amntrans AMNESTY HEARINGS 2000-03-07 PRETORIA 10 https://sabctrc.saha.org.za/hearing.php?id=54069&t=&tab=hearings https://sabctrc.saha.org.za/originals/amntrans/2000/200307pt.htm CHAIRPERSON Good morning everybody. When we finished last Friday, the issue of an interpretation of the Act and what the powers of the Commission was came to the fore. I asked all representatives to have a look at it and perhaps we could work out something. The Panel has looked at it and we've discovered there's some lacunas in the Act, it should have been there it's not there and it is our view at this stage that yes it is only the Committee that can subpoena people but there are very stringent regulations or guidelines attached thereto. Would everybody agree with our interpretation thus far? MR BERGER Except for the stringent guidelines. CHAIRPERSON I'll give you a chance to argue that, you don't know what the guidelines we refer to yet so you can't disagree with it Mr Berger, not just yet. Our interpretation is that the calling of such witness must be reasonable, necessary and we must be of the view that that witness is able to give relevant information in order to discover the truth and contribute the requirement of full disclosure. Do we agree with that? You see? I told you. And it is our duty to stipulate for what reasons such witness is called and to establish the parameters by which he can be examined and cross-examined. Anybody disagree with that? Okay? So there's no more trouble? The issue of Mr Barnard was the issue in question and yes we agree there his name was mentioned on a number of occasions. We might add that very flimsily and we have reservations about what he could contribute to this hearing. However, it seems that the Committee is stuck in a cycle because we've allowed it in respect of other witnesses who were subpoenaed and to come as closest to fairness. We're of the view that we should call Mr Barnard but we are of the view that we must really set the parameters by which he can be examined and cross-examined. Anybody want to argue on those parameters? Or let me first ask, are there any objections to that plan of action? MR VISSER Chairperson, Visser on record, we agree with everything that you've said this morning, certainly coincides with what our views are on the matter, with respect. The only issue which I want to add now is that if you believe that in the interests of fairness and justice Dr Barnard has to called, then I must point out that there must be more reason for Van Heerden to be called. CHAIRPERSON Yes, we'll cross Van Heerden when we come to him, I'm busy with that issue first. I was going to, I intended to give an opportunity to everybody to state who else now that we're about to call all and sundry to name your man but let us deal with this issue first, we can deal with Van Heerden's parameters later. Does everybody agree we must establish the parameters? Is there anybody who would like to argue as to how to go about it but what those should be? I'll tell you as a starting point and maybe we can amend and change and add and whatever. Briefly, our view, that he should be called to testify on one, whether he can recall a consultation between himself and Mr van der Merwe in respect of the proposed attack in Lesotho in 1985, December. In the event of being able to recall such a consultation or conversation, whether he can tell us if he can remember what they spoke about and the import of such consultation or conversation and in our view that is the sum total of the relevance that he could possibly give. Is there anybody who wants to add to that or amend that or what? MR BERGER Yes Chairperson, thank you. In our view the ambit of Dr Barnard's evidence should be widened and he should be questioned on his knowledge of the raid both before and after it occurred because it effects the question of implied authority as well as ratification which are issues that are pertinent to Mr van der Merwe's application. CHAIRPERSON Is there evidence to the effect that the institution on which Mr Barnard was Chairman perhaps ratified after the event? MR BERGER No, Mr van der Merwe's evidence was a lot wider, his evidence was to the effect that after the raid he got no feedback from any institution, either the CIC or the State Security Council or the cabinet or any Minister to the effect that what he had done was wrong and did not carry the approval of the government. Now Dr Barnard, the evidence has been, had a direct line to P W Botha and so his evidence of what he knew both before and after the raid and whether there was any implied authority or ratification is directly relevant to Mr van der Merwe's application. What I would suggest, Chairperson, ...(intervention) CHAIRPERSON In his personal capacity or as chairman of CIC? There's no suggestion that CIC ratified it? MR BERGER No, but there's a suggestion that Mr van der Merwe's - because it was first a meeting, now it's become an informal discussion with relevant role players and Chairperson, what we would suggest is to make the terms of the subpoena wider than you originally envisaged to the extent that it covers what I've argued but that the Committee retains the discretion to disallow certain questions should they be deemed irrelevant because ...(intervention) CHAIRPERSON But Mr Berger, we can't play that kind of game here because if we allow a wide berth then we've committed ourselves, we're duty bound to curtail it in terms of the subpoena. JUDGE KHAMPEPE Mr Berger, even the truth that at least for purposes of for our decision the evidence before us is that CIC had no authority to authorise such a raid firstly. MR BERGER That is so. JUDGE KHAMPEPE Secondly, for purposes of us deciding whether Mr van der Merwe qualifies for amnesty or not, whether CIC authorised or not, is not an issue that we can be able to determine because according to Mr van der Merwe's own evidence, CIC did not have such an authority. They couldn't therefore have ratified whatever decision that he had already taken. Now what would be the relevance of widening the terms of reference to include what we have submitted before us? MR BERGER Because Judge, it's not a question of legal ratification because everyone has agreed that nobody had a power in law to give Mr van der Merwe authority and that's not the authority that I understand Mr van der Merwe is referring to when he says he had implied authority. The authority that I understand him to be referring to when he says he had implied authority is that the significant role players, people who sat of the significant institutions of States such as the CIC. Mr Coetzee, for example, told us on Friday that although the CIC did not have the capacity to authorise any conduct the CIC was important because of the personalities who sat on the CIC and as I understood Mr van der Merwe's evidence, his evidence too was that he didn't go off on the raid on a frolic of his own, he made sure that he got the approval, if not the express approval, then the tacit approval of significant role players? CHAIRPERSON Is that so Mr Berger? I understood his evidence to say look he didn't need approval, he had capacity himself to make that decision? I don't know, maybe I misunderstood his evidence but that's how I understood it? MR BERGER Chairperson, he says it within the context of "I deemed it necessary to bounce it off" (he doesn't use those words) but to "bounce it off certain significant role players." The evidence of course in context is that he takes Mr de Kock's motivation. It's so urgent, one has to look at it in the context that it happened, it's so urgent that there's no time for Mr de Kock's report to be typed up. He takes that report with him to a meeting of the CIC or to the gathering of certain of the members of the CIC so that he can discuss the proposed raid with them and his evidence now is that there was no opposition to the raid and he took that to be approval, not that he needed it in law but he took it that the significant role players where acquiescing in his conduct and also he says "I would have expected Dr Barnard to have taken that information if he deemed it necessary to P W Botha." So the question is there are two possibilities as I see it. Either Mr van der Merwe is telling the truth and the information went all the way to the top in which case he had implied authority or he is not telling the truth, he never canvassed it with anyone, ...(intervention) CHAIRPERSON It doesn't say so, it doesn't say that he did, it says he may have. JUDGE KHAMPEPE That he does. CHAIRPERSON What? MR BERGER No Chairperson, he says he did. JUDGE KHAMPEPE Yes, the only problem for you, Mr Berger, is that at this stage we don't know whether Mr Barnard was one of those people whom he consulted? CHAIRPERSON That's what I'm talking about, I'm sorry. He can't identify with whom he spoke or bounced it off. MR BERGER Well Chairperson, my learned friend Mr Visser said on Friday that his argument would be that it was either Dr Barnard or Mr van Heerden and he initially said that the most probable person would have been Dr Barnard but he corrected it because he didn't mean to say that and he said the most probable person would be Mr van Heerden and I agree with my learned friend on this point, probably the only time we've ever agreed and that is that Mr van Heerden too should be subpoenaed to give evidence because at the end of the day, you the Committee have to be satisfied that the applicants have made full disclosure and here we have a very limited pool of people, two possible candidates with whom Mr van der Merwe could have spoken and they can come and tell us he spoke with us or he didn't. CHAIRPERSON ...(inaudible) to convert that unstable bit of evidence into hard facts. I know maybe Mr Visser has made the same mistake. He said probably it's one of two people if not both. We must remember that the evidence of Mr van der Merwe whose evidence far outweighs what you people think, both of you. Is that yes, he did bounce it off? He's not sure with whom. Initially we thought it was an official meeting. He is not even sure if it was an official meeting, he tends to believe it was an informal meeting or conversation with certain crucial people. Now we can't convert that into hard facts and argue as if that is the evidence that it must have been Van Heerden or what's the other guy, Barnard, because if both of them come to tell us "we don't even recall such, it didn't happen, not with us", then where do we stand? We will be stuck with what they tell us on that score, isn't it? MR BERGER Well Chairperson, that will be a significant piece of evidence because ...(intervention) CHAIRPERSON That maybe has it's own merits, that kind of answer. I'm saying just let us be careful not to convert Mr van der Merwe's evidence for the purposes of your various arguments into hard facts as if that was the evidence. We're all of us speculating because of the nature of Mr van der Merwe's evidence. MR BERGER Indeed Chairperson, but she shouldn't and I'm not suggesting that it's been done but Mr van der Merwe's evidence about whether it was a formal meeting or whether it was an informal meeting is evidence that's going to have to be assessed because there's other evidence from Mr Schoon for example that he always understood it to be a CIC meeting and there's evidence from Mr de Kock at least in his written application that Mr van der Merwe was on his way to a CIC meeting so everybody at that stage understood it to be a CIC meeting, it's only now that we get told that it might not have been a CIC meeting. CHAIRPERSON ...(inaudible) have to throw a spanner in your argument because probably I will accept it as your argument on that score because that's the evidence and impression evidence but how about Mr van der Merwe telling all and sundry "I'm going to a CIC meeting" which is a half truth because he is only going to meet the CIC people who can be trusted with the information he was about to give to them and not the whole of the CIC lot? It's a possibility, he didn't testify that but I mean the interpretation of his statement to whomsoever can be interpreted like that. MR BERGER Isn't the only question it would appear as if both Mr van der Merwe and Mr Barnard and Mr van Heerden's evidence is relevant? Whatever evidence they give can then be assessed. It's just a question of how wide does the cross-examination go and there's Section 34 of the Act, gives you certain powers, particularly Section 34(ii) which said that "The Commission may in order to expedite proceedings place reasonable limitations with regard to the time allowed in respect of the cross-examination of witnesses or any address to the Commission." So once Dr Barnard and Mr van Heerden have been subpoenaed we've debated the ambit of their evidence, if it appears that I'm going too wide or I'm taking too long or any of my learned friends are taking too long, you have the power to stop us? CHAIRPERSON That limitation is in addition to those that I've already mentioned. JUDGE KHAMPEPE Yes in terms of Section 31. Shouldn't we have first regard to Section 31, the limitations which are included therein which is reasonable necessity and relevance and justification? MR BERGER Judge Khampepe, those limitations only relate to answers which might tend to incriminate a witness. JUDGE KHAMPEPE Yes. MR BERGER It's only answers, it's only those answers. If Dr Barnard will be able to give evidence one suspects are on a great many relevant issues which will not necessarily tend to incriminate him, it's only in relation to answers which tend to incriminate him that the requirements of reasonableness and justification in an open and democratic society come to the ...(intervention) CHAIRPERSON How is he brought into this hearing, by virtue of what Van der Merwe and others said about him, it's all coincidental and the same issue? He was chairman of CIC, I think that's common cause and there was apparently a discussion, formal or otherwise with certain members or the full CIC. There's no certainty about who was present at that discussion. Now if that is the only, if we accept that is the only way he is brought into this hearing, it stands to reason that's the only relevance his evidence would have to this hearing. It is the text book example of how to restrict cross-examination, isn't it? It should only be on that score, do you agree? MR BERGER Without excepting his mere say so as the final word, yes. CHAIRPERSON What basis can you say if he comes and says look, it may be that I was party to such a discussion, I can't recall it and I can't tell you what was said. Are we not stuck with that answer? MR BERGER With respect not because one can then work backwards from when he found out about the raid, was he shocked, did he know about it beforehand? If he wasn't shocked then maybe he suspected it or he was informed. One can work backwards, there are lots of ways in which one can test a witness on. He says "I don't recall that particular meeting", then one can go from different angles. Obviously angles that are relevant but the reasonableness and justifiable in an open and democratic society test only arises when a question is put to Dr Barnard or any particular witness and he says "I refuse to answer that question on the grounds that it may tend to incriminate me". It's only then that Section 31(ii) comes into play. JUDGE KHAMPEPE Mr Berger, I agree with you with regard to your interpretation of Section 31, it deals pertinently with persons who are likely to incriminate themselves and that will come into being obviously after the Committee has also applied it's mind on the possibility of that person having to incriminate himself or herself. But that being so, Section 29 requires that we allow a person to be subpoenaed if his evidence is going to be relevant and material to the subject matter which we have to determine with regard to issues of amnesty. That of necessity requires that their evidence should not be a duplication of what has already been before this Committee. Therefore it becomes necessary evidence and it becomes reasonable evidence that must be led before the Committee. MR BERGER Judge, it's evidence, it's questions which are relevant to the subject matter so there's no prohibition on duplicating evidence that's already been read. The whole point of calling Dr Barnard is to test the evidence of Mr van der Merwe because if there's no other evidence, relevant evidence placed before you then the only way one can challenge the evidence of Mr van der Merwe is to say that he contradicted himself or his answers are so improbable that they cannot be believed but if they are weighed against other evidence which is credible and relevant then his evidence has to be seen in a different light so it's essential to a determination of whether or not Mr van der Merwe has made full disclosure to get the people that he refers to, whether concretely or vaguely, to get them to come along and either confirm or deny what he says and if they come along and confirm what he says so be it. We're not here to ambush, as I've said from the outset my instructions throughout from my clients have been, get to the bottom of this, we want the truth to come out. If that means that the applicants get amnesty as a result so be it but we want the truth to come out and if Mr van Heerden and Mr Barnard have relevant evidence let them come and say what they know because otherwise those questions are never going to be answered. CHAIRPERSON Mr Berger, can you define relevance for us please in this specific - I'm not putting you to a test or any bounds, I just want to understand what you understand by relevance? MR BERGER Relevant evidence is evidence that has prohibitive value, in other words evidence that can usefully be used to assess other evidence so that the Committee can come to findings of fact which are correct. This is not akin to a civil trial where each side presents it's own evidence and then the court makes a finding on the available evidence. This is akin to an inquest where there's a search for the truth and any evidence that will assist in a search for the truth which has prohibitive value in that search is in my submission relevant evidence and the key issue here is a question of authority, express or implied and ratification, express or implied. That is Mr van der Merwe's case. CHAIRPERSON Well Mr Berger, listen to my proposition to you and see whether you agree with it. Relevance has many meanings depending on the context in which it's used. In this particular case calling Mr Barnard and or Mr van Heerden is relevant to the degree that they or mentioned in evidence from Mr van der Merwe not in my view relevant to all the facts of the case or of the hearing and I want to put this proposition to you that calling both of them or either of them, the relevance in calling them to testify would be to check on how they were mentioned by Van der Merwe and others and I have already said that coincidentally they were all - both were mentioned in the same context by all those who mentioned them. I don't know if it extends to all the relevant aspects that we've heard in this hearing like for example can he be - and I'm not asking, this is not an invitation, can he be asked about these guidelines? MR BERGER Yes. CHAIRPERSON Precisely. Therefore I'm asking you let us determine or let us discuss the definition of relevance in this context. You are asking us or you asked us to consider subpoenaing him because he was mentioned by Van der Merwe as being a person who was possibly consulted with and or met with and had prior knowledge of the proposed attack. Now you yourself say that you want to test Van der Merwe's credibility and one of the ways you can do it is by calling Van Heerden and Barnard to testify on this specific issue. Now if that is the relevance of their testimony to check or to test Van der Merwe's credibility on that issue of whether he had a consultative meeting or otherwise, then isn't that the ambit of the testimony? MR BERGER Chairperson, with respect, it goes further and that is because Mr van der Merwe is saying that he had implied authority to do what he did. One question is who did he consult with, who did he talk to and there they can say yes it was me or no, it wasn't. But the other question is ...(intervention) CHAIRPERSON What if both of them or either of them say no, then what? MR BERGER Then I'll argue at the end of the case what weight you can attach to Mr van der Merwe's evidence but it goes beyond that because we know independently of Mr van der Merwe, we know from the minutes which are now common cause that Dr Barnard was the Director General of Intelligence and Mr van Heerden was the Director General of Foreign Affairs and we know that the Police in the person of Mr van der Merwe had asked Foreign Affairs in the person of the Director General, Mr van Heerden to urgently inform Lesotho of this threat within their borders and to tell them that if they didn't take action South Africa was going to deal with the situation in the way that it deemed fit. Now to suggest that Mr van Heerden would not have relevant evidence to give in relation to this raid would be to ignore what he did with this information and how events played themselves out after this. He was told to warn Lesotho that if you don't act we are going to act and then the police act so what happened before the raid and what happened after the raid as far as Mr van Heerden is concerned and whether he conveyed that to his political master, Mr Botha, is relevant to whether or not there was authority for this raid. I'm not talking about legal authority but whether there was approval for the raid which is what Mr van der Merwe relies and then he also relies on some unwritten understanding within the Police and Foreign Affairs and the government and all the significant role players. He mentioned CIC, he mentioned the State Security Council, he mentioned the cabinet, there was this understanding that he was empowered to do what he did, either before the event or after the event. Now surely the Director General of Foreign Affairs and the Director General of Intelligence who had a direct line to the State President can tell us what they know about this raid before, during and after and on the basis of that evidence we can assess whether there was this implied authority and whether there was this implied ratification, it's directly relevant to the issues that you the Committee have to be satisfied on? JUDGE KHAMPEPE That being so, Mr Berger, what would you suggest should be the exact terms of reference with regard to Mr Barnard, let's start with Mr Barnard? MR BERGER That he should be subpoenaed to come and give evidence before this Commission on his knowledge of all relevant events before, during and after the raid on Maseru on the 19/20th December 1985. CHAIRPERSON So you're actually telling us now that the reason you would like Barnard to come testify and be open to cross-examination is not only the issue of whether Van der Merwe had a meeting with him or not? MR BERGER That is so. CHAIRPERSON That was before ...(indistinct). Okay, we've heard you. ...(inaudible) CHAIRPERSON Is there anybody who has got objections with that suggestion? MR BERGER Chairperson, Visser on record. Perhaps I should just make my position clear, I don't act for either Mr Barnard or Mr van Heerden and whatever I say must not be taken to be in defense of these two gentlemen. I can tell you first of all that it is General van der Merwe's view that if they came, if they were subpoenaed, he'd also prefer them to answer questions on all issues and not be restricted but that is going to depend on what these two gentlemen are going to be advised by their own legal advisors. CHAIRPERSON We will cross that bridge. MR VISSER Yes, so that's the point I'm trying to ...(intervention) CHAIRPERSON I'm just talking about the limitations. MR VISSER But that's directly relevant to the brief as it were that you're going to stipulate in your subpoena, Chairperson. One must bear that in mind. They're not here and they're not represented to come and argue to you that they should or they should not be asked on one or other question but if I may deal and just very briefly with the whole basis as it now appears that Mr Berger is arguing for this wide brief if I may call it that, it appears first of all that the whole purpose is to attempt to discredit the evidence of General van der Merwe. CHAIRPERSON So I thought. MR VISSER And with respect, Chairperson, isn't Judge Khampepe absolutely spot on with her questions? What do you need to decide on in order to grant amnesty for General van der Merwe? Assuming these two gentlemen came and this is the question you asked of my learned friend and they denied all knowledge. CHAIRPERSON Or they don't remember it. MR VISSER Let's take the worst case scenario. They say "we remember that very well and we tell you know it never happened." How does that effect Van der Merwe who says that Schoon says "I was on my way to a CIC meeting", this is supported in an indirect way by De Kock. "I, in my position, would never have at that stage being a junior officer that I was and second-in-command of the security branch, would never have taken this decision on my own bearing in mind the sensitive relations which were at play at the time between South Africa and Lesotho. I can't remember" and you've pointed this out on more than one occasion to my learned friend. Van der Merwe's evidence goes not further as "I can't remember but I think it must have happened." You put to my learned friend it probably happened or words to that effect but he says it must have happened. Now assuming those two gentlemen ...(intervention) CHAIRPERSON Are you saying I was correct, because I thought I was persuaded that I wasn't correct? MR VISSER You were absolutely correct, that's Van der Merwe's evidence, he says "I don't remember but Chairperson, he says that it must have happened and he gave you the reasons and the considerations which he in his mind has taken into account to come to the probable answer, "I must have spoken at least to some of the people." What I ...(intervention) JUDGE KHAMPEPE Mr Visser, I don't recall his evidence to be saying he doesn't remember if he did, it must have happened, I thought his evidence was that it did happen? MR VISSER No, no with great respect, that was never his testimony. His testimony, the golden thread here is "in this particular incident my memory is vague, I can't remember". He gave you the evidence of what he could remember but when it came to the question of discussing it with members of the CIC or a CIC meeting, his evidence was very clear, I can't remember but if you ask me today what I think happened I say, if you look at his probabilities "I think I must have spoken to them." Now my question is just in taking Judge Khampepe's argument a step further, the question that she asked was this, what happens if Van Heerden and Barnard come and they deny it? How does that make Van der Merwe a liar, how does that infringe on his credibility? It doesn't, Chairperson, that's the first point. The second point is how does it effect your deliberations and considerations as to whether he should obtain amnesty or not? In the Cosatu House case the matter was dealt with and there the suggestion was made by Mr de Kock that the State President had given the authorisation. That was denied by Vlok and Van der Merwe and Brigadier Schoon. The amnesty committee in that decision of theirs in the Cosatu House case came to the conclusion that they rather leave the question unresolved and then they specifically found that fact, namely whether or not somebody higher up gave authority is not such a material fact so as to stand in the way of granting amnesty. Well, if that is so, this Committee will have to decide whether they disagree, whether they think that that was an entirely incorrect approach or not? We submit that's the correct approach, it's just one of the facts which have to be placed in the basket when considering whether an applicant has made full disclosure. Now Chairperson, my learned friend has now based the whole argument on the question of implied authority and in doing so he has restricted the meaning and application of applied authority in Section 22(f) to what the legislature never intended because if that interpretation which my learned friend places on implied authority is correct it means that nobody could ever - and the Honourable Chairperson has already taken the point - then the person who takes the decision if there's nobody above that can give him authority can never apply for amnesty or obtain amnesty and we know, Chairperson, in many instances before all of you, amnesty applications have been heard when somebody along the line took a decision. Here General van der Merwe's evidence is "I took the decision". It would be very easy for him to rely on an authority but he doesn't do that. He doesn't do that, he says "I took the decision". So in order to answer to give the correct answer to the question of Judge Khampepe was in most ...(intervention) CHAIRPERSON Well how easy would it have been with people only having suspicions? MR VISSER I beg your pardon, Chairperson? CHAIRPERSON How easy would it have been for him to say I got authority from so and so higher up because those fellows seem to be denying everything. ...(inaudible) have suspicions? MR VISSER Chairperson, yes and no. We know that from day one there has been a refusal to admit being accomplices to what had been going on in the country. We only have to refer to evidence that has been received by the Human Rights Violations Committee to know that, on many occasions but in my respectful submission and in answer to your question, history has shown that where there was a case where authority came from higher up, particularly as far as General van der Merwe is concerned, he wasn't afraid to say so. He did say so. Whether that was going to be, in fact it was denied by the State President in the Cosatu House case - no, that's in the Khotso House case, I'm sorry, not in the Cosatu House. The Khotso House case where Van der Merwe came onto the witness stand and did exactly what you are now putting to me, he said the State President gave this authority and it was denied. So in other words, to answer your question, Chairperson, if you assume credibility and honesty on the part of the witness then Chairperson, this issue really doesn't come into play and the application of Van der Merwe must be adjudicated on his evidence and he takes it no further than to say I can't remember but it must have happened. CHAIRPERSON So you're arguing, calling either of those witnesses or both is not necessary? MR VISSER I already gave notice on Friday, Chairperson, that that is our view. Whether they now come and tell you whatever, it's just not going to make - the only thing it may prove if they deny it is that they're also covering for themselves but they may come and admit it, I don't know and Van Heerden must come and admit that somebody from the security branch spoke to him on or before, shortly before the 13th December, we know that from Mr Botha's evidence. He has already conceded that. So at least that Van Heerden must come and concede which is direct corroboration for the evidence of Van der Merwe that he must have spoken to somebody. We say Chairperson, that we leave it entirely in your hands but really, ...(intervention) CHAIRPERSON I take what you say, I've heard what you've said, have you any comments on the suggested terms of reference if you want to call it? MR VISSER I was just coming to that to wrap up Chairperson. In our respectful submission may we just raise one further issue before I do that? We are now in the process of considering calling witnesses where it is clear that there must be minutes floating around somewhere, there must be minutes of the Secretariat of the State Security Council other than the ones that we've got here, there's certainly must be minutes of CIC. I can tell you that in the evidence of Dr Neil Barnard before the Human Rights Violations Commission in December 1997, he says "I wish to assist you, however I want to tell you that the CIC at no stage at all, I being the chairman for twelve years and CIC have a complete set of minutes. If you look at the minutes of CIC I've asked for those but they were not made available." And then he goes on to say: "These minutes are there, please can we have them?" Now Chairperson, we would like to make the suggestion that perhaps the Investigation Unit ...(intervention) CHAIRPERSON No Mr Visser, where are these minutes? MR VISSER Pardon? CHAIRPERSON Where are the minutes? MR VISSER Chairperson, if we had control over them we would have been able to tell you but ...(intervention) CHAIRPERSON It doesn't help to answer that way, Mr Visser. In that letter - or you read from a letter or a document which says there exists a complete set of minutes of the CIC. It is there. Where? MR VISSER That was the evidence of Dr Barnard before the Human Rights Violations Committee and what you must bear in mind, Chairperson, is at this stage of the proceedings a person like General van der Merwe has no access to official documentation. He can't walk in at police headquarters and say listen here, I want to go through your files, I want to look for minutes but the Investigation Unit of this Committee has that power and we were urgently and seriously asked for the Investigation Unit to attempt to find minutes, Chairperson, because it may be that in the next minute of the CIC, or one of them, there may be a reference to this and with great respect, Chairperson, I'll tell you now what Barnard's going to say. He's going to come and say, he's going to come and say "give me the minutes and I'll tell you, I can't remember" because he's already said that to the Human Rights Violations Committee when asked about this specific incident and perhaps it might be of some help if you looked at his evidence, there's only a page and a half which is relevant to this particular incident, the Lesotho incident. Chairperson, but coming then to your question, on the evidence as it stands at the moment, I find myself in complete agreement with what you suggested. These two gentlemen must be called to come and answer whether there was a discussion that they can remember between Van der Merwe and either one or both of them and what the context of that discussion was in relation to what we now know was the raid of the 20th December. It can go no further than that but General van der Merwe, I say again, says that he's got absolutely no problem if they asked about anything Mr Berger suggested they should be asked about. My submission to you is that you must exercise your discretion on issuing the subpoena in a judicial fashion and merely because witnesses wish a witness to be subpoenaed to give certain evidence does not necessarily have to exercise your minds in exercising the discretion. You must do so judicially and judicial exercise of that discretion will mean here is the evidence which has been led, what is relevant on that evidence and I issue a subpoena on that basis, that would be a judicial ...(intervention) CHAIRPERSON Mr Berger argues in his extended reasons for now wanting those two gentlemen to come and testify, that over and above the fact that they are possibly in a position to comment on whether that meeting took place or not and if they can remember the contents of that meeting was, is that this reliance on implied authority - I must say I didn't understand Mr van der Merwe to emphasise that, but in any event even if I've misunderstood the impact of his evidence, what do you say about this definition of relevance that included in the evidence that at least Barnard can give, is the existence or the justification for this implied authority for Van der Merwe? MR VISSER Chairperson, with respect, that's not Van der Merwe's case before you, you are absolutely correct, he doesn't rely on implied authority, not at all, in that sense in that narrow sense. Chairperson, the implied authority with which Amnesty Committees have worked thus far is a very wide concept, it's a concept which in terms of the decision in the Cronje case was stated to be that which policemen were led to believe they were expected to do because of what politician's said - we gave you examples of Malan's speeches in parliament, of what they thought they were expected to do on behalf of the government to support the government's power base to - and Van der Merwe also gave evidence, to create a holding action for a political settlement to be eventually agreed upon. It is a very, very wide concept and I don't want to argue this now, we will again refer to it at the end of the day, but insofar as it may be relevant now. Chairperson, as far as that implied authority is concerned, I was just wondering whether there isn't authority on that point, but the issue also does not stop only with whether there was objectively implied authority or not because Section 22(f) deals with the reasonable belief of a person that there was, so it's not necessary to prove as my learned friend would have it that there in fact objectively was an implied authority. That's not a test which the Act places on that concept at all. CHAIRPERSON Assuming that it was his evidence from where would this implied authority have come from in this case? MR VISSER Well that's exactly the point, one must now start asking yourself that question and presumably he could have obtained authority from the Commissioner of Police or from his Minister and as far as Van der Merwe's concerned it would have stopped probably with the Commissioner of Police because he told you that he didn't have access to the State President, he certainly didn't have cession on the State Security Council, he didn't give evidence about the Minister. But let's assume he might have gone to the Minister if he wanted authority, an order? CHAIRPERSON That would have been direct authority, I'm talking about this implied authority. MR VISSER Well we submit Chairperson that again that the implied authority which the legislature had in mind and which has been applied by amnesty committee's does not confine itself to a person giving you an order. It is an implied authority because of circumstances which existed and pertained during the struggle of the past and as perceived by individuals, that is the implied authority. CHAIRPERSON But wouldn't Mr Berger be correct therefore, Mr Visser, by saying that such implied authority must have emanated from certain government structures like the CIC and the SSC? MR VISSER Well we know it couldn't have emanated from CIC and perhaps I should ...(intervention) CHAIRPERSON Why not? MR VISSER Because the evidence is that they had no authority to do so, Van der Merwe gave that evidence. CHAIRPERSON Well let's examine that Mr Visser, now. They were all involved in illegal activities. The question of authority as far as I'm concerned when they're embarking on illegal activities is irrelevant? MR VISSER Yes of course. CHAIRPERSON So CIC could in any event have sanctioned an illegal act? MR VISSER Yes. CHAIRPERSON If that was their policy? MR VISSER Yes I follow your argument. CHAIRPERSON So what Mr Botha testified last week I don't attach too much to but look, we deny authority because CIC didn't have authority to do that. Nobody had authority to do it. MR VISSER Absolutely, absolutely. No, from that point of view, from a practical point of view you are of course absolutely correct. Neither could Van der Merwe ever have given this order legally. No, absolutely. But now from a point of view of official administration on their books or on their brief they wouldn't have had authority to do anything else except to coordinate information. CHAIRPERSON Isn't there something to be said not as far as relevance is concerned but as far as authority is concerned in what Mr Berger submitted, that it could possibly the implied authority or his belief that he had implied authority could possibly have emanated from CIC or any institution above him, right? MR VISSER Chairperson, I just want to reiterate, I'm not opposing the issue. CHAIRPERSON I accept that. MR VISSER We're just dealing with terms of reference now. My client says to me that he is quite happy on the basis that Mr Berger has put it to you. My only submission to you is that it's still for the Committee to exercise it's discretion on all the facts of the case and what I'm saying is the facts as you placed them before us today in my submission are correct. I take it no further than that. CHAIRPERSON Comment on that before we adjourn? We want to adjourn to discuss this and make a ruling at the end of the day. We want to adjourn in order to discuss this as a Panel and to inform you during the course of the day, it's 11 o'clock now, hopefully by 2 o'clock we can tell you but I'd like to see all representatives in call it chambers right now please because we've got to work out the logistics for the future. We also thought that Mr Coetzee could be finished today before we adjourned for a period. Are there any objections to that? MR BERGER No, in fact I was going to ask because Mr Coetzee asked me on Friday whether he would be finished today. CHAIRPERSON Would you prefer to finish Mr Coetzee now and then adjourn to consider this other issue? MR VISSER Chairperson yes, we would certainly prefer that, yes. CHAIRPERSON Who was at the wicket last. Mr Berger? WILLEM HELM JOHANNES COETZEE (s.u.o.) CROSS-EXAMINATION BY MR BERGER (cont) Thank you Chairperson. Mr Coetzee, do you recall when you gave evidence in the application, well in the only application that you're applying for amnesty, the London Bomb application, you gave evidence to the following effect. You said that but for the London Bomb you never authorised or approved of any illegal conduct on the part of any of your policemen? GEN COETZEE Yes I would have said so Honourable Chairperson. MR BERGER And in fact you went further and you said that if you had ever become aware that either before or after the commission of an unlawful act by any of your policemen you would have ensured that such policemen were prosecuted to the full extent of the law? GEN COETZEE That is what I said Honourable Chairperson and that is what I did. I never said that by means of inferences and so forth I would have been aware of cases of unlawful action or at least I mentioned the three monkey syndrome, that we would not be in the position where we said we didn't know about anything, we didn't say anything, we didn't hear anything because that was also said during the context of that evidence. MR BERGER Well am I incorrect when I summarised your evidence to the effect that you never approved of illegal conduct on the part of your men and women? GEN COETZEE I never gave orders before such action. Two policemen, for them to act unlawfully except in that case for which I requested amnesty and knew that the minister and the government and the Commissioner and myself had the authority to have the deed committed for which I gave the order. According to the law we were not however capable of doing this. MR BERGER No, Mr Coetzee, let me put it to you then and if you dispute it I will get the evidence. Your evidence during the London Bomb application was that - let's take it in stages, you never but for the London bomb because that you've applied for amnesty for that, but for the London bomb, you never authorised the commission of illegal conduct on the part of any of your policemen? GEN COETZEE Never before it happened. MR BERGER Right, your evidence went further and you said you never ...(intervention) CHAIRPERSON Just hold on Mr Berger. What was put to you, Mr Coetzee, as that with the exception of the London bomb incident, you never gave permission to any member of the police to do something wrong, full stop. We're not referring to the period subsequent to the incident, this is your evidence in that regard? GEN COETZEE My evidence with regard to that case is that I never gave an illegal order to a policeman, that is my evidence in a nutshell. CHAIRPERSON That is a curious difference. The statement to you was that your evidence during the London bomb hearing was that with the exception of that particular case you never gave any of your members permission to commit unlawful actions? GEN COETZEE Yes that is correct. MR BERGER You will recall during your cross-examination by Mr Bizos that a whole host of crimes were brought to your attention, crimes that were committed either during your term as head of the security branch or during your term as Commissioner of Police and you denied any knowledge of them at the time? GEN COETZEE That is correct, Chairperson, Mr Bizos did put certain incidents to me which took place during my period of tenure which were unlawful and he wanted to know whether or not I was aware of such incidents and my response was, which he later wrote in his book, my response was that I would have to be confronted with a particular incident in order to be capable by means of documentary evidence and enquiry to determine what precisely I knew about it. MR BERGER And in relation to each one of the incidents that he particularised you said you had no knowledge of those incidents, do you remember that? GEN COETZEE Well at this stage I cannot say that it is so but I would accept it as such. MR BERGER And you went further and you said that during your term of office as head of the security branch or as Commissioner of Police - and of Commissioner of Police - you were not aware of any unlawful conduct on the part of any of your policemen? GEN COETZEE Yes I said so, I knew of cases where I acted where I had persons charged where for example I had persons from Vlakplaas charged when they committed crimes of which I was aware. There were other persons who killed persons during interrogation whom I had charged in the courts of this country when I was aware of it. MR BERGER Indeed your evidence was expressly "if I had become aware of any unlawful conduct on the part of any of my policemen I would have ensured that they were prosecuted to the full extent of the law." GEN COETZEE Insofar, obviously, as it was within my power to do that. MR BERGER Indeed. In other words you were saying you would not have swept unlawful conduct under the carpet. GEN COETZEE That is correct. MR BERGER Now why did you do that in this case? GEN COETZEE Honourable Chairperson, the first point that I must emphasise and that I have already testified about is that before the incident I was completely unaware of it. There was no authorisation and I could not issue such legal authorisation and it was not requested from me. That is the first point. The second point is that when I became aware of it when I was informed verbally in terms of the Police Act of that time I did what the Act told me as Commissioner to do according to the prescription of the Minister of Law and Order, I went to him and said "Sir, this is what I have been told, this is what has been said to me". This officer states that he was in a situation of emergency, this officer states that he informed interested parties and for him as the Minister who had to have the final say it was his responsibility to tell me "listen, this is illegal we will have to place this officer on trial, you'll have to conduct a criminal investigation but I cannot speak on behalf of him but he could of thought that he had access to the minister of justice and that he also had access to the legal advisors to the State, not I and never again discussed it with me or gave any orders. Indeed there was a process during which not only he made the decisions which was also entrenched in the law and in legal regulations, he gave these persons medals therefore I didn't ratify or condone anything in the law, that I did not have any authority over. I did precisely what my act, the Police Act prescribed to me to do. MR BERGER Well let me unpack what you've said. Are you saying that when you were briefed by Mr van der Merwe after the fact of the operation, the attack, you were of the view that a crime had been committed? GEN COETZEE No, I'm not saying that. I haven't said that. CHAIRPERSON But Mr Coetzee, you must have known. If you received a thorough report you must have known that a murder or murders had been committed? GEN COETZEE But it could have been Honourable Chairperson that as it was presented to me it appeared to be a situation of emergency that the officer perceived it as such and this is the message that I conveyed to the Minister as the Act required of me to do. CHAIRPERSON So it may have been, according to you, that the incident was one of emergency. GEN COETZEE Yes it is possible, I'm not saying that it is a probability but it is also possible that it was the type of crime which was committed abroad where I didn't have any jurisdiction and I had to allow myself to be led under those circumstances by the relevant Act, the Police Act and I had to inform my Minister and that is what I did. CHAIRPERSON Well let me ask you, I don't know how far it goes or what the relevance is but let me just ask, at least you must have realised that whatever was done would boil down to a conspiracy in South Africa among those involved? GEN COETZEE Yes, yes Chairperson, including Mr van der Merwe who gave you the report. Yes, that they had made a joint decision about this, that there was some form of a conspiracy. CHAIRPERSON Then why didn't you act as the Commissioner at that stage? GEN COETZEE But Chairperson, at that stage I only heard about it subsequent to the incident, after the incident and at that stage I had not conveyed my approval to him but told him very clearly that I would necessarily have to take this matter to the Minister. MR BERGER Thank you. Mr Coetzee, Mr van der Merwe says in his amnesty application at page 103 of bundle 1, he says that according to a memo submitted in this regard, this is in connection with the raid, General Coetzee was fully aware of all the circumstances relating to this incident. Do you agree that that is correct? GEN COETZEE This is what he says but it refers to the memorandum which after the incident on the 13th January was submitted to me with regard to the awarding of medals and the discussion that he had with me when he came to inform me. MR BERGER Let's start there. After the fact you were fully informed and you were fully aware of all the circumstances relating to this incident? GEN COETZEE I've already stated this. MR BERGER After the fact? GEN COETZEE After the incident, in other words when I returned from leave and this would have been approximately before the weekend of the 10th January because I think that the memorandum was issued on the 13th, General van der Merwe came to inform me and I then went to inform the Minister and then a memorandum followed stating that I had been informed. MR BERGER The point I'm making, Mr Coetzee, is that in January of 1986 you were fully aware of all the circumstances relating to the incident, is that correct? GEN COETZEE Yes I wouldn't think that that would mean, Mr Berger, the operational aspects pertaining thereto but that I would have been aware of what General van der Merwe had told me and what I had told the Minister and if I have to rely on my memory where I've given you the basic components or elements, I was aware of it. MR BERGER You were aware of January 1986 that a conspiracy had been formed within South Africa to commit murder in Lesotho? GEN COETZEE Chairperson, I have already stated that I do not wish to end up in semantic confusion and will maintain that if it was a murder and if it is argued as such then it was a political murder. The same as that which Mr Slovo had admitted to the South Africa Public, a political murder. MR VISSER Mr Chairperson, I don't want to interrupt but I would be failing in my duty if I didn't place on record that it would appear, Chairperson, that none of the questions asked this morning seem to have any relevance to the application for amnesty before you? It seems to be an attack on this witness, either on his credibility or to show that he was criminally liable in this incident which has nothing to do with what we're busy with. CHAIRPERSON Mr Visser, if you look at Van der Merwe's application it will become clear where this line of questioning is going. Proceed, Mr Berger? MR BERGER Thank you Chairperson. I don't know why you refer to Mr Slovo, I don't know what the relevance of that is but ...(intervention) GEN COETZEE I am sorry, I just want to state ...(intervention) CHAIRPERSON Just carry on with the relevant stuff please? MR BERGER The point of my question is, is that by January 1986 you were aware that certain of your members, including Mr van der Merwe, had been party to a conspiracy to murder which had been formed in South Africa to be carried out in Lesotho, you were aware of that? GEN COETZEE I was informed as such. CHAIRPERSON It is actually an admission which was made to you, by Van der Merwe, he was part of that? GEN COETZEE Yes he informed me with his apologies and his viewpoints he came to inform me. MR BERGER And that conspiracy could have been the basis for a prosecution for murder in South Africa, you knew that in January 1986? MR VISSER We deny that that is so Mr Chairperson. It's an incorrect legal submission that is made to the witness. How could that ever have been murder in South Africa? MR BERGER Conspiracy to murder is a crime in South African law? CHAIRPERSON No, you omitted to say conspiracy when you made the proposition. You may have intended it but you didn't. MR VISSER Chairperson and what is more there's decision of the Supreme Court, Justice Hartzenberg in the Mouton case - in the Basson case, I'm sorry, to say that that was not a conspiracy within South Africa if the crime is committed in another country so my learned friend is incorrect in his legal statement to the witness or at ...(intervention) CHAIRPERSON Just for your information I don't feel bound by that decision. MR BERGER Mr Coetzee, in January of 1986 you didn't have the benefit of his Lordship Mr Justice Hartzenberg's decision in the Basson case. In January of 1986 were you or were you not of the view that a crime had been committed by amongst others, Mr van der Merwe? GEN COETZEE Honourable Chairperson, at that stage when I was informed I would most certainly have considered as one of the possibilities that this could constitute a crime in South Africa, I would most certainly have considered that but in terms of my act I had to consult my Minister with regard to such an event. My Minister clearly possessed the expertise, he was an Advocate, he also had access to the State legal advisors, he also had access to the Minister who served with him in the cabinet and he had access to the State President. He should have told me, he should have given me an order because my act said in the final analysis that according to his prescriptions he would have to guide me in such an incident, in such an obvious incident, what I had to do. MR BERGER What section of the Police Act are you referring to? GEN COETZEE I'm referring to the Police Act 1958, Act No. 7 of 1958 and Section 4.1 that said "The Commissioner has command over the forces, the Commissioner in consideration of the prescriptions of the Minister will command the forces." MR BERGER So you never had the power to institute disciplinary action against Mr van der Merwe or any of his men unless the Minister of Law and Order concurred? GEN COETZEE Honourable Chairperson, on Friday I had already responded to this sort of point that I would have been surprised if I had gone to the Minister and told him "Minister, this is what has happened but these persons, these particular persons who are involved state that they were acting out of defence against persons who were on their way to South Africa to commit murders in South Africa before the festive season" and that the government and he would have had to take responsibility for the trial of a man who would have stated in that public trial "this is why I acted". That was my precise motivation, my motive and now the State would be charging such a man who, in a certain sense, had indeed preserved or rescued the peace and quiet in South Africa and in a certain sense had observed the Police Act in that it stated that it was his duty to preserve peace and quiet in South Africa and to prevent the disruption of security in South Africa. I said that I would have been surprised but he could have done it, the onus rested upon him. MR BERGER You see, Mr Coetzee, that wasn't my question. My question was did you as Commissioner of Police have the power without consulting the Minister of Police to institute disciplinary action against those of your men whom you believed had committed a crime. Did you have that power or did you not? CHAIRPERSON Mr Berger, aside from what the witness interprets the Act, would it not be more correct to formulate the question or the proposition that would he not be compelled, being the Commissioner of Police to refer this matter to the Attorney General because when you talk of disciplinary action it may in certain circumstances talk about internal punishment of some sort but if you are talking about a person being in the position of the witness, having to do his duty as a citizen in particular being the Commissioner of the Police, then is that what you intend to ask, why didn't he refer it to the prosecuting authorities? MR BERGER Thank you Chairperson, yes. CHAIRPERSON Is that what you intended? MR BERGER There are two aspects to my question but I'll take that one first. GEN COETZEE Chairperson, I would have in any case before I could have done so I would have informed the Minister of the sensitive matter because I was of the opinion that disciplinary action had to be taken because he in the final analysis with regard to a senior officer had to be approved by him and I had to go to him any way. MR BERGER And a reference to the Attorney General? You also had to go to the Minister before you could refer a matter to the Attorney General. GEN COETZEE I would have thought that in practice I would not have gone to the Attorney General if I had known that the Minister who regularly consulted his cabinet members and not necessarily informed me about it that he would speak to the Chief of the Attorney General, the Minister. So I in such a sensitive incident, I would not have gone and said without the Minister and gone to the Attorney General and said "Mr Attorney General there is a confidential matter that I would like to take up with you without my Minister's knowledge. MR BERGER So then to go back to your evidence in the London Bomb application, would it be fair to say now that if you ever became aware of criminal conduct on the part of any of your men you would have instituted disciplinary proceedings either internally or through the office of the Attorney General against them only after you had obtained approval therefore from your Minister? GEN COETZEE No, it is not as simple as that, Chairperson. Another facet of this matter is in January of this year I was informed about it for the first time. January of this year, January 2000. MR BERGER It's the first time you were aware? GEN COETZEE That is correct. MR BERGER Of what? GEN COETZEE That General van der Merwe alleges that he had informed me in 1985 with regard to the Lesotho incident. So when I gave evidence in the London Bomb incident I would not have known of this incident. MR BERGER When you ...(intervention) CHAIRPERSON Did I hear you correctly, when was the first time in January that you heard of it? GEN COETZEE I was on my way in my car with regard to other cases from Graaff-Reinet to Pretoria, the legal advisor might be able to recall the date. CHAIRPERSON Of what year? GEN COETZEE Of this year. CHAIRPERSON Is this the first time that you heard of it? GEN COETZEE That is correct, that I was informed by the legal advisor, the attorney, who contacted me on my cellular telephone and told me that he would like to discuss another matter with me and then he informed me that in the amnesty investigation of General van der Merwe there is an allegation that I had been informed fully after the incident and that I had taken certain steps with regard to the award of decorations. CHAIRPERSON So in January in 1986 you did not know the facts of this attack? GEN COETZEE It was never discussed with me after this incident. Chairperson, what had happened was that, I refer to the amnesty application, what happened in January 1986 I was informed but the fact that there was an amnesty investigation I only heard this year. CHAIRPERSON Oh. MR BERGER But if you didn't know until January of this year 2000 how can you now testify to a conversation that you had with the Minister of Law and Order in January of 1986? GEN COETZEE Because I recall the discussion with General van der Merwe, he came to see me in my office and immediately thereafter I went to the Minister and informed him about it and then the process with regard to the medals took place. MR BERGER You say when you gave evidence in the London Bomb application you had forgotten about this incident. GEN COETZEE Yes entirely correct. MR BERGER And if you had remembered you would have given different evidence about never having approved illegal conduct on behalf of your men? GEN COETZEE No Chairperson, I said that I do not know, up to today after various discussions with various legal representatives, whether in these circumstances if it was necessarily a crime. MR BERGER And the only reason that now remember all the facts of what happened at that time is because Mr van der Merwe has jogged your memory in the year 2000? GEN COETZEE Yes when for example when this document was drawn up by me for the Truth Commission initially and I was asked with regard to the Lesotho incidents I cannot recall what was asked wither it was '82 or '86 but I had placed it in writing, my involvement in the '82 incident, in other words I did not recall then that in 1985 incident I also had some involvement. MR BERGER You see, Mr Coetzee, isn't it that the evidence you're now giving is really based on what Mr van der Merwe told you happened at the time, you don't have an independent recollection of what happened at the time? GEN COETZEE No and the memorandum that has been submitted. MR BERGER Which memorandum now? GEN COETZEE The memorandum of which the original had to go to the Minister with regard to the medals. MR BERGER Besides what's written there and besides what Mr van der Merwe has told you, you don't have an independent recollection? GEN COETZEE No, after I said: "General, I came to see you and you were informed" and if that is so then I would accept it. MR BERGER And if he had come to you and said "General, remember I discussed this raid with you before the attack and you said if the circumstances are so urgent, go ahead. In fact, General, you gave me permission to go ahead with the raid." GEN COETZEE No, I was entirely unaware up to the time that I went on vacation of the absolute urgency of how the matter had developed. What I had known was I would say almost the normal threat that was imminent from the ANC soldiers in Lesotho. MR BERGER My point is this if Mr van der Merwe had come to you now in the year 2000 and had said "General, - I know you don't remember it but think back, I discussed with you the urgent intelligence that we had received and I discussed with you the need to go and attack ANC bases in Lesotho, it was when you were on holiday on the south coast, do you remember that General?" You said "Do what you think is necessary." If he's said that to you now, could you dispute that? GEN COETZEE Yes, because I would not have given him that authority, I did not have the powers legally or by implication to give such authority without at least at that stage, if I had gone to the Minister and said such a discussion was held with me or such a proposal was put to me. I did not do it. When the matter came to a head I was away from the office. MR BERGER Well if you didn't have authority to sanction such a raid, how could Mr van der Merwe have sanctioned such a raid? What authority did he have to sanction such a raid? GEN COETZEE Honourable Chairperson, no-one - and I have said this in speeches to police members, from the State President, from the parliament of this country, the Commissioner, the Minister, no-one has the legal power to authorise an unlawful illegal act. CHAIRPERSON That is good to hear, Mr Coetzee, but we do not refer to legal action. Many-a-time I have heard evidence of persons who said that they received such and such an instruction to act unlawfully, and Mr van der Merwe gave evidence here that he had felt that he had the right to continue with this attack and the question to you is about that. We are not discussing legal power, we refer to the powers of persons in rank who could have felt or could have said that they had the power and the right to do certain unlawful things. That is what it is about. GEN COETZEE Chairperson, I have not studied every amnesty application. CHAIRPERSON I understand. GEN COETZEE I did not attend it. But my general impression is, Chairperson, that they had decided on their own, knowing that they were not authorised. And that is the motivation for their application for amnesty. CHAIRPERSON No, Mr Coetzee, Mr de Kock's application reads that he had received an instruction from Mr Schoon and Mr Schoon says that he had held discussions with Mr van der Merwe. I don't know whether Mr van der Merwe gave him an instruction or whether they jointly decided or whatever the case may be, but when van der Merwe gave evidence he said he felt that he had the power and the right to continue under these circumstances and he took this decision. He had gone looking for you, or he had thought about contacting you in order to describe the circumstances to you, but unfortunately he says you were on vacation at Margate or somewhere on the south coast and he did not deem it necessary to find anyone else. He says somebody acting in your office was someone by the name of de Wit, at that time. Now you say that you did not feel that you had the right and the power to do it. Considering those circumstances may I ask you once again - exclude the Act because everything that the police had done with regard to murder during those years was illegal, we all know that, could he have thought - this is van der Merwe, that he was authorised to continue, that he had the authority from somewhere? GEN COETZEE Definitely, Chairperson. He could have thought that even in accordance with the Act per se he had acted illegally, that he was authorised to do so under the circumstances. CHAIRPERSON Would you have felt that you were authorised under the circumstances? GEN COETZEE I was not confronted by such a decision. If I think about it, Chairperson, then I have to place myself in the entire milieux and the entire context that had reigned at that time and under those circumstances, as it has been sketched to me, then and where his discussion had joggled me and that I now autonomously recall, I would most probably have taken the same decision. CHAIRPERSON On what basis, that you would also have thought that you were authorised to take such a decision? GEN COETZEE Chairperson, I would like to stick to what is relevant, I do not want to drag up all types of examples here, but I was Chief of Security and I was confronted with an instruction from the Minister who pretended that he had spoken on behalf of he government. That is the evidence I gave in the London bomb. And it is clear that an unlawful instruction was given to me, I knew it, the Minister knew it and my subordinates knew it. But nevertheless, I went against the advice of the then Commissioner who became involved against his better judgement and for all practical reasons, nevertheless I went and executed and had that instruction executed. Those were the circumstances that reigned during that time, Chairperson, and those were the circumstances which were certainly interpreted as such by Gen van der Merwe when he decided that he would give the instruction. MR BERGER You had been approached by Mr van der Merwe shortly before the raid and he given you the information which he subsequently gave you after the raid. Obviously excluding the information that people had been killed. But you know what I'm saying. If he had given you the justification which you gave you after the raid, if he had given you that justification before the raid, would you had given him the go-ahead? GEN COETZEE Honourable Chairperson, that is a hypothetical question, you have to concede that. I can only with the knowledge that I think that I had then and the clear knowledge or information that he would have conveyed to me, I would have had to made a decision. There is a possibility, I'm not saying a possibility, that soon before, it might be a day or two and the other options of which I as a Commissioner had to be aware of, we could go in and bomb we could get the army to launch an attack which, Chairperson, which in my experience in 1982 was quite a fiasco where 40 persons were killed, including women and children. I could have considered South Africa's economic position, its international position. So all those things had to be thought of in ...(indistinct) position to each other and there exists a possibility. CHAIRPERSON Mr Coetzee, we do not want to interrupt you ...(intervention) GEN COETZEE That I would have said yes, go ahead. MR BERGER Now Mr Coetzee, you've given a long explanation ...(intervention) CHAIRPERSON Mr Berger, I think we got the answer at the end of the day. MR BERGER Yes, Chairperson, but the answer is predicated upon if this were the position and that were the position. The fact of the matter is we know exactly what the position was from your point of view, because in January of 1986, having been given all the information, all the relevant information that you speak about, you approved of the raid, did you not? GEN COETZEE No, Chairperson, what I had done, I executed the step that the Act had prescribed to me. I had to inform my Minister, I had to rely on his prescriptions and his instructions. MR BERGER If you have a look at Mr van der Merwe's statement, Exhibit A, the very last page which is the medal memorandum. CHAIRPERSON What exhibit is that? MR BERGER Exhibit A. This is one of the documents that you rely on to refresh your memory, and there it is noted that the recommendation that Mr van der Merwe put together, was approved by the Generals Staff on the 21st of January 1986, and it also had the approval of - I can't make it out but it's the organisation that you were the head of - Compol. GEN COETZEE Compol. It's the abbreviation for the Commissioner of Police. MR BERGER Yes. So this also had the approval of the Commissioner of Police. GEN COETZEE Not at all. You are interpreting it incorrectly. MR BERGER You gave approval but you decided that the South African Police Silver Cross for Bravery should be awarded instead of the award which Mr van der Merwe was proposing and which had been approved by the Generals Staff, which is the South African Police Star for Outstanding Service. That's what happened, isn't it? GEN COETZEE No, Chairperson, the position as to how you should interpret it is that Mr van der Merwe held discussions with me, I went and conveyed this to the Minister verbally, I then had Gen van der Merwe draw up a memorandum - this is a copy, that was meant to go to the Minister of Law and Order and there following on what is proposed here that the higher decoration had to be awarded, I decided Mr Chairperson, that this was my approval and the other one, the other decoration was more fitting. That is the approval that I gave. MR BERGER That's what I said, Mr Coetzee. CHAIRPERSON I think you're speaking past each other here, the Advocate is not referring to the approval of these medals. GEN COETZEE But that is what I am referring to. CHAIRPERSON Yes, he wants to know with regard to the approval of the action. GEN COETZEE No, that it was not approved of in here. CHAIRPERSON No, but please listen carefully. The fact that you had agreed that medals had to be awarded with regard to this incident, he puts it to you that this entails approval of the action, do you follow? GEN COETZEE Chairperson, on Friday I had testified that the award of a decoration in the South African Police Force is basically a neutral act and I want to add to that that today. On both sides of the war, people are walking around with high decorations and that does not mean that the persons who approved of it had given their permission with every act that that man had committed. The fact is here that I had granted permission not to Gen van der Merwe, but to the men who had been involved that he sketched to me were in a dangerous situation and I knew in my heart that at that stage there was a military threat in Lesotho that had exploded later, and I had said that they should be awarded a decoration for bravery that they had done this. Whether their conduct had been lawful or unlawful is not to be judged here. CHAIRPERSON And that is why it was put to you that you had given approval for the incident. GEN COETZEE No, I did not give any approval for the incident. CHAIRPERSON Now I want to ask you then, how could you have agreed that any medal - it matters not what type of medal it was, how could you have awarded a medal to those persons who had launched this attack if you were not in agreement with it? GEN COETZEE Chairperson, I am clearly aware that these decorations, even the one I had said that was lower than the one that was asked for, had to go through the process of to the Minister and eventually to the executive board of the government. CHAIRPERSON But why could you not have stopped it and said "Listen I am the Commissioner, it will not pass me because I do not agree with the incident"? GEN COETZEE Chairperson, I never said that, I said that in all possibilities under the same circumstances that had been sketched, I would have agreed. CHAIRPERSON But Mr Coetzee, let us get to the point directly. Did you or did you not by means of the award of a medal, approve this incident post facto? GEN COETZEE Chairperson, after I had consulted the Minister and after I had heard his opinion and had put my opinion forward, and at least tacitly I expressed my approval. CHAIRPERSON Mr Berger, I don't know if we're going to get much further with it. MR BERGER I will try, Chairperson. MR VISSER ...(indistinct - no microphone) MR BERGER I beg your pardon? MR VISSER I'm saying it's probably not enough for the Attorney-General yet, Chairperson, because I still don't understand, with great respect, and I say this in humility, what these questions have to do with the amnesty application before you. And I object to these questions, Chairperson. CHAIRPERSON Mr Visser, as laborious as it may be, there is a point to be considered here. And what the worth or value of the point at the end of the day's going to be, I'm not too sure. It is intended I would assume, it can't be for any other reason, but an attack on van der Merwe's credibility. MR BERGER Chairperson, I just want to make it clear that I hold no brief for the Attorney-General and that I am not attempting to elicit information which can be used against Mr Coetzee. And in any event, the Act makes it quite clear that any information obtained from these hearings cannot be used against anybody in any proceedings in a Court of law, in any criminal proceedings in a Court of law. That's not my purpose. Mr Coetzee, my purpose is this. I'm trying to establish whether you approved of the raid after the fact. I'll come to before the fact just now, but you see Mr van der Merwe says at 103 in his amnesty application, he says - "At a later stage I personally signed a written recommendation and motivation, to the effect that the members involved in the raid should be awarded the South African Police medal for bravery. This was subsequently approved by the then Commissioner, Gen PJ Coetzee." GEN COETZEE That's right. MR BERGER So that is correct. GEN COETZEE That's entirely correct. MR BERGER Now if we have a look at the motivation for the medals, ...(intervention) CHAIRPERSON Before you get onto the motivation, which was very cryptic, according to van der Merwe, he goes further on page 103 and says that "According to the memo submitted in this regard, Gen Coetzee was fully aware of all the circumstances relating to the incident. The recommendation was discussed by the Generals Staff or concurred, and the medals were subsequently awarded by the Minister of Police, le Grange." That's what he has to say. MR BERGER Yes. You've read that? GEN COETZEE Yes, that is correct. MR BERGER In the motivation for the medals which you saw, there is talk about a highly clandestine - paragraph 2 "... highly clandestine operation on the 20th of December 1985, during which the members themselves were exposed to extreme danger to their lives." Now you knew by the time you awarded the medals or you approved of the medals, let me say that, you knew of all the circumstances. You knew that ANC cadres had been killed in the raid, that Lesotho citizens had been killed in the raid. And I put it to you that is why you approved of the award of the medals. Put another way, if you had learnt that in fact what had happened during the attack was that a church, a house had been targeted and that house actually was a church, and that nine members of a church congregation had been killed during the raid, I wonder whether you would have approved of medals for bravery. Would you have? GEN COETZEE That is highly unlikely. MR BERGER Exactly. Or if they'd blown up a pig pen and killed nine pigs, you wouldn't have approved of an award for bravery, am I right? GEN COETZEE For the pigs? MR BERGER Yes. GEN COETZEE No, that is dubious. MR BERGER Right. I'm just highlighting an absurd situation to show you that when you gave approval for the medals, you must have been giving approval retrospectively for the raid. GEN COETZEE No, Chairperson, it is not necessarily so, this memorandum ...(intervention) CHAIRPERSON We are not referring to necessity, we just want to know what the position was. GEN COETZEE It was intended for the Minister. This memorandum was intended for the Minister. Let us just complete the succession here. After I had informed him of the circumstances and I told him that under the circumstances of which I was aware, after I had been informed, I said that I thought that the medal should be of a lower order, bravery for those men involved. CHAIRPERSON And you approved it. GEN COETZEE Yes, I approved it and this is what I told Gen de Wit, and with that message he went to the Staff Generals. CHAIRPERSON Why did you approve the medals? GEN COETZEE Because according to what was described to me at that stage, the action of the members in Lesotho - because this is a medal for bravery, it is not for judgement or anything like that ...(intervention) CHAIRPERSON Mr Coetzee, I'm not really concerned with what sort of medal it is. GEN COETZEE Then I felt that this was the medal to award him with for bravery. CHAIRPERSON How was he brave? GEN COETZEE Brave enough to enter another country where there was a highly critical situation. He was brave in the sense that he dealt with trained persons there and according to my judgement he was brave in that respect. CHAIRPERSON In the sense that he killed trained ANC persons and not pigs? GEN COETZEE That is correct. JUDGE KHAMPEPE Mr Coetzee, may I interpose? GEN COETZEE Yes, Judge. JUDGE KHAMPEPE Wasn't that bravery pursuant to a decision that had been taken by Mr van der Merwe? GEN COETZEE That's correct. JUDGE KHAMPEPE That's the pointed issue that Mr Berger is trying to cover. GEN COETZEE Yes, Judge. JUDGE KHAMPEPE That by approving the granting of the medals, that meant you approved of the decision that had been taken by Mr van der Merwe. How can you extricate the two? GEN COETZEE Judge, my attitude to that is the fact that afterwards, subsequent, about two three weeks subsequent to the event, I approved medals which were specifically intended for the acts of the members concerned. It must not be construed, Judge, as that I would of necessity have given prior approval of the incursion. And I said that if I was confronted, Judge, after the event and with all the information at my disposal, I would under the circumstances - I said in Afrikaans "'n moontlikheid bestaan", there's a possibility that I would have given that same order. JUDGE KHAMPEPE But the way I've been understanding your evidence is that by the 10th of January 1986, you had been placed in possession of all the facts surrounding and relating to this incident by Mr van der Merwe. Have I understood that piece of evidence incorrectly? GEN COETZEE No, that is quite correct. Afterwards I was placed in possession and I could ask him questions about it and ...(intervention) JUDGE KHAMPEPE That's right. And that was prior to you approving these medals to the footsoldiers, because this approval was approximately after the 10th of January. GEN COETZEE That's correct, a day or two, I think it was a weekend, I'm very sure. I think the 10th or the 13th or the 10th, was a Friday and the 13th the Monday or something like that, I'm not sure of those facts. JUDGE KHAMPEPE Yes. So by the time you approved of the medals, you already were privy to the facts surrounding the raid, you already knew of the circumstances that led to Mr van der Merwe taking the decision which he did in launching the raid in Lesotho. GEN COETZEE That is quite correct, Judge, I already at that stage discussed it with the Minister. JUDGE KHAMPEPE Yes. Mr Berger? MR BERGER Thank you, Judge. And so therefore, Mr Coetzee, given that you wouldn't have approved of medals if a church meeting had been blown up, I'm putting to you that your approval of medals for bravery, it doesn't matter what level or where in the stepladder it fits, the fact that you approved of medals for bravery for this raid against ANC targets, can mean only one thing, is that you gave retrospective approval for the decision to carry out the attack. GEN COETZEE No, I cannot go along with that as it is formulated, Judge, I'm sorry. But what I will say is that obviously at footsoldier level, the fact that you get a medal, could be construed by him that it's approval. MR BERGER Well you see Mr Coetzee, you're trying to have your cake and eat it now. You're saying that if Mr de Kock saw the medals as subsequent approval by the senior brass, that's fair and it's okay, I can understand why he sees it that way, if Mr van der Merwe sees your approval of medals as approval for his decision to launch the raid, that's also fair and understandable, but you, Mr Coetzee, did not mean to indicate approval for the raid when you approved the medals. That's your evidence. GEN COETZEE It's not correct. CHAIRPERSON I'm going to grant you the opportunity once again to respond to this question. Why did you approve any medal with regard to this incident? GEN COETZEE Because, Honourable Chairperson, it was said to me and explained to me and because I also knew from within my own knowledge, that to enter Lesotho under the objective circumstances of that time and to engage in contact with trained ANC soldiers, was a tremendous risk and I felt that such persons who were prepared to do so, should be rewarded. That is why I did it. CHAIRPERSON Yes. And then furthermore, you approved the medals because you wanted to say in other words "Well done men, what you did was right". GEN COETZEE No, let us get the facts straight, I didn't award the medals. CHAIRPERSON Yes, but somewhere along the line you approved it. GEN COETZEE I recommended it. CHAIRPERSON Or at least recommended it then, it doesn't really make that much difference. Why did you then recommend the medals? GEN COETZEE Because I thought that those footsoldiers had acted bravely. CHAIRPERSON Yes, well done men, you have done well. GEN COETZEE Yes, as I had received under other circumstances. CHAIRPERSON In other words then, would I be correct to deduce that the award of these medals would indicate that somewhere you must have taken a decision about this incident ...(intervention) GEN COETZEE A recommendation. CHAIRPERSON Yes, a decision. ... and that you decided that this was right and recommended for the medals to be awarded, is that correct? GEN COETZEE No, Chairperson, after I had received the information and went to the Minister and discussed it with him, after this I received a recommendation which had to go to the Minister, not to me, to the Minister, and in this process I recommended that the men who were involved, should be awarded with medals, those who were there in the combat situation. CHAIRPERSON Let me then ask you this in a strange manner. You're the postman, or was it up to you to decide whether or not this letter or this recommendation would go further to the Minister? GEN COETZEE Naturally I could not have withheld it, I had to make the recommendation, I was obliged, that when this memorandum came I had to take it to the Minister. CHAIRPERSON So you had nothing to do with the decision for these persons to receive medals? GEN COETZEE No, I recommended it. CHAIRPERSON But that's my question. As they state in English, you had to apply your mind. GEN COETZEE Well I would at least have had to say that the medal which was proposed by Gen van der Merwe was in my opinion not appropriate and I said that those men who were involved there had to receive the medal. But I do not with for you to infer from that that I necessarily - well I could have awarded it even if I knew that they had exercised a completely unauthorised operation and that they who were on ground level had been brave. Therefore I would have been able to say "These men put their lives in danger, award them with a medal". CHAIRPERSON Is that the only reason why those medals enjoyed your approval? GEN COETZEE No, not at all. CHAIRPERSON Then you have confused me completely. GEN COETZEE Chairperson, I am really trying to sketch the circumstances. CHAIRPERSON Then let us try a little harder. Why did you think it was correct for these men to receive a medal? GEN COETZEE Because they were brave. CHAIRPERSON And you knew how they had been brave. GEN COETZEE Yes, it was explained to me. CHAIRPERSON And you agreed with it. GEN COETZEE I conveyed the information as it had been put to me. CHAIRPERSON No, I'm referring to your attitude, we will get to what you conveyed later. GEN COETZEE To get to the point, I think that my attitude would have been reasonable positive, I would not have disapproved it. CHAIRPERSON Why not? GEN COETZEE As a result of the reasons that I have mentioned here. CHAIRPERSON So you agreed with the action and you thought that a medal for bravery would be an appropriate medal to be awarded for something that you agreed with? GEN COETZEE I said, Chairperson, that most possibly, I cannot evaluate today how I would have felt, but most possibly I would have agreed with the award. If it is interpreted today that I agreed back then and said to the Minister this was excellent action by these men and so on and so forth, that is not what happened. CHAIRPERSON If you didn't agree that they had conducted themselves well and that they had achieved their goals, you would not have made any recommendations? GEN COETZEE No, not for bravery. CHAIRPERSON You would not have made any recommendations. GEN COETZEE No, I wouldn't have. CHAIRPERSON You would have said no? GEN COETZEE That is correct. MR BERGER Well Mr Coetzee, it's really very simple. You wouldn't have approved of medals for bravery ...(intervention) CHAIRPERSON Mr Berger, he just said so. MR BERGER Then let me ask you this simple question. It's clear now that once you were informed of all the facts, you approved of the decision to attack the ANC base in Lesotho. That much is clear, isn't it? GEN COETZEE No, I don't think that that is a necessary conclusion. I have qualified it. MR BERGER No, but Mr Coetzee you say not "nie noodwendig nie", but we have you, you're here, you can tell us, did you or did you not approve of the instruction after you came to hear of all the facts? GEN COETZEE I cannot give you a meaningful yes or no or yes but, or no but, answer to that because I would not be able to remember. I will now have to interpret and infer at the hand of what has been submitted to me and my recollection. CHAIRPERSON Mr Berger, can we get onto something else now, I think you've exhausted all your attempts to get what you wanted. MR BERGER Thank you, Chairperson. You see, Mr Coetzee, what I want to put to you, and this is what I've been leading up to all the time, and that is that not only did you approve of the raid after the fact but you also approved of the raid before the fact. CHAIRPERSON On what basis can you put that, Mr Berger? MR BERGER Well that's what I'm going to work through now, so that my learned friend knows what the relevance of my questions are. CHAIRPERSON I'm in the same boat. MR BERGER I was often told by Judge Nugent in the Shell House inquest, "Make the proposition, if the witness agrees with you, that's the shortcut, if the witness disagrees with you, then you go the long route". CHAIRPERSON ...(indistinct - no microphone) system. MR BERGER Thank you. On the 21st of October you attended a State Security Council meeting where guidelines were adopted in relation to cross-border raids, carried out by the SADF, am I correct? GEN COETZEE Yes, where it was submitted. MR BERGER So you were ...(intervention) GEN COETZEE By the Defence Force, by the Secretariat. MR BERGER Yes. You were aware before the end of October 1985, that if the SADF was to carry out cross-border operations, overt or covert or clandestine or whatever, that there were certain guidelines which had to be adhered to, certain people had to be informed so that South Africa wouldn't be unnecessarily embarrassed internationally. You were privy to that whole debate. GEN COETZEE Chairperson, I do not wish to invite an exhaustive debate once more, but that was a departmental guideline for the Defence Force. Initially they submitted it to the Working Committee before October, thereafter it was given to the Secretariat of the SSC. One would not receive it before the time or before the meeting, it would be on the table and it would be discussed. One would also not receive it subsequently, one would receive only the extracts from that decision for one's specific department, it was not of application to the South African Police. There has been no reference to the South African Police therein, we did not have such guidelines. And I have testified extensively about this previously. MR BERGER Mr Coetzee, if you will just stick to my question, I'm coming to the police. I'm trying to do this quickly but discretely. I don't mean discretely, I mean in discrete chunks. The memorandum to the State Security Council, was circulated to all members of the State Security Council, of which you were one ...(intervention) GEN COETZEE On the day of the meeting. MR BERGER No, on the 17th of October 1984, four days before the meeting. If you have a look in bundle 3 at page 59. GEN COETZEE Yes, that is correct. MR BERGER You will see there a letter from the Secretary of the State Security Council to all members of the State Security Council, dated 17 October 1985. GEN COETZEE Correct. MR BERGER And this was to be placed on the table for discussion four days later. GEN COETZEE Correct. MR BERGER Right. And my only question to you is, you were privy to this discussion at the State Security Council, when the whole question of guidelines governing the control of the South African Defence Force in cross-border operations, was discussed. GEN COETZEE Yes, Chairperson, before it would have been sent to me, I would have been made aware of this at the Working Committee. I was aware of it. MR BERGER Even better. And this discussion included overt operations as well as covert operations and clandestine operations. GEN COETZEE Everything for the South African Defence Force. MR BERGER Now you say that there were no such similar guidelines for the South African Police. GEN COETZEE Such a document does not exist, at least not that I am aware of, until my retirement in 1987. MR BERGER Well let's leave aside the document. Surely if the State Security Council is going to go to such lengths to regulate all conduct of the South African Defence Force in cross-border operations, whether legal or illegal, surely the State Security Council would have been concerned with similar conduct on the part of the South African Police. MR VISSER Chairperson, has it been established in the evidence before this Committee, that any of those guidelines to which reference is now made, concerned illegal covert operations? Has that been established? Because if it hasn't been established, then my learned friend is putting an unfair question to the witness. MR BERGER I asked Mr Coetzee two questions ago, whether it governed overt, covert and clandestine operations of the South African Defence Force, and Mr Coetzee's answer was "Yes, all operations of the South African Defence Force." I would have thought that that established it in the evidence. But if that's not enough, if we look at the document itself at page 62 under the heading "Special Operations", there is reference to covert operations and clandestine operations, and covert operations are defined as secret operations where the conduct cannot be traced back and should not be traced back to South Africa. MR VISSER But with respect, Chairperson, that's only half the point. The point is, the evidence of van der Merwe concerned illegal operations ...(intervention) CHAIRPERSON Mr Visser, I've indicated to you a little while ago that I'm not very interested in whether these things can classified as legal or illegal. Let me try to help. Mr Coetzee, when was the London bomb placed, the bomb for which you applied for amnesty? GEN COETZEE Chairperson, I would just like to recall this. It was while I was the Security head, briefly after I became he Security head, so it was in 1985. CHAIRPERSON ...(indistinct - no microphone) GEN COETZEE Yes, it was a long time before this incident. CHAIRPERSON Before the guidelines became available? GEN COETZEE Yes, before the guidelines for the Defence Force became available. CHAIRPERSON So within the context of the following, let me just put it to you clearly, when these guidelines were discussed you realised, you knew that the police were also guilty of cross-border explosions. GEN COETZEE Yes, Chairperson. CHAIRPERSON And I think the way that I understand the question of the Advocate, it is that if this is the case and if the guidelines as intended, were only of application to the Defence Force, and you were aware of the fact that the police was also launching similar attacks, did it not occur to you or didn't you think about formulating similar guidelines for the police? GEN COETZEE No, Chairperson, because the London bomb was a singular event or matter in which I was involved and I didn't think that a pattern of such actions was forming, which would then require extremely secret guidelines. CHAIRPERSON You must have known prior to or subsequent to the attack, of attacks which took place between '82 and '85. GEN COETZEE Yes, I must have known of some of them. CHAIRPERSON So it is not only the singular incident that the police was involved in. GEN COETZEE That's correct. CHAIRPERSON So the pattern that you have referred to must have started forming by the time the guidelines for the army came to light. GEN COETZEE Yes, Chairperson, in retrospect I would not be able to tell you that I was really aware of police action. For the police it was illegal, I could never have gone to the SSC and requested illegal guidelines. CHAIRPERSON No, we are not referring to anybody else, we're referring to you as Commissioner, you knew of illegal police actions by the police, whether internal or external. GEN COETZEE I did not have individual knowledge of such matters. CHAIRPERSON You were the head of the Police. GEN COETZEE Yes. CHAIRPERSON And how could you not have known? GEN COETZEE But I told you, Chairperson, that I wanted the individualisation of the cases, in other words, which I knew of and those that I did not know of. CHAIRPERSON No, we're referring to the pattern or - what are the words that you just used, a custom, for the police being involved in illegal actions. GEN COETZEE To illegal actions? CHAIRPERSON Illegal. GEN COETZEE No, Chairperson. CHAIRPERSON Whether internal or external. GEN COETZEE No, I was not aware of that. CHAIRPERSON Not at all? GEN COETZEE Chairperson, ...(intervention) CHAIRPERSON Only the London bomb? GEN COETZEE Yes, I knew about that because I myself was involved, but with regard to other actions it was - and I have already stated this, it was approved by the SSC or by a Minister, as far as I am concerned. I do not regard this as something which would contribute to the creation of a pattern. CHAIRPERSON Let us begin again. You stated that you were aware of cases in which the police became involved in illegal actions, regardless of whether or not this was internal or external to the country. You have already testified to that effect. GEN COETZEE Yes, Chairperson, there were cases which took place long before I became the Commissioner, during which it was alleged and proven ultimately by interdicts that persons had been abducted abroad. Over this period of time there were all sorts of allegations, whether supported or unsubstantiated. I cannot tell in all honesty today that a pattern developed accordingly, and in terms of this I would have to seek out guidelines. CHAIRPERSON How many incidents would you have thought were enough to say "Now we need guidelines"? ...(transcriber's interpretation) GEN COETZEE No, Chairperson, it wasn't only about the number of incidents, it was also about the culture of the police. You heard that it was a government guideline for the police not to cross the border. CHAIRPERSON Yes, we know, but they did, they crossed the border. GEN COETZEE And I wrestled with that problem, particularly in South West Africa. I do not wish to waste your time, Chairperson, but it was said to me regularly that the police would follow up soldiers of SWAPO over the border and they said "We can't stop at the border". I experienced such problems very regularly, but I never had any concrete proof which was reported to me or conveyed to me directly, indicating that we had established a pattern. There would have been the exception when it comes to Swaziland, where I by means of negotiations of the Swaziland government, placed a senior office in Swaziland as a main link with their police on the highest level and ultimately an understanding developed that we could cross their border, that they would not impede our course. And at a certain stage they even gave us a map of the country, saying you may act in this part of the country. CHAIRPERSON So whatever the case may have been at that stage, you maintain that you did not regard it as necessary to formulate guidelines for the police? GEN COETZEE No, because the police found their guidelines within the Act. CHAIRPERSON Yes. MR BERGER Well, in January of 1986, you knew that Mr van der Merwe had gone beyond the Act, the Police Act. GEN COETZEE Entirely correct, yes. MR BERGER Did you set up any guidelines at any time during 1986 or 1987? GEN COETZEE I then retired, Chairperson. MR BERGER I know that you retired in 1987, that's why I ask up to 1987. At any time from January 1986 until the time that you retired, did you find it necessary to draw up any guidelines for cross-border action by the police? You knew it had happened, what was to stop it from happening again? GEN COETZEE No, Chairperson, I did not think that that one incident which had been reported to me, which I necessarily reported to my Minister, that here I will now lay guidelines for the police that has to be approved by the State Security Council. I did not think it was necessary. MR BERGER Why ever not? Here was unlawful conduct on the part of a senior officer of the South African Police ...(intervention). GEN COETZEE No, Chairperson, I have already answered that with regard to me at that stage with the information available to me and the reaction of the Minister and thereafter the government, through the process of the award of the decoration that I had inferred that they had approved, I inferred, no-one told me, and I did not think that now because of this once- off incident that may have possibly been a legal action, it could have been an urgent situation that now I have to go and draw up guidelines for the police. CHAIRPERSON Mr Coetzee, when was Vlakplaas founded? GEN COETZEE Chairperson, Vlakplaas was established approximately in 1980. CHAIRPERSON For what? GEN COETZEE Chairperson, the instructions for what those operatives had to do is embodied in my document here, if you would like to see it. CHAIRPERSON Tell me please. GEN COETZEE This was, Chairperson, in South Africa soldiers of the ANC came in, they used false identification documents, they were trained persons, there was no way to identify them except for the persons who were trained with them. That was the motivation and that is what the memorandum said to the Minister and that is when we said that we shall make use of the ANC soldiers that had been arrested. And in every Court case much evidence is led and many of them afterwards were murdered - I do have the incidents here, and we decided that the only manner in which we could effectively identify these insurgents is by means of physical identification, and that was the original instruction. If afterwards whether it has changed character but these are the instruction that I had issues to the operatives there and to the Commanders of the Security Branches right across the country. So for them who had acted, they were clear and legal instructions. CHAIRPERSON They should not have done anything illegally? GEN COETZEE I have already said that if I had become aware of any unlawful actions, I would have had them charged. JUDGE KHAMPEPE But on that score, Mr Coetzee, no-one is trying to attach any particular blame on you as an individual. By 1986, you must have been aware of the many cross-border operations that the police were involved in, particularly in places like Swaziland ... GEN COETZEE Yes. JUDGE KHAMPEPE And one immediately has recall to the killing of Mr Zweli Nyanda, who was an ANC solider, quite a prominent member of the ANC in Swaziland, particularly by the police. And I think in that case, I'm not sure, I don't think Mr van der Merwe was involved as a Commander of the Security Police, but you must have been a Commissioner by then when Mr Nyanda was killed, and the abduction of Mr Sedibe. There are quite a number of instances that one can recall, which showed quite a clear pattern of the police' involvement in cross-border operations by 1986, at least. So if your response is that it was not yet customary by 1985, for the police to be involved in cross-border operations, surely there must have been an indication by then because Mr Nyanda had already been killed by 1985. I'm speaking now under correction, I think his death occurred in 1984, and it was a prominent incident. GEN COETZEE Do you want me to respond, Judge? JUDGE KHAMPEPE Yes. GEN COETZEE Thank you very much, Judge. Judge, I must abinitio say that I've got no personal knowledge of the events that you're referring to and whether there was amnesty granted or considered for those people and what their story is. Whether they went in illegally and did it or whether there was any higher involvement, I don't know that. But what I've said in the case of Swaziland, that in the case of Swaziland I was privy to go to them and to make special arrangements, like I've tried in the case of Lesotho, for the South African Police to be involved there in Swaziland, which was granted by that government ...(intervention) JUDGE KHAMPEPE Yes, I'm aware of that as well. GEN COETZEE ...(indistinct) those police officers. JUDGE KHAMPEPE Yes. There also - the very people that you placed in Swaziland - I just can't recall the name offhand, I've been trying to put something in my mind, I don't think it's Mr van Dyk, but the person that you put in Swaziland for instance to liaise with the Commissioner of Police in Swaziland, there is an incident of Mr Sedibe where they went beyond, I think, your parameters, they abducted Mr Sedibe. I mean that surely should have given you an indication that they thought they had more than authority, I mean they had authority to be involved in such operations. GEN COETZEE They may have thought so, Judge, that is so, but the one instance where it was reported to me particularly that there was an abduction, and I've given that evidence, I went and I was paraded before the King of Swaziland, who eventually said no, he didn't want to speak to me but I sat the whole day there because he was objecting to this, he said it looks as if they're becoming just a tool of South Africa. But nevertheless, the officer that I'm referring to, Judge, is not van Dyk and he was seconded, officially seconded through Foreign Affairs to the Police in Swaziland and he sat in at the highest level about discussions there and he was the liaison officer there with the security police, of which I was no longer at that stage the Commander. JUDGE KHAMPEPE So what you are saying is that by 1985 you were not aware of the police' involvement in cross-border operations. GEN COETZEE Unless it was reported to me. CHAIRPERSON No, it's not a question of whether it was reported to you, were you or were you not? GEN COETZEE I do not want to fall into the trap of the previous ...(indistinct), I suspected something. I've already given, Mr Chairman, my view that one must not fall into the situation where you are like the three monkeys, you never heard anything, you never said anything and you never spoke anything. That is not my position, my position is ...(intervention) CHAIRPERSON What did you see and what did you hear and what did you say? GEN COETZEE I think every observer in South Africa, Sir - you have quite rightly said, Sir, who do they think, who did they think were doing these things? The politicians, who do they think, who did they think were doing these things? CHAIRPERSON ...(indistinct) you that question. GEN COETZEE Well Sir, there were certain - I think the answer to that question lies most likely in the answer that Mr Leon Wessels gave at an amnesty hearing or at the Commission, where he said "We knew, but we didn't want to know". CHAIRPERSON How does that apply to you also, because you say you are not in a position to say anything about whether you knew by 1986, whether the police was committing anything illegal and therefore you didn't think it necessary because of a lack of pattern, to consider whether guidelines must be implemented. GEN COETZEE That is so, Chairperson, but I also said there were many factors why I wouldn't have, I wouldn't have formulated a set of guidelines, first discuss it throughout the police with all the Commanders and then submit it to the State Security Council. I do not want to dwell on that, Sir, but ...(intervention) CHAIRPERSON Well we're not even talking about sending it to the State Security Council, why not an internal guideline amongst the police, as coming from the Commissioner "This is what must happen". GEN COETZEE But there were very many instructions emanating from police headquarters, stressing that they must not involve themselves in illegal activities. JUDGE KHAMPEPE So you did not think it prudent to even come with internal guidelines, notwithstanding the fact that you already had the suspicion that the police were getting themselves involved in such operations? GEN COETZEE Yes, that is quite right, Judge. Although I suspected, I had no particular knowledge - and I would like to be confronted with the particular incident itself, but as a general observation, yes, someone - what's the word used, was it the fairies, someone was doing it who was on our side, that we were unaware of. I must have suspected that. JUDGE KHAMPEPE But you didn't think it prudent to probe, to find out who was actually doing it, is it your own police. GEN COETZEE Madam Judge, in those cases where I received information, direct information, I was confronted with evidence, I acted. JUDGE KHAMPEPE Was there an incident such as that in which you were given evidence of the police involvement in cross-border operations, where you took some action? GEN COETZEE Yes, yes. JUDGE KHAMPEPE When was that? GEN COETZEE This is when - the case where a man by the name of Mr Pillay, I think, was abducted from Swaziland, he was abducted, and when I discovered - it was reported to me officially, I took disciplinary steps and had the Commander of that unit removed from that job. JUDGE KHAMPEPE In what year approximately, Mr Coetzee? GEN COETZEE I beg your pardon? JUDGE KHAMPEPE In what year was this approximately? GEN COETZEE I think it was approximately in '81/'82. JUDGE KHAMPEPE Thank you, Mr Berger. MR BERGER Thank you, Judge. Mr Coetzee, let's leave the fairies out of this and let's concentrate on the people who you had suspicions about. You say you were not one of the three monkeys? GEN COETZEE That's right. MR BERGER So you suspected - let's leave aside hard evidence, you suspected that the police or that members of the police were involving themselves in illegal cross-border activity. GEN COETZEE Yes, the fact that you're gathering information in another country is an illegal activity. MR BERGER Well let's - you know what I'm referring to, you suspected that members of the police were involving themselves in murders across the border. GEN COETZEE No. What I'm saying is I suspected that South Africa, by all its arms, were committing illegal acts. MR BERGER Yes, of murder. GEN COETZEE Of murder is you - political murder outside the borders of South Africa. MR BERGER Including members of the police. GEN COETZEE Yes, I could have suspected that also. MR BERGER Right. Now if you were the Commissioner of Police and you suspected that, then it stands to reason that you would have issued guidelines, whether written or not I'm not concerned with, but you would have issued guidelines setting out the circumstances under which members of the police could participate in such political murders. GEN COETZEE No, Mr Chairman. In other words, what you say to me, Sir, is that I must have issued guidelines for the police of an unlawful nature. MR BERGER Well it's either that, either you - the fact is you suspected that the police amongst others, were involving themselves in murders across the borders in various neighbouring states. So either you as Commissioner of Police were going to regulate the position and say that only under the following circumstances, be it emergency or whatever, or only with the approval of certain people can these actions be undertaken, or as Commissioner of Police you were just going to allow members of the police force, carte blanche to do whatever they thought fit in the circumstances. Which one was it? GEN COETZEE No, you've got two alternatives against one another now, that was not the position. The position is, I could not give guidelines or instructions of an illegal nature, we know that. I could not do that. MR BERGER So you then just allowed things, people to have carte blanche. GEN COETZEE If, if I became aware of a specific incident that a member of the police has committed an illegal act, definitely I took steps that were within my power. But I couldn't on suspicions, suspicions, now issue guidelines besides which I did, go onto, I think it was television, meant for the whole police, instructions meant for the whole police which I suppose will still be available at police headquarters "You people, you people, if you do that you are taking the law into your own hands and you must bear those consequences, I cannot protect you." CHAIRPERSON Why couldn't you do that? GEN COETZEE I beg your pardon, Sir? CHAIRPERSON Why didn't you do that? As Commissioner of Police one would have expected that. GEN COETZEE I did that, Sir, I did that at ...(intervention) CHAIRPERSON Oh, I'm sorry, I thought you didn't. GEN COETZEE No, at conferences Sir, of the Deputy Commissioner's of the Police throughout the country, at conferences of Security Commanders, where I officiated, I warned, directly warned against that type of thing if it existed. MR BERGER So Mr van der Merwe would have known in December 1985, that if he acted outside the provisions of the Police Act, he could expect your wrath? GEN COETZEE He could have expected, Sir, he could have expected. If he had portrayed an incident to me as per se illegal, per se illegal, I would have gone to the Minister and said "Listen, we must open a dossier, we must investigate that irrespective of the political consequences." This is not what was portrayed to me, there was justification. He portrayed justification to me. I conveyed his message as neutral and as objectively as I could to the Minister. CHAIRPERSON Mr Coetzee, per se, what he did was illegal, he left the country and he gave an order that certain things must be done outside the country. That's what you've been saying the whole day. GEN COETZEE Yes, Sir, but I said that could have construed in law, that could have - I don't say - I do not want to involve myself into legal arguments Sir, but I say that he could have portrayed his reasoning, his argument why it was done, to me, to me, in such a light which I conveyed to the Minister, that the Minister when he was the man who must convey this message further-on, construed it as an emergency situation "'n noodweer situasie". Here they're confronted with people who can at any moment enter the country to commit murder, they cannot do anything else to stop this, and this is what they did. This is what I conveyed to the Minister. It's up to him to go to his colleagues, to go to his Chairman and to come back to me and say "No, no, no, no, Coetzee, I've consulted the legal advisors, I've consulted my colleague, Minister of Justice, and they feel no, this is absolutely clear-cut an offence." CHAIRPERSON Did you now really expect his colleagues to tell him that? - after the fact. GEN COETZEE Well Sir, why do I then inform him unless I expect him, which - and I've said so, Sir, I've said so, the process of granting the decoration must by itself go higher up than the Minister. CHAIRPERSON Yes, Mr Berger. MR BERGER Thank you, Judge. As at the 3rd of December 1985, you were still at police headquarters in Pretoria. GEN COETZEE I cannot comment on that, it's very unlikely. I remember the 2nd I attended, I think, the last State Security Council meeting in the Transvaal and then subsequently - and I've got to construe it from my own memory, I think I went to either the Durban Tattoo where police were involved in demonstrations there, or not demonstrations, an exhibit, I attended also as far -I must say that I'm just recollecting that, the traffic officers or the governing body of the traffic officers' meeting for about a week also somewhere in Natal. I also attended, as far as I'm concerned, a meeting of the Traffic Safety Board, which was a statutory body. Or I could have attended end-of-the-year parties throughout the country, even in South West Africa. It's impossible for me to comment. It's very unlikely that I would have been in my office. MR BERGER Your memory is quite good after all of these years. GEN COETZEE No, I say I could have. This is what I did in the Decembers whilst I was Commissioner, that's why I remember that, Sir. MR BERGER Well in that December, the security police who served under you had been receiving information from as early a November, that there were ANC soldiers assembling in Lesotho "wat gereed is", who are ready to "om teen die RSA op te tree", who are ready to act against South Africa, ready to launch attacks against South Africa. That was the information that the security police was in possession of from November 1985. GEN COETZEE Yes, that's quite possible, Sir. MR BERGER And you would have had the same information, you would have been briefed on that. GEN COETZEE Yes, I would have been briefed by Security minutes in the police, that there is such a threat. That is why it became known as a prospective "black Xmas". MR BERGER Okay. So you knew before you went on holiday that there was this so-called prospective black Xmas feared by the security police. GEN COETZEE Yes, I knew that. I've been dealing, and I've said it, with Lesotho since the days of my own Command of the Security Branch. MR BERGER And according to Mr van der Merwe, the request from the police to Foreign Affairs had predated this CIC meeting of the 3rd of December. He says that already, before this meeting, there had been a request from the police to Foreign Affairs that they should inform the Lesotho government urgently of this threat and tell them, warn them, that if they didn't take action, then South Africa would take the necessary action. GEN COETZEE Sir, I may be under a wrong impression, but I think that was done at the CIC meeting of the 3rd ...(intervention) MR BERGER No, you're under the wrong impression, according to Mr van der Merwe that request pre-dated the meeting of the 3rd of December. In other words you as Commissioner of Police, would have been aware, before you left the office you would have been aware of this threat in Lesotho and you would have been aware of the request by the police to Foreign Affairs, to warn Lesotho that if they didn't do anything, South Africa, ie the police, because the threat came from the police, would do something about it. GEN COETZEE No, I would have been aware, Sir, quite correctly, of a prospective threat from Lesotho, that I would have been aware. The fact that at CIC or at any other meeting I never, never had meetings with the Director-General of Foreign Affairs or with the Army about it, so I wasn't aware that there was a warning issued at some stage to ...(indistinct). MR BERGER Mr Coetzee, how is that possible? You are the Commissioner of Police, there are warnings of a black Xmas in December 1985, the ANC has cadres armed and ready to attack South Africa from Lesotho, the police request Foreign Affairs to take an international step to inform Lesotho that if they don't act, then South Africa is going to act and you as the Commissioner of Police, know nothing about that threat? GEN COETZEE I don't, Sir. I didn't say I know nothing of the threat ...(intervention) MR BERGER The threat by the police. GEN COETZEE No, I wasn't informed at that stage that there was a warning by the police or a threat by the police, because the structure where this was done or should have been done, was an inter-departmental structure where I did not serve. So unless someone says that they came to me specifically before that and say that we've now suggested a warning, I would have not known that. It is possible, there are very many possibilities and that's why it seems that there is some confusion. Branch National Interpretation, that they have been informed and that they were involved I don't know, but I was unaware before I went on vacation, that Lesotho in particular had been warned. MR BERGER How is it possible that the police can be warning a foreign country, obviously through Foreign Affairs, but the warning comes from the police, the department which you head and the department head knows nothing about the warning? How is that possible? GEN COETZEE Well it's a possibility that I wasn't informed, that's ...(intervention) MR BERGER It's highly improbable. GEN COETZEE No, no, I cannot comment upon it, the fact is there were structures to deal with this type of case. If it was done and if there was an objection to that, I would have received a memorandum from my Minister to say that Minister has communicated with him, what nonsense is this? So I cannot really cogently now comment on that. MR BERGER You then go on holiday to the south coast of the then Natal. GEN COETZEE That's right. MR BERGER With your family. GEN COETZEE That's right. MR BERGER Wife and children. GEN COETZEE Yes. MR BERGER And you holiday there merrily without once ...(intervention) CHAIRPERSON It was after all Xmas time. MR BERGER It was, but here we have the Commissioner of Police who is aware of this threat of a black ...(intervention) CHAIRPERSON I'm talking about being merry. MR BERGER And gay, but we decided to leave the fairies out of it. Mr Coetzee, you do not for one moment think of contacting police headquarters in Pretoria, to find out what has happened about this threat. GEN COETZEE If, Mr Chairman, I was worried about threats emanating from various sources against South Africa, their possibilities and their probabilities, I would never have gone on holiday, I would have remained in my office without ever stepping out of it, point one. Point two is, at the place where I holiday'd - and may I mention this on the side, I'm a teetotaller, I don't drink, so I couldn't be very gay or merry - where I was I also had a lot of duties to perform and people knew where I was, it wasn't for me to take the initiative and phone police headquarters or - a phone I couldn't use, or get someone to communicate with them by messenger or anything of that nature. If it was urgent, very urgent ...(intervention) MR BERGER You could have been contacted. GEN COETZEE I was not out of the country, that decision, that discretion had to be exercised by the man with the knowledge. I wasn't contacted. MR BERGER And who was the man with the knowledge? GEN COETZEE The man with the knowledge, either was Gen van der Merwe or his immediate superior who was within a week of being transferred. MR BERGER Chairperson, it's 1 o'clock, should we take the adjournment now? CHAIRPERSON Mr Berger, how long do you think you're going to be? MACHINE SWITCHED OFF COMMITTEE ADJOURNS ON RESUMPTION WILLEM HELM JOHANNES COETZEE (s.u.o.) CROSS-EXAMINATION BY MR BERGER (Cont) Thank you, Chairperson. Mr Coetzee, you remember the evidence of Mr van der Merwe, that on top of the evidence that he had that there were ANC cadres in Lesotho who were ready to act against South Africa, on top of that came evidence during the first week of December 1985 - and I'm reading from that Situation Report, Special Situation Report, that - "A usually reliable source during the first week of December 1985, reported a number of AK47 rifles and unidentified round objects, presumably landmines, in the possession of an MK terrorist. This terrorist stated that he and three other cohorts would travel to Bloemfontein and Kimberley before Xmas, to work there." GEN COETZEE I see that it is contained in the Special Situation Report of the 17th of December. MR BERGER But I don't think Mr van der Merwe suggested that that was the first time he got to hear of the information. Let me ask you the question. Whilst there doesn't appear to be much difference between seeing some AK47s and handgrenades or landmines and a statement that there were ANC cadres in Lesotho, ready to act against South Africa, leave that aside, were you ever informed about the imminent threat over the Xmas period to lives inside South Africa? GEN COETZEE Chairperson, not in definitive terms, I was informed in general about the situation in Lesotho. MR BERGER Okay, so before you went on holiday you were aware, generally, that there was an imminent threat posed to South African citizens from ANC cadres positioned in Lesotho. GEN COETZEE In general. MR BERGER Yes. I'm not saying that you were informed of a specific group that was about to attack, but you were aware of an imminent threat against South Africa, from ANC soldiers based in Lesotho. GEN COETZEE Yes, Chairperson. MR BERGER And you were also aware that that imminent threat was likely to occur or to materialise around the Xmas period, hence the fear of a black Xmas. GEN COETZEE Chairperson, I think even in the newspaper there was speculation about the black Xmas, so exactly where and when someone had come to me and said there would be a black Xmas, I would not like to constitute that here today. But in general I was informed of the presence of ANC soldiers in Lesotho over that period, the period preceding that could lead to acts of violence in December, or that it could culminate during that period. In general I knew that. MR BERGER Because that was the information that your department had conveyed to Foreign Affairs, to say "Please inform Lesotho about this because if they don't act, we are going to act." GEN COETZEE Honourable Chairperson, unless you do not understand that your department means the office of the Commissioner, the Security Head Office thought it appropriate to use a cover letter to report to Foreign Affairs first and then to address the matter to the CIC. MR BERGER: Well surely there was coordination between the security police headquarters and your department. GEN COETZEE Chairperson, the position was there was a Staff Generals meeting once every 14 days, sometimes once a week, of which I was the Chairperson, during which every departmental head from the police would report. Now it would depend upon whether or not he would have reported about it pertinently during such a meeting. MR BERGER And you can't remember? GEN COETZEE No, by nature of the matter, I cannot recall, one would have to consult the minutes. MR BERGER You mentioned on Friday to the Committee that the importance of the CIC lay not in its official status, but in the status of the personalities who served on the CIC, do you remember that? GEN COETZEE Honourable Chairperson, I said that the fact that CIC of which I was one of the founder members, was a non-statutory body with no executive powers, was not intended as a toothless body but due to the persons who served on the body, such as Military Intelligence, the head or the D-G of Foreign Affairs, the D-G of the State President's office who was specifically tasked with security matters, he was the head of the Intelligence Services of South Africa, that was Dr Barnard, so that fact proves to me that it was indeed not a toothless body. MR BERGER Would it be correct to say that Dr Barnard had direct access to the State President? GEN COETZEE Well as the departmental head, I had direct access to my Minister, almost on a daily basis, so I would assume that in his case that was also the position. However, I do not have firsthand information which would confirm this. MR BERGER Well if Mr van der Merwe can testify that he would have expected Dr Barnard to take the information through to the State President, I assume you too can testify as to the close relationship between the State President and Dr Barnard. Or is it that Mr van der Merwe knows more about that relationship than you do? GEN COETZEE No, Honourable Chairperson, I would agree that there was an intimate working relationship between the former State President and his D-G, that to me was normal. MR BERGER That's PW Botha and Dr Barnard? GEN COETZEE That would have been normal to me. MR BERGER And your evidence is that at no stage during your time, from the 8th or the 9th of December until the 20th of December, or the 19th of December, at no stage during that time when you were in Port Edward, did anybody phone you to inform you of the security situation regarding Lesotho. GEN COETZEE Nobody contacted me during that period. MR BERGER And at no stage during that period did you contact anyone in your department or in the security police, to enquire about the security situation regarding Lesotho. GEN COETZEE Not that I can recall. MR BERGER And the activities of - or your activities, activities which you should have carried out, but for the fact that you were on leave, were being carried out by Mr de Wit, is that correct? GEN COETZEE Yes, as the Commissioner of Police in such a short period of time they would not have appointed an acting Commissioner, but he took over, not necessarily as the Commissioner, but as the Commander of Police. MR BERGER And according to Mr van der Merwe, Mr de Wit knew absolutely nothing about the security situation regarding Lesotho or any of the other neighbouring states. GEN COETZEE I think, Honourable Chairperson, if he says that he would have known absolutely nothing, I would differ from that because he was at the Staff Generals meeting where submissions were made, but he wouldn't have had intimate knowledge because his background wouldn't lend itself to that. MR BERGER He didn't have the background that you had. GEN COETZEE That is entirely correct. MR BERGER And so therefore it would have been pointless to consult him on any action that was being planned against Lesotho. GEN COETZEE With respect, Chairperson, I am being asked to provide definite answers and I do not know whether it would be utterly useless to do that, that was left to one's own judgement, but I do not wish to comment on that. I found Gen de Wit to be a well-experienced officer who performed his tasks effectively and whatever motivated Mr van der Merwe not to tell him, could be in my opinion, the fact that he didn't have sufficient background or that he was ever in Lesotho, while I had been linked intimately, or involved intimately with the PK Bridge Summit between the President of Lesotho and the former President. So I was intimately involved in my capacity as the head of security, with the circumstances there. MR BERGER And Mr van der Merwe knew that as well, didn't he? GEN COETZEE Yes, in some of the cases when he was the Commander in Bloemfontein, before he left for South West Africa, he was with me upon occasion at conferences of the Lesotho police officers and their Ministers of Foreign Affairs. So he knew that I had an intimate knowledge regarding the personalities, the circumstances and the viewpoints of Lesotho pertaining to these matters. MR BERGER You see what I want to put to you, Mr Coetzee, is that in the circumstances that you've just sketched and given all the evidence that we've heard, given your intimate knowledge of Lesotho, it is highly improbable that Mr van der Merwe would not have spoken to you before deciding to authorise the attack. GEN COETZEE With respect, Mr Berger, I would differ from that completely, also as a result of my police experience, that there was apathy regarding police officers who had been on leave only once a year, who had to be saddled up with situations which demanded of them to return to work to enter into debates and so forth. In either event, I was not informed. MR BERGER Mr Coetzee, we are dealing here with an event that potentially had huge international ramifications and you're saying that there wasn't even a telephone call put through to you. GEN COETZEE It would not have been a telephone call. If he had wanted to communicate with me, his only resort would have been to drive there or to send a highly reliable senior officer to me or - and this I would have recalled, Chairperson, if an officer an officer had come to me with a, or an encoded message from Gen van der Merwe, I would have recalled that. Either that or if he had arrived there himself, or if he had telephoned and said I need to see you urgently, I would have remember that. MR BERGER I thought you were easily contactable and if Mr van der Merwe had wanted to discuss the planned attack with you, he could have. GEN COETZEE No, I don't think that there is an allegation that I was easily reachable. I can tell you that it was very difficult to reach me in Port Edward. CHAIRPERSON But Mr Coetzee, when you commenced your evidence you said that you hadn't left the country, that people could still have reached you. GEN COETZEE Yes, that is entirely correct, under the circumstances. CHAIRPERSON So the impression that you created was that it was easy to reach you. GEN COETZEE Yes, in that sense, physically it was easy to get hold of me. CHAIRPERSON Then what are we arguing about? GEN COETZEE The only point that I wish to make is that if something like that had happened, the sensitivity of such information would have required an act which I would have remembered. MR BERGER Mr Coetzee, you said something on Friday which I found rather odd, you said you wouldn't have expected Mr van der Merwe to contact you before the raid, because that would have put me in an "uiters ongemaklike posisie." Do you remember that evidence? GEN COETZEE Yes, that is entirely correct. MR BERGER I don't understand that evidence, could you explain that? GEN COETZEE Yes. In a nutshell, what he had to bring to me or request permission for was a definite, at that stage, a definitely unlawful illegal action, in other words he would come to me and request sanction for it, that he would request sanction for it beforehand, and none of my predecessors were ever placed in a such a position by me and I myself was never placed in such a position, throughout my entire police career as far as I can recall, that a senior officer asked me and said "General, I am going to act unlawfully and illegally and I request your sanction for this." MR BERGER And that would have put you in an extremely difficult position because you could not have approved of unlawful conduct. GEN COETZEE That is correct. If I had executed any action having been confronted as such, it would have been to go to my D-G and my Minister and the government, if I had been confronted with such a direct request. MR BERGER But it was quite alright for you to be briefed afterwards by Mr van der Merwe, where he put you in the position where you either had to condone his conduct or take steps against him. GEN COETZEE But Chairperson, there is a tremendous difference. In the first case, by means of hypothesis, he did not possess the information as I understood it at that stage, of persons who were on the verge of entering South Africa. If he had come to me with such information, with such particular information, I would have taken immediate steps to take it to a higher level to clear it, or to take it to the government. CHAIRPERSON But in October 1985 you didn't have any knowledge of this. GEN COETZEE No, I knew about the general threat from that side. CHAIRPERSON No, I am referring to the black Xmas. GEN COETZEE Chairperson, it was in the papers, it was an expression that developed, it didn't only refer to Lesotho, it referred to the possibility of attacks from various sides, further action by the ANC soldiers within South Africa. CHAIRPERSON There was a request to the Foreign Affairs department to send a letter or a telex to Lesotho regarding the problem. GEN COETZEE Yes, that is correct. CHAIRPERSON Did you know about it? GEN COETZEE No. CHAIRPERSON Do you now know about it? GEN COETZEE Yes, I heard about it this morning in cross-examination. CHAIRPERSON Was this the first occasion upon which you came to hear of it? GEN COETZEE Yes, as far as I know at this moment. CHAIRPERSON Didn't van der Merwe tell you that he had directed such a request? GEN COETZEE He told me - and this was his task, after the case. As I've said this is before I had the discussion with the Minister, it was the first time that I heard that he was confronted with what he interpreted as an absolute situation of emergency. This is the first time that I heard about it. CHAIRPERSON So before the time, in October/November when you were still in the office, before you went on holiday, he never came to you and said "Mr Coetzee, I have been at the CIC and we (that would be the Department of Police) have requested Foreign Affairs to send such a letter to the government of Lesotho and that would also then involve a threat"? GEN COETZEE Honourable Chairperson, today I cannot recall that he said this to me or that he didn't say it to me, but what he definitely did not say to me is that there was an imminent attack, that I did not know. What I did know was, for want of a better word, that there was a normal threatening situation from the side of Lesotho, which he as the immediate head of the Security Branch had to manage. I do not wish to fall into the trap of referring to my many activities, because being the Commissioner of Police with the entire Detective Branch, the unrest management at that stage, I had a hundred policemen who had been murdered, politically murdered in South Africa, whose families were sitting at the police stations in tents and there were thousands of other policemen who came to the police stations for protection, that was my primary task and that is what occupied me. However, ...(intervention) MR BERGER All the more reason why you would have authorised this raid. GEN COETZEE No, I cannot say today that the then campaign which the ANC conducted after they considered it or considered it to be morally necessary to apply a strategy which in effect meant that almost a thousand black policemen were killed in 1985/1986. And not only did I have to deal with the deceased but also with the moral of the entire black component of the South African Police. I cannot tell you today that this was the motivation why I decided that it would be favourable to act as such in Lesotho, to create a direct nexus between the two matters. MR BERGER Let me suggest, Mr Coetzee, why it is that you cannot admit that you were aware of the raid beforehand, and that is because you forgot to make application for amnesty for it. GEN COETZEE No, categorically no. Gen van der Merwe I found to be an honourable man, he would have said so if I had given permission. MR BERGER Why didn't you apply for amnesty for being an accessory after the fact to these murders? GEN COETZEE Chairperson, I would not like to speak of the merits of an accomplice after the fact, I don't want to discuss this with Mr Berger, I think there are other forums who might judge this, but in the matters that I know the accessory after the fact was primarily a person that had to do with the crime itself. In some or other manner the person was connected to the offence itself, like for example removing a corpse when one knows that someone had murders that person. One covers it up then. MR BERGER Let me ask you this, why didn't you apply for amnesty for defeating the ends of justice in relation to this offence? GEN COETZEE Chairperson, because I in accordance with the Act, and I think what it says in the Constitution, had done exactly what was expected of me by law, and that was to report. MR BERGER Okay. You go further with your ignorance of this raid, you say that at no time on the 20th of December, were you made aware of the raid on Lesotho. Now I'm talking about the day of the State Security Council meeting, the 20th of December 1985. GEN COETZEE Chairperson, I said if my memory does not fail me, I had taken an earlier flight from Durban to Cape Town and there I went to the premises where the meeting was under way. What I had heard there is the report - I must have, this is my inference, that I had heard the report of the branch National Interpretation. No-one came to me that day and told me "Listen Gen Coetzee, congratulations with the action of your police officers", or had said "Gen Coetzee, I am sorry but there is something wrong here". I cannot recall that any such discussion had taken place with me that I would have remembered. What I do indeed say, Honourable Chairperson, is that it appeared quite strange to me, quite strange, that by means of inferences persons had had to have known of this imminent threat and if it was brought up there, and I think for example, Foreign Affairs had a representative in Maseru, I think so, I'm not sure. MR BERGER Why was it necessary for you to break your holiday, because you know it was well earned and there you were on the South Coast, why was it necessary for you to come and attend a meeting of the State Security Council? GEN COETZEE Chairperson, the position was as far as I can recall, that at the 2nd of December, that was the final State Security Council meeting that had taken place in the Transvaal, and there a meeting had already been scheduled in my presence and there the State President's viewpoint was that one had to arrange to attend that meeting. MR BERGER Is it your evidence that the raid, the fact of the raid, never mind who was responsible for it, the fact of the raid was not discussed at all at any stage during that State Security Council meeting? GEN COETZEE Not in my presence. MR BERGER But you were present throughout the meeting. GEN COETZEE No, Chairperson, that is correct, but what was minuted there would be what the Secretariat had minuted. What members say amongst each other did not come to my attention. It is extremely strange to me that afterwards a resolution or a decision had been formulated that appeared that everything was fine in the normal situation. That is what I had said. MR BERGER You see what concerns me is your counsel put to Mr Pik Botha that this minuting of steps of intensity, further steps of intensity that were going to be taken against Lesotho, was mere window dressing and that it's highly unlikely that the raid was not discussed at this State Security Council meeting. GEN COETZEE Chairperson, I cannot recall the exact words right now, but the impression that I have is that usually there would have been notices of the attack in Lesotho the previous evening, that would have been common, either by the Department of National Intelligence or from Foreign Affairs who had a representative there or by one of the many role-players, and that despite that knowledge we had taken a decision that once again starts from the start with the whole action or the whole strategy. That is strange to me, Chairperson. MR BERGER Well you see, given the fact that the attack was launched by members of your department, what is outrageous and beyond belief is that if anyone was informed, you were not, you were not the person who was informed about this raid. That's what just defies belief. GEN COETZEE Honourable Chairperson, it is because the persons who had to know or should have known or could have known, had not involved me at that stage. MR BERGER Well who at the meeting, who else at that -was at that State Security Council meeting representing the police? GEN COETZEE It was only I and the Minister of Law and Order. MR BERGER And the Minister of Law and Order never told you about the raid. GEN COETZEE Chairperson, he did not inform me and more than that, he did not know and he was also in the same holiday resort and he did not mention one word of it to me. I would have expected him to tell me if he had known and he said "Listen here General, do you know that that was our men?" He did not speak a word of it to me. MR BERGER Well then your evidence is clearly to the effect that this discussion about Lesotho, in the minute where there are guidelines in steps of increasing intensity, your evidence is that this was not window dressing, this was not a farce, this was a serious discussion at the State Security Council about steps that needed to be taken against Lesotho to prevent attacks being launched by the ANC on South Africa. This was a serious discussion, this was not window dressing at all. GEN COETZEE I am not saying that, Chairperson, because now you are stating it the other way around. The fact is that it could have been a cover, that there were indeed persons who had known. That is also possible. And when this discussion - or this is what started this discussion or that the State Secretariat had minuted it as such. All that I can say, Chairperson, from personal experience is it is strange at that stage they might have thought it was the army, the previous occasion it was the army. They did not have to have in-depth knowledge, but if someone had said there "Listen, last night this risk or danger or threat was thwarted", then I would have understood Chairperson, that we would continue and had these decisions minuted down, but it did not happen. That is why I say it is inexplicable. CHAIRPERSON What decision? GEN COETZEE The decision, Honourable Chairperson, to commence once again with Foreign Affairs actions, secondly, to go to border control and thirdly, ...(intervention) CHAIRPERSON You mean these guidelines? GEN COETZEE Yes, these guidelines to start afresh while one knows that the last had already been applied, one has already applied the threat of ...(intervention) CHAIRPERSON Are you saying that if someone had mentioned it there you would have thought that it was the army? GEN COETZEE On the previous occasion they had acted. CHAIRPERSON But I am asking on that day. GEN COETZEE Yes, if somebody had told me that it had taken place the previous evening, I would have thought that it was the army and I would have thought, but this is peculiar because now we have executed the fourth action, why are we starting with number one again. MR BERGER Dr Barnard, the Director-General of Intelligence, was at that meeting as well, was he not? GEN COETZEE As far as I can recall, and the minutes will show that. MR BERGER Mr Coetzee, we've referred to your evidence during the London bomb application, at length, would you have any objections, because you won't be on the witness stand, but would you have any objections for that evidence to be placed before this Committee? If that evidence were to be placed before this Committee. GEN COETZEE No, what I had testified under oath, I am prepared ...(intervention) CHAIRPERSON For what purpose, Mr Berger? MR BERGER Chairperson, there may be points of argument raised about - later, that Mr Coetzee never said this during the London bomb application, or I have misinterpreted it when I put it to him, so ...(intervention) CHAIRPERSON Why don't you let him confirm the aspects that you want to use in your argument, then he's give it on oath? MR BERGER I didn't have the information before me, I had it in my head. CHAIRPERSON Is it not possible, or is it too many? MR BERGER There's three days of cross-examination by Mr Bizos. I don't want to burden the record with all of that, but in the event of there being a dispute, we will have the evidence available. MR VISSER Chairperson, I'm not going to dispute anything about the London record, you know what my stand is, I think it's irrelevant. So my learned friend has to have no fear that I will enter into an argument about what this witness said at the London bomb incident hearing or what he didn't say. MR BERGER Thank you. Mr Coetzee, you attended a meeting of the Work Committee of the State Security Council in Cape Town on the 29th of January 1986, do you recall? If you need the reference, it's in bundle 3, page 1. GEN COETZEE Correct, Chairperson. MR BERGER Now I'd like to refer you - well, if you look at page 3, you'll see there that the minutes of the Extraordinary State Security Council meeting of the 20th of December was discussed. Do you see that? GEN COETZEE Correct, Chairperson. MR BERGER And then over the page under the heading Lesotho, this is now page 4, the following is minuted "The State Security Council has a step-by-step strategy which has been approved with regard to Lesotho." Do you see that? GEN COETZEE Correct. MR BERGER Now that is a reference to the six levels of steps which needed to be taken against Lesotho, the increasing levels of intensity that were formulated and agreed to on the 20th of December 1985. GEN COETZEE That may be so, I don't know. It would appear so. MR BERGER No, you can't say "dit mag so wees", you were at this meeting, the minute records that the State Security Council approved a step-by-step strategy in connection with action against Lesotho. GEN COETZEE That's right, that's what they did. MR BERGER And what was that step-by-step strategy? GEN COETZEE That is the one that was adopted, the one I said was inexplicable, the one that says how action will be taken against Lesotho. MR BERGER Yes, and it appears in the minutes of the meeting of the 20th of December 1985. GEN COETZEE Correct, yes. MR BERGER "The results hereof are already clear." What results? GEN COETZEE Well, that is the point, Chairperson, I personally have no knowledge that after the meeting of the 20th there had been diplomatic negotiations. I know at some or other time at this stage there was an instruction with regard to the partial closing of borders, delay action, I don't know whether this at that stage had been addressed ...(intervention) MR BERGER Well the border was closed on the 1st of January 1986, do you know that? GEN COETZEE No, I cannot recall that, but I know I said approximately during that time there was, not a total lock-down, there was a delay action that was executed at that stage. I know of - of the first diplomatic things I was never informed, I know nothing of that. I say that I know that approximately during time there was an instruction that a delay action had to be applied at the border posts. I do know, Chairperson, because the police were the customs officials at the border posts. MR BERGER From the 1st of January 1986, South Africa started to strangle Lesotho by closing the borders, do you not remember that? GEN COETZEE I am saying Chairperson, that I recall that we had instruction during that, I'm not trying to cover that up, in order to apply a delay action. In other words, vehicles that had arrived there had to be searched, every inch had to be searched in order to ascertain that there were no ANC soldiers or arms in the vehicles and that had the effect that there was a tremendous bottleneck of traffic there. During January all the Lesotho mine workers had to return to South Africa. I know about this. MR BERGER Well what is meant by the sentence "The results hereof ..." In other words the results of the step-by-step strategy "is reeds duidelik"? GEN COETZEE It might mean - because now you are asking me to speculate, it may be the fact that another government had come to power, it could be that. MR BERGER That there had been a coup? GEN COETZEE It is possible, Chairperson, or a threatening coup. MR BERGER So the coup was a result of the strategy adopted by the State Security Council at its meeting on the 20th of December 1985. GEN COETZEE No, Chairperson, I don't think it is correct to draw that inference, the only inference that one can draw is that Lesotho had taken note, the State had taken note - and now we refer to the closing of the borders, they had taken note of the fact that South Africa had said that it would take steps. MR BERGER But South Africa had already acted. GEN COETZEE Yes, but now it was busy with some follow-up action. MR BERGER So in other words, after the raid, after the attack on the 19th/20th of December 1985, the South African government then started implementing the step-by-step strategy that was agreed to at that meeting. GEN COETZEE Honourable Chairperson, we seem to be speaking at cross-purposes here. The action of the 19th as I understood it, was directly aimed at persons who wanted to enter the country in order to commit acts of terror. The general situation that we had to deal with over a period of time, and I was involved in these negotiations with Lesotho, that over a long period it had served as a point of departure for ANC soldiers. And if you want me to elaborate on the point of Lesotho right here, then I shall do so. This was continual threat to South Africa. MR BERGER Mr Coetzee, all I'm asking you is, when this meeting that you attended discussed the results of the step-by-step strategy and when you all agreed that the results of that strategy are already clear, what results were you referring to? Were you referring to the coup? GEN COETZEE No, Chairperson, I think the coup had only taken place by the 20th, but I said ...(intervention) MR BERGER Yes, yes, that's after this - that's before this meeting. GEN COETZEE Yes, Chairperson, but I had said when I referred to the decorations for bravery for the police, that there was unrest in the Lesotho army already in December. They patrolled the streets, speeches were made, and if one listened carefully one had to realise that the army was dissatisfied with the situation. There was the LLA with, I think, Mr Mtsumo Mogetla of the Basotholand Congress Party who was in Botswana, and he had also made speeches that he would take over the country and he had been lifted from the seats of power. It was a crisis at that stage and in this crisis there was the presence of the ANC soldiers. MR BERGER Let me go on, maybe it will make it clearer for you. The minute goes on to say "The Chairperson of the SSC (that's PW Botha) expresses his thanks for the particularly good departmental negotiations during this operation." GEN COETZEE Chairperson, I am not clairvoyant, I draw inferences, this could have referred, it could have referred, specifically when one has regard for the previous small paragraph, that the facts there referred to the once-off action by the police. It could have. MR BERGER Well you see, Mr Coetzee, that is my problem and that is what I am trying to get you to clear up because you were at this meeting. What I want to know is, that's why I kept on at you, this operation that the State President is thanking everyone for, for the good departmental cooperation, was this operation the attack on the 19th of December 1985, or was this operation the strangling of Lesotho which brought about a coup? Which operation is being referred to? GEN COETZEE Chairperson, I am speculating now. I would think on the balance of probabilities, as it would be applicable in a civil matter, if one studies the previous paragraph "Terrorism from the neighbouring States. The security community (that's all three) were given the task to make target identifications." We must identify targets. That was expressly told to us at this meeting, and now he comes around and it is minuted. I am not responsible for the minutes of the Secretariat, the sentence that you read now, and now I am saying that on the balance of probabilities, whatever that may be worth, it would appear to me as if there he referred to his knowledge at least of that attack. Because at that stage it was already well known, Chairperson. And at this stage there has been reasonable notice that there had been allegations that the police or the army or the LLA or someone, someone was busy there. That's what it appears like to me. MR BERGER Okay. Well if this operation was the raid, the attack with which this amnesty hearing is concerned, if that was the operation, how can that operation be the result of the steps which were agreed upon by the State Security Council on the 20th of December 1985? GEN COETZEE Chairperson, I cannot say more, I cannot add more to what I have already said, it is inexplicable. MR BERGER Okay, if we can't get an answer to that question, then if this operation was the raid on the 19th of December 1985, what "besondere goeie interdepartementele samewerking" is the State President referring to? GEN COETZEE I would once again, Mr Berger, on the balance of probabilities have said that this refers to CIC, that's what I would think. CHAIRPERSON Tell me, the untidiness of those notes, was this intentional? GEN COETZEE Pardon? CHAIRPERSON The untidiness of those notes, was it part of policy? GEN COETZEE Chairperson, in many amnesty applications I have been asked why it was minuted in this manner, I was not responsible for taking the minutes, and what is more Chairperson, I never saw the minutes afterwards. I said, Chairperson, that the parts I had gleamed from there, the others were in black, blanked out, which was applicable to the South African Police. In other words, over a long period of time I did not sit with the minutes and try and figure out what it was saying there, and go to the Minister to find out. I did not see the minutes. CHAIRPERSON But that is the point, they did not make minutes for the purposes of the police, how did you handle it when it got to you? GEN COETZEE Chairperson, as far as I know a tape recording was made by the Secretariat and afterwards they went and drew up the minutes. CHAIRPERSON I accept that, but please listen carefully. You are saying that you received a part of the document, you said it had been blanked out and only that which was applicable to the police had been brought to you. I accept that it was legible. GEN COETZEE Yes, it was, Chairperson. CHAIRPERSON And the purpose thereof was in order to notify you and remind you that these were the decisions that had been taken in the previous meeting with regard to the police, is that correct? GEN COETZEE That is correct, Chairperson. CHAIRPERSON I am asking you now, with those untidy notes, how did you understand it? GEN COETZEE Chairperson, the instructions were clear and in this regard I would have undoubtedly, the (iv) and (v), I would have found them because it was told to us that we had to do target identifications and to say where the targets were, and a reasonable inference that I made would have been physical targets. CHAIRPERSON So let me ask you then, this incident that Mr Berger refers to, when the Chairperson thanked every department and said thank you for the cooperation between your various departments, many-a-time we have studied these minutes, and similar problems have arisen and it is not really clear what the State President refers to. Was that the police to make such minutes? That you must not say clearly what had happened because everyone at the meeting actually understands what is going on, but if these land up in the wrong hands we can always deny what these allegations are. GEN COETZEE Honourable Chairperson, I cannot recall a matter where the State President said that you must minute this, or any other of the present persons had said it. CHAIRPERSON But Mr Coetzee, you people are clever, it does not have to be said. GEN COETZEE I would say from own knowledge, own personal knowledge, the well informed Secretariat of the SSC would use its discretion to add what deems necessary to be added and whatever would be spontaneously understood or whatever has to be omitted. CHAIRPERSON And everybody agreed with this? GEN COETZEE Yes, I don't think there was an objection or a difference to this. CHAIRPERSON Continue, Mr Berger. MR BERGER Thank you, Chairperson. Mr Coetzee, will you agree that this paragraph, paragraph 5 dealing with Lesotho, must be making reference to the attack on the 19th of December 1985? When it talks about the results in this operation, it must be referring to the attack on the 19th of December 1985, would you agree? GEN COETZEE Chairperson, I wouldn't have to say categorically yes, but for me it would appear to be so. MR BERGER Well let me put it to you this way. By the 21st of January 1986 - 29th of January 1986, I'm sorry, not only did you know about the raid but you'd already approved certain medals. GEN COETZEE Chairperson, I knew at that stage. MR BERGER You'd also approved the medals. GEN COETZEE I recommended the medals, it would not be approved by me. MR BERGER Whatever. You recommended the medals. GEN COETZEE To the Minister who then had to submit this to the State President. MR BERGER Alright. It was world news, so nobody at this Working Committee meeting of the State Security Council could have been ignorant of the attack ...(intervention) CHAIRPERSON ...(indistinct) MR BERGER 29th of January 1986. JUDGE KHAMPEPE Mr Berger, isn't it true that by the 10th of January, not even the 20-something that you are referring to, he had already been advised and well-informed by Mr van der Merwe of this operation and the decision why he took - why he launched the operation, the urgency that necessitated him to take the decision which he did, which was eventually executed on the 19th or the morning of the 20th of December. MR BERGER Absolutely, Judge. JUDGE KHAMPEPE On his evidence. MR BERGER Yes, that is so, but I'm not even going to stand on the 10th, I'm going to the date of this meeting. This meeting was on the 29th of January 1986, nobody who attended this meeting could have been unaware of the raid. GEN COETZEE No, I would agree with that. On the 29th it was quite clear that there was such an incident. MR BERGER Right, and this part of the meeting that I'm referring you to, is a meeting - is concerned with the State Security Council meeting of the 20th of December 1985. We see that from the previous page. GEN COETZEE Yes, I would accept that. MR BERGER There are 11 items dealt with, relating to that meeting of the 20th of December, and the fifth item dealt with is Lesotho. So it would have been beyond belief if on the 29th of January 1986, you still didn't discuss the raid, am I right? You must have discussed the raid. GEN COETZEE Today Chairperson, I cannot inform you on a matter which might appear to be thoroughly argued or inferred, I cannot tell you yes, that is it, if I know that there is a possibility, however remote, that this is not the real position. MR BERGER Well was the coup in Lesotho an operation of the South African government? GEN COETZEE Not that I'm aware of. It was much discussed with that person, Gen Letanya, in my negotiations there, but something like that was never mentioned by me to him, nor was it mentioned by him to me. There was a basic dissatisfaction with his government, I could infer that. CHAIRPERSON You were present during that meeting. GEN COETZEE Yes. CHAIRPERSON And if there was a discussion that the conquest of Lesotho and the government there was discussed, it would have been something which remained in your mind, South Africa contributed to that thing, isn't that so? I would expect that someone would remember that. GEN COETZEE Chairperson, the position is that South Africa began on the 1st of January with border closure delays and what exactly led to the coup is something that I cannot speculate today. CHAIRPERSON GEN COETZEE Yes, that is correct. CHAIRPERSON GEN COETZEE Yes, there were allegations but I never participated in anything like that. CHAIRPERSON GEN COETZEE If he had said on that day, Chairperson, that "Boys, we know what happened there, don't we", referring directly to the coup, it would then have definitely stayed in my mind, but on the balance of probabilities, he referred to that incident on the night of the 19th to the 20th. GEN COETZEE The attack? GEN COETZEE The attack. CHAIRPERSON Can we then exclude the coup from those notes? GEN COETZEE Yes, Chairperson. CHAIRPERSON Very well. GEN COETZEE So by means of elimination it would have to be that way. MR BERGER And that's the point, Mr Coetzee, by a basis of elimination, if the coup wasn't an operation by the South African government, then the only other operation that could be referred to here is the attack on the 19th of December 1985. It must be. MR VISSER Chairperson, that's not necessarily so. My learned friend only has to refer to volume 2, page 60, to know that there was a very important other consequence of the operation, and that was the deportation of ANC people. It's not the only other ...(intervention) JUDGE KHAMPEPE But Mr Visser, did that involve what then was referred to by the Chairperson, as the exceptional inter-departmental cooperation? MR VISSER I don't know what that refers to, Chairperson, and I'm not entering the discussion, all that I'm saying is if my learned friend says there's only one other possibility, then he's wrong, there are more than other ...(intervention) CHAIRPERSON Why do you say he's wrong? MR VISSER ; I've just pointed ...(intervention) CHAIRPERSON ...(indistinct - no microphone) deportation? MR VISSER Absolutely. CHAIRPERSON Well I think you destroy your own argument, Mr Visser, because you say yourself you don't know. MR VISSER Mr Chairman, if you think my learned friend's question is in order, I'll withdraw my objection. CHAIRPERSON Carry on. MR BERGER Thank you, Chairperson. Your evidence - if I need take it no higher than that, is that on the overwhelming probabilities the reference to the operation here is a reference to the attack and the "besondere goeie" departmental cooperation on the probabilities you say is a reference to the CIC. GEN COETZEE That is how I interpreted it, Chairperson, by means of inference. MR BERGER And you don't know precisely what interdepartmental cooperation is being referred to, because you were not a member of the CIC. GEN COETZEE That is correct, yes. MR BERGER And so the appropriate person to ask would be the Chairperson, Dr Barnard, would that not be correct? GEN COETZEE Any person present. I personally, and I don't wish to lengthen this, I heard that there were army units which were also deployed there in the vicinity. At the meeting of CIC, I saw in the minutes that there were members of Military Intelligence present. That is another question to me, did they inform their Minister or not? These are questions that I cannot answer, but this is what I saw in the minutes. So those who were present there were best equipped. MR BERGER So many questions and so few answers. GEN COETZEE Well truth is stranger than fiction, Sir. MR BERGER Thank you, Mr Coetzee, I have no further questions. NO FURTHER QUESTIONS BY MR BERGER MR PATEL Thank you, Honourable Chairperson, I have no questions. NO QUESTIONS BY MS PATEL MR VISSER Perhaps I should just place on record, I anticipated that I might have questions for Mr Coetzee after the cross-examination of Mr Berger, but in the light of the cross-examination I have no questions, thank you. NO QUESTIONS BY MR VISSER ADV BOSMAN Basically I only have one question for you, General. GEN COETZEE Thank you, Commissioner. ADV BOSMAN Did you regard it strange in any way that Gen van der Merwe did not take Mr de Wit into his confidence to a certain extent? GEN COETZEE I did not find this extremely strange, however I would have thought that Gen de Wit was a loyal officer and that one, as I necessarily had to do when I went to tell him when the minutes were submitted to the Staff Generals, referring to the action of the 21st, by means of inference he must have thought what happened there. So personally I think that in my circumstances I would definitely have informed him. However, I do not find it strange that he didn't do it, particularly Chairperson, because I in his opinion would certainly have been the best equipped to view the matter in perspective and to present it as such to the higher levels. I was probably the best equipped due to the background knowledge that I had as well. ADV BOSMAN GEN COETZEE Gen de Wit was not a member of the SCC, he never served in the CIC, he had no security background, he didn't really know, apart from the physical threat, what exactly was going on in Lesotho except that which was told to him during meetings, so I think that - and this is an inference that I'm drawing, I think that if such a proposal had been made to him, he would have fallen off his chair and simply screamed "No, no, no", while I with all my background information would have been able to apply a greater suppleness and at least would have been able to say "Wait, here we have a situation of an urgent request to the Minister, we must travel by plane to wherever he is now." That is what I would have done. Or I would have taken the decision that we had been wedged into a corner and that this was the only decision to take, that is the position. ADV BOSMAN It might be quite late in the afternoon, I'm just somewhat uncertain of what you meant. On the one hand you say that you would have consulted Gen de Wit if it had been you ...(intervention) GEN COETZEE I did as a head. ADV BOSMAN The recommendation regarding the decorations? GEN COETZEE No, that wasn't about it, but what I mean is I did consult him. If I was the head of security at that stage and I had been confronted by information which indicated an emergency and regarding which there was no other exist other than physical action, if I was in that situation I would either have decided to do what Gen van der Merwe decided, or I would have gone to Gen de Wit and told him "General, I have such-and-such a matter at hand, we need to travel to where the Commissioner is or to where the Minister is." That is what I would have done in order to manage this matter. ADV BOSMAN Very well. GEN COETZEE He chose the other way. He chose the way that he chose and he is requesting amnesty, that is the position. ADV BOSMAN Thank you, General. CHAIRPERSON Did I understand you correctly, that you said that you thought that if van der Merwe had gone to de Wit, there would be the expectation that de Wit would say no because he didn't really know about the situation? GEN COETZEE Yes, that is entirely possible, it was a possibility that one had to bear in mind. CHAIRPERSON And van der Merwe said that if you had been available in Pretoria or wherever, that he would then have asked you or at least informed you. GEN COETZEE Yes, but all this is hypothetical, he didn't. The fact remains that if I had been there it would have been much easier for him to consult me than to consult Gen de Wit. CHAIRPERSON Listen to the question. He testified that if you had been available he would have consulted you, I understand your evidence to be that you would not have approved any unlawful action by the police, did I understand you correctly? GEN COETZEE Yes, that is correct. CHAIRPERSON So the strictest possibility is that you would also have said no, because it would have been a cross-border operation, which would have involved murder, isn't that so? GEN COETZEE Most probably I would have said no, but "let's go higher up, we ..." ...(intervention) CHAIRPERSON Yes. GEN COETZEE Chairperson, I really do not wish to interfere with you, but if he had not acted - I also had to consider this, if he did not act, if they had infiltrated and killed persons within South Africa and it later appeared that South Africa had knowledge, then this would have had an adverse effect on the government. So it was a very complex and problematic decision with which he was confronted. CHAIRPERSON Yes, that may be true for him. All that I am asking is, with regard to you, could he also have expected, he would have known you, he would have known that you would have said no, but would possibly have consulted on a higher level in order to obtain permission. Am I correct in understanding it as such? GEN COETZEE Yes, he would have contacted me easier than somebody else. CHAIRPERSON But more-or-less he would have known what your attitude would be? GEN COETZEE Yes, it was the normal attitude. CHAIRPERSON And in terms of what he wanted to achieve, it would have been a negative attitude because he would have had to wait longer to get to Mr le Grange or whoever, isn't that so? GEN COETZEE Yes, Chairperson, he was in a situation of urgency, so he didn't really want to waste any time as such. CHAIRPERSON Now tell me, what are you doing at the moment, what is your career? GEN COETZEE Chairperson, I work for a law firm. CHAIRPERSON A law firm. Are you there as an attorney or an advocate? GEN COETZEE Yes, I took legal subjects. CHAIRPERSON No, have you been admitted as an attorney? GEN COETZEE No, I have not, but I do work there. I posses the necessary subjects. CHAIRPERSON Is it your intention to be admitted? GEN COETZEE Chairperson, I would rather not comment on that. CHAIRPERSON Thank you. Mr Visser, do you have any questions? MR VISSER No, thank you, Chairperson. May I ask that the witness be excused and may I also request ...(intervention) INTERPRETER The speaker's microphone is not on. MR VISSER ...(inaudible). He will be returning to Graaff-Reinet. The other aspect is that Gen van der Merwe has to take his wife to a specialist in Cape Town tomorrow because his wife is very ill and he requests to be excused. I would have to request that he be excused for the rest of the week. CHAIRPERSON ...(inaudible) INTERPRETER The speaker's microphone is not on. MR VISSER All my witnesses will once again be available if necessary. MACHINE SWITCHED OFF ON RESUMPTION WITNESS EXCUSED CHAIRPERSON I want to address all the legal representatives at this stage. It seems clear that we have to adjourn this hearing for some time to give Mr van Heerden and Mr Barnard a chance to acquaint themselves with what has gone by, in particular Mr van Heerden. I received a communication from Mr Barnard's attorney this morning, who has been warned of the prospects and that his client may be subpoenaed and at the last paragraph thereof he indicates that we bear in mind that he would like time in order to prepare himself for the eventual testimony of Mr Barnard. I don't propose to give any reasons unless it's specifically required and asked for later. I must say I've had some difficulty in formulating the ruling that I'm about to give, in an attempt to please everybody. Maybe that's my mistake. I must further inform you that I was unable to consult all of you in respect of a future date, the reason being that the life of this Amnesty Committee is hopefully coming to an end and there were specific dates that were open and I chose a date which will give us at least two months to prepare ourselves and rearrange any diary problems that we may have. I couldn't be fairer than that. In the circumstances this is my ruling. R U L I N G It is ordered that the office of the Amnesty Committee ensure that Messrs van Heerden and Barnard - I'm not too sure of their first names, are subpoenaed in terms of Section 29 of the Act, to appear before this Amnesty Committee Panel and to answer questions in relation to whether the CIC - the full name escapes me at the moment, or members thereof, approved, had any knowledge of, before, during or after the attack on members of the African National Congress in Lesotho, on or about the 19th of December 1985. A copy of the record thusfar must be made available to both of them timeously. It is to be hoped that the Amnesty Committee office can ensure that this record is typed speedily. It is further ordered that the office of the Amnesty Committee make every effort to obtain and distribute to all the parties to this hearing, all minutes of the CIC meetings held between the 1st of October 1985 and the 30th of March 1986. CHAIRPERSON Mr Visser, is that broad enough? MR VISSER Yes, I would have just not confined it to CIC minutes, but also to State Security Council minutes which may be ...(indistinct - no microphone) CHAIRPERSON Oh, I thought you specifically said CIC at the time. MR VISSER Yes, I did, but both of those may be of some assistance. CHAIRPERSON Are there any objections to me amending that order? The State Security Council for the same period. This particular hearing - before I get a date, I omitted, has anybody got a diary here? The first Monday in June. MR BERGER Chairperson, can I stop you before you make a ruling, in an attempt to persuade you that we don't adjourn these proceedings now, and that we continue tomorrow with the evidence of Mr de Kock and the other applicants, as well as the evidence of some of the victims. We had set side this week and the whole of next week for this matter and ...(intervention) CHAIRPERSON Next week also? MR VISSER Next week as well, yes. CHAIRPERSON ...(inaudible) MS PATEL If I may for the record, and it's been minuted as such, that in the event of us not finishing this week, parties would then consider whether the matter could then be rolled over to the last week. So that was a tentative agreement with the parties at the pre-hearing. I would like to confirm that. CHAIRPERSON Ms Patel, I also am of the - and if my memory serves me correctly, there are other advocates and attorneys who made themselves available for next week because they weren't available in the last two weeks. MS PATEL That is so, Honourable Chairperson, but they were also present at the pre-hearing conference when these arrangements were made. CHAIRPERSON The Panel has discussed this issue, we loathe to put anymore evidence on record before those two people acquaint themselves with the record thusfar. That all of us are inconvenienced by that ruling, well we've got to respect the rights of those people subpoenaed as well. They're not in a position where we can ignore their rights. MR BERGER That is correct, Chairperson, but the evidence of Mr de Kock and the other amnesty applicants will have no bearing on Mr Barnard or Mr van Heerden. CHAIRPERSON ...(indistinct) Mr Berger, the instability of the evidence thusfar, can you really guarantee that? MR BERGER Well they're going to be giving evidence about instructions that they got from Mr Schoon and the operation that they carried out on the ground. CHAIRPERSON Mr Berger, let's not get into an argument, the Committee has decided that and we've discussed it and in an attempt to be fair to everybody, I mean these two gentlemen are going to be subpoenaed now, they've got a suspicion that they may be subpoenaed, let's give them every benefit that we can, by giving them a copy of the record thusfar and they can be present when the other evidence is led, and called whenever. MR BERGER Chairperson, sorry to keep butting in, but there's also the other question and I don't know when we're going to debate that issue, and that is the question of Mr Vermeulen and Mr McCaskell. I spoke to my learned friend for Mr McCaskell this morning and asked him whether his attitude was the same as - not Mr Vermeulen, I beg your pardon, Mr Coetser, and asked my learned friend whether his attitude was the same as that of counsel for Mr Coetser, and he informed me that his client is still considering his position but that his advice to his client was that they should adopt the same position and that they should not testify. That is something that is going to have to be debated at some stage and I don't know if we should do that now or if you want to do that when the hearing reconvenes. CHAIRPERSON ...(indistinct - no microphone) indicated that they don't intend testifying? MR BERGER Well Mr Coetser has, but Mr McCaskell hasn't yet made his attitude known, but his counsel informed me that that was their prima facie view this morning. MR JOUBERT If I may, Mr Chairperson, that is the prima facie advice which I've given my client, I haven't received final instructions in that regard. Furthermore, my client has not been subpoenaed in terms of Section 29 ...(intervention) JUDGE KHAMPEPE I thought you were in a different category, Mr Joubert, because your client I was made to understand, had actually offered to give evidence without a subpoena, whereas Mr Coetser had been subpoenaed and a Section 19(4) notice had also been served on him. MS PATEL If I may just come in at this stage, I must also place on record Mr Joubert, before you had come on record, Mr McCaskell had in fact called me early Monday morning before we had even convened, stating that he didn't really think he needed a legal representative, but I explained the intricacies of the matter to him and he then he said "Ja, well then fine, get me an attorney to protect my rights", but his attitude at that stage was that he was prepared to testify. CHAIRPERSON You see what I mean, Mr Berger. MR JOUBERT Mr Chair, if I may then, obviously he has in the ...(intervention) CHAIRPERSON I want to suggest Mr Joubert, you have a good old consultation with your client, we won't deal with the issue now, you can come tell us either tomorrow or in the first day of the resumption, what the position is. It's not going to make much difference to us, but just be careful, you may find yourself in a bit of a ...(indistinct), so be careful. MR JOUBERT Yes, Mr Chair, I'm aware of that. I must just place on record that I was advised by Ms Patel that a summons was - a subpoena was issued and was to be served upon my client and that due to some administrative error somewhere along the line, this was not done by the Witness Protection Unit. So I presume there will probably be a subpoena served ...(intervention) CHAIRPERSON Well I don't know if he's looking for a subpoena, but - I don't know, would you like to consult for five minutes and find out if he wants one or not? MR JOUBERT No, I was merely placing on record what Ms Patel informed me about. CHAIRPERSON Ja, but I wouldn't like him to come here during June and take the point, that he's not going to testify because he wasn't summonsed. MR JOUBERT Mr Chair, that will not be the point that will be argued. CHAIRPERSON Okay, thanks. ...(inaudible) MR HATTINGH The first Monday in June is the 5th of June, Mr Chairman. CHAIRPERSON 5th of June. MR HATTINGH Yes. CHAIRPERSON Well furthermore, I assume that the office of the Amnesty Committee will ensure that all the notices and the record are timeously delivered to these two gentlemen, and in an attempt to be - it's a matter of convenience I suppose, that this matter is then postponed to the 5th of June, for two weeks. Hopefully we can finish it within a week but we're setting aside two weeks for it. In our view also, it seems that the contentious issues are almost about finished, which will need legal argument etcetera, we would appreciate if representatives are ready to argue in June as well. - hopefully. If there are problems, then just inform us. This batch is then adjourned till tomorrow, half past nine. MATTER OF THE LESOTHO ATTACK OF 19TH/20TH DECEMBER 1985 POSTPONED TILL 5TH OF JUNE 2000 COMMITTEE ADJOURNS