CHAIRPERSON: Good morning. We're resume this hearing for argument. I just want to indicate that arguments need not be transcribed, so they need not be taped, but I suppose it needs to be translated for the purposes of the public. Who's going to go first?

UNIDENTIFIED SPEAKER: ... (indistinct - mike not on)

MR VISSER: I don't have any answer to that argument of my learned friend, Chairperson, I think just to save time we should start.

CHAIRPERSON: Mr Visser can I just tell you that we've discussed very briefly the issues that raise problems with us and we don't need to hear from anybody arguments as to the background of this whole operation. We've heard it a few times before. Let us get to the facts of this attack and Mr Visser, you appear for Gen van der Merwe and Brig Schoon and the implicated Johan Coetzee.

CHAIRPERSON: Just help me refresh my memory. How does Schoon come into this.

MR VISSER: Chairperson what happened was that after information was received and as we now know there was a discussion with the CIC, at some point which is in dispute apparently between myself and Mr Berger as to when it occurred, Mr van der Merwe gave Schoon a directive that he should establish what the possibilities are of an operation to be launched in Lesotho. Schoon gave that instruction through to de Kock and de Kock came back with a report and that was given to Van der Merwe and then it's an issue of him discussing it again with members of the CIC.

CHAIRPERSON: So really, would you agree that Schoon's position was more or less the same as de Kock?

MR VISSER: Well in a sense even less, Chairperson.

CHAIRPERSON: Well maybe even less.

MR VISSER: Yes, we would argue that he was a conduit pipe and he really did ...

CHAIRPERSON: He didn't really didn't do anything practical or physical but ...

MR VISSER: No. No.

CHAIRPERSON: He carried out an order from Van der Merwe, gave it to as did de Kock.

MR VISSER: Yes, correct.

JUDGE KHAMPEPE: He was, as you say, a conduit pipe, he merely conveyed an order that was given to de Kock via him by Mr van der Merwe.

MR VISSER: Ja. If Van der Merwe had spoke to de Kock directly, it would have made absolutely no difference to the case.

CHAIRPERSON: Ja, that's why I'm saying he was one really in a position of a foot soldier, if you want to call it that.

MR VISSER: Yes, Chairperson.

CHAIRPERSON: He may have been a higher ranking officer.

MR VISSER: I think it's fair to say that below Van der Merwe, everybody was in the position of a foot soldier.

CHAIRPERSON: Now in respect of that, then I may come back to you depending on what Mr Berger's got to argue, you needn't argue on Mr Schoon.

MR VISSER: Thank you Chairperson.

CHAIRPERSON: But Mr Van der Merwe, you're going to have to argue to us, persuade us which one of his versions we should believe. Secondly, whether the version he puts before us on which he relies for the application, is one, or let's put it this way, let us interpret first so that we don't talk at cross-purposes. His version is that he was a policeman and by virtue of their own rules, only the military could attack, make attacks, outside the borders. Van der Merwe being a policeman found it necessary, in his favour I assume, to embark on this attack and he says that he mentioned it to someone who was on the way to a CIC meeting. That's one of his versions. The Chairman of that institution, if you want to call it that, testified here and let's now not talk about his credibility and how he performed here, the fact of the matter is that he denies any memory or knowledge that that occurred. I may point out to you also that that same witness testified that there was never an occurrence where that institution met with a Chairman other than himself, I'm talking about Barnard.

Now the question then to be answered, why, assuming Van der Merwe is telling us the truth, which I'm not saying is so, why did he find it necessary to mention it to somebody else, and over an above that, whatever the reason for that is or was, if one of those reasons was to acquire permission to embark on this attack, he didn't get it and that's basically the crux of our problem as far as Mr van der Merwe's concerned.

MR VISSER: Yes, Chairperson, that certainly narrows it down considerably. Perhaps for me to have some order in my address to you, could I perhaps ask you to look at the written argument which we have prepared and placed before you.

CHAIRPERSON: I see Mr Lamey's the only sensible person here, he submitted short heads of argument.

MR VISSER: Yes, indeed, it's a very brave person that does that Chairperson.

CHAIRPERSON: Sometimes Mr Visser, you do well not to say too many things.

MR VISSER; That's also true. Mine would be the thick one, the thickest. That's the one.

MR VISSER IN ARGUMENT: Chairperson, if I may go through it with you very briefly, from page 1 to page 41, what is dealt with there, is the very issue of background which you referred to earlier. I wasn't intending to deal with that in any detail, what I did there was just to mention the issues which have come up during amnesty applications and for as far as there are decisions that have been handed down by various Committees and sub-Committees on amnesty, I have referred you to those for easy reference.

Chairperson, may I ask you to turn to page 40? Very briefly we refer, Chairperson, to the background of violence and terror which reigned in the country at the time. It speaks for itself and I would then proceed to a summary of the relevant facts of the incident at page 41.

Chairperson again part of the background which I believe will fall under your initial remarks, would be the importance of Lesotho in the conflict, we don't believe, with respect, that there can be any doubt as to the importance of Lesotho and what Lesotho was used for by MK at the time. What we say, Chairperson at page 42, is the importance, we emphasise the importance of the diplomatic tension which was going on at the time and the fact that diplomatic negotiations had not proved to be a success.

Chairperson, the information received, I know this does not fall within what you informed me a little while ago as something that bothers you, but Chairperson, it is important, with respect, to have regard to the issue of how information came to hand, because that, in our submission, filters through to the other evidence as to what happened and very briefly, Chairperson, it is clear on the evidence of Dr Neil Barnard, sorry, I beg your pardon, of Mr van Heerden, read together with the documentation which has come to hand and we argued this, that prior to the meeting of the CIC on the 3rd of December 1985, information had come through. Now that information, Chairperson is stated in paragraph 209 and we say Chairperson, that it is clear on the evidence that the information received by the Security Branch of Ladybrand indicated that some 30 MKs had arrived in Lesotho, bringing the total to approximately 80 MK soldiers present in that country and we refer to the record.

Chairperson, the importance of this is that that is precisely what was contained in the minute of the CIC meeting on the 3rd of December. The information was relayed to headquarters, Van der Merwe at that time was second in command, Chairperson, Schutte was the Head of Security, but he was earmarked for a transfer and Van der Merwe, then a Brigadier, was in effective control of the Security Branch. He took a serious view of the situation Chairperson and what is important in our submission is sub-paragraph 6 of paragraph 209. You would have noticed in the minutes of the CIC meeting ...(intervention)

CHAIRPERSON: Page what is that?

MR VISSER: Page 43, paragraph 209, (6), in the minute of the CIC meeting of the 5th of November, Chairperson, that's at bundle 4, page 100, paragraph 3(e), it was stressed that the Department of Foreign Affairs, wanted to be kept fully informed about ANC activities in neighbouring states.

Now Chairperson, we submit that that must have been one of the reasons on the probabilities, why Van der Merwe would at least have spoken to van Heerden and in fact did, on van Heerden's own evidence. He sent him a note with the information. That's in keeping, we say, with the request ...(intervention)

CHAIRPERSON: You're talking about the arrival of the 30 soldiers?

MR VISSER: Yes, I'm only there at this stage. There were four sets of information, Chairperson and we've tried to specify them, but the first information that arrived, Van der Merwe told the Department of Foreign Affairs about it and we say that in all probability, Chairperson, because its a long time ago and people's memories are vague, it must have been as a result of this request which was minuted on the 5th of November's meeting.

Now Chairperson, according to the evidence of Mr van Heerden on the 29th November, that's at the record, page 1759, this influx of the 30 MKs into Lesotho bringing it up to a total of 80, was communicated to the Department of Foreign Affairs and it is also clear and it is, in our submission, of extreme importance, that Van der Merwe requested the Department of Foreign Affairs to give fair notice to Lesotho that if they didn't do something about it, the South African Government, which means obviously the police, would do something.

CHAIRPERSON: Does that mean?

MR VISSER: Well, who else, Chairperson?

CHAIRPERSON: The military.

MR VISSER: Van der Merwe couldn't speak on behalf of the Military.

CHAIRPERSON: No, no, Mr Visser, that's our problem. The Government of the time, made their own rules at that time and for foreign attacks, that fell squarely in the parameters of the Military.

MR VISSER: The legal attacks, yes. That is why Chairperson, it is so important, ...(intervention)

CHAIRPERSON: No, no, no, no, Mr Visser, let us get something straight here. There's document upon document produced here, certain guidelines and the handling of liberation movement's activities within the country fell in the lap of the police.

MR VISSER: Yes.

CHAIRPERSON: The dealing, rightly or wrongly with liberation movement activities outside the borders of South Africa was left to the Military.

MR VISSER: Yes.

CHAIRPERSON: If that be the case, and I've no reason to believe that that was not the case, because that comes in documentation form, if Van der Merwe asked the Foreign Affairs people to inform Lesotho that: "We are aware of this and take heed, if you don't do anything about it, something is going to happen." A conclusion that that was fair warning that Van der Merwe and the police would do something, is not the only logical conclusion.

MR VISSER: Fair enough. No, I don't argue with that. I don't argue with that at all, but what I'm submitting to you Chairperson is Van der Merwe is in Security of the Police. If they had to stick to the rules, as it were, why would Van der Merwe concern himself whatever about what's going on in Lesotho? That would then be the province of Military Intelligence, but that's not the way it worked in practice, we know that from many amnesty applications. The Security Police ...(intervention)

CHAIRPERSON: Are you suggesting that Van der Merwe could go about his business without having permission, without informing other people, if he was going across the border?

MR VISSER: Absolutely, that's what happened, time on time again.

CHAIRPERSON: What was the purpose of going to tell Barnard or van Heerden about it?

MR VISSER: Well, we were going to argue that because of the very circumstances ...(intervention)

CHAIRPERSON: ... (indistinct- speaking simultaneously) been nice.

MR VISSER: No Chairperson, no, there were very compelling reasons. Van der Merwe told you that he was second in command of the Security Police at the time. He told you that there was diplomatic tension, in which the State President of the time was a central figure and from that point of view he said that he wanted to bounce the idea, he would have wanted to, because he can't remember Chairperson. You will recall from his evidence, from his amnesty application, throughout his evidence, he cannot remember actually speaking to someone, but he says that he saw that Schoon and de Kock said what they said and he says that the probabilities are that he would have. Now Van der Merwe's evidence is very clear. He is not relying on authority, legal authority, to have acted because that authority would never have been forthcoming for the very reason put to me by you a moment ago. The Security Police could not act in Lesotho, in a foreign country, only the Military could, in terms of international law, or as it was interpreted to be, in terms of international law military action could be undertaken, so there was no way that Van der Merwe could ever have thought that he could have obtained "authority" in the sense of a legal mandate from anyone, because nobody would have given it to him, but what was important to Van der Merwe and that was his clear evidence, in my respectful submission, was that he was worried. He was putting, as he put it, his future on the line. He was worried because of the situation that pertained at the time and therefore he went to the CIC. Now why would he have done that? He would have done that because on the CIC we had representation of all the Security Structures in the country, Military Intelligence was represented there, the Army was represented there, Chairperson, what better place would a person choose to go to say: "Look, there's a build-up of MK soldiers in Lesotho, it is a very serious situation and something should be done", than the CIC? Because there the representative of the Defence Force could say to Van der Merwe,: "Now look here, this has got nothing to do with you. We hear what you say, we'll take it from here."

CHAIRPERSON: What was wrong with that?

MR VISSER: Nothing was wrong with that, except that it didn't happen. It clearly didn't happen. Military Intelligence did nothing. The Defence Force did nothing, on the facts before us. So van Heerden tells the meeting: "Van der Merwe has informed me that this is the situation and he has requested the Department of Foreign Affairs to send a note and warn Lesotho that if they don't do something about it, the RSA would." Now who could that possibly refer to other than the Police, because it comes from Van der Merwe. The information comes from Van der Merwe, the request comes from Van der Merwe and van Heerden in his evidence was asked about that and he was unequivocal about it. He knew that Van der Merwe was serious about the whole issue and he, of the two witnesses, conceded that he realised at the time that the police intended to act. So Chairperson, there can be little doubt about the fact that Van der Merwe was the one who was going to act.

Now if it had been better days and if the Defence Force representative had said: "Now hang on, you mustn't do this, you haven't got any authority to go to Lesotho. We will speak to our Minister and we will go through the guidelines and the processes laid down by the State Security Council and we will go and act", it would have been an entirely different matter and we wouldn't have been here today, but that clearly didn't happen. There's no evidence to indicate that that happened, in fact the evidence is the contrary.

The evidence is that at the State Security Council meeting on the 20th of December, nobody knew about the raid, so it's quite clear that the Defence Force didn't act in terms of their guidelines in this particular instance. What happened was that the police acted. Now the moment the police acted it was unlawful, we know that. There was no rule in international law, nor was there any authorisation by any statute of the Republic of South Africa that authorised the police to go into a foreign country and to go and kill people in that foreign country. We know that. That, Chairperson, is the reason why Van der Merwe's evidence is quite clear. He said: "I accept the responsibility for the decision as well as the execution of this" ...(intervention)

CHAIRPERSON: Mr Visser, in whose interests did he act?

MR VISSER: Quite clearly he acted in the interests of South Africa Chairperson, as he saw it.

CHAIRPERSON: And the Government of the time?

MR VISSER: Absolutely.

CHAIRPERSON: Now what would be the position if he acted contrary to the Government's policy?

MR VISSER: If he believed, Chairperson, in terms of the wording of the Act, that what he did was to support the Government, to keep the Government's policy in tact, then Chairperson, in terms of the TRC Act, he's entitled to amnesty.

CHAIRPERSON: No, but the policy of the then Government was that only the military will go across the border, that was the policy.

MR VISSER: Yes, that was the overt policy, yes.

CHAIRPERSON: Well, whether it was overt or something else, the point of the matter is that you yourself argued that he didn't seek permission, because he knew he wouldn't get it.

MR VISSER: Well, he couldn't have.

CHAIRPERSON: It was contrary to the people in whose interests he acted.

MR VISSER: Chairperson, and that is the very point of the TRC Act, is that you can only obtain amnesty for that which you did which was unlawful. Obviously he acted unlawfully, that's the reason why he's here.

CHAIRPERSON: But what if the South African Government at that time had a policy that they didn't want to trap people in Lesotho?

MR VISSER: Well, Chairperson, then you would have had to sit today and decide whether, from the point of view of Van der Merwe and all the people who have applied for amnesty before you, they did what they did in the interests against a liberation movement and secondly in the interests of the Government, in terms of their duties as they saw it. That's the only question. But the fact is Chairperson, it must be unlawful for us to be here in the first place.

CHAIRPERSON: I'm not talking about that kind of lawfulness. I'm talking about acting contrary to the policy of those in whose interest you say you act. For example, if one of the liberation movements members had come to apply here for murder and it wasn't the policy of that particular liberation movement on behalf of whom he says he acted to have an arms struggle, where would that application be?

MR VISSER: Chairperson, the answer is in the history of what has happened before the Amnesty Committee. Many applicants who were previously MK soldiers, applied for amnesty and a person like Aboobaker Ismail for example, said that the orders that came from the top were often misinterpreted by the people on the ground because of poor communications and they acted often not according to the policy of the ANC and MK and a good example is the Church Street bomb, where you know that 267 or 65 people were victims, of which less than a third were in fact in any way to be connected to the military and Mr Ismail said that's a problem which we have.

CHAIRPERSON: Mr Visser, I know the question I asked you presents problems, but let's deal with it. I gave a simple example of an MK soldier, let's say he was of the ANC.

MR VISSER: Yes.

CHAIRPERSON: If the ANC or Aboobaker, if the ANC did not have a policy of an arms struggle, do you think Aboobaker would be entitled to amnesty?

MR VISSER: No, Chairperson, because the whole of the TRC Act is based on the supposition that there was an arms struggle.

CHAIRPERSON: No, I don't - well maybe that's your view, I'm not going to argue about that now, but the point of the matter is that I'm trying to make a point to you that if the policy, on behalf of whom the applicant alleges he acted, is contravened, is the applicant entitled to amnesty?

MR VISSER: If all other things are equal, yes Chairperson, with respect and it's happened all along, it has happened that people did things which they did because they believed it was in the interest of the Government, which the Government, through for example Mr F W de Klerk, denies ever having been done in the interests of the Government. So there you are, it's the same situation, Chairperson. It has always been against the law to murder somebody. How does that differ from where a policeman acts against a statute, as opposed to when it acts against the policy of the Government? It was the policy of the Government to resist the armed struggle with everything in its might, that's a very wide concept, Chairperson. Van der Merwe says what he did he believed to be in the interests of the Government and the National Party.

CHAIRPERSON: Now tell me Mr Visser, something that crossed my mind during the hearing, why did Mr van der Merwe not try to approach the head of the army personally? They're both institutions of the Government, or the then Government and say: "Look, that's your job, I've given you all the information, do something."

MR VISSER: Yes.

CHAIRPERSON: Or were they again in that mode of playing games with each other and ticking off victories.

MR VISSER: I don't believe there was any issue of playing games, Chairperson. The first thing is of course, Van der Merwe wasn't asked this specifically, but if you ask me, with respect, the answer is an obvious one, he did tell the Military at the CIC meeting, we know that now. They were informed.

JUDGE KHAMPEPE: Were they informed that he was going to act? Do we have that kind of evidence?

MR VISSER: Chairperson, you will recall the cross-examination of Mr van Heerden and Dr Barnard about what they thought Van der Merwe intended and van Heerden readily conceded that ...(intervention)

JUDGE KHAMPEPE: I know about that. I'm talking about the Military specifically.

MR VISSER: I'm trying to answer that question. If van Heerden realised it with the same information as the Military had at that CIC meeting, because van Heerden tabled that information, why wouldn't the Military then have had the same idea? What could they possibly have thought?

CHAIRPERSON: No.

JUDGE KHAMPEPE: But the evidence is not there that the military knew that Mr van der Merwe was going to take action against Lesotho.

MR VISSER: I understand that, Chairperson. What I'm submitting to you is that they couldn't have been in any doubt of what the intention of Van der Merwe was.

CHAIRPERSON: Well, Mr Visser ...(intervention)

JUDGE KHAMPEPE: Why?

CHAIRPERSON: Ja.

MR VISSER; Because it says: "If you Lesotho, don't take action, the South African Government will".

JUDGE KHAMPEPE: Which does not mean that if reference is made to South Africa having to take action, it must be the Police and only the Police which can take such an action.

MR VISSER: Conceded. Conceded, but in the context of the meeting, who else would it have been? All of this comes from Van der Merwe?

JUDGE KHAMPEPE: The Military.

MR VISSER: But Chairperson, if you look at the history of what we have in front of us, the Military never did anything. The only thing the Military did, in a sense, was that van Vuuren in his situation report said: "The time for talking is over, action should be taken", that's all the Military ...(intervention)

CHAIRPERSON: No, Mr Visser, let's not talk about those people that certain English Rugby Captains would happily describe, why didn't he talk - Van der Merwe wasn't in that meeting.

MR VISSER: In which meeting?

CHAIRPERSON: Where this request was made.

MR VISSER: No, he was. Oh yes he was. He asked the Foreign Affairs, Chairperson, no he was there, he was present. He was present there Chairperson. If you look at the minute of the meeting of the 3rd of December, if you look at volume 3, page 72, Van der Merwe is there.

JUDGE KHAMPEPE: I think what the Chair is trying to point out is that during the meeting of Mr van der Merwe and Mr van Heerden, no one else was present. I mean it was Mr van der Merwe speaking to Foreign Affairs about what he intended to do if no action was taken, well if Lesotho did not react to warnings from the Foreign Affairs Department. I think the Chair is referring to that because we are aware that Mr van der Merwe was present during the 3rd December CIC meeting.

MR VISSER: I understand the question but can we just stay with the sequence of events? On the 29th of November 1985, van der Merwe sends a note to the Department of Foreign Affairs. Van Heerden receives the note. So there's no meeting that we know of between Van der Merwe and van Heerden. That's the first point. After that occurred, the meeting of the CIC takes place on the 3rd of December where the information which was contained in the note of the 29th of November and Mr van Heerden confirmed that, was tabled. Now there we have all the role players in the security community present, there's no issue about that. You can just look at the list of who was present, they were all there. So with respect, Chairperson, I can understand if you say: "Well, after that and when Van der Merwe received the last information about the hand grenades which I intend to come to still, he should then have approached the military". Yes, perhaps he should have, perhaps he should have.

JUDGE KHAMPEPE: Mr Visser, maybe I'm not on the same wavelength with you. You are saying that the military didn't take any action when they knew that the police intended to take action against Lesotho and you base that on the report that Mr van der Merwe, the note that Mr van der Merwe gave to Mr van Heerden on behalf of the Department of Foreign Affairs. How could Mr van der Merwe have known what was intended by the Military in the meantime, that is before action was ultimately launched by him on Lesotho?

MR VISSER: Chairperson, but the facts before us, tell us what we all now know, that the Military did not intend taking any action. There was no objection.

JUDGE KHAMPEPE: No, I don't know. I mean where is that kind of evidence?

MR VISSER: Because van Vuuren in his situation report, Chairperson, dated the 16th of December, tabled at the meeting of the State Security Council ...(intervention)

JUDGE KHAMPEPE: Which Mr van der Merwe was not even aware of.

MR VISSER: Chairperson that - I'm just trying to answer the question of whether the Military did anything. They did nothing because at that stage, it is clear from the report of van Vuuren that they sought authorisation or they sought the SSC to act.

CHAIRPERSON: Answer my question then, that Van der Merwe didn't know them at that time.

MR VISSER: Well, let's assume he didn't, Chairperson.

CHAIRPERSON: Well, what was his plan then?

MR VISSER: His plan was to monitor the situation, to tell people of the seriousness of the situation, to have a warning issued to Lesotho that if they didn't act, the RSA Government would. Let's assume it was the Military.

CHAIRPERSON: What was he planning at that time on the 3rd of December when this warning went out?

MR VISSER: Well, Chairperson, I don't believe that there was any actual planning at that stage on the evidence.

CHAIRPERSON: So then there would be no reason to go to the Military?

MR VISSER: Well perhaps, perhaps not, Chairperson, we're speculating.

CHAIRPERSON: But why didn't he tell us then?

MR VISSER: But he wasn't asked all of this. None of this he was asked.

CHAIRPERSON: Well, maybe he should have been asked.

MR VISSER: Well Chairperson, he's here, he can give you the evidence.

CHAIRPERSON: Now aside from that, we are arguing about him arranging for Lesotho Government to be warned.

MR VISSER: Yes.

CHAIRPERSON: The actual reason for the eventual attack was one of urgent proportions because he had been informed that here are the Meyer group, intending to come create some Christmas mayhem.

MR VISSER: And then it was confirmed by the two hand grenades, Chairperson.

CHAIRPERSON: Ja. At that stage, now we're long past with all these fancy meetings and warnings and knowing that there are 80 MK soldiers in Lesotho. Was there any reason why Van der Merwe couldn't go to his counterpart in Military and say: "Look here, we have now this urgent situation. This is our information. Are you going to do something about it or not?"

MR VISSER: Well, Chairperson, presumably not.

CHAIRPERSON: Why wouldn't he have done that?

MR VISSER: Well he wasn't asked that Chairperson. I can't give evidence. He wasn't asked that. He was asked that by nobody.

CHAIRPERSON: Well Mr Visser, I don't know about hiding behind this that he wasn't asked that. I mean he was supposed to give evidence.

MR VISSER: But he did.

JUDGE KHAMPEPE: Mr Visser, just to come to Mr van der Merwe's rescue, didn't he do that probably because he thought he had already consulted with CIC members and there was no opposition to his intention to launch an attack on Lesotho? Isn't that the evidence before us?

MR VISSER: Well that was his evidence.

JUDGE KHAMPEPE: Yes.

MR VISSER: That the probabilities are that he would have bounced it off to make certain that he wasn't stepping on anybody else's toes who might be planning an operation, in fact the Military who might be planning an operation in Lesotho, because it would have been crazy for Van der Merwe to go ahead with an operation if he knew that the Military was going to do an operation.

JUDGE KHAMPEPE: And as you say, it could have destroyed his career if he had gone on his own, without having bounced such an idea with his colleagues within that ...(indistinct - mike not on)

MR VISSER: Yes, absolutely Chairperson. But that was his evidence, but the point is he wasn't asked: "Why didn't you go talk to the Military?" The fact of the matter is he says: "I took the decision on myself."

JUDGE KHAMPEPE: But he does specifically say: "I spoke to CIC because even the Military was represented in the same CIC. If I had not, in all probability, if I had not bounced this idea with CIC, my career would have been destroyed. This is a decision which I wouldn't have taken on my own."

MR VISSER: That is correct, Chairperson and that is also my submission to you. Placed in the position where Van der Merwe found himself at the time, he would have been crazy not to bounce the idea off somebody particularly and if it's only for that one reason, particularly because of the diplomatic tensions that existed at the time between the RSA and Lesotho and let us not forget the State President was a central figure in, according to the evidence, in that diplomatic furore that was going on. So, just imagine Van der Merwe taking this on his own and off his own bat, as it were, and it turns out that if he had consulted, he would have heard that the Military had already been given the go ahead, or that there was some diplomatic drive going on which would have sorted out the problem. How would he have looked? As Judge Khampepe says, he says: "My career would have been destroyed." That is the reason, Chairperson, why there is nothing sinister in accepting the evidence of Van der Merwe that although he cannot remember exactly how it came about that he would have bounced it off and we know from the objective facts, that that evidence is now vindicated by the minutes of the meeting of the CIC of the 3rd of December, because at that meeting the information is tabled. It goes further.

JUDGE KHAMPEPE: I have just one serious problem with that, having said that about Mr van der Merwe and Van der Merwe's evidence, I have a problem in that there doesn't seem to have been such a consultation or discussion with any of the CIC members, that is the evidence before us.

MR VISSER: No Chairperson, that comes later. That comes later, in spite of what my learned friend Mr Berger wants you to believe. The - if we can call it the authorisation or the decision wasn't taken on the 3rd of December, that's quite clear on the evidence and we will deal with that, but that comes later. It is clear that whatever happened later wasn't at a full CIC meeting.

CHAIRPERSON: Mr Visser at the risk of misunderstanding each other, I think we agree there was no authorisation, you said so just now.

MR VISSER: There could never have been authorisation.

CHAIRPERSON: So let's not talk about authorisation meetings, because there was none.

MR VISSER: No, absolutely Chairperson, it couldn't be any different because if there had been authorisation, why would we be here? With respect.

Chairperson, just to come back to the issue which you raised earlier which I haven't had an opportunity of replying to, Section 20 of the Act (2)(b) deals with the issue of the intention of the person who acts unlawfully against the policy of the Government. The only requirement of the Act is that he must commit that bona fide with the object of countering or otherwise resisting the struggle, with respect Chairperson. It does not state that if - the Act does not state that if such action is taken contrary to the policy of the Government, that amnesty could not be awarded and Chairperson, what was the policy of the Government? The policy of the Government, with respect, you've now mentioned quite correctly the issue of the Military and the guidelines, so what was the policy of the Government? If one looks at what Malan had said, for example, and we mentioned that to you at page 13:

not the Army,

What I am saying is the policy of the Government. The last quotation under the heading 4th of February 1987. Now that's a very senior politician, page 13, a senior politician that talks of that being the policy for the Security Forces of which the police are part, Chairperson. Now what must Van der Merwe think of that? And I'm not mentioning this in the way of justification. What I'm saying, Chairperson, is that it would be incorrect to say it was the policy of the Government that cross-border operations only be undertaken by the Military and not by the Police and therefore if the Police act there, they can never obtain amnesty. Now Chairperson, it hasn't happened before that an Amnesty Committee has refused on that ground, I may say, but Chairperson, be that as it may, the fact of the matter is that Van der Merwe believed that he acted bona fide in the interest of the Government in countering the revolutionary struggle and ...(intervention)

CHAIRPERSON: Mr Visser, Mr van der Merwe was aware of these guidelines.

MR VISSER: He says he wasn't. He says he wasn't, he never knew about them.

CHAIRPERSON: That the military or the police were confined to dealing with activities of liberation movements within the country?

MR VISSER: Yes.

CHAIRPERSON: And Police couldn't leave the country to do ...(indistinct)

MR VISSER: That he was aware of.

CHAIRPERSON: Yes, that's what I'm talking about.

MR VISSER: No, that he was aware of. He wasn't aware of the guidelines in the minutes, no, but certainly he was aware of that, yes.

CHAIRPERSON: That's all I wanted to know, if he was aware of it.

MR VISSER: No absolutely, absolutely, it was no secret. In fact it was public knowledge Chairperson, that it was only the Military that were supposedly authorised to act across border.

CHAIRPERSON: Very well put, we were all aware of it, it's just it was denied.

MR VISSER: Who denied it Chairperson?

CHAIRPERSON: The Government.

MR VISSER: Well they never denied that, Chairperson. What they did deny were the covert operations undertaken by the Police and that is why it's so important in this case to distinguish between overt and covert operations. This was a covert operation and Van der Merwe's evidence is clear that a covert operation is an operation which cannot be traced back to authority of the Government.

CHAIRPERSON: Mr Visser, deal with this then. If it was the policy of the South African Government of the time not to commit any atrocity across the borders of South Africa at all, and that was the policy, and the Military or the Police went ahead and did just that, would the applicants in that case be entitled to amnesty?

MR VISSER: Chairperson, I must just understand your question. You say if it was the policy of the Government not to commit atrocities across border?

CHAIRPERSON: Across the South African border.

MR VISSER: And either the Military or the Police went and committed atrocities across border?

CHAIRPERSON: Ja, in the name of countering terrorism, as you put it.

MR VISSER: Well I would submit that even in that extreme example that you mention, yes they would, as long as they comply with the provisions of the Act, the requirements of the Act.

ADV BOSMAN: Mr Visser, the way I understood, my microphone is out of order it would seem.

MR VISSER: ...(indistinct) lick your finger.

ADV BOSMAN: I did, I licked it twice. Is it on? Okay fine, thank you. The way I understood your client's evidence is that what finally triggered this operation was not so much what had happened at CIC but the fact that he realised that he was responsible for the internal security and the reason for crossing the border was to prevent what would happen internally. How would you argue with that effect, the argument in general?

MR VISSER: Yes. Chairperson, I would have come to that but let me deal with it now. It is true that the Police were charged with maintaining internal security, but, Chairperson, in my submission, that must not be viewed in isolation. Internal security was part and parcel of the general situation of violence in the country, obviously and it was that very violence in the country which created the base, or so it was perceived, for political - created a political platform for the ANC and other liberation movements to attempt to overthrow the Government so yes, when you speak about internal security, yes, but it wasn't in isolation. We must remember that the information about the Meyer group was that they were going to commit acts of public violence, in the sense of explosions and we referred you in the evidence to the incidents where the ANC, in their presentation to the TRC, accepted responsibility and there were six and they were high profile attacks. So yes, internal security, yes, but the submission was from the beginning, Chairperson, that the very fact that the police were suddenly in the amended Police Act, charged with maintaining internal security, placed them in the political arena because of the very nature of the violence that was going on in the country, so it has to be viewed in tandem, yes. But that was the reason why he acted, but it was not his evidence that it was only for internal security per se. It was in order to prevent people from coming in and committing acts of terror in general.

ADV BOSMAN: That's the gist of my question, that the reason, the main reason was, to go across border was to ensure the internal security which he was charged with, although it was unlawful to cross the border. Okay.

MR VISSER: Yes. No, absolutely, yes. And you're right, of course, the crossing of the border in itself was unlawful and Van der Merwe knew that the persons who were going to cross the border would do so unlawfully, yes, you're quite correct.

So Chairperson, if I may return to page 43, I deal in paragraph 209 with what occurred when the first information of the 30 MKs that had arrived in Lesotho, was received and we deal with the issue of the CIC meeting.

Now again, Van der Merwe cannot remember this from his own memory and he was quite honest about it, but it is our submission that what transpired later and the documents that came to light later, confirm the evidence of Schoon and de Kock and Van der Merwe, that there must have been such a meeting on the 3rd of December, or later. I take it no further than that for the moment.

Now Chairperson, at page 44 we say in the middle of the page is that what is clear is that the members of the CIC knew, or let me put it lower, they must have known what position Van der Merwe, on behalf of the Security Branch, had adopted in this regard and van Heerden readily conceded it. Now you will recall the evidence of Dr Barnard. He was very loathe ...(intervention)

CHAIRPERSON: This would have been on the 3rd of December?

MR VISSER: This was on the 3rd of December. What are Van der Merwe's views or intentions in regard to this, and van Heerden puts it, with respect, correctly. He said the police were very serious about this. Now that was the message from this information that was tabled.

CHAIRPERSON: Serious about what?

MR VISSER: About this whole issue. About the whole issue and it's at record page 1758, Chairperson.

CHAIRPERSON: No, well, Mr Visser, I want to get that very clear because earlier you told me that by the 3rd of December, Van der Merwe didn't have any plan.

MR VISSER: I still say so.

CHAIRPERSON: Now what was he - what did they think he was serious about?

MR VISSER: About the threat from Lesotho and that Lesotho had to be warned to do something about it. Now Chairperson, van Heerden testified that his department, and I need to address this issue, van Heerden said that his department didn't address the threat of Van der Merwe to act to the Lesotho Government because he said that they were jealous of their own prerogatives and how they did things and in the process he missed the whole point, Chairperson. The point is not what was conveyed to Lesotho, the point was what was conveyed by Van der Merwe, through van Heerden, to the meeting and we say, Chairperson, with great respect, it is quite clear that if the situation had been allowed to continue, the message was that Van der Merwe was going to act, there can be no question about that, otherwise as you correctly pointed out to me, Van der Merwe could simply have told Military Intelligence or National Intelligence, Dr Barnard, or the Defence Force: "This is information which we got. Now you act, I'm sitting back." He didn't do that.

JUDGE KHAMPEPE: What is contained in the telex, Mr Visser?

MR VISSER: You're asking me?

JUDGE KHAMPEPE: Yes.

MR VISSER: I'm dealing with it now, from page 44 (10). We say, Chairperson:

That's at record page 705 and we say, Chairperson:

because if you look at what is in there and van Heerden says this could only have come from Van der Merwe, it deals with a group of people who are going to come in over the Christmas period, which did not feature at the CIC meeting. In sub-paragraph (12) at page 45, I deal with other issues which are also contained in that telex, which are also not part of the minute of the 3rd of December of the CIC meeting, but I make no point of it.

CHAIRPERSON: Mr Visser, can you just help us here? We just can't locate the actual minute, the telex. What does the telex read?

MR VISSER: The telex, Chairperson, you will find, Exhibit E yes, thank you. Oh yes. Exhibit E, Chairperson, it's not paginated. I don't know whether your exhibits are marked.

CHAIRPERSON: Just read it out please.

MR VISSER; Do you want me to read the telex to you Chairperson? It's marked in manuscript 13/12/1985. It says:

As according to Mr Botha it means that it was sent to Maseru and it says, may I just read the relevant parts?

CHAIRPERSON: Ja.

MR VISSER:

That is not something that was - the CIC meeting on the 3rd of December was aware and at once may I therefore, Chairperson, make the submission that my learned friend Mr Berger cannot be heard to say that the meeting of the CIC of the 3rd of December, was where the operation was in fact okayed, authorised, approved, whatever you want to call it. It cannot possibly be, because the information of the Christmas season only came to light for the first time in the telex of the 13th of December. So we say, Chairperson, with respect, there had to be a further communication after the 3rd of December, from Van der Merwe or his department and the Foreign Affairs, or Dr van Heerden, because this was ...(intervention)

CHAIRPERSON: Why do you say that's impossible? Given the lapse of time and given the frequency of the amnesia, isn't it possible that this whole idea of a Christmas or festive season attack was in fact alive on the 13th?

MR VISSER: Was?

CHAIRPERSON: Was alive on the 13th.

MR VISSER: But it was, that's my submission.

CHAIRPERSON: I mean on the 3rd.

MR VISSER: No, where does that appear from?

CHAIRPERSON: No, I'm asking.

MR VISSER; Well, Chairperson, one can speculate up to a point, with respect, but one's got to go on what evidence is before you and the evidence ...(intervention)

CHAIRPERSON: Let's keep to that rule then throughout your argument.

MR VISSER: Well Chairperson, that's what I'm attempting to do, but what I'm saying ...(intervention)

CHAIRPERSON: All I'm asking, Mr Visser, I'm not saying you are wrong, I'm saying that you're saying it's impossible, your argument is conclusive. I'm saying let's not adopt a conclusive attitude. Is it not possible, given the lapse of time, I mean we're talking about 15 years ago, and your client's forgetfulness, is it not possible that the idea of a festive season attack was indeed within his knowledge by the 3rd already?

MR VISSER: Chairperson, if I said it's impossible, then I must correct myself. Nothing is impossible. I was hoping that I would have submitted to you that it was probable, but yes, yes, but the probabilities are so strongly against it, Chairperson, that one could rule it out on a matter of evidence.

JUDGE KHAMPEPE: What's his evidence, Mr Visser, on this issue? Isn't Mr van der Merwe's evidence that information came to light after the 3rd of December and he can't remember with whom he consulted, but he consulted with some of his colleagues within the CIC structure?

MR VISSER: That is correct, Chairperson. In fact very specifically he says he cannot remember that he spoke to a particular person, but van Heerden gave evidence to say that the information that was contained in the telex came, to his knowledge, after the 3rd of December and it could only have come from Van der Merwe. Van der Merwe himself is not clear about that, he can't remember, but it also makes good sense that it would have occurred like that. To put the proposition in the form of a question, what could possibly have prevented van Heerden on the 3rd of December, not to tell the CIC about this information of the attacks over the festive season, had he known about it, it wouldn't have made sense because that was really now a step further in the urgency of the matter. First it was just a build-up of MK soldiers, now we know of an attack, which makes it far more urgent, Chairperson, with respect, than the information which Barnard imparted to the CIC meeting on the 3rd of December and now it is contained in the telex of the 13th of December, so Chairperson, we go a step further. At page 45 we deal in sub paragraph 13 with a further step, this is the third set of information. According to Van der Merwe, the further information which became available concerned an arms cache with AK47s and "round metal objects" and it was stated by him that it was suspected by the Security Branch. Chairperson, you want to take? Yes, it was suspected by them and interpreted to be landmines Chairperson and I will continue from there after the tea adjournment.

MR VISSER IN ARGUMENT: (cont.)

Mr Chairman I'm at page 45 of my written argument, sub-paragraph 13.

According to Van der Merwe, Chairperson, a third set of information became available and the important aspect of that is that AK47s had been seen and round metal objects, in the possession of members of the Meyer Unit and that this was suspected by the Security Branch of Ladybrand to refer to landmines and I refer you to the record.

CHAIRPERSON: At this stage, was de Kock already approached?

MR VISSER: No, no. The point is, Chairperson, ... (interven-tion)

CHAIRPERSON: I'm asking.

MR VISSER: Yes. No, this is really the dilemma which we have in trying to piece together on the probabilities what actually happened and I'm in the process of attempting to do that, Chairperson, that is why I referred you to what information became available before the 3rd of December, what became available between the 3rd and the 13th of December, all on the probabilities and what became available later. Now I'm attempting to show you, Chairperson, that the question of the round metal objects probably became available after the 13th of December, after the telex was sent. Can I refer you to bundle 3, page 80? You see in the situation report by van Vuuren, he says at page 80, top of the page:

Now Chairperson, the importance of this issue is that the reference is made to round metal objects in van Vuuren's report and it is relevant to know that his report is signed on the 16th of December. Van der Merwe, Chairperson, - and we make that submission to you in sub-paragraph (15), we say it's clear on the evidence before the Committee, and I'm talking about probabilities, Chairperson, that this information must have been provided to someone of the CIC by Van der Merwe, who in turn must have relayed it to van Vuuren, because it was incorporated in that report. Other than that as a probability, Chairperson, we're left with no other possibilities. How did van Vuuren get to know about it, unless it came from Van der Merwe, through members of the CIC, because you will recall, there's no evidence that Van der Merwe had direct contact with van Vuuren, so it must have come through some member from the CIC and we don't say who, we say "some member" and we say, Chairperson, it probably came to hand, this information between 13 and 17 or 16 December, to be more accurate.

Chairperson top of page 46, this is the last chapter in this probability saga, thereafter Van der Merwe was informed that the source, the informant had produced two hand grenades and they then knew that the round metal objects were hand grenades and not landmines.

CHAIRPERSON: Who was this who gave Van der Merwe that information?

MR VISSER: Well it came from Ladybrand, Chairperson, the information came from Ladybrand, through the normal channels.

JUDGE KHAMPEPE: And this is again before Mr de Kock.

MR VISSER: I'm sorry.

JUDGE KHAMPEPE: And this is before Mr de Kock came to be instructed by Mr van der Merwe, through Brig Schoon?

MR VISSER: On the probabilities, yes, Chairperson, because Van der Merwe's evidence was unequivocal that when he heard about the hand grenades, the previously unconfirmed reports then became confirmed. The urgency had become acute, action was necessary. He took the decision, he went to Schoon and he said: "This is what I want done." De Kock was given instructions. De Kock came back, according to all the evidence, either the same or probably the next day and presented the report which he had drafted in red ink before it was typed to Schoon and Schoon to Van der Merwe, who was "on his way to a CIC meeting" according to Schoon and de Kock.

So Chairperson, we now have what we read in the situation report about round metal objects, we have the evidence of Van der Merwe about hand grenades and the submission which I made, with respect, as has been pointed out by Judge Khampepe is that this must have occurred on the 17th, 18th, or 19th and therefore Chairperson, the evidence of Mr Nortje, well, he wasn't very clear in his evidence, but the evidence that they had prepared for this particular operation for about 10 days, as a statement, cannot be correct.

JUDGE KHAMPEPE: What about the evidence of Mr de Kock with regard to the period?

MR VISSER: Well he said to his recollection it was between 3 and 5 days. Chairperson, you can't blame a person after 15 years for not remembering precisely. The fact of the matter is that they were in the area doing their work for months before then and the issue here as to when the actual instruction came for this operation to be done, wasn't something that was in their minds as an important factor to be remembered for posterity. They would have received their instructions and they would have gone about doing it and in fact it was put, Chairperson, perhaps we should deal with that issue straight away. It was put by my learned friend Mr Hattingh to Mr Nortje, I'm going away from the line of my argument Chairperson, but we can deal with that. At page - if you'll allow me Chairperson, at page 2542:

Then says Nortje:

and he interrupts himself, he says:

So he's now shortened the time to five days and over the page, and then Mr Hattingh refers to Mr de Kock's evidence and he says:

Mr Nortje:

He says:

and he's interrupted:

Chairperson, and lastly, on this issue, may I refer you to page 2571 and may I read it to you? It is myself cross-examining Chairperson, starts at 2570 and I say, Chairperson, if I may start in the middle of a sentence:

and then there's an unfortunate translation of a word "briefly", it should read shortly,

So what Nortje says, in a nutshell is he doesn't know when the operation was authorised, he doesn't know and he can't give evidence about it, but they were aware that there was a possibility of a raid into Lesotho, was within their contemplation. We have no ...(indistinct)

CHAIRPERSON: But, Mr Visser, aren't we talking about two different types of authorisation? As far as Mr Nortje is concerned, yes, he would have acted under authorisation of maybe de Kock or whoever.

MR VISSER: Yes.

CHAIRPERSON: In respect of your client, the authorisation we're talking about your client, ...

MR VISSER: Is a different one.

CHAIRPERSON: Is a different one.

MR VISSER: Yes. No, no, but I'm asking you to assume that Van der Merwe, after having decided that the matter become of critical urgency, would not have gone home and done nothing about it for six days.

CHAIRPERSON: I understand your argument Mr Visser on that score. You may have noticed I didn't ask you any questions about it. I understand it.

MR VISSER: Yes.

CHAIRPERSON: But tell me, when did this idea, or when did this plan originate?

MR VISSER: Well, Chairperson, I can't give you the answer to that. I can tell you when, in all probability, the decision was taken.

CHAIRPERSON: When?

MR VISSER: On the 16th, on the 17th, 18th or 19th of December.

CHAIRPERSON: Okay.

MR VISSER: And I've just taken you through the reasons why I say ...(intervention)

CHAIRPERSON: Well I'm getting to this grand chronological explanation that you've given us. Do you accept that the foot soldiers were already preparing for this attack on the evidence before us, at least 5 days before it occurred?

MR VISSER: In my submission there's no clear evidence of that and I've tried to point it out. It was in their contemplation that there might be an attack and that may have been ten days before.

CHAIRPERSON: But as you pointed out, in Nortje's evidence, at least five days.

MR VISSER: Well, he says he doesn't know. He can't tell you how long it took since the time they received the instruction to go ahead, until the operation. I just read it to you. That's his evidence.

CHAIRPERSON: And according to your heads of argument, Schoon, which was the next step in the conduit from Van der Merwe, would have been ordered, as you have it here, to proceed with an operation in order to eliminate the members of the Meyer Unit.

MR VISSER: Yes.

CHAIRPERSON: Around the 17th?

MR VISSER: That's correct. It's the only thing that makes logical sense Chairperson.

CHAIRPERSON: No, it doesn't make logical sense to me. If that be the case, de Kock would only get involved after Schoon was informed, isn't it?

MR VISSER: On the same day, yes.

CHAIRPERSON: Ja. At best for the purpose of the question I'm going to put to you, on the 17th, in terms of your argument.

MR VISSER: Yes.

CHAIRPERSON: But yet dinghies or whatever were being bought five days at best for your client, beforehand.

MR VISSER: But with respect Chairperson, there's no such evidence. I just read it to you. What Nortje says is when they received the actual instruction to go ahead, he can't deny that it was thereafter that the dinghies and stuff were bought, that was on the cross-examination of my Learned Mr Hattingh.

CHAIRPERSON: Ja. The point I'm making to you Mr Visser and I'm giving you an opportunity to clear my mind.

MR VISSER: Yes.

CHAIRPERSON: Is that Schoon would have received the order before de Kock got involved.

MR VISSER: Yes.

CHAIRPERSON: And only when de Kock got involved, did the others get involved.

MR VISSER: Yes.

CHAIRPERSON: Correct? Do you follow what I'm saying?

MR VISSER: Absolutely.

CHAIRPERSON: Now in your argument, Schoon would have been ordered at the earliest on the 17th.

MR VISSER; Well, it could have been on the 16th when he was told to prepare a plan, Chairperson, I don't know, it could have been on the 16th.

CHAIRPERSON: You see, in terms of your argument, this unconfirmed report becomes confirmed.

MR VISSER: Yes.

CHAIRPERSON: You say the probability that the latest information was received by Van der Merwe, between the 17th and the 19th.

MR VISSER: Yes. Yes, I understand what you're saying.

CHAIRPERSON: And it follows then that Schoon would have been at the earliest on the 17th.

MR VISSER: I understand, yes.

CHAIRPERSON: It is only then that de Kock would be ordered to do whatever they wanted him to do.

MR VISSER: Yes.

CHAIRPERSON: And it's only then that they would go shopping for these dinghies and whatever.

MR VISSER: Yes.

CHAIRPERSON: Now, on the other hand and this is what concerns the Panel, or part of the Panel at least, is that there's talk about ten days and seven days and five days planning period.

MR VISSER: Yes.

CHAIRPERSON: By my mathematics, the 17th is only about two days or three days before the ...(indistinct - speaking simultaneously)

MR VISSER: Correct.

CHAIRPERSON: Can you deal with that?

MR VISSER: Chairperson, the way I deal with it in my heads and I will come to it, is that it doesn't matter when the decision was taken. Van der Merwe certainly doesn't remember what the date was, he could only speculate.

CHAIRPERSON: Well, it does matter Mr Visser. Perhaps you must consider this, it does matter, because you're building up an argument which I appreciate, of how the urgency of the attack and how the reasons for this attack developed and you say four sets of information and you build it up and you build it up and then I understand that and the urgency, according to your client's evidence is that when I heard that the Meyer group is going to come have a party during the festive season here in Bloemfontein or Free State, that is when the decision was made that now we must go stop them.

MR VISSER: No, well it was when he heard about the arms cache and the hand grenades.

CHAIRPERSON: Whatever, all these bits of information.

MR VISSER: Yes.

CHAIRPERSON: And the globular effect of that rendered this whole operation urgent, as I understand your evidence.

MR VISSER: Correct.

CHAIRPERSON: And therefore, it becomes important to know when the decision was given to de Kock.

MR VISSER: Well Chairperson ...(intervention)

CHAIRPERSON: It's not that it doesn't matter when the decision was made.

MR VISSER: Well, how does it affect the issues before you as to when the decision was taken? Van der Merwe couldn't tell you what space of time transpired between the different information which he got. He's talking about something that happened 15 years before his evidence, he says he can't remember.

CHAIRPERSON: So you referred us to certain dates and I appreciate that you said it's in black and white and therefor the irresistible conclusions that must be drawn.

MR VISSER: Well, I'm working on probabilities Chairperson on all the evidence.

CHAIRPERSON: I accept that.

MR VISSER: Yes.

CHAIRPERSON: And that's why I'm asking or giving you an opportunity to deal with this issue, because it's important if for no other reason, to look at the most important requirements that must be satisfied in the Act and I'm not saying it's detrimental to your client's case, I'm saying that we need to consider it. Do you follow what I'm saying?

MR VISSER: Chairperson, my submission is, the best that Van der Merwe could do was to say that it probably, the decision was probably taken on the 17th or the 18th of December to attack, because it was then that it was realised that the hand grenades were produced, previously unconfirmed reports in the language of Mr van der Merwe and the Security Forces of the time, had become confirmed and it had then become critically urgent to act. Now Chairperson, in my respectful submission, if the decision is taken, let us say on the 17th, there was nothing to stop de Kock in making his arrangements, buying his dinghies and getting himself to the border by the evening of the 19th. One cannot think of any compelling reason why he couldn't have done that. He himself says his recollection is it was three to five days. Now take the three days for example. It's just about on target. But frankly Chairperson, with great respect, if you say that it is relevant to know exactly when de Kock received his...(indistinct)

CHAIRPERSON: And it's exactly then, I'm not saying that's the imperative, I'm asking you to deal with what could be a problem area in their evidence.

MR VISSER: Yes. I'm submitting to you that it shouldn't be a problem Chairperson, because I'm submitting to you that even if you accept that a decision was made, however improbable, on the third of December, it really takes the matter no further. There was information about a build-up, there was information that is contained in the telex, there was information that is contained in the situation report, those were the reasons why Van der Merwe acted. With great respect, ...(intervention)

CHAIRPERSON: Mr Visser, if on the 3rd he had already decided that he's going to attack that house, what was the purpose of this warning to Lesotho?

MR VISSER: Well, they might have ...(intervention)

CHAIRPERSON: Precisely then, they have reacted to it and stopped the reasons for the proposed attack.

MR VISSER: Correct.

CHAIRPERSON: But the decision was already made, so what was the purpose of it?

MR VISSER: Well then obviously then didn't go ahead, we know on the facts, with whatever decision might have been taken on the 3rd of December, until the 19th, which makes no sense, with great respect, not in view of the information which we know was available. Why wait Chairperson until the 19th? In fact, why not then wait until after the SSC meeting of the 20th? It's because, Chairperson, there was an urgency. People were coming into the country, they were armed, they were going to commit acts of terror, that is why the decision was taken.

And in fact, as my learned friend Mr Hattingh just reminds me, the fact is that they were going to come in on that very evening of Thursday the 19th of December. We have the evidence of Stanley Jacobs which confirms that, we have the evidence of McCaskill which confirms that Chairperson.

Now Chairperson, if one may then proceed to the issue of the possible involvement or otherwise of the CIC. Van der Merwe's application in his amnesty application, he says:

then he says:

We've already dealt with the argument as to why it would have been the logical place for Van der Merwe to go, if he wanted to ...(indistinct) anyone out or if he wanted to find out, as his evidence was, whether there weren't other operations already undergo, but I want to, with your leave, Mr Chairman, confine myself to what Van der Merwe says. Now he says he can't remember if or at what stage the matter was dealt with by the CIC. After his amnesty application, it has now come to light that the CIC did deal with it on the 3rd of December, with the issue of Lesotho. We know from what I've just submitted to you about other information that came about that on the 20th of December the SIT report of van Vuuren was tabled, which also contained information which confirms that somebody, and in all probability it must have been somebody from the CIC, told him about after the CIC meeting because that information wasn't available according to the minutes, if one can go on the minute and some of the evidence that you heard here, Mr Barnard said those minutes were accurate, things were not concealed from the minutes and Mr van Heerden said the same thing. So if one assumes that for a moment, for the sake of this argument, then that information only became available later. the point here, Chairperson, is that it is clear that Van der Merwe was accurate in his amnesty application when he stated that he has no reason not to accept the evidence of Schoon and de Kock. Clearly de Kock and Schoon were correct. The point now Chairperson is we know there wasn't a formal meeting after the 3rd of December where all these representatives were present. We know that Dr Barnard says that as far as he's concerned, there weren't, on a question of Judge Khampepe, there weren't informal meetings held between formal meetings. Well there's a basic improbability in that, but be that as it may, Mr van Heerden said: "Of course we had informal meetings, we spoke to each other. You can't wait until the next formal meeting to deal with matters at hand. You spoke to people." Now Chairperson, if you accept van Heerden's evidence and you accept that information came through that was contained in the Sit. Rap. of the 16th of December... (intervention)

CHAIRPERSON: Came through to whom?

MR VISSER: To van Vuuren, the probabilities are that Van der Merwe must have spoken to someone who was a member of the CIC before then. We say, Chairperson, the probabilities are that he would have spoken to one or both of two people. He would have spoken to the Chairperson, Dr Barnard, and he would have spoken to van Heerden.

He would have spoken to van Heerden, if I may start with him, because he already on the 29th of November sent the note alerting the Department of Foreign Affairs and through the Department of Foreign Affairs, the CIC, of the situation brewing in Lesotho and as we submit, of the intentions as conceded by van Heerden, of Van der Merwe. It is only logical, Chairperson, that he would have followed it up when he received fresh information to let van Heerden know that.

CHAIRPERSON: Why is it so logical?

MR VISSER: Well, with respect, Chairperson, why did he go to him in the first place?

CHAIRPERSON: Wouldn't it be logical for him to have contacted the Military also? But he didn't.

MR VISSER: No, no. Chairperson at the meeting of the CIC on the 3rd of December, there is no indication that the Military suggested when van Heerden said: "What must we do?" that the Military suggested that they would act.

CHAIRPERSON: No, I'm not talking about the meeting, Mr Visser, you're talking about logic.

MR VISSER: Yes.

CHAIRPERSON: I've trouble with that because one of these informal meetings could have been between the Head of the Police and the Head of the Military. It didn't take place, as you correctly point out.

MR VISSER: Yes.

CHAIRPERSON: I, to my mind, that was the logical thing to do, logic didn't apply.

MR VISSER: Well, Chairperson, the logical thing ...(intervention)

CHAIRPERSON: So one must question the other logic as well.

MR VISSER: The logical thing is that there is a diplomatic storm going on between the RSA and Lesotho, we know that the Department of Foreign Affairs were very touchy about armed action in neighbouring countries. We know that they always turned any armed or any intention of armed aggression down and we know that Van der Merwe, being a young ...(indistinct) at the time of the Security Police, told you that he would not likely have taken this decision for those reasons, on his own. That is why it is logical that he would have told van Heerden.

JUDGE KHAMPEPE: Why van Heerden specifically, because if I recall, Mr van der Merwe's evidence was that it was important for him to ...(indistinct) His evidence was that it was important for him to seek clearance for what he intended to do.

MR VISSER: Chairperson, to find out whether there weren't any objections. He could not obtain clearance in the sense of authority ever, from anyone and he wouldn't have asked anyone.

JUDGE KHAMPEPE: Doesn't he say that on page 502?

MR VISSER: Chairperson, we're jumping around a little bit. Now we have to go back to his amnesty application as such. 502, Chairperson, I've got that. He says:

Yes Chairperson, he says in Exhibit A at page 11, paragraph 44:

But not authority, yes.

JUDGE KHAMPEPE: Yes. He doesn't confine his discussion to Mr van Heerden.

MR VISSER: That is correct, Chairperson, but that's dealing basically with a different issue. That's dealing with the issue of whether he went to the CIC with this proposition in the first place, because you will recall he couldn't remember that when he filed his application.

JUDGE KHAMPEPE: It was dealing with whether he discussed this issue with any member of CIC at all.

MR VISSER: And again, he could not remember, but he says it's probable that he would have spoken to the CIC and all that I'm submitting to you is he's been proved to be right, because it was discussed with the CIC.

JUDGE KHAMPEPE: You are submitting that it's logical that he would have spoken to Mr van Heerden, in particular.

MR VISSER: Chairperson, you will recall that van Heerden was asked about this and he said that he cannot remember that the second information, batch of information was conveyed to him personally. He said that he thinks it was probably conveyed to the Department and that someone else might have dealt with it, but that he was aware of what was contained in the telex. Now, Chairperson, we can't argue with that evidence because Mr van der Merwe can't tell you today that he spoke to van Heerden personally. What I'm submitting is that because van Heerden was the one who dealt with the information contained in the note of the 29th of November at the CIC meeting at the 3rd of December, logic would indicate that he would have spoken to him, but we can't say that for sure, but what we do know for sure is that it was communicated with the Department of Foreign Affairs.

What we also say, Chairperson, is that it is also probable that Van der Merwe would have spoken to the Chairman of the CIC. Why? Because he had direct access to the State President. Why is that important? Because the State President was in the middle of the diplomatic arguments that were going on at the time between South Africa and Lesotho. You heard evidence that he appeared on television and he made certain statements and pronouncements about the issue of terrorists in neighbouring States, singling out Lesotho and we know that after the raid, there were diplomatic actions taken, Chairperson, by the South African Government. So Van der Merwe, if he's to be believed, when he tells you, as he does on that page that you've referred me to, that in his position he would have cleared it to make sure that there wasn't a conflict of operations. Then Chairperson, one must assume that he would probably have spoken to either van Heerden for the reasons I've mentioned, and/or to Barnard, for the reasons I've mentioned.

JUDGE KHAMPEPE: Or to the Military in order to make sure that there's no conflict.

MR VISSER: Now Chairperson, we don't know whether he did or didn't speak to the Military, because he can't remember and as it was pointed out to Mr Berger by the Chairperson at a certain point in time, whether van Heerden or Barnard admits or denies that Van der Merwe spoke to them, is really neither here nor there, because Van der Merwe says it could have been other people as well, including the military.

JUDGE KHAMPEPE: Yes. I'm only basing that, Mr Visser, on the reasons given by Mr van der Merwe why he would have spoken to somebody at CIC, because the object of that discussion would have been to avoid any conflict in the execution of the operation and the military would be the first people to spring into my mind to consult with.

MR VISSER: Yes, Chairperson, except that the Chairperson of the CIC was the Director-General of National Intelligence in the office of the State President as Minister.

Secondly Chairperson, the CIC was the co-ordinating structure, co-ordinating all actions by Security Forces, so why would one then go, as a matter of logic, to National Intelligence, Military Intelligence, the South African Defence Force, when you can speak to the Chairperson who supposedly, one would imagine, has knowledge of everything that's going on.

CHAIRPERSON: I'll tell you why he should have gone to the Military, because if they had to go on that escapade, it would have been rendered lawful. That's why, not so?

MR VISSER: Well Chairperson, we don't know whether Van der Merwe spoke to the Military or not, because he can't remember that. He can't remember who was the one he spoke to.

CHAIRPERSON: That's strange because the Military were the proper people to talk to then and he would have remembered, I'm sure, if he did.

MR VISSER: Chairperson, I have addressed an argument on that score to you and very briefly, if the Military had been up in arms about that, two things: 1), one would have expected them to have said so at the CIC meeting, to tell Van der Merwe: "Now hang on, you don't issue threats here, it's our job and we will do it" and secondly is that they would have done something about it, none of which occurred.

CHAIRPERSON: That presupposes that everybody thought that the threat was in the nature of Van der Merwe and the police doing something about it. I'm not convinced that that is the logical conclusion to draw at a CIC meeting. Here is a diplomatic warning that South Africa was going to do something if you don't do anything, it follows then that the Military, being empowered to do so, would have been the organ to do it. But carry on, I follow what your argument is.

MR VISSER: Yes. All I'm saying is they didn't do anything ...(indistinct)

Chairperson, I'm still at page 46 and it really deals with the history about him, that is Van der Merwe instruction Schoon and Schoon instructing de Kock and what occurred after that. Now both de Kock, paragraph 217, at page 47 Chairperson, testified that later and that's during the same day, Van der Merwe handed the report back to them and instructed them to go ahead. Schoon testified that he assumed that the CIC did not offer any opposition to the planned operation in Lesotho and we say, Chairperson, it is by no means clear when the particular CIC meeting would have taken place and whether it was a full-blown meeting at that. Indications are that it wasn't. Van der Merwe conceded that it may have been a discussion with certain members of the CIC and we give you the references. van Heerden said, Chairperson, that he accepted that Van der Merwe would have spoken to other members of the CIC who were part of the Security Community and whether it was the one or the other, we say Chairperson, with respect, that one can only speculate as to what occurred. We know that the Lesotho issue was in fact discussed at the CIC meeting of the 3rd of December, it stands beyond doubt, in our submission, that after the 3rd of December and before the 13th of December 58, new information regarding the festive season was received and that was contained in the telex of the 13th of December and that the further information also came to hand and over the page at page 48 we make submissions Chairperson and say, paragraph 222:

CHAIRPERSON: Tell me, just before I forget to ask you this Mr Visser, on page 46, paragraph 209, (20), he gave the order to Schoon to proceed with an operation in order to eliminate members of the Meyer unit.

MR VISSER: Yes.

CHAIRPERSON: Was that the order?

MR VISSER: Well that is how he remembers it, yes because the issue was the threat of the Meyer unit, but as we tried to make it clear in the evidence, Chairperson, that if other MKs were there, clearly they would have also been targeted and that was the evidence of everybody, including de Kock. You will recall the cross-examination of my learned friend Mr Hattingh or rather the re-examination.

CHAIRPERSON: I'm aware of that, all I wanted to know is if you stand by the ...

MR VISSER: Yes, that is how he remembers it.

We say, Chairperson, 225, that on the evidence before you and on the probabilities, in spite of what Mr van Heerden and Dr Barnard said in their evidence, it must be accepted that at least some members of the CIC knew beforehand of the intended operation. Now you will recall that there was an issue in the evidence of what they thought was meant by what van Heerden had placed on the table. Van Heerden said well he realised the Police were deadly serious about it. Mr Barnard didn't want to concede that.

CHAIRPERSON: What operation are you referring to?

MR VISSER: The operation is the operation of the night of the 19th, the actual operation.

CHAIRPERSON: To eliminate the Meyer group?

MR VISSER: Yes.

CHAIRPERSON: Not to deal with ANC or MK who were being harboured in Lesotho.

MR VISSER: No, no.

CHAIRPERSON: But a direct attack on the Meyer group?

MR VISSER: That is what I'm submitting. There's a probability and a strong one, that some of the members must have known about that, Chairperson. It's almost unthinkable that all of these things could have happened and that nobody put 2 and 2 together. It's almost unthinkable, but we don't need it for our amnesty application, Chairperson, we don't need that because Van der Merwe says he takes the blame, he took the decision. We don't need authority, because we can't get authority, it was an unlawful action, but we're dealing here in order to assist the Committee with the probabilities of what must have happened.

Now in point of fact, Chairperson, and we mention this at page ...(intervention)

CHAIRPERSON: Or even a ...(indistinct)

MR VISSER: No it's not even a ...(indistinct) Chairperson, it's just to inform you of how we see the probabilities, you may agree or disagree with this, on this issue, but what is of some significance were the words of Mr van Heerden at page 1759 of the record and perhaps you might remember what he said, he said this:

What do those words mean? That's what van Heerden understood, in spite of the other denials previously in his evidence. The first time the raid was discussed was on the 3rd of December.

JUDGE KHAMPEPE: By raid, you mean Van der Merwe's intention to launch an attack on those who were about to infiltrate into the borders of the country?

MR VISSER: Chairperson, that the Committee must ask itself.

CHAIRPERSON: What are you submitting there?

JUDGE KHAMPEPE: This is quite important to me.

MR VISSER: I'm saying Chairperson that some of the members at least must have known before the 19th of December, that there was a raid imminent by the South African Police.

JUDGE KHAMPEPE: The raid on the Meyer group, as you have defined it.

MR VISSER: Correct, Chairperson. That's the raid I'm talking about. Now, ...(intervention)

CHAIRPERSON: By the 3rd of December, they knew that they were going to attack the Meyer group at some time.

MR VISSER: Let's take this in steps.

CHAIRPERSON: No, no, is that what you're saying?

MR VISSER: Let's take this in steps. van Heerden says that, on a question of Judge Khampepe:

Just that. He now goes through his evidence, Chairperson and at page 1759 he says this:

What's he referring to? What can he possibly be referring to?

CHAIRPERSON: You tell us.

MR VISSER: Well, I'm not van Heerden, but I submit to you it's significant that as opposed to the denials that you heard in this Committee in evidence, that people knew that the Police were going to act, just take it as low as that, cannot be correct.

JUDGE KHAMPEPE: You are submitting that people knew the Police were going to act specifically on the Meyer group in Lesotho?

MR VISSER: I'm at this stage just on the basis of knowing what the intentions of the Police were.

JUDGE KHAMPEPE: Yes. But I want to know precisely what those intentions were, were those intentions to act against the Meyer group specifically, or to act against the ANC activists who were being harboured in Lesotho?

MR VISSER: Chairperson, in this amnesty application the target was at all times the Meyer group and if I say at all times, I mean after the information was received that the Meyer Group was going to enter the Republic of South Africa to commit acts of terror. From that point onwards the issue of other MKs, other ANCs became irrelevant. That became, if I may put it this way, the primary target. Obviously and I must qualify that, if they had found other members there or other supporters there, obviously they would have acted against them, but that's not your question. The question is, the Meyer group? Yes, the answer it was the Meyer group and that was the evidence of Van der Merwe, of Schoon and of de Kock.

CHAIRPERSON: They didn't know about the Meyer group and its intentions on the 3rd of December, did they?

MR VISSER: No, they didn't.

CHAIRPERSON: So how could the raid be referring to the raid or attack on the Meyer group?

MR VISSER: Chairperson, let me make the submission again as follows. On the 3rd of December there was no issue of a Meyer group, nobody could have known of an attack, impending attack on the Meyer group, or a raid on the Meyer group. On the 3rd of December, we say, van Heerden says, was the first time this raid was discussed. What does he mean by that?

CHAIRPERSON: You're referring to it in favour of your client. You tell us what ...(indistinct)

MR VISSER: Chairperson, Van der Merwe - van Heerden could only have meant one thing. He knew that the Police intended to act.

CHAIRPERSON: In which regard?

MR VISSER: To act, full stop.

JUDGE KHAMPEPE: Against whom?

MR VISSER: Against somebody in - take it at that stage, as members of the ANC who had now come into Lesotho and had built up a presence of MK soldiers there. Take it at that. The fact is, between the 3rd and the 13th of December, we now know of the Meyer Group. I'm not saying van Heerden is referring to the Meyer group, I'm talking about people knowing that something was a brewing. He must have.

CHAIRPERSON: Mr Visser, I haven't had an opportunity to look at that quote that you refer to in your heads. What context does that refer to?

MR VISSER: Chairperson, it's quite a long piece of evidence. It deals with what Mr van Heerden thought the position was as far as the Police were concerned on the 3rd of December.

CHAIRPERSON: Okay. Now I want you to tell me, because you refer to it, in the context the words "this raid", does that refer to the raid as it occurred on the 19th or 20th of December, or does it refer to a raid as threatened by Mr van der Merwe when he asked the Diplomatic Corp to send the strength?

MR VISSER: Chairperson, I don't know what went on in van Heerden's mind. He gave evidence to you to say "this raid", not "a raid", "this raid".

JUDGE KHAMPEPE: Why are you relying on his evidence?

CHAIRPERSON: Ja.

MR VISSER: For one simple submission, people knew beforehand that there was going to be action by the Police.

JUDGE KHAMPEPE: Yes, but against who specifically? Against the Meyer group, or against the ANC activists which were being harboured in Lesotho?

MR VISSER: Chairperson, on the 3rd of December there was no question of the Meyer group, it only came later.

JUDGE KHAMPEPE: Precisely.

MR VISSER: Yes. ...(intervention)

CHAIRPERSON: So this raid cannot refer to the Meyer unit, if van Heerden's evidence is to be accepted as is there, as printed, then it obviously can't refer to the raid as intended on the Meyer group.

MR VISSER: I want to make it absolutely clear, I'm taking it no further and no higher than that Mr van Heerden must have known beforehand that there was going to be action by the Police. I take it no further than that and I say, later during cross-examination ...(intervention)

CHAIRPERSON: You don't want to take it any further?

MR VISSER: Pardon?

CHAIRPERSON: You don't want to take it any further?

MR VISSER: I'm not going to submit that he knew of a raid on the Meyer group on the 3rd of December, because he couldn't have.

CHAIRPERSON: Okay, we've heard you Mr Visser, we'll see where we can slot it in somewhere, because I really don't know what we're going to do with it. You've submitted it.

MR VISSER: Yes. Later during cross-examination he was asked about what else the Police could have had in mind than a raid on the 29th of November 1985.

CHAIRPERSON: Carry on.

MR VISSER: Other than the use of force, to which he replied:

In other words, quite clear that what the Police had in mind, was force, according to him. Now you will recall that Dr Barnard would not make that concession.

CHAIRPERSON: He hardly made any.

MR VISSER: That is also true. Chairperson, but my learned friend can argue about that.

The question of authority to act, we've already dealt with that. On questions asked by you, we deal with it from page 48 onwards, Chairperson and in paragraphs 131 and 32 at page 49 we say that:

Adv Bosman's point,

That is the basis of his amnesty application. He took the decision Chairperson and we deal with the issue of the unlawfulness of his acts in paragraph 234 and the rest, Chairperson, we've already to a greater of lesser extent, dealt with. I may just point out at page 50 in paragraph 238 in the second line, the word incensed is an unfortunate word, it should be intended. I don't know how that slipped in.

CHAIRPERSON: Ask Freud.

MR VISSER: Now Chairperson, having said that, because some point was made about this issue and witnesses were called about this issue, in spite, we say, paragraph 239 of Van der Merwe taking the responsibility of the decision upon himself, we say that there are very strong indications that his actions were authorised, were authorised in this sense that after the raid, Chairperson, in spite of evidence to the contrary, everybody must have known at the SSC on the 20th of December, what had occurred on the previous evening and in fact that the problem had been solved. No ...(intervention)

CHAIRPERSON: Well Mr Botha, Pik Botha, testified here and said:

MR VISSER: Well, Dr Barnard for one said that he had no doubt it was either the Police or the Military that did it and that comes closer to the bone, Chairperson with respect, he was after all a member of the SSC and he was the Director-General ...(intervention)

CHAIRPERSON: Mr Visser I think, you're correct. Everybody in the country knew and the world knew, except who worked in the corridors of the Union Building.

MR VISSER: Now if you take that fact Chairperson, and you take the fact that thereafter Brig van der Merwe was promoted to a full General, he became the Head of Security, nowhere ...(intervention)

JUDGE KHAMPEPE: Wasn't the fact that he became the Head of Security, something that was in any case imminent?

MR VISSER: Well, not if he acted and collected the wrath of the South African Government, Chairperson, he would never have reached that point. Then what would have happened to him is, as he said himself, his career would have been destroyed, but these things happened, he recommends the award of medals after the political furore that erupted after this incident and it is now being sent to the United Nations, he now recommends medals which he knows - the recommendation is going to pass the desk of not only the Commissioner of Police, also the Minister and the State President and the evidence is before you.

Now Chairperson, no single reference is to be found in any minute, or in any document for that matter, referring to the Lesotho raid. It's just as if it never happened as far as the Government was concerned. We say that if that did not instil in the mind of Van der Merwe or in fact in our own minds, that there was an authorisation ex post facto, then nothing will, because if he had acted as he did and the State President and the SSC and the CIC or whoever thought that he acted untoward, he would have known about it, with great respect and that makes sense to Van der Merwe's evidence that the reason why he wanted to clear the matter was that if there was trouble, if things went wrong, he wanted to know that he could back on the backing of the Government, he could be sure that the Government was going to back him and it really ties together neatly, Chairperson, if one bears that in mind. We deal with that over to page 51.

We deal with the State Security Council, Chairperson. I'm not going to deal with that in detail. You also did not ask me to deal with those issues in particular and at page 52, the subsequent knowledge of the SSC, Dr Barnard first said that he can't remember when he heard of the raid, he then said later that it must have been a day or two after the raid and later I think he conceded that it must have been on that very day of the 20th of December, because the newspapers were full of it. By lunchtime that day, all the newspapers had carried it. Van Heerden, you will recall, told you that on the morning of the 20th of December, a telex was received from Lesotho, which he told you in all honesty that once that had been received, it would have been forwarded to Mr Pik Botha, being the Minister of Foreign Affairs at the SSC and in that telex, Lesotho made reference to the raid.

So, Chairperson, we deal with all those issues and we mark them for your attention. We deal with the award of medals at page 55 which we say Van der Merwe's actions were not the actions of someone who thought that he acted not - that he did not act in the interest of the Government and in fact did do so. He left the operation on the ground to the people who executed it, Chairperson. We dealt with the denials of the SAP and the SADF, which all ties in with the issue of, as explained to you, the different between covert and overt operations, covert operations being those not traceable to the Government and therefore there were these Stratcom, strategic communication denials Chairperson and Van der Merwe, although he didn't participate in that, said he associated himself with that and therefore committed also the defence of defeating the ends of justice.

We dealt with the evidence of van Heerden and Barnard Chairperson, for what its worth, on the following pages and then coming at page 59 to the issue of, coming then to the issue of State President P W Botha, de Kock, Chairperson, in his amnesty application said that Schoon told him that the instructions came from the top, that's at bundle 1 page 3. Schoon denied that this was so and the references are given. He says that at the time he was unaware that such an order had come from the State President. In his evidence-in-chief here de Kock advanced various reasons why he thought and still thinks that the State President did give the order and I refer you to the pages, Chairperson. He stated however that he might be mistaken that Schoon had referred to the State President in this case and that he might be confusing it with the Cosatu House incident. Chairperson, and we give you references there.

Now the problem is in Khotso House there was evidence that the State President gave the instruction to Vlok and Vlok conveyed that instruction to Van der Merwe and that was conveyed through Schoon, to de Kock. Cosatu House was heard at the same time, the incident regarding the bombing of Cosatu House was heard at the same time as Khotso House and the evidence of Mr de Kock in the Cosatu House incident was that it was there that Schoon told him that the instruction came from the State President. If my memory serves me correctly, Mr de Kock was not prepared, at that stage to deviate from that evidence and it was in fact in the decision of the sub-Committee on Amnesty that heard that incident, then their decision was it was dealt with and it was dealt with on the basis that there is a dispute of evidence on this issue.

It was also found that it is a material issue, whether the State President did in fact give the instructions in the Cosatu House, yea or nay. Then what the Committee on Amnesty in both those cases did, was to say although it is important, it is not per se so critical that the Amnesty Committee should refuse amnesty, either the one or the other way. So what they said is: "We accept that there is a dispute and we'll leave it be, it's not that important, as long as we are satisfied on the evidence that the other requirements of the Act have been met." Now that decision is on record, Chairperson.

In the present case, Chairperson ...(intervention)

CHAIRPERSON: We of course are not bound by that decision.

MR VISSER: Well, Chairperson, on a basis, there's no stare decisis in a Commission of Inquiry, yes. What we would submit is that on the basis of fair administrative action, the least that can be expected is that you would give serious consideration to following that line of approach, but certainly you're not bound by it.

CHAIRPERSON: Just on that score, let me just point out to you that you know it's a matter of accident that the one is heard before the other.

MR VISSER: No, that's true.

CHAIRPERSON: And if I, or this Committee had sat before the other Committee and come to a different conclusion,

MR VISSER: It might have been different, yes.

CHAIRPERSON: Would it be said then that that Committee had to give our view consideration?

MR VISSER: I would submit, yes. I would submit that you must give ...(intervention)

CHAIRPERSON: It is a difficult problem, isn't it?

MR VISSER: No it is a difficult problem, but the basic submission that I would make is that you would have regard to all relevant factors

CHAIRPERSON: That's better.

MR VISSER: And that is why I said, Chairperson with respect, that we would ask you to give serious consideration to that aspect as well.

CHAIRPERSON: If you're raising it and submitting it, by all means and we will give it consideration, but we certainly don't feel bound by the views of another committee.

MR VISSER: I understand what you're saying Chairperson. Now just on the issue of that evidence, Chairperson, because here again there was a conflict, but here Mr de Kock made a concession. He said he might be confused and I deal with that at page 59, paragraph 297 at the bottom.

In the record of the Khotso and Cosatu House incidents, the following appears from the cross-examination of Mr Hugo, who acted for Mr de Kock, when he cross-examined Brig Schoon, he said this, that's at page 60 Chairperson and there's a mistake which I want to draw your attention to, in the transcription.

and he's talking to Schoon,

which is identical to what you have here.

asks Mr Hugo,

I'm sorry, there wasn't a mistake in the transcription. It's quite correct. So my submission to you was correct that Mr de Kock stuck to his guns. It was in regard to Cosatu House, whereas the other evidence, that of Vlok and Van der Merwe and Schoon, it was in regard to Khotso House. So I don't want to take the matter any further than that, Chairperson.

As far as the guidelines about which my learned friend Mr Berger has cross-examined, various witnesses are concerned, page 60, we say Chairperson that those deal with overt operations and it is applicable to the Defence Force and not to the Police.

Chairperson, we say with great respect that the political objective of the present action, is patently clear and I'm sure that you would not require any argument about that. There can also be no issue or no question of vengeance or malice or ill-will or spite, personal gain in the present application Chairperson, on the evidence before you.

We would ask you Chairperson, page 61 at the bottom, to favourably consider granting Van der Merwe and Schoon amnesty in regard to any unlawful act, omission or offence falling within your jurisdiction, committed in regard to the Lesotho raid of 19 to 20 December 1985 at Pretoria and Lesotho, including the murder of the various people which we've mentioned there, but because we're not certain of all the names, Chairperson, we would add as well as any other unidentified person or persons which may have been killed or injured in the said operation and including malicious damage to property, contravention of border control, regulation of which Van der Merwe and Schoon were aware, obviously, Chairperson. Contravention of legislation pertaining to use, possession or conveyance of weapons, ammunition, or explosive devices and we must say, Chairperson, that we disagree with Mr Cornelius' contention at record, page 239, 934, with reference to the argument concerning the power of the Committee, we prefer to agree with the standpoint which you have taken and which we have set out in our heads prior to page 40, that you are charged by the Act to investigate incidents, both inside and outside the Republic of South Africa and that you will grant amnesty insofar as compliance has been shown by an applicant with the Act and whether it's applicable in another country is a matter for another Court to decide. Chairperson, lastly, defeating the ends of justice.

I hope that we've been able to address your concerns with regard to ...(intervention)

CHAIRPERSON: Mr Visser, are we in a position to say who exactly was on that list of targets?

MR VISSER: No, Chairperson, we would submit that there seems to be a great confusion. You know, we pointed out to you that the ANC itself, for example, refers ...(intervention)

CHAIRPERSON: We're in the same boat on that score, but Jacqueline Quinn, I think it's common cause, was never on that list.

MR VISSER: Well, she is on the list of the ANC presentation, Chairperson.

CHAIRPERSON: As having been killed. I'm talking about the list of the unit, of the members of the unit.

MR VISSER: I'm sorry, I misunderstood you.

CHAIRPERSON: Targeted. You agree that Jacqueline Quinn was never a target?

MR VISSER: Not according to Mr van der Merwe, no.

CHAIRPERSON: Yes.

MR VISSER: She wasn't ...(intervention)

CHAIRPERSON: How do you deal with the killing of that lady?

MR VISSER: Well, Chairperson, Van der Merwe obviously never had any control over what happened on the ground.

CHAIRPERSON: No, no, I accept that, but obviously he is bound by what he ordered.

MR VISSER: Yes, yes.

CHAIRPERSON: That's how he comes here before us.

MR VISSER: And how I deal with that Chairperson, is on the submission that in terms of Section 20 (2)(b) it's a question of an action directed at either a liberation movement, or at members or supporters of a liberation movement and quite clearly, there's no way in which it could ever be argued that she wasn't at least a sympathiser and supporter and on that basis I would deal with that Chairperson.

CHAIRPERSON: But was she an immediate threat, falling within the reasons for this attack?

MR VISSER: Well, Chairperson, with respect, we would submit that that is not the issue. The issue is that there was a prime target of a group of people and other people got caught in the cross-fire and that is what happened ...

CHAIRPERSON: Well, well, well, was that cross-fire? I don't know, I'm asking you to deal with it.

MR VISSER: Well, Chairperson, on the evidence, we've got to accept that, with respect.

CHAIRPERSON: Would you accept that, on the Jacqueline issue, I haven't heard other arguments yet, and the lady who was killed outside the targeted house near a motor vehicle ...(intervention)

MR VISSER: No, that was a man.

CHAIRPERSON: It was a man, sorry. Yes, that in those instances, Van der Merwe rises or falls by what is found in respect of those who committed ...

MR VISSER: No, Chairperson, my respectful submission to you would be that you must adjudicate on his intentions on his own evidence. He gave, he knew there was a threat emanating from a certain quarter. He gave orders to eliminate that threat. He told you that he knew or foresaw that others could also be hit.

CHAIRPERSON: And what if in the event of someone being hit that ought not to have been hit and we can't grant amnesty in respect of those deceased.

MR VISSER: Well, Chairperson with respect, ...(intervention)

CHAIRPERSON: Where does he fall in?

MR VISSER: With respect, in our submission it would not affect him, because his instructions were specific and if those instructions were either countermanded or were not followed, well then you could hardly blame him.

CHAIRPERSON: What if he makes application for amnesty in respect of the death of such a victim?

CHAIRPERSON: ... that he didn't envisage.

MR VISSER: Well on that basis, it was all part and parcel of the same operation, the operation which has to be adjudicated against the background of the evidence and we have ample examples Chairperson of situations where entirely different, you take the case of Mitchell's case, they attacked a completely wrong house, killed totally innocent people and amnesty was granted there, Chairperson and with respect in our submission, correctly so because the Committee distinguished between what the intention was and what actually happened.

CHAIRPERSON: Mr Visser, maybe you misunderstand me. All I'm asking is that your client wasn't on the scene of the crime.

MR VISSER: That's right, yes.

CHAIRPERSON: He gave a specific order, in this case directed at the elimination of what he referred to as the Meyer Group. A group that by all intents and purposes and by virtue of the information he received, intended to come into South Africa and create the problems during the festive season.

MR VISSER: Yes.

CHAIRPERSON: I can understand people getting caught in cross-fire. I'm just asking you that in considering his application and the list of people that he lists, or you list here on his behalf, if this Committee, and I'm not saying we're going to do so, if in the event of this Committee finding those actually perpetrators do not qualify for amnesty in one or two of these cases and yet he has made application in respect of those victims, what do you say would be Mr van der Merwe's position?

MR VISSER: Well, Chairperson, in my respectful submission, you've got to adjudicate on his application on his own evidence. If you find that amnesty cannot be granted because of an objective fact, that you find that in regard to a particular person amnesty can't be granted, well then he's obviously going to be struck by that same measure, yes, obviously. We would say to you Chairperson, however, that we would ask you not to view the targets in a narrow sense. We know that the Meyer group was targeted, but the Meyer group, on Van der Merwe's evidence, could include supporters, could have included sympathisers, we know that the whole group didn't come out. On that argument presumably one could find that only three people who were actually going to come out, should have been targeted and no-one else, but the fact of the matter is, Chairperson, that we submit that all the people on the evidence of McCaskill and de Kock who were brought to that house, had something to do or were supposed to have something to do with the Meyer Group, made them either sympathisers or at the worst for Van der Merwe and Schoon, innocent people caught in the cross-fire. Thank you Chairperson.

CHAIRPERSON: May I ask all the representatives to consider over the luncheon period, this very question that I raised with Mr Visser. In the event of the Committee coming to the conclusion that in respect of one of the victims, the perpetrators shouldn't be granted amnesty, does it go for everybody? I'd like everyone to deal with that.

JUDGE KHAMPEPE: Mr Visser, I just wanted to point out the Mitchell's matter is very distinguishable from this one. In that matter you were dealing with Mr Mitchell, who executed the operation thinking that those people that he killed were the cadres which were meant for the operation. He later discovered that they were wrong targets, which is completely different from the facts of this matter.

MR VISSER: Yes, I was trying to draw the line through from a point of view of Van der Merwe, who intended certain particular victims to be hit and all the while there were others present and only on that basis did I refer to the Mitchell - to the similarity in the Mitchell case.

JUDGE KHAMPEPE: Before we break, if one reads Mr van der Merwe's evidence with regard to whether he consulted with the members of the CIC or not, one gets the impression that he is giving different versions to whether there was, firstly, such a consultation and secondly, whether he did have an informal meeting or a casual discussion with the individual members of the CIC. What weight should one attach to that aspect of his evidence?

MR VISSER: Chairperson, in our submission, Van der Merwe gave only one version. Only one. What he did do was to say to you that his recollection is hazy and he was asked to speculate, a lot, by different people and by members of the Committee and he speculated, but that must not be taken, with great respect, to be a different version. He did not, at any stage on the record, Chairperson, that we say, contradict himself. What he said was that he doesn't remember if or when he cleared the matter with the CIC. He says it was probable that he would have. He saw what Schoon and de Kock says, and he cannot deny that they can be correct. It now appears that he did talk to the CIC through van Heerden. The issue now is what happens later? We know that there was probably not a formal meeting because there are no minutes of a formal meeting on the 17th of November. Van der Merwe thought that there might have been, but he couldn't remember. He had to speculate and concede that it may have been only some members of the CIC that he may have spoken to and it was on that basis that I brought the argument on the probabilities to you, to say that the probabilities were that he must have spoken to Barnard and van Heerden, but he only had one version and that is, he couldn't remember. He was very honest with you Chairperson. He told you that in the beginning he had clearly forgotten about this whole incident, had he not been reminded of it by Schoon. He could have easily come to you with a story which he built up ex post facto, but he didn't, he said he couldn't remember.

MR VISSER: Mr Chairman, I know that I indicated that I was through, but would you allow me just to add one matter on the question which you posed right at the end?

The issue concerns, as I understand your question, if you and your Committee are of the view that from the point of view of any particular victim, amnesty cannot be granted in respect of that victim, what is then the position of the different applicants. Well obviously that is approaching the matter from the point of view of the victim and then obviously none of the applicants would then be entitled to such amnesty but if you approach the matter from the point of view of the applicants, a differentiation can be made Chairperson, in our respectful submission. In that event, both in the instance of Van der Merwe and Schoon, their primary objective, or Van der Merwe's primary objective that he had in mind was the group that was coming in to South Africa to commit acts of violence, but as we were at pains to attempt to indicate in his evidence and also in argument, that it would go wider than just the three people who would come in.

Chairperson, you then specifically referred to two persons, Jacqueline Quinn and the person who went out to the car before. Now as for as the person who went out to the car before is concerned, one must look at the evidence of de Kock, as well as that of McCaskill in that he was instructed, that is McCaskill, to congregate the members of that particular group in the house for purposes of this attack, so by all accounts, one must assume that the person who left the party early and went to the car and was there shot dead by de Kock, was either a member of that group, or had something to do with the group, Chairperson, and I'm asking you to draw that inference.

As far as Jacqueline Quinn is concerned, Chairperson, much has been made of the fact that she was not a member of the ANC, there is certainly no suggestion that she wasn't a supporter of the ANC and no reason to find otherwise. We say, with respect Chairperson, that her position at worst, in a worst case scenario, could be that she might have been an innocent bystander, Chairperson and we referred you to the Mitchell decision. There's actually a better decision to refer you to, where this particular issue was also ...(intervention)

CHAIRPERSON: Mr Visser, what happened there? Are you able to tell us how she died and why?

MR VISSER: No, I'm coming to that very point. You see from the point of view of Van der Merwe, he has no control over what goes on on the ground, so if you find, Chairperson, that on the ground there was no reason to have killed Jacqueline Quinn by the operatives on the ground, it does not necessarily mean that that should be something which Van der Merwe should also be struck with. That's on the basis that you don't approach it from the victim's point of view, but from the applicant's point of view.

CHAIRPERSON: If I approach it from the applicant's view and one of the possibilities is that she was killed because of a frolic of one of the perpetrators, how does Van der Merwe escape a refusal?

MR VISSER: From the victim's point of view?

CHAIRPERSON: No, from an applicant's point of view.

MR VISSER: From an applicant's point of view.

CHAIRPERSON: She was killed, I'm suggesting, ... (interven-tion)

MR VISSER: On a frolic of somebody.

CHAIRPERSON: Of one of the perpetrators, whoever it may be. How does Van der Merwe benefit from that?

MR VISSER: Well, he can't possibly benefit, he could only be negatively influenced, but I would submit to you Mr Chairman, that if Van der Merwe's actions fell within the ambit of the requirements of the Act, whether it was in fact a frolic of somebody's own, at the time when he was executing the order, in other words being in the service of his master, so to speak, that Van der Merwe would still not be struck by that action. You would not be able to hold that against him.

CHAIRPERSON: Mr Visser, isn't your argument tainted? I'll tell you why I feel that. Jacqueline was never part of the idea that your client had, she was never a target for assassination.

MR VISSER: Not from him.

CHAIRPERSON: Not from him. His order to eliminate the Meyer Group, to all intents and purposes, never included Jacqueline, correct?

MR VISSER: Correct.

CHAIRPERSON: And if she was killed by the people he sent on this escapade to kill the Meyer group, and if Jacqueline was killed by one of those perpetrators on a frolic of his own, it was never contemplated by Van der Merwe, even as a cross-fire victim. How could he not be struck by that?

MR VISSER: Well, except that, with respect, it's not necessary for him to have intended it beforehand. It's a question of what happens as a result of the ex post facto facts.

CHAIRPERSON: We know that, we accept that, like in the main house there may have been a person not even a supporter of the ANC, but according to information, that person was in the house and therefore subjectively a supporter and killed in the cross-fire.

MR VISSER: Or an innocent.

CHAIRPERSON: Ja, also killed in the cross-fire, because that house was the target.

MR VISSER: Yes.

CHAIRPERSON: We have evidence before us as to how that happened and what happened there.

MR VISSER: Yes. But Jacqueline wasn't there.

CHAIRPERSON: Ja. The house in which Jacqueline was killed, we don't know exactly what happened there.

MR VISSER: Yes.

CHAIRPERSON: And that's the difficulty.

MR VISSER: Yes, I follow. Chairperson, isn't it the situation, analogous to what the Amnesty Committee had to deal with in the question of the death of Jeanette Schoon and Katryn Schoon? May I just briefly refer you to page 18 of that decision where the Committee deals with the facts and then I'll deal with - I'll indicate to you how they dealt with those facts. The ...(intervention)

CHAIRPERSON: You say page 18?

MR VISSER: 18, Chairperson and I'll read to you what the decision says. It says:

referring to Section 20 (2)(f), it says:

and the directed is emphasised,

CHAIRPERSON: By the nature of the weapon.

MR VISSER: By the nature of the weapon, certainly.

This happened in many cases and was also the tragic result in this case, but you will recall Chairperson, that Van der Merwe also told you in evidence that he realised that when you send a party on an operation like this, other people could get killed, that was his evidence. Now Chairperson, I just want ...(intervention)

CHAIRPERSON: I'd assume he meant in the cross-fire. He certainly didn't send out people to go kill people on a frolic of their own.

MR VISSER: Yes. Well, Chairperson ...(intervention)

CHAIRPERSON: Unless you are going to argue that he did.

MR VISSER: No, I'm not arguing that at all. And what the Committee at page 19 found after discussing this, is:

CHAIRPERSON: And the little girl died.

MR VISSER: Yes, and she died. So Chairperson, the issue as it would appear, is what was the action directed at and if you found ...(intervention)

CHAIRPERSON: Was Jacqueline, Jacqueline was bombed up, she was shot.

MR VISSER: Yes.

CHAIRPERSON: It wasn't by the nature of the attack, or the nature of the weapon.

MR VISSER: Yes.

CHAIRPERSON: Do we know why or how she was shot, the circumstances?

MR VISSER: Yes.

CHAIRPERSON: It's a difficulty, Mr Visser, not to be placed at your door, but it is a difficulty.

MR VISSER: Yes. The one person who might have been able to tell you, didn't give evidence, so the only point here, Chairperson, is if you're not certain about what happened, I would submit that in the spirit of the Act, that you would not hold it against the applicants but rather give them the benefit that it wasn't so.

Chairperson, then, I'm sorry, may I just hear what my attorney wants to say?

Yes and another example that's just been mentioned to me is that if Van der Merwe sent de Kock to Lesotho to go and shoot MK soldier A and he arrives there and he shoots MK soldier B by accident. Well he shoots him, let's say on a frolic. He decides not to shoot A, he shoots B. The issue then is, could it be said that de Kock can never obtain amnesty for shooting B and we submit that he can, if he complies with the other requirements of the Act and perhaps there is a similarity as far as Jacqueline Quinn is concerned as well.

Chairperson, then lastly and then I'm really going to stop talking, I'm told that I made a submission this morning that the CIC was - the function of the CIC was to co-ordinate Security operations. Now, if I'd said that, I was clearly wrong. I mean Intelligence and I'm sure that you would have understood it that way, if I did say that, but if I did, I apologise, it was Security Intelligence.

CHAIRPERSON: You did make the mistake, but I knew what you were saying.

MR VISSER: Thank you Chairperson.

MR HATTINGH IN ARGUMENT: Thank you Mr Chairman, Members of the Committee. I asked my attorney, in compliance with your request, to fax a copy of my heads to you which he did on Friday. I'm told by Ms Patel, they were faxed on Friday at 11.22 and that they were received too late to get them to you unfortunately. I was hoping to say to you that I have nothing further to add and that I would like to deal with questions that you have to put to me.

CHAIRPERSON: Let me just put a question. I appreciate, I think the whole Committee, understands your position. All we need to know is, from me, perhaps other members of the Committee would like to ask other questions, is the question of Jacqueline's murder.

MR HATTINGH: I thought that that would be the question that you would want to ask me about, Mr Chairman. May I, before I deal with it in detail, just refer to - I've had an opportunity to briefly look at my learned friend, Mr Berger's Heads of Argument. If I may start off by dealing with the his submissions in this regard. At page 14 thereof, paragraph 37 ...(intervention)

CHAIRPERSON: Let me just get that. Page?

MR HATTINGH: Page 14, Mr Chairman, paragraph 37. He says:

Now higher up on that same page, paragraph 35, the last sentence there of, he says"

Now may I just refer you to the record to which he refers here, Mr Chairman? First of all he refers to page, paragraph 3 of his Heads. I'm sorry, it's page 3 Mr Chairman, paragraph 8, where he says Van der Merwe is adamant that he ordered, that only those who were about to enter South Africa be killed and that every reasonable precaution be taken to ensure that those who were not on the verge of committing acts of violence be spared. Then he gives certain page references and then he says again:

No I would like to refer you to page 527, which is one of the references which he gives there, Mr Chairman.

CHAIRPERSON: Do you agree his submission is correct in respect of page 499?

MR HATTINGH: Chairman, I've drawn a line through 499 and I can't remember what it means. May I just check ...(indistinct) 499, Van der Merwe questioned by my learned friend Mr Visser says:

I assume that that is what he refers to there.

Page 527, still being questioned by my learned friend Mr Visser, Mr van der Merwe said the following, Mr Visser asked him:

and Gen van der Merwe said:

Now we'd also like to refer you to the reference on page 675, being questioned by Mr Berger here about the names of the people, questioned about the identity of the people who were killed, I don't really think that 675 is all that relevant. I think the passage that I would like to refer to appears on page 676. Van der Merwe says, perhaps I should just read the question:

And I think that her name was not - that was Nomkhosi Mini, not Jacqueline Quinn, Mr Chairman,

Then again on 703, he's asked by Judge Khampepe:

MR BERGER: I'm sorry I think the reference is related, it should be related, not later.

MR HATTINGH:

Then Judge Khampepe says:

And then Mr Berger takes over:

No Mr Chairman, in this regard you would also recall the evidence of Brig Schoon when he was questioned by me. I asked him what would he have expected Mr de Kock to do if he'd found other ANC members there. I'm talking subject to correction, but I seem to recall that I mentioned the name of Mr Chris Hani and his reply was: "I would have expected them to kill that person, or those persons as well."

My learned friend Mr Visser draws my attention to the next question that Mr Berger asked:

And then Mr Berger says:

and then he continues.

Now Mr Chairman, when I deal with Jacqueline Quinn's position, I would like to make a few submissions. There is no evidence before you that either Gen van der Merwe or Brig Schoon, or for that matter Mr de Kock, were aware that she was not a member or a supporter of the ANC, prior to the attack.

CHAIRPERSON: I think Mr Visser also adopted this attitude and I'm not too sure if that's the correct attitude, but it troubles me, that's why I raise it with you. Did the negative impact of a lack of evidence, the applicants are here to put their cases, the fact that there's no evidence to say that Jacqueline was not on the list, doesn't mean that she was on the list. The facts that we have here are that she went home with her husband and two of the perpetrators, of the group of the perpetrators went to that house. The results of that visit, we know that two people are dead, but we don't know how and what happened there.

MR HATTINGH: I understand what you are putting to me, Mr Chairman, and I'm coming to that. I'm starting off by saying that there is no evidence that they were aware that she was not a member. In fact there was evidence which would seem to have indicated the contrary and that is the evidence of Mr de Kock, that he specifically asked Mr McCaskill to assemble only members of the ANC at the house and more particularly members of the Meyer group.

CHAIRPERSON: Well that is important that the request was to assemble the group that was intended to come to South Africa. As it happens, he assembled a little bit more.

MR HATTINGH: Mr Chairman, I do not have a recollection that the request was that he only had to assemble members who intended entering the Republic. My recollection is and I will have to check on this, I may be wrong, but my recollection is that he was requested to assemble members of the Meyer Group because Mr Chairman, I ...(intervention)

CHAIRPERSON: Yes. He was requested to assemble the members of the Meyer group.

MR HATTINGH: And not only the three people who intended entering. In fact Mr Chairman, there was no evidence that at that stage and once again I'm subject to correction, that that's my recollection, there was no evidence at that stage as to exactly how many members intended entering the Republic. How many members of the Meyer ...(intervention)

CHAIRPERSON: As I remember, the effect of the evidence was that the Meyer unit was coming into South Africa.

MR HATTINGH: A Meyer unit, but no ...

CHAIRPERSON: No figures.

MR HATTINGH: No figures, yes Mr Chairman. Therefore, the request was to assemble the Meyer group.

JUDGE KHAMPEPE: Mr Hattingh, with regard to the figures, I seem to recall that the evidence of Van der Merwe was that the information that he had received was that that group consisted of about three to four persons, isn't that the evidence? Whether that was conveyed to Brig Schoon and ultimately to Mr de Kock, that's another issue.

MR HATTINGH: Mr Chairman, I must be frank here, I have no recollection but that was the evidence. You may be right, Judge Khampepe, I'm not quarrelling with you, but I do not have a recollection that that was the evidence.

JUDGE KHAMPEPE: I'm also speaking under correction.

MR HATTINGH: My recollection is, Mr Chairman, that a group of people to whom Mr van der Merwe subsequently referred to as the Meyer group, that that group intended to enter the Republic and to launch attacks within the Republic, but as I say, I'm subject to correction.

Now Mr Chairman, that was the request that was made to McCaskill. Unfortunately I do not have the record of his evidence and I'm speaking from memory only, but my recollection is that he confirmed that, or broadly confirmed that he was requested to assemble either ANC members or members of the Meyer group.

Mr de Kock's evidence, Mr Chairman, was that at one stage Mr McCaskill came back and said that there were other people still at the party, including members of his family and that they couldn't proceed with the attack, whereupon he was told, according to Mr de Kock, that they were not prepared to abort the attack and that he had to go back and to see that these people were taken away from the party and thereafter Mr McCaskill came back and told him that the people who were there were all members of the ANC and that the time was now ripe to launch the attack. At the same time he informed Mr de Kock that two of the people, Mr Meyer and Jacqueline Quinn, had left the party. Now from that, Mr Chairman, the clear inference, and I submit the only reasonable inference, is that they were there and they were members of the ANC, according to McCaskill. I'm not trying to convince you that Ms Quinn was in fact a member of the ANC. In fact I accept the evidence that she wasn't, but I'm looking at it from Mr de Kock's point of view. The request was to assemble members of the Meyer group. These two were assembled in the house. In other words, Mr Chairman, had they not left this party, they would no doubt have been killed during the attack, not because she was an innocent bystander or she was caught in the cross-fire, but because of the information that Mr McCaskill gave Mr de Kock that the people who were there, were all members of the Meyer group.

CHAIRPERSON: Why do I get the feeling that when that occurred, they were only supposed to be interested and indeed only interested in Leon Meyer? Am I wrong?

MR HATTINGH: I'm sorry, Mr Chairman, I didn't ...

CHAIRPERSON: I get the feeling at the back of my head that when McCaskill and de Kock were having this conversation about Meyer not being where he was supposed to be, that the group who entered Lesotho for the purpose of killing these people, should have or were indeed only interested in Meyer, not in Jacqueline, or am I incorrect?

MR HATTINGH: Mr Chairman, Mr de Kock did at one stage and perhaps I should revert to my Heads for the reference in this regard, I deal again with the question of Ms Quinn, starting from page 8 of my Heads, Mr Chairman, paragraph 6.2.7., I quote from Mr de Kock's evidence where he testified on page 231.

Then on the next page I make a submission and then on 7.1 I continue:

No I would like to make the submission here, Mr Chairman, that perhaps you are correct that they were mainly interested in Meyer.

CHAIRPERSON: Did you say page 16?

MR HATTINGH: No, page 9, Mr Chairman, of my Heads. I was reading of page 9 of my Heads, paragraph 7.1 was the last paragraph that I read. I make the submission somewhere Mr Chairman that Meyer, yes in 7.5 on page 10, I make the submission that:

CHAIRPERSON: Well Mr Hattingh, does it follow? I know many, many representatives for applicants such as yours refer to supporters of a political organisation and yes the Act does refer to supporters and/or members, etc, but does that extend to non-active supporters? Isn't it the intention of the Act to include victims, active victims, against apartheid, who were not necessarily members of any of the liberation movements, but were active in opposing apartheid as opposed to let's say a supporter that doesn't indulge in active politics?

MR HATTINGH: Mr Chairman, you may be right, but how does one define active then?

CHAIRPERSON: Well, a supporter who supports the armed struggle, not necessarily being a member of ANC, providing bombs or providing equipment for that purpose.

MR HATTINGH: Logistical support, housing, accommodation, food?

CHAIRPERSON: Well, here in Jacqueline's case, she's the wife of an MK member.

MR HATTINGH: And she knows it, Mr Chairman and she knows what her husband is about. That was the evidence of her sister.

CHAIRPERSON: Yes. Yes.

MR HATTINGH: They all knew what Mr Meyer was ...

CHAIRPERSON: She obviously must be a supporter then, but is she a supporter in the sense that she indulged in active armed struggle?

MR HATTINGH: Well Mr Chairman, isn't it reasonable for Mr de Kock to have arrived at the conclusion that she was? she's married to a person who regularly, on the evidence of her sister, left Lesotho to enter the Republic, they were aware of what he was busy doing.

CHAIRPERSON: Yes, even if he did come to that conclusion, was it contextually justifiable in terms of the facts that we are faced with?

MR HATTINGH: I would submit yes, Mr Chairman. He bona fide and he didn't only do it on the basis, I'm now, you're confining my argument now to the aspect of her being a supporter only.

CHAIRPERSON: I'm just trying to get a definition.

MR HATTINGH: Yes. What I'm submitting to you Mr Chairman is that the information of Mr de Kock was that she was part of the Meyer Group, that she was a member of the ANC. ... (indistinct - speaking simultaneously)

CHAIRPERSON: Was that his evidence? Was that his evidence?

MR HATTINGH: His evidence was that he requested Mr McCaskill to only assemble such persons and that Mr McCaskill reported to him that those who were left in the house were members of the ANC.

CHAIRPERSON: He conceded to a question from one of us that she was never intended to be a target.

MR HATTINGH: Yes. I make that concession in my heads Mr Chairman, that Mr de Kock ...(intervention)

CHAIRPERSON: I think ...(indistinct)

MR HATTINGH: Mr de Kock contradicted himself in several respects in dealing with Ms Quinn. I'm trying to make a submission on what he probably intended to convey to you, having regard to the objective facts. Now it's an objective fact on the evidence now, that the request was to assemble member of the ANC. The information that he got just before the attack, that those were the people who were assembled there and from those facts, Mr Chairman, Mr de Kock had every reason to believe that he was acting against members of the ANC.

CHAIRPERSON: From most of his evidence, he was at pains to insist that whatever orders he gave, it excluded Jacqueline.

MR HATTINGH: Initially that was his evidence.

CHAIRPERSON: Well for most of his evidence.

MR HATTINGH: Well he eventually conceded under cross-examination that he gave direct instructions for her to be killed.

CHAIRPERSON: Ja. I'm not too sure what weight that carries in view of his instant and consistent evidence, that she was never a target but I take your point in that you are correct that that is the contradiction.

MR HATTINGH: Yes and not only that he gave such instructions, but he stated on several occasions during the course of cross-examination, Mr Chairman, and I give you the references in my Heads, that perhaps I should refer you to it, 7.4, where I concede that his evidence as to whether Ms Quinn was targeted for elimination is somewhat contradictory. He was cross-examined on this aspect at length and in great detail. It is submitted that on the probabilities, he was at the very least, considered to be a supporter and also as part of the Meyer group and therefore a target, albeit not a prime target, for elimination. De Kock testified that according to McCaskill, she was part of the Meyer Group. You have the reference there, Mr Chairman. That if they were - and then he continues that if they were members of the Meyer group, they were targets. CHAIRPERSON: 7.6 is one of those answers that was eventually submitted, initially she was not a target.

MR HATTINGH: Yes. Yes, Mr Chairman, that's why ...(intervention)

CHAIRPERSON: Initially she was not a member of that unit but when pressed and pressurised, he did.

MR HATTINGH: But from then on he consistently maintained that she was a member of the ...(indistinct). And he continues,

That's what he testified, that's what Mr de Kock testified. He also at one stage stated that Ms Quinn was not a direct target. That's the point I'm trying to make, Mr Chairman. She was not the prime target. She was a target, but the prime target was probably Mr Meyer and the people who were going to enter the country, but you will recall at one stage and I can find you the reference if you want me to, Mr Chairman, Mr de Kock made it quite clear that you don't walk into a house once you have information that there are ANC members there and members of the Meyer group and ask every person present to identify himself in order to ascertain whether they were the ones that should be eliminated and so on. They wanted to get Mr Meyer and the other members, who were possibly going to enter the country, but Mr Chairman isn't it just logical that if you have information and there is a certain group of persons who are responsible for attacks, attacks that had already been carried out, that was the information, they'd already carried out certain attacks in the Republic, that group was the Meyer group. Are you going to fine yourself to three members or two or three members, or are you going to wipe out the whole group if you find them together? If you bear in mind the evidence of Brig Schoon, that he would have expected them to act against members of the ANC, regardless of whether they were members of the Meyer group, so much more so would you expect them to kill all the members of the Meyer group, because without the logistical support of the people who didn't actually go in and carry out the armed attacks, those armed attacks can probably not be carried out successfully, Mr Chairman. You needed a support base from where you act and so on and therefore I submit Mr Chairman, that although Ms Quinn was not a primary target, she was a target and Mr de Kock made that quite clear in his evidence at a later stage.

I say on page 12, "eventually he conceded that he gave instructions to Adamson and Coetzer to go and kill both Leon Meyer and Jackie Quinn."

CHAIRPERSON: Why did he deny it in the first place?

MR HATTINGH: Mr Chairman, that is difficult for me to explain.

CHAIRPERSON: Fair enough.

MR HATTINGH: I can attempt it by saying to you ...(intervention)

CHAIRPERSON: Mr Hattingh, don't embarrass yourself.

MR HATTINGH: No, I'm not embarrassed to try and explain it, Mr Chairman. You've heard the evidence of Mr de Kock that his application for amnesty was drawn up in great haste. Now he's committed himself to a version in his application which he - that version which he gave some, I don't know it's now 15 years, it was probably then about 12, 13 years after the event and it's only natural for a person to be reluctant, to concede that he gave a wrong version in his application for amnesty.

CHAIRPERSON: But Mr Hattingh, Mr de Kock has appeared before me on a number of occasions, some of those occasions he was represented by you and others by somebody else. He has in the past added or corrected his written statements, and I'm sure he was aware that he could have done so here.

MR HATTINGH: Yes, certainly Mr Chairman.

CHAIRPERSON: And I'm not talking about his written application, I'm talking about his testimony. That's what I - why did he in his testimony deny that in the first place for long periods and eventually conceded?

MR HATTINGH: Ja. Mr Chairman it's not only what he said in his application for amnesty. You will recall that he also testified about this incident as his criminal trial and there he gave evidence in mitigation and there he tried to create the impression that they did not act against women unless they became involved in the struggle as such and that is what he said in his criminal trial, or words to that effect and I submit, Mr Chairman, having said that at his trial and in his application, possibly he felt reluctant to change his version. After cross-examination, after he was hard pressed by Mr Berger, he probably came out with the truth. I submit Mr Chairman, that the probabilities are ...

CHAIRPERSON: Is that the truth?

MR HATTINGH: I submit it is, yes, Mr Chairman.

Mr Chairman, I submit that on the probabilities, the concession that he subsequently made, namely that he gave instructions, that is probably the truth, because bear in mind the circumstances which prevailed at the time. They are there ready to launch the attack. They're in a foreign country, they're parked along a street that is patrolled by Security Forces, they're there illegitimately, they crossed the border illegitimately. They are armed. Certainly they had very little time to carry out the operation. At some stage Mr de Kock said - gave a time span. I think he said he allowed himself, I forget how long he said, but it was a matter of minutes in which to carry out the operation. Now he's told at the very last moment that the prime target, Mr Meyer, has left the house together with his wife. Isn't it logical that at that stage he would have only said: "You to go and deal with them" without saying "Don't shoot the women, or only shoot the man", or words to that effect. I submit Mr Chairman, that he probably didn't say to them: "Go and shoot both of them", he probably just gave instructions and said: "Go there and deal with them". That is what they intended doing at the house. They intended killing both of them there and I submit that that is the truth, that he gave instructions for them to be killed and he gave those instructions, Mr Chairman, because he believed her to be a member of the Meyer Group and therefore as a target for elimination, the same as all the other. Had she been killed at the house, Mr Chairman, had they not left the house and had she been killed there, I have no doubt that we wouldn't have been in this argument. There would have been very ...

CHAIRPERSON: Or at the very least, she'd have been caught in the cross-fire.

MR HATTINGH: Caught in the cross-fire, yes, Mr Chairman and although Mr de Kock at once stage said she was caught in the cross-fire, that cannot be correct. She wasn't caught in the cross-fire.

CHAIRPERSON: Well, your argument is correct if she was indeed a target and therefore he told his operatives: "Go deal with them".

MR HATTINGH: Yes.

CHAIRPERSON: But if she wasn't a target, then his initial evidence made sense. When he testified his operatives: "Go deal with Meyer" and they allegedly came to make reports back to him.

MR HATTINGH: Well, if that is so Mr Chairman, why would he then not have given the same instructions with regard to the attack at the house? There is no evidence that he gave instruction that: "If we hit the house, remember Jackie Quinn is there, we do not shoot her".

CHAIRPERSON: No, no, no as I understand the evidence, he was told the house has been cleared of all those who don't need to be killed, therefore all the occupants of that house at the time were targets, but the difference there is that Meyer left the house with his wife.

MR HATTINGH: I follow what you're saying to me Mr Chairman, but had that no happened, let's deal with the situation just before he was informed that Meyer had left the house. Up until that stage Mr de Kock didn't give any instructions to the effect that Ms Quinn was not to be killed.

CHAIRPERSON: No, and everybody in the house, he didn't know who was there.

MR HATTINGH: Mr Chairman, I'm subject to correction, but I seem to recall that Mr McCaskill said that he told Mr de Kock that Meyer and his wife were there.

JUDGE KHAMPEPE: And the baby.

MR HATTINGH: And the baby.

CHAIRPERSON: Well maybe that, I mean disinformed that she's going to be caught in the cross-fire if what the victims are saying is correct.

MR HATTINGH: The only point I'm trying to make Mr Chairman is, he did not give instructions for her not to be killed in the house, therefore it is improbable that he would have given instruction for her not to be killed at her own house. The probabilities are that ...(intervention)

CHAIRPERSON: Was she a target? Did he give instructions that she should be killed wherever?

MR HATTINGH: Well, he said so and he said she was a target. He said that repeatedly, although that was different from what he said initially.

CHAIRPERSON: Well, that's one of the points of dispute.

MR HATTINGH: Yes. But he did say so repeatedly, he was asked and I'll give you the reference to where he ...(intervention)

CHAIRPERSON: No, I'm aware that he did testify under cross-examination.

MR HATTINGH: I give you about three page references at the foot of page 10 where he said that she was a target.

I submit therefore Mr Chairman, that he had the same political motive for killing Ms Quinn as he had for the killing of the other people.

JUDGE KHAMPEPE: Mr Hattingh, can you say that Mr de Kock reasonably believed that Ms Quinn was involved in acts of terror, because he has defined the Meyer group as having been a group which comprised people who were involved in acts of terror. That was Mr de Kock's definition of the Meyer group.

MR HATTINGH: We are also, with respect Mr Chairman, involved in acts of terror if you make it possible, if you render assistance for the people who carry out the actual attacks.

CHAIRPERSON: That may be a matter for definition, but I don't think that's what the evidence was intended to be contextually. As I understood Mr de Kock's evidence, direct acts of violence, that's what he was talking about.

JUDGE KHAMPEPE: That's at 2231 (1).

MR HATTINGH: Page 92 is the page reference, volume 2 I'm told Mr Chairman. The heading said raid victims linked to S A Terror, then in the second column, last paragraph ...(intervention)

CHAIRPERSON: Is that a South African newspaper?

MR HATTINGH: Perhaps my learned friend, Mr Berger, can assist. I think this is one of the cuttings that they did before. It looks like the Sunday Times of the 29th of December, Mr Chairman. There's an ST/29/12. Second column under the heading Involved: "The couple's on year old baby, Phoenix..."

JUDGE KHAMPEPE: May I get the reference again Mr Hattingh? Page 90?

MR HATTINGH: Page 92, second column, last paragraph under the heading Involved.

something that's deleted, I can't read that confirmed her membership. ...(indistinct - mike not on)

CHAIRPERSON: That report had not been printed by the time de Kock ...

MR HATTINGH: No.

CHAIRPERSON: Made his decision to attack.

MR HATTINGH: No, but at least it shows that other people were of the same impression.

CHAIRPERSON: That's why I asked, the source is a South African newspaper?

MR HATTINGH: Yes. Yes indeed, Mr Chairman. But Mr de Kock, coming back to my argument on page 10, Mr Chairman, de Kock testified that:

I submit Mr Chairman that if she, we've heard the evidence of Mr McCaskill that in his house, the house where he was living, there were arms. He found the hand grenades or the landmines, or whatever it was, that he produced to show that he had reliable information in the house where he was living. It belonged to one of the members of the Meyer group. Is it not reasonable to assume that the same thing happened in the Meyer house, that there were also weapons there ...(indistinct)

CHAIRPERSON: Where's the evidence there?

MR HATTINGH: No evidence Mr Chairman, I must - but I submit Mr Chairman, that it was reasonable under the circumstances, for Mr de Kock to assume that Ms Quinn was a member of the Meyer group, that she supported her husband in everything that he did and she did.

CHAIRPERSON: Mr Hattingh, something confuses me here and I'll tell you what it is. There was a plan to attack a particular house where Mr McCaskill arranged what he called a party. At that party was supposed to be McCaskill - Meyer. Somehow during the periods just before the proposed attack, the perpetrators are informed that the main target, Meyer, has left this party with his wife and child. It was never part of the original plan to attack any other house but this house where the party was supposed to be held. It never crossed his mind, I daresay he would have testified to that effect, that had he - it never crossed his mind that there's another house now that may be used by the ANC and contained arms and ammunition and whatever and while we're at it, we may as well attack that house and kill everybody in that house too. The evidence here disclosed that he had to amend the plan so as at least to go kill his main target, Meyer. Therefore the question of whether there were arms to be found where Meyer was staying and whether other things occurred there, is really speculative and didn't form part or wasn't relative to the original plan.

MR HATTINGH: I accept that as far as his planning was concerned, it didn't form part of it Mr Chairman, but can the fact, the possibility that such arms and ammunition were in fact at times in the house of Meyer, be excluded?

CHAIRPERSON: Well is that part of the applicant's case?

MR HATTINGH: Not really. What I'm aiming at, Mr Chairman, is just to establish that Ms Quinn was more than just the wife of an MK member.

CHAIRPERSON: And because there's a possibility that she harboured arms and ammunition, she was just a little bit more than a supportive wife.

MR HATTINGH: Not only that, Mr Chairman, because of the fact that she knew her husband was a member of MK, she knew he frequently left the country to carry out attacks in the Republic, she knew exactly what was going on.

CHAIRPERSON: So the knowledge thereof is irrelevant, isn't it?

MR HATTINGH: Not, with respect, as far as Mr de Kock is concerned, Mr Chairman. He was told she was a member of the Meyer group and surely ...(intervention)

CHAIRPERSON: Who told him that?

MR HATTINGH: McCaskill and McCaskill confirmed that, Mr Chairman, if I remember correctly.

JUDGE KHAMPEPE: Did he, Mr Hattingh?

MR HATTINGH: I'm subject to correction. I asked my learned friend Mr Joubert and he wasn't certain about it either, unfortunately I do not have notes or a record to check on.

JUDGE KHAMPEPE: I don't recall him confirming that Ms Quinn was a member nor a supporter.

MR HATTINGH: But he did say that all the people who were left in the house, were members of the Meyer group.

JUDGE KHAMPEPE: I recall him insisting that he advised Mr de Kock that not only was Mr Meyer there, but he was there with his family and he seemed to have stressed the fact that it was Mr Meyer who was there with his family.

MR HATTINGH: Mr Chairman, the mentioning of the wife and family, I think that came about when Mr McCaskill testified that he told Mr de Kock that Mr Meyer, Ms Quinn and their baby left. He wasn't told before the time that the baby was there, he was only told that they left. That was the first reference. You will recall Judge Khampepe, that when I cross-examined somebody about it and I said there was no, I think it was a sister that I cross-examined and I said to her there was no reference to the fact that the baby was at the party and she said her sister would never have let him in. You drew my attention to the fact that Mr McCaskill said in his statement that he told Mr de Kock that Mr Meyer, his wife and their baby left the party and that was the only reference to the baby he made. Mr de Kock wasn't told before the time that the baby was at the house. In fact he was told only members of the ANC and the Meyer group were in the house.

CHAIRPERSON: That may be so, but was he informed that Jacqueline was a member of the Unit?

MR HATTINGH: He was informed, according to his evidence, Mr Chairman, yes, I've given you the reference. That is according to Mr de Kock's evidence.

CHAIRPERSON: I'm talking about McCaskill. Did he say he told everybody that she was a member?

MR HATTINGH: Quite frankly I do not recall Mr Chairman.

JUDGE KHAMPEPE: I think the reference you are looking for, it's 2309.

MR HATTINGH: 2309 is where Mr de Kock says that he had been told by Meyer. De Kock testified that according to McCaskill, she was part of the Meyer group and I give the reference there.

CHAIRPERSON: Was that after the pressurised answers that he had to give?

MR HATTINGH: I'm not sure, Mr Chairman.

CHAIRPERSON: Because it doesn't make sense to be part of his initial evidence, when he said she wasn't even a target. My guess is that that kind of answer would only come after he conceded: "Look, she was a target and I gave the order for her to be assassinated."

MR HATTINGH: I haven't looked at the ...

CHAIRPERSON: I'll check it. I'll read through it.

MR HATTINGH: I won't be able to tell you now whether that was said before or after he was pressurised into conceding that he was a target Mr Chairman.

ADV BOSMAN: What I do recall, Mr Hattingh, is that McCaskill said that he was told that she has to be killed. That I do recall.

MR HATTINGH: Yes. Somebody drew my attention to that fact. I had forgotten about it, Adv Bosman, yes, that is quite correct, that he was - was it McCaskill who said that he was told that she had to be killed. Yes, Mr Chairman, there was such evidence.

CHAIRPERSON: That was one of his amendments of his statement.

MR HATTINGH: That is correct, yes. That is correct, yes, Mr Chairman. So for what it's worth, Mr Chairman, de Kock told ...

CHAIRPERSON: By the way, what do you think of McCaskill?

MR HATTINGH: As a witness Mr Chairman?

CHAIRPERSON: Well, that's all I'm prepared to entertain about him.

MR HATTINGH: I make the submission somewhere in my heads Mr Chairman, that the fact that he lied in some respects, does not necessarily mean that his evidence has to be rejected in total and I submit, made the submission, Mr Chairman, with reference to the State versus Oosthuizen on page 7, there are other cases which say the same.

CHAIRPERSON: I think I'm the one in trouble here, because everybody's going to say: "You take this bit and you believe him" and for the rest you disbelieve him.

MR HATTINGH: The submission that I make here Mr Chairman is that in as much as there is support, or corroboration for his version, that can be accepted.

CHAIRPERSON: And I assume that you know the rule related to corroboration, that self corroboration doesn't help.

MR HATTINGH: I'm talking about corroboration by other witnesses, Mr Chairman.

CHAIRPERSON: Ja, well we must bear in mind that the relevant issues are things that he transmitted to them and they're coming to repeat. So he's the actual source of that information.

MR HATTINGH: I'm relying on what he told Mr de Kock. He says he told Mr de Kock certain things and Mr de Kock says he did.

CHAIRPERSON: And did Mr de Kock say he did?

MR HATTINGH: He says he did. That's not self corroboration Mr Chairman, that's corroboration. And therefore Mr Chairman, I would submit that Ms Quinn was not an innocent bystander, was not killed in the cross-fire but was killed because she was ordered to be killed by Mr de Kock and because ...

CHAIRPERSON: So when Mr de Kock sent the perpetrators to the house, it was intended that these two people were killed?

MR HATTINGH: That they should be killed, yes Mr Chairman.

I don't know if you wish me to deal with other matters which I've raised in the Heads of Argument.

CHAIRPERSON: No, no, your Heads are sufficient. That was the only burning issue that I needed to hear you on.

MR HATTINGH: Thank you Mr Chairman. I can't take that issue any further.

CHAIRPERSON: Thank you Mr Hattingh. Mr Cornelius I can't remember who you appear for.

MR CORNELIUS: I'm acting for N J Vermeulen, one of the foot soldiers.

CHAIRPERSON: Mr Cornelius, we don't need to hear you unless Mr Berger submits compelling reasons for us to hear you.

MR CORNELIUS: Thank you Mr Chair.

CHAIRPERSON: We'll come back to you, if necessary. Mr Lamey, we'd like to hear you on Mr Nortje only in regard to the

period of preparation for this attack. What do you say about that? We're ranging now from 10 days to 3 days, or whatever.

MR LAMEY IN ARGUMENT: Mr Chairperson, I'll try and deal with that. May I just ask you, does the issue around the death of Jacqueline Quinn, does that affect in your mind, or do I need to address you in that respect at all?

CHAIRPERSON: Well, do you agree with what Mr - well if you want to deal with it because if the main perpetrators or everybody - or if there's a failure on that, then everybody's struck by it, isn't it.

MR LAMEY: Yes, my submission is ...

CHAIRPERSON: And if we grant it, then everybody must get it.

MR LAMEY: Yes. Chairperson, my submission is that it doesn't necessarily follow that if, for example, if Mr de Kock is struck by not being given amnesty for the death of Jacqueline Quinn, that that must, as a necessary consequence, also follow that Mr de Kock or Mr Nortje, or Bosch or the other foot soldiers shouldn't get amnesty and I say that for the reason, Chairperson, that it's also partly based on Mr Hattingh's submission, that there's a framework that has been provided to the operatives, namely to attack a house where Leon Meyer and his group would be gathered together. That was also the evidence of Mr Nortje. Mr Nortje doesn't have direct liaison with the source, but his understanding is that every one that will be attacked there, would be legitimate targets. Now we all know that at some point in time, Jacqueline Quinn was in that house. In other words, Chairperson, from the point of view of the foot soldier, they had a mandate to attack and kill an unidentified number of people concentrated in that house. That would have included Jacqueline Quinn if she was there. Now, and that brings me to the point that there was - she was at least from that point of view, up to the stage that she departed from that house, part of a common purpose and a conspiracy, Chairperson. Now, Mr Nortje is not privy to the conversation to Mr de Kock and Adamson and Coetzer, so he cannot say what the instruction was. But Chairperson, you have raised the point here that we don't know what happened at the house of Jacqueline Quinn and Leon Meyer. My submission, Chairperson is that we do know what happened there.

We know that, based on the report of Adamson and Coetzer to de Kock, which was confirmed by Nortje at the river when - before they crossed the river back into the RSA. The report which they made was that Jacqueline Quinn entered the attack. Now Chairperson, unfortunately we don't have the direct evidence there. It's in other words hearsay evidence, but given the situation that Adamson is deceased and he cannot confirm that, Coetzer refused to give evidence. The only available evidence before this Committee is the hearsay evidence. Chairperson you do have a discretion in terms of the Act. I'm talking about, I can't remember now the exact name of the Act, but I believe it's the Law of Evidence Amendment Act with a certain number, which gives any Court the discretion to allow hearsay evidence and one of the factors that can be considered if there's a good reason that that evidence is - can be accepted as, or there's some reliability in that evidence and that evidence cannot be corroborated by any other evidence, like this in this instance where one of your witnesses is dead and the other one refuses to testify. My submission is it cannot be so unreliable, given those circumstances, where junior operatives report to their commanding officer, immediately after the attack, what happened there. It's a report shortly after the event and therefore, Chairperson, I submit that although it's hearsay and we don't have the ...(indistinct) I think you can take, to a great measure of ...(intervention)

CHAIRPERSON: Mr Lamey, how reliable is it? Can we believe the utterances of a murderer on the basis of hearsay?

MR LAMEY: Chairperson, you must put yourself in the position of these members of this ...

CHAIRPERSON: Thankfully I'm not.

MR LAMEY: No, no, Chairperson, but I submit they all work under - de Kock and his men had a large measure of trust in each other. They confided in each other. They trusted each other.

CHAIRPERSON: Is it? Really?

MR LAMEY: Well, Chairperson, at the time, they did. They did in fact do that.

CHAIRPERSON: They then treated each other on a need to know basis. That has been the style of the evidence in many cases.

MR LAMEY: Yes, certainly, they treated each other on the need to know basis, but in this specific operation, all six members that were granted medals, were part of that need to know basis and in that sphere of this group that executed the attack, they confided and trusted each other, very much so, in so much that they depended with their lives on that. Now I'm asking, if a junior comes and reports to de Kock and says: "Look, Jacqueline Quinn and Leon Meyer have been killed. These were the circumstances in which they were killed. Jacqueline Quinn grabbed my gun when I entered the house. I shot her for that reason", Chairperson, my submission is that we've got a strong indication of reliability of that report. That report which is made to de Kock, de Kock testified that that was the gist of the report to him. Nortje overheard that report and he says I confirm, that is also what I heard.

Now there can be no doubt Chairperson that that report was in fact given and then I submit that in the context where shortly after when that report was made to de Kock among people that trusted and confided with each other and given the fact also Chairperson, that Mr de Kock was a very strict Commander, I would submit that no junior officer, under those circumstances, would have dared to deliberately lie to de Kock under those circumstances. He is after all the Commanding Officer.

CHAIRPERSON: What is Mr Nortje's case, that Jacqueline was a supporter at least of the MK, or was she killed in a cross-fire, or did she try to defend her husband and thereby get killed, or what is Mr Nortje's case?

MR LAMEY: No. Mr Nortje's case is, he did not have any direct evidence beforehand that Ms Quinn was ...(intervention)

CHAIRPERSON: No, he's making an application for amnesty in respect of her death. He needs to comply with certain requirements. What is his version that you hope to persuade us that he complies with the requirements of the Act?

MR LAMEY: In respect of the death of Jacqueline Quinn?

CHAIRPERSON: Ja.

MR LAMEY: Chairperson, my submission is this, that, I want to take you back to the evidence of Gen van der Merwe who said that they - the loss of innocent life, the order was to prevent the loss of ...(intervention)

CHAIRPERSON: Mr Lamey, I'm asking you what happened there? What's Mr Nortje's basis of a version, whatever it may be, as to how Jacqueline lost her life?

MR LAMEY: Mr Nortje's version, he doesn't have a direct version.

CHAIRPERSON: On what version does he rely then?

MR LAMEY: He relies, he can only rely, Chairperson, on the report which was given in his presence to Mr de Kock by, I can't remember now whether it's Coetzer or Adamson, but one of them, shortly after the completion of the operation.

CHAIRPERSON: Would you agree, there's only one set of circumstances that could have led to a death, whatever it may be, not so? Either, or four rather, either she qualified as a political target as Mr Hattingh argued, or she was killed because of what this hearsay explanation is, or she was defending her husband, took hold of the firearm, or that she was wrongly killed. Which one would I or this Panel have to take into consideration when considering Mr Nortje's application? We can't take all four into consideration, they're different.

MR LAMEY: Chairperson, insofar as the conspiracy is concerned and the common purpose to kill, she would have found herself in the house of McCaskill, had it not been for the fact that ...(indistinct) As far as that and at that stage the mandate of Nortje with the others, was to kill those who were in that house and that would have included Jacqueline Quinn. In other words, he would qualify for amnesty for conspiracy to murder Jacqueline Quinn and/or murder of Jacqueline as part of a common purpose, Chairperson. Mr Nortje is not, I mean he must as a foot soldier, I mean he wasn't privy to what order was given by de Kock to Adamson and Coetzer, but surely Chairperson, what, from his perspective is, what he overheard in terms of the report was that she intervened in the attack at a specific point in time.

Now if that is so, Chairperson, the situation of Jacqueline Quinn, in my submission, is really similar to the woman that Nortje passed when he entered the kitchen of the house of McCaskill. You will remember his evidence that he wasn't sure at that stage whether that person was perhaps an innocent person and he passed that person.

CHAIRPERSON: No. Look, in that house, McCaskill's house, for the purposes of argument let's accept that de Kock and the rest of those people relied on the information that everybody in that house now are targets and whoever is in that house is going to get killed.

MR LAMEY: Yes.

CHAIRPERSON: So whether they're passing on the way to the kitchen or the bedroom, or whatever, they were done for.

MR LAMEY: Okay.

CHAIRPERSON: When you get to Meyer's house, that's a different kettle of fish. Isn't it so? The issue here is whether Jacqueline should have been a target and whether she was a target, that's the issue.

MR LAMEY: Chairperson whether she was a target or not a target, Mr Nortje is not in a position to either ...(intervention)

CHAIRPERSON: Hence I asked you the question if he's applying for amnesty in respect of the death of Jacqueline. On what version does he want us to consider his application?

MR LAMEY; Well, he cannot rely on the version of the fact, the order, that was given by Mr de Kock. I don't want to make any submission as to...(indistinct), that is for Mr Hattingh to say and his client was in that position, whether that lies within the order which de Kock gives, but certainly objectively speaking, and that is what I want to submit, if a person had under those circumstances entered or intervened into the attack, Chairperson, certainly from the perspective of the operatives, that person would have automatically become an obstacle in the execution of the target.

CHAIRPERSON: So you are saying that Mr Nortje's case must be considered on the basis of what was reported to Mr de Kock?

MR LAMEY: Yes, that is what I'm saying.

CHAIRPERSON: Carry on.

MR LAMEY: Okay. Chairperson as far as the time period is concerned, ...(intervention)

CHAIRPERSON: Would you say it goes for both your clients?

MR LAMEY: Yes, Mr Bosch too.

CHAIRPERSON: Yes, carry on.

MR LAMEY: Chairperson, as far as the time period is concerned, Mr Nortje readily, he did concede that he's not in a position to say exactly at what point in time the order was given by Gen van der Merwe, but what he was clear about is that at least in that period, I think later he said seven days - I actually just want to go back to the specific pages of his evidence, if you could just bear with me. He says on page 2505 Chairperson, that is in his evidence-in-chief:

Chairperson, I don't think that this time period, in my submission, I'm not exactly sure why you asked the question, asked me to address you on this aspect. I don't think this time period really is really important from Mr ...(intervention)

CHAIRPERSON: Mr Lamey, I never asked you, you thought it was important as being your client who testified, I just want to know what your views are on his evidence on that time period. It does become important to us.

MR LAMEY: In respect of the ...

CHAIRPERSON: Yes.

MR LAMEY: The broader picture, yes, Chairperson. Chairperson no, he had an estimation of approximately ten days before that that they went to Ladybrand. The gist of his evidence was that he believed that it was for the purpose of carrying out this operation, but in the same breath he said: "I don't know exactly when the final ..." ...(intervention)

CHAIRPERSON: The purpose of the question is not to impute any guild to your client, or to make indecision etc., but his evidence as to what he can recollect as to the preparation for this attack becomes very important to us.

MR LAMEY: Yes. Chairperson and he did testify further on page 2506, well on that same page he says:

Okay. He says:

that is on page 2506

He says then later, just a little bit down on that page, 2506, he says:

Chairperson, my submission in this regard is that I think with this type of order that is ultimately given, it does, it comes from the ground, being the Ladybrand area, that is actually the route of the order that was actually given. There was liaison with the Ladybrand branch and ultimately it was, the situation was relayed to Head Office, where all the information was considered and then Van der Merwe ultimately after he asked de Kock to make a proposal, the order was given. Chairperson, now we do also have the time lapse of 15 years that transpired. I think it's very probable, in my submission, that in the mind of the foot soldier, already a longer period before the attack took place, such an operation was already, although not perhaps finally proved, but already imminent and to, in their minds, a likely thing to happen, Chairperson and that is my submission and I think, if I remember correctly, Schoon in his evidence when I put that to him, Schoon conceded that.

CHAIRPERSON: Is that all, Mr Lamey?

MR LAMEY: Unless there's anything else. I don't know whether I ...

CHAIRPERSON: Not at this stage, it depends on what Mr Berger's got to say. Mr Berger, are you going to be quite a time, given the hints that we've given from ...(indistinct)

MR BERGER IN ARGUMENT: Chairperson, I am going to be longer than 20 minutes, but what I thought, before I ...(intervention)

CHAIRPERSON: How long are you going to be maybe, more than 20 minutes, half an hour, an hour?

MR BERGER: I think probably an hour to an hour and a half, yes, but Chairperson, before we adjourn, maybe I should give you my submissions on the last point because I'm actually not in agreement with your view or the concessions that have been made by my learned friends, as attractive as they are, their concessions, not my learned friends.

CHAIRPERSON And that's confused me throughout this hearing.

MR BERGER: Well, Mr Chairperson, it's the issue about whether, if say Mr de Kock falls on the amnesty for Jacqueline Quinn, whether that has a ripple effect for all the applicants and my submission is that it doesn't.

CHAIRPERSON: It doesn't?

MR BERGER: It doesn't and I thought maybe I should make that clear now tonight so that we don't waste time with it tomorrow. Can I address you on that?

CHAIRPERSON: Briefly. Are you saying I must stay in Pretoria tonight?

MR BERGER: Yes. I did say that the last time. I said: "Don't make arrangements before lunch."

CHAIRPERSON: I thought I could ...(indistinct) this place. So you say - so what are you saying about this ripple effect then, it doesn't exist?

MR BERGER: No it doesn't.

CHAIRPERSON: Tell me why.

MR BERGER: Alright. Assuming that a crime has been committed, the applicants are all guilty in criminal law on the basis of the doctrine of common purpose. Once they commit an act of association as they all have, they are all guilty of the murders of all the people who died, so in criminal law they're guilty and for that they must apply for amnesty, but the Act is very specific. The long title of the Act says that the Act is to provide for and I skip out a lot of things, but when I get to about a third of the way down, "the granting of amnesty to persons who make full disclosure of all the relevant facts"

CHAIRPERSON: I thought you're going to emphasise the reconciliation bit.

MR BERGER: No.

CHAIRPERSON: Oh.

MR BERGER: "Of all the relevant facts relating to acts associated with a political objective, committed in the course of the conflict of the past during the said period."

And then if one has a look at Section 20, the Section dealing with amnesty, it says:

My submission is very simply this, when amnesty is granted to a particular applicant, amnesty is granted for a specific act. Now the act of Gen van der Merwe, for example, is the act of giving the order, so if the Committee is satisfied that he has made a full disclosure of all relevant facts and that his act is an act associated with a political objective within the meaning of (2) and (3) of Section 20, as long as that act amounts to an offence or a delict, he's entitled to amnesty. He's entitled to amnesty for all the consequences of that act. It can't be argued that because he gives an order, that X be killed and then the operative goes beyond the terms of that order and kills Y, deliberately beyond the terms of that order, that his amnesty application should fail. I submit that the intention of the Act is clear. The intention is to give amnesty for certain acts, as long as the other requirements of the Section are complied with. That act is an act of association, which brings in within the common purpose of the murder of all nine, but that's for the purposes of the criminal law. Once he gets amnesty for that act, he's then immunised as it were, in respect of all the murders that resulted from that act. So that's why, otherwise I submit that the working of the Act just becomes, it's impossible to then decide when amnesty is granted and when it's not going to be granted and I think that the key to it is the recognition of the fact that amnesty is granted for acts or omissions, as the case may be.

CHAIRPERSON: Well, Mr Berger, I'm going to ask you one question for you to consider before you argue tomorrow. Whether you are really objecting to amnesty. Don't answer it now. Think about it.

MR BERGER: No, no I can answer it now.

CHAIRPERSON: No.

MR BERGER: Because we've made it clear in our Heads of Argument that we are not opposing the amnesty applications of Mr Nortje, Mr Bosch and Mr Vermeulen. We've made that clear already. We are only opposing the amnesty application of Mr de Kock in relation to the death of Jacqueline Quinn and we are opposing the amnesty applications of Mr van der Merwe and Mr Schoon in relation to all the deceased for the reasons set out in the Heads of Argument, so we've analysed it and we've made that decision as difficult as it may, right at the beginning of this process, we said we were not here to take chances and to take points and on analysis of the evidence, we see no basis for arguing that amnesty ought to be granted to Mr Nortje, Mr Bosch and Mr Vermeulen, but for the others, we have arguments which we've set up.

CHAIRPERSON: We adjourn to half past nine tomorrow.