Amnesty Hearings

CHAIRPERSON: ... quick, quick and finish, Mr van der Merwe.

MR BERGER: Judge, the fourth referee will have to tell me how much injury time I've got.

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

CROSS-EXAMINATION BY MR BERGER: (Cont)

Mr van der Merwe, please would you turn to page 103 of bundle 1.

MR VISSER: Which page?

MR BERGER: 103, Chairperson.

This is your amnesty application, and I'm dealing with paragraph 4, Nature and Particulars. The paragraph that we haven't yet dealt with, is the last one which says -

"At a later stage I personally signed a written recommendation and motivation to the effect that the members involved in the raid, should be awarded the South African Police Medal for Bravery. This was subsequently approved by the then Commissioner, Gen P J Coetzee."

Now is it correct that the written recommendation that you refer to is the document which is annexed to Exhibit A?

GEN VAN DER MERWE: That is correct, Chairperson.

MR BERGER: Where did you get this document from?

GEN VAN DER MERWE: Chairperson, if I have it correctly, this document was spoken about during the criminal trial of Mr de Kock, but it was given to me by members of the South African Police Services, who had the task to trace it in terms of the criminal trial and also placed it at my disposal.

MR BERGER: And when did you get this document into your possession?

GEN VAN DER MERWE: Chairperson, it would have been after I made this submission, definitely quite some time afterwards.

MR BERGER: Yes, well how long ago was it that you got this document into your possession?

GEN VAN DER MERWE: It would most probably have been approximately two to three years.

MR BERGER: You've had this document for two or three years, and you've only made it public now.

GEN VAN DER MERWE: Well there wasn't any other opportunity upon which I could have made it known.

CHAIRPERSON: Did you have it in your possession when you made your application?

GEN VAN DER MERWE: No, Chairperson, it was only subsequent to that, that I received the document.

MR BERGER: And you are the author of this document.

GEN VAN DER MERWE: That is correct.

CHAIRPERSON: No, to be quite accurate, he's part author because someone else made written notes on the last page.

GEN VAN DER MERWE: Yes, that is Gen de Wit who made the notes, but at that stage he was the Deputy Commission.

CHAIRPERSON: By the way, he was there in Coetzee's place when Coetzee was on holiday in Port Edward.

GEN VAN DER MERWE: Yes, that is correct.

CHAIRPERSON: You stated that you did not regard it as necessary to inform him, de Wit ...(intervention)

GEN VAN DER MERWE: That is correct.

CHAIRPERSON: ... of the proposed attack. Now if that is the case and you say that the reason for that was that he didn't know what was going on, he wouldn't have been in a position to make a decision on the one hand or the other.

GEN VAN DER MERWE: That is correct.

CHAIRPERSON: Do I understand by that that he was in no position to understand what the whole attack involved and the proposed results of this attack?

GEN VAN DER MERWE: Chairperson, he would not have possessed the necessary background to exercise any real judgement as to whether or not our action at that stage was necessary, he would simply have had to rely upon my recommendation and my judgement was that it would simply mean that I would shift my responsibility to a person who at that stage, in a certain stage, would have been used as a rubber stamp. And I think that Gen Coetzee will also confirm that Gen de Wit was never involved in security matters, he was a former Quarter Master, he was more of an administrative man and I thought that it would be unreasonable to place him in such a situation.

CHAIRPERSON: The recommendation for the Silver Cross Medal, to whom was this made?

GEN VAN DER MERWE: Gen Coetzee made the recommendation, but it was decided with the approval of Compol, that the Silver Cross Medal would be awarded. Therefore, instead of the medals that I recommended, the Silver Cross Medal would be more applicable.

CHAIRPERSON: How did Gen de Wit fit into that decision?

GEN VAN DER MERWE: Well he was the Deputy Commissioner and the Chairperson of the Generals in Staff, to whom I made this submission.

CHAIRPERSON: Then he must have been in a position to understand why these medals had to be awarded.

GEN VAN DER MERWE: No, Chairperson, that is the problem exactly, he wouldn't have been, and that is why I said the Commissioner had knowledge of this matter. The information that I gave was of such a nature, as you will note, that nobody would have been able to determine according to this information, to which dangers and risks these members had exposed themselves and consequently would not have been able to judge whether or not a medal was actually earned. That is why I discussed the complete background with Gen Coetzee and consequently went to Gen Coetzee to ask whether or not these medals should be recommended, with the understanding that Gen Coetzee on his behalf, would inform the Minister so that the Minister would also be aware of the background in order to be able to determine whether or not the prerequisites for being awarded this medal were indeed met.

CHAIRPERSON: Very well, we have no heard this lengthy explanation, but my simple question is, how did de Wit fit into the decision to award the medals? Whichever medals they were.

GEN VAN DER MERWE: He was the Chairperson of the Generals in Staff and whenever a medal of this nature was recommended, there was a rule that the Generals in Staff had to consider such a recommendation and make their own recommendations.

CHAIRPERSON: Very well. Did this take place as such in this case?

GEN VAN DER MERWE: That is correct.

CHAIRPERSON: Now how was de Wit in a position to determine whether or not these medals should be awarded?

GEN VAN DER MERWE: He wasn't, he had to rely upon the Commissioner's judgement.

CHAIRPERSON: So he made a decision during a time when he didn't understand what was going on.

GEN VAN DER MERWE: No, he made a decision in terms of a submission which did not contain such facts which would have informed him as to whether or not the prerequisites were met, with the knowledge that the Commissioner did possess such information and he prevailed upon the judgement of the Commissioner exclusively.

CHAIRPERSON: Is that what you know?

GEN VAN DER MERWE: Yes, that is what I know and the Commissioner will be able to testify to that.

CHAIRPERSON: So what was the point of taking it to the Generals in Staff, if the Commissioner was the only person who possessed this information?

GEN VAN DER MERWE: That was the fixed procedure, he had to go to the Generals in Staff first. I simply dealt with the matter in terms of the fixed procedure at that stage.

CHAIRPERSON: But what I find strange, Mr van der Merwe, and I want you to deal with this and I do not want you to find yourself in the position subsequent to the hearing, to guess what your answer would have been. Here we have a person who was not familiar during the time when the decision was taken to launch the attack ...(intervention)

GEN VAN DER MERWE: That is correct.

CHAIRPERSON: ... but after the attack you made a recommendation in order to determine whether or not medals should be awarded with regard to the same incident, and that I cannot understand.

GEN VAN DER MERWE: In my submission, Chairperson, I did not compliment anybody regarding this, it went about a fixed procedure and the understanding was that there could be consultation with the Commissioner, who possessed all the necessary information, who would be able to judge or evaluate whether or not the prerequisites had been met.

You will also not that the recommendation was coloured as such that one could not really determine what it dealt with, we didn't provide enough particulars. So it didn't really place anybody in a compromising position. It was expected however, that before a memorandum be submitted to the Minister, the Generals in Staff review it.

And this was not the only case, there were many other similar cases when the medals, or recommendations for medals were given to the Generals in Staff and they didn't have any information about it and they dealt with it with the understanding that the Minister or the Commissioner would have possessed the necessary information and they agreed with these recommendations, in terms of the proposed knowledge that the Commissioner would have possessed.

CHAIRPERSON: Did the government or the procedure of the time think much of the Generals in Staff?

GEN VAN DER MERWE: Yes, indeed.

CHAIRPERSON: Did you know that they were viewed in such a superior light?

GEN VAN DER MERWE: Yes.

CHAIRPERSON: And did you know that de Wit was the Chairperson?

GEN VAN DER MERWE: Yes.

CHAIRPERSON: But nonetheless you thought it advisable not to inform him of this impending attack?

GEN VAN DER MERWE: That is correct, as I have already informed you.

CHAIRPERSON: Please continue, Mr Berger.

MR BERGER: Thank you, Chairperson.

Mr van der Merwe, your evidence yesterday, or perhaps it was on Monday, was that anybody reading this motivation would have known exactly what it was referring to.

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

MR BERGER: You go on about two months of preparatory work that was done that as a result of this operation - if you look at paragraph 2 you say that

"Our enemy ..."

... the last sentence -

"Our enemy for the time being at least, has been totally and utterly disrupted"

CHAIRPERSON: Where are you reading now, Mr Berger?

MR BERGER: Chairperson, paragraph 2, numbered paragraph 2, the last sentence.

You describe that it was a covert operation, in other words an operation that the South African government would have denied responsibility for.

GEN VAN DER MERWE: That is correct, Chairperson.

MR BERGER: In paragraph 4 you talk about the particular bravery, the extraordinary skill, the disregarding of danger to life, determination and you recommend that certain medals should be awarded.

GEN VAN DER MERWE: Correct.

MR BERGER: And you are saying that Mr de Wit merely acted as a rubber stamp and never brought his mind to bear at all, on the operation that you were describing.

GEN VAN DER MERWE: No, Chairperson, I stated that if I had approached him about it before the operation was launched, in the light thereof that he did not possess the necessary background, he would not have been able to determine whether or not the action in all regards was necessary at that stage and for this reason he would necessarily have had to prevail upon my judgement and I would simply then have used him as a rubber stamp in such a case, because he would not have possessed the capacity to debate the matter with me or to differ from me, or to adopt a different viewpoint to the matter, he would have had to prevail upon me, I was the head of the Security Branch at that stage, at least I was second-in-command at that stage, and he would necessarily have had to prevail upon my recommendation. If he had not done so, he would have had to differ at the hand of information which was of essential importance for the matter and he did not have this information.

MR BERGER: Mr van der Merwe, you've given a long answer about what you would have done or would not have done before the raid, but my question wasn't directed at that at all.

GEN VAN DER MERWE: But that is how I understood it, because subsequently he didn't' know.

MR BERGER: No, after the raid - I'm talking about this recommendation that you drafted, after the raid ...(intervention)

GEN VAN DER MERWE: Yes, but ...

MR BERGER: Can I just put the question again? After the raid you gave him the information which is set out here.

GEN VAN DER MERWE: Correct.

MR BERGER: He would have known and did know, according to you, because everyone knew exactly what you were referring to, that you were referring to the raid on Lesotho, on Maseru on the 20th of December 1985.

GEN VAN DER MERWE: Correct.

MR BERGER: And your evidence now is that he approved -when he approved the medals, he acted as a rubber stamp and never applied his mind at all to whether or not the medals were justified.

GEN VAN DER MERWE: Yes, that is correct. You must remember that he did not know the actual circumstances under which those members would find themselves. In order to comply with the recommendation for a medal for bravery, it would be required that such a person had exposed themselves to mortal danger and if Gen de Wit had to consider this, he would have had to know what the actual circumstances were under which they operated. What I put to him here was put to him as a fact, there were no particulars to indicate the nature of the threat and the actual circumstances under which these members operated and why it should be inferred from that, that their lives were in danger.

I can assure you that normally no Generals in Staff or even Gen de Wit, would have accepted such a recommendation based purely upon what I told him because what I told him I gave him as a given, I did not provide any facts based upon which he could evaluate for himself whether or not what I have stated was well founded. I gave him this information as a given and he accepted it, he didn't have a choice.

CHAIRPERSON: Why didn't he have a choice?

GEN VAN DER MERWE: Because, Chairperson, he did not possess the necessary particulars to dispute it. I have stated here that these persons displayed bravery, skill, and there was no way that he could determine whether or not this was true.

CHAIRPERSON: Then why should he believe you?

GEN VAN DER MERWE: That is why I have stated that he would necessarily have had to liaise with Gen Coetzee, who possessed the complete set of facts, in order to determine whether or not this was in order.

CHAIRPERSON: Well then we've come to the point. Then he would have understood what Coetzee told him?

GEN VAN DER MERWE: No, he would have accepted that Gen Coetzee, who possessed all the facts, was of sound judgement in this matter and that he could deal accordingly.

CHAIRPERSON: But Mr van der Merwe, if you have just said that he would have had to contact Mr Coetzee, and discussed the matter with him because the facts were not contained within this document ...

GEN VAN DER MERWE: Correct.

CHAIRPERSON: ... and from Coetzee he could have or must have obtained the real facts of the matter.

GEN VAN DER MERWE: No, he would have asked Gen Coetzee "I have received a memorandum and certain recommendations for certain medals are made here, I don't have the complete facts, you have the facts, do you agree with the recommendation". That is what he would have said or asked Mr Coetzee at the very most.

CHAIRPERSON: Full-stop - he wouldn't have gone any further?

GEN VAN DER MERWE: He wouldn't have asked any further questions.

JUDGE KHAMPEPE: Mr van der Merwe, I thought I understood your previous evidence not to have meant that you would have liaised with Mr Coetzee, I thought you said you would have relied on the decision of Mr Coetzee, and if Mr Coetzee's decision would have been that your recommendation should be approved, you would have simply gone along with Mr Coetzee's decision without having to consider the facts, because your memo did not provide sufficient facts on which he could have based his determination, whether to approve or disapprove your recommendation. This is how I understood your earlier evidence. I'm a little troubled by your use of the word "liaise with Coetzee", instead of your earlier words which you had used, which was to rely on Mr Coetzee's decision without having to discuss any facts with Mr Coetzee. What is the position?

GEN VAN DER MERWE: Chairperson, I discussed the matter with Gen Coetzee and made a recommendation to him, and as far as it pertained to the allocation of the medals, and it is obvious that Gen Coetzee's judgement in this matter would have been essential. I don't know what the problem is, whether it is ...(intervention)

JUDGE KHAMPEPE: Let me tell you what my problem is. My problem is what you now want to suggest, that Mr de Wit must have liaised with Mr Coetzee before approving your recommendation. Now that to me is suggestive of a discussion having taken place between Mr Coetzee and Mr de Wit, about the essential - you understand my problem?

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

JUDGE KHAMPEPE: Let me finish. Whereas I understood your evidence to have meant that there was no such a discussion. Mr de Wit must have relied simply on the decision of Mr Coetzee, without there ever having to be a discussion about the essential facts of the reason why the recommendation was being made by you.

GEN VAN DER MERWE: Chairperson, if I said "consult", I meant it in the sense that Gen de Wit would have consulted with Mr Coetzee, but not in the sense that he would have discussed the facts of the matter with him, but to determine what Gen Coetzee's viewpoint was in the light of the facts that he possessed.

CHAIRPERSON: Is that your perception of what must have happened?

GEN VAN DER MERWE: Yes, that is my perception of the probability of what must have happened.

CHAIRPERSON: Is there anything that would have led to him asking "Tell me what happened, how did it happen?

GEN VAN DER MERWE: I would say that the reason why we coloured this recommendation under a cover-up, was that everybody wouldn't be compromised. And I don't think that Gen de Wit would have wanted to be compromised in a matter that had nothing to do with him.

CHAIRPERSON: But in the eyes of the world, if he had agreed that medals should be awarded for something, then he would be linked to the incident, not so?

GEN VAN DER MERWE: Well I think in practice that would be the most simple of examples. I don't think Mr de Wit is here to give evidence about it. Whatever the case may be, nothing can link Mr de Wit to any of the consequences of this action.

CHAIRPERSON: You see, Mr van der Merwe, it is not about whether you or I understand the law or what the Attorney-General will do, the point is, why did you not tell him beforehand that this attack would take place?

GEN VAN DER MERWE: I tried to explain that, Chairperson, I cannot explain it any better.

JUDGE KHAMPEPE: May I, Mr Berger, interpose again?

Was it customary for this kind of a rubber-stamping to occur where the Chairperson of the Generals in Staff would not be informed of the situation, of the facts, to enable him to make a proper determination but to simply rely on his senior, like Mr Coetzee?

GEN VAN DER MERWE: Incidents of this nature, yes, Chairperson. To tell the truth, Brigadier Schoon will also be able to give evidence about that. I think there were cases where even less information was given than I had given, where they had recommended medals from the Generals in Staff.

JUDGE KHAMPEPE: Thank you, Mr Berger.

MR BERGER: Thank you, Judge.

Mr van der Merwe, you say that the reason that Mr de Wit wouldn't have been given more information, other than what is contained in here, is because he wouldn't have wanted, or you wouldn't have wanted him to be compromised.

GEN VAN DER MERWE: Correct.

MR BERGER: But isn't it obvious that by him placing his signature on this document, approving medals for certain police officers who carried out a clandestine operation in Lesotho, on the 20th of - or a clandestine operation on the 20th of December 1985, when everyone knows that there was only one clandestine operation on the 20th of December 1985, he's compromised as soon as he signs this documents?

GEN VAN DER MERWE: We did not think so, Chairperson.

MR BERGER: You say here in paragraph 3, this is the document he signed

"This operation of which no further particulars may be supplied, is regarded as top secret because further particulars would cause embarrassment to the government, as well as endangering the members involved."

And by saying that and him signing this document, you say he wasn't compromising himself.

GEN VAN DER MERWE: No, Chairperson.

MR BERGER: Okay. Tell me please, at the top of that page -this is General de Wit's handwriting, I would think ...

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: ... that says

"Col Coetzee's library"

GEN VAN DER MERWE: No, it means Col Coetzee at the library, who deals with medal awards.

MR BERGER: Now forgive me if I have misinterpreted this, but you recommended medals for outstanding service, the police star for outstanding service.

GEN VAN DER MERWE: Correct.

MR BERGER: For the five officers mentioned in paragraph 1.1.

GEN VAN DER MERWE: Correct.

MR BERGER: And then you mentioned a "bulk", what is bulk.

GEN VAN DER MERWE: It is an addition to the South African star for exceptional service. It is where a person is already in possession of such a star and then it gets the bar added to it. It is just a bar that is added to it.

MR BERGER: Something over - additional to the star?

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

MR BERGER: Okay. And then in the handwritten notes by Gen de Wit, it says there again

"Col Coetzee ..."

So that's for the person at the library, is that correct?

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

MR BERGER: It says

"... approved by the Generals in Staff on the 21st of January 1986."

GEN VAN DER MERWE: Correct.

MR BERGER: And that he's saying "I have approved it because I am the head of the General Staff, or I as the head am telling you that the entire General Staff have approved it", and then he says

"With the approval of Compol ...."

... and you say that is Mr Coetzee.

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

MR BERGER

"... it has been decided that the SAP Silver Cross for Bravery, be awarded to them."

Now am I understanding it correctly that you recommended a particular star, but another star was approved?

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: A better star or a lesser star?

GEN VAN DER MERWE: No, a lesser star.

MR BERGER: Were you recommending the Gold Cross and they got the Silver Cross?

GEN VAN DER MERWE: No, the South African Police star for exception service is the highest award that could be awarded in the police service and Gen Coetzee was of the opinion that circumstances did not justify this and therefore the South Africa Police Silver Cross for Bravery was recommended, which a lesser award.

VOORSITTER: "...(onduidelik) gelees het "Outstanding Service".

GEN VAN DER MERWE: Dit was die SOE gewees, Voorsitter..."

CHAIRPERSON: What did you ask?

GEN VAN DER MERWE: I asked for the South African Police star for outstanding service.

CHAIRPERSON: Outstanding service - it sounds like it.

GEN VAN DER MERWE: "Ja, maar dit was die watse naam, die Stella Officii Egregi toekenning gewees, SOE." That is the highest award that can be awarded.

VOORSITTER: ...(onduidelik) vir dapperheid? Of net Coetzee?

GEN VAN DER MERWE: Gen Coetzee recommended that instead of the first-mentioned one, the Silver Cross would be awarded.

ADV BOSMAN: Gen van der Merwe, may I just enquire. If one looks at the context of it, with the approval of the Commissioner it has been decided, it would appear that a decision was taken that was approved by the Commissioner. If one reads it as it is written there. Do you agree with me? Are you not mistaken?

GEN VAN DER MERWE: You are correct, but I think it is not completely worded, but at the bottom you will see

"Please promote"

... that means to promote it with the Minister.

ADV BOSMAN: That is correct, but it would appear that there was a consultation with the Commissioner of Police after the decision was taken, I just wish to know if you are not possibly mistaken about this.

GEN VAN DER MERWE: No, I think it is just the sequence that does not follow here correctly. It may have been done the other way around and I think that is the way that Gen de Wit had dealt with it here.

ADV BOSMAN: Do you have an independent recollection that you had determined that the recommendation of the Silver Cross came from the Commissioner of Police and not the other way around? Are you certain of that? I'm trying to assist you to give us clarity about this, are you certain of it factually, that it didn't go from the Generals in Staff to Gen Coetzee, or did it happen the other way around? Because when one reads it, the inference that one draws is that it was the other way around.

GEN VAN DER MERWE: Yes, it was the other way around. After Gen de Wit had consulted with Gen Coetzee about it, it was recommended as such.

CHAIRPERSON: You know what confuses me is the first line, but now I understand. Your recommendation was approved by the Generals in Staff, but with the Commissioner's approval it was decided that the South African Police Silver Cross for bravery would be awarded to them.

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: Thank you, Chairperson.

Mr van der Merwe, the facts as we know them now, are that of the nine people killed, six were South African and there were Lesotho citizens. Do you accept that?

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

MR BERGER: Do you accept that you would have known that at the time?

GEN VAN DER MERWE: After the incident?

MR BERGER: Yes. You would have been briefed on exactly who had been killed.

GEN VAN DER MERWE: Yes. Perhaps, I may just mention, after the incident I received a report from Brig Schoon that the operation had been completed and that the persons who were on the verge of entering the RSA, had been killed, and we would have had the names of these persons who had been killed.

MR BERGER: But you would have also known that amongst the people who were killed were people who were not on the point of entering South Africa, to carry out attacks.

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: Not only that, you would also have known when you received the report from Mr Schoon, that amongst the dead was a school teacher, I'm referring to Jackie Quin, who was not involved in MK activities at all, and three Lesotho citizens who in no way could have been connected to the struggle against the South African regime. You would have known that when you received your report from Mr Schoon.

GEN VAN DER MERWE: Chairperson, may I just comment firstly with regard to Ms Jackie Quin. Although I am sorry that she had died in the incident, but she was a collaborator of the ANC and she was in the company of persons who had planned acts of violence and terror. So in that regard she was not removed from the whole process that had taken place there.

With regard to the other persons, the information at that time would have probably - depending on the activities which they were involved, set out the connection between them and the ANC. I cannot recall what the particular circumstances were. I can recall that the only person who in this process, with regard to the newspapers, that was emphasised, who was not directly involved in violence, was Ms Jackie Quin. I cannot recall at this stage what the nature and particulars of the activities of the other persons were.

MR BERGER: No, no, you see I'm not asking you for your recollection now, because you've told the Committee several times that your recollection is so vague, you can't even remember who you spoke to before the raid, I'm asking you to put yourself back in the position in 1985 immediately after the raid. You would have received a report from - let's go back a little further, before the raid you had a list of names of the people that you wanted dead.

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: After the raid you would have received a report-back of the people who had been killed.

GEN VAN DER MERWE: Correct.

MR BERGER: You would have compared the two lists and you would have seen that more people were killed, or other people were killed, other than those who were on your original list.

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

MR BERGER: Now you say that - reading between the lines of the evidence that you've just given, that Jackie Quin wasn't as innocent as I'm trying to make her out to be, you call her a "meeloper".

GEN VAN DER MERWE: I said a possible collaborator or a supporter of the ANC, but she did find herself in the company of the person who had planned violence and who had given military training, so one accepts that she was aware of their activity.

MR BERGER: If you're married to an MK Commander, your a target for assassination by the South African ...(intervention)

GEN VAN DER MERWE: No, she was not a target, that's not what I am saying, but it also means at the same time that she was involved in the company of persons who were targets.

CHAIRPERSON: Of what value is that answer?

GEN VAN DER MERWE: Chairperson, it means that she had necessarily exposed herself to certain risks because of her contact with persons who were involved in violence.

JUDGE KHAMPEPE: May I interpose, Mr Berger?

But let me understand you, Mr van der Merwe, and I will go back to your instruction to Brig Schoon, with regard to the execution of the operation. Did your instruction extend to the killing of collaborators or was it confined to the killing of the Meyer group?

GEN VAN DER MERWE: Chairperson, may I just place this in perspective. You mention the Meyer group, now Mr Berger yesterday questioned me about certain persons and I would like to shed light upon this matter. When we drew up this document, the last statement, we made use of names which we found from the ANC's submission and except for the other names, Jackie Quin and Lionel Meyer, I could not recall the other names and using the evidence of Col de Kock and because of the name of Lionel Meyer had remained in my mind, I accepted that Mr Meyer had been the leader of the group. This does not necessarily mean that all the person who were involved in his group would have resorted under his group, but what was of import is that when we had the targets we had the names of certain persons who were about to enter the country and my instruction was later to those persons and to stop those persons entering the country. But obviously we did accept that in such an operation there are certain risks attached to it and no unit, not even the best in the world can guarantee that when they do act in such a case, that innocent persons would not die. So it was a possibility that we foresee and accepted.

JUDGE KHAMPEPE: Thank you, it assists me greatly.

MR BERGER: Thank you, Judge.

Your evidence throughout has been that the people that you instructed to be killed, were those people who were on the verge of entering South Africa to carry out attacks.

GEN VAN DER MERWE: That's correct, Chairperson. But I added that we foresaw that other persons might die in the process.

MR BERGER: Because according to you, it couldn't be avoided?

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: But is that really correct, because couldn't you have given instructions to Mr de Kock or Mr Schoon, through him to Mr de Kock, whichever way you did it, to ensure that only those people who were on your list, who you believed were about to enter South Africa to commit acts of violence, that only them should be killed and that they should take steps to ensure that no one else was killed in the process? You could have given such an instruction.

GEN VAN DER MERWE: Chairperson, my instruction was that everything possible was to be done to prevent persons who were not involved in violence from being killed, but it is obvious as I have already told you, that there was no way. I would have been extremely unreasonable if I thought that any unit can complete such an operation without the possibility that other persons be killed in the process, or that other MK members who might have been there would also not be killed in the process. You have to recall that we were at war with MK, so that would have been extremely unreasonable of me to ask this of these members.

MR BERGER: You keep talking about a war that you were involved in, and in your statement you say that even though it was a war, the rules of war didn't apply. Let's bring it down to what it really was. It was an ambush on a group of people who had been called to a house, or gathered there for a party.

GEN VAN DER MERWE: Who were on the verge of entering the Republic in order to commit acts of terror and violence.

MR BERGER: That's not disputed. The point is, your operatives arranged for all these people amongst whom were the people that you were targeting, to be brought together to a party, under the guise of having a party. And also, if you've read the statement of Mr McCaskell, you'll see that he spiked the drinks. I'm sure you've read that.

GEN VAN DER MERWE: Yes, I've read it.

MR BERGER: Of the people at the party. Now isn't that something ...(intervention)

JUDGE KHAMPEPE: Of at least one, Mr Berger, not everyone was - yes, he could only manage to spike the drink of one person who was drinking brandy or whisky.

MR BERGER: Thank you, Judge.

The point is that that was an option that was obviously considered, drugging people so that when the ambush occurred they wouldn't be in a position to fight back. My point to you Mr van der Merwe is, it seems as if you did not lay particular emphasis on the fact that only those people who were about to enter the country were to be killed.

GEN VAN DER MERWE: Chairperson, I emphasised that persons who were involved with violence had to be killed, but the whole operation was obviously aimed - as I have repeatedly said, to prevent those persons who wanted to come into the country, to prevent them from being successful.

CHAIRPERSON: Do I understand you correctly, they had to continue with your instructions, knowing that there innocent persons may also be killed, but those persons about to enter South Africa, they were the targets.

GEN VAN DER MERWE: Correct, Chairperson.

CHAIRPERSON: What would have been the position if there were children at the house?

GEN VAN DER MERWE: Chairperson, Col de Kock has emphasised and I have said also that everything had to be done in order to prevent that innocent persons be killed, and it was done, Chairperson.

CHAIRPERSON: What would have happened to the whole operation if de Kock had arrived there and saw here at this house there were children as well as the targets, would he have continued the operation?

GEN VAN DER MERWE: No, Chairperson, he would not have. Definitely not.

CHAIRPERSON: Now what of innocent persons who were not on the point of entering the country?

GEN VAN DER MERWE: Chairperson, in that case he would have had to have himself led by circumstances. I think they would have done everything possible to prevent that those people got killed during their actions, but once again I think they would have tried to identify their targets.

CHAIRPERSON: So you do not draw a distinction between innocent persons and children, except for age?

GEN VAN DER MERWE: In the case of an innocent person one accepts during such an operation, that such a person can get away much quicker and that they from their side would be in a better position to try to prevent killing such persons.

CHAIRPERSON: Please continue, Mr Berger.

MR BERGER: Isn't the difference between so-called innocent people and children, from your point of view, that the innocent people have chosen to party or associate with MK members and so they too are legitimate targets for assassination?

GEN VAN DER MERWE: Definitely not, Chairperson.

MR BERGER: Well then I don't understand your distinction, but we'll leave it at that.

In your statement and in your evidence, you've said that you're relying on the ANC's submissions to the TRC, in relation to the people who were killed.

GEN VAN DER MERWE: Correct.

MR BERGER: And you refer in your statement to page 62 of the ANC's submission to the TRC, dated August 1996, am I right?

GEN VAN DER MERWE: Correct.

MR BERGER: August 1996. The only passage at page 62, which deals with this attack, is a paragraph in the first column on the left-hand side, four paragraphs from the bottom, and I'll read it to you. It reads as follows

"On December the 20th, 1985, the Pretoria regime launched a raid on Lesotho in which nine people were killed. They denied all responsibility for these murders in which weapons with silencers were used, claiming the attacks had been carried out by the Lesotho Liberation Army. Among the dead were Leon Meyer and Jackie Quin, murdered in front of their infant daughter, Phoenix. Quin was not only not a member of the ANC, but was not even a refugee. She travelled South Africa regularly and could have been arrested with no difficulty at all."

Is that the passage that you incorporated by reference, into your statement?

GEN VAN DER MERWE: Yes, Chairperson. But then, page 92 or 93 of the same report, there ironically you will see

"List of ANC members who died in exile, number 44, Jackie Quin."

MR BERGER: So what is your point?

GEN VAN DER MERWE

"List of ANC members who died in exile ..."

And below number 44 the name of Jackie Quin appears as an -

... ANC member who died in exile ..."

MR BERGER: Yes, and this specific paragraph that I read to you before, does that not cast this list in a slightly different light?

CHAIRPERSON: I think the impression - I can't remember what you put to the witness some time ago about the late Ms Jackie Quin, that she was innocent non-aligned person, but I think the point the witness is making is that in fact the ANC claimed her membership.

JUDGE KHAMPEPE: But I think what you are saying, Mr Berger, is that that cannot be true if one takes into account the preceding paragraph that you have just read to Mr van der Merwe.

MR BERGER: Indeed, Judge.

GEN VAN DER MERWE: Chairperson, the list follows after that paragraph, so I thought that the list would be the final viewpoint of the ANC.

MR BERGER: Is that a serious answer, Mr van der Merwe?

GEN VAN DER MERWE: Otherwise that list is nonsensical. Why would they include her name in the list if she was not a member of the ANC? "Ek aanvaar daardie lys is seker rondom dit uit hulle register gekry, terwyl die voorlegging bedoel was eintlik maar vir openbare mening."

MR BERGER: Isn't it obvious, Mr van der Merwe, that Jackie Quin was loved by the ANC, that she was married to an ANC member and that her death came about in the course of the struggle and that that is why the ANC have listed her in this document at page 93?

GEN VAN DER MERWE: Chairperson, whatever the consideration was, the fact remains that she was included in that list as a member of the ANC, so somewhere they had to rely on some authority for this list.

CHAIRPERSON: But what is the - I fail to understand, if any of the parties can tell me, what does her membership or otherwise got to do with the price of eggs? The fact of the matter is that she was not a target for this operation.

GEN VAN DER MERWE: That's correct.

MR BERGER: As you please, Chairperson.

MR VISSER: And Mr Chairman, would you allow me to say, just to place on record, we are more than an hour into the hearing today and we have heard nothing but irrelevance, irrelevant questions. We've heard questions about the guilt or innocence of de Wit, for three-quarters of an hour and now we're onto whether Ms Jackie Quin was or wasn't a member of the ANC. And as you've just pointed out, it's totally irrelevant to the hearing.

JUDGE KHAMPEPE: Mr Visser, I would beg to differ with you. I don't think what we have been presented with today has been completely irrelevant, I think we must allow Mr Berger an opportunity to conduct his cross-examination. We take it that you are all seasoned counsel and you will not be prone to wasting our time, knowing that we are a very short-lived Commission. So I don't think your remark is in good taste.

MR VISSER: Well I wasn't intending to make in bad taste, Chairperson, I was just recording a fact that - I bow to your ruling in the regard.

JUDGE KHAMPEPE: Proceed Mr Berger, in cross-examining Mr van der Merwe.

MR BERGER: Thank you, Judge.

Mr van der Merwe, let me refer you back to page 103 of your application, bundle 1. That paragraph which reads -

"At a later stage I personally signed a written recommendation and motivation to the effect that the members involved in the raid should be awarded the South African police medal for bravery."

Then you go on to say -

"This was subsequently approved by the then Commissioner, Gen PJ Coetzee."

... and we've dealt with that.

MR BERGER: And then you say

"According to a memo submitted in this regard, Gen Coetzee was fully aware of all the circumstances relating to this incident."

"Fully aware". Who briefed Mr Coetzee?

GEN VAN DER MERWE: I did. I've already stated that after the incident I discussed the award of the medals with Gen Coetzee and also submitted all the facts pertaining to the matter to him.

MR BERGER: Is it not so that Mr Coetzee was fully aware of all the circumstances relating to this incident, because he was kept informed of all the circumstances relating to this incident right from the time it was planned, right through the operation until the time that the medals were awarded? Isn't that why he's "fully aware"?

GEN VAN DER MERWE: No, Chairperson, I have already explained repeatedly that Gen Coetzee was not available and what the circumstances were. It is not like that at all.

MR BERGER: And then you go on to say

"The recommendation was discussed by the Generals Staff, who concurred ..."

Do you still stand by that?

GEN VAN DER MERWE: Correct.

MR BERGER: So that the Generals Staff discussed a matter of which they had no knowledge?

GEN VAN DER MERWE: Correct.

MR BERGER: Okay. And the medals were subsequently awarded by the Minister of Police, Minister Louis le Grange.

GEN VAN DER MERWE: Correct.

MR BERGER: So he too would have been fully informed of all these circumstances surrounding the incident?

GEN VAN DER MERWE: That is correct.

MR BERGER: Again after the fact, not before.

GEN VAN DER MERWE: Correct.

MR BERGER: Yes. I'd like to take you to a document which is contained in Volume 3, at page 60. Do you have it?

GEN VAN DER MERWE: Yes, I have it.

MR BERGER: Now this is a document which is headed

"Authorisation of the South African Defence Force Operational Cross-border Actions: Angola, Zambia, Zimbabwe, Mozambique, Botswana, Lesotho, Swaziland."

Now you've seen this document before.

GEN VAN DER MERWE: Yes, I have.

MR BERGER: And we know from the Minute that this document was approved by the State Security Council, with minor amendments which don't really concern us.

GEN VAN DER MERWE: Correct.

MR BERGER: At the meeting of the State Security Council on the 21st of October 1985.

GEN VAN DER MERWE: Correct.

MR BERGER: And for what will become relevant later, the Chairperson of the State Security Council was the President, PW Botha.

GEN VAN DER MERWE: Correct.

MR BERGER: And incidentally, present at that meeting - you'll see from page 66 of the same bundle, were a number of people including Mr Coetzee, the then Commissioner of Police and Dr Barnard, the Director General of National Intelligence.

GEN VAN DER MERWE: Correct.

MR BERGER: Now certain guidelines are set out in this document in relation to cross-border operations. Now I'd like to refer you to first of all, paragraph 3 of that document, at page 60. Do you see

"Algemene Riglyne"?

GEN VAN DER MERWE: I see that.

MR BERGER: The following appears

"In alle gevalle ..."

And I'm reading from the second sentence of that paragraph.

"In all cases, except where immediate reaction was regarded as necessary, it was however necessary that the closest possible cooperation would occur beforehand between the South African Defence Force and the Department of Foreign Affairs ..."

And if my memory serves me correctly that was amended to read -

"all interested departments"

I see Mr Wagener is flinching, but I'll check it. It is right.

GEN VAN DER MERWE: That is correct.

MR BERGER

"... as well as other interested departments, in order to determine that the department would observe its basic responsibility and that the operation could be justified in the most effective way to the foreign governments and media."

GEN VAN DER MERWE: That is correct.

MR BERGER: My understanding of this is that in all cases where the army was going to cross the border and carry out operations, there had to be a coordination between the various departments and in particular the Department of Foreign Affairs, so that South Africa's foreign image could be properly handled.

GEN VAN DER MERWE: That is correct.

MR BERGER: Then if you'll turn to paragraph 14, which is dealt with at page 64, there Lesotho is dealt with and the following is recorded

"In recent times there has been no change in attitude of the Lesotho government with regard to its connection in the disruption of the current dispensation within the RSA in any possible way."

GEN VAN DER MERWE: That is correct.

MR BERGER: That the Lesotho government is not being cooperative.

GEN VAN DER MERWE: Not at all.

MR BERGER

"The ANC and the PAC still enjoy the support of Premier Jonathan and the probability of weapon stockpiling for these terrorist organisations is strong. Although the situation in Lesotho is very delicate, the following guidelines with regard to types of operations for consideration are presented."

And these are the guidelines -

(a) Operations which have to be cleared with the Chairperson of the SSC ..."

There are two types, the one is -

"Small and large-scale offensive operations. This involves offensive action against the ANC and PAC basis, installations and connection lines within Lesotho, even where it may lead to direct confrontation with the Lesotho forces. This is based upon confirmative information and is preceded by a multilevel departmental planning cycle."

And the second type of operation which had to be cleared by the Chairperson, are -

"Revenge operations."

Then there's a second category and it talked about -

"Operations which can be approved by the Minister of Defence (that was Mr Malan) where necessary in consultation with the Chairperson of the SSC."

And there are three categories there, there's -

"Follow-up Operations, Reconnaissance Operations and Special Operations."

Now it's clear that the State Security Council was concerned with cross-border operations and said that when the army crosses the border, these are the guidelines that need to be adhered to. There's got to be permission given by either PW Botha or Magnus Malan, in consultation if necessary, with PW Botha. You say - and I'm sorry it was such a long introduction to my question, but you say that no such guidelines existed for the South African Police.

GEN VAN DER MERWE: Correct.

MR BERGER: How can that possibly be if you believed, and when I say you I mean you plural, believed that you were living in a "Regstaat", a State governed by rules.

GEN VAN DER MERWE: Chairperson, I have already explained. Insofar as it concerned covert actions there could never have been any guidelines according to which the government would have been committed, because that would have destroyed the entire objective of the covert operation.

MR BERGER: But here we have the army ...(intervention)

GEN VAN DER MERWE: But the army is not covert operations, it can never as it appears here, have any bearing on covert operations.

MR BERGER: Hang on, hang on a moment please, Mr van der Merwe. We're talking about members of the SADF ...

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: ... which included for example, members of the CCB, am I right?

GEN VAN DER MERWE: Correct.

MR BERGER: Who were involved in covert operations, am I right?

GEN VAN DER MERWE: Correct.

MR BERGER: Or there's a special category here, Special Operations. Special Operations included covert operations, did they not?

GEN VAN DER MERWE: Correct, Chairperson, but that would depend upon the nature of the covert operation.

MR BERGER: Well exactly. So here we have a set of guidelines which control the army when they conduct covert and overt operations across the border, not so?

GEN VAN DER MERWE: Correct, Chairperson.

CHAIRPERSON: Were there any overt cross-border operations?

GEN VAN DER MERWE: Yes, Chairperson. There were various in Botswana and other places.

CHAIRPERSON: I'm talking about '85/'86.

MR BERGER: Yes, Chairperson, there were, in Gaberone for example, in 1985.

What I'm putting to you is remarkable, if the State - there are two possible scenarios, and you can tell me which one applied, either the South African police were not allowed to participate in cross-border operations, or if they were, then there were guideline just as there were guidelines to regulate the control, or to regulate members of the Defence Force.

GEN VAN DER MERWE: Chairperson, I would like to re

emphasise that those guidelines could not have been of application to covert operations, especially operations of the nature that we were involved with. I would like to put it to you that Mr Pik Botha will give evidence and I will ask for one singular example where the SSC had approved a covert operation by the army of this nature. I would like one example, because I am not aware of one such example. There may be, and if there is I would like to know whether or not there was such an incident where a covert cross-border operation during which persons were killed, was previously approved by the SSC.

MR BERGER: Mr van der Merwe, so are you saying you are going to accept Mr Pik Botha's say-so on whatever he says when he comes to this Commission?

GEN VAN DER MERWE: He will have to bring us the Minutes, so that we can consult these documents.

MR BERGER: No, no, you will accept his say-so.

GEN VAN DER MERWE: No, no, not at all, whatever he may say is the last that I would believe. He is the last person that I would believe, but I want is for him to bring us the Minutes of the SSC meeting during which they would have approved such an action.

MR BERGER: And you expect that ...(intervention)

CHAIRPERSON: Hopefully those Minutes will be accurate.

GEN VAN DER MERWE: Well I hope so too, Chairperson.

MR BERGER: And based on your evidence ...(intervention)

CHAIRPERSON: ...(inaudible)

INTERPRETER: The speaker's microphone is not on.

GEN VAN DER MERWE: Unfortunately, Chairperson.

MR BERGER: Well exactly, that's the point, Mr van der Merwe. You say that it should be in a State Security Council Minute, when you know for a fact that covert operations were not recorded.

GEN VAN DER MERWE: Well that is why I have said, Chairperson, if you have fixed such a procedure and if it has not been recorded anywhere and if the government is not connected to it, it would have been a farce. What would the sense have been, nobody would have been able to fall back on it. That would have meant that if it ever was discussed, the government would have denied it and the persons who were involved in it would simply have had to deal with the matter.

MR BERGER: You see Mr van der Merwe, what I'm suggesting to you, here is a document which is marked

"Top Secret"

It couldn't have been more secret, am I right?

GEN VAN DER MERWE: That is correct.

MR BERGER: And within that little cabal, the State Security Council developed rules and regulations so that they could deal with the situation if there was a cross-border operation, so that they would be able to have a plausible reaction, they would know about it beforehand, so that they could then react appropriately after the fact. That's why these rules were developed for the army. And what I'm suggesting to you is, how can it be possible that there were no rules developed for the police, unless of course the police were not authorised to go across the border.

GEN VAN DER MERWE: No, except possibly because the Defence Force acted on a much larger scale than the police with regard to this, also because the police had a specific task and to a certain extent certain capacities which were set down by the Police Act.

MR BERGER: But you were acting outside the Police Act when you authorised this raid, were you not?

GEN VAN DER MERWE: Yes, but nonetheless with regard to my express or implied authorisation. I still maintained the basic principle ...(intervention)

CHAIRPERSON: ...(inaudible)

INTERPRETER: The speaker's microphone is not on.

CHAIRPERSON: With regard to the Police Act, where would that capacity have come from?

GEN VAN DER MERWE: It would have been inferred. Under the particular circumstances of that time we had to observe of our task of the preservation of internal security and the protection of human life within circumstances pertaining to a war situation, which complicated the execution of the Act.

CHAIRPERSON: Mr Berger, have you got much more longer to go?

MR BERGER: I have a fair amount, but the end is in sight. Perhaps we should take the tea adjournment now.

CHAIRPERSON: I'd just like to remind you, you promised us yesterday that quarter past eleven would be your last question.

MR BERGER: I said if we started at half past nine.

CHAIRPERSON: I assume it was a.m. Let's break for tea.

COMMITTEE ADJOURNS

ON RESUMPTION

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

MR BERGER: Thank you, Judge.

CHAIRPERSON: You took an extra couple of minutes, you've passed your quarter past eleven in any case.

CROSS-EXAMINATION BY MR BERGER: (Cont)

Well we're into injury time now.

Mr van der Merwe, just before the tea adjournment I was putting to you about guidelines and authority and your version has been that there were no guidelines.

GEN VAN DER MERWE: No, Chairperson, definitely not, not for covert operations.

MR BERGER: And if there were any guidelines you would have known about them.

GEN VAN DER MERWE: Yes.

MR BERGER: And as far as overt operations were concerned, well those were governed by the Police Act.

GEN VAN DER MERWE: By the law yes, Chairperson, the Police Act and other legislation that existed.

MR BERGER: Yes.

CHAIRPERSON: Are you able to tell us, Mr van der Merwe, why is it that the police were then exempted from having guidelines? In either case.

GEN VAN DER MERWE: Chairperson, because I still stand by it that these guidelines could not have been applicable to covert operations, it was only meant for overt action. I find it difficult to comprehend and I would like them to come and explain that the SSC had decided that a covert action had to be launched outside the law and that they would lay down the guidelines for it.

ADV BOSMAN: In other words you are saying that the Defence Force also did not have any guidelines for covert operations.

GEN VAN DER MERWE: I would not say that they did not have, but I cannot understand how there could have been any guidelines for covert actions where the intention was apparently that these persons would act outside the boundaries of the law. What would be the sense of it? The person who thought up this has to explain what the sense of it is.

CHAIRPERSON: But Mr van der Merwe, somewhere there is a Minute that I had seen, I cannot recall where, that after this incident, guidelines were laid down.

GEN VAN DER MERWE: For covert operations, Chairperson?

CHAIRPERSON: Well that is what I'd like to determine. GEN VAN DER MERWE: If that is so, Chairperson, then I would like the Minister of Justice to come and explain how he could have been involved in drawing up guidelines for covert actions which were apparently intended to be illegal.

CHAIRPERSON: The guidelines were either in the Minutes of the 3rd of December or the following one. I think it's the following one, the 20th December. Where do we get that?

MR VISSER: Page 109.

CHAIRPERSON: Of?

MR VISSER: Volume 2.

CHAIRPERSON: It doesn't state whether it is covert or overt.

GEN VAN DER MERWE: That is why I emphasise, Chairperson, I cannot think how it can be expected that the SSC would have laid down guidelines for covert operations where the intention was apparently to act outside the boundaries of the law. That is not reconcilable with any reasonable action.

CHAIRPERSON: Please continue.

MR BERGER: It's not as nonsensical as you would make out, Mr van der Merwe, the clear reason for guidelines as I've put to you before, is to ensure that those in power, those at the top, are able to react to situations after they occur, otherwise you have the situation where you have the various arms of the Security Forces running around having carte blanche and who knows what results that could have for the country internationally.

GEN VAN DER MERWE: Chairperson, if that is true, then once again I would like to make the statement that I would like see where it was ever applied in practise. I cannot imagine where this was viable in practise.

MR BERGER: And in any event, Mr van der Merwe, your evidence before - in your evidence before the tea break, you conceded that these guidelines could cover covert operations of ...(intervention)

GEN VAN DER MERWE: No, I strongly emphasised that it could not have involved it.

MR BERGER: No, no, no, no, you conceded ...(intervention)

JUDGE KHAMPEPE: That is not so, Mr Berger, I don't have a note where he conceded.

MR BERGER: Judge, my recollection is that he did. I put it ...(intervention)

GEN VAN DER MERWE: Chairperson, if that is so, then I am terribly sorry, but I have always maintained the viewpoint that covert operations did not have guidelines.

CHAIRPERSON: Mr Berger, throughout his testimony I've also had the impression that he did not make that concession at any time. Would you like to check up?

MR BERGER: Chairperson, I gave an example of members of the CCB who are also members of the SADF.

CHAIRPERSON: ...(indistinct - no microphone) check it up on the record. Is it a point that's going to be ...(intervention)

MR BERGER: No, it's either there or it's not and we can leave it for the time being.

GEN VAN DER MERWE: No, Chairperson, I shall react to that. You have to recall that even in the event of the CCB, it was possible that with regard to the Defence Act, that certain of their covert operations could have taken place within the boundaries of the law, but I refer to covert operations outside the boundaries of the law. That could not be regulated whatsoever.

MR BERGER: So you are saying covert operations are covered as long as they are within the parameters of the law.

GEN VAN DER MERWE: Yes, Chairperson.

MR BERGER: Covert operations that are beyond the parameters of the law, there are no guidelines for them at all.

GEN VAN DER MERWE: No, with regard to covert operations within the ambit of the law there's legislature that regulates it.

CHAIRPERSON: That would border on overt, isn't it? If it's done according to the law.

GEN VAN DER MERWE: No, Chairperson, may I explain to you Chairperson. In the Security Branch we had several secret projects which for all practical purposes could be regarded as covert operations, but these were approved by the Minister, in the light of the collection of certain information and other intelligence and if it is regarded against that background, that it be seen against - as covert background, that could be. But I refer to covert operations where the intention was that it would take place outside the parameters of the law. There could not have been guidelines for that, if there was, then it was nonsensical.

MR BERGER: Well let's take that then. So ...(intervention)

CHAIRPERSON: The letter that was sent by Foreign Affairs to Lesotho, with regard to this problem, you had knowledge of this?

GEN VAN DER MERWE: Yes, Chairperson.

CHAIRPERSON: That was according to the law?

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

CHAIRPERSON: That was overt.

GEN VAN DER MERWE: Yes, Chairperson.

CHAIRPERSON: And the action of the 19th/20th December, I understood according to your evidence - and you must please correct me if I am mistaken, was done after there were no reaction to that letter.

GEN VAN DER MERWE: Correct, Chairperson.

CHAIRPERSON: And the action of the 19th/20th December, was it overt or covert?

GEN VAN DER MERWE: It was covert, Chairperson.

CHAIRPERSON: Please explain, if this was attached to this overt letter, it was a procedure that was followed, how is this overt operation mixed in here?

GEN VAN DER MERWE: No, Chairperson, you have to keep in mind that we requested that that letter be sent at a time when this operation was not even planned and thereafter we received certain information ...(intervention)

CHAIRPERSON: It must have considered because in the letter it says "If you don't do anything, we will to the best of our judgement, act."

GEN VAN DER MERWE: Correct, Chairperson, it was foreseen that force would be used, but there was no plan at that stage, the planning only came about, and the decision that we would act was taken after we received certain information. And as I have already explained ...(intervention)

CHAIRPERSON: No, I understand that but why was the whole thing not done overtly, because you had already gone through the procedures, you had warned them.

GEN VAN DER MERWE: Chairperson, because I have already explained, because at that stage without doubt, if we had acted overtly it would have had dire consequences for the government.

CHAIRPERSON: I understand that, but with regard to you, there was the letter, this whole action was overt, why did you not go to the Minister and say "Listen there is no reaction, we shall act now, overtly"? Or covert, sorry.

GEN VAN DER MERWE: Chairperson, because I have already explained, it would have made no difference whether the Minister had authorised a covert operation. He did not have the legal authority to do such a thing, he would have only compromised the Minister, if I under those circumstances had consulted with higher authority than the Minister himself. As I have already explained, I had the capacity where I - there would have been devolved authority that the Minister did not have.

CHAIRPERSON: But you would have told him what information you had and that is why you made this proposal.

GEN VAN DER MERWE: Chairperson, the Minister cannot authorise any covert operation, he could at best have knowledge of it because he didn't have the capacity.

CHAIRPERSON: But he could have told you "You can't do it".

GEN VAN DER MERWE: He could have done it, but ...(intervention)

CHAIRPERSON: And you would have had to oblige.

GEN VAN DER MERWE: Yes, but that would not have meant that if he had agreed that he had given any legal status to that action.

CHAIRPERSON: Yes, but the point is he could have said that you cannot continue with it.

GEN VAN DER MERWE: But Chairperson, at that stage I was of the opinion that the circumstances were such that the Minister would have no objection.

CHAIRPERSON: Yes, Mr Berger.

MR BERGER: Mr van der Merwe, so your reading of the heading Special Operations in this document, you say that that doesn't include covert operations.

GEN VAN DER MERWE: I said, Chairperson, bear in mind this was not before the time, I refer to it as we are analysing it here now, and I am saying that it could not have included covert operations with the intention of being unlawful.

MR BERGER: In other words, operations which couldn't be - which shouldn't be traceable back to the South African government?

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: Well have a look at page 62 of bundle 3. Now this falls under Angola. Unfortunately you'll see that page 62 and 61 should have been photocopied differently, 61 actually comes after 62. Oh, no, no, I'm wrong, sorry. Under the heading Angola, you'll see there are certain guidelines and you'll see again the pattern from page 61, you'll see the pattern of the guidelines. Operations which

"There are those operations which have to be cleared by the Chairperson, PW Botha

Large-scale offensive operations and revenge operations."

And then you'll see ...(intervention)

CHAIRPERSON: Where are you reading from?

MR BERGER: 61, paragraph 6(a). There are certain guidelines, but the pattern you'll see it's similar to the pattern in relation to Lesotho. It first deals with those operations which have to be cleared by the Chairperson of the State Security Council, then under (b) it deals with those operations which much be cleared by the Minister of Defence and where necessary, in consultation with the Chairperson of the State Security Council. And here we have Small-scale offensive operations. This time large-scale and small-scale were separated, other than in the case of Lesotho, but then we have

"Follow-up operations"

And then over the page you have -

"Reconnaissance Operations and Special Operations"

And under Special Operations, the following is noted -

"This entails sensitive special operations which are to be executed by Special Forces trained specifically for this purpose, that had to be dealt with on an absolute need-to-know basis and which may be divided into the following two categories."

And then Special Operations are divided into two categories -

"Covert Operations and Clandestine Operations."

And under covert operations it says -

"Secret operations where actions cannot be traced back to the RSA."

So here you have a document dealing with covert operations - guidelines which must govern covert operations, which cannot be traceable back to the government, which are the very operations that you said it would be senseless to include in formal guidelines.

MR VISSER: Mr Chairman, that's not what the witness said, with great respect. As I understood his evidence he said those covert operations which fall outside the boundaries of the law. My learned friend is leaving that qualification away from his question and he is suggesting that the witness said something entirely different from what he has said.

MR BERGER: Chairperson, before I asked the question I had this page open in front of me and I used the words that are recorded under the heading - Covert Operations, where it says

"Heimlike operasies waar optredes nie na die RSA terug...(onduidelik) moet wees nie."

And I asked Mr van der Merwe "Are you saying that the covert operations which wouldn't be included in the guidelines are those which could not or should not be traceable back to the South African government and he said "Yes".

GEN VAN DER MERWE: But within the ambit that I have repeatedly stated Chairperson, which legally was unlawful. And may I just say, Chairperson, we were involved in a full-scale war in Angola and the circumstances and rules that controlled there were entirely different. The army was there. And all operations there took place in a different light with regard to the circumstances that reigned at that stage in relation to actions against other neighbouring States. One cannot equate actions in Angola to any action in other neighbouring States.

MR BERGER: I'm not comparing Angola to Lesotho, you missed my point, Mr van der Merwe. The point is that this document speaks about special operations in a number of instances and the reason that it doesn't go into detail after paragraph 6, about what special operations include because special operations are defined in paragraph 6, that's my point. I'm not comparing the situation in Angola with the situation in Lesotho.

GEN VAN DER MERWE: As far as I understood this has regard to Angola.

CHAIRPERSON: What you say is the definition of certain aspects of that war differs from country to country?

GEN VAN DER MERWE: Definitely, Chairperson. What I meant by that is that actions that were applicable to Angola by the army and with regard to the rules that were laid down there, one cannot go and take it to the other neighbouring States because they were there in Angola, they had their tanks and they had their troops there in Angola. They fought in Angola itself.

CHAIRPERSON: So secret operations where actions could not be traced back to the RSA in this regard, is only applicable to Angola.

GEN VAN DER MERWE: That's how I understood it, Chairperson, that's how I understood it.

CHAIRPERSON: And it would be something different for Lesotho?

GEN VAN DER MERWE: With regard to Lesotho, as I have said repeatedly, one could never launch similar operations.

CHAIRPERSON: But would you agree that these are guidelines applicable to Angola?

GEN VAN DER MERWE: Definitely, Chairperson.

CHAIRPERSON: Please explain your earlier answer to me where you said that you cannot understand how there can be guidelines for any covert operation.

GEN VAN DER MERWE: That takes place outside the ambit of the law, Chairperson, where the intention is apparently that the government publicly would distance itself from it and deny it. Nowhere with regard to that in any way would it carry any weight or be of any concern.

CHAIRPERSON: But in Angola they deemed it necessary to have

guidelines.

GEN VAN DER MERWE: But in Angola there was no danger that the RSA was to be embarrassed there because they were there in a full-scale war where the rules of conventional war were applicable.

CHAIRPERSON: But we refer to page 62(iv) - number 1 under that.

GEN VAN DER MERWE: Correct, Chairperson. Once again, where one is embroiled in a conventional war in a country, other principles are applicable as opposed to the common actions where normal law is applicable and the usual requirements accompanying them.

ADV BOSMAN: Mr van der Merwe, I am confused. If you look at paragraph 1, Covert Operations, according to your interpretation they refer to covert operations within the ambit within the law and covert operations outside the ambit of the law.

GEN VAN DER MERWE: I don't know, Chairperson, I don't know what the Defence Act was for. The army would have to come here and tell us about it. I didn't have this beforehand and in practice it was not made available to us, so I am just commenting on it.

ADV BOSMAN: I understand that, but I am just trying to find out your comment. You made the qualification beforehand that for covert operation within the law, it would have been taken up here, but now I am asking you what your comment is here. Or can you not comment?

GEN VAN DER MERWE: I cannot comment, I don't know what capacities were given to the Defence Force.

MR BERGER: Mr van der Merwe, it doesn't help to say that the situation was different in Angola from Lesotho, because that's not the point of my question, and perhaps if you would just listen to the point of my question we can proceed a bit faster. The point of my question is, here we have a situation - let's take Angola, where the South African government is admittedly present and yet when it comes to special operations, there are certain operations which should not be traceable back to the South African government, which need to be cleared by the Minister of Defence sometimes or where necessary, in consultation with the State President. That's what it says here, am I right?

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: If South Africa was in a war situation in Angola as it was, if it as admittedly there, if the covert operation was legal, was within the parameters of the law, there would be no reason why that couldn't be traced back to the South African government, if it was lawful.

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: So therefore, these covert operations which cannot be traced back to the South African government, must be covert operations which are beyond the parameters of the law. - must follow.

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: Now if that was what the State Security Council had in mind for Angola, how can you possibly say that when the phrase "Special Operations" is used in the same document in relation to Lesotho, that it doesn't include covert operations beyond the parameters of the law? How can you say that?

GEN VAN DER MERWE: Because it would not have been of any purpose, Chairperson.

MR BERGER: Alright. To come back to what you say was your authority, you had no guidelines, you consulted or you got the authorisation from nobody, the CIC meeting which you attended had no authority to give you authority, so your evidence must boil down to the fact that you had carte blanche to do whatever you felt justified in doing. Would that be fair?

GEN VAN DER MERWE: "Solank ek so kon aantoon, Voorsitter, dat ek as oogmerk en doelwit gehad het, die bewaring van binnelandse veiligheid en om lewe en eiendom to beskerm en dat daar 'n dreigende gevaar bestaan het wat dit rondom dit noodsaaklik gemaak het."

MR BERGER: You said "as ek dit kon aangetoon het".

GEN VAN DER MERWE: That's correct.

MR BERGER: In other words, if I could show it.

GEN VAN DER MERWE: That's correct.

MR BERGER: Or if I could prove it.

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: And what you're saying is that you didn't have to show it or prove it before you carried out the raid, you could just show it or prove it afterwards.

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: So you had carte blanche to do whatever you considered necessary without consulting anyone beforehand.

GEN VAN DER MERWE: Within those guidelines, yes, Chairperson.

CHAIRPERSON: ...(indistinct - no microphone)

GEN VAN DER MERWE: The guidelines that I - if my conduct at any point in time would have been disputed or some or other operation went wrong or whatever and that I could show that I had acted in the interests of the maintenance of internal security in order to protect lives and property. Just to explain this, you have to bear in mind that where one authorises an operation of this nature you might jeopardise your career, your life, everything if something goes wrong and some of your persons are killed or arrested on the other side, then one had to depend on the tacit protection of the government and in that regard one had to show that one's actions had met the requirements.

MR BERGER: And where were these guidelines set out?

GEN VAN DER MERWE: There were no such guidelines, Chairperson, I said the necessity of it. If I had acted in such a case, then I had to keep in mind what the consequences would be if something went wrong and I then in such an instance had to please explain why I had acted in this manner.

MR BERGER: Mr van der Merwe, I want to put it to you that you can't have it both ways. You can't claim to have been living in a "Regstaat" and at the same time say that there were no guidelines controlling your behaviour, that there was - that you had carte blanche.

GEN VAN DER MERWE: But Chairperson, it was obvious that circumstances that reigned then, it was expected of us to act under circumstances where the law could not reach. There was never any prescriptions with regard to actions of this nature. And the only test with regard to this would be if something went wrong and it becomes public, then one had to explain why one acted in this manner.

MR BERGER: You're claiming to have had implied authority, isn't that correct?

GEN VAN DER MERWE: Correct, Chairperson, entirely correct.

MR BERGER: The last refuge of anyone seeking authority is implied authority, isn't it?

GEN VAN DER MERWE: In our case where there was a war or an undeclared war, Chairperson, where one had to deal every day with circumstances that I think has been emphasised repeatedly, it was necessary.

MR BERGER: No, it wasn't, you could have got the actual authority from consulting your seniors.

GEN VAN DER MERWE: No, I've already explained why I could not do that, Chairperson.

CHAIRPERSON: With regard to de Wit, you did not deem it necessary?

GEN VAN DER MERWE: Correct, Chairperson.

CHAIRPERSON: What about Mr Barnard?

GEN VAN DER MERWE: But Chairperson, it has been my evidence and my problem, I have said that according to all indications I would have consulted with members of CIC, possibly Mr Barnard or with the other members, or whoever was in his place. And that is where my problem is, I cannot recall it. It is probably denied that I had consulted with them, but to me at this stage it is one factor which I struggle with and that is, I would have consulted with them.

JUDGE KHAMPEPE: But within the same tone, Mr van der Merwe, the CIC did not have the necessary authority to authorise such an action.

GEN VAN DER MERWE: No, that is correct, Chairperson, but if one consulted as I have said, one could depend upon it that the information would be given through and if anything went wrong or if things had developed, then the SSC would have knowledge of it. But you are entirely correct, there was no-one that could have authorised such an operation in the circumstances, except for myself.

JUDGE KHAMPEPE: Yes.

MR BERGER: What I want to put to you, Mr Meyer - Mr van der Merwe, I beg your pardon, is either you had no authority, for the reasons that I've put to you, you couldn't get authority from the CIC, so therefore you couldn't get any authority from the members of the CIC, or if you had authority, you must have got that authority from your seniors, either the Commissioner of Police or the Minister of Defence or the President - the Minister of Law and Order, or the President. In which case, you haven't made full disclosure.

GEN VAN DER MERWE: Chairperson, I have already explained that in my capacity I deduced that even if those persons had given authority, they did not have any legal status to do that and from their viewpoint with regards to the requirements of the law, there was no authorisation.

MR BERGER: No, no, quite clearly we're talking about conduct beyond the law. You are talking about conduct beyond the law, aren't you?

GEN VAN DER MERWE: Correct, Chairperson, and that is why I say no-one else could have authorised it.

CHAIRPERSON: Except, Mr van der Merwe, there could have been many people to tell you not to go ahead.

GEN VAN DER MERWE: Yes, Chairperson, that would have only been if the circumstances were of such a nature that one had doubts whether one should act or not.

MR BERGER: But everyone who applies for amnesty is applying in respect of unlawful conduct.

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: And it's in relation to that unlawful conduct that you must ...(intervention)

CHAIRPERSON: Correction, Mr Berger, some apply for matters that were legal. They still apply and they don't get it.

MR BERGER: Point taken, Chairperson.

But if you're entitled to amnesty, let me put it that way, it has to be in respect of unlawful conduct.

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: But at the same time that unlawful conduct must have been approved by someone.

MR VISSER: Mr Chairman, where in the Act is that requirement ever made? With great - my learned friend is putting that for unlawful conduct to be able to obtain amnesty, it must have been authorised by someone, and I'm challenging him to tell you where that appears in the Act.

CHAIRPERSON: ...(indistinct - no microphone)

MR VISSER: In any event let him put the question, Mr Chairman, this is really argument. Let him put the question if he wishes.

MR BERGER: Chairperson, Section 20(2)(b) of the Act relates to

"Any act committed by any employee of the State or any former State or any member of the Security Forces of the State or any former State, in the course and scope of his or her duties and within the scope of his or her express or implied authority, directed against a publicly known political organisation or liberation movement engaged in a political struggle against the State or a former State or against any members or supporters of such organisation or movement and which was committed bona fide with the object of countering or otherwise resisting the said struggle."

So the Act requires you to have had, or an applicant, to have had authority.

CHAIRPERSON: I don't understand ...(indistinct - no microphone). It means then ...(indistinct - no microphone) who had ultimate authority were to make application for amnesty for whatever offence, he would be debarred from making the application because he would not have been able to get authority from elsewhere.

MR BERGER: No, he got his authority from somewhere.

CHAIRPERSON: ...(indistinct - no microphone) State President. He's the ultimate decision maker. If he had authorised it - if the State President of the time had authorised this escapade and was an applicant in this matter, by your argument he would be disempowered from obtaining amnesty because he would not be in a practical position to obtain permission elsewhere because he's the ultimate authority.

MR BERGER: No, Chairperson ...(intervention)

CHAIRPERSON: Are you arguing that he would be excluded by virtue of this Section?

MR BERGER: No, Chairperson, because he would be the Commander in Chief of the armed forces, he would be the armed forces personified. Now if we go further down the ladder ...(intervention)

CHAIRPERSON: ...(indistinct - no microphone) with him? If you are saying that every applicant in the employ of the State, in order to obtain amnesty, must necessarily have committed an act as a result of omission or an order or some authority, failing which he can't be granted amnesty, then you are then saying that a person in the position of the State President of the time, who may be an applicant, is precluded from obtaining amnesty because he would not have got authority from any person.

MR BERGER: No, Chairperson, the Section says that a person who is entitled to apply for amnesty is one who was an employee of the State and who acted in the course and scope of his or her duties and within the scope of his or her express or implied authority. So now if there was no authority, then an applicant for amnesty cannot qualify under paragraph 20(2)(b). If one looks at the application form for amnesty, the application form says

"On whose behalf did you conduct the operation and who gave you authority."

That's paragraph 11(a) and 11(b).

"Any person who associated himself with any act committed for the purposes referred to in paragraph (a), (b), (c), (d) and (f)."

Well that would probably cover the State President.

JUDGE KHAMPEPE: Your argument would be it wouldn't cover him because he falls under the category of employee of the State, wouldn't that be your argument?

MR BERGER: He falls under (b).

JUDGE KHAMPEPE: But what is the point that you are trying to make, Mr Berger, what is it that you are trying to get from Mr van der Merwe?

MR BERGER: I'm putting to Mr van der Merwe that if he acted on his own, as he claims to have acted, then he lacked the authority to give the order.

ADV BOSMAN: But hasn't he claimed to have had implied authority?

JUDGE KHAMPEPE: Yes. Hasn't that been covered quite extensively by your cross-examination with regard to what he has already alleged to have been an implied authority on his part?

MR BERGER: It has been covered, but I'm putting it so that I can argue it.

JUDGE KHAMPEPE: But don't you think you've already covered it appropriately?

MR BERGER: As you please, Chairperson.

CHAIRPERSON: Are you going to argue at the end of the day even if he honestly believed he had implied authority, that that doesn't matter, he didn't have authority?

MR BERGER: His honest belief - my learned friend, Mr Visser, kept saying "Look at (f), look at (f)", his honest belief is irrelevant, it's whether his belief is reasonable.

JUDGE KHAMPEPE: I think Mr Visser is quite aware of that, he can anticipate your argument.

CHAIRPERSON: ...(inaudible - no microphone) that the witness is equipped to give a proper answer to that question? You've virtually asked him whether he's entitled to amnesty. I think it's the Panel that's entitled to make that decision, that's competent to answer that question, isn't it?

MR BERGER: Chairperson, I'm not asking Mr van der Merwe whether he thinks he's entitled, he clearly does think he's entitled, I'm putting to Mr van der Merwe the basis upon which I'm going to argue that he's not entitle to amnesty. I've always understood that it was my duty to put it to a witness, but ...

CHAIRPERSON: No, I understand your sentiments, I'm just concerned as to whether he's competent to answer that question.

MR BERGER: Well he needn't answer the question.

Mr van der Merwe, is it correct that despite the fact that after you had discovered that not only your targets but that other unintended targets had been killed, you still were of the view that the members responsible should be awarded medals for bravery?

GEN VAN DER MERWE: That is correct, Chairperson, it didn't change anything to the danger that they had been exposed to.

CHAIRPERSON: ...(indistinct) explain to me the rational behind that, where people, paid soldiers would do that for a living, embark on unlawful activities and they are rewarded.

GEN VAN DER MERWE: Chairperson, you must remember that these members have their entire futures at stake, they ...(intervention)

CHAIRPERSON: There are also many robbers who do so.

GEN VAN DER MERWE: Yes, they do it for personal gain, these men knew that there was no benefit for them in this action. In fact to tell the truth, if it wasn't for the fact that they were observing their tasks and the former government, they wouldn't have done it because they crossed the border to act there to protect the inhabitants of the country against a certain risk and they also ran the risk of being captured or encountering the Defence Force of Lesotho, ending up in jail there as happened in many other cases of Special Forces, some of these people are still in jail, and that they might spend the rest of their lives in captivity as a result of this. So these persons were prepared to weather all those risks under any conditions. You must remember that they didn't receive any extra remuneration or anything else, the only recognition they received was the medals and they didn't do it for any other reason than the fact that they regarded it as their task and that they were trying to protect the inhabitants of this country. Whether it can be seen as right or wrong today is immaterial, at that point it was the approach.

CHAIRPERSON: Are you sure that it was in the best interests of the inhabitants of this country?

GEN VAN DER MERWE: Chairperson, to protect people against a group who were entering the country with the objective of sowing murder and mayhem would definitely have been the objective.

CHAIRPERSON: I do not want to squabble over this, but you must take into consideration the circumstances of the time.

GEN VAN DER MERWE: But I am speaking from my own perspective as well, Chairperson. You must bear this in mind.

MR BERGER: Thank you, Chairperson.

Mr van der Merwe, did you prepare your statement, Exhibit A, in consultation or at the same time as Mr Schoon prepared his statement?

GEN VAN DER MERWE: Correct, Chairperson.

MR BERGER: And that would account for the dovetailing between the two statements?

GEN VAN DER MERWE: Yes, that is correct.

MR BERGER: Thank you, I have no further questions.

NO FURTHER QUESTIONS BY MR BERGER

CROSS-EXAMINATION BY MS PATEL: I'll be very brief, thank you, Honourable Chairperson.

Just perhaps in the eventuality that this does become important at a later stage, you've stated to us that you didn't report to Gen Coetzee prior to the incident because he was away on holiday, that's correct?

GEN VAN DER MERWE: Yes, that is correct.

MS PATEL: Can you deny though that he would have been in Pretoria on the 2nd of December 1985?

GEN VAN DER MERWE: No, Chairperson, because it was not a matter of importance, this took place subsequently.

MS PATEL: Alright. And then finally, did I hear you now in response to Mr Berger's - or is the Honourable Chairperson's question, that the operatives had operated strictly within the course and scope of their duties and that they hadn't received extra remuneration for these operations that they were involved in?

GEN VAN DER MERWE: No, Chairperson, as they experienced it or understood it. I said that if they didn't have everything ready for the execution of their task, in other words if with regard to the task, as they understood it, they were not prepared to sacrifice everything, they wouldn't have done it.

MS PATEL: Alright. You're not denying that they would have received, not necessarily in relation to this operation, but in relation to other work that they would have done, and I refer here especially to Vlakplaas operatives, that they received bonuses in respect of their duties carried out there generally?

GEN VAN DER MERWE: No, Chairperson, not for such an operation.

MS PATEL: Thank you, Honourable Chairperson.

NO FURTHER QUESTIONS BY MS PATEL

RE-EXAMINATION BY MR VISSER: Thank you, Chairperson, I'll try to be brief.

It has once again been put to you and upon various occasions, that the only reason why you did not previously consult with Gen Coetzee was because he was not available. In your evidence you repeatedly added a further aspect and this was about the approval for covert actions. Now the question is simple, could Gen Coetzee or the Minister have approved this order of yours from within a legal perspective?

GEN VAN DER MERWE: No, and I have re-emphasised it repeatedly. With regard to implied authority I was the one in the best position to exercise judgement, no-one else had the legal capacity to do so.

MR VISSER: In other words, if you discussed it with Gen Coetzee and he said yes, very well, go ahead, would that have carried any legal power in Court for example?

GEN VAN DER MERWE: No.

MR VISSER: When did it become clear to you that you would have to act against Swaziland?

GEN VAN DER MERWE: Do you mean Lesotho?

MR VISSER: I beg your pardon, it's Lesotho.

GEN VAN DER MERWE: Chairperson, as I have already stated, it was after the first week in December when we received the information that there were persons in possession of AK47s and handgrenades, who were on the verge of entering the country.

MR VISSER: If I may then return to the orders which you gave to Brig Schoon. Would that order have led to you saying "Brigadier, tell your people that they had to go and eliminate A, B, C and D", or would the order have been any different?

GEN VAN DER MERWE: No, Chairperson, I would have given Brig Schoon a list of the targets because we possessed such a list, but the order would have been "Act against those targets". And I placed the qualification for them not to kill persons in the process who were not involved in the violence in the first place.

MR VISSER: That is precisely the point then, what would have happened if they had entered the house of the operatives and found Chris Hani there, for example?

GEN VAN DER MERWE: Well quite obviously they would have acted against him, Chairperson. I said that the exception was anyone who was not directly involved in the violence. They would have acted against any MK member that they encountered because we were involved against a war against the MK.

MR VISSER: What about people who collaborated with MK, would they also have been part of the target?

GEN VAN DER MERWE: The question once again arises, was this person involved in the violence. And furthermore, I've also stated clearly that if one is in such a situation there isn't really much opportunity surrounding that to hesitate, one would have to act swiftly because one's own life would be in jeopardy and there are many other intervening factors. They would not necessarily have acted against such persons but perhaps such persons may have been killed in the cross-fire.

MR VISSER: And then naturally you provided them with a list of names but before you could identify that list of names in terms of the persons, you would have to identify them.

MR BERGER: Chairperson, if my learned friend could rather ask the question than suggest the answer to the witness, it would help. Because the answer to that question is a simple yes.

MR VISSER: Would the operatives have known exactly how everyone of these persons looked?

GEN VAN DER MERWE: Chairperson, they would necessarily have attempted to make such arrangements, so that the person who fell into that category would in one or other manner be identified by them, but they would not necessarily have known how every single person looked. Even if they had known before the time, I don't think that during an action one would have been able to make such a clear distinction.

MR VISSER: That is another matter, the proposition put to you by the Chairperson, the even of a house full of children.

GEN VAN DER MERWE: Yes, that is correct.

MR VISSER: You were asked, with the exception of the current case, in which other cross-border operations you had extended authority or authorisation for the action. Can you recall this?

GEN VAN DER MERWE: Yes.

MR VISSER: And you were also asked for the dates thereof.

GEN VAN DER MERWE: That is correct, Chairperson.

MR VISSER: Chairperson, I have consulted the records and I present it to you. Gen van der Merwe, there was another case which took place in Swaziland which you referred to.

GEN VAN DER MERWE: That is correct.

MR VISSER: Do you now know the date thereof?

GEN VAN DER MERWE: Yes, that is correct, it was the 13th to the 14th of December 1986.

CHAIRPERSON: Where did you find this?

MR VISSER: I traced it, Chairperson, from the records which we have of the amnesty applications.

CHAIRPERSON: Mr Visser, did you tell him that?

MR VISSER: Pardon?

CHAIRPERSON: Did you tell him that ...(indistinct - no microphone)

MR VISSER: Yes, I've told him, Chairperson, that these - I've reminded him that these are applications for which he's applied for amnesty. This is before the Amnesty Committee, so it's just a question of record, Chairperson. I may as well read it to you, in fact let me do that. It concerned the attempted murder of Glory Sedibe, MK September. It was before your Committee Member, Justice Khampepe, it was heard by her. That was from on the 13th to the 14th of December 1986.

And then there was another one, Chairperson, which concerned - and I think Judge Khampepe was involved in that as well, concerning a kombi in which a bomb was placed, the McKenzie case, but in that case Gen Coetzee - that was a Special Ops operation by the South Defence Force, and the authority that Mr van der Merwe gave was, to his members of the Security Force, to assist in intelligence and information. But apart from those two, those are the other two. For whatever reason that question was asked, I did undertake to get that information and that is the information, Chairperson.

CHAIRPERSON: Mr Visser, is your communication with the witness while he was under cross-examination?

MR VISSER: I'm not certain what you're referring to, Chairperson.

CHAIRPERSON: ...(indistinct - no microphone) until a few minutes ago, and the question arose during cross-examination. Now you yourself tell me that you communicated that information to him, whether it was done with all the noble intentions or not is another matter, it concerns me that liberties such as that are taken to communicate with a witness who is still under oath and under cross-examination. ...(indistinct) influence the decision now, the fact of the matter is that it does give a reason or grounds for concern.

MR VISSER: Chairperson, you will recall, at the time when this question was asked there was a general discussion going on here between my attorney and myself, the witness was turning around and asking for - it's a question of what is on record, Chairperson. It's not a question of informing the witness what you believe he should answer to a question or anything like that, it's a question of record.

CHAIRPERSON: Mr Visser, I don't want to argue about it, I used the words deliberately, communication. Whether you gave him the information or not, I'm not questioning.

MR VISSER: I hear what you say, Chairperson.

Now much has been speculated regarding the evidence here under cross-examination on what would have happened if the CIC had for example said that you shouldn't take action, General van der Merwe. Your evidence is as far as you can recall, that you did indeed give the order.

GEN VAN DER MERWE: Yes, that is correct.

MR VISSER: Do you have any recollection that there were any objections to the action?

GEN VAN DER MERWE: No, not before or after the time, at no point.

MR VISSER: Now with regard to the question of innocent persons, the arrangements as it appears from the affidavit of Col de Kock and Mr McCaskell, were that Mr McCaskell was sent to his home to be certain that there were no non-ANC persons present there and indeed with regard to children, we also know from the evidence that the operatives did not incur any damage to the daughter Phoenix, is that correct?

GEN VAN DER MERWE: Yes, that is correct.

MR VISSER: Would that be in accordance with your spirit and intention in that they should attempt to prevent the injury or death of innocent persons?

GEN VAN DER MERWE: That is correct.

MR VISSER: Thank you, Mr Chairman, I have no further questions.

NO FURTHER QUESTIONS BY MR VISSER

ADV BOSMAN: No questions, thank you, Chairperson.

JUDGE KHAMPEPE: I have only one question for you, Mr van der Merwe. This has been covered to some extent but there is still a mystery in my mind as to the authority or the lack thereof that the CIC possessed. It is your evidence that they didn't have the necessary authority to authorise any cross-border raid on Lesotho. Now what I want to know is, for what purpose then did it repeatedly discuss the presence of the ANC soldiers in Lesotho, if they did not intend to take any further action about such a situation?

GEN VAN DER MERWE: I beg your pardon, Chairperson, could you please repeat. Who would have discussed it, CIC?

JUDGE KHAMPEPE: Yes.

GEN VAN DER MERWE: CIC was purely an advisory body, in other words the most that the CIC could have done was to make a recommendation, whether it be via a certain department or in terms of the SSC, to convey it to another department in as far as it had to do with an action. CIC had no other capacity.

JUDGE KHAMPEPE: Now if Mr - I take it that Mr van Vuuren's report was discussed at the next meeting of the CIC.

GEN VAN DER MERWE: No, he would have discussed it at the SSC meeting of the 20th of December.

JUDGE KHAMPEPE: You recall that the CIC commissioned Mr van Vuuren to prepare a report?

GEN VAN DER MERWE: That is correct, Chairperson.

JUDGE KHAMPEPE: And to have it ready before the 16th of December.

GEN VAN DER MERWE: Correct, Chairperson.

JUDGE KHAMPEPE: Now that report would have been discussed where, at the SSC or at the CIC meeting?

GEN VAN DER MERWE: No, Chairperson, it would necessarily have been discussed at the SSC meeting of the 20th. As I have already stated it is possible that there may have been an exchange of ideas in the meantime among members of the CIC regarding the matter, and that is the aspect that I cannot recall and I have repeatedly stated that I do not know anything about it at this stage, but it would necessarily have been discussed at the 20th December meeting of the SSC.

JUDGE KHAMPEPE: Oh, thanks for clearing that. I thought the report was meant to be discussed at the next scheduled meeting of the CIC.

GEN VAN DER MERWE: Well Chairperson, to be honest, I would also have expected that the CIC or at least members of the CIC, would have discussed the report before it was tabled at the SSC meeting, but I cannot say whether or not this actually took place. That is why I maintain that it is still my viewpoint that before the SSC meeting of the 20th, there must have been consultation regarding the report, but I cannot recall it.

JUDGE KHAMPEPE: Thank you.

CHAIRPERSON: Mr van der Merwe, is there something medically wrong with your memory?

GEN VAN DER MERWE: No, Chairperson.

CHAIRPERSON: You see why I ask that question, this event, this incident was your first escapade of that nature.

GEN VAN DER MERWE: Correct.

CHAIRPERSON: And it has been said that in most cases people always remember for a long time anything that happened to them for the first time - I'm talking about scoring tries, Mr Wagener, or scoring hundreds or whatever - yet you tell us that you cannot remember very pertinent issues relating to decision making of this very important event in your career. That is why I ask you have you got any memory problems.

GEN VAN DER MERWE: No, Chairperson, but may I please explain it as such, although as you have put it that persons would expect this event to stand out quite clearly, you must recall that I spent a period of 20 years with the Security Branch and during that period of time one would have to do with violence and killing in its most gruesome forms on a daily basis. One would be narrowly involved in investigations, colleagues would pass away and in the process one's memory would fade. I can also assure you that it is not only I, but if you were to return and consult with some of my former colleagues, it is so that due to the numerous traumatic experiences that one was exposed to, it definitely had an effect on one's memory and this could be one of the most important reasons why this incident faded so rapidly. You must remember that at head office I operated from within an armchair position, I wasn't personally involved in ground level.

There was never kind of controversy connected to this. I myself was never confronted in any other way. And if one weighs this up against all the other incident in which one was involved, which led to very tense and stressful situations, one can understand that I am not trying to disguise any of the particulars. When this matter came to a head, this incident was very vague to me and this can be confirmed by others.

CHAIRPERSON: Now tell me, if these targets were in, let's say America, who would be nearby, and bearing in mind America's military might, would South Africa dare to do what it did? - in this instance.

GEN VAN DER MERWE: I beg your pardon, please repeat Chairperson.

CHAIRPERSON: If Lesotho had the might, the military might of, let's say America, would you still have proceeded with this escape?

GEN VAN DER MERWE: No, definitely not because the threat would have been too great.

CHAIRPERSON: In other words, South Africa had a bullying attitude towards Lesotho. They were really bullies because they knew Lesotho couldn't retaliate properly.

GEN VAN DER MERWE: Well Chairperson, in this case it wasn't my consideration.

CHAIRPERSON: No, I'll tell you why I'm asking you that questions, it relates to your line of authority, and I'm asking you and I would like you to answer the question, thinking now, ought you not to have obtained authority to do what you did?

GEN VAN DER MERWE: No, Chairperson, I'm still of the opinion that under the specific circumstances I was in the best position to evaluate as I did.

CHAIRPERSON: If you had sought permission or advice from your seniors, how would you have felt about a refusal and you being told not to proceed? Would you have agreed with it?

GEN VAN DER MERWE: Chairperson, it would of course have depended upon the nature of the objection, on what grounds that objection was launched, because you ...(intervention)

CHAIRPERSON: It doesn't matter. The Minister says no, you can't continue, how would you have felt about that?

GEN VAN DER MERWE: Well it would still have depended upon what the task and the duty at hand was, but if the Minister had refused, then it was reasonably obvious that it wouldn't continue.

CHAIRPERSON: Yes, I know, but how would you have felt about it? I know that you have to be obedient, but how would you have felt personally?

GEN VAN DER MERWE: I would have felt that in the light of the threat at hand, it would have been quite a ridiculous viewpoint.

CHAIRPERSON: Wouldn't you have agreed even though you would have been obedient?

GEN VAN DER MERWE: Yes, that is correct.

CHAIRPERSON: Now it would appear to me as if you testified that the sources who provided the information to you pertaining to these targets were credible.

GEN VAN DER MERWE: Yes, correct.

CHAIRPERSON: And you relied upon that?

GEN VAN DER MERWE: Yes, that is correct.

CHAIRPERSON: Am I correct when I say that it was possible that they were in a position to say where and when they would enter South Africa?

GEN VAN DER MERWE: No, that is the one aspect that I've also dealt with in my evidence, this is what the source could not tell us because he was afraid to fish too deeply because it could create suspicion. I did not have that information.

CHAIRPERSON: And where they would have entered?

GEN VAN DER MERWE: No, not that either. There were too many points of entry available to them, I was not familiar with that.

CHAIRPERSON: What prevented you from monitoring these persons for the following few days and to observe what they were up to and to follow them until they were in South Africa and then take action against them.

GEN VAN DER MERWE: In the past we had tried this numerous times, it simply wasn't practically viable. Firstly, one could not place a surveillance team in Lesotho, there wasn't even such a possibility. To surveil persons an a full-time basis involved such a complicated process and one would require such a large surveillance team for that, that in practical terms it would simply not have been viable in Lesotho. So that could never have been carried out in practice.

CHAIRPERSON: One final question. I didn't understand your answer very well under cross-examination, I think that you were asked whether you spoke to Mr Schoon during the preparation for this matter.

GEN VAN DER MERWE: Yes, that is correct.

CHAIRPERSON: Anybody else with the exception of your attorney and your advocate?

GEN VAN DER MERWE: I beg your pardon?

CHAIRPERSON: Was there anybody else with the exception of your attorney and your advocate?

GEN VAN DER MERWE: Whom I consulted with?

CHAIRPERSON: Yes, or spoke to regarding this case.

GEN VAN DER MERWE: I also spoke to members of the Security Branch at Ladybrand.

CHAIRPERSON: In preparation?

GEN VAN DER MERWE: Yes, in preparation.

CHAIRPERSON: Did you discuss with each other what you were going to place in your applications?

GEN VAN DER MERWE: No, it was about the fact that one's memory was vague and that one wanted to attempt to determine the facts correctly, so that one could present as true a picture as possible.

CHAIRPERSON: And this application of yours, is this the summary that you surmised and that you recalled and that Schoon told you and that you also determined from Ladybrand?

GEN VAN DER MERWE: Yes, and also from other sources. It is the result of that.

CHAIRPERSON: I see. I see that you have applied, or at least completed your application in December 1996.

GEN VAN DER MERWE: Yes, that is correct.

CHAIRPERSON: Is there any reason why it was not done earlier?

GEN VAN DER MERWE: It was precisely because this incident had been forgotten. I think that we had submitted earlier applications, but the reason is that there were certain of the incidents that we forgot about. That was just the course of circumstances, there was a certain process that preceded matters before we launched our applications and that delayed matters.

CHAIRPERSON: You see, with one of my other hearings - and I just want to ask you this and you do not have to answer this question if you do not wish to, it has been testified before me during another matter, that you were one of the security policemen who held a meeting in '95, approximately, during which it was decided not to apply.

GEN VAN DER MERWE: No, Chairperson, it is the opposite. I arranged a special meeting with the permission of the Commissioner at the police college, during which I told my members with regard to these cases and the South African Police, it would be foolish and that the only way that I can assist them is by means of the amnesty process and if they did not participate in the amnesty process they would run the risk of exposing themselves to prosecution and then I would not be able to assist them.

CHAIRPERSON: Thank you, you have been excused.

WITNESS EXCUSED

CHAIRPERSON: Mr Visser, is Mr Schoon going to be able to ...(indistinct - no microphone)

MR VISSER: Mr Chairperson, he's present, he's available to take the stand and he has no objection to taking the oath. He prefers to speak in Afrikaans.