DAY 1 : 21 OCTOBER 1996
CHAIRMAN: Bernard Ngoepe. On his left Senior CounselMr Chris de Jager and right on my extreme right is Ms Khampepe. I have been told by the logistics people that they have had considerableproblems at various levels which have made it difficult for usto commence at the appointed time, that was 10 o'clock, and anyinconvenience that has been caused to people who have been hereso much earlier, we are sorry for that inconvenience. We hopethings will work as smoothly as possible. Mr Mpshe.
MR MPSHE: Thank you Mr Chairman and members of the Committee. Mr Chairman I am going to hand over to my colleague, counselfor the applicants to start, but before that I just want, withthe permission of the Chair, to make an announcement to membersherein sitting about the channels. This affects those who dohave headphones that channel 1 will be for Afrikaans, channel2 for English, channel 3 for Sotho and channel 4 for Zulu. Youwill find the channels on the piece of instrument given to youin order to enable you to listen to a language of your choice. Thank you Mr Chairman.
MR DE JAGER: Mr Mpshe could you tell us whether therehas been compliance with section 19(4) of the Act? Have you infact in a prescribed manner notified applicants they are here,all the victims or persons implicated or having an interest inthe application of the place where this hearing would take place,and also informed them of their right to be present at the hearingand to testify, to adduce evidenceand to submit any article to be taken into consideration?
MR MPSHE: Thank you Mr Chairman and Members of the Committee. Compliance with that particular section has been done. The victimsas well as the next of kin to victims as well as their legal representativeshave been informed and the majority of them are herein present. The victims or the next of kin to victims have been served withour form 2 and I have in my possession return of services to thateffect.
JUDGE WILSON: But what about other interested partiesthat my colleague asked you about, that is persons implicated,I have a list of about 50 names of persons who are implicatedin the papers before us, have those persons been notified?
MR MPSHE: Those persons have been notified by means ofletters. We have written letters to them, but not personallyto them in that we have a difficulty inasfar as knowing theirwhereabouts. The majority of them are former police officersand letters have been written to the Minister of Safety and Securityfor causing them to be delivered to the affected persons.
JUDGE NGOEPE: Isn't that a general statement, shouldn'twe look incident by incident? For example, I mean I don't knowwith which incident we are going to start, but it's difficultto imagine how, for example, the Zero handgrenade, so-called,how, given the contents of some of the things that the applicantsays, who says that he doesn't know the names of the victims,it is difficult to imagine how the families could have been contactedand informed. My suggestion is shouldn't you, before you handover to your colleagues indicate to us, unless you are satisfiedthat compliance has been effected in respect of all the incidents,shouldn't you identify to us those incidents which have got this kind of problem and those incidents in respectthere's been full compliance?
MR MPSHE: Thank you Mr Chairman, Members of the Committee. I have made available to members of the Committee a form of thisnature and I am going to refer to it, it will be easy reference. This was attached to the letter by me to Committee members.
JUDGE WILSON: It was not attached to the letter to me.
MR MPSHE: My apologies to that, that it was not attachedto certain letters given to Committee members. That form I'mreferring the members of the Committee to list out the incidentsor the events, and I am going to move by those incidents and indicatewhere the necessary has been done. JUDGE NGOEPE: Theproblem which will arise if you want to deal with them in sucha global fashion.
MR MPSHE: Thank you. Perhaps with the Committee's permissionI may have to start identifying events wherein there has beencompliance. I think that will be the best starting point.
Now event no.1 on that paper, the Zero handgrenade, there hasbeen compliance. It's called the Zero handgrenade.
Event no.2 ...(intervention)
MR DE JAGER: Was there only one incident or how incidentsof Zero handgrenades were there?
MR MPSHE: There are victims, about nine or ten of them,and all next of kin in here have been informed and served. Nowthe number may not be mentioned when it says Zero handgrenade,we may not mention the number of victims therein because I thoughtthese are included in the application itself. If the applicationin that particular event is being read it will come out clear. In some mention is made that, to give an example, we simply say the Kwandebele9 or the Kwandebele Incident. Now in the application it disclosesthat 9 Kwandebele people were, 9 people were killed in Kwandebele. Now here it is just a summary of what is included in the application.
JUDGE WILSON: But in the Zero handgrenade there is, asfar as I can see, no information in the application about thevictims.
MR MPSHE: There is no information in the applicationabout the victims, because that was not disclosed in the application. But as a result of investigation done by the TRC this has nowcome to be known and they have been informed. I want this Committeeto realise that some of the events were not quite giving us anylead in order to make up minds but with the assistance and thecooperation of the Investigative Unit we were able to identifywho was injured and how many people were there, and this willbe tendered in evidence viva voce. Thank you.
Now I will start. The Zero handgrenade there is compliance. The killing of Joe Jele(?) there is no compliance. The thirdone, the attempted murder on Jerry Tebedi there is compliance. The fourth one, the attempted murder on Reverend Mukachwa thereis compliance. The next one Pepco 3 there is compliance. Thenext one, the killing Zweli Nyanda there is compliance. The "NietVerdiend" there is compliance. The "Niet Verdiend"refers to the activists, nine of them who were killed in a Combiaround Bophutatswana, close to Zeerust, there is compliance. The Rubeiro double murders there is compliance. Makupe MarkenSofula(?) killings there is compliance. The Kwandebele 9 killingthere is compliance. The killing of Jeffrey Sibiya there is no compliance. The killing of Piet Ntuli there is compliance.The killing of Brian Nyalunga there is no compliance. The killingof policemen in Hammanskraal there is no compliance. Nyalungathere isn't. And the next one, the policemen in Hammanskraalthere isn't, not to my knowledge. The interrogation of ScheepersMorudi there is no compliance. And the burning of Zozo Housein Mamelodi there is compliance.
I want further to state this that the document in front of theCommittee members is intended to assist the Committee membersinasfar as the events are concerned. As the Honourable Memberhas already indicated that one incident or one applicant may testifyon an incident which may also be covered by others. Now thisis intended to show their cross-reference. To take an example,attempted murder on Jerry Tebedi, evidence will be given by VanVuuren as well as Hechter. Now there is a cross-reference forthe convenience of the Committee members. I don't know whetherI have responded sufficiently.
JUDGE NGOEPE: Can I just ask you something. With regardto attempted murder Reverend Mkatso, it's not clear to me whywe are hearing it. There hasn't been any gross violation of humanrights.
MR MPSHE: Yes Mr Chairman, Members of the Committee. The Act, I cannot remember the section at hand, under definitionswhere it gives the meaning of gross violation, attempt is alsoincluded in that Act, is the main reason as to why I had it here. But it is provided for in the Act.
JUDGE NGOEPE: How is that distinguishable from the caseof Mr Mosaneke?
MR MPSHE: Can I just refer to the section or can I leavethat in ...(intervention)
JUDGE NGOEPE: How is that distinguishable from that ofMr Mosameki?
MR MPSHE: That one of Mr Mosaneke, if one goes throughthe application nothing was done, not even anything was done interms of the application to show what they had intended doing. The application goes as far as we wanted to do this but thiswas abandoned.
JUDGE NGOEPE: No actual preparation.
MR MPSHE: No actual preparation. Whereas with ReverendMkaswa there was actual preparation and an attempt was made.
JUDGE NGOEPE: Thank you.
CHAIRMAN: Yes you may proceed.
MR MPSHE: Thank you Mr Chairman.
MR DU PLESSIS: Thank you Mr Chairman and Honourable Membersof the Committee. I wish to place on record I am Advocate Roelofdu Plessis of the Pretoria Bar. I act in this matter on behalfof all five applicants, on instructions of the firm Strydom Britzattorneys in Pretoria.
Mr Chairman we have prepared, in conjunction with our clientsthe applicants, an opening statement which will serve as my openingstatement to these proceedings which we have contained in writingand which I would like to hand up to all the members of the Committee,and I will then request my attorney Mr Britz to read the openingstatement on behalf of all five applicants to everybody concernedhere.
I would like to state before Mr Britz starts reading the openingstatement that this statement was signed by all five applicantson the last page thereof, and the intention thereof is to givethe applicant's views on these
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proceedings and to state exactly what they feel about these proceedings. It will also include an indication of the evidence that willbe led and the way it will be led. I will now ask Mr Britz toread it to you.
MR BRITZ: Thank you Mr Chairman, Committee Members.
We are gathered here today in a spirit of peace and reconciliation. We believe that the time has come for a new era in South Africa'shistory. The Afrikaner has struggled for freedom from BritishImperialism. The African people have struggled for freedom. It is now the time for all South Africans to be free, free ofthe past and free of conflict. We are part of the New South Africa. We believe in reconciliation between all the people of this country.
As members of the security forces during the time of the strugglewe have decided to come forward in the spirit of this new country,in a spirit of trust in the new government and the Truth Commissionin particular, and with a purpose of cleansing our souls fromthe darkness of the past and to let the truth be spoken aboutour deeds. We will tell all, and participate in these hearingswith the full knowledge that what we have done belongs to thepast. That it belongs to the conflicts, ideologies and systemsof the past, and that we need to reflect upon our deeds, to repent,to search our souls for the truth, and to shed the burden of ourconscience which we have carried with us for so long.
We believe that the process created by the promotion of NationalUnity and Reconciliation Act is a necessary mechanism to obtainthe truth, to weigh the motives and arguments of those who werepart of the conflicts of the past, to reflect thereupon, and eventuallyand ultimately to 1A learn/...
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learn therefrom for the benefit, not only of ourselves but offuture generations in South Africa and beyond. Our actions andexperiences relate to a period of extreme violence and conflictin South Africa's history between opposing forces who have nevertried to understand each other or to reconcile differences ina peaceful way.
The recent changes in South Africa represent an opportunity tobury the past, the conflicts of the past and the reasons therefor,and to build a new country for all the people of South Africa. It is with this belief that we have decided to come forward andto participate in the process of healing the wounds, discoveringthe truth and reflecting on our actions during the period of theconflict. The time for deception is passed. The time for denialis passed. The time for conflict is past. The time for refusalis past. The time for repression of the truth is past. The timefor justification is past. The time for hatred is past. It istime for peace. It is time for reconciliation. It is time forhealing. It is time for forgiveness. It is time for truth. It is time for confession.
We do not believe that our endeavours to uphold apartheid wereworth the pain and suffering on both sides and we are of the firmbelief that the actions of both sides of the conflict were excessiveand unnecessary and could have been avoided. We believe thatthe truth will assist in preventing such happenings to occur infuture in South Africa. We have decided to come forward as webelieve, contrary to the leaders of the previous government andto our superiors in the security forces, that the time for conflictis past. We call on all other members of the security forcesand the liberation fighters to come forward
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and participate in this process of reconciliation and nation building,as we believe that is the only alternative to further conflictand separation of the people of this country.
We will give evidence about our actions during the time of theconflict and will show that all our actions were purely and simplyassociated with the political objective, namely to uphold theNational Party government and apartheid, to fight communism andto resist liberation of South Africa and democracy for all inSouth Africa.
We are not criminals, we have never committed any criminal deedoutside the sphere of the conflicts of the past, and we have notread any extra financial or patrimonial incentives for anythingwe had done. We believed that we acted bona fide in theinterests of our country and our people. We will show that we,at all times believed that we were acting in the course and scopeof our duties and within the scope of our authority.
We will attempt to explain our actions in the political contextand against the political background of the time in which theywere committed, and we intend to explain the reasons for our actions. We express compassion and regret to the families of those whohave suffered as a consequence of our deeds. We will endeavourto enlighten the world to the environment and background againstwhich we acted, the beliefs we held which were impressed uponus from our birth, the indoctrination to which we were subjectedand the political motives with which we acted.
We were brought up to believe in apartheid. We were made tobelieve that apartheid was sanctioned by God through the church. We were made to believe that our participation
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in the security forces was justified to uphold apartheid. Wewere made to believe that Black people were inferior and thatthe needs, emotions and aspirations of Black people differ fromours. We were made to believe that we were superior and thatthese differences justified apartheid. We have come to realisethat these beliefs were wrong, morally and in reality and we donot hold these beliefs anymore. We believe that the example setby the President of South Africa, Mr Nelson Mandela, in respectof reconciliation, forgiveness and understanding should be followedby everyone in South Africa.
In the same vein we wish to refer to what General Jan Smuts saidabout South Africa already in 1917. I quote,
"The time has come now to speak about the past and thenbury it forever. To take hands and to work together for a newcountry. Tonight we are really met together here as members ofthe South African family, some born into it, some married intoit, some old servants who have gone grey in hard service and whohave given the best years of their lives to that service. Herewe can all sit together forgetting Europe, forgetting the stormsraging outside and our minds can travel back to the sun-filledspaces of Southern Africa to its amazing history and its immensetask. A great historian has said, on those whom the Gods lovethey lavish infinite joys and infinite sorrows. On that principlesurely South Africa must be a special favourite of the Gods. She has known joys and sorrows. She has known the deepest abasementand she has known the highest auscultations".
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We, as proud Afrikaners, are part of this country and shall bepart of this country in the future. We are prepared to forgivethose who have sinned against us in the past. We have forgiventhe concentration camps of the Boer War where innocent women andchildren had died. We are prepared to forgive those who havewaged war during the struggle, also on innocent women and children. We similarly ask forgiveness for those who lost their lives andthose who were injured, and we share the grief of those familymembers of victims who have suffered during the era of the conflict. We have sincere regret that people have suffered on both sides,and we wish to express the sincere hope that the time for truthand reconciliation in South Africa has now arrived.
We have made full disclosure of all relevant facts pertainingto our applications and we wish to say furthermore that from ourexperiences in dealing with the Truth Commission, up to now, wehave come to expect to be treated with compassion, understandingand fairness. We therefore have belief in this process and commitourselves fully thereto.
We call upon our superiors and the previous government not todeny responsibility but to stand by the people and to admit responsibilityfor what was done by us in our endeavours to keep them in power. We all supported the National Party until 1994. What we haddone was always in the interests of the National Party and itsobjectives. We believed in the policies of the National Party,and believed that we had to carry out our duties in support ofour party. We state emphatically that we have been deserted bythe National Party and that we have, so-to-speak been thrown
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away in the gutter where we now have to take the responsibilityon our shoulders to deal with our past, to motivate our actionsand to present our view, as Afrikaners, of the conflict. We callupon the previous government and our superiors to explain certainorders given to us about which we shall testify and to admit toauthorising actions outside the normal processes of the law suchas are demonstrated by the facts of our deeds and the authorisationthereof. We seriously doubt the statement made by Mr F W de Klerkin the following terms in the National Party submission to thisCommission,
"In dealing with the unconventional strategies from theside of the government I want to make it clear from the outsetthat within my knowledge and experience they never included theauthorisation of assassination, murder torture, rape assault orthe like. I have never been part of any decision taken by Cabinet,the State Security Council or any committee authorising or instructingthe commission of such gross violations of human rights, nor didI individually directly, or indirectly ever suggest, order orauthorise any such action. I feel in duty bound to also placeon record that the above statement with regard to my positionis also a reflection of the viewpoint of my colleagues who satwith me in Cabinet, the State Security Council or Cabinet committees".
We ask from you do not desert us further. Do not turn your backson us, help us.
We wish to end to quote an Afrikaans poem of the well-
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known Afrikaans poet C J Leipold which is apposite to the endof conflict and the beginning of reconciliation.
(Starts in Afrikaans with no Interpreter)
And in mind for dreams
Give us the ability to laugh when life is hard
Grant us hope in the darkest nights of grief
Give peaceful rest to us all who live and struggle throughgrief and pain
Grant us the right ultimately to die
Grant us peace and rest and we will ask for no more but listenquietly to the wind which whispers softly in our ears 'Couragepeople, courage'. Evil will be transformed into good and dawnemerge from the darkness".
CHAIRMAN: Thank you.
MR DU PLESSIS: Thank you Mr Chairman and Honourable Membersof the Committee. Mr Chairman before we start with dealing withthe evidence pertaining to our applications and before we startwith the proceedings there is one aspect that we would like todeal with first of all and which we would like to raise with theCommittee and the Members of the Committee. That aspect dealswith the situation the applicants find themselves in pertainingto certain witnesses and certain documents which they might beable to use in support of their applications. Certain people,participants in some of the deeds who are named in the applications,have made arrangements with the Attorney General to become Statewitnesses in possible criminal proceedings against some of theapplicants, especially Brigadier Cronje and Captain Hechter.
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We have had discussions with the Attorney General on this issueabout the possibility of using the evidence of some of these Statewitnesses to support the applicant's applications. Clearly theState witnesses, if they speak the truth about their happeningswill be able to support the applicants in their applications andwill be able to corroborate certain facts. Some of the Statewitnesses might also be able to shed some light on certain happeningsand certain issues pertaining to these applications outside thenarrow sphere of the deeds and the acts themselves.
I have prepared heads of argument on this matter which I wouldlike to hand up to the Commission which deals with my argumentin respect of the request that the applicants would want to maketo the Commission to facilitate or order that these State witnessesbe subpoenaed to come and give evidence at these hearings firstly,and secondly pertaining to the availability of the dockets inpossession of the Attorney General pertaining to the possiblecriminal proceedings in certain instances and pending criminalproceedings in other instances of some of the other applicants. We say that those documents, as well as the evidence of the Statewitnesses might or will serve to support the applications of theapplicants.
I beg leave to hand up copies of the heads of argument that Iprepared to the Committee.
MR DE JAGER: There is just one other aspect that I wouldlike to refer to in the introduction, on page 6 at the bottomyou say that,
"....facts pertaining to our applications and we wish tosay furthermore that from our experience in dealing with the TruthCommission up to now we
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have come to expect..."
(Tape 1A ends)
MR DU PLESSIS: Chairperson are you referring specificallyto the question relating to the witnesses to be called?
MR DE JAGER: No. Have you, before this application havehad any consultations with members of this particular Committee,because the impression is now created that we have treated youwell and I would like to place it on record that we have had nodealings with you, we have had no consultations or talks withyourself.
MR DU PLESSIS: Yes Chairperson if that has created thewrong impression that was not our intention. The intention wasto make it clear that the people with whom we have cooperated,the people from the Truth Commission, or who are employed by theTruth Commission and I will name them specifically, these peoplehave treated us very well and we just wanted to place that onrecord. We include Archbishop Desmond Tutu here, first and foremost. And we would also like to add the name of Dr Alex Boraine. Alsothe name of Jasmin Suka, Andre Steenkamp and Advocate Mpshe.
The only purpose of this statement which we made was to makeit clear that we have faith in the Truth Commission. It was mentionedin the Press and in public that there are certain parties andgroups, especially from the security forces who have no faithin the Truth Commission and we just wanted to make the point veryclear that as a result of the way in which we were treated bythese people we have arrived at the point in which we have absolutefaith in the Commission. We have never at any stage had any consultationsor talks with the members of the Committee now before us, regardingthe applications.
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May I beg leave to hand up the heads - oh have you received these,thank you very much. I would want to place on record that thereare representatives here of the Attorney General's office andI would like to present them with copies of the heads of argumentas well so that they can follow the argument.
I have been informed by Dr Pretorius, to whom I am handing thecopies of the argument now, I have been informed by him - he'sappearing on behalf of the Attorney General together with Mr Rigeldu Toit, that they will oppose this application and that theywill address you in respect of this application.
The application is based upon section 29C of the Act. Section29C of the Act reads as follows:
"The Commission may, for the purposes of or in connectionwith the conduct of an investigation or the holding of a hearingas the case may be by notice in writing call upon any person toappear before the Commission and to give evidence or to answerquestions relevant to the subject matter of the hearing".
As I read the section Mr Chairman it provides a wide discretionto the Commission to call upon, in writing, upon any person toappear before the Commission to give evidence or to answer questionsin respect of the subject matter.
If I can refer you to page 1.2 on page 2 of the heads of argument,
"It is submitted that the Commission has the power in termsof section 29 of the Act to call upon the abovementioned personsto appear before the Commission and to give evidence or to answer
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questions".
The abovementioned persons are all State witnesses in the State'scase against most if not all of the applicants. The persons mentionedin paragraph 1.1 are Captain Jaap van Jaarsveld, Sergeant DionGous, Warrant Officer Andre Oosthuizen and Warrant Officer JoeMamasela.
It is of importance for the applicants to have their versionspresented at the hearing to the Commission, corroborated by theevidence of the State witnesses, as well as affidavits and statementsmade to the Attorney General in the course of his investigations.
Mr Chairman one should keep in mind that the applicants now haveto testify in these proceedings about happenings of ten yearsor longer ago. Clearly they will not be able to remember everything. Clearly some witnesses will remember certain things and otherwitnesses will remember other things. In that regard the applicantshave made full disclosure, but it is possible if one strives tohave the truth and the whole truth that some of the State witnessesmight add, will be able to add to certain parts of the evidenceof the applicants, and we say that that is important for the truthto come out. We also say that that will serve to corroboratethe versions of the applicants and to show that they have madefull disclosure of whatever they can remember.
Paragraph 1.4 we say that,
"The Commission is requested to call upon the AttorneyGeneral of the Transvaal, in terms of section 29(1)(b) of theAct to hand over the dockets of their enquiries made by the AttorneyGeneral in respect of each of the applicants. It
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is submitted that the statements made to the Attorney Generalby the above witnesses would be of material importance to theapplications of the applicants, and would assist the Commissionand the applicants in obtaining the truth and determining theapplications.
It is submitted that the Commission could only be requestedby the Attorney General to take steps aimed at the preventionof any undue delay in/or the disruption of any investigation orjudicial proceedings in terms of section 29(3) if the State witnessesshould be called as witnesses".
If I can refer you to section 29(3). Section 29(3) states that,
"If the Commission is of the opinion that the productionof any article in the possession of the State, any departmentof State or the Attorney General, may adversely affect any intendedor pending judicial proceedings or the conduct of any investigationcarried out with a view to the institution of judicial proceedings,the Commission shall take steps aimed at the prevention of anyundue delay in or the disruption of such investigational proceedings".
Now it is possible that the Attorney General might argue thatto call a State witness and to provide statements of State witnessesto the applicants might adversely affect the intended or pendingjudicial proceedings. There are pending judicial proceedingsagainst Brigadier Cronje, Captain Hechter and Captain Mentz atthis point in time.
Now in respect of that we submit to you that section
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29(3) only becomes applicable after a decision has been made orwas made by the Commission to subpoena such witnesses. We sayin paragraph 1.8,
"As judicial proceedings against Brigadier Cronje, CaptainHechter and Captain Mentz have been postponed such judicial proceedingscan obviously not be affected. It is therefore only the investigationwhich could possibly be affected. Even though the Attorney Generalopposes this application it is not clear in what way the investigationwould be affected if the dockets are presented to the Commissionat this hearing. It must be clear that the investigations havealready been finalised in the light of Brigadier Cronje, Hechterand Mentz as they have already been, they haven't been asked toplead but their cases have been postponed. They have been arrestedhowever".
Paragraph 1.14 we submit, we say,
"It is submitted that these State witnesses might possiblybe requested to answer questions which might incriminate them".
This is a possible argument that the Attorney General might wantto raise. We submit that this would then have to be dealt within terms of section 30(1)(2) of the Act which makes specificallyprovision for this. This section says that,
"A person referred to in subsection 1, that is a personwho was called to be questioned by the Commission shall only becompelled to answer a question or to produce an article whichmay incriminate him or her if the Commission has
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issued an order to that effect, after the Commission, firstly,has consulted with the Attorney General who has jurisdiction..."
and the Attorney General will address you now on this,
".... has satisfied itself that to require such informationfrom such a person is reasonable, necessary and justifiable inan open and democratic society based on freedom and equality".
We say in this regard that the proceedings that we are dealingwith now, relating to truth and reconciliation is clearly, clearlyrequires that as much information as possible should be placedbefore the Commission and that to order State witnesses to provideevidence and to make available statements in dockets by the AttorneyGeneral would be reasonable, necessary and justifiable in an openand democratic society which strives for freedom and equalityand strives for the truth.
Then the last paragraph,
"Has satisfied itself that such a person has refused oris likely to refuse to answer a question or produce an articleon the grounds that such an answer or article might incriminatehim or her".
I don't know what the attitude of these witnesses might be, butsurely if they are requested or questions are asked pertainingto the commission of certain deeds which might be criminal actsthey would, in all probability, want to rely on their right againstself-incrimination.
We say that section 31 was specifically included to deal withinter alia the question of State witnesses being calledat hearings before criminal proceedings. We say
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that, and we make that submission because of the fact that section31(2)(a) refers to a consultation with the Attorney General inrespect of a question asked to a witness where he has to incriminatehimself. The involvement of the Attorney General gives the indicationand creates the perception that this section was included in theAct to also make provision for a situation where a State witnessor a possible State witness might be called at these proceedingsbefore criminal proceedings take place.
We say in paragraph 1.17,
"Such a reference would not have been included in section31 if this situation was not contemplated. This means that thedecision to make a decision pertaining to the use of prosecutionwitnesses at a hearing of the Truth Commission becomes the Commission'sdecision and falls within the discretion of the Commission".
Section 19(7) makes provision for the stay of prosecution in theevent of criminal proceedings having been instituted. It doesnot make provision for the stay of an amnesty application beforecriminal proceedings. The intention, therefore, is that amnestyapplications should be dealt with first and should receive priority. If the intention of the legislature was that criminal proceedingsshould be the first priority the Act would have specifically statedso. Then we say that priority of amnesty applications might alsosave the taxpayer legal expenses if the amnesty is granted eventually. Nowhere in the Act provision is made for the exclusion of a specificcategory of persons from the ambit of the Act and from becominga witness in terms of section 31 of the Act. It would have beenexpected of the
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legislature to exclude persons if the intention was to excludeanybody. Prosecution witnesses should therefore not be treatedin any other way than any other witness.
We submit that the proceedings before this Commission are completelydifferent proceedings from criminal proceedings and that the factthat criminal proceedings are pending should have no influencewhatsoever on the Commission's decision in this regard.
Paragraph 1.20 we say that,
"Evidence by a prosecution witness cannot be used againsthimself in later criminal proceedings so there cannot be any prejudiceto any prosecution witnesses if they should incriminate themselvesin these proceedings".
It is clear that the Attorney General wants the benefit of hearingall the facts of the deeds by other witnesses such as the applicants,and to utilise it in his preparations of any criminal proceedings,especially in the case of a hearing where the evidence presentedto this Commission would have been done without confidentialityattached thereto.
On the other hand the Attorney General does not want to participatein these proceedings by making available State witnesses who mightcorroborate the applicant's version and who might also assistin this Commission to get to the truth of the matter.
It is furthermore submitted that the principals in respect ofaccess to dockets in criminal cases as set out in the recent caseof the Constitutional Court in Tshablala v Attorney General,Transvaal, are not applicable to the question currently underconsideration. As those
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proceedings are not criminal proceedings, the same as these proceedingsare not criminal proceedings the same principles cannot be applied. And we submit that the only basis upon which this applicationcan be determined is the Promotion of National Unity and ReconciliationAct.
As you are all probably aware of the Tshabalala case providesfor a discretion of the Court on certain grounds to allow thedefence to have sight of documents in the docket, especially statements,and also to consult with State witnesses.
We submit furthermore that it is important to note that the evidenceof the State witnesses will also deal with aspects surroundingthe security forces and not necessarily only with the evidenceof the deeds. The evidence which they will present will thereforehave a much wider ambit than the information available to theAttorney General. We do not understand how the Attorney Generalcan then be of the view that such witnesses, where they will beused and specifically I wish to refer you to Captain Jaap vanJaarsveldt where they will be used if they are called as witnessesto give evidence about a lot of wider aspects than simply thehappenings and the deeds. Captain van Jaarsveldt can, for instance,shed a lot of light on certain instructions and orders that weregiven on the background in respect of the dealing with informationby the Security Branch.
As long as the Attorney General does not want to allow thesewitnesses to give evidence at the Truth Commission this informationwhich is also relevant to the applicant's applications will notbecome available to the Commission and will not be disclosed tothe Commission as part of the
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process to seek the truth. We say that in the international contextit's ...(intervention)
JUDGE NGOEPE: Sorry to interrupt you, have you consultedwith these people?
MR DU PLESSIS: I have not consulted with the people.
JUDGE NGOEPE: The people that you want to be subpoenaed.
MR DU PLESSIS: Yes. Mr Chairman what I have here isI have a master's thesis which I found in the library of Unisadealing with, entitled "The role of the population in insurgence"written by Captain van Jaarsveldt - morning permission from theAttorney General to speak to Mr van Jaarsveldt about one issueand that was the issue pertaining to the orders. I did receivethat permission and I spoke to Mr van Jaarsveldt about that.
JUDGE NGOEPE: He's the only person that you have consulted?
MR DU PLESSIS: He's the only person that I have spokenwith.
JUDGE NGOEPE: You don't know what the other witnesses,what they say?
MR DU PLESSIS: No I don't, I don't, but we believe thatwe ...(intervention)
JUDGE NGOEPE: You don't know what stands in the docket?
MR DU PLESSIS: No. We don't have any idea whatsoever. We believe that we speak the truth and if those witnesses comeand differ from us pertaining to what happened, we say that wewill not be the liars, they will be the liars. We believe thatwe have spoken the truth, we will speak the truth and we are confidentthat we speak the truth, to such an extent that we are preparedto say that if those witnesses are called and they speak the truththey will
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corroborate our versions.
JUDGE WILSON: Put another way if those witnesses corroborateour version they are speaking the truth?
MR DU PLESSIS: I beg your pardon?
JUDGE WILSON: Your argument would be if those witnessescorroborate our version they are speaking the truth, is that so?
MR DU PLESSIS: Well all of them are speaking the truth. The applicants are speaking the truth and obviously then theState witness as well.
CHAIRMAN: It's a corollary of the point that you've madeearlier.
MR DU PLESSIS: Yes. One cannot see on what grounds Statewitnesses would not speak the truth. On the other hand one cannotsee why the applicants will not speak the truth as they are heredealing with this process. So we say that it would be to theadvantage of everybody concerned that the truth comes out andwe are sure that the truth will come out if they all speak thetruth.
We submit in an international context it has always been a vexedquestion if amnesty should make in-roads into the State's responsibilityto investigate and prosecute grave human rights violations. Inmost instances where transition of power has taken place, in worldhistory recently, amnesty prevailed. The was the case in El Salvador,Argentina, Guatemala and recently Haiti. In most cases severeopposition was experienced by various parties to the grantingof amnesty and especially blanket amnesty. In each instance theimportance of truth and reconciliation prevailed.
It is therefore important, we submit, to take the
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international experience into account when consideration is givento the interests of the Attorney General as against the interestsof the Truth Commission, and we refer to certain internationalarticles dealing with this whole issue between the State's responsibilityto prosecute human rights violations on the one hand and the provisionof amnesty on the other hand.
It is therefore submitted that it is imperative in the lightof the intention of the Act and with reference to the ambit ofthe Act that all evidence pertaining to the applications of theapplicants will be placed before the Commission so that the truthcan prevail.
The Commission is therefore humbly requested to issue subpoenasor to allow subpoenas to be issued against the four State witnessesreferred to in the heads of argument and to subpoena the AttorneyGeneral to provide the Commission with the dockets pertainingto each of the five applicants referred to above.
I want to make one last submission. If there might be a possibilitythat the Attorney general feels that if the evidence should bedisclosed, publicly by State witnesses that the criminal proceedingsmight be prejudiced we submit that at least the statements inthe dockets which need not be read into the record but which canbe presented to the Commission on a confidential basis, then beobtained and presented to the Commission to assist in obtainingthe truth and considering the applications of the applicants.
There is therefore a middle-of-the-road alternative which wewould suggest in that regard. That would then mean that thesewitnesses would not testify or otherwise the witnesses could possiblytestify in camera so as to not
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prejudice the criminal proceedings in future, and it can be orderedthat only the necessary people can be available or present whensuch evidence is taken down. All we say is we want the truthto come out. That is what we say. And we say that will supportus in our amnesty applications will show that we have been bonafide, that we have disclosed the truth and will corroborateour versions and will help this Commission furthermore in dealingwith these amnesty applications. Thank you.
JUDGE NGOEPE: Mr du Plessis it seems to me the sectionthat you are referring to seems to be giving us the discretionto subpoena these people?
MR DU PLESSIS: That is correct, section 29, yes.
JUDGE NGOEPE: Now a discretion must surely be exercisedon some facts, on some other reasonable premises and not by tossingthe coin. Now if you don't know what stands in the docket, ifyou have also not consulted with these people, on what basis shouldwe exercise our discretion?
MR DU PLESSIS: Mr Chairman obviously that caused a problemfor the applicants. Insight into the documents was refused, andI've had the limited opportunity this morning to very brieflyspeak to Captain van Jaarsveldt, but we were refused any furtherdealings or consultations with these witnesses. So obviously,in that regard, the applicants cannot place information beforethe Committee about exactly on what facts and on what basis theversions of the applicants might be corroborated.
But we say that for the Committee to exercise its discretionthe Committee can take into account those happenings which theapplicants have disclosed in their applications where the Statewitnesses were also present,
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and quite a few of the issues on the list that will be dealt withat this hearing some of the State witnesses were present. Nowthose are facts that the Committee can take into account.
We further submit that another possibility of dealing with thisis to request the Attorney General to make available to the Commissionthe statements in the dockets and not necessarily to ourselvesso as to verify the contents thereof and then to make a decisionon that basis.
There is another point that my attorney refers me to and thatis that one of the witnesses, Joe Mamasela, one of the State witnessesJoe Mamasela has already given evidence in different forums suchas, I believe, at the Harms Commission and also he has given certaintelevision interviews at which he discloses certain facts.
JUDGE WILSON: I have only just had a chance of lookingat the list of names of witnesses whom you wish to call, do theyappear at all in the statements made by your clients, and if so,where? I am talking about Captain van Jaarsveldt, Sergeant Gousand Oosthuizen. Mamasela does appear I know. Do the others appear?
MR DU PLESSIS: Yes they do all appear. It is difficultfor me to ...(intervention)
JUDGE WILSON: Where?
MR DU PLESSIS: ...specifically, if I can refer you ona broad basis from memory where they appear. Sergeant Gous andWarrant Officer Andre Oosthuizen appear in respect of the Kwandebele9 killing.
JUDGE WILSON: Those are the hearings set down for nextweek.
MR DU PLESSIS: That is correct.
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JUDGE WILSON: They are not in any of the hearings setdown for this week?
MR DU PLESSIS: No, no.
JUDGE WILSON: No. I haven't checked on next week, I'mtalking about this week.
MR DU PLESSIS: Yes.
JUDGE WILSON: They do not appear in any of those.
MR DU PLESSIS: Not as far as I can see except Mamasela,Mamasela appears in approximately every one.
JUDGE WILSON: He appears all over the place.
MR DU PLESSIS: We found it expedient, however, to dealwith this issue before we start with the evidence because we feelit is important that this should be clarified before we go ahead. Captain van Jaarsveldt also is important in respect of the killingof Piet Ntuli, and I believe one or two other matters which Icannot put my hand on now.
MR DE JAGER: Mr du Plessis you have submitted that wecould keep the documents confidential, but can we if we have alook at section 19(8)(b), wouldn't the confidentiality lapse assoon as we start with the hearing?
MR DU PLESSIS: Yes. The way I read section 19(8)(b)is that is deals specifically with evidence which will be givenand led during the hearing. That is why I made the submissionat the beginning when I made the middle-of-the-road submissionthat the statements in the docket could perhaps be provided tothe Commission without any evidence being led about that.
MR DE JAGER: But it says in (a) and (b) refers to (a),
"The application's documentation in connection therewith,further information and evidence obtained".
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it refers to all of them.
MR DU PLESSIS: Yes it refers to application's documentationin connection therewith. This section clearly deals with thesituation of the hearing and what happens at a hearing. I havegiven consideration to this and I have to concede that it is possiblethat your interpretation might be correct that there won't beany confidentiality attached to such evidence. If no confidentialitycan be attached to such evidence obviously the question arisesthen in what way would the judicial proceedings be affected? Our submission is that these proceedings before the Truth Commissionare proceedings of a totally different nature, has got nothingto do with the criminal proceedings and should not in any waywhatsoever prejudice the criminal proceedings at all. I wouldreally like the representatives of the Attorney General when theyget the opportunity to state exactly how these witnesses wouldbe prejudiced.
DR PRETORIUS: If it pleases the Committee learned CommissionersI appear on behalf of the Attorney General, Pretoria office. Since late 1994 the Attorney General's special investigation unithave been involved in an investigation and enquiry concerningthe aspects relating to these three applicants. I have also seethe heads of argument by my learned friend today and I would liketo refer to these later, if it pleases the Committee.
Firstly, my learned friend perhaps conceded and that was alsothe attitude of the State right from the start, I must make itclear that the Attorney General is not opposed to any amnestyapplication or the hearing of the amnesty application here, itis simply the integrity of the prosecution which is in issue. So we would like to oppose
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the application for subpoenas, firstly on the basis that it ispremature. His five applicants are now applying for amnesty. At this stage it is totally premature and I would like to sketchthe potential prejudice which could follow this kind of procedure.
The history of the criminal procedure in South Africa has clearlyproved in the past, you might for instance recall we had preliminaryinvestigations in the past as a result of the suggestions andrecommendations of Judge Hiemstra inter alia, that potentialprejudice which could result due to the exposure of too much Stateevidence has been emphasised. I have also had the privilege ofbeing involved on more than one occasion where evidence, witnessestestified before a Committee and later that led to criminal proceedings. I take here as an example the Boipatong investigation and forinstance the case currently before the Goldstone Commission.
The potential prejudice locked up in this approach where Statewitnesses are unnecessarily exposed is that we can then obtaina previous record which in later criminal proceedings may be usedto in a tactical and contextual way enquire and investigate theissue and to say you use this and that word before the Truth andReconciliation hearing and today you use a different word andin such a way one can continue ad nauseam to refer to discrepanciesand the minutes tick by as an attempt is made to find discrepanciesbetween the evidence of the State witnesses in the one forum andthe evidence given later.
So it is not an issue of the State witnesses not speaking thetruth. None of us are capable of using exactly the same wordson two different occasions. So in the
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history of the South African criminal procedure system and theabolition of the provisional enquiries, it is only too clear thatthere is the possibility of potential prejudice if State witnessesare unnecessarily exposed.
The first point that the State would like to make is that itis a totally premature application. The other point which mustbe made is that the office of the Attorney General.. (Tape 1 ends)
TAPE 2A DAY 1
...to be called and then the question could be put to the InvestigatingOfficer, that which you heard from the applicant is that in linewith the image, the picture created in the docket that the Statehas or not? Are there differences of nuances etc? In this wayrepetition could be avoided.
If my learned friend simply wants to use this evidence for corroborationfor a repetition it is not necessary and I maintain that it ispremature. At the end of their case, if there are then certainproblems, omissions, for instance if there are certain answersonly to be given by Jaap van Jaarsveldt there are methods, thereare ways in which the office of the Attorney General could beapproached to seek a solution for that situation without the necessityfor the witnesses testifying viva voce and be subjectedto long and protracted cross-examination. So the State is formallyopposing application for the subpoenas.
In the same breath we have to say that you must be aware thatthe Attorney General will give his full support to help you inyour very difficult task. So that must also be stressed.
As far as the second application is concerned I don't
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want to dwell on that for too long, that is the application tohave insight in the docket, the Tshabalala decision isreferred to. This is the wrong forum to bring such an applicationand the Tshabalala did not abolish the State's privilege. It would not be valid for you to say that the docket should nowbe disclosed. I don't say that it is relevant to this particularcase. It's obvious that the five applicants in this case areaccomplices and with your experience in the courts you will knowthat there are certain dangers regarding the evidence of accomplices. The cautionary rule, that is a rule which has taken shape inan evolutionary way over a process of time for a very good reasonand it is possible that applicants such as these could stay onthe line of truth because they have such an intimate knowledgeof the facts and simply where it suits them or where it is essentialor crucial you then have an aberration in their evidence. Soit's imperative that the State looks at the interests of justiceand that the integrity of the prosecution must constantly be guarded.
So we therefore formally oppose this application that subpoenasbe issued at this stage for the State witnesses.
I must tell you I only received the heads of argument this morning,and before I deal with those very briefly it must also be understoodthat each of these witnesses has his own individual interestsat heart. I went to a great deal of effort to contact all theState witnesses and to ask them what their attitude would be inthis particular case, and here we must make a distinction betweenthe attitude of Mr Joe Mamasela, for instance, and the attitudeof Mr van Jaarsveldt. And I would like to explain Captain vanJaarsveldt's attitude to you and refer to a letter which I
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received from his attorney and I would like to hand that in tothe Bench and allow me to just read it into the record.
"The Chairperson, Committee on Amnesty, Cape Town.
Sir
re: Amnesty applications Brigadier Cronje, Colonel Venter, CaptainHechter, Captain Mentz and Warrant Officer van Vuuren.
We act on behalf of Mr J J H van Jaarsveldt and our client'sname is mentioned in the media as a State witness who will appearbefore the Committee in the interests of truth and reconciliation. It is so that our client is a State witness in the criminal caselaunched by the Attorney General of the Transvaal against theabovementioned people for a case which is contemplated againstthem. We understand that the Attorney General proposes objectingany application to an application that our client be asked totestify as a witness. Although we have understanding for thefact that the Attorney General does not want to prejudice thefuture prosecution it is our client's approach that he, at thefirst possible opportunity, will make a full disclosure regardingcertain events and you are therefore notified that our clientis at all times willing to testify before the Commission. This,however, is based on the State's possible opposition to that andespecially the decision to which your Committee, after considerationof all submissions may reach. Our application for amnesty hasbeen sent to the Attorney General today and it has been signedby
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his attorney".
The reason why I've found it necessary to read this letter toyou is to indicate the attitudes of the State witnesses to showthat they are only too willing to help if necessary. Neverthelessit is the State's argument in this particular case that it isa premature application and that in truth there will be prejudiceif you accede to this demand at this stage.
If there is anything in particular you might wish to ask me aboutthe Tshabalala decision or the disclosure of the docketsyou could perhaps give me an indication. I ask permission tohand it in to the Bench.
CHAIRMAN: This letter dated 20th October 1996 is beinghanded in as an exhibit is it?
DR PRETORIUS: Yes My Lord.
CHAIRMAN: We'll call it Exhibit A.
EXHIBIT A HANDED IN - LETTER DATED 20 OCTOBER
DR PRETORIUS: As the Court pleases My Lord.
MR DE JAGER: Dr Pretorius why are you saying that theapplication is premature, if you prepare a case then you do itin time and you take care that your witnesses are available whenyou need them?
DR PRETORIUS: Learned Commissioners in this particularcase, and here I could also refer to section 29(3) of the Actthere are two interests which must constantly be borne in mind. We cannot anticipate the findings of this Committee and the possibilityof a prosecution is always there. The integrity of the prosecutionmust always be protected and that is my respectful submissionin this regard. There are five applicants in this case, fiveapplicants for amnesty. We don't know exactly what their
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cases will be. We don't know whether there will be any omissionsin their cases, defects in their cases, we don't know whetherit is necessary at this stage that any of the State witnessesbe exposed.
My submission is that there is a middle-of-the-road option. As my learned friend conceded there is this middle-of-the roadoption which can be used. Let us first hear the case for theapplicants to, at this stage, say that the people must be subpoenaedcan damage the prosecution's interest. And that is our submission.
There is another danger which should be just mentioned in a generalsense. If there's a grouping that feels that they want to applyfor amnesty they can decide in anticipation to blame only oneperson and to blacken this person's name to such an extent thatthe possibility for a prosecution in future is so remote becausethat person has already been discredited in another forum andthe blame has been loaded onto his shoulders entirely. So thatis a danger which you must constantly bear in mind, that if youhave a grouping of conspirators or co-conspirators they may thendecide to lower the blame onto one of the State witnesses so thatthis could minimalise the possibility for a prosecution in future. And for that reason it is premature, because we are not yet awareof what the applicants are going to say, whether it will merelybe a repetition and whether the State witnesses will be able tomake any substantial contribution to this amnesty application.
MR DE JAGER: But the State witnesses who are referredto here are people implicated in the applications?
DR PRETORIUS: That is correct.
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MR DE JAGER: So they have been notified that they areimplicated and that they are entitled to come and testify themselvesor to submit a case according to section 19(4).
DR PRETORIUS: I am not quite following your question.
MR DE JAGER: I am saying that the State witnesses I assumehave been notified of this hearing?
DR PRETORIUS: I am not aware of that. This morning Ispoke to three of the State witnesses, Mr van Jaarsveldt is presenthere today. Apart from what was read in the media I was not awarethat two of the other witnesses were notified of today's applicationand I spoke to three of them in person. This morning I had toactually tell them what was going on and what the State's attitudewould be and I had to ask them what their individual attitudeswould be. So these people weren't, in all cases, aware of theapplication to take place here today apart from what was availablein the media they weren't all aware of this fact.
CHAIRMAN: Thank you. Do you wish to reply?
MR DU PLESSIS: Yes please Mr Chairman. I am going toanswer in Afrikaans to what my learned friend argued.
Firstly, I would like to make the point that it appears to bequite clear to us that the Attorney General does not believe thatthe applicants will be granted amnesty, from that perspectiveDr Pretorius is arguing as if it is a foregone conclusion thata criminal prosecution against the applicants will in fact takeplace after these proceedings. If anybody, therefore, is prematurewith any statement then it is Dr Pretorius himself who is prematurein his assumption that the applicants will not be granted amnesty.
If the applicants are to be granted amnesty in respect of theirapplications then there will be no criminal
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prosecution and the Truth Commission will then suffer. The truthitself will suffer as a result of that, and the whole processof truth and reconciliation will suffer in the process. The questionwhich one must ask oneself after listening to Dr Pretorius isif one weighs up the interests at stake here which interests mustbe put in the balance according to Dr Pretorius? The intereststo be weighed up are the discrediting of potential State witnessesagainst the withholding from the Truth Commission.
Now the submission which I would like to make in this regardis that unless I have misunderstood it completely the interestsof this Commission and the work with which it is engaged at themoment and the truth ought to weigh more heavily than the merepotential future discrediting of witnesses. What Dr Pretoriushas of course neglected to mention is that the possibility thata State witness will be able to put forward exactly the same versionmight not discredit him but actually be to his advantage.
We also find it strange that the Attorney General, and Dr Pretoriushas now confirmed that the investigation has been going on overa long period of time has regarded it necessary in regards ofCronje and Hechter in the course of last week when it became knownthat these hearings would take place, tried to arrest BrigadierCronje and Mr Hechter, to arrest them and to bring them beforeCourt.
CHAIRMAN: You are raising something new.
MR DU PLESSIS: As it pleases Your Lordship, I will leavethat issue there.
As regards Dr Pretorius' points he made the specific point thatthe application currently before the Committee is premature. He referred to the history of our Criminal
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Procedure Act but the important point which he didn't mentionis the fact that in this country we have never had a Truth Commissionand we've never had to grapple with these issues, or the issueof where there are two processes involving the same kinds of evidencesuch as for instance criminal proceedings and the Truth Commissionwhich process should be given precedence and for that reason Itried, in my heads of argument, to try and refer you to the internationalnorms and experience, and how it's dealt with internationally. And as I tried to show and is clear from the articles which Iquoted in all cases in Argentina, in Chile, Guatemala and Haitiwhere amnesty was granted precedence was given to the amnestyprocedure rather than criminal prosecution procedures. Althoughin South Africa, if there is no blanket amnesty to be given youhave to actually apply for it we are respectfully submitting thatthe same situation should obtain in this country. The processfor obtaining amnesty should be given precedence over the criminalprosecution process.
Dr Pretorius also referred to the potential prejudice of thediscrediting of State witnesses, that there might be a previousrecord which could be used against a witness at a later proceeding. In the first place there's section 31(3), the provisions of thatsection that where such a witness gives incriminating evidencethe record may not be used against him.
Furthermore it is so that in our judicial system there are recordsavailable in certain cases which may be used in evidence againstcertain parties. It may happen that a criminal case takes placeand after that a civil case and the record of the criminal casemay be used in the later
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one. It is not a totally unheard of procedure in South Africanlaw and it is not something so foreign to our legal system thatwe cannot deal with it. If the Attorney General has faith inhis State witnesses and in the evidence and the veracity of theevidence he would have had no hesitation in saying that his witnessescould testify because he would know that their witnesses would,more than likely give the same evidence at a criminal prosecution.
I must, however, concede that a witness whose evidence is alreadyon record may be in a somewhat weaker position as a result ofthe questions which may be put to him. This should not be sucha persuasive factor, however, that this Committee should considerit fit that the truth should take a second place.
I would also like to refer to the previous procedure in the CriminalProcedure Act where there were provisional enquiries and evidencewas heard before the actual trial during these preliminary hearingsthe same process is actually still followed during military courtmartials in terms of the Defence Act, and there the evidence ofa witness is available beforehand to the various parties and sucha witness may be cross-examined on that evidence. And that appliesspecifically to witnesses for the prosecution. Dr Pretorius,my learned friend, referred to the fact that an investigatingofficer may be called, that is hearsay evidence, and we can seeno reason why an investigating officer should be called insteadof the actual witness themself. My learned friend also did notanswer the point I made right at the outset when I said that someof the witnesses, and especially Captain van Jaarsveldt, couldoffer other testimony which would be far wider than mere
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criminal activities.
My learned friend also referred to the Tshabalala decisionand mentioned the fact that this is the wrong forum to deal withconsultation and acquiring of evidence from State witnesses aswell as the disclosure of documents. During the investigationsof the Attorney General the Tshabalala decision, as I havealready said, deals with the situation where you have a criminalcase in a court and the Court is actually given the discretion. Here we are dealing with the procedure of the Truth Commission,and our submission is that the Truth Commission has a discretionwhich it can exercise in this respect and that the Tshabalaladecision is actually not relevant. I am also not relying on theTshabalala decision to say that the Commission must nowexercise the same discretion as the court in terms of the Tshabalaladecision. The only aspect in which the Tshabalala decisionmay support the applicants is the fact that it has changed thelegal position regarding having insight into State witnesses statementswhich was previously not the case. It, therefore, strengthensthe applicants' cases somewhat.
We take note of the difference of attitude between Captain vanJaarsveld and Joe Mamasela but we make it very clear that we areof the opinion that whether the witnesses have an interest inthese applications or not, it's in the interest of everybody thatthese witnesses testify. As far as Mamasela is concerned he hastestified beforehand. He has been interviewed on television. His evidence is on record and if he is to be discredited duringthe State's case then he might just as well be discredited asa result of that evidence.
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The last point I'd like to make is that after listening to theAttorney General's argument it would appear as if one needs toweigh up the various interests between the question of whetherwitnesses in a later criminal prosecution might be discreditedand that must be weighed up against how important the truth isto the Truth Commission. Those are the two interests to be weighedup one against the other.
With that in mind I submit that the witnesses should be subpoenaedand we request the Commission to do that. And we are requestingthe Commission to also subpoena the Attorney General to discloseto the Commission and the applicants all the documents relatingto the cases in his possession. Thank you.
JUDGE NGOEPE: Mr du Plessis perhaps it's not fair tosay that Mr Pretorius adopts the attitude that amnesty is notgoing to be granted. I think what he was trying to say to uswas that we should take into account the possibility that amnestymay not be granted. I don't think his argument puts it strongerthan that.
And related to that argument may I just ask you, what happensif we cause the docket to be produced and handed over to yourselfand they don't get amnesty? And I guess this is one of the pointswhich Dr Pretorius is making.
Would we not have - you would of course, you would have gottenthe docket through your process and under circumstances that younormally would not have got that docket?
MR DU PLESSIS: Yes the - I beg your pardon.
JUDGE NGOEPE: And isn't that a factor which we must takeinto account in the exercise of our discretion?
MR DU PLESSIS: Yes. The answer to that question is the
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following. If criminal proceedings should commence, if amnestyis not granted later, those applicants who have been prosecutedalready or have been brought before the court, namely BrigadierCronje, Captain Hechter and Captain Mentz will, in the light ofthe Tshabalala case, in all probability be entitled tohave sight of the statements and documents in the docket. Ifone reads the Tshabalala case the State has to providevery good reasons why that should not happen.
Therefore my submission is that if the dockets are provided tothem now, or if the dockets are provided to them at a later stagewhen they make application to a criminal court to be providedwith the information in the dockets it would make no difference. The only possibility might be, and I must concede that, is thata court might refuse them access to the dockets. Now the possibilityof that seems, in my submission, remote. The possibility seems,in the light of the Tshabalala case and the rights of anaccused in terms of the Constitution, remote.
Our submission is that the possibility of the availability ofthe dockets to the applicants being refused by a criminal courtin future is so remote that one could actually accept that thedockets would be made available to the applicants in that if theyhave now sight of the dockets or in future sight of the docketswould make no difference.
JUDGE NGOEPE: The other point which I want to ask youabout is that the basis really of your argument is that thesewitnesses could provide corroboration to the applicants. It soundsa little bit funny that somebody who committed a crime wants tocall witnesses to come and corroborate and confirm that he committeda crime, but
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perhaps that's the nature of proceedings before us. And the questionof the subpoenas being issued prematurely comes to mind becauseyou see that's the point Dr Pretorius was making I suppose. You may, you may not beat(?) that corroboration if that is notcontested. Secondly, you mentioned another ground, you say thatit may be that those witnesses, the applicants may forget certainevents and those witnesses would fill them - would mention certainthings which they would have left out. I am not sure whetheran applicant is expected to - in making a full disclosure - todisclose anything that he cannot remember.
MR DU PLESSIS: Yes, Mr Chairman thank you very much. That was a very heartening comment. The applicants are so desirousof making full disclosure that they, it seems from your pointof view, want to go further than is necessary and than is requiredfrom the Commission. The applicants are so bona fide inmaking full disclosure that they say that we don't necessarilywant to stand or fall by our applications. We want to do everythingin our power to place the truth before the Commission. And thatis why we say that for the sake of truth we regard it as importantfor the Commission to hear evidence of some of these witnesses. One must remember that in certain instances some of these witnesses,and I am thinking of Joe Mamasela specifically, was involved ina way where the other witnesses weren't present. I don't wantto disclose evidence but for example he would have spoken to certainpeople to whom the applicants haven't spoken. So all the applicantscan testify about that is what Mamasela had told them. Now ifMamasela comes and he testifies and he tells the Commission exactlywhat did he speak to these witnesses about? What transpired whenhe did 2A certain/...
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certain things alone? It could help to paint the full pictureand that is what the applicants say.
In respect of the question of applicants not being able to rememberyou would have noted that in some of these applications, especiallyCaptain Hechter says that he starts with the background and thefacts of certain matters and he says, I cannot remember anythingabout this matter. The version that I place before the Commissionin my application is the version of my involvement in this mattertold to me by Paul van Vuuren. I know Paul van Vuuren so wellthat I accept the truth of what he says. If he says I did somethingthen I believe that and then I apply for amnesty in respect ofthat deed even though I can't remember a thing. That just goesto show the problem in dealing with matters which occurred tenyears or more ago. And it is possible that some of these Statewitnesses might throw light upon some of the actions of the applicantswhich might be important in respect of certain of the factorsthe Commission should take into account when the Commission hasto consider amnesty.
I specifically want to refer to the grounds in section 23 wherethe Commission has to take into account certain factors to decideif an act was associated with a political objective. And there,for instance, the legal and factual nature of the act should betaken into account. The object or objective of the act. Andthen specifically in paragraph (e) the question of the act wascommitted in the execution of an order. All these issues we saymight, or the evidence that these witnesses might give might assistthe applicants in firstly remembering certain incidents whichthey haven't remembered up to now, and secondly, in painting afuller
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picture than they have been able to paint to the Commission becauseof the fact that they can't remember everything.
JUDGE NGOEPE: Just one last thing. I am not trying toinvite you into that argument, you have dealt with that, but it'snot clear to me from the question which was asked by Mr de Jager,I thought I had understood you but perhaps not. Were you suggestingas the last resort that we could possibly, as the Committee callfor the docket and in the quietness of our chambers, the fiveof us read the docket and then go through the statements by thesevarious witnesses and then decide whether or not a subpoena shouldbe issued. That is not what you want but were you saying thatas a last resort we could possibly do that? And would you beprepared to go along with that set-up?
MR DU PLESSIS: Yes we say that if the Commission or theCommittee should not want to make a decision to subpoena thesewitnesses right from the outset and if they want to consider theapplicability of some of the statements of the State witnessesand if they want to take the contents of those statements intoaccount in making a decision if these witnesses should be subpoenaedor not, we say that we have trust in the Committee, we have trustin the procedure and even though we don't know what is containedin those statements we say that if it differs from our versionit would not be the truth and we believe that if those witnesseshad spoken the truth they would corroborate our versions. Andon that basis we do not have any objection if such a procedureis followed.
Mr Chairman may I just make one further submission on this point.
(Tape 2A ends....)
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...of the affidavits for purposes of the amnesty applications. That would only relate to the questions should the witnessesbe subpoenaed. The reason for this is that the applicants obviouslyif there's a discrepancy between their evidence and the Statewitnesses' evidence would obviously want to cross-examine theState witnesses if they give evidence.
CHAIRMAN: ...indicate that you are prepared to lead theevidence of a witness before you deal with the case of the applicant.
MR DU PLESSIS: Yes Mr Chairman.
CHAIRMAN: We would require time to consider this applicationwhich you have just made, and what I would like to know from youis would it be possible for you to proceed with the calling ofyour witnesses, not the applicants, but the witnesses?
MR DU PLESSIS: Yes, yes, without a doubt Mr Chairman,yes.
CHAIRMAN: So that we may not find that we are wastingtoo much time.
MR DU PLESSIS: Yes.
CHAIRMAN: And I can't tell you just now when we willgive a decision in the matter but as soon as we are in a positionto do so we will give a decision in this application.
MR DU PLESSIS: Yes.
CHAIRMAN: So what I can say is that we will reserve ourdecision and we would like you to proceed with your case in themeanwhile.
MR DU PLESSIS: Yes. Mr Chairman Mr Mpshe has just pointedout to me that that would obviously then entail the evidence ofGeneral van der Merwe who is the first witness that I want tocall and not then the other witnesses thereafter
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before judgment is given on this application, as I understandyou correctly.
Mr Chairman there is just one other issue before I go ahead tocall General van der Merwe which I want to raise with the Committeenow so that clarity can be obtained in respect of that issue forthe future. We have a concern pertaining to the interpretationof section 31(3) of the Act dealing with incriminating evidence,and the fact that it's provided therefor that incriminating evidenceshall not be admissible as evidence against the person concernedin criminal proceedings.
If on reads section 31(3) closely it refers to the following,
"Any incriminating answer or information obtained or incriminatingevidence directly or indirectly derived from a questioning interms of subsection 1 shall not be admissible as evidence"
That only relates to a questioning in terms of subsection 1. Now subsection 1 says,
"Any person who is questioned by the Commission in theexercise of its powers in terms of this Act or has been subpoenaedto give evidence...."
there is a clear distinction between a person who is questionedby the Commission and a person who has been subpoenaed to giveevidence.
Then I want to refer you also to section 29(c) which deals withthe right of the Commission to subpoena witnesses which says that,
"By notice in writing call upon any person to appear beforethe Commission and to give evidence or to answer questions relevantto the subject
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matter of the hearing".
Now the applicants are concerned that if they are regarded asthe category of persons who are to give evidence at the hearingin terms of section 29(1)(c) and not to answer questions theywill not fall under the auspices of section 31(3) and any incriminatingevidence they might give in these proceedings might be used ina criminal case against them later. The only point I want toraise here in conjunction with the Committee is that I want toplace it on record and I wish the Committee to agree with theapplicants that the applicants are at this hearing, although theyhaven't been subpoenaed, as a person who is questioned by theCommission as meant in section 31(1) and that the applicants willthen fall under the auspices of section 31(3) and incriminatingevidence by them will then be evidence derived from a questioningin terms of subsection 1. We would request the Committee to,if possible, if the Committee is prepared to do that to stateon record that the applicants are regarded as witnesses who arequestioned by the Commission and that according to the Commissionand the Committee that they fall under section 31(1) and 31(3).
CHAIRMAN: Whatever evidence the applicants give in thiscase, and if it should transpire that they will have to appearbefore another tribunal in a criminal trial for instance thenwhether this evidence that they give before this Committee wouldbe admissible in the second tribunal or not is a matter for thattribunal to decide and I have no doubt their counsel would beentitled to argue at that stage and give reasons why their evidencethat they gave before this Committee is not admissible in thattrial. We cannot bind, and give a ruling now, we cannot givea ruling now and 2B bind/...
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bind the powers of another tribunal in this matter.
MR DU PLESSIS: Mr Chairman thank you very much, I understandthat completely. The only request I made was for the Committeeto pronounce that the applicants are persons who are questionedby the Commission as is meant in section 31(1).
CHAIRMAN: Even that is a bit unrealistic at this stagebecause interested parties in these proceedings apart from membersof the Commission may want to question witnesses. There mightbe dependants or victims or relatives of dependants who mightwant to ask questions on the basis that the applicants may nothave made a full disclosure.
MR DU PLESSIS: Yes. Mr Chairman I realise that completelyand obviously that will not preclude any other parties to askquestions from the applicants. The only factor that worries theapplicants and which is a bit - something that is not clear fromthe reading of section 31 is that a person is only covered inrespect of incriminating evidence if that evidence is derivedfrom a questioning in terms of subsection 1. And subsection 1refers to two categories of persons. Firstly a person who isquestioned by the Commission and secondly a person has been subpoenaedto give evidence. Now on the reading and interpretation of section31 it is possible that a person who has been subpoenaed to giveevidence might not fall under the umbrella of section 31(3) whichis a problematic factor and which means that incriminating evidencecan be used in a criminal case against such a person. That iswhy the request is directed to the Commission that the applicantsbe regarded as persons of the first category referred to in section31(1), namely persons who are questioned by the Commission andnot
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necessarily persons who have been subpoenaed to give evidence.
JUDGE WILSON: As my brother has just said that will bea matter for that Court to decide, not for us to decide. If theydecide he is not a person who is questioned by the Commissionin the terms of the Act anything said by us will be irrelevant.
MR DU PLESSIS: Yes My Lord I accept that. I have mademy submissions on that and I have your answer, I will abide bythat. Thank you very much.
CHAIRMAN: Mr Mpshe are there any submissions that youwish to make on the application that has been made to us aboutthe subpoena of witnesses?
MR MPSHE: Mr Chairman, Members of the Committee I haveno submissions Mr Chairman.
CHAIRMAN: Very well then. May we proceed with the evidenceof the witness you propose calling.
MR DU PLESSIS: Thank you Mr Chairman. I then wish tocall General Johan van der Merwe as a witness.
JUDGE NGOEPE: Mr du Plessis there are lots of documentationin front of us which we needed to read before we came here, dowe understand you to - I know that General van der Merwe is goingto give evidence in general, maybe background, but back to thepoint we started with, Mr Mpshe has identified certain matters,irrespective of which there has not been proper notice to thevictims or the families. I assume we are conducting the hearingson the basis that we are not going to be dealing with those particularincidents? Or are you insisting that we should also hear applicationsfor amnesty in respect of those incidents?
MR DU PLESSIS: No, Mr Chairman clearly if the procedural
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requirements have not been complied with I would be foolish toinsist that the hearings go ahead because that could only meantrouble in the future in respect of whatever decisions are madein respect of those issues. I would speak to Advocate Mpshe andenquire from him how far the process in respect of those incidentswhere the procedures have not been complied with, how far thatprocess is and if those incidents could not perhaps be dealt withright at the end of the hearing perhaps next week so that onecould try and see if compliance could not be reached in respectof those incidents. I will have a discussion with him. I willnever insist that hearings go ahead where the procedure has notbeen complied with.
JUDGE WILSON: As I understood from Professor Pretorius'appearance for the Attorney General it appears that at least twoor three of the policemen mentioned have not been given notice,so perhaps enquiries should also be made as to whether the noticeto interested parties has been adequate or what steps have beentake to ensure that they are.
MR DU PLESSIS: Yes.
JUDGE WILSON: A number of them are not little policemenwho have drifted away out of sight, they are prominent men inour country, and I think we all wish to be satisfied that theAct has been complied with, this is if they wish to come and answerthese allegations they are at liberty to do so.
MR DU PLESSIS: Yes. I may mention in that regard thatCaptain Jaap van Jaarsveldt's attorney who is present here todaydid contact me in last week, as far as I can remember it was FridayI think, he did contact me about these hearings. So in respectof Captain van Jaarsveldt he had knowledge, but I will take itup with Advocate Mpshe and we
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will see to it that the requirements are fully met before thehearings proceed. We do not want any problems later on in respectof that.
MS KHAMPEPE: Sorry Mr du Toit in that case to what extentthen is the general background to be given by General van derMerwe going to impact on the incident wherein there has not beenprocedural requirement?
MR DU PLESSIS: Yes. The only incident in respect ofwhich General van der Merwe will give specific evidence and thathe has specific knowledge of is the Zero hand grenade incidentin respect of which there was compliance as I understand my learnedfriend Advocate Mpshe. He will also testify about an incidentwhich does not form part of these hearings. And otherwise Generalvan der Merwe is called as a witness to give a general backgroundto the Committee of the way the South African Police functionedespecially during the difficult times in the 1980's. The backgroundand the context in which the South African Police functioned andoperated and to explain to the Committee exactly how the SouthAfrican Police perceived the onslaught and to give backgroundfacts in that regard. We submit that this evidence is importantin respect of the test of a political motive. It deals with acontext of the deeds and for that purpose we want to introducethis evidence.
General van der Merwe has prepared a document in which the basisof his evidence is contained. I will ask him further questionsabout certain issues and he will obviously or probably be cross-examinedby other interested parties. I know Advocate Mpshe will cross-examinehim. But General van der Merwe has requested me to request theCommittee to allow him to read his statement into the record atthe
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beginning and then if he could be questioned thereafter in respectof certain specific questions.
CHAIRMAN: General, for the purposes of the record willyou put on record your full name please.
GENERAL VAN DER MERWE: Thank you Mr Chairman. I am JohannesVelde van der Merwe.
JOHANNES VELDE VAN DER MERWE: (sworn states)
ADV DE JAGER: Mr du Plessis before you begin I have anadditional problem. In your letter it is said that you are notprepared for certain matters, with regard to van Vuuren schedule3, 4 5, and 11 do you abandon these applications or what is yourposition in this regard?
MR DU PLESSIS: Chair, as I understand, and as I understoodthe letter, I must say to you that we did not receive copies ofthis letter. I have a copy of a letter sent to the Investigativeunit by Advocate Mpshe referring to the specific incidents. Weaccepted that these would be the incidents with regard to whichthe Commission would want to hear testimony at a hearing and thatthe other matters would be treated by means of consideration withouta hearing. In terms of Article 94...(intervention)
ADV DE JAGER: There are such categories that are notgross violations but on the next page of the letter it continues,this is a letter dated 16 October written to your firm.
MR DU PLESSIS: My attorney informs me that we have receivedthis letter. I do not have it in my hands. I believe that itfollows the wording of the letter to the Investigative Unit ifyou want to read it to us.
ADV DE JAGER: On page 3 of this letter dated the 16thof October 1996 the following is said.
"The following matters are considered gross
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violations of human rights. The application form contains insufficientinformation, therefore the Amnesty Commission is unable to granta hearing due to the following reasons:-
The names of the victims are unknown.
Place and address of the incident is unknown.
The victims cannot be traced.
There are insufficient leads for the Investigation Unit.
Van Vuuren Schedule 3,4,5 and 11. Cronje Schedule 2, Schedule9. Hechter Schedule 1, 2, 8, 19, 22, 23. Venter, 2, 3, 4, 5,6, 7, 10 and 11. Mentz, 1, 5 and 8".
So if you are not proceeding because there's insufficient evidencein these cases, are you abandoning the applications in those respectsor what is the position?
MR DU PLESSIS: No we obviously cannot abandon the applicationsbecause of the fact that we don't have further information. Imust say Mr Chairman I would like to discuss this with AdvocateMpshe about the proceedings in respect of those applications. We cannot do anything further in respect of those applicationsobviously because we don't have any further information so wewould like to insist upon those applications being heard. Iwould like an opportunity to discuss it with Advocate Mpshe beforeI give you a final answer on that. I would like his view on theprocedure. I think we received that letter but I haven't gotit in my possession.
ADV DE JAGER: Some of our Committee members don't seemto have received the letters, but it would be very inconvenientto have piecemeal hearings in this kind of matter.
2B MR DU PLESSIS:/...
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MR DU PLESSIS: Yes. Mr Chairman that is so. I see itis close to one o'clock, perhaps I don't know if there is a lunchtime adjournment, otherwise I would like to ask for an adjournmentto discuss it with Advocate Mpshe and to give you an answer onthat then.
CHAIRMAN: It does seem that certain matters will haveto be sorted out between Counsel and I would like to afford theman opportunity to do so without too much delay. In the circumstancesI think it would be appropriate that we take the adjournment nowand we resume at two o'clock. I am sorry to inconvenience youin that regard. We will adjourn until two o'clock.
COMMISSION ADJOURNS
57 GNL VAN DER MERWE
COMMISSION RESUMES
CHAIRMAN: General I don't have to remind you, you arestill under oath.
JOHANNES VERDE VAN DER MERWE: (s.u.o.)
GENERAL VAN DER MERWE: Thank you Mr Chairman.
CHAIRMAN: You may proceed.
GENERAL VAN DER MERWE: Thank you Mr Chairman. I haveprepared written copies of my submission for the convenience ofyou My Lords if I may hand it up please.
CHAIRMAN: Thank you.
GENERAL VAN DER MERWE: I am a retired member of the SouthAfrican Police who previously served as Commissioner of Policefor the period 1 January 1990 to the 31st of March 1995. I alsoserved as Commanding Officer of Security Branch of the South AfricanPolice for the period 1 January 1986 to the 30th of September1988. And as Deputy Commissioner of the South African Policefor the period 1 October 1988 to 31 December 1989.
On the 3rd of September 1996 I, together with three other formerCommissioners of the South African Police, namely Generals MikeGeldenhuys, Johan Coetzee and Hennie de Wit submitted a memorandumto the Commission. The role of the South African Police in theconflict of the past was briefly set out in the said memorandumwhich is attached as an annexure to this statement. I am notgoing to deal with this memorandum Mr Chairman.
I have had the opportunity of perusing the contents of the applicationsfor amnesty to the Commission by the following former membersof the South African police, Brigadier Jack Cronje, Colonel RoelfVenter, Captain Jacque Hechter, Captain Wouter Mentz, WarrantOfficer Paul van
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Vuuren. I have now been subpoenaed to appear before this Committeein order to give evidence pertaining to these applications andI hereby declare myself willing to do so.
With regard to the contents of paragraph 20 - 33 of the saidmemorandum I would firstly like to deal with some of the factorsand circumstances which existed during the conflict which mayhave had a fundamental influence on both the thinking and conductof members who were initially involved in the violence which raged. I am well aware of the numerous views and interpretations whichthis Committee has to take account of and I will therefore endeavourto deal with these matters as comprehensively as possible.
The conflict and violence of the past took on various forms andcovered wide-ranging scenarios which included combatting rolewas in both Namibia and Zimbabwe as well as acts of terror, sabotage,killings and acts of mass mobilisation and mob violence withinthe borders of the Republic. Members of the South African Policewere employed and utilised with regard to all these terrains andaccordingly over a period of time the training and operationaldeployment of the South African Police had, of necessity, to beadapted accordingly. This ultimately was to lead to the naturalconsequence of the bringing about of drastic changes in the outlook,approach and training of that which previously had formed thefoundation of an acceptable policing culture in a normal society.
Amongst other things the principles of minimum violence and thebringing of perpetrators before criminal courts was to be seriouslyaffected and even eroded. This state of affairs appertained especiallyto the utilisation of counter-insurgency tactics in a guerillawar which in
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many an instance revolved around that which normally applied ina conventional war. In the Republic the violent struggle wasprimarily waged between the security forces and elements of Umkhontou'Sizwe, better known as MK.
Although MK, from a truly military perspective disposed of onlya limited capability it must be stated that it undoubtedly enjoyedthe support of the majority of the Black population in South Africa. After the founding of the United Democratic Front in 1983 transpiredthat the levels of resistance and violence directed at the Governmentand its institutions would rise dramatically thus forcing theGovernment to implement drastic security measures such as emergencyregulations and preventative detentions in order to try and quellthe rising unrest and violence. The South African Police wassubjected to enormous pressure to try and stabilise the situationby, amongst other things, arresting and detaining activists whoplayed a significant role in the unrest or charging them and bringingthem before court. Members of the South African Police, and especiallythose attached to the security branch were required to work nightand day for long periods of time in order to carry out their duties. The greater portion of the Black population were ill-disposedtowards the South African Police.
Many members were to lose their lives as a direct result of thepolicies which were formulated at an important ANC national consultativeconference held in Kabwe, Zambia, during June 1985. This conferencewhich took place at the same time as the 30th anniversary of thecreation of the Freedom Charter was being celebrated was to passcertain resolutions which was to have an undeniable impact onthat which was to occur later in South Africa.
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Under the editorial I quote:
"We are revolutionaries, internationalists and Africans.
Following paragraphs in Tshichaba, the official publicationof the ANC adequately described the entire direction and moodof the conference. Deficiencies and shortcomings in this regardwere also pointed out. The recurring theme of the conferencewas to intensify the armed struggle. Some people favoured theterm "armed seizure of power" rather than "seizureof power". It was this realisation which led to the decisionthat we must attack not only inanimate objects but also enemypersonnel.
This ANC conference which took the form of a Council of Wardecided that the distinction between hard and soft targets shoulddisappear. This was not a new idea. It had been discussed, likeall other issues in the numerous continual regional pre-conferencediscussions which involved everybody including all those who werenot elected as delegates to the conference. In other words theANC membership as a whole was involved for the last nine monthsor so in discussions which took place at the conference. Theattack on South African refugees in Botswana, by the racist forcesjust before the conference emphasised the need for our movementto bleed the enemy. The question of intensifying armed struggleposes new challenges and responsibilities on the ANC and on theinternational community which by the look of
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things and the nature of the violence of the enemy is goingto be more involved in that struggle for our liberation".
That is the editorial of the Tsichaba of August 1985.
The decision that in future there was to be no distinction betweenhard and soft targets was to have very important ramificationsand consequences for South Africa as a whole, more especiallyfor the general public at large. It immediately became obviousthat among other things this declaration was to be a flagrantviolation of that very undertaking which the ANC ostensibly heldso dear, namely the signing at the end of 1980 of Protocol 1 of1977 of the Geneva Convention of 1949 when it was declared thatit's future actions, inter alia only be directed at militarytargets. Articles 1(52) and (57) being especially relevant.
It had already become apparent during 1983 that the ANC, as previouslyindicated, had already reconciled themselves to the fact thatinnocent civilians could be killed or injured in future MK attacks. According to an article in the Tsichaba of January 1983 it wasstated that, I quote,
"Also reported have been 15 instances of bombs in citycentres, shopping areas, public buildings and places of entertainment".
After another consequence which arose from both the Kabwe Conferenceand an earlier visit by a high-powered ANC delegation to Vietnamduring 1978 under the leadership of the late Mr Oliver Tambo wasthe gradual implementation of the so-called "People's WarStrategy".
The delegation, which also included Mr Joe Modise and the lateMr Chris Hani, came to the conclusion that armed
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actions had to be supported by political actions which includedthe mobilisation, organisation and politicising of the massesaround certain grievances. This was regarded as a prerequisiteto create a revolutionary climate and to initiate a people's war. Thereafter the National Executive Committee of the ANC decidedon a three year plan aimed at mobilising and politicising theBlack population.
The underground structures of the ANC would be used for thispurpose. Other channels which were to be used included sympatheticorganisations, distribution of pamphlets and the establishmentof revolutionary themes for the ensuing years. Themes included1979 the Year of the Spear; 1985 the Year of the Cadre; 1986 theYear of Umkhonto u'Sizwe, the People's Army; 1987 the Year ofAdvance to People's Power; 1988 the Year of United Action forPeople's Power; 1989 the Year of Mass Action for People's Power.
To add to this idea in 1980 the Central Committee of the SouthAfrican Communist party issued a statement entitled "Forwardto People's Power - The Challenge Ahead". It stated thata strategy of armed struggle can only be effective and take shapeif it is rooted in the broadest possible mobilisation of the organisationsof the people and in mass legal and semi-legal battles. The build-uptowards the winning of people's power called for an even greateremphasis in the strengthening of mass movements at national, regionaland local level.
A further requirement according to the ANC for the successfulimplementation of a people's war was the creation of alternativestructures responsible for mobilising and organising the masses. It must be borne in mind that the theme selected by the ANC foreach year were a useful
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propaganda tool in this mobilisation process. People's War statutewas described as, I quote,
"A war in which the entire nation is engaged. Umkhontou'Sizwe, the People's Army, workers, the rural masses, women,intellectuals, the religious community selectively in groups oras organised individuals who use all forms of provisional warfare,armed or non-combat, legal and illegal means to attack and destroyall symbols and structures and organs of apartheid power includingall those who manned them".
The long term and fundamental objective of the ANC/SACP alliancewas the total destruction of the South African state. After analysingthe situation in the Republic during 1983 and again in 1985 theANC came to the conclusion that masses entered a new era in theirstruggle. It foresaw political demonstrations followed by semi-armedactions by the masses using rudimentary weapons at first, suchas sticks, stones and pangas. During 1983 the political militarycouncil of the ANC issued a document planning for a People's War. According to this document the ANC directed it's attention towardsa protracted guerilla war, mass uprising, arming the masses andpreparing them for a People's War for the establishment of alternativestructures and the revolutionary basis.
In this document the ANC visualised accelerating the activationof the masses in proceeding from peaceful non-violent politicaldemonstrations to demonstrations with emphasis on violence andinsurrection. Stone was ultimately to be replaced by petrol bomb,acid bomb and hand grenade while firearms such as the AK 47 assaultrifle became a
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substitute for the stick and panga.
During 1984 and virtually each year thereafter the ANC announcedthat in future the revolutionary war would rest on four pillars,namely,
(a) the armed struggle led by Umkhonto u'Sizwe,
(b) mass mobilisation of the masses,
(c) the underground structures of the ANC,
(d) the international offensive to isolate the Republic of SouthAfrica.
At the same time a call was issued by the late Mr Oliver Tamboto make South Africa ungovernable. The destruction of local authoritieswas seen to be part of this process. This was followed by thebrutal murders of a number of community councillors, administrativepersonnel, police officials and other persons who in any way assistedthe State. These murders and killings often occurred by meansof the dreaded necklace method.
By June 1985 it was reported that only five of the 38 Black governmentstructures had survived and 396 innocent people had already beenmurdered. In destroying these structures the ANC was createdthe necessary prerequisites for liberated zones. The ANC andits front organisations embarked on campaigns of murder intimidationwhich left a vacuum in the townships. In this manner the ANC/SACPalliance hoped to create no-go areas and total ungovernability.
The vacuum created was aimed at having a dual effect. Informationfrom the townships would not reach the security forces. In thecourse of no security force presence unrest would continue andsteps would be taken to create revolutionary bases. Once a revolutionarybase had been
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created for a people's war it could develop and grow and providea safe haven for trained MK cadres returned to the country ina clandestine fashion.
MK was regarded as the core of the people's army which consistedof three components. One is the advanced detachments of MK intothe politicised masses and previous sympathetic or recruited membersof the security forces which included the South African DefenceForce and the South African Police.
The ANC instructions to MK were that they should operate in organisedunits with the following objectives. Deployed units in the ruralareas were instructed to mobilise the local inhabitants. Undergroundunits in the urban complexes and factories and in Black residentialareas were to form combat, sabotage and elimination groups. Thesecadres would react normally during the day and operate at night. The establishment of self-defence units whose primary purposewas to protect the organisation against State activity. MK memberswere instructed to give the necessary guidance to these units.
Politicised masses which formed the second component of the revolutionaryarmy would be recruited, trained and supplied with arms by theadvanced detachments of MK members. Thereafter they were to beorganised into disciplined combat units. Training was to takeplace internally. This would circumvent the problem of only personsbeing recruited were prepared to leave the RSA for training. Dissident national servicemen, Black soldiers, officers and therank and the file were regarded by the ANC as potential recruitsto form the third component of the people's army. It was statedthat Whites should not be
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encouraged to refuse to do their national service but that theyshould rather be used clandestinely within the South African DefenceForce as organisers and agitators.
To shift the balance of forces in favour of the ANC it was decidedthat that should be launched from the revolutionary bases in theBlack townships against White areas. These attacks would be carriedout by combat and defence units using trained cadres and directedat the security forces, both Black and White.
Furthermore, attacks would also be aimed at strategic and economicinstallations which were regarded as the lifeline of the Whitepopulation. As far as the rural areas were concerned it was decidedthat farm workers and labourers must be involved in order to seizethe land. Attacks had to be directed at farmers and their familiesin the border areas with landmines being used in many of theseattacks. The street, alley and block committees were to be usedto bring about a revolutionary transfer of power. People's Committeeshad to be developed into so-called organs of people's power. The purpose of creating organs of people's power was to establisha situation of field power, namely the forces of the revolutionon the one hand and the force of the State on the other. The organsof people's power were designed so that people's lives were directedin a new revolutionary way.
These structures had to lead the all-round offensive employingall forms of action. Organs of people's power were to be electedby the people in the street and they were to be responsible tothe people. Regular meetings were held so as to determine thepeople's needs and requirements.
Another organ of people's power was the so-called
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People's Courts. They were originally regarded as instrumentswhereby the so-called concept of people's power could be upheldand defended. That task was to ensure healthy, revolutionaryand democratic inter-relations within society and to serve theinterests of the people in general. To ensure this state of affairsthe boards were tasked with dealing with cases of anti-socialbehaviour, conflict and political crimes against the people. It was these people courts which progressively implemented a campaignof terror and intimidation in the Black townships against thepopulation who had very little or no defence or protection inthis regard. It was very often quite sufficient to be merely suspectedof being a sell-out or collaborator in order to pay the ultimateprice in the most dreadful manner. With the notable exceptionof a few cases where a perpetrator was caught red-handed theseacts of violence and other offences committed with a politicalmotive were generally speaking to go unpunished in the propercourts of law. This can be directly attributed to high levelsof intimidation which firstly neutralised the effectiveness ofthe intelligence network and secondly the victims of witnesseswho were totally unwilling to come forward in order to bear testimonyagainst those responsible.
As already indicated over many years the liberation movementsregarded armed attacks on members of the security forces beingso-called legitimate hard targets as morally acceptable. Thiswas to result in many policemen being killed or injured whilstengaged in combatting ordinary crime in performing their normalpolice functions.
Of significance is the fact that this type of activity was toescalate even more sharply during and subsequent to
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1990 when the negotiation process and that which was to bringabout the election of a new democratic government was alreadywell and truly on course. In this regard the following statisticsare revealing. During the years 1973 to 1979, that is six years,76 policemen were killed. From 1980 to 1990, ten years, 270. From the 1st of January 1991 till the 31st of December 1992,that's two years, 385. During 1992 2204 politically motivatedattacks on policemen took place killing 145 and injuring 363.Whilst during 1993 267 members were killed in 4165 acts of violence.
In regard to some of the other acts of violence perpetrated underthe banner of the people's war strategy the following statisticswith regard to only two categories, namely the necklace methodand death by otherwise setting alight of persons are reflectedhereto after so as to present some idea of that which the SouthAfrican Police had to cope with in this particular regard.
I am not going to quote all the statistics Mr Chairman. Perhapswhat is important that during 1986 306 persons were murdered bymeans of the necklace method and during the same year 171 setalight and burnt to death.
With your permission may I proceed with paragraph 16 Mr Chairman?
CHAIRMAN: Yes.
GENERAL VAN DER MERWE: As a direct result of this particularrevolutionary climate the South African Police and the South AfricanDefence Force were compelled to pool their various resources tocombat the ever increasing tide of unrest and violence. Jointplanning was undertaken in terms of the various structures ofthe national management system which functioned under the authorityof the
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State Security Council and which also incorporated the constitutional,economic and social affairs cabinet committees. All governmentdepartments were eventually drawn into the national managementsystem in an all-out effort to find solutions to the ever-increasingsecurity problem. However, despite all these efforts describedabove the security situation in South Africa continued to deteriorateand the climate of violence and unrest increase. Members ofthe security branch of the South African Police came to experienceharsh practical problems in communicating with their sources oragents and even being able to ensure their personal safety. Incases where the slightest suspicion existed the suspected informeror agent was eliminated, sometimes in the most brutal fashion. Incidents such as car bomb explosions, limpet mine and hand grenadeattacks and other acts of terror which members of the police andtheir families as well as ordinary civilians were exposed to overa lengthy period of time were to lead to a hardening of attitudesand the creation of a climate of hate, both within the ranks ofthe police as well as that of the civilian population. Thesefeelings of emotion reached new peaks every time innocent anddefenceless women and children were the victims and this was furtherexacerbated by the feelings of frustration which existed amongstmembers upon realising that their ability to protect both theircolleagues and the community against such terror attacks was becomingmore and more limited.
The fact that both MK and eventually the Azanian People's LiberationArmy, APLA, members started using neighbouring frontline statesas a springboard for launching their armed attacks against theRepublic led directly to the 3A establishment/...
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establishment of a cross-border capability aimed at eliminatingor neutralising this very real threat.
A counter-revolutionary intelligence task team was created andcomprised members of the National Intelligence Service, the SouthAfrican Police and the South African Defence Force. It was theirtask to properly evaluate and coordinate all intelligence regardingthe revolutionary threat facing the Republic and especially withregard to identifying and prioritising political targets whichposed such a threat. These threats could be in the form of anindividual, a group, an organisation and accommodation or logisticalfacility and were prioritised in terms of the level of potentialdestabilisation each target posed.
In this particular regard another aspect which must be bornein mind is the fact that this task team were of necessity alsorequired to look at the internal situation as the revolutionaryactivity of the insurgents escalated. This included situationsregarding ...(indistinct) who assisted the insurgents with accommodation,storage facilities, transport, financial assistance as well asproviding active assistance in the establishment of arms cachesand in some instances the actual transporting in a clandestinefashion of such arms and explosives. Armed attacks my MK andAPLA insurgents were therefore often followed by cross-borderraids aimed at utilising the intelligence provided by the taskteam referred to so as to neutralise the facility of your concern.
The prevailing circumstances which I have sketched up to thispoint would have a further dimension, perhaps already alludedto namely, both the lowering of the morale of the community andthe security forces and the hardening
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of attitudes amongst both groupings. This was accompanied bythe belief that the enemy had to destroy no matter what. Thisoutlook was in turn aggravated to a great extent by speeches andpronouncements by ...(indistinct) and commanding officers in varioussectors of the security forces.
It is undoubtedly so that militaristic and political inspiredspeeches often made it difficult for the security forces becomingmore and more emotionally involved to be able to distinguish betweenthat which was normally justifiable in terms of the law and thatwhich was not. This status quo led to members of the securitybranch who had to deal with the most horrendous manifestationsof violence on a day-to-day basis ultimately becoming equallydisillusioned and negatively influenced regarding these matters.
During 1986 I personally became involved in a situation wherecertain drastic measures had been implemented in order to protectand save the lives of Black members of the South African Police. At this juncture I was a commanding officer of the security branchand certain reliable properly evaluated information had been receivedto the effect that a group of activists were planning armed attackson the private residence of Black members of the South AfricanPolice who resided in a number of townships on the East Rand. I may point out at this particular stage many of the townshipson the East Rand, including Thokoza, Katlehong, Deduza, Daveytonand Vosloorus were amongst the most politicised and destabilisedin the Province of Transvaal. This situation was to continueinto the 1990's and the activities of the SDU's in these areaswere eventually to be 3A subjected/...
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subjected to intense scrutiny and investigation by various sub-committeesof the Goldstone Commission of Inquiry.
It is unquestionably so that since the implementation of thepeople's war strategy during 1984 the South African Police wereexperiencing greater and greater difficulties in both maintaininga proper presence in the townships on the East Rand and Vaal Triangle,carrying out effective policing in the said areas.
At the time it was the declared intention of the ANC/SACP alliance,assisted by such organisations as the ANC Youth League, Cosatuand various civic organisations to literally drive the policemenfrom the townships. This was to be accompanied by utilising anymeans of violence specifically at policemen which is clearly illustratedby the steadily increasing death rate amongst policemen over aperiod of time. For example during the period 1973 to 1979, 76policemen were killed, the period 1980 to 1990 270, and 1991,161, '92 224, in 1993 267.
In regard to the instances referred to in the preceding paragraphit became very obvious that any attempt to arrest the activistsconcerned and bring them before court would be futile to say theleast. Primarily due to the high intimidation factor which precludedany witnesses from coming forward. It also became equally obviousthat the life of the informer concerned would also be in the gravestdanger should any such action be taken.
It was also abundantly clear that other preventative measureswould have to be taken so as to protect the lives of the policemenconcerned who by now were very frightened and totally demoralised. Information to hand indicated very clearly that the group ofactivists concerned were only
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awaiting the delivery of a consignment of hand grenades from anarms cache before launching their attacks against the homes ofthe policemen.
After due consideration of all the relevant facts I decided thatthe only way the Black members could be protected against suchattacks was to ensure that the activists were provided with handgrenades which had been suitably modified. Modifications to thetiming mechanism fuse of the grenades would ensure that any personthrowing such hand grenades at the home of a policeman would beaffected first due to the shortened time delay. I then made arecommendation to this effect to the then Commissioner of PoliceGeneral Johan Coetzee who in turn presented the recommendationto the Minister. Louis Le Grange was then the Minister of Police. Mr Le Grange approved the relevant recommendation. I thereafterdiscussed the matter with Brigadier Jack Cronje and duly delegatedthe execution of the task to him. He was pertinently instructedto ensure that the modified hand grenades reached the group ofactivists under the guise of having been furnished by the ANC. Under no circumstances was any incitement to commit an offencetherewith to take place. They were merely to be handed over tothe group and any further action by utilising the grenades wasto be left to the group themselves.
A number of hand grenades and a limpet mine were later channelledto the group of activists through a certain person who had contactwith them. It later transpired that a number of these activistswere killed and injured when they launched a series of armed attacksagainst the homes of policemen resident in the area. Anotheractivist was also killed when attempting to sabotage an electricalsubstation
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by using a limpet mine.
During 1988 I received an instruction from Mr Adrian Vlok thenMinister of Law and Order to the effect that the building knownas Khotso House was to be damaged by explosives to such an extentthat it could no longer be utilised. According to Mr Vlok thisinstruction had come from President P W Botha personally. Itwas common knowledge within security circles at the time thatthe building concerned served as a sort-of internal headquartersof the ANC where resistance campaigns, unrest and violence wereplanned and where financial and other assistance was providedto MK members who had infiltrated into the country. Accordingto information explosives were also stored in the basement ofthe building.
Despite being in possession of a great deal of information regardingcertain unlawful activities taking place within Khotso House thePolice were powerless in putting a stop to it as no informer oragent was prepared to give evidence in court regarding such activity. Mr Vlok was emphatic in stating that the maximum effort mustbe made to ensure that no lives were put at risk when carryingout the operation.
I then delegated the instruction to Brigadier Willem Schoon,who at that stage commanded the Vlakplaas Unit and once againemphasised the question of not putting lives at risk. The instructionwas duly carried out at a later date and the building was so badlydamaged it was rendered no usable.
I am fully aware of the fact that the actions of various membersof the security branch and other members of the South AfricanPolice, as defined in certain instances
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which may be placed before this Committee, as well as that ofthe Human Rights Violation Committee may in present circumstanceswhere proper knowledge and awareness of the background to theviolence and ...(indistinct), as well as the emotions involvedis gradually fading appear to be cold-blooded and murderous ofnature.
I am also equally aware of the fact that there are many membersof MK and Apla who were directly involved in the conflict whoare currently wrestling with identical problems to those beingexperienced by serving and former members of the South AfricanPolice and services. Because of the variety of individual andgroup perceptions and problems the said members of the South AfricanPolice and the services as well as those of MK and Apla are decidedlyunwilling to appear before the Truth and Reconciliation Commissionor to give evidence.
For this very reason under the guidance of Deputy President ThaboMbeki various discussions were held between former members ofthe security branch, the South African Defence Force and MK inan effort to start a process to convince those concerned to presentthemselves to the Commission so as to be able to place the pastin its proper perspective.
Thank you Mr Chairman.
MR DU PLESSIS: Thank you Mr Chairman. General van derMerwe I am going to ask you questions in Afrikaans.
CHAIRMAN: This will be added as an exhibit?
MR DU PLESSIS: Please My Lord.
CHAIRMAN: Exhibit B.
MR DU PLESSIS: B, as it pleases Your Lordship. Generalvan der Merwe this submission that you have just made, a
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document has been attached to this titled "Conflict of thePast. The role of the South African Police in the conflicts ofthe Past", whose document is this?
GENERAL VAN DER MERWE: Yes that's correct. This documentwas submitted by the four previous commissioners of which I wasone as already mentioned. General Hennie de Witt, Mike Geldenhuysand Johan Coetzee, they are the others.
MR DU PLESSIS: And do you stand by the contents of thedocument?
GENERAL VAN DER MERWE: Yes, completely.
MR DU PLESSIS: General I would like to take you to page10 paragraph 30 of this document. I would like to start there.I am going to read this to you.
"....war such as such an informer, agent carrying out theacts of espionage could expect to be summarily executed if apprehended. In this shadowy and often murky world the required high levelof secrecy involved often resulted in a partial or total lackof proper and effective communication. The operator found himselfor herself more and more in a situation where mere survival becameparamount and the objective quite often justified the means. Members of the South African Police literally had to work nightand day in combatting resistance which by this stage encompasseda wide variety of different terrains. Political leaders adoptedradical and quite often controversial positions which createdthe impression amongst their followers and subordinates that theywere expected to either promote or oppose revolutionary strategiesno
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matter...."
TAPE 3A ENDS
...and eventually the removal of the dividing line between thatwhich was lawful and justified and that which was not".
Then in paragraph 31 you say,
"Therefore, understandable that although political leaderson both sides of the spectrum rarely issued direct instructionsor formulated a policy which would amount to a gross violationof human rights. Most of the members who may have been guiltyof such violations sincerely believed that what they were engagedupon was done in furtherance of the particular aims and objectivesof their respective political leaders".
Do you stand by that standpoint?
GENERAL VAN DER MERWE: I maintain that position. I standwith that.
MR DU PLESSIS: You also then say, or the Generals sayin this document that,
"Former commissioners of the South African Police who werein command of the South African Police during the period 1979to 31 March 1995 are of the opinion that with regard to thoseincidents and acts committed or carried out by members of theSouth African Police during the conflict of the past has illustratedin the preceding paragraphs..."
and then the important part,
"...are morally obliged to accept collective responsibilityfor those acts or incidents".
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GENERAL VAN DER MERWE: Yes I still maintain that.
MR DU PLESSIS: So if we understand you correctly, youand the other Generals, commissioners, say that during this period,I think it is General Coetzee, De Witt, Geldenhuys and De Witt,you say that you are morally obliged to accept responsibilityand that you are in fact doing so, to accept joint responsibilityfor the acts of policemen serving under you along with moral accountability?
GENERAL VAN DER MERWE: Yes.
MR DU PLESSIS: Now General if we can go back to yourown history, you said on page 1 of your submission that you werethe commanding officer of the security branch of the South AfricanPolice for the period 1 January 1986 to 30 September 1988, isthat correct?
GENERAL VAN DER MERWE: That is correct.
MR DU PLESSIS: Could you briefly sketch for us, I havehanded a document to you, I don't want to submit this document,I don't think it's necessary but I would like you to just verybroadly sketch the structure of the security branch during thetime that you were at the head of it, what were the various divisionsand their various functions.
GENERAL VAN DER MERWE: Chairperson we consisted of HeadOffice in Pretoria, 20 divisions with divisional commanders andapproximately 110 branches which included the border posts acrossthe country. At Head office we had various divisions dealingwith various aspects. For instance there was a division dealingwith members of the Black population, all activities relatingto them. The next division related to the other population groupsand there was also a division dealing with interrogation of arrestedpeople. A further division dealing with the Vlakplaas Unit establishedin
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1970 and which was aimed in terms of people arrested, to tracecertain members of the MK of people who were entering the countryillegally. There was also a division dealing with strategic communicationmatters.
The divisional commanders were responsible for their areas andwithin those areas he was quite independent subject to the PoliceAct and Regulations and Standing Orders, because we were all partof the South African Police and rules and regulations issued byheadquarters from time to time and also the security branch headquarters. Apart from these it was also the divisional commanding officer'sresponsibility that all security aspects within their areas weredealt with. They also had to coordinate all the activities undertheir command according to the rules and regulations issued. But because security activities were of such a nature that youcould hardly issue regulations to deal with each and every incidentand situation a lot of discretion was left to these divisionalcommanders.
I may also mention how they liaised with the existing managementsystem. The State Security Council was the body, under the chairmanshipof the State President and this body coordinated all securitymatters of national interest and then there was also the jointmanagement structure which was later changed. The managementsystem had joint management systems whereby the various managersof the information societies were all involved so that there wasan overall coordination of the safety and security position inthe country.
MR DU PLESSIS: General, during the period that you werethe Commanding Officer of the Security Branch of the Police inthe Republic where in the hierarchy did Brigadier Jack
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Cronje, one of the applicants, where did he figure?
GENERAL VAN DER MERWE: He was the divisional commanderof the Northern Transvaal Security Branch.
MR DU PLESSIS: General could you please clarify for usby giving us brief background to the various groups and unitsinto which the Security Branch was divided? There was a GroupA, Group B, a Group C and also a Group D, E, F, G, H, I, J andK. Could you just briefly sketch the background?
GENERAL VAN DER MERWE: I could perhaps just indicatethat Group A consisted of various desks dealing with the Blackpopulation groups. Personal cases were involved here, organisationsas well, and this was subdivided as far as the threat was concernedwhich varied between individuals and communities. Group B dealtwith the White population group in more-or-less the same way.Group C, if I remember correctly that was Brigadier Schoon's groupdealing with Vlakplaas interrogation of people arrested, and alsothey dealt with executive tasks, and in that way they also liaisedwith the various divisions.
MR DU PLESSIS: Sorry General could you repeat about GroupB?
GENERAL VAN DER MERWE: B was the group dealing with theWhite population group.
MR DU PLESSIS: In other words also with all White suspects,organisations and connected matters. General as far as GroupC is concerned could you make it a little bit clearer for us howthis group operated, the unit at Vlakplaas?
GENERAL VAN DER MERWE: Yes. The Vlakplaas Unit, nowthe notorious Vlakplaas Unit was established in 1979 and the objectivewas in respect of people who came into the country 3B illegally/...
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illegally and who were arrested, chiefly members of MK but alsoother organisations, some of these people we could persuade towork for us and we then tried to use them to try and gather informationfrom other people who were entering the country illegally. Inthat way we tried to establish a capacity which we wouldn't otherwisehave had to trace the people who were entering the country soas to arrest them. In some cases some of these people we usedto testify in court cases but that happened more as an exceptionthan the rule. Because these people had a specific capacity whichwas centralised we also utilised them in other divisions uponconsultation with the commanding officers of that particular divisionso that we could pool our resources.
MR DU PLESSIS: General, I have made one of the documentshere, I have put it at your disposal one of these documents whichis not destroyed, Brigadier Cronje will also testify regardingthe destruction of certain documents and problems experiencedby the applicants to corroborate certain facts as a result ofthe mass destruction of documents which took place, inter aliathe destruction of information contained on Security Branch computers. Certain documents have, however, been preserved and I have handeda document to you titled "List of names and telephone numbersof security officers", do you have that document?
GENERAL VAN DER MERWE: Yes I do.
MR DU PLESSIS: Chairperson I was intending to hand inthis document but for some reason I left it behind in my officethis morning and I will make this document available to you tomorrowmorning. General am I correct in saying that this particulardocument, during the period that you were the commanding officerof the security branch sets out exactly
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which members were involved in what groups and exact structureof the security branch?
GENERAL VAN DER MERWE: Yes. When the document was issued,that is so.
MR DU PLESSIS: General, could we now move to the wayin which instructions and commands were carried out where it relatedto specific instructions. I am going to ask you to give us abroad outline and then I could perhaps ask you specific questions. I'd like you to tell the Committee exactly how commands and instructionswere dealt with. How responsibilities were dealt with. How muchresponsibility individuals in the hierarchy had. Please giveus an outline.
GENERAL VAN DER MERWE: Chairperson may I ask are we concernedhere with political accountability for these deeds?
MR DU PLESSIS: No, just in general I would like to knowhow commands were dealt with in the Security Branch where youwere the head.
GENERAL VAN DER MERWE: As far as the Security Branchwas concerned above and beyond the police regulations we wouldalso issue orders of national importance and these orders wereconveyed to the divisional commanders by Headquarters. Thesewould be national guidelines and within these guidelines eachdivisional commander would then determine his activities as circumstancesdemanded it.
As a result of circumstances prevailing, which I have alreadymentioned, it was impossible to provide for rules and regulationscovering each and every situation and to give guidelines to thesecommanders. We would only have done so where it was a matterof national importance and for 3B the/...
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the rest the divisional commander would have been responsiblefor dealing with these matters falling within his jurisdictionaccording to the circumstances prevailing.
MR DU PLESSIS: When you made your submission, General,you made it very clear how the situation was aggravated and howthe police became more and more desperate to try and suppressthe unrest, to control the situation and how certain acts werecommitted, could you explain to the Committee how policy relatingto conduct against the liberation movements were formulated, wherewas it formulated, how was it formulated and how was it disseminatedthrough the hierarchy?
GENERAL VAN DER MERWE: Chairperson, as in the case ofthe other commands which I have mentioned the same would haveapplied here. That means that all actions of national importance,and which were of such a nature that guidelines were necessaryon a national level, we would have formulated these at Head Officeand then conveyed to the various divisions. But they in turnwould have had to judge independently how these instructions hadto be carried out. But you must also bear in mind that thesedivisions were also involved in the joint management system whereinconsultation with the other departments and the information departmentsconsultations were held on how to combat the threats facing theState, and it was also expected that each department would, interms of those decisions, deal with these matters and combat thethreat.
MR DU PLESSIS: When the situation was exacerbated asyou set out, well you didn't mention any dates, but everybodyknows that it took place from about 1983 onwards. The situationthen became much worse in the country as far as
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general unrest in South Africa was concerned. In 1985 there wasa temporary state of emergency and in 1986 the state of emergencywas made permanent.
GENERAL VAN DER MERWE: That is correct.
MR DU PLESSIS: During that period can you recall anypolicy instructions or general instructions which came your wayas head of the Security Branch relating to dealing with this particularkind of situation and general conduct by the South African Policeto try and combat the threat to security?
GENERAL VAN DER MERWE: Yes. On a regular basis therewere requests made. I think the matter, one could almost saythe matter was dealt with on a weekly or monthly basis and reviewedon that basis and as the situation became worse obviously attemptswere made to try and combat the situation and to try and stabilisethe situation, and we looked at all kinds of options. Apartfrom the instructions dealing with the state of emergency as suchand related matters where weren't any other specific instructionsthat I am aware of apart from the general instructions.
MR DU PLESSIS: General, what I would actually like tofind out from you is whether the instructions and requests asyou mentioned which came your way relating to the security issuein the country, was that based on the fact that you and your memberswere still to operate within the confines of the legal systemas extended by the emergency regulations, or did it entail morethan that?
GENERAL VAN DER MERWE: As far as official policy wasconcerned it entailed nothing more than that, but if you see thematter in perspective you would have to bear in mind that therewere views, statements, perceptions etc created
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amongst our members which gives the whole issue a slightly differentcomplexion. I have said it before, and I will state it again,that irrespective of what the perceptions might have been overa long period of time there was never a policy which amountedto members of the security police acting in an unlawful manneras far as gross violation of human rights was concerned, therewas never such a policy. But if you analyse the situation carefullyand you look at individual cases in which people held certainviews then the situation might be judged differently. I can'tgive you particular incidents to say that upon such an occasionsuch and such a person made this statement and interpreted itin this way, but I can say that if you talk with your people nowit seems that the perception did exist that it was expected ofthem to do a lot more than that which could be done within theparameters of the legal system.
MR DU PLESSIS: General you have also now referred tothe fact that instructions were received or given, now from whomwere these instructions received? Who did you receive your instructionsfrom?
GENERAL VAN DER MERWE: Apart from our duties in termsof the Police Act and Regulations our instructions normally camefrom the State Security Council. What I would like to emphasisethat in respect of all instructions coming from the State SecurityCouncil all these instructions fell within the ambit of the law. Instructions from the State Security Council, as far as I amaware, were never extra-legal by nature. But if you go and lookat the system this is a bit difficult to explain. At the timethere were a lot of statements made and speeches made. Peoplebecame emotionally excited about circumstances prevailing at the
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time and views and statements were aired and we actually can'tremember them all that clearly today, but if you look at the generalperception at the time the impression was created that the enemyhad to be halted at all costs.
MR DU PLESSIS: General you say that the instructionsfrom the State Security Council were not instructions relatingto any unlawful conduct, were there any enquiries from the StateSecurity Council relating to any alleged actions which took placeoutside the boundaries of the law?
GENERAL VAN DER MERWE: That Chairperson is difficultto explain. It's hard to say why it would be expected of theState Security Council to make such enquiries if one bears inmind that during 1984, 1985 there were about 48,000 incidentsof violence or terrorism and sabotage and annually about 15,000persons are killed in this country on average. So it would havebeen very difficult for the State Security Council to enquireabout any particular incident if there is nothing which one cancall to mind very specifically.
MR DU PLESSIS: As far as the incident of the handgrenadesare concerned and the use of handgrenades and the zero ignitionmechanism so that the handgrenade would explode in the hands ofthe person actually pulling out the pin of the grenade, as I understandyour evidence that instruction came directly from Minister LouisLe Grange?
GENERAL VAN DER MERWE: That is correct. It was actuallya matter of approval after we made a submission to him.
MR DU PLESSIS: Yes but was Minister Louis Le Grange -did he serve on the State Security Council at the time?
GENERAL VAN DER MERWE: Yes he was indeed.
MR DU PLESSIS: Now you were not a member of the StateSecurity Council but would you regard it as a possibility
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that this Council knew of that particular incident?
GENERAL VAN DER MERWE: It is a possibility, yes, butI don't have any facts at my disposal about that so I can't testifyto that. What I can say with certainty, the way I knew Mr LeGrange, is that he would never have taken such a decision withoutat least consulting the President, or the Minister. He wouldnot have lightly taken such a decision.
MR DU PLESSIS: General I am also going to put it to youthat the evidence of Brigadier Cronje and Colonel Venter relatingto this event will be to the effect that they were told duringa meeting when you discussed this instruction with them, thatthe instruction had come from PW Botha via Minister Louis Le Grange.
GENERAL VAN DER MERWE: That is possible. I would sayyes that that is possible. I don't remember it like that butI can't dispute that, it happened too long ago, but that is possibleyes.
MR DU PLESSIS: And General this was an action which felloutside the normal legal boundaries even considering the factthat there was a state of emergency at the time?
GENERAL VAN DER MERWE: Yes. I think in the circumstancesprevailing at the time when we made this decision I think I mightbe bold enough to say that the Attorney General might have saidthat it was an act of necessity. But I will concede, if you takeeverything into consideration, that perhaps one could see it differently.
MR DU PLESSIS: Was a decision ever taken, do you knowof any decision, policy which provided that the South AfricanPolice would not only act in a reactionary way against terroristsbut also pro-actively to prevent these acts?
GENERAL VAN DER MERWE: Are you speaking generally now?
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MR DU PLESSIS: Yes.
GENERAL VAN DER MERWE: Apart from action abroad wherethe general view was that because we didn't have the various rightsand competencies which we had internally other actions were consideredlegitimate in order to level the playing fields in combating theenemy. In many cases operations undertaken outside the bordersof the country were authorised by the former government but therewere also cases where, especially as far as our neighbouring states,actions were taken without them being authorised explicitly Butwhere actions were taken at a local level as a result of the factthat the opportunity presented itself to act against somebodyidentified as a member of the enemy.
MR DU PLESSIS: On page 10 of the Commissioner's submissionthe following is said
"... in which all parties became more and more desperateand various political leaders on both sides of the political spectrumexerted their forces to greater heights and pressurised them toachieve further successes in carrying out their respective tasks. The individual forces were thus required to adopt all the methodsand techniques which are normally employed in conventional warfareso as to function as effectively as possible".
General if we look at what you said there, or the Generals saythere, I think you will agree with me that this means not onlyreactionary conduct but also active, proactive conduct to preventterrorists from accomplishing certain acts of terrorism?
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as a result of the way in which the South African Police wereutilised in Zimbabwe and Namibia where they were actually usedas ordinary soldiers, they hunted people and tried to kill themand eliminate them. Then these members of the South African Policecame back to the Republic and were then expected to act withinthe law. So taking all other factors into consideration, in themind of the ordinary man-in-the-street there was much confusionregarding the ordinary guidelines applicable and these becamevery vague and we tried to give an impression of what the ordinaryman-in-the-street how he would have seen the issue at the time.
MR DU PLESSIS: You did not say that there were such specificinstructions to act beyond the boundaries of the law but you alsogave testimony in the case of the handgrenade events or incidents,this was the case that there were actions beyond the boundariesof the law. And you also gave testimony that outside the bordersof South Africa there were actions beyond the scope of the law. Don't you consider it possible that there might have been instructionsof which you might not have been aware, but that there might havebeen instructions that came from the State Security Council orfrom institutions immediately underneath the State Security Councilthrough the joint management system, that police officers underthose circumstances might have been instructed to act in waysbeyond the normal legal system in a pro-active manner?
GENERAL VAN DER MERWE: Mr Chair I don't think it's possibleor at least it is highly unlikely. South Africa would have beenmuch worse off than it is now. If it had happened that the ordinarypolice officer would have been
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under the impression that he could simply act as he pleased tocounteract the offensive then things would have been far worsethan these cases now at hand. One must not just try and gaina general impression because in every area circumstances weredifferent. Every individual acted under specific circumstancesand because of a variety of factors each individual had certainunique perceptions. One cannot generalise that there was instructionsfrom the State Security Council which gave the instruction thatthe security forces were able to act beyond the limits of thelaw but positions might have been taken, emotional statementsmight have been made or other circumstances might have existedso that the ordinary officer who existed under circumstances wheremurder and violence had to be dealt with everyday that the impressionmight have been gained by the ordinary officer that he could doanything to carry out this task.
MR DU PLESSIS: General then say for instance Mr Cronjereceived the instruction to act beyond the normal limits of thelaw and beyond the emergency regulations, should that person befaced with these circumstances such as you sketched, would youhave considered it reasonable? Or rather let me state it thisway, what would your view have been if such a person under thesecircumstances such as Brigadier Cronje, if he received such instructionshow would he have interpreted such instructions and how wouldhe have carried out such instructions? What would you have considereda reasonable response?
GENERAL VAN DER MERWE: In view of his application, BrigadierCronje's application and his instructions - no I will get to thatjust now or in a moment, this depends on
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the specific instructions and circumstances under which the instructionswere received. Whether I would be able to say that it was ....(Tape3 ends)
MR DU PLESSIS: ....with regard to which he will givespecific testimony said the following which I will read to you,with regard to the actions of the South African Police and theway in which they carried out their instructions Chair I referyou to page 13 of Brigadier Cronje's application. General I knowyou have seen it but I am going to read. This is then from BrigadierCronje's application on page 13.
"In view of the preceding there were general instructionsfrom commanding officers to take certain steps to counter certaincircumstances, these were general instructions which did not necessarilyinclude the need for specific instructions in every incident. The power to gain instructions were devolved to a lower levelat the authority structure and a brigadier and other officerswere confronted increasingly with general instructions in termsof which we had to act in a broader manner than under normal circumstances. Such powers were extended and commanding officers could act toa greater extent before gaining the necessary authority".
Would you agree with this General?
GENERAL VAN DER MERWE: Yes I would agree with this Chair. Let me put it to you in this way. I can understand that thatis the way in which Brigadier Cronje understood the situation. If one were to analyse clinically every specific incident inthis regard and if one were to weigh the process 3B it/...
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it might not appear quite like that, but again under BrigadierCronje's particular circumstances I can well understand that thiswould have been his interpretation of these instructions.
MR DU PLESSIS
Of course it was not possible to gain instruction for everyaction for one's subordinates and in certain instances commandingofficers only gained information after actions were taken becauseof the need to act immediately, and because of the practical impossibilityto gain instructions before action".
This is because of the circumstances of war then reigning, doyou agree with this?
GENERAL VAN DER MERWE: Yes I agree with this.
MR DU PLESSIS
"Actions of the South African Police to counter the actionsof the......"
INTERPRETER: I am sorry interpretation is not possiblebecause of the speed of reading and the lack of documentation. Interpretation is not possible of such documentation my apologies.
MR DU PLESSIS
"Early in 1986 I was contacted by Commander Victor whowas second in command of the Intelligence Unit..."
There appears to have been a spelling mistake, Intelligence Unitwas misspelled here, it was "counter insurgency unit"my apologies.
"...due to the structure of the SAP at that time BrigadierVictor my senior, had to accept
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instructions from him".
Do you accept this?
GENERAL VAN DER MERWE: This is correct.
MR DU PLESSIS
"He informed me that he called in Captain Jacque Hechterand gave instruction to go with his son, a lieutenant, to bringthe unrest in the Pretoria area under control in any way necessary. He said that Pretoria was burning and that South Africa was burning. He said that every necessary step had to be taken to bring thesituation under control and he said that immediate actions hadto be taken against persons responsible for actions against policepersons and that their house had to be burnt down of such persons. He then said that when striking back it had to be struck backharder in every incident. The Security Branch had to act activelyagainst terrorists and activists. His instructions also impliedthat the same procedures had to be taken and that guerilla actionshad to be taken to and against activists of the various liberationmovements. Before Brigadier Victor's command there was only reactionaryaction from the Security Branch. Various activists aimed at destabilisationwere dealt with in terms of existing legislation. When BrigadierVictor gave this instruction it was clear that reactionary actionwas insufficient to counteract destabilisation and violence. It was then, at that point, that full-scale military warfare began".
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That is Brigadier Cronje's statement and I will finish readingthere. Would you be able to give comment on Brigadier Cronje'sstatement with regard to Brigadier Victor?
GENERAL VAN DER MERWE: Mr Chair you have not had theopportunity to hear Brigadier Victor's point of view. I havehad conversations with Brigadier Victor who has a different version. I must say to you that as I know these two persons or insofaras I know them both of these were people who through the courseof their career were exposed to every manner of violence, whohad served in Zimbabwe and Namibia over an extended period oftime working under very difficult circumstances, who really caredabout their work, this is Brigadier Cronje and Victor, both ofwhom were persons willing to put their lives at risk to carryout their tasks. These two people's whole world existed outof their work. Their work encompassed their entire lives. Ican understand that if Brigadier Victor and Brigadier Cronje weregiven instructions to stabilise and secure their areas regardlessof the particular wording of the instruction one might expectthat it might have meant that one has to pay back the enemy intheir own coinage then indeed that would have been the way inwhich they would have acted, and that there would have been noquestions asked. In view of the circumstances they would nothave asked questions. These people know each other well, werethey to phone one another and say that things are falling apartyou have to really act now, then he would not have said that Iget this instruction who was second in command of counter insurgence,should or should I not carry out, this is not the kind of personthat Brigadier Cronje was. He would simply have acted what he
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thought was required of him when such instructions were given.
MR DU PLESSIS: General in this area did you talk abouta total war in police circles?
GENERAL VAN DER MERWE: Yes in fact I think there waswar book, that is how it was known in which certain of the strategieswere explained. In official documents we spoke of an undeclaredor in normal circumstances it was considered to be a war situation. He says here that there was a change to active full scale war,there was never any such an instruction. Again one has to understandwhat the ordinary officer's perception would have been of thevarious different steps and strategies and statements and theemotions surrounding them. There had never been, from the StateSecurity Council, or from the Department any such a statementthat this was going to be a military war and I've emphasised thistime and again, but it is no doubt that in practice it was saidin police circles that this was a war situation.
MR DU PLESSIS: Had there ever been from the side of thegovernment an effort to counter this perception, to say to peoplethat this was not a war?
GENERAL VAN DER MERWE: Mr Chair, no, I would rather saythat were one to listen to the ordinary officer who had to dealwith these circumstances then his impression had indeed been thatit was a war. I could hardly think of a single instance wherethere was an effort to counter this perception from the side ofgovernment.
MR DU PLESSIS: General with regard to any actions byBrigadier Cronje did you repudiate any of his actions?
GENERAL VAN DER MERWE: No I never had reason to do so.
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MR DU PLESSIS: General let me ask you this question,if a security police officer, let's call this almost a soldier,someone like Brigadier Cronje, I just want to get this quite clearly,would he have accepted that such an instruction from BrigadierVictor would have come from a higher authority and therefore thatit would have been an instruction that he had to carry out?
GENERAL VAN DER MERWE: Mr Chair it is very difficultto give a very clear answer, it might have been possible. AsI know these two persons it is also possible that Brigadier Cronjecould have deduced from Brigadier Victor's point of view thatit was now required of him to act without any further considerationwhile his area was going up in flames. It might have been possiblethat he had thought that this instruction would have carried theapproval of a higher authority especially in view of the factthat Brigadier Victor who had close links with higher authoritieshad made this statement, this would have given him an indicationthat that was the case. It is unlikely that Brigadier Victorwould have given such an instruction without higher authority. No he never had the power or authority to give such an instruction.
MR DU PLESSIS: Could Brigadier Cronje ask Brigadier Victorwhat the source of this instruction had been?
GENERAL VAN DER MERWE: He might well have asked or hewould have been allowed to ask. But if one were to look at thecharacter of these two persons I could hardly imagine that someonelike Brigadier Jack Cronje under the circumstances and in theface of such an instruction against his background and experiencethat he would have asked any questions, thereby giving the impressionthat he was not
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entirely willing to act in this way without some protection. He was not the kind of person who would have shied away from thiskind of action under these circumstances. Someone else mightwell have. But against his background I don't think that in hiscase, he would ever have thought of asking such a question.
MR DU PLESSIS: General van der Merwe Brigadier Cronjewill further give testimony that his view of the legitimacy ofhis actions and his view of the fact that he was in a full-scalewar and that he had to act in a preventative and pro-active wayrather than a reactionary way that this was strengthened by anumber of instances.
The first such occurrence, and I want to state it now to youwas that with the event ...(indistinct), the elimination of theANC activists you will remember this incident, these were theactivists who were going for military training outside the countrywho were eliminated, placed in a mini-bus and then blown up, afterthis incident Brigadier Cronje will give testimony in this regard,Brigadier Victor phoned him and congratulated him with this particularoperation, could you comment in this regard?
GENERAL VAN DER MERWE: I cannot comment on the correctnessof this testimony but if it had happened I would agree that suchan impression might have been strengthened.
MR DU PLESSIS: A further incident which I will stateto you and on which there will be testimony from Brigadier Cronjewas the fact that with regard to Zwele Myanda and Keith McFaddenin Swaziland, and exterior action, an action beyond the bordersof the country in which he was directly involved that he gaineda medal, was given a medal for the elimination of the ANC activists,which again strengthened
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his perceptions.
GENERAL VAN DER MERWE: It emphasises what I wanted tosay already that because of this kind of action our people wereconfused. The distinction between legitimate and illegitimateactions became more and more difficult and I would grant readilythat this would have been an incident that could have made a verystrong impression as you stated.
MR DU PLESSIS: There will be further testimony that thesetwo actions as well as the handgrenade action where the instructionwas right from the top that none of these actions were ever repudiatedfrom any higher authority, that this strengthened his perceptionthat his actions were under the instructions of higher authorityand that he had authority to act in this way.
GENERAL VAN DER MERWE: With regard to these incidentswhere very clearly there had been knowledge of at a higher level,with regard to these incidents yes I can say that this would havebeen the case. It would require that a person would have beenrepudiated for actions not known at a higher level. In thosecases where higher authority knew about these actions and in whichcase there was no repudiation, yes, that might be a fair conclusion,but in other cases where the actions were unknown at a higherlevel of course it would make no sense.
MR DU PLESSIS: In this regard Brigadier Cronje will alsobring testimony that he reported on events in his section andhis unit to his commanding officers that there were files withregard to certain events and activists, both at his branch aswell as at the security branch and that he had never, with regardto any action against activists, whether intimidation or eliminationor any other event that he would 4A ever/...
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ever have been repudiated even though he had reported in thisregard, could you comment in this regard?
GENERAL VAN DER MERWE: Mr Chair in my entire existenceI never saw such a report, I am not sure whether you mean thathe literally reported exactly what happened even where there wasillegitimate actions against a particular person and it was statedas such in the report, I can hardly imagine this.
MR DU PLESSIS: Yes that is what I implied.
GENERAL VAN DER MERWE: No I never saw such a report.I can hardly imagine it. I can assure you that all persons involved with files could affirm this that there had never been such areport in which it was reported that in the action against a specificperson who was eliminated that I had ever seen such a report. I cannot comment in this regard but I might imagine that anyother person seeing such a report would just have left it at that.
MS KHAMPEPE: General van der Merwe was it not a standardrequirement that the commanding officers should receive detailedreports on how the orders had been executed by the operativesspecifically with a view of assessing the legitimacy of the operatives'conduct during the execution of their orders?
GENERAL VAN DER MERWE: Chair one has to take into accountthat there were hundreds and at certain times thousands of incidentsevery day. With regard to instructions, depending on the instructionsand their scope it would hardly have been possible to report backon every single action and incident and to evaluate every incidentor action. There might have been operations where the scope ornature would have been such that one would have expected completereporting and this was done, generally speaking. One could
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not generalise to say that with regard to every instruction giventhe understanding would have been that there would have been reportingand evaluation in detail. These were simply the circumstances,it was not possible to do so.
MR DU PLESSIS: General I want to pay attention to a differentsection of Brigadier Cronje's application with regard to instructions. Before doing this I just want to make a statement to you thatthe testimony of Brigadier Cronje with regards to instructionof Brigadier Victor has been corroborated by Captain Hechter. Brigadier Victor first called in Captain Hechter and then BrigadierCronje. I just want to state this to you that there is corroboratingevidence.
I want to refer Mr Chair, to page 15 of Brigadier Cronje's application,the last paragraph thereof, of his submission. My apologies page17, the last paragraph. It is likely that interpreting will notbe possible. My apologies I return to page 16, the second-lastpage where Brigadier Cronje says the following.
"In my knowledge the same action was taken in all othersections of the security police throughout the country. It wasa generally accepted way of acting without repudiation by HeadOffice, the Commissioner of Police, the State Security Council,Cabinet or Government".
As far as I can understand it pro-active action against the liberationmovements was taken up with the agreement of the government ofthe day. I know you disagree with this but I simply state theview of Brigadier Cronje. General as I understand your pointof view you are affirming that Brigadier Cronje might have beenunder this impression is
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that correct?
GENERAL VAN DER MERWE: Yes.
MR DU PLESSIS
"All actions under my jurisdiction were taken up in situationreports sent through daily to Head Office. The procedure wasthat further reports in this regard were also sent through tothe State Security Council. Actions under my command were thereforesent through to Head Office and must have been taken up in reportsto the State Security Council. Monthly meetings at the jointmanagement centre also had discussions of all these actions withrepresentatives from various sectors".
I know this is an over-simplification of the system but wouldthat have been correct?
GENERAL VAN DER MERWE: With regard to the normal incidents,legitimate incidents this would have been the case. I must justconfirm again that I am really not aware of any report made inwhich there was mention of illegitimate actions concerning thegross violation of human rights, not while I served in these bodies. There might have been communiques in this regard but not by meansof normal reports.
MR DU PLESSIS: General, Brigadier Cronje was not involvedin the higher levels of authority such as the State Security Council,at the bottom of page 17 he says that he had no doubt that hisactions and that of his subordinates "under my command wouldhave been made known to the State Security Council". He givesan example that of the handgrenades which we had already dealtwith.
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Then General another important point is the following. Thisis a further factor concerning which Brigadier Cronje will bringtestimony which convinced him that he's acting legitimately andcorrectly under the instructions of the government. This regardsBrigadier Schoon who phoned him on a particular incident, whogave him instruction that the Security Branch with the militaryspecial services were to act.
"His instruction to me was that the SADF's special serviceswas to cooperate with us. This was the special combat unit workingwith covert actions. If Brigadier Schoon gave me instructionto work with Military Intelligence I would not have consideredthan an instruction war, but the instruction to work with specialforces was a direct instruction to get involved in direct militarywarfare. This instruction was given to me during a time afterthe instruction of Brigadier Victor. It was within a couple ofmonths of each other. I accepted Brigadier Schoon's instructionand respected it as an instruction to get directly involved withmilitary action in a military way. It was therefore no longernormal policing actions or tasks which I had to carry out. Myresponsibilities were therefore far wider".
Do you know of this instruction from Brigadier Schoon?
GENERAL VAN DER MERWE: No I am not aware of this instruction. If such an instruction had been given I would agree with theway in which Brigadier Cronje had understood it, but I am notaware of such instructions.
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MR DU PLESSIS: General the fact that there had been cooperationbetween the security police and special forces would then be confirmedin the testimony of the applicants with regard to more than oneincident also with regard to the case of Piet Mtuli and the Robeiroincident. I am simply stating this to you.
GENERAL VAN DER MERWE: I am not aware of this Chair.
ADV DE JAGER: In the structure if there had been suchincidents where Cronje acted in terms of Schoon's instructionand he had sent in a report to whom would he have sent this report?
GENERAL VAN DER MERWE: Depending on the nature of itscontents if it had to do with a normal individual suspect it wouldhave been sent to the particular section at Head Office who wouldhave dealt with this and depending on whether it was of nationalimportance or only of local importance this matter would havebeen dealt with by either the divisional head of the divisionor it could have been taken up to a higher level. That wouldhave depended on the importance of the particular incident ona national level.
JUDGE WILSON: If there was such cooperation with thedefence force would you also have expected the defence force tomake reports to their headquarters?
GENERAL VAN DER MERWE: Chair again this would have dependedon the nature of the action. If it had been an action of sucha scope that one would have expected this, yes. Taking into account,however, that during this period one sometimes had to work rightthrough the night and that there would have been a number of incidentsin which people were involved under normal circumstances theymight have reported on these events, but in practice this didnot
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occur. I would agree with you that under the same circumstancesif we were required to make reports yes in a similar way the militarywould have had to report to their superiors.
ADV DE JAGER: You gave instructions with regard to theZero handgrenades, did you receive a report in this regard?
GENERAL VAN DER MERWE: Yes I received a report and gavea complete report in this regard to the Minister, the then Ministerof Police.
ADV DE JAGER: That would have been Mr Le Grange?
GENERAL VAN DER MERWE: Yes that would have been Mr LeGrange.
ADV DE JAGER: Do you know whether he reported throughto a higher level or whether it was discussed at the State SecurityCouncil?
GENERAL VAN DER MERWE: I don't know Mr Chair but I canhardly imagine that a person like Minister Le Grange would nothave taken it to a higher level. I do not, however, have personalknowledge of his actions.
ADV DE JAGER: In your case where you gave instructionsyou did report back?
GENERAL VAN DER MERWE: Yes I did.
ADV DE JAGER: You would have required the same procedureunder other circumstances?
GENERAL VAN DER MERWE: Yes where there had been authorisationI would have required that.
JUDGE NGOEPE: Would there be any incidents in respectof which there would be no report required?
GENERAL VAN DER MERWE: Yes Chair I can imagine that theremight have been such incidents. If there had been a particularincident such as those sketched in the
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applications, the person might have considered it advisable toreport in such a way that the actual action did not appear inthe report. In other words that it would have been reported asif some other party had been responsible for the particular action,it would then not have been possible to link the particular caseto the particular incident now appearing before you in terms ofreporting.
MR DU PLESSIS: General are you aware, do you have knowledgeof the so-called "San Hedron"? at the security headoffice, could you explain it to us?
GENERAL VAN DER MERWE: This was generally the heads ofthe various units.
MR DU PLESSIS: I am talking about the "San Hedron".
GENERAL VAN DER MERWE: This San Hedron it's a term fromJewish religious usage of the past. These were the heads of theparticular divisions as well as the commanding officer who wouldmeet every morning to discuss the security situation in the countryand to see whether there was urgent attention necessary in particularcases and they also made general planning.
MR DU PLESSIS: General in my research I found an articlewritten by someone called Hansen. This appeared in a journalPolicing and Law and in this article there was a particular incidentdiscussed which I want to present to you. This had to do withthe action of the police in terms of emergency regulations. Hediscussed the case as an unreported case, I don't have the particulardecision at hand State v Verlet in the Cape Province, andread as follows
"The philosophy of policing in the eighties has shiftedfrom its original roots in total onslaught
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and total strategy now rests on the notion of revolutionaryonslaught. Initially this meant that the SAP were trying to perceivecivil conflict as part of a global communist onslaught againstcapitalism. They now see civil resistance as symptomatic of athird world revolutionary attack. From this standpoint it hasbecome the duty of the SAP to stave off onslaught in any way possible. In the case of State v Verlet it was shown that the SAPwere ordered to eliminate people that they perceived as beingthe enemy. It is not unlikely, therefore, that this type of consciousnesshas produced the readiness to kill on the part of the SAP".
This is testimony in a case in the Cape in 1989, roughly in 1989. General if such testimony had been given already at that timewould you be aware of any enquiries or...(Tape ends)
GENERAL VAN DER MERWE: With regard to the specific incidentI couldn't tell you what steps were taken. I can hardly imaginethat nothing had been done but I don't know the particular incidentso I can't make comment in this regard at this moment. Where claimswere made with regard to illegitimate actions and where this hadcome under the attention of government, in those cases where Iknew of this there had normally been questions with regard towhat steps were taken. I don't know of any case where the impressionhad been given from the side of government, and I'm talking interms of gross human rights violations, not other incidents, butwith regard to gross human rights violations where people diedand so on, I gained the impression that
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government would not simply have let such incidents go by withoutinvestigation.
CHAIRMAN: Can you give us a reference for that articleplease?
MR DU PLESSIS: Yes, I beg your pardon. It is in Policingand the Law. I am not 100% sure, I think it's the 1989 edition,I will confirm that Mr Chairman tomorrow. The title of the articleis "Trigger Happy and Evaluation of Fatal Police Shootingsin the Greater Cape Town Area from 1984 to 1986". It's page118.
CHAIRMAN: Thank you.
MR DU PLESSIS: I think it's the 1989 edition, but I willmake 100% sure.
ADV DE JAGER: Could you check this for us and then onthe document indicate and provide copies for us of the documentation?
MR DU PLESSIS: Yes I will do so. General I just wantto state it to you that you've given testimony how Brigadier Cronjewould have seen his instructions and this is in effect also whatBrigadier Cronje has brought as testimony. Thank you then foryour help in this regard. I must, however, state to you thatBrigadier Cronje, as I have already read to you will bring testimonythat there had been a very great likelihood that these actionshad been sanctioned by government from a higher level, by theState Security Council and that it is likely that the instructionsof Brigadier Victor and Schoon to work with the SADF special forcescame directly from the top.
GENERAL VAN DER MERWE: I am not aware of any such instructions. I must, however, emphasise it very strongly that I know thatif we talk to our people today that this
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perception had existed amongst many of them because of certaininstitutions such as for instance the counter-revolutionary intelligenceunit known as "TREVITS". I gave instruction to coordinateand evaluate information with regard to external targets beyondthe national borders and also with regard to particular individualsand organisations inside the borders. This particular organisation'spurpose had to, because they were external actions and that certainof the targets were handled by TREVITS in such a way that theimpression was gained that TREVITS had been intended to act similarlywithin South Africa under similar circumstances and that thathad been an institution by government to sanction such actions. This is a mistaken perception. I do, however, find it amongstour people. If you ask them on what you base your understandinghe cannot give you facts but that he understood it in this waythis is quite the case.
MR DU PLESSIS: A final question General. Do I understandyou correctly if I say that this perception which existed at thattime that nothing had been done by the superiors of, in particularBrigadier Cronje, to correct this perception?
GENERAL VAN DER MERWE: I never had such a conversationwith him myself. I mention it that now in retrospect as one attemptsto place the situation in perspective and while one is attemptingto determine how the entire matter developed it becomes clearthat this perception existed. While the struggle, or in the heatof the struggle violence and for all practical purposes murderexisted these things happened. It's unfortunate. We were caughtup in meetings to try and see what one could do to counter thesituation that we never had the opportunity to go right on theground to see what
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the situation was. It's a sad fact that we wasted a lot of timesin meetings rather than having been in direct contact with ourpeople on the ground. That would have been a far better ...(indistinct).
MR DU PLESSIS: My apologies a final question. Wouldyou have any doubt how Brigadier Cronje's staff, how they wouldhave understood Brigadier Schoon and Victor's instructions?
GENERAL VAN DER MERWE: I am not sure what these instructionsentailed but if they understood them as we are now presentingI have no doubt that they would have understood it in the waywe have now presented it.
MR DU PLESSIS: Thank you. Thank you Chair, I have nofurther questions for the witness.
CHAIRMAN: Mr Mpshe?
MR MPSHE: Thank you Mr Chairman. General you testifiedto the instructions given by yourself to the members in the thenpolice force, can you just tell this Committee what it is thatthe then police force or the then government intended achievingby the orders given of destruction?
GENERAL VAN DER MERWE: May I just enquire, which destruction?
MR MPSHE: To quote an example on page 26 of your statementwherein I can read that paragraph for you.
GENERAL VAN DER MERWE: Paragraph, can you just give methe paragraph please?
MR MPSHE: Page 26, it will be paragraph 20.
GENERAL VAN DER MERWE: Paragraph 20, just a moment.
MR MPSHE: I can just sum that up for you. Mr Chairmanand Members of the Committee at the beginning of page 26.
GENERAL VAN DER MERWE: Do you refer to the handgrenadesincident?
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MR MPSHE: Yes the modified handgrenades, yes.
GENERAL VAN DER MERWE: Ja. Chairperson the objectivethere was purely, as we have set it out, to protect our Blackmembers against the threatening attack which we knew would takeplace.
MR MPSHE: Did you General, as a follow-up there, expectto have any change in the political set-up there?
GENERAL VAN DER MERWE: Chairperson we did expect, orlet me put it this way, we knew that if we could not succeed inprotecting our Black members and maintaining them as far as theirmorale was concerned the whole system would collapse and thatwe in no way would be able to defend ourselves against the onslaughtwhich was threatening.
MR MPSHE: I understand General that you wanted to protectthe Black community, but first let me be a bit specific with you. By this ...(intervention)
JUDGE WILSON: He didn't say the Black community, he saidthe Black members of the police force.
MR MPSHE: Of the police force, thank you, I stand indebted. Let me be specific with you, by these orders, with particularreference to the destruction orders as I've outlined to you, didyou aim to achieve to have any political change in the then government?
GENERAL VAN DER MERWE: In the then government?
MR MPSHE: Yes.
GENERAL VAN DER MERWE: Political change?
MR MPSHE: Yes.
GENERAL VAN DER MERWE: I don't follow Mr Chairman.
MR MPSHE: Did you aim at achieving any political objective?
GENERAL VAN DER MERWE: Well yes obviously I think thepolitical objective lies in the fact that without the South 4AAfrican/...
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African Police the government would not stand a chance to rulefor one day, and unless it was possible for us to assist its membersin such a way, to protect them in such a way that they can carryon with their duties, the whole system would fall down.
MR MPSHE: Now the carrying on with the duties by the police,or let me call it the enforcing of the duties of the police, wouldyou say that it was commensurate with the killing of human beings?
GENERAL VAN DER MERWE: Chairperson if we had any otherchoice in the circumstances reigning at the time we would havefollowed those options, but at the time we saw no other way toprotect our Black members who were exposed to violence to suchan extent that many had to leave their homes, their homes wereburnt down. You saw from the statistics how many of our peoplewere killed. We had no option but to do what we did. Many ofour members had wives and small children who were exposed to alot of danger. They were innocent victims of this kind of violence. So we saw no other way in which to do it and it's unfortunatethat we had to do it in this way.
MR MPSHE: In the giving of instructions did you have anyknowledge about the Pepco 3 instruction?
GENERAL VAN DER MERWE: No, I was not aware of that atall.
MR MPSHE: Thank you Mr Chairman.
CHAIRMAN: The legal representatives of the victims ordependants would be entitled to ask questions relevant to theirclients' interest in the matter. I understand that the evidencegiven is of a general nature by way of providing a general background. We are being disturbed by somebody who is talking on his cellularphone, would you
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please go outside if you wish to use your phone. Will you placeyourself on record, who do you represent?
MR VAN DEN BERG: Mr Chairman, Eric van den Berg, attorneysBell, Dewar and Hall. I appear together with Mr Curren. We haveinstructions from a support group known as the Khuymandi Group. Mr Chairman I am in a difficult situation in that a number ofthese people were only advised of the hearings - I believe thiswas indicated Mr Chairman earlier this morning that they wereonly advised of this hearing, or their possible involvement ortheir possible rights during the course of the weekend, I am notin receipt of full instructions. I am also not in receipt ofthe various applications. There are aspects Mr Chairman whichrelate to our clients. I am not in a position to ask any meaningfulquestions at this point. I would ask not to delay these proceedingsbut that if there are questions which we want to ask the witnessbe recalled at a later stage.
CHAIRMAN: If it is necessary to ask the witness the questionsof this particular witness then we may have to call him. If youhear the evidence of the applicant's themselves it may be thatyou will get the information from them.
MR VAN DEN BERG: That is so Mr Chairman, but we wouldlike to reserve our rights in that regard. We are in a predicamentas I indicated earlier.
CHAIRMAN: General your attendance may be required atsome stage. It is not possible for us to tell you when.
GENERAL VAN DER MERWE: I am quite prepared to testifyagain Mr Chairman.
CHAIRMAN: Thank you very much. If there are no otherquestions to be asked of this witness then he may be excused 4Auntil/...
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until he is required for further evidence.
GENERAL VAN DER MERWE: Thank you Mr Chairman.
CHAIRMAN: Thank you for helping us today.
