Thank you Mr Chairperson. Chairperson, just on a point of accuracy, my learned friend, Mr Visser has listed the names of the deceased in his Heads of Argument and he has actually listed six people, some names he has, some people he has named twice. The actual list is contained in the first paragraph of our Heads of Argument.
The people who were killed were Lulamele Dantile, who was also known as Morris Seabelo. They are not two different people. Leon Meyer, who is also known as Joe, Vivian Stanley Matthee, who is also known as Glen Darries, and also known as Trevor, Monwabise Temba Mayoli and Nomkhosi Mary Mini, Jacqueline Quin, Mangayelang Mohatla, Boy Motau and Amelia Lesenyeho. Those are the nine deceased.
CHAIRPERSON: What is the position about the Lesotho nationals. Are we entitled to consider their matters?
MR BERGER: Chairperson, I don't see why not. They are people who died as a result of the actions of the applicants, as a result of a murderous conspiracy which was hatched on South African soil and executed in Lesotho, I see no reason why their deaths should be separated from the deaths of the six South Africans.
ADV BOSMAN: But Mr Berger, should we grant amnesty? Even if we should grant amnesty, will they not have a right to institute an action for delicts in Lesotho?
MR BERGER: Adv Bosman, even if you grant amnesty even for the deaths of the - whatever amnesty is granted in South Africa, it is only effective in South Africa, it is not effective anywhere else in the world.
ADV BOSMAN: Yes, but does that not distinguish their position from the victims in South Africa, the victims in South Africa would forfeit any claim whilst in Lesotho, the Lesotho citizens would retain their claims?
MR BERGER: No, if the applicants were ever to go out of the country, an action could be brought in the courts of Lesotho for example, by the South African victims for compensation and the Lesotho courts would not be bound by a decision of the Amnesty Committee.
If the South African applicants could establish jurisdiction by attaching to found jurisdiction, or on some other basis, I am not familiar with it ...
ADV BOSMAN: Perhaps this is very legalistic, but the point I am making is that the Lesotho victims will be in a different position, because should we grant amnesty, the South African victims would be, would not be in a position to institute action anywhere, but the Lesotho victims would be in a position to institute, granted they would have certain legal difficulties, but they would not be in a position where they cannot institute any action. Theoretically, even so, they will be in a position to institute action.
So legally they do fall into a different class?
MR BERGER: Adv Bosman, far be it for me to argue that, what really should be argued by my learned friends, but from a legal point of view, I can see no reason why the South African victims would not be able to institute an action in the courts of Lesotho, if they could establish sufficient facts to found jurisdiction.
ADV BOSMAN: I see, yes, no, I take that point. It does complicate matters somewhat, but the South African victims is in a position where as things seem to be, they would be compensated if amnesty is granted, but should we then put victims in a foreign country, in exactly the same category? That is basically the question that I am putting to you?
MR BERGER: Well, I think that it is important that the Lesotho victims are treated as victims for the purposes of the TRC Act so that they would also be entitled to reparations.
CHAIRPERSON: That is all very nice, but are we entitled to do so? That is the question Mr Berger, we all have this human element about it, but are we entitled to do it?
JUDGE KHAMPEPE: Mr Berger, are we not entitled to definitely view them as victims if one has regard to Section 20(2), which actually gives us the power to consider acts committed inside and outside of the Republic of South Africa?
MR BERGER: Indeed. Indeed, there is nothing in the Act which says that victims, people who were made victims as a result of acts committed inside South Africa and outside South Africa, and in this case we have acts both inside and outside South Africa, that they should not be regarded as victims for the purposes of the Act.
In fact I think the intention clearly is otherwise, that they should be regarded as victims.
CHAIRPERSON: I say this with the greatest of respect, I think that is over simplifying the matter, but carry on. We will consider what you say.
MR BERGER: Chairperson, in paragraph 2 of the Heads, we make the point that, which we have made from the beginning of this hearing, and this is that we don't run away from the fact that Lulamele Dantile, Leon Meyer, Vivian Matthee, Temba Mayoli and Nomkhosi Mini were committed soldiers of Umkhonto weSizwe.
We said that from the beginning and it is common cause that they were MK soldiers and that their intention was to undertake operations in South Africa against the South African regime. That is common cause.
Jacquie Quin falls into a different category. She was a school teacher in Maseru, she was not a member of MK. In fact, as you heard, she travelled regularly between Maseru and South Africa, on a South African passport. That was known to the South African authorities.
Yes, she was married to Leon Meyer, she lived with him and they had a daughter, they all lived in their house in Maseru. The three Lesotho nationals, Mangayelang Mohatla, Boy Motau and Amelia Lesenyeho, also fall into a different category. They were caught up in the attack, merely because they had chosen to attend the party.
We say that there is no evidence to suggest that they were in any way involved in MK or ANC activities. But let me make it clear as I did yesterday that we have been unable to find anything on the facts which would suggest that Mr Nortje, Mr Bosch and Mr Vermeulen are not entitled to amnesty. We cannot make any submissions in good conscience that they have failed to make a full disclosure, we cannot make any submissions in good conscience that they did not act with a political objective. That being the case, we cannot oppose their applications for amnesty, even though for example Mr Nortje on his evidence, killed the three Lesotho nationals.
But then there is the evidence which we cannot quarrel with, that Mr de Kock got an assurance from Mr McCaskill that everyone who shouldn't be at the house, was now out of the way. There cannot even be an argument in our submission on proportionality.
It does not come into the picture, and it is for that reason that we make no submissions against Mr Nortje, Mr Bosch and Mr Vermeulen.
CHAIRPERSON: What about their positions in respect of Quin?
MR BERGER: Well, that is my argument from yesterday as well. That is that ...
CHAIRPERSON: Mr Berger, just listen to me first, before you make another wrong submission.
Did these three gentlemen know that Quin was going to be killed?
MR BERGER: Chairperson, which one of my submissions so far, was wrong?
CHAIRPERSON: We will come to that. Did they know that Quin was going to be killed?
MR BERGER: Which three gentlemen? The three that ...
CHAIRPERSON: The three that you mentioned now.
MR BERGER: That we don't oppose? No.
CHAIRPERSON: How could they be guilty of something that they didn't know about?
MR BERGER: How could they be guilty of something that they didn't know about? On the doctrine of common purpose.
CHAIRPERSON: How could they be guilty based on common purpose if they didn't know that Quin was going to be killed?
MR BERGER: Because Chairperson ...
CHAIRPERSON: You cannot be guilty of something in retrospect, Mr Berger, of murder in retrospect, Mr Berger.
There are tons of judgements and authority that lay down what requirements must be fulfilled for the doctrine of common purpose to be applied?
MR BERGER: Chairperson, let me make submission which I hope is not wrong. The act of association is the act of joining the conspiracy to murder. They all became part of a Unit that was going to go into Lesotho to commit acts of murder. There were certain identifiable targets, ie Leon Meyer and the Meyer group. Jacqueline Quin was not amongst those targets.
They joined this conspiracy, they get into Lesotho and then de Kock says to Adamson and Coetzer, "you go to the Meyer house to get Leon Meyer, because he is our target". It is reasonably foreseeable that in going to get Leon Meyer, other people might be killed, including his wife. So there is dolus eventualis, it is the same thing for example when you, the classic case of common purpose, two people go to rob a bank, the one person sits in the car, the other person goes in with a gun.
The intention is not to shoot anybody, the intention is not to shoot or kill anybody in the bank, but something happens in the bank, which causes the one who went in, to fire his gun, and somebody is killed. The person in the car, even though he had no intention that anyone in the bank was going to be killed, is as guilty of murder as the person who pulled the trigger, on the basis of common purpose.
There doesn't have to be a direct intention to kill Jacquie Quin, as long as it is reasonably foreseeable, as long as there is dolus eventualis, or even for the basis of a delictual action, as long as there is negligence, as long as there is negligence you are drawn into the conspiracy.
CHAIRPERSON: Are you done? Are you done? Carry on.
MR BERGER: Sorry Chairperson, just bear with me for a moment, thank you.
Chairperson, our first argument is directed against Mr van der Merwe and Mr Schoon, and it deals with a failure to disclose an offence or a delict. You have read our Heads where we set it out. Essentially it is based on Section 20(2) of the Act.
CHAIRPERSON: Where in your Heads do you deal with it?
MR BERGER: From page 2, Chairperson. I will go through it.
CHAIRPERSON: No, you don't have to, just give me the gist of what you are saying. Why do you say that they didn't disclose an offence?
MR BERGER: All right. In terms of Section 20(2)(b) the act which is committed, must be an act associated with a political objective, I beg your pardon, Section 20(1). Section 20(2) says that an act associated with a political objective means any act or omission which constitutes an offence or a delict.
CHAIRPERSON: You say Section 20(1) and 20(2)?
MR BERGER: Yes. We deal with that in paragraph 5 of the Heads.
What we are submitting is that on their version, they have come and said "these are the acts which we have committed", both of them say we gave orders.
CHAIRPERSON: To commit murder?
MR BERGER: Whether it is murder, begs the question. "We gave orders to kill" and the question is whether those orders amount to an order to commit murder or not, on their versions.
If someone is coming to attack me, and I intentionally kill them, but act in self-defence, clearly that is not murder because the wrongfulness of my act is negative by the fact that I am acting in self-defence.
CHAIRPERSON: I haven't given this consideration, but have you given it consideration that this act of self-defence as you term it, complies with all the necessary requirements to uphold that kind of defence?
MR BERGER: We deal with that in the Heads.
MR BERGER: That is the conclusion. Now let me build up to it, in paragraph 6 we say that van der Merwe says he ordered the attack because he was in possession of reliable information that certain ANC soldiers in Lesotho were on the verge of launching an attack in which South African citizens were likely to be killed. The references are there.
Schoon confirms this evidence. If I can just read to you from page 784 what Schoon says. At page 784 Mr Visser is leading Schoon and Mr Visser says -
"... Just a final aspect, what did you regard was the instruction that required of you and the operatives to execute, what did this entail?"
"... Chairperson, it entailed or rather may I start as follows, this was about certain information that was obtained from Ladybrand Security Branch, via Bloemfontein, that a certain group of trained ANC cadres were ready to enter the country in order to sow murder and mayhem during the festive period of 1985."
"... And your instruction?"
"... The instruction was to prevent this action by acting against this group in a military manner."
Then we say, given the import of the information available to him, the nature and immediacy of the threat ...
CHAIRPERSON: You are submitting that Schoon was in exactly the same position when he was informed of this set of circumstances as van der Merwe was?
MR BERGER: Yes. Yes. And now my learned friend, Mr Visser, wants to reduce Brig Schoon's role to that of a postbox, but or a postman, but he wasn't just a postman, he was the Head of Vlakplaas. He was the Overall Commander of, Vlakplaas was under his control.
CHAIRPERSON: What would have happened if Schoon had to tell van der Merwe "look, I am not happy to carry out your orders?" For that was what it was, isn't it?
MR BERGER: We had a situation in the London bomb application, where I think it was Gen Mike Geldenhuys, I may be wrong, I think Gen Mike Geldenhuys, he refused to be party to the operation to bomb the ANC offices in London and he was then left out of the picture.
CHAIRPERSON: That may be so, the fact that Schoon should have or could have objected, is another matter. I am just asking in the context of having received an order from van der Merwe, does the fact that he was privy to particular information, change that?
MR BERGER: No. Van der Merwe said to him "we've got this information, I want you to find out from de Kock whether it would be feasible for us to launch an attack in Lesotho."
CHAIRPERSON: Well, in effect, and I cannot remember all the words of his evidence, but in effect at the end of the day he was told to tell de Kock to implement the order, is that not so or am I wrong?
MR BERGER: Yes, but he was party to the finding out from de Kock whether or not an attack was feasible. Our submission is that on the probabilities, he must have assessed that information, he must have agreed that the information furnished by de Kock, was feasible, that an attack was feasible. He must have passed that on to van der Merwe, and on the basis of that, van der Merwe takes a decision.
We submit that Schoon is in the same position as van der Merwe, but if you disagree with that, then the argument ...
CHAIRPERSON: No, I am not saying that I am disagreeing, I am trying to follow your argument properly.
MR BERGER: Let me start the argument on van der Merwe and then if Schoon falls into that category, then the same argument applies to him, but it is illustrated with the evidence of van der Merwe.
CHAIRPERSON: Mr Berger, I am following your argument, I am understanding it more or less properly, except that when you say that Schoon was in exactly the same position as van der Merwe ...
MR BERGER: Well, that is putting it too strongly.
CHAIRPERSON: I then pose the question that maybe he was privy, he was privy to certain information where he could make fundamental value judgements, which he did not, but at the end of the day, he was acting in terms of instructions, isn't it so?
He could very well have said "no, I don't want to be party to it"?
CHAIRPERSON: But it does put him in a slightly, maybe adjacent is the word, position to van der Merwe and not exactly in the same position?
MR BERGER: I will accept. Van der Merwe says that because of the information that he had, he says he had no option but to order that those who were about to launch the attack, be killed. The reference is to page 525 where he says the following: Gen van der Merwe, this is the second line from the top on page 525
"... in any case, I did not have any access to President Botha at that stage. Chairperson, what is quite obvious is that I personally regarded the Ladybrand report in a serious light, and that I was convinced that it was necessary to act against this group in order to prevent future incidents and to protect the RSA. It was then a priority as I said in paragraph 9(a)(1), bundle 1, page 1 and 2 of my application, to act. One also, to act against the persons who committed these acts of terror."
And then at page 625, Chairperson, you asked the question -
"... Mr van der Merwe, did you decide that there would be an attack whatever Lesotho said of it?"
That was in the context of the diplomatic notes and Gen van der Merwe -
"... No. Chairperson, I took my decision depending on the threat that had existed during that period and according to my judgement, it was the only possibility in order to ward off that threat and to prevent that that MK group enter South Africa and commit acts of terror."
It was the only possibility he says, to act against that group, to prevent that group from entering South Africa and committing acts of terror.
CHAIRPERSON: And nobody else? And nobody else?
MR BERGER: Yes, that action, that action ...
CHAIRPERSON: Was directed at ...
MR BERGER: At that group that was about to enter and commit acts of terror.
CHAIRPERSON: The Leon Meyer Unit?
MR BERGER: Yes. Chairperson, in paragraph 8 we take it further. Mr van der Merwe's evidence is replete with this constant refrain of, that it was essential that "we act against that group that was on the verge of entering the country to commit acts of terror."
CHAIRPERSON: That is what puts it apart from the, what is purported to be the original plan on the 3rd of December?
CHAIRPERSON: It separates that?
MR BERGER: We have a different view of what happened on the 3rd of December.
CHAIRPERSON: I know you've got quite a few different views. Carry on.
MR BERGER: It is in my nature.
CHAIRPERSON: Again you are blaming your parents?
MR BERGER: We say in 8 that van der Merwe is adamant that he ordered that only those who were about to enter South Africa, be killed, and that every reasonable precaution be taken to ensure that those who were not on the verge of committing acts of violence, be spared.
My learned friend, Mr Hattingh, referred to certain references, not to others, and I am going to refer to the others. At 605 to 606, under cross-examination by me, I said -
"... well, let's assume that to be so for the time being, wouldn't that be all the more reason for you to clear your raid, your proposed raid, with your seniors?"
"... No Chairperson, one has to keep in mind that my primary task was the protection of the internal stability. Yes, and to prevent MK members who were on the verge of entering the country, and committing acts of terror in the country, and for not a single moment, could I think that under those circumstances, in the light of that threat, if we had acted, that it would be questioned with regard to that, after I had consulted with other members of the CIC and if they did not foresee any problems from their side."
"... I am not going to keep going around in circles, so let me try and bring this part to an end. You believed that you had every reason on the information that you had, to strike against these MK soldiers in Lesotho"?
"... Who were on the verge of entering the country and committing acts of terror, correct."
"... You were acting in self-defence"?
"... Correct, yes."
"... When I speak about South African soldiers, I am not referring to the army, I am referring to members of the South African Police as well. If I understood one of your earlier answers correctly, what you were saying was if we had openly said there are these MK soldiers on the point of entering South Africa, and about to sow death and destruction, in order to combat that, we cross the border, send our experienced police officers or whatever into Lesotho to kill these MK soldiers before they killed us, that you would have been able to justify that to the outside world, am I right"?
"... Correct, yes."
And then at 675, I was asking Mr van der Merwe about Lulamele Dantile and I said he was a Regional Commander, he wasn't part of the Meyer group, was he also a target, I asked at the top of 675, Gen van der Merwe -
"... No. May I just mention that this is a probable name and I have already said it. I do not want to confuse the issue now, that I cannot recall which names were included in the list which was submitted to me in 1985, but according to the information which was submitted at that time, those persons were on the verge of entering South Africa. I handed that information to Col de Kock and his group, with the instruction that the information be further controlled and action be taken against those persons who were identified as persons who were involved in the planned acts of terror in South Africa."
Page 676, I - at the bottom of 675 I say it is quite possible that Nomkhosi Mini's name isn't on the list, top of 676, van der Merwe -
"... I am not able to tell you, I just depended on this according to the information that we have now of persons who had received training and who were possibly involved in insurgency. But you have to keep in mind that the arrangement was that Col de Kock and his group would do everything in their power to ensure that those persons who were identified in consultation with the source, would be killed during this process, not anyone else."
"... Your targets, if I understand your evidence correctly, was that those MK soldiers who were literally on the point of entering South Africa to commit acts of violence?"
"... Correct Chairperson."
Chairperson, there are other references, 705 for example, is another important reference.
Berger
"... It was an ambush on a group of people who had been called to a house or gathered there for a party?"
"... Who were on the verge of entering the Republic in order to commit acts of terror and violence."
It is just a constant refrain. Then Brig Schoon, at 825, at the bottom of 825 I say, Berger -
"... Okay, the group that was being target and whose names were mentioned in the Intelligence report and mentioned by some of, which names were mentioned by Mr van der Merwe, do you confirm Mr van der Merwe's evidence that the information that you received, was that that group was on the point of entering the country to carry out acts of violence"?
"... That is so Chairperson, and it appeared in the Security Report which came from Ladybrand to Security Head Office."
"... So this was the attack that you asked Mr de Kock, whether there was the necessary capacity and information to carry out, was an attack which primarily the principle purpose of the attack, was to strike at this group which was about to enter the country?"
"... That is so, Chairperson."
"... And the reason that you decided to strike, and when I say you, I mean you plural, was because you were of the opinion that lives inside South Africa were in imminent danger and you wanted to strike so as to ward off the danger and prevent loss of life?"
"... Yes Chairperson."
CHAIRPERSON: Mr Berger, I expect you are going to quote a number of things just to make the single point. When we asked you the question, and it may short circuit your argument, but whatever you are raising with regard to defence, and that is a more modern term these days that jurors used, you in your Heads referred to the requirements for defence to be successful in a criminal trial, as I understand your argument, in respect of Schoon and van der Merwe, they would raise an argument in defence, and raise the defence of defence in a criminal trial if they were prosecuted, and you are arguing that they would be successful in raising that defence, and therefore no crime was committed?
MR BERGER: No, I am not arguing that.
CHAIRPERSON: What are you arguing?
MR BERGER: I am not arguing that they would necessarily be successful in a criminal trial, I am saying when an applicant applies for amnesty, the applicant must place sufficient facts before the Amnesty Committee from which one can say that that conduct constitutes an offence or a delict. It is for the applicant to satisfy you that the facts upon which he relies, constitutes an offence or a delict.
CHAIRPERSON: And you are saying that they haven't done so and they could raise the defence of defence?
MR BERGER: I am saying on their version, on the version that they have placed before you, that version amounts to, that version does not disclose unlawful conduct, criminal conduct.
CHAIRPERSON: Now, the last two requirements that you referred to in page 4 of your Heads, that whatever they say they did was necessary to avert the attack, read into that as tradition with the defence of defence is, is that it must have been the only available course to take to prevent or avert the attack?
CHAIRPERSON: And such conduct must have been reasonable in the circumstances?
MR BERGER: Yes, that is exactly what they say. That is, Gen van der Merwe must have said it to me, I don't know how many times, and to you.
CHAIRPERSON: No, I am not arguing with you about that.
MR BERGER: It was the only reasonable, I asked questions about, remember, I asked questions about couldn't you capture them?
CHAIRPERSON: Mr Berger, I was here also.
MR BERGER: No, but Chairperson ...
CHAIRPERSON: Listen to my question.
CHAIRPERSON: That doesn't concern me. The fact of the matter is that even on his own version, would it not fail in a criminal court, because if he had all this information, the source of which he relied upon, could he not wait for this imminent attack, wait for the people who were going to commit this imminent attack and arrest them?
CHAIRPERSON: He says they didn't.
MR BERGER: No, he says he couldn't.
MR BERGER: Because he says for one, he says that they may not have entered the country "where we had thought they were going to enter the country and we might not have been able to find them. They might have sneaked through some place where we hadn't anticipated, and they could have then gone and committed acts".
My learned friend, Mr Visser at one point said it is all very well criticising Gen van der Merwe now, but what would have happened if there had been this death and destruction, everyone would have said "oh, we are so sorry".
CHAIRPERSON: That may be so, but when a criminal Court sits to hear that matter, it must adopt an objective point of view? These two factors that the activities or the actions must have been necessary to avert the attack, and it must have been reasonable in the circumstances, it must be approached from an objective point of view, isn't it? That is the test? Not a subjective point of view?
MR BERGER: No, but one must place oneself in the position of the perpetrator.
CHAIRPERSON: And act as the reasonable man would have, or reasonable person?
MR BERGER: Act as the reasonable Head of the Security Police?
MR BERGER: It might be a contradiction in terms, but yes.
CHAIRPERSON: We are talking about the criminal Courts, so it is not a question of what he did and what he thought subjectively, it is for that Magistrate or Judge to adopt an objective point of view and to measure his actions, objectively.
Now, if that is so, then one must objectively measure and determine whether what he did, what he ordered, was that reasonable in the circumstances, was it the only necessary thing, was it the last resort as it were, to avoid the attack?
MR BERGER: Chairperson, let me answer that in two ways.
CHAIRPERSON: Aside from it, there is something that you left out here, that the actions taken must have been apposite to the threat?
MR BERGER: Well, that is reasonable in the circumstances.
CHAIRPERSON: Well, that is a separate aspect that needs to be considered by the decider of fact.
MR BERGER: Chairperson, I canvassed this both with Mr de Kock and with Mr van der Merwe extensively in cross-examination, about other means of securing ...
CHAIRPERSON: Yes, that is their subjective viewpoint.
MR BERGER: But Chairperson, they gave facts to support their subjective viewpoints. They gave reasons why they felt they could not act otherwise.
MR BERGER: If that is their version, then that version satisfies all the requirements for a plea of self-defence. If however, you view the matter differently and you say objectively speaking, what they did was not necessary to avert the attack and was not reasonable in the circumstances ...
CHAIRPERSON: That then makes them, if my view is correct, that makes them guilty of an offence.
MR BERGER: Then their application, or Mr van der Merwe's application will fail on the grounds of proportionality?
CHAIRPERSON: Well, that is another argument.
MR BERGER: But you see, with respect Chairperson, it is an either/or situation, it is an either/or situation. Either one must accept their say so for the purposes of, unless there is direct evidence to contradict, which there isn't, or one must view their evidence objectively and say that they failed to satisfy other requirements of the Act.
CHAIRPERSON: Well Mr Berger, let me put it this way, I understand your argument and your submission that they did not commit an offence, let us deal with it on the other basis that you say their application must fail despite them committing that offence.
MR BERGER: Chairperson, just so that I am not accused of selectively quoting, I just want to finish on page 826, what Brig Schoon said when I said
"... You wanted to strike at them to ward off the danger and prevent loss of life?"
"... And if following on from some of the questions which were asked of you earlier, if other ANC members who got killed in the process, that would be a bonus?"
"... And if non-ANC members and non-South African citizens got killed in that process, that would be a pity?"
"... That is so, Chairperson."
"... What about children, small children"?
"... I beg your pardon Chairperson, I did not hear your question properly."
"... What was the position regarding children, would they have been, would the same have been of application if there were children in the house?"
"... Chairperson, that was one thing that we were reasonably sensitive about and it was consistently brought home to the operatives that innocent people, children and property, should not be injured, damaged or killed."
Chairperson, the only other point I want to make about this argument of not disclosing a delict or a defence is that the point raised by my learned friend, Mr Visser, saying that what van der Merwe and Schoon did, was not authorised by any statute, and so therefore they acted contrary to the provisions for example of the Police Act. This argument about defence, is a common law, it is a common law defence, based on the principle that if A sees B about to shoot C, A can shoot B.
CHAIRPERSON: I quite follow that.
MR BERGER: Okay. That we deal with at pages 3, 4 and 5. If you are not with us on that, then we go through the requirements of the Act. The requirement of full disclosure and again we concentrate on Mr van der Merwe.
CHAIRPERSON: You are dealing with the aspect of full disclosure?
MR BERGER: Full disclosure, starting at page 5 of the Heads.
CHAIRPERSON: Do you accept that if we find that he did commit an offence or offences, that it would be, that first requirement of the Act being for political reasons, would have been complied with?
MR BERGER: Well, we deal with that later on.
CHAIRPERSON: Okay, if you are coming to it, then fine. Let's deal with this.
MR BERGER: The only issue that we take on the question of whether it was an act associated with a political objective, is the issue of authority.
CHAIRPERSON: Let's come to that.
MR BERGER: Okay. As far as full disclosure is concerned, we start off with Mr van der Merwe's amnesty application, volume 1, page 104.
CHAIRPERSON: Let me help you with our views, not on van der Merwe, but on the general approach. Our general approach is that your application starts with that written document. You can amplify it by all means, but one cannot come and say that you prefer your amplification to what is written in your original application, unless there is good reason for the change, like making a mistake or somebody else filled it, completed it and misunderstood you or something like that.
MR BERGER: Yes. Thank you Chair, I understand that.
In his amnesty application, van der Merwe was asked to state the particulars of the order or approval and he answered ...
CHAIRPERSON: What paragraph is that, 9?
MR BERGER: This is paragraph 11, 11(b). He answered that
"... Approved by the Coordinating Intelligence Committee, CIC."
MR BERGER: Paragraph 11(a), he was asked was the act committed in the execution of an order of or on behalf of the State, Department or Security Force concerned, I am leaving out words, and his answer was
"... Yes, on behalf of the South African Police and the former South African government, and specifically the National Party whose interests had to be furthered and or protected."
And then he had to give particulars of the order or approval and he said -
"... Approved by the CIC."
MR BERGER: In paragraph 9(a)(iv) of the same application, it is the previous page, 103 he says
"... Although I can recall the event, I cannot remember if or at what stage the matter was dealt with by the Coordinating Intelligence Committee, as I do not currently enjoy access to the minutes of the Committee."
And then he talks about how he made a request for the minutes and he had been trying to get the minutes and he never got it. And then he goes on to say -
"... I am in agreement with the general content of his application (that is Brig Willem Schoon's application) regarding this incident, especially as far as it pertains to my own particular role."
And then if one just looks at ...
CHAIRPERSON: Must one presume that, I think it must be so, that he was privy to that application of Schoon, in order to say that he agrees with the contents thereof in so far as it affects him, he must have read it?
MR BERGER: Oh yes. In fact, they, I think they were submitted on the same day.
CHAIRPERSON: Oh. That doesn't mean that he read it, but I mean one must assume when he says in his own application that "I agree with the contents thereof, especially in so far as it affects me", he must have read it, he wouldn't have said so otherwise?
MR BERGER: No, he says at 103, he says
"... I have taken cognisance of the contents of Brig Willem Schoon's application regarding this incident."
MR BERGER: And Willem Schoon at 143 is asked ...
CHAIRPERSON: Before you get there, Mr Berger, and I am not picking an argument with you, but as far as, because you have raised that point now, essentially van der Merwe's application is based on an order of approval, an approved order?
CHAIRPERSON: A CIC approved order?
CHAIRPERSON: And he stuck with that?
MR BERGER: Well, he has tried to wiggle out of it?
CHAIRPERSON: If that is to be seen, the wiggling is seen to be a contradiction, then so be it. Yes, carry on.
MR BERGER: And you will see the wording, if you compare the wording of page 104 which is the content of van der Merwe's amnesty application, paragraph 11 which said "approved by the CIC", to 143, paragraph 11, which is Schoon's, again asked in Afrikaans, "was the attack committed in the execution of an order", 11(a), his answer is
"... Yes, on behalf of the South African Police and also the previous government, but especially the National Party whose interests were to be advantaged and or protected." (transcriber's interpretation)
Which is the same as what van der Merwe had said, and then in 11(b), if so, state the particulars of such approval, and his answer is -
"... I understand that (I think it should be it), it was a joint instruction from the Coordinating Intelligence Committee, CIC, and Gen J.W. van der Merwe". (transcriber's interpretation)
His answer is that I understand that it was a joint instruction of the CIC and Gen van der Merwe, a joint instruction from the CIC.
CHAIRPERSON: Just repeat that, joint?
"... I understand that (and I think one must read in the word it) it was a joint order from the CIC and Gen van der Merwe."
CHAIRPERSON: As far as Schoon is concerned?
MR BERGER: Yes. Van der Merwe has seen this and he says in his application, which I have read already, he says
"... I am in agreement with the general content of Schoon's application, regarding this incident, especially as far as it pertains to my own particular role."
Here Schoon says there was a joint instruction of van der Merwe and the CIC.
CHAIRPERSON: Of course, I can understand he would have said so, because van der Merwe must have told him so?
MR BERGER: Yes. In fact he goes further, van der Merwe, not van der Merwe, I beg your pardon, Schoon, and he says in paragraph 9 at page 141, he says
"... Gen Johan van der Merwe gave me instructions to confirm whether the Security Branch had the necessary information and ability to act against the ANC in Lesotho, and to make an urgent report to him. I delegated the order to Maj de Kock. Confidential information at that point, indicated that there were several ANC safehouses in Maseru and that certain identified ANC members used these houses to house ANC terrorists in transitu and to hide weaponry. Maj de Kock presented a report in which he identified a few targets and motivated his reasons for action against those targets." (transcriber's own interpretation)
"... I handed the report to Gen van der Merwe, and on the same day, he discussed it at the CIC and obtained authority to launch the operation." (transcriber's own interpretation)
So yes, he must have got that from van der Merwe, but what he got was that van der Merwe had discussed it at the CIC and that he had got approval to proceed with the operation.
That is the application that was made.
CHAIRPERSON: And once more, I think, one should in fairness to Schoon add, he relied on what van der Merwe told him?
CHAIRPERSON: And proceeded to go to de Kock and make enquiries and give further orders.
MR BERGER: On the basis that this had been approved by the CIC. That is why we take no issue with Schoon's authority.
CHAIRPERSON: Fine. And wouldn't you agree then, Mr Berger, that that essentially put Schoon apart from van der Merwe?
MR BERGER: That is the distinguishing feature, yes.
CHAIRPERSON: And that Schoon acted on the information and instruction of van der Merwe.
MR BERGER: No, we accept that.
CHAIRPERSON: In whatever he did further?
MR BERGER: We accept that, we don't challenge his authority at all. Just as we don't challenge Mr de Kock's authority, or any of the people under him.
MR BERGER: That is why we make the point Chairperson, at paragraph 20 that at the time they signed their applications for amnesty, the 13th of December 1996, neither van der Merwe, nor Schoon had any doubt that the proposed attack was discussed and approved at a meeting of the CIC.
CHAIRPERSON: Is that a correct submission?
CHAIRPERSON: That van der Merwe did not have any doubt?
MR BERGER: Well, not according to his amnesty application.
CHAIRPERSON: Yes, well, Mr Berger, we've got to be realistic about it, it may have other implications but in his written application he says one thing.
CHAIRPERSON: It transpires during his verbal testimony that that may not be quite accurate or true.
MR BERGER: Well, then we can add ...
CHAIRPERSON: That has other implications, I am saying, but to make the submission that they had no doubt when they signed their applications, I don't think it is quite accurate in respect of van der Merwe. It may be correct in Schoon's case.
MR BERGER: Meaning that he had stuff in his head, which he didn't put in his amnesty application? Well, one can say at the time when they signed their applications, it appears that neither of them had any doubt.
MR BERGER: But that was the application that they made to you, Chairperson. That was the basis of their application. It is interesting that Gen van der Merwe says "I am being totally honest, I cannot remember a thing, I just don't have any memory of any of that".
We don't believe him. We submit that and it is dealt with a bit later on in the Heads, that someone who is about to embark on his first cross-border raid, with the huge international implications that it could have, cannot remember details about who he spoke to and who he got approval from, is just too improbable for words, and if my learned friends are relying on probabilities, I submit that the probabilities are against them on this.
CHAIRPERSON: Are you at the end of the day going to argue that he did get approval from CIC?
MR BERGER: At the end of the day I am going to argue to you as we do in the Heads, that it was discussed at the CIC, at that meeting of the 3rd, the possibility of an attack was discussed at that meeting, and that subsequent to that, van der Merwe got, cleared the attack with his superior, Gen Coetzee, but I will develop that.
The next instalment of the version comes in Exhibit A, which is the affidavit by, or a statement it seems, it is not an affidavit, statement by Mr van der Merwe. In paragraph 41 he says -
"... I have taken cognisance of the contents of the amnesty application of Brig Schoon."
Which is the same one we have just referred to.
CHAIRPERSON: What paragraph is that?
MR BERGER: Paragraph 41. I deal with this in paragraph 21 of the Heads.
"... The evidence of Col de Kock in his criminal trial ..."
so he has also looked at the evidence of de Kock in his criminal trial, relating to this application, which we have got, that evidence.
"... The report from Col de Kock was written in red ink and that report had been handed over to me, while I was on my way to attend a CIC meeting. As far as I can determine, it had to be a CIC meeting, because after the meeting of 3 December 1985, possibly on the 17th of December 1985, because the CIC sat every two weeks ..."
CHAIRPERSON: Did such a meeting take place?
MR BERGER: Well, no, but it is common cause that the last meeting for CIC for 1985, was on the 3rd of December.
MR BERGER: But you will see that even on the time when Mr van der Merwe is testifying before you, in his evidence-in-chief, he is still of the view that the raid was discussed at a CIC meeting.
That is the significance, we submit of this. He says in his application "approved by CIC". Schoon says in his application he was on his way to a CIC meeting, and he got approval from CIC. De Kock says in his criminal trial and we will refer to the passage, in fact maybe I should do that now.
MR BERGER: It is - okay. Exhibit C, this is now the statement of Schoon, paragraph 16, this is still paragraph 20 of the Heads, he says
"... I delegated the instruction to Col de Kock, then Major de Kock. Maj de Kock then submitted a report in which Vlakplaas capacities were set out. I recall that the written submission had been written in red ink."
Which is the most amasing thing, everyone can remember the "rooi pen", but they cannot remember anything else -
"... and that Gen van der Merwe took it from me, before ...
CHAIRPERSON: Maybe it was related to the "rooi gevaar"?
"... And that Gen van der Merwe took it from me, before there was time to have it typed, because he was on his way to a CIC meeting where he wanted to submit the operation."
And remember Schoon and van der Merwe said, well, Schoon said that he had spoken to van der Merwe and that is why there were so many similarities between their statements.
Then de Kock in his criminal trial, well, I can refer to the record, Mr Hattingh is dealing with the evidence on page 78 and it is actually 78 of bundle 2, I think. Yes, bundle 2 where the evidence is, I am reading from page 2076 of the record, maybe I should rather read from - yes, I just want to read this part from page 78, which is the evidence that van der Merwe says he had access to.
"... very well, proceed",
"... you said Brig Schoon asked you what?"
"... He asked whether we had the capacity and if I could work out an operation briefly that would indicate whether we had the capacity and whether we would be able to be successful. Thereupon an operation was written on paper and I wanted to take the report to him for his approval before it went over to be typed, because they had to look at syntax and spelling faults. He met me in the corridor while he was on his way, with Gen van der Merwe, to a meeting at CIC. That was the Coordinating Intelligence Committee."
And then Mr de Kock said, after that passage has been read by Mr de Kock, at 2076 at the bottom, Mr Hattingh asks him -
"... How did you know that they were on their way to a CIC meeting?"
"... Chairperson, that was my perception, because there was talk of it that morning, and Gen van der Merwe was on his way, he wasn't in his office. As far as I can recall, he was in the passage, he was already on his way."
"... Can you recall whether either one of them told you that they were on their way to a CIC meeting?"
"... No Chairperson, that was my perception, but I formulated this perception from what I heard that morning. I cannot be more specific."
That is fine, one can accept that de Kock wouldn't know, but the point is that de Kock mentions this at his criminal trial, Schoon mentions it in his amnesty application, van der Merwe says "I have had a look at the amnesty applications, I have had a look at the evidence of the criminal trial, and as far as I can determine, it had to be a CIC meeting after the meeting of the 3rd of December, because we normally met bi-weekly."
The fact is even when he is giving you this statement, he is saying "it was discussed at a CIC meeting". The constant refrain, "approval by CIC, discussed at a CIC meeting".
MR BERGER: Therefore paragraph 23 of our Heads. It is therefore submitted that there can be no doubt that van der Merwe took de Kock's report with him to a CIC meeting.
CHAIRPERSON: The implication is there was a CIC meeting after the 3rd?
MR BERGER: No. I don't see why there is that implication.
CHAIRPERSON: Which CIC meeting would it then be?
MR BERGER: The 3rd. The meeting of the 3rd. You see, Mr van der Merwe has to get away from the 3rd, because if the possibility of an attack was discussed at the 3rd, it puts him in a, he cannot explain then why he doesn't clear the attack with Coetzee, his immediate superior, why he doesn't discuss the attack with Coetzee, because you see, Coetzee is there, Coetzee only goes on leave on the 8th.
Mr van der Merwe has to get away from the 3rd, he's got to get away as far as he can, from the 3rd.
JUDGE KHAMPEPE: Mr Berger, are you in short submitting that there was a discussion by the CIC on the 3rd of December where a decision was taken or an approval was given by CIC to van der Merwe?
MR BERGER: No. No, we are saying that the possibility of an attack was discussed at the meeting of the 3rd.
CHAIRPERSON: That is all? No approval?
MR BERGER: We are not saying that approval was given.
ADV BOSMAN: But you used the word "cleared" a little while ago? You stand by that, that your submission is that it was cleared by CIC?
MR BERGER: Yes, I am saying that CIC, the possibility of an attack was discussed at CIC and clearly there was no opposition to such an attack. I am not saying that a decision had been taken by anyone at CIC to launch an attack at that time, I am not saying that.
We have been told that CIC had no, I forget what the Afrikaans word is, but capacity to authorise, but that it was raised and discussed.
CHAIRPERSON: That is what has been worrying me throughout this hearing. If they did not have the capacity to authorise, why take it there in the first place? There could only be negative implications for van der Merwe if he raised it there because then if he wanted to proceed with this attack, and they didn't have the authority to give him. The only thing they could have said is "don't do it".
MR BERGER: No. Chairperson, van der Merwe was effectively, he tells us, the Head of the Security Police, he was Stan Schutte was the Head, but he was about to be moved out.
CHAIRPERSON: I follow that, but why take it then to the CIC, tell me that?
MR BERGER: Because the CIC as was corrected yesterday, is a committee, it is a very high committee, it is almost there next to the State President, the Chairperson of the CIC has direct access, he is a minister in the President's office or not a minister, I don't know what to call him, but ...
CHAIRPERSON: It was a powerful committee?
MR BERGER: Barnard had the ear of the President, let's put it at that.
CHAIRPERSON: Fortunately it was only his ear. Yes, but what was the purpose of van der Merwe taking if he did indeed take it there, what was the purpose of taking it to CIC?
MR BERGER: Because there is going to be this raid that is going to, there is going to be this attack that is going to cause huge international fallout, it's got to be, the pros and cons have to be discussed with the leading roleplayers, National Intelligence, Military Intelligence, the Police, Foreign Affairs.
MR BERGER: They all have to be kept, you cannot have, I don't accept that this is a large bureaucracy where the left hand does not know what the right hand is doing? In matters of this nature, they had to be working hand in glove?
CHAIRPERSON: Mr Berger, I would like to remind you that Mr Pik Botha was subpoenaed here, said that at times that is precisely what happened.
MR BERGER: Well Mr Pik Botha threatened to sue me for defamation, and he has withdrawn that threat as well, and I will say it again, it is clear from Mr Pik Botha's evidence that he turned a blind eye whenever it was appropriate for him to do so.
CHAIRPERSON: That may be so, but his evidence is that at times his department was not informed because they knew, they used to call him the Lavender something. He was too soft and that is why he was not privy to certain information.
This left and right hand, however many hands were involved in the national government, I am not too sure, but isn't that the position?
MR BERGER: No, that is not the position, and i will tell you why. I will submit why. Present at this meeting of the 3rd of December is Mr Neil van Heerden, it is there on page 99, Foreign Affairs, Mr N.P. van Heerden.
Yesterday my learned friend, Mr Visser, and I am indebted to him, quoted Mr van Heerden's evidence at 1759.
CHAIRPERSON: Mr Berger, I am not suggesting that at this particular meeting on the 3rd of December, all these hands didn't know what was happening, I am saying that the broad statement that you make, that the left hand must have known what the right hand was doing, is not correct on all issues.
MR BERGER: I am talking about this case, I am talking about the facts of this case. I don't accept that the left hand didn't know what the right hand was doing. At 1759 Mr van Heerden says
"... so it is quite clear that CIC (this is the second line) as far as I am concerned, the first time this raid (my learned friend Mr Visser emphasised this raid and I agree with him, this raid) was discussed in the CIC, was on the 3rd of December when I raised it on the basis of a communication from the Security Police on the 29th of November."
This raid, the attack with which we are concerned, was discussed for the first time at this meeting of the 3rd of December. We cannot get away from that. If one looks at the minutes, page 103, what Mr van Heerden is referring to is paragraph 3.2.1 -
"... Mr van Heerden says that according to information that was received from the Security Branch during October 1985, 30 ANC members had arrived in Lesotho and that currently there were 80 ANC members in that country, that were ready to act against the RSA."
The evidence, the information that they already had on the 3rd of December was that these ANC soldiers are ready to act against the Republic.
"... The SAP requested that Foreign Affairs inform Lesotho about this urgently and that if they do not act, the RSA will deal with them as they deem fit."
So this has already been, Foreign Affairs has already been asked to inform Lesotho that if you don't act, South Africa will deal with the situation as it deems fit.
CHAIRPERSON: When was that request made, not in the meeting of the 3rd?
MR BERGER: The evidence apparently is that this was previously, this request had previously been made.
CHAIRPERSON: You see, if that is so, the somewhere this panel has been misled, because what has been worrying us is that this request was only complied with some 10 to 12 days after.
CHAIRPERSON: Yes. And we were wondering why. It makes it worse if that request was submitted before the 3rd.
MR BERGER: Oh, it was. That is the evidence that that request came well before the 3rd, the 29th of November. That is the evidence.
CHAIRPERSON: Yes, the 29th, yes.
MR BERGER: And it may be that Foreign Affairs just sat on its bum and did nothing, we don't know. But the evidence before you is that that request predates this meeting so that by the time the meeting of the 3rd is, comes around, the information about the 80 ANC soldiers is already there, the request has already been made, and nothing has been done.
Van der Merwe at the same time, is getting information from Ladybrand to the effect that something is going to happen. Remember there is that report that is dated the 16th of December, the TNV report, yes, I think it is at page 108.
CHAIRPERSON: Yes, we are aware of that, Mr Berger.
MR BERGER: I just need to refer to a specific, it is in volume 3, I think. It is at page 80 in volume 3
"... a really reliable source during (this is right at the top of the page, paragraph 2(d)) the first week of December 1985 saw an unknown number of AK47 rifles and an unknown number of round objects in the possession of a well known ANC terrorist in Lesotho. The terrorist indicated that he and three cohorts before Christmas 1985, will go to Bloemfontein and Kimberley to work there."
This is during the first week in December.
JUDGE KHAMPEPE: Possibly after the 3rd of December?
MR BERGER: And possibly before the 3rd?
JUDGE KHAMPEPE: Not according to the submission made by Mr Visser?
MR BERGER: With respect to my learned friend, he cannot have it both ways. On the one hand he says my client has amnesia, he cannot remember a thing, and on the other hand he says the probabilities show X, Y and Z.
If his client cannot remember a thing, then let's leave his client's evidence out of it, on this score, because whatever he is saying, is just recreation after the fact. Whatever he says is not based on any actual memory that he has. We see that there is a report that came through during the first week of December, and that we know that it would have come via Ladybrand, and the fact that it appears in a report on the 16th of December, does not mean that van der Merwe did not get it at the beginning of December, the first week of December. In fact, if one wants to look at probability, the probabilities are that as soon as that report came through to Ladybrand, it went immediately through to Pretoria, to Mr van der Merwe.
CHAIRPERSON: On this particular leg of your argument, if we are to accept that this matter was discussed on the last meeting of CIC of the year, which you put at the 3rd of December.
MR BERGER: It is common cause.
CHAIRPERSON: That it was the last one?
CHAIRPERSON: It means that this red printed document was already in existence then?
CHAIRPERSON: And therefore the idea of attacking the Leon Meyer group was hatched some time before then?
CHAIRPERSON: So as to give whatever occurred between Schoon's instructions and the printing of the red document, the red written document, there must have been time for that to have occurred?
MR BERGER: It was done on the same day. That is the evidence. The evidence of Mr de Kock is that he got the instruction to do a report that morning, he wrote it out in red ink, while he was there in Pretoria at the Headquarters, wherever they used to meet, he heard talk that morning about a CIC meeting later in the day, he went through to Brig Schoon to check the syntax and the spelling before it got typed, and quite unusually the next thing, the report is taken out of his hands and given to van der Merwe.
CHAIRPERSON: No, there were a couple of other things that occurred before the red printed document came into existence. The important point is that this idea of attacking the Leon Meyer group was not as sudden as is made out to be, that it occurred, that this decision that there is going to be these cruel people that are going to come and attack people, possibly the 16th or 17th, it didn't happen then, it happened long before then?
MR BERGER: Yes. If one looks at the minute of the 3rd, Chairperson, 3.2.1 says that there are these ANC soldiers in Lesotho who are ready to act against the RSA, they are on the verge, they are ready to come and attack South Africa from Lesotho. The minute does not, my submission is that the minute is not a verbatim transcript of what happened at that meeting. This is a CIC meeting which deals with information that there are ANC soldiers about, ready to attack South Africa, we have already asked Foreign Affairs to deal with it, clearly nothing has been done about it, we need to consider further possibilities. Look at what is said in paragraph 3.2.3 on page 104
"... The CIC is in agreement that action, whatever action is planned against Lesotho ..."
CHAIRPERSON: Volume what is that?
MR BERGER: It is Volume 2, page 104, paragraph 3.2.3.
"... Whatever action is planned against Lesotho, that it should be preempted by a very well thought out propaganda programme, so it could be seen as the only action against an outside country."
This is a summary of what is being said.
MR BERGER: On the 3rd, and they are saying "guys, whatever action we plan to take against Lesotho, let's make sure that it is preceded by a well planned propaganda programme, exercise, so that whatever we do, is seen by the international community as the last resort."
CHAIRPERSON: Particularly the notice of the 13th to Lesotho government?
CHAIRPERSON: Which was eventually used as "look here, we gave them a warning".
MR BERGER: Exactly, they did nothing about it. And van Heerden says this raid was discussed for the first time at that meeting. What we submit happens is van der Merwe gets this information that there are guys coming in just before Christmas, he immediately gives Schoon an instruction, Schoon - to say what is the feasibility of us acting against that group in Lesotho. Schoon delegates to de Kock with the same thing, what is the feasibility of us acting against that group in Lesotho. It would have been pointless ...
CHAIRPERSON: It falls in line with what Nortje had to say about the 10 days.
MR BERGER: Yes, exactly. But imagine if there was no information, if it was just this amorphous group of ANC soldiers in Lesotho, which is not, I mean it is a small country, but it is not like a little "dorp", there is this ANC soldiers waiting there, and de Kock is given an instruction, what is the feasibility of us acting against that amorphous group and de Kock of his own accord comes up with the Leon Meyer group, the feasibility of attacking the Leon Meyer group.
Remember the Intelligence is coming through from Ladybrand to Head Office.
CHAIRPERSON: What was he asked to investigate?
MR BERGER: "There is the Meyer group in Maseru that is about to come and commit acts of terror in Bloemfontein and Kimberley just before Christmas, what is the feasibility of us launching a preemptive strike against them?"
CHAIRPERSON: Against Leon Meyer group?
MR BERGER: Yes, against the Leon Meyer group, and de Kock and his men had been working in the Ladybrand area for a long period of time, so they are familiar with what is happening. De Kock then is able, that is why he is able in the short space of a morning, to pen this red ink report, and the red ink report identifies certain targets and says to van der Merwe, "it is feasible, we can go ahead with it".
Van der Merwe grabs that report, and he goes off to this CIC meeting, and it is then reported "we have this information, we asked Foreign Affairs to do X, Y and Z, they haven't done it", and van der Merwe says to them "men, we are ready, we have the capacity, it is feasible for us to attack, to launch an attack", and that is where the possibility of an attack is discussed. Then CIC says "but whatever we plan, let's be agreed that whatever we plan, it is preceded by a proper propaganda programme".
What is so improbable about that scenario?
JUDGE KHAMPEPE: Let me ask this, Mr Berger. What is the purpose of discussing this intended attack by Mr van der Merwe within the CIC structure, knowing that the CIC structure does not have any authority to authorise such a raid. What is it that he had in mind?
MR BERGER: First of all as he says, to use these top notch players as a sounding board, that is feasible, but secondly, more importantly, is to make sure that whatever he is planning, is not, to make sure there is no left hand doing what the right hand does not know about. There is a coordination of Intelligence, so that the Military who may have their own Intelligence, are not at the same time planning their own raid.
JUDGE KHAMPEPE: So the purpose is not to seek an approval for the attack, it is merely to inform them so that there is no conflict?
MR BERGER: It is to, so that there is a coordination of Intelligence, so that the people in the top structures know what other people are doing. Intelligence, I would submit, is not just to know what the enemy is doing, Intelligence is also to know what your comrades are doing. You must coordinate all that Intelligence.
CHAIRPERSON: So what is said in his written application, is not actually the truth by your argument?
MR BERGER: No. No, it is not true. But that is what he relied on. The reason that he had to, you see, it is unfortunate for Mr van der Merwe, but when you start protecting somebody with lies, eventually you are going to be caught up in your own lies.
He is protecting Gen Coetzee, that is the problem. If he had just said "I cleared it with Gen Coetzee", that would have been the end of it. Gen Coetzee would have cleared it with his Minister, the Minister would have cleared it with P.W. Botha. That is what Brig Schoon said happened.
CHAIRPERSON: That is what he thought happened?
MR BERGER: That is what de Kock says Brig Schoon said, when de Kock said to him "did this come from P.W. Botha", he said yes, they did. That is how it happened.
It is not a great secret how this happened. Can der Merwe cleared it with Coetzee, Coetzee cleared it with his Minister, his Minister cleared it with P.W. Botha. And Barnard ...
CHAIRPERSON: We haven't got evidence to make that finding?
MR BERGER: Well, look at the probabilities, my learned friends keep saying "look at the probabilities", Barnard in his evidence says the line function, when asked "did Coetzee, did van der Merwe come and discuss the raid with you, did he seek approval from you", he said "he couldn't have sought approval from me, because that is not his line function, his line function is to go through his Minister, through his Head of Department. The Head of the Department is Coetzee, to the Minister, to the President.
The interesting thing is the evidence of Mr de Kock.
CHAIRPERSON: Let's assume that what he tells us, for the purposes of this argument, that he is telling us the truth and Coetzee was on holiday and he was unable to contact him, as difficult as it may sound.
CHAIRPERSON: Who would he then have to go to, that is van der Merwe, in the absence of Coetzee?
MR BERGER: If Coetzee was in a coma?
CHAIRPERSON: Yes. I wouldn't put it that strongly, but ...
MR BERGER: He would go to whoever was acting in Coetzee's stead.
CHAIRPERSON: Was that not de Witt or ...
CHAIRPERSON: And he testified about what they thought of it?
MR BERGER: Yes, they thought de Witt was a ...
CHAIRPERSON: He should have been in the Diplomatic Core, rather than in the Security Forces, and that is why they didn't consult with him?
MR BERGER: Yes. And then if there is no, if you cannot consult with de Witt, then the next line up is the Minister.
CHAIRPERSON: He says that he didn't.
MR BERGER: Because it wasn't necessary. He didn't think anyone would object, but at the same time he also says, he also gives evidence to say that he couldn't take the decision on his own and that is why he went to a CIC meeting, "no, I didn't go to a CIC meeting, I bounced it off a couple of people, no, I cannot remember who."
CHAIRPERSON: One's fingers get full of butter after that.
ADV BOSMAN: Mr Berger, I don't want to engage in semantics, but if Mr van der Merwe says he went to CIC, and there was no objection and they discussed the plan, and now he states that it was with CIC's approval, shouldn't we distinguish authority and approval? CIC did not have the capacity to grant authority for this, but if they did not object and he interpreted it as an approval, they are not giving him authority because they couldn't, but they approved because they are not objecting, would that not be a fair interpretation?
MR BERGER: Well, Adv Bosman, who had authority to authorise the raid?
ADV BOSMAN: Sorry Chairperson, please go ahead.
CHAIRPERSON: Aside from that, you see the question is a relevant question that we as Committee will have to consider, but what comes to mind once the question is asked is, even if the CIC's silence was interpreted as approval, his evidence is that he didn't go there for approval. He didn't go there for authority. The purpose of going to the CIC was as a sounding board, and to inform the others who may have a similar interest in Lesotho.
Can you deal with the question in that light?
MR BERGER: The difficulty Adv Bosman is that in truth, nobody had authority to authorise unlawful acts, but the Act nevertheless talks about expressed or implied authority. when my learned friend was talking about the requirements of the Act, one thing that he kept omitting to talk about, was the reference to expressed or implied authority in Section 20(2).
(2)(b) talks about "and within the scope of his or her expressed or implied authority".
CHAIRPERSON: Just excuse me, Mr Berger, does anybody need a break for tea, or whatever else, or can we proceed?
CHAIRPERSON: Okay, we take a ten minute break.
MR BERGER IN ARGUMENT: (continued) Adv Bosman, if I could just deal with the question which I didn't answer before the adjournment.
ADV BOSMAN: You did so very briefly.
MR BERGER: "... acted within the scope of his or her expressed or implied authority" and Section 20(2)(f) talks about "any person referred to in paragraph (b), who on reasonable grounds believe that he was acting in the course and scope of his duties, and within the scope of his expressed or implied authority". Those are the two Sections that deal with employees of the State.
In both Sections there must, the person concerned must have been acting within his expressed or implied authority or must have reasonably believed to have been acting within his expressed or implied authority. As is common cause, there was no actual authority, there was no statute or power which authorised anyone to commit an illegal act, and I submit that that is not what the legislature is intending here, because then no employee of the State would be able to get amnesty for any act, and I don't think that such a fine line should be drawn between authority and approval. I submit that what the legislature intended here was whether one could show that one's act was approved or not in the sense of legal authority, but approved by some higher authority.
ADV BOSMAN: My question was simply that if you went to a particular body and you put something to that body and there was no objection, whether it could subjectively be interpreted as approval.
JUDGE KHAMPEPE: But Mr Berger, you have dealt with that on your Heads.
JUDGE KHAMPEPE: When you deal with the issue of legal authority?
MR BERGER: I deal with that a little bit further down. Just finishing off paragraph 23 on page 6, we make the submission that Mr Visser says there is nothing in the minute of the 3rd of December which shows that de Kock's report was tabled for discussion, and we submit that it would not have been necessary for van der Merwe to table the report. He's got the assurance in his pocket that the police have the capability and the feasibility to carry out an attack on the Meyer group, this very group that is posing this threat, and he can go to the CIC and he can assure them that "we have the capacity", it is not necessary and I am sure that these high brow at the CIC were not particularly interested in the nitty gritty of what Mr de Kock had to write.
But Mr van der Merwe comes and he says he only decided to proceed with the attack and he only took that decision and gave the order on the 17th of December, two or three days before the attack. The reason he says is because new and fresh information came through about two handgrenades that were seen in the possession of an ANC soldier in Lesotho.
Now we ask the question, what on earth did Mr van der Merwe think the ANC were going to come through with, pop guns or party hats? You ask anybody, then or now, what did the ANC use to fight the armed struggle and you are going to get a list of AK47's, handgrenades, landmines and maybe a couple of pistols, Macarov's thrown in here and there.
What difference does it make, if you've got information that there are people in Lesotho, there is this group that is threatening to come through, they are on the verge of coming through to commit acts of terror, just before the Christmas period, how does it make the situation any more urgent when you are told "and there are two handgrenades". Please?
We make the submission in paragraph 24 that, why we say that this is the meeting of the 3rd, the meeting that van der Merwe was on his way to, that de Kock talks about, that van der Merwe talks about, that Schoon talks about in all of those earlier documents, was the meeting of the 3rd. We say that for a number of reasons set out in paragraph 24. The first is that the documentation now makes it clear beyond doubt that there was no other meeting after the 3rd of December, until the 12th of February. The references are there.
Van der Merwe says not more than two or three days. 24.3, Nortje directly contradicts van der Merwe, and maybe one should just briefly turn back to Nortje's amnesty application, which is in Volume 1, at page 37. In that amnesty application, paragraph 2 at page 37 Nortje says -
".... members of Unit C1 from Vlakplaas under the leadership of de Kock, approximately 10 days before the operation was executed, convened at Ladybrand during which the source, on a daily basis, provided information to us with regard to the movements of the particular MK members. The objective was to through the source, create a situation where everyone was together at a particular house in Maseru, in order to execute a successful attack."
"... along with myself who was involved in the planning, and the execution of this operation under the command of de Kock, was also Steve Bosch, Nic Snor Vermeulen, Joe Coetzer, the late Anton Adamson, Douw Willemse and approximately ten black members from Vlakplaas. The planning of this operation had indeed started at Vlakplaas before we departed for Ladybrand."
I asked him in cross-examination -
"... we know that you were working in the Ladybrand area for a couple of months before this attack"
"... we used to come up to Pretoria at roundabout I think the 24th or the 25th of the month, then we used to go back to Ladybrand at the start of the next month. We used to keep on doing that. What I am referring to here (he says, going to Ladybrand), that was going down for this operation."
As he says in his amnesty application. He says -
"... the planning of this operation, started at Vlakplaas before we went to Ladybrand. (He says) this raid, this attack ..."
so the ten day period is the ten days in Ladybrand, but before that, there were a couple of days at Vlakplaas, when the raid was already being planned.
JUDGE KHAMPEPE: What do you say of the concession that he made during Mr Hattingh's cross-examination with regard to this particular period, the 10 day period could have meant that he went down there for Vlakplaas operations and not necessarily in preparation to launch this attack?
MR BERGER: No. Judge Khampepe, that wasn't his concession. His concession was that he could not say when the actual order to go was. He said that could have been less than 10 days, the actual order to launch the attack. He couldn't say that, but he stuck firm to ten days being the ten days when they were in Ladybrand.
He said he had no knowledge of when van der Merwe gave the order to de Kock, or when van der Merwe decided to proceed with the operation.
JUDGE KHAMPEPE: So the concession was (indistinct) do you have that particular reference, Mr Berger? I just made a mental note thereof, that was my problem area.
MR BERGER: I will see if I can find it. Unfortunately my cross-examination of Nortje hasn't been transcribed.
MR BERGER: But Mr Hattingh, yes, Mr Hattingh may have the record.
Well, I will read to you, Judge Khampepe. He says -
"... the detail, I agree the initial planning, we did not have that detail. It was something that we had discussed, but the detail with regard to this and the thing with McCaskill was definitely a few days, not ten days, maybe less, but we had already known then that something like this would happen, but the finer detail only came when we started buying the rubber dinghies, and that must have been five days before the time."
On that my submission is that he is talking about the final detail, the final preparations for the attack.
JUDGE KHAMPEPE: The actual attack?
MR BERGER: The actual attack, but he is saying in this piece of his evidence that "it was something that we had discussed. We had already known that something like this would happen". That is what they were planning at Vlakplaas.
He says "less than ten days could be when we started having discussions, final discussions with McCaskill, buying the boats", I would submit arranging the party. If we can look at 43, at the bottom of 42, Mr Hattingh -
"... and his evidence is that on some day he was asked at Head Office to make a submission which he then did, and that afterwards a question of two or three hours later, he received instructions to continue with ..."
You see, there it is. He was asked to make a submission and the instructions within hours -
"... to continue with the planning for the operation and the logistics thereof, in other words the buying of equipment and whatever."
"... That was the first time that they realised that there would be an attack, can you dispute that?"
"... No, I cannot dispute that they had discussed it and that at that level, those preparations had been made."
"... You cannot dispute that the instruction to continue with this operation was given three to five days before the operation actually took place?"
"... No, the final decision may have been received, but then I was not there."
So he couldn't dispute when the final order might have come through.
MR BERGER: But his evidence was never, his evidence about there being preparations for this operation at Vlakplaas, and then moving to Ladybrand for that ten day period, that evidence, I submit was not watered down. In fact I then, my cross-examination came after this, and then finally at 71, this is Mr Visser, the bottom of 70
"... Mr Nortje, while we keep in mind that these things had taken place quite a while ago and it is clear that your memory is somewhat poor, I would just like to point out that in two places in your statement you refer to the planning of the attack that lasted approximately ten days, and yesterday in your evidence-in-chief you said it could not have been more than seven days. I would like to put it to you that according to the evidence of Gen van der Merwe and Brig Schoon, their memory was that it was a day or two, but it was conceded that it could be somewhat longer. But it was briefly after the giving of the instruction that the attack had taken place. I want to ask you how certain are you that it could have been ten days?"
"... When the instruction came, specifically, I do not know, but as I recall the events, we foresaw the possibility that an operation would be launched, but the detail with regard to when exactly the instruction came, I had no knowledge."
"... Yes, but I understood your evidence, months before you were already in that vicinity?"
"... Yes, we were working there.
That too does not attract, because I cleared up in cross-examination, working there was for, on general work. Remember, I asked him "did it have anything to do with this specific operation" and he said "no, the going down, the coming back, the going down". Then when the planning started in Vlakplaas, and then they moved to Ladybrand. His evidence hasn't been tampered with.
MR BERGER: Judge Khampepe, also one then has to look at the probabilities. We've got on the one hand, our submission that van der Merwe had it in his mind already from the 3rd of December that he was going to launch this attack, as opposed, and then that fits in with Nortje talking about ten days and more, the period at Vlakplaas, as opposed to van der Merwe's view that it was a day or two, or maybe three, from the 17th to the 19th, and then one has to think "well, if he took the decision on the 17th, that was when for the first time this information, two grenades, oh, my gosh, we must launch an attack", comes through. He gives the instruction on the 17th to Schoon, Schoon gives the instruction to de Kock, de Kock writes his report, the report comes back, it is given to van der Merwe, he does not go to a meeting, although we all, he said he went to a meeting, he does not go to a meeting, he then goes to find some people of the CIC, we don't know who, and he bounces the idea off them.
Then he comes back to Schoon, he says to Schoon "all right, go ahead", Schoon goes to de Kock, "go ahead". Now de Kock is in Pretoria. We then have to bypass Vlakplaas, because they immediately go down to Ladybrand. They've got to - I had a whole list of things that they had to do. They've got to buy rubber dinghies, they've got to do reconnaissance, they've got to fix the cars, they've got to meet with McCaskill on numerous occasions. Now, we don't rely on the evidence of McCaskill for anything, and I am surprised that my learned friends are relying on the evidence of McCaskill for anything, but if one wants to rely on his evidence, there are other attempts to kill Leon Meyer.
What do we make of that? Leave that out of account. We do know objectively that they met with McCaskill on a number of occasions, they crossed the border, they went into Maseru, they looked around, they did reconnaissance. Then there is the whole thing of setting up a party. There was no party initially that was being planned, now McCaskill has to set up a party, make sure that all the people, the targeted people come to his party. McCaskill says there was one attempt that didn't work, he had to have another attempt. Leave that out of account, even if there was only one attempt.
You cannot arrange a party overnight that all the people are going to come immediately? Yes, you may arrange a party and people may come, you may not be sure that the very people that you want, are going to come. They may have other arrangements. So, all of these things have to happen and van der Merwe says that can be done in a day or two?
We submit that is just highly improbable. Then you have the evidence of Nortje to contend with, and you have the evidence of van der Merwe, Schoon and de Kock about them, about van der Merwe attending a CIC meeting. So you put that on the one side and you put the improbabilities on the other end, and we submit that the version that van der Merwe wants you to believe is just so improbable, that it has to be rejected.
I have now dealt with - the reference to Nortje's evidence is in paragraph 24.6 of the Heads, in the record 2506 to 2509. Then the other thing which I have forgotten to mention is 24.5. As I have submitted, van der Merwe has a motive to keep the period as short as possible, but what is Nortje's motive, to extend it to ten days and more? Why does he put this in his amnesty application, it does not affect his application, it is not a detail that is material for his purposes? It does not matter to him when the instruction came through, how long they prepared, he was acting on orders?
He has no motive to lie. The same cannot be said about van der Merwe. We say in 25 that if Nortje's evidence is accepted, as we submit it should be, it means that van der Merwe's decision to order the attack was communicated to de Kock while he and other members of his unit including Nortje, was still at Vlakplaas. Allowing for a day or two of planning at Vlakplaas, it follows we say, that van der Merwe took the decision to order the attack some time between 3 and 7 December 1985.
We don't say that he took the decision at the meeting of the 3rd of December, we say that he raised the possibility of an attack at that meeting. He told the CIC on the 3rd, "we have the capacity and the feasibility and we have identified the targets, we can go". CIC then said "whatever you do, whatever we do, make sure that it is preceded by a properly whatever, propaganda programme" and you heard Mr van der Merwe's attitude to Foreign Affairs and their propaganda programmes and their telexes.
At one point in his evidence he said "it does not matter what Lesotho says they are going to do, it is what they do. It doesn't matter if telexes go back and forth and the Lesotho government give these undertakings, it is what they do that is important."
My submission is that on the probabilities, after that meeting of the 3rd, van der Merwe then proceeded to get clearance from his, within his line, which he did between the 3rd and the 7th, and he thought "well, what Foreign Affairs do, they do. If they manage to sort things out beforehand, I can always call off the operation". Nothing is irreversible until you cross the border.
But he wasn't going to wait until Foreign Affairs got their house in order. He had raised it, he had not received any opposition, he was going ahead, and that we submit is when he went to speak to Coetzee. Coetzee was there, even if it was done after the 8th when Coetzee went on holiday.
Here you have information that there is going to be the bleakest Christmas we have known, there are going to be attacks, your Commissioner of Police knows about this, Coetzee said yes, he knew about the threat, he goes on holiday to Port Edward, he is a phone call away and van der Merwe, who is going to bring about a storm, does not make contact with the man in his line, with the next in the line function. In our submission, that is just so improbable that it cannot be believed.
We know that Coetzee was not completely on holiday, because he had to attend a meeting of the State Security Council on the 20th of December, he had to be briefed, he had to have documents, he was going to the Security Council on the 20th of December, and one of the things that was going to be raised, he knew, was the security situation over the Christmas period.
Even if it wasn't on the agenda, it was something which he as Commissioner of Police, had to raise. The meeting on the 20th of December and he's got this information that there is going to be this bleak Christmas period, as Commissioner of Police, he is going to be asked a question, surely he would want to be kept informed as to what the developments were and what plans the police had in place, to prevent this Black Christmas?
He says he just went merrily and drank tea on the South Coast of Natal? So he says? I think I have dealt with quite a lot now.
CHAIRPERSON: We agree with that.
MR BERGER: In 28, van der Merwe recognises that he couldn't have acted on his own, because of the international implications, just the huge ramifications of such an attack. He says he probably spoke to Niel Barnard and he says he would have expected Barnard to have informed P.W. Botha, the references are there in 28.
He also says he probably spoke to Niel van Heerden and he says in 29 that during the evidence of Mr Pik Botha, Counsel for van der Merwe, Mr Visser, stated that he would argue that without any reasonable doubt, it would have been discussed with Mr Niel Barnard, because that is the organ through which the police had worked. And then that reference was later corrected to van Heerden.
So the submission is that without any reasonable doubt, it would have been discussed with Mr Niel van Heerden, because that is the organ through which the police had worked.
Niel van Heerden says the only time that this raid was discussed, was at the meeting of the 3rd of December 1985. For the rest he denies, he says -
"... no, he never came to me afterwards".
By the end of his evidence, Mr van der Merwe could not name a single person with whom he had discussed the proposed attack. We submit that his evidence is simply not credible, and we give a number of reasons for that, in paragraph 31.
We talk about it being his first cross-border operation; we talk about his request to Foreign Affairs, in 31.2. Pik Botha says that the diplomatic note on the 13th of December was not a warning. It was a warning. Van der Merwe, we say in 31.4, knew that if an attack was launched from South Africa, the South African government (I am sorry there is a mistake, there is a word left out), the South African government would be severely criticised by the international community. The reference is there.
The reference is also there in 31.5 about how the government wanted to project itself as a Constitutional State not a Police State, so we say it is inconceivable that van der Merwe would have taken sole responsibility for the attack. In fact I think we are agreed with my learned friend, Mr Visser, he made the submission that Mr van der Merwe would have been crazy, he said, not to bounce the raid off senior colleagues. Indeed, he would have been crazy, and he is not a crazy man.
But who was the most appropriate person to bounce it off, who was the most appropriate person to get approval from? Dr Barnard says, "it is not me, I am not in his line. His line is through Coetzee". Mr van der Merwe says he would have consulted with Coetzee, if Coetzee had been available. We say this happened before the 7th, Coetzee was available, but even if it wasn't before the 7th, Coetzee was still available.
JUDGE KHAMPEPE: Is it not possible that he didn't consult Coetzee because he knew that Coetzee would not approve of his intended action?
MR BERGER: Well, he doesn't say that. He says he would have consulted Coetzee, and Coetzee would have understood, but Judge Khampepe, if that is so, if he didn't consult Coetzee, because he knew that Coetzee would not have approved, then he is in big trouble, because then he could not reasonably have believed that he was acting within his expressed or implied authority.
JUDGE KHAMPEPE: Mr Coetzee's evidence was that if he had been consulted, he certainly would not have approved? He wouldn't have approved.
MR BERGER: Yes, Mr Coetzee also said, and has said many times before the Amnesty Committee, that he was not aware of any unlawful conduct of any of his men under his command, over the seven years that he was either Head of the Security Police or Commissioner of Police.
One just has to put that into the balance, I suppose. We submit that Mr van der Merwe cannot say, that Mr Coetzee was not available. Whether he was here or whether he was in Port Edward, he was available. If this was a matter of such importance that it couldn't, that an attack had to be launched, then if a telephone couldn't be used, somebody could have been sent down to Mr van der Merwe with a message, Mr Coetzee with a message.
These are not the days of the oxwagon, a way could have been, and those were not the days of the oxwagon either. A way could have been found, and I don't think that anyone can seriously contend that Mr Coetzee, Gen Coetzee was out of touch. He wasn't out of touch, he could have been contacted. He was reached when it was necessary to get him to Cape Town for the State Security meeting.
There is nothing improbable in Dr Barnard's assertion, evidence, that the appropriate channel for Mr van der Merwe to follow, was through Gen Coetzee. It is such a pity for Mr van der Merwe, that he cannot say that. But he is placed in that position, because Mr Coetzee hasn't applied for amnesty and clearly there are old loyalties that die hard.
We submit in 31.7 that it is highly improbable that Mr van der Merwe could have forgotten with whom he discussed the proposed attack. We make the submission in point 8, he didn't know if Barnard or van Heerden would deny that he spoke with them, that is why he had to be vague.
He didn't know whether there were any subsequent minutes of CIC meetings. In 32 we talk about Gen Coetzee and why Mr van der Merwe cannot now disclose that he discussed the raid with Coetzee in advance.
We have made, I have dealt with all the points, in 32.1 up to 32.4. In point 5, we say that in his amnesty application, Mr van der Merwe implicates Coetzee, and he says -
"... according to a memorandum submitted in this regard, Gen Coetzee was fully aware of all the circumstances relating to this incident."
Now, the drafting of that particular phrase is open to two possible interpretations, it could be he was informed beforehand, he was informed afterwards.
The reference there is to the memorandum which was
submitted in connection with the medals. If
Coetzee had applied for amnesty, then Mr van der
Merwe could have said "in my amnesty application I
say he was fully informed, I have disclosed all
relevant facts". If he does not apply for amnesty,
well, "now, I've got to do a bit of damage control".
He does not apply for amnesty, and he states he -"...
never condoned any unlawful conduct on the part of
any of his members, had he been aware of such
unlawful conduct, (says Coetzee), he would hav seen
to it that the members involved, were prosecuted."
Well now, because of the content of van der Merwe's amnesty application, Coetzee has to admit some knowledge, so he says "all right, I was briefed after the fact, and I did nothing about it". That makes him guilty of being an accomplice, an accessory after the fact, defeating the ends of justice, but those are lesser offences than being guilty of murder. The reference is there.
He makes the submission in 32.10 that it is highly improbable, even if he was on holiday in Port Edward, at the time, Coetzee was not kept up to date on SAP plans to avert the feared Black Christmas. We give the references there and also in 32.11, we give the reference to where Barnard said that van der Merwe "ought to have followed the proper channels and spoken to Coetzee or to the Minister of Police so that P.W. Botha could be informed". That is in 32.11, all the references are there.
The telex of the 13th of December, this is now well before the 17th even, at that stage, also, it is now conveyed to the government of Lesotho, the South African government has information to the effect that the ANC is planning to launch armed action from Lesotho against targets in South Africa, particularly during this festive season. If Foreign Affairs had this, had got their act together to send this telex by the 13th of December, they must have had the information and van der Merwe must have had the information much earlier. You don't need anything more.
So fixing the time around the 17th, is just not on. Again, if one wants to talk about the logical thing to do, which is what my learned friend kept saying, the logical thing to do would be to, the logical thing would be to talk to Coetzee?
Talk about probabilities. Coetzee is Commissioner of Police, from 1983 to 1987, he is Head of the Security Police from 1980 to 1983 and he has applied for amnesty for one act, the bombing of the ANC offices in London? I am sure the probabilities are against that.
That is why we make the submission in 33 that Mr van der Merwe has not unfortunately, made full disclosure of the particularly relevant fact of who he cleared this attack with. After that meeting of the 3rd of December, when he raised it, there were no objections. He took a decision, "we have to proceed with this attack". Who did he clear that attack with and why can he not tell us now who that person was?
I always try and remember when one is arguing matters when things happened a long time ago and you think to yourself, well, are you being unfair to a witness to say "who did you speak to 15 years ago on the 3rd of December 1985", and it is difficult. I cannot remember who I spoke to three weeks ago, but when it is a discreet event, when it is something that should stick in your mind, I remember having a particular debate at Wits when I was a law student, which was a particular serious and it was about whether or not we as law students should still maintain contact with RAU, law students at RAU, if they were not prepared to take a stand politically, it was a huge debate in the law school. I can remember that day in 1984, when we had the debate. I cannot remember what I did in 1986, but I can remember 1984.
It is because it was a particularly relevant and traumatic experience. Here is Gen van der Merwe taking a decision to launch his first cross-border attack and he cannot remember the name of a single person with whom he had a conversation about, "I have now decided that we have to do this".
Particularly on his version, if it was so urgent that suddenly things started falling into place, and "we have to act". Who did he turn to, if not Coetzee? It cannot be, it is highly improbable that he could have forgotten that.
As for the other applicants, we only have one other applicant that we have to deal with on the question of full disclosure, and that is Mr de Kock.
And also it is unfortunate that we have to do this, because when I set out to cross-examine Mr de Kock, I set out to cross-examine him to get evidence on other aspects, I never set out to cross-examine him to discredit him on full disclosure, but that is the way the cross-examination went. There is one particularly relevant aspect, that we submit, he has not made full disclosure. We deal with this in 35.
He says in his amnesty application, volume 1, page 4 that -
"... approximately 30 minutes before we attacked the target house, we received a report from the source that two of the visitors, of which one was a target, had left the target house."
In his evidence before you he said that the two people that he was referring to in this passage, were Leon Meyer and Jacqueline Quin. He also confirmed that the target referred to in the passage, was Leon Meyer. We submit that it is clear, it follows from that clearly that Jacqueline Quin was not a target of the attack.
Now, there was a lot of debate yesterday from my learned friend, Mr Hattingh, as to what one makes of all of that evidence. If we go to 2308, I quoted the passage with my cross-examination of Mr de Kock, I quoted the passage from his amnesty application, that I have just referred to. I say in the middle -
"... in your own words, Mr de Kock, only one of the two, Leon Meyer and Jacquie Quin was a target, not both?"
"... Joe Meyer ..."
And then he is interrupted by Mr Hattingh -
"... my learned friend wasn't asking the witness about targets, he was asking about who were members of the Meyer group."
"... Just rephrase your question."
"... Mr de Kock said he was unaware as to whether Ms Quin was a member of the Meyer group."
"... He said that he accepted that she was, he said I accepted that she was."
"... Yes, but he then went on to say that she wasn't a target,"
says Mr Hattingh. She wasn't a target, so at that point, she wasn't a target.
"... Let's just get this thing clear, Mr Berger. Perhaps this is the source of the problem, are we ad idem that the two people who left the party, were Joe and the deceased, Ms Quin"?
"... Indeed. Mr de Kock, do you agree that the two persons who left the party were Joe and Ms Quin"?
"... Yes, Chairperson."
"... According to your statement, only one of the two who left the party, was a target?"
"... Yes, Chairperson, he would have been one of the infiltrators."
"... Who was that?"
"... So therefore Ms Quin was not a target?"
"... Chairperson, not in the sense that she would have infiltrated, but she was part of the Meyer group, and that came from Mr McCaskill."
Even if we accept that she was part of the Meyer group, de Kock says she was not a target, because she was not one of the people who was going to infiltrate.
"... According to your statement, only one of the two who left the party, was a target"?
"... Yes, Chairperson, he would have been one of the infiltrators."
"... What do you mean?"
"... What do you mean of which only one was a target?"
"... Because Joe Meyer was the infiltrator, he was the active infiltrator, who during that time, would do the infiltration."
That is why he is a target, because, and that is the evidence, the people who were on the verge of entering. Then further down, Chairperson -
"... But I do not understand your statement, if Ms Quin was not a target, then the question remains why was she killed?"
"... Chairperson, then she was killed in the crossfire."
Okay, so up to the bottom of 3.10 she was not a target, because she was killed in the crossfire.
"... Well, Mr de Kock, your evidence is that according to your information, Jacquie Quin was a member of the Meyer group?"
"... That is how I understood it from Mr McCaskill, yes."
"... Right, the second point is on the night of the attack, that night, Jacquie Quin was not a target in your eyes?"
"... She was not an insurgent, no."
"... She was not a target, am I right?" And the reason she was not a target was because of what you have just said, it is because she was not about to infiltrate South Africa, correct?"
"... Yes, correct."
At that stage she is not a target, and then we have the evidence of Mr de Kock in his evidence-in-chief saying when Adamson and Coetzer came back from killing Joe Meyer, Leon Meyer, "they told me that his wife had also been killed" and the reason she had also been killed, you will remember is because she grabbed onto the silencer of the gun and she was shot in the course of that struggle. So that is an explanation for why she was killed, she wasn't intended to be killed, because she wasn't a target.
CHAIRPERSON: What do you say about the argument of Mr Lamey, nevermind the hearsay now, it is that by grabbing the silencer, she interfered and she intervened with this operation?
MR BERGER: She got in the way?
CHAIRPERSON: Therefore she got killed in the crossfire as it were?
MR BERGER: Well, she had to be gotten out of the way, and the way she was gotten out of the way, she was apparently, this was the version that Mr de Kock was given, she was holding, she pulled on the silencer and so she was interfering with the gun, she got shot. She got killed en route to the target.
CHAIRPERSON: Wouldn't that be considered in crossfire, on your argument?
MR BERGER: She could have been bonked on the head, she could have been "klap"-ed out of the way.
CHAIRPERSON: Nevermind what the alternatives were, she got killed in the crossfire?
MR BERGER: Yes, this is this version, this version is ...
CHAIRPERSON: No, Mr Berger, you also cannot have your cake and eat it. You are arguing that.
MR BERGER: No Chairperson, I am not arguing that at all. I am not arguing, we don't know what happened, and one of the reasons we don't know, is because Mr Coetzer, does not want to testify.
CHAIRPERSON: Shouldn't we leave it at that?
MR BERGER: Yes, Chairperson, we can leave it at that, but that is not the point, that is not this point that I am making. I am saying, I am talking about Mr de Kock's failure to make full disclosure in relation to the death of Jacquie Quin, and I am saying up to page 2318 of the record, we have a version from Mr de Kock that Jacquie Quin was not a target "I sent the guys to Leon Meyer's house to kill Leon Meyer, when they come back, they tell me that Jacquie Quin was killed and the reason she was killed was because she interfered. That is the report I get."
Mr de Kock is still telling you a story about why or how Jacquie Quin got killed, that is the explanation, she wasn't intended to be killed, because she wasn't a target. That is up to 2318.
On 2319, immediately after the adjournment I asked Mr de Kock -
"... Mr de Kock, would it be fair to say that your instructions to Adamson and Coetzer were that they were to go to Leon Meyer's house and kill both Leon Meyer and his wife Jacquie Quin?
"... Yes."
CHAIRPERSON: Tell me something, was that your case?
MR BERGER: Chairperson, I don't have a case.
CHAIRPERSON: So why was the question asked then?
MR BERGER: Because as a representative of the victims, one of my obligations is to test whether the applicants have made a full disclosure and to test possible scenarios.
One of the possible scenarios is that Mr de Kock is not telling the truth when he says that Jacquie Quin was not a target. In cross-examination I say to him -
"... would it be correct to say that you ordered her to be killed"
"... yes."
CHAIRPERSON: Mr Berger, I am not going to argue with you about what your duties were, what the victims' versions were, I was surprised, I must be quite honest, that you asked the question, because at that stage, she was not a target?
CHAIRPERSON: She ought not to have been killed.
CHAIRPERSON: And I would have thought that that was, you would have been satisfied with that, if you are opposing amnesty?
MR BERGER: But Chairperson ...
CHAIRPERSON: And I didn't quite understand why you asked the question, but you have explained it that those were your instructions.
MR BERGER: Chairperson, if she was killed on the way to killing Leon Meyer, there might be an argument from the applicants that her death was unfortunate, but unavoidable. And particularly since none of the applicants applying for amnesty here, are people who killed Jacquie Quin, they could legitimately say "we were not there, we don't know what happened, but the report we got was that she was killed because she got in the way, it was never intended that she be killed."
But Mr de Kock, in the cross-examination, I got the sense when I was cross-examining him on whether she was a target, whether she wasn't a target, he wasn't being forthright, he wasn't coming, it took a long time for me to get from him "she wasn't a target." McCaskill in his statement you will recall, says that de Kock spoke to him about killing Leon Meyer and Jacquie Quin.
CHAIRPERSON: Yes, but I mean can we rely on McCaskill?
MR BERGER: Chairperson, that statement was there before Mr McCaskill gave evidence.
CHAIRPERSON: The source is the same?
MR BERGER: No, but you ask me why did I ask that question. Was it my instructions? Well, fortunately none of the people for whom, who are alive today, were there, otherwise they would also be dead. We don't have instructions about what actually happened, all we have is suppositions, speculations, that is why I want to test it, but we did have the statement from McCaskill that Jacquie Quin, that de Kock spoke to him about killing Jacquie Quin as well, de Kock denies that.
So you have all of these things, and so then you ask questions and you get what admittedly was an unexpected answer, "yes". Now Mr Hattingh tells us that ...
CHAIRPERSON: Was that answer to you at that time unexpected?
MR BERGER: I expected Mr de Kock to say no, because earlier, consistently with what he said earlier, he had said "I got an explanation for why she was killed". If he had given them an order to kill Jacquie Quin, he wouldn't have got an explanation for why she had been killed, he would have known she was killed because I gave them that order. I was expecting him to say, but he says yes.
CHAIRPERSON: He was really pushed to concede that, isn't it?
MR BERGER: No, he wasn't. He wasn't Chairperson, because ...
CHAIRPERSON: Wasn't his answer a flippant "yes, I gave the instruction?"
MR BERGER: No Chairperson, because my learned friend, Mr Hattingh has argued to you yesterday that this is the truth.
CHAIRPERSON: Nevermind what Mr Hattingh argued, I am saying I recall your cross-examination of Mr de Kock.
CHAIRPERSON: And that issue, you did not just browse upon, that issue of whether there was an instruction or not, took a bit of time?
MR BERGER: No Chairperson, it didn't. If you have a look at 2319, look at what happened. I ask at 2318
"... Mr de Kock, if I can then just ask you this, was it your instruction to kill those who were about to enter the Republic to commit acts of violence or was it your instruction to kill all members of the Meyer group irrespective of whether they were about to enter the Republic to commit acts of violence? Your microphone is off."
"... My mandate was to wipe out this terrorist group who would infiltrate the Republic, who would commit acts of terror and who were involved in acts of terror."
"... Your instructions included even those who were not about to enter the Republic to commit acts of violence, is that how you understood it?"
"... That is how I understood it, yes, Chairperson."
"... Perhaps we could take the adjournment now."
Committee adjourns, so there is an adjournment. He goes and thinks about it. On resumption, Chairperson -
"... Yes, Mr Berger."
"... Thank you Chairperson. The first question, Mr de Kock, would it be fair to say (because he has now said that his instructions were to wipe out everyone, would it be fair to say that your instructions to Adamson and Coetzer were that they were to go to Leon Meyer's house and kill both Leon Meyer and his wife, Jacquie Quin?"
"... Yes."
Chairperson, this is the first question after an adjournment which could have been shorter than 15 minutes. He is not, it is not like this is boom, boom, boom questioning and then "okay, whatever", it is the first question after an adjournment and he comes with this answer. My learned friend, Mr Hattingh says "well, Berger got the truth, that is the truth. Jacquie Quin was killed because de Kock ordered Adamson and Coetzer to kill her as well."
That is Mr de Kock's problem on a number of levels. First level is if it took Berger to get the truth out, can it be said that Mr de Kock has made a full disclosure? It cannot be, I submit that you can lie in your amnesty application, you can lie in your evidence in truth, you can lie when everyone else questions you and then finally when you are forced to concede something, you concede it and then you say "well, I have made full disclosure."
JUDGE KHAMPEPE: Mr Berger, I am a little troubled, I am not as clear as you are, as to where the truth lies in respect of this issue. What would be the reason for Adamson and Coetzer to give the explanation that they gave to their Commander as to how Jacquie Quin got to be killed if they had been given a specific instruction to kill her?
MR BERGER: Because the report about how Jacquie Quin died, can be viewed in two ways. Either it is an explanation for an accidental death, which is the way it was put forward by de Kock in his evidence-in-chief, or it can be a reportback, explaining "we got to the house, Jacquie Quin opened the door, she grabbed the gun, we shot her, we went through to the toilet, we saw Leon Meyer trying to load his gun, we shot him in the toilet".
CHAIRPERSON: Was that the whole explanation at the time? What happened after Jacquie was killed or was the report just "we killed Leon and Jacquie got killed and this is how she got killed?"
MR BERGER: It was both. There was a brief reportback on what had happened at Jacquie Quin and Leon Meyer's house.
CHAIRPERSON: Yes, as I remember it, I speak under correction, but yes, in effect, the murder of Leon had taken place as instructed, but his wife Jacquie, also got killed, and this is how she got killed?
MR BERGER: Well, that is the spin that de Kock puts on it, because he has to explain.
CHAIRPERSON: Let us examine what was reported to him in view of what Judge Khampepe has asked you, which is the more likely of the two interpretations that you put onto it? If they had come and given a long explanation as to how Leon died, and Jacquie, fair enough, then it is six of one and half a dozen of the other, but if they came back and said "look, we have killed Leon Meyer, but his wife also died and this is how she died", then the probabilities favour that she was not supposed to die, it was not part of the instruction?
MR BERGER: Chairperson, one must remember, they are crossing a river, they are getting out of Lesotho, they are going up, they are creating other explosions to create diversions, there is a brief reportback, which is overheard by Nortje. There is a brief reportback "we were at the house, we killed Leon Meyer in the toilet, because he was loading, not because, while he was loading his gun, we killed Jacquie Quin, she grabbed onto the silencer of the gun and she was shot".
The but, the but is not reported as direct speech by de Kock, the but is the spin that de Kock puts on it, and all of us who listened to de Kock's evidence, hear this because Jacquie Quin is not a target, we have seen it in the amnesty application, she is not a target. All of us who had listened to the evidence, have a mindset "that is an explanation for why she was killed, unnecessarily", but now we get a different spin put on it, because now de Kock says he gave the instruction that she be killed, so the description of how she is killed, is the same as the description of how Leon Meyer is killed, in the toilet loading his gun. That is also given to de Kock.
It is, from a justification, it becomes a brief reportback, nothing more.
JUDGE KHAMPEPE: Shouldn't one view the report with regard to the killing of Jacquie Quin as a justification for her killing?
MR BERGER: Judge Khampepe, the question is why? That is the way Mr de Kock wanted us to view the report when we had the version that he didn't give an order for her to be killed.
JUDGE KHAMPEPE: Isn't his evidence in that regard similar to Mr Nortje's evidence, that is what Mr Nortje himself overheard Coetzer and Adamson report to Mr de Kock?
MR BERGER: Yes, it is the reportback. The question is what spin do you put on that reportback, nobody has given us the actual words used by Coetzer or Adamson.
JUDGE KHAMPEPE: But what Mr Nortje is saying in that regard is similar to what Mr de Kock has evidenced?
MR BERGER: Indeed, Judge Khampepe, that is so that the report came back that Jacquie Quin grabbed onto the gun and that is how she was killed.
Because we had a particular mindset when we were listening to that evidence from Mr de Kock in the beginning that Jacquie Quin was killed by accident, she wasn't a target. That was his evidence, but now he says differently, and my learned friend, I don't think one can, I submit one cannot just brush aside the answer that he gave an instruction for her to be killed, because my learned friend is acting on instructions and he is saying to the Committee "that is now the truth. I represent Mr de Kock and I am saying to you that is now the truth."
My learned friend hasn't submitted it was a flippant remark made because de Kock wanted Berger to shut up. He is saying "you've got to the truth, you finally got the truth".
CHAIRPERSON: What do you want us to believe?
MR BERGER: Before I answer that question Chairperson, page 2526 is Mr Nortje's evidence. He says
"... the information that I received or that I heard, and this had to be during some discussion or at the debriefing, but it went along the lines that McCaskill knocked on the door, Leon's wife opened the door, she grabbed the weapon, she grabbed Coetzer's weapon and what they were telling us here, what Mr de Kock was telling, it makes sense to me as I heard the story."
What do we want you to believe? We say whether you believe that there was an order to kill Jacquie Quin or whether there was no order, Mr de Kock on this aspect is caught between a rock and a hard place, and his application for amnesty for the death of Jacquie Quin, must be refused. Why do we say that? We say at 37, if de Kock did indeed order Coetzer and Adamson to kill Jacquie Quin, then it is clear that de Kock deliberately acted outside the terms of the unambiguous order that Schoon had given him.
CHAIRPERSON: Well, wasn't it the situation until the time or all the time that he denied that she was a target?
CHAIRPERSON: Wasn't that the position, right up till the time that he conceded that he gave an order? Would you agree that up to that time, she was not a target, and therefore she was wrongfully killed and to such an extent that her killing, didn't fall within the ambits of the Act because it was an accident, it wasn't a deliberate political action in killing her?
CHAIRPERSON: Only, the problem only occurs when we now are confronted with the other possibility that he gave the order?
MR BERGER: Indeed. Yes. If Mr de Kock had ...
CHAIRPERSON: But you are arguing that in any case, we must conclude that his application in respect of Jacqueline must fail?
CHAIRPERSON: Because she wasn't a target.
MR BERGER: No. Chairperson, that is not my argument. I am not saying that I favour one version as opposed to the other. I am saying ...
JUDGE KHAMPEPE: If you are now going to submit that, as you have done in your Heads, that Mr de Kock had acted outside his mandate by ordering Ms Quin to be killed, that means that actually you are accepting the version that is related by Mr de Kock?
MR BERGER: No, Judge Khampepe, I am not accepting it.
CHAIRPERSON: Well, then Mr Berger, then please tell us what you want us to find.
MR BERGER: I am trying to Chairperson. Chairperson, we know objectively what the instruction was from Mr van der Merwe. That much I can confidently submit to you what you should find.
CHAIRPERSON: Well, you could even become subjective, de Kock himself says what the instructions were.
MR BERGER: The order from van der Merwe was to go into Lesotho and to eliminate those people who were on the verge of entering South Africa to commit act of terror.
Jacquie Quin was not such a person. She was not a target. That much you can find. She was not a target of the order given by van der Merwe. But now, and that is what de Kock said until I apparently got him to say otherwise.
CHAIRPERSON: Not apparently, you did get him to say otherwise. Anyway, carry on.
MR BERGER: Now he says and his Counsel says yesterday, de Kock gave Adamson and Coetzer an order to kill her and that is the truth. My submission is if that is so, he must be refused amnesty because he went outside the terms of the order that he was given. He was not given an order to kill her. His decision to kill her, does not fall within the requirements of Section 20(2) of the Act and his application for amnesty must be refused.
JUDGE KHAMPEPE: Section 20(2)(3)(e)?
MR BERGER: Section 20(2) and (3).
CHAIRPERSON: Mr Berger, what you seem to misunderstand when I say that before this concession, the version that we had, if we accept, if we accept the hearsay evidence, is that she was killed by accident, and killing a person by accident, does not fall within the ambit of the Act?
CHAIRPERSON: It would have been exactly the same position?
MR BERGER: No, it wouldn't have been the same. We would have had to refuse it, because it was an accident?
MR BERGER: No Chairperson, you wouldn't have had to refuse the application.
CHAIRPERSON: Well, we disagree on that, but I have done so before. It has to be a deliberate political act?
MR BERGER: Yes, but if someone gets in the way of what is otherwise a deliberate political act, and there is negligence in that person's death, that person, you get amnesty for that person's death as well, because it fell within the (indistinct) of the whole event.
ADV BOSMAN: Are you arguing that Mr de Kock should have foreseen when he sent them, that Jacqueline Quin may be killed in the ...
MR BERGER: That is what would have been the normal course, yes. If Mr de Kock did not now have the argument or the position that he in fact ordered her to be killed, he would have got amnesty, we would have not opposed amnesty because we would have said he has made full disclosure, and he satisfies the requirements of the Act.
CHAIRPERSON: Thankfully we are not bound by your concessions.
MR BERGER: No, no, you are not. The problem arises because he now says "what I have been saying all along, has not been the truth, this is the truth". We say if that be the truth, you cannot get amnesty, because your conduct fell beyond the confines of the order which you were given. But we say if he is not, we say in 29 if de Kock is not telling the truth regarding his final orders ...
CHAIRPERSON: Then he hasn't made a full disclosure in any case?
MR BERGER: Then he hasn't made a full disclosure.
CHAIRPERSON: We follow that argument.
JUDGE KHAMPEPE: We like that argument better than - I am still not with you Mr Berger, with regard to the understanding of Mr de Kock having acted outside his orders, on the basis of what Mr Hattingh submitted to us yesterday, that he was now telling the truth.
I am sitting with a situation where I've got to still see where the truth lies between his different versions.
MR BERGER: Judge Khampepe, we know that Mr de Kock was given an order to kill those people who were about to enter South Africa to commit acts of terror. We know from Mr de Kock that Jacquie Quin was not a target. He even understood that he was not a target, and all those references that I read out, confirm his understanding that she was not a target, but he says nevertheless, "I gave Coetzer and Adamson an instruction to kill her".
That goes beyond innocent people getting in the way, that is a deliberate, and I hate using the word innocent people, because it implies that other people are guilty and should have been killed, but it is shorthand, now we have a situation where de Kock knows that she is not a target for assassination, and he deliberately goes ahead and orders her assassination. For that he cannot get amnesty.
You can get amnesty if somebody gets caught in the middle, if it is something that you didn't intend, but it was the natural or probable consequence of the mission that you set out on, but here he deliberately veers off that path and kills someone who he knows, he has no authority to kill. He cannot come within Section 20(2)(b) or (f) because he had, not only did he not have authority to kill her, he could never have believed that he had authority to kill her, because he knew he didn't have the authority to kill her. He fails to satisfy Section 20(2)(b) and (f) on the question of authority, because he knows that he did not have the authority to kill her. That is why he must be refused amnesty, if he deliberately gave an instruction that she be killed.
Both Section 20(2)(b) and (f) talk about expressed or implied authority, acting within the expressed or implied authority, or reasonably believing that you are acting within your expressed or implied authority.
So what we are saying in paragraphs 37, 38 and 39 is on either basis, but for different reasons, his application for amnesty in respect of the death of Jacqueline Quin, must be refused. Just as a quick think about relying on newspaper articles for facts, we know from experience before the Committee about STRATKOM and what they were capable of, if we had to rely on newspaper articles, we would still believe that Joe Slovo had killed his wife.
Page 15, we deal with the requirement of authority. There, Judge Khampepe, in 41 and 42 again, but now for a different reason, I have quoted the relevant Sections 20(2)(b) and 20(2)(f) which talk about expressed or implied authority. We submit in 44 that the requirement of authority, whether expressed or implied or reasonably perceived, is a (indistinct) for the granting of amnesty.
Mr van der Merwe says that his conduct in ordering the attack fell within his expressed or implied authority. He says that in Exhibit A, paragraph 74.
"... within my expressed or implied authority".
Now, this argument is based on the premise that if you accept what Mr de Kock, Mr van der Merwe says, that he didn't, that he actually didn't get approval, or he didn't get expressed authority from anyone, he just relied on bouncing it off people who he cannot remember, and they didn't, they just didn't offer any opposition, we say it is very difficult to see how he can rely then on expressed authority, because on his version, nobody said to him "go ahead with the attack".
So he must rely on implied authority. He said he had some discussions before and then there was some form of ratification after the fact, we've got those references there in 46. I have already dealt with how first there was approval by the CIC, then he says "well, he discussed it at a meeting of the CIC on the 17th of December, he encountered no opposition at all", I am not going to go through it, but it is all in his statement, Exhibit A. The paragraphs are there.
Well, then when he discovers that there couldn't have been a meeting of the CIC after the 3rd of December, that gets watered down. We deal with that in 48. In 49 we say that van der Merwe's latest assertion is that he discussed the attack with certain members of the CIC on or about the 17th of December, but that he cannot remember whom he spoke to. He says he could have spoken to Barnard and or to van Heerden, if they were available. He would have expected Barnard to have informed P.W. Botha.
We submit that it makes no sense, his evidence that he would have expected Barnard to have informed P.W. Botha, makes no sense unless he actually spoke to Barnard. But Mr van der Merwe refuses to be definite about that.
Then Barnard says "no, he did not discuss his intention to order an attack on Maseru with me". So we say with whom did he consult, with whom did he discuss this attack?
If he goes to them, if he is forced to revert to the meeting of the 3rd of December, if that was where he discussed the attack with the CIC members, and said "this is what I am doing, I am intending to launch an attack", and he got their approval at that meeting, well, then he has problems with time periods and Coetzee and all of those other problems that I have already alluded to.
But if he says he only took the decision on the 17th, well then who did he have a discussion with? Who did he bounce the attack off? We say in 53 that given all the uncertainties regarding this important issue, it is significant that van der Merwe has been unable to produce a single member of the CIC who can confirm that van der Merwe discussed the attack with him at any time before the 19th of December.
We have seen lots of friends coming to support the applicants during this hearing. Nobody, nobody has been put on the stand to say "he discussed it with me". If van der Merwe did not discuss the attack with Coetzee before the attack, then maybe he didn't discuss it with anyone. He cannot say whether he discussed it with Barnard, van Heerden. My learned friend says it is beyond doubt that he discussed it with van Heerden, van Heerden says "yes, the possibility, the first time this raid was discussed, was on the 3rd of December, but not after then".
Who did he discuss it with? We say that this informal gathering of CIC, that evidence should be rejected. 35 we ask the question why has van der Merwe sought to create the impression of further discussion, subsequent to the CIC meeting, we give four reasons for it.
We say the CIC meeting, the minutes of the CIC do not record that a decision was taken, that is so. But it was definitely raised, the possibility. If, and this is the point I have already made, if van der Merwe did inform the CIC at this meeting of the 3rd of his intention to launch the attack, then it would mean that it took approximately two weeks to plan and carry out the attack, giving van der Merwe enough time to brief Coetzee and secure his approval. By the same time he cannot say that "I acted completely on my own", because that is absurd.
And then fourthly we say van der Merwe had sought to rely on this meeting, that is the meeting of the 3rd, for approval, even in the narrow sense, which is what he said he really meant in his amnesty application. He says in the "eng sin". He would have run the risk of Barnard, van Heerden and others not corroborating his version. He is really again between a rock and a hard place.
By raising the possibility of an informal meeting on an unspecified date between an unspecified number of names and faceless people, van der Merwe has ensured that his version cannot directly be contradicted.
Well, did he have approval after, if he didn't have it before, was it ratified? Coetzee says he wouldn't have given approval, Pik Botha says he wouldn't have given approval, the Cabinet, the SSC wouldn't have given approval. By the 13th of December, we say in point 4, Foreign Affairs was using the information that only subsequently appeared in a situation report, the State Security Council was still prepared to use diplomatic means to solve the problem.
We say in point 6 if van der Merwe did have the tacit approval of the State Security Council, what were they doing wasting time with all those guidelines? That they discussed those guidelines, is not disputed.
To rely on the Minister of Defence, Gen Magnus Malan for authority, we submit is really stretching things beyond credibility. Yes, Magnus Malan made those thunderous statements talking about the Security Forces, killing terrorists wherever, whenever they may be found, but that is a far cry from giving authority for a covert attack that is going to have these huge international implications. There had to be something more than Magnus Malan thundering on television.
Ratification, well, all we have been given was the award of the medals, and we submit that there is something significant about that, and that is that van der Merwe recommends that the men under him be given medals. But he doesn't furnish any details of the attack in the memorandum, it is annexed to his statement. His statement runs for 16 pages, and two pages added, which we have called 17 and 18.
Instead of providing the details of the attack, van der Merwe writes -
"... no further particulars supplied".
Because of exceptional bravery of de Kock and his men, he says -
"... our enemy temporarily had been ..."
CHAIRPERSON: Who is that addressed to?
MR BERGER: It goes to the general staff and KOMPOL, Commissioner of Police. He says "I cannot give you details, but de Kock and his men carried out an operation on the 20th of December 1985, they were exceptionally brave, diligent, all the things, the enemy, our enemy has for the time being at least been wiped out, and I really cannot say more than that."
On that basis, he recommends medals for outstanding service. If I understood the evidence correctly, they weren't given medals for outstanding service, they were given medals for bravery, because of their bravery in the field.
CHAIRPERSON: Wasn't it a question of "look, we cannot give it for exceptional service, but we will give it for bravery"?
MR BERGER: Yes. Yes. Why is a distinction drawn between outstanding service and bravery? What they did, going into a foreign country, risking their lives, let's give them a medal for bravery, but let's not give them a medal for outstanding service.
So clearly the medals are proof of the fact the conduct of de Kock and his men, as described by van der Merwe to his superiors, is ratified by the general staff and KOMPOL, but where is the proof that van der Merwe's conduct was ratified?
Where is the proof that van der Merwe was awarded a medal? Okay, it wasn't a done thing to award a medal, where is the commendation? Where is the praise, where is the faintest hint that somebody patted him on the back figuratively and said "well done, good shot?"
When Craig Williamson blew up Jeanette and Katryn Schoon, he went to Jerry Raven and congratulated him, "well done". Nobody went to van der Merwe to say "well done, good shot". Why?
They did nothing. We submit that my learned friend says that they did nothing, they took no action and that is proof that his conduct was approved of, after the event. We say that is not the interpretation that you should put on silence. Why? The damage has been done, an international incident has resulted. South Africa is in the dogbox, the South African government is denying responsibility for the massacre. There are debates at the United Nations.
The man, the effective Head of the Security Police, is about to step into the shoes of the Head of the Security Police, it is a done deal, he says so in his statement. "I was the effective Head of the Security Police".
What was the South African government going to do, were they going to deny him, were they going to say "no, we are going to appoint someone else". Imagine the suspicion that would have been raised if the second in command of the Security Police is passed over and someone else is put in his place, immediately after that attack, because remember that attack was in 1985, December 1985, and he was taking over on the 1st of December 1986.
Were they going to discipline him? Were they going to do anything that could raise suspicion that the police were involved? No. The only thing that they could do was to do nothing, and just let things tick on. What could they do, especially if they were denying responsibility, but their doing nothing, we submit, doesn't not mean that they approved of it. If they approved of it, someone would have said "well done". Someone would have nodded.
In the Sunhedrin meeting when the death of Ruth First was announced, Goosen, I can see we have all been in this too long, Goosen ...
MR BERGER: Goosen looked across at Craig Williamson and when the death of Ruth First was announced, he "knik"-ed, and in the unwritten language apparently of the time that was "well done".
None of that evidence is before you, nobody said or did anything, they did nothing. Then we have the guidelines in terms of which future cross-border operations of the SADF, we deal with this in 62, were to be authorised. Adopted by the State Security Council on the 21st of October, yes, they don't apply to the police, they apply to the SADF. Why? Because the SADF was the organ of State that usually crossed the border. The police didn't cross the border, the police dealt with internal security and the SADF went outside to smash people.
But one has to think, what was the thinking of the State Security Council at the time, in relation to cross-border raids? They regulated their thinking because in their minds it was the SADF that crossed the border. Paragraph 3 talks about cooperation between the SADF and the Department of Foreign Affairs.
Very briefly, if one can just have a look at volume 3, starting at page 59. That is where these guidelines are. Page 59 is when it is adopted, or it is going to be put before the State Security Council. Paragraph 6(b) at page 62, 6(b)(iv) talks about -
"... special operations, this entails sensitive special operations which are undertaken by Special Forces, who are specifically trained for this purpose, that is handled on a need to know basis, and which will fall under the following two categories: Special Ops are either covert operations where operations cannot be traced back to the RSA."
Never get that traced back to us, covert operations, and -
"... (2) clandestine operations, secret operations where the tracing back to the RSA is not of cardinal importance."
So clandestine operations if they get traced back to us, it is not a serious problem. In terms of paragraph 14(b)(iii) on page 65 all Special Ops by the SADF had to be approved by the Minister of Defence, where necessary in consultation with the State President.
My learned friend, Mr Visser, said that this was a covert operation. Okay, so this was a secret operation where there should never be the possibility of it being traced back to the government. If it was done by the Military. If it was a covert operation by the Military, it must be secret and before you can have such an operation, you've got to like, go up through the Minister.
Nortje testified that there were members of Special Forces, who are SADF, busy preparing for an attack on the ANC in Maseru, at the time when de Kock and his men were preparing for their operation. I think you will recall he said they were, was it in Thaba Nchu, they came across Special Forces during one of their trips out, when they were doing reconnaissance and so on, preparing and de Kock discovered that there were Special Forces people also working on an attack on the ANC in Lesotho, and he got very angry, de Kock, apparently that this was happening. He wanted them not to interfere on his turf. But just imagine if Special Forces had attacked before the SAP had attacked, that attack, if Special Forces had done exactly what de Kock and his men did, that had to have been approved of by the Minister of Defence.
But if the police do exactly the same thing, they don't have to follow that route through to Coetzee, through to the Minister of Police. Is that what the State Security Council could possibly have thought, when they adopted these guidelines, that we will regulate conduct by the SADF, because we don't want, we want to be in a position to exercise damage control, but the police had carte blanche? We submit not.
We submit that if Mr van der Merwe is to be believed, that he did not go through Gen Coetzee, that he then didn't have the requisite express or implied authority and could not reasonably have believed that he had expressed or implied authority, either before or after the event, and that his application for amnesty on that ground, too ought to be refused.
What, in summary, what we are saying is that on the legal point about not disclosing an offence, van der Merwe definitely hasn't disclosed, but - and Schoon we say too, that if you view Schoon as a postman, then it only applies to van der Merwe. He should be refused amnesty for the murders of all nine deceased.
We don't argue that Schoon has not made a full disclosure of all relevant facts. We say that Mr de Kock should be refused amnesty for the murder of Jacqueline Quin, on the basis that, on either of the bases that I have already argued, either that he never had the authority, expressed or implied if his latest version is to be accepted as the truth, or he has failed to make a full disclosure of all relevant facts, surrounding his orders and the death of Jacqueline Quin.
Thank you, I have no further submissions.
CHAIRPERSON: Mr Treurnicht, we don't need to hear you, so to you - I just want to mention that if we are going to use the evidence of either of your clients, we don't intend to draw any adverse findings or inferences against them. Ms Patel, have you got any argument still left?
MS PATEL IN ARGUMENT: Thank you honourable Chairperson, I do believe my learned colleague, Mr Berger has sufficiently ventilated all the material aspects already.
CHAIRPERSON: Tell me, I would like your views on this. (Indistinct) and Bosch as we understand the evidence, were not privy to an instruction if it came, to go to Leon Meyer's house. They didn't know that was going to happen, so obviously they didn't know Jacqueline Quin was going to be killed? Therefore they didn't know that the crime of Jacqueline Quin was going to be committed.
It follows therefore that they cannot be party to such an offence, because they didn't know that it was going to be committed, they never agreed with it, they never participated in it? Can they be granted amnesty in respect of Jacqueline Quin?
MS PATEL: My submission in that regard, honourable Chairperson, given that they were in the position of footsoldiers, and also in the way in which we know that operations were planned, that it often happened that footsoldiers, wouldn't necessarily be privy to all the information and all the planning that had taken place, they would also, my submission, it would be unreasonable to expect that they would be in a position to know exactly who was killed. Let's assume that it ...
CHAIRPERSON: Did they commit a crime, that is in short, in respect of Jacqueline Quin?
MS PATEL: I believe that by virtue of their participation in the operation, they would be guilty of an offence, Chairperson.
CHAIRPERSON: Their participation in the operation was as Mr Berger pointed out, restricted to the Leon Meyer Unit, and anybody in the house of McCaskill, who may have been killed in the crossfire but you must remember Jacqueline Quin was not killed in that house?
CHAIRPERSON: And these three gentlemen were not party to that deviation of the order? What is your view on that?
MS PATEL: My view on that honourable Chairperson, is that they then cannot be prejudiced by not being party to that decision that Mr de Kock would have taken on the ground and that they accordingly should be granted amnesty in respect of all the persons who had been killed.
ADV BOSMAN: Would they be liable for prosecution?
CHAIRPERSON: Yes, that is the issue.
ADV BOSMAN: That is the issue.
MS PATEL: I am not sure. I am not certain that there would be any grounds upon which they can be liable for prosecution, given that they were not aware and could not ...
CHAIRPERSON: And therefore they would not have committed an offence?
MS PATEL: All right, okay. Chairperson, just one aspect, it is the initial question that you started with at the commencement of proceedings today, in respect of victims who are not South African citizens.
I would simply like to draw your attention to Section 11 of our enabling legislation which deals with the principles which governs the actions of the Commission when dealing with victims and it states there quite ...
MS PATEL: Section 11, yes. It states there quite clearly if one looks at Section 11(b) that victims shall be treated equally and without discrimination of any kind and amongst the list included there, it includes nationality. My submission is that this must then be read in conjunction with Section 19(4), which in fact places an obligation upon us to notify all victims and not merely South African victims, and then if one considers that the rights that one then affords to those victims, that should then also be read in conjunction with Section 20(2) which deals with the referrals, with your referrals to the R&R Committee.
In there too, there is no specific limitations to South African victims, so my submission is that if one reads these Sections in conjunction, especially with Section 11, there is nothing that precludes you from declaring victims who are not South African citizens, victims. In fact my submission is that you would be obliged to declare them victims.
CHAIRPERSON: I am not going to argue about that. Do you want to submit anything else?
MS PATEL: No, no, that is all, thank you honourable Chairperson.
CHAIRPERSON: You see, nobody has considered the aspect of what rights accrue once such people who are not nationals of South Africa, are declared victims, because whether we grant amnesty to any of the applicants, it does not affect the rights of those who live outside South Africa, and if we grant them the status of victims, then they are able to be granted some monetary compensation. It cannot affect their rights to sue any of these applicants. The fundamental of double dipping them comes into play. I am not too sure what the answers are. I was going to ask Mr Berger to find out from them, Mr Berger, if you would do us the favour, of finding out from those nationals without prejudicing any of them in their answers, as to whether they are happy to waive whatever rights they accrue in terms of this Act or not, or whether they insist of us declaring them victims and then run with that then?
I don't know what the position would be, and I haven't looked up any law on it.
MR BERGER: Chairperson, we were instructed on the basis that we represent all the victims, and that they want to be declared victims in terms of the Act. They are not waiving any rights that they have, just as the South African victims are not waiving any rights that they may have to sue the applicants in Lesotho.
CHAIRPERSON: You see, yes, I appreciate that and they have all the rights to retain whatever rights they think they may have, but us declaring victims, have certain implications which may not be to their benefit at the end of the day. I am just saying it is possible that their rights may be affected, and I am not saying that it will be.
I am saying at this stage, one are dealing with possibilities that I haven't checked up on yet. There are moot points that need to be considered.
MR BERGER: Chairperson, even if you, their desire is that they be declared victims in terms of the Act, but even if you did not declare them victims in terms of the Act, they would not be able to sue the applicants in South Africa, even if they are not victims. Nobody, if you give the applicants amnesty, no one can sue them in South Africa.
CHAIRPERSON: Yes, but they could be taken to Botswana or Lesotho?
MR BERGER: So could South African victims.
CHAIRPERSON: I don't want to argue about it, if they want me to declare, if that is their interest, I will do it.
CHAIRPERSON: But they run with it at the end of the day.
CHAIRPERSON: I thought it my duty to point out the possible pitfalls of that. But if they insist on it, well, then so be it.
CHAIRPERSON: We have come to the end of this hearing now.
MR VISSER: Chairperson, a number of matters have been raised, I don't know whether you are going to allow some reply to that.
CHAIRPERSON: Where do I stop, Mr Visser?
MR VISSER: Well, at the reply stage.
CHAIRPERSON: No, but all of you sit here equally, do I give Mr Berger another chance then?
MR VISSER: Well, no, no, because there is only a chance of reply certainly in terms of the Rules of Evidence.
CHAIRPERSON: Mr Visser, we sit here with different applicants and Mr Berger sits here equally representing the victims. This is not a court case.
MR VISSER: No, no, I know that Chairperson, but his attack has been, as an attack on the amnesty applications, and he has raised certain issues, Chairperson. May I make a suggestion, could we possibly ask your indulgence to do a short written reply and let you have that, in reply to the argument and we will restrict ourselves just to the argument of Mr Berger.
But there are certain incorrect things that he stated.
CHAIRPERSON: We are aware of that, Mr Visser.
MR VISSER: And we believe that you should be alerted to, for example very few of the references that my learned friend has mentioned, supports his contentions, Mr Chairperson.
CHAIRPERSON: We are aware, I don't know if we talk about the same ones, but we are aware of certain inaccuracies.
MR VISSER: But we would like an opportunity to draw your attention to where things have been stated as a fact, which are not correct Chairperson.
MR BERGER: Chairperson, I have no problem with my learned friend pointing out all the inaccuracies in my address, and I would appreciate it if I am being told that I have made inaccurate submissions, that I be informed about what I have said that is inaccurate. If my submissions, if I have analysed the probabilities, incorrectly, that is one thing, but if I have made incorrect, inaccurate submissions to the Committee, I would appreciate if that be pointed out to me.
CHAIRPERSON: If we agree to your submitting this short written corrections, would you give it to Mr Berger also, before you give it to us?
MR VISSER: Undoubtedly, absolutely Chairperson.
CHAIRPERSON: So that he can deal with it, if he does not agree with it?
JUDGE KHAMPEPE: How long would it take?
MR VISSER: This is going to be fresh in our memory now, I want to do it this week, and I want to get it out of my life by next week, Chairperson, before Friday next week.
In any event, we are before you next week in the Botswana raid thing.
CHAIRPERSON: I want you to give it to Mr Berger before you give it to me.
MR VISSER: Yes, all right, Mr Chairperson, we will do that.
MR BERGER: Chairperson, why can't we do it now? I am literally, I must say I am offended by the insinuation that I have misled this Committee and I would appreciate to be pointed out now, how I have misled this Committee.
JUDGE KHAMPEPE: How will it prejudice you Mr Berger, if those are pointed out to you at the latest next week, on Thursday.
MR BERGER: Because next week we are in the Botswana raid, and things have a habit of never being dealt with.
CHAIRPERSON: How long is this going to take, Mr Visser?
MR VISSER: Chairperson, I will attempt to finish within an hour, I believe my learned friend, Mr Hattingh also has some points that he wishes to make.
I must just say Mr Chairperson, that I was not insinuating that my learned friend intentionally misled you, I didn't say that, I said there were inaccuracies in his document, inaccuracies.
MR BERGER: All right, Chairperson, I can see it is going to cause serious problems for you, my learned friends can submit their briefs, and I will deal with it.
MR VISSER: By next week, Chairperson, before the end of next week.
MR HATTINGH: Chairperson, I do not intend to submit any further argument.
MR LAMEY: Chairperson, may I just come in here. You have also raised certain issues from the bench with Mr Berger relating to the consequence of the killing of Jacquie Quin, vis-a-viz Mr Nortje, Bosch and Vermeulen, especially you have in my mind, I may be wrong, taken the prima facie view that her death as far as they are concerned, were accidental and therefore they could not have committed a crime.
May I also ask just permission, just to address you on that one aspect.
CHAIRPERSON: Before you get that permission, if I am going to give it, you misunderstand me. The question I asked was whether they are guilty of a crime in the first place, in respect of Jacqueline Quin.
MR LAMEY: Yes, it is on that very issue.
CHAIRPERSON: They didn't know that that was going to happen?
MR LAMEY: No, but it is on that very issue that I would just want to make a further submission.
CHAIRPERSON: Whatever submissions, will you give it to Mr Berger?
MR LAMEY: I will give it to Mr Berger, but I just want to say that I actually agree full-heartedly with Mr Berger's point of view on this issue.
CHAIRPERSON: I have things that confuse me in this case, but in any case, continue.
MR LAMEY: No, Chairperson, I just think it is important to perhaps, if ...
CHAIRPERSON: You can put it in that written Heads, Mr Lamey.
MR LAMEY: Thank you Chairperson.
CHAIRPERSON: And give it to us.
CHAIRPERSON: Are we all happy with that now?
MR BERGER: Chairperson, sorry Chairperson, I have no problem with Mr Visser giving you a copy of his brief at the same time that he gives it to me, and if we ...
CHAIRPERSON: Mr Berger, I requested him to give it to you first.
MR BERGER: And then, what must I do with it?
CHAIRPERSON: What do you want it for?
CHAIRPERSON: Don't you want to deal with it, if necessary?
MR BERGER: And then, must I submit both to you or must I tell ...
CHAIRPERSON: If you want to submit anything thereafter, you can submit it.
MR BERGER: No, no, but must I then tell Mr Visser that he can pass it on?
CHAIRPERSON: Mr Visser knows what he has to do. He is going to give you a copy and then thereafter give me a copy. That is all. So that I don't do my work, without having your response if you want to make a response because I don't want to write this judgement twice.
MR BERGER: Thank you Chairperson.
MR VISSER: If I may just ask on a matter of clarification, Chairperson, if I gave Mr Berger his copy, it would be all right for us next week, thereafter, to give you, it is the same panel sitting?
CHAIRPERSON: Yes. I don't think it is the same panel, but I will be there.
MR VISSER: No, it is not. Thank you Chairperson.
MS PATEL: Chairperson, sorry, finally, if Mr Berger is going to reply to my learned colleague, Mr Visser's Heads, can we set a time limit to that now, so that at least I know when to expect it.
CHAIRPERSON: He said, Mr Visser said he is going to give me the copy and Mr Berger a copy next week. If Mr Berger doesn't reply or respond to that by the following week, then I am going to carry on writing the judgement.
Now lady and gentlemen, I have come to you people's assistance on many occasions during this hearing, that is my final decision.
It has been a long and tedious hearing, at times I thought unnecessarily so. However we finally come to the end of the hearing. The Committee wishes to thank those who conducted certain aspects of this hearing, especially those who interpreted throughout this hearing into different languages, we also wish to thank those involved in the logistic arrangements of the hearing. It was well done.
We wish to thank those who provided the living essentials, such as refreshments and food. I must concede that this has been one of the more difficult hearings that I have had to preside in. The tensions between some at times, and between some of the parties, were obvious and were borne out by some of their respective representatives. However, it seems to have diminished with time.
However, it must be mentioned that such attitudes did not help matters, and indeed defeated some of the intention of the Act in terms of which we sit here. I thank the representatives for their assistance that they rendered in helping us accumulate the evidence although all of it may not be necessary.
I want to address members of the public and especially the families of the victims, I am given to understand that there is a feeling that the Committee is not victim friendly. This is not the first time that such an allegation comes to my notice. I don't know why, or how this impression came about. The South African nation has chosen this route of reconciliation, the Truth and Reconciliation Commission is but a mere mechanism through which some of the aspects in that regard, can be attained.
One of the Committees under that very mechanism is the Amnesty Committee. It serves as a means for perpetrators of crimes, from all sides of the political spectrum, to clear their souls and for the families of the victims, to find out how and why their loved ones were attacked and killed. I am not going to pretend that this mechanism is the solution to everything problematic and indeed, some applicants from all sides, may slip through the net.
The Act creates rights for both applicants and victims. It is the Committee's duty to be fair to all parties within the confines of the law, and within the intentions of this Act. Therefore, we cannot be victim friendly and nor can we be applicant friendly. We will strive to do what we are called upon to do, properly and fairly and without any favour to anybody.
It is times like this that matters become traumatic and when one is reminded of those that we have lost, especially in the manner in which the victims of this incident lost their lives. It is said that time heals, sometimes time procrastinates.
Many of us chose our way of dealing with life during the apartheid era, some of us supported apartheid, and others, most of others, did not. Whatever position each of us chose in that regard, we knew of the dangers that were involved. I can imagine how the moral consideration deepens the trauma, after all those who supported apartheid were the beneficiaries of that very system at the expense of others.
I also understand that in many cases, there is a lack of remorse perceived or otherwise, by the perpetrators and a failure by those very perpetrators to demonstrate a change of heart, makes reconciliation difficult to embrace.
But we have a country that has thankfully proceeded to a new order with the least amount of violence that could be imagined.
I certainly hope that this hearing now that it has been completed, is a help to those who are intent on healing themselves from the past. I hope that this hearing would help commence such a process.
Suffice to say that those relatives should be proud of those people who lost their lives in the attaining of a democratic country. Anyone who wants to be a patriot of South Africa, has an obligation to help create the atmosphere for this one non-racial country, free of descriptions such as rainbows and multi-racialism.
To those who still feel the pain of having lost their loved ones, I can only hope that you are able from now on, to come to terms with life and to contribute to a country that we will all appreciate.
Having said that, I thank you for all your attendance, and this hearing is now complete.