TRC Final Report

Volume 6

Section 1

Chapter 4

Subsection 3

Former State President de Klerk’s challenge^{4 8}

22. On 1 September 1998, the Commission gave notice to former State President FW de Klerk of its intention to make findings against him to his detriment (in terms of the provisions of section 30(2) of the Act). The findings it contemplated making were set out in an annexure to the notice. Mr de Klerk was notified of his rights under the section 30(2) provisions and was required to respond to them. The Annexure read as follows:

THIS PARAGRAPH BLACKED OUT FOLLOWING LEGAL PROCEEDINGS

23. Despite objections by Mr de Klerk, the Commission resolved to publish its findings. As a result, on 26 October 1998, Mr de Klerk filed an urgent application with the Cape High Court for an order directing, inter alia, that the Commission be interdicted from:

a making any of the intended findings set out in the annexure to the notice dated 1 September 1998 issued in terms of section 30(2) of the Act;

b including any of the intended findings in the report to be submitted to the President on 29 October 1998; and

c submitting the report to the President, should it contain any of the intended findings.

24. The Commission’s findings against Mr de Klerk were challenged on various grounds, including allegations of bias against him by members of the Commission.

25. Given the timing of this legal challenge (26 October 1998) and the fact that the Commission was due to hand over its Report on 29 October 1998, the Commission was advised by its legal team not to risk an interdict, which would have had the effect of preventing the Report from being handed over to P resident Mandela. The Commission acted on this advice and agreed not to publish the finding and to deal with the matter after publication and the handover.

26. The Commission ‘blacked out’ the findings.

27. The matter was to be set down for hearing in the Cape High Court. In the intervening period, the Preside n t ’s Office tried to facilitate a settlement between the Commission and Mr De Klerk. As the full Commission was in suspension and the Amnesty Committee was the only body in existence at the time, it entered into discussions with Mr De Klerk in an effort to resolve the matter.

28. As a result of these discussions, the Amnesty Committee accepted the following finding, which Mr De Klerk conceded to.

29. Proposed finding relating to Mr FW de Klerk’s knowledge of the Khotso House bombing:

Mr FW de Klerk was a member of the State Security Council throughout the 1980s and State President and head of the former government during the period 1989 to 1994. On 31 August 1988, Khotso House, which was located in the central business district of Johannesburg, a densely populated urban area, was bombed by members of the SAP. The bomb had immense explosive force, rendered Khotso House unusable and damaged neighbouring properties and vehicles. There was a high risk to passers-by who could have been killed or injured; there were blocks of flats in the immediate vicinity which were inhabited; there was a flow of pedestrian traffic in the area which was very high till the early hours of the morning. The effect of the explosion was unpredictable. Colonel Eugene de Kock, who led the SAP bombing team, foresaw the possibility of loss of life as did Mr Vlok, who considered it a miracle that no one was killed. The group of policemen who carried out the task did so armed with automatic assault rifles with orders to shoot – if necessary – even at fellow policemen. As a result of the blast, a number of persons were injured (though not seriously). The inherent risk in unleashing a devastating explosion in a high-density area in the circumstances described above, involved the risk that persons might be killed. This risk was inevitably foreseeable and was in fact foreseen; the bombing was nevertheless ordered and proceeded with by the perpetrators with reckless disregard of the consequences .

During his presidency, Mr de Klerk was told by General JV van der Merwe, his f ormer Commissioner of Police, that he had been ordered as head of the Security Branch of the SAP to bomb Khotso House. Mr de Klerk did not re port the matter to the prosecuting authorities or the Goldstone Commission because he knew that General van der Merwe would be applying for amnesty in respect of the relevant bombing.

On 21 August 1996 and 14 May 1997, Mr de Klerk testified before the Commission in his capacity as head of the former government and leader of the National Party. His testimony was accompanied or preceded by written submissions. In his written and oral submissions to the Commission on 21 August 1996, Mr de Klerk stated that neither he nor his colleagues in cabinet, the State Security Council or cabinet committees had authorised assassination, murder, torture , rape, assault or other gross violations of human rights.

In a written question directed to Mr de Klerk on 12 December 1996, he was asked whether he maintained this assertion in the light of the allegation made by General van der Merwe against Mr Vlok. The allegation was to the effect that Mr PW Botha had instructed Mr Vlok to bomb Khotso House, and that Mr Vlok, inturn, had instructed General van der Merwe to do so. In his written reply on 23 March 1997, which reflected his views at the time of the preparation of his submission as well as the views of as many of his Cabinet colleagues as were conveyed to him at the time, he stated that Mr Vlok and any other members of form e r Cabinets should be allowed to speak for themselves. In his oral submissions to the Commission on 14 May 1997, Mr de Klerk stated that the bombing of Khotso House was not a gross violation of human rights as there was serious damage to property, but nobody was killed, or seriously injure d .

The Commission finds that the bombing of Khotso House constituted a gross violation of human rights and that at all material times, Mr de Klerk must have had knowledge it did despite the fact that no lives were lost.

The Commission finds that when Mr de Klerk testified before the Commission on 21 August 1996, he knew that General van der Merwe had been authorised to bomb Khotso House, and, accordingly, his statement that none of his colleagues in Cabinet, the State Security Council or Cabinet Committees had authorised assassination, murder or other gross violations of human rights was indefensible.

The Commission finds that when Mr de Klerk testified to the Commission on 21 August 1996 and responded in writing to the Commission’s questions on 23 March 1997, he failed to make a full disclosure of the involvement of senior members of the government and the SAP in the bombing of Khotso House.

30. However, this finding was never made an order of court as it was never put to the Commission and was thus never discussed, accepted or rejected.