CROSS-EXAMINATION BY MR RAUTENBACH: (Continues) I just want to bring you to the stage where we left off yesterday and that was that the only difference between Stanza Bopape's position as a detainee and that of other detainees who died is, if we look at Exhibit O, that's now the telex, the difference was then that Bopape died four days before the 16th of June which was Soweto day, is that correct?
SOUND SWITCHED OFF
GEN VAN DER MERWE: ...[inaudible]
ADV DE JAGER: ...[inaudible] this one is coming up.
PROBLEMS WITH MICROPHONES
MR VISSER: While mine is working Mr Chairman, may I just say, I don't want to interrupt my learned friend, but the distinction was also made - and I think his question may be a little bit misleading in that regard, the distinction was also made as to so-called all detainees and particularly political detainees in terms of Section 29. That was another distinction which was clearly drawn by General van der Merwe.
CHAIRPERSON: But I think there was also said that there was no distinction between persons who were detained under the State of Emergency from those Section 29 detainees.
GEN VAN DER MERWE: ...[No English translation] and there were also other factors we had to take into consideration, the Soweto day and there was the fact that the person died in detention but there's also other factors we have to look at which might be not be obvious to you.
In this case we had to do with Mr Bopape who died after electrical shocks were applied to him and where the shocks could have played a role. The procedures which usually were followed in such a case when a person died and there were apparently unnatural causes, then the detective branch head immediately had to be given notice about this and then he would have made arrangements that the district surgeon would be called to investigate and to look at the body and to organise an inquest.
The next step would be that the family members would be told about the death as quickly as possible and also be told that they could have their own pathologists at the inquest and also a very experienced detective be appointed to investigate the matter. We would also make a report to the media in order to explain what happened and to prevent as far as possible that the issue should be exploited by the media or grabbed by the ANC in order for them to gain benefit from this.
So in these specific circumstances me and General Erasmus, when we considered which measures we wanted to take, which steps we wanted to take, we had to look at all these factors. We had to think of the fact that the members who were present and involved with the death of Mr Bopape were of the conviction that the circumstances that Bopape died and what they thought of that and also the atmosphere and the climate at that stage.
With Soweto Day around the corner the members could not see their way around the normal procedures or following the normal procedures. So when Erasmus got to me it was four hours after Stanza Bopape died and as you well know at the post-mortem the time span is really important and every act after the person died is also very important and we still had the situation which was worsened by the fact that General Erasmus was told about this.
We had to look at all these factors and we had to decide, could we take the risk and follow the normal procedures and a normal inquest and the probability that such an occurrence would be a great opportunity for the SACP/ANC alliance to exploit this and to increase the revolutionary climate and to also increase the resistance and they could have used this in order to obtain their own goals.
MR RAUTENBACH: General, if we compare, and once again we look at Exhibit O, if we look at the people who died in that time span because of irregular assaults etc., we compare these people with Bopape then we know, according to your evidence, that one of the differences was the fact that Bopape died shortly before the 16th of June, is that correct?
GEN VAN DER MERWE: That is correct.
MR RAUTENBACH: Then as far as exploitation by the ANC is concerned and the fact that they would have made use of his death, I mean that would have been applicable to any death in detention, not true?
GEN VAN DER MERWE: No, definitely not. Here we had to do with a situation, as I've already given evidence, where the necessary arrangements as far as mass participation on Soweto day were already made, so the climate at that stage was already created. Remember I also told you that the ANC focused on using the commemorations and remember commemoration day was a very important day amongst the black people, they wanted to create a massive resistance, so the climate was already created. In this case we realised that the death of Bopape, should we follow the normal procedures and if it was presented as an unnatural death it was almost impossible for us to tell the media, to give a report to the media and it would have been inevitable for the ANC to use his death in order to obtain their goals. It wouldn't have been the case in other deaths even if it was in the State of Emergency or it was in terms of Section 29, it was not the same.
MR RAUTENBACH: Please listen to my question, if you remove the climate, if you remove the 16th of June as a factor - or let me put the question like this, if Bopape died in January 1989, then I would like to know to what extent would that have been different to other people who died in detention in that time span of January 1989 as we see from your telex? What would the difference have been then? I'm asking you a hypothetical question, take June the 16th away, what would the case have been then?
GEN VAN DER MERWE: If you take the 16th of June away from all the other factors then I have to agree with you.
MR RAUTENBACH: Just before I continue, what you've just said I understand your as far as your evidence in chief is concerned is this specific factor and all the other factors made this a highly extraordinary case?
GEN VAN DER MERWE: As I gave evidence just now yes, those were the factors which played a role.
MR RAUTENBACH: I want to refer you to Volume 3, page 664. General, this was a telex sent from the firm Cheadle Thompson and Haysom to the Commissioner of Police concerning the arrest of Stanza Bopape and it's dated the 10th of June and questions are asked about his arrest and in terms of what legislature he must get in detention?
GEN VAN DER MERWE: That is correct.
MR RAUTENBACH: Let's go to page 665. Again this is a telex dated the 17th of June 1988, again from Cheadle Thompson and Haysom and it's directed to the Commissioner of Police. They refer to the telex of the 10th of June 1988
"We requested confirmation of the arrest and detention of the abovenamed individuals who were arrested at Century Plaza Johannesburg on 9 June 1988"
Correct?
GEN VAN DER MERWE: That's correct.
MR RAUTENBACH: And this telex is relevant as well for Bopape and Nkoze?
GEN VAN DER MERWE: That's correct Chairperson.
MR RAUTENBACH: And then page 666, that is the 24th of June and that is the 3rd telex. Once again a telex from Cheadle Thompson and Haysom directed to the Commissioner of Police and once again they ask for the particulars?
GEN VAN DER MERWE: That's correct.
MR RAUTENBACH: Just before we continue with that correspondence, it seems to me at this stage - or let me rather refer you to 667, there is a letterhead, South African Police and it's directed to Cheadle Thompson and Haysom where they answer the questions regarding Bopape and say that telexes were received on the 10th and 17th of June and
"I have to inform you that Mr Bopape was exempted from the provisions of Section 29 of the Internal Security Act"
You are aware of this specific letter?
GEN VAN DER MERWE: Yes, I'm aware of them now, yes.
MR RAUTENBACH: You were not aware of them before, the first letter when the attorneys were answered regarding Bopape's situation?
GEN VAN DER MERWE: It's possible that I've seen it before but I can't remember that, I cannot tell you.
MR RAUTENBACH: Would you be able to indicate to us who decided to inform the attorneys that Bopape was exempted from the provisions of Section 29?
GEN VAN DER MERWE: Chairman, I can tell you that it's quite clear this comes from the legal division and the practice was that when a person was no longer in detention, whether he escaped or whatever the case might have been, that detention immediately was stopped and that's why they would have given a report thereof. So there is nothing unusual in this, this was the normal practice. It might seem illogical at this stage, it might seem that but the fact remains that as soon as a person was no longer kept under the provisions of the detention, then the provisions no longer existed. He might have escaped or whatever and then it would be noted down.
MR RAUTENBACH: I refer you to page 667. This letter was dated the 27th of June 1988 and it seems to me, unless you can tell us otherwise, that this was the first indication or the first phase, the 27th of June now, when Bopape's situation was described in any sense, when the police told anybody about what happened to Bopape?
GEN VAN DER MERWE: No, I think the police reacted on Bopape's situation beforehand. Sorry, I apologise you are correct, I confused the dates. It might have been the first correspondence.
JUDGE NGCOBO: General, if I may ask you, inquiries often concerning the detention of a person, would those have come to you directly? I have in mind for example, this telex of the 10th of June 1988.
GEN VAN DER MERWE: No Chairperson, we received mass loads of inquiries and letters and every time it went to the relevant desk and the desk then handled it. In those cases where they were of the consideration that I personally should handle it further, they submitted it to me but otherwise the desk would have handled them themselves.
JUDGE NGCOBO: From your personal knowledge, did you have anything to do with any inquiries that were made often concerning the detention of Bopape prior to his death?
GEN VAN DER MERWE: Chairperson, except for the letters I signed which are also filed here for your information, the other inquiries were handled by the relevant desks in the normal practice. I wasn't involved with then except in the case when a letter was given to me and in such a case the desk also handled the matter entirely. They prepared the letter for me and I simply signed it.
JUDGE NGCOBO: Thank you.
MR RAUTENBACH: General, I referred you to the correspondence on page 667 and I just want to put it in chronological order. 668, there you will find correspondence directed to Cheadle Thompson and Haysom where there is referred to the following
"Receipt of your letter dated the 23rd of June 1988. You are referred to this office's evenly numbered letter dated 27 June, a copy of which is attached for your convenience"
That seems to be the one on 667 and then I go to 669. 669, the way I read it and I just want to get it clarified, it seems to be a telex from the police to Cheadle Thompson and Haysom or am I wrong?
GEN VAN DER MERWE: It seems to be the case yes.
MR RAUTENBACH: The date seems to be the 4th of July?
GEN VAN DER MERWE: That is correct.
MR RAUTENBACH: And this seems to be the first time that the attorneys notified the legal representatives that Bopape seemed to have escaped?
GEN VAN DER MERWE: That is correct.
MR RAUTENBACH: If we look at the next page, 670, it seems that once again it's a telex from Cheadle Thompson and Haysom to the Commissioner of Police and it basically, in the last paragraph it says
"We wish to say that we are somewhat concerned that we were only informed on 4 July of our client's escape, when he appears according to your correspondence, to have been exempted from the provisions of Section 29 on 12th June 1988"
MR RAUTENBACH: Do you confirm that it was the 4th of July?
GEN VAN DER MERWE: That's correct.
MR RAUTENBACH: We know that it's quite factual that the first news concerning Bopape which was granted to his legal representatives or attorney and I accept also to his family is the 27th of June, is that correct?
GEN VAN DER MERWE: Yes.
MR RAUTENBACH: And the case concerning his escape, this only gives the information but that is only given on the 4th of July to his attorneys and his family members?
GEN VAN DER MERWE: That is correct.
MR RAUTENBACH: General, what I would like to ask you is, in connection with the death of Stanza Bopape - I would like to put it first, that news that he had died, you could have released it after the 16th of June but you waited until the 27th before you informed the legal representatives what the position was and until the 4th of July to say that he has escaped. You could have told them about his death at any time after the 16th?
GEN VAN DER MERWE: No, definitely not. The instant when the divisional detective handled this thing, not the security branch, they arranged that the family immediately be notified and subsequent inquest and then the state pathologist and the district surgeon would be informed. It was out of our hands, there was no method in which we could have influenced this process or have diverted the path of it as what the normal was at that time.
MR RAUTENBACH: What I have to tell you General is that I find it, and I say with all respect, I cannot understand that in these circumstances it was easier to destroy a corpse than just to use your influence as security chief? You had support of the government and you say you were in a state of war, yet now you tell me that you could not use your influence just to withhold the news of his death a few days so that the 16th of June could be taken out of the picture.
MR RAUTENBACH: It's so simple that I cannot understand how Mr Rautenbach cannot grasp it. Firstly, the district surgeon is informed, a series of other persons are always informed and under those circumstances if you thought that I could manipulate everybody there then I think you overestimate my abilities as chief then. Not even the state pathologist would be manipulated in this matter, there was no way that that could have happened. Every district surgeon and every State pathologist could confirm that they would not have let themselves be manipulated.
MR RAUTENBACH: General, you would have been in a position today where you could say that instead of explaining why you destroyed a corpse and why you covered up the death of a detainee, you would have been in a position where you could just have had to explain why you had to wait a few days before you released the news of a detainee and that would have been because you said the 16th of June was of great concern but you would have been in a much better position than you are today.
GEN VAN DER MERWE: Mr Rautenbach is not listening to me. There was no manner in which we could stop the family from finding out that the person was dead. We could not stop an immediate death inquest. If you look at the inquiries that were done then, the ANC would have exploited it immediately. We had to release a press statement and there was no way that I could influence all these people who were concerned here or manipulate them to say: "Don't follow the normal procedure, just wait until after the 16th of June because there is a specific reason why we cannot do it now", it was not possible.
MR RAUTENBACH: So what you're actually saying - that is the answer you stay with, it was not possible within the framework of the South African police to keep the death of Bopape quiet until after the 16th?
GEN VAN DER MERWE: If we used the normal procedures, definitely not.
MR RAUTENBACH: You see General, I would put it to you at this stage already and I would like to return to it later, there's a strong possibility that the reason why the death of Bopape was withheld and that is because he possibly, that his body was in such a state that it would have been a much greater embarrassment for the South African police than it would have been to get rid of the body, what is comment on that?
GEN VAN DER MERWE: Chairperson, I would say this is far fetched. In the light of the members who did the questioning, did questioning every day of their lives. They were of the procedures that they had to follow when a person was placed back in the cells. They knew that such a person was visited every hour by another member or officer other than the security branch. They knew that such a person could be visited by a Judge or by the district surgeon. So such a person that would go and act in the manner that he would assault or torture a person in that manner, that his body was in such a state that it had to be done away with, it would have been illogical. No member of the security branch would have made himself guilty of such an act.
CHAIRPERSON: General, just on that line, just working on an assumption now. Presume that a deceased at that time died of a heart attack while sitting in his cell, an entirely natural death, not during the course of an investigation, a young man died of a heart attack, would that have been covered up as well?
GEN VAN DER MERWE: Definitely not. Even in these extraordinary circumstances I had no doubt that if Soweto Day wasn't just around the corner then this matter would have followed the normal procedures. Even if they put it they were subjected to the normal inquest in such a manner.
According to my conviction and my opinion, that this electrical shock was used, it could have played a part in the death and it would have come through in an inquest but with the focus on Soweto Day around the corner and all the risks connected with that, it couldn't follow the normal procedure.
MR RAUTENBACH: Am I correct if I say that Soweto Day during the 80's, there were celebrations on the 16th of June and there were protest actions and stay-away actions?
GEN VAN DER MERWE: That's correct.
MR RAUTENBACH: This happened every year?
GEN VAN DER MERWE: That's correct.
MR RAUTENBACH: So the chances that the - couldn't the security branch prepare for this day and make the necessary arrangements to be ready on this day?
GEN VAN DER MERWE: Yes, but it is still so that Soweto Day as with all the other occasions, the ANC had to do much from its side to evoke the masses around this day to have celebrations. Later there wasn't much interest in it but much was done to evoke the emotions of the masses. Anything that they could use around this day, could take it out of this day or to enlighten from this day made a difference.
In this matter we know during 1988 where they were focused on to commemorate this day except for the previous year where we saw the two days was enlightened around those two day, the death of Mr Bopape would have been a golden opportunity and I have to stress that they would have used it if he died under unnatural causes and I don't doubt that the possible, they could have possibly used this to their advantage.
MR RAUTENBACH: I'd like to refer to your statement, page 11 and 12 at 7.4. This is still what I'm busy with, paragraph 7.4. According to General Erasmus Mr Bopape was held at John Vorster Square in accordance with Section 29 because he was suspected of being a trained terrorist and he linked with other ANC suspects and was involved in certain limpet mine incidents. I'm reading from Exhibit N. ...[No English translation], where did you get that information from?
GEN VAN DER MERWE: I have to say honestly if I can remember our discussion although this discussion happened 10 years ago and my memory is vague, initially I did not mention it but as we had discussions some of the memories came back and as I could place it in that time, that was one of the things that General Erasmus mentioned to me.
MR RAUTENBACH: If I understand correctly General, it is something that you initially when you were confronted with this situation, mainly the fact that amnesty applications would be handed, that you wouldn't have remembered it but during discussions with General Erasmus this came back to you?
GEN VAN DER MERWE: That's correct.
MR RAUTENBACH: So what came back to you was that General Erasmus told you that this man was linked to certain limpet mine incidents?
GEN VAN DER MERWE: As I said, yes he was linked with ANC suspects and he was linked to certain incidents.
MR RAUTENBACH: And that was information that he had to get from Colonel van Niekerk?
GEN VAN DER MERWE: I don't know where he got the information from but he probably would have got it from the people who worked in this incident.
MR RAUTENBACH: We now know from the testimony that Colonel van Niekerk had said he linked with General Erasmus. ...[transcriber's own translation] If we look at 7.5 and if we look back to 7.4 we are dealing with the discussion between yourself and General Erasmus. 7.5 reads as follows
"Members who did the questioning used electric shocks and Mr Bopape according to what was told to me, almost immediately died from the shocks of a heart attack"
GEN VAN DER MERWE: That is correct.
MR RAUTENBACH: That is the information that was given to you by General Erasmus during this discussion?
GEN VAN DER MERWE: No, in my previous statement I said that General Erasmus said that these people are concerned concerning the subsequent reaction because of Soweto Day being around the corner and they expected that the consequences would be far reaching and they did not see the road open, they would not want to carry all these consequences.
MR RAUTENBACH: I think you misunderstood the question. I'm not trying to tell you that, is that all that was said to you, I'm just trying to find out what was said during this discussion. I'm dealing with paragraph 7.5 right now.
GEN VAN DER MERWE: Yes.
MR RAUTENBACH: The question was then, you were told by General Erasmus that the members who were involved with the questioning used shocks and almost immediately after he was administered the shocks he died of a heart attack or suspected heart attack?
GEN VAN DER MERWE: That's correct.
MR RAUTENBACH: And at that stage already it was put to you that Bopape possibly died of a heart attack, isn't that correct?
GEN VAN DER MERWE: That was caused by electrical shocks, yes.
MR RAUTENBACH: Tell me General, I just want to find out from you, the following paragraph let's look at that.
"I was also notified that with the exception of the marks on his wrists there were no other marks on his body. General Erasmus also informed me that he did not see the body himself but he had to go on the report that the members gave to him"
It seems that you were told that there were no other marks on the body?
GEN VAN DER MERWE: That's correct.
MR RAUTENBACH: And as far as you understand the situation there were no marks on the body and the man possibly died of a heart attack. Did you think what the consequences of an inquest would be if there were no marks on the body?
GEN VAN DER MERWE: After 30 years or so in the security branch you realise immediately the risks in connection with such an inquest. It didn't take a long analysis that where electrical shocks were administered those electrical shocks led to the heart attack and that an inquest would point this out.
These members were concerned with the incident, it was immediately reaffirmed and because of that they realised that it does not matter what the factual, the facts of this matter was and there was, I could not determine what the sense of it was. We had a situation here where the consequences of the normal procedures, the death inquest had to, we had to weigh this up against the other choice which was a better choice to destroy the corpse.
MR RAUTENBACH: General, what I'd like to know from you now regarding or concerning the fact that we've got this information now, at that stage if you then said go ahead, have an inquest and as the members who were involved were concerned there's an investigation at hand and they were, should be in a situation where they don't say anything until the inquest is completed and you'd find a report from the inquest and you could not have determined that there were electrical shocks and if you, if they could determine that there were electrical shocks and that he might have died from a heart attack from that then you could have withheld the news until after the end of the 16th of June.
GEN VAN DER MERWE: Do I accept then that we accept the whole situation as if it was a normal death and then, and we try and treat the whole occurrence until after the 16th and then we confront the members and say: okay, now we're going to have an investigation?
MR RAUTENBACH: No, what I'm asking you is this, and this often happens. A case is investigated, there's an investigation - we're not giving information at this stage, we're only an investigation, couldn't you have done that in this case? Could you have not said: "Look we had an investigation and we wanted to postpone it until the, delay it until after the 16th of June"? It would have been easier and you would have been in a better situation than you are in today.
GEN VAN DER MERWE: No, we were involved with a lot of these occurrences, there was no way that you could have done it that way. The moment you contacted the division head detective then you had to go step by step and you had to make very sure that whatever you say is going to be the truth and that you can reconcile yourself with the truth, otherwise you caused a great embarrassment for the police and you also run the risk to be accused of perjury.
There was no ways Erasmus could have gone back to those guys and said: "Look keep quiet, we're not going to say anything until the 16th of June and after the 16th I will make it known that you told me what happened and then we'll take it further". It was impossible to do it like that.
JUDGE NGCOBO: General, just on that point, if you talk about: "as far as that is concerned, we were involved with a lot of these cases", to which cases do you refer?
GEN VAN DER MERWE: I'm talking about deaths in detention where a death took place in detention, the first and most important aspect was to contact the head detective and then to make sure that every step, that you go step by step and at an inquest where people have to testify under oath, it's very important and quite serious and every issue is looked at in depth.
JUDGE NGCOBO: In how many of these cases were you involved?
GEN VAN DER MERWE: Chairperson, I was involved, when I say involved I mean from the perspective of head of the security branch. I'm talking about general deaths because what applied to detainees under Section 29 also applied to those under the State of Emergency. It would be very difficult for me to give you an amount. I tried to get the statistics but I couldn't but I'd say round 7, 8 or 9 of these incidences I was involved in.
JUDGE NGCOBO: Thank you.
MR RAUTENBACH: General, is it possible to tell us, in that year the 16th of June up until the 16th of June 1988, if we look at people who died in detention in South Africa, either those kept under Section 29 or people detained in terms of the State of Emergency, can you give us an estimate?
GEN VAN DER MERWE: Chairperson, I did try to find statistics but they couldn't give it to me. I cannot estimate because it will be misleading. I really do not know.
MR RAUTENBACH: If I - would you accept it if I tell you that there's a probability that more than one person died in detention? We don't make a distinction between emergency measures and Section 29.
GEN VAN DER MERWE: There definitely must have been people who died. Last week I read in the paper that I think, round about 33 people died in detention last years, so a lot of people do die in detention.
MR RAUTENBACH: Now the question that I have to ask you is, of those people who died in detention you say that there definitely were people who died in detention during that time span? Those people could have been used as well, those people could also be used and exploited by the ANC to say people have died during this year under police protection or in police custody?
GEN VAN DER MERWE: No, it could not have been the same. It could not have caused the same emotional response. If a person who was kept under Section and presumably died from unnatural causes then I can tell you that a lot of papers and the ANC would have said that these people were murdered in the circumstances in which Bopape found himself and the climate in which we found ourselves.
Any death in detention cannot be compared to this specific case where there was a possibility that it was unnatural because of violence. I can assure you there were not many cases like that where people died because of violence or where there was an opportunity for the ANC to exploit it or to use it in that sense.
MR RAUTENBACH: Can we accept that in the year we've spoken about, the 16th of June '87 to 16th of June '88, these people who died in detention a lot of them died from irregular measures applied to them during questioning?
GEN VAN DER MERWE: Yes, but then the normal procedures were followed and the circumstances were of such a nature that the opportunity was not there for the ANC to exploit it, remember this was four days before Soweto Day. So to say that any death in detention can be compared to this specific incident is not true.
MR RAUTENBACH: Am I not right if I say that all that you could have done after the 12th of June, in spite of the fact that there was an investigation or an inquest, was only not to let the family know about it before the 16th and not to have a, to give a report to the media, that is all you had to do?
GEN VAN DER MERWE: No. He don't seem to listen to me. There was no possibility to do it in such a way regarding this specific incident.
MR RAUTENBACH: You can give us the impression, and maybe you can correct me if I'm wrong, that the security police can make themselves guilty of dirty tricks but as soon as we come to the normal police force then we follow the relations so closely and adhere to them so strictly that the security police cannot get away with it?
GEN VAN DER MERWE: No, Chairperson, the truth is that the South African police worked under very difficult circumstances and tried to act in such a way that they was acting in the interest of the general community. And because of that reason we also realised that if we allowed that people should be tortured left right and centre and killed, worse than what happened in Bosnia, then it would speak for itself If we did not adhere to those measure and regulations then I can assure you that it would have been a great percentage, a big percentage of people would have died.
MR RAUTENBACH: So what do you say General, concerning the evidence of van Loggerenberg as well as Zeelie who indicated that this question of illegitimate questioning and assaults during questioning, it was something that they picked up and heard about in other divisions of the police. In other words, that you found this practice all over, in all the divisions of the police, it's not something that only happened in the security police?
GEN VAN DER MERWE: Chairperson, as I've already said before, each member of the police made himself guilty of such behaviour and it is so that yes, as far as certain persons are concerned people had different points of view concerning this but the police of the South African police was very clear.
This type of occurrence does not only happen within the South African police, it happens with police forces all over the world.
MR RAUTENBACH: Then I would also like to ask you, you also heard the evidence of both van Loggerenberg and Zeelie with regards to - before I ask you the question, I think you already admitted that these practices did take place in order to obtain information, and I'm talking about information within the security branch now, is that clear?
GEN VAN DER MERWE: Chairperson, I already gave evidence that it was well-known that where members tried to obtain information in order to save other people's lives there was sympathy towards those kinds of behaviours, meaning assault.
MR RAUTENBACH: And you were aware of the fact that it happened now and again?
GEN VAN DER MERWE: Yes, as you are aware of anything that appears, that happens, by means of investigations and information that comes to the fore afterwards. Yes, I knew about them.
MR RAUTENBACH: Did you also know General, and once again I refer to the evidence of both van Loggerenberg and Zeelie, that people in Courts and policemen in Courts told lies about assaults and that people were found guilty because of that?
GEN VAN DER MERWE: Chairperson, that it could have happened is obvious. I do not know of specific incidents but I would just like to put it clearly, the way I understood the evidence and specifically that of Captain van Loggerenberg, it was not on the basis of the grounds that the, it was on the basis of the lies he told that a person was found guilty, he just lied about the assault but the evidence was not part of the merit of the whole case, people were found guilty on other grounds.
MR RAUTENBACH: If we look at the evidence of Zeelie then it's quite evident, have a look at internal trials. As you'd know yourself, as far as internal trials are concerned, it was very important that the statements that were made were made voluntarily and therefore they had to deny that assaults took place, we are talking about internal trials which is used in evidence?
MR VISSER: Mr Chairman, may I just say - may I express the hope that we will return to the merits of this application at some stage or other?
CHAIRPERSON: I think Mr Rautenbach, the General has said that he's aware that policemen have come to Court and have not told the truth with regard to the way they got evidence, I don't think we need to dwell too long on that. I think I can anticipate what the next line of your cross-examination is going to be.
MR RAUTENBACH: General, if we just return to what you've told us. You explained to us that if the normal procedures were taken, there's a death and then the division head detective comes to the case and then we will have an inquest etc., then you are saying to us it would have been impossible to withhold the information that would have come to the fore. Do you remember that?
GEN VAN DER MERWE: Yes.
MR RAUTENBACH: How was that possible in the light of that evidence that here we have an escape or an escape is created but this procedure you followed now concerning the escape, how could there be feedback only on the 4th of July and the first of any feedback only on the 27th of June? That does not rhyme with what you said regarding a death in detention for example.
GEN VAN DER MERWE: There was never an effort to keep this escape secret. In fact we organised the escape in such a fashion in order to present it as quite normal. Maybe the members involved here could explain it to you but I cannot explain why the information was only given at that stage but as far as I understand the evidence, that's how the facts of this matter are.
The escape was done in such a manner that it became known as quickly as possible and the steps taken afterwards were done in such a fashion that this escape had to seem as normal as possible. We didn't try to hide the escape, it would have been pointless.
MR RAUTENBACH: You are confronted with what you call an extraordinary situation, you have never before given an instruction that a body should be destroyed. For you and the police you were in and the position you were in it was a very hefty decision to take. Why in those circumstances did you not keep yourself involved with the case in order to make sure that the information became known as quickly as possible that this man has escaped? Why did you sit back?
GEN VAN DER MERWE: Certainly that could have been the worst thing to have done because for me to have influenced the situation, and I think the history proves this, the best way would have been to let this thing take its normal course.
It's part of the normal procedure but as soon as I or somebody else tried to influence this process then you affected a normal course of events and you destroyed it in a sense.
MR RAUTENBACH: At that note General, you never worried, you yourself now, that the escape was not believed by the public?
GEN VAN DER MERWE: Chairperson, I left this to General Erasmus. He was the most experienced divisional commander within the security branch. I had complete faith in him and really I honestly never doubted that the case would handled in the correct manner, I was not worried.
MS GCABASHE: Mr Rautenbach? General, if you explain the normal procedure that would take place once a person had escaped, you've referred to the relevant desk dealing with any correspondence that might come in, but there must have been a normal procedure that kicked in once somebody escaped, what was that?
GEN VAN DER MERWE: Chairperson, the circumstances would determine which steps should be taken but if a person escaped then the normal practice would be, firstly you would immediately contact all your members who were involved with the suspect, you would also contact all the family members of the person who escaped and then you would also use all the methods as far as possible to make the escape known.
It would differ from case to case. You'd let your border posts know that somebody escaped. It also depended on your investigating officers themselves because each one would have used his own initiative to decided what would be the best way to handle this escape.
And you must also remember that these escapes were afterwards handled by the detective branch and not by the security branch. So it went its natural course and the scene of the crime was also investigated by members of the detective branch. So if it was about the escape and the procedures then I could give you a good account of what would happened. As far as the escape was concerned, there was no deviation from the normal procedures.
MS GCABASHE: Do you have any explanation therefore as to why the attorney for instance were not informed of the escape when they made inquiries, which they did?
GEN VAN DER MERWE: Chairperson, there could have been a great many reasons for this. I do know because I did not handle it myself but the relevant members who handled the situation, if they remember correctly they would be able to inform you about this.
It could have been working circumstances because you have to know at that stage, the specific desks for example had masses of work and it could have been because of their workload or for some other reason, they did not react quick enough. There could be a great many reasons for that but I think there was no primary reason for that.
I think you would be able to determine that because the whole procedure taking place when a person escaped can be explained to you completely.
MS GCABASHE: But would it be correct to say that that particular desk would have access to the file? If they would be able to say Bopape was exempted from the provision of, it meant that they had access to that file. They could find out if they asked of their seniors, what exactly was the case in this particular file and when they then responded they would be able to reason on the basis of the facts contained in that file, is that a correct assumption?
GEN VAN DER MERWE: Yes, Chairperson, they would have had access to the files but we do not know what were the specific circumstances. Yes, they would have been able to gain access to the files but like I've said, why they reacted the way the did is difficult to explain if you do not know what their specific circumstances were.
ADV DE JAGER: General, just to link to that. The correspondence was directed to the Commissioner's office and at that stage it was General de Wit, if I analyse your list correctly. What was then the procedures if it arrived at his office, does he then do an inquiry or his division or is it then sent to the people who physically worked with all of that or how is it handled within the Commissioner's office? You were yourself a Commissioner so maybe you can help us.
GEN VAN DER MERWE: Chairperson, no it's on the address. Even though it's directed to the Commissioner it arrived at the security branch and the security police's postal address was the same as that of the Commissioner, it was registered under the Commissioner so these things came directly to the security branch.
INTERPRETER: The speaker's microphone is not on.
ADV DE JAGER: How long did it take when it got to the relevant department?
GEN VAN DER MERWE: Well, it would depend on the extent of the inquiries and the postage etc., and the other documents, so it's very difficult to determine. I cannot give you a time. I'd rather not guess that but it could have taken a while.
CHAIRPERSON: Yes, thank you. I think this would be a convenient time to take the tea adjournment. I see it's just past eleven. We'll take a short adjournment for tea.
COMMITTEE ADJOURNS
ON RESUMPTION
GEN VAN DER MERWE: (s.u.o.)
CHAIRPERSON: Mr Rautenbach? I'd just like to remind you gentlemen that the interpreters have to interpret so if you can just bear that in mind when you give evidence and go a bit slower, thank you.
MR VISSER: Mr Chairman, may I be allowed to say something which may be of assistance. The reason why I'm choosing this moment is that it relates to the question Miss Gcabashe asked of the General as to the procedure which was followed or supposed to be followed ...[intervention]
CHAIRPERSON: ...[inaudible] procedure.
MR VISSER: Yes. In fact, and we haven't deal with this yet, in the new set of documents, the Volume 5 documents you will find a memorandum and perhaps this may assist my learned friend as well, at page 39 and following.
Now this memorandum Mr Chairman, under the caption:
"Memorandum"
it refers to the 13th of June 1988 which prima facie appears to suggest that this is a memorandum which was drawn on that date and it was drawn by van Niekerk, now does that appear from this document? Well it doesn't appear from the document but I'm told that van Niekerk is the author of this document.
There you will find exactly the steps which were taken. I don't want to labour the point but here you will find from the horses mouth as it were, what steps were taken. And as far as the history is concerned, if you turn to page 40 and you draw a line under paragraph 16 just before paragraph 17, from that point onwards was the time when the simulated escape is dealt with.
Mr Chairman, I just thought, and you must forgive me if I'm out of turn, that I would draw your attention to this document. At page 42, paragraph 42 the procedure is specifically set out, where it is stated:
"The following police procedure was followed because of the escape namely
(a) Local reaction unit of Vereeniging were called for a large scale search
(b) Local dog units were used in the search
(c) All border posts were notified telephonically which was followed up with an urgent written notice"
and then it's very illegible ...[intervention]
CHAIRPERSON: ...[indistinct] photograph was ...[indistinct]
MR VISSER: Yes, yours is obviously more legible than mine.
"possible known addresses where Bopape could have gone to"
Yes, I'm afraid Mr Chairman, I can't really be of assistance.
CHAIRPERSON: No, I think you've ...[intervention]
MR VISSER: But the point here is that these were the procedures that were immediately put into place.
MR RAUTENBACH: Mr Chairman, I don't want to take that any further, I just think that the question by the member of the Committee actually goes a bit further and that is as to what procedure should be followed when a person had escaped, as far as the public, as far as the family is concerned and these things but I don't want to go further with that point.
CHAIRPERSON: Yes.
MR RAUTENBACH: I will carry on.
General van der Merwe, the decision that was taken, you spoke of: "our decision", that's yourself and General Erasmus as I read it here. If I understand it correctly you discussed the situation and together came to a decision, you came to consensus, or did you suggest it or did General Visser suggest it?
CHAIRPERSON: General Erasmus, not Visser.
MR RAUTENBACH: I beg your pardon.
GEN VAN DER MERWE: It's obvious General Erasmus came to me with a viewpoint. It was a dangerous situation or a dangerous situation would be created if we followed normal procedure and we had to weigh up an alternative and after we weight the alternatives we came to a decision and we were forced into this position and we accepted it, therefore we made a decision. I could not tell you that I decided or General Erasmus decided. The fact remains that eventually I gave the permission that we could follow that procedure.
MR RAUTENBACH: The fact of the matter is, do you accept that General Erasmus via whoever the members were he would have notified them and that they would be notified that the Commissioner gave his permission for the plan.
GEN VAN DER MERWE: Not the Commissioner, the branch chief. That is how I understood it.
MR RAUTENBACH: What did you do General, I assume that you would not have been satisfied with the situation, the facts that were put to you? Am I correct in saying that?
GEN VAN DER MERWE: That's correct.
MR RAUTENBACH: What did you do in order to address the situation?
GEN VAN DER MERWE: Chairperson, I immediately realised that the members who were involved were aware of the problems that they found themselves in and that the police were also in, as well as a dangerous position that could have come about if this matter was handled in the wrong manner.
I know also that any person who was involved in this would never in his life repeat this mistake, I did nothing further.
MR RAUTENBACH: ...[inaudible] in future would never make the same mistake, while the Commissioner helped them out in the trouble they were in?
GEN VAN DER MERWE: No.
MR RAUTENBACH: Or the security branch chief would help them?
GEN VAN DER MERWE: No. I think if you listen to the testimony of these persons, any person in the practice who had dealt with such a matter knew all the problems that arose from this and it was not worth their trouble and he would not make the same mistake again. The idea was not to help them out of trouble but it was to make sure that the same, the thing did not get any worse.
MR RAUTENBACH: General, it actually boils down to the following then, these persons did something which was illegal, they come to the Commissioner, a plan is made ...[intervention]
CHAIRPERSON: I think you mean the head of the security branch?
MR RAUTENBACH: The head of the security branch. A plan is made, what was the message that they had to get, with this situation that it gets to the chief of security and permission is given to get rid of the body, what message did they get from this?
GEN VAN DER MERWE: It's probably difficult for Mr Rautenbach to understand but these persons who were prepared to put everything that they had just to further their cause and they were loyal to their task or branch and they could not have got any other impression that there was a problem here and in their whole lives they would not make the same mistake again.
MR RAUTENBACH: Can I just put it to you clearly, that the fact that you allowed them to dispose of the body and did nothing else, I would like to put it to you then that it would have just brought one idea to them and that is that you appraised or condoned their behaviour.
GEN VAN DER MERWE: Even if this idea was brought about by them, that I condoned their behaviour, they would have realised that that action could create further problems. I had no doubt that they understood it as such and I can assure you that those members did not make the same mistake again.
MR RAUTENBACH: Did you not even realise General that at least to get these members together and to put it to them that you or the fact that you went along with this plan to dispose of the corpse, that this was not condoned? Did you not realise this?
GEN VAN DER MERWE: Firstly, General Erasmus was the immediate chief of these members and in which manner he wished to put it to them I left it in his capable hands but secondly I did not doubt it any further that the reason was that these members learnt a very good lesson.
JUDGE NGCOBO: As I understand your evidence, any form of torture in detention was prohibited by the police of the government and particularly the police force, that is right?
GEN VAN DER MERWE: That's correct.
JUDGE NGCOBO: And I think you also mentioned that there were certain safeguards to ensure that detainees were not exposed to torture such as the visit on a fortnightly basis by the Magistrate, the taking of the complaints and other safeguards?
GEN VAN DER MERWE: That's correct.
JUDGE NGCOBO: And I get the impression that you personally, as an individual now, you strongly disapproved of any of these kinds of methods?
GEN VAN DER MERWE: Chairperson, I did not use these methods myself. It's not that I strongly disapproved of it, I said that I had comprehension that there were situations where members were guilty of these acts but the fact remains I did not condone any of these behaviours.
JUDGE NGCOBO: I think what Mr Rautenbach wants to clarify is this, if you are - and I gather that you were, were you the head of the security branch at that stage?
GEN VAN DER MERWE: Yes.
JUDGE NGCOBO: Now if the members of the lower ranks get the message that the head of their branch is prepared to cover up something that is prohibited by the police regulations or policies, if you wish, the perception that that may well create in the minds of these officers is that perhaps this rule only exists in the books but it need not be observed?
GEN VAN DER MERWE: Chairperson, firstly this incident was limited to the members who were involved here so it could not, it was not the general perception and it would not involved other members.
Secondly, I have no doubt that these members learnt from this experience and it would not be to their advantage to call these members in and tell them: "Listen, what you did I cannot condone it". They did realise it so actually under these circumstances it would have been of no use.
JUDGE NGCOBO: I understand that but all I'm asking you General is about the perception that your conduct was likely to create. Do you accept that it may have created the perception that you were condoning these conducts?
GEN VAN DER MERWE: Chairperson, obviously these people would have accepted that this particular behaviour of theirs, that I condoned it. I don't think it would be any other way. On the other side I would have, I thought that they would have realised that they handled incorrectly and that it must not be repeated because of the problems that it caused.
JUDGE NGCOBO: At the time when you engaged in this process of cover-up, did it occur to you that you may well be creating a perception in the minds of the officers now involved, that in certain circumstances the branch may be prepared to condone a behaviour that was prohibited by the police and the rules of the police? Did it occur to you at that time?
GEN VAN DER MERWE: Chairperson, can I just explain. Already in my testimony I've said it at more than one instance that every member of the security branch knew that whatever he does if he used violence he would have to bear the consequences himself.
Every member of the security branch just has one objective and that is to perform a certain task to the best of his ability. I had no doubt that these members realised that here we had to deal with extraordinary circumstances. If the circumstances were different they probably would have borne the consequences themselves and the normal procedure would have followed.
I knew that here we had to do with responsible members, that members of the security branch found themselves in circumstances everyday where they necessarily had to do with certain, where they were confronted with certain circumstances and members who could deal with these circumstances were, they were extraordinary members, they were not ordinary members. I had no doubt that if members, that because of my - that they could left and right do anything that they wished and I would condone it. There was no danger of that because I can assure you that these members, if we look at what they contributed to the security in this country they performed excellently.
JUDGE NGCOBO: In short, are you saying that it never occurred to you at the time that you might create the impression in the minds of these members that this kind of conduct might be condoned in future?
GEN VAN DER MERWE: No, I had no fear that these members because of their behaviour would come to the conclusion that they would make themselves guilty of misdeeds and I would condone it.
JUDGE NGCOBO: ...[inaudible] is that the reason why it just didn't occur to you that you should call these members or at the very least request General Erasmus to convey your displeasures to these members at this kind of conduct and express the hope that they will not repeat it in future so that there cannot be any doubt as to your attitude and that of the department on this kind of behaviour by police officers whose duty it was to uphold the law?
GEN VAN DER MERWE: No, Chairperson, I didn't deem it necessary. I didn't think that there was a better manner for them to learn this lesson as just the problem that they had to deal with and the consequences that followed.
JUDGE NGCOBO: Thank you Mr Rautenbach.
MR RAUTENBACH: General you've heard testimony concerning the electrical shock device by these members and I would like to put it to you, it seems that these members had no knowledge of what electrical current was conducted?
GEN VAN DER MERWE: That's correct.
MR RAUTENBACH: And it seems further that they had no knowledge of how much or in what time period the electrical current had to be used to cause death?
GEN VAN DER MERWE: That's correct.
MR RAUTENBACH: Did you, because of the fact that this person died, just accept that these members would not use electrical shocking devices in future?
GEN VAN DER MERWE: Chairperson, I had no doubt that they would not use the same method in future.
MR RAUTENBACH: You've heard their testimony then that this was, this had never happened before, this was a freak accident where a person's death was caused?
GEN VAN DER MERWE: Well, as far as they are concerned.
MR RAUTENBACH: Isn't it then necessary that steps had to be taken to say that: "Listen, to use this type of apparatus, it cannot be done"? That they had to realise they cannot use this device again?
GEN VAN DER MERWE: Chairperson, repeatedly we focused on this, that no violence should be used, the one is just as dangerous as the other. It would not have made sense to afterwards say: "Listen, don't use shocking devices". There was an instruction and I've dealt with this. It would have made no sense.
MR RAUTENBACH: We know already as you have told us, that such an impression could be created and you did nothing to tell them that their behaviour was not condoned, in other words, to neutralise their impression, we know that already. But the question that follows on this is that you've now heard from General Erasmus of information that was put to him of what happened. Did you do anything else to find out exactly what had happened, what exactly had happened there?
GEN VAN DER MERWE: No, Chairperson, the information that I received from Erasmus I accepted. It would not have been possible from my side except if you wanted to follow the normal procedure, to do any more concerning this case. General Erasmus described the situation to me, I accepted that and on grounds of that I made my decision.
MR RAUTENBACH: General, let's accept that the decision was taken and the decision was to dispose of the body, the decision was taken and was going to be executed, at that stage did you not deem it necessary by means of Erasmus or whoever, to try and determine exactly what had happened or did you simply decide that you are not going to ask questions about this incident?
GEN VAN DER MERWE: Chairperson, whatever happened further, what the other circumstances might have been, could not affect the facts that I had to take into consideration so I didn't deem it necessary.
MR RAUTENBACH: General, you've heard in evidence, that of van Niekerk and several other of the members of the security police, that the electric shocks that were applied were two or three light electrical shocks and that they were quite surprised when this person died.
GEN VAN DER MERWE: That's correct.
MR RAUTENBACH: It was also told by General to you by General Erasmus, was it also put to you in that light that it was an unexpected death, that it was only light electrical shocks that were applied, two or three of them and then the person died? Did General Erasmus tell you this?
GEN VAN DER MERWE: That's correct.
MR RAUTENBACH: And then once again to link up with my previous questions I want to ask you, at that stage did you not think that this story that was given to you, that it was light electrical shocks and the person died, did you not think it was necessary to further investigate about what had happened? You couldn't just simply swallow this story, didn't you have to think about it and thought it a bit suspicious?
GEN VAN DER MERWE: Chairperson, I really can't see what I could have done if I'd said to Erasmus if I'd said: "Go back, have a look at the body and come back and tell me whether there might have been other factors we have to take into consideration". Mr Bopape died, there were electrical shocks applied and if those electrical shocks were worse or lessor made no difference to the circumstances we found ourselves in. We had to handle that situation and I really cannot see what I could have achieved by further investigating the matter.
MR RAUTENBACH: But General this boils down to the following: that if, and once again I'm sketching a hypothetical situation, if Bopape was tortured to death, I know it's hypothetical but let's say he was kicked and he was beaten and his arms and legs were broken and he died under the most intense torture you can think of and you are told that the person died in detention, then it would seem as if your answer implies that it did not really matter to you if Bopape died unexpectedly because of light electrical shocks or if he died because of intensive torture. That is how I understand your previous answer. Would you like to comment on that?
GEN VAN DER MERWE: Yes, Chairperson. Firstly, I already told you that according to my experience and also according to all assumption there was no reason whatsoever to think that such a situation as the one you've just described could have existed. Then people then must have been completely made.
So in my wildest dreams I did not think that such a thing could have happened, so it's something I did not consider at all. What I accepted and it which would seem logical was the explanation Erasmus gave me and I stuck to that.
MR RAUTENBACH: But you didn't question any of that which happened? It didn't seem strange to you that a person in these circumstances would die in such a manner?
ADV DE JAGER: Mr Rautenbach, didn't he already tell us that he did not investigate it further because he didn't believe it and it didn't matter to him, that whatever the reason might be he did investigate it further? And you can argue with certainly that he was, he neglected doing it or whatever it is, but the factual situation on his evidence he didn't do it and we can blame him for that or we do not have to blame him but those are the facts.
MR RAUTENBACH: Let me just put it clearly. The reason for this line of questioning is to indicate that one of the possibilities that could have existed was that even General van der Merwe, also a possibility which I want to put forward, he might have been misled in the process as well and that is why I'm asking the question, that is something we cannot exclude.
ADV DE JAGER: Does that effect his application in any sense?
MR RAUTENBACH: With all respect, I do not think that we have to look at a restrictive basis just to look at the facts, we have to do everything within our power to get down to the real facts of the matter. And also according to other evidence which should still be led I think it is important to look at this possibility and that is why I did that.
ADV DE JAGER: And if there is such evidence which must come to the fore I would like you to put it to him so we can see where we are going.
MR RAUTENBACH: With all due respect, you are completely aware of the fact that I represent the family and also I have to look at the evidence of those people who were present and therefore I have to look at all the possibilities and I have to make all the deductions, so it it's impossible for me, a situation cannot arise in which I put it to you that what happened there in that room is the following, I can never do that. In the light of my case it is nor possible ...[Transcriber's own translation]
MR VISSER: Mr Chairperson, I would also like to say something here. Mr Chairman, we have been very quiet, not objecting when we should really have objected and we've been listening but we find ourselves in the situation where to this moment we still don't know what Mr Rautenbach's basis for his objection is.
It appears Mr Chairman, that the whole of the cross-examination on the last occasion as well as the present one is nothing more than a fishing expedition. Now having said that, I'm not saying that I blame Mr Rautenbach for that because if he hasn't got instructions well then he hasn't.
All that we are suggesting, with great respect Mr Chairman is, clearly Mr Rautenbach is entitled to explore the avenues and see whether there may be other possibilities, but our objection Mr Chairman is that we wonder so far into the woods that we get lost. What we're dealing with here is what Commissioner de Jager has succinctly just put.
There are the requirements of the Act. This witness pleads guilty as it were to a crime. Now he says that the crime was committed in the following circumstances and the following factual situations then prevailed. Now one can blame him for it, that he shouldn't have acted that way, that he should have acted differently.
Mr Chairman, as we understand the Act and as we understand how the Amnesty Committee has approached the applicable requirements of the Act, it is not an issue that a person should have used less force or should have followed a different method. It doesn't come into the inquiry at all and this is what is happening here Mr Chairman.
Now General van der Merwe says: "I'm here before the Amnesty Committee for something which I did because" as he says: "I felt compelled to do that because of a political situation which pertained". It is really not constructive to attack him on what he rather should have done, especially not 10 years later in the calm atmosphere of a Commission of Inquiry which he didn't even know was going to result 10 years ago.
Really Mr Chairman, I don't want to curtail my learned friend but if my learned friend can just more or less get back to the requirements of the Act so that we can get on with it.
MR RAUTENBACH: May I respond as follows Mr Chairman, one of the issues before you and before your panel will be the issue of full disclosure. Now it's been a central theme of the family's case right from the commencement of these proceedings, that we do not accept the version as it was tendered here, that Mr Bopape died because of two or three electrical shocks which wasn't extensive shocks at all. That has been the theme all along.
The questions put to the General are based and are directed at establishing what was done when they received the news and when they received these facts as to how exactly Mr Bopape died during that interrogation. If it is so that the answers given, and I know this is also hypothetical, but if it is so that the answers given by the General does not make sense, that those answers are not acceptable and that there are other indications in the evidence of other members that that situation, to put it bluntly, just doesn't wash, then it is a crucial fact or a crucial consideration to take into account as to whether full disclosure took place.
And the questions that I put to the General regarding their responses, both Generals, to their responses when they got this information, is relevant, very relevant I submit, to full disclosure. And I know and I accept Mr Chairman that I can't as in all other issues just carry on indefinitely questioning him on this specific aspect but I submit that for the last 10/15 minutes I have questioned him on this very aspect as to what his responses were regarding the information he received and I'm still in that process. So, I must say with all respect, I don't think there is any merit in the objection. As it please you.
MR VISSER: May I reply in one sentence Mr Chairman. The complete answer to my learned friend's statement to you now is the fact that there is no material dispute on the evidence among all these witnesses because that seems to me the basis upon which his answer is based and there is no such dispute.
CHAIRPERSON: Mr Rautenbach, as Mr Visser says we realise that your cross-examination of the witness is not an easy task because you don't have any instructions from your clients as to exactly what happened both during the time of the torture and the cover-up. One can put dozens of actions that should have been taken rather than the action that the witnesses say they have taken. And for you to argue that the versions given by the applicants are improbable, you don't have to cover every single possibility or other reasonable action or more reasonable action that they should have taken in the circumstances by means of questioning. W
e don't want to curtain your cross-examination but there must be some limit. I mean one can say: "Well you could have done this", and ask a question for five minutes and say: "Well you could have done that", and ask for another five minutes and on and on and on until we never stop.
You don't have to cover every single possibility to allow you to argue on the number of points. So I would ask you please to, while understanding your situation, to keep it as close to the inquiry that we have to involved ourselves in as possible. I don't want to say that you can't cross-examine anymore because obviously there are other points you have to cover but you can put it to the witness that this is not acceptable and it's going to be argued that.
You could suggest perhaps one or two other reasonable steps that might have been taken or one would have expected would have been taken but I don't think we need to cross-examine for hours and hours on all the possibilities.
MR RAUTENBACH: I accept that Mr Chair, and I must say that up to now I have endeavoured not to dwell too long on some of these possibilities and other possibilities. I think I've dealt with most of them.
JUDGE NGCOBO: Mr Rautenbach, whilst we understand the situation, I think you just can't simply put it to the witness that that is not so. We would expect you to lay some foundation for that, perhaps in the form of cross-examination but bearing in mind that you may well be dealing at some point with collateral issues which you cannot pursue beyond the answer that you are given.
MR RAUTENBACH: Thank you Mr Chairman.
General, I would just like to clarify the following and that is with regards to the decision which was taken by you and General Erasmus. This decision you took was a decision which not only affected the South African police but it also affected the government of the day and indeed the Minister of Police.
GEN VAN DER MERWE: Yes, Chairperson it was in the interest of the country.
MR RAUTENBACH: You've also given evidence, and we accept that you had a good relationship with the Minister of Police who was Adriaan Vlok at that stage.
GEN VAN DER MERWE: That's correct Chairperson.
MR RAUTENBACH: The decision you took would have had certain implications for the Minister as well as for the National Party, correct?
GEN VAN DER MERWE: Yes, the decision was taken in order to protect their interest.
MR RAUTENBACH: A wrong decision would also have affected them, is that correct?
GEN VAN DER MERWE: A wrong decision yes, would have affected them in a negative fashion.
MR RAUTENBACH: The decision which was taken which was the disposal of the body eventually also had certain implications for the National Party, is that correct?
GEN VAN DER MERWE: Except for the fact that they had to deal with the matter, there were no negative consequences. I could just say that it made the whole situation much easier to handle and in the same way represented to them in that fashion.
MR RAUTENBACH: General, in the long term, because it happened when the National Party governed the country and seeing that Mr Adriaan Vlok was the Minister of Police and we've already heard your evidence about how close the National Party was to the security branch, then in the long term it must have had certain negative implications for the National Party. I mean now today?
GEN VAN DER MERWE: Chairperson, do you think it would have been better if Mr Vlok sat with me here?
MR RAUTENBACH: No, General, that is not the question. I'm basically only asking you, would you agree the decision whichever way it went, would have had implications for the National Party? That is all I want to know.
GEN VAN DER MERWE: Chairperson, I already mentioned what would have been the consequences if we took the wrong decision and we handled the matter in such a fashion that it would have enabled the ANC to exploit it and a subsequent inquest would have brought certain facts to the light which could have placed the government in a massive embarrassment. Except for that, it would have increased the revolutionary climate and there would have been a massive resistance. I think there's no comparison there. You know if I ask you about the images of the National Party, do you think the image of the National Party can be worse than it is now?
MR RAUTENBACH: I doubt that. But would you agree with me that if at that stage it was said that if something went wrong, if it came to light soon after you disposed of the body what the real facts were, it would have been an embarrassment for the National Party, do you agree with that?
GEN VAN DER MERWE: Chairperson, I would have been the person who would have been embarrassed, not the National Party. It would have been easy for the National Party, they would have got rid of me. I was the only person taking a risk, not the National Party.
MR RAUTENBACH: General, the question I would ask you, the position of the national forces and how they were used by the national government, then you must agree with me that the National Party would also have been in an embarrassing situation if Bopape's body appeared?
GEN VAN DER MERWE: Yes, obviously Chairperson, but it can't be compared to the consequences if we handled the case incorrectly and things went wrong.
MR RAUTENBACH: As I understand your evidence you said that the decision that you had taken was a decision taken in the interest of the nation and the country?
GEN VAN DER MERWE: Chairperson, I said it was in the interest of the government and that of public order.
MR RAUTENBACH: General, we will get to this again, but inasfar as it was in the interest of the government, did you at not stage see it as your duty to tell the relevant Minister here what happened, before or after the decision?
GEN VAN DER MERWE: I saw it as my duty not to do that because if I did that I would have made him vulnerable, I would have placed him in an impossible situation and that could have held negative consequences for him.
MR RAUTENBACH: You testified, and I'll use your statement, you indicated - I'm just looking for the correct paragraph, you refer to the team spirit between the government and the security branch and the so-called blind loyalty between the security branch and the government. As far as that is concerned, and we also know at this stage that COSATU House was already blown up, is that correct?
GEN VAN DER MERWE: That is correct.
MR RAUTENBACH: In the light of that and the close relationship between you and the government I'd like to put it to you that I find it very surprising to say the least, that you took a decision, according to your own evidence you were a partner with the government, and you take a decision which might affect their interest but they are not notified about that. I just put it to you.
GEN VAN DER MERWE: No, Chairperson, I took the decision to protect their interests and I did not want to notify them about that also in order to protect their interests. If I told Vlok about this it would have placed him in a very vulnerable, it would have placed him in a very difficult situation and it would only have been negative for the government and for Mr Vlok.
MR RAUTENBACH: One the reasons you've given was that you did not want to involve more people than were already involved.
GEN VAN DER MERWE: Yes, that's quite obvious, the more you can restrict it the better it is afterwards to maintain the mock or the fact that we had to do that.
MR RAUTENBACH: In the light thereof, you said that Erasmus told you he was going to involve Visser?
GEN VAN DER MERWE: We can to the conclusion together that it might be advisable to involve Visser.
MR RAUTENBACH: So there you involved another extra person?
GEN VAN DER MERWE: Yes, I had to.
MR RAUTENBACH: Is there any reason why Erasmus could not have told the people who were already involved with this to execute the decision?
GEN VAN DER MERWE: To do such an act in a very well populated area is almost impossible and it's quite dangerous and therefore it would have been, according to me, it would have been advisable to use somebody who knew that area well.
MR RAUTENBACH: Now except for Visser who was involved, were you aware of any other person who knew about this secret within the police force?
GEN VAN DER MERWE: Not, at that stage no, Chairperson.
MR RAUTENBACH: Maybe at a later stage then? I'm not talking about amnesty, I talking sometime after the fact that Bopape's body was disposed of?
GEN VAN DER MERWE: No, only Brigadier Visser, nobody else.
MR RAUTENBACH: Which role did General Jaap Joubert play?
GEN VAN DER MERWE: I'm not aware of any specific role he could have played except for the fact that the Minister of Law and Order in 1989 appointed him as head of an investigating team to investigate certain occurrences which included that of the death of Mr Bopape.
NO SOUND
MR RAUTENBACH: General, I would just like to put it to you, according to the evidence which has already been submitted ...[intervention]
GEN VAN DER MERWE: ...[inaudible] Colonel van Niekerk said that General Jaap Joubert contacted him and he got the impression that Jaap Joubert knew what was going on.
MR RAUTENBACH: It actually goes further than this, it goes about him being basically concerned in that he said and asked questions about the body for example, he had certain concerns. Do you have any idea how General Jaap Joubert became aware of the true facts of the matter?
GEN VAN DER MERWE: Chairperson, I don't think there was definite testimony that he knew what was going on. Colonel van Niekerk that he had the impression that he knew what was going on. That is how I understood it. At this stage I tried to find out where General Jaap Joubert found himself at that time but I cannot tell you at this stage, he has since died. I cannot remember which desk did he man at the security branch. I never discussed this incident with him and I cannot tell you why he was involved here or what the true circumstances were.
I can understand that at a later stage he became involved but at the time that Colonel van Niekerk speaks about is difficult for me to understand unless he was at a desk where he was involved. It's difficult to explain it right now, I never discussed with him and he never discussed it with me.
MR RAUTENBACH: General, I would just like to put to you what was said - Mr Chairman, I'm referring to page 34 of the records, page 34. I think both bundles are indexed Day 1 and 2 I believe.
Can you just look at page 34, it's the last paragraph of that page. It is stated there:
"Chairperson, as I said, the day just after the mock escape there was a complete report given to head office and they were informed in this regard and at a later stage I personally discussed this incident with General Joubert"
Before I ask you a question let us just get it in context. At the top of page 35:
"You refer to General Joubert, in which capacity did he serve in the South African police and where was he at that stage"?
And then you say:
"His function, I could be wrong, but General Joubert at that stage was at the security head office and he had a senior position there and I know he had the task with regard to the whole escape situation and I was under the impression that he had reported to the Minister"
In the light of what I've just read to you, is it possible for you to tell us where General Joubert fitted in in this incident?
GEN VAN DER MERWE: No, I cannot. I'm not sure at which desk he worked and unfortunately I could not find the organogram. He was with the security branch and he was the head of some desk but nobody could tell me which desk it was. I cannot remember but it was possibly involved with investigations, it's possible.
MR RAUTENBACH: And then I would like to put it to you, page 36 where in the centre of the page he said the following, this is now van Niekerk
"General Joubert if I remember correctly, he also wanted to know whether the, what was put into the occurrence book, whether that in fact corroborated with the whole escape story. So there were quite a few questions that he asked me and it was quite clear to me that he had information about this incident"
I would just like to put it to you that you can see what was said here, and it seems to me that the testimony indicates that ...[inaudible] is your attitude still that you yourself never told him anything?
GEN VAN DER MERWE: No, I did not discuss this incident with him and he did not discuss it with me, so I can really not say what his involvement was here.
ADV DE JAGER: Mr Rautenbach, on page 35 van Niekerk says
"At some stage during a discussion with General Joubert I in fact informed him with regard to the real facts of the matter"
So at some stage he did inform him.
MR RAUTENBACH: Just so that there is no doubt, you are not aware and you don't know of any other person who informed him about the facts of this incident?
GEN VAN DER MERWE: I did not inform him. If somebody else informed him then I cannot comment on this.
CHAIRPERSON: General, before you say General Joubert was appointed in 1989 to investigate this and other incidents, did General Joubert ever approach you regarding the death of the deceased in this matter, Mr Bopape?
GEN VAN DER MERWE: Chairperson, not that I can remember. I cannot remember that he ever approached me or that I approached him concerning this incident.
MR RAUTENBACH: I'd just like to address an aspect concerning the destruction of the body. We know and it's been said so many times now that this was an extraordinary incident, this was the first incident that you were involved with in the decision to dispose of a body?
GEN VAN DER MERWE: That's correct.
MR RAUTENBACH: And it was a heavy decision that was taken on a high level?
GEN VAN DER MERWE: That's correct.
MR RAUTENBACH: With reference or you've referred to risks, there was the risk that if this incident was handled in the normal procedure there was the risk that the district surgeon for example could find signs that there was something wrong?
GEN VAN DER MERWE: That's correct.
MR RAUTENBACH: There was also a risk with the disposal of the body?
GEN VAN DER MERWE: That's correct.
MR RAUTENBACH: Would you agree me with that it was a process that had to be handled correctly or completely or in such a manner that it would not come to the fore that the body was disposed of?
GEN VAN DER MERWE: That's correct.
MR RAUTENBACH: What did you do after you spoke to General Erasmus? I know there was a call about the escape, we know that was discussed but with the disposal of body it had to be done properly and that that risk be excluded.
GEN VAN DER MERWE: Nothing. It would have been the stupidest thing to do to enquire afterwards about an incident that you could not correct and I had faith in General Erasmus. The worst thing that one can do in such a situation is to go afterwards and enquire about a situation, that is when the problems come about.
MR RAUTENBACH: General, you speak with Erasmus, your fellow General with whom you decided, is your answer then simply that you just left it there and you did not even want to know if the operation was completed properly?
GEN VAN DER MERWE: Chairperson, it's only logical that if there were problems General Erasmus would have returned to me firstly and secondly it is just so that notwithstanding what happened that evening, we left this incident in the hands of experienced persons and I had no doubt that members of the security branch were imaginative and that they could do it properly and it would have caused problem if afterwards you went an enquired about it and that is why left the situation like that and maintained the smoke-screen.
MR RAUTENBACH: Tell me General, was it surprising to you when you found out what really happened, that one security policeman drives through the night and throws the body in the river, is it not surprising to you?
GEN VAN DER MERWE: No. Can I comment on my experience while you are mentioning this to me? I thought it was an excellent plan. We had several possibilities. Let me say that he had a long career in the South African Police Force. You have mentioned the possibility why not make a shallow grave.
MR RAUTENBACH: ...[inaudible]
GEN VAN DER MERWE: No, no, I say the Chairperson mentioned the possibility: "Why not dig a shallow grave firstly"? Firstly, any person who had planted a tree would know how long it takes to dig a shallow grave, it would take a long time.
Secondly, I'm just mentioning this, if you put a person in a grave there would be fresh soil and that any person that passed there, that normally in such an incident would be curious and would want to see what's going on there. You could come around with many clever plans but I thought, my experience is that the simplest plan is usually the best and I think that the manner in which Captain van Loggerenberg acted was excellent.
MR RAUTENBACH: That is just the point. If it worked out in another manner you would not have said that this was an excellent plan?
GEN VAN DER MERWE: Chairperson, we can talk about this for days on end.
MS GCABASHE: General, on this aspect, it appears to have concerned General Joubert because if you look at page 36 of the record, Mr van Niekerk says that General Joubert started asking questions about, for example
"Should the body be found, what would the position be"?
and it boiled down to the fact that:
"Would the man have a hand, would he have had a broken leg?"
"And I gave him the assurance that this person was only shocked, that he was never assaulted"
Now if it concerned your colleague, General Joubert, that this body was in fact disposed of properly, should it not have concerned you too as the person who had participated to a certain extent in this cover-up?
GEN VAN DER MERWE: Chairperson, I knew whom I left this whole incident to and I had no reason to doubt that these members were not up to the task. I did not feel concerned about this situation and furthermore, to enquire afterwards would not have helped the situation, it would only have worsened the situation. So after the decision was taken and the situation was left in the hands of General Erasmus I had to leave it at that.
CHAIRPERSON: General, when did you first learn that the body had been disposed of by putting it in the river?
GEN VAN DER MERWE: During the amnesty applications.
MR MOLOI: May I just ask a question here General? You say you left the disposal of the body in the hands of experienced people, experienced in what?
GEN VAN DER MERWE: Chairperson, experience to handle any thinkable situation you have to remember that the security branch had to deal with violence in its widest forms with an onslaught much more dimensional in nature. Every day, they had to be imaginative every day so they were experienced to handle every thinkable situation. They were also experienced police officers that during their work were confronted with several situations and incidents and I had no doubt that they were indeed able to do the necessary to dispose of the body.
MR MOLOI: I thank you Mr Chairman.
MR RAUTENBACH: I'd just like to know from you General, you've already explained to us that you've gone through all these ranks and you were at the security branch or the security division for a long time, when it comes to Section 29 detentions people are arrested and a decision is taken to, we accept that this was a normal arrest during the criminal procedure and this person had to be detained in terms of Section 29. What are the steps that have to be taken to make that person a Section 29 detainee?
MR VISSER: Can I assist in order to attempt to shorten the proceedings? I've got ...[intervention]
CHAIRPERSON: The steps you're asking at that stage?
MR RAUTENBACH: Yes.
CHAIRPERSON: Because we know that there were various amendments there.
MR VISSER: I've got copies which we can make available to my learned friend and to the Committee, to at least follow the Section 29 read together with Section 50 of the Act Mr Chairman.
MR RAUTENBACH: I would like the witness to answer the question and I do not have any objection should those very copies be placed before the witness. It's that I want to test the witness regarding his knowledge of the Act, that's not the intention at all. I just would like to ask a couple of questions regarding Section 29 and the process.
MR VISSER: I'm sorry Mr Chairman, I should have realised my learned friend might be sensitive. I'm not objecting, all I'm trying to do is to try and assist.
MR RAUTENBACH: I accept that.
CHAIRPERSON: Yes, proceed Mr Rautenbach.
MR RAUTENBACH: Yes. General, it concerns in this case, I agree that it is a good idea that this is put before us, the Act, but I'm more interested in the practical situation and I don't think the Act itself influences this but I just would like to know, if a man is detained in terms of Section 29 and he is in detention, let's accept that he is at John Vorster and a decision has to be taken that the man has to be a Section 29 detainee, in your practice how does this process take place?
GEN VAN DER MERWE: Chairperson, I just want to be brief here because you are only interested in the practice but what happens in such a case, that person who is detained according to the Criminal Procedure Act, is taken to a person with the rank of Lieutenant Colonel usually with security branch, and where he is detained under Section 50 of the Criminal Procedure Act but his detention under the criminal procedure is ended and what happens first there is he is detained under Section 50 of the Criminal Procedure Act and he is taken to this Lieutenant Colonel who tells him that his detention is at an end.
This Lieutenant Colonel has to be given all the information that enables him to come to the decision that the requirements are met to detain him under Section 29. If he knows all the facts then it is his duty to tell that person that he is being detained under Section 29 and at some stage there was a requirement that he was to be told that according to those regulations, what his rights were and everything is written and the letter is signed that he's given or given to the place where the person has to be detained.
MR RAUTENBACH: What I'm interested in is if you were the person or you were the officer that basically had to make this decision, that he has to be detained under terms of Section 29 then you needed certain information, can you tell us what information is placed before this officer before he tells this person he is being detained in terms of Section 29?
GEN VAN DER MERWE: All the information that indicates to the fact that he made himself guilty of some or other act which places him within the boundaries of the requirements for which authorisation, to which there is the authorisation to keep him under Section 29.
MR RAUTENBACH: We can still look at the requirements of the Section. As far as you are concerned, was there a kind of an oath taken, I mean was it necessary for somebody to take an oath?
GEN VAN DER MERWE: No, Chairperson. The information could have been obtained in any manner and it could have been given to the appropriate officer in any fashion.
MR RAUTENBACH: So there is information placed before the officer and for example, this man was involved in incidents where handgrenades were transported, would that have been enough for a Section 29 detention?
GEN VAN DER MERWE: Yes, transport with the purpose of committing acts of terror.
MR RAUTENBACH: Then except for the fact that this information existed, I'd accept that there must have been certain personal particular which had to be given to the officer in order to place him under Section 29?
GEN VAN DER MERWE: Yes, obviously.
MR RAUTENBACH: What would these particulars be or which particulars would be necessary? Would I be right if I accept that his name should be known, his address, his age and if he works, where he works and possibly something with regard to his family? Was there anything else that you needed concerning his personal details?
GEN VAN DER MERWE: If you can just give me a minute, I will be able to tell you if I just look at the notes.
NO SOUND
CHAIRPERSON: ...[inaudible] Mr Visser.
GEN VAN DER MERWE: Chairperson, there were certain amendments made. At this stage I could tell you that firstly there is a statement which is submitted to the detainee where the officer then gives his own name and says that he notified the person that he was arrested by an officer of the police according to Section 29 because it's suspected that this person was suspected of, and then they give all the offences of which he might have been guilty and that he was notified that he was detained according to Section 29 and that if he wanted to he could give a written complaint. And if after six months after his arrest he was not yet released and he was not released under Section 29, he could give a written complaint to the council and then the detainee had to sign it himself. Together with that there was a letter of complaint in which the name of the detainee would appear.
This was the only requirements to comply with these documents but it's obvious that the name of such a detainee would have to be known and that he himself should have known in which offences this person was involved in and whether his age and other factors were relevant, I'm not sure.
MR RAUTENBACH: The letter he had to sign, which was to be signed, was this to be done by the person who held him under Section 29?
GEN VAN DER MERWE: Yes.
MR RAUTENBACH: And then on the same aspect we heard, you said something about head office, was the recommendation to head office or were they just, or did they have to be authorised by somebody, by a senior, to place a person under Section 29?
GEN VAN DER MERWE: The requirements were also amended and even though the law required under Section 1 that a person must as soon as possible after arrest, should notify the Commissioner and the Commissioner must as quickly as possible, as soon as he was informed, give then name as well as the place where the person was detained, to the Minister. That's sub-section 2 of Section 29.
MR RAUTENBACH: Another thing I'd like to know, if a person was kept in accordance with Section 50 and people do have that information, that there's enough ground to detain this person in accordance with Section 29, is it possible for you to tell us how long it would take? He was under Section 50 and you wanted to keep him under Section 29, how long would this process take, this process to read him his rights, to write the warrant and to warn him in advance? How long would this process take?
GEN VAN DER MERWE: Do you mean from the moment that it was decided to stop his detention under Section 50 and to approach the officer? It depends on where the detainee is and where the specific officer is. If you look at this way, you don't know what distance would be because if he has to travel from one place to another that could also be another factor and I can't give comments on that.
CHAIRPERSON: Let's assume that the Lieutenant Colonel is in the same building and he's quickly accessible.
GEN VAN DER MERWE: Chairperson, in other words they take the detainee from where he was within the same building, of course the time would be less then. It depends on how far he must walk but let's say it will be quite short timespan, from the moment that he appears before the Lieutenant Colonel it once again would depend on the available information. The Lieutenant Colonel must have of course learn about all the information according to the law and then it can differ but I'd personally say it's a task that would probably take about an hour to half and hour.
MR RAUTENBACH: I wonder if you'd agree with me, and I accept General, that it's very difficult to put down a time span but let's say the person is in front of the officer, then depending on the nature of the information and the amount of information you can be sure that it would be a process that in certain cases, I don't want to generalise, but it's a process that in certain cases can be done in five minutes?
GEN VAN DER MERWE: Once again Chairperson, it would depend on the circumstances of the specific occurrence and also of course it would depend on the officer. The allegations, if you want to really consider all the allegations that were made and wanted to get all the aspects then it might take a while but I'd say within an hour it would have been concluded.
MR RAUTENBACH: I just want to get clarification. You say: "Within an hour", it seems to me there were certain cases, for example where certain information is given, for example the person was found with handgrenades when he was going somewhere and he stopped at somebody's house and at this house there were also handgrenades which was of Russian origin and all this information all is written on a piece a paper, here's the man's particulars. If this was the specific case then I'd say it's something you would concluded in 10 minutes.
GEN VAN DER MERWE: Chairperson, once again, it's quite difficult. If you are not dealing with a specific matter it's very difficult to generalise ...[intervention]
CHAIRPERSON: I think it is a difficult question to answer but one can accept you get some Lieutenant Colonels I'm sure, who could stretch ten minutes into an hour and others who could do it in five minutes but I think we know it's a short bit, that it could in certain circumstances be a very short process.
MR RAUTENBACH: Then also General, I just want to get clarity about the question we asked earlier concerning the person's personal details. I think I understood you correctly in what you said, that what the officer needed was the basic particulars about a person, namely who he was, what's his age, where he lives, where he works and that would be sufficient in those circumstances surely.
GEN VAN DER MERWE: It might be, but again, depending on the circumstances and also the background of the officer because a certain officer might have information already and then it would be important for him to gain more information. You might have another place where a person would strictly deal with what is presented to him. Once again, one cannot generalise and say that that's all there is to it because these are all people who are interested in gaining certain information and to use that information to do a specific task, so it could have differed.
CHAIRPERSON: So in this particular case General, you would then have expected that once Mr Bopape was informed that he was now a Section 29 detainee, that the person who informed him would have complied with sub-section 2 and that there should be a record in the Commissioner's office, because it does say: "as soon as possible" and then also that the Commissioner would also as soon as possible have informed the Minister?
GEN VAN DER MERWE: Yes Chairperson, except we cannot trace that record but we definitely tried but in normal circumstances it would have been the case.
CHAIRPERSON: What I'm asking you is, as soon as possible? We know that Mr Bopape was detained at John Vorster Square. We don't know of any circumstances that should have delayed the person who informed him of his detention in terms of Section 29, to delay informing the Commissioner.
GEN VAN DER MERWE: Yes, except it was done on the weekend, then it would have been done on the Monday.
MR VISSER: Mr Chairman, again in order to assist and for no other reason, I don't think that the Committee is aware of the fact that the person who went through the procedure with Mr Bopape is in fact General du Toit and he will give evidence about this. I just want to mention it.
CHAIRPERSON: Thank you Mr Visser.
MR RAUTENBACH: General, we will return to the Section 29 because there is another aspect I would like to look at and I'd like to see the document of which copies are not yet made. Before I get there I'd just like to ask you, after this decision was taken and you were informed that he escaped, this is now Stanza Bopape, and you could have made the conclusion that the plan was successful and it was finished, it must have been important that the documentation with regard to Stanza Bopape had to be on date. It's a chain of documentation on how he was detained because after all you provided for questions to be asked in the future, he wouldn't appear again, correct?
GEN VAN DER MERWE: Again I would really like to put emphasis on this, afterwards I let the process go its normal procedure. What was important afterwards was that the whole situation afterwards had to be handled in the most normal fashion, so what was in order and what was not in order wouldn't have made any difference over and above the normal process of events.
MR RAUTENBACH: To not interfere with the process now and to let it have its natural course, then how is it that all the documentation concerning Section 29 is gone?
MR VISSER: With respect, I'm going to object here. There is no basis whatsoever in the document or in the evidence and there's no way my learned friend can make the assumption, none whatever Mr Chairman. The fact - there is an explanation in Volume 5 as to how documents are being disposed of.
We've had a senior police officer who has gone to a lot of trouble in attempting to establish where these documents are and they couldn't be found, so with great respect, the statement my learned friend has made is without any foundation.
CHAIRPERSON: Perhaps you can ask about what the documentation - do you know anything about the documentation relating to the deceased General, what documentation there was and where it is or where it ought to be?
GEN VAN DER MERWE: No, we have to take into consideration that after 1990 there was a change in the way the security force worked and after 1994 there was a further change and in the process a lot of documents were destroyed, and because at that stage there was no reason to specifically protect the documents concerning Stanza Bopape, the documents that we did find that were submitted to you after you've given us the necessary permission. More than that I cannot say.
CHAIRPERSON: But I think what Mr Rautenbach was getting at when he asked you the question was, we know that the issue of the disappearance of Mr Bopape became of public interest, in fact it was taken up by Amnesty International, it became an international matter. Wouldn't the documents in those circumstances, relating to Mr Bopape, have been available? Wouldn't they have been separated from the other documents because of this huge public interest in the matter?
We know that there ought to be documents, one at John Vorster Square relating to his detention and also probably at the Commissioner's office relating to the Section 29 - I don't know what evidence is going to come, but if Section 29 (2) was complied with as soon as possible, probably there as well and also there would have been some correspondence to the Minister informing him of the name of the detainee.
And then there is a huge focus on this particular detainee, wouldn't it be reasonable to expect that those documents, some of them, would still be in existence?
GEN VAN DER MERWE: Chairperson, you must take into consideration that those documents were handled at the specific terrain or area. If I can give an example, if you report somebody kept under this Section 29, it could have been on a specific desk.
There were wouldn't have been a conglomeration of all the documents but there would have been a summary of how the whole issue took place, there were have been a docket as far as the escape was concerned and the enquiries which were handled would have been given to the Minister in the form of notes but those documents unfortunately, together with all other important documents cannot be traced.
They might still exist but the current system is of such a nature that you cannot get hold of these things easily. We did everything in our power to find it and one would have expected to find it, but I have to tell you that since 1994 there was such a drastic change in personnel and because of that it is so difficult to get some of the old files back.
ADV DE JAGER: Is it not possible that if General Jaap Joubert investigated all these cases I suppose he must have had all these documents with his commission?
GEN VAN DER MERWE: Yes, definitely Chairperson, but we cannot trace it at this stage, we have tried. The Investigating Team and all of us tried to find it and we couldn't. I'd also like to say that there is quite a bit of confusion concerning this. We don't know whether the files were placed since them and how the whole issue was handled and that is basically because of the personnel change, we don't have the same personnel we had then. A lot of people did not attach importance to those documents.
We shouldn't have removed them, they should have stayed where the were. It is not that we treated the whole thing differently, it was the system that led to the fact that a lot of those documents were placed in different places or they were destroyed because the people did not consider them important.
MR RAUTENBACH: May this be a convenient time for the adjournment Mr Chairperson?
CHAIRPERSON: Thank you Mr Rautenbach. Yes, we will take the lunch adjournment now.
COMMITTEE ADJOURNS
ON RESUMPTION
GEN J VAN DER MERWE: (s.u.o.)
CHAIRPERSON: Thank you. Mr Rautenbach?
MR RAUTENBACH: General, the last question that was put to you, let's just be sure to get to the question as it was intended and that is if I refer you to Volume 5 and we have a look at page 31 thereof then you will see that there is an inquiry concerning Stanza Bopape
"Director General, Department of Foreign Affairs"
Let's go back a page, it will be better. My page is illegible but it seems to be an inquiry from Liezel Castleman, can you see that?
CHAIRPERSON: It's page 29. Mine is also not a good copy.
MR RAUTENBACH: Do you see it General?
GEN VAN DER MERWE: ...[inaudible]
MR RAUTENBACH: I had trouble reading it but it seems to me that the Department of Foreign Affairs had an inquiry concerning Stanza Bopape?
GEN VAN DER MERWE: That's correct.
MR RAUTENBACH: And I can't read what is in paragraph 4 on page 30 but it comes to the following
"As far as the fact"
I just see amnesty here.
"Internationally and coming from"
Can we just have a look here? I don't know but it's after February 1990:
"not handled as before"
Do you have an idea what is written there?
CHAIRPERSON: I can't read the word that appears after
"myne"
MR RAUTENBACH: I put it to you that the impression that I get thereof is that the Department of Foreign Affairs say basically
"We cannot answer this request as we did before, 2nd of February 1990"
It seems to me that that is the intention, what do you say about that?
GEN VAN DER MERWE: It's difficult, you cannot see anything of it. Chairperson, I cannot read what is here but as far as the inquiry from Amnesty Internal is
"could not be handled as before, 2nd of February 1990"
MR RAUTENBACH: I don't think there's a better copy but would you agree with me that this is an inquiry, it's 1990? It is an inquiry from the Department of Foreign Affairs and of pressure and questions put to them by Amnesty International?
GEN VAN DER MERWE: That's correct, although I have to say that every day they did ask questions but it wasn't pressure but it was an inquiry.
MR RAUTENBACH: Just one moment.
MR STEENKAMP: Mr Chairman, I have the original fax document and I've handed it over to Mr Rautenbach.
CHAIRPERSON: Thank you Mr Steenkamp.
MR RAUTENBACH: I'd just like to read insofar as this letter is concerned, I would just put it to you - if you want to follow on your copy, I could just go through the letter, I think that's the easiest if we just read this letter because it's really illegible. This letter is an inquiry and it was for the
"Attention of Brigadier J F Koen, from Liezel Castleman: Inquiry concerning Stanza Bopape.
It would be appreciated if we as soon as possible, if you could tell us as soon as possible concerning the inquiry, is the dossier closed, are there any other new developments"
And then it is furthermore said:
"Subject in Belgium: Inquiry Stanza Bopape"
The first sentence is a reference number and it is dated 1991, the fourth of the tenth month:
"The information concerning Stanza Bopape as it is in the abovementioned is argued by Group 99, a division of Amnesty International, in a letter to the S A Honourable Consulate in Luik. The relevant paragraph of the pamphlet is attached for your attention"
It boils down to the following, that the version was argued. And then concerning - we go to paragraph 3, the inquiry that is in the middle of paragraph 3, from Amnesty International.
"As it is formulated concerns what happened after the puncture. I would like to inquire if there is any other information available otherwise we cannot discuss these matters"
And the paragraph reads as follows:
"As far as the fact that the inquiry from Amnesty International cannot be dealt with in the same manner after the 2nd of February 1990"
We have that part now, some clarity on that part. In the light of that letter, this is the letter we have on page 31 ...[intervention]
CHAIRPERSON: Would that be a response, because the letter of the 14th of eight says
"You facsimile Fransie Opperman, dated 15 April has reference"
Now is page 29 ...[intervention]
MR RAUTENBACH: I don't know what it is all about, just let's see. If we go back to page 29, can we go back to page 28?
CHAIRPERSON: ...[inaudible] that page 29 fax is dated the 22nd of November 1991, so it can't be in response to ...[intervention]
MR RAUTENBACH: It seems that page 28 contains the response to that letter. You will notice that the name Liezel Castleman, page 28, Liezel Castleman, that ...[intervention]
CHAIRPERSON: And the dates would fit in, it's the 26th of November, whereas this fax of 29 is the 22nd of November '91.
MR RAUTENBACH: That's correct.
To return to the question we were dealing with before the adjournment, this is during 1991 and answers or letters that were written in answer to questions that were asked by the Department of Foreign Affairs. General, the question that I would like to put to you, just now you referred to the fact that since 1994 and the changes it was difficult to find documents.
I would just like to ask you, at this stage when this inquiry came from the Department of Foreign Affairs, do you know, can you tell us, was there any attempts in connection with all the documentation concerning Bopape, to gather all the information, the fact that he was in detention in order to enable you to in future give proper answer and to show proper documentation in this concern.
GEN VAN DER MERWE: Chairperson, personally I never troubled myself with this incident, it was dealt with by the various desks and General Joubert or the late General Joubert, who later with Mr Vlok dealt with the inquiry, would have gathered these documents.
Besides the fact that the information that was necessary to answer the inquiries were available in different files, then I would not think that at that time there were any attempts to collect all those documents together because besides the fact you have to remember that we ...[indistinct] the case of Mr Bopape was an extraordinary matter and for all practical reasons at that stage, was one of many other incidents and it was dealt with in the normal procedure and that is why I am not aware that at any time there were attempts to put all these documents together.
MR RAUTENBACH: It seems to me as well - you are probably not the right person to ask this question to but this documentation surrounding his detention in terms of Section 29 was not taken up in this dossier in connection with his escape?
GEN VAN DER MERWE: I cannot answer on that.
MR RAUTENBACH: I would like to ask you in connection with page 31, it seems that the answer that was given in terms of where the escape is set out to Foreign Affairs, it concerns the facts of Fransie Opperman, that on that page it was signed by E J Engelbrecht, Brigadier, which Engelbrecht was that?
GEN VAN DER MERWE: It was Brigadier Krappies Engelbrecht, now General Krappies Engelbrecht.
MR RAUTENBACH: Can you just tell us in which capacity did he write this letter in 1991?
GEN VAN DER MERWE: He was then affiliated to the Crime Information Service with the old security branch and we had a Crime Information service and he would have answered it in that capacity.
MR RAUTENBACH: Can we just get clarity, maybe I just understood you incorrectly, that Krappies Engelbrecht, was he the Chief of Security?
GEN VAN DER MERWE: No, he was connected to it. This letter was also signed for the chief of this branch.
ADV DE JAGER: Excuse me, the previous question, was Security still Security or was it taken up and incorporated in Crime Information?
GEN VAN DER MERWE: No, they came together with the Detective Branch but they had a department as the Crime Information Service but within that was the Crime Information Services which was part of the old branch.
MR RAUTENBACH: Do you know General, what information Krappies Engelbrecht had concerning this issue or do you not know?
GEN VAN DER MERWE: Chairperson, I accept he also got his information from the file.
MR RAUTENBACH: In that same time, we know there was an attempt in 1990 to investigate this occurrence during the Harms Commission, were you contacted with regard to the Stanza Bopape case and by the Harms Commission?
GEN VAN DER MERWE: Not that I could remember Chairperson.
MR RAUTENBACH: Maybe the answer is obvious but which member of the police - rather let me put it like this, General Jaap Joubert, was he involved with the Harms Commission or not?
GEN VAN DER MERWE: Not as far as I know Chairperson.
MR VISSER: Can I perhaps assist Mr Chairman, I appeared before the Harms Commission and I remember well. General Jaap Joubert was obliquely interested or not implicated, involved, in an explosion which took place at a shopping centre in Centurion in front of an office of a certain Mr Botma who was a member, as it was then alleged, of the old CCB and who had become disenchanted with the CCB and the allegation at the time was that the bomb was planted at his office for that reason and General Joubert was at that time in 1990, was in fact the Head of the Special Investigation Unit who investigated, whose team investigated unrest related incidents, and only in that sense was he ... General Joubert not anybody else was involved in Bopape and in fact no evidence was presented in regard to Bopape as was reflected in the Harms Report which said that Justice Harms had a consultation with the legal representatives representing the family of Bopape and it was agreed that there wasn't sufficient evidence to either hold an inquiry or even to suggest that an inquest be carried out. I think that's by way of summary the complete picture.
CHAIRPERSON: Thank you Mr Visser.
MR RAUTENBACH: I'd just like to ask you General, after 1990 there were certain exemption that came into place, where people could apply for exemption, was ...[intervention]
CHAIRPERSON: Indemnity I think, indemnities yes.
MR RAUTENBACH: Indemnity, that's correct.
CHAIRPERSON: The interpretation was exemption but I think ...[indistinct] indemnity.
MR RAUTENBACH: Did you give any consideration to this issue?
GEN VAN DER MERWE: Chairperson, after 1990 I was part of the negotiation process together with members of the ANC and other parties and at that stage the possibility of giving amnesty to people was under consideration. We were continuously involved in the process and the whole, our point of view was continuously that the acts of the security forces and those of the ANC and other parties would be handled on an equal level and by ways of the Interim Constitution provisions would be made for that. The expectations were continuously that general amnesty would be given and eventually it did proceed in this fashion, that provision was made for it in the Interim Constitution.
MR RAUTENBACH: General, as far as the differences of opinion was concerning the moral acceptability, when it came to using coercion in people in detention, this different point of opinion, amongst whom was there a difference of opinion?
GEN VAN DER MERWE: Chairperson, as I've already said, you cannot attribute this to a specific person but as you spoke to your colleagues you realised that in the process there were some of them who were of the opinion that they did not consider it immoral if violence was used in situations where lives could be saved and then to use violence to obtain the information.
MR RAUTENBACH: There is just one aspect I still want to have some clarification on, would you agree with me that the National Party itself also came under pressure because of allegations that were made against the Security Police, concerning for example people who had died in detention?
GEN VAN DER MERWE: Yes, in certain cases.
MR RAUTENBACH: Did you ever think of the possibility that if the party or the government itself was consulted about an incident like this, and I'm just asking you about the possibility because for all we know, I'm not saying it's the truth, but for all we know the government might have had the attitude to prosecute the perpetrators so it could be proved that we are willing to act when illegal acts were committed? Did you ever take that possibility into consideration when you made your decision?
GEN VAN DER MERWE: Chairperson, in my mind I had no doubt that the relevant Minister who is the representative of the government, would have reconciled himself completely with my point of view. Never did I doubt that in these specific circumstances he would not have judged the situation any other way than I did.
MR RAUTENBACH: So what you're basically saying is, if you contacted him you believed that he would have complied with what you suggested?
GEN VAN DER MERWE: He would have been forced by the circumstances to do the same as I did.
JUDGE NGCOBO: General van der Merwe, apart from the prevailing political situation which prevailed at the time, do you have any other basis for your belief that the Minister would have gone along with your suggestion?
GEN VAN DER MERWE: Chairperson, no, I rather mean that if there were any indications from the Minister at any point in time that he would have gone along with it, no. I base my conviction on the circumstances which prevailed then and the fact that from the Minister's side there was involvement in irregularities and that they were dependant on the Security Branch to take drastic measures in the prevailing circumstances and they could not afford to act in such a manner that they could have support that situation.
JUDGE NGCOBO: I see, but do I understand you to say that given the circumstances would you have also described, i.e. June 16th being around the corner and the embarrassment it would have caused the government to have another death in detention, you believe that the Minister himself would have been compelled by those circumstances to go along with the escape plan?
GEN VAN DER MERWE: Yes, Chairperson. As I've already said, against the complete background which I've described and if you take all the factors into consideration which the Minister would also have taken into consideration, he would have had no other choice than to go along with our decisions.
JUDGE NGCOBO: Let me just ask you this question now, given that kind of belief which you've described and given the circumstances which prevailed then, would the ordinary membership of the Security Branch have been unreasonable to believe that if they go beyond the line, if they engage in torture, that given the kind of circumstances which prevailed then, higher authority within the Security Branch would nevertheless condone their action? Would it have been unreasonable for them to have that belief, that you would condone their behaviour?
GEN VAN DER MERWE: Chairperson, the factual situation was that where a person committed an offence or rather that he was accused of assaulting someone or torturing someone and there was such an accusation then that occurrence would without exception be investigated and that meant that each member knew that despite all the other facts which I've already mentioned and where in some of their minds they might have thought that will be silent condemnation, they still knew that they could not have expected any form of protection is they made themselves guilty of such an act.
The police of the South African Police was very clear on that and I've often emphasised it that despite the confusing situation in which we found ourselves, it was not possible to protect a member if he made himself guilty of such an act and there was evidence to bring such an accusation against him.
ADV DE JAGER: Doesn't it go any further? The general member of the police had a suspicion that people higher up knew about this, they had the suspicion that the politicians knew about this, the Minister or the Deputy Minister, and they are not talked about concerning this, then the impression is created that these things are silently condoned. Maybe you must first answer that question.
GEN VAN DER MERWE: Chairperson, if you say they are not addressed on this issue, I don't know if you are just referring to this case or in general.
Actually in this manner I have emphasised that there were definite regulations and each, it would have followed each investigation and surrounding this there was a clear policy, where a person was guiltily of such a deed and this instance would be investigated as I've explained and I don't think that any person who knew that this was the practice surrounding what was prevalent there would have doubted that if he was guilty of such an offence he would have to bear the consequences thereof himself.
And with that person he could have had the impression that what he does, it could have been possible that it was met with approval but at the same time nobody could have doubted that nobody could protect him if he was guilty of such an offence.
There was never any that I know of, there was any attempt to interfere to protect such a person and we all accepted this. I think you can probably speak to every person of the Security Branch and he will say the same thing.
ADV DE JAGER: There are two stages, the one is if you are found out you will bear the consequences and the other, if there is no charge laid by a person who was for example assaulted, and then from the inside my fellow police officers or the politicians will not take the initiative to have charges laid against me and then this thing would die a silent death.
I say this because from the witness that was given by the politician, Deputy Minister Wessels, where he said for example: "We suspected that things were wrong but we neglected to investigate it because we did not want to know". They probably followed the possibility of the need not to know in contrast with the policy of what the police followed, can you comment on that?
GEN VAN DER MERWE: Chairperson, I speak of senior members who were in command and this is what it concerned, as far as certain of these members were concerned that is true and some of our senior members went and testified, who saw that people were under his command assaulted people.
There were such cases but I can tell you with great conviction that there were more other cases where some of the commanding officers would have acted against this person and prohibited it strictly.
So it would have been on the grounds of the moral approach of the commanding officer, you cannot say in general that it happened all the time.
JUDGE NGCOBO: General van der Merwe, having regard to the manner in which the events have now unfolded themselves, we now know that if the ordinary member of the Security Branch believed that if he engages in what may be described as unconventional methods of interrogation he would get some protection from senior officers. If they had entertained that belief, we now know that that belief may well have been reasonable because indeed they received that protection didn't they, from you?
You may have been motivated by different considerations but the fact of the matter is, they were protected, although you may not have wanted to protect them directly but you were protecting the government from the embarrassment but in the process they too benefited from that, isn't that a fact?
GEN VAN DER MERWE: That is so, definitely.
NO FURTHER QUESTIONS BY MR RAUTENBACH
CHAIRPERSON: Thank you. Mr Rautenbach has indicated - Mr Rautenbach, when you say you've got no further questions, it's subject to the reading of these documents referred to in the preamble of Exhibit O. I wonder if it wouldn't be convenient at this stage to just take a short adjournment before adjourning the matter and if the legal representatives could come and discuss with the panel the immediate future conduct of this matter, how long we will need for the reading of those documents etc., and then we'll come back and postpone the matter to a specific date so that the people in attendance will know until when it is postponed. So at this stage we will just take a short adjournment.
I won't ask for any re-examination on what has gone on at this stage or for Mr Prinsloo to exercise his reserved cross-examination because we will wait unit Mr Rautenbach is finally finished his cross examination.
MR VISSER: Mr Chairman, before you rise, I've received a whole bundle of documents dealing with, I suppose, the Section 29, part of which would be ...[intervention]
CHAIRPERSON: Of those ones referred to in the preamble of the general statement?
MR VISSER: Yes. Perhaps we can mark this with an Exhibit, I think it's Q or R or whatever ...[intervention]
CHAIRPERSON: Q.
MR VISSER: And perhaps give it to you now then it's out of the way.
CHAIRPERSON: Yes, perhaps you can do it up there because maybe Mr Rautenbach will need it before we will, but I think let's do that, we'll hand it in as Exhibit Q. Do you have copies? Thank you. Is this part of the: "Eie getuienis" referred to in that - this is General Geldenhuys. This is a: "Mags" order.
MR VISSER: Yes, this deals I think with the question of Section.
CHAIRPERSON: Oh, Section 29, sorry. Okay, I thought you meant Section 29 of the other Act.
MR VISSER: No, the Internal Security Act Mr Chairman.
CHAIRPERSON: Right, so we'll get that in as Exhibit Q. Yes, thank you, we will take a short adjournment at this stage and reconvene shortly.
COMMITTEE ADJOURNS
ON RESUMPTION
GEN J VAN DER MERWE: (s.u.o.)
CHAIRPERSON: The situation is that Mr Rautenbach is not in a position to complete his questioning of General van der Merwe because you will recall that at the start of General van der Merwe's evidence he stated that certain documents which were referred to in his written statement be incorporated in his application.
Those documents unfortunately are not yet to hand, they are in the process of being courier'd up from Cape Town and will only be available sometime later this afternoon and they will then have to be read by Rautenbach before he decides whether he has any further questions to put to the General. He may not even but he certainly can't make that decision until he has read those documents.
We therefore cannot proceed with General van der Merwe's evidence but what has been decided in order to save time, instead of adjourning now and waiting until Mr Rautenbach is in a position to recommence his cross-examination, is that we will proceed with the evidence in chief, that is just the evidence by the witness himself without any cross examination which will be reserved for a later stage, of General Erasmus at this stage and indeed maybe even General du Toit.
They will then proceed at this stage to just give their evidence in chief, so that we will be able to use the time instead of wasting the time.
So, thank you General, you may at this stage stand down but you will recalled later.
WITNESS EXCUSED
