ON RESUMPTION 2ND MARCH 2000 - DAY 8

MS PATEL: Thank you Honourable Chairperson, I believe we have Mr Roelf Pik Botha this morning to start, thank you.

CHAIRPERSON: Is anybody calling him as a witness?

MR BERGER: Mr Chairperson, Mr Botha is here as a result of the subpoena which we asked the Committee to issue. I suppose I should be the first person to ask questions of Mr Botha.

CHAIRPERSON: Is he going to be your witness?

MR BERGER: Chairperson, we asked the Committee to subpoena Mr Botha because we believe that he has relevant information to give the Committee, information relevant to this particular amnesty hearing.

We have not consulted with Mr Botha, so we don't know precisely what he is going to say other than his statement which we received this morning. I cannot say that he is our witness in the sense that we are calling Mr Botha to prove a particular point, we believe that he has relevant information.

CHAIRPERSON: Why did you subpoena him then?

MR BERGER: Well Mr Chairman, Mr Botha was present at a State Security meeting on the 20th of December.

CHAIRPERSON: Let's not talk about the merits, let's just talk about the procedure, if someone is subpoenaed by one of the parties to a hearing of litigation, that subpoenaed person is the witness of the person or the party that subpoenaed him, isn't it?

MR BERGER: Chairperson, I have no problem calling Mr Botha, my witness, but the circumstances, he doesn't want to be my witness, clearly. The circumstances ...

CHAIRPERSON: Well, if he is here on subpoena and he has respected the subpoena, then he's got no choice. But the point of the matter is, I am just trying to get the house rules in order as to who can cross-examine, who can lead and what type of questions can be asked. I don't want to be faced and having to make a ruling. I will make it if I need to, but I am trying to clear the air before we start. My prima facie view is that the party that subpoenaed the witness, is entitled to lead that witness in so far as it is necessary, but not allowed to cross-examine.

MR BERGER: Well Chairperson, technically Mr Botha was subpoenaed by the Committee and so therefore ...

CHAIRPERSON: Yes, that is precisely the issue I want to get to. The Committee is a conduit for subpoenas by a party, they are no worse or better position than a Registrar of the High Court.

MR BERGER: Chairperson, with respect, that is not correct, because as far as the position of the Registrar of the High Court is concerned, if a party wishes to subpoena another party, then that party just issues a subpoena and the Registrar has no choice but to have the subpoena issued and served. In this case, we were requested by the Committee to motivate, to put forward a proper motivation why we wanted Mr Botha and others subpoenaed, and it was only once that motivation was accepted, which is not required in High Court matters at all, one doesn't have to motivate a subpoena, a subpoena just gets issued, that is the difference between High Court matters and here.

CHAIRPERSON: Mr Berger, let's skip the technicalities, we can come to it if necessary later. Why did you subpoena Mr Botha then?

MR BERGER: Because Chair, one of the central issues to this application is the question of authority, authority for the raid. Mr Botha who was the Minister of Foreign Affairs at the time, who attended cabinet meetings, State Security Council meetings, who had representatives in CIC meetings is ideally placed to give evidence to this Committee as to whether authority was given for the raid or not by the persons higher than Mr van der Merwe or whether Mr van der Merwe's evidence is correct in what he has already told the Committee.

CHAIRPERSON: If you had to ask him questions, would you consider yourself bound by the answers he gives or not?

MR BERGER: Not necessarily, no.

CHAIRPERSON: That is the crux of the matter, that is why it is important to know who called Mr Botha here as a witness.

MR BERGER: Chairperson, could I say this, if one wants to look at High Court matters, a party calling a witness as their own witness is entitled to cross-examine that witness under certain circumstances, for example if the witness is declared a hostile witness. It is not unheard of for a party to cross-examine its own witness.

CHAIRPERSON: Mr Berger, we haven't reached that stage, if we are ever going to get there. I cannot say that any witness is hostile yet.

MR BERGER: Chairperson, a hostile witness is not, I hope I am not - a hostile witness is not necessarily someone who is hostile in the ordinary, literal sense of the word.

CHAIRPERSON: I am quite aware of the law and the interpretation, Mr Berger, I raise this issue now, because I don't want to get into a quagmire of technical points and procedure and confuse it with the real aspects of this hearing.

MR BERGER: Chairperson, the only point I am making is that the circumstances under which Mr Botha comes to be subpoenaed are relevant as to whether or not we are entitled to ask probing questions of Mr Botha. The circumstances are such that he is not my client, that he was on the other side in the war, he has been called here because we believe he has relevant information, and if one reads his statement that he put up this morning, then clearly he has relevant information.

CHAIRPERSON: That is why I said forget about the merits, he may or may not have relevant information, I just want to get clarity here, an agreement before I have to make a ruling, and I will make it if necessary I repeat, who will call the shots amongst the parties? Who is entitled to cross-examine him if necessary and if they choose to do so, and who is not? Surely you will agree that not all the parties are entitled here to cross-examine him? Then who is not entitled to cross-examine him?

MR BERGER: Any person whose client is affected by any of the evidence given by Mr Botha, would be entitled to cross-examine him.

CHAIRPERSON: Mr Botha has been called here, we agree by virtue of a procedure, a lawful procedure. He didn't have to come and give evidence, it was his choice, had it not been for the subpoena. It then becomes relevant as to who required him here to come and testify and who used the procedure of subpoenaing him to come and testify, not so?

MR BERGER: Well Chairperson, the relevant Section of the Act is the Section that deals with it.

CHAIRPERSON: What is it, I cannot lay my hands on it?

MR BERGER: Sections 29 and 30, but I will get there now. Chairperson, Section 29 which is part of chapter 6, which by reference is incorporated into the section dealing with amnesty applications, the chapter dealing with amnesty applications, let me start at the beginning, Section 19(4) of the Act says that if an application has not been dealt with in terms of subsection (3), the Committee shall conduct a hearing as contemplated in chapter 6 and shall subject to the provisions of chapter 33, (a) in the prescribed manner notify (i) the applicant, (ii) any victims, (iii) any person implicated, or (iv) any person having an interest in the application of the place where and the time when the application would be heard and considered, and (b) inform the persons referred to in paragraph (a), those four categories of their right to be present at the hearing and to testify, adduce evidence and submit any article to be taken into consideration. Any of those four categories of people have a right to come in the absence of a subpoena, but the Section says the hearing must be conducted as contemplated in chapter 6.

In chapter 6, the relevant Section is Section 29, which is the power of the Commission with regard to investigations and hearings. The Commission, subsection (1) may for the purposes of or in connection with the conduct of an investigation or the holding of a hearing as the case may be (c) by notice in writing, call upon any person to appear before the Commission and to give evidence or to answer questions relevant to the subject matter of the investigation or the hearing.

There is no limitation on any questions put as long as they are questions which are relevant to the subject matter of the hearing.

CHAIRPERSON: (No microphone)

MR BERGER: We asked the Commission to exercise this power in terms of Section 29 and we were then asked to motivate why. We motivated and then the Commission exercised the power which it has in terms of Section 29(1)(c) of the Act. The Commission could have said to us we don't - it is not a power we have, it is a power the Commission has, "we don't regard your motivation as compelling, we think you are wasting the time of the Commission, we are not going to issue the subpoena", but the Commission read our motivation and as a result, issued the subpoena, so the witness is strictly speaking Ms Patel's witness, not our witness.

CHAIRPERSON: Are you done?

MR BERGER: Thank you Mr Chairperson.

CHAIRPERSON: Mr Berger, you forgot the most fundamental issue in that Section, that the Commission, at its discretion would subpoena anybody and demand him to come. In this case, I can rest you assure, we didn't need Mr Botha. That subpoena was issued at the behest of one of the parties. It was a conduit, the Commission was a conduit because there seems, and I disagree with it, there is a ruling, there seems that there is no other way to issue the subpoena. Personally I disagree with it, but that is the procedure. Do you agree with that, that is the factual position, had this subpoena issued at the behest of one of the parties, not at the behest of the Commission itself?

MR BERGER: No, that is correct, the Commission issued the subpoena at the behest, but it was the power which the Commission had, the Commission had a discretion to issue or not to issue and the Commission exercised that discretion after considering our motivations.

CHAIRPERSON: Have you had a look at that motivation?

MR BERGER: I was party to drafting the motivation.

CHAIRPERSON: Let's not get into discussion on that motivation. Is it your argument that you are entitled to cross-examine the witness?

MR BERGER: Yes, it is my argument.

CHAIRPERSON: I am going to invite comments and argument from the rest of the legal representatives, and then finally I am going to give Mr Botha himself, a chance to deal only with the issue as to whether all the representatives are entitled to cross-examine him, or not, that is even before he takes the oath. He is not a witness yet. Mr Hattingh, have you got any comments?

MR HATTINGH: Mr Chairman, without going into too much detail, I would submit that the submissions made by our learned friend, Mr Berger, is correct and that he is entitled to cross-examine Mr Botha. The witness is the witness of the Committee and strictly speaking, Ms Patel should be leading his evidence and that Mr Berger is entitled to cross-examine him.

MR VISSER: Mr Chairman, quod homines tot sententiae, I am in agreement with what you have put to Mr Berger.

ADV BOSMAN: Mr Visser, I taught you Latin, I think your Latin quotation wasn't a hundred percent in order, but that is just on the lighter side, it is not to harass you.

MR VISSER: Chairperson, I am terribly tempted to say that is what one gets when one is taught Latin by certain people, but be that ...

CHAIRPERSON: Mr Visser, it is a dead language, it should stay that way, carry on.

MR VISSER: Chairperson, we find ourselves in agreement with what you have stated.

CHAIRPERSON: Finally.

MR VISSER: If I may just embellish on that very slightly, with your permission. At the time when we were given wind of the fact that Mr Berger or his attorney, intended to subpoena witnesses, the first question arose, was the question of relevance. We had a look at page 56 of Volume 3 and perhaps I should refer you to that page, 56 of Volume 3. That is the third page of the representation which was made to you in writing. Chairperson, what you read there in paragraph 9 is the following, it says ...

That means only one thing in plain English and that is that this presentation tells you that the SSC had not authorised the raid prior to the 20th of December, what else can it mean?

Now once that is so, the question now remains apart from one aspect and that is ...

CHAIRPERSON: You argue on the basis that it is according to that minute?

MR VISSER: Yes Chairperson, yes. We in our application, have never stated that this action was authorised by the SSC or anyone else, in fact the clear evidence was that from Gen van der Merwe, nobody could have authorised an illegal raid. That is on the facts, what then occurred to us Chairperson, was that if one wanted to start subpoenaing witnesses, why pick on Mr Botha and Gen Coetzee, why not - then you have to subpoena the whole lot of these witnesses who were present at that meeting.

I don't know whether Mr Botha or Mr Coetzee's recollections are correct and neither do you. We will have to hear all these witnesses. The question was in our minds to what purpose, and we then - at a pre-trial conference, my attorney tabled his thoughts that there should be a motivation which should be given to us, so that we could see what the relevance was that was sought to be achieved by calling these witnesses, obviously with the intention and the purpose for us to be able to reply thereto and to place that before the Commission, the Committee, in order to be able to make up its mind and to exercise its discretion.

Now, this wasn't done so the reason why I am mentioning this is my learned friend is quite incorrect when he wishes to convey to you that you could ever have exercised a discretion with full knowledge of all the facts, because you didn't have all the facts before you because we were never given an opportunity to make comment on it, and perhaps if we were, you may have decided not to issue it, but I understand what you are saying.

CHAIRPERSON: Ms Patel, did I sign those subpoenas?

MS PATEL: No, I don't believe you did, Honourable Chairperson.

MR VISSER: That is the point I am making. Now Chairperson, I also take your point that here is the Committee, assuming they did have to exercise a discretion as my learned friend said, here it is faced with a party to the proceedings or an interested party to the proceedings who says "Mr Chairman, you've got to subpoena these witnesses, they are vitally relevant to you in supporting or rejecting, accepting or rejecting the evidence of the applicants", what are you to do? Are you really going to be brave enough to say "no, hang on, I make a decision here on the facts which I haven't heard yet, I am going to make a decision"? No Mr Chairman, what you will do is you will say "all right, issue the subpoena and I will wait until we get to the hearing, I will find out what this case is about and then if it appears to me to be irrelevant, I am going to tell the person who subpoenaed him, to tell me why the witnesses are here", and I believe that that is in line with your line of thinking, Mr Chairman.

Frankly, I haven't got authority here on the proposition, I haven't prepared on it, but because my witness, Mr Coetzee said, "I will come and give evidence, I don't know what I am going to come and do here, but I will come and give evidence, I've got nothing to hide", and it is on that basis, and we have alluded to this before. In fact Chairperson, we would say the taking out of the subpoena may well be an abuse of the process, but we are not going to argue that, and we have intimated to you that we won't, and we stick to that. We are not going to try and set it aside, but if my learned friend, Mr Berger, now wants to come and says "it is your witness, I am going to be able to cross-examine him", then it is becoming a circus, Chairperson, with great respect. Because then who may or who may not cross-examine as you already put?

I am not even sure whether I am going to be able of right, to cross-examine Mr Botha. It depends on what he is going to say, if he involves my clients, yes, certainly, but if he doesn't, Chairperson, well, then I can't cross-examine, we all know that. The only relevant issue to this application which Mr Botha or Mr Coetzee could give evidence on, in our respectful submission, is, whether or not the State Security Council or cabinet or the work committee or parliament or whoever approved or disapproved of this raid afterwards. There is no other issue which occurs to us, which could possibly be relevant. We can support ...

JUDGE KHAMPEPE: Mr Visser, I seem to agree with you with regard to what is the relevant issue which will form the subject matter of this hearing, that is relevant to Mr Pik Botha's evidence today, if he is going to ultimately become a witness, but what is your interpretation of Section 29(1)(c)? Do you think it is the Committee who has to lead that kind of evidence or is it Mr Berger?

MR VISSER: Chairperson, my attorney is of the view, the same view as Mr Hattingh, I am in respectful disagreement. I say that Section 29(c) does not limit in plain words, the questioning ...

CHAIRPERSON: I hope you are not going to ask us to pay you for this opinion then.

MR VISSER: It would be nice Chairperson, to earn some money for a change. Chairperson, it is my submission that where there is no clear indication of the legislature, excluding rights and privileges of parties, it should be taken not to be excluded. The right and the privilege of any party is that he is entitled to legal representation.

Clearly parties are entitled to put their case before a Committee or a Commission through their legal representation. I cannot think of any argument in administrative or constitutional law which will prevent a party from dealing with matters which are put to him through his legal representatives and for that reason, I am not in agreement that it is only the Committee that may ask questions.

In fact we have already been tot he Appellate Division on this very issue in the Du Preez and van Rensburg matter. Any party ...

CHAIRPERSON: What was the decision there?

MR VISSER: Chairperson, broadly speaking, the right of any person who has an interest in the proceedings, has a right to legal representation and they have the right to act fully as legal representatives. That is what the Appellate Division in a 5/0 decision had found.

JUDGE KHAMPEPE: Unless of course, Mr Botha were to accede to being led by Ms Patel, if he doesn't object to Ms Patel leading this kind of evidence.

MR VISSER: That is correct, but then of course Chairperson, we again come to the question which the Chairman has raised, and that frankly is as clear as mud, and that is who may cross-examine him? One may be able to commence by say clearly Mr Berger cannot cross-examine him because he is here at his behest and when you, it is no good for my learned friend, Mr Berger, to say but he is not his client. That is not the case, the test is who is the person that is responsible for bringing that person before Court.

CHAIRPERSON: Mr Berger argues that it is the Commission by virtue of the fact that the Commission at the very least, acted as a conduit for the issue of a subpoena and therefore it is strictly speaking the witness of the Committee. That is what he is arguing.

MR VISSER: Well Chairperson, you cannot have your cake and eat it. If that is the argument, then perhaps Justice Khampepe is correct to say well then in that event, if it is the Commission's witness, then only the Commission may ask him questions and nobody may cross-examine him.

JUDGE KHAMPEPE: Obviously the process would be very unfair if we didn't allow parties to cross-examine, pursuant to a witness called by the Commission, precisely because all the parties have an interest in the subject matter to be considered before the Commission.

MR VISSER: But I am in total agreement with you Chairperson, that is why I say that cannot be the correct argument.

CHAIRPERSON: Whatever the case may be Mr Visser, I can tell you now the issue that I want to decide is whose witness Mr Botha is in relation to establishing who can cross-examine him.

I've got no doubt in my mind that the rest of the representatives have a right to cross-examine him.

MR VISSER: Chairperson, my respectful submission, it is Mr Berger's witness. If you think away the application for these witnesses to be subpoenaed, they wouldn't have been here, and once they are here, they are here simply and solely at the behest of that particular party and unless the witness becomes hostile or some of the other reasons step in, it remains their witness and they may not cross-examine him, Chairperson.

CHAIRPERSON: Mr Visser, can you give me a citation of that case that you ref erred to?

MR VISSER: I will give it to you, I will just look for it and give it to you Chairperson. I may have it somewhere.

CHAIRPERSON: Mr Toweel?

MR TOWEEL: Chairperson, I tend to agree with Mr Visser, or I would like to agree with him, however but I would rather agree with Mr Hattingh.

CHAIRPERSON: Mr Cornelius?

MR CORNELIUS: Thank you Mr Chairman. I think we are compounding this issue unnecessarily. There are three questions that we should ask. Did he exercise a discretion in calling this witness or not, in terms of Section 29(1)(c), the answer is no. Did he apply his mind to the fact that this witness can give relevant evidence or not, the answer is no. What is the position of Ms Patel, she is purely the Evidence Leader and this man is brought here today with a subpoena. The fact is the Commission did not call him, so my attitude is that he is not properly put before this Court, the Commission did not call him, you didn't apply your mind to it, and he shouldn't testify. That is my attitude.

CHAIRPERSON: Are you saying Mr Cornelius, that the Commission was the only party that could have subpoenaed him?

MR CORNELIUS: Well Mr Chairman, if you read Section 29 ...

CHAIRPERSON: In which case, then it was the only way to get him to testify?

MR CORNELIUS: Yes, before the issue of the subpoena, if I read Section 29(1)(c) it is quite clear that the Commission must apply its mind to the fact if this man can give relevant evidence or not. It is not by way of representations made by parties, that was not put before the Commission, so I feel that he is not properly called by the Commission itself.

Although there is a subpoena issued by the Evidence Leader, who is in a position where she should be totally impartial to the presentation of evidence before this Committee, so I cannot see why he should testify.

CHAIRPERSON: Mr Cornelius, I ask you this, if the Commission is of the view that they don't require the evidence of a particular person, whether that decision is correct or not is not the issue, but there is a party to the proceedings who feel well, that particular person is in fact necessary, how would that person then go about ensuring the presence of that witness?

MR CORNELIUS: Thank you Mr Chairman, they must table the evidence properly before the Commission, and all parties must be given the opportunity to do so. Then you can apply your mind to it, and then you can make a ruling over the issue of the subpoena in terms of Section 29(1)(c), that is the way I see the Act.

CHAIRPERSON: And then whose witness is it?

MR CORNELIUS: If you have made a ruling, it is the Committee's witness, you called him in terms of Section 29.

CHAIRPERSON: In which case you are then saying that once the witness is subpoenaed and attends a hearing, all the parties except the Commission and maybe the Evidence Leader, are not entitled to cross-examine that person?

MR CORNELIUS: No, if the Committee calls the specific person to enlighten the procedure or to enlighten certain facts, obviously we would be able to cross-examine him.

CHAIRPERSON: Everybody?

MR CORNELIUS: Yes, then we won't have the situation, Mr Chair ...

CHAIRPERSON: Even the party that motivated it?

MR CORNELIUS: Yes, even the parties who motivated it, then the whole thing will be resolved, Mr Chairman, because at the moment, that is the issue that we have got, we don't know who called him, nobody can really cross-examine him, he is just here with a subpoena which is, I think, an abuse of the process, that has been issued.

CHAIRPERSON: Mr Lamey?

MR LAMEY: Chairperson, I, notwithstanding the provisions of the Act, I would submit that your common law rules of administrative law as well as the provisions of the constitution regarding fair administrative hearing, is applicable here. I think you must decide whether you have exercised the power in terms of Section 29(1)(c) of the Act, in other words you have, that would entail that you must have been of the view that Mr Botha has relevant evidence to give to this Committee, pertaining to the applications and the fair hearing of the applications and a fair hearing to the parties opposing that applications before you.

As I understand you, that discretion could not have been exercised, because, until this morning, we didn't know what Mr Botha had to say, so at the time of the issuing of the subpoena, you could not have exercised a proper discretion in terms of the Act. That bring us ...

CHAIRPERSON: By you you mean the Commission, not the Committee?

MR LAMEY: I mean the Commission, yes. So I see it that Mr Berger is of the view that in the interest of a fair hearing and maybe in the interest of his clients, Mr Botha could give relevant evidence. Whether that evidence is relevant will obviously be decided ultimately and if he gives evidence, which are not relevant, then other parties could object to that evidence.

I see it primarily as a subpoena being issued at the request of Mr Berger representing the parties opposing the applications, and not as a discretion exercised by the Commission at this stage, as it please you Chairperson.

UNIDENTIFIED COUNSEL: May it please you, Mr Chairman. I find myself in accordance with Mr Lamey and Mr Cornelius, I think the matter has to be taken back to whether a proper discretion was exercised, and I think, this in some way also is in accordance with the argument by Mr Visser, that there was no proper execution of the discretion and the question which has to be decided is whether Mr Botha is properly before the Committee today. I would be of the opinion, and this is without proper preparation for argument on this issue, to say that no proper discretion had been exercised as the other parties had no opportunity to respond to the arguments presented by Mr Berger and his instructing attorneys for the subpoena of the witness and I would feel that no discretion being exercised, the subpoena was an abuse of the process and that Mr Botha is under no obligation to be here today then, and to testify.

MR LAMEY: Chairperson, I just want to make something clear, my learned friend has referred to me, I didn't say that the subpoena was an abuse of the process. I just want to make that clear.

CHAIRPERSON: I understood that was his whole - Ms Patel, any argument?

MS PATEL: Thank you Honourable Chairperson, I will be brief. My prima facie view on the matter is that a party who has made a request to the Commission for somebody to be subpoenaed, because we don't have set out rules and regulations, bar what we see in Section 29, it has been the practice of the Commission that when somebody request that, when a party to the proceedings request that a particular person be subpoenaed, that those motivations then be received by us, pursuant to which the subpoenas are then issued.

The only question I think that vexes us here today is whose witness Mr Botha is, so that we decide who is entitled to cross-examine him. My view on that is that the procedure that has been followed to date, in terms of my experience of the process, is that parties who are subpoenaed, are then entitled to legal representation of their choice, it has been standard procedure that all parties, in my experience, who have come to the hearings under a subpoena, have come with their own legal representatives, and have then been led by those legal representatives, who have then also protected their rights in terms of that subpoena. The person would then become that person's witness, and parties are then entitled to cross-examine the person.

Mr Botha has today chosen to come without a legal representative. The argument has been raised that Mr Botha now becomes my witness. I would disagree with that position in as much as he hasn't been called at my behest, he has been called at the behest of a particular party. My view on whether that party who has sent in the motivation, whether he is entitled to cross-examine, my prima facie view is that he would then, he would then definitely be entitled to cross-examine the party to the extent that we sit with a body, with a tribunal, where the criteria that we apply are very different to that in the normal course of events.

The purpose of this tribunal is to ensure that parties have complied with the criteria that is set out in the Act. Parties who then have an interest in this process, are then entitled to call a person who they feel has evidence, or information that is relevant to a proper adjudication of that matter.

In terms of that, should then be entitled to cross-examine if that cross-examination is going to lead us to a position where we are entitled to properly apply our minds as to whether amnesty should be granted or not.

CHAIRPERSON: ... give you the following example. Party A calls witness X, not knowing what witness X can say or is likely to say. But there is a suspicion that that X witness can throw some light onto the matter, obviously party A would like that witness X to give evidence that favours that party. He would hardly be in a position to call another witness to give evidence negative to his case.

Now X comes and gives evidence and indeed gives negative evidence, what is the position of that evidence in respect of party A? Is he stuck with that evidence or is he entitled to challenge that and declare this witness that he called, an incredible witness, not declare, maybe even argue that.

Surely a party cannot be in a position to call the whole world in the hope that somewhere along the line, he would get positive evidence. As I see it, and unless I am persuaded differently, the party at whose behest the witness is being called, is stuck with those answers. In order to be, to accept that, then there can be no room for cross-examination. I don't know, I am putting the proposal to you, I would like to hear your comment. Bear in mind I am going to give Mr Berger a chance to respond and Mr Botha. What is your comment?

MR VISSER: Chairperson, are you calling on Mr Berger to reply now?

CHAIRPERSON: I am putting this example to Ms Patel.

MS PATEL: Honourable Chairperson, I have to say that technically legally, I believe that, or in terms of the common law I guess, Mr Berger would under these circumstances not be entitled to cross-examine. My argument would however be that we are a body of a special nature, the criteria that we apply, are different and so the considerations that we apply to this process, should be different and in the light thereof, my argument would be that he would be entitled to cross-examine.

CHAIRPERSON: As I understand your evidence then is that we are a special kind of Tribunal, and the interest of justice should foremost be served rather than rely on technicalities.

MS PATEL: Absolutely Chairperson.

CHAIRPERSON: Let me ask you this then, let's assume we agree with that, is it open for a party to call all and sundry and have a good scrap and argument with that person if that person doesn't give favourable answers?

MS PATEL: No certainly not, Honourable Chairperson. I think in as much as they say special rules or special considerations need to apply, we are still bound by the rule that whatever is said, needs to be relevant or germane to the hearing and to that extent, parties should be allowed to enquire from the person who has been subpoenaed.

CHAIRPERSON: Is that party stuck with whatever answers he gives or is that party entitled then to say "look, we don't agree with what you are saying here and I put it to you this, that and the other"?

MS PATEL: I believe the party would be entitled to if the basis of the objection to what is being said, or the non-acceptance of what is being said, is properly motivated, yes.

I think the position would be very different, if I in my position as Evidence Leader had motivated personally or in my position rather, in my capacity as Evidence Leader, had motivated for that person to be brought before the Commission.

CHAIRPERSON: You are for all intends and purposes an ordinary party here?

MS PATEL: Absolutely, yes.

CHAIRPERSON: Had the Committee or the Commission subpoenaed Mr Botha, you would have to lead the witness?

MS PATEL: That is correct.

CHAIRPERSON: In this case, it is not the situation and I dare say if we had subpoenaed Mr Botha, you would have to lead him, you would be curtailed from cross-examination?

MS PATEL: Sorry, may I just withdraw my previous response. I would not necessarily have to lead the party that we have then subpoenaed, that subpoenaed party would still be entitled to a legal representative of his choice.

If he chose to use me as a representative of the Commission, that would be then that subpoenaed party's choice, but we wouldn't be entitled to impose my services upon ...(intervention)

CHAIRPERSON: No, I take the point, but if you had led him, you would be curtailed from cross-examination?

MS PATEL: Absolutely. I would then have to protect his interest.

CHAIRPERSON: Correct. Mr Botha, have you got any argument on this? Before, have I given everybody a chance?

MR BOTHA: Honourable Chairperson, thank you very much. If you will allow me, when I received this subpoena I think my anger was comparable to that of the newspaper editors recently because I did nothing wrong.

It is well known even by the applicants here what role I and my department played in the past in matters of this nature. I phoned Ms Patel at the time, and she would testify to that, and objected most strongly and said to her, because I knew how much research this would require and I haven't got staff, two to three weeks of my life now is gone again. Even the company or the attorneys representing one party here, admitted in his motivation that no permission was ever given at government level for that raid. It is there.

I phoned Ms Patel and I said "what is going on here", if you read the minutes of the 20th December State Security Council meeting, it is absolutely beyond any doubt certain that the Security Council did not on 20 December know that a raid had taken place.

CHAIRPERSON: Mr Botha, that what you are telling me now, relates to the merits. What we are busy discussing here now, is your status as a witness. Whether you are a witness such that you can be cross-examined by all the representatives here or whether Mr Berger, who represents the victims of that raid, is also entitled to cross-examine you, or are you a witness that has been called here at that party's behest. That is all I am trying to settle now.

If eventually you are asked to testify, then we can talk about whether you were party to a decision, etc.

MR BOTHA: Yes, of course I respect your guidance, but Mr Chairperson, my only point was that I could still not understand on what basis I was called here.

CHAIRPERSON: You are called here?

MR BOTHA: But now with respect, that it is done, and I had to cancel tremendous appointments and forego medical treatment for shingles, I am here now, for better or worse. I drafted a statement, a sworn statement and as far as I am concerned, I am here, I am ready to answer any questions from any quarters.

MR VISSER: Mr Chairman, would you allow me an indulgence? I am sorry.

CHAIRPERSON: I am just considering this last statement. Mr Botha, I don't know if I am going to rule in this direction, but I need to know something from you. Do I understand your last statement to mean that you don't mind being cross-examined by anybody?

MR BOTHA: No, if you will just allow me to say again I would have preferred not to be here at all, but now that the damage has been done, and I have been thrown to the wolves ...

CHAIRPERSON: I understand you to say that, yes.

MR BOTHA: I am ready to answer any questions from you, the honourable Committee members, the media, the representatives, anybody, anybody.

CHAIRPERSON: And you have come here knowing full well your rights to representation and you have chosen to represent yourself?

MR BOTHA: Yes, well, I simply do not have the means to appoint a legal representative.

CHAIRPERSON: Would you have liked to have had a representative?

MR BOTHA: Not really, because with respect Mr Chairperson, I am an Advocate of the Supreme Court myself and if I ...

CHAIRPERSON: You feel capable of handling it yourself?

MR BOTHA: I think so. I feel at ease.

CHAIRPERSON: I accept what you are saying. Mr Visser ...

MR VISSER: No Chairperson, I just feel constraint to refer you to a section of the Act which may be relevant for purposes of your consideration, and that is Section 31. That also deals with witnesses, and that here deals specifically with the compellability and inadmissibility of incriminating evidence before the Commission. I will read to you (1) and (2) and you can see the relevance. (1) says -

And then (2) says:-

Chairperson, on the point of assuming for a moment a discretion was exercised by the Commission, as the Act says, then it appears that the situation will be that it is the Commission's witness. Of course if such discretion has not been exercised, and I was hoping that we would hear from Ms Patel who signed the subpoena, then of course that changes the whole picture as we have already discussed.

Chairperson, the reference to Du Preez and van Rensburg is 1997 (3) of the SALR, Supreme Court of Appeal, I unfortunately do not have the page number, but I will give it to you as soon as I have it, that is the volume, 1997 (3).

Chairperson, very hesitating this ruling which you are going to give, is obviously also going to affect Gen Coetzee, because he is here on the same basis. I just without wanting to waste any of your time, just alert you to the fact that he appears also to be an implicated person, if one has reference to the written presentations. There are indications that he must have been lying because he wasn't the Commissioner of Police in 1982. It is the question of the 1982 or 1985 thing, yes.

Now in that event Chairperson, and I don't want to take any more time, just to alert you to the fact that in this case, only Section 19 can be relevant and not also Section 29. That would be my argument, because in Section 19, provision is made for applicants, implicated persons and victims and very specific procedures are laid down in Section 19, so Section 29 in my submission won't be relevant as far as he is concerned.

But again Chairperson, I just mention it and I reiterate that we are not opposing or attacking the subpoena at all, at this stage. I just thought I might mention that to you.

CHAIRPERSON: Mr Visser, can I put something to you before I get to Mr Berger seeing that you were the one who made the submission with whom a few other representatives aligned themselves.

Mr Botha has indicated that he is willing, able to answer any questions from wherever whence it comes. Bearing that in mind, is it worth indulging in a ruling now?

MR VISSER: Just as Cassie Bressler used to say "parties can hang themselves as far as he is concerned, by agreement", if this is by agreement, the whole matter really falls away, that is quite correct. But it is not necessarily the statement, the position of Gen Coetzee, but as far as this ...

CHAIRPERSON: I never mentioned Gen Coetzee yet.

MR VISSER: But as far as this witness is concerned, yes.

CHAIRPERSON: If necessary, we will have to go through the same procedure when and if that happens?

MR VISSER: Yes. That does not detract from the fact of course that you will still see to it Chairperson, with respect, that the issues that are going to be raised in cross-examination, are relevant obviously?

CHAIRPERSON: Is here anybody who hasn't read Mr Botha's statement? Nobody? We want to emphasise and preface our ruling with the following first. Our ruling is a matter that should not be regarded as precedence. We are very fortunate in the sense that Mr Botha said he is willing to answer any question from anybody. In those circumstances we choose not to make a ruling, but to allow him to hand in his statement and anybody can then ask him any questions of any type provided that it is relevant to the proceedings of this hearing.

We emphasise it is not a matter to be regarded as precedent and don't quote us at another hearing, please. We may very well later on have to go through this procedure and make a ruling, I am avoiding to make a ruling now, in order to save time and not to be too controversial in the matter. Thank you.

Mr Botha, are you, which language would you feel more comfortable with, it is up to you?

MR BOTHA: Naturally Afrikaans, but I think it will make it easier for all of us ...

CHAIRPERSON: No, I am interested in making it easier for you, nevermind everybody else. You prefer Afrikaans?

MR BOTHA: It is my home language, yes.

ROELF F BOTHA: (sworn states)

CHAIRPERSON: Thank you, you may be seated. Mr Botha, you have been subpoenaed here to this hearing, and you have already made the point that you don't have know why you are here. I must say that I don't know myself, but hopefully we will discover why during the following few minutes.

MS PATEL: Honourable Chairperson, for the record may I state that I am in possession of a properly commissioned ...

CHAIRPERSON: ...(indistinct)

MS PATEL: Yes, and the copies that were sent out, were a copy of the commissioned copy that I ...

CHAIRPERSON: In due course would you hand that up to, for official purposes?

MS PATEL: I will certainly, thank you Honourable Chairperson.

CHAIRPERSON: You are familiar with the contents of this document, you are the one who compiled the document?

MR BOTHA: Yes Chairperson.

CHAIRPERSON: Are there any amendments that you wish to bring to this document or improvements?

MR BOTHA: No.

CHAIRPERSON: Not anything?

MR BOTHA: I have nothing to add or change to the document.

CHAIRPERSON: Do you wish to hand up this document as your evidence in as far as it regards what you think is necessary?

MR BOTHA: Yes, if you would permit me Chairperson, I thought that it would save everybody's time.

CHAIRPERSON: Yes, and we appreciate that.

MR BOTHA: Ms Patel also told me to do so if it was possible for me, but I don't have any staff members, and I worked until late to get this document in order and I only took the oath here this morning with the police and I thought that it would facilitate your task and everybody else's task.

CHAIRPERSON: Yes, and this is the sum total of your evidence regarding this matter as far as you can see?

MR BOTHA: That is correct.

CHAIRPERSON: And you have already indicated that you are prepared to respond to any questions to this document or pertaining to the incident that we are discussing, as far as you have knowledge thereof?

MR BOTHA: That is correct.

CHAIRPERSON: Mr Hattingh, do you have any questions?

MR HATTINGH: Chairperson, ...

CHAIRPERSON: Will we then mark this statement as Exhibit D?

MR HATTINGH: I am still in agreement with Mr Berger, that he ought to commence. It may be that thereafter I might not have any questions.

CHAIRPERSON: Is everybody satisfied that Mr Berger should begin? Mr Berger, are you satisfied to start?

MR BERGER: I have no problem starting. Chairperson, at what time are you going to take the tea adjournment?

CHAIRPERSON: It is a smoke free zone.

MR BERGER: Well, I am a smoke free person, so it is fine.

CROSS-EXAMINATION BY MR BERGER: Mr Botha, my name is Danny Berger, I appear here on instructions of Ms Norval and the firm of attorneys whose letter you have responded to. We act on behalf of all of the victims of the raid on Lesotho on the 19th of December 1985.

I want to ask you some questions about your involvement and your knowledge in the events of the time and I would like to start, I have read your statement, and I will be asking you certain questions surrounding your statement, but I would like to start with a meeting of the State Security Council at which you were present on the 21st of October 1985.

If you want, Mr Botha, you can answer in Afrikaans and I will ask my questions in English. The minute of this meeting appears at page 66 of Bundle 3. I don't know if you have the Bundle in front of you?

MR BOTHA: Yes, to save you time, I have it in front of me and I thoroughly studied it, I know exactly what is in it.

MR BERGER: Now, is it correct that at this meeting of the State Security Council a memorandum was discussed concerning the authority of the South African Army in relation to cross-border operations in Angola, Zambia, Zimbabwe, Mozambique, Botswana, Lesotho and Swaziland?

MR BOTHA: Yes, it is correct.

MR BERGER: And I see that you have a copy of that memorandum as well, in front of you?

MR BOTHA: Correct.

MR BERGER: Chairperson, that is the memorandum which appears at page, starting at page 60 of Bundle 3. Why was it considered necessary to discuss this memorandum at that State Security Council meeting?

CHAIRPERSON: Is that of the 20th?

MR BERGER: The Security Council meeting of the 21st of October 1985.

MR BOTHA: I cannot say exactly why it is necessary, I was not responsible for the agenda of the State Security Council meeting and unless a specific Minister or member of the Council himself or herself wanted to have a matter on the agenda, it was not your business to try and establish or stop others from putting their own agenda items on the agenda. As this is not a matter that fell under me, I do not even know, I just see here Mr Chairperson, at the Work Committee's meeting of 2nd of October 1985, the above-mentioned subject was addressed. I don't know what that Working Committee is, it is definitely not mine.

MR BERGER: The document impinged upon your department and let me refer you immediately to paragraph 3, under the heading "Algemene Riglyne", do you see that? And it says there in the second sentence that in all cases except where there is immediate reaction necessary, it is necessary that the closest possible cooperation beforehand takes place between the South African Defence Force and the Department of Foreign Affairs as well as other interested departments, to ensure that the department and it is referring to your department, its basic responsibility can, it can meet and that the operation on the, can be carried out on the most effective basis, I beg your pardon, so that it can be communicated most effectively to foreign governments and the media and that it can be justified.

So it was decided that your department had to be involved in cross-border operations where the army was involved, except where immediate action was considered necessary, would that be fair?

MR BOTHA: No, it is not correct.

MR BERGER: Why not?

MR BOTHA: Because in paragraph 12 of my affidavit I specifically deal with this matter fully. If the Chairperson wants me to repeat the whole memorandum, then I will continue to do so but I thought as I said earlier, respectfully Mr Chairperson, that I could save time. Now questions are being put to me which were put to me and which I have dealt with fully. If it is the wrong way to do things, then I will explain very properly, but here I have explained it.

As regards Foreign Affairs, it was not required that the department had to approve any operations. The guideline says that there should be the closest cooperation with the department and the Defence Force for the specific purpose of enabling the department, that is my department or used to be mine, to transmit information on the operation effectively to other governments.

The guideline specifically excludes cooperation with Foreign Affairs in cases where an immediate reaction is required. The exception is not limited to hot pursuit actions, the deciding factor is whether immediate action of whatever nature, is required. I cannot recall instances where the department was consulted and approved cross-border activities in advance of such actions. In practice we were informed of such actions an hour or two before it was launched, or while the action was in the process of being implemented.

In all the cases of Defence Force activities, the Chief of the Defence Force, acknowledged a responsibility and held press conferences to explain the justification for the operation. In some cases where we were consulted, we managed to persuade the Defence Force not to go ahead with the planned action in the light of the serious consequences internationally. That is my answer.

CHAIRPERSON: How often, Mr Botha, did you in fact, or your department, persuade the Defence Force or other Forces not to proceed?

MR BOTHA: Yes, thank you for the question Chairperson. May I just say that the memorandum Mr Berger is referring to, that memorandum deals with Defence Force operations, not Police operations. If the Defence Force did not launch the raid, then it is totally irrelevant to refer to that memorandum.

CHAIRPERSON: It only applied to the Defence Force?

MR BOTHA: Only the Defence Force operations, it is in the heading clearly for everyone to read.

CHAIRPERSON: Well, while you are at it, were there instances where you persuaded or the department persuaded let's say the Police Force not to proceed with a planned attack?

MR BOTHA: No. With respect, I cannot recall an incident where the Police asked for approval from Foreign Affairs to undertake cross-border activities.

CHAIRPERSON: Okay.

MR BOTHA: To return to your first question, Chairperson, let me just explain to you how these things would happen. The Chief of the Defence Force would phone the Director General of Foreign Affairs and say "look, can I come and see you", because they would not discuss matters of that nature on the telephone. Everybody was just about tapping everybody at that time.

The Police the Defence Force, the Defence Force National Intelligence, all of them, me, and so it went on all the time. Be that as it may. Then they would meet and then my Director General would report to me, I would then call Gen Malan and we will have a discussion and I will say to him "look, is it really, when you take now the damage that we are going to incur economically, we already have sanctions, it is already difficult, ask the Minister of Finance", the Minister of Finance was my one supporter always in these matters. "Is it now really necessary if I picture to you the consequences, Security Council meeting, additional sanctions, ...(indistinct)" and I must honestly say I have not been in touch with Gen Malan recently, but I can check it out with him if needs be, but it must have been at least on five or six occasions where raids were planned, cross-border raids and where Gen Malan then agreed and called it off.

MR BERGER: Mr Botha, if you would listen to my question, perhaps you wouldn't get so angry with me. My question to you was not about approval, my question to you was about consultation and all I asked if you had listened, was was it agreed that in relation to cross-border operations by the Army, there should be the closest possible cooperation between your department and the Army? Surely the answer to that is yes?

MR BOTHA: No, it isn't that simple. And with respect, I object to the things that Mr Berger is saying here. That is my way of speaking, I mean no offence, why should he attack me Mr Chairperson?

CHAIRPERSON: Just keep the questions straight and to the point please.

MR BERGER: As you please Chairperson.

CHAIRPERSON: Mr Botha, Mr Berger in essence repeated a question and he feels that you haven't dealt with it properly, did you understand the question?

MR BOTHA: Yes. If Mr Berger recalls what I have said, then it is not simply a simple answer to say that there should be the closest cooperation between Foreign Affairs and the Defence Force. Excluded is all action where an immediate reaction is required, and secondly what does it mean "closest cooperation"? It means and it says with a view to being put in the position where the Department of Foreign Affairs could then effectively inform foreign governments of the action. It is with all respect not correct simply to say it should be the closest cooperation.

MR BERGER: Mr Botha, in my first question I excluded hot pursuit, I am looking at the words the closest possible cooperation beforehand between the South African Defence Force and the Department of Foreign Affairs.

Now excluding hot pursuit operations, I think we are in agreement that in order for you as Minister of Foreign Affairs to be in a position to deal with foreign governments and the media, so as to portray South Africa's image in the best possible light from your point of view, you had, your department, had to be informed beforehand by the SADF of their intentions to carry out a raid, to give you room to do your job properly? Is my summary still not correct?

MR BOTHA: That is correct now, except that the exception is not limited to hot pursuit actions. It is clearly stated that any response requiring immediate action, the action is not limited to hot pursuit, it could be of extreme importance to send tonight an aircraft to Gaberone, ...(indistinct) because of some reason, this is now urgently required, and then it is excluded.

MR BERGER: Yes, but if there was a couple of days, if the raid was being planned to take place within a couple of days, then you ought to have been informed, your department ought to have been informed beforehand of the intention to carry out the raid, so that you could be in a position to do your job properly?

MR BOTHA: According to the memorandum, but it didn't happen that way in practice.

MR BERGER: This is what was agreed at the State Security Council meeting, this is how things should have happened, would that be correct?

MR BOTHA: Yes Mr Chairperson, but as with most things in life, that was not a law, it didn't have the sanction of a law. The Defence Force operation area extended beyond the borders of this country, not the Police.

With the result that the Defence Force could do those things legally and the Defence Act did not require the Chief of the Defence Force to consult anybody. Not even the cabinet of this country, could take decisions which ...(indistinct) the Chief of the Defence Force in violation of the Defence Act.

ADV BOSMAN: In simple terms, is it a gentlemen's agreement really, was it a gentlemen's agreement that they would consult?

MR BOTHA: Yes, by and large, that is very well put, thank you.

MR BERGER: Well, Mr Botha, isn't it more than a gentlemen's agreement because let me sketch a scenario which I think was existing at the time. As you have told the Committee you were faced with sanctions, you were faced with all sorts of international pressure, the South African government was regarded as a pariah government, was treated as a pariah government I should say. Your life as Minister of Foreign Affairs was very difficult.

Now given all of those, that situation, if South African Forces were to cross the border and bomb Gaberone as in the example that you have given, and Botswana citizens had been killed in the process, you would have been the person who would have had to take the flack, is that correct?

MR BOTHA: I think the country as a whole suffered as a result of that, but I being Foreign Ministry had to either explain this to the world outside, based then on the facts that would have been supplied to me mostly after the event. To give you Mr Chairperson, one example. On the morning that the Gen Obesanyo, now President of Nigeria, handed to me the ...(indistinct) Persons' Group's negotiating concept in 1986, it was in May 1986, three or four hours before he handed to me that concept, which might have formed the basis of negotiations already then between the government and the ANC, that very morning Gaberone was bombed, Lusaka and Harare, three Commonwealth countries, and that was the end of the negotiating concept.

My Director General, Mr Niel van Heerden, was informed four o'clock that morning that the aircraft were in the air. This is the practice. It is forgotten that the State President was the Commander in Chief and that he certainly was not bound by any of these decisions, because the cabinet decision was the President's decision and the President's decision was the Governor's decision. If a member of the cabinet could not agree with the President's decision, then you had to resign.

I just want to make these things very clear.

MR BERGER: You say in your statement in paragraph 12.3 the last sentence -

Now my question to you is, isn't this guideline paragraph 3 that I have been referring to, isn't, wasn't it tabled and agreed upon so that where possible South African's image internationally from your point of view, would not be made worse, so that if there was a raid for example and you had been informed about it beforehand and grounds of justification had been given to you beforehand, as soon as the raid occurred, you would be in a position to inform the international media and the international community why it had been necessary for the government to take such action?

MR BOTHA: Yes, that was the language of the memorandum. The language of the memorandum wasn't followed. My I Mr Chairperson, with your permission, just ask you mentioned relevance. As this was not a Defence Force action, may I ask what is the relevance of these questions, I don't mind replying to them?

CHAIRPERSON: As I see it, the whole operation of government at that time, and to put it at its lowest, the reluctance of authority to get involved with the decision making of unlawful acts, now yes, it is as I understand it, the issue that we are discussing here, was a Police action, but there were certain Committees, I still don't know to what extent those Committees had teeth because at times they had teeth and at times, they didn't.

I think what Mr Berger is after is to find out to what extent this authoritative Committees would have had a say or otherwise in this event. That is how I understand it, I don't know if I am understanding it correctly, Mr Berger?

MR BERGER: That is correct Chairperson.

CHAIRPERSON: That is why you may see it as a matter pertaining to the Army at the time, it becomes irrelevant as far as the authority is concerned, of this Committee and that is why he is asking you all these questions about it.

MR BOTHA: I appreciate it, but if it was a Police action, this memo would not have applied to the Police, this is the point I am trying to make.

CHAIRPERSON: Well, let me ask you then Mr Botha, maybe to make it easier, I was going to ask you this question at the end of your testimony, why was it that, or let me put it this way, was there a separate set of guidelines similar to these that pertained to Police raids?

MR BOTHA: I do not know. The Police had also their own Act. The Police Act would have described it.

CHAIRPERSON: Now, let's accept that, but you were the Minister of Foreign Affairs, in some way you must have been party to the, if you can call it, the gentlemen's agreement to be informed and to be consulted about proposed cross-border raids? You emphasised that that would have been in the case of the Army. We all know now and a lot of us knew then, that the Police also used to do it. Why would there not be, why would your department not have gone to the Police section and said we want a similar relationship with you as we have with the Army?

MR BOTHA: Mr chairperson, I could not, there was a Minister of Police and a Defence Minister. Foreign Affairs had no law and troops and ...

CHAIRPERSON: No, no, I accept that, but this gentlemen's agreement?

MR BOTHA: So they, in terms of their law, applicable to them, had to make sure, each department that they acted within the framework of the law. Foreign Affairs was put in the envious position that we had to account not only for some activities of the Police and the Defence Force, but also for all things that went wrong in this country and normally we came into the hot water after the event, not before.

As my erstwhile colleague, Mr Vlok, himself testified, in his amnesty application when he was asked but why didn't you consult Pik Botha, he said "but he would have refused". That is the answer, Mr Chairperson.

CHAIRPERSON: As I understand it then, you didn't have as good a relationship with the Minister of Police at the time as you had with the Minister of Defence at the time? At least the Minister of Defence tended to listen to you, he may not have agreed on each occasion, but at least you could talk to him, whereas with the Minister of Police, you seem to have drawn the conclusion that there is no point talking to him, because his attitude was that Pik Botha would have refused? Do I understand you correctly?

MR BOTHA: Not Mr Vlok.

CHAIRPERSON: Well, whoever, the Minister of ...

MR BOTHA: The former person and because he is not with us any more, I would be hesitant to reply because he cannot reply to me, but I can point to a specific incident. The late Mr le Grange phoned me at about three o'clock the morning, one morning, to say to me that there was a plane from the Seychelles on its way to Durban and he now informs me so that Foreign Affairs can deal with it.

I was unfortunately - I lost my temper and used a word that starts with an "f" and said to him that "now we have become the so and so terrorists of Southern Africa". That is just another illustration. In my heart I am convinced that my former colleague knew about the Seychelles, but when it went wrong, I am called three o'clock in the morning.

CHAIRPERSON: Yes, Mr Berger?

MR BERGER: Thank you Chairperson. Mr Botha, I am still on this document, the guidelines, what you call a gentlemen's agreement, paragraph 14 of the document deals specifically with action against Lesotho, at page 64 of Bundle 3.

There a distinction is drawn between those operations which had to be approved in advance by the Chairperson of the State Security Council, being P.W. Botha and those operations which had to be cleared with the Minister of Defence, it would have been Mr Malan, and where necessary in consultation with the Chairperson, Mr Botha. You will see there that there are follow up operations, reconnaissance operations and special operations.

Now again clearly whilst you say legally, according to the Defence Act, the Chief of the Defence Force had the power to launch whatever strikes he considered appropriate or necessary, nevertheless in terms of these guidelines, he had to inform in advance either the Minister of Defence or the State President, depending on what type of operation was being carried out.

My question to you is this, we have heard from Mr van der Merwe that whilst there were these guidelines applicable in relation to South African Defence Force, there were no such guidelines in existence in relation to the South African Police. What I want to ask you is why was that the position?

MR BOTHA: I don't know. I simply don't know.

MR BERGER: Did it not occur to you when these guidelines were being discussed in relation to the Defence Force that you should also have guidelines in relation to the Police?

MR BOTHA: Mr Chairperson, imagine the cabinet and the Minister of Foreign Affairs suddenly objecting in a period of drought, that the Minister of Water Affairs, didn't build enough dams. With respect, why should the Minister of Foreign Affairs, when a memorandum of this nature is submitted by the Defence Force, now insist that a similar one must be done in respect of the Police.

MR BERGER: I will tell you why, Mr Botha and that is because if there is a drought in South Africa because not enough dams were built, that is not going to adversely affect the image of South Africa internationally. In the same way, a cross-border raid by members of the South African Police going into Maseru, massacring people including Lesotho citizens, the fall out that that is going to have on the international image of South Africa, is "vanselfsprekend" to use the Afrikaans words. That is why as Minister of Foreign Affairs, I am asking you why did it never occur to you that there should be a similar gentlemen's agreement in relation to the South African Police?

MR BOTHA: Because the South African Police could only operate in the borders of South Africa whilst the Defence Force could operate within its operation area by law.

CHAIRPERSON: Are you saying that the cabinet, the department, was not aware that the South African Police were sending out troops to perform unlawful activities in foreign countries? They may not have known beforehand, but after the first few, surely they must have known?

MR BOTHA: In the days when we were in Rhodesia, yes, in those days. But the Department of Foreign Affairs accepted and assumed that cross-border operations are undertaken by the Defence Force.

JUDGE KHAMPEPE: Just to make a follow up, Mr Botha, on what the Chair has put to you. As at the 21st of October 1985, was the government seriously not aware that the SAP were involved in cross-border operations? Is that what you are trying to say?

MR BOTHA: We had suspicions, but no proof.

JUDGE KHAMPEPE: And your suspicions were based on what?

MR BOTHA: Your officials in your department talking during tea time or whatever and saying that as I indicated in most cases as I recall it, when the Defence Force undertook an operation, the Chief of the Defence Force announced it, called a press conference and endeavoured to justify it. And then Foreign Affairs from that point, took over to tell our missions abroad this is what Gen Geldenhuys or Gen so and so said, so and so said. Not us, because they had the details.

In the case of the Police, Mr Chairperson, I stand to be corrected but I simply cannot recall incidents where the South African Police undertook cross-border raids of which we were aware.

CHAIRPERSON: ... the suspicion that you talk about, when would those suspicions have come to light?

MR BOTHA: Well, in a case like this one now ...

CHAIRPERSON: No, maybe 1982, 1983, 1985, 1990?

MR BOTHA: You see Chairperson, the 1982 one was a Defence Force one.

CHAIRPERSON: No, I am just asking a date as to when thee suspicions may have come into your mind.

MR BOTHA: In this particular case?

CHAIRPERSON: No, generally?

MR BOTHA: No, but I am using this as an example.

CHAIRPERSON: Yes?

MR BOTHA: Because it was first said that it was the LLA, LLA apparently phoned a reporter and the papers then published the LLA. That is why I am trying to give in my affidavit for you, also a little bit of background according to an article in the Sowetan at the time, of the volatile situation within Lesotho, to indicate to you that it was not that far fetched for anyone to believe that it might have been the LLA.

CHAIRPERSON: That may be so, that is why I am saying stay away from this incident. What I am trying to get at is when did you and or the cabinet of the time, become suspicious that not only did the SA Defence Force commit these raids, but also groupings of the SAP?

MR BOTHA: I really cannot answer that question.

JUDGE KHAMPEPE: Let's try and assist you ...

MR BOTHA: It was a little suspicion that was just about always in our minds.

JUDGE KHAMPEPE: Yes, but as at the 21st of October 1985, had you already become suspicious of the SAP's involvement in such cross-border operations?

MR BOTHA: It is very difficult for me to go back 15 years and to restructure what went on in our minds 15 years ago. I can just remember and also in discussions I have now had with my senior officials of that time, that when a thing like this occurred, there was this suspicion, but in this case we all thought it was the LLA.

I cannot really recall other cases off-hand here, I will have to ...

JUDGE KHAMPEPE: Yes.

MR BOTHA: I will have to study this.

JUDGE KHAMPEPE: Let me tell you why I am asking about the 21st of October 1985. How I understand your evidence is that the reason why you agreed on these guidelines was to portray a very good foreign image of the country and that is why these guidelines were agreed upon.

MR BOTHA: No with respect, 99 percent of the guidelines deal specifically with country by country.

JUDGE KHAMPEPE: Yes.

MR BOTHA: And it is stated categorically that the political responsibility for the activities specified here, will rest either with the State President or the Minister of Defence.

That is 90 percent or more of this guidelines.

JUDGE KHAMPEPE: Yes.

MR BOTHA: As a general guideline, not a specific one, as a general one, it says if I may put it roughly "Defence Force, please in order to make sure that your actions across the borders are conveyed effectively to other governments, you better inform Foreign Affairs of the facts", that is what it really says.

JUDGE KHAMPEPE: Yes, that is right. Yes. That is my point, it was important for you to be well informed in order to present the image of the country that will be more acceptable? That is your department, that is precisely what your department's function is?

MR BOTHA: Yes, I suppose it is just a choice of words.

JUDGE KHAMPEPE: Yes.

MR BOTHA: It is to try to present a case which makes your activity not so bad.

JUDGE KHAMPEPE: Precisely, yes.

CHAIRPERSON: Okay. Mr Botha, to cut a long story short, in an attempt to save time, let's get to the crux of the matter. Preceding this attack, as I understand the evidence thus far, there was a request to your department, to communicate to the authorities of Lesotho indicating to them that "look, Lesotho is being used for an ANC springboard to come into this country to commit all sorts of acts that we find unacceptable, please attend to it and in failure to do so, we will do something ourselves about it". If I further remember correctly, that request came from a member attached to the South African Police and went directly to your department and apparently this communication was dealt with, I am not too sure by telex or by letter or whatever.

At that stage, one would have expected your department to wonder now, what type of action are they talking about? Failure of Lesotho to take action to do something about it, what is the Police going to do about it, are they going to go into Lesotho and bomb up the place or whatever? To that extent, I think your department ought to have known that there are prospects of some international incident failing them taking action against your, or in respect of the complaint.

We also know that letter or communication was made because of that, was it not ever thought that look, if the SAP are going to indulge in this legally or illegally, that we should have a say in the matter because after all at the end of the day, I, Mr Botha, of the Department of Foreign Affairs has to deal with it in the open world.

MR BOTHA: Mr Chairperson, we sent exactly the same messages to Botswana, to Zimbabwe, to Swaziland, to Mozambique. The Department of Foreign Affairs would not in those circumstances suspect that the raid would be launched against Zimbabwe, against Botswana, against Mozambique or the other. We are conveying a concern at the, I was at the CIC meeting of 3 December, there Mr Chairperson, the Police comes to the meeting according to the minutes and say that Lesotho is now a dangerous place, the others are also, but there are now 80 ANC terrorists or whatever, ready to invade, to come across the border.

They say to us that we must tell Lesotho unless they control the ANC, we would act as we feel free. That was not the message we sent. I have it here, the message ...(indistinct), it was not, so we did not comply with the wishes of the Police to use that language at first.

CHAIRPERSON: That may be so, let me just interrupt, whatever message you sent, is not in question here, the point of the matter is that the request that we are going to do something ourselves if you fail to do something, came from the Police? I am suggesting to you that at that stage at least, your Department, I am not saying you, your department ought to have realised that the possibility of cross-border raids committed by the Police, was a possibility.

MR BOTHA: I respectfully differ, Mr Chairperson. Exactly the same information was furnished in respect to the Defence Force expressed great concern regarding security position on the Botswana border. The case of the then Northern Transvaal, several eight or nine landmines exploded, which made the situation almost far more tempting if I may put it that way, to go on a hot pursuit, mission or whatever you want to call it there, because there you had it now, from Lesotho were no people crossing to plant landmines in the Northern Transvaal, they came across the river.

So Mr van Heerden, you will see from the minutes, specifically asked CIC that day whether they cannot help so that we involve Lesotho on a continuous basis in dialogue, secondly he enquired how about the possibility of closing the border entirely or partially. That is an idea I carried forward at the 20th December meeting of the Security Council because CIC felt they could not express themselves on it.

But certainly with respect, in the light of so many potential passions that could break loose, it - I don't think with respect Chairperson, you could have expected Foreign Affairs all by itself, to say to us "well, we better tell Police in advance you don't act".

CHAIRPERSON: No, I am not suggesting that, I am coming to the point as to understanding why a set of guidelines that you were party to and applied to the SADF, was not even thought of or contemplated in respect of the SAP?

MR BOTHA: Mr Chairperson, it was simply not a function of Foreign Affairs. There was a Head of State here, and Ministers acting under laws that prescribed and put the framework within which you had to operate.

It was not for Foreign Affairs to interfere in any other department or anyone, in general during cabinet meetings, and that will be noted, I warned all colleagues when the Minister of Finance returned from America and say that he has been well received by the American Minister of Finance, I warned that eventually bankers won't take the decisions, but governments. I did it on a continuous basis.

MR BERGER: Thank you Chairperson. Mr Botha, I want to just remind you of certain facts. In 1982 the ANC office in London were blown up, in 1982 Ruth First was killed by a parcel bomb, in 1980 Joe Cabi was assassinated in Zimbabwe, in 1984 Jeanette and Katryn Schoon were assassinated in Angola, in 1983 Zweli Nyanda and other ANC operatives were killed in Swaziland. None of those operations or attacks were carried out by the SADF, they were all carried out by the SAP.

Now, wouldn't it be correct to say that by October 1985 not only did you have a suspicion, but either you well knew or you had a very very strong suspicion that the SAP was conducting cross-border raids?

MR BOTHA: Or the South African Defence Force?

MR BERGER: All right, well let's take it and examine that. In none of those instances were you consulted beforehand, would I be correct?

MR BOTHA: Correct.

MR BERGER: In all of those instances, fingers were pointed at the South African government, correct?

MR BOTHA: Yes.

MR BERGER: You had to react as Minister of Foreign Affairs, so you would have gone to you counterpart, the Minister of Defence and said "why, why are these things happening" and he would have said to you "no, no, we are not responsible for that"?

MR BOTHA: No, no, may I just explain? In the cases mentioned by you here now, I did not react, did not try to justify it when it appeared in the newspapers and that is the position.

CHAIRPERSON: That may be so, but did you not go to your counterpart and asked him "look, what is happening?"

MR BOTHA: In some cases, it is very difficult for me, Mr Chairperson, I didn't keep a diary of my discussions with persons on a day to day basis.

CHAIRPERSON: No, I accept that.

MR BOTHA: I remember on occasion I did ask.

MR BERGER: Yes.

CHAIRPERSON: Generally you had to ask in order to prepare yourself for the public official statement from South Africa?

MR BOTHA: Well, to give you an example, either the - is it the COSATU or the, what is this bomb - Khotso House, that one, because it is not so long ago, I vividly remember that during a tea break of the cabinet, Mr Piet du Plessis and myself asked the Minister of Police who did this and his answer was "no one knows". I cannot really do more than that.

JUDGE KHAMPEPE: What seems to be of concern to me, Mr Botha is that in this instance, you had already been approached by the SAP about the response, about the message that they wanted you and your department to send to Lesotho.

MR BOTHA: And others.

JUDGE KHAMPEPE: And others. Now if that is so, obviously after the raid, something must have connected that message.

MR BOTHA: Yes, but they told us when we asked, they denied it completely. The Defence Force denied it. Once they have denied an activity of this nature, there is honestly not much one can do, not today if it happens, not in those times. There is very little a Department of Foreign Affairs can do if the military goes and does something for which the Department of Foreign Affairs is not responsible.

MR BERGER: Mr Botha, didn't you issue a statement after the attack on the ANC offices in London?

MR BOTHA: We denied it.

MR BERGER: You issued a statement, didn't you?

MR BOTHA: Yes, we denied it hotly because we were assured, we were assured by the Defence Minister and the Police Minister, absolutely ...

CHAIRPERSON: Why did you ask the Police Minister if you didn't think they were ...

MR BOTHA: Because the newspapers said they suspected the police and some hundred papers also said that. Then there was also again the same type of confusion, maybe it was the PAC because the PAC and the ANC were a little bit at loggerheads at the time, because of certain events which I will not now submit to you.

Then we were specifically asked when newspapers, either the British newspapers or ours, I specifically then, in a case like that, asked the Minister of Defence, asked the Minister of Police, and they hotly denied it, completely, and then I was convinced it was not us.

Until it is proven, I have no means to do the opposite, I have no means to enquire into the Police Force to find out whether they are telling the truth.

MR BERGER: I take it Mr Botha that you are not aware that the Minister of Police at that time, awarded medals for the London bomb?

MR BOTHA: I am totally unaware of that.

CHAIRPERSON: And the Lesotho attack?

MR BOTHA: Totally unaware. I can assure you that kind of thing would not have been approved at cabinet level or so, I can assure you one hundred percent.

MR BERGER: The medals were awarded by the Minister of Law and Order? You are saying it wouldn't have been approved at cabinet level?

MR BOTHA: Yes, that is ...(indistinct) at the cabinet or at the State President's level. The only medals I know of were those awarded by the State President and they had to go through a process with a committee deciding on the merits of it. That is what ...(indistinct)

MR BERGER: Mr Botha, in paragraph 2.6 on page 2 of your statement, you say the following, you say -

Now, you knew that the Foreign Minister, the acting Foreign Minister of Lesotho wasn't referring to cross-border operations by the SADF where they came in and bombed buildings, you knew that the Foreign Minister was referring to actions, covert operations were being launched from South African into Lesotho where Lesotho citizens were being killed or Lesotho residents were being killed, isn't that what the whole complaint was about?

MR BOTHA: I can't recall meetings that took place 15 years ago, the detail, but what I can recall is that at that time, a lot of assassinations took place inside Lesotho by the LLA. That is correct. Lesotho on occasion thought that we were helping the LLA and assisting them to perpetrate killings and attacks inside Lesotho.

MR BERGER: If that is so, then that was making your job very difficult because here were organisations inside Lesotho carrying out assassinations and yet, you the South African government, were being accused of committing those acts?

MR BOTHA: Yes, Mr Chairperson, that is why I trusted that I wouldn't bore you, I spent the first few pages of my affidavit to try and give an idea of how difficult it was at the time for the Minister of Foreign Affairs. I could not for 24 hours a day go and watch the borders, I can only recall in broad outlines, what happened and as you would see also here, where our representative at the United Nations in his speech there after the Lesotho complaint was heard there, you will see there that we didn't only discuss just that, but the fact of the matter is, as I recall it and as brought out by the article in the Sowetan, there were killings, accusations by Mr ...(indistinct) almost every day, at Mr ...(indistinct) the leader of the LLA and so on.

There were indeed instances where PAC persons were shot and the Lesotho government first denied it and then later admitted it and so on. These were the facts, that was the general atmosphere. Within that atmosphere we had this meeting and at this meeting I suggested to him that we follow this now up with further discussions to try and create a more permanent mechanism or whatever to take care of border security as we have done with Botswana.

The Lesotho government never came back to me on that proposal of mine or that occasion, even after I offered to pay the expenses of such a body.

MR BERGER: Mr Botha, do you concede that the SADF in its cross-border operations at times, went outside the law and beyond the parameters of the Defence Act?

MR BOTHA: Of the Defence Act?

MR BERGER: Yes? Well of the law, of the prevailing South African law that the South African Defence Force acted unlawfully in instances where it conducted cross-border raids?

MR BOTHA: It is with respect Chairperson, very difficult for me to reply to a question of that nature, which will of necessity depend on your interpretation of the Defence Act.

I haven't got it in front of me, but the Defence Act will tell you what they are authorised to do and where. As I indicated, if I recollect correctly the operational area according to the law, was far, far into Africa. From an operational point of view, they could do it. now, what other clauses there are in the Defence Act saying what is their duty, under what circumstances must they act, how to protect the safety and the security of the country, I don't have it in front of me and I won't be able to reply to the question, unless we first have an interpretation of the Defence Act.

MR BERGER: All right, let me ask you this then, I don't want to get side-tracked. Do you, is it your evidence that by October 1985 you had strong suspicions that the South African Police was involving itself in unlawful conduct across the border, the borders of South Africa?

MR BOTHA: Yes, either they or the Defence Force.

MR BERGER: All right.

MR BOTHA: I knew as much as we could read in the newspapers and when there were specific occasions like the ones I pointed out, we would then ask and then get an answer which throughout were denials.

MR BERGER: All right, there were denials, but you had suspicions?

MR BOTHA: Yes. Yes.

MR BERGER: All right. Doesn't it stand to reason that if there were guidelines regulating the conduct of the Defence Force, primarily to ensure that South Africa's image abroad was not more tarnished, that there must have been similar guidelines regulating the conduct of the Police to ensure that South Africa's image was not more tarnished internationally?

MR BOTHA: Mr Chairperson, if by law the Police cannot operate outside the borders of this country, on what basis can I now really insist that I am not party to breaking the law in wanting guidelines for illegal operations?

CHAIRPERSON: Let me ask you this, were you aware of the Police' illegal activities within the country, like murdering people?

MR BOTHA: Suspicions yes. Too many things happened, but in all those cases, it was officially denied. Every time denied. It came as a, to illustrate this, it came to me as the greatest shock when I read in evidence, I think it was given by Maj de Kock or others, that here the cabinet is told by the Police in briefings ...

CHAIRPERSON: ...(indistinct)

MR BOTHA: No, we were for instance told that there at a certain place an arms cache was found.

CHAIRPERSON: This is relayed to cabinet by the Minister of Police?

MR BOTHA: Yes, what happened was we used to receive briefings at Security Council meetings, briefings that were either conducted by the Police or the Defence Force on the security situation in general.

When you get a briefing to the effect that an arms cache was found near Krugersdorp, or Rustenburg, and that the "spore", the tracks were followed to the Botswana border, so they are now in there, and these are then the people who killed an old "oom en tannie op hulle eensame plaas in Swartruggens", then of course one feels emotional about it and then of course one says "all right, we will not object if you go and take out these terrorists in Gaberone", but when you then read later, say Maj de Kock's evidence that one section of the Police took weapons, AK47's and others and put it in the ground themselves in the cache, then another section goes and unearth it and then we are told it is the terrorists, it is not an easy situation to digest.

MR BERGER: Thank you Chair. Given your evidence that you say the South African Police were not allowed to operate beyond the borders of South Africa, what would have been your attitude if you had been told in October 1985 that indeed the South African Police were carrying out covert operations across the border?

MR BOTHA: I would probably have gone to the President of the country and said "look, I have heard this, do you know about it, what is the position, who give guidelines", I would probably have done that. But then on the basis of rather shall we say uncontradictable evidence because the State President didn't like complaints against colleagues.

MR BERGER: Okay. And what ...

CHAIRPERSON: It looks like a lot he didn't like?

MR BERGER: What if the situation had arisen that at a State Security Council meeting a particular raid was reported on and if your colleague or a representative from the Police had - what is the word - "knik"-ed "instemmend", that nothing was said but that this raid has been reported, nine people have been killed and the Minister responsible, if we look at State Security Council meetings, there is the Commissioner of Police is also there, they nodded approvingly and the general consensus around was "yes, we don't have to say anything about it, we know it is us, let's move on and not acknowledge", is that the kind of scenario that you ever experienced in the State Security Council meeting?

Are you getting what I am saying, that there is this unspoken words, no one says it expressly, but the understanding is quite clear that it is us, the less said the better?

MR BOTHA: No, you see in practice sir, I am glad Gen Coetzee is here, Ministers didn't operate on their own, you had a department, a head of a department, Deputy Directors General and then again, again, the whole rank. In cases where we had suspicions, now for instance I would ask my Director General to phone the Commissioner of Police or the Chief of the Defence Force and say to them "look, this reported thing in the papers are going to have serious consequences if it proves to be us. If it is us, you better say it, because I cannot expect my officials abroad to lie", we will rather take the heat of the truth, but you cannot - Mr Chairperson, if there is something that will totally demoralise a diplomat, then it is to expect him to tell a lie knowing he is telling a lie.

It is better, your Foreign Affairs, they were trained that way, must come back, you must tell them, you put them in the firing line, they must know what is the truth and also in this specific case, if you look at the exchanges between Mr van Heerden and Mr Aldridge, our man in New York, you will clearly see how van Heerden is telling him "look man, we are almost convinced it is the LLA. The Defence Force denies it categorically, Police denies it categorically." You are aware of the trouble in the LLA, you are aware of the trouble in Lesotho because soon, in January which proves to you how serious it was, ...(indistinct) was ousted.

So you can imagine how a hot pot that was at that stage and here, with the denials that we received, I can give you this assurance, in my days as Foreign Minister for 17 years, I have not once expected an ambassador of South Africa to tell a lie to an international audience. That was the worst position you could put your official in.

If we were guilty on this side, we would tell it "look man, we are guilty, so you better either put in a kind of reply that will save us" or invite them for an inspection in loco if you want to save time, but you would not expect, as we expected Aldridge to state categorically to the State Security Council and rejected it. If you read the statement of which I quoted here from the United State's ambassador to the United Nations, I respectfully submit that that is a balanced and fair description, because the United States have the best spying organisation in the world and they would have known exactly what goes on there, and they would have told their man there what to say.

That is why you can assume that you as representative, was the best informed.

MR BERGER: Mr Botha ...

CHAIRPERSON: Mr Berger, just give me a chance, I've got an announcement to make if you don't mind. Apparently there are two motor vehicles blocking the entrance to these premises, their registration numbers read as follows: PMJ912T and the second one is DL20333GP. Would those cars kindly be removed? Yes?

MR BERGER: Thank you Chairperson. So Mr Botha, if I understand your evidence correctly, are you saying that no cross-border action by definition, illegal cross-border action by the Police was ever ratified by either the cabinet or the State Security Council?

MR BOTHA: I am certainly not aware of one.

MR BERGER: And when I say ratified, I mean wasn't even ratified by that silent, let's say nothing, acquiesence?

MR BOTHA: Acquiesence? I am not aware of any.

MR BERGER: Now I want to refer you to page 4, paragraph 4 of your statement. The second sentence, you say -

Now, what I want to ask you is Dr L.D. Barnard, I beg your pardon, Dr Barnard was from National Intelligence, Mr N.P., Mr Niel van Heerden, he was an official from your department, is that correct?

MR BOTHA: Correct.

MR BERGER: And he sat on the CIC, the Coordinating Intelligence Committee, is that correct?

MR BOTHA: Correct, not always but sometimes it was another official.

MR BERGER: All right, whatever the position is, at any point in time whenever there was a CIC meeting, there would be representatives from the Department of Foreign Affairs?

MR BOTHA: No. No, I checked it with the officials and they said to me there were occasions that no one from Foreign Affairs attended the meeting.

MR BERGER: Doesn't that defeat the entire object of the CIC meeting, as from the evidence that we have heard the ...

MR BOTHA: I was hardly aware of the existence of CIC, it was to me just one of the dozens and dozens of sub-Committees and only when they would have decided there is something that would seriously have hampered or affected my job, would my official present there, come and report to me and say "you better watch out", and so on.

There were Mr Chairperson, if I could indicate to you the thickness of the documents that had to go into each cabinet meeting, you would not believe me. It was simply impossible to read through the stuff, the sheer bulk of it. I do not know how many dozens of these Committees and minutes and notes, but they with all respect, produced paper work and proposals and suggestions which were never implemented, and this was just as far as I was concerned, one of them.

It was "'n praathuis van 'n klompie amptenare".

MR BERGER: Well, Mr Botha, you refer to the CIC in your statement as one of the organisations that knew of your attitude, your approach at Foreign Affairs and you list it immediately after the State Security Council?

MR BOTHA: Yes, but I also said it had no power, later in my statement.

MR BERGER: Isn't it correct that the CIC was right up there at the top?

MR BOTHA: Where is it?

MR BERGER: And that the Chairperson of the CIC, Dr Barnard, had direct access to the State President?

MR BOTHA: That might be so, but it doesn't mean that the State President would spend much time on the discussions that took place in CIC.

MR BERGER: Let's go to the meeting of the 3rd of December 1985, it is in Bundle 2, page 99. You had two representatives of Foreign Affairs at the meeting, Mr van Heerden and Mr Lotter and that meeting was Chaired by Dr Barnard. At that meeting the specific question of ANC basis in Lesotho was raised, in paragraph 3.2 and the person who makes a report at that meeting, is your own official, Mr van Heerden, paragraph 3.2.1?

He makes this report because Mr van der Merwe tells us that he had asked Foreign Affairs to inform Lesotho urgently about the rising levels of ANC cadres in Lesotho and to tell them, Foreign Affairs must tell Lesotho that if they don't act against these cadres, then South Africa is going to deal with it in a manner that it deems fit. That is why according to Mr van der Merwe, Mr van Heerden makes this report.

Then Mr van Heerden goes on to say that he wants to know what the opinion of the CIC is about whether anything can be done to bring Lesotho into ongoing consultation or discussions. So were you not aware at that time, beginning of December 1985, of what your department was doing in relation to the situation in Lesotho and how your department was interacting with the Security Branch of the Police?

MR BOTHA: Mr Chairperson, of course I was generally, broadly aware. If you have about 100 items that you have to deal with every day of your life, then of course you are aware. Mr van Heerden would report to me exactly what is said here in this minute, that he was attempting to ask CIC to express an opinion on the possible closure of the border as well as sound means to get Lesotho on a continuous basis in a position of dialogue with us.

MR BERGER: Yes, but you were being requested as Foreign Affairs, to inform Lesotho urgently that if they don't deal with the situation, the South African government is going to deal with the situation?

MR BOTHA: I don't think it was put that way.

MR BERGER: No, no. I will get on to what message you transferred.

MR BOTHA: I didn't transfer it, my department did.

MR BERGER: I am sure you take responsibility for your department?

MR BOTHA: Yes.

MR BERGER: The request that was made to you from Security Branch was "please inform the Lesotho government that if they do not take action, we will take action"?

MR BOTHA: Can I read to you the verbatim text of the message sent to Lesotho?

JUDGE KHAMPEPE: Mr Botha ...

CHAIRPERSON: Mr Botha, do you accept that at that meeting at which you were not present, that the request from the Security Police was that the "BS", which is your department, communicate to the authorities of Lesotho indicating to them "look, there are rising problems emanating from your country which form a threat to South Africa, please do something about it. Failing which, we will do something about it ourselves"?

It may not be the exact message that was sent to Lesotho, I think what Mr Berger wants to find out from you is whether you accept that that was the initial request which may or may not have been amended later?

MR BOTHA: That was the request, I say so with respect, in my affidavit.

CHAIRPERSON: That is what he is getting at.

JUDGE KHAMPEPE: Yes, on page 45?

MR BOTHA: I say so.

MR BERGER: And then you go on in your affidavit at paragraph 6.3 to say that you complied with that request? The second line of paragraph 6.3 you say that you complied with the request from the South African Police?

MR BOTHA: Which one is that, if I may ask?

MR BERGER: 6.3?

MR BOTHA: 6.3?

MR BERGER: Yes.

MR BOTHA: Yes, complied to caution Lesotho about the presence of ANC guerillas in Lesotho.

MR BERGER: Yes, and if they don't act, the South African government will act, the Police will act?

MR BOTHA: No, no, I don't say, that is not here.

MR BERGER: That was the request and you complied with the request?

MR BOTHA: Yes, Mr Chairperson, that was the request, but I say here we complied with the request of the Police to caution Lesotho and not to tell them that unless they comply, we will do this and this. I don't say it here, which implies quite clearly that it was not the same message which was sent by Foreign Affairs to Lesotho.

MR BERGER: What was the message that was sent by Foreign Affairs to Lesotho?

MR BOTHA: The department set out various and give certain facts, etc, and then concluded because that is what everybody is interested in with this paragraph -

That is how it concludes -

That is the reply that was sent.

MR BERGER: Could we take a copy of that document?

MR BOTHA: Yes, sure, with pleasure.

MR BERGER: When was that document sent? When was the telex sent?

MR BOTHA: On the 13th of December 1985.

MR BERGER: So you never warned Lesotho that the South African government would take action if they did not comply?

MR BOTHA: No, maybe at a later stage, but we were now dealing with the message of 13 December 1985.

MR BERGER: Well, at any stage prior to the 19th of December, did you warn the government of Lesotho that action would be taken?

MR BOTHA: There were messages now, Lesotho then came back with what we considered to be a rather dismissive reply in this sense that they denied that there were these terrorists, etc and we gave them quite a lot of information here and told them here that our Security people are afraid that some of these activists may cross the border to kill people in South Africa and so on, but we were discussing this first message of 13 December.

MR BERGER: Mr Botha, do you have copies of the reply and then your subsequent telexes to Lesotho?

MR BOTHA: I have this one, but I know from newspaper reports that there were more. It is not impossible that we might have become more firm in later messages. You know, that, but never would we have said that we were going to attack. At most the department would have ended with words like "we reserve the right to react" and so on, but all these documents if I may say so, were circulated at the time at the United Nations, all of it. It would be part of the United Nations' records.

All of this formed the subject of numerous press reports in virtually all our media of the time.

MR BERGER: Were you aware that about three weeks before the attack, on the 20th, that the Lesotho Police had arrested some ANC members?

MR BOTHA: No, I later read it in the papers.

MR BERGER: Have a look then at paragraph 3.2.3 on page 104. This is still the minutes of the CIC meeting of the 3rd of December.

It is recorded there that the CIC is agreed that whatever action is taken against Lesotho or planned against Lesotho, that it should be proceeded by a well planned propaganda programme so that any South African action would be seen by the foreign community as a last resort - thank you Mr Chairperson.

MR BOTHA: Where is that?

MR BERGER: 3.2.3 of the minute.

MR BOTHA: 3.2.3? Yes, what is the question?

MR BERGER: The question is was it reported to you that the Police were, or any South African Security Force was considering an attack on Lesotho if Lesotho didn't deal with the ANC cadres within its borders?

MR BOTHA: No, I was not at that meeting.

MR BERGER: But you had people at that meeting, Mr Botha, who would have reported to you, that is why one delegates?

MR BOTHA: Yes, but with all respect, they did not send these minutes to me, to the Minister. The minutes never came to the Minister, it was the Director General of Foreign Affairs and only if something really important was discussed, would he report to me.

I was not required to read the minutes of 40 sub-Committees, and also not this one.

MR BERGER: And the Director General was Mr van Heerden?

MR BOTHA: Yes, but I consulted him and I say sir, in my affidavit, and he gave me the assurance, he gave me the assurance that as regards his message to Lesotho of the 13th of December and as regards the discussions in CIC that day, that there was not the slightest discussion of a raid against Maseru.

MR BERGER: Not even the possibility of a raid?

MR BOTHA: Not even the possibility. Mr van Heerden is available to give evidence. He attended the meeting, I can only say that is the assurance he gave me, and I mention it under oath in my affidavit.

MR BERGER: Where is Mr van Heerden?

MR BOTHA: He is in Johannesburg.

MR BERGER: Is it your evidence that at no stage prior to the raid, was Foreign Affairs aware of the possibility of a raid on Lesotho?

MR BOTHA: Correct. It is the least that I could expect, the very, very least, particularly after I managed to resolve the crisis with Zimbabwe. There was something that occupied my mind, because it was real.

Those landmine explosions did take place, people were killed, it was serious, and our relations with Zimbabwe were not that good. Right about that time, I involved myself in that meeting with the Swazi Prime Minister, I had to prepare for the ...(indistinct) Persons' Group to come.

As regards Botswana, we didn't think that there was an imminent danger there, but in the Northern Transvaal at that stage, I was very worried that a hot pursuit or cross-border action could take place, and in view of the fact that we informed Lesotho on the 13th of December that here is the ...(indistinct) and I am asking you please reply to my concerns.

They then did reply, on another occasion we replied again and then came this news. On the 20th of December Mr Chairperson, I did not know when I attended the Tuynhuis meeting on that day, that that raid had taken place. My department was never consulted, my department knew nothing about it, or I.

MR BERGER: Mr Botha, Mr van der Merwe has given evidence and he says that by lunch time at least on the 20th of December, nobody could have been ignorant of the raid. In fact my learned friend, Mr Visser, for Mr van der Merwe, produced a newspaper article from a morning paper that morning, an afternoon paper saying that "this morning there was a raid".

Apparently, according to Mr van der Merwe, it was huge news in all the major papers, on all the media, by lunch time that day and also Mr van der Merwe says that South African Intelligence Services were so - in fact he says they were the fifth best in the world at the time, and they wouldn't have had to rely on newspaper reports, they would have known within hours of the attack that such an attack had taken place.

You are saying that by the time the cabinet, the State Security Council meeting ended on the 20th of December, which was I think at about half past three in the afternoon, you had no knowledge whatsoever that the attack had taken place?

MR BOTHA: That is my recollection and I am trying to deal with the question of timing here. According to Maj de Kock's evidence they were back in Ladybrand at about half past two that morning. Then he still made some calls and according to his own evidence, he was not sure at what time he reported to Brig Schoon, he was not sure whether he did it that morning or later.

Whatever that time was, whether it was four or five o'clock the morning, surely Brig Schoon must then sooner or later decide to inform who. In the meantime those of us from the north, had to catch an aircraft at the latest about eight o'clock the morning, to get there, for a meeting at eleven o'clock.

If you look at the minutes of the State Security Council meeting, I once more reiterate that when that meeting started that morning, nobody was aware of that raid.

MR BERGER: All right, let's go to the minute of that meeting, it starts at page 109 of Bundle 2 and indeed paragraph (c) deals with Lesotho and you made a report at that meeting about the warning that you had sent to Lesotho on the 13th of December 1985? Do you have the reference?

MR BOTHA: Yes.

MR BERGER: You are saying that when that was discussed, nobody in the State Security Council knew about the raid?

MR BOTHA: No one. I may add Mr Chairperson, that would have been the appropriate time to discuss it. It is, what is completely incomprehensible that we can have a State Security Council meeting with such a serious event having taken place a few hours earlier, and it is not mentioned at all.

MR BERGER: Would you agree Mr Botha, that those "maatreêls in trappe van intensiteit" which are being discussed diplomatically, negotiations, selective, border controls, sharpening of the border controls, closure of the border, repatriation of workers and cross-border violence, that that would be - it would be nonsensical to talk about that if paragraph 6 had already taken place?

MR BOTHA: Sure, no question about that. If I may just add again, you will notice here that these items which Mr van Heerden could not get CIC to support on the 3rd of December meeting, these are the items that I then submitted to the State Security Council, because I don't need CIC to tell me what to submit. And there they are.

MR BERGER: At this State Security Council meeting, there was a document that was discussed, a document which had been prepared dated the 17th of December 1985, you refer to it in your affidavit.

MR BOTHA: Yes, that is correct.

MR BERGER: Under paragraph 7.3?

MR BOTHA: That is correct.

MR BERGER: That document, if I can refer you to it, it is in Bundle 3.

MR BOTHA: I have it here.

MR BERGER: Yes, it is in Bundle 3, starting at page 77.

MR BOTHA: I have here what they call the "opsomming".

MR BERGER: Yes, it is a document which, there were apparently, it is headed "Geheim" and then it says "Special Situation Report 83/85" dated 17 December 1985?

MR BOTHA: That is correct.

MR BERGER: This was the document which was, there is an "opsomming" and then there are a number of pages, it goes through to page 80. It is three pages plus the summary?

MR BOTHA: Yes, I only have the summary.

MR BERGER: Oh, perhaps you can ...

MR BOTHA: That was your Annexure D.

MR BERGER: Yes, that is so.

MR BOTHA: And this is what I got in your motivation. This is what you forwarded, this is what, I didn't receive it first, I had to ask for it specially.

MR BERGER: Yes, you have all the pages, Mr Botha. Now then, I am just going to go to the summary. The summary records that Lesotho is at the moment the most important guest country for people who are leaving South Africa and joining the ANC. The ANC has about 80 trained soldiers in Lesotho and they are divided into certain units. Then it goes on to describe how the ANC is well placed in Lesotho and then it says and this is the part that I am interested in, the last, the two last sentences, it says -

MR BOTHA: Where is that?

MR BERGER: It is the second last sentence of that summary.

MR BOTHA: Second last sentence?

MR BERGER: Of the summary, the front page.

MR BOTHA: Oh, the first page?

MR BERGER: You see ...

MR BOTHA: Okay, thank you.

MR BERGER: Are you with me?

MR BOTHA: Yes.

MR BERGER: Do you want to just read to yourself the second last sentence which I have just read out.

MR BOTHA: It is all right.

MR BERGER: And then it says this is a summary of what was in the report, it says -

Now, this is the document that you say was discussed at the State Security Council meeting on the 20th of December 1985?

MR BOTHA: No, no, some of the information in it might have been, but I subsequently saw this date, 17 December.