Amnesty Hearings

CHAIRPERSON: Mr Visser, I think you were still busy.

MR VISSER: Thank you Chairperson.

CHAIRPERSON: Yes.

MR VISSER: We refer again to Exhibit A and we would ask you to turn to page 13.

MR BERGER: I'm sorry to interrupt you Mr Visser. Chairperson, it's a concern of my client that not all the amnesty applicants are present. We don't know if that is so or not because we don't know what some of the applicants look like. Could we get some indication of whether - I know some of the applicants are here but we're not sure if Mr Bosch is here or Mr Vermeulen. Could we get some indication of whether ...(intervention)

CHAIRPERSON: Before we do that, I'd also like the answer to that, but what's the cause of concern if they're absent?

MR BERGER: It's considered disrespectful to the victims that, if they've applied for amnesty for the killing of their family members, they should at least have the courtesy of being present. If they are present then that sorts that out, but if they're not, its viewed as discourteous.

CHAIRPERSON: Well, I'm not too sure Mr Berger if I agree with that argument but maybe its not such a big thing. Are any of the applicant absent?

MR VISSER: Well Mr Chairman, I appear for two applicants as you know and they've both been here all the time, but I certainly don't see the argument myself.

CHAIRPERSON: Is there anybody who represents somebody as an applicant that's not present?

MR LAMEY: Chairperson, Mr Nortje is sitting outside just in front here looking at the video recording of the events. Mr Bosch is in and out. He was yesterday here a couple of times also next door. He's not here presently but my instructions are that he is, on a daily basis, coming in Chairperson. Unfortunately Mr Bosch, it shouldn't be seen as disrespectful, that's an unfortunate conclusion.

CHAIRPERSON: We don't attach much importance to that because if they don't know how the applicants look, I don't know how they can be emotionally affected by their absence, but is that the only position about absenteeism? The rest are present? I hope that settles the matter, Mr Berger.

MR BERGER: Thank you Chairperson.

MR VISSER: Mr Chairman, may I now again refer you to page 13 of Exhibit A? If my memory serves me correctly, we completed paragraph 55 yesterday and we were on the point of going on with paragraph 56 in the evidence of Gen van der Merwe.

General you are still under your previous oath.

JOHANNES VELDE VAN DER MERWE: (s.u.o.)

MR VISSER: Unless you want to warn the witness yourself Mr Chairman.

CHAIRPERSON: ...(indistinct - mike not on)

EXAMINATION BY MR VISSER: (Cont)

Will you please continue.

GEN VAN DER MERWE

"I further noted that Col de Kock, bundle 2 page 5, alleges that the instruction for this action came from the State President, Mr P W Botha and that I, Commissioner of South African Police and that Gen Johan Coetzee and other Security or Intelligence components were aware of it. I cannot testify from all knowledge as to who all knew of this operation beforehand".

MR VISSER: Why do you say this?

GEN VAN DER MERWE: Chairperson, because the whole incident is relatively vague in my memory and secondly that according to the probabilities and I have already given evidence as to what probabilities play a role here, that members of the State Security Council, on the morning of the 20th of December when the operation had taken place, were aware of this operation and the only inference I can draw from this is that after consultation with members of CIC, information must have been conveyed to the members of State Security Council.

MR VISSER: Please continue.

GEN VAN DER MERWE

"I have no recollection that I had previously discussed the operation with Gen Coetzee or former President P W Botha".

MR VISSER: That's beforehand?

GEN VAN DER MERWE: That's beforehand.

CHAIRPERSON: Is it possible that you could have done so?

GEN VAN DER MERWE: Chairperson in the case of Mr Botha definitely not and in the case of Gen Coetzee, as I have seen now, it is not possible.

CHAIRPERSON: Can you please tell us now why would you have not discussed this with Gen Coetzee?

GEN VAN DER MERWE: I have just determined that Gen Coetzee was at Port Edward on holiday during that time.

CHAIRPERSON: What does Mr de Kock say about this? Let me read it. Bundle 2 page 79.

MR VISSER: Page 85, Chairperson, Bundle 2. 85. It's in the middle of the paragraph, the question is

"Who all knew of this operation as far as you know?"

The answer comes:

"There is no doubt that State President P W Botha had known of it because he was also the person who was in conflict with Lebowa Jonathan. All three Security Services of the country, the Military Intelligence Service and Police Intelligence Service and National Intelligence Service would have known of it because they sat on the Co-ordinating Information Committee and the Commissioner of Police, the Security Chief would have been aware of it at this stage and then my own Commander, Brig Schoon."

It was in reaction to that evidence that this evidence is now presented.

CHAIRPERSON: Why do you say that this evidence of Mr de Kock is incorrect, even if it is based on probabilities?

GEN VAN DER MERWE: No Chairperson I just want to state it clearly that I had never said at any point in time that these people had known beforehand, I'm not saying his evidence is incorrect, he may have drawn the same inference which I have now put forward to you. Based on the probabilities my evidence is that I personally do not have any knowledge of this and it is not based that I would have said at any point in time that these persons had known beforehand of this operation."

MR VISSER: So if we may summarise, you have no recollection that you had discussed it with former President Botha or with the Commissioner General Coetzee, but you have no problem with the probabilities that Col de Kock puts forward. If that's an inference, we shall hear from his evidence.

CHAIRPERSON: Mr van der Merwe, it may be that with regard to the position of any Minister, even the State President, then with regard to the situation before the time, what was the situation afterwards?

GEN VAN DER MERWE: Chairperson we shall arrive there, but I will answer that. Afterwards, it had to be before the 13th of January, I discussed the matter with Gen Coetzee with the viewpoint of the awarding of medals to the members who were involved in this operation and upon that opportunity, after the discussion with Gen Coetzee where the operation and particulars of the operation were discussed in order to indicate why I was of the opinion that these members do qualify for these medals and at that time I considered a medal which carried more weight for a medal for courage, so the medal for courage was later said to be more applicable by Gen Coetzee.

CHAIRPERSON: What of the Ministers?

GEN VAN DER MERWE: We shall arrive at that momentarily Chairperson.

"After my discussion with Gen Coetzee I drew up a memorandum in which particulars, although it was covered up in such a manner that it would not compromise anyone, which was submitted about the incident, I do mention in the memorandum and we shall discuss it later, that this incident had taken place on the 20th of December 1985 of top secret clandestine nature and that this operation would cause great embarrassment to the Government if it was made known and I then recommended that medals be awarded to these members and the medals that I recommended were the medals for exceptional service rendered and I also said in the memorandum that the Commissioner has knowledge of this incident and the same memorandum, it was the only one that was available which we could put forward at that stage, would have been promoted with the Minister of Police at that stage".

MR VISSER: Who was that?

GEN VAN DER MERWE: That was Minister Louis le Grange and obviously Gen Coetzee would also have been informed because there was no way in which the Minister would approve those medals if he did not know that the incident was of such a nature that it was justified in awarding those medals. I don't know if I should deal with this now or later.

CHAIRPERSON: As I understand your evidence, this would have been in the vicinity of the 13th of January the following year.

GEN VAN DER MERWE: This would have been before the 13th of January. The Minister - I don't know when the Minister was informed because the incident was discussed before the 13th of January with Gen Coetzee with a view of him informing the Minister with regard to the award of the medals, so it would have been more or less during that time.

CHAIRPERSON: May I ask you as follows? The day after the incident, are you able to say whether any of the Ministers in the then Parliament knew who had caused this incident?

GEN VAN DER MERWE

"Chairperson I say by means of necessary inference drawn, they must have known. I would just add to this, because one uses probabilities now because one does not have first-hand information here, but if one keeps in mind that on the 20th of December, the threat from Lesotho was a chief subject at the discussion of the State Security Council and during that time the State Security Council reported on the situation which the Branch National Interpretation had reported and they had to deal on this information and had warned them that MK members in Lesotho were ready to enter the RSA during the Festive Season and to act and to commit acts of terror in the country.

The incident had already by that day, by lunch, it was headline news in the newspapers and no-one asked any questions whether one would have expected that if they did not know who it was, the State President would have at least asked the Chairperson of the CIC and would have asked him: "What is going on here? A number of MK members were killed in Lesotho and this is an essential aspect of the threat with regard to us" and he would have wanted to know who was responsible for it and furthermore I would wish to say that no member of the SAC had security background and who received information about this threat, could have pretended for any moment that the only people who had the capabilities of doing such things would be the Security Forces of South Africa. Anyone who pretended not to have that knowledge and wanted to blame any other body for this operation, would have been extremely naive and extremely ignorant at that stage. It was just not possible that any person who knew what something like this entailed, would have imagined at that stage that that operation could have been launched by any other but our Security Forces and if it was so, then one would have expected that the persons who were involved would have determined. You have to recall that we had the most sophisticated intelligence network in Africa and the most sophisticated communications system in Africa. Within minutes they could have consulted and the State President could have told the Chairperson of CIC, find out what is going on there and you have to recall at this stage this would have been in conflict in all the probabilities if they did not know of the incident at that time because once again, if the newspapers who do not have - their primary task is not to monitor the threat in neighbouring states and they included this in the headline news, one would have expected that intelligence network like national intelligence would have known early that morning and that they would have informed their Chairperson of their co-ordinating committee and I never tried to keep a lid on this information. If you look at the memorandum which I submitted where I recommended these medals, then any person who read the newspapers from day to day would have realised immediately which this incident was relevant to".

MR VISSER: General, you are at the last sentence of paragraph 56.

GEN VAN DER MERWE

"In any case I did not have any access to President Botha at that stage. Chairperson, what is quite obvious is that I personally regarded the Ladybrand report in a serious light and that I was convinced that it was necessary to act against this group in order to prevent future incidents and to protect the RSA. It was then a priority, as I said in paragraph 9(a)(i), bundle 1, page 102 of my application, to act. One also - to act against the persons who committed these acts of terror.

Then the action itself, Chairperson, I cannot comment about the members who launched the operation beforehand. Nortje bundle 1 page 19 and 37 alleges that there was a period of 10 days which had elapsed after the instruction had been given by Brig Schoon to de Kock. I doubt the correctness of this statement because the incident was so urgent that it would not have taken, we would not have allowed 10 days to lapse. I do believe that Mr Nortje wishes to refer to the fact that members of Vlakplaas had probably - were probably already in the area before the instruction was given. I say this following on the evidence of Col de Kock in his amnesty application, bundle 1 page 3, that they had already been working in the Ladybrand area in the months preceding December 1985".

MR VISSER: General, when the facts were still fresh in your memory and I refer to January 1986, when you made the submission to the general staff and to Gen Coetzee about the medals, Chairperson that is a document that is attached to Exhibit A, I hope that yours has that attached.

In paragraph 2 you have also indeed mentioned a period, can you refer to that?

GEN VAN DER MERWE: Yes, Chairperson. In the memorandum I have stated that the members' activities which preceded this incident, stretched over a period of two months.

I can also mention that it was custom for wherever in a certain area there was an increase in terrorist activities, we would deploy units there to assist in the collection of information and also to identify members of the revolutionary organisations which may have infiltrated.

MR VISSER: And when you refer to members of units, you refer to Vlakplaas?

GEN VAN DER MERWE: That is correct.

MR VISSER: And from the time that the order was given by you to Brig Schoon to proceed, it did not take 10 days for the operation to take place, but you recall that it didn't take that long.

GEN VAN DER MERWE: I don't recall directly, but it would most probably have taken place much quicker than that.

MR VISSER: Very well, please proceed.

GEN VAN DER MERWE: I left the execution of the operation completely over to the operatives on ground level.

MR VISSER: Why did you do this and why didn't you give any orders as to how it should be executed?

GEN VAN DER MERWE: Let me put it as such, the basic principle with such an action with Col de Kock, who was probably the most experienced member in this regard, was to act only against persons who had been directly involved in violence and that everything possible would be done in order to prevent other persons from being killed or injured in the process. However, where one was involved with such an action, there were many unpredictable factors. One would be acting in a strange country and there was the danger of being arrested by the Security Forces of that country. One would be entering a situation where one would perhaps be encountered by armed resistance, so one couldn't really sit in an office and prescribe or determine how actions should be taken because at the end of the day, it would be their lives which were at risk, so in such a case one would necessarily have to leave it over to them after telling them who the targets were and leave it up to them to make decisions according to these guidelines which they were thoroughly aware of and which they would have applied in as far as possible.

MR VISSER: And we also know that on the night of the 19th to the 20th of December of 1985, the action took place. The Lesotho border was crossed. The operation was executed and Brig Schoon reported to you after the completion of the operation, is that correct?

GEN VAN DER MERWE: Yes, that is correct.

MR VISSER: Will you then proceed with paragraph 62?

GEN VAN DER MERWE: Chairperson, after the incident it was naturally of the utmost importance to attempt, in as far as possible, to distance the share of the Security Forces from the RSA with regard to the attack.

MR VISSER: You have already testified that the reason for this was that with covert actions, the objective would be to render the action untraceable to who executed the action.

GEN VAN DER MERWE: Yes and particularly the Government.

MR VISSER: Very well. Please proceed.

GEN VAN DER MERWE

"Consequently there were denials by both the South African Defence Force and the South African Police which were then also published in the newspapers. It was done quite obviously in order to avoid any international criticism which could emanate from the exposure of the share of the SAP in this matter. Although I had not share in these attempts, I did not expose the true facts regarding the matter and I have probably then also made myself guilty of defeating the ends of justice.

Chairperson, then I come to the South African Police Silver Cross medal for courage which I have already mentioned. I reiterate this briefly. Later I recommended personally the allocation of medals to the members who participated in the operation. After the completion of the operation, on a date which I cannot recall but which would have been in January 1986, I discussed the allocation of the medals with Gen Johan Coetzee, who was the then Commissioner of the Police. According to prescription the Generals and staff would have to consider and promote these recommendations. I made a written submission to the Generals and staff. In this written submission, I did not state the facts of the incident, only the circumstances and as I have stated, the date upon which the incident took place, as it will appear from a copy of the submission which I have managed to trace and which I have attached to this".

MR VISSER: Can we then refer to that very briefly? On page 1 of this annexure to your statement, there is a reference to a Sgt J H A Coetzee.

GEN VAN DER MERWE: Yes, that is supposed to be Coetzer.

MR VISSER: Very well, Coetzer.

GEN VAN DER MERWE: That would be correct.

MR VISSER: That's the annexure to Exhibit A, page 1, paragraph 1.1, Chairperson. The reference to Coetzee there is clearly incorrect, the e should be an r at the end of Coetzee. The rest is in order, Chairperson. Very well and you have already summarised previously upon a question which was put by the Chairperson, what exactly you did with these recommendations, what these recommendations involved and the vagueness of the facts along with the importance thereof. You have mentioned all these things and this submission, dated on the 2nd page, 13th January 1986.

GEN VAN DER MERWE: Yes and perhaps I could just reemphasise at this point that there couldn't have been any doubt that this operation took place beyond the parameters of the law because if one acted within the parameters of the law it would never have provided any embarrassment for the government and I stated it very clearly that this could have created a grave embarrassment for the government.

MR VISSER: You are referring to paragraph 3.

GEN VAN DER MERWE: Yes.

MR VISSER: Where you state that this was executed or discussed under top secret conditions, the fact that you did not provide any further details was aimed at avoiding a serious embarrassment for the government.

NR VAN DER MERWE: That is correct.

MR VISSER: And according to a handwritten note on page two, it would appear that your recommendation was indeed approved by the generals and staff on the 21st of January 1986.

GEN VAN DER MERWE: Yes that is correct.

MR VISSER: And then it says: "With the approval of Compol, which is then the Commissioner of Police General Johan Coetzee, it has however been decided that the SAP Silver Cross for bravery will be awarded to them and then it is also requested for this to be promoted." Is that correct?

GEN VAN DER MERWE: Yes, that would be to promote it with the Minister.

MR VISSER: Very well, please return to page 15, paragraph 70, beg your pardon, 69. Yes, you have already stated this. We are now at paragraph 70 and we can then conclude with the final paragraph.

GEN VAN DER MERWE

"Chairperson, these events took place during a war situation where the rules of normal warfare were not of application. My action was aimed against supporters of a liberation movement who were the enemy of the government and who were waging a revolutionary onslaught against the State dispensation during which, among others, innocent citizens were either killed or injured and much damage to property was incurred.

The struggle which we waged was a political struggle and everything that I did, I did in the execution of my duties as a policeman in protection of human life and property and for the maintenance of the State dispensation of the time and in support of the National Party and in order to prevent that the land falls into a state of chaos and anarchy. In the light of the pressure which was exerted upon us in the Security Branch by the political leadership of the time, as well as many statements and speeches during which reference was made to the eradication of terrorists, I truly believed that such action was to be expected of me. I believed sincerely and truly that what I did was expected of me as the acting Commander of the Security Branch and I acted in the execution of my duties and that my actions fell within my express or implied authorisation.

I was in no way rewarded or benefitted from the action and I did not draw any personal advantage therefrom.

I request humbly that amnesty be granted to me as previously summarised within this document".

MR VISSER: That is the evidence from General van der Merwe.

NO FURTHER QUESTIONS BY MR VISSER

CROSS-EXAMINATION BY MR HATTINGH: Thank you, Chairperson.

General, just one aspect which I would like to discuss with you. We have already dealt with this during previous sessions of the Amnesty Committee, but for the purposes of this Committee, I would like you to confirm the following once again. At that stage I read you an extract from your evidence which you gave before the TRC. That extract appears in a document which was compiled by Mr de Kock and served as a supplementary affidavit, which dealt with Vlakplaas as such and on page 26 thereof, I have quoted from your evidence. I do not wish to read the entire quote to you, it is just that on page 27 there is an event which has been underlined regarding your evidence regarding Vlakplaas during which you stated:

"They acted across the border and they did their tasks extremely well and the members of C1 itself, all of them, were very experienced and competent members and they had anti-insurgency training and they were capable of working in difficult circumstances and to do work with a clear mind and they were actually the only operational unit in the Security Forces."

Do you once again confirm that evidence of yours?

GEN VAN DER MERWE: Yes, that is correct, Chairperson.

MR HATTINGH: And then I also assume that this would be the reason why, when you wanted to make enquiries about the Security Police's capacity to act against the persons in Lesotho, you went to Brig Schoon you was the overall Commander of, among others, C1?

GEN VAN DER MERWE: Yes, that is correct Chairperson.

MR HATTING: Thank you Mr Chairman, we have no further questions.

NO FURTHER QUESTIONS BY MR HATTINGH

UNIDENTIFIED COUNSEL: Chairperson, I have no questions, thank you.

NO QUESTIONS BY UNIDENTIFIED COUNSEL

MR CORNELIUS: Thank you Mr Chairman, Cornelius for the applicant Vermeulen. I have no questions.

NO QUESTIONS BY MR CORNELIUS

CROSS-EXAMINATION BY MR LAMEY: Chairperson, thank you, just one or two questions.

General if we can just come to the meeting of the CIC on the 3rd of December, would it be correct to say that at that stage already, as far as the periods preceding the 3rd of December 1985, there were continuous problems which were experienced pertaining to the Lesotho government surrounding the presence of MK bases in Lesotho and so forth?

GEN VAN DER MERWE: Yes, that is correct.

MR LAMEY: And you would accept that this was repeatedly taken up with the Lesotho Government along various channels.

GEN VAN DER MERWE: Yes, what I can testify about specifically, that is that after we requested Foreign Affairs to warn Lesotho on the 13th of December, such a memo was sent to them by the Department of Foreign Affairs.

MR LAMEY: Very well. Would it then be correct to say that up to and including the 3rd of December and even thereafter, there was no positive reaction or action by the Lesotho Government to address this problem?

GEN VAN DER MERWE: No Chairperson. At the meeting of the SSC on the 20th of December, Mr Pik Botha reported and stated that they had indeed sent such a note through to the Lesotho Government on the 13th of December and they received a negative answer and furthermore the branch of National Interpretation in their report of the 13th December, stated that the activities of MK members in Lesotho took place with the apparent knowledge of the Lesotho Government.

MR LAMEY: And then the specific information came through via Intelligence reports from Ladybrand that over the festive season certain attacks were being planned.

GEN VAN DER MERWE: That is correct.

MR LAMEY: What is your specific recollection of how quickly the operation took place after you issued the order?

GEN VAN DER MERWE: Chairperson, I don't have a specific recollection. I have given evidence to that effect, so at this stage I would have to rely upon the factors which are available and any other available facts pertaining to this matter.

MR LAMEY: I don't think that this is such an important point, but I just want to put it to you that you would certainly accept that with such an operation and also where use was made of a reliable source, that a few days before there must have been some form of planning with regard to the execution of the operation, such as the suitable time and place and so forth.

GEN VAN DER MERWE: Chairperson I would accept that Col de Kock's unit would necessarily in co-operation with the Ladybrand Security Branch, have taken into account all possible information regarding the activities of MK members in Lesotho and that quite obviously they would have emphasised any other relevant facts to this information.

MR LAMEY: Is it also probably that even in the time preceding the point where you authorised the operation, the Security Branch or members of the Security Branch would have anticipated such an operation?

GEN VAN DER MERWE: Yes, the were all very experienced members and they would have known what the nature of the threat was and what could quite possibly be done in order to combat such a threat.

MR LAMEY: Thank you Chairperson, I have no further question.

NO FURTHER QUESTIONS BY MR LAMEY

CHAIRPERSON: Mr van der Merwe, if there had been planning before the time, or at least a meeting, would you have been present?

GEN VAN DER MERWE: Are you referring to the Security Branch at Ladybrand?

CHAIRPERSON: No, wherever. When it came to the planning of the incident.

GEN VAN DER MERWE: It would depend upon the form that the planning assumed and what I mean by that is that if members had collected information with the objective on a possible action, I would not necessarily want to put it as such that this was planning, with the objective on a determined action, but definitely planning with regard to a possible action which could be considered in the future.

CHAIRPERSON: Perhaps there is a misunderstanding here. The decision to attack had already been taken. You had already issued the order.

GEN VAN DER MERWE: That is correct.

CHAIRPERSON: As I have understood your evidence, you left it in the hands of certain members, Col de Kock and his unit?

GEN VAN DER MERWE: Yes, Chairperson.

CHAIRPERSON: And it was up to them to see to the practical proportion of the planning and to collect information.

GEN VAN DER MERWE: That is correct.

CHAIRPERSON: Well Mr Lamey has asked, or at least referred to some form of a planning session or meeting, if anything like that had occurred beforehand, prior to the attack, would have been involved in it?

GEN VAN DER MERWE: No, I wouldn't have.

CHAIRPERSON: Why not?

GEN VAN DER MERWE: It would have been the members on ground level who would have been involved because you must remember that such a meeting would not have taken place, only on one occasion. It would have been possible to arrange one singular meeting to deal with all the practical factors which they would have to take into account and what I mean by that is that it would most probably have taken place over a number of days. The fact remains that as the information led them and as the planning proceeded, they would have adapted their movements. One wouldn't have been able to attend one singular meeting and say: "These are the facts and this is what we're going to do".

CHAIRPERSON: But Mr van der Merwe, there must certainly come a time before the incident where all the aspects would have been covered, even if it was directly before the incident.

GEN VAN DER MERWE: Yes, that is correct.

CHAIRPERSON: And we are referring to such a meeting?

GEN VAN DER MERWE: No, I wouldn't have been present during such a meeting.

CHAIRPERSON: Would you then have been informed that everything was in place and that this was what they were going to do and that this was the information upon which they had based their decisions?

GEN VAN DER MERWE: Not prior to the time. If they had liaised with anybody, it would have been with Brig Schoon and if there were any real problems, it would have been relayed to me, quite obviously, but as a Commander, one never became involved in ground level planning, that was left over to the members and the operatives and this is how it was conducted consistently through all the ranks of the Security Police. There was never a case where the Commander himself became involved on ground level planning.

CHAIRPERSON: Why not?

M VAN DER MERWE: Because it would have been impossible, Chairperson. One must remember that one would have received various operations of such a nature from time to time and if a Commander had to attend all the planning sessions pertaining to these operations, he would never have been able to attend to his other work. His task was to be a manager on office level and not to become involved in matters on ground level.

JUDGE KHAMPEPE: And isn't it true Mr van der Merwe, I have not been able to be on the same wavelength with the way you have been answering the Chair's questions with regard to the number of times a meeting would have been convened by the ground Commander, in this case being Mr de Kock, in planning the execution of the operation. Isn't it true that you are not in a position to say anything to this Committee about the number of times such a meeting would have had to take place?

GEN VAN DER MERWE: Correct, Chairperson.

JUDGE KHAMPEPE: Because you had no control?

GEN VAN DER MERWE: Yes, that is correct.

JUDGE KHAMPEPE: You left everything in the hands of Mr de Kock.

GEN VAN DER MERWE: Entirely correct.

JUDGE KHAMPEPE: You would therefore be unable to say whether a single meeting would have been sufficient for the execution of this operation or not?

GEN VAN DER MERWE: Correct, Chairperson.

CHAIRPERSON: You are the person who must ultimately accept responsibility for what took place, isn't that so?

GEN VAN DER MERWE: Yes, that is correct.

CHAIRPERSON: Didn't you then expect that Mr de Kock would return to you just before the incident and confirm that everything was in order and that this was what they were going to do, this was the information that they had, that there were no children, that there were no other persons with the exception of the MK members in that place and that they were going to blow the place up?

GEN VAN DER MERWE: No Chairperson, it was only if there were essential problems which would obstruct the course of the operation, that they would come to me but they were experienced members and one will note consistently if one examines the evidence of the other members of the Security Branch, they acted independently by and large. With any such operations, there was never an arrangement for them to report back first. If the Commander on ground level was convinced that all arrangements were in order and that action could be taken, he would proceed, unless there were essential problems to the execution of the operation, then he would return to me,

CHAIRPERSON: So as I understand matters, the actual decision to attack was taken before you were notified of the practical situation?

GEN VAN DER MERWE: Yes, that is correct, Chairperson, if you mean by that before I could determine precisely what the circumstances were in the particular residences where the attack would be launched. I had the information and I identified the threat regarding that at that stage and I was aware that the operation was essential or necessary, but with regard to the arrangements made by Mr de Kock and his unit and the factors that they had to take into consideration, I had no knowledge about that.

CHAIRPERSON: Was the Government really concerned regarding the possibility that innocent persons could be killed during such an action?

GEN VAN DER MERWE: Yes, in either event it was an essential factor because whenever innocent persons were killed, this would quite obviously influence the climate and also in as far as it influenced future actions of this nature, quite often this had its own repercussions. it was definitely a factor.

CHAIRPERSON: What did you do, or which orders did you issue in order to prevent this?

GEN VAN DER MERWE: Chairperson, my orders upon such an occasion and I cannot state at this point that I would have reiterated it as such, were quite usually to take all precautionary measures possible to prevent that any persons who were not directly involved in such violence be killed or injured.

JUDGE KHAMPEPE: May I just make a follow-up on this, Mr van der Merwe? At the time when you gave Brig Schoon the instruction to proceed with the execution of this operation, did you have sufficient information with regard to who constituted the so-called Leon Group? Did you know how many people consisted of that particular group because I would imagine that if your answer to the Chair then is correct, you must have had some kind of information in terms of the numbers of the group.

GEN VAN DER MERWE: Chairperson, may I respond? As I've already stated during my evidence, I can no longer recall it, but it is most probably the case that at that stage we would have had the names of the members of the group who were involved as well as their complete backgrounds because that would have been the regular basis upon which the Security Branch operated, therefore that information would have been available, but furthermore it is also quite obvious that Col de Kock and his unit in consultation with the Security Branch at Ladybrand, would once again have controlled that information because you will hear when Mr de Kock testifies, and this is also my similar experience over the years, they would have informed themselves that wherever they acted, they could be convinced completely that such a threat did indeed exist. They would also have been fully informed that such an action was indeed possible and well-founded and that they could act on such assumptions.

JUDGE KHAMPEPE: So you knew at least how many people your instruction involved in terms of the execution of the operation?

GEN VAN DER MERWE: I would have known, Chairperson, but as I have said previously, when one planned such an operation, there were many unpredictable factors to be taken into account. We would have known against which targets we wanted to take action. Mr de Kock and the others would have known this as well. They would have acted in consultation with the Security Branch Ladybrand and controlled all relevant information. That to me is steadfast.

JUDGE KHAMPEPE: Thank you.

CHAIRPERSON: Mr Berger, I assume you're going to be quite a time?

MR BERGER: A fair length of time, yes Chairperson.

CHAIRPERSON: Would it not be prudent then to give Mr Joubert and Mr Treurnicht an opportunity because I don't think they are going to be any length of time?

MR BERGER: Yes, Chairperson. In any event I thought that we would go last, just before Ms Patel.

CHAIRPERSON: Yes.

MR JOUBERT: May it please the Chair. I have no questions thank you.

NO QUESTIONS BY MR JOUBERT

CROSS-EXAMINATION BY MR TREURNICHT: As it pleases you, Chairperson.

General, I am not certain whether I should spend very much time with you, but perhaps it would be necessary ultimately. May I just ask you for the sake of clarity regarding what you have said and I want to examine you regarding the reference to the CIC, how this came to be important in your evidence and for these purposes I will have to refer you to one or two documents. If you look at Volume 1, that would be the amnesty application of Brig Schoon, that is page 141 of volume 1. Do you have it?

GEN VAN DER MERWE: Yes, I do.

MR TREURNICHT: There is a paragraph there (iv) and the title is nature and particulars. It has been divided into two paragraphs and I am referring to the last section of the first extended paragraph and it reads as follows. It states how Maj de Kock was sent to determine how the operation could be operated.

"Maj de Kock presented a report in which he summarised a number of targets briefly and also motivated his reasons for action against the targets. I conveyed the report to Gen van der Merwe and he discussed it on that very same day still at CIC and achieved approval to launch the operation."

Now I understand your evidence to the effect that Brig Schoon apparently had no first-hand knowledge of what took place at CIC.

GEN VAN DER MERWE: That is correct.

MR TREURNICHT: The following statement is then your amnesty application of which there is an extract on page 97 of volume 1 and I would like to refer to the extract appearing on page 93, or 103. Once again (iv), nature and particulars, and there you say

"I have taken cognisance of the contents of Brig Willem Schoon's application regarding this incident. Although I can recall the event, I cannot remember if or at what stage the matter was dealt with by the CIC as I do not currently enjoy access to the minutes of the Committee."

May I ask you directly whether Brig Schoon's reference to CIC and the alleged approval by the CIC was instrumental in the fact that this statement appears in your amnesty application.

GEN VAN DER MERWE: That is correct, Chairperson. Indeed it was the report and I could put it to you quite pertinently that when we applied for amnesty, I had forgotten this incident completely and Brig Schoon fixed my attention thereupon and told me or asked me whether I remembered that he gave me a report which was completed in red ink, a report which I submitted to one or other CIC meeting and that thereafter I gave authorisation for the operation and I accept that he drew the inference because I told him thereafter that he could continue with the operation, but the operation had been approved by CIC and as I stated in my application, this would not be correct.

MR TREURNICHT: So therefore we can accept that the CIC did not have any capacity to approve or disapprove?

GEN VAN DER MERWE: That is correct.

MR TREURNICHT: I understand that the position with the CIC is precisely what its name meant, that it was supposed to co-ordinate Intelligence.

GEN VAN DER MERWE: That is correct.

MR TREURNICHT: And one of the objectives was with this co-ordination, to prevent that one of the elements of the Defence Forces would act and then possibly in the process, prejudice on of the other units for example the destruction of certain sources during attacks?

GEN VAN DER MERWE: Yes, it was actually aimed more at preventing any kind of over-lapping or any kind of clash, but it wouldn't have led to the extermination of sources, because nobody knew whose sources were whose. It wasn't something that one could deal with at a CIC, one wouldn't say: "Remember now, that person and that person and that person are sources." One would have been able to say that an action would be taken and that if there were any sources, those sources were to be removed timeously.

MR TREURNICHT: But this would be without knowing who exactly were the sources and who those sources belonged to?

GEN VAN DER MERWE: That is correct.

MR TREURNICHT: Now it is very clear to me, at least and if you differ from me I will indicate to you why it is very clear to me, that during the CIC meeting of the 3rd of December of 1985, this attack was never discussed.

GEN VAN DER MERWE: No, but definitely the possible use of violence.

MR TREURNICHT: Very well. Did you at any stage see a minute from a CIC meeting after the 3rd of December and before February, when they would have had a meeting according to the minutes?

GEN VAN DER MERWE: No, Chairperson.

MR TREURNICHT: Did you make any attempt to trace such a minute?

GEN VAN DER MERWE: Yes, since the first day upon which we have applied for amnesty, I requested for those CIC minutes to be obtained.

MR TREURNICHT: Now if I understand your evidence correctly, you weren't certain whether a meeting took place subsequently or as your advocate put it, whether it was consulted among the role players at CIC.

GEN VAN DER MERWE: That is correct.

MR TREURNICHT: And you still don't know, to this very day?

GEN VAN DER MERWE: That is correct, I can only rely on probabilities today.

MR TREURNICHT: Yes, you mean according to probabilities you would have informed some of the role players at the CIC.

GEN VAN DER MERWE: Yes, and I would have consulted with them, that is very important.

MR TREURNICHT: What would the idea have been with the consultation?

GEN VAN DER MERWE: For me as an individual who was second in command of the Security Branch, it would have assisted me in determining whether or not my judgment had been prudent, whether in terms of the other role players, there may have been other factors which would have made such an action inadvisable.

MR TREURNICHT: According to the probabilities, wouldn't you rather have consulted with your superiors?

GEN VAN DER MERWE: No, the persons who were the best informed, who at that stage were already involved with the threat which existed in Lesotho, who were supposed to have had all the information pertaining to it, were the members of CIC.

MR TREURNICHT: Now if I understood you correctly yesterday, the idea was that this type of covert action would not beforehand be disclosed to the Minister.

GEN VAN DER MERWE: Not in such a manner that it would compromise him Chairperson, definitely not, because it would have been unwise to do so, that it could be later traced back by means of documents or which other clues could be left behind.

MR TREURNICHT: I do not understand that answer. If you say that you could not convey it over in such a manner, would you tell him, or would your not tell him at all?

GEN VAN DER MERWE: I do not say I personally, but one could have done so verbally, without anything being noted down about it.

MR TREURNICHT: So with regard to this incident, the Minister was not informed beforehand?

GEN VAN DER MERWE: No Chairperson.

CHAIRPERSON: Through my hearing of many matters, I've learned that the Security Police had their own cryptic language.

MR TREURNICHT: The fact of the matter is while CIC according to you, did not make approvals or disapprovals, they didn't have the capacity to do so and therefore could not authorise and you did not tell the Minister beforehand, the necessary inference was that this operation was as a matter of fact your operation, am I correct?

GEN VAN DER MERWE: Yes, that's correct, Chairperson.

MR TREURNICHT: Did you have opportunity to peruse the statement of a certain Mr Elvis McCaskell?

GEN VAN DER MERWE: Yes I have Chairperson.

MR TREURNICHT: And did you take not that in that statement reference is made to more than one visit to Maseru by Mr de Kock and his men?

GEN VAN DER MERWE: That's correct, Chairperson.

MR TREURNICHT: In truth, when one studies that document one gleans the impression that Mr McCaskell was describing how over a period of days, there were discussions with him. He was called to Ladybrand and at one stage there was a meeting in Maseru where the apparent attack would have been launched and then eventually the final attack is launched. Do you agree with me that that is the impression that one might get?

GEN VAN DER MERWE: Yes.

MR TREURNICHT: But I am not saying that this is the truth that he was saying, this is just the impression that I gleaned from what he has said and it would seem to me that we have the same impression. Now if that is so and a few days before the final attack on the Friday, if there was an attempted attack by Mr de Kock and his men, would you accept that that attempt would have been in accordance to your instruction or would this have been a frolic of his own?

GEN VAN DER MERWE: Chairperson at this stage what I cannot determine is in which aspect Col de Kock had beforehand, in consultation with Ladybrand, in order to gain information as to how to launch this attack and this for the purposes of their own operation, in other words to collect intelligence and to take steps and the identification of MK members who might enter the country.

MR TREURNICHT: A final aspect. You gave evidence about the knowledge that the authorities had had the following day, this is later in the day of the 20th of December?

GEN VAN DER MERWE: Yes that's correct.

MR TREURNICHT: And you said this specifically to a reference to the extra-ordinary SSC meeting of that day. May I just commence by asking you, were you aware and this is how I understood it happened, that the then State President would usually call such an extra-ordinary meeting about a week before Christmas. Did you know that?

GEN VAN DER MERWE: No, I did not.

MR TREURNICHT: If you think back now, was it so?

GEN VAN DER MERWE: Chairperson, I was never involved in any SSC meetings of the previous State President.

MR TREURNICHT: I am not saying that you had to be involved.

CHAIRPERSON: But do you have knowledge that such meetings were held?

GEN VAN DER MERWE: I know of this one of the 20th of December Chairperson.

CHAIRPERSON: The question was whether it was habit.

Mr VAN DER MERWE: I don't know, Chairperson.

MR TREURNICHT: You did not pick it up from any of the minutes?

GEN VAN DER MERWE: No, I didn't have insight to any of the minutes of the SSC.

MR TREURNICHT: You are saying that morning, it's once again an inference and you say you are dealing with probabilities as to why it would be so and the one that you mention is that the newspapers carried reports from that afternoon.

GEN VAN DER MERWE: I did not see the newspapers of then, but I saw a list of newspapers here now or a list of reports that were printed.

MR TREURNICHT: And I don't know if I do not get the point here, but ...(intervention)

CHAIRPERSON: Mr Treurnicht, can we number this bundle?

MR TREURNICHT: We do have three volumes, so shall we number it number 4.

MS PATEL: Sorry Honourable Chairperson, perhaps its more appropriate to mark it Exhibit B because it's not officially attached to the other bundles.

MR TREURNICHT: I've no problem with that, if its Exhibit B.

MR HUGO: Chairperson, may I be of assistance because otherwise we would waste a lot of time. There is quite a large report here and it reads as follows.

MR TREURNICHT: What newspaper was it?

MR HUGO: The Volksblad.

"Secrecy enshrouded of the attack upon which 9 South Africans were killed."

MR TREURNICHT: What is the date of it?

MR HUGO: The 20th and the report goes on

"This morning's attack in Lesotho", I don't think anyone would have missed it and I don't think the SSC would have missed it.

MR TREURNICHT: What newspaper was it?

MR HUGO: It was the Volksblad.

MR TREURNICHT: Is this a morning paper?

MR HUGO: It is not the Pretoria newspaper, it is from Bloemfontein.

MR TREURNICHT: Even worse.

MR BERGER: Chairperson we put together Exhibit B and it doesn't purport to be an extensive coverage of newspaper reports.

MR TREURNICHT: I didn't know that but I accept it. And the Volksblad is an afternoon newspaper in Free State or was, I don't know if it still is. Very well. In December 1985, there was not much doubt with the Security Forces that the fight would be won against the insurgents?

GEN VAN DER MERWE: That's correct.

MR TREURNICHT: And apparently there was no reason, would you agree, to manipulate CIC or SSC minutes or to hide them?

GEN VAN DER MERWE: Chairperson except for where it was covert actions and from principle we would have dealt with it in that manner so that it could not be traced back to the government of the day or to the system itself.

MR TREURNICHT: Yes, but who in the SSC would disclose this covert action?

GEN VAN DER MERWE: Chairperson it's extra-ordinary how many times it happened that persons at some or other time walked over to the enemy with documents in their possession, there are many examples.

CHAIRPERSON: Back then?

GEN VAN DER MERWE: Yes, one could never note documents where documents of an incriminating nature were kept.

MR TREURNICHT: So why would the SSC, if it had noticed that its own forces had launched an attack at that stage, why would they not take cognisance of this amongst each other?

GEN VAN DER MERWE: That's exactly my question Chairperson, why would they not openly note this.

CHAIRPERSON: Amongst each other?

GEN VAN DER MERWE: Yes, but I would have expected that they would have discussed this amongst themselves. I would have expect that, but even more I would have expected if they did not know that the State President would have contacted Dr Barnard who was the Chairperson of CIC and tell him: "Find out what happened, because this touches the core of the problem that we have to deal with." Firstly that and then secondly, attached to that is that as you would see why I would say that this was highly improbable that the SSC could not have known about this. you have to recall the security briefing that was done tells them, here is a crisis, here were MK members in Lesotho ready to enter the RSA to commit acts of terror, but what does the SSC decide? It just says: "No urgent decision". They decide. One diplomatic negotiation. Mr Botha told them: "On the 13th of December I sent a note to Lesotho in which I warned them about these activities and I also warned them that the RSA would take action". And secondly, selective border control measures. It does not say anything about the threat. Chairperson, if one comes here to tell me that the SSC at that date could have taken such a decision in the light of the threat, then I would say I would really recommend that the SSC be fired on the spot, right there.

CHAIRPERSON: Excuse me Mr Treurnicht. You say beforehand and I do recall that I read it somewhere, the government of Lesotho was warned that action will be taken.

GEN VAN DER MERWE: That is correct Chairperson.

CHAIRPERSON: And then on the 20th action was taken. Did you know when you took this decision to give this instruction that the government of Lesotho had been warned?

GEN VAN DER MERWE: I conveyed the request to the Department of Foreign Affairs, who did undertake to do so and at this time I am not able to tell whether in my consultation with members of CIC, whether I received confirmation. I do no recall it.

CHAIRPERSON: What do you think?

GEN VAN DER MERWE: I definitely thought that it would be done, Chairperson.

CHAIRPERSON: And how did you surmise that no-one would have known who it was? There was a warning, we will act if you do not do this, this and the other. They don't do it and action was taken. Why do the people not think that the world would know that it was South Africa? Why was it being kept secret?

GEN VAN DER MERWE: Because the government could deny it because it could not be traced back to the government although I think any reasonable person who was involved during that time would have said that the reasonable suspicion would indicate that it was the Security Forces. Of course we knew that it was the Security Forces, but they could not prove it and they could not trace it back to the government and this enabled the government with regard to that. They could deal with the matter as if it was not its Security Forces, but the government itself, if you recall, they released a press statement where at that opportunity during the SSC meeting had said that force would be used against neighbouring states who allowed MK members to develop bases in their countries and be a threat to South Africa.

CHAIRPERSON: Well a person had to be extremely stupid if they could not find out who it was.

GEN VAN DER MERWE: But that is what I say, it is unthinkable that anyone at that stage could have thought that it was not our Security Forces.

MR TREURNICHT: There were other role players who alleged that they launched the attack. Was it not the Lesotho Liberation army?

GEN VAN DER MERWE: Yes, but any person of an Intelligence Service who believed that, we knew that they couldn't do it.

MR TREURNICHT: Now that we have determined that no-one during December 1995 wanted to manipulate minutes because they thought that someone else might read it later and say it was a whole lot of nonsense, I would like to ask you if you would look at page 119 of bundle 2, that is where these minutes of this SSC appears, under C Lesotho, there was the report from Minister Botha, Pik Botha and the paragraph continues

"The meeting hereby approves"

I apologise, it is volume 2, 109. This paragraph says that:

"The Meeting here approves stricter action against Lesotho and degrees of intensity"

and then you see the degrees of intensity there. What is your suggestion? What were these people doing here? Were they busying themselves with a game here by placing this action in degrees where they placed force across the border last?

GEN VAN DER MERWE: Chairperson, this was for future use. This did not deal with the immediate threat because anyone who wanted to pretend that these steps would have added to the prevention of these members of MK coming into South Africa and once again anyone who believed that, I have my doubts. This could not have been relevant to that.

MR TREURNICHT: So your theory is that they knew and they did not deal with it in the minutes?

GEN VAN DER MERWE: This is the only reasonable inference I can draw based upon the facts available to me, Chairperson.

CHAIRPERSON: But Mr van der Merwe, in the middle paragraph

"The meeting here approves that stricter action be taken against Lesotho"

How much stricter could it be?

GEN VAN DER MERWE: Chairperson, the only manner in which one could prevent MK members who were ready to enter the country, was by means of force.

CHAIRPERSON: I do not argue that. Your answer to Mr Treurnicht says that this guideline refers to future action. How can that be? Why do they discuss future action if they had already done the strictest thing they could?

GEN VAN DER MERWE: No you must understand that this only prevented the immediate threat.

CHAIRPERSON: So how much stricter could they have acted than what was done?

GEN VAN DER MERWE: I think the intention was that if this action did not have the desired effect, it was then by means of border measures, we could strangle Lesotho to death so that no-one from the ANC could enter or come out of Lesotho.

ADV BOSMAN: If I may be able - if I may - what you are saying is that your action here is ...(indistinct) here in the minute. The situation was discussed and you are saying now measure were accepted here in order to say that if something like this happens again, then these measures would be used in this sequence.

GEN VAN DER MERWE: Correct, Chairperson, one has to keep in mind that we had only prevented the immediate threat, but the threat as itself did not disappear, there were other MK members and Lesotho itself from its side as the SSC would have taken note at that stage, allowed those developments to take place, so if there was another threat, then these steps would have taken care of that.

CHAIRPERSON: And after they had used force, there would be diplomatic negotiations afterwards.

GEN VAN DER MERWE: It does not make sense Chairperson, because as I have said, previous diplomatic negotiations had taken place.

CHAIRPERSON: But they have already used force.

GEN VAN DER MERWE: Yes, they have but in the light thereof, I said I agree with you, that is why I'm saying this could not have made sense.

CHAIRPERSON: But that is what Mr Treurnicht is saying.

MR TREURNICHT: I asked you this question because I realised that the effect of what you are saying in your amnesty application is: "Actually I am not aware of the facts with regard to other role players excepting myself, with regard to the development and establishment of the operation, but I shall give you a perspective using probabilities" and my question was aimed to indicate to you that some of these probabilities are not so probable. Do you understand the extent?

GEN VAN DER MERWE: I still think it is probable.

MR TREURNICHT: Thank you Chairperson, no further questions.

NO FURTHER QUESTIONS BY MR TREURNICHT

MR BERGER: Thank you Mr Chairperson. I beg your pardon? It looks like Mr Visser would like to take tea.

MR VISSER: Aren't we taking a tea adjournment today?

CHAIRPERSON: ...(indistinct - mike not on) Oh I see.

COMMITTEE ADJOURNS

ON RESUMPTION

JOHANNES VELDE VAN DER MERWE: (s.u.o.) CROSS-EXAMINATION BY MR BERGER: Thank you, Chairperson.

Mr van der Merwe you say immediately after the raid, within hours of the raid, no clear thinking person would have been in any doubt as to who was responsible for that.

GEN VAN DER MERWE: That is correct, Chairperson.

MR BERGER: You also told the Committee that in the days preceding the raid, Department of Foreign Affairs had sent a diplomatic note to Lesotho warning them that if they did not take action against ANC operatives in their country, that the South African Government would take action.

GEN VAN DER MERWE: Correct Chairperson.

MR BERGER: And no-one could have been in any doubt what the South African Government meant. If you, Lesotho, don't get rid of these people, we'll get rid of them for you. Would that be fair?

GEN VAN DER MERWE: I think that is how a reasonable person would have understood it.

MR BERGER: And so the Lesotho Government would understand that that diplomatic note meant: "If you don't take action, we are going to cross the border and take action violently."

GEN VAN DER MERWE: It would probably have been understood that way, yes.

MR BERGER: And once the Lesotho Government has such a note, then that note is going to be made public at the United Nations and then the entire world will know that shortly before the raid, the South African government threatened violence.

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: So what I don't understand is, why are you being so careful to shield the politicians from knowledge beforehand. Why couldn't they have the knowledge before the raid, that they had after the raid?

GEN VAN DER MERWE: There is one aspect that I must emphasise quite emphatically. I only have one interest and that is with the former members of the Security Branch who had to execute their tasks and for the former government which is being confronted with its past. At this stage I have these interests at heart. In my evidence before the Amnesty Committee on previous occasions, I have never evaded the fact that I had information which I did not disclose so in this case I would not have evaded the issue, if I had knowledge about it. The only reason why I cannot put it more clearly is because I didn't know.

MR BERGER: Mr van der Merwe, let me put the question slightly differently. Is there any reason why Gen Johan Coetzee could not have been informed before the raid that the raid was being contemplated?

GEN VAN DER MERWE: He wasn't available. He was in Port Edward and at that stage I didn't regard it as vital for him to be informed beforehand in the light of the fact that I issued the order ultimately and I also had to accept responsibility for it.

MR BERGER: Why was he in Port Edward?

GEN VAN DER MERWE: At this stage I cannot state this. I was only made aware of this recently. All I know is that he wasn't available during the relevant period in order for me to consult with him. That is also the reason why he was not informed about the action prior to it being executed.

CHAIRPERSON: Mr van der Merwe, with the resources at you disposal at the time, if you wanted to have him informed you could have.

GEN VAN DER MERWE: I could have, yes, but I did not regard it as necessary.

CHAIRPERSON: The reasons that he wasn't informed had nothing to do with him being in Port Edward.

GEN VAN DER MERWE: Indeed it does, because he was readily available, I would have informed him, but I did not regard it as necessary to go to such an effort to find him in Port Edward by means of measures which we had at our disposal, which would have been crypto reports and this would have been done by means of such a report which would have contained its own inherent complexities with regard to delivery and so forth, so it wouldn't simply have been a case of informing him per telephone, it would have required a whole operation to inform him and I did not regard it as necessary under the circumstances and, I beg your pardon Chairperson, I did not keep it from him because immediately after this action, I discussed the matter with him, so I did not fear for one moment that my action wouldn't enjoy his approval, but on the other hand I was of the opinion after the consultation which I conducted that in light of the threat at hand, I was to continue with the operation and that is indeed what I did.

JUDGE KHAMPEPE: Mr van der Merwe I'm still not with you with regard to whether it was your original intention to inform Mr Coetzee of your intended action or not.

GEN VAN DER MERWE: Chairperson, I would quite obviously have informed him about the matter after the incident, when he was available which is indeed what I did.

JUDGE KHAMPEPE: Was it your intention to inform him before the operation?

GEN VAN DER MERWE: Not before the operation because as I have stated, I did not regard it as necessary before the time because he was not available and because it would have required much effort and time along with quite a risk, to find out where exactly he was in Port Edward.

CHAIRPERSON: If he was available in Pretoria or wherever, easily available, would you have informed him before?

GEN VAN DER MERWE: Yes, Chairperson, purely out of respect I would have informed him before the time because normally he would have expected, if he was available, for me to inform him about it prior to the time.

JUDGE KHAMPEPE: When did you ascertain that he was not immediately available?

GEN VAN DER MERWE: Chairperson, I deduced this immediately because I did not consult with him beforehand, that he was not available, but there would have been a reason why I could not consult or liaise with him beforehand regarding this matter.

JUDGE KHAMPEPE: Thank you Mr Berger.

CHAIRPERSON: This whole operation involved murder, arrogant transgression of the international law relating to sovereignty and yet you don't inform him, you don't regard him as a person that needed to be informed and to get his comments.

GEN VAN DER MERWE: No Chairperson, this is why I have stated repeatedly that I consulted with members of the CIC and expected in all reasonable manners that this information would have been conveyed to the SSC as they would have regarded it as necessary. I think the mere fact that when I informed Mr Coetzee about it after the incident and he in turn informed the Minister and that no criticism was offered about this at all, it confirmed to me that there was agreement with my action.

JUDGE KHAMPEPE: But Mr van der Merwe isn't it true that you didn't know how the State Security Council was going to react once it became - once it came to the fore of what had happened by members of your unit, that is the Security Police. You didn't know how they were going to react.

GEN VAN DER MERWE: That is correct Chairperson. As it happened with many of this sort of operation, one had to allow oneself to be led by standpoints which were made at certain points and certain subtle guideline which were offered to one. I have quoted such guidelines previously and according to this, I had to judge whether or not my action would enjoy the approval of the SSC because there was no other manner in the light of the fact that this was a covert operation that I could consult with the SSC before the time, in order to determine whether or not it would enjoy their approval.

JUDGE KHAMPEPE: If attempts had been made to speak to Mr Coetzee who was a member of the SSC, I take it, at that time, was he not?

GEN VAN DER MERWE: That is correct, Chairperson

JUDGE KHAMPEPE: Don't you think, with hindsight, that really would have had the effect of ensuring that prudent action from your side is taken to make sure that your action is not out of sync with the image which the SSC wanted to portray of this country? As I have listened to your evidence yesterday, there was concern that this regime should not be seen as a police state.

GEN VAN DER MERWE: No, Chairperson, at that stage I was sincerely of the opinion that we, among the ranks of the CIC, upon the occasions when these aspects were discussed, could determine the climate quite well. When it came to this particular action, I myself was quite thoroughly aware of the attitude of the government in as far as it had to do with the general political climate and because this was a covert action and had to be conducted in such a manner that it would not be traced back to the government, the government would, in as far as possible, have been disguised. If my action did not enjoy the approval of the SSC and once again let me just reiterate that they must not come forward with the idea that nobody knew because at this stage it is quite common knowledge that they must have known that it was the Security Forces and they would have known after the action that we were involved in it, then I can assure you my career would have been cut short quite quickly, if the SSC had not agreed with it.

JUDGE KHAMPEPE: Yes. Thank you Mr Berger.

MR BERGER: Thank you Judge. So Mr van der Merwe on your version then all the members of the State Security Council including Mr Coetzee, are guilty of being accessories after the fact, to murder?

GEN VAN DER MERWE: No Chairperson, ...(intervention)

MR VISSER: Mr Chairman, may I please come in here? I have not made any objection beforehand because I thought that we might be able to avoid it but Chairperson, with great respect, you have before you at page 55 of volume 3, you have a document which was drafted by Messrs David Dison, Norval, Ameer and Ndlovu which sets out reasons why certain subpoenas had to be issued. Now strange things happened around this. I'm not going to go into that in detail. My attorney asked for motivation for the subpoenas. This was never presented to us to give you the benefit of our comments thereof, but please allow me to make two comments. In the first paragraph, the whole basis for the issue of subpoenas and it's now becoming relevant, was that full disclosure is set out by the writer of this document as the same as a full and complete picture as possible that needs to be painted. Now that's clearly not correct. In an amnesty application all that needs to be done is that it is for the applicants to present you with evidence which you will regard as a full disclosure of the relevant facts. There's no question, there's no issue here of as full and complete picture as possible, that was in the Human Rights Violations Committee. It's not the test here, but Chairperson, this has now gone to the next step and that is to what is relevant here. For the purposes of Mr van der Merwe and Mr Schoon's amnesty applications what happened after the raid and whether and this is specifically referring to the question now being put, whether other politicians or persons were criminally liable as accessories after the fact, has absolutely but absolutely nothing to do with what is going on before this Amnesty Committee at this stage, namely an application for amnesty for the raid in 1985 into Lesotho. Unless and that is why I have been keeping quiet, unless my learned friend wants to take the line that what happened afterwards, can reflect on the credibility of this witness before the raid. That's a different matter and I certainly won't make any objection to that, but that is not the point here. The point here is the persecution of people who are not applicants in this case and an attempt is made to implicate people who have not applied for amnesty in this case and with great respect, what has that got to do with the victims, Chairperson? And that Mr Berger has not informed you on what basis, as the Amnesty Committee has laid down quite clearly, an objector must come to you and tell you what the basis of his objections are. Now what is he doing? He is now gunning, if I may use the word, for politicians. He's actually suggested to Gen van der Merwe and it's strange after the frank evidence, if I may say so, that you've heard from him, that he's trying to protect politicians. He's not trying to do that at all. But apart from anything else, it is completely irrelevant for purposes of his amnesty application, unless it can be shown on the merits of his evidence and on the probabilities that he's lying to you because then he hasn't made a full disclosure and I won't object to that. But I do object, Chairperson, that we are going to sit here and listen for days and days on end to Mr Berger and it's not the first time and his leader Mr Bizos, the attempt was made already in the London Bomb case and there was a judgment.

CHAIRPERSON: ... (indistinct - mike not here)

MR VISSER: Yes, I shouldn't do that, by my learned friend was there and he's here now and with great respect Mr Chairman, if you rule that you want to listen to whether or not State President P W Botha was guilty of being an accessory after the fact or Gen Coetzee or Dr Neil Barnard, well then its out of my hands, but I'm just placing it on record that it's irrelevant for purposes of this man's amnesty application, with great respect.

CHAIRPERSON: Do you concede that, if that line is an attempt to discredit this witness, then there's no problem?

MR VISSER: Then I've got no problem. Then I've got no problem, Chairperson, and I wouldn't object, but then at least some basis has to be laid, any relevant facts.

CHAIRPERSON: I want to put something to you, Mr Visser. It did concern me also, but perhaps sitting here one has a different perspective of the matter than one would have sitting there.

I think maybe his third question, Mr Berger suggested, I don't know in what terms but suggested that the witness was somehow protecting people who had not made application. What would you say if Mr Berger is able to prove that is so, would that not impact on the witness's credibility?

MR VISSER: If there is a basis for that, yes, certainly but the question was put on the basis of his evidence and there's nothing on his evidence that vaguely suggests to you that he was trying to protect people. In fact he was telling you: "I don't remember all these things, but if you ask me on the probabilities, I'll tell you that they must have known". Now how is that protecting the politicians, Chairperson, with great respect? But if my learned friend has something up his sleeve, why doesn't he put it to the witness, to tell him; "You're lying. You're protecting these people because, look what I've got", but not to put it to him on his own evidence, Chairperson.

CHAIRPERSON: ...(indistinct - mike not on)

MR VISSER: Yes. Yes.

CHAIRPERSON: ...(indistinct - mike not on)

MR VISSER: I bow to your ruling, Chairperson, except just for one thing and that is please, I would ask the Committee Members to bear in mind as to what is relevant here and what is not, with great respect. If it's going to turn out to be an attempt at a persecution of other people, then clearly, Chairperson it's in your hands if you want to listen to it, but it's not going to take the amnesty applications any further. Thank you Chairperson.

CHAIRPERSON: Mr Berger, you can proceed but just bear in mind what the comments were.

MR BERGER: I shall, Chairperson but I would just like to inform Mr Visser that Mr Bizos is not my leader in this matter.

MR VISSER: Don't talk to me across the floor, address the Chairman.

MR BERGER: Chairperson, I should inform my learned friend through you that Mr Bizos is not my leader in this matter. Secondly, the letter that my learned friend refers to, sets out quite clearly what, we would submit, are very relevant matters to this application namely who gave authority for this raid and if the authority goes higher than Mr van der Merwe, then Mr van der Merwe has not given full disclosure of all relevant facts, it's as simple as that.

CHAIRPERSON: Proceed.

MR BERGER: Thank you Chair. Mr van der Merwe we can leave out the legal labels. On your evidence, you're saying that Mr Coetzee and the other members of the State Security Council had knowledge after the fact of the murders and tacitly approved your conduct and took no steps, no disciplinary steps against you.

GEN VAN DER MERWE: Chairperson I said that at the hand of certain probabilities which I have stipulated quite clearly ...(intervention)

CHAIRPERSON: I want to ask Mr Visser something. Mr Visser the Coetzee who is an applicant, is that the same Coetzee now being spoken about?

MR VISSER: No Chairperson that is why we made a point in that annexure to Exhibit A, to tell you that it's not Coetzee its Coetzer. Gen Coetzee is not an applicant. What happened here and you will - he's been subpoenaed and he's here and we're not going to object to the subpoena at all so he's going to give the evidence but what he said, Chairperson, is that he made a mistake with the reference to the date. He was referring in his evidence to the Human Rights Violations Committee, I believe it was, to 1985 when it should have been 1982 and a letter was addressed to you which is now at page 112, I'm not quite sure where it is now, whether it's Exhibit B, or part of bundle 3, in which that has been set out and that has been dealt with in this document at page 55 of volume 3, which I've just told you. In fact an attempt there is made to say that he's not being truthful about it because in 1982 he wasn't the Commission of Police, or some such argument.

JUDGE KHAMPEPE: But that's beside the point, Mr Visser, let's not get into that arena. Mr Coetzee initially applied and after his application had been submitted to the TRC, he then discovered that he had mistaken the 1982 raid for the 1985 raid and it was on that basis that he subsequently withdrew his application. He is no longer an applicant before us.

MR VISSER: At this stage there is no Gen Coetzee as an applicant for this incident before you, that is quite correct. That's quite correct. But would you just bear with me one moment, I'm not quite certain whether he has applied at all for the Lesotho raid beforehand. Let me just make sure of that.

JUDGE KHAMPEPE: We've got his application, it's forming part of our bundle.

CHAIRPERSON: Of Volume 1. That's why I ask this.

MR VISSER: No, Chairperson, I am correct. There was never an application for any Lesotho raid by Coetzee. What happened was that he gave certain evidence and in his amnesty application an extract of his evidence before the Human Rights Violation Committee was attached and so ...(intervention)

CHAIRPERSON: Listen to me carefully. Look at Volume 1 page 62 or 61.

MR VISSER: Page 61, Chairperson?

CHAIRPERSON: Ja. Now on page 62 reads

"The application for amnesty in terms of Section 18" etc etc,

under paragraph 8(b) at the foot of that same page he describes himself as an Officer Commanding Security Branch during a certain period and a Commissioner thereafter. Are we talking about the same person?

MR VISSER: We're talking about the same person, Chairperson, but what you're not aware of is that at page 63 in the London Bomb application, Gen Coetzee gave evidence because he was an applicant there and he rectified certain errors. One is that it did not concern extraterritorial operations, in the plural, but in the singular. It had to do only - his only application was for one extraterritorial operation and that was the London Bomb. That was taken to be amended Chairperson and then as far as the dates were concerned, my learned friend was there, if he wants to he can confirm this, that was - that as well was amended and he was cross-examined at length about this Chairperson and he made it quite clear that he never made any application for the, well at least for the Lesotho and there were others as well, but what he did Chairperson is, he was request on subpoena to appear before the Human Rights Violations Committee and he was asked by them, he was given a letter and a list of incidents and he was asked to comment on each of those incidents and inter alia he commented on the incident which is now attached to his amnesty application. It should never have been attached to his amnesty application.

JUDGE KHAMPEPE: ...(indistinct - mike not on)

MR VISSER: Yes, Chairperson, I believe you're correct Chairperson and you will see it's, quite clearly, Chairperson, something that has been attached from another record and here reference is made to 85 and he says that reference was 82, it's an incorrect reference and that's how - the short explanation of how it came about that it was taken that he's also an applicant here. He's made it quite clear that he isn't an applicant and it was also mentioned at the pre-trial conference by my attorney, that was also made clear, Chairperson. I hope that answers your question, Chairperson.

MR BERGER: Thank you Chairperson. Chairperson, just for the record, Mr Coetzer is not an applicant in these proceedings. Mr van der Merwe how many cross-border raids did you authorise in your career?

GEN VAN DER MERWE: Chairperson, I was involved in three incidents.

JUDGE KHAMPEPE: Authorised.

MR BERGER: Authorised.

GEN VAN DER MERWE: I authorised two incidents.

MR BERGER: Which were?

GEN VAN DER MERWE: One was an incident in Swaziland and then this one. The incident in Swaziland, I'm afraid that I don't have the details at this stage but it must have been during 1986 or 1987 approximately. 1987 Chairperson.

MR VISSER: Chairperson we can get this information.

CHAIRPERSON: A year is not going to make a difference. It's in the region of 86 to 87, isn't it?

MR VISSER: Ja.

CHAIRPERSON: And the second?

GEN VAN DER MERWE: The second incident was the Lesotho incident.

MR BERGER: So the Lesotho raid was the first time in your career that you authorised a cross-border operation?

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: If Mr Coetzee had been present, you would have discussed the raid with him beforehand?

GEN VAN DER MERWE: If he had been available, yes, Chairperson.

MR BERGER: The reason you didn't discuss the raid with him beforehand is because he was on holiday in Port Edward.

GEN VAN DER MERWE: Correct, Chairperson and also - yes that is correct, I didn't regard it as necessary to go and inform him of all the details pertaining to this matter.

MR BERGER: Well, if he'd been present.

GEN VAN DER MERWE: Yes, I would have.

MR BERGER: You would have? You would have considered it necessary to discuss the raid with him, if he'd been present?

GEN VAN DER MERWE: That is correct.

MR BERGER: Now, you confirmed following on from a question from the Chairperson, that or perhaps it was a comment and you didn't confirm, perhaps you can confirm now, that the Security Police had their own language.

GEN VAN DER MERWE: Chairperson no, let me put it as such. We had certain means but if you want to say that we had our own secret code language or something like that I would say no, or if there was some form of secret communication, that never existed.

MR BERGER: So there was no language or there was no way of speaking about things where everyone would know what was being spoken about without actually saying the words?

GEN VAN DER MERWE: That is correct.

MR BERGER: So you couldn't have picked up the phone to Gen Coetzee in Port Edward and said to him: "The problem in Lesotho is going to be dealt with by C1"?

GEN VAN DER MERWE: What sense would that have made? What was I supposed to expect of Mr Coetzee to do if he had such information?

MR BERGER: "No, don't go ahead, we need to do something else."

GEN VAN DER MERWE: Then Gen Coetzee would have to have been clairvoyant if he could determine whether or not it would have been advisable, based upon such information.

MR BERGER: Now you're saying that it was impossible for you at the time and in the circumstances to get Mr Coetzee's approval before the raid?

MR VISSER: That was not his evidence. He said it would have been difficult.

GEN VAN DER MERWE: No, I said it would have been difficult. I did not regard it as so necessary and that is why I did not go to such extremes to inform or consult with him. I was convinced, in terms of the consultation which I had conducted and also according to the information and the circumstances of that time, that my actions were correct.

CHAIRPERSON: Or whether he was present or available, would you then have had to obtain his permission?

GEN VAN DER MERWE: No and I didn't do so in the other case. As I have already stated in the case of Swaziland I also didn't request his permission.

CHAIRPERSON: Didn't you have to obtain his permission?

GEN VAN DER MERWE: No, there was no prescription as such. Gen Coetzee didn't have any greater capacity than I did. In fact, he couldn't really have passed better judgment on the matter than I could have because I had all the relevant facts, I had to do with them daily in practice, whereas he, upon occasion when he received information of a security nature, would only then have to do with it.

MR BERGER: But it would have been possible to inform him beforehand and get his approval beforehand?

GEN VAN DER MERWE: No Chairperson, it was not impossible, I just said that I did not deem it necessary because it would have been very difficult.

CHAIRPERSON: He said that it was so inconvenient to him that he did not think it was worth the trouble.

MR BERGER: Thank you Chairperson, but ...(intervention)

JUDGE KHAMPEPE: I don't understand him to be saying that Mr Berger. I understand his evidence to be to the effect that it was no necessary to get Mr Coetzee's approval, that's why he wasn't contact, whether he was immediately available or not, that's beside the point. He had made up his mind that the information which he had was sufficient to enable him to proceed with the action, with or without Mr Coetzee's approval. This is what I understand to be his evidence. It's been extremely painful for me, talking now on my own, it's been very difficult to understand Gen van der Merwe on this point because I thought, flowing from the questions which I also asked, your evidence was quite pointed that it wasn't because he was not immediately available, that you didn't pursue the matter with Mr Coetzee, it was because you didn't think it was important for him to be informed. That's how I understood your response to my question, but now you seem to be confusing me personally, because you are now acceding to what is being put to you by Mr Berger. You are saying, if he had been available, you would have discussed the matter with him as if that discussion would have sought his approval.

GEN VAN DER MERWE: No, Chairperson, I stated it quite clearly that I would have necessarily been courteous if Gen Coetzee was available, I would have discussed it with him, just as a matter of courtesy because he was the chief and he had to take cognisance of it and he would have been informed about the future action, but I would not have deemed it necessary for the action to get his approval, because as I have said, he was not in a better position to judge.

MR BERGER: Could Mr Coetzee have stopped you? Did he have the authority to say to you: "Call off the raid"?

GEN VAN DER MERWE: Yes, he definitely would have, if he had knowledge, yes he had that capacity.

CHAIRPERSON: Would you have listened to him?

GEN VAN DER MERWE: Yes, I would have had to listen to him, but with regard to every action that, during the course of my career, would have been applicable, he could have done that in every action that I authorised.

CHAIRPERSON: Please listen carefully and please understand. This was an illegal operation. This is what Mr Berger is asking of you, so the question whether Mr Coetzee could have stopped you or not is very important.

GEN VAN DER MERWE: Yes, he could have stopped me.

MR BERGER: And the only reason you would have spoken to him had he been there, or had he been available, would have been out of courtesy to him as your senior?

GEN VAN DER MERWE: Correct, Chairperson. Perhaps I should explain here. You have to keep in mind that during 1985, we were involved in a war situation, an undeclared war as Mr P W Botha had stated often. Death was abundant daily and all those threats had to be dealt with nation wide, so one was not in a comfortable position where one, every time when one had to deal with an incident, that one had all the peace of the world where one could think about all these things and take it up on the traditional manner where one could consult with all the relevant parties, so in this instance I, to the best of my capabilities, dealt and made a judgement and I decided that the threat was of such a nature that I had to act and I gave the necessary instructions and as I have said earlier and I will emphasise the fact that my action afterwards was not criticised, proves that I did not judge incorrectly.

CHAIRPERSON: Was Coetzee on leave at that stage?

GEN VAN DER MERWE: Yes he was.

CHAIRPERSON: Who was in control during that time?

GEN VAN DER MERWE: That would have been Gen Hennie de Wit.

CHAIRPERSON: Why did you not consult Gen de Wit?

GEN VAN DER MERWE: He was not familiar with security situations, he would have been of no assistance at all.

CHAIRPERSON: I do not understand that Mr van der Merwe. We discuss here something where you had to discuss this with your immediate senior, illegal steps that you wanted to take. As someone who could stop you, I would just like to ask why Mr de Wit was not approached and told: "This is our plan and these are the reasons"?

GEN VAN DER MERWE: Chairperson, because it would have been unreasonable to approach him, he was not familiar with the circumstances, he would have just had to depend on my recommendation and in that regard I would have compromised him by, in the circumstances where one could not have expected for him to decide that, whether it was viable for us to continue or not. He was not as informed about the security situation as I was and I would have regarded it unreasonable by burdening him with this and compromising him in this manner, in circumstances which could serve no purpose.

JUDGE KHAMPEPE: But Mr van der Merwe, without expecting any reasonable input from him, taking into account that he had no firm understanding of the security situation as you've just alluded to, out of courtesy, didn't you think as a person who had substituted Mr Coetzee, he had to be consulted as well, just for information?

GEN VAN DER MERWE: No Chairperson and I also do not believe, you will also note that after the incident it was never an issue whether it was reasonable in those circumstances, whether it was expected of me to inform Gen de Wit, as I will say again, judge me on what Gen Coetzee and the Minister said after this incident. There was no issue for them afterwards that it was a problem that I did not consult anyone about this.

JUDGE KHAMPEPE: Yes, I was merely asking about courtesy on your part.

GEN VAN DER MERWE: Not with regard to Gen de Wit. That would have place him in a very uncomfortable position. With Gen Coetzee one could have done it, he did have a security background, so he would have immediately have gleaned the circumstances but not Gen de Wit. It would have only compromised him and placed him in an uncomfortable position.

JUDGE KHAMPEPE: Thank you Mr Berger.

MR BERGER: Thank you Judge. Mr van der Merwe it's not the point whether or not you were rebuked afterwards. Quite clearly all your seniors thought you had done quite a good job and that's why you weren't rebuked but that's not the point of my question. The point of my question is, and I'll put it to you, I find it strange that you, second in command of the Security Branch at that point in time, never having authorised a cross-border raid before, felt comfortable without consulting your seniors, to take it upon yourself, to launch a raid that would inevitably reflect upon the South African Government and what I'm putting to you is that if you want to rely on probabilities, that is highly improbable.

GEN VAN DER MERWE: Yes, Chairperson, except for after consultation with members of the CIC who had direct access to the State Security Council and if they were of the opinion that that information had to be relayed and that my action would have the necessary approval.

MR BERGER: So your thinking was this, you would go and discuss this raid at the CIC.

GEN VAN DER MERWE: Or with members of CIC.

MR BERGER: We will come to exactly what you did. One of those persons would be Dr Barnard, would I be correct? Because he was the Chairperson of CIC.

GEN VAN DER MERWE: If he was available, or the Chairperson who acted in his place, whoever the person who was the acting Chairperson of CIC at that stage.

MR BERGER: And you would then expect that person to take that information to the State President.

GEN VAN DER MERWE: Chairperson, I would have expected that that person, in whatever applicable manner he might have judged it necessary to bring the information to the attention of the State Security Council.

MR BERGER: Isn't it correct - well I ask you, is it correct that the CIC had direct access to PW Botha?

GEN VAN DER MERWE: The Chairperson of CIC.

MR BERGER: So that was Dr Barnard, he had direct access to PW Botha?

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: He could bypass - that is Dr Barnard - he could by pass the State Security Council and go directly to P W Botha?

GEN VAN DER MERWE: Yes, he could have.

MR BERGER: And is that what you expected him to do?

GEN VAN DER MERWE: Chairperson, I would have expected that he would have informed President Botha about it.

MR BERGER: Before the raid?

GEN VAN DER MERWE: Not necessarily before the action but whenever it would be discussed.

MR BERGER: Mr van der Merwe, you are putting the date of the CIC meeting, the one where the decision was taken, according to you, to be the 17th of December 1985.

GEN VAN DER MERWE: I said it was possible, Chairperson, this was by means of inference. He said it could have been the 17th, he never gave evidence as such.

MR BERGER: You are saying that it was not the meeting of the 3rd of December 1985?

GEN VAN DER MERWE: That is correct, yes.

MR BERGER: We'll come to that. You also said that, it's in your statement, that the CIC meetings would have been on a two-weekly basis.

GEN VAN DER MERWE: Usually it was, but in this instance it was postponed to the 4th of February, this was because of the Festive Season period, so one could not depend on it that it would have been a fortnightly and that is why I say that it is possible that I would have consulted with members of CIC and not necessarily at an entire CIC meeting.

MR BERGER: So there might not have been a CIC meeting between the 3rd of December 1984 and the 4th of February 1986?

GEN VAN DER MERWE: Not a forma, usual formal meeting, that's possible.

MR BERGER: But there might not even have been a full meeting, you might have just discussed it with certain members of the CIC?

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: There's another document which I'm sure you've seen in the bundles, which is the document that was requested from TNV at the CIC meeting of the 3rd of December.

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: And the request was that the document be made available before the 16th of December.

GEN VAN DER MERWE: Correct.

MR BERGER: And we've seen that that document is dated the 17th of December.

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: And that document deals with Lesotho?

GEN VAN DER MERWE: Yes.

MR BERGER: And that's why you have said that on the probabilities your meeting would have been around the 17th of December?

GEN VAN DER MERWE: That's correct, yes.

MR BERGER: In any event, you would have had this discussion with members of the CIC, we put it at its lowest, a few days before the raid?

GEN VAN DER MERWE: Correct.

MR BERGER: And you would have expected Dr Barnard to discuss it with the State President?

GEN VAN DER MERWE: Chairperson, it was a covert action, therefore I would have expected that he would do it in such a manner that obviously it would not compromise the State President.

MR BERGER: I put it to you Mr van der Merwe, you can't have it both ways. Either you expected Dr Barnard to convey that information to P W Botha, or you thought that Dr Barnard would keep that information to himself. Now you've already told the Committee that you expected him to pass that information on to P W Botha.

GEN VAN DER MERWE: That's correct Chairperson, but with regard to that, I can recall there was never any arrangement that Dr Barnard would fully inform the State President about this issue, because you have to recall, even in our consultation I had to deal with probabilities. Would the matter have been dealt with in that manner that it would not compromise any members of the SSC.

MR BERGER: I thought your evidence yesterday was that you deliberately kept this information away from the politicians so that they wouldn't be compromised.

GEN VAN DER MERWE: Chairperson, I said we acted continually that this matter would be dealt with as a covert action which could not be traced back to the government of the day. That was my evidence.

MR BERGER: Wasn't it your evidence that you deliberately kept the information away from the politicians so that they wouldn't be compromised if fingers were pointed at them after the raid?

GEN VAN DER MERWE: I cannot that I used those words. What I did say was that we dealt with this issue in such a manner that it could not bee traced back to the Government.

CHAIRPERSON: Let us stop speculating as to what you said. What is the position? Did you withhold this from the politicians or not?

GEN VAN DER MERWE: Chairperson, I did not beforehand, according to what I can recall, consult with any political leader.

CHAIRPERSON: I am not saying that you should have done so yourself, but was there a policy amongst security circles or who dealt with security in the country at that stage.

CHAIRPERSON: was there a policy of not telling the politicians what you planned and to withhold information from for example the State President? And we are refer now to December 1985?

GEN VAN DER MERWE: Chairperson, I have already said that there was no policy. There was no prescription. If you are asking me what the practice was, then the practice was of such a nature that every incident had to be dealt with on its own merits. One would definitely, when a covert operation was launched, we would not have done it in such a manner that in any manner that clues would be left behind which could lead back to the Government.

CHAIRPERSON: That does not answer my question. Let me ask you as follows. During 1985, your police officers were up to such strange things it would have been surprising if the politicians asked what was going on during that time and under those circumstances, did you or did you not - you use the word practice - in the practice, did you withhold such information from the politicians?

GEN VAN DER MERWE: Chairperson, I would not have reported the particulars in detail to the Minister or any of the other persons, except for where it could have been done in such a manner that they had taken note without them necessarily being incriminated, because in this particular case, afterwards I did inform the Commissioner who would have informed the Commissioner, so I would not say that I withheld information from them or that there was a policy to withhold such information but on the other hand, we would not have acted in such a manner beforehand that what would require authorisation for an operation, that would not be - that no political would not be able to authorise such an action because he did not have the capacity. It was not a matter of withholding information, it was a matter of what would have made sense in these circumstances and the fact that I had consulted with members of CIC and expected, does not mean that in that manner I had requested that this information be conveyed to Mr Botha.

CHAIRPERSON: So what are you saying by, when you said expect?

GEN VAN DER MERWE: I expected that in the light that the Chairperson of CIC had known about it, he would have told Mr Botha that this operation was launched by the Security Police, or planned, but there was no understanding that he would do so and I would not have asked him or put it to him under those circumstances.

CHAIRPERSON: So if there was no understanding with regard to that between yourself and CIC, why did you expect him to discuss it with Mr Botha?

GEN VAN DER MERWE: Because the circumstances were of such a nature that it could have been of interest to Mr Botha to know that we had acted there as in this instance and here I make use of inferences again, is probably what happened.

MR BERGER: Yes, Mr van der Merwe, I don't want to confuse paper trails and conversations. If I understand you correctly, what you are saying is, you didn't want there to be a paper trail all the way up to the State President because then he could be compromised?

GEN VAN DER MERWE: Yes, that's correct.

MR BERGER: But you expected Dr Barnard to inform the State President so that if there was a problem with your proposed conduct, the State President could stop you before the raid was carried out.

GEN VAN DER MERWE: No, no Chairperson. If he deemed it necessary, he would have informed the President. I did not expect that he would consult with the President to hear if this action had the President's approval.

MR BERGER: I thought you would have answered yes to my question but your answer is fine. The Minister of Police or Law and Order as he was then called at the time, was Mr le Grange.

GEN VAN DER MERWE: Louis le Grange, Chairperson.

MR BERGER: Was he also on holiday at that time?

GEN VAN DER MERWE: As far as I know, he was also not available Chairperson.

MR BERGER: Where was he?

GEN VAN DER MERWE: I don't know where he was.

CHAIRPERSON: Did you try to find him?

GEN VAN DER MERWE: No, I would not have directly consulted or tried to liaise with the minister, no.

MR BERGER: If you never tried to contact him, how do you know he wasn't there?

GEN VAN DER MERWE: Because I had heard that during that time he was not available Chairperson.

MR BERGER: When did you come to that understanding?

GEN VAN DER MERWE: It was during the preparation for the application.

MR BERGER: Year 2000?

GEN VAN DER MERWE: Yes.

MR BERGER: If he had been available, would you have informed him?

GEN VAN DER MERWE: No, Chairperson, I would not have because I did not want to compromise him with that.

MR BERGER: You see Mr van der Merwe, what I don't understand about your answer is that in 1982 when the Security Police were planning to blow up the ANC offices in London, clearance was sought from the Commissioner of Police as well as from the Minister of Police Mr ...

MR VISSER: My learned friend is misleading the witness. he's putting a question to the witness, not based on any evidence whatsoever. The evidence in that case, Mr Chairman, was that Mr Louis le Grange got the instructions which were channelled down, there was never any request up for permission. It's an incorrect statement which he's making.

MR BERGER: Well, let's go from the top down then. In 1982 before the members of the Security Police blew up the ANC offices in London, both the Commissioner of Police, the Head of the Security Police and - I shouldn't say both, the Commissioner of Police the Head of the Security Police and the Minister of Police were all fully informed of what was about to take place.

MR VISSER: By whom, Mr Chairman?

CHAIRPERSON: No, I think a better word, they knew of it.

MR BERGER: They knew beforehand, yes.

GEN VAN DER MERWE: Chairperson I did not have any knowledge about that so I cannot comment on that Chairperson. If he wants to ask how this affects my action, I would say at this stage I think that the circumstances were different and my point of departure was and as I have always understood it, that covert action happens or takes place in such a manner that it could not be traced back.

MR BERGER: I'm sure you will agree with me Mr van der Merwe, that shortly after the ANC offices in London were blown up in 1982, no-one or no clear thinking person would have thought otherwise than that the South African Government was responsible.

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: And you were aware of that in 1982.

GEN VAN DER MERWE: No in 1982 I was in South West Africa, so I might have known about it but that would have been just by the way.

MR BERGER: And so what I'm putting to you is that in 1985 you couldn't have thought that as far as cross-border operations were concerned, the politicians didn't want to know about what was going to happen beforehand. You couldn't have thought that.

GEN VAN DER MERWE: I could have definitely Chairperson.

MR BERGER: Why?

GEN VAN DER MERWE: I think I have explained this extensively, Chairperson and that is that the political leaders would have given subtle guidelines, they would have, with regard to that, given an indication as to what they expected. It should be done by the Security Forces but they would not have said that if you were involved in a covert operation, I want to know beforehand.

CHAIRPERSON: How do you know that?

GEN VAN DER MERWE: Because the principle of the covert operation was that it could not be traced back and the political leaders of those times, did not have any legal powers to give such authorisations so what need would it have served.

CHAIRPERSON: Now what I want to know is, did you try beforehand or were you told? How did you come to that conclusion that they shouldn't be told, so that they should not bear the consequences of it.

GEN VAN DER MERWE: No Chairperson, because of the particular circumstances that reigned and I depended on my own experience during that time, at that stage I had no indication where there was a clear viewpoint put forward about it.

CHAIRPERSON: Mr van der Merwe, I shall put it even clearer, were there any occasions where you went to a Minister or to one of your seniors and said: "Listen, there is some trouble somewhere, let us say Lesotho and we have this information and this is what we are planning" and was it told to you that: "Listen, I do not want to know of it. Whatever you are to do should not come back to me as Minister", or State President, or whoever it was, was there any such occasion?

GEN VAN DER MERWE: No there was no such incident, Chairperson and I did not approach any Minister in that regard, so I would not have been aware if any such guidelines did exist.

JUDGE KHAMPEPE: But you've just stated that you relied on your previous experience. Maybe you need to elaborate what that experience entailed so that we can understand on what basis you were able to rely on that experience.

GEN VAN DER MERWE: Chairperson, during that time in the light of the threat, I think all the members of the Intelligence Community realised that the RSA Government were in a very vulnerable position, that they did everything possible to protect their international image. If one has a look at the steps they had taken in order to project an image of a legal state and this, obviously for me, it indicated that one could not afford to involve political leaders in covert actions which would jeopardise the political leaders or the Government if it ever became known, with specific regard to if it happened afterwards where the Government had to deny that it was involved in any action of that nature and if it ever became known that it had known beforehand, this could have led to the fall of a Government. We all know of information which was dealt with on a very lower level, so it is obvious that any person during those circumstances, would have acted in such a manner that it would compromise the Government, that the Government firstly had to deny publicly that it had known of it and then later it would appear that the Government had known of it, it would have destroyed the Government, I think that's quite obvious.

MR BERGER: Mr van der Merwe, are you saying that in 1985, if the following information had become public, it would have led to the downfall of the Government, and this is the information. There are ANC soldiers in Lesotho who are planning attacks on the South African public over the Christmas period of 1985 and South African soldiers have gone into Lesotho and have killed them in a pre-emptive strike so as to prevent them from creating havoc inside South Africa and that that was authorised by the State Security Council. Are you saying that if those facts had become public, that that would have led to the downfall of the South African Government?

GEN VAN DER MERWE: Chairperson, I never referred to any open action or overt action that had taken place with the full authorisation of the Government of the day, where it was publicly admitted and international law was used. Obviously that would not. I refer you to cover actions and I think I did put it as such, where the Government of the day would publicly deny that it had authorised any such operation and afterwards it appeared that it had indeed authorised it, that would have led to the fall of a Government.

CHAIRPERSON: Under the circumstances, why was your action supposed to be covert?

GEN VAN DER MERWE: Because, Chairperson, as I have said previously, the Government during those years, tried to promote its international image.

CHAIRPERSON: In 1985?

GEN VAN DER MERWE: We have dealt with this Chairperson, and that any operation by the Defence Force would cause such an international incident, even if it did not lead to the fall of the Government, but with regard to international powers, this would have caused much trouble and therefore the opinion was that a covert action was necessary in order to combat the immediate threat that would have, under the circumstances, it would have been applicable as opposed to overt action.

CHAIRPERSON: What I do not understand, Mr van der Merwe, is that when you went into the world saying that during the Festive Season in South Africa, something would happen which is bad and we know who would do this and we would want to do something to prevent it, for example we want to attack these persons, who in this world would blame you?

GEN VAN DER MERWE: Chairperson, one has to keep in mind that there was tension between the two Governments and one has to keep in mind that the RSA's actions against neighbouring states was always questioned by international powers and at this stage I would venture to say that many of the other international powers would, if South Africa acted with open force, where much or many more lives would be lost, then South Africa would have been vehemently criticised.

MR BERGER: 1985, if my memory serves me correctly, was the year of the Rubicon Speech.

GEN VAN DER MERWE: Correct.

MR BERGER: That was the year in which you say the policy of the South African Government was to portray itself to the outside world as being concerned with international opinion and being concerned that the international community should perceive South Africa as a "Regstaat" as opposed to a police state.

GEN VAN DER MERWE: Correct, yes.

MR BERGER: Well let's assume that to be so for the time being. Wouldn't that be all the more reason for you to clear your raid, your proposed raid, with your seniors?

GEN VAN DER MERWE: No, Chairperson. One has to keep in mind that my primary task was the protection of internal stability. Yes and to prevent MK members who were on the verge of entering the country and committing acts of terror in the country and for not a single moment could I think that under those circumstances in the light of that threat, if we had acted, that it would be questioned with regard to that, after we had consulted with other members of CIC and if they did not foresee any problems from their side.

MR BERGER: I'm not going to keep going round in circles, so let me try and bring this part to an end. You believed that you had every reason, on the information that you had, to strike against these MK soldiers in Lesotho.

GEN VAN DER MERWE: Who were on the verge of entering the country and committing acts of terror, correct.

MR BERGER: You were acting in self-defence?

GEN VAN DER MERWE: Correct, yes.

MR BERGER: And you could justify that to the international community?

GEN VAN DER MERWE: That I have stated clearly Chairperson, at that stage if you did it overtly, then definitely there would have been criticism and problems with regard to the international community.

MR BERGER: When I speak about South African soldiers, I'm not referring to the army, I'm referring to members of the South African Police as well. If I understood one of your earlier answers correctly, what you were saying was, if we had openly said there are these MK soldiers on the point of entering South Africa and about to sew death and destruction and in order to combat that, we crossed the border, sent our experienced police officers or whatever into Lesotho to kill these MK soldiers before they killed us, that you would have been able to justify to the outside world. Am I right?

GEN VAN DER MERWE: Correct, yes.

MR BERGER: And yet for some reason which I don't understand, you decided that it had to be a covert operation.

GEN VAN DER MERWE: Chairperson I have explained this extensively.

MR BERGER: So what I want to put to you is, if you were aware of the South African Government's policy not to be seen as a police state in the eyes of the international community, not to be seen as a state that itself committed acts of terror in neighbouring countries and massacred people, then you would have cleared the raid with the politicians or you would have ensured that the politicians were informed beforehand of the raid and had no problem with it, before you authorised the raid because if you did not do that, you might subsequently be accused by them of wrecking the image of South Africa internationally. The image which they were so carefully, according to you, building and protecting.

GEN VAN DER MERWE: Chairperson, the possibility that overt action at that stage against Lesotho would have indeed had the consequence that international powers would have been of the view that South Africa willingly used force against its neighbours would have been greater and the consequence attached to that would have been greater than the covert action and the consequences thereof which could not be traced back to South Africa.

MR BERGER: Everyone would know that the South African Government were responsible for the massacre in Lesotho on the 19th of December 1985.

GEN VAN DER MERWE: Yes, correct, but no-one, even the international powers, with regard to that, could prove anything so they might have thought so but with regard to that, they could not have made anything of it.

MR BERGER: And even if you had informed the politicians ...(indistinct)

CHAIRPERSON: Mr Visser are you ready for a smoke break?

MR VISSER: Yes.

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

MR BERGER: One question. Even if you had informed the senior politicians orally, not in writing, so that they had known beforehand, so that they could have said yay or nay beforehand, even if you had informed them, the international community would still not have had one shred of evidence that they had given authority for the raid.

GEN VAN DER MERWE: Yes, correct Chairperson, but then we return to that point and I want to emphasise this again. This would mean that the Government was exposed to a position where they had to publicly deny it and then later it would prove that they were indeed involved.

MR BERGER: They were denying publicly what they knew privately to be the case anyway, according to you.

GEN VAN DER MERWE: Yes, but that would have drastically changed the situation if afterwards it had appeared that there is some proof and that they had to concede that they did know beforehand. I think it's only logical, any Government finding themselves in that situation, destroyed itself.

MR BERGER: I put it to you there was no such evidence.

GEN VAN DER MERWE: No such?

MR BERGER: No such evidence.

MR VISSER: I'm sorry, evidence of what, Chairperson?

MR BERGER: There was nothing that the international community could lay their hands on to prove that the South African Government knew beforehand, so if you had told them beforehand, the international community still would not have been able to prove that the South African Government knew, unless of course you're going to say that Mr Coetzee or Minister le Grange would have gone over to the ANC.

GEN VAN DER MERWE: These are all aspects which we can speculate today, but we did not foresee it back then.

MR BERGER: Pik Botha only crossed the floor...

MR VISSER: Make confessions on his behalf.

MR BERGER: When the writing had long since been wiped off the wall. Perhaps it would be time for a smoke break.

COMMITTEE ADJOURNS

ON RESUMPTION

JOHANNES VELDE VAN DER MERWE: (s.u.o.) CROSS-EXAMINATION BY MR BERGER: (Cont)

Thank you, Chairperson.

Mr van der Merwe, I want to refer you to the CIC meeting of the 3rd of December. It's in bundle

GEN VAN DER MERWE: I have it before me, thank you.

JUDGE KHAMPEPE: What page is that Mr Berger?

MR BERGER: Page 99, Judge, Bundle 2.

Now we can see that present at that meeting were you, Mr Schutte and Dr Barnard amongst others.

GEN VAN DER MERWE: That is correct.

MR BERGER: So even as at 3 December 1985, Mr Schutte was taking an active involvement in Security Police affairs. Am I correct?

GEN VAN DER MERWE: Chairperson, if you deduce from the attendance of the meeting, that he was actively involved, if that would be the only yard stick, then I would say no. He may have attended the meeting at that stage.

CHAIRPERSON: But what was the position?

GEN VAN DER MERWE: Chairperson, Gen Schutte, during November, yes it must have been during November, was already notified that he would take over as the head of Investigation and as such, he prepared and liaised, he will testify to that. He liaised with the Detective Branch, so that when he would take over completely on the 1st of January, he would have been able to deal with all the aspects that he was supposed to deal with.

MR BERGER: Surely there was a purpose for him to attend this meeting?

GEN VAN DER MERWE: You will note that this meeting was quite a comprehensive meeting.

CHAIRPERSON: Why was he there at the meeting?

GEN VAN DER MERWE: Chairperson I would say most probably because he was available on that particular day and accompanied the others to the meeting. I cannot think of any particular reason why he would have attended the meeting.

INTERPRETER: The speaker's microphone.

GEN VAN DER MERWE: ...the Security Branch.

CHAIRPERSON: I see that he is there as an SAP Security Branch member.

GEN VAN DER MERWE: Yes at that stage he was still officially so.

CHAIRPERSON: Didn't he go there as a member of the Security Branch?

GEN VAN DER MERWE: That is correct.

CHAIRPERSON: And he was a Major General?

GEN VAN DER MERWE: That is correct.

CHAIRPERSON: So he must have known. Did he know what was going to happen?

GEN VAN DER MERWE: No.

MR BERGER: Thank you Chairperson. I'm sorry Mr van der Merwe. Did you say in response to the last question from the Chair that he did not know what was going on?

GEN VAN DER MERWE: That is correct.

MR BERGER: He was there at that meeting in his capacity as the head of the Security Police.

GEN VAN DER MERWE: That is correct.

CHAIRPERSON: Why wouldn't he have known?

GEN VAN DER MERWE: Chairperson because he was primarily involved with the detective branch and I dealt with the matter independently. he spent a short period of time with the Security Branch and upon a previous occasion in the case of the Zero hand grenades, I testified because I dealt with these matters independently and in the light thereof, I made it my responsibility and I did not consult him in connection with that.

JUDGE KHAMPEPE: Prior to this 3rd of December 1985, had he attended any CIC meetings?

GEN VAN DER MERWE: I beg your pardon, do you mean whether or not he attended any CIC meetings? He would most probably have attended but no necessarily all of them. I think in most of the cases I would have attended.

JUDGE KHAMPEPE: Yes.

MR BERGER: So would it be that you just asked him to come along to that meeting as a courtesy?

GEN VAN DER MERWE: I cannot recall what the circumstances were which led to his attendance of that meeting, but it wasn't because he was already actively involved with Security Branch matters.

JUDGE KHAMPEPE: But would his attendance have impinged upon your invitation, or he would have attended of his own volition because he was a member of the CIC?

GEN VAN DER MERWE: He would have attended it out of his own volition.

MR BERGER: Now the question of ANC bases is dealt with from page 103, paragraph 3.2 of the minute.

GEN VAN DER MERWE: Correct.

MR BERGER: Mr van Heerden, that is Mr Neil van Heerden.

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: He gives a report about and I'm going to ask you whether you agree or disagree with what is stated in the first sentence of 3.2.1. It's quite a long sentence.

GEN VAN DER MERWE: Correct.

MR BERGER: You confirm that?

GEN VAN DER MERWE: Yes.

MR BERGER: So he asked, or he said that the Security Police have received this information and then in the second sentence it is recorded that the police have asked B S, B S is Foreign Affairs.

GEN VAN DER MERWE: Correct.

MR BERGER: To contact Lesotho urgently and tell them that if they don't act then South Africa will act.

GEN VAN DER MERWE: Correct.

MR BERGER: Now that request from the police, did that come from you personally?

GEN VAN DER MERWE: It came from the Security Branch and it would most probably have been me that handled it.

MR BERGER: Well, would it have been you or Mr Schutte?

GEN VAN DER MERWE: No, it would have been me.

MR BERGER: You can remember that?

GEN VAN DER MERWE: No, I am deducing from the circumstances because I was the one who dealt primarily with these matters.

MR BERGER: When did you learn of what Foreign Affairs had done in relation to your request?

GEN VAN DER MERWE: Chairperson, it is difficult at this stage to state whether, during consultation with CIC, this took place or whether there was any other occasion upon which information about this was conveyed, therefore at this point in time, I cannot tell you precisely when it came to my attention regarding which steps Foreign Affairs had taken. I would have expected that in terms of that request, they would have done it as swiftly as possible.

MR BERGER: So your attitude was that you were first going to attempt a diplomatic solution to the problem before you turned to violence?

GEN VAN DER MERWE: No, I approached the matter as such, that it was important to warn Lesotho that there were activities of that nature under way at that stage and if they did not take the necessary steps, the RSA would deal with the matter according to its best judgment so that if there was subsequent action, Lesotho would at least have had the opportunity to become aware of the circumstances and take whatever steps they thought prudent.

MR BERGER: You wanted Lesotho to know that once the action was taken, that it was taken because they hadn't reacted to your warnings.

GEN VAN DER MERWE: No, I would have expected at that stage that one would first determine whether or not Lesotho would pay attention to the request and that further action would then be determined according to that.

MR BERGER: Okay so you weren't going to launch a raid until the Lesotho Government had responded to Foreign Affairs' warning.

GEN VAN DER MERWE: No, it would have depended on it. It would have depended on whether or not in terms of the threat any steps had been taken by Lesotho that we could determine. In other words if there was a reaction and with regard to the threat at that stage, any steps had been taken by Lesotho in order to deal with the matter.

MR BERGER: Sorry Mr van der Merwe, but I don't understand. Did it matter to you what the response of the Lesotho Government was?

GEN VAN DER MERWE: No, the answer didn't matter, the steps that they would have taken in light of this, would have been important.

CHAIRPERSON: Why wouldn't the answer have been relevant to you?

GEN VAN DER MERWE: Chairperson the response could have been meaningless. As it was, if they had taken steps in practice to - if they had not taken steps in practice to deal with the situation, it wouldn't have made any difference to me.

MR BERGER: What steps did the Lesotho Government take?

GEN VAN DER MERWE: No steps, Chairperson.

MR BERGER: And when did you find that out?

GEN VAN DER MERWE: Well it was clear according to the information that we received, that the activities of the MK members in Lesotho continued un-disrupted.

MR BERGER: And what was the Lesotho response? What did they say?

GEN VAN DER MERWE: I am not aware of what they said. I have already said that I didn't have any knowledge at that stage, except if it came to discussion without consultation with CIC. What I can say about it is that no action was observable by Lesotho in terms of the threat.

CHAIRPERSON: Well look, at the stage when this was discussed and Lesotho Government was to be informed of South African sentiments on this issue, you say that you were going through the steps but really their answer or response to that information, to that letter would be meaningless to you. You didn't care what the answer was as long as you went through the steps. Do I understand you correctly?

GEN VAN DER MERWE: No, Chairperson, that is not what I meant. I would say that the response in itself, wouldn't have been significant, but the steps that they would have taken in practice, which one would have been able to observe in combatting this threat, would have mattered to me.

JUDGE KHAMPEPE: In fact you can still say the same thing with regard to the response. If the response indicated in their action that your request was being addressed, then that response would have mattered.

GEN VAN DER MERWE: No Chairperson, except if I would have been able to observe that Lesotho had indeed taken steps to combat these activities of the MK members, even if they had said to me at that stage that they were going to take certain steps and one could not observe anything as such in practice, it still wouldn't have made any difference.

CHAIRPERSON: Look, that's precisely the point.

JUDGE KHAMPEPE: Yes.

CHAIRPERSON: If your information was that the ANC members were still there and preparing whatever your information told you and you received a response from the authorities in Lesotho saying that they are busy attending to the matter, it would have been two different types of information that you would have had at your disposal. What would your attitude have been then, or what would you do next?

GEN VAN DER MERWE: Chairperson, it would have depended upon whether or not any action was taken by the Lesotho Government against these MK members in Lesotho, because you must remember it was within their capacity to take definite steps in order to combat those activities.

CHAIRPERSON: Now your information from wherever it came, tells you things are the same. The official letter from Lesotho is that: " We're attending to the matter". Would that not have made a difference to you?

GEN VAN DER MERWE: Not if in practice with regard to the activities, it made any difference, because it could have taken a long time before they really attended to the matter.

CHAIRPERSON: So what type of response from Lesotho would have stopped you from proceeding?

GEN VAN DER MERWE: The response would not have mattered, it would have been the steps that they would have taken which would have mattered.

JUDGE KHAMPEPE: But surely Mr van der Merwe, if you received an official response from the Lesotho authorities, responding to this request that they do something to desist from harbouring ANC soldiers in their country and their response was that: "We are attending to the problem", surely you would have given them some time to attend to the problem and after a lapse of a certain period, you would have been in a position to see if any visible action had indeed been taken by the Lesotho authorities?

GEN VAN DER MERWE: Yes, that would definitely have been so, Chairperson. If there had been such a response and we, within a short period of time in the light thereof would have been able to determine that the activities had been combatted, it would have influenced the matter, but the answer as such would not have prevented us if we could see that this threat was still as great as what it had been, or that in fact it had been increased.

JUDGE KHAMPEPE: I'm only posing that question because of the question put to you by Mr Berger with regard to what your response would have been to Lesotho's response to your request and I just wanted to put clarity on that issue because your response was a little troubling to me.

GEN VAN DER MERWE: Very well.

MR BERGER: According to a newspaper report which is in the bundle at page 94, bundle 2 page 94, you will see it's the - it's headlined "S A tipped Maseru on ANC blitz". And then if you look down the first column about four paragraphs towards the end, it says there that

"Ministerial Press Secretary Tswe Ntsani said Prime Minister Leoboa Jonathan had received a telex from the South African Government on Wednesday"

which would have been the 18th of December 1985,

"claiming there was evidence there would be a Christmas strike. Lesotho replied on Thursday"

which would have been the 19th, this is the eve of the raid saying it did not have sufficient information to take any kind of action and that it wanted more proof. Now there are other newspaper articles, I'm not going to refer you - or I'm not going to go to them specifically, but they're in Exhibit B, where it is clear that there was an exchange of diplomatic notes between South Africa and Lesotho and I think that you take that as common cause.

GEN VAN DER MERWE: Correct.

MR BERGER: If Foreign Affairs was communicating with Lesotho back and forth until the eve of the raid, surely you would have known about that, particularly since you are a person who sits on a Committee that co-ordinates information for that precise purpose?

GEN VAN DER MERWE: Well, I would definitely have know or expected that the Department of Foreign Affairs would have conveyed that information to the Lesotho Government. I would not necessarily have been aware of the response, particularly if the response didn't say anything.

CHAIRPERSON: Who would have sent this telex or letter to Lesotho?

GEN VAN DER MERWE: It would have been the Department of Foreign Affairs Chairperson.

CHAIRPERSON: Under the hand of the State President, or the Minister of Foreign Affairs, or who?

GEN VAN DER MERWE: It would most probably have been the Minister of Foreign Affairs, Chairperson.

CHAIRPERSON: And that would have been done through that department because of the request as a result of the decision the CIC meeting or the 3rd?

GEN VAN DER MERWE: No, at that stage we had already directed such a request to the Department of Foreign Affairs. No such decision was taken at that meeting that such a request had to be complied with. We accepted that Foreign Affairs would do so.

CHAIRPERSON: I'm not talking, I'm not questioning that. I'm saying that the telex or the letter to the authorities of Lesotho was the result of a discussion held on the 3rd of December in CIC.

GEN VAN DER MERWE: No, Chairperson, not at all, it was a request from the Security Branch, from me, based upon which the note was sent, but at that meeting it was not discussed as such in that light.

CHAIRPERSON: On page 103 of volume 2, that paragraph 3.2.1., unless I've got the wrong minutes. Wasn't it discussed in the meeting of CIC on the 3rd of December?

GEN VAN DER MERWE: No that was, but the aspects surrounding the information which had to be conveyed to Lesotho at that stage, did not emanate from this meeting but was a request which had at that stage already been attended to by Foreign Affairs at the hand of the letter that they received from us. You will also note that nowhere further on does Mr van Heerden mention anything about that request or whether he wanted to know whether the request had to be complied with, he wanted to know whether or not they couldn't simply close the border due to this threat that existed so it is very clear that even Mr van Heerden, at that stage, did not think that Lesotho would provide any reaction based upon which one could make conclusions.

CHAIRPERSON: Mr van der Merwe, I don't know whether my Afrikaans is so good, but somewhere we do not understand each other. Do you agree that the request to the Lesotho Government was mentioned in that meeting?

GEN VAN DER MERWE: That's correct, Chairperson.

CHAIRPERSON: And it was said that this letter or telex or whatever it was, had to indicate that if Lesotho did not do anything about the problem, South Africa would act itself?

GEN VAN DER MERWE: Correct, Chairperson.

CHAIRPERSON: And the SAP requested Foreign Affairs to contact Lesotho regarding this?

GEN VAN DER MERWE: That's correct Chairperson.

CHAIRPERSON: It would appear to me as if it was actually on the 18th of 19th of December that this letter had arrived there.

GEN VAN DER MERWE: 13th of December, according to the State Security Council's meeting of the 20th.

CHAIRPERSON: And you are saying it was most probably done by Foreign Affairs under the auspices of that particular Minister. If Lesotho had sent a telex or a letter back in answer, I would assume that the particular Minister's office would be contacted.

GEN VAN DER MERWE: Correct, Chairperson.

CHAIRPERSON: And that office was requested by you to send this thing.

GEN VAN DER MERWE: That's correct, Chairperson.

CHAIRPERSON: You would have expected that if they had an answer to it, this would have been sent to you by the office of that Minister?

GEN VAN DER MERWE: Yes, Chairperson, if the answer was of such a nature that one could deal with it, then yes.

CHAIRPERSON: But that report, I know sometimes we should not pay much attention to newspapers, but according to this report it was said look, they won't do anything because there is not enough evidence of what is alleged there.

GEN VAN DER MERWE: That's correct, Chairperson.

CHAIRPERSON: Did you know about this?

GEN VAN DER MERWE: No, Chairperson.

CHAIRPERSON: So according to you, they did not react.

GEN VAN DER MERWE: Correct, Chairperson.

CHAIRPERSON: Did you find out when they received such notification?

GEN VAN DER MERWE: No, Chairperson.

CHAIRPERSON: So how long would you have waited to see whether they would react?

GEN VAN DER MERWE: Chairperson, I would have had to have had myself led by the threat and I would have acted in order to combat the threat, despite what Lesotho had to say.

CHAIRPERSON: Mr van der Merwe did you decide that there would an attack, whatever Lesotho said of it?

GEN VAN DER MERWE: No, Chairperson I took my decision depending on the threat that had existed during that period and according to my judgment, it was the only possibility in order to ward off that threat and to prevent that that MK group enters South Africa and commits acts of terror. It is very clear that that request to Lesotho did not stop them in their actions and indeed if we did not act, then that evening when we hit them, they would have entered South Africa.

CHAIRPERSON: Yes, Mr Berger.

MR BERGER: Thank you Chair. Mr van der Merwe, the whole point of a meeting such as the one on the 3rd of December 1985, the CIC meeting, was to ensure that the different arms of Government and in particular now I'm focusing on the Security Police and Foreign Affairs, didn't stand on one another's toes in the carrying out of their duties. Would I be correct?

GEN VAN DER MERWE: Correct.

MR BERGER: And that's why the issue of ANC bases in Lesotho was raised at this meeting.

GEN VAN DER MERWE: That's correct, yes.

MR BERGER: So in order for you to be satisfied that the left arm wasn't doing something and the right arm doing something at the same time, which could cause a conflict, you had to know before you launched the raid or before you authorised the raid, you had to know what Foreign Affairs was up to, am I right?

GEN VAN DER MERWE: Yes. I don't think Foreign Affairs, but I would have had to consult in order to find out whether there were any essential problems, if we had to act.

CHAIRPERSON: And besides that also, you would have had to find out also whether there was any response to your telex from Foreign Affairs before the actual launch was proceeded with, not so?

GEN VAN DER MERWE: Yes, Chairperson, it would have been a factor, but once again, I wish to reiterate that it would have been of concern only to the extent that, depending on that answer wether there were any visible steps that they had taken, just the mere fact that Lesotho had answered, would not have stopped me from taking any other steps in order to contact that real threat.

JUDGE KHAMPEPE: May I interpose, Mr Berger? Surely Mr van der Merwe, it would have mattered if that response indicated some kind of action or measures which Lesotho was taking in response to your request that such measures be taken against the ANC soldiers they were harbouring?

CHAIRPERSON: Or proposed to take?

GEN VAN DER MERWE: Chairperson if that according to our information would have warded off the threat, yes, definitely, but if it did not ward off that threat, then I would have never have sat down and waited to see what would happen and let the people enter the country and hit us just because Lesotho said that they would pay attention to it, because we knew and one would see in the report from Branch National Interpretation, they say clearly that all these activities took place with the knowledge of the Lesotho authorities, so one could have indeed have inferred from this that they knew of it and the reason as to why we warned them was to ensure that if we were obliged to take action we wanted to inform them beforehand so that they could take note.

JUDGE KHAMPEPE: It would have mattered for you to have been informed of any kind of response that might have been received from the Lesotho authorities in order for you to make a determination whether there were any dilly dallying tactics on the side of the Lesotho Government or not.

GEN VAN DER MERWE: Once again Chairperson, it would only have been of concern with regard to where it had an effect on the threat itself. It would have meant nothing if Lesotho came back and said: "We shall do this and that" and our information was that these people continued unabated and could enter the RSA at any point in time, so we would not have withheld ourselves acting because in the light that Lesotho had undertaken to do something which they wouldn't have done anyway.

JUDGE KHAMPEPE: I 'm asking this question Mr van der Merwe, being fully aware of the fact that Mr de Kock already had information about when the ANC soldiers intended to launch an attack in the Free State, so I'm asking this having been fully informed of that kind of background that must have existed also in your mind.

GEN VAN DER MERWE: We did not have a date that I was aware of upon which they would enter, we just knew that very soon they would enter. That was only our information, if there was any other information I did not know of it and I also knew that - you will note that in the situation report of the 17th of December, national interpretation mentions that information that was gleaned from a reliable source during the first week of December, a group was noted who were in possession of AK47 rifles and certain circular objects and they wanted to - no date was given, but during the Festive Season, to come into South Africa to "work" and we knew that was to commit acts of terror, but there was no specific date connected to it.

JUDGE KHAMPEPE: The date was never communicated to you directly, you didn't know that Mr de Kock was already informed of the intended day of the launch by the ANC soldiers?

GEN VAN DER MERWE: No I don't think there was ever such a date, Chairperson.

JUDGE KHAMPEPE: Well, I'm talking under correction, I think that's the evidence of either de Kock or Mr McCaskell. Thank you Mr Berger.

MR BERGER: Thank you Judge. Mr van der Merwe, you were clearly aware of the international ramifications of your raid.

GEN VAN DER MERWE: Correct Chairperson.

MR BERGER: You were clearly aware that Foreign Affairs was trying to resolve the problem diplomatically.

GEN VAN DER MERWE: Let me state it as follows. They from their side would do everything possible, definitely, Chairperson.

MR BERGER: Who exactly in Foreign Affairs did you consult before you authorised the raid?

GEN VAN DER MERWE: No, Chairperson, I've already said I do not know who was present during that meeting or during that particular discussion. Maybe we shouldn't call it a meeting, it may have just been a particular group.

MR BERGER: You cannot remember the name of a single person who was present when you had your final consultation before authorising the raid. You cannot remember a single person?

GEN VAN DER MERWE: No, Chairperson, one could mention names but in the light thereof that it was not clear in one's memory and one could be mistaken and in that manner one could jeopardise some people unreasonably.

MR BERGER: Well you've made great play in your evidence about the probabilities. On the probabilities, who would have been there at this final gathering?

GEN VAN DER MERWE: Chairperson, the possibility ...(intervention)

MR BERGER: You have been speaking about probabilities, so I'm asking you.

GEN VAN DER MERWE: You have to recall that this was during December. People could have been away on leave. There are many possibilities that were possible during that stage so, in order to say the probabilities is unreasonable, on should say possibilities.

CHAIRPERSON: Who was the Minister of Foreign Affairs?

GEN VAN DER MERWE: It was Minister Pik Botha.

CHAIRPERSON: So that letter would have gone through his office?

GEN VAN DER MERWE: Correct, Chairperson.

CHAIRPERSON: Would he have seen that letter?

GEN VAN DER MERWE: Do you mean the letter to Foreign Affairs? I would assume so. I am not certain, I don't know what happens or how Foreign Affairs deals with these matters. I don't know whether the Director General would have dealt with this, or whether the Minister himself.

CHAIRPERSON: But the letter to Lesotho, he must have seen that letter.

GEN VAN DER MERWE: It is possible, Chairperson. But as I said, I am not familiar with their procedures. Minister Pik Botha says the letter was sent but he didn't say that he sent it himself. This was during his report to the SSC on the 20th of December that he stated such.

MR BERGER: Thank you Chairperson. Mr van der Merwe isn't it that the decision was taken at this meeting, the meeting of the 3rd of December 1985?

MR VISSER: What decision Chairperson?

GEN VAN DER MERWE: To launch the attack? Do you mean the attack? Definitely not.

CHAIRPERSON: At least it must have been a distinct possibility. In the event of Lesotho not reacting to the warning, then you would attack because you say so.

GEN VAN DER MERWE: The principle would have been addressed at that meeting, but not the decision to act. The principle that, in the light of this threat that existed, that force would be considered, that would have been discussed at that meeting, but definitely not the decision that action would be taken. I will tell you why I say this. You will see that after that meeting of the 3rd of December, we received information in which the events took a turn and we knew that this group was on the verge of entering South Africa and they were in possession of AK 47 rifles and hand grenades. This was after the meeting and that information was supported or confirmed by the particular informer who supplied two Russian hand grenades and you will also see in the Situation Report of the 17th December, it is mentioned that this information was related to observation which had taken place the first week in December, so the report had reached us after the first week of December.

MR BERGER: Let me refer you to the evidence that Mr de Kock gave in his criminal trial, page 78 of bundle 2. Do you have page 78?

GEN VAN DER MERWE: I have it.

MR BERGER: He says there after line 11, his counsel says

"Continue. You said Brig Schoon then asked you" and he answers,"he asked whether we would have the capacity or whether I could work out an operation briefly which would indicate if we had the capacity and whether we would be successful. Thereupon the operation was placed on paper and I wanted to take the report to him for his approval before it would be typed and one had to look at spelling faults and syntaxes and he met me in the corridor while he was on his way with Gen van der Merwe to a meeting at CIC. This was the Co-ordinating Information Committee.

"Of what Mr de Kock?"

"It was a division of the State Security Counsel that resorted directly under the State President P W Botha and he took this documentation, it was still written in red pen, something that did not usually happen, and he took it with him just like that."

"Was it uncommon?"

"Yes, it was extremely unique because everything was usually typed and set out and it's signed and then it is handed in."

"With his return, it was not long afterwards, he handed this report to us once again and told us to continue with the operation. Short and sweet. We had to continue."

Now according to Mr de Kock, you were - he encountered you in the passage on your way to a meeting of the CIC. Would you agree with that?

GEN VAN DER MERWE: That is how he understood it, Chairperson. It could have been in consultation.

MR BERGER: No but you see, you - he knew that you were on your way to a CIC meeting.

GEN VAN DER MERWE: That is how it was known Chairperson. This would have been in consultation with members of CIC, but not necessarily at a formal meeting.

MR BERGER: But you see Mr van der Merwe, you don't have a clear recollection of whether it was a full meeting or not, now Mr de Kock said the information he had is that you were on your way to a CIC meeting. You can't dispute that, can you?

GEN VAN DER MERWE: No, I cannot Chairperson, but on the other hand it is highly improbable that this document at this meeting of the 3rd of December, would have been worked on. The subject of Lesotho ...(intervention).

CHAIRPERSON: Excuse me there is something happening outside. There's three cars that are blocking the emergency vehicles, JTD 466 GP, it's a Fiesta, JDZ 628GP, it's an Astra and XDN330T, it looks like a 4 x 4, green one. Will the people please remove those vehicles?

Continue please.

GEN VAN DER MERWE: Chairperson, I did not mention the matter at the CIC meeting, this came from Foreign Affairs, so at that time this document that Col de Kock had prepared, I would not have dealt with it because I would have addressed that issue, but Mr van Heerden mentioned it and secondly that meeting would have been an extensive meeting. Briefly after the meeting, I would not have been back and thirdly, it is so that if I was on my way to CIC, then Gen Schutte would have been with me because we would have walked together. It is highly improbable that I would have been alone and if we look at the probabilities, I agree and I would not have, without consultation, have acted along with members of CIC. I cannot recall when it was, but it could not have been on the 3rd of December.

MR BERGER: Did you and Mr Schutte always walk side by side to every CIC meeting?

GEN VAN DER MERWE: No, but that day we would have accompanied each other. Why would we have not? If he went along, then we would have necessarily have accompanied each other. It is only logical that if we were to attend the same meeting, that we would walk there together.

MR BERGER: But I just asked you whether you always walked together when you attended the meetings, you said no.

GEN VAN DER MERWE: No, I would not be able to recall that.

MR BERGER: So that day you might not have walked together.

GEN VAN DER MERWE: No that is true, but it is indeed possible that we would have accompanied each other, but the fact does remain that if one looks at the subjects which were discussed at that meeting, it would not have been a brief meeting, it would have been an extensive meeting. Briefly after that meeting, I would not have been able to return.

MR VISSER: I'm sure it's going to assist you tremendously in deciding on whether there should be amnesty for this witness or not.

MR BERGER: Chairperson, I can do without my learned friend's sarcasm.

MR VISSER: Well, Mr Chairman, I object to these irrelevant questions. Can't we just get on with the matter?

MR BERGER: Chairperson, they're not irrelevant.

CHAIRPERSON: Carry on.

MR BERGER: Thank you Chair. You see what bother me Mr van der Merwe is that we can see from page 108 of bundle 2 that the next meeting of the CIC is scheduled to be the 4th of February 1986.

GEN VAN DER MERWE: Correct.

MR BERGER: The minutes is certified as correct, signed by Dr Barnard on the 13th of February, 1986 and there's no note or anything that there was another meeting intervening. Don't you find that strange?

GEN VAN DER MERWE: Not at all, Chairperson. One would also notice that if you go back to page 104 of the same bundle, there CIC gives instruction that the National Interpretation had to prepare a document before 16 December 1985 about the ANC presence in Lesotho, the flow of arms as well as the political climate in Lesotho, so there would have been no sense in it to propose a date of 16 December, if the intention was not that this matter had to be dealt with as soon as - as quickly as possible afterwards and this would have definitely not have been on the 4th of February and as you will note, the Situation Report was dated the 17th of December and at that time CIC had already known, or Dr Barnard had to know that on the 20th of December, there was an SSC meeting and consequently before the 20th of December, we had to pay attention to the situation in Lesotho.

MR BERGER: That document could have been discussed at the State Security Council meeting of the 20th of December.

GEN VAN DER MERWE: Not without consultation with CIC. That would have been highly improbable.

MR BERGER: Well, now you're saying there had to be a formal meeting of CIC before the 20th of December.

GEN VAN DER MERWE: I am saying consultation with CIC members. If I am expressing myself incorrectly, there would not have been necessarily a formal meeting but Dr Barnard could have consulted with the role players who were directly involved in order to determine what the viewpoint with the SSC of the 20th should be.

MR BERGER: Well, Dr Barnard will have to come and say that. You don't know.

GEN VAN DER MERWE: No, I do not know.

MR BERGER: Since you applied for amnesty, you say that you have been asking for the minute of the CIC meeting or previously you called it a meeting, now you say it might be an informal gathering of the 17th of December.

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: And you applied for amnesty in 1996.

GEN VAN DER MERWE: Correct.

MR BERGER: So for four years, you and other people have been looking for that minutes?

GEN VAN DER MERWE: Correct. The attorney can confirm it. I have repetitively asked whether those documents could not be found and the only one was the one we could find of the 3rd of December and my attorney can tell you when we received this and this is after many, many requests.

MR BERGER: Isn't it the reason that nobody - I mean the TRC has been looking for it, everyone's been looking for that minute, isn't the reason that no-one has found that minute because the minute doesn't exist, the meeting was never held?

MR VISSER: Sorry, Mr Chairman. May I come in here please? I believe I have to say something. The other reason could be that the TRC didn't want to give it to us. May I refer you to the fact Chairperson, that my attorney - well, I'm going to tell you now, because my attorney has written letters Chairperson, asking for all the minutes of the State Security Council meetings for example, we have been given none, except those that are in here. Today we're handed one, Chairperson, dated the 2nd of December, which has been, apparently, in possession of whoever at the TRC. Now if my learned friend's argument is correct, we should assume for example that on the 2nd of December 1985 there was no - there is no minute or there was no meeting of the State Security Council. With great respect, Mr Chairman, it's an unfair question, but my learned friend can put it to him on the basis that it could be either or, but not the only inference that can be drawn.

We've been asking for these minutes since 1996, Mr Chairperson.

CHAIRPERSON: But Mr Visser I don't know if you are correct in making allegations that this was in the possession of the TRC.

MR VISSER: It has now come from the TRC.

CHAIRPERSON: Well, have a look at the - I don't know if this proves anything.

MS PATEL: Honourable Chair, sorry, perhaps I can intervene and sort this out. It is correct that the source of this document is in fact our Durban office. This however is not part of the documents as far as my recollection goes, of what was request from us in respect of this hearing. This document only became relevant after it was submitted by Gen van der Merwe, that Gen Coetzee was in fact not present in Pretoria during that time. It is on that basis that the document was then brought to my attention by my assistant who is present here today. Thank you. There was no intention to withhold any information that was available to us from anybody whatsoever.

MR VISSER: None was suggested, Mr Chairman, all that I'm saying is that my learned friend is putting it as a sole proposition that if there isn't a minute and everybody's been looking for it for four years, then there couldn't have been a meeting. I say that doesn't follow, Chairperson and it's an unfair question.

GEN VAN DER MERWE: And the discussions that had taken place there were not minuted because at that stage we discussed the possibility of a covert operation.

CHAIRPERSON: Mr van der Merwe, you are saying that your memory does not serve you well.

GEN VAN DER MERWE: Yes, Chairperson, I cannot testify to that. I - it's just speculation at this stage.

CHAIRPERSON: So you are not able to say whether there was a meeting or not?

GEN VAN DER MERWE: No, I have already said that at this stage by means of probabilities, I can determine that and in the light of the follow-up action of the SSC, but today I cannot testify to say that I can recall that there was such a meeting.

CHAIRPERSON: So one of the possibilities could be that there was no such meeting.

GEN VAN DER MERWE: That is possible Chairperson, but then that would be quite strange if I received a document from Brig Schoon after I had requested them to prepare to go to CIC and tell them there was consultation and tell them to continue. That is inexplicable.

CHAIRPERSON: There is quite a lot that is inexplicable in this matter, but what I wish to ask is, if there was no meeting, how would the decision to attack have been made?

GEN VAN DER MERWE: No Chairperson, I have already stated that if no meeting had taken place, which I think is most improbable, that would have meant that I on my own would have considered the action and in the light of the threat, had decided to continue with the operation.

MR BERGER: And that you find unthinkable?

GEN VAN DER MERWE: Yes, Chairperson, that is improbable to me.

MR BERGER: Well, if that is so, then who did you speak to to clear this operation? That's what I keep coming back to.

GEN VAN DER MERWE: But Chairperson, I have already state repeatedly, that the one aspect is that which I cannot recall.

MR BERGER: At the time that you made your application for amnesty, you were of the view that there was a minute of the meeting?

GEN VAN DER MERWE: No Chairperson.

MR VISSER: Would my learned friend just tell you where he gets that?

MR BERGER: If my learned friend would let me, that was my next point. if you have a look at page 103 of bundle 1, (iv) Nature and Particulars you say

"I have taken cognisance of the contents of Brig Willem Schoon's application regarding this incident. Although I can recall the event, I cannot remember if or at what stage the matter was dealt with by the Co-ordinating Intelligence Committee, CIC, as I do not currently enjoy access to the minutes of the Committee. A request was made for the minutes to be placed at my disposal but thus far this has not be acceded to."

Now the clear implication, I put it to you, from this paragraph is that you are saying: "If I can see those minutes, then I will be able to tell you if the matter was discussed and if so, when it was discussed." Is my reading incorrect?

GEN VAN DER MERWE: Yes, it is correct, but if I had obtained those minutes, it would have enabled me to determine what the course of the entire matter was, which I wasn't able to determine at that stage.

MR BERGER: If it was discussed at the time when you filled out this application form, you believed that if it had been discussed, it would have been minuted and if you could get access to those minutes, your memory could be refreshed.

GEN VAN DER MERWE: It could have been and the minutes may have assisted me.

CHAIRPERSON: Did you remember at that stage that there was a possibility of a meeting of non-official persons?

GEN VAN DER MERWE: No.

CHAIRPERSON: Then where does that story come from?

GEN VAN DER MERWE: Which story?

CHAIRPERSON: That there is a possibility that there may have been a meeting or gathering of persons who did not comprise CIC during which this matter was discussed, or possibly discussed.

GEN VAN DER MERWE: Because I put it quite clearly Chairperson, that I cannot recall that precise meeting and I have already stated that it would have been highly improbable that I would have acted alone without consulting members of CIC in the light of the fact that there were certain factors that one had to take account of for which one would necessarily have had to discuss with others around you.

CHAIRPERSON: But then I want to know something else. According to these minutes and please correct me if I am wrong, if it had been discussed by you then it must have been with CIC. You say: "I cannot remember if or at what stage the matter was dealt with by the Co-ordinating Intelligence Committee."

GEN VAN DER MERWE: Or with members of the CIC Chairperson. Remember I say that I cannot recall, therefore the possibility exists that it could have been anything about that. If I say that I cannot recall that it was definitely the CIC, so anything was possible at that stage, because things were quite topsy-turvey, we simply indicated it in order to complete our applications, we did not set out all the particulars at the hand of other documents.

CHAIRPERSON: Yes, I understand that. I am just trying to figure it out.

MR BERGER: Mr van der Merwe, I want to put it to you that you don't make allowance for this possibility in your application, do you?

GEN VAN DER MERWE: In which application?

MR BERGER: The possibility that it might not have been discussed at a CIC meeting at all, but only with a few members of CIC.

GEN VAN DER MERWE: No, Chairperson, at that stage I simply mentioned it in the light of the fact that CIC could have assisted me, but I didn't attempt to make a further analysis of the information or determine other possible results or consequences. I couldn't even remember the circumstances that well. Therefore at that stage, I already stated that this matter must have been discussed during a CIC meeting. I have already said that I know what I stated there but you must remember that I said this in terms of what Brig Schoon and the others said in order to indicate that I couldn't make any statements about it unless I had had the opportunity to consult the CIC minutes.

MR BERGER: Let's just analyse what you've said. In 1996 you said: "I cannot remember if or at what stage the matter was dealt with by the CIC."

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER

"As, meaning because, I do not currently enjoy access to the minutes of the Committee."

The you go on to say that CIC usually functioned under the Chairmanship of Dr Neil Barnard and it consisted of representatives of National Intelligence, the SADF, the SAP and the Department of Foreign Affairs. And then you say:

"I am in agreement with the general content of his application"

that's Mr Schoon's application, am I right?

GEN VAN DER MERWE: Correct.

MR BERGER

"Regarding this incident, especially as far as it pertains to my own particular role."

Then if you turn to page 141 of the same bundle, this is now the application of Mr Schoon and as far as your particular role is concerned, he deals with that in (iv), he says:

"Gen van der Merwe het vir my opdrag gegee om vas te stel of die Veiligheidstak oor die nodige inligting en vermoë beskik om teen die ANC in Lesotho op te tree en dringend 'n voorlegging aan hom to doen."

Then he talks about giving a certain instruction to Mr de Kock and then he gets a report back from Mr de Kock and then he says:

"Ek het die verslag"

this is the report from Mr de Kock,

"aan Gen van der Merwe oorhandig en hy het dit op dieselfde dag by die CIC bespreek en goedkeuring verkry om die operasie van stapel te stuur."

So he too suggests that you went to the CIC on that day.

CHAIRPERSON: Not suggested, he says so.

MR BERGER: He says it, I beg your pardon.

CHAIRPERSON: Whether he's going to confirm that is another matter.

MR BERGER: Well that's why we wanted to go from the bottom up. Then, Mr van der Merwe, you were asked a specific question at page 104 of bundle 2. You were asked, question 11(a)

"Was the act"

I'm leaving out words, but you'll see why,

"Was the act committed in the execution of an order of or on behalf of, or with the approval of the organisation, institution, body, liberation movement, State department, or Security Force concerned?"

CHAIRPERSON: Give us the reference again, Mr Berger.

MR BERGER: I beg your pardon Chair. It's bundle 1 page 104, paragraph 11(a). And your answer is, now this is the attack, you said

"Yes, on behalf of the South African Police and the former South African Government and specifically the National Party whose interests had to be further and/or protected."

Then ...(indistinct) you are asked,:

"If so," in other words if it was on behalf or with the or on the order of someone, "state the particulars of such order or approval and the date thereof and if known, the name and address of the person or persons who gave such order or approval" and your answer is

"Approved by the Co-ordinating Intelligence Committee."

Now you say that when you used the word approved, you didn't mean approved.

GEN VAN DER MERWE: No, I said that there was no opposition and I also said that it was clear that the CIC had no capacity to give orders or to give approval, so therefore they could not have approved it.

CHAIRPERSON: What does that answer at 11(b) then mean?

GEN VAN DER MERWE: When we completed these applications, we did not make a detailed analysis and determine precisely what every aspect was. Actually the most that I could have meant by it was that there was consultation with the CIC and that the CIC did not oppose it, that is the only thing it could have meant. If it means anything else, then that meaning is incorrect.

JUDGE KHAMPEPE: If the CIC could have opposed it, then could not have authorised it, what would have been the intention behind the need to consult with CIC members?

GEN VAN DER MERWE: Chairperson, as I have already stated, it was purely to determine whether or not they would have agreed with my judgment that at that stage, in the light of the threat, we ought to take action in order to combat that threat and I think that Adv Bosman has already stated this. I used them as a sound board. We would not have used them as anything other than a sounding board in that case.

JUDGE KHAMPEPE: If they had opposed your proposed intention to launch an attack on Lesotho, would you not have proceeded with the decision to launch such an attack?

GEN VAN DER MERWE: No Chairperson, if they objected to it, then one would have had to determine why they would have been objecting to it and then one could have argued it to the length of days, but I cannot see why there would have been an objective but if there had been an objection, then one would have had to determine what the essence of that objection was and how that objection would have influenced the threat.

ADV BOSMAN: Mr van der Merwe, if I look at page 104 of volume 2, paragraph 3.2.3, there it says

"The CIC is in agreement that whichever action is planned against Lesotho, it should be preceded by a well-planned propaganda programme, so that any RSA action could be seen as a last resort by countries abroad."

So in my opinion that appears to be more of a planning phase.

GEN VAN DER MERWE: Chairperson, as I have stated, at that meeting we would definitely have discussed the option of using violence in order to combat the threat.

ADV BOSMAN: Well then the point is made that this should be preceded by a well-planned propaganda programme, did you know about this?

GEN VAN DER MERWE: Yes, but that would have been obviously only of application if the threat was of such a nature that we had time for it. In this particular case, we had an immediate threat where the MK members were infiltrating the RSA at any given point and this would not have been a viable option. Secondly, it would only have been applicable if it was an open action, but in the case of a covert action, it would not necessarily have been used.

ADV BOSMAN: I must tell you, it confuses me somewhat because no distinction is made between overt or covert, it is clearly put that the RSA action must be viewed by foreign countries as a last resort. Can I then infer from this that no propaganda programme of any nature was considered?

GEN VAN DER MERWE: No, because it wouldn't have made any sense in terms of this action.

MR BERGER: But then paragraph 3.2.3. on page 104 of bundle 2 makes no sense.

CHAIRPERSON: Page?

MR BERGER: 104, bundle 2.

CHAIRPERSON: What paragraph?

MR BERGER: 3.2.3, the very paragraph that Adv Bosman was referring to.

GEN VAN DER MERWE: Well, Chairperson, I accept that at that stage covert actions had not been considered and it is against that background that the remark was made. you must remember that during that CIC meeting, there was no immediate danger as such, there was a threat surrounding that in the sense that there were MK members in Lesotho, but the aspects and the facts which led to our action were not discussed during that meeting.

MR BERGER: Well when did the information come through that there was this imminent threat?

GEN VAN DER MERWE: After the first week in December. you will note, as I've already stated in the Situation Report of the 7th of December, it is clearly stated that during the first week of December observation was undertaken by a regularly reliable source that there are MK members who are in possession of AK47s and ammunition, who were planning to infiltrate the country during the Festive Season, in order to carry out "terrorist activities"

MR BERGER: Well, the first week of December, to my mind, starts on the 1st of December.

GEN VAN DER MERWE: That is correct.

CHAIRPERSON: It could be the 6th of December also.

MR BERGER: Let me go back to page 104 of bundle 1. your evidence is that the CIC never had authority to approve the raid.

GEN VAN DER MERWE: Correct.

MR BERGER: And you knew that at the time that you filled out paragraph 11(b).

GEN VAN DER MERWE: chairperson, no, it is possible that at that stage in light of the consultation which took place with CIC, I may have put it as such, but if one analyses the situation, I went back and gave the order and it is very clear that it couldn't have come from CIC because they didn't have that capacity. It was indeed I who would have had to exercise that capacity.

MR BERGER: You must have know in 1996, if you know now, that the CIC had no authority. You must have known that in 1996. You must have known that in 1985.

GEN VAN DER MERWE: That is correct.

MR BERGER: So Mr van der Merwe, it's obvious that you're a very intelligent man and you now exactly what question paragraph 11 is asking. Paragraph 11 is saying, if you committed a gross violation of human rights or you've committed an act for which you seek amnesty, who gave you authority to commit such an act? Isn't it clear from the wording of the question?

GEN VAN DER MERWE: That is correct, Chairperson.

MR BERGER: And your answer was, "My authority came from the CIC."

GEN VAN DER MERWE: Yes, it was a mistake.

MR BERGER: Have a look at what Brig Schoon says.

CHAIRPERSON: Is there any other section that you will argue to be faulty or that you may not agree with?

GEN VAN DER MERWE: I have dealt with that in my application where it was mentionable.

CHAIRPERSON: Are you satisfied?

GEN VAN DER MERWE: Yes.

CHAIRPERSON: With reference to 11 (b), you say now that that is not exactly the intention, that which appears there was not your intention, then I want to ask you again, is there any other section of your application which should be regarded in a similar light?

GEN VAN DER MERWE: I have already amended these aspects in the evidence that I have given before you.

CHAIRPERSON: Are you then satisfied?

GEN VAN DER MERWE: Yes, I am.

MR BERGER: Mr Schoon is asked the same question at page 143 of bundle 1. Look at the wording of his answer to question 11(a) and compare that with the wording of your answer to question 11(a). Would you agree with me, while the one is in English and the other is in Afrikaans, it's identical?

GEN VAN DER MERWE: In a certain sense, yes, Chairperson, although he may put it somewhat clearer than I have.

CHAIRPERSON: Mr Berger, I think to be fair to the witness, Schoon does say that he understands, which he implies that it's hearsay. I'm not too sure what he meant by "Ek verstaan".

MR BERGER: Chairperson, I refer to 11(a).

CHAIRPERSON: Okay. ...(indistinct - mike not on)

MR BERGER: He says

"Ja."

You know, was this on behalf of anyone and he says:

"Yes, on behalf of the South African Police as well as the former Government, but particularly the National Party whose interests were promoted and/or protect thereby."

That's as close as one can get, isn't it?

GEN VAN DER MERWE: Yes.

MR BERGER: Did you discuss your application before you filled them out, you and Mr Schoon?

GEN VAN DER MERWE: No, Chairperson, he fixed my attention upon it, but there wasn't any time to discuss it at that stage because there were several cases that we had to attend to.

MR BERGER: The wording is - just that a co-incidence?

GEN VAN DER MERWE: And it was simply done that way in the light of a pattern which was followed with regard to that case.

MR BERGER: Have a look at 11(b). If so, the question is in Afrikaans, the question is the same

"Who gave the approval? Who gave the order?"

And his answer is:

"I understand that it was a collective order from the Co-ordination Information or Intelligence Committee, CIC, and General JV van der Merwe."

I understand that it was a joint instruction of the CIC and General van der Merwe. Where would he get that understanding from other than from you?

GEN VAN DER MERWE: Or in the light of the fact that I told him that no objection was made against it at CIC, that we could continue with the operation and he understood it as such. That answer of his can also be interpreted to mean that there was consultation with the CIC and that we could go ahead with the operation.

CHAIRPERSON: The important aspect of the question is, where would he have obtained the information that CIC approved it?

GEN VAN DER MERWE: Chairperson, he would probably have inferred it from the fact that I was at the CIC and returned and told him to continue with the operation. i probably wouldn't even have told him that the CIC agreed with it or whatever the case may be. I would have told him: "Continue with the operation" and in the light of the idea that I had discussed this at CIC, he would have accepted that it enjoyed the approval of CIC.

MR BERGER: Exactly, you went to a CIC meeting, you got the CIC approval, you went back to him and you said: "CIC has approved." it wasn't one or two members of CIC, it was CIC meeting. You've just said so.

GEN VAN DER MERWE: No not necessarily, Chairperson.

MR BERGER: And if it was a CIC meeting, then we can be fairly sure, reasonably sure, if not sure, that the people listed at pages 99 to 100 of bundle 2, were present.

GEN VAN DER MERWE: Not necessarily.

MR BERGER: What was the Lesotho Liberation Army?

GEN VAN DER MERWE: It was the LLA. It was a unit that developed, if I am correct, the Military wing of the BCP that was indeed in resistance to the Government of Chief Leoboa Jonathan.

MR BERGER: Do you know about Operation Latsa - L-A-T-S-A?

GEN VAN DER MERWE: No, I don't have any knowledge of that.

MR BERGER: Would it be correct to say that the Lesotho Liberation Army or whatever they call themselves, I think they changed their name, Lesotho National Liberation Army, was a surrogate of the SADF?

GEN VAN DER MERWE: No, not that I knew of.

CHAIRPERSON: And the Security Police and the ...(indistinct - speaking simultaneously)

GEN VAN DER MERWE: Not that I knew of Chairperson.

MR BERGER: We know now and many people knew at the time, in fact most people knew at the time, that the Lesotho Liberation Army were not responsible for the massacre.

GEN VAN DER MERWE: Correct.

MR BERGER: And yet they claimed responsibility for it.

GEN VAN DER MERWE: Chairperson, it's inexplicable. I don't know if they wanted to claim political advantage from this. I don't know whether this was to their benefit politically, so I cannot imagine why they would want to take responsibility.

MR BERGER: Would it be correct to say that it was

CHAIRPERSON: Did they accept responsibility?

GEN VAN DER MERWE: No, there was some newspaper report that said so.

CHAIRPERSON: South African newspaper? What newspaper was it?

MR BERGER: Chairperson, there were a number of reports about the LLA claiming responsibility, but my attorney will find them for you.

CHAIRPERSON: I'm trying to find out what the source was. It may have been a friendly newspaper.

MR VISSER: Chairperson, perhaps if I may be of assistance. There are a number, if you look at volume 2, page 94 for example. 94 of Volume 2. This is a newspaper from the Sunday Tribune of the 22nd of December 1985 if the stamp there is taken to be correct. In the middle column the third paragraph says

"A spokesman for the Lesotho Liberation Army has claimed responsibility" although it says: "The death of former Natal woman, Jackie Quin was a mistake"

and Chairperson there are others, I'm just trying to find them quickly for you. What my learned friend is now asking about, you will find at page 96 of the same volume. I hope yours is printed sideways like mine. Yes. And if you look on the right-hand bottom part of it, Maseru Hit Squat R I and you look at the first column, the third paragraph, or the second paragraph says:

"South African Defence Force and Police spokesman, insists they are not responsible while the shadowy Lesotho National Liberation Army, LNLA, accused of being a surrogate of the South Africans, claimed it is."

And then at one stage you asked for the source. In one newspaper article, the name of a person in that Liberation Movement is mentioned by name. I've been glancing over it and I'm not ... (indistinct - mice not on.)

CHAIRPERSON: it was a South African source, ...(indistinct) to the powers that be at the time. That was also possible and it was done at the time. We all know that.

MR VISSER: Yes, you are absolutely correct. " 'n Dekstorie". Yes, but except that from a newspaper report, it doesn't appear that that was the case here. It appears that this originated from Lesotho itself. Unless my learned friend has other information.

MR BERGER: Well, I have an article here from the Guardian in the UK, an article written by Patrick Lawrence in Johannesburg. I have the actual article. There's an article in the Sowetan, but it seems, it appears to be common cause that there was this claim and as your counsel has pointed out, it's common knowledge that there were these "dekstories" that were put out by the South African Government everytime it wanted to distance itself from a particular operation. You will surely not dispute that?

GEN VAN DER MERWE: That's possible, Chairperson.

MR BERGER: Now here we've got a situation where the South African Government is accused of carrying out the raid. The South African Police and the Army deny that they are responsible for the raid and the Lesotho Liberation Army claims responsibility for the raid. That's usually the hallmark of a "dekstorie".

GEN VAN DER MERWE: Chairperson, I have already said that I was not involved there.

MR BERGER: But you see what it suggests, Mr van der Merwe and what I want to suggest to you is, it suggests planning beforehand as to how we are going to deal with accusations which are sure to come that the South African Government, or the South African Security Forces are responsible for the raid.

CHAIRPERSON: The answer comes - that would imply that there was a relationship of some sort with the Liberation Movement.

MR BERGER: Indeed it would.

CHAIRPERSON: ...(indistinct - mike not on) some South Africans, a newspaper report and that in fact the Liberation Movement in Lesotho in fact claimed responsibility. Now if they did in fact claim responsibility and we all know that they would not have been telling the truth, there must have been a relationship between the South African Forces and them. I don't know if you have evidence to that effect.

MR BERGER: Indeed, that's what I'm suggesting to Mr van der Merwe.

MR BAN DER MERWE: Chairperson, I was not involved.

MR BERGER: On the basis of reading that I've done, research that I've done, why can't I ask the question if I've done research and there are certain background facts which I have knowledge of?

CHAIRPERSON: You just agreed with me that if we accept that the Lesotho Liberation Movement did in fact accept responsibility, we know they're not telling the truth. We know the South African Defence Force, and the South African Police and the South African Army, they also denied responsibility, so all of them are not telling the truth, but if you're suggesting that this idea was pre-planned, that the real culprits would deny it but somebody else would take responsibility for it, there must have been a relationship between them prior to the actual event.

CHAIRPERSON: Now, whatever reading you may have done and whatever research you may have done, I'm not privy to that. You are now suggesting something to the witness which to me seems problematic because you have not linked the relationship between South Africa and a Liberation Movement that claimed responsibility for it.

MR BERGER: Chairperson, if Mr van der Merwe had confirmed what I was suggesting to him, then it would be evidence before you. He says he has no knowledge. It's going to take us on a - down a side street and I'm not going to pursue that.

MR VISSER: May I be allowed just to complete the reference? I've just found it, it's at page 93. The person who claimed responsibility on behalf of this LLA identified himself to the newspaper as Mopeti Mopeti, you'll find that in the first column at the top of page 93, the third paragraph, that's what I was looking for. For what it's worth, but as my learned friend says, we are in a side street.

MR BERGER: On the same article referred to by my learned friend, it says there that the claim by the LLA is obviously a camouflage by the South African Defence Force to cover up their immoral attack.

CHAIRPERSON: ...(indistinct - mike not on)

MR BERGER: I'll proceed Chair. Mr van der Merwe, I'd like to move right to the beginning. When you received information that there was a unit in Lesotho that was on the point of launching an attack on South Africa, who passed that information on to you?

GEN VAN DER MERWE: By mediation of the Security Branch Ladybrand. It came to Security Head Office, Chairperson.

MR BERGER: Who actually passed the information on to you?

GEN VAN DER MERWE: Do you mean at head office?

MR BERGER: No who in Ladybrand passed the information on to you at head office?

GEN VAN DER MERWE: No, Chairperson, I am not able to remember. Reports were usually handed in and usually the reporters would note the source and then it was dealt with by the Divisional Head Office in Bloemfontein and from there it would be sent to us.

MR BERGER: Who at head office handed the information on to you?

GEN VAN DER MERWE: That would have been that particular desk which dealt with Lesotho at that stage, but I cannot recall who it was, Chairperson.

MR BERGER: Which desk was that?

GEN VAN DER MERWE: The Lesotho desk at head office.

MR BERGER: And you cannot recall who worked at the Lesotho Desk at head office?

GEN VAN DER MERWE: No this was in 1985, I can determine it but I cannot tell you off the top of my head right now.

MR BERGER: You say that it was reported from the informer that an attack was to be launched over the Christmas holiday?

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: You don't know who the source was?

GEN VAN DER MERWE: No Chairperson.

MR BERGER: You didn't know who the source was at the time?

GEN VAN DER MERWE: No.

MR BERGER: Did you check with anyone on the accuracy of that information?

GEN VAN DER MERWE: Chairperson, the information was also submitted to the Branch National Interpretation and you will note that in their situational report of the 17th of December, that was the initial information and thereafter additional information was received from the Security Branch Ladybrand, upon which it was mentioned that the source had submitted two hand grenades which he had taken from a weapons cache point in order to support his allegations.

MR BERGER: Now in this information, you say names were mentioned.

GEN VAN DER MERWE: Correct, names would have been mentioned.

MR BERGER: And to this day, you can't remember the names.

GEN VAN DER MERWE: No. I dealt with thousands of names during the course of my work at the Security Branch so it is impossible to specifically place a name ...(indistinct) of people.

MR BERGER: But you didn't kill thousands and thousands of people?

GEN VAN DER MERWE: No but the fact remains that we were embroiled in a struggle of life and death during that time and thousands of people died. One person's death was not more important than another.

MR BERGER: We're talking about people who you have claimed responsibility for murdering.

GEN VAN DER MERWE: Yes, Chairperson, but you have to recall it was part of the struggle. We were in a war with regard to that. No more weight was attached to one case than another. This incident would not have weighed any heavier than if my colleagues were killed, or other persons were killed, it all had an effect on one's conscience.

MR BERGER: Are you saying that you are responsible for the deaths of hundreds of people, or so many people that you can't remember the names?

GEN VAN DER MERWE: No, I am saying that I dealt with the death of so many people, I dealt with so many gruesome events which did make an impression on one's conscience or state of mind and so I would not recall the names of the persons in the report in 1985 and in my initial application I have said that my memory is vague. I never pretended to say that I recall everything.

MR BERGER: Well, you were told that there was a group of eight people who were about to enter South Africa.

GEN VAN DER MERWE: That's correct, Chairperson.

MR BERGER: And you gave the order for the eight people to be killed.

GEN VAN DER MERWE: I gave instruction that the persons or the group to which this information was relevant, who were involved in acts of violence, were to be killed, Chairperson.

MR BERGER: I think the short answer to my question is yes.

MR VISSER: No, no. The short answer is not yes. There's a qualification, Chairperson. It was a group that was identified. It was busy with a certain activity. That's the answer.

MR BERGER: We had already got there anyway.

CHAIRPERSON: Mr van der Merwe, how many people's death did you order?

GEN VAN DER MERWE: Chairperson, I was involved in several operations.

CHAIRPERSON: No, I refer to this incident.

GEN VAN DER MERWE: You refer to this incident? I cannot recall how many, it was not a large group, it was a small group. I cannot recall whether it was four or six.

CHAIRPERSON: Your information was that so many could come in.

GEN VAN DER MERWE: My information was that it would be a small group. You will see in the situation report, four is mentioned, so the information to our availability would have included four to six names, but I say most probably, not that I recall it as such. I do say in my evidence that the names of Leon Meyer and Jacqueline Quin, I do recall those names, not because they necessarily had been involved in that group of four but because, in their instances, the media with regard to that had made much of it with regard to the incident.

CHAIRPERSON: What type of emphasis?

GEN VAN DER MERWE: the emphasis that Leon Meyer and Jacqueline Quin had lived together and that Jacqueline Quin had, back then, was the daughter of an affluent family and something about these names remained with me.

MR BERGER: After the attack, you were briefed that the mission had been successfully carried out.

GEN VAN DER MERWE: Correct.

MR BERGER: That the entire unit had been killed.

GEN VAN DER MERWE: That's correct, Chairperson.

MR BERGER: And that nine people had died.

GEN VAN DER MERWE: Yes.

MR BERGER: And yet in your application at 103 of bundle 1, paragraph 9(b) you say two people were killed.

GEN VAN DER MERWE: Yes, I am honest at that stage. It slipped me that nine persons had been killed.

MR BERGER: And the people you mention, you say: "I think that those killed were Leon and Jackie Quin", you didn't even get his surname?

GEN VAN DER MERWE: That's correct, Chairperson.

MR BERGER: Did you really have such accurate information about the names of the members of the group and their backgrounds, who were about to enter into South Africa?

GEN VAN DER MERWE: Definitely Chairperson, we had to have it because that information on our behalf was placed at the disposal of Col de Kock and his unit in order to follow up, as I have said and you would also note that that information was also conveyed to the Branch Intelligence Interpretation or National Interpretation.

MR BERGER: You say you gave the order that this unit, that all the members of this unit should be killed.

GEN VAN DER MERWE: Those who were involved in violence.

MR BERGER: Well, this unit was identified as being a unit that was involved in violence.

GEN VAN DER MERWE: Correct Chairperson.

MR BERGER: And so therefore you gave the order that this unit should be killed?

GEN VAN DER MERWE: That's correct.

MR BERGER: And the head of the unit, according to your information was Leon Meyer?

GEN VAN DER MERWE: Not necessarily the head thereof, but he was involved.

MR BERGER: Well, why do you refer to it as the Meyer group in your submission?

GEN VAN DER MERWE: Because I recall the name. That is only to identify, I never said that he was the head of that unit.

MR BERGER: Please have a look at page 9 of your submission. It's Exhibit A.

GEN VAN DER MERWE: I beg your pardon. I did say so Chairperson, in paragraph 31 I contradicted myself there. I did say so.

MR BERGER: So you called it the Meyer group because...

GEN VAN DER MERWE: Because they were under the leadership of Leon Meyer. That's correct yes.

MR BERGER: Why do you think it is that Mr de Kock says that the original plan was not to kill Mr Meyer, but to capture him, if your instruction was that he should be killed?

GEN VAN DER MERWE: Chairperson, I cannot explain that. I do accept that they most probably would have decided that upon themselves. That Col de Kock would be able to explain. My instruction was to wipe out this group.

MR BERGER: And you also say at paragraph 35 of page 9 of Exhibit A, that Jackie Quin was a member of the Meyer Group. Was that also your information?

GEN VAN DER MERWE: No, I do not say that Chairperson. Paragraph 35 I say that I took cognisance that the names were mentioned by the ANC before the TRC, it was a person that was killed.

CHAIRPERSON: In paragraph 10 you refer to the group as the Meyer Group.

GEN VAN DER MERWE: That is correct, Chairperson.

CHAIRPERSON: But the question is, Jackie Quin was mentioned.

GEN VAN DER MERWE: She was not mentioned in the sense that she was a member of the group who was involved in violence.

MR BERGER: Did you have the name Jackie Quin before you when you gave the order that the members of the Meyer unit should be killed?

GEN VAN DER MERWE: No, that's improbable that I would have had that name because she was not involved in violence.

MR BERGER: How do you know that?

GEN VAN DER MERWE: Well the information that we have now is that Jackie Quin was a collaborator, but she was not involved herself in acts of violence.

CHAIRPERSON: But you are saying now that that is what you know now. We are referring to back then. Did you know that she was or was not part of this group?

GEN VAN DER MERWE: Chairperson, I cannot recall the name but it is highly improbable that she was involved and would have appeared on that list and it is also improbable that Col de Kock and his group who would have evaluated the information there, would have included her in that group.

MR BERGER: Well if you can remember that Jackie Quin's name wasn't before you, was Nomkhosi ...(intervention)

GEN VAN DER MERWE: No I said it is probable that that name was not there, but the information was that she was not involved in violence and it is improbable that her name would have been included there.

MR BERGER: Was Nomkhosi Mini's name before you?

GEN VAN DER MERWE: I cannot recall which names were on that list.

CHAIRPERSON: And the information that you have now, would it have been?

GEN VAN DER MERWE: If they were involved in violence, yes, Chairperson. May I just determine which names? The names that would have been there probably, Chairperson, and I say this depending on information that we have now, is Mr Leon Meyer and the Nomkhosi Mini and then the other person Morris Siabelo and the other person, I don't know whether it's Joseph Majose or Joseph Majole, that's the information as we received it, but it would have indicated to those persons of the group who were trained and according to the source, who were on the verge of entering the country in order to commit acts of terror.

CHAIRPERSON: Did you mention four names?

GEN VAN DER MERWE: Yes, I did Chairperson.

CHAIRPERSON: So, you depended on information which you received either from a source or informer or from Mr de Kock?

GEN VAN DER MERWE: No, or in a certain sense you are correct, we depended on information which was supplied by an informer and which afterwards would have been controlled and evaluated and followed up by Mr de Kock and his group.

CHAIRPERSON: And your instruction as I recall it from yesterday, please correct me if I'm wrong, your instruction was not to kill people who were not to be killed.

GEN VAN DER MERWE: That's correct, Chairperson.

CHAIRPERSON: Persons who were not really involved in violence and you are saying that Ms Quin was one of those persons who was not supposed to have been killed?

GEN VAN DER MERWE: Correct, Chairperson.

CHAIRPERSON: Carry on.

MR BERGER: Thank you. Chairperson, can I get an indication at what time you wish to adjourn?

CHAIRPERSON: ...(indistinct - mike not on)

MR BERGER: You mentioned the name, Mr van der Merwe, of Morris Siabelo.

GEN VAN DER MERWE: Correct.

MR BERGER: His real name is Lulamile Dantile.

GEN VAN DER MERWE: That is how I have it. We had him as two persons and it appears to be the same.

MR BERGER: And he was a Regional Commander, he wasn't part of the Meyer Group. Was he also a target?

GEN VAN DER MERWE: No, may I just mention that this is a probable name and I've already said it. I do not want to confuse the issue now, that I cannot recall which names were included in the list which was submitted to me in 1985, but according to the information which was submitted at that time, those persons were on the verge of entering South Africa. I handed that information to Col de Kock and his group with the instruction that the information be further controlled and that action be taken against those persons who were identified as persons who were involved in the planned acts of terror in South Africa.

MR BERGER: And when did Mr de Kock report back to you on the intelligence work that he had done?

GEN VAN DER MERWE: No, this was after I gave him the instruction to continue to wipe out these persons, he did not report back to me once again.

MR BERGER: And if I told you that Nomkhosi Mini an MK soldier but not part of the Meyer Group?

GEN VAN DER MERWE: Once again Chairperson ... (intervention)

MR BERGER: then it's quite possible that her name wasn't on the list either.

GEN VAN DER MERWE: I am not able to tell you, I just depended on this according to the information that we have now of persons who had received training and who were possibly involved in insurgency, but you have to keep in mind that the arrangement was that Col de Kock and his group would do everything in their power to ensure that those persons who were identified in consultation with the source, would be killed during this process, not anyone else.

MR BERGER: Your targets, if I understand your evidence correctly, was those MK soldiers, who were literally on the point of entering South Africa to commit acts of violence.

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: Chairperson, it's one minute past 4. Perhaps we can adjourn. Yes we will finish Mr van der Merwe tomorrow morning. Chairperson, I don't think we're going to finish Mr Schoon. If he comes straight after Mr van der Merwe, I don't think we're going to finish both of them tomorrow. We'll do everything in our power, but I can't give that guarantee.

CHAIRPERSON: Mr Schoon is going to take a little bit less time than Mr van der Merwe did.

MR BERGER: He will take less time, yes.

CHAIRPERSON: Well, let's see how far we can get...

JUDGE KHAMPEPE: Mr Berger, are you not in a position to give an estimation of whether you'll be through with Mr van der Merwe before tea time which is at about 11 o'clock, so that we can make arrangements for Mr Schoon and also make arrangements for other witnesses who Ms Patel has indicated she intends calling on Thursday?

MR BERGER: Judge Khampepe, if we start promptly at half-past nine, there's a very good chance we'll finish by quarter past eleven. If not, it will be a very short time after tea, I am sure.

JUDGE KHAMPEPE: Thank you. We know where you were getting to when you said if we could start promptly at half-past nine.

COMMITTEE ADJOURNS