ON RESUMPTION 2ND MARCH 2000 - DAY 8

MS PATEL: Thank you Honourable Chairperson, I believe we have Mr Roelf Pik Botha this morning to start, thank you.

CHAIRPERSON: Is anybody calling him as a witness?

MR BERGER: Mr Chairperson, Mr Botha is here as a result of the subpoena which we asked the Committee to issue. I suppose I should be the first person to ask questions of Mr Botha.

CHAIRPERSON: Is he going to be your witness?

MR BERGER: Chairperson, we asked the Committee to subpoena Mr Botha because we believe that he has relevant information to give the Committee, information relevant to this particular amnesty hearing.

We have not consulted with Mr Botha, so we don't know precisely what he is going to say other than his statement which we received this morning. I cannot say that he is our witness in the sense that we are calling Mr Botha to prove a particular point, we believe that he has relevant information.

CHAIRPERSON: Why did you subpoena him then?

MR BERGER: Well Mr Chairman, Mr Botha was present at a State Security meeting on the 20th of December.

CHAIRPERSON: Let's not talk about the merits, let's just talk about the procedure, if someone is subpoenaed by one of the parties to a hearing of litigation, that subpoenaed person is the witness of the person or the party that subpoenaed him, isn't it?

MR BERGER: Chairperson, I have no problem calling Mr Botha, my witness, but the circumstances, he doesn't want to be my witness, clearly. The circumstances ...

CHAIRPERSON: Well, if he is here on subpoena and he has respected the subpoena, then he's got no choice. But the point of the matter is, I am just trying to get the house rules in order as to who can cross-examine, who can lead and what type of questions can be asked. I don't want to be faced and having to make a ruling. I will make it if I need to, but I am trying to clear the air before we start. My prima facie view is that the party that subpoenaed the witness, is entitled to lead that witness in so far as it is necessary, but not allowed to cross-examine.

MR BERGER: Well Chairperson, technically Mr Botha was subpoenaed by the Committee and so therefore ...

CHAIRPERSON: Yes, that is precisely the issue I want to get to. The Committee is a conduit for subpoenas by a party, they are no worse or better position than a Registrar of the High Court.

MR BERGER: Chairperson, with respect, that is not correct, because as far as the position of the Registrar of the High Court is concerned, if a party wishes to subpoena another party, then that party just issues a subpoena and the Registrar has no choice but to have the subpoena issued and served. In this case, we were requested by the Committee to motivate, to put forward a proper motivation why we wanted Mr Botha and others subpoenaed, and it was only once that motivation was accepted, which is not required in High Court matters at all, one doesn't have to motivate a subpoena, a subpoena just gets issued, that is the difference between High Court matters and here.

CHAIRPERSON: Mr Berger, let's skip the technicalities, we can come to it if necessary later. Why did you subpoena Mr Botha then?

MR BERGER: Because Chair, one of the central issues to this application is the question of authority, authority for the raid. Mr Botha who was the Minister of Foreign Affairs at the time, who attended cabinet meetings, State Security Council meetings, who had representatives in CIC meetings is ideally placed to give evidence to this Committee as to whether authority was given for the raid or not by the persons higher than Mr van der Merwe or whether Mr van der Merwe's evidence is correct in what he has already told the Committee.

CHAIRPERSON: If you had to ask him questions, would you consider yourself bound by the answers he gives or not?

MR BERGER: Not necessarily, no.

CHAIRPERSON: That is the crux of the matter, that is why it is important to know who called Mr Botha here as a witness.

MR BERGER: Chairperson, could I say this, if one wants to look at High Court matters, a party calling a witness as their own witness is entitled to cross-examine that witness under certain circumstances, for example if the witness is declared a hostile witness. It is not unheard of for a party to cross-examine its own witness.

CHAIRPERSON: Mr Berger, we haven't reached that stage, if we are ever going to get there. I cannot say that any witness is hostile yet.

MR BERGER: Chairperson, a hostile witness is not, I hope I am not - a hostile witness is not necessarily someone who is hostile in the ordinary, literal sense of the word.

CHAIRPERSON: I am quite aware of the law and the interpretation, Mr Berger, I raise this issue now, because I don't want to get into a quagmire of technical points and procedure and confuse it with the real aspects of this hearing.

MR BERGER: Chairperson, the only point I am making is that the circumstances under which Mr Botha comes to be subpoenaed are relevant as to whether or not we are entitled to ask probing questions of Mr Botha. The circumstances are such that he is not my client, that he was on the other side in the war, he has been called here because we believe he has relevant information, and if one reads his statement that he put up this morning, then clearly he has relevant information.

CHAIRPERSON: That is why I said forget about the merits, he may or may not have relevant information, I just want to get clarity here, an agreement before I have to make a ruling, and I will make it if necessary I repeat, who will call the shots amongst the parties? Who is entitled to cross-examine him if necessary and if they choose to do so, and who is not? Surely you will agree that not all the parties are entitled here to cross-examine him? Then who is not entitled to cross-examine him?

MR BERGER: Any person whose client is affected by any of the evidence given by Mr Botha, would be entitled to cross-examine him.

CHAIRPERSON: Mr Botha has been called here, we agree by virtue of a procedure, a lawful procedure. He didn't have to come and give evidence, it was his choice, had it not been for the subpoena. It then becomes relevant as to who required him here to come and testify and who used the procedure of subpoenaing him to come and testify, not so?

MR BERGER: Well Chairperson, the relevant Section of the Act is the Section that deals with it.

CHAIRPERSON: What is it, I cannot lay my hands on it?

MR BERGER: Sections 29 and 30, but I will get there now. Chairperson, Section 29 which is part of chapter 6, which by reference is incorporated into the section dealing with amnesty applications, the chapter dealing with amnesty applications, let me start at the beginning, Section 19(4) of the Act says that if an application has not been dealt with in terms of subsection (3), the Committee shall conduct a hearing as contemplated in chapter 6 and shall subject to the provisions of chapter 33, (a) in the prescribed manner notify (i) the applicant, (ii) any victims, (iii) any person implicated, or (iv) any person having an interest in the application of the place where and the time when the application would be heard and considered, and (b) inform the persons referred to in paragraph (a), those four categories of their right to be present at the hearing and to testify, adduce evidence and submit any article to be taken into consideration. Any of those four categories of people have a right to come in the absence of a subpoena, but the Section says the hearing must be conducted as contemplated in chapter 6.

In chapter 6, the relevant Section is Section 29, which is the power of the Commission with regard to investigations and hearings. The Commission, subsection (1) may for the purposes of or in connection with the conduct of an investigation or the holding of a hearing as the case may be (c) by notice in writing, call upon any person to appear before the Commission and to give evidence or to answer questions relevant to the subject matter of the investigation or the hearing.

There is no limitation on any questions put as long as they are questions which are relevant to the subject matter of the hearing.

CHAIRPERSON: (No microphone)

MR BERGER: We asked the Commission to exercise this power in terms of Section 29 and we were then asked to motivate why. We motivated and then the Commission exercised the power which it has in terms of Section 29(1)(c) of the Act. The Commission could have said to us we don't - it is not a power we have, it is a power the Commission has, "we don't regard your motivation as compelling, we think you are wasting the time of the Commission, we are not going to issue the subpoena", but the Commission read our motivation and as a result, issued the subpoena, so the witness is strictly speaking Ms Patel's witness, not our witness.

CHAIRPERSON: Are you done?

MR BERGER: Thank you Mr Chairperson.

CHAIRPERSON: Mr Berger, you forgot the most fundamental issue in that Section, that the Commission, at its discretion would subpoena anybody and demand him to come. In this case, I can rest you assure, we didn't need Mr Botha. That subpoena was issued at the behest of one of the parties. It was a conduit, the Commission was a conduit because there seems, and I disagree with it, there is a ruling, there seems that there is no other way to issue the subpoena. Personally I disagree with it, but that is the procedure. Do you agree with that, that is the factual position, had this subpoena issued at the behest of one of the parties, not at the behest of the Commission itself?

MR BERGER: No, that is correct, the Commission issued the subpoena at the behest, but it was the power which the Commission had, the Commission had a discretion to issue or not to issue and the Commission exercised that discretion after considering our motivations.

CHAIRPERSON: Have you had a look at that motivation?

MR BERGER: I was party to drafting the motivation.

CHAIRPERSON: Let's not get into discussion on that motivation. Is it your argument that you are entitled to cross-examine the witness?

MR BERGER: Yes, it is my argument.

CHAIRPERSON: I am going to invite comments and argument from the rest of the legal representatives, and then finally I am going to give Mr Botha himself, a chance to deal only with the issue as to whether all the representatives are entitled to cross-examine him, or not, that is even before he takes the oath. He is not a witness yet. Mr Hattingh, have you got any comments?

MR HATTINGH: Mr Chairman, without going into too much detail, I would submit that the submissions made by our learned friend, Mr Berger, is correct and that he is entitled to cross-examine Mr Botha. The witness is the witness of the Committee and strictly speaking, Ms Patel should be leading his evidence and that Mr Berger is entitled to cross-examine him.

MR VISSER: Mr Chairman, quod homines tot sententiae, I am in agreement with what you have put to Mr Berger.

ADV BOSMAN: Mr Visser, I taught you Latin, I think your Latin quotation wasn't a hundred percent in order, but that is just on the lighter side, it is not to harass you.

MR VISSER: Chairperson, I am terribly tempted to say that is what one gets when one is taught Latin by certain people, but be that ...

CHAIRPERSON: Mr Visser, it is a dead language, it should stay that way, carry on.

MR VISSER: Chairperson, we find ourselves in agreement with what you have stated.

CHAIRPERSON: Finally.

MR VISSER: If I may just embellish on that very slightly, with your permission. At the time when we were given wind of the fact that Mr Berger or his attorney, intended to subpoena witnesses, the first question arose, was the question of relevance. We had a look at page 56 of Volume 3 and perhaps I should refer you to that page, 56 of Volume 3. That is the third page of the representation which was made to you in writing. Chairperson, what you read there in paragraph 9 is the following, it says ...

That means only one thing in plain English and that is that this presentation tells you that the SSC had not authorised the raid prior to the 20th of December, what else can it mean?

Now once that is so, the question now remains apart from one aspect and that is ...

CHAIRPERSON: You argue on the basis that it is according to that minute?

MR VISSER: Yes Chairperson, yes. We in our application, have never stated that this action was authorised by the SSC or anyone else, in fact the clear evidence was that from Gen van der Merwe, nobody could have authorised an illegal raid. That is on the facts, what then occurred to us Chairperson, was that if one wanted to start subpoenaing witnesses, why pick on Mr Botha and Gen Coetzee, why not - then you have to subpoena the whole lot of these witnesses who were present at that meeting.

I don't know whether Mr Botha or Mr Coetzee's recollections are correct and neither do you. We will have to hear all these witnesses. The question was in our minds to what purpose, and we then - at a pre-trial conference, my attorney tabled his thoughts that there should be a motivation which should be given to us, so that we could see what the relevance was that was sought to be achieved by calling these witnesses, obviously with the intention and the purpose for us to be able to reply thereto and to place that before the Commission, the Committee, in order to be able to make up its mind and to exercise its discretion.

Now, this wasn't done so the reason why I am mentioning this is my learned friend is quite incorrect when he wishes to convey to you that you could ever have exercised a discretion with full knowledge of all the facts, because you didn't have all the facts before you because we were never given an opportunity to make comment on it, and perhaps if we were, you may have decided not to issue it, but I understand what you are saying.

CHAIRPERSON: Ms Patel, did I sign those subpoenas?

MS PATEL: No, I don't believe you did, Honourable Chairperson.

MR VISSER: That is the point I am making. Now Chairperson, I also take your point that here is the Committee, assuming they did have to exercise a discretion as my learned friend said, here it is faced with a party to the proceedings or an interested party to the proceedings who says "Mr Chairman, you've got to subpoena these witnesses, they are vitally relevant to you in supporting or rejecting, accepting or rejecting the evidence of the applicants", what are you to do? Are you really going to be brave enough to say "no, hang on, I make a decision here on the facts which I haven't heard yet, I am going to make a decision"? No Mr Chairman, what you will do is you will say "all right, issue the subpoena and I will wait until we get to the hearing, I will find out what this case is about and then if it appears to me to be irrelevant, I am going to tell the person who subpoenaed him, to tell me why the witnesses are here", and I believe that that is in line with your line of thinking, Mr Chairman.

Frankly, I haven't got authority here on the proposition, I haven't prepared on it, but because my witness, Mr Coetzee said, "I will come and give evidence, I don't know what I am going to come and do here, but I will come and give evidence, I've got nothing to hide", and it is on that basis, and we have alluded to this before. In fact Chairperson, we would say the taking out of the subpoena may well be an abuse of the process, but we are not going to argue that, and we have intimated to you that we won't, and we stick to that. We are not going to try and set it aside, but if my learned friend, Mr Berger, now wants to come and says "it is your witness, I am going to be able to cross-examine him", then it is becoming a circus, Chairperson, with great respect. Because then who may or who may not cross-examine as you already put?

I am not even sure whether I am going to be able of right, to cross-examine Mr Botha. It depends on what he is going to say, if he involves my clients, yes, certainly, but if he doesn't, Chairperson, well, then I can't cross-examine, we all know that. The only relevant issue to this application which Mr Botha or Mr Coetzee could give evidence on, in our respectful submission, is, whether or not the State Security Council or cabinet or the work committee or parliament or whoever approved or disapproved of this raid afterwards. There is no other issue which occurs to us, which could possibly be relevant. We can support ...

JUDGE KHAMPEPE: Mr Visser, I seem to agree with you with regard to what is the relevant issue which will form the subject matter of this hearing, that is relevant to Mr Pik Botha's evidence today, if he is going to ultimately become a witness, but what is your interpretation of Section 29(1)(c)? Do you think it is the Committee who has to lead that kind of evidence or is it Mr Berger?

MR VISSER: Chairperson, my attorney is of the view, the same view as Mr Hattingh, I am in respectful disagreement. I say that Section 29(c) does not limit in plain words, the questioning ...

CHAIRPERSON: I hope you are not going to ask us to pay you for this opinion then.

MR VISSER: It would be nice Chairperson, to earn some money for a change. Chairperson, it is my submission that where there is no clear indication of the legislature, excluding rights and privileges of parties, it should be taken not to be excluded. The right and the privilege of any party is that he is entitled to legal representation.

Clearly parties are entitled to put their case before a Committee or a Commission through their legal representation. I cannot think of any argument in administrative or constitutional law which will prevent a party from dealing with matters which are put to him through his legal representatives and for that reason, I am not in agreement that it is only the Committee that may ask questions.

In fact we have already been tot he Appellate Division on this very issue in the Du Preez and van Rensburg matter. Any party ...

CHAIRPERSON: What was the decision there?

MR VISSER: Chairperson, broadly speaking, the right of any person who has an interest in the proceedings, has a right to legal representation and they have the right to act fully as legal representatives. That is what the Appellate Division in a 5/0 decision had found.

JUDGE KHAMPEPE: Unless of course, Mr Botha were to accede to being led by Ms Patel, if he doesn't object to Ms Patel leading this kind of evidence.

MR VISSER: That is correct, but then of course Chairperson, we again come to the question which the Chairman has raised, and that frankly is as clear as mud, and that is who may cross-examine him? One may be able to commence by say clearly Mr Berger cannot cross-examine him because he is here at his behest and when you, it is no good for my learned friend, Mr Berger, to say but he is not his client. That is not the case, the test is who is the person that is responsible for bringing that person before Court.

CHAIRPERSON: Mr Berger argues that it is the Commission by virtue of the fact that the Commission at the very least, acted as a conduit for the issue of a subpoena and therefore it is strictly speaking the witness of the Committee. That is what he is arguing.

MR VISSER: Well Chairperson, you cannot have your cake and eat it. If that is the argument, then perhaps Justice Khampepe is correct to say well then in that event, if it is the Commission's witness, then only the Commission may ask him questions and nobody may cross-examine him.

JUDGE KHAMPEPE: Obviously the process would be very unfair if we didn't allow parties to cross-examine, pursuant to a witness called by the Commission, precisely because all the parties have an interest in the subject matter to be considered before the Commission.

MR VISSER: But I am in total agreement with you Chairperson, that is why I say that cannot be the correct argument.

CHAIRPERSON: Whatever the case may be Mr Visser, I can tell you now the issue that I want to decide is whose witness Mr Botha is in relation to establishing who can cross-examine him.

I've got no doubt in my mind that the rest of the representatives have a right to cross-examine him.

MR VISSER: Chairperson, my respectful submission, it is Mr Berger's witness. If you think away the application for these witnesses to be subpoenaed, they wouldn't have been here, and once they are here, they are here simply and solely at the behest of that particular party and unless the witness becomes hostile or some of the other reasons step in, it remains their witness and they may not cross-examine him, Chairperson.

CHAIRPERSON: Mr Visser, can you give me a citation of that case that you ref erred to?

MR VISSER: I will give it to you, I will just look for it and give it to you Chairperson. I may have it somewhere.

CHAIRPERSON: Mr Toweel?

MR TOWEEL: Chairperson, I tend to agree with Mr Visser, or I would like to agree with him, however but I would rather agree with Mr Hattingh.

CHAIRPERSON: Mr Cornelius?

MR CORNELIUS: Thank you Mr Chairman. I think we are compounding this issue unnecessarily. There are three questions that we should ask. Did he exercise a discretion in calling this witness or not, in terms of Section 29(1)(c), the answer is no. Did he apply his mind to the fact that this witness can give relevant evidence or not, the answer is no. What is the position of Ms Patel, she is purely the Evidence Leader and this man is brought here today with a subpoena. The fact is the Commission did not call him, so my attitude is that he is not properly put before this Court, the Commission did not call him, you didn't apply your mind to it, and he shouldn't testify. That is my attitude.

CHAIRPERSON: Are you saying Mr Cornelius, that the Commission was the only party that could have subpoenaed him?

MR CORNELIUS: Well Mr Chairman, if you read Section 29 ...

CHAIRPERSON: In which case, then it was the only way to get him to testify?

MR CORNELIUS: Yes, before the issue of the subpoena, if I read Section 29(1)(c) it is quite clear that the Commission must apply its mind to the fact if this man can give relevant evidence or not. It is not by way of representations made by parties, that was not put before the Commission, so I feel that he is not properly called by the Commission itself.

Although there is a subpoena issued by the Evidence Leader, who is in a position where she should be totally impartial to the presentation of evidence before this Committee, so I cannot see why he should testify.

CHAIRPERSON: Mr Cornelius, I ask you this, if the Commission is of the view that they don't require the evidence of a particular person, whether that decision is correct or not is not the issue, but there is a party to the proceedings who feel well, that particular person is in fact necessary, how would that person then go about ensuring the presence of that witness?

MR CORNELIUS: Thank you Mr Chairman, they must table the evidence properly before the Commission, and all parties must be given the opportunity to do so. Then you can apply your mind to it, and then you can make a ruling over the issue of the subpoena in terms of Section 29(1)(c), that is the way I see the Act.

CHAIRPERSON: And then whose witness is it?

MR CORNELIUS: If you have made a ruling, it is the Committee's witness, you called him in terms of Section 29.

CHAIRPERSON: In which case you are then saying that once the witness is subpoenaed and attends a hearing, all the parties except the Commission and maybe the Evidence Leader, are not entitled to cross-examine that person?

MR CORNELIUS: No, if the Committee calls the specific person to enlighten the procedure or to enlighten certain facts, obviously we would be able to cross-examine him.

CHAIRPERSON: Everybody?

MR CORNELIUS: Yes, then we won't have the situation, Mr Chair ...

CHAIRPERSON: Even the party that motivated it?

MR CORNELIUS: Yes, even the parties who motivated it, then the whole thing will be resolved, Mr Chairman, because at the moment, that is the issue that we have got, we don't know who called him, nobody can really cross-examine him, he is just here with a subpoena which is, I think, an abuse of the process, that has been issued.

CHAIRPERSON: Mr Lamey?

MR LAMEY: Chairperson, I, notwithstanding the provisions of the Act, I would submit that your common law rules of administrative law as well as the provisions of the constitution regarding fair administrative hearing, is applicable here. I think you must decide whether you have exercised the power in terms of Section 29(1)(c) of the Act, in other words you have, that would entail that you must have been of the view that Mr Botha has relevant evidence to give to this Committee, pertaining to the applications and the fair hearing of the applications and a fair hearing to the parties opposing that applications before you.

As I understand you, that discretion could not have been exercised, because, until this morning, we didn't know what Mr Botha had to say, so at the time of the issuing of the subpoena, you could not have exercised a proper discretion in terms of the Act. That bring us ...

CHAIRPERSON: By you you mean the Commission, not the Committee?

MR LAMEY: I mean the Commission, yes. So I see it that Mr Berger is of the view that in the interest of a fair hearing and maybe in the interest of his clients, Mr Botha could give relevant evidence. Whether that evidence is relevant will obviously be decided ultimately and if he gives evidence, which are not relevant, then other parties could object to that evidence.

I see it primarily as a subpoena being issued at the request of Mr Berger representing the parties opposing the applications, and not as a discretion exercised by the Commission at this stage, as it please you Chairperson.

UNIDENTIFIED COUNSEL: May it please you, Mr Chairman. I find myself in accordance with Mr Lamey and Mr Cornelius, I think the matter has to be taken back to whether a proper discretion was exercised, and I think, this in some way also is in accordance with the argument by Mr Visser, that there was no proper execution of the discretion and the question which has to be decided is whether Mr Botha is properly before the Committee today. I would be of the opinion, and this is without proper preparation for argument on this issue, to say that no proper discretion had been exercised as the other parties had no opportunity to respond to the arguments presented by Mr Berger and his instructing attorneys for the subpoena of the witness and I would feel that no discretion being exercised, the subpoena was an abuse of the process and that Mr Botha is under no obligation to be here today then, and to testify.

MR LAMEY: Chairperson, I just want to make something clear, my learned friend has referred to me, I didn't say that the subpoena was an abuse of the process. I just want to make that clear.

CHAIRPERSON: I understood that was his whole - Ms Patel, any argument?

MS PATEL: Thank you Honourable Chairperson, I will be brief. My prima facie view on the matter is that a party who has made a request to the Commission for somebody to be subpoenaed, because we don't have set out rules and regulations, bar what we see in Section 29, it has been the practice of the Commission that when somebody request that, when a party to the proceedings request that a particular person be subpoenaed, that those motivations then be received by us, pursuant to which the subpoenas are then issued.

The only question I think that vexes us here today is whose witness Mr Botha is, so that we decide who is entitled to cross-examine him. My view on that is that the procedure that has been followed to date, in terms of my experience of the process, is that parties who are subpoenaed, are then entitled to legal representation of their choice, it has been standard procedure that all parties, in my experience, who have come to the hearings under a subpoena, have come with their own legal representatives, and have then been led by those legal representatives, who have then also protected their rights in terms of that subpoena. The person would then become that person's witness, and parties are then entitled to cross-examine the person.

Mr Botha has today chosen to come without a legal representative. The argument has been raised that Mr Botha now becomes my witness. I would disagree with that position in as much as he hasn't been called at my behest, he has been called at the behest of a particular party. My view on whether that party who has sent in the motivation, whether he is entitled to cross-examine, my prima facie view is that he would then, he would then definitely be entitled to cross-examine the party to the extent that we sit with a body, with a tribunal, where the criteria that we apply are very different to that in the normal course of events.

The purpose of this tribunal is to ensure that parties have complied with the criteria that is set out in the Act. Parties who then have an interest in this process, are then entitled to call a person who they feel has evidence, or information that is relevant to a proper adjudication of that matter.

In terms of that, should then be entitled to cross-examine if that cross-examination is going to lead us to a position where we are entitled to properly apply our minds as to whether amnesty should be granted or not.

CHAIRPERSON: ... give you the following example. Party A calls witness X, not knowing what witness X can say or is likely to say. But there is a suspicion that that X witness can throw some light onto the matter, obviously party A would like that witness X to give evidence that favours that party. He would hardly be in a position to call another witness to give evidence negative to his case.

Now X comes and gives evidence and indeed gives negative evidence, what is the position of that evidence in respect of party A? Is he stuck with that evidence or is he entitled to challenge that and declare this witness that he called, an incredible witness, not declare, maybe even argue that.

Surely a party cannot be in a position to call the whole world in the hope that somewhere along the line, he would get positive evidence. As I see it, and unless I am persuaded differently, the party at whose behest the witness is being called, is stuck with those answers. In order to be, to accept that, then there can be no room for cross-examination. I don't know, I am putting the proposal to you, I would like to hear your comment. Bear in mind I am going to give Mr Berger a chance to respond and Mr Botha. What is your comment?

MR VISSER: Chairperson, are you calling on Mr Berger to reply now?

CHAIRPERSON: I am putting this example to Ms Patel.

MS PATEL: Honourable Chairperson, I have to say that technically legally, I believe that, or in terms of the common law I guess, Mr Berger would under these circumstances not be entitled to cross-examine. My argument would however be that we are a body of a special nature, the criteria that we apply, are different and so the considerations that we apply to this process, should be different and in the light thereof, my argument would be that he would be entitled to cross-examine.

CHAIRPERSON: As I understand your evidence then is that we are a special kind of Tribunal, and the interest of justice should foremost be served rather than rely on technicalities.

MS PATEL: Absolutely Chairperson.

CHAIRPERSON: Let me ask you this then, let's assume we agree with that, is it open for a party to call all and sundry and have a good scrap and argument with that person if that person doesn't give favourable answers?

MS PATEL: No certainly not, Honourable Chairperson. I think in as much as they say special rules or special considerations need to apply, we are still bound by the rule that whatever is said, needs to be relevant or germane to the hearing and to that extent, parties should be allowed to enquire from the person who has been subpoenaed.

CHAIRPERSON: Is that party stuck with whatever answers he gives or is that party entitled then to say "look, we don't agree with what you are saying here and I put it to you this, that and the other"?

MS PATEL: I believe the party would be entitled to if the basis of the objection to what is being said, or the non-acceptance of what is being said, is properly motivated, yes.

I think the position would be very different, if I in my position as Evidence Leader had motivated personally or in my position rather, in my capacity as Evidence Leader, had motivated for that person to be brought before the Commission.

CHAIRPERSON: You are for all intends and purposes an ordinary party here?

MS PATEL: Absolutely, yes.

CHAIRPERSON: Had the Committee or the Commission subpoenaed Mr Botha, you would have to lead the witness?

MS PATEL: That is correct.

CHAIRPERSON: In this case, it is not the situation and I dare say if we had subpoenaed Mr Botha, you would have to lead him, you would be curtailed from cross-examination?

MS PATEL: Sorry, may I just withdraw my previous response. I would not necessarily have to lead the party that we have then subpoenaed, that subpoenaed party would still be entitled to a legal representative of his choice.

If he chose to use me as a representative of the Commission, that would be then that subpoenaed party's choice, but we wouldn't be entitled to impose my services upon ...(intervention)

CHAIRPERSON: No, I take the point, but if you had led him, you would be curtailed from cross-examination?

MS PATEL: Absolutely. I would then have to protect his interest.

CHAIRPERSON: Correct. Mr Botha, have you got any argument on this? Before, have I given everybody a chance?

MR BOTHA: Honourable Chairperson, thank you very much. If you will allow me, when I received this subpoena I think my anger was comparable to that of the newspaper editors recently because I did nothing wrong.

It is well known even by the applicants here what role I and my department played in the past in matters of this nature. I phoned Ms Patel at the time, and she would testify to that, and objected most strongly and said to her, because I knew how much research this would require and I haven't got staff, two to three weeks of my life now is gone again. Even the company or the attorneys representing one party here, admitted in his motivation that no permission was ever given at government level for that raid. It is there.

I phoned Ms Patel and I said "what is going on here", if you read the minutes of the 20th December State Security Council meeting, it is absolutely beyond any doubt certain that the Security Council did not on 20 December know that a raid had taken place.

CHAIRPERSON: Mr Botha, that what you are telling me now, relates to the merits. What we are busy discussing here now, is your status as a witness. Whether you are a witness such that you can be cross-examined by all the representatives here or whether Mr Berger, who represents the victims of that raid, is also entitled to cross-examine you, or are you a witness that has been called here at that party's behest. That is all I am trying to settle now.

If eventually you are asked to testify, then we can talk about whether you were party to a decision, etc.

MR BOTHA: Yes, of course I respect your guidance, but Mr Chairperson, my only point was that I could still not understand on what basis I was called here.

CHAIRPERSON: You are called here?

MR BOTHA: But now with respect, that it is done, and I had to cancel tremendous appointments and forego medical treatment for shingles, I am here now, for better or worse. I drafted a statement, a sworn statement and as far as I am concerned, I am here, I am ready to answer any questions from any quarters.

MR VISSER: Mr Chairman, would you allow me an indulgence? I am sorry.

CHAIRPERSON: I am just considering this last statement. Mr Botha, I don't know if I am going to rule in this direction, but I need to know something from you. Do I understand your last statement to mean that you don't mind being cross-examined by anybody?

MR BOTHA: No, if you will just allow me to say again I would have preferred not to be here at all, but now that the damage has been done, and I have been thrown to the wolves ...

CHAIRPERSON: I understand you to say that, yes.

MR BOTHA: I am ready to answer any questions from you, the honourable Committee members, the media, the representatives, anybody, anybody.

CHAIRPERSON: And you have come here knowing full well your rights to representation and you have chosen to represent yourself?

MR BOTHA: Yes, well, I simply do not have the means to appoint a legal representative.

CHAIRPERSON: Would you have liked to have had a representative?

MR BOTHA: Not really, because with respect Mr Chairperson, I am an Advocate of the Supreme Court myself and if I ...

CHAIRPERSON: You feel capable of handling it yourself?

MR BOTHA: I think so. I feel at ease.

CHAIRPERSON: I accept what you are saying. Mr Visser ...

MR VISSER: No Chairperson, I just feel constraint to refer you to a section of the Act which may be relevant for purposes of your consideration, and that is Section 31. That also deals with witnesses, and that here deals specifically with the compellability and inadmissibility of incriminating evidence before the Commission. I will read to you (1) and (2) and you can see the relevance. (1) says -

And then (2) says:-

Chairperson, on the point of assuming for a moment a discretion was exercised by the Commission, as the Act says, then it appears that the situation will be that it is the Commission's witness. Of course if such discretion has not been exercised, and I was hoping that we would hear from Ms Patel who signed the subpoena, then of course that changes the whole picture as we have already discussed.

Chairperson, the reference to Du Preez and van Rensburg is 1997 (3) of the SALR, Supreme Court of Appeal, I unfortunately do not have the page number, but I will give it to you as soon as I have it, that is the volume, 1997 (3).

Chairperson, very hesitating this ruling which you are going to give, is obviously also going to affect Gen Coetzee, because he is here on the same basis. I just without wanting to waste any of your time, just alert you to the fact that he appears also to be an implicated person, if one has reference to the written presentations. There are indications that he must have been lying because he wasn't the Commissioner of Police in 1982. It is the question of the 1982 or 1985 thing, yes.

Now in that event Chairperson, and I don't want to take any more time, just to alert you to the fact that in this case, only Section 19 can be relevant and not also Section 29. That would be my argument, because in Section 19, provision is made for applicants, implicated persons and victims and very specific procedures are laid down in Section 19, so Section 29 in my submission won't be relevant as far as he is concerned.

But again Chairperson, I just mention it and I reiterate that we are not opposing or attacking the subpoena at all, at this stage. I just thought I might mention that to you.

CHAIRPERSON: Mr Visser, can I put something to you before I get to Mr Berger seeing that you were the one who made the submission with whom a few other representatives aligned themselves.

Mr Botha has indicated that he is willing, able to answer any questions from wherever whence it comes. Bearing that in mind, is it worth indulging in a ruling now?

MR VISSER: Just as Cassie Bressler used to say "parties can hang themselves as far as he is concerned, by agreement", if this is by agreement, the whole matter really falls away, that is quite correct. But it is not necessarily the statement, the position of Gen Coetzee, but as far as this ...

CHAIRPERSON: I never mentioned Gen Coetzee yet.

MR VISSER: But as far as this witness is concerned, yes.

CHAIRPERSON: If necessary, we will have to go through the same procedure when and if that happens?

MR VISSER: Yes. That does not detract from the fact of course that you will still see to it Chairperson, with respect, that the issues that are going to be raised in cross-examination, are relevant obviously?

CHAIRPERSON: Is here anybody who hasn't read Mr Botha's statement? Nobody? We want to emphasise and preface our ruling with the following first. Our ruling is a matter that should not be regarded as precedence. We are very fortunate in the sense that Mr Botha said he is willing to answer any question from anybody. In those circumstances we choose not to make a ruling, but to allow him to hand in his statement and anybody can then ask him any questions of any type provided that it is relevant to the proceedings of this hearing.

We emphasise it is not a matter to be regarded as precedent and don't quote us at another hearing, please. We may very well later on have to go through this procedure and make a ruling, I am avoiding to make a ruling now, in order to save time and not to be too controversial in the matter. Thank you.

Mr Botha, are you, which language would you feel more comfortable with, it is up to you?

MR BOTHA: Naturally Afrikaans, but I think it will make it easier for all of us ...

CHAIRPERSON: No, I am interested in making it easier for you, nevermind everybody else. You prefer Afrikaans?

MR BOTHA: It is my home language, yes.

ROELF F BOTHA: (sworn states)

CHAIRPERSON: Thank you, you may be seated. Mr Botha, you have been subpoenaed here to this hearing, and you have already made the point that you don't have know why you are here. I must say that I don't know myself, but hopefully we will discover why during the following few minutes.

MS PATEL: Honourable Chairperson, for the record may I state that I am in possession of a properly commissioned ...

CHAIRPERSON: ...(indistinct)

MS PATEL: Yes, and the copies that were sent out, were a copy of the commissioned copy that I ...

CHAIRPERSON: In due course would you hand that up to, for official purposes?

MS PATEL: I will certainly, thank you Honourable Chairperson.

CHAIRPERSON: You are familiar with the contents of this document, you are the one who compiled the document?

MR BOTHA: Yes Chairperson.

CHAIRPERSON: Are there any amendments that you wish to bring to this document or improvements?

MR BOTHA: No.

CHAIRPERSON: Not anything?

MR BOTHA: I have nothing to add or change to the document.

CHAIRPERSON: Do you wish to hand up this document as your evidence in as far as it regards what you think is necessary?

MR BOTHA: Yes, if you would permit me Chairperson, I thought that it would save everybody's time.

CHAIRPERSON: Yes, and we appreciate that.

MR BOTHA: Ms Patel also told me to do so if it was possible for me, but I don't have any staff members, and I worked until late to get this document in order and I only took the oath here this morning with the police and I thought that it would facilitate your task and everybody else's task.

CHAIRPERSON: Yes, and this is the sum total of your evidence regarding this matter as far as you can see?

MR BOTHA: That is correct.

CHAIRPERSON: And you have already indicated that you are prepared to respond to any questions to this document or pertaining to the incident that we are discussing, as far as you have knowledge thereof?

MR BOTHA: That is correct.

CHAIRPERSON: Mr Hattingh, do you have any questions?

MR HATTINGH: Chairperson, ...

CHAIRPERSON: Will we then mark this statement as Exhibit D?

MR HATTINGH: I am still in agreement with Mr Berger, that he ought to commence. It may be that thereafter I might not have any questions.

CHAIRPERSON: Is everybody satisfied that Mr Berger should begin? Mr Berger, are you satisfied to start?

MR BERGER: I have no problem starting. Chairperson, at what time are you going to take the tea adjournment?

CHAIRPERSON: It is a smoke free zone.

MR BERGER: Well, I am a smoke free person, so it is fine.

CROSS-EXAMINATION BY MR BERGER: Mr Botha, my name is Danny Berger, I appear here on instructions of Ms Norval and the firm of attorneys whose letter you have responded to. We act on behalf of all of the victims of the raid on Lesotho on the 19th of December 1985.

I want to ask you some questions about your involvement and your knowledge in the events of the time and I would like to start, I have read your statement, and I will be asking you certain questions surrounding your statement, but I would like to start with a meeting of the State Security Council at which you were present on the 21st of October 1985.

If you want, Mr Botha, you can answer in Afrikaans and I will ask my questions in English. The minute of this meeting appears at page 66 of Bundle 3. I don't know if you have the Bundle in front of you?

MR BOTHA: Yes, to save you time, I have it in front of me and I thoroughly studied it, I know exactly what is in it.

MR BERGER: Now, is it correct that at this meeting of the State Security Council a memorandum was discussed concerning the authority of the South African Army in relation to cross-border operations in Angola, Zambia, Zimbabwe, Mozambique, Botswana, Lesotho and Swaziland?

MR BOTHA: Yes, it is correct.

MR BERGER: And I see that you have a copy of that memorandum as well, in front of you?

MR BOTHA: Correct.

MR BERGER: Chairperson, that is the memorandum which appears at page, starting at page 60 of Bundle 3. Why was it considered necessary to discuss this memorandum at that State Security Council meeting?

CHAIRPERSON: Is that of the 20th?

MR BERGER: The Security Council meeting of the 21st of October 1985.

MR BOTHA: I cannot say exactly why it is necessary, I was not responsible for the agenda of the State Security Council meeting and unless a specific Minister or member of the Council himself or herself wanted to have a matter on the agenda, it was not your business to try and establish or stop others from putting their own agenda items on the agenda. As this is not a matter that fell under me, I do not even know, I just see here Mr Chairperson, at the Work Committee's meeting of 2nd of October 1985, the above-mentioned subject was addressed. I don't know what that Working Committee is, it is definitely not mine.

MR BERGER: The document impinged upon your department and let me refer you immediately to paragraph 3, under the heading "Algemene Riglyne", do you see that? And it says there in the second sentence that in all cases except where there is immediate reaction necessary, it is necessary that the closest possible cooperation beforehand takes place between the South African Defence Force and the Department of Foreign Affairs as well as other interested departments, to ensure that the department and it is referring to your department, its basic responsibility can, it can meet and that the operation on the, can be carried out on the most effective basis, I beg your pardon, so that it can be communicated most effectively to foreign governments and the media and that it can be justified.

So it was decided that your department had to be involved in cross-border operations where the army was involved, except where immediate action was considered necessary, would that be fair?

MR BOTHA: No, it is not correct.

MR BERGER: Why not?

MR BOTHA: Because in paragraph 12 of my affidavit I specifically deal with this matter fully. If the Chairperson wants me to repeat the whole memorandum, then I will continue to do so but I thought as I said earlier, respectfully Mr Chairperson, that I could save time. Now questions are being put to me which were put to me and which I have dealt with fully. If it is the wrong way to do things, then I will explain very properly, but here I have explained it.

As regards Foreign Affairs, it was not required that the department had to approve any operations. The guideline says that there should be the closest cooperation with the department and the Defence Force for the specific purpose of enabling the department, that is my department or used to be mine, to transmit information on the operation effectively to other governments.

The guideline specifically excludes cooperation with Foreign Affairs in cases where an immediate reaction is required. The exception is not limited to hot pursuit actions, the deciding factor is whether immediate action of whatever nature, is required. I cannot recall instances where the department was consulted and approved cross-border activities in advance of such actions. In practice we were informed of such actions an hour or two before it was launched, or while the action was in the process of being implemented.

In all the cases of Defence Force activities, the Chief of the Defence Force, acknowledged a responsibility and held press conferences to explain the justification for the operation. In some cases where we were consulted, we managed to persuade the Defence Force not to go ahead with the planned action in the light of the serious consequences internationally. That is my answer.

CHAIRPERSON: How often, Mr Botha, did you in fact, or your department, persuade the Defence Force or other Forces not to proceed?

MR BOTHA: Yes, thank you for the question Chairperson. May I just say that the memorandum Mr Berger is referring to, that memorandum deals with Defence Force operations, not Police operations. If the Defence Force did not launch the raid, then it is totally irrelevant to refer to that memorandum.

CHAIRPERSON: It only applied to the Defence Force?

MR BOTHA: Only the Defence Force operations, it is in the heading clearly for everyone to read.

CHAIRPERSON: Well, while you are at it, were there instances where you persuaded or the department persuaded let's say the Police Force not to proceed with a planned attack?

MR BOTHA: No. With respect, I cannot recall an incident where the Police asked for approval from Foreign Affairs to undertake cross-border activities.

CHAIRPERSON: Okay.

MR BOTHA: To return to your first question, Chairperson, let me just explain to you how these things would happen. The Chief of the Defence Force would phone the Director General of Foreign Affairs and say "look, can I come and see you", because they would not discuss matters of that nature on the telephone. Everybody was just about tapping everybody at that time.

The Police the Defence Force, the Defence Force National Intelligence, all of them, me, and so it went on all the time. Be that as it may. Then they would meet and then my Director General would report to me, I would then call Gen Malan and we will have a discussion and I will say to him "look, is it really, when you take now the damage that we are going to incur economically, we already have sanctions, it is already difficult, ask the Minister of Finance", the Minister of Finance was my one supporter always in these matters. "Is it now really necessary if I picture to you the consequences, Security Council meeting, additional sanctions, ...(indistinct)" and I must honestly say I have not been in touch with Gen Malan recently, but I can check it out with him if needs be, but it must have been at least on five or six occasions where raids were planned, cross-border raids and where Gen Malan then agreed and called it off.

MR BERGER: Mr Botha, if you would listen to my question, perhaps you wouldn't get so angry with me. My question to you was not about approval, my question to you was about consultation and all I asked if you had listened, was was it agreed that in relation to cross-border operations by the Army, there should be the closest possible cooperation between your department and the Army? Surely the answer to that is yes?

MR BOTHA: No, it isn't that simple. And with respect, I object to the things that Mr Berger is saying here. That is my way of speaking, I mean no offence, why should he attack me Mr Chairperson?

CHAIRPERSON: Just keep the questions straight and to the point please.

MR BERGER: As you please Chairperson.

CHAIRPERSON: Mr Botha, Mr Berger in essence repeated a question and he feels that you haven't dealt with it properly, did you understand the question?

MR BOTHA: Yes. If Mr Berger recalls what I have said, then it is not simply a simple answer to say that there should be the closest cooperation between Foreign Affairs and the Defence Force. Excluded is all action where an immediate reaction is required, and secondly what does it mean "closest cooperation"? It means and it says with a view to being put in the position where the Department of Foreign Affairs could then effectively inform foreign governments of the action. It is with all respect not correct simply to say it should be the closest cooperation.

MR BERGER: Mr Botha, in my first question I excluded hot pursuit, I am looking at the words the closest possible cooperation beforehand between the South African Defence Force and the Department of Foreign Affairs.

Now excluding hot pursuit operations, I think we are in agreement that in order for you as Minister of Foreign Affairs to be in a position to deal with foreign governments and the media, so as to portray South Africa's image in the best possible light from your point of view, you had, your department, had to be informed beforehand by the SADF of their intentions to carry out a raid, to give you room to do your job properly? Is my summary still not correct?

MR BOTHA: That is correct now, except that the exception is not limited to hot pursuit actions. It is clearly stated that any response requiring immediate action, the action is not limited to hot pursuit, it could be of extreme importance to send tonight an aircraft to Gaberone, ...(indistinct) because of some reason, this is now urgently required, and then it is excluded.

MR BERGER: Yes, but if there was a couple of days, if the raid was being planned to take place within a couple of days, then you ought to have been informed, your department ought to have been informed beforehand of the intention to carry out the raid, so that you could be in a position to do your job properly?

MR BOTHA: According to the memorandum, but it didn't happen that way in practice.

MR BERGER: This is what was agreed at the State Security Council meeting, this is how things should have happened, would that be correct?

MR BOTHA: Yes Mr Chairperson, but as with most things in life, that was not a law, it didn't have the sanction of a law. The Defence Force operation area extended beyond the borders of this country, not the Police.

With the result that the Defence Force could do those things legally and the Defence Act did not require the Chief of the Defence Force to consult anybody. Not even the cabinet of this country, could take decisions which ...(indistinct) the Chief of the Defence Force in violation of the Defence Act.

ADV BOSMAN: In simple terms, is it a gentlemen's agreement really, was it a gentlemen's agreement that they would consult?

MR BOTHA: Yes, by and large, that is very well put, thank you.

MR BERGER: Well, Mr Botha, isn't it more than a gentlemen's agreement because let me sketch a scenario which I think was existing at the time. As you have told the Committee you were faced with sanctions, you were faced with all sorts of international pressure, the South African government was regarded as a pariah government, was treated as a pariah government I should say. Your life as Minister of Foreign Affairs was very difficult.

Now given all of those, that situation, if South African Forces were to cross the border and bomb Gaberone as in the example that you have given, and Botswana citizens had been killed in the process, you would have been the person who would have had to take the flack, is that correct?

MR BOTHA: I think the country as a whole suffered as a result of that, but I being Foreign Ministry had to either explain this to the world outside, based then on the facts that would have been supplied to me mostly after the event. To give you Mr Chairperson, one example. On the morning that the Gen Obesanyo, now President of Nigeria, handed to me the ...(indistinct) Persons' Group's negotiating concept in 1986, it was in May 1986, three or four hours before he handed to me that concept, which might have formed the basis of negotiations already then between the government and the ANC, that very morning Gaberone was bombed, Lusaka and Harare, three Commonwealth countries, and that was the end of the negotiating concept.

My Director General, Mr Niel van Heerden, was informed four o'clock that morning that the aircraft were in the air. This is the practice. It is forgotten that the State President was the Commander in Chief and that he certainly was not bound by any of these decisions, because the cabinet decision was the President's decision and the President's decision was the Governor's decision. If a member of the cabinet could not agree with the President's decision, then you had to resign.

I just want to make these things very clear.

MR BERGER: You say in your statement in paragraph 12.3 the last sentence -

Now my question to you is, isn't this guideline paragraph 3 that I have been referring to, isn't, wasn't it tabled and agreed upon so that where possible South African's image internationally from your point of view, would not be made worse, so that if there was a raid for example and you had been informed about it beforehand and grounds of justification had been given to you beforehand, as soon as the raid occurred, you would be in a position to inform the international media and the international community why it had been necessary for the government to take such action?

MR BOTHA: Yes, that was the language of the memorandum. The language of the memorandum wasn't followed. My I Mr Chairperson, with your permission, just ask you mentioned relevance. As this was not a Defence Force action, may I ask what is the relevance of these questions, I don't mind replying to them?

CHAIRPERSON: As I see it, the whole operation of government at that time, and to put it at its lowest, the reluctance of authority to get involved with the decision making of unlawful acts, now yes, it is as I understand it, the issue that we are discussing here, was a Police action, but there were certain Committees, I still don't know to what extent those Committees had teeth because at times they had teeth and at times, they didn't.

I think what Mr Berger is after is to find out to what extent this authoritative Committees would have had a say or otherwise in this event. That is how I understand it, I don't know if I am understanding it correctly, Mr Berger?

MR BERGER: That is correct Chairperson.

CHAIRPERSON: That is why you may see it as a matter pertaining to the Army at the time, it becomes irrelevant as far as the authority is concerned, of this Committee and that is why he is asking you all these questions about it.

MR BOTHA: I appreciate it, but if it was a Police action, this memo would not have applied to the Police, this is the point I am trying to make.

CHAIRPERSON: Well, let me ask you then Mr Botha, maybe to make it easier, I was going to ask you this question at the end of your testimony, why was it that, or let me put it this way, was there a separate set of guidelines similar to these that pertained to Police raids?

MR BOTHA: I do not know. The Police had also their own Act. The Police Act would have described it.

CHAIRPERSON: Now, let's accept that, but you were the Minister of Foreign Affairs, in some way you must have been party to the, if you can call it, the gentlemen's agreement to be informed and to be consulted about proposed cross-border raids? You emphasised that that would have been in the case of the Army. We all know now and a lot of us knew then, that the Police also used to do it. Why would there not be, why would your department not have gone to the Police section and said we want a similar relationship with you as we have with the Army?

MR BOTHA: Mr chairperson, I could not, there was a Minister of Police and a Defence Minister. Foreign Affairs had no law and troops and ...

CHAIRPERSON: No, no, I accept that, but this gentlemen's agreement?

MR BOTHA: So they, in terms of their law, applicable to them, had to make sure, each department that they acted within the framework of the law. Foreign Affairs was put in the envious position that we had to account not only for some activities of the Police and the Defence Force, but also for all things that went wrong in this country and normally we came into the hot water after the event, not before.

As my erstwhile colleague, Mr Vlok, himself testified, in his amnesty application when he was asked but why didn't you consult Pik Botha, he said "but he would have refused". That is the answer, Mr Chairperson.

CHAIRPERSON: As I understand it then, you didn't have as good a relationship with the Minister of Police at the time as you had with the Minister of Defence at the time? At least the Minister of Defence tended to listen to you, he may not have agreed on each occasion, but at least you could talk to him, whereas with the Minister of Police, you seem to have drawn the conclusion that there is no point talking to him, because his attitude was that Pik Botha would have refused? Do I understand you correctly?

MR BOTHA: Not Mr Vlok.

CHAIRPERSON: Well, whoever, the Minister of ...

MR BOTHA: The former person and because he is not with us any more, I would be hesitant to reply because he cannot reply to me, but I can point to a specific incident. The late Mr le Grange phoned me at about three o'clock the morning, one morning, to say to me that there was a plane from the Seychelles on its way to Durban and he now informs me so that Foreign Affairs can deal with it.

I was unfortunately - I lost my temper and used a word that starts with an "f" and said to him that "now we have become the so and so terrorists of Southern Africa". That is just another illustration. In my heart I am convinced that my former colleague knew about the Seychelles, but when it went wrong, I am called three o'clock in the morning.

CHAIRPERSON: Yes, Mr Berger?

MR BERGER: Thank you Chairperson. Mr Botha, I am still on this document, the guidelines, what you call a gentlemen's agreement, paragraph 14 of the document deals specifically with action against Lesotho, at page 64 of Bundle 3.

There a distinction is drawn between those operations which had to be approved in advance by the Chairperson of the State Security Council, being P.W. Botha and those operations which had to be cleared with the Minister of Defence, it would have been Mr Malan, and where necessary in consultation with the Chairperson, Mr Botha. You will see there that there are follow up operations, reconnaissance operations and special operations.

Now again clearly whilst you say legally, according to the Defence Act, the Chief of the Defence Force had the power to launch whatever strikes he considered appropriate or necessary, nevertheless in terms of these guidelines, he had to inform in advance either the Minister of Defence or the State President, depending on what type of operation was being carried out.

My question to you is this, we have heard from Mr van der Merwe that whilst there were these guidelines applicable in relation to South African Defence Force, there were no such guidelines in existence in relation to the South African Police. What I want to ask you is why was that the position?

MR BOTHA: I don't know. I simply don't know.

MR BERGER: Did it not occur to you when these guidelines were being discussed in relation to the Defence Force that you should also have guidelines in relation to the Police?

MR BOTHA: Mr Chairperson, imagine the cabinet and the Minister of Foreign Affairs suddenly objecting in a period of drought, that the Minister of Water Affairs, didn't build enough dams. With respect, why should the Minister of Foreign Affairs, when a memorandum of this nature is submitted by the Defence Force, now insist that a similar one must be done in respect of the Police.

MR BERGER: I will tell you why, Mr Botha and that is because if there is a drought in South Africa because not enough dams were built, that is not going to adversely affect the image of South Africa internationally. In the same way, a cross-border raid by members of the South African Police going into Maseru, massacring people including Lesotho citizens, the fall out that that is going to have on the international image of South Africa, is "vanselfsprekend" to use the Afrikaans words. That is why as Minister of Foreign Affairs, I am asking you why did it never occur to you that there should be a similar gentlemen's agreement in relation to the South African Police?

MR BOTHA: Because the South African Police could only operate in the borders of South Africa whilst the Defence Force could operate within its operation area by law.

CHAIRPERSON: Are you saying that the cabinet, the department, was not aware that the South African Police were sending out troops to perform unlawful activities in foreign countries? They may not have known beforehand, but after the first few, surely they must have known?

MR BOTHA: In the days when we were in Rhodesia, yes, in those days. But the Department of Foreign Affairs accepted and assumed that cross-border operations are undertaken by the Defence Force.

JUDGE KHAMPEPE: Just to make a follow up, Mr Botha, on what the Chair has put to you. As at the 21st of October 1985, was the government seriously not aware that the SAP were involved in cross-border operations? Is that what you are trying to say?

MR BOTHA: We had suspicions, but no proof.

JUDGE KHAMPEPE: And your suspicions were based on what?

MR BOTHA: Your officials in your department talking during tea time or whatever and saying that as I indicated in most cases as I recall it, when the Defence Force undertook an operation, the Chief of the Defence Force announced it, called a press conference and endeavoured to justify it. And then Foreign Affairs from that point, took over to tell our missions abroad this is what Gen Geldenhuys or Gen so and so said, so and so said. Not us, because they had the details.

In the case of the Police, Mr Chairperson, I stand to be corrected but I simply cannot recall incidents where the South African Police undertook cross-border raids of which we were aware.

CHAIRPERSON: ... the suspicion that you talk about, when would those suspicions have come to light?

MR BOTHA: Well, in a case like this one now ...

CHAIRPERSON: No, maybe 1982, 1983, 1985, 1990?

MR BOTHA: You see Chairperson, the 1982 one was a Defence Force one.

CHAIRPERSON: No, I am just asking a date as to when thee suspicions may have come into your mind.

MR BOTHA: In this particular case?

CHAIRPERSON: No, generally?

MR BOTHA: No, but I am using this as an example.

CHAIRPERSON: Yes?

MR BOTHA: Because it was first said that it was the LLA, LLA apparently phoned a reporter and the papers then published the LLA. That is why I am trying to give in my affidavit for you, also a little bit of background according to an article in the Sowetan at the time, of the volatile situation within Lesotho, to indicate to you that it was not that far fetched for anyone to believe that it might have been the LLA.

CHAIRPERSON: That may be so, that is why I am saying stay away from this incident. What I am trying to get at is when did you and or the cabinet of the time, become suspicious that not only did the SA Defence Force commit these raids, but also groupings of the SAP?

MR BOTHA: I really cannot answer that question.

JUDGE KHAMPEPE: Let's try and assist you ...

MR BOTHA: It was a little suspicion that was just about always in our minds.

JUDGE KHAMPEPE: Yes, but as at the 21st of October 1985, had you already become suspicious of the SAP's involvement in such cross-border operations?

MR BOTHA: It is very difficult for me to go back 15 years and to restructure what went on in our minds 15 years ago. I can just remember and also in discussions I have now had with my senior officials of that time, that when a thing like this occurred, there was this suspicion, but in this case we all thought it was the LLA.

I cannot really recall other cases off-hand here, I will have to ...

JUDGE KHAMPEPE: Yes.

MR BOTHA: I will have to study this.

JUDGE KHAMPEPE: Let me tell you why I am asking about the 21st of October 1985. How I understand your evidence is that the reason why you agreed on these guidelines was to portray a very good foreign image of the country and that is why these guidelines were agreed upon.

MR BOTHA: No with respect, 99 percent of the guidelines deal specifically with country by country.

JUDGE KHAMPEPE: Yes.

MR BOTHA: And it is stated categorically that the political responsibility for the activities specified here, will rest either with the State President or the Minister of Defence.

That is 90 percent or more of this guidelines.

JUDGE KHAMPEPE: Yes.

MR BOTHA: As a general guideline, not a specific one, as a general one, it says if I may put it roughly "Defence Force, please in order to make sure that your actions across the borders are conveyed effectively to other governments, you better inform Foreign Affairs of the facts", that is what it really says.

JUDGE KHAMPEPE: Yes, that is right. Yes. That is my point, it was important for you to be well informed in order to present the image of the country that will be more acceptable? That is your department, that is precisely what your department's function is?

MR BOTHA: Yes, I suppose it is just a choice of words.

JUDGE KHAMPEPE: Yes.

MR BOTHA: It is to try to present a case which makes your activity not so bad.

JUDGE KHAMPEPE: Precisely, yes.

CHAIRPERSON: Okay. Mr Botha, to cut a long story short, in an attempt to save time, let's get to the crux of the matter. Preceding this attack, as I understand the evidence thus far, there was a request to your department, to communicate to the authorities of Lesotho indicating to them that "look, Lesotho is being used for an ANC springboard to come into this country to commit all sorts of acts that we find unacceptable, please attend to it and in failure to do so, we will do something ourselves about it". If I further remember correctly, that request came from a member attached to the South African Police and went directly to your department and apparently this communication was dealt with, I am not too sure by telex or by letter or whatever.

At that stage, one would have expected your department to wonder now, what type of action are they talking about? Failure of Lesotho to take action to do something about it, what is the Police going to do about it, are they going to go into Lesotho and bomb up the place or whatever? To that extent, I think your department ought to have known that there are prospects of some international incident failing them taking action against your, or in respect of the complaint.

We also know that letter or communication was made because of that, was it not ever thought that look, if the SAP are going to indulge in this legally or illegally, that we should have a say in the matter because after all at the end of the day, I, Mr Botha, of the Department of Foreign Affairs has to deal with it in the open world.

MR BOTHA: Mr Chairperson, we sent exactly the same messages to Botswana, to Zimbabwe, to Swaziland, to Mozambique. The Department of Foreign Affairs would not in those circumstances suspect that the raid would be launched against Zimbabwe, against Botswana, against Mozambique or the other. We are conveying a concern at the, I was at the CIC meeting of 3 December, there Mr Chairperson, the Police comes to the meeting according to the minutes and say that Lesotho is now a dangerous place, the others are also, but there are now 80 ANC terrorists or whatever, ready to invade, to come across the border.

They say to us that we must tell Lesotho unless they control the ANC, we would act as we feel free. That was not the message we sent. I have it here, the message ...(indistinct), it was not, so we did not comply with the wishes of the Police to use that language at first.

CHAIRPERSON: That may be so, let me just interrupt, whatever message you sent, is not in question here, the point of the matter is that the request that we are going to do something ourselves if you fail to do something, came from the Police? I am suggesting to you that at that stage at least, your Department, I am not saying you, your department ought to have realised that the possibility of cross-border raids committed by the Police, was a possibility.

MR BOTHA: I respectfully differ, Mr Chairperson. Exactly the same information was furnished in respect to the Defence Force expressed great concern regarding security position on the Botswana border. The case of the then Northern Transvaal, several eight or nine landmines exploded, which made the situation almost far more tempting if I may put it that way, to go on a hot pursuit, mission or whatever you want to call it there, because there you had it now, from Lesotho were no people crossing to plant landmines in the Northern Transvaal, they came across the river.

So Mr van Heerden, you will see from the minutes, specifically asked CIC that day whether they cannot help so that we involve Lesotho on a continuous basis in dialogue, secondly he enquired how about the possibility of closing the border entirely or partially. That is an idea I carried forward at the 20th December meeting of the Security Council because CIC felt they could not express themselves on it.

But certainly with respect, in the light of so many potential passions that could break loose, it - I don't think with respect Chairperson, you could have expected Foreign Affairs all by itself, to say to us "well, we better tell Police in advance you don't act".

CHAIRPERSON: No, I am not suggesting that, I am coming to the point as to understanding why a set of guidelines that you were party to and applied to the SADF, was not even thought of or contemplated in respect of the SAP?

MR BOTHA: Mr Chairperson, it was simply not a function of Foreign Affairs. There was a Head of State here, and Ministers acting under laws that prescribed and put the framework within which you had to operate.

It was not for Foreign Affairs to interfere in any other department or anyone, in general during cabinet meetings, and that will be noted, I warned all colleagues when the Minister of Finance returned from America and say that he has been well received by the American Minister of Finance, I warned that eventually bankers won't take the decisions, but governments. I did it on a continuous basis.

MR BERGER: Thank you Chairperson. Mr Botha, I want to just remind you of certain facts. In 1982 the ANC office in London were blown up, in 1982 Ruth First was killed by a parcel bomb, in 1980 Joe Cabi was assassinated in Zimbabwe, in 1984 Jeanette and Katryn Schoon were assassinated in Angola, in 1983 Zweli Nyanda and other ANC operatives were killed in Swaziland. None of those operations or attacks were carried out by the SADF, they were all carried out by the SAP.

Now, wouldn't it be correct to say that by October 1985 not only did you have a suspicion, but either you well knew or you had a very very strong suspicion that the SAP was conducting cross-border raids?

MR BOTHA: Or the South African Defence Force?

MR BERGER: All right, well let's take it and examine that. In none of those instances were you consulted beforehand, would I be correct?

MR BOTHA: Correct.

MR BERGER: In all of those instances, fingers were pointed at the South African government, correct?

MR BOTHA: Yes.

MR BERGER: You had to react as Minister of Foreign Affairs, so you would have gone to you counterpart, the Minister of Defence and said "why, why are these things happening" and he would have said to you "no, no, we are not responsible for that"?

MR BOTHA: No, no, may I just explain? In the cases mentioned by you here now, I did not react, did not try to justify it when it appeared in the newspapers and that is the position.

CHAIRPERSON: That may be so, but did you not go to your counterpart and asked him "look, what is happening?"

MR BOTHA: In some cases, it is very difficult for me, Mr Chairperson, I didn't keep a diary of my discussions with persons on a day to day basis.

CHAIRPERSON: No, I accept that.

MR BOTHA: I remember on occasion I did ask.

MR BERGER: Yes.

CHAIRPERSON: Generally you had to ask in order to prepare yourself for the public official statement from South Africa?

MR BOTHA: Well, to give you an example, either the - is it the COSATU or the, what is this bomb - Khotso House, that one, because it is not so long ago, I vividly remember that during a tea break of the cabinet, Mr Piet du Plessis and myself asked the Minister of Police who did this and his answer was "no one knows". I cannot really do more than that.

JUDGE KHAMPEPE: What seems to be of concern to me, Mr Botha is that in this instance, you had already been approached by the SAP about the response, about the message that they wanted you and your department to send to Lesotho.

MR BOTHA: And others.

JUDGE KHAMPEPE: And others. Now if that is so, obviously after the raid, something must have connected that message.

MR BOTHA: Yes, but they told us when we asked, they denied it completely. The Defence Force denied it. Once they have denied an activity of this nature, there is honestly not much one can do, not today if it happens, not in those times. There is very little a Department of Foreign Affairs can do if the military goes and does something for which the Department of Foreign Affairs is not responsible.

MR BERGER: Mr Botha, didn't you issue a statement after the attack on the ANC offices in London?

MR BOTHA: We denied it.

MR BERGER: You issued a statement, didn't you?

MR BOTHA: Yes, we denied it hotly because we were assured, we were assured by the Defence Minister and the Police Minister, absolutely ...

CHAIRPERSON: Why did you ask the Police Minister if you didn't think they were ...

MR BOTHA: Because the newspapers said they suspected the police and some hundred papers also said that. Then there was also again the same type of confusion, maybe it was the PAC because the PAC and the ANC were a little bit at loggerheads at the time, because of certain events which I will not now submit to you.

Then we were specifically asked when newspapers, either the British newspapers or ours, I specifically then, in a case like that, asked the Minister of Defence, asked the Minister of Police, and they hotly denied it, completely, and then I was convinced it was not us.

Until it is proven, I have no means to do the opposite, I have no means to enquire into the Police Force to find out whether they are telling the truth.

MR BERGER: I take it Mr Botha that you are not aware that the Minister of Police at that time, awarded medals for the London bomb?

MR BOTHA: I am totally unaware of that.

CHAIRPERSON: And the Lesotho attack?

MR BOTHA: Totally unaware. I can assure you that kind of thing would not have been approved at cabinet level or so, I can assure you one hundred percent.

MR BERGER: The medals were awarded by the Minister of Law and Order? You are saying it wouldn't have been approved at cabinet level?

MR BOTHA: Yes, that is ...(indistinct) at the cabinet or at the State President's level. The only medals I know of were those awarded by the State President and they had to go through a process with a committee deciding on the merits of it. That is what ...(indistinct)

MR BERGER: Mr Botha, in paragraph 2.6 on page 2 of your statement, you say the following, you say -

Now, you knew that the Foreign Minister, the acting Foreign Minister of Lesotho wasn't referring to cross-border operations by the SADF where they came in and bombed buildings, you knew that the Foreign Minister was referring to actions, covert operations were being launched from South African into Lesotho where Lesotho citizens were being killed or Lesotho residents were being killed, isn't that what the whole complaint was about?

MR BOTHA: I can't recall meetings that took place 15 years ago, the detail, but what I can recall is that at that time, a lot of assassinations took place inside Lesotho by the LLA. That is correct. Lesotho on occasion thought that we were helping the LLA and assisting them to perpetrate killings and attacks inside Lesotho.

MR BERGER: If that is so, then that was making your job very difficult because here were organisations inside Lesotho carrying out assassinations and yet, you the South African government, were being accused of committing those acts?

MR BOTHA: Yes, Mr Chairperson, that is why I trusted that I wouldn't bore you, I spent the first few pages of my affidavit to try and give an idea of how difficult it was at the time for the Minister of Foreign Affairs. I could not for 24 hours a day go and watch the borders, I can only recall in broad outlines, what happened and as you would see also here, where our representative at the United Nations in his speech there after the Lesotho complaint was heard there, you will see there that we didn't only discuss just that, but the fact of the matter is, as I recall it and as brought out by the article in the Sowetan, there were killings, accusations by Mr ...(indistinct) almost every day, at Mr ...(indistinct) the leader of the LLA and so on.

There were indeed instances where PAC persons were shot and the Lesotho government first denied it and then later admitted it and so on. These were the facts, that was the general atmosphere. Within that atmosphere we had this meeting and at this meeting I suggested to him that we follow this now up with further discussions to try and create a more permanent mechanism or whatever to take care of border security as we have done with Botswana.

The Lesotho government never came back to me on that proposal of mine or that occasion, even after I offered to pay the expenses of such a body.

MR BERGER: Mr Botha, do you concede that the SADF in its cross-border operations at times, went outside the law and beyond the parameters of the Defence Act?

MR BOTHA: Of the Defence Act?

MR BERGER: Yes? Well of the law, of the prevailing South African law that the South African Defence Force acted unlawfully in instances where it conducted cross-border raids?

MR BOTHA: It is with respect Chairperson, very difficult for me to reply to a question of that nature, which will of necessity depend on your interpretation of the Defence Act.

I haven't got it in front of me, but the Defence Act will tell you what they are authorised to do and where. As I indicated, if I recollect correctly the operational area according to the law, was far, far into Africa. From an operational point of view, they could do it. now, what other clauses there are in the Defence Act saying what is their duty, under what circumstances must they act, how to protect the safety and the security of the country, I don't have it in front of me and I won't be able to reply to the question, unless we first have an interpretation of the Defence Act.

MR BERGER: All right, let me ask you this then, I don't want to get side-tracked. Do you, is it your evidence that by October 1985 you had strong suspicions that the South African Police was involving itself in unlawful conduct across the border, the borders of South Africa?

MR BOTHA: Yes, either they or the Defence Force.

MR BERGER: All right.

MR BOTHA: I knew as much as we could read in the newspapers and when there were specific occasions like the ones I pointed out, we would then ask and then get an answer which throughout were denials.

MR BERGER: All right, there were denials, but you had suspicions?

MR BOTHA: Yes. Yes.

MR BERGER: All right. Doesn't it stand to reason that if there were guidelines regulating the conduct of the Defence Force, primarily to ensure that South Africa's image abroad was not more tarnished, that there must have been similar guidelines regulating the conduct of the Police to ensure that South Africa's image was not more tarnished internationally?

MR BOTHA: Mr Chairperson, if by law the Police cannot operate outside the borders of this country, on what basis can I now really insist that I am not party to breaking the law in wanting guidelines for illegal operations?

CHAIRPERSON: Let me ask you this, were you aware of the Police' illegal activities within the country, like murdering people?

MR BOTHA: Suspicions yes. Too many things happened, but in all those cases, it was officially denied. Every time denied. It came as a, to illustrate this, it came to me as the greatest shock when I read in evidence, I think it was given by Maj de Kock or others, that here the cabinet is told by the Police in briefings ...

CHAIRPERSON: ...(indistinct)

MR BOTHA: No, we were for instance told that there at a certain place an arms cache was found.

CHAIRPERSON: This is relayed to cabinet by the Minister of Police?

MR BOTHA: Yes, what happened was we used to receive briefings at Security Council meetings, briefings that were either conducted by the Police or the Defence Force on the security situation in general.

When you get a briefing to the effect that an arms cache was found near Krugersdorp, or Rustenburg, and that the "spore", the tracks were followed to the Botswana border, so they are now in there, and these are then the people who killed an old "oom en tannie op hulle eensame plaas in Swartruggens", then of course one feels emotional about it and then of course one says "all right, we will not object if you go and take out these terrorists in Gaberone", but when you then read later, say Maj de Kock's evidence that one section of the Police took weapons, AK47's and others and put it in the ground themselves in the cache, then another section goes and unearth it and then we are told it is the terrorists, it is not an easy situation to digest.

MR BERGER: Thank you Chair. Given your evidence that you say the South African Police were not allowed to operate beyond the borders of South Africa, what would have been your attitude if you had been told in October 1985 that indeed the South African Police were carrying out covert operations across the border?

MR BOTHA: I would probably have gone to the President of the country and said "look, I have heard this, do you know about it, what is the position, who give guidelines", I would probably have done that. But then on the basis of rather shall we say uncontradictable evidence because the State President didn't like complaints against colleagues.

MR BERGER: Okay. And what ...

CHAIRPERSON: It looks like a lot he didn't like?

MR BERGER: What if the situation had arisen that at a State Security Council meeting a particular raid was reported on and if your colleague or a representative from the Police had - what is the word - "knik"-ed "instemmend", that nothing was said but that this raid has been reported, nine people have been killed and the Minister responsible, if we look at State Security Council meetings, there is the Commissioner of Police is also there, they nodded approvingly and the general consensus around was "yes, we don't have to say anything about it, we know it is us, let's move on and not acknowledge", is that the kind of scenario that you ever experienced in the State Security Council meeting?

Are you getting what I am saying, that there is this unspoken words, no one says it expressly, but the understanding is quite clear that it is us, the less said the better?

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

It is better, your Foreign Affairs, they were trained that way, must come back, you must tell them, you put them in the firing line, they must know what is the truth and also in this specific case, if you look at the exchanges between Mr van Heerden and Mr Aldridge, our man in New York, you will clearly see how van Heerden is telling him "look man, we are almost convinced it is the LLA. The Defence Force denies it categorically, Police denies it categorically." You are aware of the trouble in the LLA, you are aware of the trouble in Lesotho because soon, in January which proves to you how serious it was, ...(indistinct) was ousted.

So you can imagine how a hot pot that was at that stage and here, with the denials that we received, I can give you this assurance, in my days as Foreign Minister for 17 years, I have not once expected an ambassador of South Africa to tell a lie to an international audience. That was the worst position you could put your official in.

If we were guilty on this side, we would tell it "look man, we are guilty, so you better either put in a kind of reply that will save us" or invite them for an inspection in loco if you want to save time, but you would not expect, as we expected Aldridge to state categorically to the State Security Council and rejected it. If you read the statement of which I quoted here from the United State's ambassador to the United Nations, I respectfully submit that that is a balanced and fair description, because the United States have the best spying organisation in the world and they would have known exactly what goes on there, and they would have told their man there what to say.

That is why you can assume that you as representative, was the best informed.

MR BERGER: Mr Botha ...

CHAIRPERSON: Mr Berger, just give me a chance, I've got an announcement to make if you don't mind. Apparently there are two motor vehicles blocking the entrance to these premises, their registration numbers read as follows: PMJ912T and the second one is DL20333GP. Would those cars kindly be removed? Yes?

MR BERGER: Thank you Chairperson. So Mr Botha, if I understand your evidence correctly, are you saying that no cross-border action by definition, illegal cross-border action by the Police was ever ratified by either the cabinet or the State Security Council?

MR BOTHA: I am certainly not aware of one.

MR BERGER: And when I say ratified, I mean wasn't even ratified by that silent, let's say nothing, acquiesence?

MR BOTHA: Acquiesence? I am not aware of any.

MR BERGER: Now I want to refer you to page 4, paragraph 4 of your statement. The second sentence, you say -

Now, what I want to ask you is Dr L.D. Barnard, I beg your pardon, Dr Barnard was from National Intelligence, Mr N.P., Mr Niel van Heerden, he was an official from your department, is that correct?

MR BOTHA: Correct.

MR BERGER: And he sat on the CIC, the Coordinating Intelligence Committee, is that correct?

MR BOTHA: Correct, not always but sometimes it was another official.

MR BERGER: All right, whatever the position is, at any point in time whenever there was a CIC meeting, there would be representatives from the Department of Foreign Affairs?

MR BOTHA: No. No, I checked it with the officials and they said to me there were occasions that no one from Foreign Affairs attended the meeting.

MR BERGER: Doesn't that defeat the entire object of the CIC meeting, as from the evidence that we have heard the ...

MR BOTHA: I was hardly aware of the existence of CIC, it was to me just one of the dozens and dozens of sub-Committees and only when they would have decided there is something that would seriously have hampered or affected my job, would my official present there, come and report to me and say "you better watch out", and so on.

There were Mr Chairperson, if I could indicate to you the thickness of the documents that had to go into each cabinet meeting, you would not believe me. It was simply impossible to read through the stuff, the sheer bulk of it. I do not know how many dozens of these Committees and minutes and notes, but they with all respect, produced paper work and proposals and suggestions which were never implemented, and this was just as far as I was concerned, one of them.

It was "'n praathuis van 'n klompie amptenare".

MR BERGER: Well, Mr Botha, you refer to the CIC in your statement as one of the organisations that knew of your attitude, your approach at Foreign Affairs and you list it immediately after the State Security Council?

MR BOTHA: Yes, but I also said it had no power, later in my statement.

MR BERGER: Isn't it correct that the CIC was right up there at the top?

MR BOTHA: Where is it?

MR BERGER: And that the Chairperson of the CIC, Dr Barnard, had direct access to the State President?

MR BOTHA: That might be so, but it doesn't mean that the State President would spend much time on the discussions that took place in CIC.

MR BERGER: Let's go to the meeting of the 3rd of December 1985, it is in Bundle 2, page 99. You had two representatives of Foreign Affairs at the meeting, Mr van Heerden and Mr Lotter and that meeting was Chaired by Dr Barnard. At that meeting the specific question of ANC basis in Lesotho was raised, in paragraph 3.2 and the person who makes a report at that meeting, is your own official, Mr van Heerden, paragraph 3.2.1?

He makes this report because Mr van der Merwe tells us that he had asked Foreign Affairs to inform Lesotho urgently about the rising levels of ANC cadres in Lesotho and to tell them, Foreign Affairs must tell Lesotho that if they don't act against these cadres, then South Africa is going to deal with it in a manner that it deems fit. That is why according to Mr van der Merwe, Mr van Heerden makes this report.

Then Mr van Heerden goes on to say that he wants to know what the opinion of the CIC is about whether anything can be done to bring Lesotho into ongoing consultation or discussions. So were you not aware at that time, beginning of December 1985, of what your department was doing in relation to the situation in Lesotho and how your department was interacting with the Security Branch of the Police?

MR BOTHA: Mr Chairperson, of course I was generally, broadly aware. If you have about 100 items that you have to deal with every day of your life, then of course you are aware. Mr van Heerden would report to me exactly what is said here in this minute, that he was attempting to ask CIC to express an opinion on the possible closure of the border as well as sound means to get Lesotho on a continuous basis in a position of dialogue with us.

MR BERGER: Yes, but you were being requested as Foreign Affairs, to inform Lesotho urgently that if they don't deal with the situation, the South African government is going to deal with the situation?

MR BOTHA: I don't think it was put that way.

MR BERGER: No, no. I will get on to what message you transferred.

MR BOTHA: I didn't transfer it, my department did.

MR BERGER: I am sure you take responsibility for your department?

MR BOTHA: Yes.

MR BERGER: The request that was made to you from Security Branch was "please inform the Lesotho government that if they do not take action, we will take action"?

MR BOTHA: Can I read to you the verbatim text of the message sent to Lesotho?

JUDGE KHAMPEPE: Mr Botha ...

CHAIRPERSON: Mr Botha, do you accept that at that meeting at which you were not present, that the request from the Security Police was that the "BS", which is your department, communicate to the authorities of Lesotho indicating to them "look, there are rising problems emanating from your country which form a threat to South Africa, please do something about it. Failing which, we will do something about it ourselves"?

It may not be the exact message that was sent to Lesotho, I think what Mr Berger wants to find out from you is whether you accept that that was the initial request which may or may not have been amended later?

MR BOTHA: That was the request, I say so with respect, in my affidavit.

CHAIRPERSON: That is what he is getting at.

JUDGE KHAMPEPE: Yes, on page 45?

MR BOTHA: I say so.

MR BERGER: And then you go on in your affidavit at paragraph 6.3 to say that you complied with that request? The second line of paragraph 6.3 you say that you complied with the request from the South African Police?

MR BOTHA: Which one is that, if I may ask?

MR BERGER: 6.3?

MR BOTHA: 6.3?

MR BERGER: Yes.

MR BOTHA: Yes, complied to caution Lesotho about the presence of ANC guerillas in Lesotho.

MR BERGER: Yes, and if they don't act, the South African government will act, the Police will act?

MR BOTHA: No, no, I don't say, that is not here.

MR BERGER: That was the request and you complied with the request?

MR BOTHA: Yes, Mr Chairperson, that was the request, but I say here we complied with the request of the Police to caution Lesotho and not to tell them that unless they comply, we will do this and this. I don't say it here, which implies quite clearly that it was not the same message which was sent by Foreign Affairs to Lesotho.

MR BERGER: What was the message that was sent by Foreign Affairs to Lesotho?

MR BOTHA: The department set out various and give certain facts, etc, and then concluded because that is what everybody is interested in with this paragraph -

That is how it concludes -

That is the reply that was sent.

MR BERGER: Could we take a copy of that document?

MR BOTHA: Yes, sure, with pleasure.

MR BERGER: When was that document sent? When was the telex sent?

MR BOTHA: On the 13th of December 1985.

MR BERGER: So you never warned Lesotho that the South African government would take action if they did not comply?

MR BOTHA: No, maybe at a later stage, but we were now dealing with the message of 13 December 1985.

MR BERGER: Well, at any stage prior to the 19th of December, did you warn the government of Lesotho that action would be taken?

MR BOTHA: There were messages now, Lesotho then came back with what we considered to be a rather dismissive reply in this sense that they denied that there were these terrorists, etc and we gave them quite a lot of information here and told them here that our Security people are afraid that some of these activists may cross the border to kill people in South Africa and so on, but we were discussing this first message of 13 December.

MR BERGER: Mr Botha, do you have copies of the reply and then your subsequent telexes to Lesotho?

MR BOTHA: I have this one, but I know from newspaper reports that there were more. It is not impossible that we might have become more firm in later messages. You know, that, but never would we have said that we were going to attack. At most the department would have ended with words like "we reserve the right to react" and so on, but all these documents if I may say so, were circulated at the time at the United Nations, all of it. It would be part of the United Nations' records.

All of this formed the subject of numerous press reports in virtually all our media of the time.

MR BERGER: Were you aware that about three weeks before the attack, on the 20th, that the Lesotho Police had arrested some ANC members?

MR BOTHA: No, I later read it in the papers.

MR BERGER: Have a look then at paragraph 3.2.3 on page 104. This is still the minutes of the CIC meeting of the 3rd of December.

It is recorded there that the CIC is agreed that whatever action is taken against Lesotho or planned against Lesotho, that it should be proceeded by a well planned propaganda programme so that any South African action would be seen by the foreign community as a last resort - thank you Mr Chairperson.

MR BOTHA: Where is that?

MR BERGER: 3.2.3 of the minute.

MR BOTHA: 3.2.3? Yes, what is the question?

MR BERGER: The question is was it reported to you that the Police were, or any South African Security Force was considering an attack on Lesotho if Lesotho didn't deal with the ANC cadres within its borders?

MR BOTHA: No, I was not at that meeting.

MR BERGER: But you had people at that meeting, Mr Botha, who would have reported to you, that is why one delegates?

MR BOTHA: Yes, but with all respect, they did not send these minutes to me, to the Minister. The minutes never came to the Minister, it was the Director General of Foreign Affairs and only if something really important was discussed, would he report to me.

I was not required to read the minutes of 40 sub-Committees, and also not this one.

MR BERGER: And the Director General was Mr van Heerden?

MR BOTHA: Yes, but I consulted him and I say sir, in my affidavit, and he gave me the assurance, he gave me the assurance that as regards his message to Lesotho of the 13th of December and as regards the discussions in CIC that day, that there was not the slightest discussion of a raid against Maseru.

MR BERGER: Not even the possibility of a raid?

MR BOTHA: Not even the possibility. Mr van Heerden is available to give evidence. He attended the meeting, I can only say that is the assurance he gave me, and I mention it under oath in my affidavit.

MR BERGER: Where is Mr van Heerden?

MR BOTHA: He is in Johannesburg.

MR BERGER: Is it your evidence that at no stage prior to the raid, was Foreign Affairs aware of the possibility of a raid on Lesotho?

MR BOTHA: Correct. It is the least that I could expect, the very, very least, particularly after I managed to resolve the crisis with Zimbabwe. There was something that occupied my mind, because it was real.

Those landmine explosions did take place, people were killed, it was serious, and our relations with Zimbabwe were not that good. Right about that time, I involved myself in that meeting with the Swazi Prime Minister, I had to prepare for the ...(indistinct) Persons' Group to come.

As regards Botswana, we didn't think that there was an imminent danger there, but in the Northern Transvaal at that stage, I was very worried that a hot pursuit or cross-border action could take place, and in view of the fact that we informed Lesotho on the 13th of December that here is the ...(indistinct) and I am asking you please reply to my concerns.

They then did reply, on another occasion we replied again and then came this news. On the 20th of December Mr Chairperson, I did not know when I attended the Tuynhuis meeting on that day, that that raid had taken place. My department was never consulted, my department knew nothing about it, or I.

MR BERGER: Mr Botha, Mr van der Merwe has given evidence and he says that by lunch time at least on the 20th of December, nobody could have been ignorant of the raid. In fact my learned friend, Mr Visser, for Mr van der Merwe, produced a newspaper article from a morning paper that morning, an afternoon paper saying that "this morning there was a raid".

Apparently, according to Mr van der Merwe, it was huge news in all the major papers, on all the media, by lunch time that day and also Mr van der Merwe says that South African Intelligence Services were so - in fact he says they were the fifth best in the world at the time, and they wouldn't have had to rely on newspaper reports, they would have known within hours of the attack that such an attack had taken place.

You are saying that by the time the cabinet, the State Security Council meeting ended on the 20th of December, which was I think at about half past three in the afternoon, you had no knowledge whatsoever that the attack had taken place?

MR BOTHA: That is my recollection and I am trying to deal with the question of timing here. According to Maj de Kock's evidence they were back in Ladybrand at about half past two that morning. Then he still made some calls and according to his own evidence, he was not sure at what time he reported to Brig Schoon, he was not sure whether he did it that morning or later.

Whatever that time was, whether it was four or five o'clock the morning, surely Brig Schoon must then sooner or later decide to inform who. In the meantime those of us from the north, had to catch an aircraft at the latest about eight o'clock the morning, to get there, for a meeting at eleven o'clock.

If you look at the minutes of the State Security Council meeting, I once more reiterate that when that meeting started that morning, nobody was aware of that raid.

MR BERGER: All right, let's go to the minute of that meeting, it starts at page 109 of Bundle 2 and indeed paragraph (c) deals with Lesotho and you made a report at that meeting about the warning that you had sent to Lesotho on the 13th of December 1985? Do you have the reference?

MR BOTHA: Yes.

MR BERGER: You are saying that when that was discussed, nobody in the State Security Council knew about the raid?

MR BOTHA: No one. I may add Mr Chairperson, that would have been the appropriate time to discuss it. It is, what is completely incomprehensible that we can have a State Security Council meeting with such a serious event having taken place a few hours earlier, and it is not mentioned at all.

MR BERGER: Would you agree Mr Botha, that those "maatreêls in trappe van intensiteit" which are being discussed diplomatically, negotiations, selective, border controls, sharpening of the border controls, closure of the border, repatriation of workers and cross-border violence, that that would be - it would be nonsensical to talk about that if paragraph 6 had already taken place?

MR BOTHA: Sure, no question about that. If I may just add again, you will notice here that these items which Mr van Heerden could not get CIC to support on the 3rd of December meeting, these are the items that I then submitted to the State Security Council, because I don't need CIC to tell me what to submit. And there they are.

MR BERGER: At this State Security Council meeting, there was a document that was discussed, a document which had been prepared dated the 17th of December 1985, you refer to it in your affidavit.

MR BOTHA: Yes, that is correct.

MR BERGER: Under paragraph 7.3?

MR BOTHA: That is correct.

MR BERGER: That document, if I can refer you to it, it is in Bundle 3.

MR BOTHA: I have it here.

MR BERGER: Yes, it is in Bundle 3, starting at page 77.

MR BOTHA: I have here what they call the "opsomming".

MR BERGER: Yes, it is a document which, there were apparently, it is headed "Geheim" and then it says "Special Situation Report 83/85" dated 17 December 1985?

MR BOTHA: That is correct.

MR BERGER: This was the document which was, there is an "opsomming" and then there are a number of pages, it goes through to page 80. It is three pages plus the summary?

MR BOTHA: Yes, I only have the summary.

MR BERGER: Oh, perhaps you can ...

MR BOTHA: That was your Annexure D.

MR BERGER: Yes, that is so.

MR BOTHA: And this is what I got in your motivation. This is what you forwarded, this is what, I didn't receive it first, I had to ask for it specially.

MR BERGER: Yes, you have all the pages, Mr Botha. Now then, I am just going to go to the summary. The summary records that Lesotho is at the moment the most important guest country for people who are leaving South Africa and joining the ANC. The ANC has about 80 trained soldiers in Lesotho and they are divided into certain units. Then it goes on to describe how the ANC is well placed in Lesotho and then it says and this is the part that I am interested in, the last, the two last sentences, it says -

MR BOTHA: Where is that?

MR BERGER: It is the second last sentence of that summary.

MR BOTHA: Second last sentence?

MR BERGER: Of the summary, the front page.

MR BOTHA: Oh, the first page?

MR BERGER: You see ...

MR BOTHA: Okay, thank you.

MR BERGER: Are you with me?

MR BOTHA: Yes.

MR BERGER: Do you want to just read to yourself the second last sentence which I have just read out.

MR BOTHA: It is all right.

MR BERGER: And then it says this is a summary of what was in the report, it says -

Now, this is the document that you say was discussed at the State Security Council meeting on the 20th of December 1985?

MR BOTHA: No, no, some of the information in it might have been, but I subsequently saw this date, 17 December.

MR BERGER: Yes.

MR BOTHA: Then it was apparently a Special Situation Report. I am beginning to have doubts whether this document could have been part of the State Security Council documents on the 20th of December.

MR BERGER: Why is that?

MR BOTHA: Because normally when a document is dated like that, you must now go to the Secretariat of the State Security Council and then you must get it circulated.

MR BERGER: Well, have a look at what you say in paragraph 7.3.

MR BOTHA: I say so, but I didn't say this document sir, I said the information contained in this, was conveyed to Mr van Heerden and also the type of information that you will find in here.

MR BERGER: Have a look at paragraph 7.3. You say -

What happened?

MR BOTHA: Where is that now?

MR BERGER: 7.3.

MR BOTHA: 7.3?

MR BERGER: Yes. You are dealing with the very minute that I am dealing with now and you say -

Now you are telling what actually happened, you say -

MR BOTHA: Yes, the type. The word "the type" also covers the CIC meeting and the information contained in that report.

MR BERGER: All right, I will live with that.

MR BOTHA: But whether the report was physically already there, I cannot say.

MR BERGER: All right, I will live with that.

MR BOTHA: But the type of information in it, was certainly reported to me either by Mr van Heerden or someone else.

MR BERGER: Right. And the crux of that report is that there was unconfirmed information that the ANC was planning to launch from Lesotho armed attacks against targets in South Africa, during December 1985 and particularly during the Chrismas period. That information was conveyed to the State Security Council meeting on the 20th of December 1985?

MR BOTHA: May I just correct you, I said the type of information, but the moment you had "onbevestig", I can give you the assurance a body like the State Security Council could not take a decision, because "onbevestig is onbevestig". Then it is a story, no more.

MR BERGER: Well, what information extracted from the report of the 17th of December 1985, was conveyed to the State Security Council meeting on the 20th of December 1985?

MR BOTHA: This kind of information, who the ANC were, what they were doing there, that is the type. The same that was reported to Mr van Heerden on 3 December. It is the type of information, they are there, there is a concern that they might cross the border, it subsequently transpired I think from either Mr de Kock's evidence or a man called McCaskell that he was to take some of the ANC members that Saturday to Bloemfontein, but "onbevestig" meant "onbevestig". The type of information that I would have sent to Lesotho and here it is proved now that you have now in your country 80 ANC's and we have reports, "onbevestig" that they are planning cross-border raids into South Africa and then against that background, I say to them "please respond".

CHAIRPERSON: Mr Berger, when you get to a convenient stage...

MR BERGER: Chairperson, we can take the adjournment now.

ON RESUMPTION:

R F BOTHA: (s.u.o.)

CHAIRPERSON: Mr Berger, we have had a small talk in Committee, we are rather concerned that the questions you are putting maybe going beyond the borders of the subpoena.

What do you feel about that?

MR BERGER: Chairperson, I have never seen the subpoena so I don't know what the parameters - Chairperson ...

CHAIRPERSON: Carry on.

MR BERGER: As I read the subpoena, Mr Botha was required to be here and remain in attendance for four weeks, to testify on his knowledge of the decision made in respect of the Lesotho raid on the 19th of December 1985.

My submission is that it must be read as the circumstances surrounding the raid and that is what I am questioning Mr Botha on, at the moment.

CHAIRPERSON: What his personal knowledge is as to how the raid came to be?

MR BERGER: No, his knowledge of the decision made in respect of the Lesotho raid.

CHAIRPERSON: What if he says he has no knowledge of any such decision?

MR BERGER: Which is what he said.

CHAIRPERSON: Then, any other questions would be going beyond the subpoena, or am I wrong?

MR BERGER: No, with respect not, Chairperson. If the whole purpose of the subpoena was to have Mr Botha come and say "I know nothing about the raid", then that is it, that is the end of the story, well then that defeats the very object of the subpoena.

CHAIRPERSON: That is precisely the point, what was the object of the subpoena? That is what we have been talking about the whole morning.

MR BERGER: Well Judge, I wasn't given an opportunity to reply, perhaps I should say a few words now.

When my learned friend, Mr Visser, was addressing you, he unfortunately got the sequence of events relating to the pre-trial conference back to front, and he wasn't there, so I understand it. What actually happened was we attended the pre-trial conference, I was there, my attorney was there, Mr Wagener was there, and one of the issues that we raised at the conference, the pre-trial conference was for four people to be subpoenaed, Mr Coetzee, Mr Botha, Mr Coetzer and Mr McCaskell.

At that meeting Ms Patel said to us that we must motivate our reasons in writing and Mr Wagener confirmed Ms Patel's advice at that meeting and said "yes, we must motivate our reasons in writing". We undertook at that meeting, to do that. Subsequent to that meeting, on the 10th of February 2000, a letter was sent to Ms Patel at the TRC, now the last four pages are contained in the Bundles before you, but the first page is not, and perhaps I should read the first page to you. It says -

We then set out our reasons and right at the top when we dealt with Mr Coetzee and Mr Botha, we said -

We then went through the various minutes we had at our disposal at the time, which are now before you, and we came to the conclusion in paragraph 15, we said -

It was on the basis of this, that a subpoena was issued. We have always been of the view that it is necessary for the four people who we have mentioned, to come and give evidence, but in particular Mr Coetzee and Mr Botha which is what paragraph 15 relates to, because we are not certain whether authorisation was given for the raid or whether Mr van der Merwe acted on his own, whether he acted on the orders of his superiors and he is withholding that information in order to protect certain people, for example Mr Coetzee who hasn't applied for amnesty for this raid or whether authority for the raid was given afterwards, in other words whether there was ratification which is what Mr van der Merwe suggested in his evidence when he said after the raid - he said within hours of the raid, everybody knew of the raid and nobody could have been unaware of it, and any member of the government who claims to have been unaware of the raid, should have resigned at the time, that was his evidence, and saying that subsequent to that, nobody rebuked me.

Here we have the Minister of Foreign Affairs at the time who quite clearly was part of the events leading to the event and the telex which he alluded to, and which I was hoping to hand in as Exhibit C can be seen to be based on the "situasie rapport", SITREP, that is referred to, that is dated the 17th of December 1985.

Chairperson, all these facts and this telex only comes to light now because of the subpoena, all these facts are now suddenly falling into place and at the end of this hearing, hopefully we will be in a position to argue on evidence properly presented, whether the raid was properly authorised either before or after, or at all.

That with respect, is the relevance of Mr Botha's evidence. Why do I question him about the SADF guidelines? Well, I will explain. If there were guidelines controlling the South African Defence Force and if as it seems abundantly clear to everybody, well to most people, the South African government was aware at the time that the Police were conducting cross-border operations, then it stands to reason that if the government was worried about their image internationally, if the Army went across the border, then surely they would have been worried about their image internationally if the Police went across the border, and so therefore there must have been rules and regulations controlling the covert operations of the Police, because one speaking, well I wasn't in the government at the time, I am not in the government now, but if one had been in the government at the time, imagine if you are about to address a conference at the United Nations and the Police go across the border and commit a massacre in Lesotho, Swaziland, wherever, it has an effect on the image that you are trying to portray.

Our argument will be, living in a "regstaat" as they believed they were, there must have been rules and regulations and that was the purpose of that comparative cross-examination. I can go on and justify all the lines of cross-examination that I have pursued.

CHAIRPERSON: You see Mr Berger, that is what creates this problem for the panel. If you look at paragraph 1 of motivation, there are clear and concise issues that - who signed this - that attorneys who act on behalf of your clients, specifically state that they want to know who was consulted on or aware of the planned raid. Mr Botha has already said that he didn't even know about the raid, and thereafter it was denied.

Now, second on what basis the raid was authorised. He says he doesn't know about it, and necessarily it must follow then that he doesn't know about the authorisation if at all it was authorised. Who was party to the decision, the same applies and what steps were taken to avoid the need for the raid? It follows that if he didn't know about it, then he couldn't have taken.

Now, it is difficult to envisage cross-examination further than this, from this witness. I have listened to what you say and I am not very convinced that you are correct. Certain conclusions drawn in this document, is not necessarily correct, for example where was this, on page -

I don't know if you are in possession of other evidence that is still to come, but thus far, it is apparent to us, there was no authorisation on the evidence before us, higher than van der Merwe. I would assume Coetzee and Botha are people who were considered to be higher ranked than van der Merwe.

MR BERGER: Well Chairperson, then that assumes that you already believe what Mr van der Merwe says and ...

CHAIRPERSON: On the evidence before us to date, that is the position, and unless you have other evidence that has not been produced yet, that is the position here.

MR BERGER: Well Chairperson, Mr de Kock still has to give evidence about P.W. Botha and the conversation he had with Mr Schoon. Mr Pik Botha's evidence cannot be accepted at face value, its got to be probed and it may become apparent and we hope it will become apparent that the answers to the four questions will be other than what Mr Botha contends.

If we just have to accept his evidence at his say so, well then there is no cross-examination.

CHAIRPERSON: Let's get down to the nitty-gritty then. Is there good reason to believe that he is going to produce that type of evidence that you seek, or are we as you put it, probing or fishing for those answers?

MR BERGER: No, I have good reason on the documents at my disposal, which are the documents before you, that Mr Botha's say so cannot be accepted at face value and I will, when I say probe in cross-examination, I am not saying fishing, cross-examination probes and I am probing his statement that he knew nothing about the raid.

CHAIRPERSON: I am tempted to tell you to carry on, but I also have a duty to curtail you from going beyond the subpoena, I hope you appreciate that. I will be failing in my duty if I don't curtail you if you go beyond this, because that is what the man has been asked to come and testify on.

I am loathe to make a ruling on it at this stage, I think it best to say to you that you can continue but be careful as to how far you can go, because we are really concerned about it.

CROSS-EXAMINATION BY MR BERGER: (Cont)

I will do my best Chairperson. Might I hand up to you Chairperson, copies of the telex that Mr Botha was referring to and if they could be marked Exhibit E.

Mr Botha, Exhibit E is a copy of the telex that you referred to before lunch, the telex that you sent to the government of Lesotho on the 13th of December 1985, is that correct?

MR BOTHA: Yes.

MR BERGER: You will have to put your microphone on, please.

MR BOTHA: Yes.

MR BERGER: Now, if one looks at the wording of the telex, would you agree with me that the information in that telex is the same or similar to the information in that Situation Report which we referred to earlier dated 17 December 1985?

MR BOTHA: Yes, not the whole thing, but it is related.

MR BERGER: Well, a telex refers to the different political machinery of the ANC in Lesotho, so does the Situation Report but most important, this is the point that I will come to immediately, is that the Situation Report said "according to unconfirmed information, the ANC is planning during December 1985 and especially over the Xmas season to launch actions against targets in the RSA, from Lesotho" and the telex says "the South African government has information to the effect that the ANC is planning to launch armed actions from Lesotho against targets in South Africa, particularly during this festive season", it is the same information, would you agree?

MR BOTHA: Yes, except in the one case we didn't say unsubstantiated evidence.

MR BERGER: yes. In - to Lesotho you said we have information?

MR BOTHA: Yes.

MR BERGER: So therefore, would it be correct that one can assume that when you reported to the State Security Council on the 20th of December 1985, page 109, Bundle 2, you were aware of the information to the effect that the ANC was planning to launch attacks from Lesotho, during the festive season?

MR BOTHA: Yes, Mr Chairman, much the same information was furnished in respect of Botswana, Swaziland, Mozambique and Zimbabwe. Very much the same happened with all of them.

MR BERGER: That they were all planning to launch attacks during the Xmas period?

MR BOTHA: Yes, yes, that was exactly the case, that was - the unsubstantiated information was to the effect because a bomb exploded in Durban and there the general view was it either came from Swaziland or Mozambique. And then there were the landmine explosions in the Northern Transvaal, where the idea of the Police or the Defence Force was these people came across the border from Zimbabwe, and then there were reports of people having crossed the border of Botswana. What I am trying to emphasise here today is that in the case of all of them, Mr Chairperson, if you then look at the ...(indistinct) press statement issued by the Security Council on the 20th of December, again no word about a raid, but warning all the neighbours.

If you further look at Pres P.W. Botha's reason and his main reason for dealing that day with neighbouring States and the ANC and neighbour States, was the bomb explosions in the Northern Transvaal. Also that meeting, were these guidelines, and that is what they were, guidelines, not laws, where they were approved.

You will again notice there that it was done not because of just one State, but as a concern in general of the situation of every one, and also at that meeting, Pres Botha said that the Security Forces reported that Lesotho's reaction was not what we wanted it to be. So, that was already in October, and this had been going on then, this endeavour on our part, to get some cooperation from Lesotho.

In the case of Botswana, they didn't dismiss, ask for more. In the case of Zimbabwe, our relations were not good with Zimbabwe at this stage, but I managed to dampen the emotions immediately because the Zimbabweans said "okay, we will do our best." In the case of Swaziland, we also don't have feelings, because they had more or less the same reaction. Mozambique, also relatively positive but not altogether.

So here you had a situation where the Police or the Security people at the time feared what they called at that stage a "Black Xmas", they feared attacks in the north, in the Free State, Natal on the beaches, the coast where people were going to enjoy themselves. That was the general situation. You can, if you go to any library President, I assure you you will see it in the newspapers, all over.

It was not a secret, it was not something special or unique. Everybody was talking about it.

MR BERGER: Mr Botha ...

CHAIRPERSON: If everybody was talking about it, how come all the cabinet Ministers and all those high ranking officials claim to know nothing about it.

MR BOTHA: The raid, I am talking of the raid.

CHAIRPERSON: It follows that everybody expected this "Black Xmas" and things are going to happen, how come everybody says "we didn't know anything about it, the best I can do for you is that we had suspicions"?

MR BOTHA: We had suspicions Mr Chairperson, they might have been involved in other matters, but there were no Police cross-border raids of which I was ever aware, ever and nor my department.

MR BERGER: Mr Botha, the fact of the matter is that at the State Security Council meeting of the 20th of December 1985, the only country that was singled out was Lesotho, am I correct?

MR BOTHA: Mr Chairperson, that meeting lasted for about I would roughly say five, six hours. It does not reflect the verbatim discussions that take place there.

CHAIRPERSON: But certainly it is an easy matter to answer. During those discussions, when cross-border attacks were being discussed, the only discussion that flowed in that meeting was that of Lesotho?

MR BOTHA: May I draw your attention, how the item started -

When you see now Lesotho there, this is not something that was put on the agenda before the time, what then happens is, you have a discussion, you have a general discussion and someone might have asked "but has Mr Botha warned Lesotho in the meantime" and then I say "yes, I warned them on such and such a date". And then I suggested that in the light of their dismissive reply, we continue with those steps spelt out there, diplomatic negotiation, selective border controls, tightening up of the controls, closure of the border, repatriation of their workers.

CHAIRPERSON: Just explain this to me then, those guidelines you have emphatically and repeatedly said pertains to the SADF, the warning you speak of, was a warning which resulted from a request from the SAP, Mr van der Merwe in particular.

How does the two gel if there were no guidelines for the SAP?

MR BOTHA: Mr Chairperson, the South African Police continuously asked us to inform other governments like Zimbabwe, like Botswana, like Mozambique, like Swaziland, continuously.

CHAIRPERSON: In a similar vein?

MR BOTHA: In a similar vein.

CHAIRPERSON: With the threat?

MR BOTHA: Well, there was no threat in this one.

CHAIRPERSON: No, it may not be yours, but the request that came to you was that "look, deal with this, failing which, we are going to deal with it ourselves".

MR BOTHA: Yes, Mr Chairperson, if you look at the press statement issued by the Security Council on the 20th of December, those words were used and we were requested to send that message to all the neighbouring States.

CHAIRPERSON: I am not talking about the 20th now, I am talking about the distinction you make between the SAP and the SADF. You have continuously said there was no guidelines laid down for the SAP?

MR BOTHA: Correct.

CHAIRPERSON: I am saying that what is the relevance of those guidelines when the request to warn Lesotho came from van der Merwe who was attached to the SAP?

MR BOTHA: I must admit, I do not understand your question.

CHAIRPERSON: You were asked about that warning that you referred to in the minute and you agreed you gave this warning. That warning was given as a result of the request from van der Merwe who belonged to the SAP. You then interchange and draw in those guidelines that you yourself said pertain only to the SADF in answer to the question of Mr Berger. I am asking you how does that gel?

MR BOTHA: The Police requested us in all the other cases to do the same thing.

CHAIRPERSON: But Mr Botha, you were answering a question that was raised in that meeting as to whether the "BS" had followed up the request and in fact warned Lesotho?

MR BOTHA: Yes, there was first a general introduction by the Chairperson, referring to all the neighbouring States and then obviously there followed some suggestion "but didn't Foreign Affairs most recently requested to send a warning to Lesotho, did you do it" then I said "yes, I did it".

But then immediately as you can see, I suggested to follow that course which is in the minutes of the State Security Council. It would have been, with respect ...

CHAIRPERSON: You suggested it and directed it to the SAP, do I understand you correctly? The SAP now has requested this, you have complied with the request, you warned Lesotho, now you say the next step is for the SAP to follow these guidelines which you referred to?

MR BOTHA: No, no, they cannot operate in Lesotho, that is why, when they have a complaint or a fear, they would come to Foreign Affairs and say "you better warn Botswana, you better warn Mozambique, we have this information and this information and that information", but the Defence Force can do the same, National Intelligence can do the same.

Any department can do the same, come with a request reasonably substantiated and that sort of thing, because you cannot send something foolish to another government if it is totally devoid of all truth.

There was nothing special in the fact that the Police requested it, it could have been requested by the Defence Force if they had the information.

CHAIRPERSON: Mr Botha, it becomes essential because it is requested by the Police, because there the Police to your department, threatens further action, whatever it may be. Included there would be in fact what they did, cross-border attacks, commit murder.

To me that should have started the bells ringing. Would you not agree? It is not the issue of whether it came from the SADF, the fact is that because such a threat was made, bells or the symptoms of an attack, cross-border by the SAP should have become obvious then or the prospects thereof.

MR BOTHA: I respectfully disagree. Number one, we are not now in 1985, number two, My van Heerden, my Director General attended that CIC meeting where the request was made. He drafted this message. I consulted with him and he said to me and he categorically confirmed to me that the last thing he thought would happen, would be a raid in the light of his submission there that day, that "can't you rather help us to regulate our relations with Lesotho in terms of a continuous discussion", secondly "would you express your opinion on the closure of the border". That then I took further at this meeting, the thing that van Heerden couldn't get through.

I must honestly admit to you, the mere fact that the Police said "look, there are now 70 in Botswana, ANC operatives, 20 in Mozambique, 80 in Swaziland", does not by itself tell me that there is going to be an attack by the Police the next week, because legally they cannot cross the border.

MR BERGER: Mr Botha, I am going to try and ask you specific questions, and if you could just answer my question. Is it correct that the only country that you reported on, having sent a telex to at the meeting of the 20th, was Lesotho?

MR BOTHA: I do not know.

MR BERGER: If you had reported on sending a telex to any other country, surely it would have been minuted?

MR BOTHA: The reason why Lesotho is mentioned here is that from all the others, from all the others, we did not receive what I would call satisfactory answers, but not dismissive answers. This is the point.

I think it was only in the case of Lesotho where the reaction was not, was completely dismissive. They simply rejected, as far as I know, what they call "all the allegations" made by our message which you have there in front of you, while the other States although not admitting that, suggested that we discussed them.

MR BERGER: You did not raise the question of sending a telex to any other country, the only country that you reported on sending a telex to at this meeting, was Lesotho?

MR BOTHA: Yes, that is correct.

MR BERGER: And the reason that Lesotho was focused on for specific attention, was because you the South African government, had information that the ANC was planning to launch an attack or armed attacks from Lesotho on South Africa within the very near future, in fact over the Xmas period, it was an imminent attack? That was why it was raised and discussed at this meeting?

MR BOTHA: It was of all the potential attacks, the most probable.

MR BERGER: And the most imminent?

MR BOTHA: Yes, well Xmas is imminent for all the provinces.

MR BERGER: Thank you.

CHAIRPERSON: What does that mean?

MR BOTHA: I mean the attacks were expected roundabout Xmas time. It doesn't matter whether it is in Natal, that is all I am saying, or in the Free State, Chrismas is the same day.

MR BERGER: I will accept that. The point I want to make Mr Botha is that given the fact that you had information that the ANC was about to launch attacks from Lesotho over the Xmas period, you nevertheless and when I say you, I mean the South African government, including you, represented at the State Security Council meeting, nevertheless felt that what needed to be done against Lesotho was to thereafter, in other words from the 20th, follow those six steps in degrees of intensity, would that be correct?

MR BOTHA: Yes.

MR BERGER: So even though you had information that those attacks were about to be launched over the Xmas period, you nevertheless as a government felt that diplomacy had to be exhausted first before armed action?

MR BOTHA: Yes, that is correct because we were in the process of exchanging diplomatic notes with Lesotho.

MR BERGER: I am talking about now, this is the 20th of December, as at the 20th of December, the State Security Council was still of the view that diplomacy still had to be tried and then closure of the border and if all of that didn't work to reduce the threat, then armed action?

MR BOTHA: Yes.

MR BERGER: The State Security Council on the 20th of December, was not yet ready to authorise armed cross-border action against ANC targets in Lesotho?

MR BOTHA: Certainly not, and it was not decided.

MR BERGER: No, not only was it not decided, the State Security Council was not prepared to authorise it at that stage?

MR BOTHA: Correct.

MR BERGER: Now you say that present at that meeting was the Minister of Police, Law and Order, Mr le Grange as well as the Commissioner of Police, Mr Coetzee?

MR BOTHA: Correct yes.

MR BERGER: And neither of them raised the issue of the raid on Lesotho at all during this meeting?

MR BOTHA: I cannot say because Mr Chairperson, your minutes are not ...(indistinct) to reflect all the discussions there, otherwise those minutes would have been 100 pages long.

I, in my responses here must have relied on the approach of my department on what Mr van Heerden did, on how we softened up that request of the Police in our message of the 13th, but it is quite clear if you read the introductory remarks of the Chairperson of that meeting, that the main subject that we dealt with that day, was the concern of ANC activities in all the neighbouring States.

MR BERGER: Mr Botha my question is simply, neither Mr Coetzee nor Mr le Grange raised the fact of the raid during this meeting.

MR BOTHA: I cannot say.

MR BERGER: Well, in paragraph 7 of your statement, you say that the raid was not even discussed at that meeting.

MR BOTHA: I misunderstood you, sorry, I thought you said that they did not raise the issue of Lesotho.

MR BERGER: Well - no, no, please listen to my question. My question is neither Mr Coetzee, nor Mr le Grange raised the fact of the raid at that meeting.

MR BOTHA: The answer is no.

MR BERGER: They didn't raise it? In fact, at that meeting, you, Mr le Grange and Mr Malan and Mr Nel were delegated to prepare a strongly worded statement during the lunch break, in relation to attacks which were being launched from the neighbouring States?

MR BOTHA: That is correct.

MR BERGER: And so while you and the Minister of Police and others were sitting around over lunch, formulating your statement, nobody came to tell you about the raid?

MR BOTHA: Certainly not.

MR BERGER: Sorry, if you will just bear with me for one moment. Do you have a bundle, Exhibit B in front of you? You don't? If you would and if you would look at the very first page, there is a report, a newspaper report headed "nine die in Lesotho raid as Pretoria warns Black States". Do you see that, it is from the UK Times?

MR BOTHA: Yes.

MR BERGER: The Pretoria Government ...

MR BOTHA: Sorry, is it the first page?

MR BERGER: Yes.

MR BOTHA: This one?

MR BERGER: Yes.

MR BOTHA: That is I think the London Times.

MR BERGER: That is so.

MR BOTHA: Okay.

MR BERGER:

This warning that is being referred to, would that have been the statement prepared by you, Min le Grange, Mr Nel and Mr Malan?

MR BOTHA: Yes, obviously and may I just to be of assistance say, in cases of that nature, we didn't sit there as a Committee each trying to draft his own, otherwise you would never get a draft. What normally happens is one person is designated and as it was Mr Nel, the Min of Information then, as I would construct this now, he would have been asked quickly to draft something and those others of us, would then look at his draft and then make comment. That is more or less how it would have happened, but it most certainly is that statement issued by the State Security Council.

MR BERGER: Yes, that is the statement that you had hand in drafting?

MR BOTHA: Well, agreed with.

MR BERGER: So the statement that was issued was a warning again the neighbouring States of the consequences which would follow if they continued to harbour ANC soldiers? Is that right?

MR BOTHA: We didn't really say much about consequences in the statement. I can read it to you if you want me to.

MR BERGER: Oh, do you have that statement as well?

MR BOTHA: Yes.

MR BERGER: In that was the threat of violence, not so?

MR BOTHA: No, this is the threat, what I have read to you.

MR BERGER: "All appropriate means", doesn't include the threat of violence?

MR BOTHA: Well, I don't see it anywhere -

That is already the first thing which I tried to mention earlier.

and then we carry on like that. The papers often report such a press release has a threat, but you may consider it a threat I suppose, but I would not say this is really a direct threat that they will be invaded tomorrow, the statement. In any case, it was issued the afternoon of the 20th of December.

MR BERGER: You say in the statement, you have highlighted it-

Now, I am putting to you that that is a threat of violence from the South African government. You say it is not?

MR BOTHA: It is in retaliation of a threat against the country.

MR BERGER: There is a threat of violence against the country and therefore there is a threat of violence at those countries?

MR BOTHA: Yes.

MR BERGER: Thank you. Now this is where I wanted to get to because if there was going to be violence against those countries by the South African government, who would have undertaken those attacks, would it have been the Police or would it have been the Military?

MR BOTHA: The Military.

MR BERGER: And the reason for that is because the Military were going to be used for cross-border operations and not the police?

MR BOTHA: Only they could act in terms of their legislation applying to them, outside the borders of the country.

MR BERGER: When did you become aware of the raid on Lesotho on the 19th/20th of December 1985?

MR BOTHA: Become aware of it?

MR BERGER: Yes?

MR BOTHA: Well, pretty soon. I mean I can remember all of us would normally when you had a meeting like this in Cape Town, we were in a hurry to get back to the North again, and I suppose that very day, because Lesotho sent a message to us on the same day. I suppose during that evening, I became aware, when I started to listen to the newscast or whatever.

MR BERGER: Surely you would have been informed, you wouldn't have had to rely on newscasts?

MR BOTHA: But if I am now travelling from Cape Town in an aircraft to try to get to my home, when must I be informed of an event of which I bear no knowledge?

CHAIRPERSON: How about the same telephone that Mr le Grange phoned you three o'clock in the morning?

MR BOTHA: That was in the case of the Seychelles.

CHAIRPERSON: Yes, all I mean, the question is do you have to rely on a television newscast, would you not have been informed at least by telephone?

MR BOTHA: No, not at all. There was also, with all respect, no time, because the moment you come out of that Security Council, you rush to the airport to catch your plane and then you get on the plane for two hours, and then you get home. This is more or less the drill, but I heard about it, I suppose when I received that, either by then my department must have received the Lesotho message to us complaining about the incident and accusing the Defence Force. They never accused the Police. Throughout they accused the Defence Force and/or it must have been, yes, the Lesotho government only accused the Defence, also at the United Nations.

Their formal charges was against the South African Defence Force and the point I want to make is maybe I heard it over the news or whatever, but I heard it after my return in Pretoria, that same day, I must have, because we received a message and my department would at least have phoned me and informed me.

MR BERGER: Please have a look in that same bundle of newspaper articles, if you would page passed the article "Pik is cross, challenge on cross-border denial" and come to the next page which says "Lesotho calls on Security Council to condemn the raid".

MR BOTHA: Hm.

MR BERGER: And then look at the second paragraph which says there that Mr Maghele, do you have that?

MR BOTHA: Yes.

MR BERGER:

Does this report accurately records your comment, your denial and your instructions to Mr Aldridge?

MR BOTHA: In broad outlines, yes.

MR BERGER: So by the 31st of December 1985, you were in a position to say that the attack did not emanate from South Africa and that the Lesotho government was being clever in trying to deflect attention from its own problems, because the attack had come from within Lesotho itself? That was your standpoint and the South African government's standpoint?

MR BOTHA: No, I cannot recall that I was convinced that the attack could not have emanated from South African territory because apparently there were occasions on which the LLA did in fact cross the Lesotho border, although Mr ...(indistinct) always denied it. I just thought, I had reason to believe that there could have been such attacks, but upper most in my mind at that stage was after we, Mr van Heerden asked the Police and or the Defence Force "do you know anything about this", because we thought that if it was the LLA, maybe they would have had some information, and we were assured no, they know nothing.

Particularly the Defence Force denied this repeatedly and then in the light of knowledge we had of the unstable situation inside Lesotho, very unstable at that stage, it was the Foreign Affairs' point of view that neither our Police, nor our Defence Force, nor National Intelligence know anything about this. There has been a call to The Star by a person either pretending or indeed representing LLA, saying they were responsible for it.

Those reports were carried in virtually all our media. Against that background, we had to give our representative at the United Nations now instructions, here Lesotho has now written a letter to the Secretary General, asking for a Security Council meeting. There was going to be a meeting and people are going to make speeches, so our man is now waiting for us, for some directions, what must he say. So we tell him more or less in broad outlines "look, you can point out there is at present severe tension in Lesotho, we believe that Lesotho is using this incident which most probably was executed by the LLA, just as an excuse to overcome its own internal problems and to put South Africa in the dark here, or harm South Africa".

We would never have sent these instructions to our man, Mr Chairperson, if we did not at that stage, believe this. If you look at more important papers, you will get editorials and you will get points of view. The Sowetan of 30th of December, other newspapers saying they do not know who did it.

MR BERGER: Mr Botha, do you still remember my question?

MR BOTHA: Yes, it is sometimes difficult to reply yes and no to a complicated question. I am trying to be helpful here.

MR BERGER: Let me ask a simple question. You, did you ever have a discussion with Mr le Grange in which you asked him whether the Police were involved in the raid?

MR BOTHA: I cannot recall that, but that wouldn't be a normal thing or at least our heads of department, would have done that.

MR BERGER: Those heads of departments would have been the Director General of Foreign Affairs asking whom?

MR BOTHA: Well, phoning the Commissioner of Police and or the Defence Force, but also ...

MR BERGER: I am dealing with the Police, Mr Botha. Who in the Police would have been ...

MR BOTHA: The Commissioner of Police.

MR BERGER: Mr Coetzee?

MR BOTHA: Yes, if he was the Commissioner at the time.

MR BERGER: Did you have a conversation with Mr Coetzee in which you asked him whether the Police were responsible?

MR BOTHA: No.

MR BERGER: No? You may or may not have had a conversation with Mr le Grange?

MR BOTHA: I may, but why I think that I might not have had is that normally our heads of department would deal with that kind of work, but if categorically in the press a Minister of another department says he did not do a thing, then unless you have rather what shall I call it, incontrovertible evidence, for you then to continue to go and say to a person "look, I nevertheless doubt your word", the point I want to make is here, the Police strongly denied and the denial was carried in all the papers.

MR BERGER: As far as you can recall, your enquiry would have been from your Director General of Foreign Affairs, Mr van Heerden to the Commissioner of Police, Mr Coetzee? He would have asked Mr Coetzee "are the Police responsible for this" and he would have got an answer back saying "no", and that would have been reported back to you?

MR BOTHA: Not quite. I think he would have been careful not to suggest to the Commissioner of Police "look, do you know anything about it", but he would rather have said "look, do you know anything about the incident, who did it or what happened", you see.

MR BERGER: And what was the feedback to you?

MR BOTHA: The feedback to me was that the Police knew nothing about it, and I think that because they were not accused by anyone at that stage, but because part of the Defence Force was the culprit number one at that stage in all the reports, I believe that we asked or somebody asked them to do a special investigation, quite apart from their original denial.

The result of that investigation was also conveyed to us as "negative, no".

MR BERGER: Now, that is paragraph 9.2 on page 9 of your statement, you say

MR BOTHA: Yes.

MR BERGER: And what would have been reported to you would have been that the Commissioner of Police denies involvement, that the Police were involved?

MR BOTHA: Yes, or a spokesperson for the Commissioner.

MR BERGER: Didn't you say it would have been dealt with by the respective heads of department?

MR BOTHA: Yes.

MR BERGER: I want you to think very carefully about this, Mr Botha. At any point, at any stage, either before or after the raid, was there ever the feeling at a cabinet meeting, at a meeting of the State Security Council or at any other meeting that you attended, that the Police or any other arm of the Security Forces were responsible for this attack?

MR BOTHA: The answer is before the raid, no. Not in the least.

MR BERGER: And after the raid?

MR BOTHA: Probably, at a later stage, I cannot say. I cannot recall the months or years ago.

MR BERGER: Well, when was there this feeling at one of those meetings that the South African government were responsible for the raid?

MR BOTHA: No, there was never a feeling at the meeting, but the press, everybody, all of us, after the Lesotho government changed in January 1986, after that change, the new Lesotho government did not prosecute, pursue this matter at all.

MR BERGER: I am not concerned with the press, the media or the general public. I am concerned with State structures and the State structures that I am referring to are the cabinet, the State Security Council, the CIC or any meeting of Ministers that you attended, I am talking of officialdom here, was there ever the general feeling that the South African Security Forces, the Police or others, were responsible for this raid?

MR BOTHA: I have told you, Mr Chairperson, up to the 20th of December, no, categoric no. Whether in the 15 years after that, colleagues could have discussed it or someone might have mentioned it, I cannot say unless I have access to the records of the cabinet and the State Security Council, which I do not have.

MR BERGER: I am excluding the period after it became known that there was likely to be a Truth and Reconciliation Commission, I am talking about the period when the South African government still believed that it was in control. I want to know during that period, did you ever attend a meeting of the cabinet, I don't really want to go through the whole thing again...

CHAIRPERSON: Mr Berger, that also may be uncertain, let's leave it to 1993.

MR BERGER: Okay. At any time prior to 1993? I will even go back further, let's start at the beginning of the 1990's, at any time prior to 1990, did you ever attend any meeting formal or informal, where there was an understanding if there was a discussion all the better, but if there was, where there was an understanding at its lowest that the South African Security Forces, one arm of the South African Security Forces, was responsible for this raid?

MR BOTHA: I cannot answer that question, I cannot recall it.

MR BERGER: You cannot recall any?

MR BOTHA: I cannot recall any.

MR BERGER: Surely on your evidence, you would be have shocked if there was such an understanding?

MR BOTHA: Yes, but what could I have done about it then?

MR BERGER: Nevermind what you could have done about it, you would have been shocked?

MR BOTHA: Yes, most probably if it happened.

MR BERGER: Well then, if you would have been shocked, you would have remembered it? You would have thought "Oh my, it is us". Did you ever think that, "Oh my, it is us?"

MR BOTHA: Mr Chairperson, I dealt with matters that were more shocking than this one, which I sometimes also at this stage of my life, vaguely remember. I must consult records to make sure about this. I do not understand the trend of these questions. I made it abundantly clear that up to 20 December, and that was the motivation for my appearance here, it is spelt out, that is the motivation, not what happened after the 20th of December.

Now I find myself being harassed with all respect, by questions which I do not for the life of me, see the relevance between the motivation for bringing them here and what is happening now.

CHAIRPERSON: I think what Mr Berger is trying to establish is whether this attack had occurred 19/20 December 1985, if it was not approved before, whether in fact it was ratified by higher authorities.

MR BOTHA: I cannot recall, as I have it, the first time I really became aware of it was when Maj de Kock was tried, I think in 1994 and when he gave the evidence of this incident.

I do not know under what circumstances the Prosecutors asked him about this incident, but be that as it may, I recall that as an indication to myself and my former department, I think I was already out when his trial took place. That is how I remember it, but whether ...

CHAIRPERSON: At the time, is that the time you would have said "Oh my word" or words to that effect?

MR BOTHA: Yes, that is the kind of time that we would have said because you see, Maj de Kock supplied the details and the details were shocking, and sure, this is the point where I can hook on, but whether before that, between 1985 and 1994 during his trial and his evidence, there might have been Ministers meeting informally saying "hell, did you find out if it was after all the Police", without furnishing details, etc, etc.

I cannot say. I am not sure, it might have, it might not have.

ADV BOSMAN: Mr Botha, may I ask you, let us suppose that somebody would have found out, maybe down the corridors that it was the Police and it was mentioned, what would have been done then, where would you have dealt with it?

MR BOTHA: Nowhere because in the matter of this instance, if the government of the country against whom this act was perpetrated, if there was no reaction from them, then this matter is put on the shelf very quickly.

After Leoboa Jonathan lost power, the new government did not address it and the government who followed, the government after Jonathan did not follow it up.

ADV BOSMAN: I think you understand me incorrectly, within the government, let us say for argument's sake Gen Coetzee would have whispered in Gen le Grange's ear "listen it was us" and Mr le Grange tells another Minister and says "hi, did you hear it was us" or whisper in the State President's ear "do you know it was us", would you have dealt with it and indeed, if so, where?

MR BOTHA: I was not responsible for those types of measures. Do you see what I mean, as to who will deal with what. I just give a personal opinion, I am convinced that if what happened, if it had happened as you have said now, it would not have happened and we would have said "okay, we are standing still now, let's leave it there".

MR BERGER: How can you say that, if it never happened according to you?

CHAIRPERSON: What didn't happen?

MR BERGER: If it never happened that Ministers spoke amongst themselves that the South African government was responsible for illegal cross-border activities?

MR BOTHA: But honestly, that is not what I said. I don't know what is going on here Chairperson.

MR BERGER: Okay, so then to your knowledge you are saying that Ministers discussed illegal cross-border activities amongst themselves?

CHAIRPERSON: I think it was speculatively put to the witness that it could have happened, and he said well, if could have, but it never came to his ears.

ADV BOSMAN: If I may just add Mr Berger, my idea of asking the question was to ascertain that if this had happened, would it have been discussed either at cabinet or at State Security level. So I put it as an hypothesis to Mr Botha and I said to him that I assume that his answer would be of a speculative nature and he said yes.

If it did happen, it would have never been dealt with, they would have said "well, just keep quiet about that and let's not talk about it." That is how I understood it.

MR BOTHA: Correct.

MR BERGER: If I understand that, Mr Botha, what you have said is that the people in, say for example Mr Coetzee, the Commissioner of Police, if he had got to know about it, he would have just kept quiet about it and he wouldn't have passed that on to higher authority, is that what you are saying?

MR BOTHA: I didn't say that.

MR BERGER: Okay. He would have passed it on to higher authority, is that what you are saying?

MR BOTHA: Most probably, but he is here, you can ask him.

MR BERGER: I will. And then his higher authority, the Minister, you are saying would not have passed that on to higher authority?

MR BOTHA: I didn't say that.

MR BERGER: Oh, so he would have passed that on to P.W. Botha?

MR BOTHA: I say speculatively I would think that it would be highly probable that he would have passed it on to the President.

MR BERGER: So therefore you are saying that the situation could arise at cabinet where everybody knew that the Police were involved in this attack and nobody would have discussed it?

MR BOTHA: No, not everybody would know, just those to whom it was conveyed, would know. If this had happened,t hen I say it is highly improbable that it would ever have formed the subject of an agenda item, all the cabinet agenda's are available, all the State Security Council agenda's are available. I cannot recall such a discussion. This is what I am saying.

MR BERGER: But you see, I am not asking you whether it was on an agenda item because we know the minutes were manipulated. What I am asking you is, and as the Chairperson with respect, correctly pointed out what I was asking you, was about ratification and as a lawyer, as an Advocate, you would understand what is meant by ratification.

Was this raid, this Police raid ever ratified by the cabinet?

MR BOTHA: I said I don't know. I cannot recall that it was.

MR BERGER: Do you recall whether it was ever ratified by the State Security Council?

MR BOTHA: If I have time, we can ask the researchers to do the checking for us.

CHAIRPERSON: But you are not in a position to say yes or no?

MR BOTHA: I am just not in a position, but I would by highly, I would be very, very surprised if that was the case. On the other hand, there is a slight possibility that it might have been put to a Council meeting, I do not see with what purpose in the sense that look, we think that all colleagues ought to know now, that this happened on such and such, and such a day and there is not much we can do about it now and we just want everybody in this cabinet to know about it, but improbable.

MR BERGER: You know that ratification can take place by word or by conduct? I am not limiting myself to a discussion, I am also talking about conduct. To your knowledge, was this raid ever ratified by words or by conduct, by the cabinet or by the State Security Council, to your knowledge?

MR BOTHA: To my knowledge, no, but I must repeat this is my recollection.

MR BERGER: Yes, and to your knowledge, given that you had people sitting at the CIC, was this raid ever ratified or approved in advance by the CIC?

MR BOTHA: No, although I am not a member of CIC.

MR BERGER: I know you are not a member.

MR BOTHA: My Director General would most probably have told me.

MR BERGER: Indeed. I have no further questions, Your Worship, for this witness.

CHAIRPERSON: Mr Hattingh, have all your questions been exhausted or do you have some?

MR HATTINGH: Yes, indeed thank you Mr Chairman.

MR BERGER: Chairperson ...

MS PATEL: Sorry Honourable Chairperson, before my learned colleague proceeds, Mr Botha referred to the press release in his testimony to us, may we tender that as an exhibit and mark it Exhibit F, I will have copies made.

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

CHAIRPERSON: Mr Visser?

CROSS-EXAMINATION BY MR VISSER: Chairperson, I am loathe, but unfortunately I do have to raise a few issues, with your permission. Mr Botha, you told the Chairperson, that you preferred to speak in Afrikaans, seeing that you have been giving your evidence in English, I am quite happy to go to Afrikaans, if you prefer that? Mr Botha, very briefly, just a bit of background, would you agree that what was going on here in South Africa was an ideological political struggle which transformed into a revolution?

MR BOTHA: Yes.

MR VISSER: And that armed conflict was involved on both sides?

MR BOTHA: Yes.

MR VISSER: In other words it wasn't only a political one could almost say cold war, people died on both sides of the line and all of us know, I personally know, of the attempts which you made from 1988 onwards particularly, to attempt diplomatically to put oil on troubled waters and to see whether or not there wasn't a political solution to all this.

However, from the perspective of the Security Forces, would you agree that the government of the day expected of them, and particularly of the Security Branch to execute some form of action to combat violence in the country and to prevent the country from burning and to create as calm an atmosphere as possible, within which political negotiations could occur in order to devise a political dispensation ultimately, would you agree?

MR BOTHA: Yes.

MR VISSER: And in this process, you have stated repeatedly and I want to say it right away, because the problem that I have with my learned friend, Mr Berger's approach, is that he fails to make the distinction between legal action and illegal action, and I will get to that.

But with regard to the stay action, the management of internal security and the revolutionary threat, the management of this by the Security Branch, they had to depend upon guidelines, not guidelines, legislation, the Police Act, you have stated this already? Would you agree with the evidence of Gen van der Merwe that it happened all the more that that Act no longer enabled the Police to manage the situation that they were confronted with, and that it became all the more necessary for them to act unlawfully? We have heard it today, in amnesty applications, you must be aware that the Police acted all the more unlawfully in order to combat this enemy?

MR BOTHA: Yes, I can understand why a former Police officer would say so, however you see, then one could have amended the Act and that is why upon occasion, we would apply emergency measures, that is when the country was in a state of emergency. Then the normal democratic rights would be removed and the Security Forces could then detain people without trial, they could do rather drastic things without the Courts being able to touch them.

If you were to ask me whether the Police had any other tasks than Foreign Affairs, my answer would be yes. My concern was with the attitude of the global community towards us, as well as the attitude of the UN which would ultimately mean that we would sink away to such an extent that the enemy, or the ANC, could then overpower us and ultimately that would be the end of us.

My fears were of economic importance. I felt that our people in the Defence Force and in the Police and our State President even, attached an excessive weight to military action, because if that action was too severe, sanction would be imposed upon us which would have detrimental economic consequences, which would then be detrimental to us, ultimately.

That is why on a consistent basis between Foreign Affairs on the one hand and the Security Forces on the other hand, there was conflict because we didn't want to create a situation of further disadvantage for ourselves. They said "what do you say if Joe Soap's throat is cut off on a farm somewhere", that would lead to news headlines and everywhere, in Church Councils, in local Councils, in parliament, in tennis clubs, everybody said "kill the rubbish", that was the language that was used. You can study the newspapers of the time.

That would create on the one hand an insistence on drastic action by the Police, but on the other hand we had the Lavender Boys in Foreign Affairs so to speak who didn't want such things, and that created problems for us.

But if you were to say to me I cannot judge whether or not the Police had sufficient capacity to combat the situation.

MR VISSER: For example, they never had the legislative power to kill someone in order to protect the source. That is an obvious example?

MR BOTHA: Yes.

MR VISSER: And there would never have been such a legislative amendment?

MR BOTHA: That is correct.

MR VISSER: The only point that I want to make to you is that we know, from what we have heard in amnesty applications, that the Police began to act all the more beyond the parameters of the law in order to combat the threat as they perceived it, you would accept that?

And in conjunction with what you have said, I think upon an occasion when you gave evidence, you said that you and other Ministers' perspective of what was in the best interest for the RSA, often clashed. In fact the impression that you created is that your struggle was a lonesome struggle, that is the struggle that you used. So I don't have a problem with your statement, but could I just summarise it with you and then we can abandon this aspect.

The Amnesty Committee, on the basis of evidence which was given before the Amnesty Committee, has already found that - this is on page 2 of the Cronje decision -

And then the decision goes forth to say that in this process they also acted unlawfully, and that is the only point that I want to make. Very well, if we could come to this action and please Mr Botha, I want for us to understand each other, I draw a clear distinction between that which was so-called overt or open for example when the Defence Force, in terms of the Defence Act, crossed the borders of the country in order to strike against bases in a neighbouring State or to carry out a raid, I understand that completely, but I would like to remain with aspects pertaining to covert action and then I would like to attach a connotation to that, covert could be lawful for example covert collection of Intelligence and so forth which could perhaps border on an unlawful act, but we could live with that, and then unlawful action.

The further qualification of such a type of unlawful covert action, would be precisely that, where a covert action is carried out, where people are aware that it is unlawful, but they carry it out in such a way that it cannot be traced, and I don't know why there is a problem with that concept, however in the light of this, if we look at the State Security Council's minutes, or at any minutes from the SSC or of a cabinet meeting, would you ever have expected that it would have been noted in the minutes, in life size form that there was an unlawful covert action executed by anybody and that this was approved by the government? Have you ever encountered anything like that?

MR BOTHA: But if it was discussed, then it has to appear there.

MR VISSER: Well, let's say that it was discussed, would you have expected of this to appear in the minutes?

MR BOTHA: Yes.

MR VISSER: Let us then look at the minutes of the 20th of December, page 109 of Volume 2.

MR BOTHA: Just a moment please.

MR VISSER: That is the 20th of December 1985, the minutes of that day and the State Security Council meeting of that day?

MR BOTHA: Yes, I have it.

MR VISSER: Very well. Is there anything that you can see there which would pertain to covert, unlawful action in this entire minute?

MR BOTHA: Would you please repeat the question?

MR VISSER: Can you see anything here which would indicate covert, unlawful action?

MR BOTHA: No.

MR VISSER: Naturally not. But unfortunately I also have to put the following to you. You know it is my recollection in retrospect that Ministers of that time, had one or more persons whose job it was from early in the morning, to read the newspapers and listen to the radio and determine whether or not there was anything which was disclosed in the news of the day, which would affect his department, am I correct?

MR BOTHA: Well, I cannot speak on behalf of others, but I certainly had such staff.

MR VISSER: Yes, I can recall what the Washington Post said, would determine your life on that day. But the point is wouldn't you have expected of the National Intelligence Services to be even more focused on what was going on in the news?

MR BOTHA: On what?

MR VISSER: On what was going on in the world which would affect the RSA, because that was their job?

MR BOTHA: Well, not the world out there, because the foreign community was the job of the embassies.

MR VISSER: Very well, if you want to limit it, that is fine.

MR BOTHA: Although they were also there and they also caused much nonsense.

MR VISSER: Yes, that may be so, but the fact is that the National Intelligence Service didn't rely on newspapers, they would have had agents in places where there were problems so that they could send information through to the RSA?

MR BOTHA: Yes, that was the custom.

MR VISSER: It would have been foolish ...

MR BOTHA: But don't ask me how effective it was.

CHAIRPERSON: Mr Botha, he didn't ask.

MR VISSER: And I won't. But it would have been unacceptable to assume that during this time when this crisis with Lesotho was under way, that National Intelligence wouldn't at least have had to be there, in order to observe the situation so that they could keep the relevant departments up to date with what is happening in Lesotho.

MR BOTHA: Yes, because Dr Barnard was the Chairperson of this mysterious CIC, and he must have known, I assume. He was the person drawing up agendas.

MR VISSER: I want to put this to you pertinently that under the circumstances which I have just sketched for you, it would have been virtually impossible to accept that the SSC which had the order to protect the country and the security of the people in the country, would have said that on the 20th of December at lunch time that afternoon, had not yet heard of the attack in Lesotho from the 19th to the 20th of December?

MR BOTHA: Well, I can assure you that I didn't.

MR VISSER: But that is impossible.

MR BOTHA: What more can I do than give you the assurance that I didn't. I cannot do any more than that. I didn't know.

MR VISSER: Well, either you didn't know as you have said, or these decisions on page 109, one to six, are a denial of what took place the previous night, one of the two? Either the members of the SSC didn't have any knowledge of what took place, and then these decisions in order of intensity would make sense, not entirely, but they would make sense.

Would you agree that if the members of the SSC had known that morning about what took place the previous night, this would be windowdressing?

MR BOTHA: No.

MR VISSER: Then it would mean nothing, because the violence had already been committed the night before?

MR BOTHA: You don't understand, if you didn't know anything about the raid and these were the items of discussion, then this makes complete sense, because then the Security guys would come over and get up to all sorts of things and then the SSC would say "wait, they are not acting satisfactorily, but we are making progress with the other countries, give us a chance so that we can try these things with Lesotho first.

MR VISSER: Yes.

MR BOTHA: That is how things happened. With respect Chairperson, Louis le Grange, Magnus Malan, Louis Nel and I would then have had to compile a statement over lunch with the knowledge that there was a raid on Lesotho, with all respect, really I mean how far does your imagination go?

MR VISSER: All I want to say is this, there were one of two scenario's which could have taken place. The one is that you really didn't know, then all of this makes sense, and then one could accept it, then it would make sense. But if you knew that last night the violence had already been committed, then these decisions would be a denial of that knowledge, would you agree?

MR BOTHA: Yes, I think it would underhanded, unacceptable, immoral. I don't think that colleagues could sit together around a table, and produce such minutes knowing what the truth was.

CHAIRPERSON: But Mr Botha, I am not saying it is you, but among you, you tapped one another's telephones, how moral was that?

MR BOTHA: Yes, you are correct Chairperson, but when it came to putting things in writing, that is what I am trying to say here.

CHAIRPERSON: The point is as Mr Visser has stated correctly, either you didn't know or you knew and that this document is windowdressing, which isn't very far fetched, is it?

MR BOTHA: I must tell you honestly Chairperson, that I and some of my colleagues, such as Barend du Plessis and the others, would not have found this sort of windowdressing acceptable, really not, because the point is that the department would also see this, the officials would also see this, it wouldn't be a secret any more.

The Americans would know about it long before the officials would know about it. Eventually, even if there were no moral considerations here, this was the most dangerous thing on earth for cabinet to attempt because one would pay an extraordinary high price.

MR VISSER: You see Mr Botha, I really don't care whether you knew or not, because that isn't really part of my case, but all I want to put to you is that even on the proposition that you didn't know, I would like to say to you that these six decisions on page 109, in the light of what we knew was going on, these decisions are very strange and I want to tell you why.

Since September that year you had been struggling, and forget about all the other neighbouring States, you had been struggling with Lesotho, it isn't something recent, it is something that had been happening over a year already. Before October there were already diplomatic liaison with Lesotho, saying "please this and that".

Your minutes of the 13th of December were merely a culmination of something which at that stage was clear indicating that there was reliable Intelligence that these people would enter the country over the festive season and on the 20th of December, we were five days away from Xmas, we are talking about the Xmas season as such, so not just Xmas day itself, but the entire Xmas season, how did you expect to combat that threat with these actions? How long would it have taken in the four days remaining before Xmas, given that they might only have arrived at Xmas day, how long would it have taken to complete these diplomatic negotiations to institute selective border control measures, how would this have assisted you in your situation, the intensification of these measures, the practical closure of the border, the repatriation of workers before you got to the point where you said that you were going to capture these people, because you knew where they were? How long did you think it would take in terms of these decisions in order to clear these persons ultimately because they were there, ready with their AK's and their handgrenades and you knew they were coming?

MR BOTHA: These were the proposals that I made and they were approved as such and I was in the process at that stage, of exchanging notes with Lesotho, I was in the process. It did not stop, I just said that at that stage it was unsatisfactory but there was no reason why we should not have tried these things, because in fact, on the 24th of December, I notified Lesotho that we would be applying stricter border control measures from the 24th of December. That note was sent through.

MR VISSER: You see Mr Botha, the fortunate situation ...(intervention)

CHAIRPERSON: Perhaps I am incorrect, I just want to ask, these notes about Lesotho that you have referred to, and these arrangements that they proposed, did they refer to an attack against South Africa during the festive season? I am asking because it doesn't appear to me as if it was mentioned?

MR VISSER: it is very clear here. At two places, the one is in Exhibit E which was handed up to you, that is the diplomatic memo, there it is very clear that it is about the attack over the festive season, that is the one thing, but in particular Chairperson, from the SITREP, the SITREP of the 17th of December ...(intervention)

CHAIRPERSON: I am satisfied if these memo's were compiled as a result of those letters.

MR VISSER: My questions are based on the SITREP and the diplomatic memo from Foreign Affairs.

CHAIRPERSON: Yes, I understand that your questions are based upon those documents, but I want to know whether or not these documents are based upon that?

MR VISSER: We could perhaps take that up tomorrow morning, but it is my submission that it is very clear that it is.

MR BOTHA: May I just ask Chairperson, if I understand correctly there is a difference between an admission to Lesotho and a discussion in the SSC among the members. In an admission to Lesotho one would want to frighten them, one would want to say what the Police was going to do, but that doesn't mean that it would be believed in the SSC, because if you see what preceded this, if someone like the President says that the Police and the Defence Force and the National Intelligence Services make a joint investigation into the supply of terrorists from a neighbouring State ...

MR VISSER: But that is in general?

MR BOTHA: But that was the most important thing to him, and he refers and states that if there are any further incidents such as the landmine incidents in the Northern Transvaal, then drastic steps have to be taken on a cross-border basis by the Military Forces.

MR VISSER: But that was of application to Zimbabwe, now we get to Lesotho.

MR BOTHA: Well, then he has satisfied the meeting and told them to conduct an investigation and if there is any movement over our borders, we can strike. That is what he said to them.

MR VISSER: And then you get to Lesotho?

MR BOTHA: Yes, then we get to Lesotho against the background that I have already sketched.

MR VISSER: Yes.

MR BOTHA: And in the case of Lesotho, we simply had unconfirmed evidence. That is what appears here.

MR VISSER: Just a moment.

MR BOTHA: Is says so. Mr Berger put it to me.

MR VISSER: The SITREP of the 17th of December refers to unconfirmed ...

MR BOTHA: That is correct.

MR VISSER: Of a usually reliable source. You see, it is five past four and we are moving over to another aspect and I don't really want to commence with this aspect right away.

CHAIRPERSON: Are you planning on taking long?

MR VISSER: I had hoped to be brief Mr Chairperson, but perhaps it might be medium term.

CHAIRPERSON: Then we will commence tomorrow morning at half past nine again.

MR BERGER: Chairperson, tomorrow is it correct that we will be adjourning at 1 o'clock tomorrow?

CHAIRPERSON: Does that suit you?

MR BERGER: Yes, that would suit me.