MR VISSER: Good morning, Chairperson. Thank you.
ROELF F BOTHA: (s.u.o.)
CROSS-EXAMINATION BY MR VISSER: (Cont)
Yesterday afternoon when we adjourned, the Chairperson had just asked what indeed appeared before the SSC meeting of the 20th of December, and his question pertained to the question of whether or not the imminent threat over the festive season was presented to the SSC meeting of that day. Do you recall that that is the point that we reached? I would like to attempt to answer the question in the light of certain evidence that we have before us and I would like to give you the opportunity to comment as we proceed, because possibly you could introduce a different perspective or a perspective to this evidence. May I begin by asking you whether it would be fair to accept that during SSC meetings usually, if not always, a security review was given by the branch National Interpretation, so that you would know what the situation pertaining to security within the country would be? Would it be fair to say that?
MR BOTHA: Yes.
MR VISSER: We find an example of that in bundle 3, page 67 - and you will have to excuse us, Mr Botha, but we have very little documentary evidence regarding the SSC, but what we do have is an SSC Minute from the 21st of October, and on page 67 under Agenda Item 1, you find Intelligence Presentation and Agenda Item 4, the Internal Security Situation, and it appears as if the style of the SSC or the person who wrote the minutes, was to state under A
"Maj-Gen van Vuuren of the Secretariat, addresses the meeting regarding the actual aspects of the threat against the RSA, as on a certain date."
... here it is the 18th of October 1985, and then in the following paragraph it states -
"This presentation was summarised in a Situation Report ..."
... with the number 123/85, and the date was 21 October 1985. Would that be correct? That would then be the date of this particular meeting.
MR BOTHA: Yes, there's no reason to dispute that.
MR VISSER: You see, during the meeting of the 20th of December - we received a bundle which was marked Exhibit B, now the pages thereof have not been paginated unfortunately and certain marks have been put in. I don't know if you have this bundle before you.
MR BOTHA: No, I have documents, they could be the same. If you could just assist me in that regard.
MR VISSER: Well I am referring to a more complete minute of the SSC meeting, it is basically the second document which appears in this exhibit.
MR BOTHA: I have the minutes before me.
MR VISSER: And I would like to refer you to the third page, Item 6. And there we once again have exactly the same as what we saw with the other SSC meeting, namely that there is an intelligence presentation and that presentation was conducted by Maj-Gen van Vuuren of the Secretariat once again. And then, the paragraph below Item 6 continues and he states that
"The intelligence presentation was summarised in a Situation Report ..."
Just as with the previous meeting but by the way, it would appear to me as if there is an incorrect reference here because they refer to Situation Report number 148/85, dated the 23rd of December 1985, and that would have been impossible, wouldn't you agree, because the meeting took place on the 20th? It must be a typing error.
MR BOTHA: Would you just give me a moment. Where exactly is this?
MR VISSER: What are you referring to?
MR BOTHA: The Situation Report which was completed before the time was number 83/85.
MR VISSER: That's correct.
MR BOTHA: And this one that you are referring to is 145. No, that must be an error. Or perhaps I could explain. These minutes, these particular minutes are of a meeting held on the 20th of December. They were not completed on the 20th of December however, and it was during the holidays, and I doubt that this minute would have been prepared before the 23rd or before the end of the year because the staff were on holiday, many of them were away.
CHAIRPERSON: Mr Botha, this minute appears to me to have been confirmed on the 24th of December - on the very last page, it was approved by the Chairperson. It's on the last page of that particular document.
MR BOTHA: Of the minute?
CHAIRPERSON: Yes, I think so.
MR BOTHA: Yes, then it must be correct.
CHAIRPERSON: But I ask, your answer indicates that this report could be correct possibly, that the Situation Report, number 149 or 8, I'm not sure, of '85, dated the 23rd of December 1985, could possibly be correct, but was it the custom to include aspects in a report which were not discussed, to which the minute refers?
MR BOTHA: No, unless this Maj-Gen van Vuuren - you see there it says under 6 - if I could just explain
"Maj-Gen van Vuuren of the Secretariat gives an address regarding the actual aspects of the threat against the RSA, including the Congress of South African Trade Unions, the UDF, the Northern Transvaal situation ..."
...(intervention)
CHAIRPERSON: Mr Botha, can I just save some time, I think that Mr Visser just wanted some information whether or not that date is correct or incorrect, and if it is correct, how it was corrected. Because I think he wants to put something else to you after he has obtained confirmation.
MR BOTHA: I can only tell you that it could possibly be correct, because the report was compiled on the 24th only. And if you would indulge me for a moment, if we could get the report before us we would be able to see according to the summary in 6, of what Mr van Vuuren said. If this indeed appears within the report, then it would correlate.
CHAIRPERSON: Then I ask you, if this minute was typed as a correct version of what was discussed during a meeting of the 20th, and if it is confirmed as such by the Chairperson - I don't know who the Chairperson was that day, but I see that you were the Chairperson on the 20th ...(intervention)
MR BOTHA: Chairperson, the State President was the Chairperson.
CHAIRPERSON: Yes, I apologise. You see that there were too many Bothas in government at that stage.
MR BOTHA: Yes, that would be the problem.
CHAIRPERSON: Was it a custom, or could it have occurred that the minutes or something, or an aspect of something which was already discussed on the 20th, could have been included which wasn't actually discussed during that meeting? Was that a possibility? Did it ever happen?
MR BOTHA: No, that intelligence submission to which is referred under Item 6, by Gen van Vuuren, that document could have been dated the 23rd of December. But one would have to determine that.
CHAIRPERSON: So you cannot say whether or not that date is incorrect or correct, or what the actual situation is?
MR BOTHA: No.
CHAIRPERSON: Well there you have your answer, Mr Visser, he cannot tell you.
MR VISSER: Thank you, Chairperson.
You see, the problem that we have is that we do not have any copy of a SITREP 148 or 5 or 9 of '85, dated the 23rd of December 1985. What we have is 83/85 which is dated the 17th of December of '85. You see it is still about the question of what was presented to the SSC on that day. I would recall that while I have been examining you, in your evidence when Mr Burger examined you, you expressed your doubts as to whether the SITREP 83/85 was indeed submitted to the SSC on the 20th of December, did I understand you correctly to say that?
MR BOTHA: Yes, I said that. You see Chairperson, if I could just touch upon another aspect, this document which I have marked as D, which I received from Ms Patel, it states
"Special Situation Report 83/85"
... and now all-of-a-sudden we have 148. I cannot tell you what the problem is but I can only imagine that between the 17th of December and a few days later, the difference between 83 and 185 must have come in. That is difference of 90, and that cannot be true. There is something wrong here, but I don't have any access to the documents and I cannot assist you in this regard.
MR VISSER: And I think that neither you nor I would be able to take it any further than this. Now just to see what was before the SSC on the December, we might have to begin once again with the CIC meeting, which is on page 73, paragraph 3.2, because during that CIC meeting Dr van Heerden made a report to the meeting on the 3rd of December and he refers to the 30 ANC persons who entered, which would put the number in Lesotho at 80 at that stage, and he refers specifically to the request by the South African Police that the Lesotho Government should be informed by Foreign Affairs about this on an urgent basis and that they should be warned that if they do not take any action with regard to these persons, the RSA would deal with the situation according to its judgement. You recall that portion?
MR BOTHA: Yes, Chairperson. Just for the sake of Mr van Heerden, I would like to say that this is the information that he obtained, this is the information that the police gave him. He was simply reporting to the meeting that this was what he received from the police.
MR VISSER: I'm sorry if I created the wrong impression. The evidence of Gen van der Merwe is very clear that this evidence could only have come from the Security Branch within the police. MNR BOTHA: "Ja, maar hy sê dit ook, Mnr van Heerden, hy meld dit volgens inligting wat op daai datum ontvang is".
MR VISSER: Yes, and that is why he says that the South African Police requested that these notes be sent through.
MR BOTHA: Correct.
MR BERGER: Chairperson, I'm sorry to interrupt my learned friend, but just for the record, there is a Situation Report referred to at page 67 of bundle 3, which has been referred to already, in an earlier meeting of the State Security Council, dated the 21st of October 1985. And that is Situation Report Number 123 of '85. So it appears as though the Situation Reports don't seem to follow a chronological order.
MR VISSER: Well Chairperson, for purposes of my question I prefer to agree with Mr Botha, that something is wrong here but what it is I don't think we're going to be able to discover, but it doesn't take the matter much further. But thank you to my learned friend.
I was busy telling you that the request came from the police, but the request was that it be said that the RSA would act according to its best judgement.
MR BOTHA: Yes.
MR VISSER: I would like to put it to you that this is significant because it joins up with your evidence that the police themselves could not act lawfully in Lesotho and that is why the request would never have been to say "If you don't act against these people, the police will act against them". Do you agree that the choice of words that Dr van Heerden employed here makes sense?
MR BOTHA: Yes. He wasn't a doctor.
MR VISSER: Oh, I'm sorry, I thought that you referred to him as Dr van Heerden.
MR BOTHA: No, no, I didn't.
MR VISSER: Mr Neil van Heerden.
MNR BOTHA: "Net terwille van die rekords dink ek moet ons maar bly by ...(tussenbeide)"
MR VISSER: Well perhaps he might still achieve his doctorate. Whatever the case may be, Mr van Heerden then. What happens now is the following: Until the 13th of December the following took place, and for that we have to look at page 80 and that would be the SITREP of the 17th of December. That's in Volume 3, page 80. And there at the top of the page it says
"A usually reliable source ..."
... that's at the very top of the page, page 80. If you wish - I can see that you are at the beginning of this document, perhaps we should start there -
"After what has been reported on an unconfirmed basis, the ANC has planned to launch armed actions against targets in the RSA from Lesotho during December 1985 and particularly over the festive season."
Now you have said that the idea that this SITREP was not presented to the SSC, has to do with the fact that it was an unconfirmed report. You will recall that you stated that. And then I want you to page further to Item 2D - that is also on page 80 at the very top, and there it says -
"A usually reliable source saw during the first week of December 1985, an unknown number of AK47 guns and unidentified round metal objects, probably landmines, in the possession of a known ANC terrorist in Lesotho. The terrorist stated that he and three other cohorts would go to Bloemfontein and Kimberley before Xmas 1985, to go and work there."
Now this is of importance. Firstly, that this is the first information that we know of that refers to the festive season, but what is of greater significance, Mr Botha, is that at that stage the report refers only to AK47 guns and unidentified round metal objects, presumably landmines. Now to view this chronologically, you send your note to the Lesotho Government on the 13th of December and this was four days before this report in terms of its date, the 17th of December, was published and I wish to submit to you that the only possible place where the information which appears in your note could have come from, would have been once again from the Security Branch. That has to be necessarily the case, would you agree with that?
MR BOTHA: No, from the police.
MR VISSER: Well it was the Security Branch that dealt with security.
MR BOTHA: I thought you said Security Council.
MR VISSER: No, the Security Branch of the police.
MR BOTHA: Yes.
MR VISSER: Very well.
MR BOTHA: May I just say the following for the sake of clarification. In December, if one looks at all the events which I have referred to in my affidavit, one can see that we didn't only deal with Lesotho ...(intervention)
MR VISSER: Yes, I accept that.
MR BOTHA: ... we had a tremendous problem with Zimbabwe, we almost had a lot of trouble with them and my Director-General received information from the police and van Heerden is asked "When are you sending this to Lesotho?" But in the meantime we have many other things to do and then van Heerden says "Don't you think we should amend that last sentence so that it can be read as "We are sending you this information, let us meet and have talks about it". That is how it would have taken place in practise.
MR VISSER: No, I have no problem with that, I'm sure that in December you must have been completely swamped with work, but I would like to focus on Lesotho because that is all that this application is about. The important following step would be this - or let me just repeat, before the report of the 17th of December, the SITREP, before that came to light, on the 13th of December by means of Exhibit E which you have given us, a telex was sent to the Lesotho Government and in there we find the very same information which appears in the SITREP, to a greater extent.
MR BOTHA: Yes, I think that it confirms the basic information that most probably was known to the police from the 3rd of December onwards.
MR VISSER: Yes, I'm just trying to tell you what precisely was known at what stage. We know what was known on the 3rd of December, we also know that subsequently further information came to light that there was a group of four persons and three cohorts who were going to go to Bloemfontein and Kimberley and mention is made of AK47 guns and unidentified round metal objects.
MR BERGER: Chairperson, with respect, we don't know that, that's the evidence that has been tendered by Mr van der Merwe. We don't know that as a fact, that there was further information.
MR VISSER: Mr Chairman, I don't understand. Is this an objection, because then I'd like to hear what the objection is.
MR BERGER: Yes, the objection is that it's being put to Mr Botha as a fact, that "We know that further information came through", but the substance of my objection is that that is according to the evidence of Mr van der Merwe.
CHAIRPERSON: Mr Botha, it is Mr Visser's instructions that this is the case, do you have any comment on that?
MR BOTHA: May I ask that he just repeat exactly what is statement.
CHAIRPERSON: Please repeat it, Mr Visser.
MR VISSER: Yes, I will. I put it to you that according to the evidence as I have indicated to you right now on the documents, certain information was available during the CIC meeting of the 3rd of December and there was further information which was made available, which according to page 80 in bundle 3 was made available during the first week of December, it states that expressively
"A usually reliable source during the first week of December 1985 ..."
In other words, either during that week or subsequently this information was made available. Now I'm not really certain what the problem is, but if I may continue. It is also clear Mr Botha - and if my learned friend wishes me to say so I will put it as such according to my instructions, that subsequently further information was made available.
MR BOTHA: When?
MR VISSER: After the 13th when you sent your note. After the 13th when you sent your note.
MR BOTHA: But you have just read it yourself
"... during the first week of December"
MR VISSER: Yes.
MR BOTHA: I haven't had the opportunity to study these documents once again, I can only speak from my recollection and that is that after the CIC meeting there was a request from the police saying "You'd better warn the Lesotho Government, we have a lot of information, we're expecting trouble over Xmas".
MR VISSER: Very well.
MR BOTHA: Now what the particular details were, whether it was 70 terrorists or 80 terrorists, whether there were 50 handgrenades or 30, to us in Foreign Affairs, the objective was to send this to Lesotho in the hope that the Lesotho Government would then, if it was true that the terrorists were going to do this, would be warned earlier on, who would warn then and say "Listen the South African Government knows what you're up to, you'd better be careful".
CHAIRPERSON: May I assist you, Mr Botha. After he request to Foreign Affairs to send this letter or telex to Lesotho, let us say that that request was based upon certain information, what is being put to you is, after the request was made to your department to send that note, the Security Police and a committee or two also obtained further information pertaining to what took place in Lesotho regarding the attack which was to take place over Xmas. Can you say whether or not this is the case?
MR BOTHA: I cannot say. I cannot say, it may be so.
MR VISSER: That is the one aspect and the other is that I'm still attempting to answer the Honourable Chairperson's question in the light of the evidence before us. I want to put it to you that it was the evidence of Gen van der Merwe that after this story regarding the viewing of the AK47 guns and the unidentified round metal objects, something else happened and this is that the source, McCaskell apparently, saw handgrenades and he removed two handgrenades from stockpiles or safehouses in Lesotho and went to show this as proof of his statements that these persons were on standby to enter the country. This happened quite clearly after what has been put on page 80, because here they refer only to unidentified round metal objects. Now given that background - and I thank you for listening to me so patiently, we now come to the point of what we are to make of this and I want to put it to you that the SITREP 83/85 was intended to be submitted to the SSC as a SITREP by Maj-Gen van Vuuren. Would that be correct or incorrect?
MR BOTHA: It would be correct if those dates were not problematic.
MR VISSER: Yes, we know that there is a problem with the dates.
MR BOTHA: But on a prima facie basis it appears to be correct to me.
MR VISSER: Very well. So in the light of what we already know regarding this problem which was developing in Lesotho regarding the violent threat of people who were already there, it would have been impossible to conceive that branch National Interpretation would not have put this to the SSC on the 20th of December, wouldn't you agree with that?
MR BOTHA: Wouldn't have said what?
MR VISSER: Let me put it in the positive then, with this threat regarding the security of the Republic, it would be logical that van Vuuren would inform the SSC of this on the 20th of December 1985. In other words what he states in his report.
MR BOTHA: We knew about the threat already because the police had been informing us for a month already.
MR VISSER: Mr Botha, I have spent so much time explaining to you how this developed. I am referring to the final development as it appears in SITREP of 17 December, there are people, they have AKs, unidentified metal objects, they are going to infiltrate, they will go to Bloemfontein. This is what the source says. Why wouldn't he have told this to the SSC?
MR BOTHA: I don't know, I am not in the position to say this because I didn't write the minutes, I can only rely upon my recollection of what took place there. And the matter was presented to the Chairperson and the situation was discussed and a target presentation was requested, then we made the decision regarding the steps of what should be done with Lesotho. If the minutes of a meeting do not contradict this, how must I recall something that took place 15 years ago and say but this is what Mr van Vuuren said?
MR VISSER: Mr Botha, it's actually a very simple question. As you sit here today, and you don't need to recall anything, do you say that it would be improbable that van Vuuren would have informed the SSC regarding this imminent threat?
MR BOTHA: No, I didn't say that ...(intervention)
MR BOTHA AND MR VISSER SPEAKING SIMULTANEOUSLY
CHAIRPERSON: ...(indistinct - no microphone)
MR VISSER: I beg your pardon.
Isn't it overwhelmingly probable that this is exactly what he would have told the SSC?
MR BOTHA: It is probable.
MR VISSER: Thank you, that's all I wanted to know.
MR BOTHA: I would just like to make an objection against the attitude of Mr Visser.
MR VISSER: Yes Mr Botha, I don't have an attitude, with all respect.
VOORSITTER: "Mr Visser, Mr Visser, daar's darem ek wat hier nog sit, kan ons deur die Voorsitter gaan".
MR VISSER: Mr Botha, I don't wish to present any particular attitude towards you, I am just trying to get you out of here as quickly as possible. Just by the way, you have already stated this but may I have it confirmed by you once again. This further information regarding the handgrenades, this would also have come from Gen van der Merwe, quite naturally isn't that so? It couldn't have come from anywhere else.
MR BOTHA: Chairperson, I was the Minister of the department, under me I had hundreds of officials who dealt with many departments. I would like to state with respect that it is somewhat unfair to expect that the Minister would know where a police officer had obtained the information.
CHAIRPERSON: Yes. Mr Visser, as I understand the evidence of your client he testified that nobody above him agreed with the planned attack, Mr Botha has given evidence and he has confirmed this as far as he knows, so where are we going with what you are asking, because I don't know.
MR VISSER: Chairperson, yesterday you asked whether the SSC on the 20th of December, knew about the threatened attack over the festive season and all these questions are relevant pertaining to that. I have taken you through the evidence as clearly as possible, so that I can indicate to you that this must have been submitted to the SSC, and Mr Botha has just conceded to that. But previously in his evidence he said that he didn't think that this report had been submitted to the SSC. And I have completed that point, that is the only point that I wanted to make.
Now if we may proceed further, you will recall that this entire argument, Mr Botha, was something which emanated from two possibilities that I put to you. Either the members of the SSC knew about the attack of the previous night in Lesotho, or they didn't know. In the light of what we have dealt with here this morning, if the SSC on the 20th of December, were informed, as we agree they most probably were ...(intervention)
CHAIRPERSON: Mr Visser, I apologise for interrupting you once again. I have just been thinking about yesterday's question which I put, it was about the guidelines, wasn't it?
MR VISSER: That was another question, Chairperson.
CHAIRPERSON: I don't recall the issue that I raised which led to your cross-examination. If I did, then the cross-examination I would agree is in order. I'm trying to place it in the context of my enquiry yesterday.
MR VISSER: I certainly remember - they way I remember it was that that was what you wanted to know. I think your question specifically was "Did the members of the SSC know at the time about the Xmas threat?" Because of the urgency of the issue. Because you will recall that I had just put to the witness that if they had not known of the previous night's attack, then the decision the State Security Council took made no sense. And it was in that light. And then you said to me, but - or you asked the question, Chairperson, "Did they know of this threat?"
CHAIRPERSON: In case there - I remember it now, in case there's any misunderstanding, my reasoning for the question is that this "riglyne" was suggest in the minute from no apparent source, and it continuously has been said here it applied only to the army. Now I wanted to know if these guidelines were a suggestion as a result of an enquiry to the representatives of BS, did this message go through Lesotho. It is in that context that I wanted to know because if the answer was yes, then obviously they knew it was a police enquiry or request and it follows then that most likely the threat of whatever kind it would be, would derive from the police and therefore these guidelines, whether it applied to the army only or not, would have to then be investigated. Do you follow what I'm saying?
MR VISSER: I have a notion of what you're telling me, Chairperson. The best I could do was to select all the evidence that may be relevant for purposes of answering any of the questions which may arise in regard to that decision and to place that through Mr Botha, before you this morning.
CHAIRPERSON: I appreciate that, I'm just putting it clearer, as I thought when I asked the question.
MR BOTHA: In an effort to be helpful, I think just about all the members of cabinet and the government at that time were aware of the potential danger of an attack in Natal, Northern Transvaal, North-Western Transvaal and from Lesotho. That is how I remember it, there was a general - we've had the landmines in the Northern Transvaal, very important, just about on the 16th December, 16th December. So it is correct to say that sure we knew about this danger, whether Mr van Vuuren gave it or not.
MR VISSER: And is it also not fair to accept that the State Security Council would do everything in its power and issue instructions that this urgent threat from Lesotho be opposed?
MR BOTHA: That is exactly what the purpose was of the Statement that Mr PW Botha had issued on the 20th of December. That was its purpose.
MR VISSER: But that Mr Botha, with all respect, did not combat the threat, the threat was that these persons would enter the country. This is common cause now, here a group of people come in with AKs and handgrenades.
MR BOTHA: Yes, Mr Visser, in Northern Transvaal as well ...(intervention)
MR VISSER: But Mr Botha, may we ...(intervention)
MR BOTHA: Well if you ask me a question I do have the right to ...(intervention)
CHAIRPERSON: Mr Botha, will you please wait for the question and let him complete the question and then you answer.
MR VISSER: I beg your pardon, will Mr Botha continue?
CHAIRPERSON: No, I asked you to complete your question before he deals with it.
MR VISSER: What was my question?
Mr Botha, I am glad I was not in parliament because I would not have known what I was doing. Mr Botha, here you are staring an urgent actual fact in the face from Lesotho, if it was discussed at the State Security Council, then can we not expect that the SSC would have done everything in its power in order to combat this threat? The danger was, there was a group of people and they would enter the country within a day or two.
MR BOTHA: Is that your question?
MR VISSER: That's my question.
MR BOTHA: The answer is no.
MR VISSER: So the SSC would have not issued any instruction in order to combat this threat?
MR BOTHA: The SSC would not have, on the ground of unconfirmed allegations, authorised a forceful assault to Lesotho. I stand by that and I invite you to consult your other colleagues.
MR VISSER: Very well then. Let us forget about this attack of the 19th/20th, the police did not go in and they did not act and the State Security Council does nothing further than what you had said now and thereafter it appears that a group of persons had infiltrated the country from Lesotho, that persons had been killed and had been injured and property had been damaged with AK47s and handgrenades, what would you say to that? Here the State Security Council had the information but they did not act.
MR BOTHA: Chairperson, are we dealing with an exercise where I have to deal with suggestions?
CHAIRPERSON: I don't believe so, I think Mr Visser wants to find out what the possibilities were and what the position would have been, that is all.
MR BOTHA: But it did not happen.
MR VISSER: Mr Botha, may I tell you what had indeed happened. What had happened was that the information was entirely correct, the information was correct, there was a group, they would have entered the country, they had already had all the equipment in a vehicle, they had already asked Mr McCaskell to take them to Bloemfontein. That evening, the evening of the 19th/20th of December they would have come into the country if action was not taken against them.
MR BOTHA: The Minister of Foreign Affairs would have had to shoulder the blame.
MR VISSER: Perhaps that is so.
MR BOTHA: It's not perhaps, it is so.
MR VISSER: But that incomprehensible, that if the State Security Council did not know that the problem had been solved, that they would have taken these decisions to say that we shall now act diplomatically and do all the other things and using force as a last option.
MR BOTHA: Chairperson, the SSC did not take that decision to invade Lesotho, not then and not on any other occasion and no other State organisation took that decision that had executive powers. I do not know of any other situation and I cannot supply an answer.
CHAIRPERSON: Mr Botha, did the SAP, the intelligence and the army, did they know that no-one would have agreed that such an attack be authorised if the facts were not confirmed? Did they know that?
MR BOTHA: I don't know what they knew, Chairperson, but I found insightful when I thought of Maj de Kock's evidence, or one of the applicants, that the army was busy planning the same operation and then the police decided to do their own thing and did not communicate this with the army.
CHAIRPERSON: I know that - I did not know about the army, but what I would like to ask is, these various defence components of South Africa, did they know that any committee above them where they would have to receive authorisation or permission, would not have agreed to such an invasion if they did not come with supported evidence? You testified that if it was not confirmed, then no-one would have agreed to it. Do you understand?
MR BOTHA: That is correct.
CHAIRPERSON: I want to know, did these components know about this, that they would not have been granted permission if they did not come forward with any confirmed information?
MR BOTHA: I don't know what was going on in their heads, but ...(intervention)
CHAIRPERSON: In general, I do not refer to this attack.
MR BOTHA: If it was confirmed information.
CHAIRPERSON: Unconfirmed information you say that you would have never agreed to an attack if it was unconfirmed. Now did those components know that if they were to come to you and request permission with unconfirmed information, that they would not have been granted that permission?
MR BOTHA: Most probably. Most probably in the sense that if you would submit a matter to attack Maseru, it would have been expected that confirmed information of this imminent threat was necessary and then the army would have received the instruction to do the planning.
CHAIRPERSON: Not the police?
MR BOTHA: No, not the police.
MR VISSER: And it has to be so. The army would have acted overtly, the police could not act lawfully and overtly and that is why the SSC would not have instructed the police but the army. You are entirely correct. But the information was then confirmed on the 20th of December, because at that stage the two handgrenades had been submitted by the source.
CHAIRPERSON: Before or after the meeting?
MR VISSER: It was already before the meeting.
MR BOTHA: Handgrenades before the meeting?
MR VISSER: Chairperson, Gen van der Merwe's evidence was that when that information came to light, and he cannot recall what the date was, but he said it was approximately the 17th or the 18th. And you will recall that some of the witnesses were asked how long before, it was very shortly before. Brig Schoon placed it at approximately a week.
CHAIRPERSON: Let us assume that it was round about the 17th, was there a meeting where that information could be submitted, in-between the information about the handgrenades and the attack, was there a meeting?
MR VISSER: You see that is the problem that Gen van der Merwe had because he cannot recall. You will recall that he said that he cannot recall that particular meeting and whether it was a full and complete CIC meeting, but what he can say is that he would not have acted without discussing it with members of CIC. That was his evidence. And Chairperson, we shall argue at the end of the day, and in fairness I shall put it to Mr Botha that it had to be approximately the 17th when the confirmation came and by the time of the SSC meeting on the 20th, they would have been informed that it was confirmed information.
CHAIRPERSON: By whom?
MR VISSER: By branch National Interpretation because the evidence is continually that the Security Branch had conveyed the information it had to CIC, including Gen van Vuuren who sat on branch National Interpretation.
CHAIRPERSON: I'm not sure about that, Mr Visser, but continue.
MR VISSER: Chairperson, I do not want to speculate but you will recall that it was said that Dr Neil Barnard was the Chairperson of CIC, and it could have been conveyed by him, we don't know.
CHAIRPERSON: My problem is that your client testified that he cannot recall whom he told.
MR VISSER: That is so.
CHAIRPERSON: Then the question would be, if it was so, who would have gone to the meeting and informed the meeting?
MR VISSER: The possibilities are at least two, Chairperson, Mr van Heerden or Dr Neil Barnard.
CHAIRPERSON: If they were amongst the people whom Mr van der Merwe had informed.
MR VISSER: That's correct, Chairperson. But I said that we shall argue it and I can tell you now what the argument will be, the argument will be that without any reasonable doubt it would have been discussed with Mr Neil Barnard because that is the organ through which the police had worked.
CHAIRPERSON: Continue.
MR VISSER: Thank you, Chairperson.
MR BOTHA: Mr Chairperson, may I be of assistance. According to the evidence of the applicants, 10 days before the 19th they started with this thing and if that one person had organised that party on the 11th, then it would have happened on the 11th. That is the evidence that I had read in the documents that Ms Patel had submitted to me. The evidence that I had read under oath was that this person, this Mr McCaskell, was put under pressure and he said that he could not organise the party, he could not organise the party, but if he could arrange that party before the 19th, it would have happened.
MR VISSER: So what is your point?
MR BOTHA: The point is you concentrate so much on the date, the 19th or the 20th and what possibly could have happened on the 20th, that is not substantiated anywhere in documents. In other words if this onslaught on Maseru had taken place on the 11th, then it makes a difference to your reasoning with regard to the 19th of December.
MR VISSER: Are you arguing now?
CHAIRPERSON: Mr Visser, I think in fairness we have to accept what Mr Botha says. Mr Botha says that according to what he had read it was arranged by whosoever it was in the police with McCaskell "Arrange the party so that we can attack". That was part of the plan, as I understand his words. And on occasion it was said to the police "I did not have an opportunity to arrange the party". If he had been successful in arranging the party for the 11th or the 12th of December, then the attack would have taken place on that date. That is his reasoning.
MR VISSER: The answer to that is a simple answer, it would have taken place if the instruction had been given and the instruction would not have been given before the confirmation with the handgrenades had taken place, according to Gen van der Merwe, and that only took place on the 17th of December.
MR BOTHA: But this does not concur with the evidence of the other applicants.
CHAIRPERSON: But we can argue that later.
MR VISSER: You have said an unconfirmed unsubstantiated report, I would like to submit to you that it would be better to speak of an unconfirmed or uncorroborated because all that it means is that there was only one source and there was not another source to confirm or no other evidence to confirm that, that is what unconfirmed means in security language. Would you differ from that?
MR BOTHA: Chairperson, currently there is a police officer whose telephone conversations were tapped by National Intelligence and according to that, Mr de Kock would have said to this police officer that Mr de Kock had been dropped off at my house twice a week, so that he and I could visit. That is what a police officer says who is currently still in the service and in command of a station, that is a lie. I am very sorry ...(intervention)
MR VISSER: That's unsubstantiated.
MR BOTHA: ... an unconfirmed report with regard to me against this background that I had to live through, is unconfirmed and probably a lie.
MR VISSER: So unconfirmed for you is a lie, it's a story.
MR BOTHA: Depending on who the source is.
CHAIRPERSON: Mr Visser, it won't assist us in playing with words. I understand what the witness means.
MR VISSER: I would just like to conclude by saying that the fact that it was an unconfirmed report did not stop branch National Interpretation from putting it into its Situation Report, as an interpretation of the information from the country and the interpretation thereof for purposes of the SSC. And the Chairperson of the SSC would not have allowed documents to be placed before the SSC that were lies or stories.
MR BOTHA: He did allow it.
MR VISSER: Would you agree that it was the policy of the South African Government - to use the words of Gen Magnus Malan, to wipe out terrorists wherever they might be found?
MR BOTHA: That was the policy, yes.
MR VISSER: And I will conclude with you, Mr Botha, under the heading
"Overt, further qualified, legal as opposed to covert and further qualified unlawful open action."
I hope I have read that correctly. Open action, lawful as opposed to covert action, unlawful. Now you said it and I would just like clarity from you, it has to be as clear as daylight to everyone right now that no-one in the government, if he had been asked by an operative to perform an unlawful act, would have probably not given him permission.
MR BOTHA: Well I would not have.
MR VISSER: You would not have. It is also evidence - there is also evidence before the Amnesty Committees, where instructions came from the top, I shall mention a few examples to you. The one question or the one example is the instance of Khotso House. The evidence before the Amnesty Committee was that that instruction came from the State President, through Min le Grange, through Min Vlok, down. Did you know that there was something like that?
MR BOTHA: No.
MR VISSER: In other words if that is true, then your colleague, Min le Grange, did not tell you of it.
MR BOTHA: No.
MR VISSER: Mr Vlok - I beg your pardon. He did not tell you of it?
MR BOTHA: Mr Piet du Plessis asked Mr Vlok who had caused this mess and his answer was "No-one knows".
MR VISSER: So he does not tell you. And then Mr Botha, with the London Bomb, the instruction according to the evidence, came from Min Louis le Grange. Did he ever tell you of that?
MR BOTHA: No, he would not have.
MR VISSER: And that is why a young Brigadier would also not tell you before or after the time.
MR BOTHA: Correct.
MR VISSER: You see, Commissioner Bosman put this question to you, she stated
"Hypothetically, if someone in the government knew it was the Security Branch who had acted there, would it have been addressed at an official meeting, or had been confirmed in public?"
And your answer was -
"Of course not".
And I wish to put it to you that that is exactly what happened here, because in Volume 3 on page 3 there is a cabinet meeting, no word is mentioned about this action in Lesotho. In the Working Committee of the State Security Council, Volume 3 page 1, the Minutes of the Working Committee, not a single word is mentioned of this invasion of Lesotho. In the SSC of the 3rd of February 1986 - this is the next meeting after the 20th of December '85, not one single word is mentioned. Volume 3, page 114, Chairperson. Not a word is mentioned that the police had launched this attack in Lesotho. So it makes sense.
MR BOTHA: I beg your pardon?
MR VISSER: It makes sense. Nowhere is there an official acknowledgement of the fact that anyone ...(intervention)
MR BOTHA: Because no-one knew who did it.
MR VISSER: But Mr le Grange knew, he gave the medals.
MR BOTHA: May I ask you, where were these medals awarded? Do you think that we knew?
MR VISSER: I did not say that you knew. The question was that if someone had known, he would have reported it, it would have been addressed at a meeting.
MR BOTHA: No, if they thought they had done something wrong, then they would try to hide it.
MR VISSER: But that is my point, it was an unlawful act and no-one will make that public. That is what it was about. Specifically not to Foreign Affairs because you were the people who have to justify to the outside world, Mr Botha, and you thought it was the LLA that had launched the attack.
MR BOTHA: I would just like to remind you that during that time I was almost fired, so I reached a stage in my career where I would not have taken this thing if I knew it.
MR VISSER: What thing?
MR BOTHA: This attack on Maseru. "Terwyl ek met die Basuthus onderhandel, word hulle geslaan".
MNR VISSER: Ja.
MNR BOTHA: En bring my in gedrang by die hele wêreld.
MNR VISSER: Ja. Nee, nee, u het daardie punt baie duidelik gemaak, u was alleen in die stryd gewees om die revolusie ...(tussenbeide)"
MR BOTHA: ...(indistinct) the Minister of Finance ...(intervention)
MR VISSER: So the Minister of Finance helped you as well. So you and the Minister of Finance tried to settle this diplomatically. I comprehend what you are saying.
I would just like to conclude by putting to you that that was the reason, namely the fact that the police had acted unlawfully and that they would always act unlawfully if they acted across the border, that no guidelines were applicable to them. You have already said that.
MR BOTHA: Not at all, because that would have meant that you would have been an accomplice to that unlawful ...(intervention)
MR VISSER: Thank you, that is the statement I wanted to make. And that explains why no-one would have gone to the SSC and told them "Give the police authorisation" - the SSC did not even have the capacity to give such authorisation, "but ask cabinet to authorise police to overtly go into Swaziland, or rather, Lesotho". They would not have done this.
MR BOTHA: Chairperson, it is unthinkable because whatever has been thought in later years of the previous government, we made an oath as Ministers, to firstly act within the boundaries of the law of South Africa. That was an oath we had taken. And any Minister who broke that oath would be criminally accountable.
MR VISSER: Yes, and that is the reason why nowhere in any official document we would not see any authorisation of any unlawful act.
MR BOTHA: Correct.
MR VISSER: Thank you Mr Chairman for your patience, I have no further questions.
NO FURTHER QUESTIONS BY MR VISSER
MR VISSER: And thank you Mr Botha for your patience. I did not try to pick a fight with you.
MR BOTHA: It's okay, we're both getting older.
CHAIRPERSON: Mr Toweel, any questions?
MR TOWEEL: Chairperson, I have no questions.
NO QUESTIONS BY MR TOWEEL
CHAIRPERSON: Mr Cornelius?
MR CORNELIUS: I have no questions, thank you Mr Chairman.
NO QUESTIONS BY MR CORNELIUS
CHAIRPERSON: Mr Lamey?
MR LAMEY: No questions, thank you.
NO QUESTIONS BY MR LAMEY
CHAIRPERSON: Mr Joubert?
MR JOUBERT: I have no questions, thank you Mr Chair.
NO QUESTIONS BY MR JOUBERT
CHAIRPERSON: Ms Patel.
CROSS-EXAMINATION BY MS PATEL: Thank you Honourable Chairperson.
Just to follow on from my request yesterday, may we mark Exhibit F, I believe it's been handed out to all the parties now, the press release by the Department of Foreign Affairs of the 20th of December, as Exhibit F please.
And then finally just to Mr Botha, in the minutes of the 20th of the 12th, you remarked that you'd received an "afwysende antwoord" from Lesotho, do you by any chance have copies of that response from the Lesotho Government, available for us? For purposes of the record.
MR BOTHA: I will go and try - I haven't unpacked all my goods and the Department of Foreign Affairs is trying to help me. I think we can get hold of it, but I can assure you, Mr Chairperson, the response I constructed from the newspaper articles and I remember that quite well, was to the effect that they denied that were ANC terrorists in their country but only refugees and that these refugees were being flown out to Botswana at the time. In other words they said, you, South Africa, consider the ANC members present in our country as terrorists and they, Lesotho, say no, they are registered refugees. This was just about it.
MS PATEL: Alright. Thank you, Honourable Chairperson, I have nothing further.
NO FURTHER QUESTIONS BY MS PATEL
CHAIRPERSON: Francis?
ADV BOSMAN: I have no questions, thank you Chairperson.
JUDGE KHAMPEPE: I have no questions.
CHAIRPERSON: Mr Botha tell me something, unlawful attacks externally, was this the policy of the government at that stage?
MR BOTHA: No.
CHAIRPERSON: Was it - you were a member of the National Party, is that correct?
MR BOTHA: Chairperson, let's take for example, the London Bomb ...(intervention)
CHAIRPERSON: No, I'm asking of what political organisation you were a member, the National Party?
MR BOTHA: Yes, I was.
CHAIRPERSON: Was it the policy of the National Party to launch unlawful foreign attacks?
MR BOTHA: No.
CHAIRPERSON: The following question is important ...(intervention)
MR BOTHA: I beg your pardon, Chairperson, may I just qualify?
CHAIRPERSON: Yes.
MR BOTHA: The National Party was a party all over the country, with its four provincial congresses, all of which were so to say autonomous in their provinces, that is why it was a federal party and there were congresses of these parties where policy was formulated and during the '80s there would be very crass motions which would be tabled for discussion during such congresses, and although the motions or proposals would not say "We are sending Eugene de Kock to London", one would have to submit a proposal which would be interpreted by the policemen out there as if it was pretty much a free hand to do whatever they needed to do to combat the threat, "kill them, stop the threat, we've had enough". Now how would the policemen interpret what is enough "we've had enough". So it was a problem, yes. But I can understand that some of our police officers who read the papers at that stage, would have believed in interpreting that decision in such a manner that persons had to be killed.
CHAIRPERSON: And if he did, he did it in the National Party's name, or at least for the National Party.
MR BOTHA: Well he wouldn't have announced it all over because the leader of the party would have denied it, but the fact of the matter remains that that man in his mind would have believed it as such.
CHAIRPERSON: The following question is important. There in the cabinet I know that the so-called democracy wasn't very well treated in that cabinet and among the Ministers they also lied to one another, they lied to you as well, could it be that some of those Ministers may have agreed with such an attack?
MR BOTHA: Yes, it could.
CHAIRPERSON: And would such an attack have accepted that it was in favour of either the National Party or the government?
MR BOTHA: Yes.
CHAIRPERSON: There is something that may be hard for you, which I must ask, I have listened to a number of these applications which were lodged by policemen who were formally highly placed, during which they say "We know what we did was wrong and we're sorry, but we know that members of the cabinet knew what we were doing and now they've left us in the lurch". What do you have to say about that?
MR BOTHA: Allow me just to say how I feel.
CHAIRPERSON: Very well.
MR BOTHA: We in Foreign Affairs felt cheated because we felt that things were happening that we knew nothing about and that these things were happening behind our backs and that we were often placed in the most precarious positions conceivable, and after the amnesty hearings began and this evidence came to light, I tend to say that a Minister ought to have known what was going on in his department, he ought to have known, and therefore I would say yes. If there are police officers who feel that they have been left in the lurch, I would venture to say that I have sympathy for that, despite the fact that they cheated me to such an extent.
CHAIRPERSON: Very well. During that time, when all these things were taking place, whether lawful or unlawful - let us limit ourselves to the unlawful acts because as I understand, the cabinet knew about the lawful actions by the army ...(intervention)
MR BOTHA: Not always.
CHAIRPERSON: Very well.
MR BOTHA: Can I give you an example? If you take the Kabinda case, it was the greatest shock for all of us, I can assure you.
CHAIRPERSON: Now you tell us that at the very best, you thought that it was either South Africa, via the police or the Defence Force or the army, who carried out unlawful acts and you ask one another but nobody admits it. Didn't it occur to you that you have many friends in the world, that they were doing you favours and that you didn't even know about it, how is that so?
MR BOTHA: I beg your pardon, could you repeat.
CHAIRPERSON: Didn't you think there in the cabinet, "We didn't do it, but here we have a number of attacks which were committed in our favour and we don't even know about it, who are these friends of ours? Who are these people who are attacking our opponents in our favour?"
MR BOTHA: The Defence Force actions were known in the rule.
CHAIRPERSON: No, I'm referring to the unlawful actions.
MR BOTHA: I must reiterate, one could only make enquiries to a certain point, one couldn't tell a colleague "Well this has nothing to do with us", then he would say "Well just bring me evidence".
CHAIRPERSON: No, listen to the question, Mr Botha. According to the cabinet, South African had nothing to do with it, but it happened on numerous occasions that the opponents of South Africa were attacked by somebody and this was an unknown agent, didn't you ask yourselves the question "Who are these friends of ours"?
MR BOTHA: But I have told you previously that my department and I had suspicions.
CHAIRPERSON: But why wasn't the question put during cabinet meetings, as to who these mysterious friends were? Because all these attacks are taking place in your favour but you didn't have anything to do with it.
MR BOTHA: Chairperson, you have quite a contentious point here, but it isn't entirely like that. I can recall occasions upon which the Minister of Justice or Law and Order told me that National Intelligence had reported to them what was going on in certain camps in Angola and how within the ANC ranks people were being murdered and killed and that some of them might be doing things like that in order to place the light of suspicion on the police. It was a very difficult time, one didn't really know what to believe anymore. One really didn't know what to believe or whom to believe, but one had one's suspicions. And I think that the cabinet should have done more, it's leadership should have done more at that time in order to be up-to-date with what was going on, to determine what was going on.
CHAIRPERSON: Isn't it true that some of them did do more, by approving these facts for example?
MR BOTHA: No, what I mean is that we should have done more to ensure that such things did not take place because we had our suspicions.
CHAIRPERSON: Are you referring to your department?
MR BOTHA: No, my department and the entire cabinet.
CHAIRPERSON: Well that's what I was asking you. Wasn't there a few of the Ministers who did more, who approved some of these attacks?
MR BOTHA: Yes, that may be so.
CHAIRPERSON: The final aspect is that I would want you to study page 75 of Volume 3, paragraph 3.2.3. Please read it and tell me what you understand from that.
MR BOTHA: Chairperson, in the light of my discussion on the 20th of February he tells me that in his mind regarding the whole meeting that day, an attack could not have been launched on Lesotho but whatever action would have been taken had to be preceded by a well-planned propaganda programme in order to ensure that if you had to go over to violence, if violent action were to be decided upon prior to this in the same spirit or words as those guidelines of the 21st of October, this would be almost that same thing. It had to be preceded by a proper propaganda programme or campaign, so that the world out there would not think that we were such bad people as to cross the border and launch attacks on Lesotho without any kind of particulars.
CHAIRPERSON: Now if you study that list, the guidelines - in either event, if you study that list, then it is only the last one who really created that many problems for South Africa, the others were acceptable diplomatic actions.
MR BOTHA: Yes, that is correct.
CHAIRPERSON: So this 3.2.3, am I correct when I say that it could only have referred to the last item.
MR BOTHA: Referred to what?
CHAIRPERSON: To number 6, I think.
MR BOTHA: Yes, that is correct.
CHAIRPERSON: Because it was only for that that South Africa was afraid.
MR BOTHA: Yes, the last resort.
CHAIRPERSON: To me as an outsider who wasn't involved in those meetings at all, it appears - and I would like your comment on this, it appears that there must have been at least a measure of approval for attacks as what took place there in Lesotho - from this paragraph, because it is an acknowledgement that it could take place and that if it does take place, certain things have to be done beforehand so that nobody could point a finger at us. Would you agree?
MR BOTHA: I would say that it appears from this that there is a wish or a desire to do so, a concealed desire to cross the border, full-knowing that they didn't have the power to approve something like that.
CHAIRPERSON: Yes, well that is why it has been cryptically recorded.
MR BOTHA: But whoever wrote these documents would most probably have approved of violent action.
CHAIRPERSON: So even though it wasn't expressed during the meeting word for word, would you agree that the idea existed that it was approved to an extent, that if it were to happen, ensure that no fingers could be pointed back at the government. Would you agree?
MR BOTHA: Unfortunately I was not at the meeting, so I will have to rely upon what Mr van Heerden has told me and he gave me the assurance that the CIC did not take any decision which would boil down to even an interpretation of attacking Maseru. And I must tell you in all earnestly, that I would prefer that Mr van Heerden be consulted. I can understand why you read this into the document, but I cannot confirm it.
CHAIRPERSON: Yes, thank you, you are excused.
MR BOTHA: Thank you, Chairperson.
Chairperson, just a moment. In conclusion, because I am my own legal representative I'm here in two capacities, and Pik Botha the witness complained to his attorney, Adv Botha, in terms of questions which were put to his client Pik Botha here yesterday "that his affidavit cannot be accepted on face value". I would like to object very strongly towards that and place it on record that my willingness to testify here does not indicate that I will not take legal steps elsewhere in order to rectify the insult. Thank you, Chairperson.
CHAIRPERSON: Shall we take the tea adjournment.
WITNESS EXCUSED
COMMITTEE ADJOURNS
ON RESUMPTION
MR BERGER ADDRESSES: ... the matter before the next witness is called. It relates to Dr Barnard. There's been a lot of evidence about Dr Barnard and his role in the CIC meeting of the 3rd and subsequently. This morning my learned friend, Mr Visser, told you that he was going to argue at the end of the case that there were two real possibilities as to whom Mr van der Merwe had spoken with subsequent to the meeting of the 3rd of December, according to Mr van der Merwe's evidence, and they were Mr van Heerden and Dr Barnard. And my learned friend said, but he will argue that beyond reasonable doubt it must have been Dr Barnard that Mr van der Merwe ...(intervention)
MR VISSER: I said it's quite clear that it must have been Mr van Heerden because it was Foreign Affairs through van der Merwe worked, and it only makes sense that he would have spoken to van Heerden, not Barnard.
CHAIRPERSON: Well Mr Visser, you may have meant that, but you did mention the name Mr Barnard.
MR VISSER: Well then I must retract that, that statement doesn't make sense. What makes sense is that van der Merwe spoke to "Buitelandse Sake", BS, Foreign Affairs, and the obvious person to whom he would give the further information, which he had given information to before, was Mr van Heerden. I'm sorry if I said Barnard, but I meant van Heerden.
MR BERGER: Thank you. But Chairperson, it doesn't really make a difference to what I was going to ask the Committee, because my learned friend has indicated two possibilities, Dr Barnard and Mr van Heerden, and it's quite clear that those two men are key role-players in the events from the 3rd, at least from the 3rd of December leading up to the raid. Added to that, Chairperson, your comment to Mr Botha, to the effect that it appears to you from a reading of paragraph 3.2.3 of the CIC Minute of the 3rd of December 1985, that that paragraph indicates "'n mate" of approval for a raid, if it is to be launched.
CHAIRPERSON: ... suggested to him that it could be interpreted that way, ja.
MR BERGER: Sorry, Chair, I thought that you said that speaking for yourself, that was how it appeared to you.
CHAIRPERSON: Nothing turns on it, in the interpretation. Whether it was suggested or an interpretation, it's there.
MR BERGER: Chairperson, given Mr van der Merwe's vague memory about the events of the time and actually he spoke to, it's our submission that if we are to get to the bottom of this and if we are to get the true facts, the true relevant facts, it is essential that both Dr Barnard and Mr van Heerden are subpoenaed to come and testify. The subpoena can be as narrow as the Committee feels is justified in the circumstances, that we leave in the hands of the Committee, but we would ask the Committee to issue two subpoenas in terms of Section 29(1)(c) of the Act, to Dr Barnard and to Mr van Heerden. Because they can come and particularly - well both of them, but let me say for example, Dr Barnard, he can come and say he was at the CIC meeting of the 3rd and a raid was authorised or a raid wasn't authorised and he can say I spoke to Mr van der Merwe afterwards or I didn't and the same for Mr van Heerden. And with Mr van Heerden we have the advantage also of his contact with Foreign Affairs and on top of it he being the person who made the initial report in paragraph 3.2.1 of the minute. And he would also be in the position to tell us what he did with the police request that Foreign Affairs urgently informed Lesotho that if they didn't take action, the South African Police or - yes, South Africa would take action.
Our submission is that those two men really are in a position, it would appear now from the evidence, to resolve a lot of questions which remain unanswered.
CHAIRPERSON: Mr Berger, I want you to deal with the following that I'm going to put to you. The problems of this Commission, of this Committee or the Amnesty Committee subpoenaing people was pretty obvious earlier during this hearing. I must be quite honest, and I speak for myself, whoever devised the system of subpoenaing witnesses in terms of whatever section of the Act, through the Amnesty Committee or any other Committee, I think was wrong. My understanding, and I'm open to persuasion, of the relevant Sections is that the Commission is entitled or empowered by the Act to subpoena people for its purposes.
Furthermore, in the Act it is stated that where the Act is silent on questions of procedure and/or evidence, the normal rules related to ordinary Courts must apply. And if there is a part, I think, who wants to or is interested in calling a witness, then they must resort to the ordinary rules of Court. I'm very uncomfortable of having - and I may be wrong, I must emphasise, but I'm very uncomfortable getting the Committee to subpoena people and bringing a person here for everybody to cross-examine. It runs against the grain, and it's left for me to lead that witness and I don't know what the party wanted that witness for. Now I'd like your comments on that. Isn't it - what I'm suggesting, that if any party present is wanting a particular person, then that party should subpoena that person and then it becomes that party's witness. I know what the practise has been and I think the practise if it is not wrong, it gives rise to a lot of problems.
MR BERGER: Chairperson, the problem is that this Committee is not a Court of law and so the rules of Court do not apply here, they're not communal, they're rules which are promulgated in terms of the Supreme Court Act. So those rules don't apply. This Committee is, to use the terminology, a creature of statute and so it's only the rules and regulations promulgated under the Act, this Act, that would apply. Now it may well be ...(intervention)
CHAIRPERSON: Doesn't the Act empower the use of these rules or related to a procedure in evidence? - in the absence of any specific legislative power given by this Act.
MR BERGER: I'm not aware of any provision in the Act which would incorporate the Supreme Court rules.
CHAIRPERSON: I seem to remember - I don't know if they say High Court rules or rules of Court, but I seem to remember somewhere in this Act something to that effect is stated.
MR VISSER: Chairperson, if I may be of some assistance, Section 30 is the Section that deals with rules of the Commission, Rules of Procedure.
MR BERGER: Well that Section says that the Committee must establish its own rules if there's no procedure prescribed.
CHAIRPERSON: I appreciate your point. Mr Berger, if at any time anybody, including the Amnesty Committee, is going to subpoena those two gentlemen that you're interested in, it's in any event going to carry us beyond next week then, as I see matters. Shall we not leave this matter for Monday, so that all of us can do the necessary investigation - or Tuesday, sorry, and all of us can do the necessary investigation over the weekend and that we know what we're talking about. Because I'm talking from memory and somewhere I seem to think that the Act does refer to it, but I'll check it up and maybe I'm wrong. I sat on a number of other Commissions, it may be in another Commission.
MR BERGER: Chairperson yes, we can hold this over until Monday, I just wanted to mention it now because - sorry, Tuesday, I'm falling into the same trap, Tuesday, we're not sitting on Monday, but we thought we should mention now just so that ...(intervention)
CHAIRPERSON: Everybody's aware of it.
MR BERGER: Yes, indeed. Also it might well be, I don't know because I haven't spoken to either of the men, but it might well be that the same situation as Mr Botha applies and they might be willing or prepared, let me put it that way, they might be prepared to come and testify.
CHAIRPERSON: Isn't that for you or your attorney to investigate? A telephone call, ask them look are you willing to testify on our behalf. If they say no and you still feel so strongly, then the next step is to investigate the Act and what is to be done. ...(indistinct) in a sense by practise thusfar, I think the practise may be right or wrong, but it gives rise to a number of problems. But let us investigate it and see what happens. I hope everybody will do so. I'd appreciate comments on it because it seems to be a lacuna somewhere.
MR BERGER: Chairperson, we will make the necessary enquiries, it's not that we want to call them as our witnesses, but it occurs to me, to us, Chairperson, it's strange that nobody else in this room is concerned about these two gentlemen because we surely can't be the only people who ...(intervention)
CHAIRPERSON: Mr Berger, nobody, no attorney or advocate in his right mind is going to advise his client to call a witness who they don't know what he's going to say, it could be damaging to their case.
MR BERGER: But Chairperson, we are here concerned with the truth and it is clear that whatever these two men have to say, it can only contribute towards finding out what really happened. It can only assist, it can't detract from that enquiry.
CHAIRPERSON: Mr Berger, similarly I don't expect you to call any witness that's going to give evidence that dents your case. Let's face it, I don't expect you to do that. You can't expect any party to a hearing to call all and sundry and risk damage to their case.
MR BERGER: Chairperson, you would have seen from the way that we've approached this hearing, for example we have come out forthrightly to say that several of the people who were killed in the raid were in the process of launching - about to enter the country to launch an attack. We could have left it to the applicants to prove, but we have done that because we believe that that is the truth and if that assists the applicants in - and there are other arguments I have, but if that assists the applicants somewhat towards getting amnesty, well then so be it, but that is the truth and we haven't run away from that and our clients have instructed us to adopt that course because they too do not want to run away from the truth.
CHAIRPERSON: No, I appreciate that approach, Mr Berger, the point of the matter is that I don't know if I've got the power to force anybody here to call a particular witness. If the Committee finds that it necessary, that it wants to hear a witness, then it will do so, but I can't force you and neither can I force anybody else to call a witness.
MR BERGER: No, Chairperson, we're asking you to exercise your power.
CHAIRPERSON: I gathered that and I hope you've gathered that I'm a bit reluctant to.
MR BERGER: I have my suspicions.
CHAIRPERSON: Okay, so we'll leave that over for Tuesday, hopefully everybody would have acquainted themselves, including myself, with what is contained in the Act.
MR LAMEY: Chairperson, may I just ask one question. Assuming that we come on Tuesday and the decision is made that these gentlemen, two gentlemen should testify, how do we envisage then the proceedings next week? Because I've got to know so that I can make arrangements in view of my unavailability next week.
CHAIRPERSON: Well if we come to the conclusion that they're going to be subpoenaed by whomever, then I think we're going to have to adjourn so that those people can acquaint themselves with the proceedings thusfar and be furnished with all the documents that everybody else had the benefit of.
MR LAMEY: So I take it that will inevitably lead to an adjournment of, and it becomes part-heard.
CHAIRPERSON: Ja.
MR LAMEY: Okay.
CHAIRPERSON: I would think so. I haven't discussed it with my colleagues or anybody else for that matter, I'm just speaking for myself, but that seems to be the most logical route to take thereafter. It will be unfair to expect those people to come here and answer off the cuff, we've got to give them a reasonable bit of time to acquaint themselves.
MR BERGER: That is so, Chairperson, but we have several witnesses still to deal with before we need to get to Dr Barnard or Mr van Heerden, and Dr Barnard's attorney and counsel were here for a lot of the evidence, so they are on top of a lot of what has been said.
CHAIRPERSON: I appreciate that, but I'd prefer rather that they be furnished with a copy of the record thusfar than to have an ongoing record being given to them all the time. If they're going to become parties to the hearing or interested parties for that matter, then I think we should stop immediately and put them in the position as soon as possible, as they would have been had they been subpoenaed before the hearing. I think that's only fair. But let's cross that bridge when we come to it, that's my initial attitude. I'm sorry I can't do better than that.
MR LAMEY: Thank you, Chairperson.
MR VISSER ADDRESSES: Chairperson, if you will allow me an indulgence. Through the Chair, Chairperson, we want to give notice to Mr Berger that we will argue that their evidence is irrelevant as far as the evidence that is relevant to the amnesty application is concerned. Van der Merwe says "I took the decision", he never said that he got authority, in his evidence before you here, from anyone higher up. So whatever Mr van Heerden or Mr Barnard can come and tell you, makes absolutely no difference to that evidence. In fact we know that Mr Botha said that the CIC, as well as the SSC, never had authority to give authority for a raid, it had to be referred to cabinet. Now unless my learned friend wants to show that, and even that is irrelevant, that it came from cabinet, we still say Chairperson, that somebody has to exercise discretion here as to the relevance of that evidence, and that's going to be you.
CHAIRPERSON: Mr Visser, that's what I said, let us all sit over the weekend and spend half an hour or an hour, see what the Act empowers us to do and empowers this Committee to do. I think I've been credited with the ability to decide what is relevant or not. There is a request from one of the parties, I have to listen to it and we'll have to deal with it after argument and make a ruling one way or the other, and let's go from there.
MR VISSER: No, I just wanted to give my learned friend fair warning that there are the facts and there's the law.
CHAIRPERSON: I'm sure he's aware of that, yes.
MR VISSER: Thank you.
MR BERGER: I'm truly indebted to my learned friend.
MR TOWEEL ADDRESSES: Chairperson, may I just add something. Everybody here has spoken but me, so if I could just place the following on record. I'm appearing on behalf of Mr Coetser. My position is that I'm not available on Tuesday and Wednesday and I spoke to some of my colleagues regarding my attorney who could stand in, as long as he does not have to give evidence at that stage, but what has happened in the meantime is that the State Attorney that I have spoken to says that Mr Coetser is actually not entitled to legal representation from their side.
CHAIRPERSON: From their side.
MR TOWEEL: Yes, from their side, Chairperson. However they told me that they would be prepared to grant me one more day here and that is the day upon which he is supposed to give evidence. My idea was that it would have been round about Thursday. The points that you have just touched upon are the points that I will touch upon when he gives evidence. In fact we are not really planning for him to give evidence, but rather to give fair warning, as Mr Visser put it to Mr Berger. I just want to place it on record that if something happens on Monday with my attorney of instruction and the State Attorney, there will be no appearance by Mr Coetser on Tuesday and Wednesday, but I will be in telephonic contact with Ms Patel to determine whether or not Thursday will be a suitable day and I will then have an argument with regard to his position and his subpoena before this Committee.
CHAIRPERSON: Isn't he also a person who could be regarded as an implicated person according to the Act?
MR TOWEEL: Chairperson, what happened is that he received a Section 19 notification that he had been implicated.
CHAIRPERSON: But he also received a subpoena.
MR TOWEEL: Chairperson, my argument will be that he first received the one document and then responded by saying that he did not apply for amnesty, that he does not have any money for legal representation and that he will not be attending the proceedings. Thereafter he received the Section 19(4) subpoena which then obliges him to attend. And that will be my argument, in that previously he had the right to attend, now he is obliged to attend and I will argue on the premise of that.
CHAIRPERSON: Yes, that may be so, but I am just concerned about the State Attorney who says that he is not entitled but that he will receive monies for that day. Either he is not entitled or he is, and it is not about time.
MR TOWEEL: It is about budgets, Chairperson.
CHAIRPERSON: Yes, that's his problem, that is not our problem. But the point is that here is a person who has an interest, and I am just concerned that he is not attending the entire hearing because there could be something that he would have to respond to, that everybody has missed because they're not interested in it and then he will arrive here for one day and give evidence or whatever and he will then be confronted by these aspects. Then it can also be argued that it was not put to a witness that it is as such and such and such. So I wonder if you couldn't speak to the State Attorney and find out that if he does qualify for assistance, it would be for the entire affair. It cannot be only for certain days.
MR TOWEEL: Chairperson, the State Attorney's attitude is that an implicated person is entitled to have a legal representative assisting him with his defence but not to have a legal representative sit in with him at the hearing.
CHAIRPERSON: Is that his interpretation?
MR TOWEEL: Or according to the budget an implicated is not entitled, but an applicant is. We will speak to them again and if our negotiations do succeed, my attorney will be here on Tuesday and Wednesday but I myself will only be here on Thursday.
CHAIRPERSON: Yes, I understand.
MR TOWEEL: Thank you, Chairperson.
CHAIRPERSON: Okay are we finished with all the homework and house rules now? We've got an hour left, who is next?
MR VISSER: Chairperson, I was given to understand it's Gen Coetzee, is that correct? No? Yes. General Coetzee, Chairperson.
