CHAIRPERSON: ... quick, quick and finish, Mr van der Merwe.

MR BERGER: Judge, the fourth referee will have to tell me how much injury time I've got.

JOHAN VELDE VAN DER MERWE: (s.u.o.)

CROSS-EXAMINATION BY MR BERGER: (Cont)

Mr van der Merwe, please would you turn to page 103 of bundle 1.

MR VISSER: Which page?

MR BERGER: 103, Chairperson.

This is your amnesty application, and I'm dealing with paragraph 4, Nature and Particulars. The paragraph that we haven't yet dealt with, is the last one which says -

Now is it correct that the written recommendation that you refer to is the document which is annexed to Exhibit A?

GEN VAN DER MERWE: That is correct, Chairperson.

MR BERGER: Where did you get this document from?

GEN VAN DER MERWE: Chairperson, if I have it correctly, this document was spoken about during the criminal trial of Mr de Kock, but it was given to me by members of the South African Police Services, who had the task to trace it in terms of the criminal trial and also placed it at my disposal.

MR BERGER: And when did you get this document into your possession?

GEN VAN DER MERWE: Chairperson, it would have been after I made this submission, definitely quite some time afterwards.

MR BERGER: Yes, well how long ago was it that you got this document into your possession?

GEN VAN DER MERWE: It would most probably have been approximately two to three years.

MR BERGER: You've had this document for two or three years, and you've only made it public now.

GEN VAN DER MERWE: Well there wasn't any other opportunity upon which I could have made it known.

CHAIRPERSON: Did you have it in your possession when you made your application?

GEN VAN DER MERWE: No, Chairperson, it was only subsequent to that, that I received the document.

MR BERGER: And you are the author of this document.

GEN VAN DER MERWE: That is correct.

CHAIRPERSON: No, to be quite accurate, he's part author because someone else made written notes on the last page.

GEN VAN DER MERWE: Yes, that is Gen de Wit who made the notes, but at that stage he was the Deputy Commission.

CHAIRPERSON: By the way, he was there in Coetzee's place when Coetzee was on holiday in Port Edward.

GEN VAN DER MERWE: Yes, that is correct.

CHAIRPERSON: You stated that you did not regard it as necessary to inform him, de Wit ...(intervention)

GEN VAN DER MERWE: That is correct.

CHAIRPERSON: ... of the proposed attack. Now if that is the case and you say that the reason for that was that he didn't know what was going on, he wouldn't have been in a position to make a decision on the one hand or the other.

GEN VAN DER MERWE: That is correct.

CHAIRPERSON: Do I understand by that that he was in no position to understand what the whole attack involved and the proposed results of this attack?

GEN VAN DER MERWE: Chairperson, he would not have possessed the necessary background to exercise any real judgement as to whether or not our action at that stage was necessary, he would simply have had to rely upon my recommendation and my judgement was that it would simply mean that I would shift my responsibility to a person who at that stage, in a certain stage, would have been used as a rubber stamp. And I think that Gen Coetzee will also confirm that Gen de Wit was never involved in security matters, he was a former Quarter Master, he was more of an administrative man and I thought that it would be unreasonable to place him in such a situation.

CHAIRPERSON: The recommendation for the Silver Cross Medal, to whom was this made?

GEN VAN DER MERWE: Gen Coetzee made the recommendation, but it was decided with the approval of Compol, that the Silver Cross Medal would be awarded. Therefore, instead of the medals that I recommended, the Silver Cross Medal would be more applicable.

CHAIRPERSON: How did Gen de Wit fit into that decision?

GEN VAN DER MERWE: Well he was the Deputy Commissioner and the Chairperson of the Generals in Staff, to whom I made this submission.

CHAIRPERSON: Then he must have been in a position to understand why these medals had to be awarded.

GEN VAN DER MERWE: No, Chairperson, that is the problem exactly, he wouldn't have been, and that is why I said the Commissioner had knowledge of this matter. The information that I gave was of such a nature, as you will note, that nobody would have been able to determine according to this information, to which dangers and risks these members had exposed themselves and consequently would not have been able to judge whether or not a medal was actually earned. That is why I discussed the complete background with Gen Coetzee and consequently went to Gen Coetzee to ask whether or not these medals should be recommended, with the understanding that Gen Coetzee on his behalf, would inform the Minister so that the Minister would also be aware of the background in order to be able to determine whether or not the prerequisites for being awarded this medal were indeed met.

CHAIRPERSON: Very well, we have no heard this lengthy explanation, but my simple question is, how did de Wit fit into the decision to award the medals? Whichever medals they were.

GEN VAN DER MERWE: He was the Chairperson of the Generals in Staff and whenever a medal of this nature was recommended, there was a rule that the Generals in Staff had to consider such a recommendation and make their own recommendations.

CHAIRPERSON: Very well. Did this take place as such in this case?

GEN VAN DER MERWE: That is correct.

CHAIRPERSON: Now how was de Wit in a position to determine whether or not these medals should be awarded?

GEN VAN DER MERWE: He wasn't, he had to rely upon the Commissioner's judgement.

CHAIRPERSON: So he made a decision during a time when he didn't understand what was going on.

GEN VAN DER MERWE: No, he made a decision in terms of a submission which did not contain such facts which would have informed him as to whether or not the prerequisites were met, with the knowledge that the Commissioner did possess such information and he prevailed upon the judgement of the Commissioner exclusively.

CHAIRPERSON: Is that what you know?

GEN VAN DER MERWE: Yes, that is what I know and the Commissioner will be able to testify to that.

CHAIRPERSON: So what was the point of taking it to the Generals in Staff, if the Commissioner was the only person who possessed this information?

GEN VAN DER MERWE: That was the fixed procedure, he had to go to the Generals in Staff first. I simply dealt with the matter in terms of the fixed procedure at that stage.

CHAIRPERSON: But what I find strange, Mr van der Merwe, and I want you to deal with this and I do not want you to find yourself in the position subsequent to the hearing, to guess what your answer would have been. Here we have a person who was not familiar during the time when the decision was taken to launch the attack ...(intervention)

GEN VAN DER MERWE: That is correct.

CHAIRPERSON: ... but after the attack you made a recommendation in order to determine whether or not medals should be awarded with regard to the same incident, and that I cannot understand.

GEN VAN DER MERWE: In my submission, Chairperson, I did not compliment anybody regarding this, it went about a fixed procedure and the understanding was that there could be consultation with the Commissioner, who possessed all the necessary information, who would be able to judge or evaluate whether or not the prerequisites had been met.

You will also not that the recommendation was coloured as such that one could not really determine what it dealt with, we didn't provide enough particulars. So it didn't really place anybody in a compromising position. It was expected however, that before a memorandum be submitted to the Minister, the Generals in Staff review it.

And this was not the only case, there were many other similar cases when the medals, or recommendations for medals were given to the Generals in Staff and they didn't have any information about it and they dealt with it with the understanding that the Minister or the Commissioner would have possessed the necessary information and they agreed with these recommendations, in terms of the proposed knowledge that the Commissioner would have possessed.

CHAIRPERSON: Did the government or the procedure of the time think much of the Generals in Staff?

GEN VAN DER MERWE: Yes, indeed.

CHAIRPERSON: Did you know that they were viewed in such a superior light?

GEN VAN DER MERWE: Yes.

CHAIRPERSON: And did you know that de Wit was the Chairperson?

GEN VAN DER MERWE: Yes.

CHAIRPERSON: But nonetheless you thought it advisable not to inform him of this impending attack?

GEN VAN DER MERWE: That is correct, as I have already informed you.

CHAIRPERSON: Please continue, Mr Berger.

MR BERGER: Thank you, Chairperson.

Mr van der Merwe, your evidence yesterday, or perhaps it was on Monday, was that anybody reading this motivation would have known exactly what it was referring to.

GEN VAN DER MERWE: Yes, that is correct, Chairperson.

MR BERGER: You go on about two months of preparatory work that was done that as a result of this operation - if you look at paragraph 2 you say that -

... the last sentence -

CHAIRPERSON: Where are you reading now, Mr Berger?

MR BERGER: Chairperson, paragraph 2, numbered paragraph 2, the last sentence.

You describe that it was a covert operation, in other words an operation that the South African government would have denied responsibility for.

GEN VAN DER MERWE: That is correct, Chairperson.

MR BERGER: In paragraph 4 you talk about the particular bravery, the extraordinary skill, the disregarding of danger to life, determination and you recommend that certain medals should be awarded.

GEN VAN DER MERWE: Correct.

MR BERGER: And you are saying that Mr de Wit merely acted as a rubber stamp and never brought his mind to bear at all, on the operation that you were describing.

GEN VAN DER MERWE: No, Chairperson, I stated that if I had approached him about it before the operation was launched, in the light thereof that he did not possess the necessary background, he would not have been able to determine whether or not the action in all regards was necessary at that stage and for this reason he would necessarily have had to prevail upon my judgement and I would simply then have used him as a rubber stamp in such a case, because he would not have possessed the capacity to debate the matter with me or to differ from me, or to adopt a different viewpoint to the matter, he would have had to prevail upon me, I was the head of the Security Branch at that stage, at least I was second-in-command at that stage, and he would necessarily have had to prevail upon my recommendation. If he had not done so, he would have had to differ at the hand of information which was of essential importance for the matter and he did not have this information.

MR BERGER: Mr van der Merwe, you've given a long answer about what you would have done or would not have done before the raid, but my question wasn't directed at that at all.

GEN VAN DER MERWE: But that is how I understood it, because subsequently he didn't' know.

MR BERGER: No, after the raid - I'm talking about this recommendation that you drafted, after the raid ...(intervention)

GEN VAN DER MERWE: Yes, but ...

MR BERGER: Can I just put the question again? After the raid you gave him the information which is set out here.

GEN VAN DER MERWE: Correct.

MR BERGER: He would have known and did know, according to you, because everyone knew exactly what you were referring to, that you were referring to the raid on Lesotho, on Maseru on the 20th of December 1985.

GEN VAN DER MERWE: Correct.

MR BERGER: And your evidence now is that he approved -when he approved the medals, he acted as a rubber stamp and never applied his mind at all to whether or not the medals were justified.

GEN VAN DER MERWE: Yes, that is correct. You must remember that he did not know the actual circumstances under which those members would find themselves. In order to comply with the recommendation for a medal for bravery, it would be required that such a person had exposed themselves to mortal danger and if Gen de Wit had to consider this, he would have had to know what the actual circumstances were under which they operated. What I put to him here was put to him as a fact, there were no particulars to indicate the nature of the threat and the actual circumstances under which these members operated and why it should be inferred from that, that their lives were in danger.

I can assure you that normally no Generals in Staff or even Gen de Wit, would have accepted such a recommendation based purely upon what I told him because what I told him I gave him as a given, I did not provide any facts based upon which he could evaluate for himself whether or not what I have stated was well founded. I gave him this information as a given and he accepted it, he didn't have a choice.

CHAIRPERSON: Why didn't he have a choice?

GEN VAN DER MERWE: Because, Chairperson, he did not possess the necessary particulars to dispute it. I have stated here that these persons displayed bravery, skill, and there was no way that he could determine whether or not this was true.

CHAIRPERSON: Then why should he believe you?

GEN VAN DER MERWE: That is why I have stated that he would necessarily have had to liaise with Gen Coetzee, who possessed the complete set of facts, in order to determine whether or not this was in order.

CHAIRPERSON: Well then we've come to the point. Then he would have understood what Coetzee told him?

GEN VAN DER MERWE: No, he would have accepted that Gen Coetzee, who possessed all the facts, was of sound judgement in this matter and that he could deal accordingly.

CHAIRPERSON: But Mr van der Merwe, if you have just said that he would have had to contact Mr Coetzee, and discussed the matter with him because the facts were not contained within this document ...

GEN VAN DER MERWE: Correct.

CHAIRPERSON: ... and from Coetzee he could have or must have obtained the real facts of the matter.

GEN VAN DER MERWE: No, he would have asked Gen Coetzee "I have received a memorandum and certain recommendations for certain medals are made here, I don't have the complete facts, you have the facts, do you agree with the recommendation". That is what he would have said or asked Mr Coetzee at the very most.

CHAIRPERSON: Full-stop - he wouldn't have gone any further?

GEN VAN DER MERWE: He wouldn't have asked any further questions.

JUDGE KHAMPEPE: Mr van der Merwe, I thought I understood your previous evidence not to have meant that you would have liaised with Mr Coetzee, I thought you said you would have relied on the decision of Mr Coetzee, and if Mr Coetzee's decision would have been that your recommendation should be approved, you would have simply gone along with Mr Coetzee's decision without having to consider the facts, because your memo did not provide sufficient facts on which he could have based his determination, whether to approve or disapprove your recommendation. This is how I understood your earlier evidence. I'm a little troubled by your use of the word "liaise with Coetzee", instead of your earlier words which you had used, which was to rely on Mr Coetzee's decision without having to discuss any facts with Mr Coetzee. What is the position?

GEN VAN DER MERWE: Chairperson, I discussed the matter with Gen Coetzee and made a recommendation to him, and as far as it pertained to the allocation of the medals, and it is obvious that Gen Coetzee's judgement in this matter would have been essential. I don't know what the problem is, whether it is ...(intervention)

JUDGE KHAMPEPE: Let me tell you what my problem is. My problem is what you now want to suggest, that Mr de Wit must have liaised with Mr Coetzee before approving your recommendation. Now that to me is suggestive of a discussion having taken place between Mr Coetzee and Mr de Wit, about the essential - you understand my problem?

GEN VAN DER MERWE: Yes, I understand, Chairperson. No, ...(intervention)

JUDGE KHAMPEPE: Let me finish. Whereas I understood your evidence to have meant that there was no such a discussion. Mr de Wit must have relied simply on the decision of Mr Coetzee, without there ever having to be a discussion about the essential facts of the reason why the recommendation was being made by you.

GEN VAN DER MERWE: Chairperson, if I said "consult", I meant it in the sense that Gen de Wit would have consulted with Mr Coetzee, but not in the sense that he would have discussed the facts of the matter with him, but to determine what Gen Coetzee's viewpoint was in the light of the facts that he possessed.

CHAIRPERSON: Is that your perception of what must have happened?

GEN VAN DER MERWE: Yes, that is my perception of the probability of what must have happened.

CHAIRPERSON: Is there anything that would have led to him asking "Tell me what happened, how did it happen?

GEN VAN DER MERWE: I would say that the reason why we coloured this recommendation under a cover-up, was that everybody wouldn't be compromised. And I don't think that Gen de Wit would have wanted to be compromised in a matter that had nothing to do with him.

CHAIRPERSON: But in the eyes of the world, if he had agreed that medals should be awarded for something, then he would be linked to the incident, not so?

GEN VAN DER MERWE: Well I think in practice that would be the most simple of examples. I don't think Mr de Wit is here to give evidence about it. Whatever the case may be, nothing can link Mr de Wit to any of the consequences of this action.

CHAIRPERSON: You see, Mr van der Merwe, it is not about whether you or I understand the law or what the Attorney-General will do, the point is, why did you not tell him beforehand that this attack would take place?

GEN VAN DER MERWE: I tried to explain that, Chairperson, I cannot explain it any better.

JUDGE KHAMPEPE: May I, Mr Berger, interpose again?

Was it customary for this kind of a rubber-stamping to occur where the Chairperson of the Generals in Staff would not be informed of the situation, of the facts, to enable him to make a proper determination but to simply rely on his senior, like Mr Coetzee?

GEN VAN DER MERWE: Incidents of this nature, yes, Chairperson. To tell the truth, Brigadier Schoon will also be able to give evidence about that. I think there were cases where even less information was given than I had given, where they had recommended medals from the Generals in Staff.

JUDGE KHAMPEPE: Thank you, Mr Berger.

MR BERGER: Thank you, Judge.

Mr van der Merwe, you say that the reason that Mr de Wit wouldn't have been given more information, other than what is contained in here, is because he wouldn't have wanted, or you wouldn't have wanted him to be compromised.

GEN VAN DER MERWE: Correct.

MR BERGER: But isn't it obvious that by him placing his signature on this document, approving medals for certain police officers who carried out a clandestine operation in Lesotho, on the 20th of - or a clandestine operation on the 20th of December 1985, when everyone knows that there was only one clandestine operation on the 20th of December 1985, he's compromised as soon as he signs this documents?

GEN VAN DER MERWE: We did not think so, Chairperson.

MR BERGER: You say here in paragraph 3, this is the document he signed -

And by saying that and him signing this document, you say he wasn't compromising himself.

GEN VAN DER MERWE: No, Chairperson.

MR BERGER: Okay. Tell me please, at the top of that page -this is General de Wit's handwriting, I would think ...

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: ... that says -

GEN VAN DER MERWE: No, it means Col Coetzee at the library, who deals with medal awards.

MR BERGER: Now forgive me if I have misinterpreted this, but you recommended medals for outstanding service, the police star for outstanding service.

GEN VAN DER MERWE: Correct.

MR BERGER: For the five officers mentioned in paragraph 1.1.

GEN VAN DER MERWE: Correct.

MR BERGER: And then you mentioned a "bulk", what is bulk.

GEN VAN DER MERWE: It is an addition to the South African star for exceptional service. It is where a person is already in possession of such a star and then it gets the bar added to it. It is just a bar that is added to it.

MR BERGER: Something over - additional to the star?

GEN VAN DER MERWE: That's correct, yes.

MR BERGER: Okay. And then in the handwritten notes by Gen de Wit, it says there again -

So that's for the person at the library, is that correct?

GEN VAN DER MERWE: That's correct, yes.

MR BERGER: It says -

GEN VAN DER MERWE: Correct.

MR BERGER: And that he's saying "I have approved it because I am the head of the General Staff, or I as the head am telling you that the entire General Staff have approved it", and then he says -

... and you say that is Mr Coetzee.

GEN VAN DER MERWE: That's correct, Chairperson.

MR BERGER:

Now am I understanding it correctly that you recommended a particular star, but another star was approved?

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: A better star or a lesser star?

GEN VAN DER MERWE: No, a lesser star.

MR BERGER: Were you recommending the Gold Cross and they got the Silver Cross?

GEN VAN DER MERWE: No, the South African Police star for exception service is the highest award that could be awarded in the police service and Gen Coetzee was of the opinion that circumstances did not justify this and therefore the South Africa Police Silver Cross for Bravery was recommended, which a lesser award.

VOORSITTER: "...(onduidelik) gelees het "Outstanding Service".

GEN VAN DER MERWE: Dit was die SOE gewees, Voorsitter..."

CHAIRPERSON: What did you ask?

GEN VAN DER MERWE: I asked for the South African Police star for outstanding service.

CHAIRPERSON: Outstanding service - it sounds like it.

GEN VAN DER MERWE: "Ja, maar dit was die watse naam, die Stella Officii Egregi toekenning gewees, SOE." That is the highest award that can be awarded.

VOORSITTER: ...(onduidelik) vir dapperheid? Of net Coetzee?

GEN VAN DER MERWE: Gen Coetzee recommended that instead of the first-mentioned one, the Silver Cross would be awarded.

ADV BOSMAN: Gen van der Merwe, may I just enquire. If one looks at the context of it, with the approval of the Commissioner it has been decided, it would appear that a decision was taken that was approved by the Commissioner. If one reads it as it is written there. Do you agree with me? Are you not mistaken?

GEN VAN DER MERWE: You are correct, but I think it is not completely worded, but at the bottom you will see -

... that means to promote it with the Minister.

ADV BOSMAN: That is correct, but it would appear that there was a consultation with the Commissioner of Police after the decision was taken, I just wish to know if you are not possibly mistaken about this.

GEN VAN DER MERWE: No, I think it is just the sequence that does not follow here correctly. It may have been done the other way around and I think that is the way that Gen de Wit had dealt with it here.

ADV BOSMAN: Do you have an independent recollection that you had determined that the recommendation of the Silver Cross came from the Commissioner of Police and not the other way around? Are you certain of that? I'm trying to assist you to give us clarity about this, are you certain of it factually, that it didn't go from the Generals in Staff to Gen Coetzee, or did it happen the other way around? Because when one reads it, the inference that one draws is that it was the other way around.

GEN VAN DER MERWE: Yes, it was the other way around. After Gen de Wit had consulted with Gen Coetzee about it, it was recommended as such.

CHAIRPERSON: You know what confuses me is the first line, but now I understand. Your recommendation was approved by the Generals in Staff, but with the Commissioner's approval it was decided that the South African Police Silver Cross for bravery would be awarded to them.

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: Thank you, Chairperson.

Mr van der Merwe, the facts as we know them now, are that of the nine people killed, six were South African and there were Lesotho citizens. Do you accept that?

GEN VAN DER MERWE: That's correct, Chairperson.

MR BERGER: Do you accept that you would have known that at the time?

GEN VAN DER MERWE: After the incident?

MR BERGER: Yes. You would have been briefed on exactly who had been killed.

GEN VAN DER MERWE: Yes. Perhaps, I may just mention, after the incident I received a report from Brig Schoon that the operation had been completed and that the persons who were on the verge of entering the RSA, had been killed, and we would have had the names of these persons who had been killed.

MR BERGER: But you would have also known that amongst the people who were killed were people who were not on the point of entering South Africa, to carry out attacks.

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: Not only that, you would also have known when you received the report from Mr Schoon, that amongst the dead was a school teacher, I'm referring to Jackie Quin, who was not involved in MK activities at all, and three Lesotho citizens who in no way could have been connected to the struggle against the South African regime. You would have known that when you received your report from Mr Schoon.

GEN VAN DER MERWE: Chairperson, may I just comment firstly with regard to Ms Jackie Quin. Although I am sorry that she had died in the incident, but she was a collaborator of the ANC and she was in the company of persons who had planned acts of violence and terror. So in that regard she was not removed from the whole process that had taken place there.

With regard to the other persons, the information at that time would have probably - depending on the activities which they were involved, set out the connection between them and the ANC. I cannot recall what the particular circumstances were. I can recall that the only person who in this process, with regard to the newspapers, that was emphasised, who was not directly involved in violence, was Ms Jackie Quin. I cannot recall at this stage what the nature and particulars of the activities of the other persons were.

MR BERGER: No, no, you see I'm not asking you for your recollection now, because you've told the Committee several times that your recollection is so vague, you can't even remember who you spoke to before the raid, I'm asking you to put yourself back in the position in 1985 immediately after the raid. You would have received a report from - let's go back a little further, before the raid you had a list of names of the people that you wanted dead.

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: After the raid you would have received a report-back of the people who had been killed.

GEN VAN DER MERWE: Correct.

MR BERGER: You would have compared the two lists and you would have seen that more people were killed, or other people were killed, other than those who were on your original list.

GEN VAN DER MERWE: That's true, Chairperson.

MR BERGER: Now you say that - reading between the lines of the evidence that you've just given, that Jackie Quin wasn't as innocent as I'm trying to make her out to be, you call her a "meeloper".

GEN VAN DER MERWE: I said a possible collaborator or a supporter of the ANC, but she did find herself in the company of the person who had planned violence and who had given military training, so one accepts that she was aware of their activity.

MR BERGER: If you're married to an MK Commander, your a target for assassination by the South African ...(intervention)

GEN VAN DER MERWE: No, she was not a target, that's not what I am saying, but it also means at the same time that she was involved in the company of persons who were targets.

CHAIRPERSON: Of what value is that answer?

GEN VAN DER MERWE: Chairperson, it means that she had necessarily exposed herself to certain risks because of her contact with persons who were involved in violence.

JUDGE KHAMPEPE: May I interpose, Mr Berger?

But let me understand you, Mr van der Merwe, and I will go back to your instruction to Brig Schoon, with regard to the execution of the operation. Did your instruction extend to the killing of collaborators or was it confined to the killing of the Meyer group?

GEN VAN DER MERWE: Chairperson, may I just place this in perspective. You mention the Meyer group, now Mr Berger yesterday questioned me about certain persons and I would like to shed light upon this matter. When we drew up this document, the last statement, we made use of names which we found from the ANC's submission and except for the other names, Jackie Quin and Lionel Meyer, I could not recall the other names and using the evidence of Col de Kock and because of the name of Lionel Meyer had remained in my mind, I accepted that Mr Meyer had been the leader of the group. This does not necessarily mean that all the person who were involved in his group would have resorted under his group, but what was of import is that when we had the targets we had the names of certain persons who were about to enter the country and my instruction was later to those persons and to stop those persons entering the country. But obviously we did accept that in such an operation there are certain risks attached to it and no unit, not even the best in the world can guarantee that when they do act in such a case, that innocent persons would not die. So it was a possibility that we foresee and accepted.

JUDGE KHAMPEPE: Thank you, it assists me greatly.

MR BERGER: Thank you, Judge.

Your evidence throughout has been that the people that you instructed to be killed, were those people who were on the verge of entering South Africa to carry out attacks.

GEN VAN DER MERWE: That's correct, Chairperson. But I added that we foresaw that other persons might die in the process.

MR BERGER: Because according to you, it couldn't be avoided?

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: But is that really correct, because couldn't you have given instructions to Mr de Kock or Mr Schoon, through him to Mr de Kock, whichever way you did it, to ensure that only those people who were on your list, who you believed were about to enter South Africa to commit acts of violence, that only them should be killed and that they should take steps to ensure that no one else was killed in the process? You could have given such an instruction.

GEN VAN DER MERWE: Chairperson, my instruction was that everything possible was to be done to prevent persons who were not involved in violence from being killed, but it is obvious as I have already told you, that there was no way. I would have been extremely unreasonable if I thought that any unit can complete such an operation without the possibility that other persons be killed in the process, or that other MK members who might have been there would also not be killed in the process. You have to recall that we were at war with MK, so that would have been extremely unreasonable of me to ask this of these members.

MR BERGER: You keep talking about a war that you were involved in, and in your statement you say that even though it was a war, the rules of war didn't apply. Let's bring it down to what it really was. It was an ambush on a group of people who had been called to a house, or gathered there for a party.

GEN VAN DER MERWE: Who were on the verge of entering the Republic in order to commit acts of terror and violence.

MR BERGER: That's not disputed. The point is, your operatives arranged for all these people amongst whom were the people that you were targeting, to be brought together to a party, under the guise of having a party. And also, if you've read the statement of Mr McCaskell, you'll see that he spiked the drinks. I'm sure you've read that.

GEN VAN DER MERWE: Yes, I've read it.

MR BERGER: Of the people at the party. Now isn't that something ...(intervention)

JUDGE KHAMPEPE: Of at least one, Mr Berger, not everyone was - yes, he could only manage to spike the drink of one person who was drinking brandy or whisky.

MR BERGER: Thank you, Judge.

The point is that that was an option that was obviously considered, drugging people so that when the ambush occurred they wouldn't be in a position to fight back. My point to you Mr van der Merwe is, it seems as if you did not lay particular emphasis on the fact that only those people who were about to enter the country were to be killed.

GEN VAN DER MERWE: Chairperson, I emphasised that persons who were involved with violence had to be killed, but the whole operation was obviously aimed - as I have repeatedly said, to prevent those persons who wanted to come into the country, to prevent them from being successful.

CHAIRPERSON: Do I understand you correctly, they had to continue with your instructions, knowing that there innocent persons may also be killed, but those persons about to enter South Africa, they were the targets.

GEN VAN DER MERWE: Correct, Chairperson.

CHAIRPERSON: What would have been the position if there were children at the house?

GEN VAN DER MERWE: Chairperson, Col de Kock has emphasised and I have said also that everything had to be done in order to prevent that innocent persons be killed, and it was done, Chairperson.

CHAIRPERSON: What would have happened to the whole operation if de Kock had arrived there and saw here at this house there were children as well as the targets, would he have continued the operation?

GEN VAN DER MERWE: No, Chairperson, he would not have. Definitely not.

CHAIRPERSON: Now what of innocent persons who were not on the point of entering the country?

GEN VAN DER MERWE: Chairperson, in that case he would have had to have himself led by circumstances. I think they would have done everything possible to prevent that those people got killed during their actions, but once again I think they would have tried to identify their targets.

CHAIRPERSON: So you do not draw a distinction between innocent persons and children, except for age?

GEN VAN DER MERWE: In the case of an innocent person one accepts during such an operation, that such a person can get away much quicker and that they from their side would be in a better position to try to prevent killing such persons.

CHAIRPERSON: Please continue, Mr Berger.

MR BERGER: Isn't the difference between so-called innocent people and children, from your point of view, that the innocent people have chosen to party or associate with MK members and so they too are legitimate targets for assassination?

GEN VAN DER MERWE: Definitely not, Chairperson.

MR BERGER: Well then I don't understand your distinction, but we'll leave it at that.

In your statement and in your evidence, you've said that you're relying on the ANC's submissions to the TRC, in relation to the people who were killed.

GEN VAN DER MERWE: Correct.

MR BERGER: And you refer in your statement to page 62 of the ANC's submission to the TRC, dated August 1996, am I right?

GEN VAN DER MERWE: Correct.

MR BERGER: August 1996. The only passage at page 62, which deals with this attack, is a paragraph in the first column on the left-hand side, four paragraphs from the bottom, and I'll read it to you. It reads as follows -

Is that the passage that you incorporated by reference, into your statement?

GEN VAN DER MERWE: Yes, Chairperson. But then, page 92 or 93 of the same report, there ironically you will see -

MR BERGER: So what is your point?

GEN VAN DER MERWE:

And below number 44 the name of Jackie Quin appears as an -

MR BERGER: Yes, and this specific paragraph that I read to you before, does that not cast this list in a slightly different light?

CHAIRPERSON: I think the impression - I can't remember what you put to the witness some time ago about the late Ms Jackie Quin, that she was innocent non-aligned person, but I think the point the witness is making is that in fact the ANC claimed her membership.

JUDGE KHAMPEPE: But I think what you are saying, Mr Berger, is that that cannot be true if one takes into account the preceding paragraph that you have just read to Mr van der Merwe.

MR BERGER: Indeed, Judge.

GEN VAN DER MERWE: Chairperson, the list follows after that paragraph, so I thought that the list would be the final viewpoint of the ANC.

MR BERGER: Is that a serious answer, Mr van der Merwe?

GEN VAN DER MERWE: Otherwise that list is nonsensical. Why would they include her name in the list if she was not a member of the ANC? "Ek aanvaar daardie lys is seker rondom dit uit hulle register gekry, terwyl die voorlegging bedoel was eintlik maar vir openbare mening."

MR BERGER: Isn't it obvious, Mr van der Merwe, that Jackie Quin was loved by the ANC, that she was married to an ANC member and that her death came about in the course of the struggle and that that is why the ANC have listed her in this document at page 93?

GEN VAN DER MERWE: Chairperson, whatever the consideration was, the fact remains that she was included in that list as a member of the ANC, so somewhere they had to rely on some authority for this list.

CHAIRPERSON: But what is the - I fail to understand, if any of the parties can tell me, what does her membership or otherwise got to do with the price of eggs? The fact of the matter is that she was not a target for this operation.

GEN VAN DER MERWE: That's correct.

MR BERGER: As you please, Chairperson.

MR VISSER: And Mr Chairman, would you allow me to say, just to place on record, we are more than an hour into the hearing today and we have heard nothing but irrelevance, irrelevant questions. We've heard questions about the guilt or innocence of de Wit, for three-quarters of an hour and now we're onto whether Ms Jackie Quin was or wasn't a member of the ANC. And as you've just pointed out, it's totally irrelevant to the hearing.

JUDGE KHAMPEPE: Mr Visser, I would beg to differ with you. I don't think what we have been presented with today has been completely irrelevant, I think we must allow Mr Berger an opportunity to conduct his cross-examination. We take it that you are all seasoned counsel and you will not be prone to wasting our time, knowing that we are a very short-lived Commission. So I don't think your remark is in good taste.

MR VISSER: Well I wasn't intending to make in bad taste, Chairperson, I was just recording a fact that - I bow to your ruling in the regard.

JUDGE KHAMPEPE: Proceed Mr Berger, in cross-examining Mr van der Merwe.

MR BERGER: Thank you, Judge.

Mr van der Merwe, let me refer you back to page 103 of your application, bundle 1. That paragraph which reads -

Then you go on to say -

... and we've dealt with that.

MR BERGER: And then you say -

"Fully aware". Who briefed Mr Coetzee?

GEN VAN DER MERWE: I did. I've already stated that after the incident I discussed the award of the medals with Gen Coetzee and also submitted all the facts pertaining to the matter to him.

MR BERGER: Is it not so that Mr Coetzee was fully aware of all the circumstances relating to this incident, because he was kept informed of all the circumstances relating to this incident right from the time it was planned, right through the operation until the time that the medals were awarded? Isn't that why he's "fully aware"?

GEN VAN DER MERWE: No, Chairperson, I have already explained repeatedly that Gen Coetzee was not available and what the circumstances were. It is not like that at all.

MR BERGER: And then you go on to say -

Do you still stand by that?

GEN VAN DER MERWE: Correct.

MR BERGER: So that the Generals Staff discussed a matter of which they had no knowledge?

GEN VAN DER MERWE: Correct.

MR BERGER: Okay. And the medals were subsequently awarded by the Minister of Police, Minister Louis le Grange.

GEN VAN DER MERWE: Correct.

MR BERGER: So he too would have been fully informed of all these circumstances surrounding the incident?

GEN VAN DER MERWE: That is correct.

MR BERGER: Again after the fact, not before.

GEN VAN DER MERWE: Correct.

MR BERGER: Yes. I'd like to take you to a document which is contained in Volume 3, at page 60. Do you have it?

GEN VAN DER MERWE: Yes, I have it.

MR BERGER: Now this is a document which is headed -

Now you've seen this document before.

GEN VAN DER MERWE: Yes, I have.

MR BERGER: And we know from the Minute that this document was approved by the State Security Council, with minor amendments which don't really concern us.

GEN VAN DER MERWE: Correct.

MR BERGER: At the meeting of the State Security Council on the 21st of October 1985.

GEN VAN DER MERWE: Correct.

MR BERGER: And for what will become relevant later, the Chairperson of the State Security Council was the President, PW Botha.

GEN VAN DER MERWE: Correct.

MR BERGER: And incidentally, present at that meeting - you'll see from page 66 of the same bundle, were a number of people including Mr Coetzee, the then Commissioner of Police and Dr Barnard, the Director General of National Intelligence.

GEN VAN DER MERWE: Correct.

MR BERGER: Now certain guidelines are set out in this document in relation to cross-border operations. Now I'd like to refer you to first of all, paragraph 3 of that document, at page 60. Do you see -

GEN VAN DER MERWE: I see that.

MR BERGER: The following appears -

And I'm reading from the second sentence of that paragraph.

And if my memory serves me correctly that was amended to read -

I see Mr Wagener is flinching, but I'll check it. It is right.

GEN VAN DER MERWE: That is correct.

MR BERGER:

GEN VAN DER MERWE: That is correct.

MR BERGER: My understanding of this is that in all cases where the army was going to cross the border and carry out operations, there had to be a coordination between the various departments and in particular the Department of Foreign Affairs, so that South Africa's foreign image could be properly handled.

GEN VAN DER MERWE: That is correct.

MR BERGER: Then if you'll turn to paragraph 14, which is dealt with at page 64, there Lesotho is dealt with and the following is recorded -

GEN VAN DER MERWE: That is correct.

MR BERGER: That the Lesotho government is not being cooperative.

GEN VAN DER MERWE: Not at all.

MR BERGER:

And these are the guidelines -

There are two types, the one is -

And the second type of operation which had to be cleared by the Chairperson, are -

Then there's a second category and it talked about -

And there are three categories there, there's -

Now it's clear that the State Security Council was concerned with cross-border operations and said that when the army crosses the border, these are the guidelines that need to be adhered to. There's got to be permission given by either PW Botha or Magnus Malan, in consultation if necessary, with PW Botha. You say - and I'm sorry it was such a long introduction to my question, but you say that no such guidelines existed for the South African Police.

GEN VAN DER MERWE: Correct.

MR BERGER: How can that possibly be if you believed, and when I say you I mean you plural, believed that you were living in a "Regstaat", a State governed by rules.

GEN VAN DER MERWE: Chairperson, I have already explained. Insofar as it concerned covert actions there could never have been any guidelines according to which the government would have been committed, because that would have destroyed the entire objective of the covert operation.

MR BERGER: But here we have the army ...(intervention)

GEN VAN DER MERWE: But the army is not covert operations, it can never as it appears here, have any bearing on covert operations.

MR BERGER: Hang on, hang on a moment please, Mr van der Merwe. We're talking about members of the SADF ...

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: ... which included for example, members of the CCB, am I right?

GEN VAN DER MERWE: Correct.

MR BERGER: Who were involved in covert operations, am I right?

GEN VAN DER MERWE: Correct.

MR BERGER: Or there's a special category here, Special Operations. Special Operations included covert operations, did they not?

GEN VAN DER MERWE: Correct, Chairperson, but that would depend upon the nature of the covert operation.

MR BERGER: Well exactly. So here we have a set of guidelines which control the army when they conduct covert and overt operations across the border, not so?

GEN VAN DER MERWE: Correct, Chairperson.

CHAIRPERSON: Were there any overt cross-border operations?

GEN VAN DER MERWE: Yes, Chairperson. There were various in Botswana and other places.

CHAIRPERSON: I'm talking about '85/'86.

MR BERGER: Yes, Chairperson, there were, in Gaberone for example, in 1985.

What I'm putting to you is remarkable, if the State - there are two possible scenarios, and you can tell me which one applied, either the South African police were not allowed to participate in cross-border operations, or if they were, then there were guideline just as there were guidelines to regulate the control, or to regulate members of the Defence Force.

GEN VAN DER MERWE: Chairperson, I would like to re-

emphasise that those guidelines could not have been of application to covert operations, especially operations of the nature that we were involved with. I would like to put it to you that Mr Pik Botha will give evidence and I will ask for one singular example where the SSC had approved a covert operation by the army of this nature. I would like one example, because I am not aware of one such example. There may be, and if there is I would like to know whether or not there was such an incident where a covert cross-border operation during which persons were killed, was previously approved by the SSC.

MR BERGER: Mr van der Merwe, so are you saying you are going to accept Mr Pik Botha's say-so on whatever he says when he comes to this Commission?

GEN VAN DER MERWE: He will have to bring us the Minutes, so that we can consult these documents.

MR BERGER: No, no, you will accept his say-so.

GEN VAN DER MERWE: No, no, not at all, whatever he may say is the last that I would believe. He is the last person that I would believe, but I want is for him to bring us the Minutes of the SSC meeting during which they would have approved such an action.

MR BERGER: And you expect that ...(intervention)

CHAIRPERSON: Hopefully those Minutes will be accurate.

GEN VAN DER MERWE: Well I hope so too, Chairperson.

MR BERGER: And based on your evidence ...(intervention)

CHAIRPERSON: ...(inaudible)

INTERPRETER: The speaker's microphone is not on.

GEN VAN DER MERWE: Unfortunately, Chairperson.

MR BERGER: Well exactly, that's the point, Mr van der Merwe. You say that it should be in a State Security Council Minute, when you know for a fact that covert operations were not recorded.

GEN VAN DER MERWE: Well that is why I have said, Chairperson, if you have fixed such a procedure and if it has not been recorded anywhere and if the government is not connected to it, it would have been a farce. What would the sense have been, nobody would have been able to fall back on it. That would have meant that if it ever was discussed, the government would have denied it and the persons who were involved in it would simply have had to deal with the matter.

MR BERGER: You see Mr van der Merwe, what I'm suggesting to you, here is a document which is marked -

It couldn't have been more secret, am I right?

GEN VAN DER MERWE: That is correct.

MR BERGER: And within that little cabal, the State Security Council developed rules and regulations so that they could deal with the situation if there was a cross-border operation, so that they would be able to have a plausible reaction, they would know about it beforehand, so that they could then react appropriately after the fact. That's why these rules were developed for the army. And what I'm suggesting to you is, how can it be possible that there were no rules developed for the police, unless of course the police were not authorised to go across the border.

GEN VAN DER MERWE: No, except possibly because the Defence Force acted on a much larger scale than the police with regard to this, also because the police had a specific task and to a certain extent certain capacities which were set down by the Police Act.

MR BERGER: But you were acting outside the Police Act when you authorised this raid, were you not?

GEN VAN DER MERWE: Yes, but nonetheless with regard to my express or implied authorisation. I still maintained the basic principle ...(intervention)

CHAIRPERSON: ...(inaudible)

INTERPRETER: The speaker's microphone is not on.

CHAIRPERSON: With regard to the Police Act, where would that capacity have come from?

GEN VAN DER MERWE: It would have been inferred. Under the particular circumstances of that time we had to observe of our task of the preservation of internal security and the protection of human life within circumstances pertaining to a war situation, which complicated the execution of the Act.

CHAIRPERSON: Mr Berger, have you got much more longer to go?

MR BERGER: I have a fair amount, but the end is in sight. Perhaps we should take the tea adjournment now.

CHAIRPERSON: I'd just like to remind you, you promised us yesterday that quarter past eleven would be your last question.

MR BERGER: I said if we started at half past nine.

CHAIRPERSON: I assume it was a.m. Let's break for tea.

JOHAN VELDE VAN DER MERWE: (s.u.o.)

MR BERGER: Thank you, Judge.

CHAIRPERSON: You took an extra couple of minutes, you've passed your quarter past eleven in any case.

CROSS-EXAMINATION BY MR BERGER: (Cont)

Well we're into injury time now.

Mr van der Merwe, just before the tea adjournment I was putting to you about guidelines and authority and your version has been that there were no guidelines.

GEN VAN DER MERWE: No, Chairperson, definitely not, not for covert operations.

MR BERGER: And if there were any guidelines you would have known about them.

GEN VAN DER MERWE: Yes.

MR BERGER: And as far as overt operations were concerned, well those were governed by the Police Act.

GEN VAN DER MERWE: By the law yes, Chairperson, the Police Act and other legislation that existed.

MR BERGER: Yes.

CHAIRPERSON: Are you able to tell us, Mr van der Merwe, why is it that the police were then exempted from having guidelines? In either case.

GEN VAN DER MERWE: Chairperson, because I still stand by it that these guidelines could not have been applicable to covert operations, it was only meant for overt action. I find it difficult to comprehend and I would like them to come and explain that the SSC had decided that a covert action had to be launched outside the law and that they would lay down the guidelines for it.

ADV BOSMAN: In other words you are saying that the Defence Force also did not have any guidelines for covert operations.

GEN VAN DER MERWE: I would not say that they did not have, but I cannot understand how there could have been any guidelines for covert actions where the intention was apparently that these persons would act outside the boundaries of the law. What would be the sense of it? The person who thought up this has to explain what the sense of it is.

CHAIRPERSON: But Mr van der Merwe, somewhere there is a Minute that I had seen, I cannot recall where, that after this incident, guidelines were laid down.

GEN VAN DER MERWE: For covert operations, Chairperson?

CHAIRPERSON: Well that is what I'd like to determine. GEN VAN DER MERWE: If that is so, Chairperson, then I would like the Minister of Justice to come and explain how he could have been involved in drawing up guidelines for covert actions which were apparently intended to be illegal.

CHAIRPERSON: The guidelines were either in the Minutes of the 3rd of December or the following one. I think it's the following one, the 20th December. Where do we get that?

MR VISSER: Page 109.

CHAIRPERSON: Of?

MR VISSER: Volume 2.

CHAIRPERSON: It doesn't state whether it is covert or overt.

GEN VAN DER MERWE: That is why I emphasise, Chairperson, I cannot think how it can be expected that the SSC would have laid down guidelines for covert operations where the intention was apparently to act outside the boundaries of the law. That is not reconcilable with any reasonable action.

CHAIRPERSON: Please continue.

MR BERGER: It's not as nonsensical as you would make out, Mr van der Merwe, the clear reason for guidelines as I've put to you before, is to ensure that those in power, those at the top, are able to react to situations after they occur, otherwise you have the situation where you have the various arms of the Security Forces running around having carte blanche and who knows what results that could have for the country internationally.

GEN VAN DER MERWE: Chairperson, if that is true, then once again I would like to make the statement that I would like see where it was ever applied in practise. I cannot imagine where this was viable in practise.

MR BERGER: And in any event, Mr van der Merwe, your evidence before - in your evidence before the tea break, you conceded that these guidelines could cover covert operations of ...(intervention)

GEN VAN DER MERWE: No, I strongly emphasised that it could not have involved it.

MR BERGER: No, no, no, no, you conceded ...(intervention)

JUDGE KHAMPEPE: That is not so, Mr Berger, I don't have a note where he conceded.

MR BERGER: Judge, my recollection is that he did. I put it ...(intervention)

GEN VAN DER MERWE: Chairperson, if that is so, then I am terribly sorry, but I have always maintained the viewpoint that covert operations did not have guidelines.

CHAIRPERSON: Mr Berger, throughout his testimony I've also had the impression that he did not make that concession at any time. Would you like to check up?

MR BERGER: Chairperson, I gave an example of members of the CCB who are also members of the SADF.

CHAIRPERSON: ...(indistinct - no microphone) check it up on the record. Is it a point that's going to be ...(intervention)

MR BERGER: No, it's either there or it's not and we can leave it for the time being.

GEN VAN DER MERWE: No, Chairperson, I shall react to that. You have to recall that even in the event of the CCB, it was possible that with regard to the Defence Act, that certain of their covert operations could have taken place within the boundaries of the law, but I refer to covert operations outside the boundaries of the law. That could not be regulated whatsoever.

MR BERGER: So you are saying covert operations are covered as long as they are within the parameters of the law.

GEN VAN DER MERWE: Yes, Chairperson.

MR BERGER: Covert operations that are beyond the parameters of the law, there are no guidelines for them at all.

GEN VAN DER MERWE: No, with regard to covert operations within the ambit of the law there's legislature that regulates it.

CHAIRPERSON: That would border on overt, isn't it? If it's done according to the law.

GEN VAN DER MERWE: No, Chairperson, may I explain to you Chairperson. In the Security Branch we had several secret projects which for all practical purposes could be regarded as covert operations, but these were approved by the Minister, in the light of the collection of certain information and other intelligence and if it is regarded against that background, that it be seen against - as covert background, that could be. But I refer to covert operations where the intention was that it would take place outside the parameters of the law. There could not have been guidelines for that, if there was, then it was nonsensical.

MR BERGER: Well let's take that then. So ...(intervention)

CHAIRPERSON: The letter that was sent by Foreign Affairs to Lesotho, with regard to this problem, you had knowledge of this?

GEN VAN DER MERWE: Yes, Chairperson.

CHAIRPERSON: That was according to the law?

GEN VAN DER MERWE: That's correct, Chairperson.

CHAIRPERSON: That was overt.

GEN VAN DER MERWE: Yes, Chairperson.

CHAIRPERSON: And the action of the 19th/20th December, I understood according to your evidence - and you must please correct me if I am mistaken, was done after there were no reaction to that letter.

GEN VAN DER MERWE: Correct, Chairperson.

CHAIRPERSON: And the action of the 19th/20th December, was it overt or covert?

GEN VAN DER MERWE: It was covert, Chairperson.

CHAIRPERSON: Please explain, if this was attached to this overt letter, it was a procedure that was followed, how is this overt operation mixed in here?

GEN VAN DER MERWE: No, Chairperson, you have to keep in mind that we requested that that letter be sent at a time when this operation was not even planned and thereafter we received certain information ...(intervention)

CHAIRPERSON: It must have considered because in the letter it says "If you don't do anything, we will to the best of our judgement, act."

GEN VAN DER MERWE: Correct, Chairperson, it was foreseen that force would be used, but there was no plan at that stage, the planning only came about, and the decision that we would act was taken after we received certain information. And as I have already explained ...(intervention)

CHAIRPERSON: No, I understand that but why was the whole thing not done overtly, because you had already gone through the procedures, you had warned them.

GEN VAN DER MERWE: Chairperson, because I have already explained, because at that stage without doubt, if we had acted overtly it would have had dire consequences for the government.

CHAIRPERSON: I understand that, but with regard to you, there was the letter, this whole action was overt, why did you not go to the Minister and say "Listen there is no reaction, we shall act now, overtly"? Or covert, sorry.

GEN VAN DER MERWE: Chairperson, because I have already explained, it would have made no difference whether the Minister had authorised a covert operation. He did not have the legal authority to do such a thing, he would have only compromised the Minister, if I under those circumstances had consulted with higher authority than the Minister himself. As I have already explained, I had the capacity where I - there would have been devolved authority that the Minister did not have.

CHAIRPERSON: But you would have told him what information you had and that is why you made this proposal.

GEN VAN DER MERWE: Chairperson, the Minister cannot authorise any covert operation, he could at best have knowledge of it because he didn't have the capacity.

CHAIRPERSON: But he could have told you "You can't do it".

GEN VAN DER MERWE: He could have done it, but ...(intervention)

CHAIRPERSON: And you would have had to oblige.

GEN VAN DER MERWE: Yes, but that would not have meant that if he had agreed that he had given any legal status to that action.

CHAIRPERSON: Yes, but the point is he could have said that you cannot continue with it.

GEN VAN DER MERWE: But Chairperson, at that stage I was of the opinion that the circumstances were such that the Minister would have no objection.

CHAIRPERSON: Yes, Mr Berger.

MR BERGER: Mr van der Merwe, so your reading of the heading Special Operations in this document, you say that that doesn't include covert operations.

GEN VAN DER MERWE: I said, Chairperson, bear in mind this was not before the time, I refer to it as we are analysing it here now, and I am saying that it could not have included covert operations with the intention of being unlawful.

MR BERGER: In other words, operations which couldn't be - which shouldn't be traceable back to the South African government?

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: Well have a look at page 62 of bundle 3. Now this falls under Angola. Unfortunately you'll see that page 62 and 61 should have been photocopied differently, 61 actually comes after 62. Oh, no, no, I'm wrong, sorry. Under the heading Angola, you'll see there are certain guidelines and you'll see again the pattern from page 61, you'll see the pattern of the guidelines. Operations which -

And then you'll see ...(intervention)

CHAIRPERSON: Where are you reading from?

MR BERGER: 61, paragraph 6(a). There are certain guidelines, but the pattern you'll see it's similar to the pattern in relation to Lesotho. It first deals with those operations which have to be cleared by the Chairperson of the State Security Council, then under (b) it deals with those operations which much be cleared by the Minister of Defence and where necessary, in consultation with the Chairperson of the State Security Council. And here we have Small-scale offensive operations. This time large-scale and small-scale were separated, other than in the case of Lesotho, but then we have -

And then over the page you have -

And under Special Operations, the following is noted -

And then Special Operations are divided into two categories -

And under covert operations it says -

So here you have a document dealing with covert operations - guidelines which must govern covert operations, which cannot be traceable back to the government, which are the very operations that you said it would be senseless to include in formal guidelines.

MR VISSER: Mr Chairman, that's not what the witness said, with great respect. As I understood his evidence he said those covert operations which fall outside the boundaries of the law. My learned friend is leaving that qualification away from his question and he is suggesting that the witness said something entirely different from what he has said.

MR BERGER: Chairperson, before I asked the question I had this page open in front of me and I used the words that are recorded under the heading - Covert Operations, where it says -

And I asked Mr van der Merwe "Are you saying that the covert operations which wouldn't be included in the guidelines are those which could not or should not be traceable back to the South African government and he said "Yes".

GEN VAN DER MERWE: But within the ambit that I have repeatedly stated Chairperson, which legally was unlawful. And may I just say, Chairperson, we were involved in a full-scale war in Angola and the circumstances and rules that controlled there were entirely different. The army was there. And all operations there took place in a different light with regard to the circumstances that reigned at that stage in relation to actions against other neighbouring States. One cannot equate actions in Angola to any action in other neighbouring States.

MR BERGER: I'm not comparing Angola to Lesotho, you missed my point, Mr van der Merwe. The point is that this document speaks about special operations in a number of instances and the reason that it doesn't go into detail after paragraph 6, about what special operations include because special operations are defined in paragraph 6, that's my point. I'm not comparing the situation in Angola with the situation in Lesotho.

GEN VAN DER MERWE: As far as I understood this has regard to Angola.

CHAIRPERSON: What you say is the definition of certain aspects of that war differs from country to country?

GEN VAN DER MERWE: Definitely, Chairperson. What I meant by that is that actions that were applicable to Angola by the army and with regard to the rules that were laid down there, one cannot go and take it to the other neighbouring States because they were there in Angola, they had their tanks and they had their troops there in Angola. They fought in Angola itself.

CHAIRPERSON: So secret operations where actions could not be traced back to the RSA in this regard, is only applicable to Angola.

GEN VAN DER MERWE: That's how I understood it, Chairperson, that's how I understood it.

CHAIRPERSON: And it would be something different for Lesotho?

GEN VAN DER MERWE: With regard to Lesotho, as I have said repeatedly, one could never launch similar operations.

CHAIRPERSON: But would you agree that these are guidelines applicable to Angola?

GEN VAN DER MERWE: Definitely, Chairperson.

CHAIRPERSON: Please explain your earlier answer to me where you said that you cannot understand how there can be guidelines for any covert operation.

GEN VAN DER MERWE: That takes place outside the ambit of the law, Chairperson, where the intention is apparently that the government publicly would distance itself from it and deny it. Nowhere with regard to that in any way would it carry any weight or be of any concern.

CHAIRPERSON: But in Angola they deemed it necessary to have

guidelines.

GEN VAN DER MERWE: But in Angola there was no danger that the RSA was to be embarrassed there because they were there in a full-scale war where the rules of conventional war were applicable.

CHAIRPERSON: But we refer to page 62(iv) - number 1 under that.

GEN VAN DER MERWE: Correct, Chairperson. Once again, where one is embroiled in a conventional war in a country, other principles are applicable as opposed to the common actions where normal law is applicable and the usual requirements accompanying them.

ADV BOSMAN: Mr van der Merwe, I am confused. If you look at paragraph 1, Covert Operations, according to your interpretation they refer to covert operations within the ambit within the law and covert operations outside the ambit of the law.

GEN VAN DER MERWE: I don't know, Chairperson, I don't know what the Defence Act was for. The army would have to come here and tell us about it. I didn't have this beforehand and in practice it was not made available to us, so I am just commenting on it.

ADV BOSMAN: I understand that, but I am just trying to find out your comment. You made the qualification beforehand that for covert operation within the law, it would have been taken up here, but now I am asking you what your comment is here. Or can you not comment?

GEN VAN DER MERWE: I cannot comment, I don't know what capacities were given to the Defence Force.

MR BERGER: Mr van der Merwe, it doesn't help to say that the situation was different in Angola from Lesotho, because that's not the point of my question, and perhaps if you would just listen to the point of my question we can proceed a bit faster. The point of my question is, here we have a situation - let's take Angola, where the South African government is admittedly present and yet when it comes to special operations, there are certain operations which should not be traceable back to the South African government, which need to be cleared by the Minister of Defence sometimes or where necessary, in consultation with the State President. That's what it says here, am I right?

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: If South Africa was in a war situation in Angola as it was, if it as admittedly there, if the covert operation was legal, was within the parameters of the law, there would be no reason why that couldn't be traced back to the South African government, if it was lawful.

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: So therefore, these covert operations which cannot be traced back to the South African government, must be covert operations which are beyond the parameters of the law. - must follow.

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: Now if that was what the State Security Council had in mind for Angola, how can you possibly say that when the phrase "Special Operations" is used in the same document in relation to Lesotho, that it doesn't include covert operations beyond the parameters of the law? How can you say that?

GEN VAN DER MERWE: Because it would not have been of any purpose, Chairperson.

MR BERGER: Alright. To come back to what you say was your authority, you had no guidelines, you consulted or you got the authorisation from nobody, the CIC meeting which you attended had no authority to give you authority, so your evidence must boil down to the fact that you had carte blanche to do whatever you felt justified in doing. Would that be fair?

GEN VAN DER MERWE: "Solank ek so kon aantoon, Voorsitter, dat ek as oogmerk en doelwit gehad het, die bewaring van binnelandse veiligheid en om lewe en eiendom to beskerm en dat daar 'n dreigende gevaar bestaan het wat dit rondom dit noodsaaklik gemaak het."

MR BERGER: You said "as ek dit kon aangetoon het".

GEN VAN DER MERWE: That's correct.

MR BERGER: In other words, if I could show it.

GEN VAN DER MERWE: That's correct.

MR BERGER: Or if I could prove it.

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: And what you're saying is that you didn't have to show it or prove it before you carried out the raid, you could just show it or prove it afterwards.

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: So you had carte blanche to do whatever you considered necessary without consulting anyone beforehand.

GEN VAN DER MERWE: Within those guidelines, yes, Chairperson.

CHAIRPERSON: ...(indistinct - no microphone)

GEN VAN DER MERWE: The guidelines that I - if my conduct at any point in time would have been disputed or some or other operation went wrong or whatever and that I could show that I had acted in the interests of the maintenance of internal security in order to protect lives and property. Just to explain this, you have to bear in mind that where one authorises an operation of this nature you might jeopardise your career, your life, everything if something goes wrong and some of your persons are killed or arrested on the other side, then one had to depend on the tacit protection of the government and in that regard one had to show that one's actions had met the requirements.

MR BERGER: And where were these guidelines set out?

GEN VAN DER MERWE: There were no such guidelines, Chairperson, I said the necessity of it. If I had acted in such a case, then I had to keep in mind what the consequences would be if something went wrong and I then in such an instance had to please explain why I had acted in this manner.

MR BERGER: Mr van der Merwe, I want to put it to you that you can't have it both ways. You can't claim to have been living in a "Regstaat" and at the same time say that there were no guidelines controlling your behaviour, that there was - that you had carte blanche.

GEN VAN DER MERWE: But Chairperson, it was obvious that circumstances that reigned then, it was expected of us to act under circumstances where the law could not reach. There was never any prescriptions with regard to actions of this nature. And the only test with regard to this would be if something went wrong and it becomes public, then one had to explain why one acted in this manner.

MR BERGER: You're claiming to have had implied authority, isn't that correct?

GEN VAN DER MERWE: Correct, Chairperson, entirely correct.

MR BERGER: The last refuge of anyone seeking authority is implied authority, isn't it?

GEN VAN DER MERWE: In our case where there was a war or an undeclared war, Chairperson, where one had to deal every day with circumstances that I think has been emphasised repeatedly, it was necessary.

MR BERGER: No, it wasn't, you could have got the actual authority from consulting your seniors.

GEN VAN DER MERWE: No, I've already explained why I could not do that, Chairperson.

CHAIRPERSON: With regard to de Wit, you did not deem it necessary?

GEN VAN DER MERWE: Correct, Chairperson.

CHAIRPERSON: What about Mr Barnard?

GEN VAN DER MERWE: But Chairperson, it has been my evidence and my problem, I have said that according to all indications I would have consulted with members of CIC, possibly Mr Barnard or with the other members, or whoever was in his place. And that is where my problem is, I cannot recall it. It is probably denied that I had consulted with them, but to me at this stage it is one factor which I struggle with and that is, I would have consulted with them.

JUDGE KHAMPEPE: But within the same tone, Mr van der Merwe, the CIC did not have the necessary authority to authorise such an action.

GEN VAN DER MERWE: No, that is correct, Chairperson, but if one consulted as I have said, one could depend upon it that the information would be given through and if anything went wrong or if things had developed, then the SSC would have knowledge of it. But you are entirely correct, there was no-one that could have authorised such an operation in the circumstances, except for myself.

JUDGE KHAMPEPE: Yes.

MR BERGER: What I want to put to you, Mr Meyer - Mr van der Merwe, I beg your pardon, is either you had no authority, for the reasons that I've put to you, you couldn't get authority from the CIC, so therefore you couldn't get any authority from the members of the CIC, or if you had authority, you must have got that authority from your seniors, either the Commissioner of Police or the Minister of Defence or the President - the Minister of Law and Order, or the President. In which case, you haven't made full disclosure.

GEN VAN DER MERWE: Chairperson, I have already explained that in my capacity I deduced that even if those persons had given authority, they did not have any legal status to do that and from their viewpoint with regards to the requirements of the law, there was no authorisation.

MR BERGER: No, no, quite clearly we're talking about conduct beyond the law. You are talking about conduct beyond the law, aren't you?

GEN VAN DER MERWE: Correct, Chairperson, and that is why I say no-one else could have authorised it.

CHAIRPERSON: Except, Mr van der Merwe, there could have been many people to tell you not to go ahead.

GEN VAN DER MERWE: Yes, Chairperson, that would have only been if the circumstances were of such a nature that one had doubts whether one should act or not.

MR BERGER: But everyone who applies for amnesty is applying in respect of unlawful conduct.

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: And it's in relation to that unlawful conduct that you must ...(intervention)

CHAIRPERSON: Correction, Mr Berger, some apply for matters that were legal. They still apply and they don't get it.

MR BERGER: Point taken, Chairperson.

But if you're entitled to amnesty, let me put it that way, it has to be in respect of unlawful conduct.

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: But at the same time that unlawful conduct must have been approved by someone.

MR VISSER: Mr Chairman, where in the Act is that requirement ever made? With great - my learned friend is putting that for unlawful conduct to be able to obtain amnesty, it must have been authorised by someone, and I'm challenging him to tell you where that appears in the Act.

CHAIRPERSON: ...(indistinct - no microphone)

MR VISSER: In any event let him put the question, Mr Chairman, this is really argument. Let him put the question if he wishes.

MR BERGER: Chairperson, Section 20(2)(b) of the Act relates to -

So the Act requires you to have had, or an applicant, to have had authority.

CHAIRPERSON: I don't understand ...(indistinct - no microphone). It means then ...(indistinct - no microphone) who had ultimate authority were to make application for amnesty for whatever offence, he would be debarred from making the application because he would not have been able to get authority from elsewhere.

MR BERGER: No, he got his authority from somewhere.

CHAIRPERSON: ...(indistinct - no microphone) State President. He's the ultimate decision maker. If he had authorised it - if the State President of the time had authorised this escapade and was an applicant in this matter, by your argument he would be disempowered from obtaining amnesty because he would not be in a practical position to obtain permission elsewhere because he's the ultimate authority.

MR BERGER: No, Chairperson ...(intervention)

CHAIRPERSON: Are you arguing that he would be excluded by virtue of this Section?

MR BERGER: No, Chairperson, because he would be the Commander in Chief of the armed forces, he would be the armed forces personified. Now if we go further down the ladder ...(intervention)

CHAIRPERSON: ...(indistinct - no microphone) with him? If you are saying that every applicant in the employ of the State, in order to obtain amnesty, must necessarily have committed an act as a result of omission or an order or some authority, failing which he can't be granted amnesty, then you are then saying that a person in the position of the State President of the time, who may be an applicant, is precluded from obtaining amnesty because he would not have got authority from any person.

MR BERGER: No, Chairperson, the Section says that a person who is entitled to apply for amnesty is one who was an employee of the State and who acted in the course and scope of his or her duties and within the scope of his or her express or implied authority. So now if there was no authority, then an applicant for amnesty cannot qualify under paragraph 20(2)(b). If one looks at the application form for amnesty, the application form says -

That's paragraph 11(a) and 11(b).

Well that would probably cover the State President.

JUDGE KHAMPEPE: Your argument would be it wouldn't cover him because he falls under the category of employee of the State, wouldn't that be your argument?

MR BERGER: He falls under (b).

JUDGE KHAMPEPE: But what is the point that you are trying to make, Mr Berger, what is it that you are trying to get from Mr van der Merwe?

MR BERGER: I'm putting to Mr van der Merwe that if he acted on his own, as he claims to have acted, then he lacked the authority to give the order.

ADV BOSMAN: But hasn't he claimed to have had implied authority?

JUDGE KHAMPEPE: Yes. Hasn't that been covered quite extensively by your cross-examination with regard to what he has already alleged to have been an implied authority on his part?

MR BERGER: It has been covered, but I'm putting it so that I can argue it.

JUDGE KHAMPEPE: But don't you think you've already covered it appropriately?

MR BERGER: As you please, Chairperson.

CHAIRPERSON: Are you going to argue at the end of the day even if he honestly believed he had implied authority, that that doesn't matter, he didn't have authority?

MR BERGER: His honest belief - my learned friend, Mr Visser, kept saying "Look at (f), look at (f)", his honest belief is irrelevant, it's whether his belief is reasonable.

JUDGE KHAMPEPE: I think Mr Visser is quite aware of that, he can anticipate your argument.

CHAIRPERSON: ...(inaudible - no microphone) that the witness is equipped to give a proper answer to that question? You've virtually asked him whether he's entitled to amnesty. I think it's the Panel that's entitled to make that decision, that's competent to answer that question, isn't it?

MR BERGER: Chairperson, I'm not asking Mr van der Merwe whether he thinks he's entitled, he clearly does think he's entitled, I'm putting to Mr van der Merwe the basis upon which I'm going to argue that he's not entitle to amnesty. I've always understood that it was my duty to put it to a witness, but ...

CHAIRPERSON: No, I understand your sentiments, I'm just concerned as to whether he's competent to answer that question.

MR BERGER: Well he needn't answer the question.

Mr van der Merwe, is it correct that despite the fact that after you had discovered that not only your targets but that other unintended targets had been killed, you still were of the view that the members responsible should be awarded medals for bravery?

GEN VAN DER MERWE: That is correct, Chairperson, it didn't change anything to the danger that they had been exposed to.

CHAIRPERSON: ...(indistinct) explain to me the rational behind that, where people, paid soldiers would do that for a living, embark on unlawful activities and they are rewarded.

GEN VAN DER MERWE: Chairperson, you must remember that these members have their entire futures at stake, they ...(intervention)

CHAIRPERSON: There are also many robbers who do so.

GEN VAN DER MERWE: Yes, they do it for personal gain, these men knew that there was no benefit for them in this action. In fact to tell the truth, if it wasn't for the fact that they were observing their tasks and the former government, they wouldn't have done it because they crossed the border to act there to protect the inhabitants of the country against a certain risk and they also ran the risk of being captured or encountering the Defence Force of Lesotho, ending up in jail there as happened in many other cases of Special Forces, some of these people are still in jail, and that they might spend the rest of their lives in captivity as a result of this. So these persons were prepared to weather all those risks under any conditions. You must remember that they didn't receive any extra remuneration or anything else, the only recognition they received was the medals and they didn't do it for any other reason than the fact that they regarded it as their task and that they were trying to protect the inhabitants of this country. Whether it can be seen as right or wrong today is immaterial, at that point it was the approach.

CHAIRPERSON: Are you sure that it was in the best interests of the inhabitants of this country?

GEN VAN DER MERWE: Chairperson, to protect people against a group who were entering the country with the objective of sowing murder and mayhem would definitely have been the objective.

CHAIRPERSON: I do not want to squabble over this, but you must take into consideration the circumstances of the time.

GEN VAN DER MERWE: But I am speaking from my own perspective as well, Chairperson. You must bear this in mind.

MR BERGER: Thank you, Chairperson.

Mr van der Merwe, did you prepare your statement, Exhibit A, in consultation or at the same time as Mr Schoon prepared his statement?

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: And that would account for the dovetailing between the two statements?

GEN VAN DER MERWE: Yes, that is correct.

MR BERGER: Thank you, I have no further questions.

CROSS-EXAMINATION BY MS PATEL: I'll be very brief, thank you, Honourable Chairperson.

Just perhaps in the eventuality that this does become important at a later stage, you've stated to us that you didn't report to Gen Coetzee prior to the incident because he was away on holiday, that's correct?

GEN VAN DER MERWE: Yes, that is correct.

MS PATEL: Can you deny though that he would have been in Pretoria on the 2nd of December 1985?

GEN VAN DER MERWE: No, Chairperson, because it was not a matter of importance, this took place subsequently.

MS PATEL: Alright. And then finally, did I hear you now in response to Mr Berger's - or is the Honourable Chairperson's question, that the operatives had operated strictly within the course and scope of their duties and that they hadn't received extra remuneration for these operations that they were involved in?

GEN VAN DER MERWE: No, Chairperson, as they experienced it or understood it. I said that if they didn't have everything ready for the execution of their task, in other words if with regard to the task, as they understood it, they were not prepared to sacrifice everything, they wouldn't have done it.

MS PATEL: Alright. You're not denying that they would have received, not necessarily in relation to this operation, but in relation to other work that they would have done, and I refer here especially to Vlakplaas operatives, that they received bonuses in respect of their duties carried out there generally?

GEN VAN DER MERWE: No, Chairperson, not for such an operation.

MS PATEL: Thank you, Honourable Chairperson.

RE-EXAMINATION BY MR VISSER: Thank you, Chairperson, I'll try to be brief.

It has once again been put to you and upon various occasions, that the only reason why you did not previously consult with Gen Coetzee was because he was not available. In your evidence you repeatedly added a further aspect and this was about the approval for covert actions. Now the question is simple, could Gen Coetzee or the Minister have approved this order of yours from within a legal perspective?

GEN VAN DER MERWE: No, and I have re-emphasised it repeatedly. With regard to implied authority I was the one in the best position to exercise judgement, no-one else had the legal capacity to do so.

MR VISSER: In other words, if you discussed it with Gen Coetzee and he said yes, very well, go ahead, would that have carried any legal power in Court for example?

GEN VAN DER MERWE: No.

MR VISSER: When did it become clear to you that you would have to act against Swaziland?

GEN VAN DER MERWE: Do you mean Lesotho?

MR VISSER: I beg your pardon, it's Lesotho.

GEN VAN DER MERWE: Chairperson, as I have already stated, it was after the first week in December when we received the information that there were persons in possession of AK47s and handgrenades, who were on the verge of entering the country.

MR VISSER: If I may then return to the orders which you gave to Brig Schoon. Would that order have led to you saying "Brigadier, tell your people that they had to go and eliminate A, B, C and D", or would the order have been any different?

GEN VAN DER MERWE: No, Chairperson, I would have given Brig Schoon a list of the targets because we possessed such a list, but the order would have been "Act against those targets". And I placed the qualification for them not to kill persons in the process who were not involved in the violence in the first place.

MR VISSER: That is precisely the point then, what would have happened if they had entered the house of the operatives and found Chris Hani there, for example?

GEN VAN DER MERWE: Well quite obviously they would have acted against him, Chairperson. I said that the exception was anyone who was not directly involved in the violence. They would have acted against any MK member that they encountered because we were involved against a war against the MK.

MR VISSER: What about people who collaborated with MK, would they also have been part of the target?

GEN VAN DER MERWE: The question once again arises, was this person involved in the violence. And furthermore, I've also stated clearly that if one is in such a situation there isn't really much opportunity surrounding that to hesitate, one would have to act swiftly because one's own life would be in jeopardy and there are many other intervening factors. They would not necessarily have acted against such persons but perhaps such persons may have been killed in the cross-fire.

MR VISSER: And then naturally you provided them with a list of names but before you could identify that list of names in terms of the persons, you would have to identify them.

MR BERGER: Chairperson, if my learned friend could rather ask the question than suggest the answer to the witness, it would help. Because the answer to that question is a simple yes.

MR VISSER: Would the operatives have known exactly how everyone of these persons looked?

GEN VAN DER MERWE: Chairperson, they would necessarily have attempted to make such arrangements, so that the person who fell into that category would in one or other manner be identified by them, but they would not necessarily have known how every single person looked. Even if they had known before the time, I don't think that during an action one would have been able to make such a clear distinction.

MR VISSER: That is another matter, the proposition put to you by the Chairperson, the even of a house full of children.

GEN VAN DER MERWE: Yes, that is correct.

MR VISSER: You were asked, with the exception of the current case, in which other cross-border operations you had extended authority or authorisation for the action. Can you recall this?

GEN VAN DER MERWE: Yes.

MR VISSER: And you were also asked for the dates thereof.

GEN VAN DER MERWE: That is correct, Chairperson.

MR VISSER: Chairperson, I have consulted the records and I present it to you. Gen van der Merwe, there was another case which took place in Swaziland which you referred to.

GEN VAN DER MERWE: That is correct.

MR VISSER: Do you now know the date thereof?

GEN VAN DER MERWE: Yes, that is correct, it was the 13th to the 14th of December 1986.

CHAIRPERSON: Where did you find this?

MR VISSER: I traced it, Chairperson, from the records which we have of the amnesty applications.

CHAIRPERSON: Mr Visser, did you tell him that?

MR VISSER: Pardon?

CHAIRPERSON: Did you tell him that ...(indistinct - no microphone)

MR VISSER: Yes, I've told him, Chairperson, that these - I've reminded him that these are applications for which he's applied for amnesty. This is before the Amnesty Committee, so it's just a question of record, Chairperson. I may as well read it to you, in fact let me do that. It concerned the attempted murder of Glory Sedibe, MK September. It was before your Committee Member, Justice Khampepe, it was heard by her. That was from on the 13th to the 14th of December 1986.

And then there was another one, Chairperson, which concerned - and I think Judge Khampepe was involved in that as well, concerning a kombi in which a bomb was placed, the McKenzie case, but in that case Gen Coetzee - that was a Special Ops operation by the South Defence Force, and the authority that Mr van der Merwe gave was, to his members of the Security Force, to assist in intelligence and information. But apart from those two, those are the other two. For whatever reason that question was asked, I did undertake to get that information and that is the information, Chairperson.

CHAIRPERSON: Mr Visser, is your communication with the witness while he was under cross-examination?

MR VISSER: I'm not certain what you're referring to, Chairperson.

CHAIRPERSON: ...(indistinct - no microphone) until a few minutes ago, and the question arose during cross-examination. Now you yourself tell me that you communicated that information to him, whether it was done with all the noble intentions or not is another matter, it concerns me that liberties such as that are taken to communicate with a witness who is still under oath and under cross-examination. ...(indistinct) influence the decision now, the fact of the matter is that it does give a reason or grounds for concern.

MR VISSER: Chairperson, you will recall, at the time when this question was asked there was a general discussion going on here between my attorney and myself, the witness was turning around and asking for - it's a question of what is on record, Chairperson. It's not a question of informing the witness what you believe he should answer to a question or anything like that, it's a question of record.

CHAIRPERSON: Mr Visser, I don't want to argue about it, I used the words deliberately, communication. Whether you gave him the information or not, I'm not questioning.

MR VISSER: I hear what you say, Chairperson.

Now much has been speculated regarding the evidence here under cross-examination on what would have happened if the CIC had for example said that you shouldn't take action, General van der Merwe. Your evidence is as far as you can recall, that you did indeed give the order.

GEN VAN DER MERWE: Yes, that is correct.

MR VISSER: Do you have any recollection that there were any objections to the action?

GEN VAN DER MERWE: No, not before or after the time, at no point.

MR VISSER: Now with regard to the question of innocent persons, the arrangements as it appears from the affidavit of Col de Kock and Mr McCaskell, were that Mr McCaskell was sent to his home to be certain that there were no non-ANC persons present there and indeed with regard to children, we also know from the evidence that the operatives did not incur any damage to the daughter Phoenix, is that correct?

GEN VAN DER MERWE: Yes, that is correct.

MR VISSER: Would that be in accordance with your spirit and intention in that they should attempt to prevent the injury or death of innocent persons?

GEN VAN DER MERWE: That is correct.

MR VISSER: Thank you, Mr Chairman, I have no further questions.

ADV BOSMAN: No questions, thank you, Chairperson.

JUDGE KHAMPEPE: I have only one question for you, Mr van der Merwe. This has been covered to some extent but there is still a mystery in my mind as to the authority or the lack thereof that the CIC possessed. It is your evidence that they didn't have the necessary authority to authorise any cross-border raid on Lesotho. Now what I want to know is, for what purpose then did it repeatedly discuss the presence of the ANC soldiers in Lesotho, if they did not intend to take any further action about such a situation?

GEN VAN DER MERWE: I beg your pardon, Chairperson, could you please repeat. Who would have discussed it, CIC?

JUDGE KHAMPEPE: Yes.

GEN VAN DER MERWE: CIC was purely an advisory body, in other words the most that the CIC could have done was to make a recommendation, whether it be via a certain department or in terms of the SSC, to convey it to another department in as far as it had to do with an action. CIC had no other capacity.

JUDGE KHAMPEPE: Now if Mr - I take it that Mr van Vuuren's report was discussed at the next meeting of the CIC.

GEN VAN DER MERWE: No, he would have discussed it at the SSC meeting of the 20th of December.

JUDGE KHAMPEPE: You recall that the CIC commissioned Mr van Vuuren to prepare a report?

GEN VAN DER MERWE: That is correct, Chairperson.

JUDGE KHAMPEPE: And to have it ready before the 16th of December.

GEN VAN DER MERWE: Correct, Chairperson.

JUDGE KHAMPEPE: Now that report would have been discussed where, at the SSC or at the CIC meeting?

GEN VAN DER MERWE: No, Chairperson, it would necessarily have been discussed at the SSC meeting of the 20th. As I have already stated it is possible that there may have been an exchange of ideas in the meantime among members of the CIC regarding the matter, and that is the aspect that I cannot recall and I have repeatedly stated that I do not know anything about it at this stage, but it would necessarily have been discussed at the 20th December meeting of the SSC.

JUDGE KHAMPEPE: Oh, thanks for clearing that. I thought the report was meant to be discussed at the next scheduled meeting of the CIC.

GEN VAN DER MERWE: Well Chairperson, to be honest, I would also have expected that the CIC or at least members of the CIC, would have discussed the report before it was tabled at the SSC meeting, but I cannot say whether or not this actually took place. That is why I maintain that it is still my viewpoint that before the SSC meeting of the 20th, there must have been consultation regarding the report, but I cannot recall it.

JUDGE KHAMPEPE: Thank you.

CHAIRPERSON: Mr van der Merwe, is there something medically wrong with your memory?

GEN VAN DER MERWE: No, Chairperson.

CHAIRPERSON: You see why I ask that question, this event, this incident was your first escapade of that nature.

GEN VAN DER MERWE: Correct.

CHAIRPERSON: And it has been said that in most cases people always remember for a long time anything that happened to them for the first time - I'm talking about scoring tries, Mr Wagener, or scoring hundreds or whatever - yet you tell us that you cannot remember very pertinent issues relating to decision making of this very important event in your career. That is why I ask you have you got any memory problems.

GEN VAN DER MERWE: No, Chairperson, but may I please explain it as such, although as you have put it that persons would expect this event to stand out quite clearly, you must recall that I spent a period of 20 years with the Security Branch and during that period of time one would have to do with violence and killing in its most gruesome forms on a daily basis. One would be narrowly involved in investigations, colleagues would pass away and in the process one's memory would fade. I can also assure you that it is not only I, but if you were to return and consult with some of my former colleagues, it is so that due to the numerous traumatic experiences that one was exposed to, it definitely had an effect on one's memory and this could be one of the most important reasons why this incident faded so rapidly. You must remember that at head office I operated from within an armchair position, I wasn't personally involved in ground level.

There was never kind of controversy connected to this. I myself was never confronted in any other way. And if one weighs this up against all the other incident in which one was involved, which led to very tense and stressful situations, one can understand that I am not trying to disguise any of the particulars. When this matter came to a head, this incident was very vague to me and this can be confirmed by others.

CHAIRPERSON: Now tell me, if these targets were in, let's say America, who would be nearby, and bearing in mind America's military might, would South Africa dare to do what it did? - in this instance.

GEN VAN DER MERWE: I beg your pardon, please repeat Chairperson.

CHAIRPERSON: If Lesotho had the might, the military might of, let's say America, would you still have proceeded with this escape?

GEN VAN DER MERWE: No, definitely not because the threat would have been too great.

CHAIRPERSON: In other words, South Africa had a bullying attitude towards Lesotho. They were really bullies because they knew Lesotho couldn't retaliate properly.

GEN VAN DER MERWE: Well Chairperson, in this case it wasn't my consideration.

CHAIRPERSON: No, I'll tell you why I'm asking you that questions, it relates to your line of authority, and I'm asking you and I would like you to answer the question, thinking now, ought you not to have obtained authority to do what you did?

GEN VAN DER MERWE: No, Chairperson, I'm still of the opinion that under the specific circumstances I was in the best position to evaluate as I did.

CHAIRPERSON: If you had sought permission or advice from your seniors, how would you have felt about a refusal and you being told not to proceed? Would you have agreed with it?

GEN VAN DER MERWE: Chairperson, it would of course have depended upon the nature of the objection, on what grounds that objection was launched, because you ...(intervention)

CHAIRPERSON: It doesn't matter. The Minister says no, you can't continue, how would you have felt about that?

GEN VAN DER MERWE: Well it would still have depended upon what the task and the duty at hand was, but if the Minister had refused, then it was reasonably obvious that it wouldn't continue.

CHAIRPERSON: Yes, I know, but how would you have felt about it? I know that you have to be obedient, but how would you have felt personally?

GEN VAN DER MERWE: I would have felt that in the light of the threat at hand, it would have been quite a ridiculous viewpoint.

CHAIRPERSON: Wouldn't you have agreed even though you would have been obedient?

GEN VAN DER MERWE: Yes, that is correct.

CHAIRPERSON: Now it would appear to me as if you testified that the sources who provided the information to you pertaining to these targets were credible.

GEN VAN DER MERWE: Yes, correct.

CHAIRPERSON: And you relied upon that?

GEN VAN DER MERWE: Yes, that is correct.

CHAIRPERSON: Am I correct when I say that it was possible that they were in a position to say where and when they would enter South Africa?

GEN VAN DER MERWE: No, that is the one aspect that I've also dealt with in my evidence, this is what the source could not tell us because he was afraid to fish too deeply because it could create suspicion. I did not have that information.

CHAIRPERSON: And where they would have entered?

GEN VAN DER MERWE: No, not that either. There were too many points of entry available to them, I was not familiar with that.

CHAIRPERSON: What prevented you from monitoring these persons for the following few days and to observe what they were up to and to follow them until they were in South Africa and then take action against them.

GEN VAN DER MERWE: In the past we had tried this numerous times, it simply wasn't practically viable. Firstly, one could not place a surveillance team in Lesotho, there wasn't even such a possibility. To surveil persons an a full-time basis involved such a complicated process and one would require such a large surveillance team for that, that in practical terms it would simply not have been viable in Lesotho. So that could never have been carried out in practice.

CHAIRPERSON: One final question. I didn't understand your answer very well under cross-examination, I think that you were asked whether you spoke to Mr Schoon during the preparation for this matter.

GEN VAN DER MERWE: Yes, that is correct.

CHAIRPERSON: Anybody else with the exception of your attorney and your advocate?

GEN VAN DER MERWE: I beg your pardon?

CHAIRPERSON: Was there anybody else with the exception of your attorney and your advocate?

GEN VAN DER MERWE: Whom I consulted with?

CHAIRPERSON: Yes, or spoke to regarding this case.

GEN VAN DER MERWE: I also spoke to members of the Security Branch at Ladybrand.

CHAIRPERSON: In preparation?

GEN VAN DER MERWE: Yes, in preparation.

CHAIRPERSON: Did you discuss with each other what you were going to place in your applications?

GEN VAN DER MERWE: No, it was about the fact that one's memory was vague and that one wanted to attempt to determine the facts correctly, so that one could present as true a picture as possible.

CHAIRPERSON: And this application of yours, is this the summary that you surmised and that you recalled and that Schoon told you and that you also determined from Ladybrand?

GEN VAN DER MERWE: Yes, and also from other sources. It is the result of that.

CHAIRPERSON: I see. I see that you have applied, or at least completed your application in December 1996.

GEN VAN DER MERWE: Yes, that is correct.

CHAIRPERSON: Is there any reason why it was not done earlier?

GEN VAN DER MERWE: It was precisely because this incident had been forgotten. I think that we had submitted earlier applications, but the reason is that there were certain of the incidents that we forgot about. That was just the course of circumstances, there was a certain process that preceded matters before we launched our applications and that delayed matters.

CHAIRPERSON: You see, with one of my other hearings - and I just want to ask you this and you do not have to answer this question if you do not wish to, it has been testified before me during another matter, that you were one of the security policemen who held a meeting in '95, approximately, during which it was decided not to apply.

GEN VAN DER MERWE: No, Chairperson, it is the opposite. I arranged a special meeting with the permission of the Commissioner at the police college, during which I told my members with regard to these cases and the South African Police, it would be foolish and that the only way that I can assist them is by means of the amnesty process and if they did not participate in the amnesty process they would run the risk of exposing themselves to prosecution and then I would not be able to assist them.

CHAIRPERSON: Thank you, you have been excused.

CHAIRPERSON: Mr Visser, is Mr Schoon going to be able to ...(indistinct - no microphone)

MR VISSER: Mr Chairperson, he's present, he's available to take the stand and he has no objection to taking the oath. He prefers to speak in Afrikaans.

--------------------------------------------------------------------------WILLEM FREDERICK SCHOON: (sworn states)

MR VISSER: I am informed, Chairperson, that a summary of his evidence has been handed to everybody, may I ask that that be marked Exhibit C. Thank you, Chairperson.

Mr Schoon, you also apply for amnesty with regard to the incident in Lesotho on the 19th/20th December 1985, upon which certain persons were killed, is that correct?

BRIG SCHOON: That is correct, Chairperson.

MR VISSER: Your application is found in bundle 1, pages 79 to 105.

BRIG SCHOON: That's correct, Chairperson.

MR VISSER: I'm told that I'm wrong. I'm sorry, Chairperson. 131 to 145.

Do you confirm to the best of your memory and knowledge that the content of your amnesty application is correct?

BRIG SCHOON: Yes, Chairperson.

MR VISSER: And you wish to elaborate on it and bring amendments where it is applicable, is that correct?

BRIG SCHOON: That is correct, Chairperson.

MR VISSER: You are familiar with the document which appears in Volume 3, pages 87 to 113, which is referred to as "The General Background to Amnesty Applications", is that correct?

BRIG SCHOON: Yes, Chairperson.

MR VISSER: Is there any part thereof that you are not able to confirm from your own knowledge and perspective?

BRIG SCHOON: No, Chairperson, I underwrite the document in totality.

MR VISSER: You have already previously given evidence before the Human Rights Violations Committee on the 16th of November 1996, in the so-called Armed Forces Hearing, as well as the so-called Armed Forces Hearing on the 9th October 1997 and in the amnesty hearings with regard to Cosatu House, Khotso House, Marius Schoon, Lemmyboy Mbale, certain four COSAS members, certain two unknown PAC members, two unknown ANC members, Griffiths Mxenge, Mohale and two others, Pule and Take Five, Pansu Smit, Mr Joe Pillay and the Zero Handgrenades, is that correct?

BRIG SCHOON: Yes, Chairperson.

MR VISSER: And that evidence of yours you incorporate in your evidence here today.

BRIG SCHOON: Yes, Chairperson.

MR VISSER: You have also made written submissions upon which you wish to draw the Committee's attention, and this was made in November of 1996, is that correct? It is not before us now, but you have made such a written submission.

BRIG SCHOON: Yes, Chairperson, I have.

MR VISSER: And you also rely on the amnesty judgments of the original Amnesty Committee with regard to the matter of Cronje and Others, as well as the judgments of the Amnesty Committee in the Khotso House case and the London Bomb case, is that so?

BRIG SCHOON: Yes, Chairperson.

MR VISSER: Your application entails murder or any other delict which with regard to the persons whom you mention there, Leon Lionel Meyer alias Joe Juluka, Jacqueline Quin, Joyce Modemeng, Nomkhosi Mini, Stanley Matthee, who is apparently the same person as Vivian Matthee, Glen Darries, Lulamile Dantile who is apparently the same person as the following person, Morris Seabelo, and Joseph Majose. Is that correct?

BRIG SCHOON: Yes, Chairperson.

MR VISSER: Or any other persons whom you are not aware of - you were not on the scene?

BRIG SCHOON: No, Chairperson.

MR VISSER: ... who may have been killed or injured in the incident, is that correct?

BRIG SCHOON: That's correct, Chairperson.

MR VISSER: And whose identities are unknown to you.

BRIG SCHOON: That's correct, Chairperson.

MR VISSER: Then there's also the matter of the transgression of the international borders and customs control legislation and also the offences with regard to the possession, use and transport of arms and ammunition which was used by the team, is that correct?

BRIG SCHOON: That is correct, Chairperson.

MR VISSER: As well as defeating the ends of justice, in that you omitted to disclose the true facts of the matter, or any other offence which might emanate from the evidence.

BRIG SCHOON: Yes, Chairperson.

MR VISSER: Would you please commence at page 3 and tell the Committee what your knowledge is with regard to this incident.

BRIG SCHOON:

...(intervention)

CHAIRPERSON: I beg your pardon to interrupt. Of this witness can we determine what he did, what was done and what he did furthermore with regard to this incident?

MR VISSER: May I assume then, Chairperson, that the rest of Exhibit C can be taken as read and we can just home in on the vital aspects?

CHAIRPERSON: Ja, he will be subjected to cross-examination on whatever is written. You can make any corrections now if there are any to be made. Shall we make this Exhibit C?

MR VISSER: Chairperson, there is reference at page 1, to Exhibit A and the same reference in paragraph 3 at page 3, that refers to the document, The General Background and normally it's Exhibit A in the hearings in which we appear, in this case it is bundle 3 as we have already stated, so it won't be Exhibit A, so that reference is now incorrect.

Brig Schoon, you have heard the evidence of Gen van der Merwe.

BRIG SCHOON: Yes, I have, Chairperson.

MR VISSER: Do you in principle agree with what he had testified here with regard to the threat that had existed in 1985 from Lesotho?

BRIG SCHOON: Yes, Chairperson.

MR VISSER: You wish to make a correction in your application. In your amnesty application you said that Lesotho in 1985 was the chief infiltration route of the ANC to the RSA, would you like to amend that statement?

BRIG SCHOON: Chairperson, I would like to amend it to such, so that it would read that it was one of the primary infiltration routes.

CHAIRPERSON: Where shall we find that, page?

BRIG SCHOON: 141.

MR VISSER: Volume 1, page 141 and it's the first sentence under 9(iv), where it is stated -

Brig Schoon says that's not entirely correct, it must be -

And in Exhibit C you furthermore deal with Lesotho, which you've already confirmed and then you continue to deal with insurgency and so forth - it has been indicated that it is not necessary to repeat all of this, paragraph 13 you explain where the names came from, that it had came from research which was done by yourself, Gen van der Merwe and the attorney and that is why those names are there. Would you please start from paragraph 14 and tell the Committee.

BRIG SCHOON:

ADV BOSMAN: Mr Schoon, may I ask something here? Can you get any closer to a day in December?

BRIG SCHOON: That was the closest I could get it, Chairperson, I cannot get any closer to an exact date.

ADV BOSMAN: Thank you. I'm sorry for the interruption.

MR VISSER: Will you please continue. You had received an instruction from Gen van der Merwe in 1985, what did you do then?

BRIG SCHOON: Paragraph 16 -

MR VISSER: Did you sit on the CIC?

BRIG SCHOON: No, Chairperson.

MR VISSER: Very well, proceed.

BRIG SCHOON:

MR VISSER: If I may interrupt you. In Volume 1 in your amnesty application you said that CIC approved this action.

BRIG SCHOON: That is how I understood it at that stage, Chairperson, because then I was not aware that they had no executive powers in giving any orders.

MR VISSER: Page 143, Chairperson.

And were you later informed as to exactly what their capacity was?

BRIG SCHOON: That is correct, Chairperson, I later heard and was informed.

MR VISSER: Very well.

BRIG SCHOON:

MR VISSER: Brigadier, there is also mention that the Special Forces of the South African Defence Force were busy planning the same or a similar operation, did you have any knowledge about that at that stage?

BRIG SCHOON: No, Chairperson, I did not have any knowledge of it.

MR VISSER: Can you comment on it?

BRIG SCHOON: No, I cannot comment on it.

MR VISSER: And then Col de Kock in his criminal trial had mentioned that members of the CCB were also there executing attacks on members in Lesotho, did you know anything of this?

BRIG SCHOON: Chairperson, no, to the best of my recollection the CCB did not exist at that stage and he probably here refers to Special Forces.

MR VISSER: Did you have any part in the award or the decision of the award of medals to the operatives?

BRIG SCHOON: Not directly, Chairperson, I only had the names which Col de Kock gave to me and I conveyed these names to Gen van der Merwe.

MR VISSER: Would you just then complete as from paragraph 26.

BRIG SCHOON:

MR VISSER: Just two aspects. In the amnesty application, a copy of the amnesty application which is bound in bundle 1 of your amnesty application, paragraphs 10(a) and 10(b) where you deal with the political background is omitted, it is not here.

BRIG SCHOON: No, Chairperson, it is not.

MR VISSER: Chairperson, it is identical to what Gen van der Merwe's is, if you wish that to be made available to you we can do that.

CHAIRPERSON: We'll let you know if that is required.

MR VISSER: Thank you, Chair.

Just a final aspect. What did you regard was the instruction that was required of you and the operatives to execute, what did this entail?

BRIG SCHOON: Chairperson, it entailed - or rather, may I start as follows. This was about certain information that was obtained from Ladybrand Security Branch via Bloemfontein, that a certain group of trained ANC cadres were ready to enter the country in order to sow murder and mayhem during the festive period of 1985.

MR VISSER: And your instruction?

BRIG SCHOON: The instruction was to prevent this action by acting against this group in a military manner.

MR VISSER: Would this mean that de Kock and his people could only act against them or what was the position?

BRIG SCHOON: Chairperson, as a rule the enemy at that stage whom we regarded as the enemy, we acted in totality against them, it did not matter whether one knew him or did not know him, but if one met with him he was your enemy and one did what was necessary to wipe him out.

MR VISSER: So by implication that would mean that whosoever the operatives ...(intervention)

MR BERGER: My learned friend is leading again.

MR VISSER: I have no further questions, Chairperson.

CHAIRPERSON: Are you sure, Mr Visser?

MR VISSER: I have no further questions for this witness.

CHAIRPERSON: We'll take the lunch adjournment please.

WILLEM FREDERICK SCHOON: (s.u.o.)

CROSS-EXAMINATION BY MR HATTINGH: Thank you, Mr Chairman.

Brig Schoon, before I deal with the incident itself I would just like to obtain some background information from you pertaining to the activities of Vlakplaas. Is it correct that from Vlakplaas teams consisting of so-called askaris and members of Vlakplaas, were sent to various regions to assist with the identification of freedom fighters or MK members and their arrests and so forth?

BRIG SCHOON: Yes, Chairperson.

MR HATTINGH: And is it also correct that Mr de Kock in his capacity as the Commander of C1 at Vlakplaas, by nature of the situation could not accompany all of these teams, but in terms of the need that arose he would visit these groups wherever they may have been, in order to determine what was going on?

BRIG SCHOON: That is correct.

MR HATTINGH: Is it also correct, Brigadier, that at the time of this incident and as it appears from the documents before us, the danger from within Lesotho was very great?

BRIG SCHOON: Yes, that is so.

MR HATTINGH: And that much attention was given from Vlakplaas ranks to this problem?

BRIG SCHOON: Yes, Chairperson, I've already testified to that I think.

MR HATTINGH: And by nature of the matter you would not recall it that well, after about 15 years, whether Mr de Kock's evidence will be that some of his members and some of the so-called askaris would spend months, sometimes two to three months before the incident, on the Lesotho border in order to obtain information regarding the ANC within Lesotho?

BRIG SCHOON: Yes, that is correct.

MR HATTINGH: And that he himself found himself in that area rather frequently, sometimes for protracted periods of time and sometimes for brief periods of time?

BRIG SCHOON: Yes, it is possible.

MR HATTINGH: But it was also expected of him as the Commander of Vlakplaas, to report to you from time to time as you were his Commander and that he was supposed to report to you about the activities of these units.

BRIG SCHOON: Yes.

MR HATTINGH: And it was then necessary for him to return sometimes from where he found himself, in order to inform you on what they were busy with.

BRIG SCHOON: Yes, that is correct.

MR HATTINGH: Can you recall whether he returned for such a visit from the Lesotho border, when you approached him and requested whether or not his unit possessed the capacity to act against ANC members in Lesotho, or can you not recall this?

BRIG SCHOON: Is this to do with this particular incident?

MR HATTINGH: Yes, it is his recollection that when you approached him and asked him to make a submission regarding their capacity to act against the ANC within Lesotho, that this was upon one of the occasions when he returned from Lesotho for one or other reason, although he cannot recall the precise reason for his return.

BRIG SCHOON: In all probability it is so, Chairperson, however I cannot recall it immediately, but I would not dispute it.

MR HATTINGH: Very well. And that - he cannot recall, but in all probability it was his custom to have at least one of his members with him at all times, primarily to drive for him at night because he had somewhat of a vision problem.

BRIG SCHOON: Yes, that is correct.

MR HATTINGH: And that he most probably had at least one of his members whom he brought with him for the purposes of his visit to head office.

BRIG SCHOON: Yes, Chairperson.

MR HATTINGH: And that he was approached by you and requested to make a submission, as testified to by you.

BRIG SCHOON: Yes, that is correct.

MR HATTINGH: Before you approached him, from time to time, be it oral or written, he must have made reports to you regarding their activities on the Lesotho border and the information that they had obtained in this regard.

BRIG SCHOON: I would accept that.

MR HATTINGH: But you cannot recall what the information was?

BRIG SCHOON: No, not specifically.

MR HATTINGH: If he had given you names of the activists who were active in Lesotho, you would not be able to recall the names as such?

BRIG SCHOON: No.

MR HATTINGH: Furthermore, as we have already heard from General van der Merwe, it was the custom of the Security Branch to make written reports to head office pertaining to information which the branches had received regarding activities of freedom or liberation organisations.

BRIG SCHOON: Yes, that is correct.

MR HATTINGH: Would those reports also have come to your attention?

BRIG SCHOON: Yes, they would have.

MR HATTINGH: And in this manner you may have heard some of the names of the activists who were in Lesotho, names that you can no longer recall today.

BRIG SCHOON: Yes, most probably.

MR HATTINGH: Now this report that you asked him to compile, it was purely to indicate whether they possessed the logistical capacity to act against the activists in Lesotho, isn't that so?

BRIG SCHOON: Yes, Chairperson, it may be so. Today I'm not very certain what precisely it was about.

MR HATTINGH: He will testify that this was the purpose behind the report. Gen van der Merwe wanted to know whether or not Vlakplaas, C1, possessed the logistical capacity to if necessary, launch an attack against these activists in Lesotho.

BRIG SCHOON: Yes, it is possible.

MR HATTINGH: And that the report which he compiled - this is the one that you referred to, the document which was written in red ink, that report dealt only with such matters - he can no longer recall the particulars in detail himself, but it would have contained information such as "Yes, you we go in, we will require a rubber dinghy to cross the river, we will need the following, but we will be able to obtain such items and we will be able to act if we should receive an order to do so".

BRIG SCHOON: Chairperson, I do recall that it was a report on a double-folio sheet in written handwriting and that it dealt with the capacity, and I am not certain whether it included targets, but I was under the impression that it also mentioned targets.

MR HATTINGH: Well targets in the broader sense of the word, isn't that so?

BRIG SCHOON: Yes, in the basic of the word, were they aware of targets and did they have the capacity to deal with these targets.

MR HATTINGH: His version will be that it did not mention the names of the activists against action could or had to be taken.

BRIG SCHOON: I cannot testify about that, it is 15 years ago.

MR HATTINGH: And you brought him to the understanding that the report that you requested from him had to be attended to as a matter of urgency.

BRIG SCHOON: Yes.

MR HATTINGH: And then shortly after you gave him the order he submitted the report to you.

BRIG SCHOON: Yes, Chairperson.

MR HATTINGH: He is under the impression that the report would be dealt with a CIC meeting, he cannot recall why he was under that impression, but I note that in your affidavit, paragraph 16, you say the following -

Is it possible that you may have conveyed such information to Mr de Kock?

BRIG SCHOON: Chairperson, if I recall correctly, Col de Kock was with me in the office early that morning in order to give me the report and shortly after he had handed it over to me and we were still studying it, Gen van der Merwe entered the office and asked whether or not the report was ready. I told him that this was the report and that we were still to have it typed. He told me that there wasn't enough time to have it typed. He took the report from me and said that he had to go to CIC urgently.

MR HATTINGH: Very well. So that is how Mr de Kock came to hear of CIC?

BRIG SCHOON: Correct.

MR HATTINGH: Because he cannot recall how it took place, but I think that he will accept what you have just said.

BRIG SCHOON: That is how I recall it.

MR HATTINGH: When you requested the report from him you did not provide him with the names of persons against whom you wanted him to take action?

BRIG SCHOON: No, I didn't.

MR HATTINGH: In fact in your affidavit you state in paragraph 14 -

According to this it would appear to me as if the order was not to act against specific persons, but to act against members of the ANC.

BRIG SCHOON: Chairperson, if I recall correctly mention was made of a specific group which was active in Lesotho and which upon other occasions, had already committed acts of terrorism within the RSA.

MR HATTINGH: You did not know of how many members the group consisted?

BRIG SCHOON: No, I can no longer recall.

MR HATTINGH: But it was a group.

BRIG SCHOON: Yes.

MR HATTINGH: And by nature of the situation, action against these persons in Lesotho would have entailed a great risk for the operatives and Mr de Kock.

BRIG SCHOON: That is correct.

MR HATTINGH: Their own safety was in jeopardy.

BRIG SCHOON: That is correct.

MR HATTINGH: But nonetheless the police in general and more particularly the Security Police and then also the then government, could seriously have been prejudiced if Mr de Kock and his cohorts had been arrested while they were busy with the execution of the operation.

BRIG SCHOON: Yes, it would have created a tremendous political hullabaloo.

MR HATTINGH: And the government would have had to be very careful in explaining it and the police would not have been able to explain it quite thoroughly.

BRIG SCHOON: That is correct.

MR HATTINGH: And you would also accept then, Brigadier, that such an operation - I beg your pardon, perhaps I should ask this question first. Is it so that there was a reasonable degree of disparity between the Lesotho government and the South African government at the time of the planning of this operation?

BRIG SCHOON: I believe that it was so at that stage. MR HATTINGH: It would appear from the documents before us, isn't that so?

BRIG SCHOON: Yes.

MR HATTINGH: Are you aware of the fact that the so-called Lesotho Liberation Army, or body or whatever they called themselves, was also active in Lesotho at the time of these events?

BRIG SCHOON: Is it the LLA?

MR HATTINGH: Yes.

BRIG SCHOON: Yes, I was aware of that.

MR HATTINGH: And that there was quite a stressful situation in Lesotho at the time of this incident.

BRIG SCHOON: Yes.

MR HATTINGH: And if Mr de Kock then states that at the time of this incident it was not strange to see soldiers of the LLA on the streets in uniforms and with weapons?

BRIG SCHOON: No, it would not have been out of the ordinary.

MR HATTINGH: So that an operation of this nature would have had to be completed within the shortest possible period of time.

BRIG SCHOON: Yes, that is correct.

MR HATTINGH: And then you state in your evidence that the order was to thwart the attempts of this group to enter the country over the festive season.

BRIG SCHOON: Yes.

MR HATTINGH: But the rule was also for action to be taken against the enemy, whether or not you knew him. Those are the words that you used.

BRIG SCHOON: Yes, Chairperson.

MR HATTINGH: So that if Mr de Kock and his cohorts encountered these members or some of these members who wanted to enter the country in the presence of other ANC members, you would have expected from them to act against those ANC members as well.

BRIG SCHOON: Yes, I would have expected that.

MR HATTINGH: And Mr de Kock would then have had to use his own discretion in his capacity, to take action against such persons.

BRIG SCHOON: Yes.

MR HATTINGH: Because we have already heard, and I've also been instructed by my attorney that the Committee has heard such evidence, that it was expected of Vlakplaas members to apply their own initiative and to act according to their own discretion and not always to wait only for an instruction.

BRIG SCHOON: Yes, that is correct.

MR HATTINGH: And Gen van der Merwe also gave similar evidence before the TRC, is that correct?

BRIG SCHOON: Yes, that is correct.

MR HATTINGH: You state that you were not aware of other Special Forces plans to carry out a similar operation and according to your recollection the CCB had not yet come into existence at that stage.

BRIG SCHOON: That is correct.

MR HATTINGH: Are you aware that the CCB was first known by another name before it achieved the name CCB or Civil Cooperation Bureau?

BRIG SCHOON: No.

MR HATTINGH: I can tell you that Mr de Kock will testify, and I also appeared on behalf of them before the Harms Commission, they were known initially as Group 40, later it was Barnacle and then they became the CCB, but they were always the same people. Would you dispute that?

BRIG SCHOON: It is possible, Chairperson.

MR HATTINGH: You were also involved in other cross-border operations, is that correct? Involved in the sense that you gave orders or to a greater or lesser extent were also involved in the operation.

BRIG SCHOON: Yes, Chairperson.

MR HATTINGH: And so you were also involved in the Pansu incident which has already been served before the Committee, this is an incident which took place in Swaziland.

BRIG SCHOON: Yes.

MR HATTINGH: During which you gave an order to Mr de Kock to become involved in the incident, during which action was also taken against ANC members who were in Swaziland.

BRIG SCHOON: Yes, that is correct.

MR HATTINGH: And in fact you accompanied the group which launched the operation to the Oshoek border post, is that correct?

BRIG SCHOON: Yes.

MR HATTINGH: And during that action persons were also shot dead.

BRIG SCHOON: Yes, Chairperson.

MR HATTINGH: And this was at a stage when Mr de Kock, and I speak under correction, perhaps you would be able to assist me, my recollection was that Mr de Kock was not yet the Commander of C1 at Vlakplaas, is that correct? I have been corrected, apparently he was already the Commander. But there was another action and I don't know whether this was in your time, during which action was taken against members in Swaziland by Vlakplaas members, including Mr de Kock who has also applied for amnesty for this, when the current head of the South African Defence Force, Mr Siphiwe Nyanda's brother was shot dead in Swaziland. Did you know about this?

BRIG SCHOON: Yes.

MR HATTINGH: And that incident took place when Mr de Kock was not yet the Commander of Vlakplaas.

BRIG SCHOON: Yes, I think that is correct.

MR HATTINGH: Mr de Kock's evidence will be that due to these factors which I have mentioned, the fact that there were always members of the LLA on the streets, he only gave himself two minutes to launch and complete this operation and that they entered the house, he and Mr Nortje, who is also an applicant here, while Mr Vermeulen stood guard outside in order to avoid a possible attack from the outside and that within the period of approximately two minutes, the operation was completed. You would probably not be able to dispute this.

BRIG SCHOON: No, I wouldn't.

MR HATTINGH: And due to the lack of time they didn't even search for any incriminating material such as weapons or documentation. You have made mention of documents but he states that they never took any documents into possession, is it possible that you may be mistaken in that regard?

BRIG SCHOON: Yes, it is possible.

MR HATTINGH: Because during the cross-border operations and I think it might just be the Nyanda incident or Pansu, such documents were indeed taken into possession. Are you perhaps confusing the incidents?

BRIG SCHOON: Usually documents would be taken into possession as well as weaponry in some instances.

MR HATTINGH: He will testify that they took cameras or a camera with them in order to take photographs which would then later assist with the identification of the persons or indicate the presence of weaponry and so forth, but due to the urgency of the matter and the short period of time in which they were to complete it, they didn't even give themselves the time to take photographs.

BRIG SCHOON: Yes, I was aware of that.

MR HATTINGH: Thank you Mr Chairman, I have no further questions.

MR TOWEEL: On behalf Mr Coetser I have no questions.

MR CORNELIUS: Thank you, Mr Chair, Cornelius for NJ Vermeulen, I have no questions.

CROSS-EXAMINATION BY MR LAMEY: Thank you, Mr Chairman, for Nortje and Bosch.

Brigadier Schoon, from your supplementary statement, Exhibit C, there are a number of questions that I would like to put to you. Paragraph 12, page 4 you say -

Furthermore - if we can skip the paragraph 13 and move onto 14, you state that -

And then you say further in paragraph 15 -

The information to which you refer here in paragraph 12, would that have been the information which was obtained from reports from the Ladybrand Security Branch, among others?

BRIG SCHOON: Yes, correct.

MR LAMEY: And then it would appear to me within the context of your statement before you get to December 1985 specifically when Gen van der Merwe requested you to make the submission about the capacity, you say that if a successful operation could be launched against these persons, you were of the opinion that the terrorism over the Xmas season could be avoided. My question to is that before you received the order from Gen van der Merwe, wasn't it already foreseen that an operation of some or other nature which could include an attack over the border in Lesotho, could be planned?

BRIG SCHOON: It must have been a possibility and I would have thought that suitable steps would have been taken in consideration of such a proposal.

MR LAMEY: The reason why I ask you is because - or let me put it to you as such, in order to make a submission about a logistical capacity, at a certain stage there must have been familiarity with the region, familiarity on behalf of the Vlakplaas members, reconnaissance must have been undertaken, possible handling of a source and so forth.

BRIG SCHOON: Chairperson, the request came from Gen van der Merwe and I believe that if he had been up to date with the circumstances, he would not have requested such information.

MR LAMEY: No, certainly, but what I mean is in order to enable Vlakplaas to make such a submission there must have been prior facts and circumstances for Vlakplaas, in order for them to make such a submission.

BRIG SCHOON: Yes, definitely, because Col de Kock produced the report within a day, if I have it correctly. In other words, he already possessed the information.

MR LAMEY: If such an operation had been anticipated or foreseen in your mind before the order came from Mr van der Merwe, one could readily accept that it must also have been foreseen by Mr de Kock or other members of Vlakplaas.

BRIG SCHOON: Yes, Chairperson, and if they had regarded it as possible, I do believe that they would have made the necessary submission at the appropriate time.

MR LAMEY: Can you recall how much time had lapsed from the time that the green light was given, if I may state it as such, for such an operation? Meaning the operation of the nature of an attack that had eventually happened, how long after that instruction was given until it was executed, how much time had elapsed?

BRIG SCHOON: Chairperson, I cannot specifically recall, but I do believe that it was within a few days.

MR LAMEY: Could it have been a week, in the proximity of a week?

BRIG SCHOON: Chairperson, I cannot specifically say that it was a week.

MR LAMEY: So you are not certain?

BRIG SCHOON: No, I am not certain.

MR LAMEY: So you are not exactly certain how much time had elapsed?

BRIG SCHOON: No, Chairperson.

MR LAMEY: One can accept that it was not months or several weeks.

BRIG SCHOON: No, it was definitely not more than a week. As I have said, it was a few days after the green light had been given but I am not able to say whether it was one day or two days or how many days it was.

MR LAMEY: Thank you, Chairperson, no further questions.

MR JOUBERT: On behalf of Mr McCaskell, I have no questions, thank you.

CROSS-EXAMINATION BY MR BERGER: Thank you, Chairperson.

Mr Schoon, in your written statement you ask the Amnesty Committee to take into account the evidence that you gave at the Marius Schoon hearing, is that correct?

BRIG SCHOON: Yes, Chairperson.

MR BERGER: That was the hearing where you told the Committee that murder was not your style.

BRIG SCHOON: That is so, Chairperson.

MR BERGER: And yet you're applying here for amnesty for murder.

BRIG SCHOON: That is so, Chairperson.

MR BERGER: Now the list of people that you murdered you've set out at page 2 of your statement.

BRIG SCHOON: Chairperson, I did not personally kill them, I may be an accomplice here but I did not personally murder them.

MR BERGER: Well if you were to be charged in a criminal court you would be found guilty of murder, isn't that so?

BRIG SCHOON: That is indeed so, Chairperson.

MR BERGER: Then you would be a murderer, so let's deal with it on that basis. Stanley Matthee, Vivian Matthee and Glen Darries is the same person.

BRIG SCHOON: I cannot argue with that, Chairperson.

MR BERGER: Lulamile Dantile and Morris Seabelo is also the same person - well it's another person I should say. You can't quarrel with that either.

BRIG SCHOON: No, I cannot dispute that.

MR BERGER: You have no knowledge of the people for whose deaths you are responsible, jointly with other people of course.

BRIG SCHOON: I have no personal knowledge, Chairperson.

MR BERGER: Now if you have a look at bundle 1, page 141, it's your application, you say there in (iv) -

... then second sentence -

BRIG SCHOON: Yes, Chairperson.

MR BERGER: What exactly do you mean by that, what precisely did Mr van der Merwe tell you?

BRIG SCHOON: Chairperson, as I recall it at the time of the handing in of my application I recalled that Gen van der Merwe had given me an instruction to bring a submission about the capacity and targets that we had in Lesotho. That is how I recalled it.

MR BERGER: Well you say there -

BRIG SCHOON: Yes.

MR BERGER: Now according to your information at the time, there were 80 ANC members in Lesotho.

BRIG SCHOON: Chairperson, this is what I have seen in documents afterwards.

MR BERGER: Well at the time what were you asked to find out, whether the Security Police had the capacity to kill all 80 ANC members, or ...(intervention)

BRIG SCHOON: No, Chairperson, it was specifically about a certain group who were in Lesotho and the information indicated that they had planned to enter the RSA during the festive season, to commit acts of terror.

MR BERGER: And the name of that group, how was it identified?

BRIG SCHOON: The group was identified but I cannot recall the name. Later in other documents that I had studied I saw the names of Ms Quin and Mr Meyer were mentioned.

MR BERGER: And would Ms Quin's name have been on that list?

BRIG SCHOON: I don't know, Chairperson, I cannot recall.

MR BERGER: Is it possible that her name was on the list?

BRIG SCHOON: It is possible, Chairperson, but I cannot state it as the truth.

MR BERGER: But what you to recall is that there was a list of names.

BRIG SCHOON: Yes, names were mentioned of a group. I don't know whether all the names were mentioned but certain names were mentioned of a group that were there.

CHAIRPERSON: On a piece of paper?

BRIG SCHOON: I beg your pardon, Chairperson?

CHAIRPERSON: On a piece of paper? We are talking about a list.

BRIG SCHOON: No, this was an intelligence report.

CHAIRPERSON: Written?

BRIG SCHOON: A written intelligence report from the Security Branch, Ladybrand.

MR BERGER: And on this intelligence report, were the names of certain members of a group of ANC soldiers based in Lesotho.

BRIG SCHOON: Correct, Chairperson.

MR BERGER: And you gave that information over to Mr de Kock.

BRIG SCHOON: No, by nature of the situation he would have seen it because all intelligence of that nature was channelled through to them.

MR BERGER: I don't understand. You've received an intelligence report from Mr van der Merwe which ...(intervention)

BRIG SCHOON: No, Chairperson, these intelligence notes came from Ladybrand and when it is relevant to a certain desk a copy of it is marked and it is handed over to you and such reports that I had thought that Col de Kock and his people also had to see, I gave a copy of that to them as well.

MR BERGER: And this was one such report that you sent on to him.

BRIG SCHOON: That must be so, Chairperson, I am not able to be specific at this stage.

MR BERGER: Alright, so now you get an intelligence report from Ladybrand and then at some point Mr van der Merwe comes to you and says "Does the Security Police have the necessary information and capability to act against the ANC in Lesotho?"

BRIG SCHOON: It is possible, Chairperson, but ...(intervention)

MR BERGER: And how do you know who he is referring to?

BRIG SCHOON: He specifically referred to a group who were located in Lesotho.

MR BERGER: And he gave you the names of the members of the group.

BRIG SCHOON: That is possible, Chairperson.

MR BERGER: And you then compared those names with the intelligence report that you had independently of Mr van der Merwe.

BRIG SCHOON: No, Chairperson, that is not how it worked. These reports came to me and I marked them out to be sent to those persons that had to see them, it did not stay with me.

MR BERGER: You see, Mr Schoon, what I don't understand is how do you put two and two together, because you're saying that Mr van der Merwe comes to you with a request and he gives you certain names, independently of him an intelligence report comes through and you somehow put two and two together that the unit that is referred to in that report is the unit that Mr van der Merwe is referring to.

BRIG SCHOON: Chairperson, I cannot recall that I said that Gen van der Merwe gave a report to me. That report would under normal circumstances, of the activities, would have arrived at my desk and I would have known of it and when Gen van der Merwe came to me I cannot recall that he gave a report to me, he only said that I should make a submission to him with regard to the capacity and I am not certain of the information that we had with regard to Lesotho.

MR BERGER: Against whom in Lesotho?

BRIG SCHOON: Against the group who were in Lesotho, who were readying themselves for entering the RSA.

MR BERGER: And he gave you sufficient information so that you knew it was the group that was being referred to in that intelligence report.

BRIG SCHOON: Chairperson, I recall that that was more-or-less the extent of it.

MR BERGER: Now Mr de Kock says he wasn't given any names, he wasn't given a list at all of names.

BRIG SCHOON: Chairperson, that report had to arrive at his desk.

MR BERGER: Because your instruction to him according to you, this is to Mr de Kock, was whether he had the capacity to strike against those people, the people who had been identified in the report and the people who Mr van der Merwe was referring to. That was your request, am I right?

BRIG SCHOON: That may be so, Chairperson.

MR BERGER: Well any ...(intervention)

BRIG SCHOON: I cannot specifically recall it at this stage.

MR BERGER: You'd like to keep both options open.

BRIG SCHOON: No, Chairperson, I do not recall it.

MR BERGER: So you don't remember what it was precisely what you asked Mr de Kock to give you a report on?

BRIG SCHOON: I know that the capacity was one of the things and I did have it. And I may digress here or be incorrect here, that it also had to be targets, but now that I think of it, it is only logical that the targets were already available.

MR BERGER: Mr Schoon, you can remember that the subsequent report that you received was in red ink, you can remember that it was double-folio piece of paper and you can't remember whether names of targets were mentioned.

BRIG SCHOON: Chairperson, the fact that ...(intervention)

CHAIRPERSON: Sorry. Are you talking about the "verslag" that came from de Kock?

MR BERGER: Yes, I'm saying that you can remember on the one hand ...(intervention)

CHAIRPERSON: ...(indistinct - no microphone)

MR BERGER: Well perhaps I'll - let me repeat my question.

On the one hand you can remember - and this is happening at round about the same period of time, you can remember the detail of a report that was given to you in the sense that you can remember that Mr de Kock's report was in red ink, was on a double-folio piece of paper, but you can't remember whether in an earlier report or whether in your instructions to Mr de Kock I should say, you mentioned specific targets, you can't remember that.

JUDGE KHAMPEPE: Or whether in a request obtained from Mr van der Merwe, we specific group was mentioned.

MR BERGER: Indeed.

BRIG SCHOON: Chairperson, the report was in red ink and that was something quite uncommon.

CHAIRPERSON: What report are we referring to here?

BRIG SCHOON: This is the report that Col de Kock had written in his own handwriting.

CHAIRPERSON: How many reports did he hand over to you?

BRIG SCHOON: Just the one, Chairperson.

CHAIRPERSON: Now this report that he handed over to you, is that the one that followed when you gave him instructions to watch these persons and to find out whether they had the capacity?

BRIG SCHOON: No, Chairperson, this was the report that I requested from him following on the request of Gen van der Merwe that we had to place something in writing for him which indicates what their capacity was. And I added here, "and the targets", but it would appear now from what I hear of Col de Kock's evidence that the targets was not part of it, that it was only the capacity that he had stipulated down there. And what made this unique was the fact that it was written in red ballpoint pen on a double-folio page and that was the page that Gen van der Merwe took from my office before he went to CIC.

CHAIRPERSON: Let us get this clear. You spoke to Mr van der Merwe or he spoke to you with regard to this incident.

BRIG SCHOON: Yes, Chairperson.

CHAIRPERSON: Did he give you a written report?

BRIG SCHOON: No, Chairperson.

CHAIRPERSON: So by verbal instruction you consequently told de Kock to do certain things.

BRIG SCHOON: Yes, Chairperson.

CHAIRPERSON: Amongst others he had to find out whether they as a group, this is now de Kock and his group, had the capacity to act against the ANC who were in Lesotho.

BRIG SCHOON: Yes, Chairperson.

MR BERGER: And you are saying that you thought that you also gave him names of persons whom he had to watch.

BRIG SCHOON: No, Chairperson, I said that I thought that I requested him to describe the targets as well.

CHAIRPERSON: And then he came back with a report that you are saying you recall it was written in red ink and so forth, is that correct?

BRIG SCHOON: That is correct, Chairperson.

CHAIRPERSON: That report that was written in red ink, were there any named targets in there?

BRIG SCHOON: Chairperson, today I am not certain but I doubt it.

CHAIRPERSON: Were there any reasons therein as to why action had to be taken against certain people?

BRIG SCHOON: I do not recall that, Chairperson.

CHAIRPERSON: So why is it in your application?

BRIG SCHOON: That is what I thought, Chairperson, but now that other persons state it otherwise, I doubt it.

CHAIRPERSON: What do you doubt?

BRIG SCHOON: The correctness of my initial application.

CHAIRPERSON: So why can it be that they are not incorrect?

BRIG SCHOON: That may also be so, Chairperson, but I doubt, I do have my doubts.

CHAIRPERSON: Yes.

MR BERGER: Thank you, Chairperson.

In 1996 you wrote unequivocally that Maj de Kock -

And today, four years - let me not err on the side of excess, three side and a couple of months later you say you could have been mistaken in 1996.

BRIG SCHOON: Yes, Chairperson.

MR BERGER: And the reason you say you could have been mistaken in 1996, is because others of your comrades dispute what you say.

BRIG SCHOON: Yes, there are some of my colleagues here who do not state it as such, Chairperson.

MR BERGER: Well, if there were no targets set out in the report and if there were no reasons for acting against the targets, if those reasons were not motivated in the report, what was in the report?

BRIG SCHOON: Chairperson, the information with regard to the persons, the targets, was relatively known, that was general knowledge.

CHAIRPERSON: Mr Schoon, what was in the report?

BRIG SCHOON: The report of Col de Kock?

CHAIRPERSON: Yes. You are saying that now you doubt whether names were mentioned of targets and the reasons why action had to be taken against them, what was in the report that was written in red?

BRIG SCHOON: The capacity that they had to act against targets there. For example, that they had the necessary logistics and armaments and the means and the manpower.

MR BERGER: What did ...(intervention)

CHAIRPERSON: Was the number of targets mentioned in that report?

BRIG SCHOON: I'm not certain, Chairperson.

CHAIRPERSON: Because one would expect that when someone writes out a report and says that we have the ability or capacity to act and it is a report submitted for approval to seniors, then at least it had to say that "Listen there are 10 or 12 or 20 targets and we have the manpower and we can act against them". Do you not think so?

BRIG SCHOON: Yes, Chairperson. I cannot recall whether targets were mentioned there.

CHAIRPERSON: No, I refer to the amount of, the number of targets.

BRIG SCHOON: That is possible, Chairperson.

MR HATTINGH: Chairperson, in order to prevent any confusion may I just ask that we get clarity as to what we mean here by target, a target could be a house where there are 20 people inside, or do we refer to 20 people as 20 targets? Can we just try and clear up that possible confusion.

CHAIRPERSON: When you refer to targets in your application, to what did you refer?

BRIG SCHOON: Chairperson, to persons and fixed targets. For example transit houses, hiding places.

ADV BOSMAN: So do you mean identified targets?

BRIG SCHOON: Yes, Chairperson.

CHAIRPERSON: Then that makes sense, then the seniors would be able to determine whether this assessment was correct, that you had the capacity to attack these people.

BRIG SCHOON: Yes, Chairperson.

CHAIRPERSON: So you were therefore not incorrect. It would appear that such information had to form part of that report.

BRIG SCHOON: That is how I had it, Chairperson, but I do doubt it. - if others say that it was not so.

CHAIRPERSON: Then you should about saying that they are wrong and you are right.

BRIG SCHOON: But I am much older than them and I am susceptible to senility.

MR BERGER: So the way I understand it, Mr Schoon, is you thought that targets, and I can only think of houses and people as being possible targets, you thought that targets were mentioned in the report but when you heard ...(intervention)

CHAIRPERSON: Mr Berger, for clarity's sake, I'm not taking you on on this, in the context of this attack it could only have been houses or safehouses and people because "teikens" could also mean sub-stations etcetera. It was not directed at Lesotho itself.

MR BERGER: Well my point is that you thought in 1996 that targets were mentioned in the report, you were not equivocal about it then but now when you hear that Mr de Kock says "No, there were no targets in the report", you doubt your memory and you say "Well maybe there were no targets in the report".

MR HATTINGH: Mr Chairman, I'm sorry to have to come in here again, we're still having confusion about the use of the word target. If I remember correctly, and if I didn't put it on that basis, then I must correct it now, Mr de Kock will say no names or people were mentioned in the report.

MR BERGER: Yes. Your understanding when you completed your 1996 application was that there were names of targets in the report from Mr de Kock, that was your understanding in '96, isn't that right?

BRIG SCHOON: Yes, Chairperson.

CHAIRPERSON: Targets meaning people and buildings?

MR BERGER: Yes, I just put to the witness "names of people were mentioned in the report", that's what he thought in 1996, he says yes. That is so.

BRIG SCHOON: That is so, yes.

MR BERGER: Now because Mr de Kock says that there were no names mentioned in his report you doubt your memory and you say he must be correct.

BRIG SCHOON: That is so, Chairperson.

MR BERGER: Alright. Mr de Kock also says the following - I'd like you to listen to this, and it's in bundle 1, page 3. He says -

BRIG SCHOON: Chairperson, no, I cannot recall such a discussion. On the contrary, as far as I can recall Col de Kock never doubted any of my instructions and he performed them duly.

MR BERGER: You say in paragraph 18 of your written statement at page 6 -

Now you make no bones about it, you're not doubting yourself at all, despite what Mr de Kock has to say, you say you deny that you had that conversation with Mr de Kock.

BRIG SCHOON: I must have got it from Gen van der Merwe and he also denies it.

CHAIRPERSON: That is not the point, the point is on another aspect you are prepared to accept that you are incorrect and you rely on what Mr de Kock recalls. The point is, is the same applicable now with regard to this aspect?

BRIG SCHOON: No, Chairperson, I think Col de Kock may be able to correct it, that I did not involve the State President here. He may have been involved, but without my knowledge.

MR BERGER: Why do you think Mr de Kock will retract this statement?

BRIG SCHOON: He did not dispute it now when his legal representative heard me under cross-examination.

MR BERGER: Well let's assume that he stands by this evidence that there was this conversation and that he asked you who had given the order and you said it had come from the top and he said "Do you mean the State President" and you nodded. Let's assume he stands by that evidence.

BRIG SCHOON: I'll stand by my evidence, Chairperson.

MR BERGER: That evidence won't make you doubt your recollection and make you say maybe you are mistaken?

BRIG SCHOON: Not in this regard, definitely not, Chairperson.

MR BERGER: And that's because Mr van der Merwe says that he never had any discussions with the State President.

BRIG SCHOON: No, Chairperson, it is because I have to live with my own conscience and I have to speak the truth here, and the truth is that I have no knowledge that former President PW Botha was involved in this story. I don't know of it, I don't have any such knowledge.

MR BERGER: No, it goes further than that, you deny that you said anything about PW Botha to Mr de Kock.

BRIG SCHOON: I deny that I ever used PW Botha's name. I would have wanted to.

CHAIRPERSON: Let us get this right. ...(indistinct - no microphone) according to Mr de Kock's application he does not say that you mention the name of the State President, he says that this most high would indicate that the State President's permission was given and now he also says in his application that-

So he doesn't say that you brought the State President's name into it, he says that he asked whether or not the proposed plan enjoyed the permission of the State President and then you nodded in agreement.

BRIG SCHOON: No, Chairperson, I don't know about that.

CHAIRPERSON: But I'm telling you what he says.

BRIG SCHOON: Yes.

CHAIRPERSON: I do not wish for any confusion to arise.

BRIG SCHOON: No, Mr Schoon, it's not that you - you've just said "I don't know about it", but that's not your evidence, your evidence goes further, you deny it, you say it never happened. That's your evidence.

BRIG SCHOON: Chairperson, I did not involved the State President in this incident.

MR BERGER: In other words, you dispute the version that Mr de Kock has put on paper here and you say as a fact you know that it never happened.

BRIG SCHOON: I never said it, Chairperson.

MR BERGER: No, please I don't want there to be confusion because it's not saying - Mr de Kock is not saying here that you said PW Botha's name, he's saying that you said "It comes from the most high" and he then said to you "Do you mean the State President?", and you nodded in agreement. Now your evidence is unequivocal, your evidence is you never said "Dit kom van heel bo af" and you never nodded in agreement when he said "Do you mean the State President?". am I right. That is your evidence, it never happened.

BRIG SCHOON: That is my evidence.

MR BERGER: Because if it did happen, then that would mean that you would have had to be have been told that by someone else, someone senior to you.

BRIG SCHOON: It didn't happen, Chairperson, and I cannot speculate about it.

CHAIRPERSON: ...(indistinct)

INTERPRETER: The speaker's microphone is not on. The speaker's microphone is not on. -

CHAIRPERSON: ..., isn't that so?

BRIG SCHOON: I didn't hear the question, Chairperson.

CHAIRPERSON: The statement is that if Mr de Kock is correct, then you must have obtained that information about the State President somewhere because you yourself did not speak to the State President.

BRIG SCHOON: I did not and I did not have such information.

MR BERGER: You never had access to PW Botha.

BRIG SCHOON: At no stage, Chairperson.

MR BERGER: So my point is simply this, if you had said and done what Mr de Kock says you did, then it would necessarily mean that you would have had to have got that information from one of your seniors.

BRIG SCHOON: That is so, Chairperson, but I did not receive any such information from them.

MR BERGER: And that senior would have been Mr van der Merwe.

BRIG SCHOON: I did not receive any such information from him.

MR BERGER: Okay. The group that was being targeted and whose names were mentioned in the intelligence report and mentioned by - some of which names were mentioned by Mr van der Merwe, do you confirm Mr van der Merwe's evidence that the information that you received was that that group was on the point of entering the country to carry out acts of violence?

BRIG SCHOON: That is so, Chairperson, and it appeared in the security reports which came from Ladybrand to Security Head Office.

MR BERGER: So this was - and the attack that you asked Mr de Kock, whether there was the necessary capacity and information to carry out, was an attack which primarily, the principle purpose of the attack was to strike at this group that was about to enter the country.

BRIG SCHOON: That is so, Chairperson.

MR BERGER: And the reason that you decided to strike. and when I say you I mean you plural, was because you were of the opinion that lives inside South Africa were in imminent danger and you wanted to strike so as to ward off this danger and prevent loss of life.

BRIG SCHOON: Yes, Chairperson.

MR BERGER: And if - following on from some of the questions which were asked from you earlier, if other ANC members who got killed in the process, that would just be a bonus.

BRIG SCHOON: That is so, Chairperson.

MR BERGER: And if non-ANC members and non-South African citizens got killed in the process, that would be a pity.

BRIG SCHOON: That is so, Chairperson.

CHAIRPERSON: What about children, small children?

BRIG SCHOON: I beg your pardon Chairperson, I didn't hear your question properly.

CHAIRPERSON: What was the position regarding children, would the same have been of application if there were children in the house?

BRIG SCHOON: Chairperson, that was one thing that we were reasonably sensitive about and it was consistently brought home to the operatives that innocent people, children and property should not be injured, damaged or killed.

CHAIRPERSON: Didn't you just concede that if unfortunately there were persons there who were killed as targets, that would be a casualty.

BRIG SCHOON: Yes, and that would be unfortunate.

CHAIRPERSON: But in the light of that I'm asking you what the position was on children.

BRIG SCHOON: Children were never tasked as targets.

CHAIRPERSON: Yes, but if the target house at any stage during an attack was housing children, would you have continued with the operation?

MR BERGER: Chairperson, I don't believe so, but what this case proved was there was a baby and I think that Col de Kock went out of his way to make the necessary precautionary measures to ensure the safety of that baby.

CHAIRPERSON: Can we read anything into that, that all of those who were indeed killed were specifically killed? If what you say now is the truth, that he especially did not kill the child.

BRIG SCHOON: Chairperson, if there was a target it would be acted against. At this stage I cannot speak on behalf of Col de Kock, because he was in command of the operation the moment when he left head office.

CHAIRPERSON: Yes, I know and I do not expect that you speak for him, I'm referring to the policy and the order.

BRIG SCHOON: I wouldn't have expected him to kill innocent people.

CHAIRPERSON: Because they would have been in the same position as a child?

BRIG SCHOON: Yes, Chairperson.

CHAIRPERSON: So what then of your answer that if such people were killed during an operation it would be unfortunate?

BRIG SCHOON: Chairperson, then we would have to take into consideration the circumstances under which they were killed.

CHAIRPERSON: Then I will ask you once again, in the light of your answer that it would appear that Mr de Kock specifically did not kill the child, can we then infer from that that those who were killed were specifically recognised and killed.

BRIG SCHOON: That is the only inference that can be drawn, Chairperson, unless the person involved could offer any other reason.

CHAIRPERSON: Yes, well we will come to that, but is it also your opinion?

BRIG SCHOON: Yes, Chairperson.

CHAIRPERSON: Thank you.

MR BERGER: Thank you, Chairperson.

Mr Schoon, besides Mr van der Merwe, who else did you consult with - and besides your attorney and counsel, who else did you consult with in preparation for this hearing?

BRIG SCHOON: Only my advocate and attorney and Gen van der Merwe and I did so in cooperation with them. Furthermore I did not consult anybody.

MR BERGER: You haven't discussed your evidence with Mr Coetzee?

BRIG SCHOON: No, not at all.

MR BERGER: Now I want to take you to the day - you say it was "on a day in December" - it's paragraph 14, Exhibit C.

... that Mr van der Merwe came to you and asked you whether the Security Police had the necessary capacity, I'm not going into the question of names or any of that now, we've dealt with that. You said earlier in your evidence when your counsel was asking you questions, that you can't be certain of the date but you've narrowed it down to December.

BRIG SCHOON: Yes.

MR BERGER: Why December, why not November?

BRIG SCHOON: Chairperson, we have a definite date here, the night of the 19th to the 20th of December and I know that the operation was executed not very many days after this report which Mr de Kock compiled, was taken by Mr van der Merwe to the CIC. It must have been a week at the very most. So it would definitely have been during December and during no other month.

MR BERGER: So you're working backwards?

BRIG SCHOON: Yes, by means of elimination one would then calculate it.

MR BERGER: So you say that the time-frame between - would it be the time-frame between giving Mr de Kock the go-ahead and the carrying out of the operation? You say that that time-frame could have been as much as a week.

BRIG SCHOON: Yes, Chairperson.

MR BERGER: Then if we add onto that the time between you giving Mr de Kock the go-ahead and you giving him the - I'm going backwards like you've been going, you giving him the original instruction to produce the report, we would go back an additional how many days?

BRIG SCHOON: At the very most a few days, but in my mind I have it that it was only one day. Gen van der Merwe asked me the previous day and on that same day I consulted Mr de Kock and the following morning he brought the report. In other words it was a question of less than 10 days from when the whole thing started to when the deed was committed.

MR BERGER: At the most 10 days?

BRIG SCHOON: That is how I have it, yes.

MR BERGER: Have you read the book "Comrades Against Apartheid"?

BRIG SCHOON: No, Chairperson.

MR BERGER: Now you get the report from Mr de Kock, the one in red ink, double-paged, and before you can have it typed up, Mr van der Merwe comes into your office and he takes the report, he says "I'm off to CIC meeting, I need this report now, there's not time to have it typed up". Is that how it happened?

BRIG SCHOON: That is correct, Chairperson.

MR BERGER: And then he goes off to this CIC meeting and some time later - do you know how much later it was?

BRIG SCHOON: I think it was still during the same morning because the CIC meetings would take place early in the morning.

MR BERGER: He comes back to you and he says "I've discussed this, I've raised this matter at the CIC and the CIC has given authority for the raid to proceed".

BRIG SCHOON: I don't know if he said "authorisation", but he said that we could continue with the operation, but I drew the inference that CIC had given permission. At that stage I did not yet know that they didn't have any executive authority.

MR BERGER: Yes, well of course your evidence that you give now is in the light of the evidence given by Mr van der Merwe, but let's have a look at what you said in 1996, at page 141 of bundle 1. You say there, the last sentence of the first paragraph of (iv), you say - this is now the red pen report -

So your recollection in 1996 was that Mr van der Merwe received approval at that CIC meeting for the operation to proceed.

BRIG SCHOON: That was the impression under which I was on that day, yes.

MR BERGER: And that's because that's what he told you when he came back from that meeting, isn't that so?

BRIG SCHOON: Yes, it could be by implication that he said "You can go ahead with the operation", and by implication he then said that there was no objection and that we could continue.

MR BERGER: Why didn't you say that in your application, why did you state it as a fact that he received approval for the operation to proceed?

BRIG SCHOON: When I submitted my application I was under that impression.

MR BERGER: I'm putting it to you that you're equivocating now because of the evidence you've heard from Mr van der Merwe.

BRIG SCHOON: Yes, Chairperson, I said so, that initially I did not know that CIC did not have any executive capacity and I've only now come to know of this.

MR BERGER: You were also asked in your application where the instruction came from, page 143, paragraph 11(b), and you say -

BRIG SCHOON: Yes, that is how I understood it at the time of the submission of my application.

MR BERGER: And that was because Mr van der Merwe before the meeting said "Give me that document, I need it to put it before the CIC meeting", and he came back after the meeting and said "You have approval, you can go ahead".

BRIG SCHOON: That is how I understood it because I was under the impression that he gone to CIC with this document in order to obtain permission for this operation to be launched. That was a logical inference that I drew from this.

MR BERGER: So if that was your impression, your impression at the time was that Gen - no, you're impression at the time was that Mr van der Merwe needed the document, the report, in order to get authority from the CIC. That's what you've just said.

BRIG SCHOON: Yes.

MR BERGER: Why do you state in paragraph 17, page 6, Exhibit C in the last sentence -

BRIG SCHOON: Chairperson, it was at this stage that I was informed that CIC did not have any executive capacity to approve operations and this is what my legal representative advised me to state there.

MR BERGER: So when it says -

... that's not correct?

BRIG SCHOON: I accepted that they had approved it.

MR BERGER: Indeed. Where would Mr de Kock have got the money that he needed for the operation?

BRIG SCHOON: Chairperson, he had a standing advance from which he could cover expenses and so forth. A standing advance.

MR BERGER: So he had ready access to the money.

BRIG SCHOON: Yes, Chairperson, they had it available at any time.

MR BERGER: Have a look at your statement, paragraph 18, Exhibit C, this is where you deal with your denial that you had any discussion about the State President, PW Botha at that stage. And you say in the second last sentence -

In other words you're not saying that PW Botha didn't give an instruction.

BRIG SCHOON: No, that's exactly what I'm saying.

MR BERGER: You're saying -

Now I'm not certain which evidence of Mr van der Merwe you are referring to. Which evidence is it?

BRIG SCHOON: That Mr PW Botha would have known about the incident.

MR BERGER: What did Mr van der Merwe say that you are now referring to? That you align yourself with.

BRIG SCHOON: Chairperson, no, at this stage I cannot get any clarity as to what it is.

MR BERGER: Is that something also that your legal advisor advised you to put in?

BRIG SCHOON: I have an idea of it, yes.

MR BERGER: Now in paragraph 21, same page, you say in the second sentence, you're talking about the actual attack -

Now my learned friend for Mr de Kock put to you that Mr de Kock will say that they didn't have time to retrieve any documents.

BRIG SCHOON: Chairperson, I was under the impression that documents were seized, but it would appear that I was mistaken here.

MR BERGER: Once again you will bow to the memory - oh, no, that sounds very bad, you will bow to the recollection of Mr de Kock, his ability to recall is greater than yours.

BRIG SCHOON: Yes, Chairperson.

MR BERGER: The report that you refer to in paragraph 21 from Mr de Kock, that report would have informed you exactly who had been killed and how many people had been killed and what damage had been caused.

BRIG SCHOON: No, Chairperson, it would have briefly entailed the number of persons that were killed and if names were available, the names and positions that they occupied, but it would have been a minimum information because commonly it would have been done by telephone and it would only be said that the operation was successful and so many people had died and nothing went wrong on our side. Something to that effect. And that would be the information that I would convey to Gen van der Merwe.

MR BERGER: So the report you would have got would simply have said "9 people were killed"?

BRIG SCHOON: Something to that effect, and that "we are safe" and nothing else. Because it was a cover operation not much risks would be run by spelling everything out on the telephone.

MR BERGER: Oh this wasn't a written report, this was a telephonic report.

BRIG SCHOON: No, it was an oral report.

CHAIRPERSON: Was a written report handed in later?

BRIG SCHOON: I beg your pardon, Chairperson?

CHAIRPERSON: Was a written report handed in later?

BRIG SCHOON: Yes, then reports would come in from the division where it had taken place and he would only have said such an incident had taken place, without supplying specific particulars as to who was responsible because it was a covert operation. And then furthermore we then relied on media, newspaper reports and radio reports in order to find out what had exactly happened.

CHAIRPERSON: As the person who gave the instruction to him, how would you know that he had killed the correct persons?

BRIG SCHOON: Chairperson, I would have had to accept his word that it was the right persons that were killed.

ADV BOSMAN: May I just ask Mr Schoon, what would have happened to written reports in this regard, with regard to covert operations?

BRIG SCHOON: Chairperson, there were no actual written reports that the operation - that would have disclosed the operation, the operation itself. The operation itself was verbally planned and verbal instructions were given to the operatives. There were no written reports left behind.

ADV BOSMAN: No, I am not asking whether there were any reports that were written for the archives. Let us return to the report that was written in red, I should have asked this of Gen van der Merwe, what would have happened to that document?

BRIG SCHOON: That document would have been destroyed, Chairperson.

ADV BOSMAN: By whom?

BRIG SCHOON: By Col de Kock.

ADV BOSMAN: But he didn't get the document back.

BRIG SCHOON: He did.

ADV BOSMAN: Did you hand it back to him?

BRIG SCHOON: I did.

ADV BOSMAN: When?

BRIG SCHOON: The day when Gen van der Merwe had returned from CIC, he gave the document to me and told me we can continue.

ADV BOSMAN: Would that have been the normal practice?

BRIG SCHOON: Yes, Chairperson.

ADV BOSMAN: Then let us get to that point. You just said, if I recall correctly, that Col de Kock had reported to you telephonically, that is what the normal course was, and later it would have been followed up by a short written cryptic report.

BRIG SCHOON: No, not a cryptic report, not by him, but by the Security Branch in whose area it had taken place, because at that stage Bloemfontein was the Security Branch under which Lesotho resorted and they would have reported that their sources in Lesotho had reported to them that this that and the other had happened and a report would be sent to me then.

ADV BOSMAN: Can you recall whether you received such a report?

BRIG SCHOON: I cannot recall it specifically here today, Chairperson, but it would have been strange if such a report did not arrive at my desk.

ADV BOSMAN: Let us take it further. If you did receive such a report, what would happen to it?

BRIG SCHOON: It would be circulated to all interested desks.

ADV BOSMAN: And eventually, what happens to all this paper or documents?

BRIG SCHOON: It would be filed, Chairperson.

ADV BOSMAN: You never attempted to find any of these reports when you found that you were relatively vague with regard to this incident?

BRIG SCHOON: Chairperson, this was the first thing I did. Before I handed in my amnesty application I went to security head office and I spoke to Mr Barkhuizen there, he was in the legal department, and I asked him "Where can I find documents with regard to incidents in order to refresh my memory?" He threw his hands up in the air and said excuse me there is no place where I can go to, and that is as far as I got in order to try and refresh my memory. That is why I had to rely on statements and applications of other persons in order to refresh my memory, Chairperson.

ADV BOSMAN: Did it surprise you that you were not able to obtain assistance in that regard?

BRIG SCHOON: Chairperson, some persons were not straightforward and these persons who had applied initially were looked at sceptically, one could expect very little help from former colleagues.

ADV BOSMAN: I don't want you to speculate but I think you're going to have to, what did you think happened to all those documents?

BRIG SCHOON: Chairperson, in 1989 I retired from the Force and I heard that it was all destroyed, all those records were destroyed. And that is apparently the reason why no documents can be found.

ADV BOSMAN: That answers my question. I just wanted to know why you could not refresh your memory in this regard. Thank you very much.

MR BERGER: Thank you, Commissioner Bosman.

Mr Schoon, your evidence was that at some point a report did come through, a written report did come through referring to this operation.

BRIG SCHOON: Chairperson, it is logical that someone had to report. Bloemfontein Security Branch would have taken it up or picked it up. On the contrary they should have been aware of this operation because it would have been done with their full knowledge and soon after it was completed they wanted to try and find out what exactly had happened there, who were the persons who were killed, in order to inform us and then they would have reported this in written from.

MR BERGER: When did you find out, if at all, who the people were who had been killed in the attack?

BRIG SCHOON: Chairperson, I cannot recall that, I am not certain.

MR BERGER: Are you saying that you did find out at some point or that you never found out?

BRIG SCHOON: I believe later we would have found out, Chairperson.

MR BERGER: From whom?

BRIG SCHOON: From the sources and from newspaper reports, and as it would appear later from official documents that the ANC had submitted to the Amnesty Committee.

MR BERGER: No, I'm talking about 1985/1986.

BRIG SCHOON: No, then it would have been from security reports from Bloemfontein, and newspaper reports.

MR BERGER: Did you attend the medal ceremony?

BRIG SCHOON: No, Chairperson.

MR BERGER: I would just like to read to you what Mr Vermeulen says in his application, at page 125 of bundle 1. He says there that - this is just before the heading "Swaziland". He says -

BRIG SCHOON: No, Chairperson, I do not recall attending such a function.

MR BERGER: When did you for the first time become aware of the existence of the CCB or any of its previous incarnations?

BRIG SCHOON: Chairperson, the CCB first came to my attention during the Harms Commission, and that was in 1990, I think. Before that I was not aware of its existence.

MR BERGER: There's something that bothers me, well there are a few things, but in particular, paragraph 29 on page 8 of your statement you say the following -

Why are you relying amongst other things, on implied authority?

BRIG SCHOON: Chairperson, because of my position that I had occupied in the Security Branch, I believed that it was expected of me van my political bosses, who were the National Party at that stage, that I should do these things. And 40 years of my life I dedicated to keeping the National Party in power, and this is what I get as my reward today, sitting here.

MR BERGER: It could have been worse.

BRIG SCHOON: It could have.

MR BERGER: You could have been prosecuted.

BRIG SCHOON: The possibility still exists, we don't know whether we will be successful in this application.

MR BERGER: But you see what really bothers me is, you say you got an order from Gen - no, you say you got an order from, a joint order, from the CIC and Mr van der Merwe. Well that's what you originally said.

BRIG SCHOON: Yes.

MR BERGER: And now you say you got an order from Mr van der Merwe.

BRIG SCHOON: Yes.

MR BERGER: And you carried out that order.

BRIG SCHOON: Correct, Chairperson,

MR BERGER: You didn't go beyond the terms of that order.

BRIG SCHOON: No, Chairperson.

MR BERGER: So why are you relying on implied authority? You were carrying out an order.

BRIG SCHOON: That is so, Chairperson.

MR BERGER: So?

BRIG SCHOON: But in the process one may do a little bit extra and one wants to add that too.

MR BERGER: I don't understand that answer at all, what extra did you do?

BRIG SCHOON: The instruction was to go and wipe out this group who were ready, and I don't know whether there were any extras.

MR BERGER: Maybe this was also something that you were advised to put in.

BRIG SCHOON: This is in all our applications, Chairperson.

MR BERGER: Mr Schoon, what I want to put to you is that you haven't made full disclosure of all relevant facts.

BRIG SCHOON: Chairperson, to the best of my ability I have, I did not try to withhold anything.

MR BERGER: And the most significant fact that I put to you that you are withholding is the fact that you told Mr de Kock that the instruction came from "heel bo", and that when he asked you whether you meant the State President, you nodded in agreement.

BRIG SCHOON: Chairperson, I did not say that. And I would like to constitute right here that this is fabricated by Mr de Kock. I definitely did not tell him that PW Botha had authorised this operation.

MR BERGER: And you see it's significant and relevant because your withholding of that fact necessarily enables you to protect Mr van der Merwe and through him, other senior politicians.

BRIG SCHOON: Chairperson, I am not protecting anyone, in the least Gen van der Merwe. And what I said earlier, if I had known that former State President, PW Botha was involved here, I would gladly have said that to this Committee, but I cannot because it would not be the truth.

MR BERGER: No, you can't because in 1996 you didn't, in 1996 when you were asked you didn't mention PW Botha, you can't say that now, that's the reason.

BRIG SCHOON: In 1996 it was true and today it is still true that I had no knowledge that he had ever been involved in this incident.

CHAIRPERSON: Why would you so much like to say if he was involved here?

BRIG SCHOON: Chairperson, just like Col de Kock I am also aggrieved that they had left us in the lurch.

CHAIRPERSON: How did they leave you in the lurch?

BRIG SCHOON: Well they left us to our own devices with this amnesty process, not one of them came forward in order to admit that these persons worked to keep us in power. But I cannot perjure myself here in order to jeopardise anybody else.

MR BERGER: Who would you have expected to come and say the things that you are saying ought to have been said?

BRIG SCHOON: To use Col de Kock's words, the man right at the top, and that is PW Botha.

MR BERGER: Only him?

BRIG SCHOON: And de Klerk.

CHAIRPERSON: Why did they not know what you were doing?

BRIG SCHOON: I don't know, I was only one of the smaller pawns.

CHAIRPERSON: So why do you blame them? As far as you know they did not know.

BRIG SCHOON: They were the leaders.

CHAIRPERSON: So? As I understand your evidence you cannot say that they knew.

BRIG SCHOON: Exactly, Chairperson.

CHAIRPERSON: So why should they come here and say that "We stand behind these men because they acted on our behalf"?

BRIG SCHOON: Chairperson, if I had any proof to that effect, I would have disclosed it.

MR BERGER: Thank you, I have no further questions.

CROSS-EXAMINATION BY MR PATEL: Mr Schoon, can you tell us, at the time that Mr de Kock was deployed at Ladybrand, under whose command would he have fallen? Would it still be yours or would it be the head of Ladybrand Security Branch?

BRIG SCHOON: It would be under the command of the Security Branch Commander in Bloemfontein.

MR PATEL: And who would that have been?

BRIG SCHOON: I'm not certain who it was at that stage, I think it may have been Col Smith back then, or Brig Smith, I'm not certain.

MR PATEL: Okay. And the persons at Ladybrand Security Branch who filed reports to your - made reports regarding Lesotho activities, or the activities of the ANC activists in Lesotho, available to you, who specifically in Ladybrand would have done that?

BRIG SCHOON: It would have been Ladybrand, Chairperson.

MR PATEL: Who at Ladybrand would have passed on that information?

BRIG SCHOON: If I recall correctly, it was either Sgt or W/O Coetzee.

MR PATEL: Coetzee.

BRIG SCHOON: Yes.

MR PATEL: Can you give us an initial, Coetzee is a fairly common surname.

BRIG SCHOON: No, I think there was only one Coetzee there. Or there was only one Coetzee there.

MR PATEL: Alright. And according to your knowledge at the time, would the source or the informer have been handled by the Ladybrand Security Branch or would it have been handled by Vlakplaas members?

BRIG SCHOON: No, Chairperson, the source would have been handled by Ladybrand, but I believe that Vlakplaas' people would have requested to have access to him and that would have been acceded to.

MR PATEL: So the basis upon, or the information that was placed at your disposal, the source of that information would have to a large extent have been as a result of the work from, is it Mr Coetzee and Mr de Kock from your department?

BRIG SCHOON: Yes, that is so, Chairperson.

MR PATEL: Can you tell whether during the planning of this operation, because I believe the planning was done from Ladybrand, whether the Ladybrand Security Branch members would have been involved in that process.

BRIG SCHOON: Chairperson, I was not there, but I believe that they would have been involved in the operation.

MS PATEL: Why do you believe they would have been involved?

BRIG SCHOON: Because that is where Col de Kock and his group would have received the gross of their information.

MR PATEL: Would you grant me a moment please. Alright, thank you Sir, that is all.

RE-EXAMINATION BY MR VISSER: One question, thank you Chairperson.

You have listened to the evidence of Gen van der Merwe here, is that correct?

BRIG SCHOON: That is correct, Chairperson.

MR VISSER: Did you hear whom he said had to accept responsibility for taking this decision?

BRIG SCHOON: He himself, Chairperson.

MR VISSER: And when you refer in Exhibit C to his evidence with regard to Mr PW Botha, can you refer to anything else but this?

BRIG SCHOON: No, Chairperson.

MR VISSER: Thank you, Mr Chairman.

ADV BOSMAN: I have no questions, thank you Chairperson.

JUDGE KHAMPEPE: I have one question, Chairperson.

Mr Schoon, as you are aware we are required to consider whether you have satisfied the requirement of full disclosure, so inasmuch as I have a great deal of sympathy with your inability to recollect the events that happened as far back as 1981, unfortunately one has to consider the totality of your evidence and that entails having to weigh your responses to questions that have been put by various counsel with regard to certain issues. Now there is only one issue that concerns me, Mr Schoon, and this relates to the information that you disclosed in your original application on the 13th of December 1996. What I want to know is, whether at the time when you completed your written application, you had had an opportunity to consult with Mr van der Merwe, in order to refresh your memory about the events that had happened quite some time ago.

BRIG SCHOON: Yes, Chairperson, I did have the opportunity.

JUDGE KHAMPEPE: The reason why I'm asking you this question is because your response with regard to approval having been obtained from CIC, is similar to Mr van der Merwe's. Now a that stage did you know that the CIC did not have the capacity to authorise such an operation?

BRIG SCHOON: No, Chairperson, and that is why I had said here in my evidence today, that only much later did I realise they did not have any executive powers.

CHAIRPERSON: Why are you saying they did not?

BRIG SCHOON: To give orders.

CHAIRPERSON: Why? The evidence of Mr van der Merwe is that they did not have the capacity because it was illegal, they could not give any illegal instructions.

BRIG SCHOON: No, Chairperson, I think his evidence was that they had no executive powers, they fulfilled a coordinating intelligence capacity and not an executive, they were not an executive authority.

CHAIRPERSON: Now what made you think back then that they had such powers?

BRIG SCHOON: Chairperson, back then I did not know what their function was, it is only now with these hearings that it came to my attention.

JUDGE KHAMPEPE: But did you - I'm sure during your consultation with Mr van der Merwe, you must have gone through the question of whether or not CIC authorised the operation. I mean that would have been a very simple questions to consider, for purposes of completing your application in the manner in which you did.

BRIG SCHOON: Chairperson, I think my application was handed in before he handed in his and it is possible that he might have refreshed his memory from my application.

JUDGE KHAMPEPE: But was this issue discussed between the two of you?

BRIG SCHOON: No, Chairperson, I don't recall that we discussed it. Not at that stage.

JUDGE KHAMPEPE: If it wasn't discussed, and one would have imagined that it would have been an important issue for discussion which impinges on whether you would be capable of being granted amnesty or not, do you know why it wasn't discussed?

BRIG SCHOON: Chairperson, I believe no-one noted it at that stage.

JUDGE KHAMPEPE: Did you not ask Mr van der Merwe about the document that was submitted by Mr de Kock, which was written in the red ballpoint, and to your knowledge today, to your knowledge then, was taken to a CIC meeting as you have already testified that you recollect that Mr van der Merwe came to your office whilst Mr de Kock was also in your office, and that's where he took possession of that document in the red ink, in order to take it to the CIC meeting, were those facts not covered by you during your consultation with Mr van der Merwe?

BRIG SCHOON: No, Chairperson.

JUDGE KHAMPEPE: If not, what facts were you able to cover during your consultation, because that consultation was intended to refresh your memory about an incident that you must have forgotten about.

BRIG SCHOON: Chairperson, I think during the time when we handed in our applications, I had more information than Gen van der Merwe had with regard to this incident, because he refreshed his memory from this red ink document that I had mentioned. And that I obtained from Col de Kock's criminal trial, from the documents that I had studied of that.

JUDGE KHAMPEPE: Yes. Thank you.

CHAIRPERSON: Mr Schoon, ...(indistinct)

INTERPRETER: The speaker's microphone is not on.

CHAIRPERSON: ... did anyone approach you after the incident when the government denied that it was them, in order to find out what happened there and who had done it?

BRIG SCHOON: No-one, Chairperson, absolutely no-one.

CHAIRPERSON: Do you have knowledge of anyone who was approached by the politicians?

BRIG SCHOON: I don't know, Chairperson.

CHAIRPERSON: Because I would have expected that if they did not know, then they should have asked someone, specifically if they sent this letter before the time.

BRIG SCHOON: That is only logical, Chairperson, but I do not know of anyone.

CHAIRPERSON: You have a few times answered here in your evidence upon questions which were put to you, that you in your written evidence had said something because a legal team had told you to say that. Did I understand that correctly?

BRIG SCHOON: Not told - can you repeat the question please, so that I can understand it properly.

CHAIRPERSON: When you were asked certain questions - I would just like to hear from you whether I understand correctly, did I understand that in answer to certain of those questions you said that your written evidence states so because your legal team told you to give that evidence?

BRIG SCHOON: No, they did not tell me to testify to that effect, Adv Visser drew up the statements, he has the things on his computer and it is printed thereon and he gives it to me to study it and says "Listen, do you agree with this and that?" And if you agree, then he says "Very well, we'll write it as such". This was only to facilitate the process.

CHAIRPERSON: Mr Schoon that is not what I'm asking. I would just like to find out what you testified, I would like to find out and find confirmation of what you had said during your evidence, do you understand?

BRIG SCHOON: Yes.

CHAIRPERSON: I understood that in answer to certain questions you answered that certain answers or certain evidence in your written statement states that because your legal advisor had told you to say that.

BRIG SCHOON: Yes, Chairperson. This paragraph 29 ...(intervention)

CHAIRPERSON: I am not concerned as to what paragraph it is, I'm only asking.

BRIG SCHOON: ... and upon advice of the legal representative, that paragraph was included.

CHAIRPERSON: Why did you need such advice?

BRIG SCHOON: Chairperson, that is why one goes to an attorney and an advocate because I am a layman.

CHAIRPERSON: But these are facts, these are not legal points. This happened or it didn't happen. The reference to someone else's statement with regard to who accepts responsibility for what had happened, that is a fact, this is not about any legal points, how is it that you deemed it necessary? Could you yourself not have told him "Listen, I accept responsibility".

BRIG SCHOON: Are we referring to paragraph 29 here, Chairperson?

CHAIRPERSON: Whatever that may be, you have said that is why you went to an attorney. I would just like to point out to you that a legal advisor can advise you where you do not understand the legal points, but you will tell him what the facts are, is that not so?

BRIG SCHOON: That is so, Chairperson.

CHAIRPERSON: And one of the opportunities is about the factual position, not the legal position, so I want to know from you why you deemed it necessary to take his advice and why could you not do it yourself.

BRIG SCHOON: Chairperson, I did not know at that stage. If we're referring to paragraph 29.

JUDGE KHAMPEPE: Mr Visser, I could be speaking under correction, didn't Mr Schoon make reference to two different paragraphs or even three? It certainly wasn't one. I'm just trying to get a note thereof, I'm not succeeding. He actually mentioned three different paragraphs in which he had been given advice by his legal representatives. Can you assist us with those paragraphs?

MR VISSER: I was hoping that I'd be asked, Chairperson, because it seems that the legal advisors are on trial here. Chairperson, in the first instance, when it first came to light was when my learned friend, Mr Berger, was asking Mr Schoon in regard to the word "approved", and he was putting to him that in his amnesty application he had used the word "approved", why does he know use the word, the word "Die KIK het nie beswaar gehad nie", and Schoon said "That is what I was advised to say", in the sense that that is the choice of words in the light of the information which then existed, when this Exhibit C was drawn, used by the lawyer. Which is quite correct. Because the lawyer could simply never had said then at that stage "It was approved", because that wasn't the information any longer.

The other issue related to paragraph 29, which is purely a legal matter, and what Schoon is saying is, "That was inserted here because the lawyers advised me to insert this in my affidavit." He does not only insert it here, as you well know, Justice Khampepe, it is inserted in the general background to amnesty applications concerning members of the Security Forces as well, and there it is dealt with in some detail. It has also been dealt with in the written arguments which we have handed in from the bar, to various Committees throughout. So this is not a new thing. The point is, Schoon says "I was advised to put this in here", he takes it no further than that.

JUDGE KHAMPEPE: I'm sure you'll be able to give us an elaborate address when an appropriate time comes, I just wanted an indication of the relevant paragraphs. You've mentioned now two paragraphs, I think already Mr Schoon has responded to the Chair's question about paragraph 29, which is the other paragraph?

MR BERGER: Chairperson, if I can assist ...(intervention)

MR VISSER: I'm sorry, I'm not finished yet.

Chairperson, I'm answering your question. There was also a third and that is at page 6, paragraph 18, where he was asked -

which was a reasonably unfair question, but be that as it may, and he was told that -

and Schoon couldn't remember at the time why this was and he said it was probably because my legal advisor said. Now even if it is, the question is, Chairperson, so what? That is certainly the function of the legal advisor, to draw your attention to the fact that there is similar evidence or evidence in van der Merwe's testimony that can be of assistance. So it takes the matter no further at all, Chairperson, but those are the three issues.

JUDGE KHAMPEPE: Well thanks for at least assisting us with regard to the identity of those relevant paragraphs.

CHAIRPERSON: Mr Visser, did you want to say ...(indistinct - no microphone)

MR VISSER: I'm sorry, Chairperson?

CHAIRPERSON: ...(indistinct - no microphone)

MR VISSER: No I'm through, Chairperson, with the witness, thank you.