Amnesty Hearings

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

CROSS-EXAMINATION BY MR VISSER: (cont)

Thank you, Chairperson.

Mr van Heerden, yesterday when we adjourned we had, if I remember correctly, agreed to disagree about the interpretation to be placed on the decisions taken at the State Security Council meeting of the 20th. Last night, I must tell you that I, and this morning, I read through the other Minutes of meetings held and I came across a reference in one of the earlier Minutes - I'll find it if necessary, where the Minister of Foreign Affairs, Mr Botha, was requested by the State Security Council - oh yes, it is at page 11 of volume 4, and it occurred to me that perhaps this may tie in with your interpretation and mine for that matter, if you look Agenda Item 3(e) at page 11 - have you got volume 4 in front of you? That is the State Security Council meeting Minute that was held on the 21st of October 1985, and there's an entry here in the Minute, under (3), under the heading:

"The African National Congress"

and it says:

"The Chairperson said that Minister Botha at the next State Security Council meeting, will bring about a strategy for the neutralising of the ANC influence in the foreign countries."

and then there's a reference at a CIC meeting, referring to exactly that, and I'm not going to refer you to it because all that it says is "We're still working on it." That may have an influence and I just, through you, wanted to place it on record for the Committee to take notice of that.

If I may perhaps just for the sake of clarity, so that you and the Committee Members and everybody else would understand what my questions are going to be about this morning, just summarise as follows. I'm going to put questions to you on broadly two basis and the basis are as to what happens prior to the 20th of December and what happened after. Now you have dealt in your evidence-in-chief already to a large extent, with what your knowledge was of what happened before, and if I may just be allowed to summarise it, to pick up the strings. You had received a note dated the 29th of November from the SAP, which you considered sufficiently serious to table at the CIC meeting of the 3rd of December, is that correct?

MR VAN HEERDEN: Yes, Chairperson.

MR VISSER: Now that information you say that is noted in the Minute, is what was in fact contained in the note. That was your evidence on a question of Mr Berger. On that basis, is it then clear, or can we accept that it is clear that what you knew at the time and what would have been contained in the note, was that some 30 new soldiers, MK soldiers, had arrived in Lesotho, which brought up the figures to some 80 present in the country, and that posed a serious threat? That's the one thing. The second thing was that the SAP requested Foreign Affairs to inform the Lesotho Government of this and to issue a warning. Now you see, your evidence was that at that stage you considered that the Police were serious about it and obviously you were also serious about it because you tabled it, but you also gave evidence to the effect that you did not, at that stage, understand there to be a threat, if you like, of an immediate action by the Police. That's not the way you understood the position to be.

MR VAN HEERDEN: Well Chairperson, we knew and we understood from the detail provided to us, that this was a serious matter, but we had no reason to believe - and again I would like to repeat what I said yesterday, Chairman, that this followed in the course of a number of communications of that kind, over months preceding that date. I don't want to say that because we had been receiving so many that we were taking them lightly, but we knew that this was part of a pattern and I suppose that accounts for the fact that it took 10 days for Foreign Affairs to actually address that communication to Maseru.

MR VISSER: Yes. You see, I'm just coming to that very point ...(intervention)

CHAIRPERSON: Mr van Heerden, before Mr Visser gets to that point, were all of these requests, if you want to call it that, that developed into a pattern which sort of led the department, or you, up a path to think that this is the pattern that's developing and this is going to be the Police's attitude towards this problem? Were all of these directed to you on an urgent basis, as was this one?

MR VAN HEERDEN: Not all of them, some of were of a lower order.

CHAIRPERSON: So of what significance was it to you ...(indistinct - no microphone) that this message and this threat that you incidentally left out of the message to Maseru, of what significance was the proviso that it was urgent?

MR VAN HEERDEN: Well the significance of the urgency was certainly stressed as well by the Xmas time aspect ...(intervention)

CHAIRPERSON: Precisely, precisely.

MR VAN HEERDEN: ... which was brought in, and in previous experiences on occasions of special events in the calendar, we had to say to ourselves, "Look this Xmas possibility when people are on holiday, when there are large numbers of people congregated in shopping centres and malls, that must be a special - must lend a special urgency to the message". And indeed, Chairperson, if one looks at the document to which Mr Visser referred yesterday - and I have to correct myself, I indicated that I had not received the document, it was in fact included in a volume which I received only the day before I came here and which I did not have a chance to peruse, but I have now looked at it, it's "Situation Report No 83 of 1985", dated the 17th of December. This document contains, this is the result of the CIC meeting of the 3rd of December, where the request was made for more information. I believe this is what happened there. And if you read the contents of it, it is an extrapolation and a further extension of the information contained in the Police's communication of the 29th of November. It contains much the same type of information, it also speaks of - of course it's later information, it talks about 80 people and it explains the structures that are in place, it talks about the people who had been removed from Lesotho in fear that there would be reprisals. So it is an extension of the document which we received on the 29th. But of course this document is dated now five days, four days after Foreign Affairs had dispatched its communication to Maseru.

MR VISSER: And there's just one other aspect which I would like to add while we're on the point, to what the Honourable Chairperson has asked you. Would the point of the Police asking you to warn Lesotho that if they didn't act, the RSA would act, would that have been a normal request in all these other requests or information notes which you received from the SAP, or was this rather unique to this situation?

MR VAN HEERDEN: Chairperson, it's my recollection that this was in character with the communications we had from Police from time to time.

MR VISSER: Well you've now already answered ...(intervention)

CHAIRPERSON: Mr Visser, can I just intervene?

Who would be able to close the gates at the border post? Which department?

MR VAN HEERDEN: As I recall, that would require a joint operation between Police and the Department of the Interior, but the Police in the case of our neighbouring territories, played a special important role at that time. I believe now that function may well have gone over completely to the Interior. I'm not familiar with procedures anymore.

CHAIRPERSON: Well besides what the position is now, the point I want to, or the information I want from you on this score is that if you received a message or an informative request from the like of the South African Police, in particular the Security Branch, what are the possibilities from them? What were the available possibilities to deal with this problem, other than doing what they eventually did?

MR VAN HEERDEN: Are you referring, Chairman, specifically to border closures?

CHAIRPERSON: Well yesterday you testified that when they'd do what is necessary, it could mean border closures, it could be returning of migrant labourers etcetera, etcetera. The question that I'm asking is, given that the Department of Labour would have been involved in certain respects or the Department of Foreign Affairs in another, aside from doing what they eventually did, what other options were there that one could attach to the Security Branch?

MR VAN HEERDEN: Chairperson, I would think that the Police would not have thought much of the border closure and the labour returns, and in fact it is stated so in this document ...(intervention)

CHAIRPERSON: No, but I'm asking you now for you're interpretation of this message and this threat.

MR VAN HEERDEN: I think that spoke of the use of force.

CHAIRPERSON: Ja, I would guess so.

MR VISSER: Thank you, Chairperson, that really wraps that point up.

But you also, Mr van Heerden, said that what you had known on the 3rd of December, was contained in the Minute in paragraph 3.2, and we also know from the document, the Situation Report, that a lot more was known by the 20th or before that. In fact on the 17th, when that document was signed, was completed and signed, and basically what happened after the 3rd of December according to Gen van der Merwe, is that fresh evidence, information came in. Am I wrong? The fresh information concerned the fact that there was now information that certain MK cadres were on the point of entering the Republic of South Africa to commit acts of terrorism within the Republic, over the festive season. That's the new factor that came in. And you see, up to now it would appear to me and I would argue it, ...(intervention)

CHAIRPERSON: Mr Visser, was that not part of the original request on the 29th?

MR VISSER: No, very specifically not, Chairperson, that came in later. Perhaps I must refer you to the documentation. Chairperson, that's the new factor that came in and as you will now hear further information came in thereafter, because apart from this new information of the festive season and the cadres that were on the point of coming in, there was also information that an informer of the Security Branch at Ladybrand had told them that he had seen an arms cache in Lesotho, and he referred to AK47 assault rifles and round objects and there was an inference drawn that they may have been landmines, because what was obviously in the minds of everybody at the time was the landmine explosions in the Northern Transvaal. So that is what was surmised.

Now the point of that, Mr van Heerden, is that if you look at page 80 of bundle 3, Chairperson, you will see there in the Situation Report by van Vuuren, exactly this new information. Now it is significant, I put it to you Mr van Heerden, because that coincides with your evidence, that there is no reference here to the build-up as the imminent threat, the build-up to the 80 members or whatever the case may be. So you are quite correct, and I want to emphasise this, you are quite correct in saying that after the 3rd of December fresh information came about, and that is what is contained at page 80.

Now can I put to you - and so far your evidence is exactly the same as that of Gen van der Merwe. Now may I put this to you, after the information about the round objects had been passed on, and we'll come to who it was passed on to, there was further information and Gen van der Merwe thought it was around the 17th/18th of December, he couldn't put a date on it, when this source, this informant, brought information from Lesotho that - brought two handgrenades from Lesotho, which he had lifted. Now I read somewhere, and we'll hear from Mr de Kock whether that is so or not, that in fact it was Mr de Kock who sent him back to bring some proof of the arms cache, of the existence of the arms cache. He brought the two handgrenades and he was later sent back. Now that information was passed through to Pretoria and at that stage says Gen van der Merwe, the crisis arose, the crisis requiring immediate action.

So to summarise, and I've been talking a lot, but I've been trying to put everybody into the background, on the 3rd of December there was no crisis ...(intervention)

CHAIRPERSON: Mr Visser, of nobody understands the background by now they're never going to.

MR VISSER: Thank you, Chairperson. I just want to be as fair as I can to the witness, because I'm coming to the question that he has to answer now.

By the 3rd of December, you're quite correct, there was no crisis although it was a serious matter. Thereafter a crisis developed. Now Foreign Affairs in their telex of the 13th of December, referred to the influx of MK cadres during the festive season. Two questions. Was it you that received that information from the Security Branch, and if not, who else would have been the person who had received that information?

MR VAN HEERDEN: Chairperson, I don't specifically recall this incident that it was me personally who received that, but there were numerous lines of contact between the Police and the rest of the Security establishment and Foreign Affairs, and it could have been my colleague, Mr Lutter, it could have been the Director-General, Ray Killan, but obviously we would not have had our own sources to have that information to put into that message to Lesotho, we must have gotten it from somewhere and we obviously got it from the Police.

MR VISSER: Yes, that was my next question, obviously. Because you couldn't have gotten it out of the Situation Report because that only came later.

MR VAN HEERDEN: Yes.

MR VISSER: Yes. Now you see the problem that we have, and the reason why I put this question to you, is that Gen van der Merwe cannot remember having discussed this at a CIC meeting, this fresh information and ...(intervention)

CHAIRPERSON: Mr Visser, I think in order to be fair to the witness we've got to better describe this meeting, whether it was an official meeting or a passing meeting or a gathering of certain members who normally attend CIC meetings.

MR VISSER: Yes, I was just coming to that. We know that there wasn't an official CIC meeting after the 3rd of December before the next year. We know that. That was also your evidence. You see in the amnesty application before, Brig Schoon said that he gave a presentation, a written presentation, written in red ink, to Gen van der Merwe and Gen van der Merwe was on his way to a CIC meeting. Now this is after the 3rd of December. Gen van der Merwe can't remember that at all. In fact the reason for that we know now, is that there wasn't one. The best he could do was to suggest that what must have happened is that he must have spoken to members of the CIC about this new information. The question was, and it has never been suggested by anyone that it was definitely you, the question is whether it could have been you, or inter alia you.

CHAIRPERSON: Mr Visser, maybe I misunderstand the situation, maybe both of us, didn't Mr van der Merwe say that he did get approval from CIC? Now the type of approval or the type of meeting from which he obtained this approval and whether this approval was in writing or tacit or whatever, is another matter. I think when asking this question of the witness, then it must be ...(indistinct) in those terms ... He says in evidence, and it's on record, that - at one stage of his evidence, let's put it that way, that he did receive the approval. I think in fairness to the witness, the type of approval needs to be defined.

MR VISSER: Yes, certainly Chairperson, I will put that. But with great respect to you, my understanding of his evidence is he can't remember at all. What he said was that it is probable that he would have spoken to people because of certain facts inter alia, which he mentioned, he said he was second-in-command, the Lesotho issues was a critical issue, it was very sensitive and he would have been careful not to step on somebody's toes. So his evidence, van der Merwe's evidence is that he would have ...(intervention)

CHAIRPERSON: Somewhere on the record it appears that he says he would have been destroyed had he not done so.

MR VISSER: And he mentioned that to illustrate the probability that he would have, but his evidence throughout was that he can't remember. He cannot picture the situation where he actually spoke to people. That's his evidence.

CHAIRPERSON: I suppose we're going to be called upon to debate that in argument again I suppose.

MR VISSER: But in the meantime, Chairperson, perhaps just to illustrate what I'm saying, at page 502 of the record, it's brief passage, can I read it to you?

"It is important to state that it did not have any commanding capacities (referring to the CIC). In this regard, as I use the word 'approved' in bundle 1 at page 104, I would say that in my application I might have expressed myself incorrectly by using the word approved, and I intended to say that there had been no opposition from the CIC."

And then he goes on later, Chairperson - this isn't the right passage, he goes on later to say that, and I believe he explained that when my learned friend, Mr Berger was cross-examining him on this very point, and he said:

"At least I must have discussed it with members of the CIC."

That was his evidence.

ADV BOSMAN: That's on page 504, Mr Visser. If that will assist you.

MR VISSER: Thank you, Chairperson, I thought it was 504.

CHAIRPERSON: I'll accept that, Mr Visser.

MR BERGER: I'm sorry, Chairperson, it's not absolutely correct what my learned friend puts, because if one looks for example, at 502, in the middle of the page, Mr van der Merwe says

"I definitely would have dealt with the matter in concurrence with the CIC, in order to ensure that there was no conflict of interest or conflict between the actions by the Security Branch and the South African Defence Force."

And if one goes back right to the beginning, to Mr van der Merwe's amnesty application, he says that the raid was approved by CIC. So that, in fairness, should also be put to Mr van Heerden if he's going to be brought into the picture.

CHAIRPERSON: Well Mr Berger, in fairness, and I'm just trying to be fair to the witness, he's after all not an applicant in the matter, we need at the end of this hearing amongst all of us, going to have to define approval as it appears in his written application, combined with what his explanations are of approval. And I don't want anybody to put to this witness a statement or a proposition as if it was a formal meeting of CIC where CIC considered all these factors and gave official approval to it, where in fact it wasn't so. You may elicit the wrong answer from the witness because the question has been couched incorrectly. That's all I'm trying to do. I don't want to inadvertently have the witness misled. Let's put the facts to him as they are on the record, and he can deal with it.

MR BERGER: Chairperson, I don't want to argue now, but the only factor I want to place on record is that the facts are not clearly established.

CHAIRPERSON: Precisely, that's what I asked Mr Visser to consider when he puts the question.

MR VISSER: Yes, Chairperson, and we will come to that in argument, but it seems that my learned friend agrees with me while disagreeing with me. However that may be - Mr van Heerden, you say you cannot remember that you were the person to whom this first set of fresh information was addressed. You can't remember that.

MR VAN HEERDEN: No, I cannot remember it, but we must have gotten it somewhere and we must have gotten it from the Police, information on the fact that there was - these dangerous instruments were found and the fact that these were aimed at being applied during the Xmas period. But I would have to say, Chairperson, the one thing the Police, whether it was Gen van der Merwe or one of his associates, would not have done, would have been to come to Foreign Affairs and to say "Look, we are planning to a, b and c, and do you concur or can we bounce this off you? How do you feel about that?" Because as I've said yesterday, they would have known that we would have said "We cannot agree with that and of course we do not have the authority to give our agreement to something like that." It would have been completely out of character with all the other evidence which is here of Foreign Affairs' participation.

CHAIRPERSON: And do I understand you correctly that if at all Mr van der Merwe or one of his associates party to this proposed attack in Lesotho, were to mention it to some members of CIC, it would certainly not be those representatives belonging to your department?

MR VAN HEERDEN: No, because they - I'm sure the Police colleagues would have known that we would not be the right address for that approach.

CHAIRPERSON: And they wouldn't get their answer they were really looking for.

MR VAN HEERDEN: Chairperson, if I could also add to what Mr Visser has said. We don't know for sure, but one wonders if the evidence which came to light after the CIC meeting of the 3rd, to which Mr Visser refers, and I tend to agree with him that new information must have come about since the information contained in the document of the 29th of November, whether that information didn't eventually go into the making up of the Situation Report of the 17th of December. That information must have been gathered within the intelligence community, we didn't have sources and resources to do this, and this document was prepared as you will recall, by the Tak Nasionale Vertolking, which is the point where all the latest information would have been fed into.

JUDGE KHAMPEPE: May I interpose, Mr Visser?

Mr van Heerden, we've already heard evidence from Mr van der Merwe, that during this period there was a serious diplomatic strain between Lesotho and the government. You obviously would be privy to this information. Now that being the case, don't you think that Mr van der Merwe would have consulted you as the representative of Foreign Affairs within the CIC structure, in order to determine whether his intended action against Lesotho would not further harm the diplomatic relations that you had with Lesotho?

MR VAN HEERDEN: Chairperson through you, you're right, there was a very serious state in our diplomatic relationship, as is evident from everything you've seen, but our locus standi was limited to the diplomatic relationship and there would have been - and I'm sure the Police, it would have been perfectly clear to them that anything of the nature which happened would have been disastrous for the diplomatic relationship. In fact, one could hardly have referred to it as a relationship at that stage, it was a very badly strained contact, to put it at best.

JUDGE KHAMPEPE: But would you not have been the first person he would have consulted in order to bounce off his intended action against Lesotho?

MR VAN HEERDEN: No, that is not how it worked, the Security departments worked in their own compartments and Foreign Affairs would have been the last person they would have consulted on the issue of committing an act of violence in the neighbouring territory. I'm absolutely convinced of that.

MR VISSER: But what is irrefutable is that van der Merwe did in fact give your Department of Foreign Affairs the new information because that's contained in the ...

MR VAN HEERDEN: Ja, that's contained.

MR VISSER: But what you're referring to I think, is the question of clearing a raid.

MR VAN HEERDEN: Exactly.

MR VISSER: That's what you're referring to.

JUDGE KHAMPEPE: Not necessarily clearing the raid, Mr Visser, even discussing the raid.

MR VISSER: And we heard what your evidence is on the probabilities, that you would have said "No, please don't do that", but of course that would not necessarily have stopped van der Merwe from talking to somebody in Foreign Affairs and if that was the reaction he could have just gone ahead anyway, not so? If one had to speculate.

MR VAN HEERDEN: Yes, but Chairperson, thinking of the understandable position which Gen van der Merwe took, that his career was in jeopardy as it were, in the matter of this decision, he would not have taken the risk on the basis of a Foreign Affairs nod or an indication of complicity at all. I cannot imagine that, because if afterwards things went wrong and he was asked "Well who authorised this, who told you to go ahead?" and he would say "Foreign Affairs", well that would be of absolutely no use to him.

MR VISSER: Yes, for the simple reason that Foreign Affairs couldn't authorise him.

MR VAN HEERDEN: Precisely.

MR VISSER: How many members, sitting members were there in CIC normally? I've counted some 20 on average, would that be a ball-park figure?

MR VAN HEERDEN: I would think about 20, but as I remember the attendance registers there were never more than about 10 people and sometimes event less, present at individual meetings.

MR VISSER: Alright, well let's take a figure of 10 persons, any one of whom could have been consulted I would imagine.

MR VAN HEERDEN: Ja.

MR VISSER: Yes. If it was not a formal meeting, as the Chairperson has pointed out.

MR VAN HEERDEN: Ja.

MR VISSER: Yes.

MR VAN HEERDEN: Chairperson, might I just say that one must assume that this Tak Nasionale Vertolking, which was responsible for preparing the document of the 17th, must have had several sessions, meetings, between the instruction to them from the CIC to prepare that document and the 17th of December, because those documents were put together by people drawn from various agencies to construct those scenarios.

MR VISSER: Yes. In any event the telex now goes off and I want to ask you this, did you have representation in Maseru at the time? Foreign Affairs.

MR VAN HEERDEN: I don't believe we had, no. That came later.

MR VISSER: Now I want to come to the second part of my questioning and that is the events after the 20th of December. Well I should really say on and after the 20th of December. Now we know the raid takes place during the night of the 19th to the 20th of December and we now know what happened at the SSC meeting and what the Minutes say happened there. Now we have looked through the documentation of the Minutes of the State Security Council as well as the CIC after that date and we have found no explicit reference at all to the Lesotho raid.

MR VAN HEERDEN: Correct.

MR VISSER: Not even to the raid itself, forget - far less as to any discussion as to who might have been responsible for it. Don't you find that strange?

MR VAN HEERDEN: Chairperson yes, I did ask myself that question, because when I came new to the documentation, I didn't recall all the detail and when I read through the papers it was, it did strike me as curious that there was no discussion of this. And I don't really know how to account for that.

MR VISSER: Yes. You see, van der Merwe's evidence was that it would have been silly for him to have denied within the information community that it was the Police, because he had already given the information as to the building up of the crisis etcetera, beforehand, so it was really almost an irresistible inference that it had to be them. Isn't the reason for that in fact, and I'm not talking about you personally, but in fact that the powers of the time knew very well that it was a clandestine operation, which suited them in their purpose, because the crisis had been addressed and if any reference had to made to that and somebody had said "But it was the Police", everybody would have known it would have been an unlawful action, and that's the reason why nothing is mentioned in the Minutes. Is that a feasible probability to you?

MR VAN HEERDEN: Chairman, the fact that the crisis had been temporarily removed by the incident, that no doubt was pleasing to the authorities, because we had the information and it was publicly canvassed and there this thing happened, the raid happened, and then that was publicly canvassed and of course that did create the impression that now at least the immediate threat has been removed. But as to why this didn't appear in the documentation of the CIC, I suppose that is a valid speculation that people who were in the position to know, did know. But as I said yesterday, for Foreign Affairs it was very important to base ourselves on the public denials that there were not agents of the South African Government involved in the raid, because that is how we handled our entire campaign abroad.

MR VISSER: Yes.

MR VAN HEERDEN: And I would say, Chairperson, if I might ...(intervention)

CHAIRPERSON: Are you saying that even if you were informed of the truth, that would still have been the Foreign Affairs' position?

MR VAN HEERDEN: No, no, Chairperson, I think I tried to say yesterday that when we were given denials by ...(intervention)

CHAIRPERSON: No, no, I understand that, I'm just trying to place today's statement into perspective.

MR VAN HEERDEN: I think it's reasonable to say that individuals on the part of Foreign Affairs would have had their suspicions.

MR VISSER: You see, your erstwhile Minister, Mr Pik Botha said that, or he gave the impression at least, and if I'm wrong I will apologise to him, that your department had thought that it was the LLA that might have been responsible. And without sounding critical, I just want to put it to you that on the probabilities you couldn't have - your department couldn't have thought that because the LLA had nothing to do with the ANC, they were involved with the Lesotho Government, not so? That's the first point. Would you agree with that? In principle.

MR VAN HEERDEN: Yes, except, Chairman, one could conclude that elements within the LLA were opposed to the Lesotho Government and part of their opposition to the Lesotho Government was the harbouring of foreign elements in the country which posed a threat.

MR VISSER: Oh, alright. But to borrow from my learned friend, Mr Bizos, can I put this to you, if you thought it wasn't the Army and it wasn't the Police and you came to the conclusion, in his words, that it wasn't the fairies, and you now think it was the LLA, would that not have presented you with a new ally in Lesotho? At least the Police. An ally who can wipe out the ANC ...(intervention)

CHAIRPERSON: The Police knew it wasn't the Liberation Army.

MR VISSER: I'm working on the assumption of what ...(intervention)

CHAIRPERSON: So they couldn't have thought that they would have had an ally.

MR VISSER: Chairperson, that's not the question, the question is this. If anybody had thought that, wouldn't that have been a matter for intense discussion at the CIC meetings following? "How do we deal with this new alliance that we've got, this new help that we've got? How do we use it?"

MR VAN HEERDEN: Well at the time when the CICs met again, which the first meeting was only on the 12th of February I believe, after the new year, there had been dramatic developments in Lesotho and the picture had changed. In fact there was a new Government. So that that problem in that sense, Mr Visser, would have gone away.

MR VISSER: Yes. You see what is interesting is that apparently after the 20th of December, the Working Committee of the State Security Council was of the view that this crisis had been addressed by these progressive steps that had been resolved at the meeting of the 20th, and I refer to bundle 3, page 4, and it says there

"Lesotho: The State Security Council has approved a step-by-step strategy with regard to action against Lesotho. The results thereof are already clear. The Chairperson of the SSC expresses his gratitude for the particularly good inter-departmental co-operation during this operation."

That's on the 29th of January that this meeting takes place of the Working Committee of the State Security Council, and if ever, if ever there was a time, I want to suggest with respect, to refer to what happened on the night of the 19th to the 20th December, of which everybody was then aware, we all knew there was a raid, then this was the time. Would you agree with that?

MR VAN HEERDEN: No, Chairperson, for me the reference there is to the strategy of the 20th of December, which had then visibly put in place in terms of the closure of the border, the return of the workers, and if you like ultimately the change of climate in Lesotho, which resulted in a change of government.

MR VISSER: Yes, yes.

MR VAN HEERDEN: Which had happened by that time. I believe the coup was on the 20th of January. In other words, nine days before the 29th, of the Working Committee's meeting.

MR VISSER: I see, yes. Now just to return to my question, there's no specific reference to the raid at all and we've agreed that that's strange, but be that as it may. But then I want to refer you lastly - and then I'm going to release you, from my point of view anyway, to the meeting of the CIC on the SAS Tafelberg, 12 to 14 February 1986. Now you see at this meeting, and we've got to refer to volume 4 at page 126, there are things noted that I would ask you to give us some explanation on, if you can. At page 126 of volume 4, under the heading: "Lesotho and Botswana", it says

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

The paragraph goes on to explain over the page at page 127, that this is a power group of civil servants who engaged in consultation and thereby having sorted out the problems. Is that a reasonable interpretation of what this is?

MR VAN HEERDEN: No I believe so, yes.

MR VISSER: Yes. This could only have referred to some of the steps decided at the SSC meeting of the 20th of December, would you agree with that?

MR VAN HEERDEN: I believe so, yes.

MR VISSER: Alright. Now then the next paragraph 10.2, reads as follows

"Members indicate that a plan should also be formulated for action against the ANC and its many front organisations and campaigners in the RSA as well as abroad, as well as action ..."

and then it refers to schools unrest, which is not relevant here. The next sentence says:

"The National Security Management System is supposed to address these problems."

So what you're saying, it's not the affairs of CIC, really. That's what you're saying.

"The question now originates whether crisis situations should be handled on an ad hoc basis by informal systems."

I want to ask you what that means. Let us assume for a moment, let's talk about the crisis that was there before the 20th of December, was that something you had in mind of dealing with through informal structures? And if so, what were these informal structures? Can you remember at all?

MR VAN HEERDEN: Chairperson, I can only think that this referred - the informal structures referred to, if you go back to the previous page where it's referred to "a small high level project team", that project team would not have had any official status, it would have been an informal grouping of, as it's described here at the Deputy-Director level of people who would get together and say "Listen, can't we talk about closing the border?" And there were many agencies here in South Africa, as I recall, a number of them were opposed to that for a variety of reasons. "Let us sit down and talk about that, because at least it's better than having to go, to escalate this situation all the way up to the use of force". The same would apply to labour. The Chamber of Mines was opposed to the idea of sending back the Lesotho workers. They had a high standing in the mining industry, they had been there for a long time and there was strong opposition to that. So that was the kind of informal structure that I think is meant here. And if I can help us understand why there is an indication of an objection here to informal structures, I think on the part of the Security authorities, they were not at all comfortable with the idea of leaving something as critical as our relationship with our neighbouring countries in the hands of an informal structure, because they would also say with some degree of justification, such an informal structure would have no accountability or could have no accountability. So to me, that is the origin of that remark.

MR VISSER: So the short answer, if I understand you correctly, is that paragraph 10.2 at page 127, must be referring to the "high level project team", which had already been in action to solve the crisis?

MR VAN HEERDEN: I would think so, ja.

MR VISSER: Now you see, then there were certain "gevolgtrekkings" which were made in paragraph 10.3, and just to show how brave the CIC was, they say at the bottom of the page

"Could it possibly be considered to undertake a critical investigation of the SSC's activities?"

and I thought that was very brave of you. But over the page, at page 128 it says this:

"Should the SSC or a core group of the SSC not possibly confer on a weekly basis to keep a better finger on the pulse within a Security situation which changes swiftly from day to day?"

Now clearly that must, if not completely, but it must at least inter alia refer to the threat from across the borders, would you agree with that?

MR VAN HEERDEN: Yes, certainly.

MR VISSER: And then this core group wouldn't be this high profile group that was referred to on the previous pages.

MR VAN HEERDEN: No.

MR VISSER: It would be something different.

MR VAN HEERDEN: Ja.

MR VISSER: Yes. And it then says - well, can I ask you immediately, did you have the crisis in Lesotho but pertinently in mind when you made these decisions? It is under the heading "Lesotho and Botswana". But if you can remember, please tell us. Did you have the crisis in Lesotho pertinently in mind?

MR VAN HEERDEN: I think, Chairperson, the crisis in Lesotho would have led to these considerations, but I mean there were similar situations pertaining in Botswana from time to time, in Swaziland as we know.

MR VISSER: Yes, obviously. And the next sentence says this

"In the event of a core group of the SSC, which could possibly be compared to a sort of war cabinet, the greater SSC should only have to confer on a monthly or bi-monthly basis."

Am I correct if I draw the inference that what is spoken about here is not negotiations and consultations, it is the use of force? Can I derive that from the word "oorlogskabinet?"

MR VAN HEERDEN: No, Chairperson, I think an "oorlogskabinet" would not exclude strategies similar to the one approved on the 20th of December, where a government would decide to act against a neighbour, but it wouldn't necessarily have to be the use of force.

MR VISSER: Yes.

MR VAN HEERDEN: This is an expression, if I might just add, of the kind of psychosis which was prevalent in the country at the time as a result of events both across the border and landmines incidents inside the country. The forces outside had succeeded in creating a crisis atmosphere which led people to want to go to measures such as these.

MR VISSER: Yes. Lastly, can I ask you, you've already given your explanation from the point of view of members of Foreign Affairs, about violence and about the use of force and I have no problem with your answer, I just want to ask you, during those years, and let's talk about the mid-80s, there was consistent talk of action against the ANC, capacities to combat the enemy etcetera, etcetera, would that explanation of yours, to say that you would start with diplomatic negotiations, but violence or force was an option, would that also apply to that, to all those meetings where mention was made of what must we do to combat the actions of the ANC?

MR VAN HEERDEN: Chairman, yes, I think it would have because after all, the principle of a country defending its territorial integrity is a principle in international law under certain very specific circumstances. So in that sense, yes, it would have.

MR VISSER: Yes. And by the same token, I think Minister Botha and yourself already in fact said this, the other departments didn't necessarily share that sentiment, they may have been more inclined to think of force first.

MR VAN HEERDEN: Yes, by the nature of their primary task I think that's understandable.

MR VISSER: Chairperson, thank you for allowing me the questions and I'm sorry I held you up longer than I should have. Thank you, Mr van Heerden.

NO FURTHER QUESTIONS BY MR VISSER

CHAIRPERSON: Just be careful next time, Mr Visser.

CHAIRPERSON: Mr Toweel?

MR TOWEEL: I have no questions, thank you Chairperson.

NO QUESTIONS BY MR TOWEEL

MR CORNELIUS: Cornelius for the applicant Vermeulen, I have questions. Thank you, Mr Chair.

NO QUESTIONS BY MR CORNELIUS

MR LAMEY: Lamey for applicants Nortje and Bosch, no questions. Thank you Chairperson.

NO QUESTIONS BY MR LAMEY

MR JOUBERT: Joubert for McCaskell, no questions. Thank you Mr Chairman.

NO QUESTIONS BY MR JOUBERT

MS PATEL: Thank you Honourable Chairperson, I have no questions.

NO QUESTIONS BY MS PATEL

ADV BOSMAN: Thank you.

Mr van Heerden, we know that CIC had no decision-making powers, but was it a general practice or a custom for CIC members to consult amongst one another to ascertain or to assist in decisions which certain departments may have contemplated?

MR VAN HEERDEN: Yes, I think there was a lot of mumbling and grumbling Chairperson, in the corridors at times, but I would have to say that Foreign Affairs was somewhat like the odd man out of course.

ADV BOSMAN: Yes, that was going to be my next question.

MR VAN HEERDEN: Because if you look at the line-up of people participating in the CIC, we were, as I also tried to say in my short statement, we were there. We didn't have an inherent capacity for intelligence gathering, we were not trained for that, and we were there because of our diplomatic capacity to communicate as the State's official representative with our neighbouring territories. We had no locus standi in the domestic ...(indistinct)

ADV BOSMAN: No, that I understand, but if Mr van der Merwe had consulted with other representatives from the intelligence community, as you term it, it would not have surprised you.

MR VAN HEERDEN: No, no, I'm sure there was a closer consultation of necessity, between the Security establishments than between themselves and ourselves.

ADV BOSMAN: Thank you. Thank you, Chairperson.

JUDGE KHAMPEPE: Thank you Mr van Heerden. Flowing from the question from my colleague, I just want to be clear on one issue. Was it a practice of CIC to hold informal meetings?

MR VAN HEERDEN: Chairperson, to the best of my recollection, no. They were formally called, there were Minutes and you had to say whether you were going to be present or not, that's how I recollect it.

JUDGE KHAMPEPE: So that's the practice that you know? MR VAN HEERDEN: Ja.

JUDGE KHAMPEPE: My other question is, there has been reference to the TNV Report which was requested by CIC on the meeting of the 3rd of December 1985. My question is, why did CIC at that meeting on the 3rd of December, ask for the compilation of a report with regard to the situation in Lesotho? Was it to enable that report to be discussed, specifically at the State Security Council meeting, or was that report intended to be discussed initially at a CIC meeting before being submitted to SSC?

MR VAN HEERDEN: Chairman, no, I'm quite clear in my mind, that request had its origin in the fact that the Security establishment was severely alarmed at the evidence which had now come to hand and one might now say in retrospect, they probably were not terribly impressed with the measures that Foreign Affairs had put on the table in the face of the threat, talking about border closures and things like that and I think it's only natural that then there was a push with the CIC to say: "Look, let's get more information on this, we can't really deal with this serious situation, with these things that Foreign Affairs are suggesting and let's drive the decision or the review of this situation to a higher level, because the CIC does not have any authority to take decisive decisions in this matter" and they knew that there was going to be a special meeting of the Security Council on the 20th of December and that's the construction in my own mind. I was not a member of the Security Council at the time and I wasn't present at that meeting, but I would imagine that people in the CIC would have said the Security Council would want to have a full picture of this situation when it meets on the 20th.

JUDGE KHAMPEPE: Thank you.

CHAIRPERSON: Mr van Heerden, I just want to ask you three or four basic questions. Firstly were you one of the people that were either consulted, informed or asked for permission for the Security Branch people to embark on this attack?

MR VAN HEERDEN: No, Chairperson.

CHAIRPERSON: Do you know whether what is called CIC approved of such an attack prior to it being completed?

MR VAN HEERDEN: No, I don't.

CHAIRPERSON: Do you know of any records that indicate that?

MR VAN HEERDEN: No, I have taken much trouble to go through the available documentation because I knew that this would be my position and I wanted to be sure that documents would not be produced that would prove me wrong.

CHAIRPERSON: Do you know whether any State institution as it existed at that time, approved of such an attack?

MR VAN HEERDEN: No, I don't.

CHAIRPERSON: Do you know of any State Institution as it existed at the time, condoned it after the ...?

MR VAN HEERDEN: No, I find no proof of such a condoning in the records.

CHAIRPERSON: The last question, or the last aspect I want to deal with, I asked Mr van der Merwe himself and I'm not too sure whether he answered it properly, perhaps you could. CIC was a gathering or officials which did not have the power to sanction such an attack, that's how I understand it, is that so?

MR VAN HEERDEN: Yes.

CHAIRPERSON: Mr van der Merwe, during his evidence, indicated that either he consulted members who were party to the CIC, he can't remember the individual people, or he sought tacit authority from them to embark on this attack, because ostensibly at one time in his evidence he said he would have had to avoid being destroyed, but now I emphasis that was one part of his evidence. He also went, I think Mr Visser quoted his evidence, further in trying to explain that he perhaps used the wrong word when he used the word approval or authorisation in his written application. He went further to explain that really perhaps what he intended was more loose than authority. But tell me, what concerns me is had he gone through all these procedures as he says he may have, how would that, if he was condemned afterwards for proceeding with this attack, how would CIC officially or otherwise have been able to avoid, or help him from being destroyed, if it was a Committee that was not empowered to give such permission?

MR VAN HEERDEN: No, Chairman, if I think back to my participation in CIC activities, my first reaction is that that is not an issue which, the kind of issue which CIC was concerned with. I have to say that it is quite conceivable that Gen van der Merwe would have consulted with other people in the CIC and in the wider Security establishment. That seems to be a perfectly understandable and natural thing for him to have done in the light of the gravity of the decision that he had to take.

CHAIRPERSON: That makes sense. That makes political and practical sense to me also, but he has testified that he earmarked CIC or members of CIC and whether it was official or not is of no moment, all I want to know is that he earmarked CIC to protect himself in the event that he may be criticised after the event. How would CIC, either officially or through its members, assist him in protecting his career, should he have been in that position where he's criticised and his career was at stake, if CIC or those members were not in a position to sanction such an attack? It's a different thing had he gone to the President, I mean then the whole scene would have been different, but he's earmarked CIC, he's testified about CIC and I just want to know, maybe I don't understand it, how would CIC be in a position or its members privately be in a position to assist him, had he been in such trouble?

MR VAN HEERDEN: Well, I'm afraid I have to say Chairperson, not in a very strong position at all because if you recall, I asked for a discussion on border closure and that was immediately said - it was immediately said: "We can't decide on this, we'll have to refer it to others." If a much more serious issue such as an incursion would have been raised in the CIC, clearly the decision would have been, "We can't deal with that, you'll have to take that somewhere else."

CHAIRPERSON: Yes, thank you for your trouble Mr van Heerden. Thank you.

MR VISSER: Chairperson, I'm sorry to interrupt you. Arising from your last question, may I put one question - take up that issue with Mr van Heerden?

FURTHER CROSS-EXAMINATION BY MR VISSER: Mr van Heerden, Dr Neil Barnard, what was his position in Government?

MR VAN HEERDEN: He was the, Chairperson, the most senior person on the CIC, he was the only Director-General. All the others of us were second and third level people and he was represented on the Security Council and he was the only one of us who was represented on the Security Council, so in that sense his position was unique in the CIC.

MR VISSER: What was he Director-General of?

MR VAN HEERDEN: He was Director-General of National Intelligence as I recall at that time.

MR VISSER: Was he not also the Director-General in the office of the State President?

MR VAN HEERDEN: No, but as I recall ...(intervention)

MR VISSER: I'm not sure, I'm just asking.

MR VAN HEERDEN: Ja, as I recall, Chairman, the situation was that he reported, he didn't have a Minister, he reported to the State President.

MR VISSER: Yes, and who was that Minister?

MR VAN HEERDEN: It was Mr P W Botha.

MR VISSER: Yes, that's the point. So would it be fair to say that Dr Neil Barnard had direct access to the State President?

MR VAN HEERDEN: Well in the sense that it was his Minister, yes.

MR VISSER: Thank you, Chairperson.

NO FURTHER QUESTIONS BY MR VISSER

WITNESS EXCUSED

CHAIRPERSON: Mr Toweel, can we try to deal with your position?

MR TOWEEL IN ARGUMENT: Chairperson I have taken up the position with Mr Coetser, I have explained his rights to him and he is of the opinion that he has sufficient reason not to give evidence. In the light thereof, there are certain aspects that I wish to place on record because I believe that at a certain stage you will have to make a decision regarding what you plan to do with his refusal to take the oath. Firstly for the sake of background, ...(intervention)

CHAIRPERSON: Before you continue Mr Toweel, your client's interests here in this hearing are that he is someone who has been subpoenaed and also someone who would be regarded by law as an implicated person, so therefore he is wearing two caps here.

MR TOWEEL: That is correct, Chairperson.

CHAIRPERSON: And with the one cap he does not have to give evidence, that is as an implicated person.

MR TOWEEL: Yes, that is correct, Chairperson.

INTERPRETER: The speaker's microphone is not on.

CHAIRPERSON: And as a subpoenaed person, if we request him to give evidence, he will have to.

MR TOWEEL: Yes, Chairperson, unless he has sufficient reason not to do so.

CHAIRPERSON: Yes, I am aware of that. Very well, in the documents, who are the persons that name him as an implicated person?

MR TOWEEL: Chairperson if my memory serves me correctly, Messrs Bosch and Vermeulen.

CHAIRPERSON: Is that all?

MR TOWEEL: I am not certain.

CHAIRPERSON: I think that I read something regarding Mr de Kock who also names him.

MR TOWEEL: I am simply following the index which has been provided to me. I would also accept that Mr McCaskill would also implicate him, I don't know if it is by name as such.

JUDGE KHAMPEPE: But Mr McCaskill is not an applicant.

MR TOWEEL: Yes, Chairperson, but I was asked by whom he is implicated.

JUDGE KHAMPEPE: But Mr de Kock directly implicates him.

CHAIRPERSON: Do we concur on that?

MR TOWEEL: Yes.

CHAIRPERSON: Very well. Continue.

MR VISSER: Chairperson I'm asked to tell you that Gen van der Merwe also implicates him because he recommended a medal for him to be ...

MR TOWEEL: It is also accepted as such Chairperson.

MR LAMEY: Chairperson, he's also implicated by applicant Nortje, who was part of the operational team.

CHAIRPERSON: Well then he's implicated by almost 100%.

MR TOWEEL: Yes, Chair. Chairperson in the first place, he received a notification in terms of Section 19. It was received on the 18th of February. This is as an implicated person, in which among others it is stated: "If you wish to attend and this notice does not compel you to attend, it remains within your discretion."

On the 23rd of February Mr Coetser, it's the 23rd of February 2000, Mr Coetser without legal assistance and in his own name, drew up a response by means of facsimile which was addressed to the Amnesty Committee of the TRC in which he placed the following on record: "With reference to the aforementioned, I wish to inform you that I have decided not to attend the hearing for the following reasons

1) I have not applied for amnesty;

2) I do not have legal representation and I cannot afford legal representation,

3) By joining the Security Branch of the SAP in 1985, I signed an oath of secrecy which prevents me from disclosing anything regarding my involvement with the SAP Security Branch."

He then concludes by saying:

"I hope and trust that you will understand the aforementioned and respect my decision."

Now Chairperson, that was on the 23rd of February this year.

CHAIRPERSON: I just want to write all of this down, Mr Toweel. What was the third reason?

MR TOWEEL: The oath of secrecy.

CHAIRPERSON: When was that?

MR TOWEEL: Are you referring to the oath?

CHAIRPERSON: Yes.

MR TOWEEL: 1985.

CHAIRPERSON: Is he still a policeman?

MR TOWEEL: Yes, he is.

CHAIRPERSON: Yes.

MR TOWEEL: Chairperson this report was faxed on the 23rd of February 2000, on the very same day he received a subpoena in terms of Section 29 in which or which was accompanied by a letter undersigned by my learned friend Ms Patel, in which it was stated

"We have been requested by the lawyers for the victims to issue a subpoena to yourself"

and then there is the standard notification in terms of Section 29 which was received by him on the 23rd of February, the notification to appear before the Amnesty Committee.

There is just one aspect that I wish to touch upon. It probably doesn't take the point much further, but in the standard notification there is a reference to Section 34 of the Act which says:

"You are entitled to appoint a legal representative to assist you during the course of the proceedings. Further to the above and in the event that you are not financially capable of instructing a legal representative, the Commission may appoint a legal representative to assist you."

It would appear, after I have spoken to Mr Prior from the TRC yesterday, that this is conditional, meaning that if you don't play along we won't pay for it anymore, in the sense that Mr Prior stated that if I give him the undertaking that Mr Coetser will testify, he will then enjoy legal representation, otherwise not. I find that surprising. It does not affect Mr Coetser's decision in the short term, but in my opinion his long term decision may have been influenced depending upon whether or not the persons who implicate him, would continue to implicate him. However it is clear that he has been deprived of legal representation at present.

CHAIRPERSON: Let us understand this for the moment. According to this oath pertaining to the subpoena, will he still be depending upon this oath in order not to testify?

MR TOWEEL: My instructions are that he is still depending upon the oath.

CHAIRPERSON: What then is the value of sitting through this entire hearing and paying for the representation when he would ultimately say that he is not going to appear? Isn't that a waste of time?

MR TOWEEL: Yesterday before we commenced with the proceedings I said that the theoretical possibility exists that he will not be called as a witness, depending upon cross-examination of the persons who are implicating him.

CHAIRPERSON: But that is not something that is in his hands. The point is and the important point is that at this moment he has decided not to testify for whatever reason and if that is the case and we are dealing with State money here, taxpayers are paying for these proceedings, I myself included, are we to waste that money if he isn't going to testify in any case after two to three weeks?

MR TOWEEL: Chairperson, if I understand the Act correctly, he does not only have the right to give evidence, he also has the right to cross-examination, to present evidence and so forth.

CHAIRPERSON: Well is he planning to do so?

MR TOWEEL: No Chairperson, but one of the reasons that I presented to you is that one does not necessarily know which direction this hearing could have taken, theoretically speaking,

CHAIRPERSON: But if he has decided that he will depend upon this oath, or abide by this oath, he has then decided with the oath and for his own reasons not to testify. What then would be the value of retaining him here? He wasn't planning to be here in his capacity as an implicated person. Why should the Committee spend all that money if in either event he will tell us that he does not intend to give evidence?

MR TOWEEL: Chairperson I accept that the cross-examination of the applicants presents a theoretical possibility, even though Mr Coetser may decide not to testify ultimately. The cross-examination may have taken the applications in certain directions.

CHAIRPERSON: But he has already decided, a notification was sent to the Cape and it was said that in his capacity as an implicated person, he will not be present here, that he is not interested for his own reasons. We established that. Then there is the subpoena that he received and in terms of the subpoena, he has to come and give evidence.

MR TOWEEL: That is correct.

CHAIRPERSON: But he refuses for his own reasons, whether they are acceptable or not is something that we will leave for later debate. At the moment, he has been informed and he has decided that he will not give evidence, regardless of the theoretical positions. The actual position is that he will not be testifying.

MR TOWEEL: That is correct, Chairperson.

CHAIRPERSON: Is there any substantial reason why he should remain here until the end of the hearing if he shows no interest in the hearing itself and then all that money will be spent?

MR TOWEEL: Chairperson, this is not an application for the TRC to provide the costs for our stay here, I'm simply mentioning it as a factor which has forced us to be here today to complete our business.

CHAIRPERSON: Is it possible that the decision will change?

MR TOWEEL: I cannot foresee that.

CHAIRPERSON: Therefore the practical position is that there is no reason for him to be detained here, is that correct?

MR TOWEEL: For the purposes of evidence I agree with you.

CHAIRPERSON: For what other purposes?

MR TOWEEL: Cross-examination Chairperson, he has various rights in terms of the Act but as I've stated, this is not a request for us to remain here, Chairperson, the decision has been taken and boils down to ...(intervention)

CHAIRPERSON: You see the problem with your argument is that he has already informed the Committee that in his capacity as an implicated person he shows no interest and he will not be available.

MR TOWEEL: That is correct.

CHAIRPERSON: If it wasn't for his subpoena, there wouldn't have been any question of cross-examination.

MR TOWEEL: Correct, Chairperson.

CHAIRPERSON: And those rights have been waived by him in writing, isn't that correct?

MR TOWEEL: If that is how you regard it, it does not affect the essence of my argument. I'm simply mentioning the legal representation as something which took place and something which I do not agree with, but nonetheless took place indicating that if you co-operate you will receive legal representation, if not, you won't.

CHAIRPERSON: I also don't agree with that. It cannot work that way, but the practical position is that if he has decided that he will not participate in this hearing, then I myself cannot understand the value of him remaining here at the cost of the Amnesty Committee.

MR TOWEEL: As it pleases you, Chair.

CHAIRPERSON: But I do understand your point and I will consider it in as far as it may be necessary.

MR TOWEEL: As it pleases you, Chair. Chairperson, there is another aspect with regard to background that I wish to refer you to.

The subpoena was issued upon the request of the legal representation of the victims and not on the basis of the Commission or the Committee which had made a decision. The letter to which has been referred, is a letter or at least the letter in which the request appears, is a letter which is on a letterhead of David Dyson, Norval and Ndlovu, we do not have the front page, page two and further and then on page four the following is said under the heading of "Jo Coetser", paragraph sixteen:

"We are instructed that Coetser killed Ms Jacqueline Quinn. He has also been implicated by some of the applicants for amnesty. As none of the applicants describe with any particularity exactly what transpired when Ms Quinn was killed, we are of the view that it is essential for the purposes of full disclosure that Coetser be subpoenaed to testify."

That is simply for the sake of background.

I want to submit that there are four primary reasons why Mr Coetser has sufficient reason not to give evidence. As I understand the Act, it has been divided into various chapters. I realise that Section 19(4) refers to the fact that a hearing, as aimed in Chapter 6, can be held, however in this case there is an abuse of the Act, in my opinion.

Mr Berger is either having a fit on the other side over there, or he is laughing at something, I don't know what he finds so funny.

CHAIRPERSON: Why do you refer to it as an abuse of the Act?

MR TOWEEL: I will get to that. For example Chairperson, if one examines Section 29(5) which states, and this is a reference to the capacity of the Commission with regard to investigations for hearings, there is a confidentiality which is connected to such an investigation which is now of application to these procedures before you and in your discretion you may disclose it. There is no step in this case that it is first confidential and then you decide that it may be disclosed. Not in this case. It is being expected of Mr Coetser to testify immediately in public. If one examines the rest of the Act, in my opinion, this is not the intention. For an applicant for amnesty, but Mr Coetser is no applicant.

If one examines ...(intervention)

CHAIRPERSON: I don't understand the point that you have made. Could you clarify this for us please, because it is quite an important point.

MR TOWEEL: My point is the following: A person is given a choice to appear here as an implicated person or not.

CHAIRPERSON: Yes.

MR TOWEEL: He decides either to participate or not to participate. In this case not to participate. Now he is issued a Section 29 subpoena. When previously he had the right to appear, he now has the obligation to do so and I submit that this is contradictory. How can the very same person, just because one jumps from one section to another, on the one hand have the right and on the other the obligation and I submit that here we find an abuse of the process or the fact that Chapter 6 is of application to amnesty applications.

CHAIRPERSON: Then explain the following to me. His right against self-implication is covered with the section that gives him the choice to appear or not.

MR TOWEEL: His right against what?

CHAIRPERSON: His right against self-implication. A person does not have to implicate himself.

MR TOWEEL: No, attendance and self-incrimination do not necessarily run hand in hand. He may attend but self-incrimination would boil down to the choice for him to attend and to give evidence, or not.

CHAIRPERSON: Regarding the case of a subpoena, the same argument could be submitted, where he is obliged to give evidence he could say: "I could possibly incriminate myself in this matter", isn't that correct?

MR TOWEEL: Yes.

CHAIRPERSON: However, there is a section which covers this as well, I think it is Section 34 and it is said in this section that evidence which has been led in this hearing or this sort of hearing, cannot be used in a criminal matter.

CHAIRPERSON: That being the case, the comparison between a person as an implicated person who has a choice not to attend and a person who has been subpoenaed to appear here, does not appear, because the choice to appear here is based in my opinion on the fact that he does not have to incriminate himself.

MR TOWEEL: Chairperson, but my point is exactly that. He has been given that right and when he responds to it, he receives a subpoena and he is informed that he is being stripped of that right. That could not be the intention.

JUDGE KHAMPEPE: Mr Toweel, I just want to take you back to what you refer to in terms of Section 29(5). I didn't hear you properly. You mentioned something about confidentiality.

MR TOWEEL: Section 29 Chairperson, refers to: "no one except a staff member of the Truth Commission or a person of whom it is required to give evidence or submit anything"

INTERPRETER: Could the speaker please slow down? Chairperson, could the speaker please slow down? It is difficult to follow him.

JUDGE KHAMPEPE: Mr Toweel, the translators are trying to translate what you are saying in different languages, if you could...

MR TOWEEL: I apologise. I'll do so, Chairperson. Should I begin again?

JUDGE KHAMPEPE: You don't need to read the section for me, I just want to understand the point that you want to make out of this section with regard to confidentiality.

MR TOWEEL: Chairperson as I understand Section 29(5), it indicates that if evidence is submitted, then

"no-one may attend an investigation, no-one except a member of staff of the Commission or any person of whom it is required to submit any object or give any evidence, is entitled or is permitted to conduct any investigation which - attend any investigation which has been conducted. The Commission in consideration of relevant factors, declares that any object or information should not be disclosed until the Commission has determined otherwise, or in the absence of such a stipulation, until the object has been submitted during a hearing in terms of the Act."

The point that I wish to make here is that Section 29(5) indicates to me a point before this step, in other words that Mr Coetser is being chased into these proceedings and forced to testify.

Section 29, as it appears to me indicates: "Mr Coetser we are subpoenaing you to present certain information during the proceedings. The people seated here in the audience may not be present there unless otherwise stipulated" and only once Mr Coetser's evidence is to be used, it will then be disclosed. This indicates to me that Section 29(5) refers to a confidential position which could later be disclosed. That is the point I was trying to make Chairperson.

JUDGE KHAMPEPE: Have you had recourse to Section 19(8)(b) where this confidentiality is removed as soon as a hearing takes place?

MR TOWEEL: I have, Chairperson, but where was the Section 29(5) questioning so that you could make a decision regarding whether or not this information would be disclosed during the hearing or not? That is why I stated that the one procedure, although Chapter 6 is of application to amnesty applications, it cannot simply be said that because the Committee may subpoena witnesses, everything is suddenly of application. I maintain that there has been an abuse of the Act as it appears currently, or at least the interpretation connected to it, that where he had the right to attend these hearings and stated that he did not wish to do so, he has been subpoenaed and therefore obliged not only to attend but to give evidence.

CHAIRPERSON: Do you agree that if he was not an implicated person, the Committee would have been entitled to subpoena him? Isn't that so?

MR TOWEEL: If the Committee ...(intervention)

CHAIRPERSON: Regarding your argument.

MR TOWEEL: I agree Chairperson, unless certain requirements were met prior to such a point.

CHAIRPERSON: Yes we agree with all the nuts and bolts of the argument. Then also in the interests of truth and the interests of fulfilling the requirements of the Act, why should a person who, in the course of life could be subpoenaed, not be subpoenaed due to the misfortune of his status as an implicated person?

MR TOWEEL: Chairperson, I will come to that but it is actually about the right to self-incrimination, the right to silence. A witness who is not implicated and simply doesn't wish to be here and cannot incriminate himself, certainly he should appear here if he feels that he could contribute valuable information in the quest for truth because the fact that he is an implicated person, I feel that there has been an abuse, because he does not wish to attend the hearing, he has now been obliged to do so.

CHAIRPERSON: But what makes him so different?

MR TOWEEL: Because he has certain rights, Chairperson.

CHAIRPERSON: What are those rights?

MR TOWEEL: The right against self-incrimination.

CHAIRPERSON: But that has been covered. He may do so, but the consequences thereof are not of application.

MR TOWEEL: That is one of my arguments Chairperson. I will come to the fact that basically there is no protection.

CHAIRPERSON: Ultimately that would be a better point.

MR TOWEEL: I have made my point. He has now been forced whereas previously he actually had a right.

Just in conclusion of this point Chairperson with reference to Section 32 which states that:

"If, during any investigation or hearing by the Commission, any person may be implicated in a way that is disadvantageous to him, the Commission should grant such a person the opportunity to submit arguments regarding such imposition. "

That is an enforcing stipulation. It is a stipulation in terms of which you grant him the right to exercise certain choices. The procedure which was followed with Mr Coetser negates all of this completely. You do not grant him the right to exercise certain rights, you are forcing him to give evidence. In my submission this could never have been the intention.

The second aspect which could have been a better aspect as you have put it, it's still not the issue of his rights, but the second basis upon which I am of the opinion that Mr Coetser has sufficient reason not to give evidence.

JUDGE KHAMPEPE: May I interpose Mr Toweel? Let's just go back to Section 30(2) as you have read it out to us. Now you will see that the operative word there is "during"

"if during any investigation or if during any hearing before the Commission".

then Section 30 getting to operation. If a person gets implicated during viva voce evidence of an applicant, then we have an obligation as a Committee to immediately advise that person of all his rights which are tabulated in terms of Section 30.

MR TOWEEL: Chairperson, I agree with you but let us take the following example. Given, Col de Kock gives evidence and he suddenly recalls that Constable Abel was there, the obligation in terms of Section 30 would be to give notice to such a person and if he exercises his choice not to appear, you subpoena him and my opinion is that that cannot be so.

JUDGE KHAMPEPE: Why shouldn't we subpoena if we think that the evidence that he's likely to give is relevant and would be material in assisting us in deciding whether to grant amnesty or to deny to an applicant. Where in the Act are we prevented from subpoenaing a person who has been implicated, whether during a hearing or even before a hearing, implicated in terms of form 2 which is the written application of an applicant?

MR TOWEEL: Chairperson, I do agree, nothing prevents you and that is my argument. What I am saying is that the fact that the Commission did it is an abuse of the Act because how can the Legislature then think that if a person does not want to attend, now suddenly he must attend, it doesn't make sense.

CHAIRPERSON: It depends on the capacity of why is he here, as an implicated person or a person that was subpoenaed.

JUDGE KHAMPEPE: Isn't your problem, Mr Toweel, that Mr Coetser is wearing both caps? He is an implicated person in terms of Section 19, forget about Section 32 because it has no application to him whatsoever and it will never have. He has been implicated in terms of Section 19(4) and notwithstanding the fact that he was implicated by the applicant, he has now been subpoenaed to appear before us and give evidence in terms of Section 29. Now isn't your problem this, does a person who has been implicated, have a right, do we have a right to subpoena a person who has been implicated? Doesn't that person have a right to say: "Well, I have exercised my right in terms of Section 19(4) and I've elected not to give evidence, you can therefore not be in a position to subpoena me in terms of Section 29? Isn't that what your problem is?

MR TOWEEL: Chairperson, concerning the two caps, that is the Committee that placed the two caps on him.

CHAIRPERSON: It doesn't matter, he's got them, he's wearing them.

MR TOWEEL: But the fact that he's wearing them gives him, on the one side rights and now on the other side you want to compel him.

CHAIRPERSON: I'm trying to understand what you're saying that, or those so-called rights that you just mentioned, that he's got the right not to attend and to choose according to the Act, is on the basis that he is an implicated person, he is not an applicant and he said "they can say what they want about me, I'm not interested", is that correct?

MR TOWEEL: Correct.

CHAIRPERSON: And that is the choice that he made. The choice that we are giving him or the notification that we are giving him is that because of the fact that he was implicated and the Act says that we must notify him that there are applicants concerning a certain incident that implicated him and we had to tell him that he may, if he wants to, attend and do what he pleases. He has got the choice.

Now to follow the requirements of the Act, there is also the right given to the Commission to subpoena anybody if it is necessary, if the Commission thinks that that person can help to find out what the whole truth is concerning this incident. Now you say in your evidence, maybe, I'm surprised about it, maybe you should have testified in this that if you are right that that choice that he made is more important than what the Commission compels him to do and that is to tell the truth.

MR TOWEEL: Mr Chairperson, I'm not saying that the one is more important than the other. For the purposes of this argument, all that I'm saying is that the Commission had the right to subpoena him after he said: "I'm not going to use my rights according to the Act", then I would say that Section 30 would have a wider saying, "If you decide not to testify, we will subpoena you."

CHAIRPERSON: Section 30 is not applicable here.

MR TOWEEL: It is, he's an implicated person.

INTERPRETER: The speaker's microphone.

MR TOWEEL: Mr Chairperson ...(intervention)

JUDGE KHAMPEPE: Mr Toweel, how is Section 30 applicable to Mr Coetser? I'm trying to understand you on that issue.

MR TOWEEL: Chairperson you said that the operative word is "during". I would say that it is applicable because if the Committee is right, and somebody implicates Const Abel, which would then be "during" and then they notify this person and they say: "Sir, during this hearing you were implicated", then according to you, you would then be able to subpoena such a person if he does not want to attend and my submission is that it cannot be because here you've got the responsibility to, during the hearing, notify him about certain rights. He does follow those rights and then you say: "It's not good enough for us", then you decide he has to be subpoenaed.

CHAIRPERSON: Mr Toweel, he was given the right to choose if he wants to attend or not.

MR TOWEEL: And to testify or not.

JUDGE KHAMPEPE: In terms of Section 19(4), not in terms of Section 30.

INTERPRETER: The speaker's microphone.

CHAIRPERSON: He's got the right to attend, to exercise those rights as a subpoenaed person, he was then told to testify, he was not asked to attend.

MR TOWEEL: What I am trying to say, Mr Chairperson, he was given the right to testify.

CHAIRPERSON: When?

MR TOWEEL: When he received notification as an implicated person. Then he says: "Although I do have that right, I will not exercise that right", but now the Committee says that: "If you do not exercise those rights, we will force you to exercise them" and that is the end result.

CHAIRPERSON: I understand what you are saying. Can you just explain to me, if an applicant arrived here, let us take Mr de Kock who has various applications and he and Mr X went on an operation and during that operation he was implicated, this is Mr X and we stop the hearing, we give him all the necessary notifications and he exercises those rights as you described them. Now Mr de Kock says that: "He can say whatever he wants to about me, I'm not going to attend", but then we find that within the interests of Mr de Kock's case that he must come here and testify about what Mr de Kock is saying, is the Committee, has the Committee got the right to do this or not?

MR TOWEEL: Mr Chairperson, I would be of the opinion that Mr de Kock, if he does not call that person to come and testify, if there's not full disclosure on the grounds of the circumstances, if he will get amnesty or not ...(intervention)

CHAIRPERSON: We are not talking about the fact that he may get amnesty or not, we are talking about placing the Committee in a position where they can make this decision and if the Committee thinks that we do need Mr X, we do need his evidence, are we not then - do we not have the right then to call him? If that happened to Mr de Kock, what do you say about that?

MR TOWEEL: I would say that where he exercised his right not to attend, not to testify, then the Committee should not be able to subpoena him.

CHAIRPERSON: That is the point, but what about Mr de Kock's rights? There's a witness out there in the country who will be able to support Mr de Kock's application and the fact that he's an implicated person who, as you said, exercised his rights not to attend, must now refuse Mr de Kock's case.

MR TOWEEL: Yes, Mr Chairperson, we are speculating.

CHAIRPERSON: How can it be? Was that the purpose of the Legislature?

MR TOWEEL: Mr Chairperson, we are speculating about this example. If there's not full disclosure, this person will not get amnesty and he must convince you.

CHAIRPERSON: No. If Mr de Kock tells us: "I know that I cannot give you all the facts, but Mr X was with me, he will be able to do it and in my own interests and in my application I would like him to be called, although he's an implicated person." Mr de Kock's rights, are his rights not that the Commission can then call such a person?

MR TOWEEL: Chairperson, if Mr de Kock says that Mr X will assist in my application, the Committee will then not notify Mr X as an implicated person but will immediately subpoena him.

CHAIRPERSON: Mr de Kock, during his evidence said Mr X was with me.

MR TOWEEL: Very well, but they will subpoena him, but will not give him the choice at first.

CHAIRPERSON: No, according to Section 30, we are then forced to stop that hearing, give him the notification according to Section 19 and to send this notification to Mr X and say: "Look, we are busy with the hearing with Mr de Kock where he took part in a certain incident and he says that you were with him and you did this and that. You have got the right to attend and you have got a certain amount of days to respond and you have got the right to testify" and he decides not to, "and you have got the right to testify or not and attend" and he says: "No" and Mr de Kock's application is of such a nature that it is important to hear Mr X's evidence, has the Committee then not got the right to call Mr X to come and testify?

MR TOWEEL: I would say no and I would say it's abuse of the Act.

JUDGE KHAMPEPE: Mr Toweel, how do you read Section 29(1)(b)? Don't you read it in the fashion that whether a person has previously been given a right to choose as we'd like to believe where a person has been given a Section 19(4) notice, that he now has the right to choose whether he wants to appear before the Committee to give evidence or not, doesn't Section 29(1)(b) empower the Commission in this case the Committee, to subpoena a person, while that person has previously been given a right to choose by being given a Section 19(4) notice, or not?

MR TOWEEL: Mr Chairperson I said there's nothing that prevents you from doing this but I say that was not the intention.

CHAIRPERSON: Very well, we've heard you, we've heard the point you've made. We're not saying that we agree with it, but we heard it.

MR TOWEEL: Mr Chairperson then the second point, basis of my argument is that not any applicant or investigative unit, or Commission, or the Committee felt compelled to subpoena Mr Coetser to come and testify. The amnesty application, I do not have the date, not one of the applicants decided to call Mr Coetser and that is to add to your example and not the investigative team or the Commission or the Committee decided that Mr Coetser can give more information than was given, or that was already on record at that stage. Now if it is so, he wouldn't have received a Section 29 notification. The fact that Mr Coetser was forced to be here, is on the grounds of the request made by the family or the legal representatives acting on behalf of the families and the wording thereof is that there must be full disclosure. Now I do not understand this.

CHAIRPERSON: What don't you understand?

MR TOWEEL: I'm not quite sure if I'm correct concerning what they said and I think that Mr Berger then is at this stage opposing the application for amnesty. If that is so, I find it surprising that Mr Berger/them as the Committee to please - these people must make full disclosure and assist them, subpoena Mr Coetser. They oppose the application, they must be glad that these people do not subpoena Mr Coetser because then according to them there cannot be full disclosure.

CHAIRPERSON: We are talking about rights. It's their right to do it. If they want to assist an applicant, they can. We all have tactical mistakes.

MR TOWEEL: With respect this technical mistake has got a big impact on my client.

CHAIRPERSON: Yes, I'm just answering the point that you.

MR TOWEEL: But my point is, why must Mr Coetser testify here? You have evidence of the applicants.

CHAIRPERSON: You have got the motivation of, or you've read the motivation of the family and you ask why he must testify and I just refer you to the document that you yourself have read, you do not have to read it again.

MR TOWEEL: He says: "It is essential for the purposes of full disclosure". Why, I do not know because according to the evidence in front of you or the documentation in front of you, McCaskill said ...

INTERPRETER: The speaker's microphone.

CHAIRPERSON: There are people in this country whose family members are missing, who were killed, all kinds of strange things have been done, many of them are dead and if people whose family members have been killed in such a way, they want to know how it happened and why and that is the full disclosure that the family is referring to and they have got the right according to the Act to know. If it was my child, or my brother, or whatever I would also want to know and I think all of us would want to know.

MR TOWEEL: Mr Chairperson, would that not be then more suitable for the violation of human rights? This is an application for amnesty. I do have a lot of sympathy and I do understand and you ask me if I understand it. Of course I understand it, but this is not the forum for it, this is an application for amnesty. The applicants must convince you that they have got the right to amnesty and that is what I'm saying.

JUDGE KHAMPEPE: Let's come nearer home, Mr Toweel. Let's then address the issue within the context of the amnesty process. Don't you agree that Mr Coetser has information which is relevant to the subject matter of this hearing?

MR TOWEEL: Chairperson, if the statements were filed and that I saw, it could be that it is relevant, it is relevant.

JUDGE KHAMPEPE: Yes.

MR TOWEEL: It's the wrong choice of words, it's a technical mistake that I made. It is relevant, but if we look at the requirements of Section 31 of the Act, - I do not know if you want to adjourn for a few minutes or not?

CHAIRPERSON: No.

MR TOWEEL: Section 31(2) deals with if a person is compelled to give evidence or do certain things, that is Section 31. Now if I can just refer firstly to Section 31(2)(b), the Commission must convince themselves that such information of such a person can be used fairly in a democratic environment. In my submission that information, there are three requirements as I read this Section, it is not necessary in my submission that Mr Coetser must testify for you to decide if the applicant has got the right to amnesty or not. So on the grounds of this, I am of the opinion that one of the requirements has not been met by the Commission. There's no necessity - let us put it this way ...(intervention)

CHAIRPERSON: Why do you say that, or who says this? Who are you to say that we believe Mr de Kock or not and that Mr Coetser's evidence is necessary to decide on it or not?

MR TOWEEL: That is correct, but let us say Mr Coetser died, he's not here to testify, so then without his evidence the necessity of his evidence would mean that you cannot make a decision about it. You do not need his evidence to make a decision.

CHAIRPERSON: Hopefully Mr Berger wouldn't have asked us to do this then.

MR TOWEEL: That's one of the reasons why I would say it is not necessary then. A further aspect, I do not know how it works in the practice, and I say that in Section 30(2)(a) you first had to consult with certain jurisdictions. We do not know if this has happened or not.

JUDGE KHAMPEPE: It has.

MR TOWEEL: Sorry, Chairperson, I didn't hear.

JUDGE KHAMPEPE: It has happened.

MR TOWEEL: May I enquire Chairperson, is that regarding Mr Coetser?

JUDGE KHAMPEPE: Yes specifically with regard to Mr Coetser.

MR TOWEEL: Mr Chairperson, I do not know about this. I would have thought that it has not been done. I am saying this with respect. I would then think that maybe the person, Mr Coetser, would then have the right to answer on this.

CHAIRPERSON: What does the Act say? It says the Commission or the Committee had to contact the Attorney-General or ask him about this person that they want, according to the Act. I do not carry any knowledge of the right to speak to the Attorney-General or not, maybe he did.

MR TOWEEL: I did indicate to you that I was surprised by this, I would have liked to have known with whom, or with which Attorney-General they consulted and who had the jurisdiction concerning this case, but this argument will follow.

CHAIRPERSON: What do they call it?

MR TOWEEL: The Scorpions.

CHAIRPERSON: Let us just come back and you first have to indicate to me if I'm wrong, where does it say that it had to be reasonable, justifiable to make such a decision?

MR TOWEEL: Section 31(2) compels you to ask a question.

CHAIRPERSON: Yes.

"To ask a question or to produce an article which may incriminate him or her, if the Commission has issued an order to that effect, after the Commission has satisfied itself that to require such information from such a person is reasonable, necessary and justifiable in an open and democratic society, based on freedom and equality."

MR TOWEEL: Mr Chairperson, with respect, we do know with respect what the Commission wants to know from Mr Coetser.

CHAIRPERSON: Maybe it's necessary to notify the people who died, or the family members, about how they died. Do you agree? Not just necessarily to give amnesty or not, there are other reasons as well.

MR TOWEEL: With respect, Mr Chairperson, I differ because this is an amnesty application, if this was a TRC Commission, I would have agreed with you and I do have respect for the feelings of the next-of-kin. If you are of the opinion that all the requirements have been met and that you still feel that he must testify, then the question is if Section 31(3) will give Mr Coetser the necessary protection as it seems to protect him. I am of the opinion that it will give him the minimum of protection. You must remember, he is not an applicant. The applicant has got this protection. "Come and tell the truth, open your heart and if your application does not succeed, we will not use it against you." Mr Coetser is not an applicant, in other words he's got the right to keep quiet, or silent and also not to become a witness. Section 31 says that if he is forced to testify here, he may not be used in criminal courts. Then it follows automatically that it is possible to be used in other cases.

CHAIRPERSON: No but they do fall under the criminal charges.

MR TOWEEL: No.

CHAIRPERSON: No, it falls under the criminal code according to the Act, I think it is 51 of 1977.

MR TOWEEL: Mr Chairperson, but it says here that it is not used, or it may not be used in a criminal case against this person, it is bail cannot fall under that and I do not know in which - if they wanted to arrest him, then they can use the evidence that he is forced to give, they'll be able to use that against him. They will have been able to use it against him if one of the deceased's family members decided to use it in a civil proceeding against him. They would have been able to use it and I am not quite sure about this, I do not know if they would have been able to use it in a private capacity, maybe, maybe not.

CHAIRPERSON: No, but this private aspect falls under the Act.

MR TOWEEL: Yes, I agree with you there, but you are talking about civil proceedings, if they could use it against him. They would have been able to use it in a different instance, they would have been able to use it in deliverance where Lesotho will be able to look for it and they will be able to use his evidence against him, because it's not a civil proceeding. They would have been able to use his evidence, the evidence that he has given, he has been forced to give, ...(intervention)

CHAIRPERSON: Does that not fall under the same Act then?

MR TOWEEL: No.

CHAIRPERSON: Different Act?

MR TOWEEL: They would have been able to use his evidence that he is forced to give here in a case in Lesotho and then the basic principle of silence ...(intervention)

CHAIRPERSON: Before you continue, what does the Act mean, 3(1)(3)

"Shall not be admissible as evidence against a person concerned with criminal proceedings in a court of law, or before anybody or institution established by or under any law."

MR TOWEEL: I do not know what it means.

CHAIRPERSON: How can you then argue that his rights are not protected?

MR TOWEEL: But a body or institution is not a court, it only covers the courts concerning criminal proceedings.

CHAIRPERSON: "Proceedings in a court of law, or before anybody or institutions established by or under any law." I think I would be prepared to, at this stage, if I had to give a judgment, to be and I would say that the spirit of 30(1)(3) is that anybody that testifies here, that that evidence that he's given cannot be used where that person is at risk.

MR TOWEEL: Chairperson, Devil's advocate.

CHAIRPERSON: I think the spirit of - or there may be certain problems concerning the wording thereof, but the spirit of it is that the person must be protected and assisted to tell the truth here without him thinking that it will be held against him.

MR TOWEEL: My opposition will then say that it will then be easier than in criminal proceedings or other proceedings and civil proceedings and it is very clear that it's only criminal proceedings. Can we just have a break for five or ten minutes? Thank you.

COMMITTEE ADJOURNS

ON RESUMPTION

MR TOWEEL: Chairperson, may I continue?

CHAIRPERSON: Yes.

MR TOWEEL: Chairperson, briefly I also refer to the fact that criminal proceedings, which are referred to in Section 33, not 33, 31(3) can only be for these courts in South Africa. If Mr Coetser is forced to give evidence here, then probably a Lesotho Court, should he be sent there, on that evidence find him not guilty and he is not an applicant in this matter.

INTERPRETER: The speaker's microphone.

MR TOWEEL: But they abide by the principle of wanting to make full disclosure and understanding the principles. Mr Coetser has decided in terms of this not to give evidence.

In my submission the so-called protection offered in Section 31(3) is not actual protection. His right to silence is not recognised and particularly in this case where he is not an applicant, this is unconstitutional to expect of him to waive his right to silence against his will and to be a witness against himself. Furthermore with regard to this aspect, or if I could connect with something that I wanted to work into this, it is your decision which I received yesterday, with respect I agree that:

"This decision depends substantially on whether the proposed testimony of such a witness will in any way materially contribute to the ultimate decision."

In other words, it must be relevant, but something which has occurred to me is what must this Committee examine for the purposes of full disclosure? Should the Committee examine the evidence of the applicant and his application, or should the Committee take it further? Given an applicant states that he took somebody to a house and that he heard later that people had died in that house, but he doesn't know what happened there, does that mean that his amnesty application will be refused? That cannot be so because he doesn't know, all he knows is that he made full disclosure and this and in my submission, means full disclosure from the side of the applicant.

CHAIRPERSON: And what if somebody appears here as an applicant and says he shot this man dead and it appears from the medical reports and from the next-of-kin of the deceased person, that poison was administered to the deceased, what then? Has he made full disclosure or not?

MR TOWEEL: Probably not.

CHAIRPERSON: Doesn't that answer your question that we have to regard the evidence in its entirety in order to determine whether or not full disclosure was made?

MR TOWEEL: With respect, in session as a Committee to consider amnesty, it is not your duty to assist the applicant in making full disclosure. He has to convince you that he has done so and if he states that he shot X and it appears that X died of poisoning, I cannot understand that any Committee would grant him amnesty.

CHAIRPERSON: But that's the point, that is why I used the example. We cannot simply listen to the evidence in the applications, or from the applicants, or only from the next-of-kin, we have to regard the evidence in its entirety and base our decision upon that. I don't know whether or not you agree with this.

MR TOWEEL: Yes, it is probably your duty Chairperson, but as I have stated earlier, if Mr Coetser was not traceable or had died in the meantime, it could certainly not have an effect on the question whether the applicants have made full disclosure or not. On page two just above the words or heading Ruling One, this is your decision, it is stated

"In view of this provision, the right to the aforementioned protection against self-incrimination is not as weighty as it normally is, if at all"

With respect, I cannot agree with that in the light of the arguments which I have submitted to you regarding court proceedings, civil proceedings, criminal proceedings and the like.

And then page three, the Committee finds from page two or paragraph two:

"The aforementioned limitations narrow the amnesty process in this regard to a fine line. It therefore becomes imperative to examine any motivation."

The following paragraph:

"To clear issues pertaining to the specific disputes, it follows therefore that questioning a witness in the hope that some information may be forthcoming, would not fall within the confines of this thin line."

My submission is, based upon this decision, the Committee should not have subpoenaed Mr Coetser. The Committee should not have allowed Mr Coetser to be subpoenaed. The motivation given by the legal representative of the next-of-kin, is in my opinion vague, it simply states full disclosure. It is the duty of the applicants to make full disclosure, it is not a requirement by the next-of-kin. This is an Amnesty Committee, not a Truth and Reconciliation Committee.

CHAIRPERSON: What is the date of that decision?

MR TOWEEL: Chairperson, you delivered this on the 23rd of May 2000.

JUDGE KHAMPEPE: Mr Toweel, may I understand you on this point, don't you think there is a duty on the victim if a victim is in possession of an information which is going to support an applicant, to disclose such an information to this Committee? The victim is not here always to oppose, but also to place any information which will be relevant for the Panel to decide on the issue of amnesty.

MR TOWEEL: Chairperson, in general terms, with respect, I agree but in this case it is not so, it is the applicants who have mentioned Mr Coetser's name, not the next-of-kin or the victims, which in my submission would then indicate full disclosure.

JUDGE KHAMPEPE: Does it matter who has mentioned Mr Coetser? If any of the parties is of the opinion that a person is in possession of an information which would be very material to the subject matter of an application?

MR TOWEEL: Chairperson it is indeed relevant in the sense that it is the reason why the person was subpoenaed. The applicants who must make full disclosure did not regard it as necessary to subpoena Mr Coetser. The next-of-kin who are opposing the applications, request, for the purposes of full disclosure, that Mr Coetser provide evidence, but this reason, in my submission, is too vague and Mr Coetser then in my submission should not have been subpoenaed.

Then Chairperson, my final argument and I have instructions that Mr Coetser does not wish to influence the other applicants' applications in any way, however he is of the opinion that his evidence here with consideration of the consequences that could affect him, if these proceedings are used in bail or civil proceedings, he has full reason not to testify here, because it is futile because it is not within your jurisdiction to grant amnesty for these applicants. The argument is based upon the decision of Stopforth and during the adjournment I was ...

CHAIRPERSON: I am aware of the decision, I have read it and I do not agree with you.

MR TOWEEL: I beg your pardon, Chairperson.

CHAIRPERSON: I do not agree with you.

MR TOWEEL: With respect, Chairperson, ...(indistinct)

CHAIRPERSON: It is not of application to this application.

MR TOWEEL: With respect Chairperson, my interpretation of it is that it is 100% concurrence with this case, it is an offence which was committed abroad and cannot be tried in a court within South Africa.

Regarding the fact that you do not agree with it, with respect, in my submission ...

CHAIRPERSON: Let me put it as such to be accurate. I do not agree with the last section pertaining to the arbiter.

MR TOWEEL: I don't know what you are referring to.

CHAIRPERSON: The arbiter refers to the fact that the charges emanate from something which occurred in another country. In my opinion, the Act makes provision for that, it is stated clearly internally and externally, but the Appeal Court must have considered it. I don't know what they have considered, but I'm not bound by it.

MR TOWEEL: Then I would like to refer you to the following paragraph, page 125

"In the result ..."

CHAIRPERSON: Please repeat.

MR TOWEEL: The decision was reported in the 2000 Court Reports, First Edition, page 113, decision of the Appeals Court, I refer you to page 125 next to the letter B, paragraph thirty-six

"In the result, I am of the view that the Amnesty Committee is not competent to grant the Appellants' amnesty for the deeds they committed on 10 August 89 in South West Africa. To extend the extradition order authorised by the Minister of Justice on 10 October 1996 in order to enable them to approach the Amnesty Committee, would be futile. The main ...(indistinct) was correctly refused by the court a quo"

and the motivation proceeds that where acts are committed abroad, such as in this case, the Committee, according to the Appeal Court, does not have the jurisdiction to grant amnesty.

CHAIRPERSON: I have listened to what you have said and you are not the only one who has said this. I'm simply telling you to read it again. This case emanates from something which according to the applicants, was committed in the interests of South Africa. That one was committed in the interests of certain people in South West Africa. That is the important point. Please study it again carefully.

MR TOWEEL: Chairman, I know that time is catching up with us, but in my submission these are not distinguishable.

CHAIRPERSON: Very well.

MR TOWEEL: The only question which remains and this is common cause, according to the applicants, it is that in Ladybrand, the persons converged to go to Lesotho. One could then ask the question regarding whether or not there was a conspiracy in this country which would then be triable and I would then want to refer you to State vs Basson, it is a decision from 2000 First Edition of the South African Criminal Proceedings Report.

CHAIRPERSON: Mr Toweel, could you proceed somewhat slower please?

MR TOWEEL: Once again I apologise. Based upon the Stopforth decision, I submit that the Committee does not have jurisdiction to grant amnesty. The only question which can be viewed in addition to this is that the Stopforth decision does not deal with the conspiracy with regard to an offence committed abroad. I would then like to refer you to the State vs Basson in the January Edition of the SACLR of this year page one.

CHAIRPERSON: Of this year?

MR TOWEEL: That is correct, Chairperson. The decision of Hartzenberg R and I refer you specifically to page thirteen from the letters D to G.

"In terms of the preceding arguments, I am of the opinion that the matter should be approached as such. There was no common law conspiracy, according to our law. There were offences which were aimed at being committed against the State."

This refers to Section 18. At worst it can be said of the accused that one or more interpretations can be attached to the intended crime and this can only be attached to crimes within South Africa. If it is a possible interpretation, it must be followed because it is the least aggravating for subjects. It follows that murders that were committed in the former South West Africa, cannot be tried in South Africa, consequently in the case of charges where murder were committed outside South Africa, the charge sheet does not disclose any crime.

Chairperson, this is the basis upon which Mr Coetser states that he has sufficient reason.

CHAIRPERSON: Just tell me, the oath is it still valid for him? The oath that he abides by, his oath not to give evidence?

MR TOWEEL: Yes. I have no further arguments regarding it.

CHAIRPERSON: According to which Act was that oath taken?

MR TOWEEL: I don't know. The Act pertaining to the security of information.

CHAIRPERSON: As it appeared at that time?

MR TOWEEL: Yes, that is correct.

CHAIRPERSON: Is that Act still applicable?

MR TOWEEL: I cannot answer that question, I beg your pardon.

Chairperson, then Section 39 deals with crimes and punishments according to the Act and it stipulates that a person, after he has been subpoenaed without sufficient reason, refuses to be sworn in and I submit that Mr Coetser falls under stipulation E(ii). His instructions to me are that he has indeed sufficient reason not to be sworn in to give evidence.

In my submission you have one of three ways out based upon these arguments. You can say that my arguments have no grounds and that you will send the proceedings to the Attorney-General or the Director of Public Prosecutions for them to take it further, or that the Committee would be circumspect in creating a precedent or you could say that this person has sufficient reason not to give evidence and we will leave the matter at that.

The third possibility is to continue with the proceedings and to decide in the future whether or not you will do anything about it.

Those are my arguments Chairperson.

CHAIRPERSON: Ms Patel, Mr Barnard comes on Monday.

MS PATEL: That is correct, Honourable Chairperson.

CHAIRPERSON: Have we worked out or provided for him?

MS PATEL: Well an indication from my Learned Colleague Mr Berger, possibly two days. Yes. No, no, all in all, sorry, I mean all in all, for everyone, not just Mr Berger.

JUDGE KHAMPEPE: But how long is Mr Berger anticipating to be with Mr Barnard?

MR BERGER: Judge Khampepe what we said when we were asked whether Dr Barnard should be here for more than a day, was we said that just in case his evidence goes over to a second day, he should make himself available for two days. It was then communicated to his attorneys, who said that he would be available on the 5th and the 6th of June, Monday and Tuesday and as we saw with Mr van Heerden, his evidence did slightly tip over to the second day, we just didn't want there to be any problems, that is why we indicated two days, not that I want to cross-examine him for two days, no. In fact my cross-examination won't even last for a day.

JUDGE KHAMPEPE: I will recall the ninety minutes that you indicated yesterday.

CHAIRPERSON: Mr Toweel, is that your client seated next to you?

MR TOWEEL: No, my attorney of instruction looks much older than what he actually is.

CHAIRPERSON: I want to ask you to consult with your client once more. This particular section of the hearing will be postponed to Wednesday morning when I will request the others to deliver any commentary or argument regarding your argument. In the meantime, I want to request of you to consult with your client once more. I hope that I will not have to do what the Act requires of me to do. I am stating this with the understanding that I have not yet considered what you have said. Perhaps on Wednesday I might concur with you. In the meantime, please attempt to consult with your client regarding this. The consequences are not pleasant, whatever the consequences may be.

We will then postpone today until Monday morning, 11 o'clock.

MR TOWEEL: Chairperson I cannot seem to switch the microphone off, so somebody wants me to speak. Are we excused until Wednesday?

CHAIRPERSON: We are going to be dealing with Barnard.

MR TOWEEL: I don't have any instruction to appear once more, but Wednesday is the day. Thank you Chair.

COMMITTEE ADJOURNS