CHAIRPERSON: The amnesty application of General van der Merwe, Mr Visser, are we in a position to commence?
MR VISSER: Yes, immediately, thank you Chairperson. May I say before we start that we will refer to the same documentation, that will be bundle 10 before you. We will refer without you having to have it before you to bundle 2J, you don't have to have it before you.
CHAIRPERSON: Yes.
MR VISSER: And to another exhibit which we now hand up, it should be before you, which I'm told will be Exhibit N unless you want to mark it Exhibit O for an easy pronounciation.
CHAIRPERSON: I find N to be pronounceable unless somebody else has difficulty.
MR VISSER: As opposed to M, alright if you make it N?
CHAIRPERSON: Yes.
MR VISSER: Then N it will be.
CHAIRPERSON: It will be Exhibit N.
MR VISSER: Yes Chairperson and that's it. General Coetzee is ready to take the oath.
CHAIRPERSON: You must be having the wrong person?
MR VISSER: Van der Merwe, I'm sorry. I did that yesterday as well.
CHAIRPERSON: Yes.
JOHANNES VELDE VAN DER MERWE: (sworn states)
EXAMINATION BY MR VISSER: Please take your seat, General.
General, I think it is quite fair to say that you have testified quite often in front of the Amnesty Committees and the Human Rights Violations Committee of the Truth Commission?
MR VAN DER MERWE: That is correct, yes.
MR VISSER: You also compiled an affidavit in which you ask that it must serve as your evidence before this Committee and this affidavit is Exhibit O that you have in front of you?
MR VAN DER MERWE: Yes that is correct.
MR VISSER: From page 2 you gave an exposition of the documentation and the evidence that you would like to be incorporated in this application?
MR VAN DER MERWE: Yes that is correct.
MR VISSER: Chairperson, at page 2C(b) the reference there is Bundle 2I, pages 1-29, (C(b)) that is that bewystuk P.46, that's bundle 2I before you, pages 1-29 and 47 - I'm sorry, C, the next item is bundle 2I, pages 136-147.
General, you give an exposition of your personal position, your police career on page 5?
MR VAN DER MERWE: That is correct.
MR VISSER: If you have a look at 1987, could you perhaps just tell the Committee what was your position in 1987?
MR VAN DER MERWE: Chairperson, during 1987 I was in command of the security branch of the South African Police.
MR VISSER: As you also did in the past, you discussed the struggle of the past from page 6. Much of the evidence has also been included in the amnesty judgement of Brigadier Jan Hattingh Cronje. You also refer to those aspects, we're not going to discuss that, you once again confirm that as the way in which you saw the struggle of the past?
MR VAN DER MERWE: Yes I do that.
MR VISSER: If we could page to page 13, that is the heading
"The Role that Botswana played in the Struggle"
You took note of what is contained in the paragraphs from page 25 onwards up to paragraph 41, that is up to page 20, is that correct?
MR VAN DER MERWE: Yes that is correct, I have knowledge of it and I also confirm the truth of that.
MR VISSER: There's also reference made to bundle 2J which serves in this Committee which includes certain statements and also statistics concerning the smuggling of weapons and so forth, infiltration from Botswana to the R.S.A. You are aware of that?
MR VAN DER MERWE: That is correct, Chairperson.
MR VISSER: Now those or the document, we're not going to refer to it but you know which one I'm referring to?
MR VAN DER MERWE: Yes I am.
MR VISSER: Could you perhaps just say from your knowledge how it came about that that document was compiled?
MR VAN DER MERWE: Chairperson, the document was compiled in 1988 by Brigadier Loots, that was because of the request of Foreign Affairs. At that stage arrangements were made to have discussions with the Foreign Minister of Botswana concerning the problems that we experienced regarding the use of Botswana by MK as well as other liberation movements and preparation was made to inform the Botswana authorities concerning the extent of the activities and then Brigadier Loots compiled such a document as a result to give that to our Minister of Foreign Affairs, Mr Pik Botha, to act as a guideline for him.
MR VISSER: Thank you. From page 20, page 42 onwards, you refer to the position of the applicants as you see it and with regard to the gathering and exchange of information, in paragraph 49 up to 54 you gave there a concise exposition starting at the early '80's, the discussions at Simonstad, I understand that the Simonstad Summit was the end of '88?
MR VAN DER MERWE: That is correct.
MR VISSER: Could you perhaps just inform the Committee concerning how this whole network of gathering and exchange of information, how that occurred? That is from the point at Simonstad at the summit there.
MR VAN DER MERWE: Chairperson, I explained here that the Simonstad Summit was held with the objective of discussing the information gathering and exchange to co-ordinate, rationalise that and at that summit it was agreed upon that with the exception of Swaziland which would be handled by the security branch, the other members of the information community in the other neighbouring countries would act there and the security branch would focus internally, that is besides Swaziland but obviously that did not exclude the gathering of information in the neighbouring states.
MR VISSER: Could you perhaps just refer to Trevits and the national interpretation?
MR VAN DER MERWE: There was also a branch National Interpretation which was established and senior representatives of the information community, the aim thereof was to get all the information that was gathered to evaluate the information, to interpret it and to convey that to the State Security Council and other members of the information or intelligence community. There was also a counter-revolutionary information task team that was Trevits, that it was established. The aim of this task team was to get information with regard to terrorist targets, routes, places where they stayed as far as resources in the neighbouring countries, to compile that with the aim of possible cross-border action.
MR VISSER: If we refer to targets, what precisely was meant with the expression "targets", would that every time imply elimination? What precisely is the meaning thereof?
MR VAN DER MERWE: With regard to the neighbouring states the identification and also the development of a target was aimed at action by either the Defence Force in an open capacity or otherwise in covert capacity to eliminate people.
MR VISSER: Would it then be correct to say that the decisions of the Simonstad Summit was circulated in the security branch of the South African Police and that people were then instructed to cooperate with regard to the exchange of information?
MR VAN DER MERWE: I would say that in practice it developed. Well I never really saw a document where those decisions were explained as such but in practice it occurred and the arrangement was that members of the intelligence community and also the different members of the security forces had to cooperate closely, that there should be proper coordination and all information be exchanged and assistance be given from all sides.
MR VISSER: Thank you. There were also many other institutions and councils, managements committees, bodies within the security community, we're not going to discuss that, the Committee has knowledge of that?
MR VAN DER MERWE: That is correct.
MR VISSER: If we have a look at page 23, the McKenzie incident, could you perhaps just inform the Committee of your knowledge and your involvement, participation in the case?
MR VAN DER MERWE: Yes certainly, Chairperson. During the first part of 1987 it could have been during March or April 1987, Brigadier Wickus Loots discussed or had a discussion with me in my office in Pretoria. At that stage, as I've already mentioned, Chairperson, I was the commanding officer of the security branch of the South African Police and Brigadier Loots was the commander of the security branch Western Transvaal. Brigadier Loots informed me that Brigadier Jack Cronje and him, Cronje was the divisional commander of the security branch Northern Transvaal, that they had discussions with Commandant Charl Naude of Special Forces of the South African Defence Force. At that stage an informer which is now known as McKenzie, had already succeeded in getting into the members of MK in Botswana and he also had their trust to such a measure that he was committed to smuggle weapons and explosives on many occasions from Botswana into the R.S.A. Many weapons and explosives had already got into the hands of the security branch in this way.
MR VISSER: Now the point is as had been explained, so that was approximately six or seven times in the past, that was March/April '87, he had already brought in weapons and explosives and then his handlers, Momberg and Goosen, having been informed, who then made it possible for the security branch members to prevent that the weapons and explosives be used for acts of terror?
MR VAN DER MERWE: That is correct.
ADV DE JAGER: General, but if that had been the case, then it would clearly have been a risk because if the weapons did not reach its target then the people would have started having suspicions concerning McKenzie.
MR VAN DER MERWE: Well what happened in practice is that when an MK member or a person who operated for MK brought the weapons or explosives into the R.S.A. then usually those weapons and explosives where then stashed at a specific place. Then he compiled a sketch plan where the weapons and explosives had been hidden and then later when the occasion arose, he then gave the sketch plan to MK and I can assure you that most of those sketch plans were so poorly compiled that MK members very seldom succeeded in getting the weapons so it would not have been strange if they did not get to the weapons in certain instances and another aspect is that during the struggle you have to keep in mind that MK wasn't that organised that they could check aspects. If they received a sketch plan from a specific person and it wasn't only from one person, it wasn't always possible for them when they sent in a group to check what happened to the group where the group got it's weapons. In many cases the people took the weapons with them but in general you could manipulate it in such a way without your informer being suspected and what also happened in many cases and that was that we allowed the informer to stash the weapons at a specific place but they were unarmed and if it had been found they would not be able to use it so in other words it would not be able to be utilised any more and that also would not have placed your informer under suspicion because many of the weapons, especially the hand grenades that were available were defective.
MR VISSER: So what you're saying General is that because of experience and the knowledge of the organisation of MK there were certain built in security measures to protect your informers?
MR VAN DER MERWE: Yes that is correct, we could control it in such a way that the informer would not necessarily be suspected and throughout you could manipulate it in such a way that your informer would be protected as far as possible.
MR VISSER: If the Committee is satisfied, could you please continue with paragraph 58?
MR VAN DER MERWE: According to reliable information, Johannes Mnisi, his MK name was Victor, Legote Puli, MK name of Oupa and Lester Dumakude, MK name of Chris, they were very important MK operatives, they were heading the activities of the smuggling of weapons and infiltration of terrorists between Botswana and the R.S.A. Johannes Mnisi was responsible acts of terror in the R.S.A. inter alia the Church Street bomb and I want to point your attention to it that Johannes Mnisi was also an applicant who appeared before the Amnesty Committee in regard to an application concerning the Church Street bomb.
According to information from McKenzie that was the weapons and explosives that he usually smuggled into the R.S.A., usually received that from Johannes Mnisi or Dumakude and or Puli.
MR VISSER: Would that be the information that you received from Loots?
MR VAN DER MERWE: Yes that is. I was informed by Brigadier Loots that it was during the discussions between Brigadier Cronje and Commandant Charl Naude, appeared that McKenzie received an instruction from MK to smuggle weapons and explosives to the R.S.A. during the Easter weekend of April '87. McKenzie would use his Kombi during the weekend which was equipped with a hidden compartment by the ANC for smuggling weapons and ammunition so the possibility was foreseen with the transport of the weapons and so forth, to use that and then also to use an explosion in eliminating Mnisi and Dumakude and or Puli in the using of McKenzie's Kombi. I was informed by Brigadier Loots that Special Forces and the Defence Force and Brigadier Cronje that there would be a possibility to eliminate Mnisi, Dumakude or Puli whilst the weapons were being transported. That was foreseen for the Easter weekend and Special Forces had the ability to build a remote controlled explosive device in the Kombi and also had an agent in Botswana who could then explode or detonate this explosive device.
The aim was to let the Kombi explode when Mnisi, Dumakude and or Puli and or any other activist when they were in the Kombi. Brigadier Loots gave me the assurance that the danger that civilians would be injured or killed was very slight and that all possible measures would be taken to prevent that.
MR VISSER: Could I just interrupt you? Did you enquire about this from Brigadier Loots?
MR VAN DER MERWE: Yes, that was part of our discussion concerning the danger that it could hold for civilians.
MR VISSER: Did you foresee that there would always be a possibility with a bomb that innocent people could be injured or killed or damage to property?
MR VAN DER MERWE: Yes but if it was controlled by a remote controlled device then you could limit that by means of the person using it.
MR VISSER: But you made sure that all possible steps had been taken?
MR VAN DER MERWE: Yes, that was the case. Members of the security branch would then handle the informer and all possible information would be made available to Special Forces. The operation in Botswana would fall under the control of Special Forces of the Defence Force.
I could perhaps also mention that I later received information that a light sensitive switch was also brought into the vehicle to detonate the explosives but as far as I know, Brigadier Loots did not mention that to me during our discussion. I consider the issue seriously, especially the possibility to neutralise Mnisi or Dumakude and according to me that had specific advantages and value for the security forces in their struggle against the ANC/SACP alliance and the onslaught against the R.S.A. In this regard I could perhaps just mention that there was already information known to the security branch regarding the high profile of these two people and the acts which they had already been involved with in the past.
The elimination would - must possibly be a great drawback for the ANC/SACP alliance for their activities from Botswana and it would without doubt contribute to the protection of life and property in the R.S.A.
The fact that the Botswana authorities were not really willing to give any real assistance to the security forces, also I considered that and the fact that members of the security branch could not succeed in preventing terrorists coming in and smuggling. That was also a consideration. After carefully considering all the circumstances of this case and after myself and Brigadier Loots had all the latest information concerning all the activities in and from Botswana, I then gave permission to Brigadier Loots that the operation of the security force or the security branch could continue with the understanding that the defence force would control the operation in Botswana and that the possible death of civilians should be prevented.
MR VISSER: Could we just summarise that? The extent for which you - the scope for which you gave permission or the instructions, however you'd like to call it, that is that McKenzie or the source then, you didn't know who he was, that the source would be used, his vehicle would be used and there would be monitoring work that would have to be done by the security branch members up to the point that he crossed the border and then the security branch involvement would then cease?
MR VAN DER MERWE: Yes that is correct, that was in practice the arrangement that we would supply all the information as you mentioned and we would make available the source as well as the vehicle and we would assist with monitoring but the real action in Botswana would be done by the Special Forces of the Defence Force.
MR VISSER: A further question, General, was the idea that you in head office would be doing all the planning of this operation, what was whole issue concerning where the planning should come from?
MR VAN DER MERWE: No, in practice it was usually done that the planning of the operation was done on ground level by the members who knew the circumstances and who would be involved with the execution of it and who were much better able to make the arrangements, that was something that was usually the case with all the security branches, it was not done by people who sat in an office who were not involved in the actual operation.
MR VISSER: So you did not enquire concerning further detail and you were also not informed should there be any other detail
MR VAN DER MERWE: No, I just accepted that the people who were involved were experienced, competent and that they would have the ability to properly manage and execute it.
MR VISSER: In paragraph 72 you have something to say concerning the issue of the command and control?
MR VAN DER MERWE: Yes. According to the understanding between the police and the defence force any operation where both forces were involved always occurred under separate control and command. I accepted that the members of the defence force would get the commission from their chiefs and that they would also act according to the guidelines of the defence force.
MR VISSER: Now paragraph 73 you had to a certain measure already discussed, that was the planning and the execution was done on an ad hoc basis by the people on the ground and if it was a cross-border action that was usually done in a covert way.
MR VAN DER MERWE: That is correct, Chairperson.
ADV DE JAGER: If I could perhaps just get some more clarity? You say that there was an understanding between the police and the defence force. Were you directly involved with discussions concerning the separate command structure and how it would work?
MR VAN DER MERWE: No, that was how it was applied in practice. I'm not aware that I was involved with any discussion or meeting in practice it was usually done and developed over many years, it was not something new. The defence force was always there to assist the police. In the case of the security branch it was also the same but the arrangement was always under a separate command and control and it was usually in practice arranged in the following way that if we acted jointly, that each would have a separate task and the two forces would not execute the same duty or task at the same time. For example if we would act in searching a hostel the defence force would then cordon it off, they would be responsible for that and the police would do the search. That was should there be any action taken later that each force would then be responsible and liable for that specific task that was assigned to it.
ADV DE JAGER: We'll get back to that later.
MR VISSER: You'd later heard, as everyone else, that the operation had gone wrong, that's what you say in paragraph 74?
MR VAN DER MERWE: That is correct.
MR VISSER: And that three civilians according to information had been killed and we also know that three civilians were injured and you say quite rightly that a number of houses were damaged?
MR VAN DER MERWE: That's right.
MR VISSER: You have already dealt with this because it's actually a repeat, the consideration and approval, you already took the Botswana government as a factor.
MR VAN DER MERWE: That is correct.
MR VISSER: If you look at paragraph 76, if you would just like to inform the Committee as to what happened after the incident?
MR VAN DER MERWE: After the incident the Botswana government complained to the R.S.A. government in a letter to the Department of Foreign Affairs which I received. I in turn also wrote to them and made known to them that the specific Kombi had been used by MK to smuggle weapons to the R.S.A. As the operation had taken place in a covert manner and the fate of our informer, McKenzie, was unknown at that period, no further details were given to Foreign Affairs.
Mr Pik Botha reacted on the evidence of Brigadier Cronje and said that we had given false information to the Department of Foreign Affairs is not correct. Information that we had given were facts although we did not give the full facts. We could not make known that the security forces had something to do with the explosion.
MR VISSER: So you say that you told him nothing that was not the truth but you did not give the full story to him?
MR VAN DER MERWE: That is correct.
MR VISSER: The reference is page 161.
ADV DE JAGER: A half truth?
MR VAN DER MERWE: Yes a half truth.
MR VISSER: The reference is at page 161 of bundle 2H. Nothing really turns on it, Chairperson, with respect.
General is it so that after the explosion and the protest note from the Botswana government had been received by the South African government that there was once again a discussion between you and one or more of the people who had participated in the operation?
MR VAN DER MERWE: Yes, it was as a result of the letter from Foreign Affairs, if I remember correctly, that I had discussions. I can remember it was with Brigadier Loots. Brigadier Cronje also mentioned that he was there, it's possible, I cannot say that that is so but I know that I spoke to Brigadier Loots about this to inform you about all the facts, about what had happened during the explosion and as a result of that we gave a report to Foreign Affairs.
MR VISSER: And what you heard from Loots would that have been included in the report?
MR VAN DER MERWE: Yes that is so.
MR VISSER: General you are then requesting amnesty for any crime or illegal deed which springs forth from this murder and statements such as damage to injury and conspiracy and other offences and the act of explosives, weapon smuggling etc?
MR VAN DER MERWE: That is correct.
MR VISSER: Then as regards the political motives there's a very precise summary of what you have already testified to and you confirm that?
MR VAN DER MERWE: I do.
ADV DE JAGER: Mr Visser, the specific deeds which he is requesting, do you have this in that paragraph here?
MR VISSER: No, right at the beginning of the document in the preamble it says application for amnesty for any deeds, acts, omissions associated with political objective etc. The explosion in Gabarone, Botswana on April 1987 in which the Kombi of McKenzie was damaged and people were injured and buildings were damaged. At paragraph B.
MR LAX: On page 2, Mr Visser, there's a slight expansion of that.
MR VISSER: That's correct yes, thank you. I'm just not sure whether the persons who were injured have been mentioned, if that can just be added? Thank you.
I'm told that I did in fact refer to this document as Exhibit O at one stage. It was mean to be in the record.
CHAIRPERSON: Does that conclude your evidence in chief, Mr Visser?
MR VISSER: Yes it does, thank you Chairperson.
NO FURTHER QUESTIONS BY MR VISSER
CHAIRPERSON: Thank you. Mr Alberts, do you have any questions to put to General van der Merwe?
CROSS-EXAMINATION BY MR ALBERTS: I do, Chairperson.
General, you are most probably aware of the contents of the other applicants' applications with regard to this?
MR VAN DER MERWE: That is correct.
MR ALBERTS: As you know I act on behalf of the applicants Momberg and Goosen and as a result of certain aspects thereof I have a few questions for you. They mention in their applications that the political objective which was to be achieved with this was in general the retention of the then political status quo in the R.S.A. together with the accompanying government dispensation. Do you agree with that?
MR VAN DER MERWE: Yes, everything went around the fact that the internal security had to be protected.
MR ALBERTS: And in that way that to strive for this objective?
MR VAN DER MERWE: That is correct.
MR ALBERTS: In the case of all members of the police who were involved in this operation unless one accepts that they had false motives of which there is no evidence of this, it would be fair to say that the deeds in which they've made themselves guilty with the execution of this operation who all stood in connection with a political motive?
MR VAN DER MERWE: Chairperson, I would like to emphasise that these members acted purely in order to execute their task under those circumstances. I do not think at that stage they had in mind what the present requirements regarding the political motive was but that it went about the fact that the internal security had to be protected and promoted, to protect lives and property and that the government was not to be effected. There was no other objective except that in the cases that I had knowledge of.
MR ALBERTS: But you will agree with me that if that is the case then ...[intervention]
MR VAN DER MERWE: Now, yes now one can explain it as such but I will not say that that was his driving force at that stage but it is so without a doubt.
MR ALBERTS: Thank you General, I have no further questions.
NO FURTHER QUESTIONS BY MR ALBERTS
CHAIRPERSON: Mr Du Plessis?
CROSS-EXAMINATION BY MR DU PLESSIS: Thank you Chairperson, if you will allow me, I've got approximately two questions.
General, Brigadier Cronje testified that he was under the impression, or let me state it this way, Brigadier Cronje did not know what you and Minister Botha had discussed?
MR VAN DER MERWE: That is correct.
MR DU PLESSIS: He would not have known either?
MR VAN DER MERWE: No, because he testified that he accepted that you would have told Minister Botha everything and on page 164 of bundle 2H he testified the following
"I know General van der Merwe so well that I know that he would not have lied to a Minister."
MR VAN DER MERWE: I have already mentioned that the facts which we gave were the truth except for the fact that we did not give all the facts and I think that if Brigadier Cronje had thought about this very clearly even he would not have expected that I had informed Minister Pik Botha an informer of our had been involved. I have no problem with the fact that he put it as he did but I did not understand from that that he had meant that I was to inform Pik Botha that our security forces were involved.
MR DU PLESSIS: I just put that in all fairness to you that the situation is clear. And then there was also testimony before the various Committees previously that Trevits had been planned to do target identification abroad but at a stage it developed and it seems to me as if - and the testimony isn't very clear about this, as if it was more informal than formal, that it developed in target identification internally as well. There was the testimony of various people, I just want you to comment on this?
MR VAN DER MERWE: On various occasions I've already commented on this but I would like to repeat this. As far as the internal structures were concerned it was but Trevits, the task of Trevits was to identify people against whom according to the law we could take action. I'm not aware of any arrangement that Trevits would identify people internally against whom action was to be taken but I mentioned previously that because Trevits was also located in a certain area that it could have influenced it's activities and it is possible that there could have been a shift in emphasis but it would be wrong to say that this was the official objective of Trevits.
MR DU PLESSIS: Yes, that was the meaning of my question.
MR VAN DER MERWE: Officially it was not necessarily so, that was not but if it developed as a result of circumstances then I cannot comment because I was not involved in those circumstances.
MR DU PLESSIS: Thank you, Chairperson, I have no further questions.
NO FURTHER QUESTIONS BY MR DU PLESSIS
CHAIRPERSON: Thank you Mr Du Plessis. Ms Lockhat?
CROSS-EXAMINATION BY MS LOCKHAT: General, how many meetings did you have with Loots regarding the McKenzie incident?
MR VAN DER MERWE: The first meeting or discussions when I had to get the necessary approval and the following occasion when we dealt with the request from foreign affairs after the Kombi had already exploded, I'm not sure as to whether there might have been other discussions in between but these are the only two meetings which I would be able to say that I can remember.
MS LOCKHAT: You said that Brigadier Loots had informed you that the bomb would be set off by a remote control is that correct?
MR VAN DER MERWE: That is correct.
MS LOCKHAT: So you did not know about the light sensitive switch?
MR VAN DER MERWE: No I was not aware of that.
MS LOCKHAT: And he also informed you that you were actually in your mind rest assured that the bomb would go off by means of remote control and that people wouldn't be injured because the person that would obviously detonate it would be aware of the surroundings and so forth?
MR VAN DER MERWE: That is correct.
MS LOCKHAT: General, you know about the information that it's suspected that it went off by means of the light sensitive switch, are you aware of that? What is your opinion basically regarding that?
MR VAN DER MERWE: I think that it is quite improbable in the light of the fact that only a person who would have known where that secret compartment was would have tampered with that secret compartment. In other words a person who would not have known, it was very well hidden, it was hidden to such an extent that it had even been able to pass through a search at the border post. The chances that somebody would just have tampered with that I would say there was no such chance of that happening.
CHAIRPERSON: But you're merely expressing an opinion?
MR VAN DER MERWE: That is correct.
MS LOCKHAT: General, when the change of plans came about, did you expect Loots to come back to you and inform you that there's been a change of plan and that they've inserted the light sensitive switch and so forth?
MR VAN DER MERWE: No, as I've already mentioned the planning on grassroots level I left in the hands of the members who were involved. I did not expect that they would inform me about their operations.
MS LOCKHAT: According to your knowledge, who was in control of this operation. Was it Loots or was it Cronje?
MR VAN DER MERWE: I did not appoint any specific person to be in command of this operation, I understood that it was a joint operation and that everybody would act on that terrain in which he had the best knowledge. I accepted that if it dealt with the informer and the handling of him which resorted under Brigadier Jack Cronje, that he would take the necessary responsibility for that and if it went with about the handling of information and monitoring it would - the responsibility would rest with Brigadier Loots. Our responsibility was to give information and the monitoring thereof and that the execution in Botswana was the responsibility of special forces.
MS LOCKHAT: General, when you heard that this whole explosion went wrong, what did you do about it? Did you call a meeting, did you need a report back from Loots and others? What steps did you take in this situation?
MR VAN DER MERWE: No, I did nothing because the matter was in the hands of the defence force so I did not interfere with that.
MS LOCKHAT: Thank you Chairperson, no further questions.
NO FURTHER QUESTIONS BY MS LOCKHAT
CHAIRPERSON: Thank you Ms Lockhat. Mr de Jager, do you have any questions to put to General van der Merwe?
ADV DE JAGER: General, here we are aware of the fact that there was a meeting and I accept that you were aware of this fact that the planning was between Charl Naude of the Defence Force, General Cronje and Loots and other people under him. Were you aware of the fact that there was liaison between Naude in the Northern Transvaal with the security police and for example Verster in the Rand area with the security police?
MR VAN DER MERWE: Chairperson, as I've already mentioned there were specific structures as with which liaison took place, I was not aware of specific liaison but that discussions were held from time to time in which information was exchanged between us and special forces. I was aware of that, but if you were to ask me now if I were aware of other specific incidents whereby they were involved, I was not aware of that.
ADV DE JAGER: And in this specific case would it be wrong to say that the targets had been identified by the security police and the execution took place through the Defence Force?
MR VAN DER MERWE: That is correct.
ADV DE JAGER: So they were the people who identified the targets in this case?
MR VAN DER MERWE: That is correct.
CHAIRPERSON: Mr Lax?
MR LAX: Chair this issue has sort of been covered but there's just one aspect I'd like to canvass, General, if you would allow me. I'm fully aware this was a combined operation as we've already agreed and as you've confirmed and I'm also aware that as regards as what happened in Botswana was the special forces' responsibility. However, this matter did have repercussions and you were required to send a note to the Minister of Foreign Affairs and in the light of that, did you make any steps, did you take any steps whatsoever to investigate the matter further, to try and find out what had actually gone wrong?
MR VAN DER MERWE: According to the report which I received from Brigadier Loots, the matter went wrong in Botswana. If I remember correctly at that stage we thought that they did not have facts about this because the handling of the operatives in Botswana was a very sensitive matter, that there was the wrong handling by the specific agent. I did not take the matter any further because it was a covert matter because the circumstances of our informers are unsure and we did not want to place their lives in danger so I did not take it any further.
MR LAX: Certainly to my mind and it's very easy to sit here in an armchair situation after the event, I fully accept that. I understand the issue of the safety of your informer, however, this wasn't seen as the only cooperation between special forces and police elements. There would in all likelihood have been future such activities that would have been necessarily engaged in and want would have expected that at least with that in mind that ways of reducing this sort of problem would have been found, so there would have been some analysis of the operation to say how can we prevent this thing happening again in future and surely as the commander, you gave the go ahead, that would have been something you would have wanted to see?
MR VAN DER MERWE: At that stage we did not foresee that there would be a similar action in the future. Secondly, if one planned such an incident then one deals with it regarding to the circumstances. Each one with it's own specific merits and it would mean nothing to try to analyze what had gone wrong with the hope of trying to eliminate it at the next occasion because the circumstances could have differed drastically. We would possibly have created a greater risk to interfere in a matter which could have resulted in a great many problems at that stage if the whole matter became known. So in the light of this fact it was usual that regarding a covert operation you did not interfere or tamper with it especially if the incident was in the sphere of the Defence Force who were responsible for their own actions and if they were to be involved in the future again, they would have to determine themselves how they were to handle that matter. I did not regard this as my task to determine where the Defence Force had failed and how they were to rectify their mistakes.
CHAIRPERSON: If I may just follow up General van der Merwe on your response to Mr Lax's question? I understand your evidence to be that the primary objective for the operation was the elimination of people who were a thorn in the flesh of the security police?
MR VAN DER MERWE: That is correct, Chairperson.
CHAIRPERSON: Mnisi, Puli and Dumakude?
MR VAN DER MERWE: That is correct, Chairperson
CHAIRPERSON: And it was on the basis of that information that you gave the approval or the go ahead for this kind of an operation?
MR VAN DER MERWE: That is correct, Chairperson.
CHAIRPERSON: Now when the operation went wrong from the Botswana side which was in the hands entirely of the Special Forces were you not interested to find out what had happened, why the plan had gone wrong, simply because your objective was not achieved, that is the elimination of the target that you gave an approval for?
MR VAN DER MERWE: Chairperson, at that stage it was apparent that the matter had been handled incorrectly by Special Forces. To get more information or details about the matter would not have assisted the situation and I really did not deem it necessary to launch any investigation. To tell the truth it would to some extent been regarded as unnecessary interference by the Special Forces and the Defence Force who moved on their own terrain and were responsible for their own actions and who accepted the necessary responsibility therefore. So I did not and it was an arrangement as well as regards Botswana where a special operation was involved, that this was the terrain of the Defence Force and I did not interfere on that terrain.
CHAIRPERSON: But now didn't you deem it fit and necessary to do that investigation bearing in mind that this was a combined operation and it would really not be an infusion on your part on the affairs of Special Forces. How can it be deemed to be unnecessary interference on your part if you were to pick up a telephone, speak to General Joubert to find out what had happened? Surely he would have been able to give you some kind of information?
MR VAN DER MERWE: Chairperson, although as I've already explained that it was a joint action, everyone acted under a separate command, the action in Botswana was not joint, that was purely under the command of the Special Forces, it was not under our command. Secondly, covert action of this nature one would not discuss telephonically, one could probably have driven to there to try and establish what had happened but it would have meant that an investigation had to be launched and from their side this would once again have been on a terrain where with all right they could have told us that it was their terrain. I was responsible for it, things have gone wrong and we will take the necessary steps. In light of this fact we did not take it further.
CHAIRPERSON: I find this explanation most interesting. This obviously being said from an armchair critic, I understand what you are trying to say. I just find it incomprehensible that something like this should happen and there is some international outcry, Botswana has taken the matter up with your Minister, Mr Pik Botha and no further investigation is deemed appropriate because of the fact that you don't want to be seen to be unnecessarily interfering on the affairs of the security or the Special Forces or the National Defence Force.
MR VAN DER MERWE: That is not completely correct. Firstly, that the thing went wrong was apparent that a mistake crept in, that was clear. It was not necessary for me to ask the Defence Force about that, how the mistake occurred or the error occurred would not be able to be rectified, it would not have made any difference to the whole situation had I been able to determine what the nature of the mistake was. It was the culture of the two forces and it's been like that for all the years, that each one moved on its own terrain and accepts responsibility, as I've already said, for that which takes place on its specific terrain. So at that stage I saw no sense in taking the matter any further. I knew that things had gone wrong, how it had gone wrong would have changed nothing to the situation as far as I was concerned.
CHAIRPERSON: Mr Visser, do you have any re-examination, particularly emanating from the questions from the panel?
MR VISSER: I have none, Chairperson.
CHAIRPERSON: You are excused General van der Merwe.
MR VAN DER MERWE: Thank you.
WITNESS EXCUSED
MR DU PLESSIS: Chairperson, might I request if I can be excused if we're going to start with argument, because I don't have any argument to address to you?
CHAIRPERSON: Yes, I think you are excused Mr du Plessis, in all fairness we did not expect you to be able to preset any argument. You are not a party in this matter. We thank you for the assistance you rendered.
Mr Visser, are you in a position to address us?
MR VISSER: Yes, Chairperson, I can start with leave of my learned friend. He indicated to me that he wouldn't have a problem if I wanted to start.
CHAIRPERSON: Yes, I saw you punching on your button and I thought maybe the ...[indistinct] had already been discussed and agreed upon?
MR VISSER: Yes, we did speak about it and he has no objection if I perhaps finish first before him.
CHAIRPERSON: Yes, you may proceed then.
MR VISSER IN ARGUMENT: Chairperson, bundle 1, page 19, contains the decision in regard to Brigadier Cronje of the McKenzie incident and it says very briefly, the summary of the Committee is very brief, at page 19 where it says
"The applicant, Cronje, was approached by Brigadier Loots of the Security Branch of the Western Transvaal about the elimination of a certain Mnisi who according to information was involved in the planning and execution of various bombing incidents entailing the Church Street bomb and then according to the evidence he brought explosives and weapons into the R.S.A."
and reference is then made to McKenzie and there's reference to Mnisi's organisation which should read the ANC/SACP alliance obviously, and the reference is to the car and the bomb that was hidden, at page 20, and that McKenzie was then detected to be a security spy and referred to Quatro and then there's the question of Brigadier Viktor and Schoon's so-called instructions, we don't have to deal with that again, Chairperson, it has nothing to do, because we have the situation here where the man who gave the order to this is here, he gave evidence this morning.
So whose operation it was is really none of anyone's concern here. Van der Merwe gave the instruction and Brigadier Cronje obtained his amnesty on those facts as set out.
Chairperson, the facts of this matter are not involved, there are no serious or basically any material conflicts in the evidence, the four witnesses that gave evidence before you, Loots, Crause, Momberg and Goosen's evidence was much of a muchness, very identical, certainly they all, all of them would have had their own personal different approaches and ideas about the matter. For example, Momberg couldn't remember that the issue of a possible injury or death or damage to property in Botswana of innocent people was discussed. Clearly it must have been, Cronje says so, Loots says so, obviously Crause can't give any evidence because this took place at the first meeting where he wasn't available.
MR LAX: Can I just say something Mr Visser, sorry.
MR VISSER: Yes.
MR LAX: It's really not that clear that it must have been discussed, it may have been discussed at a high level but the issue is they were two very junior officers in the company of much more senior people. They wouldn't have been involved in those sorts of issues, the issue of accountability, the issue of injury to innocents. The fact of the matter is that on the evidence before us it didn't occur to Momberg at all so ...[intervention]
MR VISSER: I hear what you say and I don't want to overstep my mark, he's not my client and I don't want to speak on his behalf so perhaps my learned friend should deal with those issues but what I'm putting forward to you as a submission at this stage is that at that first meeting clearly it was discussed. I'm not saying that Momberg or Goosen were both present or either the one or the other was, but quite clearly that was uppermost in the minds of at least Cronje and Loots and certainly Van der Merwe.
Chairperson, the only issue which may have been an issue could have been who was really in control of the security police side of the matter. I believe I've already made the submission and I really don't want to take it further than that, that it is a side issue. In fairness to Loots, believed that his evidence as in the sense corroborated by General van der Merwe that it was a combined operation must be correct. It wasn't as if it was one person's brainchild in all probability and from that point of view I had no problem with my learned friend Mr du Plessis putting it to Loots that Brigadier Cronje may also have been under the impression that it was an operation of Loots. In fact the inferences almost indescribable, that apart from the fact that the information came through McKenzie to the knowledge of the security police that this was Special Forces operation. I mean they had the capability of building the bomb, putting it into the Kombi, making light sensitive switches, etc.
ADV DE JAGER: Mr Visser, I'm not so sure that all the responsibility should be shifted to the Special Forces. After all if you analyze it now, the reason for the going wrong of the operation was because McKenzie was detected as a security police. If he wasn't sort of kidnapped and taken away, the operation wouldn't have failed.
CHAIRPERSON: I think, Mr Visser, the operation was the security branch as much as it was Special Forces operation. Probably more of the security branch than Special Forces in my mind. The people who had information about the activities of the people who were targeted, Mnisi, Puli and Dumakude, who were the members of the security branch. The people who had McKenzie as an informant who were members of the security branch, so people who wanted to eliminate the targets were the security branch. Special Forces came in as a unit that would be operational in Botswana for strategic reasons so at times it becomes inescapable that inasmuch as we can use the word, it was a joint operation, they were there to assist, it was a security branch operation.
MR VISSER: I'm in complete agreement with what both you Chairperson and Mr de Jager says. I'm not trying to lay the blame of the whole operation and if I said anything that gave that impression, I certainly want to make it quite clear that that's not the impression I wish to create. The point I'm making is it was a combined operation.
CHAIRPERSON: Yes.
MR VISSER: And the other point, Chairperson, which I may make correctly or incorrectly, is that it really doesn't take us any further, to try and apportion blame.
CHAIRPERSON: Yes, I think what you are trying to cover is that aspect of who was in command of the operation, is it Loots?
MR VISSER: Yes.
CHAIRPERSON: Is it Cronje or was it both Loots and Cronje?
MR VISSER: Yes and we're quite happy for you to accept that it was both. It must have been both.
ADV DE JAGER: It doesn't really matter who was in command because they've been authorised by General van der Merwe?
MR VISSER: That's the third point, yes. And really, Chairperson and I don't want to sound as if I want to oversimplify the matter but really, those are my submissions.
We refer again to the written argument which we handed up to you which was marked "Heads of Argument in the Nietverdient Matter" and we dealt with those issues of the background etc, etc, you're well aware having listened to General van der Merwe at length about - I'm sorry were you going to say something?
CHAIRPERSON: ...[inaudible] you may proceed.
MR VISSER: About the background and the provisions and the requirements of the Act, Chairperson, I certainly don't intend to deal with that again. We are fortunate that the, certainly as a result of your own efforts, Chairperson, that we now have information which identifies the unfortunate deceased in this matter as Phetolo - P-h-e-t-o-l-o. Well, they are on
Exhibit M: , I don't have to repeat them, three people that were killed including a young child of 7 years old and one of 9. One wonders how this happened, whether they were in fact in the Kombi or whether they were just near the Kombi, one doesn't know but those are matters which obviously we wont get answers to in this hearing, three people that were killed and apparently there are a whole number of buildings or structures that were damaged.
Chairperson, as far as the order is concerned, my learned friend handed up to you inter alia page 45A in the case of Goosen. We agree with what is stated there, we just have one reservation or two, I'm not quite sure where the fraud comes in because you heard no evidence of fraud but the real reservation which we have is to specify sections of an Act because it may be that one misses one or two and with respect, I've made this submission before, Chairperson. In our case we would submit that the amnesty order should be specific in regard to the incident and the date so that there can be no doubt about that but that it should not be that specific in regard to every single little possible contravention of every single ordinance or Act or law or whatever may exist because we simply don't know and we would ask you to consider, simply making an order if you should decide to grant amnesty, to include all offences and delicts connected, shown by the facts as we've discussed at the beginning when Commissioner de Jager asked me, which would include murder, attempted murder, obviously assault, grievous bodily harm and destruction of property. Chairperson ...[intervention]
CHAIRPERSON: We'll hear Mr Alberts later.
MR VISSER: Chairperson, other than that I really don't have nothing to add except to ask you to consider that in this particular instance. The evidence was very clear, it was again patently obvious that the witnesses, all of them, attempted to be of assistance to the Committee from what they might remember. In fact Loots went so far as to say that he heard later and he thought about it later and he spoke to people later after his amnesty application and that is why he could give a fuller picture, etc. So from that point of view, Chairperson, the whole point of a Commission of Enquiry certainly is paying off in the sense that a much fuller picture has been able to be presented to you that would otherwise have been, possibly been the case.
We ask you to consider granting the applications to the applicants, Van der Merwe, Loots and Crause. We certainly can't think of anything to draw your attention to which should rally against granting amnesty and we ask you to make such a grant. Thank you Chairperson.
MR LAX: Mr Visser, I just had one comment on what you said and that related to your remark about how this could have happened, particularly in respect of the deceased. I think it's self evident that it was a very, very powerful bomb. The reason I haven't raised it before is that none of the applicants were involved in the manufacture of the bomb and probably had no knowledge of how powerful it may or may not have been and so I haven't canvassed it during the hearing but it's self evident it was a very powerful bomb, it destroyed 18 structures in addition to - or damaged at any rate, the deaths and things. I just thought I'd make that comment.
MR VISSER: And flowing from that it would appear that these might probably have been passers-by or children playing in the vicinity. It's a pity that perhaps in a sense that Mr Charl Naude and his people did not ask for amnesty, we know why, that's because they received written opinion from senior counsel to say that they don't need to ask for amnesty. We don't express any opinion on that but it is a pity because questions such as those could have been canvassed had those people been involved in this application but we certainly thought of doing it, but I considered it at the time when General Joubert and Mr Naude were here, whether I should ask questions about other incidents and I though it would not be proper for me to do so and I didn't do it.
CHAIRPERSON: I just wanted to draw your attention to the fact that it couldn't have been during the day when children would have been playing because this incident, apparently from the affidavit, it was handed up by Mr Malapo to the Committee and certainly circulated to the legal representatives.
MR VISSER: M.
CHAIRPERSON: That's Exhibit M. This occurred at about 5 o'clock in the morning?
MR VISSER: Oh yes? Oh yes, I missed that, yes indeed you're quite correct.
CHAIRPERSON: Quite early in the morning, most probably it occurred when people were still in their houses.
MR VISSER: Yes one would have liked to have known what happened there but it's mere speculation by all of us at this stage, yes. Thank you Chairperson.
CHAIRPERSON: Mr Albert?
MR ALBERTS IN ARGUMENT: Thank you Chairperson.
I've prepared very concise heads of argument to which I beg leave to hand up to you. You will note, Chairperson, that the heads deal mainly with the facts surrounding the incident. Insofar as the legal submissions are concerned I have kept it very short and sweet. I don't intend to try and reinvent the wheel a plethora of evidence in that regard has already been given and absolutely exhaustive arguments have been laid before you. Just on that score might I mention that I had the opportunity of reading my colleague, Mr Visser's heads in the Nietverdient matter and insofar as the legal argument there is concerned, I agree with that and I would ask you to have recourse to that also in the cases of the applicants who I represent.
Insofar as the facts are concerned, I have provided you with a brief summary of the salient facts relating to the incident and it wont be necessary, with respect, for me to canvass those again. I agree with my learned friend that there were no material conflicts whatsoever as regards the evidence and in view thereof there certainly can be no question of the credibility of all the witnesses who have testified to this incident. The only question is whether they have made full disclosure which I submit is the case bearing in mind the various perspectives of the various applicants, bearing in mind the various roles which they played in the execution and planning of this operation.
So as far as the applicants Goosen and Momberg are concerned, I perceive a problem or a potential problem in the case of Momberg from remarks which have already been made when my learned friend was addressing you and the problem that I perceive and please correct me if I'm incorrect, is that in the case of Momberg it might be said that he didn't foresee the possible consequence of the injury of the innocent people who we can accept were involved and possibly the reasoning might then run that due to that lack of foresight, he can't be guilty at least of the crime of murder.
ADV DE JAGER: Mr Alberts, what's the position about error in objective, " I aimed to kill A and I'm killing B, I may even aim with my gun at A and I'm killing B, but I had the objective to kill." What's the position?
MR ALBERTS: With respect, Chairperson, if that is the case then in my submission you have the requisite intent for the crime of murder.
CHAIRPERSON: Mr Alberts, sorry, Mr Alberts, having considered the evidence presented by your clients would it not be your submission, sweet and simple as you started that these are junior officers who were acting under the orders of their superiors. In the case of Mr Momberg it was Mr Cronje, Mr Cronje was there, he participated in the same incident?
MR ALBERTS: Indeed, indeed, it reduces ...[intervention]
CHAIRPERSON: Yes.
MR ALBERTS: The whole question resolves itself in that simple form ultimately.
CHAIRPERSON: Yes, shouldn't you be making both submissions to us and confining yourself to those submissions?
MR ALBERTS: With respect, Chair, I was anticipating the one problem that appeared to me to be so and that is where the argument ends.
CHAIRPERSON: Yes.
MR ALBERTS: With all due respect.
CHAIRPERSON: If that is your submission?
MR ALBERTS: That is indeed my submission, that's where I was going. It however isn't necessarily as simple as that, even on the evidence. One must remember one thing, that when Momberg testified, on three occasions in fact he was questioned as to foreseeability. On one of those he conceded, when Commissioner Lax asked him, he conceded that he hadn't thought about it.
CHAIRPERSON: As the junior officer one would expect that he is not in command of the operation, he's just drawn in, he is a handler of Mr McKenzie, he is there to give his superiors the necessary information which is at his disposal and to assist in the planning as to whether he should actually have applied his mind or have foreseen the possibility of members of the public being injured. Should he have such a foreseeability?
MR ALBERTS: No clearly what in the context of this factual matrix, one couldn't expect it of juniors in the position of Momberg and Goosen.
CHAIRPERSON: Yes.
MR ALBERTS: But in any event, I want to make a submission that in all probability ...[intervention]
CHAIRPERSON: Yes, before you proceed, I mean your submission is that they were executing an order that came from their superiors?
MR ALBERTS: Indeed.
CHAIRPERSON: Yes.
MR ALBERTS: And merely on that score the matter is disposed of.
CHAIRPERSON: Yes.
MR ALBERTS: Otherwise, Chairperson, I stick with the board submissions that I've made in the application concerning the requirements of the Act. In my submission each single requirement has been met and I would also ask that the applicants Goosen and Momberg be granted amnesty as prayed for in their applications. Those prayers have now been amended. Might I just mention one further aspect in that regard which my learned friend touched on. He questioned whether there was any fraud present. Amnesty is being sought in respect of fraud for one reason only in the cases of these two applicants and that is that they mislead McKenzie, they mislead him as to what the true purpose was of obtaining his vehicle from him and what was going to be done. As far as McKenzie was concerned it was an innocent, relatively innocent device which was to be fitted and not a potentially destructive one and to that extent a fraud was perpetrated on McKenzie and obviously this redounded to McKenzie's disadvantage, I mean it ended up with him being incarcerated.
CHAIRPERSON: Was he incarcerated as a result of the fraud as you allege?
MR ALBERTS: Well it played a role in that.
CHAIRPERSON: How, we don't have such evidence before us? There is no evidence that what lead to Mr McKenzie's arrest was because instead of a tracking device being installed, a light - a bomb was installed.
MR ALBERTS: Well it's - I make the submission merely on this simple basis, that if McKenzie had in fact been made aware of what the true purpose was of the device to be installed, it doesn't follow that he would have carried the operation through in any event. He might not have been willing to accept the personal risk and then he might not have ended in Botswana and the ANC's true purpose with requiring his presence there might not have materialised either. However ...[intervention].
MR LAX: Mr Alberts, sorry, if I could intervene, if I could just interrupt you? Isn't the real issue here - I see a potential fraud. I can reconcile myself with it in relation to the particular prejudice that he may have suffered, but frankly it's got nothing to do with his incarceration or his abduction by the ANC. It's more to do with the material loss that he suffered, his vehicle, those sorts of things I can see the fraud perpetrated on him there. You know, it's pretty patently obvious from looking at this matter that his cover was already blown, the reason they wanted him there was to nail him. That's why they were so keen for him to come that weekend. Looking at it in the cold light of day, just as a matter of interest, I can't see how his handlers didn't see it that way either but because just from the wording that's been given to us in various parts of the evidence it's seems pretty clear that he was wanted there at all costs so they could arrest him and it may be that once, you know, when you have tunnel vision you don't always see the bigger picture. But on the fraud issue, at any rate, I don't think we need to hear you any further on that.
CHAIRPERSON: No. Proceed Mr Alberts.
MR ALBERTS: I'll leave that then, for the moment. As far as the clients ...[indistinct] specified I hear my learned friend and I am in agreement with him that in fact the ideal would be to grant an amnesty which covers any possible delict or crime. One cannot foresee all this. Unfortunately I was -or fortunately, I don't know, at an early stage of the proceedings of the Amnesty Committee I was made aware of the fact that the Committee was at that stage requiring applicants to specify each and every crime in respect of which application had been made and in the absence thereof, the Committee was loathe to grant the type of amnesty order which my learned friend is advancing. I agree with him fully that that is the ideal. The applicants amendment was merely sought in the event of the Committee not being prepared to do so and in fact requiring everything to be specified. So if the Committee...[intervention]
ADV DE JAGER: I don't think could need further address us but let me just point out my difficulty. I can grant amnesty for offences disclosed before me. I may now grant amnesty for everything connected and flowing from the incident but there was no evidence before me for instance of perjury in - he didn't disclose it. If he didn't disclose it as an offence that he's committed, I shouldn't grant it to him because then he hasn't made a full disclosure about at least that offence and if I'm putting an umbrella on everything, and say everything flowing from this it may be as broad as granting him amnesty for offences he's never disclosed and that's the only problem. But we're aware of that problem and we're aware of your difficulties in saying the offence only includes Section 3, 4, 5, 6 of the Acts of Explosives, for instance. So as long as we realise that we're granting amnesty for offences disclosed before us, we'll try and cover it under an umbrella as far as possible but not to make it as wide so as also to cover things that's never been disclosed before.
MR ALBERTS: I appreciate that Chairperson and I understand what the problems are with the wording of orders granting amnesty. I can't take it any further than that and I'm happy to have the matter rest in your hands.
CHAIRPERSON: Thank you Mr Alberts.
Ms Lockhat?
MS LOCKHAT IN ARGUMENT: Thank you Chairperson.
The only discrepancies relating to Momberg and Goosen's amnesty application form was contained in page 114 of bundle 10 in relation to Momberg, that is the issue relating to the number of days that they found out that the operative was searching for the vehicle and then detonating it according to their amnesty application. As it was put to the applicants that - by Mr Ilan Lax - that they stated as fact in their amnesty application form that this seemed to have been a position.
It's also true that these applicants did submit their amnesty application form on the 14th December 1996 so - and they've also amended their amnesty application form on the 21st April 1998 and it seems a bit strange that they didn't take the time to - if they had all this time to read their application forms and they didn't on their new amendment, which was handed in, they didn't include it either but the applicants were asked why and their reasons were furnished that at a later stage, because of the inference drawn from the fact that they received communication that the operatives of Special Forces was instructed to go and search for the vehicle and therefore they drew the inference that that particular person actually detonated the bomb. And then General van der Merwe's statement as well, saying that according to his knowledge, it would almost be improbable or unlikely that people not aware of the secret compartment would actually find it and it's possible that someone of Special Forces did possibly detonate the bomb as ...[intervention]
CHAIRPERSON: I don't understand, you're not in context here now, referring or alluding to General van der Merwe's evidence particularly in relation to an opinion that he expressed about what might have been responsible for the explosion that ultimately happened for which we have no evidence, direct evidence that is.
MS LOCKHAT: Yes Chairperson, it's just an inference that can be drawn from Goosen and Momberg's evidence in relation to General van der Merwe's evidence that it's probable that some Special Forces actually detonated that bomb and it's just in that perspective and in that context that I'm just highlighting that issue, Chairperson.
CHAIRPERSON: But all that is speculation, isn't it?
MS LOCKHAT: That is correct, Chairperson.
CHAIRPERSON: Neither Mr Momberg nor Mr Goosen had knowledge thereof?
MS LOCKHAT: That is indeed correct, Chairperson.
CHAIRPERSON: And they conceded that it was speculation on their part?
MS LOCKHAT: That is correct, Chairperson.
And then the only other issue relating to General van der Merwe's evidence is that I find it unlikely a person in his position that such a tragic incident occurred and someone with his responsibility did not take the effort or the time to actually investigate this matter seeing that it had huge international impact as well and that still is an issue which - well we take it that his evidence is that he did not do that but my submission is that a person in his position, there's a reasonable expectation for him because of the incident and the high news incident that a person in his position would have taken the necessary steps to investigate the matter, Chairperson, but that's my submissions Chairperson.
CHAIRPERSON: What do you say to whether the applicants, Mr Goosen and Mr Momberg, whether they comply with the requirements of the Act pertinently Section 20 sub-section 2 read with Section 23 with particular reference to Section 20 (3)e?
MS LOCKHAT: Chairperson, it is correct that Goosen and Momberg acted in the course and scope of their employment and that they were members of the security forces as defined by Section 20, sub-section 2, sub-section (b) and the offence occurred in the relevant period as well so they acted within the course and scope of their duties, Chairperson.
CHAIRPERSON: And what do you say to the application of Section 23(e), do you think they fall within that section?
MR LAX: Just to help you quickly, it's the section that talks about "committed in the execution of an order or on behalf of" etc.
MS LOCKHAT: Yes Chairperson, the applicants did act under the orders of Cronje and Loots and according to them these instructions were issued at a high level and they were just following orders and that is indeed so Chairperson, that would be applicable to the two applicants.
CHAIRPERSON: And what do you say with regard to the application of Mr Loots?
MS LOCKHAT: Chairperson, Mr Loots also under the command of General van der Merwe. He took the necessary steps to actually inform General van der Merwe about this plan, getting the necessary authority as in terms of his commander and also acting within the realm of Section 20 (2)(b).
CHAIRPERSON: Yes. Does he also fall within Section 23(e) in your submission?
MS LOCKHAT: Yes Chairperson.
CHAIRPERSON: Mr Visser?
MR VISSER IN REPLY: It pains me Chairperson but there are two matters that I have to reply to.
CHAIRPERSON: Yes you may do that.
MR VISSER: The first is the last one that you've just mentioned, I just want to advance the consideration that even without, even if one took the - approached the matter without the order of General van der Merwe, Loots' evidence was such that even if he had taken the decision on his own he would have complied with Section 22(b) read with 22(f) with respect and that should put that matter to rest.
I'm a bit surprised about my learned friend's - about Ms Lockhat's submission that she finds it unlikely that General van der Merwe did not make further enquiries. One must bear in mind, Chairperson, that we are thinking of 1987, that was a different country, there wasn't a Truth Commission, there wasn't an avenue for people to come forward to say "I committed irregular acts" or "I committed crimes". Things were done covertly in this country, we know that and General van der Merwe was at pains to try and explain to you when you, Chairperson, asked him this question, is that no possible advantage could have been derived from him making further enquiries. As he said, "Jy gaan nie krap aan a ding wat verkeerd gegaan het nie" because all that you're going to do is to draw attention to it and it would have been the last thing that one could reasonably have expected him to do. He knew matters went wrong, there was no planning of further motor car bombs, in fact there were very few of those from the side of the security forces, this was an exception.
ADV DE JAGER: Mr Visser, thinking back all of us now there was a floating bomb in Botswana. At some stage this bomb could have exploded. We don't know where this Kombi would have been, it could be at a school. Fortunately it exploded at 5 o'clock one morning when things had been silent but unfortunately three people were killed and others injured but that floating bomb could have exploded somewhere in a busy hour of the day with lots of people being killed so it was an extremely dangerous bomb floating there and we don't know why it exploded or how it came to explode at 5 o'clock in the morning but it could have been very much worse.
MR VISSER: No absolutely, Chairperson, absolutely. The point simply being that there was not merit, there was no mileage for Van der Merwe to make further enquiries. All that he knew, what he knew was all he needed to know and that is when matters went terribly wrong. I take your point, as you said yourself Chairperson, from an armchair critic's point of view, what about trying to see what went wrong to avoid it for future reference. The answer to that is of course it wasn't -that part wasn't security police operation, it was Special Forces and they were the ones that would have to look into that.
With respect, Chairperson, I would submit that that doesn't take the matter any further, it certainly does not impinge on the character and value of the evidence given by General van der Merwe.
CHAIRPERSON: I don't think Ms Lockhat made her submission with that view.
MR VISSER: Yes.
CHAIRPERSON: It is something that on a personal note is troubling to me, probably would have been in a much better light today than we are with regard to what really happened but as General van der Merwe sought to explain to me, things worked differently between the Security Branch unit and the Special Forces unit.
MR VISSER: Absolutely, yes. Thank you Chairperson.
CHAIRPERSON: Mr Alberts?
MR ALBERTS: Thank you Chairperson, I have nothing further to add.
CHAIRPERSON: Thank you. Well now ladies and gentlemen, we have now come to the end of our hearing. With regard to all the applications that we heard in this venue, we'll reserve our judgements but hope to be able to deliver them within the next two weeks.
The Committee would like to express it's warm gratitude to our logistics officer, that's Joe, our secretaries, the translators without whose assistance I think these proceedings would not be able to take the pace they've been able to take, they have been performing in a magnificent manner. I know it's been very difficult, at times they've had to translate at a breath breaking speed but they were able to cope with that quite sterlingly.
We also want to express our gratitude to the members of the media who enable the public to be part of these proceedings wherever they are. We also want to express our gratitude to the members of the witness protection programme for their assistance in these proceedings.
Our gratitude as well to the legal team that represented various applicants in these proceedings. The assistance that they have rendered to this Committee has been invaluable.
And of course, last but not least, members of the sound and translation services who have been just magnificent. We note that Peter is not around, his assistant is here, I believe it's Peter's brother. Will you please make sure that we have conveyed our very special gratitude to Peter, he's been a power of strength to the Committee. We thank you all. Good day.
HEARING ADJOURNS
