Amnesty Hearings

MR BERGER: Thank you, Chairperson. Copies have been made of the telexes, and I ask if we can hand them in please, as Exhibit J.

CHAIRPERSON: ...(indistinct - no microphone)

MR BERGER: No, apparently we don't usually have I.

CHAIRPERSON: I notice we're a bit blind, we don't have eyes.

MR BERGER: There are none so blind as those who will not see.

CHAIRPERSON: You say J.

MR BERGER: J. "Nie ek nie."

CHAIRPERSON: Good morning everybody. I think the representatives are still as before. ...(indistinct - no microphone)

MR BERGER: Mr van Heerden.

BREAK IN RECORDING

MR TOWEEL ADDRESSES: ... together. I did mention to him that after Mr van Heerden, he may be called to testify and I explained to him what it was about. It could be that in the light of his decision we do not consider this any longer because I know what his decision is and he mentioned that he will not testify in front of the Committee. Before we came together now I gave an indication that I heard yesterday that we will not start on Monday, but we will start today and therefore I'm not prepared, if the Committee should decide to call Mr Coetser to testify.

My request in the light of all of this is - Mr van Heerden's evidence does not implicate Mr Coetser in any way, is to allow me to leave today and then I can take up this issue of Mr Coetser's evidence or not, and if with the approval of the Committee, maybe tomorrow, to then address the Committee on this issue. That would then result in the - it would be the legal costs, and that we can then cover that issue. This is now taking into consideration what decision you would take.

CHAIRPERSON: I would just then like to ask, I do not think that Mr van Heerden will be very long today, I cannot see that happening. I hope there are no surprises today. In that case we will have a lot of time available and I would like to ask if it's possible that somebody can be led in the meantime, maybe a short witness, possibly a footsoldier or something like that, so that we do not waste the time that we have got available to us right now. The other fact is then that it could be that such a person will not implicate Mr Coetser. Is that possible?

MR TOWEEL: Mr Chairperson, in the nature of my instructions I have got no witnesses, but with the instructions that I received from Mr Coetser, it doesn't matter that if the so-called footsoldier who will be called, implicates him.

CHAIRPERSON: I should have said to you that I will ask you to try and convince him, because there is a possibility that if somebody implicates him, he will have to testify. In the light thereof I then ask that somebody can be led who would possibly not mention him in his or her evidence. Is there such a witness? Will everybody mention him?

MR TOWEEL: ...(inaudible)

BREAK IN RECORDING

CHAIRPERSON: Mr Toweel, I would ask please, from the time that we sat the last time a ruling was made - I don't know if you bear any knowledge of this.

MR TOWEEL: Chairperson, it was placed in my possession just now.

CHAIRPERSON: That ruling makes the witnesses a compellable witness and if he refuses to testify he will be in contempt of this Commission, from which certain consequences flow. I'm loathe to go that route. It is also, I think, in your client's interest because this may be the reason why he doesn't want to testify, is that he obtains the protection from prosecution in a criminal court of what he says in this Commission, by virtue of the Act. So he's protected to that extent. I think it would be wise for you to mention it to him, he may not have realised it, and to do your best to persuade him to testify. I don't know if it's going to help, but let's give him all the opportunities to avoid any other action being taken.

MR TOWEEL: Thank you, Chairperson. I did take it up with Mr Coetser and I will do it again. I did tell him about the so-called protection that the Act gives him and I do have certain arguments on this. I would say that it is not enough protection, but I do commit myself to explain his rights to him and certain results that could occur.

CHAIRPERSON: You are convinced that the evidence that we will hear today will not implicate your client.

MR TOWEEL: I'm convinced of it, yes.

CHAIRPERSON: You may then leave.

MR TOWEEL: Mr Chairperson, I'd like to ask the next thing. I do not know if you want to start tomorrow, but I am scared that I will not have enough time, would it be possible that we could possibly come together tomorrow at 11 o'clock to argue?

CHAIRPERSON: I am planning to adjourn at 1 o'clock tomorrow because people have to catch flights. I hope everybody will understand this. It has happened to me that at the Johannesburg airport, if you are a little bit late they do sell your ticket and I'm scared of that. I want to get home. So in the circumstances we will commence at 9 o'clock.

MR TOWEEL: Thank you, Chairperson. Am I then excused?

CHAIRPERSON: Yes.

MR TOWEEL: Thank you, Chairperson.

MR BERGER: Chairperson, just before my learned friend leaves, is it your ruling that we're going to argue tomorrow morning at nine, on whether his client is compelled to answer questions, or what? I'm sorry, I'm a little unsure of what's going to happen at 9 o'clock tomorrow morning.

CHAIRPERSON: Mr Berger, as I understand the law, when last I understood it, let's put it that way, where a person decides not to testify and he's in contempt of the Court or the Commission or whatever, certain consequences arise. The onus is on that person then to persuade those who are going to make the decision about those consequences, that he lawfully has a legal reason for not doing so. I don't know if it is one of those issues for all and sundry to argue, other than the person who is affected. Unless you want to argue about that point as well. But that is how I understood it, maybe you've got some other views.

MR BERGER: Well if Mr Coetser is going to lead evidence about a just excuse that he has for not testifying, then I would argue that we would be entitled to cross-examine him on that evidence and to make certain submissions to you before you make a ruling. And that's what I'm asking, is that what we're going to do tomorrow morning or not?

CHAIRPERSON: As I understand it now, it's that he's made a decision, which I've asked him to revisit, but as it stands now he's made a decision not to testify. Tomorrow, I am told, that he would, I don't know how, maybe by affidavit or verbally or through his representative, come and make an attempt to persuade us that he has just cause to do what he's doing. We'll have to play it by ear then. I'm not too sure how he's going to get that across. But if he testifies, may I just add, then he would have to take the oath and of course, cross-examination follows.

MR TOWEEL: Chairperson, just to assist Mr Berger, if Mr Coetser does not decide to change his mind, his evidence will not appear in front of this Commission, it will then only be arguments that will be placed in front of you, so that you can then decide if he has reason enough not to testify. That will then lead to the reference to the Director of Public Prosecutions.

CHAIRPERSON: Any other questions? No. Then you're excused, Mr Toweel.

MR TOWEEL: Thank you, Chairperson.

CHAIRPERSON: Mr van Heerden, thank you for attending. Which language would you prefer to use?

MR VAN HEERDEN: Chairman, my home language is Afrikaans, but I'm happy to speak English.

CHAIRPERSON: No, you call the shots up till this stage.

MR VAN HEERDEN: I have prepared my statement in English, so I think I'll speak English.

CHAIRPERSON: Thank you.

NEIL VAN HEERDEN: (sworn states)

CHAIRPERSON: Please be seated. Mr van Heerden, if I may just put you in the picture as to the extent we wish you to testify. There was evidence before this Commission as to what happened prior and shortly after the attack in Lesotho on the 19th or 20th of December 1985. Mr van der Merwe has testified to us that he took the decision to embark on that raid and to send out orders to people who served under him in the Security Police, to effect this raid. It seems that it is possible that immediately prior to putting this thing into operation, you were either informed of the proposed attack, together with one or two other people, we're not too sure. His recollection thereof is not quite clear.

The other issue that arises, if in fact you do recall that you were informed of it, is to whether any State institution, be it a committee or a constitutionally constituted department, were in fact informed of the proposed raid and/or whether immediately after the raid was completed, these institutions may have been informed and what their reaction was.

Yes I've just consulted my colleagues here and that's broadly what we would like to know, if you have the memory to assist us.

MR VAN HEERDEN: Thank you, Chairperson. I did prepare a short statement, which I believe has been circulated to everybody here, and in that statement I tried to cover the period before the 19th of December, to the best of my recollection, and then also the period up to about February of 1986, when the aftermath as it were, of these events played themselves out. I went into some detail about the nature of the committee, the only committee in which I was involved at the time. Since I was not a head of department as I fear came out in some of the testimony here, I was initially a Chief Director and then later a Deputy Director-General, and the only committee I was involved in was the Co-ordinating Intelligence Committee. I therefore concentrated some time in my - or it's ...(indistinct) in my papers, to give you the view of the CIC as we understood it, a Co-ordinating Intelligence Committee, which you've also heard about from the other people who testified here. Foreign Affairs was involved by virtue of its diplomatic capacity, because the events and these kinds of events that we were involved in, involved the neighbouring countries and we were the legitimate instrument of the State to communicate with those governments. And in that sense we were involved in the CIC.

I've also spent some time explaining that it was the experience, the perception of the Foreign Affairs people who participated in the CIC, and there were only two at the time, myself and a colleague by the name of Johan Lutter - you'll see his name in the attendance list of the Minutes of the CIC, which has been provided, it was our understanding that the principle of need-to-know was very much practised within the committee, and that this is a practice which is followed world-wide by Intelligence ...(intervention)

CHAIRPERSON: Despite the intended co-ordination?

MR VAN HEERDEN: Yes. Well the co-ordination, as I also said, took place but within the limits of the compartmentalisation of the need-to-know. I'm not fully au fait with the principle of need-to-know, but I assume it has to do with the protection of sources and things like that. We were not part of that culture as it were, because Foreign Affairs had a different role, but we always knew in the proceedings of the CIC, that there was this compartmentalisation where individual agencies of the State would consult, would bring issues to be co-ordinated within the CIC, but there were limits to the exposé they would make in those committees.

To come to your specific question whether I personally was approached about the incident, well I was approached, my department was approached on the 29th of November, in a communication from the Security Branch of the Police ...(intervention)

CHAIRPERSON: Just stop there. You say you were approached, your department was approached. Which is it, were you approached as ...(intervention)

MR VAN HEERDEN: The Department of Foreign Affairs was approached.

CHAIRPERSON: Through you?

MR VAN HEERDEN: Yes. And I was the link man because of my membership of the CIC.

We were approached, as I reported at the CIC on the 3rd of December, with information concerning the presence of people in Lesotho, which it was considered were constituting a threat to the security of South Africa.

I also state in my statement that this was in keeping with a practice which had been ongoing long before these events and went on afterwards. Understandably the Police, and at times the Defence Force, would when they came up with information that they thought constituted an issue that had to be impinged on, on security, and had to be communicated to the country in question, they would come to Foreign Affairs and provide us with information, but that information was the information that I read into, or that I communicated to the CIC and which is reflected in the Minutes, and is limited to the best of my recollection, to the facts surrounding the people there, numbers and locations and so on and we were asked, as you will recall, to communicate this to Lesotho. It's in the papers in the other evidence, I believe from Gen van der Merwe as well, that we were asked to include a warning to Lesotho.

Now like all other agencies of the State, we were rather jealous of our prerogatives and we did not have ourselves subscribed to by other agencies as to how we should do that communication. And if you look at the text of the telegram which was sent to Lesotho on the 13th of December, there is no question of that kind of threat which the Police, according to the evidence I've read, thought should be conveyed. That was not the first time that we communicated to Lesotho on this issue and a pattern had come about in our communication with Lesotho. One can say now in retrospect, that the communication was not effective because in the end it didn't bring about the results we thought we wanted to have, but nevertheless there was a pattern and there was a practice in diplomatic communications, which we adhered to.

So were we informed? Yes, we were informed of the facts of the presence of these people in Lesotho, but we were not told that on such and such a day or in the process of planning we are going to go across the border and raid that presence in Lesotho.

Then you also asked whether any other ...(intervention)

CHAIRPERSON: What did you think, Mr van Heerden, must the import and the purpose of the threat which you in your judgement did not include in the communication, but when you were informed that "look, there are so many people to be located in Lesotho and this is what they do etcetera, and please inform Botswana that this is so and include a threat in your communication", what did you think the threat was ...(indistinct)?

MR VAN HEERDEN: Well we certainly knew that the Police were serious about this. There was no doubt about it that the Police were very serious about this and that was the reason for them including that indication that you know, there could be consequences. And again, one has to understand that this happened against the background of a whole matrix of ongoing events of this kind at the time, many of which led to tragic consequences on both sides of the border. But my reaction, my answer to you, Chairman, is that when the Police gave us that indication on the 29th of November, we knew that this was for real for them.

CHAIRPERSON: Carry on.

MR VAN HEERDEN: You also asked whether any other State institutions were informed. Now I have of course had the benefit of reading the Minutes of the Security Council, before and after the event, but if you look at the attendance list, I was not part of the State Security Council, neither did I sit on the Working Committee of the Security Council, that was done by my colleague, Ray Killan, who was head of the department at the time.

I went back and looked at the Minutes of the CIC, because of course quite frankly, 15 years ago nobody's memory is so clear that you would remember these things blow by blow, and there is no mention, as you will know, in the Minutes of the CIC, of this event. So that it's quite clear the CIC, as far as I'm concerned, the first time this raid was discussed in the CIC, was on the 3rd of December when I raised it on the basis of a communication from the Security Police on the 29th of November.

As far as the situation after the raid is concerned, well these events were amply canvassed in the press. We know, we saw the large stack of press reports. And there's no doubt that come the 20th of December, after the - it must have happened after the time when the State Security Council met, because if you look at the Minutes, the State Security Council met and discussed the situation in Lesotho and issued an instruction for a press statement to be issued, which was done, and a particular strategy was put in place at the behest of the then Foreign Minister, Mr Pik Botha. And when you read those Minutes, you cannot conclude otherwise than that the State Security Council was not aware of what had happened the previous night, however strange that may seem. And I would have to admit that it does seem difficult to explain to oneself that these things had happened the previous night and they were not reflected in the discussions on the 20th. So that's what I would like to say about that.

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

NO QUESTIONS BY MR HATTINGH

MR VISSER: Chairperson, I thought that we would follow the same methodology of letting Mr Berger go first, seeing that it's basically at his behest that the witness is here.

CHAIRPERSON: I think he'll deny that, but ... Mr Berger, are you happy to go first?

MR BERGER: Yes, Chairperson. I agree with my learned friend Mr Visser, that it would be better if go first, considering that I have more issues to tackle Mr van Heerden on than he has.

CHAIRPERSON: Go ahead.

CROSS-EXAMINATION BY MR BERGER: Mr van Heerden, I'm Danny Berger and I represent the victims and the families of the victims of the raid on Maseru in 1985. Before I question you, could we just mark your statement as an exhibit, you've referred to it. Chairperson, I'm not sure what the last exhibit number is. Ms Patel tells me that this will be Exhibit G.

MR VISSER: No, we've had a G, it will now be H, Chairperson.

CHAIRPERSON: What was G?

MR VISSER: Exhibit G was the Letter of Appointment of Gen Coetzee as Deputy Commissioner, Chairperson, dated the 29th of July 1982.

CHAIRPERSON: Mr Visser, during the course of the next - today and tomorrow, would you see that I get a copy of it, I haven't got one?

MR VISSER: You can have one immediately, Chairperson. It's even marked.

ADV BOSMAN: You don't have another copy, do you?

CHAIRPERSON: Well then Mr van Heerden's statement would be H.

MR BERGER: Thank you, Chairperson.

Mr van Heerden, what exactly was the purpose of having Foreign Affairs sit on the CIC? What role would you have played, you as Foreign Affairs, have played in the co-ordinating function of that committee?

MR VAN HEERDEN: It had become the practice, Chairperson, that Foreign Affairs in the case of incidents that were extraterritorial, had to be involved to convey communications to those governments, and I think that was the main reason why. Of course, if you were to consider whether Foreign Affairs had information or an intelligence gathering capacity, I suppose in a limited sense yes, our people who serve abroad pick up things, they are communicated to by the host government and those things were regularly reported back by our representatives abroad. And I think in that sense the intelligence community proper, to which we did not belong in the true sense of the word, considered it useful to have Foreign Affairs as part of the CIC. I might just say as a footnote, that the Foreign Affairs colleagues were usually - this was not the most popular committee to be on, because we considered ourselves to be rather on the fringe of the real matter that concerned the CIC.

MR BERGER: Wouldn't it be correct to say that, following on from what you've just said, that the real reason that Foreign Affairs was represented on this committee, was not so much for your intelligence gathering capacity, but more because of the role that you had to play internationally in projecting the image of South Africa abroad?

MR VAN HEERDEN: Well, Chairperson, I don't think the CIC was a source of great substance for us in our job abroad, there were other agencies of the State and our own information capacity, gathering capacity domestically, that is where we were informed of government's policies, of government's objectives, and these were the things that we carried abroad. But I have to also say that Foreign Affairs, and this is frequently overlooked, not only had a one-way function, i.e., to inform host governments of what the government in South Africa was trying to do, but also in return it was a serious duty of our offices abroad to inform the South African Government of the views of the international community.

MR BERGER: Absolutely, yes. Indeed. And sitting on this committee, this CIC, were representatives of National Intelligence, Military Intelligence and the Security Police had representatives on that committee. So what I want to suggest to you is that you had a presence on that committee so that you could know what was happening, what the Military were doing, what the Police were doing, so that you'd be in a position to deal with foreign governments if there was a reaction to something that South Africa had done.

MR VAN HEERDEN: Chairperson, I'm only open to that suggestion insofar as the substance of what the other agencies were prepared to tell us. And there again I refer you to the need-to-know principle, and those were the compartments in which matters were dealt.

CHAIRPERSON: I think, Mr van Heerden, I think what Mr Berger's getting to is that your very presence, not yours, your department's very presence on that intelligence committee was not limited to being equipped to deal with the foreign community, because by your own admission you were only told what they wanted you to know, but your presence on that committee was also designed for you to be in the know of what they planned in foreign countries. Is that correct?

MR VAN HEERDEN: Chairman, to the extent that the concerns of the security establishment, as they were expressed for instance in that letter of the 29th of November, that was conveyed to us, and in informing our missions abroad, to equip them to convey and to keep foreign governments informed of what was happening in South Africa, that information was of course incorporated in what we communicated to the outside world.

CHAIRPERSON: Except in your department also, you would edit the message from the - let's say from the Security Police, to the extent where the Security Police issued a threat to a foreign sovereign, you in your, or your department in its wisdom would not say "Look if you don't do this, this that and the other could happen."

MR VAN HEERDEN: Yes, certainly that would have been out of style for ...(intervention)

CHAIRPERSON: Well for whatever reason.

MR VAN HEERDEN: Ja.

CHAIRPERSON: But that's what happened in terms of your evidence.

MR VAN HEERDEN: Yes.

MR BERGER: Thank you, Chairperson.

Mr van Heerden, let me state something that I'm sure is obvious, just for the record, you in Foreign Affairs at that time were concerned with projecting a positive image of South Africa abroad, would I be correct?

MR VAN HEERDEN: Chairperson yes, we tried to put the best face on things certainly, but we also in the case of events such as the raid that then occurred, after that event, and if you look at the telegram traffic with our mission in New York, at the United Nations, we would try to convince the United Nations that there were reasons for these things happening. It wasn't just a cold decision on the part of the South African security establishment to go across the border and do such a raid. And if you look at the telegrams to New York, you'll find that lots of time and effort was spent on explaining what the situation in Southern Africa was and that there had been evidence of a threat emanating from Lesotho, and this led to these events. And a lot of time is also spent in those communications explaining that South Africa had tried for months leading up to the event, to persuade Lesotho to come to the table and talk to us and to hear what our objections were and to consider whether jointly we could not put in place a mechanism that could prevent these things from escalating into violence. That was the sort of, the role in which Foreign Affairs found itself.

MR BERGER: Thank you, Mr van Heerden. Mr van Heerden, you have a bundle of telegrams that you've just been referring to now, and you say "if one has a look at it", but unfortunately we haven't had the opportunity yet to have a look at it, could I ask that we be given sight of the documents in that folder?

MR VAN HEERDEN: Certainly.

MR BERGER: And Chairperson, could I ask that the matter be adjourned just for half an hour, so that we could have a look at those documents? Because what Mr van Heerden has just said now is, I would submit, goes really to the heart of this matter.

CHAIRPERSON: Mr van Heerden, where is that heart as you see it?

MR BERGER: Mr Berger. Mr van Heerden has just said that the decision to launch the raid was not a decision taken - he used the word "cold", it was not a decision taken cold, that there were a whole lot of surrounding circumstances that - I'm paraphrasing, that were taken into account before the raid was launched. Mr van Heerden says, "and this is apparent from the stream of telexes that went between South Africa and the office in New York", and it's those telexes that I'd like to have a look at now please.

CHAIRPERSON: I just want to get something clear before we adjourn. Somewhere during your argument are you going to argue that what Mr van der Merwe told us in respect of having made that decision himself, and why he made that decision, is in conflict with what Mr van Heerden is telling us?

MR BERGER: Well I don't know what's in those telexes, but the possibility is very high that that is the case, yes.

CHAIRPERSON: Is that the heart that you're talking about?

MR BERGER: Indeed.

CHAIRPERSON: You say you want half an hour?

MR BERGER: Please.

CHAIRPERSON: We'll adjourn for half an hour.

COMMITTEE ADJOURNS

ON RESUMPTION

NEIL VAN HEERDEN: (s.u.o.)

MR BERGER: Thank you, Chairperson. Thank you for the opportunity to go through the telexes. We ...(intervention)

CHAIRPERSON: I hope ...

BREAK IN RECORDING

MR BERGER: We haven't yet managed to make copies for everyone, so what I'll do is I'll go onto other things and I'll address general things that came out of the telexes, without trying to be too specific.

CHAIRPERSON: Before you go onto that, what's the purpose of the cross-examination in relation to the telexes? Bearing in mind what the subpoena said and what we said in the judgment and the parameters as I set it out when I asked Mr van Heerden - well when I told him what we wanted to know.

MR BERGER: Chairperson, you asked Mr van Heerden what his function was on the Co-ordinating Intelligence Committee.

CHAIRPERSON: As I remember, and please correct me if I'm wrong, I asked him whether he was informed about this before, whether he in turn informed any institution of the State, and whether any institution so informed, approved of it before or after.

MR BERGER: Indeed, and the telexes are evidence of what Foreign Affairs knew before and after.

CHAIRPERSON: Yes, that may be so, but we must look at it in its context. The context is, what he was informed by Mr van der Merwe, and whether he in turn carried it over to any of the institutions. That the Foreign Affairs may have deemed it necessary to create this nice image of South Africa thereafter, is another matter with which Mr van der Merwe's evidence has nothing to do.

MR BERGER: Chairperson, ...(intervention)

CHAIRPERSON: You see, Mr Berger - okay, let me hear what you've got to say.

MR BERGER: Chairperson, the whole point of cross-examination is, with respect, not to reveal the conclusion before one gets there but to enable the Committee to have an idea of where I'm going, one can simply ask the question "Where you told anything by Mr van der Merwe, before, during or after" and if the answer is no, well then that's the end of the evidence. And if that is all I'm allowed to do, well then I'll do it, I'll ask the question and get the answer and then that will be the end of Mr van Heerden's evidence. I submit that that would not be placing the Committee in a position at all to assess the veracity of Mr van der Merwe's evidence.

CHAIRPERSON: Mr Berger, if you read our judgment or the decision on the point carefully, you'd see there the conclusion of that judgment said "yes" - and I'm sure it was surprising to everybody that such a judgment did eventuate, it is subpoenaing certain people, it's curtailed strictly to the parameters as set out in that judgment. And if one wants to become more particular in this particular case, it's as I set out to Mr van Heerden before he started to testify. Now you must remember we're not a court of law, we're not going to assess the evidence as I would have had I sat in a court of law, we are a Commission, if you want to call it, a Commission of Inquiry, in order to assess whether amnesty, which is our final decision-making power, whether amnesty must be granted or not. Now if I'm going to allow cross-examination the way you say I should, when are we going to finish? And the other question is, what is the purpose of this process? The government in its wisdom has set up this process and we are confined to the powers and the legislation as set out therein. Whether any of us disagrees with it or seeks to find other information by this process, is another matter, but we've got to accept that those are the rulings we made and we've got to stick to it.

MR BERGER: Chairperson, I'm not attempting to go far and wide, I'm not attempting to elicit information for any purpose. I have no other brief. If I ask a particular question and I'm ruled out of order, then I'll move on. But I submit that - and I don't intend to spend a long time with the telexes, although there are lots of telexes, what I intend to pull out from the telexes, and I'm sure Mr van Heerden will agree with the submissions that I make, is that the raid on Maseru caused a huge international fallout, and I want to ask Mr van Heerden certain questions about whether that could have been anticipated and if that could have - if I work backwards without having to reveal my questions now, I'm sure the Committee can see where I'm going.

CHAIRPERSON: Let's assume - I agree with you it must have been anticipated, how does that cut across Mr van der Merwe's evidence? One would be foolhardy not to come to that conclusion, I mean in that department there were no fools.

MR BERGER: Which department?

CHAIRPERSON: They had to, - let's not discuss that, they had to foresee that that was an eventuality, one way or the other. How does that affect or cut across the evidence of Mr van der Merwe, as he says he took that decision himself?

MR BERGER: Chairperson, because ...(intervention)

CHAIRPERSON: And he was going to carry on with it, irrespective of what the other departments had to say about it.

MR BERGER: Mr van Merwe has never said that. He's never said that he would have carried on regardless of any opposition that he got. In fact his evidence is to the contrary, his evidence is that he had to bounce it off. It started, remember, it started off at a CIC meeting and slowly that evidence got watered down until eventually he was bouncing it off a couple of people. One of them being Mr van Heerden, possibly.

CHAIRPERSON: Maybe we've got different ideas of what bouncing is, as far as I understand his evidence he was just telling him.

MR VAN HEERDEN: Chairperson, may I intervene, I ...(intervention)

CHAIRPERSON: I'll give you an opportunity now.

MR BERGER: Mr van der Merwe made it emphatic at one point, that as - given the position that he had, it would have been foolhardy of him to have proceeded without getting the approval, tacit or otherwise, from other members of the CIC.

CHAIRPERSON: Well maybe the two of us will argue about it at the end of the day, the end of this hearing, but my question still remains, how does that cut across his basic evidence?

MR BERGER: Chairperson, I thought I had addressed that. If I haven't, I'll ...(intervention)

CHAIRPERSON: Well not sufficiently.

MR BERGER: I'll try again. I submit it's unfair to expect me to reveal all my reasoning in advance, but having been forced to do that, let me say that if it's obvious to all that - of the international fallout that this incident was going to create, the fact that Mr van der Merwe informed Foreign Affairs or didn't inform Foreign Affairs, will be relevant. If he didn't inform Foreign Affairs, then the question which arises is "Why didn't he inform Foreign Affairs, was this something that he didn't expect would be authorised?"

CHAIRPERSON: Who is that, Mr van der Merwe?

MR BERGER: Yes.

CHAIRPERSON: Well Mr van der Merwe is not the applicant here is he? That's the issue.

MR BERGER: He is an applicant here.

CHAIRPERSON: Sorry, Mr van Heerden. And according to Mr van der Merwe, he told Mr van Heerden about it and maybe one or two others. He also says as I remember it, that he doesn't know whether Mr van Heerden carried it across to any committee or any institution. I don't know about Barnard. Now what ever Mr van Heerden has to say about that, how does that cut against what Mr van der Merwe says?

MR BERGER: Because Mr van Heerden has as his bottom line that he was never told, he never knew about the attack before. We don't yet know what his evidence is going to be about after. At the end of the day, Chairperson, your Committee is going to have to make certain credibility findings in relation to Mr van Heerden's evidence and Mr van der Merwe's evidence, and it would be unfair to make credibility findings against or in favour of Mr van Heerden unless his evidence has been properly tested. I'm sure my learned friend, Mr Visser, maybe I'm wrong, but I would expect my learned friend, Mr Visser, to challenge Mr van Heerden on certain aspects and to argue that if there's a conflict between his evidence and the evidence of Mr van der Merwe, that the Committee should accept Mr van der Merwe's evidence instead. I would expect that. Maybe he won't do that, maybe he'll find a way to live with both versions comfortably. But I'm the one who has to ask the questions first before Mr Visser. I don't know where Mr Visser is going, and that's why I'm trying to cross-examine in as full and complete a way as I can within the terms of the subpoena.

CHAIRPERSON: Well let me put it to you this way before we get to Mr Visser, I don't know where you're going, we'll find out Mr Visser's route when we get to him. I just want to point out to you - I'm trying to locate the Section where the Act says that the Committee must - I don't know if it says curtail the cross-examination or what wording it uses, but words to that effect. Now why would you think that that has been included in the - and it refers to cross-examinations.

MR BERGER: Chairperson, the Section 34(2) says that you may place reasonable limitations with regard to time allowed in respect of the cross-examination of witnesses. My submission is that the time that has been taken on this argument is longer than the time I'm going to spend with Mr van Heerden on the telexes. I really don't intend to spend a long time with Mr van Heerden ...(intervention)

CHAIRPERSON: Now Mr Berger, let us not confuse the issues here. The reasonable time concept must necessary impact on the import and the relevance of your cross-examination. It's specifically, although not said in so many words, my interpretation of the Act, it implicitly refers to fishing expeditions and to relevance. Now relevance also has another connotation here. We've got to accept that, as I accept, that your questioning and your cross-examination of Mr van Heerden is to cut against the grain of what Mr van der Merwe has told us thusfar. How relevant is what Mr van Heerden, other than what he's told us, how relevant is anything else in respect of Mr van der Merwe's evidence?

MR BERGER: Chairperson, I'm going to elicit evidence which I submit is relevant. If you rule now that there's nothing more that Mr van Heerden can say which can add to the matter, then so be it, but I must deny that I'm on a fishing expedition because I'm definitely not. There's no fish that I want to catch for any purpose.

CHAIRPERSON: How do you deal with the fact that we restricted Mr van Heerden's evidence to those aspects that I've mentioned before he started to testify?

MR BERGER: I have no difficulty with restricting Mr van Heerden's evidence to what he knew before, during and after the attack, but in order to get to that conclusion one needs to ask questions which affect the probabilities, because at the end of the day, if Mr van Heerden is accepted, if his evidence is accepted, that he knew nothing of the involvement of the Police in this attack before, during or after, then that's fine, then I've got no difficulty, then we can move on. But Mr van der Merwe says that one of the people that he possibly spoke to was Mr van Heerden, that he bounced this attack off with was Mr van Heerden. Now this contradicts Mr van der Merwe's evidence in that regard ...(intervention)

CHAIRPERSON: What about the word "possible"?

MR BERGER: Well it eliminates that possibility now because if Mr van Heerden has accepted that there was never such a discussion, then that possibility is crossed off and then we are left with possibly, Dr Barnard. And when he comes along and says the same as Mr van Heerden, then that possibility will be crossed off, and then who are we left with? No-one. And then the question is, who did Mr van der Merwe bounce the attack off before the attack took place?

CHAIRPERSON: And if we come to the conclusion: nobody?

MR BERGER: Well then his credibility is seriously dented because he said he did bounce it off with people. So now he launched the attack on his own bat, without consulting with anybody.

CHAIRPERSON: Mr Berger, I'm going to allow you to ask certain questions, I will certainly stop you if I think you're going beyond the boundaries, but bear this in mind, that Mr van der Merwe's evidence is that "Look, I bounced it off possibly Mr Barnard, possibly Mr van Heerden, I'm not too sure, it's such a long time ago." It doesn't follow that if both gentlemen come and deny that they were the recipients of that information, that what Mr van der Merwe says is untrue. Because that list that he give us is not exhaustive, by his own evidence.

MR BERGER: Deliberately so.

CHAIRPERSON: Well then maybe you can argue that later, but I'm stuck with the evidence before me.

MR BERGER: Chairperson, I will argue that later and I will argue how Mr van der Merwe started off with the CIC meeting and later landed up with possibilities. I'll argue all of that at a later stage, but it's not relevant for the purposes of cross-examining Mr van Heerden at this stage.

CHAIRPERSON: Well let's hear what you're ...(indistinct - no microphone)

MR BERGER: Do you want to hear what I'm going to argue?

CHAIRPERSON: No, I'm saying ...(indistinct - no microphone)

CROSS-EXAMINATION BY MR BERGER: (cont)

Mr van Heerden, now that you've heard that whole argument, I'm sure you know what my questions are, so I'll try and get to the heart of it quickly.

It's apparent from the telexes that there was a huge international fallout as a result of this attack, am I right?

MR VAN HEERDEN: Yes.

MR BERGER: I don't think your microphone is on.

MR VAN HEERDEN: The light's on.

MR BERGER: Sorry, I was looking at the wrong microphone.

In fact there was a debate in the United Nations, initiated by the Lesotho representatives, am I right?

MR VAN HEERDEN: Yes.

MR BERGER: And there were a whole lot of telexes between you and your office in New York, about how South Africa should deal with this debate and with this international fallout, am I correct?

MR VAN HEERDEN: Yes.

MR BERGER: And there was a huge effort at damage control, is that correct?

MR VAN HEERDEN: Ja.

MR BERGER: And nowhere did the South African Government admit that any of their agencies were responsible for the attack, am I right?

MR VAN HEERDEN: Ja.

MR BERGER: And you sought to create the impression that perhaps the Lesotho Liberation Army or someone else was responsible for the attack, is that correct?

MR VAN HEERDEN: I think, Chairperson, the LLA at one stage themselves claimed credit for the attack.

MR BERGER: Yes. The point is that you as Foreign Affairs thought it fit to emphasise that possibility.

MR VAN HEERDEN: Well we had no - we used all the signals that were being sent around the event ...(intervention)

CHAIRPERSON: It was a convenient opportunity that you took advantage of.

MR VAN HEERDEN: ... and that's what happened, yes.

MR BERGER: The question I want to ask you is, you and your department, were you putting out this version or raising the possibility that other people were responsible for the attack, (a) because that was what you believed, or (b) because despite what you believed, that was what you wanted the world to know?

MR VAN HEERDEN: Chairperson, we based our advice to our representative in New York solely on the information that was available to us, and of course we wanted that to be clad in the most positive light. That was the duty of the Foreign Office, which I think is quite clear.

MR BERGER: So would it be correct to say then that even after the attack the Foreign Office did not believe ...(intervention)

CHAIRPERSON: Mr Berger, as soon as you come to a convenient stage, we need to adjourn.

MR BERGER: Alright, I'll leave it with this question then.

Would it be correct to say that even after the attack the Foreign Office and the Department of Foreign Affairs and you, believed that the South African - that none of the South African Security Forces were responsible for the attack?

MR VAN HEERDEN: Chairperson, that was the information we had and that's all we had to go by.

MR BERGER: Perhaps it would be appropriate then to adjourn now.

COMMITTEE ADJOURNS

NO RECORDING ON THE REST OF TAPE 1

TAPE IS BLANK FOR APPROX. 20 MINUTES RUNNING TIME

START OF TAPE 2 SIDE B

ON RESUMPTION

NEIL VAN HEERDEN: (s.u.o.)

MR BERGER: ... reason to believe after the raid, that South African Security Forces were involved?

MR VAN HEERDEN: Chairperson, no.

MR BERGER: Now I'd like to refer you to the Minute of the meeting, the CIC meeting of the 3rd of December 1985. Do you have it?

MR VAN HEERDEN: I believe so, yes.

MR BERGER: It's in Volume 2.

MR VAN HEERDEN: I have that, yes.

MR BERGER: Oh you've only got the latest stuff. Well it appears in Volume 4 also, at page 109.

MR VAN HEERDEN: I have that.

MR BERGER: This was the last CIC meeting of 1985, am I correct?

MR VAN HEERDEN: According to my information, yes.

MR BERGER: Well if you turn back to page 102, you'll see there a document which comes from National Intelligence, dated the 11th of November 1985, and in paragraph 4 thereof it says

"The CIC meeting of the year will take place at 10 o'clock on Tuesday, 3 December 1985."

So this would accord with your recollection.

MR VAN HEERDEN: Yes.

MR BERGER: And the next CIC meeting after 3 December 1985, I believe is the one that you were present at on the boat, from the 12th to the 14th of February 1986. Starting at page 120 of bundle 4, is that right?

MR VAN HEERDEN: That's right.

MR BERGER: And we see that also from page 119, there was supposed to be a meeting on the 4th of February, that was cancelled and so the first meeting was on the 12th of February. Do you have that?

MR VAN HEERDEN: Yes.

MR BERGER: Now if you would turn to page 113 please, of bundle 4. This is the part of the Minute that deals with ANC bases in Lesotho. Your evidence this morning was that you were the person who raised this at the CIC meeting because you were the person who was approached by the Security Branch, with the information that they had.

MR VAN HEERDEN: Yes, Chairman.

MR BERGER: Why were you approached with this information, why would the Security Police approach you and give you the information?

MR VAN HEERDEN: Well Chairperson, I should point out that I report here at that meeting of the 3rd, that according to information which had been received from the Security Police. I don't say that it was addressed to me personally, we had a regular stream of correspondence and information from the Police and this was information ...(intervention)

CHAIRPERSON: But Mr van Heerden, can you answer the question. Why were you chosen as the bearer of this information, can you say?

MR VAN HEERDEN: Because I was the appointed representative at the CIC, Chairperson.

CHAIRPERSON: For Foreign Affairs?

MR VAN HEERDEN: For Foreign Affairs, yes.

MR BERGER: Mr van Heerden, I thought in response to a question from the Chairperson this morning, that you said that you were the person who was given this information.

MR VAN HEERDEN: No, no, I said I was the one who brought this information to the CIC. It was information which would have come into the departmental flow of information and were sorted out and were put down for the CIC meeting, and since I was the person who attends the CIC meetings, I took it with me.

MR BERGER: Okay, it doesn't matter anyway. Why would Foreign Affairs be given this information by the Security Police?

MR VAN HEERDEN: Well because the ultimate objective if you recall, was for us to contact Lesotho. This is one incident in a whole flow of incidents that goes back over years. I mean if you recall, there were incidents that go back to 1982. So this was one in a flow of communications of this kind, and in all cases Foreign Affairs was the legitimate agent of the government to make that inter-governmental contact.

MR BERGER: So the information was given to you as Foreign Affairs, so that you could then send a message to the Government of Lesotho?

MR VAN HEERDEN: Yes, if we decided to do that.

MR BERGER: And also so that you would know what was happening in the country from a security point of view.

MR VAN HEERDEN: Inasmuch as we were told, Chairperson. Again I have to remind you of the need-to-know principle. That limited the information that was made available to us on a need-to-know basis.

MR BERGER: Yes, and what I'm putting to you is that you needed to know what was happening from a security point of view, so that you could put the best face forward, as you put it.

MR VAN HEERDEN: Well this was not a case of putting the best foot forward, Chairperson, this communication would have been aimed at convincing Lesotho to take steps which could avoid other things, including the use of violence.

MR BERGER: Alright. So here you have this information that there are 80 ANC soldiers present in Lesotho, who are prepared and ready to act against South Africa. That's the information you bring to the meeting. And then it goes on to say that

"The SAP requested that Foreign Affairs urgently Lesotho urgently and inform them that if they do not act, the Republic will act upon that."

When had that request been conveyed to Foreign Affairs?

MR VAN HEERDEN: All of this is part of the communication of the 29th of November, Chairperson.

MR BERGER: And when did you convey that information to Lesotho?

MR VAN HEERDEN: On the 13th of December.

MR BERGER: It must have been a reasonably serious threat.

MR VAN HEERDEN: Again, Chairperson, we had a constant flow of this kind of information and Foreign Affairs did not always immediately jump up and run across the border and take this matter up with Lesotho. There must have been in-house reasons ...(intervention)

CHAIRPERSON: You left it to the Security Forces rather.

MR VAN HEERDEN: ... there must have been in-house reasons why there was a period of 10 days after the CIC meeting, before that communication was addressed to Lesotho. I can't - you know, I don't recall what the contents of that domestic in-house consideration would have been, but there clearly was a reason for Foreign Affairs to delay the transmission of that message.

MR BERGER: Yes, but you see the Security Police had said this is a matter or urgency. It says that you should inform Lesotho urgently because there are these soldiers that are about to attack South Africa, and yet you wait from the 29th of November until the 13th of December before you send a telex.

MR VAN HEERDEN: Well first of all, Chairperson, we wanted to use the opportunity of the CIC meeting to discuss this, at that co-ordinating meeting, and the purpose of our raising it there was also to seek the approval and the support, support, approval would not have been the right word, the support of the CIC for measures that would not involve the use of force, and that's why I sought the support of the CIC for, if I recall, border closures. Well I did not succeed because the CIC decided that it did not have the power to do that. And that is a typical illustration of the kind of role which Foreign Affairs played within the overall scheme of things. When a threat was reported our first reaction usually was to say "Should we not talk to the people, should we not see whether we can remove the threat by means other than the use of force?"

MR BERGER: The information that you got from the Security Police, correct me if I'm wrong, is that you must please urgently inform Lesotho of the serious state of affairs and tell them that if they do nothing about it, we are going to do something about it. And the clear message in that was that "we're going to attack those bases in Lesotho", is that how you understood the message from the Security Police?

MR VAN HEERDEN: No, no, Chairperson, there was no - I don't recall any language to the effect of an attack.

MR BERGER: Alright, what do you make of the words

"If they do not act, the Republic will act according to their own ..."

What do you make of that? What did you make of that at the time?

MR VAN HEERDEN: That, Chairperson, could involve a whole series of coercive measures, such as the closing of the border, such as the return of the Lesotho workers to Lesotho, such as - yes, the closure of the border I've said ...(intervention)

CHAIRPERSON: Mr van Heerden, this was not, I think, the first time that South Africa entered into cross-border raids, is that not so?

MR VAN HEERDEN: That is so.

CHAIRPERSON: This occasion.

MR VAN HEERDEN: No, it was not the first time.

CHAIRPERSON: And prior to that these cross-border raids would have either been conducted by the Defence Force or the South African Police or both. Am I correct?

MR VAN HEERDEN: Yes.

CHAIRPERSON: Surely, in respect of those that were completed prior to this occasion, your department would have got to the truth by the date this communication was asked to be delivered. Am I correct?

MR VAN HEERDEN: Chairperson no, with respect, I don't believe there were incidents in close proximity to this one ...(intervention)

CHAIRPERSON: No, no, I'm not talking about a proximity, I'm just talking about those that occurred prior to this incident, be it a year, two years or whatever. Those that could be identified as having been completed and committed by either the South African Police or the South African Defence Force or a combination of them, and that the Department of Foreign Affairs would have become privy to how those attacks would have been conducted by the stage this communication was sought to be delivered to Lesotho.

MR VAN HEERDEN: Not necessarily, Chairperson, those would have been operational and technical detail that we would not have been concerned with.

CHAIRPERSON: Okay, let's put it this way. Surely by the time this communication was given to you, or you raised it at the CIC meeting, that your department was aware that there were certain raids across the border that had previously been conducted by either the SAP or the SADF or a combination of both.

MR VAN HEERDEN: Chairperson, if you mean that we could have expected, or we would have had a background ... (intervention)

CHAIRPERSON: No, let's deal with the first issue, that prior to this date of this CIC meeting where - what is the date ...

MR VAN HEERDEN: The 3rd.

CHAIRPERSON: ... the 3rd of December, your department knew that those two institutions had involved themselves with cross-border attacks prior to this date.

MR VAN HEERDEN: In the past?

CHAIRPERSON: Ja.

MR VAN HEERDEN: Yes, of course we knew that.

CHAIRPERSON: Would you not then agree that when this message was asked to be communicated to Lesotho, that your department was well aware of the fact that, aside from the possibilities that you mention, that force was also an option to be used if Lesotho does not do the necessary?

MR VAN HEERDEN: Yes, certainly, Chairperson. But I'd like to add that this was one of numerous messages of this kind that we received and in many cases the threat was there, it was defined, it was described and nothing happened, so Foreign Affairs had not necessarily had reason to expect that this kind of description of a threat would inevitably result in violence, in the use of force.

CHAIRPERSON: Now let's get back to your other bit of evidence. When it did in fact occur, is there any particular reason that the first port of call was not the South African Police?

MR VAN HEERDEN: No, but the Police denied it and we had no other means of penetrating beyond that denial.

CHAIRPERSON: Do I understand you correctly that they denied - you went to them, asked them, you certainly had suspicions, but when confronted they denied complicity?

MR VAN HEERDEN: Well they denied it in public and it was publicised.

CHAIRPERSON: Yes, Mr Berger.

MR BERGER: Thank you, Chairperson.

Following on from that, wasn't it incumbent on you to go to Gen Johan Coetzee and ask him whether the Police were involved in the attack?

MR VAN HEERDEN: In the normal scheme of things we would have seen each other regularly, either in meetings of this kind or in communications that we exchanged between our departments, and there was a denial on record, and Gen van der Merwe would not have gone any inch beyond the denial which they issued in public.

MR BERGER: No, I didn't say ...(intervention)

CHAIRPERSON: ...(indistinct - no microphone) need-to-know basis, this was not case of need-to-ask basis.

MR VAN HEERDEN: Chairperson, I don't recall specifically whether the next morning after the event we, you know, I spoke to Gen van der Merwe, I certainly don't recall that, but the denial was there and we had to deal with the denial.

MR BERGER: Mr van Heerden, I said Gen Coetzee, I was talking about Gen Coetzee.

MR VAN HEERDEN: Oh, Gen Coetzee.

MR BERGER: But let me rephrase again. Publicly there were accusations by amongst others, the Government of Lesotho, that South African Security Forces were involved. Publicly there were accusations that the South African Police or the Army were involved. Is that correct?

MR VAN HEERDEN: There were suspicions expressed, yes.

MR BERGER: And accusations made in public.

MR VAN HEERDEN: I don't recall by whom now, but I imagine it came out of the publicity given around the event.

MR BERGER: Well ...(intervention)

CHAIRPERSON: Will you accept that there were?

MR VAN HEERDEN: Yes, yes I will.

MR BERGER: Now that was one thing in public, but there were a lot of communications between you and the Police, as is evidence from this CIC meeting. We know that there were communications which were not made public. So my question to you is rather about what was not public than what was public. Surely as Foreign Affairs, if there are accusations in South Africa and internationally and at the United Nations, that the South African Government, particularly the Police or the Army were responsible for this raid, that you as Foreign Affairs had to go to your opposite number in Defence and your opposite number in the Police and say "Is there any truth in the allegations that your men were responsible?"

MR VAN HEERDEN: Chairperson, as is evident from the telegrams - well the telegrams only reflect the situation around this particular incident, but if one were to go into the archives of Foreign Affairs you would see that in that period over the years, there was a constant need for Foreign Affairs, when something happened, to ask the security establishments what happened. There was a denial and we'd say "Look we are going to go and bat for this on the basis of this denial, are you people certain because we are going to have our Ambassador at the United Nations stand up and defend this issue?" And I'm sure that in the case of this incident the denial was repeated and we had to, and that comes out from the telegram traffic that you see, we went to defend the ...(indistinct) on the basis of the denial.

MR BERGER: Alright. Well who in this instance in the Police, denied to Foreign Affairs that the Police were involved?

MR VAN HEERDEN: Well I don't recall who the individual, or if in fact there was an individual who issued such a private denial to Foreign Affairs, but there would have been an interdepartmental exchange I'm sure, because I remember that the Minister was always very adamant that before we go out and take a position in an international forum, that we should have every reasonable assurance that we base ourselves on defendable facts.

MR BERGER: And the Head of the Department on the Police's side was Gen Johan Coetzee. My learned friend, Mr Visser says no.

MR VISSER: No, the evidence was it was Gen Stan Schutte(?) ...(indistinct) of the Police. ...(indistinct) I'm sorry, perhaps I didn't understand you. I'm being contradicted here, so I must be wrong.

MR BERGER: I think Mr van der Merwe knows what I'm referring to.

Mr Schutte was the head of the Security Police, but the Commissioner of Police, and the Commissioner is the person that would have been responsible for the interdepartmental communication, was Mr Coetzee.

MR VAN HEERDEN: Chairperson, no, not necessarily. A lot of this communication took place at a lower level, at an operational level and in any case I was not head of department, Ray Killan was the Director-General. If there had been contact with Gen Coetzee, it would have been between Coetzee and Killan. But it's not to say, it doesn't follow that the communication would only have taken place at the level of Coetzee, not at all.

MR BERGER: I'm looking for a piece of information and my attorney will give it to me in a moment, from Mr Pik Botha, when he gave evidence at the last sitting of this hearing. Alright, we'll come back to that.

Somebody high up - let's put it this way, well let me read to you what Mr Botha said. He was responding to a question - it's at page 933 of the record, that there was this understanding between departments, an understanding between senior people in the government without even having to say it, that they were responsible for these actions. And his answer was:

"No. You see in practice, Sir, - I am glad Gen Coetzee is here, Ministers didn't operate on their own, you had a department, a head of department, Deputy Director-General and then again, again the whole rank. In cases where we had suspicions - now for instance, I would ask my Director-General to phone the Commissioner of Police or the Chief of the Defence Force, and say to them 'Look this reported thing in the papers are going to have serious consequences if it proves to be us. If it is us, you'd better say it because I cannot expect my officials abroad to lie. We will rather take the heat of the truth'. But you cannot, Mr Chairperson, if there is something that will totally demoralise a diplomat, then it is to expect him to tell a lie knowing he is telling a lie."

So what Mr Pik Botha is saying is that the head of department for the Police, the Commissioner of Police, would be the person that would be contacted by Foreign Affairs. Do you dispute that?

MR VAN HEERDEN: I think from a formal point of view, Chairperson, that would have been the appropriate level, but Mr Botha was not working at the operational level where I did for instance, and where I believe people like Gen van der Merwe did, and a lot of communication was passed at the working level which did not follow that formal route. And I think what Mr Berger has just related there in the words of Mr Botha, confirms what I said, that our standard practice was, if there was a crisis and we knew it was going to be a problem internationally, or it had already been reported by our representatives, that we would go - and I can recall without necessarily the detail of the incident, numerous occasions where I had reason to speak to colleagues in the other departments to say "Look we are being faced with this, what is the position?" They would deny that they were involved and we would then say to them "Look we are going to build our case on that denial" and you want to be sure, as Mr Botha said, that this will hold.

MR BERGER: Alright. So what you're saying is that neither Mr Johan Coetzee, Mr Stan Schutte, who was at that stage the - Johan Coetzee was the Commissioner of Police, Stan Schutte was the Head of the Security Police ...(intervention)

MR VAN HEERDEN: ...(indistinct) with that.

MR BERGER: ... Mr van der Merwe, Deputy-Head, but de facto Head of the Security Police. None of them indicated in any way to you or to Foreign Affairs that the South African Police were responsible for that attack, is that your evidence?

MR VAN HEERDEN: Not before the event, no.

MR BERGER: No, Mr van Heerden, I'm - I thought it was clear that I was talking now about after the event. We've been talking about being able to justify internationally, now clearly you've been asked to justify something which has already happened.

MR VAN HEERDEN: Oh, I'm sorry, Chairperson. No, my answer is no.

MR BERGER: Well let me make it absolutely clear. You knew nothing about the ...(intervention)

CHAIRPERSON: I think it's clear enough, Mr Berger.

MR BERGER: Okay.

Getting back to page ...(intervention)

CHAIRPERSON: Mr Berger, you recall that you told me you wouldn't be longer than a football match. We've passed the curtain raiser, we've played extra time in the main match, I'm waiting for the golden goal.

MR BERGER: No, Chairperson, if you take away all the injury time which was caused by arguing, I'm well within the 90 minutes of the game still.

CHAIRPERSON: I'm still waiting on the golden goal.

MR BERGER: The golden goal only comes in in injury time, Chairperson. Or after 90 minutes I should say.

Mr van Heerden, it looks like I'm in the second half already, so I'll move along. Page 113, bundle 4, did you understand that those words:

"if they do not act the Republic will act"

Do you understand those word to include the threat of violence, the threat of cross-border violence?

MR VAN HEERDEN: Chairperson, yes, if the situation was left unattended the logical conclusion is that it could include the use of violence, but it could also include a whole plethora of other measures, which were incidentally decided at the Security Council meeting of the 20th of December, if you'll recall. After this incident was discussed a whole list of, I believe 6, measures of coercive nature were agreed. So I cannot accept that those words can only have meant the use of violence. They could have included the use of violence, but they could also have included other things.

MR BERGER: No, my question is, at the time when you attended this meeting did you understand those words to include, amongst other things, the use of cross-border violence?

MR VAN HEERDEN: Yes.

MR BERGER: Did you understand those words to include the use of cross-border violence by the Police?

MR VAN HEERDEN: No.

MR BERGER: Why not?

MR VAN HEERDEN: Because there were other, Chairperson, other agencies in the government structure which could have been involved.

MR BERGER: Are you referring to the Army, forces within the Military?

MR VAN HEERDEN: Yes.

MR BERGER: And are you saying that that was what the Police intended as well, not that they would take cross-border action, but that the Military would take cross-border action?

MR VAN HEERDEN: One would have to ask that from the Police, Chairperson, I cannot express it.

MR BERGER: Then you asked whether it would be possible to engage Lesotho in discussions, did you also ask for a decision on closing the border? Was that a Foreign Affairs request, the last sentence on page 113?

MR VAN HEERDEN: Yes, according to the text here, Chairman, a normally reading of that would indicate that that's what I asked.

MR BERGER: Now you've referred, and I'm just referring you to it so that you'll know what I'm referring to later on, at the top of 114 you will see there's a decision, 1, that CIC didn't have the power to decide on the closing of border, but 2, that a document would be prepared before the 16th of December, by TNV. I think it's "Tak Nasionale Vertolking." Is that correct?

MR VAN HEERDEN: Ja.

MR BERGER: And then finally, it is recorded that the CIC was agreed, that whatever action was taken against Lesotho, or planned, that it should be preceded by a well planned propaganda programme, so that any South African action would be seen by the outside world as a last resort. Did you understand at the time that the words "any RSA action", that that referred to cross-border violence?

MR VAN HEERDEN: No, certainly not, Chairperson, that -every time that we instituted coercive measure of whatever kind, whether it was the closure of the border or the sending back of workers, that had repercussions abroad. So we cannot conclude, and I cannot agree that that reference to "any RSA action" can only mean a reference to violence. That could have included again, the whole ...(intervention)

CHAIRPERSON: Mr van Heerden, that's not the question. Did it include the possibility of South Africa entering into violent confrontation in Lesotho?

MR VAN HEERDEN: Amongst those coercive measures was violence, if you remember.

MR BERGER: And again, by the Military, not by the Police.

CHAIRPERSON: Well I think he says you must ask the Police about that.

MR VAN HEERDEN: Ja, we would be speculating, because we know now in retrospect that both those agencies had on occasion gone across the border.

MR BERGER: I'm asking what you understood at the time, not what you know now.

MR VAN HEERDEN: I cannot comment any more on that, Chairperson, that would be sheer conjecture.

JUDGE KHAMPEPE: May I interpose, Mr Berger.

But you were party to these discussions at CIC, surely you must have reflected on the issue as CIC.

MR VAN HEERDEN: Yes, the reflections that we had I think are shown in the text here, and the reflections that we brought to the table were precisely that we should agree to talk to Lesotho and that we should agree, if necessary then, to institute border closures.

JUDGE KHAMPEPE: Yes, but you are talking about actions being taken against Lesotho, now which institution did you expect to take such actions against Lesotho?

MR VAN HEERDEN: Well if it had been border closures, Chairperson, that would have involved the Police and also the Department of the Interior. If it had been the sending back or workers, that would have involved the Department of Labour. Of course if it had been security measures, that would have involved the Security Forces. But that cannot indicate that at this meeting there was a discussion in detail, or at all, of going all the way into a violent - into measures of force, in Lesotho.

JUDGE KHAMPEPE: Mr Berger, thank you.

CHAIRPERSON: Well then Mr van Heerden, please tell me, what would be the purposes of having 'n "goed beplande propaganda programme", if violent activity was not in the least contemplated?

MR VAN HEERDEN: Chairperson, measures such as returning the workers to Lesotho, would have had and did have a very serious affect in Lesotho.

CHAIRPERSON: Ja.

MR VAN HEERDEN: And the thing was, certainly as far as Foreign Affairs is concerned, if you spelt this out publicly in an information programme you could also have a hearing in Lesotho, where people would say "listen the South Africans feel extremely serious about the threat to their security as they see it, and they are talking about the possibility of sending our workers back." And through that warning you could have had the authorities in Lesotho come to take up Mr Botha's offer of a mechanism to deal and discuss this. And the same would apply to border closures. As you know, people from Lesotho come across the border into the Free State to do shopping and this would have had an immediate affect at the public level, and that is why there is reference to a "goed beplande propaganda programme".

MR BERGER: Mr van Heerden, a little while ago when I asked you about whether an earlier phrase included cross-border violence, you said "Yes". I said "by the police?". You said "No, there were other agencies". I said "Such as the military?" You said "Yes". You yourself, never mind what the Police might have thought, you at the time would have excluded the Police from cross-border violence.

MR VAN HEERDEN: Well we were not contemplating violence at this stage, so we wouldn't have excluded - we wouldn't have given that a thought.

CHAIRPERSON: But when it did happen who did you first think of?

MR VAN HEERDEN: Well we were immediately faced by the denial from the Security Forces, and on the basis of those denials, Chairperson, we went in a very serious campaign in New York to the United Nations.

MR BERGER: Mr van Heerden, let me just take it a short sentence at a time. You knew on the 3rd of December 1985, that one of the steps that the Security Police were threatening was cross-border violence.

MR VAN HEERDEN: No, we did not know that, Chairperson.

MR BERGER: Okay, let's go back to page 113, the words

"If they do not act, the RSA will act according to its best judgement."

From those words you've said - you said those words included the threat of cross-border violence.

MR VAN HEERDEN: It could include the threat of violence.

MR BERGER: And that's what you would have understood at the time.

MR VAN HEERDEN: Ja, but not exclusively violence.

MR BERGER: No, I'm not saying - Mr van Heerden, I'm not saying exclusively violence, I'm saying included. One of the threats, one of the things that could have been done, one of the steps that could have been taken was a cross-border raid.

MR VAN HEERDEN: Yes.

MR BERGER: But you said if that was to be undertaken you would have expected one of the Military units, and not the Police, to conduct such a raid. Do you remember that?

MR VAN HEERDEN: Ja.

MR BERGER: And isn't that because you were aware of the guidelines which had been adopted by the State Security Council, in relation to cross-border action by the South African Defence Force? Am I right?

MR VAN HEERDEN: Ja.

MR BERGER: In fact, you chaired a meeting of CIC in early October, when one of the things that was reported on was that the Working Committee of the State Security Council had been discussing authorisation for cross-border raids. Do you remember that?

MR VAN HEERDEN: Ja.

MR BERGER: And the only authorisation that was being discussed was authorisation for the Army, not authorisation for the Police. Am I correct?

MR VAN HEERDEN: Yes.

MR BERGER: And you were aware of that and that's why your answer a little while ago, excluded the Police and rather said "No, the Military would have carried out such an attack", am I correct?

MR VAN HEERDEN: Yes.

MR BERGER: You'll have to speak a little louder.

MR VAN HEERDEN: Yes.

MR BERGER: Then on the - 10 days after this meeting you send a telex finally, to Lesotho, and that's Exhibit E and you've got a copy of it in your bundle. I don't know if you want to turn to it, but you say there that

"The South African Government has information to the effect that the ANC is planning to launch armed actions from Lesotho against targets in South Africa, particularly during this festive season."

and then you detail a description of the ANC in Lesotho. Did you draft this telex?

MR VAN HEERDEN: No, I don't recall whether I did or ... I don't recall.

MR BERGER: Were you part of the team that okayed this telex?

MR VAN HEERDEN: I assume I would have been part, Chairman, because I was in the Africa Division then, but I must add that Ray Killan, who was a career Africanist, he kept a very tight hand on the drafting of communications of this kind and I would naturally think I detect his style in that particular telegram.

MR BERGER: Well you must have been a party to this telex because you were the person who carried the request from the Security Branch. You were the person who reported on that at the CIC meeting, and after the CIC meeting you were the person who would have gone back to Foreign Affairs to say "we need to send this telex".

MR VAN HEERDEN: In that sense I was part of the team, yes.

MR BERGER: You say that this telex of the 13th of December 1985, does not threaten violence.

MR VAN HEERDEN: No, I don't believe it does.

MR BERGER: Not even in a veiled way?

MR VAN HEERDEN: No, I don't believe it does.

MR BERGER: Now was that done - why was that done? Was that done because you didn't believe that an attack was about to be launched?

MR VAN HEERDEN: Well Chairperson, one has to keep in mind that this communication would have been taken immediately by Lesotho to their UN representative, and we wanted to be sure that we could, by sending a telegram of that kind, have a building block to build in case there would be an escalation of the situation with Lesotho.

MR BERGER: You would have been severely embarrassed if on the 14th of December, the Police had carried out an attack, or any of the South African Security Forces had carried out an attack on Lesotho. Am I right?

MR VAN HEERDEN: Yes, we would have.

MR BERGER: You would have expected the Security Police to inform you in advance of an attack, so that you would be in a position to justify it when all hell broke loose, am I correct?

MR VAN HEERDEN: Oh no, Chairperson, we would not have expected that necessarily, an emergency could arise and the security establishment could decide in their own right that there was no - it was dangerous to inform the outside before they went in, because of the safety of the people involved, and so it does not follow that they would have warned us. And if, I would have to add, if they had come to at whatever level, but something as serious as a cross-border raid would have been raised at a fairly senior level, then you can be absolutely sure that Foreign Affairs would have resisted and would have objected and would have opposed that with all the influence at our power.

MR BERGER: Okay. Then moving to Exhibit J, you'll see at page 2 - page 2 is the response of the Lesotho Government to Exhibit E, that's the telex - there are two telexes dated the 16th of December, but this is the second one, and it says in the second paragraph

"Lesotho is not aware of the existence of the ANC organisations and units mentioned in the telex under reference. Lesotho would be grateful to receive more specific information, to enable her to investigate what at this stage, are regarded as unfounded allegations."

Do you remember a response to that effect from the Government of Lesotho?

MR VAN HEERDEN: Yes. That was a fairly standard response, Chairman, I might say.

MR BERGER: And then on the 18th of December, 2 days later, page 3 of this Exhibit J, Foreign Affairs sent a telex back to Lesotho saying, in the third paragraph

"It is unacceptable to the South African Government that in reaction to the explicit information on a grave situation, Lesotho merely avers that it is unaware of the existence of the ANC units and organisations described in Sec Extern's telex."

that's your telex.

"The information which has been made available to Lesotho in a spirit of co-operation, is dismissed as unfounded allegations."

and then you go on to say:

"The Lesotho Government is once again urged to ensure that its territory is not used as a springboard for terrorist attacks against South Africa and her people. If such armed actions were to take place despite South Africa's repeated appeals to the Lesotho Government, the South African Government reserves the right to take whatever action may be necessary to defend its territory and to secure the safety of its citizens."

Now is that not a threat of violence?

MR VAN HEERDEN: Not of violence necessarily, Chairperson, it is a threat that South Africa would take steps which bypassed example and what happened after that started with things like border closure, the return of workers and other measures, and could have ended up in the use of force.

MR BERGER: So would I be correct in saying that if the Police had come to Foreign Affairs on the 19th, the day after this telex, and said "Tonight we intend launching a raid on these ANC bases, to wipe them out once and for all", you as Foreign Affairs would have used every influence at your disposal to prevent that from happening?

MR VAN HEERDEN: Yes.

MR BERGER: And then if you turn to page 4 of this exhibit, you get the telex from the Government of Lesotho, dated the 20th of December 1985, saying

"The Ministry of Foreign Affairs of the Kingdom of Lesotho has the honour to inform Sec Extern that last night between 12 midnight and 1a.m., a group ..."

END OF TAPE 2 SIDE B

START OF TAPE 2 SIDE A

"... nationals and six South African refugees. Seven people were killed at Hutlos(?), while a man and woman were killed in Maseru west. The Government of the Kingdom of Lesotho wishes to lodge a protest in the strongest terms to the Government of South Africa, for this callous and cruel killing of innocent people by members of the South African Security Forces. This latest incident follows threats contained in Sec Extern's telex number 5267 of 18 December 1985."

So now it's quite clear, and after this as we know, all hell does break loose internationally. It's quite clear that the government of Lesotho regarded your telex, your second one, as a threat of violence and secondly, that the South African Security Forces were responsible for the attack. That much is clear, am I right?

MR VAN HEERDEN: I don't necessarily think that follows, Chairperson, the judgement they made as to what the threat was, was made after the event, but there is a whole history of measures, coercive measures against Lesotho, which they were well aware of and which they would have included in their minds when they read the telegram prior to the attack.

MR BERGER: Yes. You would have been aware of this telex shortly after it came through, this one at page 4. Is that correct?

MR VAN HEERDEN: Ja.

MR BERGER: And your Director-General would have been made aware of the telex.

MR VAN HEERDEN: Ja.

MR BERGER: As well as your Minister, Mr Botha, is that correct?

MR VAN HEERDEN: Yes.

MR BERGER: Your Minister, Mr Botha, was in a State Security Council meeting in Cape Town at the time he was made aware of this telex. I'm sorry, but your nodding doesn't give ...(indistinct) the record.

MR VAN HEERDEN: I would assume he would have, yes. I was not part of the Security Council meeting in Cape Town.

MR BERGER: Well it would have been, I put it to you and correct me if I'm wrong, it would have been mighty strange if a telex like this comes through and the Minister of Foreign Affairs is not informed immediately.

MR VAN HEERDEN: Ja. No, certainly. The practice would have been to bring those matters instantly to his attention.

MR BERGER: And he would then have raised it with his counterpart - well there are two possible counterparts, the Minister of Police and the Minister of Defence, is that right?

MR VAN HEERDEN: Yes.

MR BERGER: And you are saying that as far as Foreign Affairs was concerned after having confronted the Department of Defence as well as the Department of the Police, that there were categorical denials that they were in any way involved in the attack, and you acted on those denials.

MR VAN HEERDEN: Ja.

MR BERGER: When was the first time that you became aware that, never mind the Police, but that South African Security Forces were responsible for this attack? Would it have been months after the incident or would it have been years after the incident or would it have been only after 1994?

MR VAN HEERDEN: Chairperson, I'm afraid I can't answer that, my memory doesn't cover that. I don't know.

MR BERGER: Would it be safe to say that it was only years after the incident?

MR VAN HEERDEN: I would prefer not to speculate on that, I really don't know.

MR BERGER: No well it's important, Mr van Heerden, it's important whether it was shortly after the incident or years after the incident.

MR VAN HEERDEN: As best I recall, it wasn't shortly after the incident. In fact, I'm sure it wasn't shortly after the incident. And whether it was six months or a year, I don't know, I cannot tell you.

MR BERGER: Well how did you come to know that the South African Security Forces were responsible for this attack?

MR VAN HEERDEN: I don't recall. I'm sorry, I don't know that detail. I must explain, Chairperson, we were in the middle of a very tense situation in Southern Africa, there was a fast flowing river of events as it were, and I don't recall at what particular moment did I get to know that there was a Police detachment involved in the raid. I'm sorry, I don't know.

MR BERGER: It must have come as an absolute shock that you had been lied to by your colleagues.

MR VAN HEERDEN: It was not a happy discovery, I would say that.

MR BERGER: In your statement, page 6 of your statement, you refer to the CIC meeting of the 12th to 14th of February - the Minute of that meeting is at page 120 of bundle 4, and you refer to page 126, paragraph 10.1, and you refer to the paragraph which reads

"Foreign Affairs (bottom of page 126), Foreign Affairs refers to the success which in recent times has been achieved regarding to the Lesotho matter, by a small high level project team consisting of RSA officials."

And I can tell you that representing Foreign Affairs at that meeting was you and Mr Lutter. So I ask you, what was the success that you were referring to?

MR VAN HEERDEN: I can only assume, unfortunately the detail is not here now, that we had succeeded in establishing a dialogue with the people in Maseru and that we were having a response from them which indicated that they would attend more diligently to the concerns which had been expressed with them in the past.

MR BERGER: Well I should just put you in the picture. On the 1st of January 1986 you closed the border, you sealed the borders with Lesotho and shortly thereafter there was a coup in Lesotho and the government fell. I'm sure you remember that.

MR VAN HEERDEN: Ja.

MR BERGER: So now you were dealing with different people. What was the success that - was the success the coup, was the success the raid? What was the success?

MR VAN HEERDEN: I would think that this would have referred to the implementation of that strategy, Chairperson, which was approved in the State Security Council on the 20th of December, where precisely those things that Mr Berger is referring to, the closure of the border and so on, were listed and that these measures which involved the so-called welfare departments, the non-security departments like the Interior and the Department of Labour, that they were brought more forcibly into the - more actively into the picture of dealing with Lesotho and taking us away from the threat of the use of force. While of course by that time, force had been applied. But this is the success which I am certain I and the Foreign Affairs representative would have referred to. Success for us would definitely not have been an armed attack in Lesotho.

MR BERGER: Alright. So the success that is being referred to here is not the attack?

MR VAN HEERDEN: No.

MR BERGER: But then you go on and you say

"In this case the existing Lesotho strategy was not employed ..."

...(intervention)

INTERPRETER: The speaker's microphone is not on.

MR BERGER

"In this case the existing Lesotho strategy was not employed and it was acted independently from the NVBS"

MR VAN HEERDEN: Chairperson, the NVBS is the National Security Management System which would be the State Security Council and all its committees, and this indicates to me precisely what I've said just now, that this involved the civilian departments and that there was an element of the measures such as the border closure involved and not - and the whole - I remember that Foreign Affairs, we always were looking out for strategies that could take us away from the imminent threat of the application of force and that is why we go on to say there, if you read further, that, if I recall, we ask that the CIC gives a view on applying similar approaches in other neighbouring territories where problems might necessitate that.

MR BERGER: Yes. You say - there are two things that I really want to concentrate on, you say that the existing Lesotho strategy was not used, so that begs the question, well what was the existing Lesotho strategy that wasn't used? And over the page you say

"What is the opinion that we do to other countries as was done in the case of Lesotho"

Do you see that? The Lesotho model, as you call it in your statement.

MR VAN HEERDEN: Ja.

MR BERGER: So what strategy was forsaken and what strategy was adopted in its stead?

MR VAN HEERDEN: I must admit, Chairperson, I'm really not clear in my mind - when I studied the documents and I came across this reference here to the "bestaande Lesotho strategie", I'm not absolutely clear in my mind. I can presume that this was the strategy which had been adopted as there had been strategies for all the neighbouring territories within the State Security System. I can only assume that that would have been the strategy I referred to. And that strategy must have deviated in important ways from that which was decided in the Security Council on the 20th of December, and which was the guideline behind this success which we refer to here. I assume.

MR BERGER: Mr van Heerden, I'm sorry but I didn't understand at all what you said there. You said that you deviated from what was decided upon at the State Security Council on the 20th of December, that much I understand, but how you deviated ...(intervention)

MR VAN HEERDEN: No, no, Chairperson, I did not say we deviated, I said exactly the opposite, I said that the success we refer to here, I assume is grounded in the strategy decided on the 20th of December, which calls for an escalating set of measures, of coercive measures with the application of violence only in the final instance. Now we know that violence did not happen after the - again, there was no further attack after the 19th, and this describes in my mind, the situation after January as it were. This meeting took place in the middle of February.

MR BERGER: So you don't know what the existing Lesotho strategy was?

MR VAN HEERDEN: I'm afraid I'm quite perplexed about that. I can only assume that it was a formal strategy -I know there were strategy documents for each of our neighbouring territories, approved by the State Security Council, or issued within the State Security Council system, that described the relationship and described what South Africa's relationship was with those countries. And that must have - the deviation I refer to, must have been the strategy of the 20th of December. That I think ... the escalated set of measures. I can only assume that that deviated from the other strategy which was referred to here.

MR BERGER: But you don't know what it was.

MR VAN HEERDEN: No, I'm afraid I can't recall that, and one should try - you know I don't know if that document would still be available within the State Security Council documentation, but I don't recall that.

MR BERGER: Alright. Well one thing that you're clear on is that the existing strategy, so-called, from the Minutes, and the deviated strategy adopted on the 20th of December, did not include violence first, negotiation later.

MR VAN HEERDEN: No, no.

MR BERGER: No?

MR VAN HEERDEN: No, definitely not.

MR BERGER: That was never the strategy?

MR VAN HEERDEN: Well Foreign Affairs certainly could never have been party to such a strategy, I mean that - we would have been left with only one option and that is to walk out of the room, because that would negate the whole role that Foreign Affairs could play in the overall scheme of things.

MR BERGER: Well then if we've cleared up that Minute and that that Minute - the Minute of the 12th to the 14th of February, that didn't refer to the raid or the attack, and if that didn't, then it would appear as though subsequent to the 3rd of December 1985, the issue of violence against the ANC in Lesotho was never raised again at a CIC meeting. Would that be correct?

MR VAN HEERDEN: We have further Minutes here that take us I believe, into March, and I went through them, I don't recall seeing any further reference to the raid.

MR BERGER: Me too, I've also been through them and I assume we're agreed that the raid was never brought up again after the 3rd of December 1985.

MR VAN HEERDEN: I find no reference to that in the documentation that has been made available.

MR BERGER: Now apart from the documentation, do you recall the raid ever being discussed at a CIC meeting?

MR VAN HEERDEN: I don't, I don't, Chairperson.

MR BERGER: Do you recall any discussion with anyone other than a member of the Police, because you say that never happened, with anyone such as Dr Barnard, or anyone else about the raid?

MR VAN HEERDEN: I assume, Chairperson, it's only reasonable for us to assume that people would have spoken about this amongst each other ...(intervention)

MR BERGER: Particularly shortly after the raid.

MR VAN HEERDEN: Yes, yes. But all of those who spoke about it were confronted with the denial.

MR BERGER: And all of those like, for example, Dr - did you speak to Dr Barnard?

MR VAN HEERDEN: I'm sure I would have spoken to him.

MR BERGER: And your impression was that he honestly believed that South Africa had nothing to do with the raid?

MR VAN HEERDEN: I can't speak for him, Chairperson, you will ...(intervention)

MR BERGER: No, I'm asking about your impression.

MR VAN HEERDEN: No, I don't even want to begin to speculate about that.

MR BERGER: Well did you have suspicions shortly after the raid, that someone, be it in the Police, be it Dr Barnard, be it anyone else, was hiding something from you in Foreign Affairs?

MR VAN HEERDEN: Chairperson, I may well have had such suspicions, but I had no facts to go on. And in fact, if you look at the texts of the telegrams which we have now distributed, you can see that Foreign Affairs went full out in a campaign based on the denials, in the United Nations and in fact across the world where we had missions. Because this issue was not only an issue in the United Nations, it was an international issue.

MR BERGER: You know the situation where someone indicates to you that 'It would be better if you didn't ask me the question because you might not like the answer that you are given', did such a situation ever confront itself to you with anyone in the Police, Dr Barnard, or any senior official of the government at that time?

MR VAN HEERDEN: Chairman no, in the position that I held that was not an option that I could live with because I had my colleagues abroad when I was at head office, knowing that at some time I'll be abroad and they'll be at head office, and I owed it to them and all of us in Foreign Affairs owed it to our colleagues to ensure that if we send them out on a mission, that we have facts that are as reasonably certain as possible. So against that background I cannot imagine myself operating on that basis.

MR BERGER: No, you're saying as a fact you never operated on that basis.

MR VAN HEERDEN: No.

MR BERGER: Thank you, Mr van Heerden, I have no further questions. Thank you, Chairperson.

NO FURTHER QUESTIONS BY MR BERGER

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

Mr van Heerden, just on the side of background, you in Foreign Affairs were concerned with external relationships with other countries, as I understand your evidence, what I want to know from you, perhaps you can tell us, during the '80s, is it correct that there was very strong anti-South African international feelings,

the order of the day?

MR VAN HEERDEN: Chairperson, yes, I think that's a matter for the record now, that was a very difficult time for the Department of Foreign Affairs in its particular line functions.

MR VISSER: And it had to do with the revolutionary onslaught and what inter alia the ANC/SACP alliance had achieved overseas, I think especially in America, to rally opinion against South Africa.

MR VAN HEERDEN: Certainly - the view of a revolutionary onslaught was of course not widely shared internationally, that was a perception on the part of the South African Government, rightly or wrongly, and certainly the ANC and its associates abroad had managed to create a climate which had become highly contentious for the South African Government.

MR VISSER: Critical of the South African Government.

MR VAN HEERDEN: Yes. But in addition to that, Chairperson, there was of course the moral judgements made by foreign governments, as they saw it, that there was a policy of racial separation in South Africa, which to them was anathema and that together with the success of the forces aligned against the South African Government, made for a very hostile climate.

MR VISSER: The point I'm coming to is this, one can imagine that it was perhaps not always easy for representatives of Foreign Affairs to always justify all the actions which took place in South Africa, to the outside world, to the United Nations for example.

MR VAN HEERDEN: No, it certainly wasn't easy, but the knowledge or the assurance that whenever our representatives were sent to present a case abroad, that they would be given facts that would hold.

MR VISSER: Yes, but you see that's precisely the point, we've heard a lot of need-to-know and there's also another saying that's developed that I've heard during the amnesty process, on the need-to-know principles and that's the "who you want to need-to-know principle". Now on the who you want to know principle, I believe your Minister, your erstwhile Minister, Mr Pik Botha, stated to the Human Rights Violations Committee that Foreign Affairs was often lied to and facts were often concealed from him as Minister of Foreign Affairs, because of this very reason, so that he could go and present a case without really knowing what the true facts were. Would you go along with that?

MR VAN HEERDEN: I suppose that would be a reasonable thing to say, yes.

MR VISSER: In fact he told this Committee, he told this Committee that he was often lied to by his fellow Ministers about things. I don't want to take that point any further, that point in itself is not the point. The point here is, we all know that the Police had no legal authority to enter Lesotho for any reason, least of all to carry out an attack. Gen van der Merwe was at pains to explain to the Committee that the operation of that particular evening, of the 19th to the 20th of December, was a covert operation, and he was at pains to explain that what that means is that it should not be traceable to the South African Government. Now once one realises that, it would, would it not, make perfectly good sense for the Police, after the raid, to have denied it in public that they were involved? It just makes good sense. Because if they admitted it, it would have placed you at Foreign Affairs in an invidious situation, not so?

MR VAN HEERDEN: Yes, certainly.

MR VISSER: Now one point on which there seems to be a little disagreement between you and Gen van der Merwe, is that his evidence was that while it is true that they would never have publicly admitted this, what is also true is that they would not have withheld this information from the security community. And his recollection is quite clear that he was never asked by your department, by yourself or anybody, as to what the true facts were, he says, because he would have told you. I don't suppose you can deny that.

MR VAN HEERDEN: No, Chairperson, it has also been said I believe, by Minister Botha, that Mr Vlok after some incident that took place, when he was asked whether he had informed his colleague, his response was - he was asked whether he had approached Pik Botha for agreement in the plans that he had, and his response was "I didn't because I know he would not have agreed".

MR VISSER: Correct, correct, but we're talking about Gen van der Merwe now, and his evidence is that because he was only second-in-command of the Security Branch at that time, he only became the Commander the next year in 1986, he was at pains first of all, to attempt to establish that if he ordered this raid, he wouldn't be stepping on anybody's toes, particularly Foreign Affairs' toes, because there was a climate of confrontation between Lesotho and the RSA at that time, so it was sensitive and that's why he says he in fact sent you the note, so far so good, but he says that it would have been meaningless for him afterwards to have denied it if he had been asked. And he has a clear recollection that nobody asked him. Would you agree with that? Would you concede that?

MR VAN HEERDEN: Chairperson, I can't do that because whenever we had to embark on a campaign as is described in the telegrams which we now have available, I can recall, not necessarily in this particular incident, but that it was important to us to establish from our security colleagues that what we were going to say was correct, and not to run the risk that our accredited representative, either in New York or in Paris or wherever, would be embarrassed by finding out that he was going off on a tangent that had no factual basis.

MR VISSER: Yes. I accept what you say, but isn't it possible that just in this case perhaps, you took the public denouncement or the public statement by the SADF and the SAP of their non-involvement, as the basis upon which you continued and that there wasn't personal discussion on ministerial level or even lower down, between your department and the departments of the Defence Force and the Police? Isn't it just possible?

MR VAN HEERDEN: Chairperson, that I would think is unlikely because why would we on the 20th of December, through the input of the Minister of Foreign Affairs, have reported the news we had from the Security Police and then ask for a strategy, a very precise and spelt out strategy to deal with the situation in Lesotho? That was the frame of mind in which we approached this. And I might just say also, Chairman, there was reference to stepping on the toes of Foreign Affairs, well I would have to say that the poor old Foreign Affairs' toes were at times quite much stepped on. But then there would be the argument on the part of the security personnel, who would say that we are entrusted with the situation that affects life and death and if the toes of Foreign Affairs comes under foot, well that's too bad.

MR VISSER: Well, so be it, yes.

MR VAN HEERDEN: And I'm afraid that is also a part of the reality.

MR VISSER: And just to add to what you've just said, what you've just told us you thought the perspective of the Security Forces were, they were under tremendous pressure from politicians at the time, to normalise the situation and to win the war as it were, not so?

MR VAN HEERDEN: Well Chairperson, one has to also see that in context. We had, as is reflected in the documentation that you've generated today, there were attacks inside South Africa, there were landmine explosions in which people, mostly civilians, were killed. This set the tone, this was part of the whole climate in which these things were being dealt with and I can recall that security colleagues, either in committees or in private discussions, would be quite vexed about arguments that we from Foreign Affairs' side would bring, arguments that would say "Look why don't we first of all do something else in order to prevent you people from doing what departments of Defence are trained to do," and they frequently dismissed this saying "It's easy for you to say that, you don't carry the responsibility of the security of - integrity of the borders of this country." And that was an argument that was never settled of course.

MR VISSER: Yes. And that is also the reason why you told this Committee earlier today that when Gen van der Merwe on the 29th of November, sent you the note which you raised at the CIC meeting, you took their stance to be a serious one.

MR VAN HEERDEN: No doubt, no doubt.

MR VISSER: Yes.

MR VAN HEERDEN: Again Chairman, I might just add, it's seen in the context of what was happening around us. If we had not taken that seriously and something happened, then people could have come to us and said, listen, you people were warned, did you not approach Lesotho? Now look what's happened.

MR VISSER: I was going to come to that but seeing that you raised it, there's one thing about the evidence that I personally find confusing. Now I know that no fingers can be pointed at you because you were not at the State Security meeting of the 20th of December at Tuynhuis in Cape Town, but you gave us the benefit of your interpretation in your evidence and particularly in your written presentation at page 5, the second paragraph. And that reads

"Had the CIC or for that matter the SSC, been aware of, or approved the raid of 19 December, it is non-consequential and illogical for the SSC on December 20, to have approved an elaborate procedure which only ultimately calls for the use of force."

Isn't it exactly the other way around? Isn't your proposition precisely 180 degrees out? And I want to put it to you why I ask this. If you look at those progressive steps, decision, which was taken on the 20th of December, in view of the threat that everybody then knew about, how could those progressive steps ever, with violence being the last one, stop possible incursion of terrorists into the country before Xmas, have any affect whatsoever?

MR VAN HEERDEN: Chairperson, our view was that - if you take the case of Lesotho which we are dealing with now, if our constant exchanges with them either through telexes or personal contact - and I might just add what is not part of the record cannot be part of the record because he's deceased, Ray Killan because of his long experience on the Africa side, had very close personal relationships with colleagues in the neighbouring territories - I believe Gen van der Merwe might actually recall that, and he was on a telephone basis with his opposite number and in a number of cases with Ministers in the Government of Prime Minister Leoboa Jonathan and I'm quite sure that in that time, and this is the only reason I can give to the question which was raised earlier, "Why is there that interregnum between the 3rd of December, the CIC meeting, and the date on the message to Lesotho", I can only speculate that in that time Ray Killan was talking on the telephone to his colleagues in Maseru, saying "Listen, I have to tell you there is enormous pressure on our side to act against you on the basis of evidence that the Police has now provided, and please take this seriously." That was the frame of mind in which we were.

And to come back to my paragraph here, we were quite convinced, maybe unrealistically, but if we closed, for instance, closed the border with Lesotho and we got the co-operation, more importantly, we got the co-operation of the people in Maseru, which would say "Look okay, we understand this, we don't want you to do these things, we are very sensitive to your sending our workers back because this is an economic factor for our country, we will now take steps to ensure that that hostile presence in Lesotho is either removed or is controlled in such a way that you can rest assured that there will not be those attacks at Xmas time". So Chairperson, that was, I have no doubt, precisely the frame of mind against which Mr Botha acted on the 20th of December.

MR VISSER: But you see, Mr van Heerden, and I'm not fighting with you, I'm trying to find out what the most probable thing is here, you see before that two telexes had gone off already and there was apparently no real reaction. That's the first thing. The second point is, we know now from the evidence that a group of people were going to start infiltrating on the night of the 19th of December into the country, to cause attacks etcetera. So with hindsight, with hindsight, we know that those progressive steps would have been meaningless in the face of the imminent threat. We know that. So when you mentioned just now how would we have looked afterwards if it appeared that we knew, the point is, the point is, the State Security Council on the morning of the 20th knew what the threat was, they knew exactly, they had the report of Maj-Gen van Vuuren in front of them, that said words to the effect "it doesn't help talking to them", and he proposed an SADF incursion into Lesotho. You will recall that document.

MR VAN HEERDEN: I don't have that.

MR VISSER: Oh, you don't have it.

MR VAN HEERDEN: I asked for it but it wasn't available.

MR VISSER: Well it's in the bundle, bundle 3 ...(intervention)

MR VAN HEERDEN: Is that the copy of the report that was initiated by the CIC?

MR VISSER: Yes, that very one, dated the 17th of December.

MR VAN HEERDEN: Oh, I didn't manage to get that.

MR VISSER: I will lend you mind if you want to take it home tonight for bedtime reading, but at this stage I ...(intervention)

JUDGE KHAMPEPE: Mr Visser, I just wanted to find out from Mr van Heerden if he's sure he's not had sight of that document.

That's the document you've referred in your statement on page 4, right at the end.

MR VAN HEERDEN: Chairperson through you, I attributed my reference to that document to Mr Botha, I picked that up in his testimony. I think paragraph 6.2. He refers to the document of the 17th of December. If it's the same document that you ...(intervention)

MR VISSER: You haven't seen that?

MR VAN HEERDEN: No.

MR VISSER: ...(indistinct - no microphone) important document. Let me read to you what it says. Sorry. This is an important document, Mr van Heerden. What van Vuuren says in his Situation Report to the State Security Council, at page 80 of volume 3, under Item 3

"Interpretation"

he deals in C with the Lesotho affair as follows, he says:

"The removal of the ANC recruits may have something to do with the possible ANC actions in South Africa during December 1985, and to prevent possible cross-border actions from the South African Security Forces and to prevent danger to recruits ..."

You will recall that there was some withdrawal of ANC people from Lesotho prior and a whole number of deportations after the fall of the Lesotho Government. And then it says in E:

"It is furthermore clear that the periodic discussions between the South African Government and Lesotho concerning ANC actions, did not prevent the ANC from stopping actions within the Republic."

So what he's saying is, it doesn't help talking anymore. And then he goes on at page 81, under the heading:

"Die bevoorrading van terroriste vanuit buurstate"

He says in the second paragraph ...(intervention)

MR BERGER: No, this is a Minute of a meeting, it's not the document.

MR VISSER: Oh, I'm sorry. Indeed.

Let me just read to you, Mr van Heerden, and then you can reply. I'm reading now from the Minute of the meeting of the 20th of December. It says, second paragraph from the top:

"'n Teikenaanbieding aan die Sekretariaat van die Staatsveiligheidsraad, TNV, moet nou gedoen word. Indien daar weer dergelike insidente, soos die landmyn voorvalle in Noord Transvaal plaasvind, moet drastiese stappe insluitend die oosgrens gebruik van militêre mag, geneem word."

So my only point is, on the morning of the 20th of December, no person present at that State Security meeting could have pleaded ignorance of what the real threat was. And now just coming back to what you said. How would it have looked later if it appeared that the raid of the previous evening didn't take place and with that knowledge that State Security Council meeting decided on those six progressive steps, which they did at the time?

MR VAN HEERDEN: Chairperson, that scenario played itself out a hundred times, of a build-up or an expression and a description of the threat by the security agencies and a resistance on the part of Foreign Affairs, to say please let us try once more. For us it was never too late to say we can prevent those thing if we are smart and if we can set in motion either an effective argument with the other side, or a set of non-violent coercive measures.

MR VISSER: We're perfectly aware that that was the standpoint of the Department of Foreign Affairs, you weren't known as the "lavender boys" for nothing. But the point is just this, isn't the fact ...(intervention)

CHAIRPERSON: What fragrance would you refer to with other departments, Mr Visser?

MR VISSER: It wasn't me that said so, Chairperson, ...(indistinct - no microphone)

CHAIRPERSON: I'm just trying to find out what they would have said.

MR VISSER: Well Minister Pik Botha said so. I just ...(indistinct - no microphone).

I just want to put this proposition to you, Mr van Heerden, that the only sense that one can make of those progressive steps that were proposed and decided upon on the 20th of December, is that it came from people who already knew that the previous evening the problem had been sorted out. Now you could look at a long-term project of normalising the situation with Lesotho, but if certainly, those people at that SSC meeting didn't know about the attack of the previous evening, those decisions would make no sense at all.

MR VAN HEERDEN: Chairperson, I'm afraid I have to differ, and I know from very distinct recollection, that I found myself in precisely that position many times, where people would threaten and say "With this information in front of us, are you really prepared to still want to come with the 'lavender' proposal?" And our - it could only have been our position, the answer was always "Yes, yes."

MR VISSER: The last question on this issue. I accept now that you believe that your Minister was bona fide and that he actually thought that it may solve the problem, but are you prepared to concede that in the light of what we know now ex post facto, it wouldn't have helped, it wouldn't have stopped the threat at that particular time before Xmas? Because the border closure only came in January, which was one of the first steps.

MR VAN HEERDEN: Chairperson, that's a technical judgement which I cannot make. I would only add this, that there was so much trouble all over the place that I would not be sure that if that one particular group had been ...

END OF TAPE 2 SIDE A

START OF TAPE 3 SIDE A

MR VISSER: ... that we know in this case, it did address the problem.

Chairperson, do you want to take the adjournment now?

CHAIRPERSON: Are you going to be very much longer?

MR VISSER: I believe be a little longer, yes.

CHAIRPERSON: ...(indistinct - no microphone)

MR VISSER: I didn't bring him here, but now that he's here I've got to ask him questions. I won't be too long, if you want us to carry on and see whether we can finish within the next half an hour or so.

CHAIRPERSON: ...(indistinct - no microphone)

MR VISSER: Yes, we'll finish tomorrow with him, yes.

CHAIRPERSON: ...(indistinct - no microphone)

MR VISSER: I was given to understand that if that is what you refer to as adventurous tactics, Dr van Heerden is only going to be here on Monday.

MR VAN HEERDEN: Dr Barnard.

MR VISSER: I'm sorry, Chairperson. Dr Barnard's only going to be here.

Actually I referred to you as Dr van Heerden and I was ...(intervention)

CHAIRPERSON: ...(indistinct - no microphone)

MR VISSER: I'm hoping so, Chairperson, but Mr Botha put me straight. Chairperson, I thought Dr Barnard was only coming on Monday, and that tomorrow you were only going to - but you know, I don't know how well informed I am. Is there a problem with Mr van Heerden tomorrow?

CHAIRPERSON: I was going to ask him.

MR VISSER: Well perhaps he should tell us.

MR VAN HEERDEN: Chairperson, I have been informed that you expect me to be here today and tomorrow, but I have through your office, asked that if it was at all possible, I have a professional engagement tomorrow which starts at midday and I would much appreciate it if you could deal with me today, but of course I'm in your hands.

MR VISSER: Chairperson, I'm happy to continue if you want me to.

CHAIRPERSON: One of the Panel Members has a certain condition ...(indistinct - no microphone).

MR VISSER: Let me quickly have a look and give you an estimate, Chairperson.

CHAIRPERSON: ...(indistinct - no microphone)

INTERPRETER: The Chairperson's microphone is not on.

MR VISSER: I started off, Chairperson, by having prepared 112 - no, much more questions, but because of the evidence-in-chief of Mr van Heerden, that was cut down by about three-quarters. I will be another half an hour.

CHAIRPERSON: Mr van Heerden, with that promise, would it be possible to come back tomorrow at 9 o'clock?

MR VAN HEERDEN: Yes, certainly, Chairperson.

CHAIRPERSON: I will endeavour to allow you to - where is your engagement, in Pretoria?

MR VAN HEERDEN: In Johannesburg.

CHAIRPERSON: Well I'll endeavour to allow you to be excused in good time, in order to get to that appointment.

MR VAN HEERDEN: Thank you.

CHAIRPERSON: Thank you for your co-operation thusfar.

Ms Patel, to avoid these delays and as someone called it, "injury time", we'll do well to find out from Dr Barnard if he's going to have any documentation that he's going to refer to, and get hold of this and have it photostatted and maybe tomorrow the whole team can have a copy of it and they can have a good look at it over the weekend. Cut out some golf and whatever else.

MS PATEL: I will call his instructing attorney.

COMMITTEE ADJOURNS