to you the most complete argument possible pertaining to this.

Then, Mr Chairman, I refer in paragraph 36 to the indemnity of Barend Strydom and Robert MacBride in respect of the old Indemnity Acts, and how they were applied.

And then in paragraph 38, ...(intervention)

ADV DE JAGER:   For anybody seeing the orders issued in those cases, because we’re often referred to these, and on the other hand, according to some information, it was only parole that’s been granted to them, and not indemnity.

MR DU PLESSIS:   Mr Chairman I didn’t go into the specific notice in respect of the Act which was published. As far as I am aware, there were simply notices published and no specific reasons or judgments were given when these people were granted amnesty.

CORNELIUS:   I might be able to assist, I acted for Barend Strydom - Cornelius, and it was a form of parole that was granted.

MR DU PLESSIS:   I’m indebted to my learned friend, Mr Chair. Mr Chairman then in paragraph 38, I refer to the Norgaardt approach, in which a political motive from a subjective point of view, was considered as an essential prerequisite for a criminal offence being designated as a political one.

Then I make the point in paragraph 39 which I’ve already made about the further Indemnity Act.

Then I want to take you Mr Chairman, to paragraph 43. The reference to Rautenbach’s article on the application of the Norgaardt principles. And then in respect of that, on the next page, page 23 Mr Chairman, in the middle of the page, the sentence starts with

... the right hand part of the page:

Now that is important, Mr Chairman, for purposes of how one should deal with actions against civilians, and also included in that, people who got caught in the cross-fire, Mr Chairman, such as Katryn Schoon.

Now, Mr Chairman, I deal in paragraph 44 with how amnesty was dealt with in other countries, and I’m not going to deal with that with you. You can read that, and I suppose you have read that already.

Mr Chairman then in paragraph 52, I refer to the use of the word ‘satisfied’ in the Act. Now, Mr Chairman in my submission it is important to have reference to this word, because this really explains the onus that an applicant has to satisfy. It is not a test on a balance of probabilities, or beyond reasonably doubt, it is simply reference to the word ‘satisfied’. And my submission, Mr Chairman, with reference to what the word means, it refers to the discretion that the Committee has, which is a bound discretion and not an unfettered discretion as referred to in paragraph 55. This means that the Committee must be satisfied that an applicant has shown that he is entitled to amnesty with reference to the factors in the Act. The Committee should apply its mind according to the requirements of the Statute and the tenets of national justice.

Then paragraph 57, it should have regard to all relevant information. I refer in paragraph 58 again to the authorities pertaining to the principles applicable to Statutory Tribunal. And then I make the submission, Mr Chairman, in paragraph 59, that the Committee should take into account all the information and evidence placed before the Committee relevant to the Committee’s discretion.

Now in my submission, Mr Chairman, satisfy incorporates a test which should be interpreted, in my submission, the same way as the test in a civil case, on a balance of probabilities. It doesn’t say so, but it cannot be a higher test than that. And that is as far as I am aware, how the use of that word has been interpreted in administrative law decisions previously. CHAIRPERSON:   ...(indistinct)

MR DU PLESSIS:   It’s a point that I’m making now Mr Chairman. I don’t think that I’ve made that point clearly in the Heads of Argument. I don’t make it clear in the Heads of Argument. You can incorporate the note in paragraph 54, Mr Chairman, that’s probably the most appropriate place.

ADV DE JAGER:   ...(indistinct) The test is one of balance of probabilities ...(indistinct)

MR DU PLESSIS:   Yes, yes. Now Mr Chairman I intend now to deal with the specific requirements point for point, with reference to the evidence. I will try to be as short as possible.

Firstly, section 20, Sub-Section 1, Sub-Section B,

Now Mr Chairman in my submission, this ...(intervention)

CHAIRPERSON:   That’s paragraph 65 now, you’re dealing with?

MR DU PLESSIS:   Yes, Mr Chairman, I’m sorry. From paragraph 65 onwards Mr Chairman.

In my submission, it was made very clear in the evidence before you, that we were dealing with act directly committed in the course of the conflicts of the past. Extensive evidence was led pertaining to the conflicts of the past. The background to it, the political uprisings, the ANC’s people’s or the counter-revolutionary strategy of the South African government and the South African Security Forces, and then I refer to the fact that even Gillian Slovo in her evidence confirmed that it was a war situation. I refer to Mr Raven’s evidence. You will see there where it simply says ‘record’ with no reference to what matter it was, it means this matter, Mr Chairman. Paragraph 65, you will see there it says "See record", and if the reference in these Heads only refers to ‘record’ it means this hearing, otherwise I will refer to which hearing the reference relates to.

Mr Chairman, paragraph 66, the evidence throughout the hearings in respect of the applications indicates clearly that the South African government and the National Party was engaged with the liberation movements in a low intensity war. This was supported by the evidence of Mr Vlok and General van der Merwe. And the evidence at all times was in respect of all the applicants, and that goes specifically for Mr, in respect of Mr Raven and Mr Williamson and I believe all the other applicants before you in these matters, that they were either members or supporters of the National Party and its policies. I give the specific references there. General van der Merwe’s evidence, the Cronje hearings, Brigadier Cronje’s evidence, I refer to the Cosatu Khotso House hearings, and then in general I ...(intervention)

MR BIZOS:   I’m sorry to interrupt my learned friend. Could we have placed on record, Mr Chairman, whether the three Members of the Committee hearing this application, were Members of the Committee at these various hearings that are referred to. Were all Members of this Committee Members of the Committees that decided these matters?

MR DU PLESSIS:   Mr Chairman at least two of you were, in respect of all these applications.

ADV DE JAGER:   ...(indistinct) weren’t Members of the ...(indistinct). Mr Sibanyoni wasn’t a Member of the Amnesty Committee at that stage at all.

MR BIZOS:   We can note that one Member of the Committee was not in the applications that are referred to. Is that correct, Mr Chairman? Because we will submit that that has certain consequences, as to whether the Committee can take cognisance of anything that was said in those hearings.

MR DU PLESSIS:   Mr Chairman I have to respond to this in the following way. If this objection was made when the evidence was led during the hearing, I and probably the other representatives here, would have known that this was going to be an issue in this hearing, and I would have included argument in my Heads of Argument pertaining to this. Now, Mr Chairman, the judgment of Brigadier Jack Cronje makes it very clear, that the Committee had reference not only to his evidence, but to later evidence, in later amnesty hearings. The evidence of General van der Merwe at the Khotso/Cosatu House hearings and Minister Vlok’s evidence.

ADV DE JAGER:   But wasn’t it specifically agreed at a stage, between the parties that’s been represented in certain cases, that reference to evidence led at a previous hearing where everybody was sort of present, can be incorporated?

MR DU PLESSIS:   Mr Chairman, as far as I remember, the evidence was led and there was no objection to that during those hearings at the Khotso/Cosatu House hearings. I can’t remember that the people who opposed the applications or who were represented by other parties apart from the applicants, objected to reference to evidence of previous hearings. I cannot recall if it was specifically mentioned and specifically agreed. That I cannot recall, Mr Chairman, but ...(intervention)

ADV DE JAGER:   General van der Merwe, for instance, gave evidence at the Cronje hearings, and he gave evidence at those hearings. Remember that certain aspects were put to him that you’ve already testified this and that in the Cronje case.

MR DU PLESSIS:   Yes, Mr Chairman, yes, it was agreed with reference to the applicants concerned obviously, there is no doubt about that at all. There was agreement at all relevant times. And I think in these hearings as far as I am aware and concerned, that was the understanding amongst the applicants all the time, and I thought that was the understanding at this hearing up to this morning. I cannot for the life of me recall that Mr Bizos ever ...(intervention)

ADV DE JAGER:   No but I think if there is agreement about a specific thing that’s being said in evidence, and the witness is not available, if he’s, if you want to use something that’s been said in relation to a specific aspect. If it’s policy in the broad and there is agreement about the policy in the broad or the facts in general, that may be a different thing. But if you want to sort of attack somebody’s credibility on a specific point, regard to what he’s said in previous matters, may have weight or no weight in certain circumstances.

MR DU PLESSIS:   Well Mr Chairman, that is why I made the point just now, that if when I led the evidence of Mr Raven referring back to this evidence, and there was an objection, we could have dealt with it then, and then I would have known and I think Mr Visser would agree with me and Mr Levine too, we would have known that if we wanted to rely on that evidence and there was objection, and Mr Bizos wanted to cross-examine those witnesses, we had to call them. It wouldn’t have been a problem for me to call Brigadier Cronje in this matter. Brigadier Cronje would have been

MR DU PLESSIS: ... on those parts of the evidence, then we would have called them as witnesses. If this situation is going to prejudice my client, Mr Chairman, then we have a serious problem. That means that I have to now consider my position, and request you to open my client’s ...(intervention)

ADV DE JAGER:   Let’s see what the specific objection could be after we’ve studied, everybody has had the opportunity to study your Heads of Argument and how far you’re relying on other evidence. It may be that some of the evidence could be common cause, but we can’t at this stage, nobody could say that we agree with page 119, line 10 to 12 of Brigadier Cronje’s evidence, for instance.

MR DU PLESSIS:   May I then ask, Mr Chairman, if Mr Bizos studies this, and he comes back, and he gives us an indication that he has a dispute with this part of Minister Vlok’s evidence, that part of Brigadier Cronje’s evidence, if we would then be in a position to request you to reopen the case and call those people for them to be cross-examined on those points by Mr Bizos.

CHAIRPERSON:   Can you just clarify something for me at the moment. I’m looking at page 37 of your Heads. You say General van der Merwe’s evidence at the Cronje hearings, and you then give a reference. Is that a reference to the record in these proceedings?

MR DU PLESSIS:   No. Mr Chairman you will see where it says right at the beginning where the references start. It says see record pages 1853. Now the moment I refer to ‘record’ without anything attached to it, it’s these proceedings. Thereafter I say General van der Merwe’s evidence at the Cronje hearings, and then I refer to the record of those hearings. I say Brigadier Cronje’s evidence at the Cronje hearings, then I refer to the record of those hearings. And again the Cronje hearings.

CHAIRPERSON:   And that hasn’t been put to any witness in these proceedings.

MR DU PLESSIS:   During cross-examination.

CHAIRPERSON:   Or in chief.

MR DU PLESSIS:   No it was Mr Chairman. It was asked by Mr Raven if he had read Brigadier Cronje’s evidence and General van der Merwe’s evidence, and if he confirms that evidence as true pertaining to the background evidence.

CHAIRPERSON:   Yes but these page references were not put.

MR DU PLESSIS:   No, not specifically, Mr Chairman.

CHAIRPERSON:   And Mr Bizos was not made aware of them. It was just, he was saying, on general principle, as I understood it. We aren’t going to analyse, I did not understand that we would analyse and take passages out of Cronje’s evidence, or van der Merwe’s. Van der Merwe’s evidence has been made available has it not in a booklet or pamphlet, which we call it, which has been used in several hearing, which has just been handed in as yet, but I don’t know that General van, Brigadier Cronje’s has. And as I understood it he was merely agreeing with the principles expressed. I don’t know what passages you’ve taken out now.

MR DU PLESSIS:   Mr Chairman may I just say that these passages were the exact passages I refer to in my Heads of Argument in the Cronje matter, just to make the specific points. It all deals with the background evidence of Brigadier Cronje. It doesn’t go further than that. And that background evidence, as you can recall, related to the evidence of the whole struggle. Brigadier Cronje laid a basis for all Security Policemen thereafter to come and testify about the basis of the struggle. That went, meant, the background evidence, to the whole dispute, about the counter-revolutionary strategy of the government at the time, etc. It’s all background evidence, and it really, Mr Chairman, relates to paragraph B of section 20 Sub-Section 3, where one has to show the context in which the act, ommission or offence took place, and then in certain instances it also relates to the question if an applicant acted within the scope of his authority or if he reasonably believed that he did. And I refer to the evidence, and examples of the evidence, as examples of not just Mr Raven, but other policemen, how they came under the impression that they had authority to act in a specific way.

CHAIRPERSON:   I can envisage, I may be being unduly cautious here, what Mr Bizos’ problem is. You don’t, you say here, I’m reading from 66:

And you say, then you say:

And you say, then you say,

Should you at least summarize, rather than put references like this that if you haven’t got a copy of that record you don’t know what they are. Shouldn’t you rather say, General van der Merwe and Brigadier Cronje gave evidence at these hearings to the effect that there was a war situation, and this was confirmed by the witness Raven? Something to that effect.

MR DU PLESSIS:   Well Mr Chairman, that was really the intention, if you read paragraph 66, it says:

... and that should be previous applications.

ADV DE JAGER:   Mr du Plessis, you make the statement that it was a low intensity war. If that is not accepted, then we’ll need to go into all the sort of references, whether it was and whoever said it or whoever didn’t say it. But if it’s accepted by everybody that there was a low intensity war and it was part of the conflicts of the past, whether you give these references or not it wouldn’t matter at all.

MR DU PLESSIS:   That comes back to my point Mr Chairman. If Mr Bizos can indicate to us with reference to what is stated in the Heads, not necessarily each and every separate paragraph, but if he says in general principle, in general he has no dispute with it, then surely there is no problem with this. It only relates to if he comes back and he says, for instance, if, later in the Heads of Argument I made the submissions that the policemen were brought under the impression that they could act as a result of other acts which took place outside the legal sphere. If Mr Bizos comes back and he says, well no reasonable policeman could have been brought under that impression, then obviously that’s a point of dispute, but it’s a point of dispute that arises now, Mr Chairman.

CHAIRPERSON:   Is it of any importance at all? You have put these there, I can tell you now, the possibility of my reading all these passages is extremely remote. You are making the submission that it was a low intensity war. You’ve made it in the course of your argument. This is not evidence. This is to support your argument if needs be.

MR DU PLESSIS:   Correct Mr Chairman. And I say ...(intervention)

CHAIRPERSON:   If Mr Bizos wants to attack it, in reply you can perhaps read some of these passages. But for the moment it doesn’t go in as anything other than possible references if you’re called upon to make any.

MR BIZOS:   Mr Chairman, the problem is a little bit more serious than that, with respect. This - the whether or not there was a low intensity war is one sentence, and it may well be that some accommodation can be made in that regard. But what these Heads of Argument purport to do, if I could draw your attention to page, from page 37 to page 42, there are references to General van der Merwe’s evidence, General Cronje, or Brigadier Cronje’s evidence, and others, and on judging from what page to what page, there are substantial references to substantial passages in the record, on an average of over ten pages per reference, I haven’t actually calculated, but on a cursory look this is what it looks like. Here we have a situation, Mr Chairman, where my learned friend says that he asked Mr Raven whether he agrees with that. Now Mr Raven, I don’t know what he agreed to and what he disagreed with. None of this was placed before the Committee. It may well be that the task may have been easier if every Member of the Committee was a Member in the van der Merwe hearing and in the Cronje hearing. And it’s no good saying, putting the onus on us, to say well what do you say about this. This is evidence given in other proceedings where, a Member of the Committee was not a party. We do not have not have any knowledge of it. We were not apprized of what, we don’t know what facts are contained in these long passages, which portions we may want to challenge, and which portions we would accept. And I don’t know how the Committee decides, since one of its Members did not hear that evidence, whether that evidence is correct or not. So that it isn’t for us, Mr Chairman, to respond to this. The applicant has ...(intervention)

CHAIRPERSON:   Not at all, it isn’t for you to respond to it, and the applicant has not referred us to these passages and I’m not going to look at them.

MR BIZOS:   Well then what are they doing here?

CHAIRPERSON:   I don’t know. That’s what I’m asking. He has set out his argument, and as I presume, this is that if he’s asked to prove them he will then try to do so that way. He has not been. And I don’t see the relevance of them. To say, as he does on page 42:

and then say:

I certainly do not think we need a reference to the Cronje hearings. For that we’ve had ample evidence that that was the position.

MR BIZOS:   Mr Chairman, my learned friend’s argument does not contain allegations of fact which place an onus on an opposing party to rebut it. He must make up his mind as to whether or not he is relying on these references, or whether he wants to delete it from his Heads of Argument. Because it is quite improper, with the greatest respect, to make submissions and say that they are supported by a record which we have not seen, which a Member of the Committee has not seen, and say, well, if you don’t like it come back and prove the contrary. This is not he purpose of argument Mr Chairman. Argument is confined to what is a record before the Committee, and I would appeal that ...(intervention)

CHAIRPERSON:   And what is confined to what we have discovered by our investigations. Yes, which is what has been unearthed at previous hearings, which has been circulated and made public. We do not sit as a confined little body saying this is the only application the Amnesty Committee has heard. We have made other decisions. I can’t hear you Mr Bizos.

MR BIZOS:   I beg your pardon. Your Lordship wants to hear me but couldn’t hear me. I’m sorry about that. Mr Chairman, a judicial body of this nature is confined to what is proved before it Mr Chairman. And not, with respect, what one or other of the Members of the Committee have heard in other cases, Mr Chairman. I ...(intervention)

CHAIRPERSON:   Where the Committee has accepted evidence and said so in its decisions, ...(intervention)

MR BIZOS:   Were the applicants in this case given an opportunity in those decisions to make submissions.

CHAIRPERSON:   If they wish to contest it they can. Do you contest that there was a state of war, Mr Bizos?

MR BIZOS:   I’ve already dealt with that Mr Chairman. ...(intervention)

CHAIRPERSON:   ... gone on and on. Let’s just go on with the argument Mr Bizos. If you have problems, we will then ask Mr du Plessis to make records available, or to recall the witnesses to confirm them. Because I think he has put a great deal here that is totally unnecessary for the purposes of the argument which he intends to advance. Do you wish to refer to all these passages, Mr du Plessis?

MR DU PLESSIS:   Well, Mr Chairman, this evidence was placed before you. These passages refer specifically to the evidence ...(intervention)

CHAIRPERSON:   But refer us to the evidence, refer us to what Mr Raven said about them.

ADV DE JAGER:   Mr du Plessis, but, on that evidence a certain conclusion has been drawn. A decision has been made. Isn’t the relevance of that evidence in relation to the decision, and if it’s a decision of this Committee or another Committee of the Amnesty Committee, you can refer to as a conclusion that a Committee has already come to. And that’s the end of it. Whether this Committee comes to the same conclusion is another matter. But ...(indistinct) it’s sort of a precedent that a Committee have already come to a certain conclusion on the evidence.

CHAIRPERSON:   It’s also relevant what you put to Mr Raven, what he said in reply, and then if Mr Bizos did not question it, we can accept that reply.

MR BIZOS:   Was Mr Raven present when Mr Cronje gave evidence, Mr Chairman?

CHAIRPERSON:   If you didn’t challenge it Mr Bizos, if he said I read the evidence and I accept it in respect of certain conclusion, I don’t know what Mr Raven said, we haven’t been told.

MR BIZOS:   ...(indistinct) I believe to be the victims’ rights in relation to this, and would submit that you will have no regard to other records. I don’t want to make a submission as to what the position might have been if all three Members of the Committee had been present when that evidence was given. But in a situation such as this where a present, one Member of the Committee was absent, I submit that any reference to this evidence is not part of this records, is inadmissible, and it can not be relied on.

MR VISSER:   Mr Chairman, may I please be allowed also to say something? Visser on record. I am also affected by anything that might happen here, Mr Chairman. And with respect I’m going to suggest that this Committee now makes a ruling. Mr Chairman, I don’t want to go into the background. You are painfully aware of the historic path this Committee from its original inception, has walked, Mr Chairman. You are painfully aware, as we all are, of the shortage of time, the shortage of finances, and the urgency with which it is viewed that the amnesty applications should be completed. Not least of all, Mr Chairman, from the point of view of the applicants, who want finality about these matters.

Now Mr Chairman, from the very inception, from the original Committee, ever since I started appearing before the original Committee Mr Chairman, there was an urgency to finish not to waste time. Mr Chairman, in that sense, when one wanted to call witnesses where there were affidavits available, these were accepted by the Committee, Mr Chairman. When evidence was led in chief, one was placed sometimes under pressure to say but can’t your applicant just confirm what he has said in the application? Can’t he just confirm that he had heard or he has read the evidence of that person? Why should we waste time in having to rehash the whole thing?

And Mr Chairman, coming to the point which is really the point I want to make, is, your original Committee, Mr Chairman, in the decision of Jan Hatting Cronje, has actually summarised those sentiments Mr Chairman. And I want to read it to you. It says at page 1, the third paragraph, that is Jan Hatting Cronje, that’s Jack Cronje, Mr du Plessis’ client:

... that’s the Cosatu House and Khotso House hearing. Now Mr Chairman, I pause here to draw your attention to the obvious fact, that Amnesty Committee did not come to this decision by agreement between the parties, they came to this decision of their own volition. Obviously it was at the request, by various lawyers, acting for various applicants, after they had heard the evidence of Mr Adriaan Vlok and General Johan van der Merwe. I know that Mr Cobus Booyes, my colleague from Natal, wrote a letter to the Amnesty Committee to say, please do not give judgments in the cases which have been heard and where decisions are pending, until you have read the evidence of Mr Adriaan Vlok and Johan van der Merwe in Cosatu House and Khotso House. That is obviously what has happened here Mr Chairman, because the evidence which I’ve just referred to came much later than the evidence did of Jack Cronje in his amnesty application.

May I just complete what I want to read to you:

Making it quite clear Mr Chairman, that we’re simply talking about the background.

... it should be there.

... and this refers, if I may interrupt myself, to the evidence of Vlok and van der Merwe.

Clearly the evidence:

etc. And it goes on just to say, Mr Chairman, this is the reason why that evidence will probably find application in most of these cases. So please don’t come and repeat that evidence before us every time you arrive. Refer us to it and what we have done, Mr Chairman, as you well know, is we have incorporated, each and every applicant who’s appeared before you, we’ve incorporated certain evidence. There has never been a problem. Those documents have been available Mr Chairman, from the beginning. Evidence of Vlok and van der Merwe, as my learned friend Mr du Plessis has stated, is available. The moment we led the evidence of Coetzee or Taylor to say I incorporate it, I know what Vlok and van der Merwe said in the Cosatu and Khotso House hearings. I incorporate it into my evidence. I agree with it. That’s the end of it, Mr Chairman, and if it has to be challenged it has to be challenged there and then.

Now, Mr Chairman, to come now and challenge it by my learned friend Mr Bizos, with great respect, is too late in the day. Does he really expect that, first of all we’ve got to lead that evidence for the benefit of any person who comes to these hearings for the first time. Or in the case of the Committee changing, by one Commissioner, that we have to lead all that evidence again? Surely, Mr Chairman, we’ll be here for the next century if we have to do that.

And I would ask you, Mr Chairman, to make a ruling in line with the decision which has already been given by the full original Committee of the Amnesty Committee and to say that my learned friend Mr Bizos is not entitled to compel us to reopen the matter and to give all the evidence which we have incorporated by specific reference in our evidence, Mr Chairman.

CHAIRPERSON:   There they say they will set out, do they then set out the ...?

MR VISSER:   But Mr Chairman, the judgment is available. I don’t find that they do set it out Mr Chairman, but I may be misreading it. But certainly it is not, the facts, the actual facts relied upon, are not specified and set out Mr Chairman. It’s a general reference, the way I read it. I may be wrong.

ADV DE JAGER:   It’s about the background.

MR VISSER:   Yes, the evidence of General van der Merwe and Mr Vlok that we refer to deals with background. It can never deal with the facts of every specific incident. We’ve never pretended to try to apply it to that aspect Mr Chairman. It refers to the general background. We simply don’t want to come back to you every time and say, oh, Mr Chairman do you really, have you heard that there was a conflict in this country? I’m going to call Mr Vlok and General van der Merwe ...(intervention)

CHAIRPERSON:   No, the point I made ‘though Mr Visser, was, should the Heads not be altered to read something to, the evidence throughout the hearings in respect of all the applications indicates clearly that the South African government and National Party was engaged with the liberation movements in a low intensity war. This was referred to in the evidence of Mr Vlok and van der Merwe which was accepted by the Committee in that judgment. And then leave that. Not set out pages after pages of detailed references, which Mr Bizos says he doesn’t know what they are about. If Mr Bizos in argument then wants to argue that it is wrong to say there was a low intensity war, he can advance argument.

MR BIZOS:   If I understand that judgment correctly, the evidence that was to be incorporated was made available in that, if I read the judgment correctly. But I see that Mr Visser is shaking his head, I have no knowledge of it, I haven’t seen the judgment, I can’t make any meaningful submission. But Mr Chairman, we are referred to the evidence of Mr van der Merwe. We were not asked to admit or deny the evidence of Mr van der Merwe or Mr Cronje at any stage during these proceedings. I am not, I am not suggesting that evidence may not be in, that has already been given, may not be incorporated. It is open to the party to either agree or not agree as to whether evidence in other proceedings may be incorporated.

Let me, in case it is thought Mr Chairman that we are merely being technical in the matter, let me say that it is a matter of some importance for us, Mr Chairman. If my learned friends want to rely on the evidence of Mr van der Merwe, Mr Chairman, and they make us, they make copies of the evidence of Mr van der Merwe and ask that it should be incorporated in this, we would object to it Mr Chairman, and I will give you reasons, Mr Chairman, why ...(intervention)

CHAIRPERSON:   I am going to take an adjournment now, and the parties can discuss this matter amongst themselves. I’ve never been at a hearing as an advocate or a Judge, where there has been so much lack of co-operation and hostility between the parties appearing in it. And I will now take the adjournment and you can talk to one another and see if you can reach the agreement that you were talking about Mr Bizos.

MR BIZOS:   May I just finish my submission in relation ...(intervention)

CHAIRPERSON:   No Mr Bizos. I am adjourning now.

CHAIRPERSON:   Mr Bizos was endeavouring to make submissions to us in the hope that the parties might reach an amicable agreement on an issue which appeared to us to be not of any great importance. Has any such agreement been reached?

MR BIZOS:   No, Mr Chairman, but there are certain facts which have emerged, which I think we would want to place on record for a proper decision to be made.

Firstly Mr Chairman, we were informed that Mr Levine who is acting for Mr Williams, is not relying on any of these passages that are enumerated in the, from Vlok, van der Merwe, or Cronje, or the Khotso House matter, or any of the passages that are referred to in this.

Our learned friend Mr du Plessis said, I asked him, because we don’t know what is in these passages, whether the passages that he wants to rely on merely relate to the general nature of the conflict. Whether or not there was a state of war. I offered, Mr Chairman, in the spirit of co-operation and putting the end to the proceedings, would he be prepared to formulate admissions of fact, which he wants to rely on, which may have been proved by the passages that he wants to rely on. And would he be prepared that if we peruse that evidence, to make admissions of what they said which we may want to bring to the attention of the Committee.

The offer was rejected, Mr Chairman. Because it was said that if there is any disagreement about the admissions of fact that are sought, it is inevitable that Mr du Plessis would want to call the witnesses in order to prove what they said in those proceedings. That is the aspect. We also saw the judgment, Mr Chairman, which, or the ruling that was made, in the main, Mr Chairman, insofar as it relates to the opinion of the persons that drew up the ruling, we have no quarrel with. But, Mr Chairman, we cannot, with respect, accept as fact some of the matters as applicable to this case, and the personalities involved in this case. This is why, Mr Chairman, I have suggested, with respect, in the spirit of compromise, that the argument should proceed. Mr du Plessis asks us for admissions of fact which we will consider in good faith, and we’ll agree to when supported by the evidence and from our general knowledge and the experience of the Committees and everything else, Mr Chairman.

As far as Mr Visser is concerned, he has a lesser requirement, but I think that it would be better if he speaks for himself rather than my paraphrasing the, his position, Mr Chairman.

MR DU PLESSIS:   Mr Chairman, may I please be afforded the opportunity to present this? I know I am by far Mr Bizos’ junior, but the ways I’m treated here, I don’t like very much.

Mr Chairman, Mr Bizos asked me if I would be prepared to present them with facts that I would like to have admitted, from this evidence, and that they then can come back to me after the weekend to say if they admit it or not. I said to him, I have no problem with that, they can take my Heads of Argument, the references that I want to rely on, the factual evidence, is in there, they can come back to me on Monday and tell me if they dispute it or not. However, I said to him, the only problem that I foresee is if he comes back to me on Monday, and some of these passages are disputed, it would place me in the position to maybe decide, and I’ll have to make a decision pertaining to the passage, if I should call these witnesses or not. So I am in agreement with that procedure, but it could, if the passages are disputed, it could lead to a situation that I’m forced to call these witnesses.

Now, Mr Chairman, he comes and he tells you that in the spirit of co-operation he made a suggestion to me which was flatly refused, which is not the truth. I have now said to you, and pointed out to you, what my position is, Mr Chairman, with respect, and I want to reiterate that if this point was taken during the evidence I would have dealt with this issue, and I would have probably, if I thought it necessary, have asked the Committee’s permission to call these witnesses, Mr Chairman. I don’t want to be unduly difficult, Mr Chairman, ...(intervention)

He said:

You said:

He said:

And that was an end to the matter.

MR DU PLESSIS:   Yes, he said he agrees with the evidence in broad terms, Mr Chairman. That was his evidence.

CHAIRPERSON:   Yes, and we took the matter no further because we understood this was dealing only with the general background.

MR DU PLESSIS:   Yes, it does.

CHAIRPERSON:   But the evidence was not made available, it was not put to him, it was not put in in evidence. It is not before us.

MR DU PLESSIS:   But it was at all relevant times accepted that there was no dispute with this, Mr Chairman.

CHAIRPERSON:   Have you read Gone With the Wind?

MR DU PLESSIS:   No I haven’t.

CHAIRPERSON:   If you said you had, would that entitle you to put it in as a, produce it as an exhibit when it hadn’t been put in? Had it been put in, the point I’m raising is a technical point. Had it been put in then, as an exhibit, you could then have said, well the other parties had opportunity to consider the exhibit. But certainly I did not think, I don’t think anybody thought, that from that general answer you were then going to put in detailed passages line by line, from that record. Is it necessary, Mr du Plessis? All you are seeking to show, as I understand it, is that there was this state of tension, that there was a state of war.

MR DU PLESSIS:   Yes, and that for instance, Mr Chairman, that the Security Police were brought in generally under the impression that because of certain unlawful actions they were tacitly authorised to act in the way they wanted to ...(intervention)

CHAIRPERSON:   Yes, and it's all argument.

MR DU PLESSIS:   Those are all the things that I want to refer to.

CHAIRPERSON:   No you need to refer to Cronje, or van der Merwe, and I think I should correct myself, when I said that I thought there was booklet of van der Merwe, I think it was submission he made. It was not a record of his evidence, it was submission made by him.

MR VISSER:   That’s Exhibit P40, 44, 45 and 46, Mr Chairman, you will recall. It’s those three exhibits that were handed in two years ago.

CHAIRPERSON:   But ...(intervention)

ADV DE JAGER:   But they were incorporated in your applications here.

CHAIRPERSON:   You mentioned them in your applications.

MR VISSER:   That is correct.

MR DU PLESSIS: Mr Chairman, for instance, let me give you another example. The question about the order, with General Coetzee and the question in the First and Schoon incident, if the order had come to Brigadier Goosen from anywhere else or not, there was a lot of cross-examination of Brigadier Coetzee on that point, on the question could it perhaps, on probabilities, have come from higher up. There was evidence that it could have been. Mr Williamson testified that it could have been. Now I want to argue before this Committee that the probabilities go further than that, because we have examples of that. ...(intervention)

CHAIRPERSON:   Mr du Plessis, if you are going to rely on factual evidence to argue, then I think you should have asked far more questions of your witness Raven then a general question, had he read it and did he agree with it.

MR DU PLESSIS:   Mr Chairman with respect, I, we have been in a position where we have been given an indication by the Committee that a lot of the evidence that we wanted to present, we could simply ask a question, do you confirm what is stated in this affidavit, and then he confirms it. We were pressed for time ...(intervention)

CHAIRPERSON:   That is not when you are going to then raise what I understand to be extremely controversial points on that. Is it controversial Mr Bizos?

MR BIZOS:   I asked whether ...(indistinct) and I put two or three questions that such as your lordship put to me, surely you can admit that. But I said does it go further? And the answer was, yes, without my having been given any de, or any substantial detail of what it is that he wants me to admit Mr Chairman.

MR DU PLESSIS:   Mr Chairman it relates, for instance, to ...(intervention)

ADV DE JAGER:   Mr du Plessis, could you kindly refer me to, you’re appearing for Raven, any other one? Only Raven? So in Raven’s evidence we’ve got the bundles here, refer me as to his evidence, the page number, so that we can see what’s been incorporated in his evidence.

MR DU PLESSIS:   If I can refer you to page 1864, as well as the application Mr Chairman, because in the application, Mr Raven says specifically, refers specifically to this. I haven’t got the application with me here, Mr Chairman. I just have the evidence where it was presented.

ADV DE JAGER:   I’ve got the application, and perhaps you could look at it and ...(intervention)

MR DU PLESSIS:   I would appreciate that.

ADV DE JAGER:   Raven’s, the evidence where?

MR DU PLESSIS:   Page 1864 Mr Chairman.

MR DU PLESSIS:   Mr Chairman that refers to page 41. Now that seems to be on page 105 of the application. I’m not a hundred percent sure. We refer there to:

well it says there:

but ...(intervention)

CHAIRPERSON:   But those are submissions, not the evidence.

MR DU PLESSIS:   It says evidence by Brigadier Jack Cronje. It states there evidence.

MR DU PLESSIS:   Yes, I’m sorry, you’re reading from the application Mr Chairman, I’m reading from the evidence. If you look at the application, that is correct. It says:

And then Mr Chairman, in the evidence, 1864, page 1864, I read:

...(intervention)

CHAIRPERSON:   Where are you reading from?

MR DU PLESSIS:   Page 1864 Mr Chairman.

CHAIRPERSON:   Not from the application?

MR DU PLESSIS:   No, no, the evidence of the record. The record Mr Chairman.

ADV DE JAGER:   1864?

MR DU PLESSIS:   1864 of the record, Mr Chairman.

ADV DE JAGER:   That one deals with the political objectives.

MR DU PLESSIS:   Yes. And then it says:

He didn’t read that evidence specifically.

And then he confirmed the correctness of all the pages pertaining to the political objectives. Now that was never challenged in cross-examination, Mr Chairman. And that’s the only point I’m trying to make. Is if this was challenged in cross-examination, then I would have, I would have in all probability have called one or other of these witnesses, or I would have presented you with the, that document compiled by the four police generals, and I would have said I want to tender this in evidence. I would have asked Mr Bizos does he agree, does he not agree, do I have to call one of the generals.

ADV DE JAGER:   You see, let’s analyse this now. You’ve asked him:

Now, I’m taking and example, you refer us to line 41, page 72, of Mr Vlok’s evidence. Where Mr Vlok would state:

... or whatever. His evidence was:

Can we then accept that he agreed with what Vlok said in line 71? MR DU PLESSIS:   Yes, Mrs Chairman, and if, the point of ...(intervention)

ADV DE JAGER:   Go as far as that?

MR DU PLESSIS:   Yes, yes.

ADV DE JAGER:   ...(indistinct) in broad ...(indistinct)

MR DU PLESSIS:   Yes, and if there was any doubt, Mr Chairman, I would have asked to call Mr Vlok. That’s the point I’m trying to make

ADV DE JAGER:   ...(indstinct) to say, the evidence as far as Vlok, I’m only dealing with this now. I’m agreeing in broad terms with what Vlok said. I’m not agreeing in detail with what Vlok said. Now you’re referring in detail, to what Vlok said. Can we, or can I, I’m speaking for myself, can I then say, okay you’ve put it? But now you’re dealing with detail, you’re not dealing with in broad terms. In broad terms maybe there was a situation almost similar to war. Now, Vlok is giving evidence about a battle fought at Magersfontein, and he’s stating that this was the position of the armies there. Could I accept that Raven also agreed that General A and lying in that position, and General B in that position?

MR DU PLESSIS:   Mr Chairman if there is any, if there was ever any doubt, which I didn’t understand from the Committee there would be, and that I didn’t understand from my learned friends that there would be, then I would have led Mr Raven’s evidence with reference ...(intervention)

ADV DE JAGER:   Mr du Plessis you, we’re dealing with the conflict of the past.

MR DU PLESSIS:   Yes.

ADV DE JAGER:   In my mind, there’s no doubt in my mind, that there was a conflict in the past.

MR DU PLESSIS:   Yes, but I don’t know ...(intervention)

ADV DE JAGER:   But if there’s a certain specific sting in the conflict of the past, I may not know about it. And that’s what the detail is about.

MR DU PLESSIS:   Yes.

ADV DE JAGER:   But as far as the general background is concerned, I may be open to criticism here, but if anybody could tell me there wasn’t a conflict in the past in this country then I have not been living her.

MR DU PLESSIS:   Mr Chairman that is why I do not understand why Mr Bizos wants to oppose this. I do not understand, I have said that I am willing to, I have already drawn his attention to the specific passages. He can come back and say he disputes specific passages.

ADV DE JAGER:   I think Mr du Plessis, in all fairness, if your submission would be that there was a conflict in the past, and it was substantiated by evidence in different cases. But the moment you come and say I want to pin down the conflict of the past to this sentence, in this evidence, then I think you should have put it in detail, that little sentence, you should have referred in more detail to it. But as a general background, of the conflict in the past, I think it would be permissible to refer to a finding of the Amnesty Committee in matter number so and so, or by another committee in that matter or that, but the moment it comes to a detailed instruction in, for instance, going from A to B, then it can’t be argued that because there was instructions in the past that you could order somebody to go from C to D, it should also be inferred that this order was given here.

MR DU PLESSIS:   But Mr Chairman, may I, let’s perhaps just pinpoint it to specific points that I’m making. The one main point that I’m making is that people were congratulated for illegal activities. And in that regard I refer to the evidence presented at the Cosatu Khotso House hearings, at the evidence pertaining to Zero hand grenades, at, to the evidence of certain incidents in the Cronje matters, and Brigadier Jack Cronje’s evidence. Something else, for instance, there were never any questions asked about operations, and I refer to the Khotso House hearings. ...(intervention)

ADV DE JAGER:   ...(indistinct) I find nothing wrong with referring to certificates being issued at this occasion, it’s been done previously as you know in the Cronje matter, or that or whatever. But then you would say, I refer to the evidence of Raven. He’s confirming that certificates have been given to those and that ...(indistinct). It’s only the manner in which you are introducing the evidence of Cronje by referring to his evidence as such, on which a certain conclusion was drawn. I’ve got no problem if you refer to a conclusion about the conflicts of the past, that’s been accentuated by this Committee or another Committee, or whatever. And if you’ve included, by reference, and as the Chairman said, ‘I make it available’. Mr Visser made available all the previous documents, P1, 42, 43. I’ve often criticised him and said, do you really want us to carry all these papers in every application? But at least, the other people who weren’t there before, were made aware of, and they were made available to them if they want.

Okay you would argue now that Mr Bizos never asked for the Cronje papers. I think, if you really go into the, I don’t know what you’ve been quoting here from Cronje’s evidence, but it may be that Raven has given evidence here for more than a hundred pages, about what he understood was the position. From his own evidence wouldn’t it appear that he, in his own evidence, has already given the evidence you’re now relying on in Cronje’s record?

MR DU PLESSIS:   Yes, in some instances that is true Mr Chairman. May I just respond to something here, Mr Chairman, then I have laboured on a, under a total misconception, about the way the Committee wanted us to approach the reference to other evidence and reference to documents, Mr Chairman. And I will keep that in mind in future. And then, with the greatest of respect to you Mr Chairman, then I’ve been pressurized quite a lot of time into incorporating evidence without referring to detail, and I will just simply be placed in a position, taking note of what you said now Mr de Jager, that I’ll have to ...(intervention)

ADV DE JAGER:   I think in some way or other it was before us there. You’re referring to an affidavit, and said you need not repeat the contents, but it’s handed in as an Exhibit N or whatever it may be, but it’s before us in a form but you didn’t hand in Cronje’s evidence. So trouble is arising in this case.

MR DU PLESSIS:   I take the point, Mr Chairman, and if I was made aware of the, if I’m criticised now about that, because I was brought under the impression by the Committee and by everybody else here concerned, that I could do that to expedite matters, and it is now being held against me and my client, because of the fact that I wanted to assist the Committee in saving time Mr Chairman, then that is unfair, with respect. Then I’m going to ask the Committee for my client to be recalled, and then I’m going to refer my client to all the passages that I wanted to deal with, that I wanted to incorporate in my Heads of Argument, to place that evidence before you, Mr Chairman. Because then I was placed in a position that I’m now confronted with criticism about the evidence that I led that I wasn’t aware of was going to arise.

ADV DE JAGER:   You see I think the main trouble we’ve got is computers. It’s been transferred from one argument to another argument, arguments that’s been used in previous cases, and the reference is being transferred into ...(indistinct)

MR DU PLESSIS:   But it really ...

ADV DE JAGER:   Wasn't it dealt with in effect, it dealt with by the witnesses here?

MR DU PLESSIS:   Mr Chairman let’s take the one argument, which is really a difficult argument, and that came out in cross-examination by Mr Bizos. They are saying that Brigadier Goosen and Williamson and Raven acted on a frolic of their own. Now I want to rely, Mr Chairman, for purposes of my client, although he received an order from Mr Williamson, I’m not a hundred percent sure how you’re going to look at my client from that point of view, if you’re simply going to accept that he received an order and that’s it, or should I deal with the question, was there an order perhaps from higher up?

Now part of this whole argument, to you Mr Chairman, is to say to you, look at the practice in various other situations. Let us look at what happened in the Pebco matter, how that order was given. Let us look at the Khotso/Cosatu House hearing. Let us look at Zero Zero hand grenades. Let us look at a few others, where the communication channel was not according to the normal channels, but outside the normal channels, where President Botha gave the order, in certain instances, Minister le Grange on three or four occasions, gave the order, right down. It’s possible that it went right past General Coetzee, that he didn’t know about it. And that is why he’s testifying today that he never knew about this order.

So the point is, I want to present you with argument that on the probabilities, as Mr Williamson has testified during my cross-examination as well, that order came from higher up than simply Brigadier Goosen who decided he was going to act in a frolic of his own.

ADV DE JAGER:   But that’s not about the conflict of the past.

MR DU PLESSIS:   No but that’s why I say, it goes wider than the conflict of the past, the references to other hearings. It goes wider than that.

ADV DE JAGER:   Where you’re dealing, where we’re now at this present stage dealing with your argument, it’s about the conflicts of the past.

MR DU PLESSIS:   Yes Mr Chairman, but we’re arguing about the principle, with respect, because ten pages on we’re going to reach this problem. And it’s going to be the same problem. Am I allowed to refer to evidence in the Khotso/Cosatu House hearings, that in that incident an order came from President Botha, not according to the normal channels, via Minister le Grange right down. And am I going to say, look, this is an example of how this was dealt with at that time. That created the atmosphere and the situation of a belief in the people that this was authorised, this was how it was done.

Now either I must be allowed to refer to that evidence, to support my argument on the probabilities that this order came from higher up and just not from Brigadier Goosen, Mr Chairman, refer to the evidence I beg your pardon. Or I must recall Mr Raven and lead his evidence about it, which is not going to help us, because he doesn’t know about that evidence.

ADV DE JAGER:   I don’t think on the need to know basis that was emphasized he would ever have know about what was happening in another incident.

MR DU PLESSIS:   Yes but I’m in a quandary Mr Chairman, because I don’t know. If the Committee tells me, it’s not necessary, we will only look at Mr Raven’s situation from the point of view of the order of Mr Williamson, and if I prove that he received an order from Mr Williamson that’s enough for the purposes of the Act, that’s fine, then I will leave this point. But I don’t know. I don’t know, and I have to present my client’s case to the best of my ability. And as far as I can see it now, Mr Chairman, the best of my ability is to present you with argument that, at that time it was very likely than an order such as this, an illegal order, would have come from higher up. So that it wasn’t just a frolic of Mr Williamson on his own, which then involved my client, or Brigadier Goosen on his own, which then involved my client, but that it was much closer to a formal, official order, even ‘though it was outside the legal situation. And for purposes of that I have to refer to the evidence in the Cronje hearings, in the Khotso, Cosatu House hearings ...(intervention)

ADV DE JAGER:   I don’t want to enter into details, but as far as I understood the evidence, nobody really knew that it came from three up, higher up. He received his order from the next man above him. He didn’t know whether it was coming from Mr Vlok or from Mr Williamson. He received an order from Williamson.

MR DU PLESSIS:   Yes but Mr Chairman, now you decide, on Mr Bizos’ argument, Williamson acted on a frolic of his own. And then you come to the conclusion that my client ...(intervention)

ADV DE JAGER:   Acted on the order of Williamson.

MR DU PLESSIS:   No, or Mr Chairman, was unreasonable under the circumstances, because it was an illegal order. And in terms of 22F, it was unreasonable for him to have thought that this order could ever have been a justified order. And then you say my client ...(intervention)

ADV DE JAGER:   ...(indistinct) illegal because otherwise you wouldn’t have been here if it was a legal order.

MR DU PLESSIS:   No, but I’m talking of an order outside the normal scope of orders, Mr Chairman. These are all the problems that we’re faced with, and it creates serious problems. If I have the confirmation from you that that evidence is not necessary, and I can just rely on Mr Williams’ evidence, that’s fine Mr Chairman. But what do I say to my client if I do that and he doesn’t get amnesty? That is my problem, Mr Chairman, with the greatest of respect. And I don’t want to belabour these proceedings.

My personal view of this, Mr Chairman, and that’s my submission, is that none of this evidence that I rely on, with reference to these actions of the police and authority, etc., etc., can be disputed by Mr Bizos because his clients weren’t in the South African police. They didn’t know about this. They have no, unless Mr Bizos tells me that he has specific facts provided to him by persons who were in the system. But I do not know on what basis he wants to oppose that kind of evidence, of people who were in the system, who testifies about how it worked. Why does he want to oppose it? The only reason, Mr Chairman, is ...(intervention)

ADV DE JAGER:   The only basis why he can oppose it, is because he would say, if you want to use evidence in this case, I must be warned that you’re going to use this evidence, and I am then entitled to say I want to cross-examine this witness. I am not prepared to accept an affidavit.

MR DU PLESSIS:   I understand that Mr Chairman, and I was led to believe that that wasn’t a problem. Mr Chairman I cannot take this further ...(intervention)

CHAIRPERSON:   What worries me most, Mr du Plessis, is that the passage you have referred to us, as your authority, you say:

There is no mention whatsoever of him confirming or agreeing with the evidence of Cronje.

MR DU PLESSIS:   Well, Mr Chairman, well - Mr Chairman on page 1864, he says:

CHAIRPERSON:   Yes, he’s being asked if he agrees with Craig Williamson’s evidence.

MR DU PLESSIS:   No, but that's why ...(intervention)

CHAIRPERSON:   Pertaining to the ...(intervention)

MR DU PLESSIS:   That’s why I said, Mr Chairman, it says:

... but clearly the question related not to just Craig Williamson’s evidence but to the others as well.

CHAIRPERSON:   I don’t agree with you at all. I’ve no doubt that that could be Craig Williamson who had referred in his evidence to the political submissions of the others.

MR DU PLESSIS:   Mr Chairman, I hear what you say, and I will take note of this in future applications, and with respect, Mr Chairman, I will then not be led by indications pertaining to the length of the evidence, and present it the way I think I should.

If you are of the view, Mr Chairman, that I cannot refer to this evidence, that it wasn’t properly incorporated, and you’re not going to give me a chance to recall Mr Raven, or call these other witnesses, then I’m in your hands, then I need a ruling pertaining to that, and consider my position pertaining to that, Mr Chairman.

MR SIBANYONI:   Mr du Plessis, before saying that we are not prepared to give you an opportunity to recall, are you asking to recall those witnesses?

MR DU PLESSIS:   In the light of the views expressed by the Members of the Committee, Mr Chairman, that is my only alternative.

CHAIRPERSON:   But there is no evidence before us on this. You now say you want - On this issue you want to now reopen the whole case, on the fact that there was, what is it you say in your Heads? You say that there was a low intensity war between the South African Government, the National Party, and the liberation movements.

MR DU PLESSIS:   No, Mr Chairman, it goes further than that. Perhaps I can take you a little bit further, to certain parts of the evidence. It goes a little more in detail. May I take you to - if you’ll just bear with me please.

MR VISSER:   While my learned friend is looking, Mr Chairman, may I point out that I haven’t had an opportunity. I would like just a short moment to address you before you make a ruling, Mr Chairman.

MR DU PLESSIS:   Paragraph 77, Mr Chairman. Where it says that:

The point is that not just in this incident, but in a lot, in lots of other incidents, the same situation prevailed. No questions were asked. Then paragraph ...(intervention)

CHAIRPERSON:   Now did you ask Mr Raven about this? Because it has never been the practice of this Committee, as far as I know, Mr du Plessis, that you can rely on evidence given at other hearings. You can rely on principles, matters of general implication, but not factual evidence. We have not pressed you to say, don’t lead evidence here, tell us what evidence he gave somewhere else. That has not been our policy Mr du Plessis.

MR DU PLESSIS:   Well, Mr Chairman, if that is so, that is going to mean that in every further amnesty application, I’m just pointing this out Mr Chairman, in respect of that kind of point, where we deal with a lower ranked officer, and this is necessary to prove his case, we will have to call Mr Vlok on, and General van der Merwe, and Brigadier Cronje, for instance ...(intervention)

CHAIRPERSON:   Not people who made representations which have been accepted by the TRC, which are openly available. You don’t have to call them.

MR DU PLESSIS:   But I can’t rely on their evidence.

CHAIRPERSON:   You can rely on the submissions made, as you can on others, as has been our practice throughout.

ADV DE JAGER:   It can be handed in like this ...(intervention)

CHAIRPERSON:   We have, I don’t know how much we’ve heard about the ANC submissions. People haven’t been called to give evidence.

MR DU PLESSIS:   So what you are criticising me of, Mr Chairman, is simply that I didn’t hand the specific evidence that I want to rely on, to you in the evidence.

CHAIRPERSON:   No. When you are trying to rely on factual evidence, given in other proceedings, then you must raise it clearly, that it is that evidence. Where it is submissions he has made, you can hand the submissions in, or you can refer to them, because they’ve already been handed in to the TRC. But if you want to say that, Mr Vlok gave evidence that he was the person who paid the taxi that took them to this place, you can’t just refer to the evidence you gave elsewhere for that - to prove that.

MR DU PLESSIS:   Yes, so I will have to call, to put to Mr Raven, this was the evidence that Mr Vlok testified about at the Khotso/Cosatu House hearing, that is what he said, what is your comment on that?

CHAIRPERSON:   Yes. And if he says I accept it, I believe it, that was the position, he has then given that evidence.

MR DU PLESSIS:   Well, if I was brought under the impression that that is, that what I had done in the evidence was enough to be able to refer to the evidence, and it now seems it isn’t, firstly, I will do that in future applications.

And secondly, Mr Chairman, if I’m not allowed to reopen my case now, and call Mr Raven to do that, I make an application to do that then.

CHAIRPERSON:   You can do that at the conclusion of argument, because it may well be, when argument is concluded, you find that the question is totally irrelevant.

MR DU PLESSIS:   As it pleases you, Mr Chairman.

MR LEVINE:   Mr Chairman may I set out my position, insofar as I’ve been mentioned, peripherally? I was asked by Mr Bizos' attorney whether I rely on the extracts of the evidence in other matters. I said that I’ve made no reference to these other, to this other evidence in my Heads. It does not mean that if the Committee accepts that evidence, I can’t urge that as part of my client’s argument. But Mr Chairman there’s certain guidelines, as I understand, were laid down in Jack Cronje’s case. I don’t have the pages before me, but I think it’s pages 2, 6 and 7, and those were general guidelines in regard to that evidence.

And I think, Mr Chairman, with great respect, that if those guidelines are at variance with what is now being suggested, then there requires to be a definitive ruling on the matter, because whatever that ruling is, what has happened in the past impacts upon those judgment in the past, and may very well affect the manner in which these proceedings are going to be conducted in the future.

CHAIRPERSON:   We do not reflect on that at all. We agree that those general submissions can be adopted. What I am simply saying is I do not, it has never been the policy, that evidence as to a particular factual event, given in another case, another hearing, can be relied on with no other reference in a subsequent hearing. On the factual issues. That I’m the person who pulled the trigger, or something of that nature. That must be raised in evidence at the hearing. It can be raised, as Mr du Plessis put it, and I think correctly. You can ask your witness, did you hear him say this? You don’t then have to call the other person. But to put in a general, what was being discussed at the time was Mr Craig Williamson’s political objectives, and then just say that that is justification for referring to factual evidence given in other hearings, where no record has been placed before us, is, I think extending the thing far too far. If you want a ruling, we will give you a ruling. After lunch, do you think? After lunch. In the meantime you can continue.

MR VISSER:   May I just also have an opportunity Mr Chairman, seeing that everybody else has. I’ll try to be brief. I understand, I think Mr Chairman, the dilemma at this stage, and I think I understand that there are two separate issues here. The one is, as you have been at pains to explain, where the one witness simply wants to rely on a specific fact in the chain of events on the evidence of someone else, then obviously that part has to be stated and has to be put, has to be placed, in the arena, so that all interested parties can deal with it. I can understand that.

But Mr Chairman, our concern is that there remains a grey area. The grey area, Mr Chairman, perhaps with reference to Exhibit VV in the present case, that might explain the grey area which we’re now becoming concerned about. It’s the affidavit of Brigadier Willem Schoon which we handed in, our Exhibit VV. I see it wasn’t an affidavit, it was a statement handed in of his evidence, but it was his evidence, Mr Chairman. And at the bottom of the first page, you will see the way in which we’ve dealt with this. And I’m going to refer you briefly to the evidence of Mr Taylor as well. And then I will put my problem to you, Mr Chairman. It’s VV, I might have a copy here.

CHAIRPERSON:   ...(indistinct)

MR VISSER:   We are totally swamped with papers at this stage. We’ve already got an extra table here, Mr Chairman. No, it’s the one that says Brigadier Willem Frederic Schoon, and it was handed in as Exhibit VV. We don’t seem to have a spare copy Mr Chairman.

CHAIRPERSON:   UU2?

MR VISSER:   No, no, VV, Mr Chairman. UU if I remember correctly was the application form.

CHAIRPERSON:   UU2 is an affidavit.

MR VISSER:   Oh, that’s the affidavit, no. No I’m not referring to that. That was the one before the Harmse Commission. No, VV Mr Chairman. Perhaps if I may show you what the document looks like, it might be easier.

Perhaps I can just read it Mr Chairman. It really will make the point quite concisely. What we have done here Mr Chairman, is led him, that is Brigadier Schoon in evidence, to say he incorporates in his application, one, Exhibit P35, Exhibit P46 and Exhibit P47. May I pause there for a moment? Ms Patel has done her homework in this particular application, because having read that as having appeared in Form 1 of the application of Brigadier Schoon, she had the document prepared, and we arrived here, and it was given to the people who hadn’t seen it before. That, Mr Chairman, you will also recall, and I refer back to what Commissioner de Jager has just said a few moments ago, there were applications where the Evidence Leaders hadn’t done that, and where none of us had that evidence before us Mr Chairman, and it was decided, and we have great respect and gratitude for that attitude of the Amnesty Committees, that it cannot be expected from these applicants to bear the costs of producing those numbers of pages every time. And it was accepted on that basis, Mr Chairman, by all concerned. But that is as far as those are concerned.

Then he goes on, Mr Chairman, and says:

... in the same applications.

MR VISSER:   That's another issue again, but it is on record Mr Chairman, presumably falling within the same category although it is his own evidence. And then the evidence he gave on the 19th of November 1996, affidavits which he made in reply to what was stated by Mr Dirk Coetzee, etc., etc. And what, Mr Chairman, how we’ve dealt with this. And then of course the armed forces hearing, etc.

As we’ve dealt with, we have dealt with this, as is stated for example at page 2371, I could have taken any of the others, they’re all the same. This was just the one that came to hand, it's the evidence of Mr J B Taylor and, Mr Chairman, and he says at the bottom of 2372:

Now Mr Chairman, our concern is this, and I really have great sympathy for what Mr du Plessis is trying to say. This is a Commission of Inquiry. We don’t work here according to Supreme Court rules. It would just not have been feasible to do so. We all have realised this for two years now. We try to work it on the most pragmatic way in order to get the job done.

Now, Mr Chairman, once you start doing that, it becomes a sui generis situation which is going to depend largely on the co-operation of everybody. And really, if - Mr Chairman we could throw spanners in the works, as we go along, to such an extent that we could grind the whole system to a halt. I’m not saying my learned friend Mr Bizos is doing that, but what we have done here ...(intervention)

CHAIRPERSON:   So that again, the passage you have - as I understood it, it is the general sense of what they said, not specific incidents.

MR VISSER:   I have an understanding for that, and I have no problem with that. The only point I’m making now, Mr Chairman, is, if you understand Mr Bizos, and Mr Bizos’ objection as affecting the way in which we have been dealing with the situation, then Mr Chairman, we must have a ruling. Because if I ...(intervention)

CHAIRPERSON:   I understand it as this, he is being referred to specific passages that he knows nothing about, and hasn’t been informed about, and no evidence has been led about them.

MR VISSER:   But if I may just conclude Mr Chairman ...(intervention)

CHAIRPERSON:   And as I said earlier Mr Visser, had there been some consultation between counsel, as is normally the practice, it appears to me the whole of this could have been avoided and we could have avoided wasting most of today.

MR VISSER:   Mr Chairman, I’m only concerned about one thing, and that is that we want to know whether we’ve been going about this the correct way. It’s as simple as that. And we’ve given you examples and you have come through a number of applications with us, you know how we go about things. Mr de Jager made ...(intervention)

CHAIRPERSON:   And we have never, have we, allowed details evidence from other matters to be ...(intervention)

MR VISSER:   That is so. That is so Mr Chairman, but we’ve never had an objection either. This is the first one.

CHAIRPERSON:   Nobody’s ever done it.

MR VISSER:   Yes. Well Mr Chairman that’s my only concern. Is to know that we are still within the limits of what you expect from us, and what you will allow.

MR BIZOS:   May I just respond to a rhetorical question by Member of the Committee, Mr de Jager? We do not contend, and we do not put in issue, that there was a violent conflict in the past. There is a legal presumption to that effect, preventing us from doing it. The postscript of the interim constitution and the preamble to the Act under which you are, we are operating, that is not our case Mr de Jager.

CHAIRPERSON:   ...(indistinct) go a bit further and admit that a climate was created where the Security Forces believed they could act illegally and no questions were ever asked or reports required of such actions.

MR BIZOS:   Yes Mr Chairman, I think that’s what I put to General Coetzee.

CHAIRPERSON:   You agree to that?

MR BIZOS:   Yes, Mr Chairman.

CHAIRPERSON:   That’s paragraph 77. Well that’s what we ...(intervention)

MR BIZOS: But this does not ...(intervention)

CHAIRPERSON:   Well that is the point I’ve been trying to make from the beginning, that it seems if Mr du Plessis merely advanced his argument without relying on the references he makes, you would probably agree to most of them.

MR BIZOS:   This is why ...(intervention)

CHAIRPERSON:   If you don’t you have to argue against them.

MR BIZOS:   Yes, Mr Chairman this is why I asked for the admissions of fact to be formulated, which ...(intervention)

CHAIRPERSON:   I don’t think they have to be admissions of fact. Is there any reason why Mr du Plessis should not advance the argument set out in these paragraphs?

MR BIZOS:   No, and he has sufficient evidence ...(intervention).

CHAIRPERSON:   If you want to try to argue later that he hadn’t got any basis for them, you could do so and he can reply to you.

MR BIZOS:   Absolutely, Mr Chairman. But I don’t want to be faced, with respect, with specific evidence in relation to authority and how authority was calculated, as deposed to in another case.

CHAIRPERSON:   We have said - We made it clear from the beginning, I thought, Mr Bizos, that we were not going to have reference to the other cases. We were not going to quote them as authority. But as I understand, most of this is not disputed. So if Mr du Plessis can merely continue with his argument, without making these references, if you contest them, you can tell us why, and he can then deal with them. And we might then have to consider the question of the necessity of evidence. But it seems to me, most of them you won’t. We all know what was current, what existed at that stage.

MR BIZOS:   Mr Chairman you will be able to, you will be able to, judge what the effect of our argument is going to be, and it is not that there were not conflicts in the past, but I think that I’ve made myself clear as to what we can agree to and what we cannot agree to.

MR DU PLESSIS:   Thank you Mr Chairman. Mr Chairman, may I perhaps just request, I see it’s one o’clock now in any case, I don’t know if you want to ...(intervention)

CHAIRPERSON:   Are you prepared to continue with your argument without referring to these, and if Mr Bizos contest them you can then raise the questions.

MR DU PLESSIS:   Yes, but I would still prefer that there’s a ruling on that, Mr Chairman, so that we know exactly where we stand ...(intervention)

CHAIRPERSON:   A ruling on what, Mr du Plessis, the admissibility of facts set out in evidence elsewhere, that have not been referred to in evidence?

MR DU PLESSIS:   Alright, Mr Chairman, I’m in your hands. I’ll leave it at that.

CHAIRPERSON:   We’ll now adjourn for half an hour.

CHAIRPERSON:   We have been asked to give a ruling on a submission by Mr du Plessis, that having asked his witness, Mr Raven, whether he had read certain evidence, he was thereafter entitled to refer to specific passages in that evidence.

We are of the view that where a witness is asked in general terms whether he has read the evidence given by some other party, at other proceedings, reference can thereafter be made to the general tenor of that evidence and any general submissions that person made in the course of his evidence. We are, however, of the view, that no reference can be made in the sense that it becomes admissible as evidence, of any specific passage contained in that evidence. If it is desired to make use of such passage the evidence should either be made available, and the witness being questions should be referred to that passage, or he should be specifically questioned about the passage and as to whether he agrees with what was said there.

In the present case, that was not done. We are accordingly of the view that the only reference that can be made to the evidence which he said he agreed with, was as to the general tenor of the evidence.

MR DU PLESSIS IN ARGUMENT:   (Cont)

As it pleases you Mr Chairman. Mr Chairman, in respect of the Heads of Argument, I will then - I didn’t want to in any event refer you to the specific passages that I refer to in the Heads of Argument, and I will then simply say that where I refer to the Khotso and Cosatu House hearings, to the passages themselves, that that would then obviously, should be regarded as being excluded from my Heads of Argument, but I will still refer, as you have ruled now, to the general tenor of the evidence, which will be contained in the paragraphs where I make the specific statements.

Mr Chairman, if I can refer to paragraph 67, page 40, the evidence was, of Mr Raven, as well as Mr Williamson, and in other hearings, was that the Communist Party and the ANC were involved in a people’s war. May I just remind you, Mr Chairman, what we are busy with, is we are busy with the requirement that an act must have been committed in the course of the conflicts of the past, and I’m continuing from paragraph 67.

Then, Mr Chairman, paragraph 67.1, page 42, is the same tenor, I’m not going to refer to that specifically.

Paragraph 68, the evidence furthermore showed that the National Party and the South African government had to resort to counter-revolutionary and counter-insurgency tactics and strategies, to combat the tide of violence, and to combat the people’s war conducted against the government and the National Party. The fact that the South African government developed a counter-revolutionary strategy was confirmed in the evidence, I beg your pardon, in general terms, as you’ve ruled now, I refer to the evidence of General van der Merwe.

Mr Chairman, then you will see on page 43 in this regard, I also refer to the evidence of Mr Raven. That’s the first record reference there, page 1853 to 1865. And also page 59. I think that’s General Cotzee’s evidence.

Then, Mr Chairman, if we can turn to page 45, I make the point there, although there are not specific references to the evidence, that the strategy was developed in respect of cross-border operations, which were authorised by the State Security Council, I think Minister Botha testified to specific such cross-border operations. And then it was developed by way of the South African police working with the SADF and special forces. And then such cross- ...(intervention)

ADV DE JAGER:   You said Mr Botha. Oh, Mr Pik Botha?

MR DU PLESSIS:   Yes, Minister Pik Botha. He didn’t testify but made statements during cross-examination to certain authorised operations. Then paragraph 68.3 should be read as a reference to the fact that President P W Botha authorised certain cross-border operations. It was the government that authorised it. And then I make the point in the First, that should be reference to Ruth First, it should have been capital letters, and Schoon incidents, the probabilities are overwhelming that either Mr Botha, that’s our President P W Botha, Mr le Grange, the cabinet, or the State Security Council knew about the actions, and that they were authorised.

ADV DE JAGER:   I don’t think it’s very material here, in this instance. It was authorised by President P W Botha. That’s a statement here.

MR DU PLESSIS:   Yes Mr Chairman, I have said that that refers to cross-border operations. Yes, it’s not clear.

ADV DE JAGER:   ...(indistinct) was representing ...?

MR DU PLESSIS:   Mr Penzhorn. Yes, I’m not saying that it was - I’m saying cross-border operations, so you should perhaps, Mr Chairman, just amend that. Mr Chairman, then ...(intervention)

ADV DE JAGER:   ...(indistinct)

MR BIZOS:   Sorry, I didn’t hear the question.

ADV DE JAGER:   Was Mr Penzhorn informed of the argument, that we will start argument on this?

MS PATEL:   Mr Penzhorn’s assistant was present at the end of the last hearing, where the decision was taken, but I haven’t given specific further notifications as to argument being heard. But his representative was in fact present at the last hearing when this decision was made.

ADV DE JAGER:   Yes, perhaps we should try and find out whether all the representatives are aware, for instance Mr Booyens has submitted argument, and I think he’s made arrangements. But, to find out whether there can’t be any misunderstanding about somebody not being informed.

MS PATEL:   I might add that at the end of the last proceedings, I wrote to parties who weren’t present, informing them that the matter would be finalised during these two weeks, and if they so wished, they could tender further Heads of Argument or supplement oral argument here.

MR DU PLESSIS:   May I carry on, Mr Chairman? Mr Chairman, in paragraph 68.3 I d