CHAIRPERSON: Good morning everybody. When we finished last Friday, the issue of an interpretation of the Act and what the powers of the Commission was came to the fore. I asked all representatives to have a look at it and perhaps we could work out something. The Panel has looked at it and we've discovered there's some lacunas in the Act, it should have been there it's not there and it is our view at this stage that yes it is only the Committee that can subpoena people but there are very stringent regulations or guidelines attached thereto. Would everybody agree with our interpretation thus far?

MR BERGER: Except for the stringent guidelines.

CHAIRPERSON: I'll give you a chance to argue that, you don't know what the guidelines we refer to yet so you can't disagree with it Mr Berger, not just yet. Our interpretation is that the calling of such witness must be reasonable, necessary and we must be of the view that that witness is able to give relevant information in order to discover the truth and contribute the requirement of full disclosure. Do we agree with that? You see? I told you. And it is our duty to stipulate for what reasons such witness is called and to establish the parameters by which he can be examined and cross-examined. Anybody disagree with that? Okay? So there's no more trouble?

The issue of Mr Barnard was the issue in question and yes we agree there his name was mentioned on a number of occasions. We might add that very flimsily and we have reservations about what he could contribute to this hearing. However, it seems that the Committee is stuck in a cycle because we've allowed it in respect of other witnesses who were subpoenaed and to come as closest to fairness. We're of the view that we should call Mr Barnard but we are of the view that we must really set the parameters by which he can be examined and cross-examined. Anybody want to argue on those parameters? Or let me first ask, are there any objections to that plan of action?

MR VISSER: Chairperson, Visser on record, we agree with everything that you've said this morning, certainly coincides with what our views are on the matter, with respect. The only issue which I want to add now is that if you believe that in the interests of fairness and justice Dr Barnard has to called, then I must point out that there must be more reason for Van Heerden to be called.

CHAIRPERSON: Yes, we'll cross Van Heerden when we come to him, I'm busy with that issue first. I was going to, I intended to give an opportunity to everybody to state who else now that we're about to call all and sundry to name your man but let us deal with this issue first, we can deal with Van Heerden's parameters later. Does everybody agree we must establish the parameters? Is there anybody who would like to argue as to how to go about it but what those should be? I'll tell you as a starting point and maybe we can amend and change and add and whatever.

Briefly, our view, that he should be called to testify on one, whether he can recall a consultation between himself and Mr van der Merwe in respect of the proposed attack in Lesotho in 1985, December. In the event of being able to recall such a consultation or conversation, whether he can tell us if he can remember what they spoke about and the import of such consultation or conversation and in our view that is the sum total of the relevance that he could possibly give. Is there anybody who wants to add to that or amend that or what?

MR BERGER: Yes Chairperson, thank you. In our view the ambit of Dr Barnard's evidence should be widened and he should be questioned on his knowledge of the raid both before and after it occurred because it effects the question of implied authority as well as ratification which are issues that are pertinent to Mr van der Merwe's application.

CHAIRPERSON: Is there evidence to the effect that the institution on which Mr Barnard was Chairman perhaps ratified after the event?

MR BERGER: No, Mr van der Merwe's evidence was a lot wider, his evidence was to the effect that after the raid he got no feedback from any institution, either the CIC or the State Security Council or the cabinet or any Minister to the effect that what he had done was wrong and did not carry the approval of the government. Now Dr Barnard, the evidence has been, had a direct line to P W Botha and so his evidence of what he knew both before and after the raid and whether there was any implied authority or ratification is directly relevant to Mr van der Merwe's application. What I would suggest, Chairperson, ...(intervention)

CHAIRPERSON: In his personal capacity or as chairman of CIC?

There's no suggestion that CIC ratified it?

MR BERGER: No, but there's a suggestion that Mr van der Merwe's - because it was first a meeting, now it's become an informal discussion with relevant role players and Chairperson, what we would suggest is to make the terms of the subpoena wider than you originally envisaged to the extent that it covers what I've argued but that the Committee retains the discretion to disallow certain questions should they be deemed irrelevant because ...(intervention)

CHAIRPERSON: But Mr Berger, we can't play that kind of game here because if we allow a wide berth then we've committed ourselves, we're duty bound to curtail it in terms of the subpoena.

JUDGE KHAMPEPE: Mr Berger, even the truth that at least for purposes of for our decision the evidence before us is that CIC had no authority to authorise such a raid firstly.

MR BERGER: That is so.

JUDGE KHAMPEPE: Secondly, for purposes of us deciding whether Mr van der Merwe qualifies for amnesty or not, whether CIC authorised or not, is not an issue that we can be able to determine because according to Mr van der Merwe's own evidence, CIC did not have such an authority. They couldn't therefore have ratified whatever decision that he had already taken. Now what would be the relevance of widening the terms of reference to include what we have submitted before us?

MR BERGER: Because Judge, it's not a question of legal ratification because everyone has agreed that nobody had a power in law to give Mr van der Merwe authority and that's not the authority that I understand Mr van der Merwe is referring to when he says he had implied authority. The authority that I understand him to be referring to when he says he had implied authority is that the significant role players, people who sat of the significant institutions of States such as the CIC. Mr Coetzee, for example, told us on Friday that although the CIC did not have the capacity to authorise any conduct the CIC was important because of the personalities who sat on the CIC and as I understood Mr van der Merwe's evidence, his evidence too was that he didn't go off on the raid on a frolic of his own, he made sure that he got the approval, if not the express approval, then the tacit approval of significant role players?

CHAIRPERSON: Is that so Mr Berger? I understood his evidence to say look he didn't need approval, he had capacity himself to make that decision? I don't know, maybe I misunderstood his evidence but that's how I understood it?

MR BERGER: Chairperson, he says it within the context of "I deemed it necessary to bounce it off" (he doesn't use those words) but to "bounce it off certain significant role players." The evidence of course in context is that he takes Mr de Kock's motivation. It's so urgent, one has to look at it in the context that it happened, it's so urgent that there's no time for Mr de Kock's report to be typed up. He takes that report with him to a meeting of the CIC or to the gathering of certain of the members of the CIC so that he can discuss the proposed raid with them and his evidence now is that there was no opposition to the raid and he took that to be approval, not that he needed it in law but he took it that the significant role players where acquiescing in his conduct and also he says "I would have expected Dr Barnard to have taken that information if he deemed it necessary to P W Botha." So the question is there are two possibilities as I see it. Either Mr van der Merwe is telling the truth and the information went all the way to the top in which case he had implied authority or he is not telling the truth, he never canvassed it with anyone, ...(intervention)

CHAIRPERSON: It doesn't say so, it doesn't say that he did, it says he may have.

JUDGE KHAMPEPE: That he does.

CHAIRPERSON: What?

MR BERGER: No Chairperson, he says he did.

JUDGE KHAMPEPE: Yes, the only problem for you, Mr Berger, is that at this stage we don't know whether Mr Barnard was one of those people whom he consulted?

CHAIRPERSON: That's what I'm talking about, I'm sorry. He can't identify with whom he spoke or bounced it off.

MR BERGER: Well Chairperson, my learned friend Mr Visser said on Friday that his argument would be that it was either Dr Barnard or Mr van Heerden and he initially said that the most probable person would have been Dr Barnard but he corrected it because he didn't mean to say that and he said the most probable person would be Mr van Heerden and I agree with my learned friend on this point, probably the only time we've ever agreed and that is that Mr van Heerden too should be subpoenaed to give evidence because at the end of the day, you the Committee have to be satisfied that the applicants have made full disclosure and here we have a very limited pool of people, two possible candidates with whom Mr van der Merwe could have spoken and they can come and tell us he spoke with us or he didn't.

CHAIRPERSON: ...(inaudible) to convert that unstable bit of evidence into hard facts. I know maybe Mr Visser has made the same mistake. He said probably it's one of two people if not both. We must remember that the evidence of Mr van der Merwe whose evidence far outweighs what you people think, both of you. Is that yes, he did bounce it off? He's not sure with whom. Initially we thought it was an official meeting. He is not even sure if it was an official meeting, he tends to believe it was an informal meeting or conversation with certain crucial people. Now we can't convert that into hard facts and argue as if that is the evidence that it must have been Van Heerden or what's the other guy, Barnard, because if both of them come to tell us "we don't even recall such, it didn't happen, not with us", then where do we stand? We will be stuck with what they tell us on that score, isn't it?

MR BERGER: Well Chairperson, that will be a significant piece of evidence because ...(intervention)

CHAIRPERSON: That maybe has it's own merits, that kind of answer. I'm saying just let us be careful not to convert Mr van der Merwe's evidence for the purposes of your various arguments into hard facts as if that was the evidence. We're all of us speculating because of the nature of Mr van der Merwe's evidence.

MR BERGER: Indeed Chairperson, but she shouldn't and I'm not suggesting that it's been done but Mr van der Merwe's evidence about whether it was a formal meeting or whether it was an informal meeting is evidence that's going to have to be assessed because there's other evidence from Mr Schoon for example that he always understood it to be a CIC meeting and there's evidence from Mr de Kock at least in his written application that Mr van der Merwe was on his way to a CIC meeting so everybody at that stage understood it to be a CIC meeting, it's only now that we get told that it might not have been a CIC meeting.

CHAIRPERSON: ...(inaudible) have to throw a spanner in your argument because probably I will accept it as your argument on that score because that's the evidence and impression evidence but how about Mr van der Merwe telling all and sundry "I'm going to a CIC meeting" which is a half truth because he is only going to meet the CIC people who can be trusted with the information he was about to give to them and not the whole of the CIC lot? It's a possibility, he didn't testify that but I mean the interpretation of his statement to whomsoever can be interpreted like that.

MR BERGER: Isn't the only question it would appear as if both Mr van der Merwe and Mr Barnard and Mr van Heerden's evidence is relevant? Whatever evidence they give can then be assessed. It's just a question of how wide does the cross-examination go and there's Section 34 of the Act, gives you certain powers, particularly Section 34(ii) which said that:

So once Dr Barnard and Mr van Heerden have been subpoenaed we've debated the ambit of their evidence, if it appears that I'm going too wide or I'm taking too long or any of my learned friends are taking too long, you have the power to stop us?

CHAIRPERSON: That limitation is in addition to those that I've already mentioned.

JUDGE KHAMPEPE: Yes in terms of Section 31. Shouldn't we have first regard to Section 31, the limitations which are included therein which is reasonable necessity and relevance and justification?

MR BERGER: Judge Khampepe, those limitations only relate to answers which might tend to incriminate a witness.

JUDGE KHAMPEPE: Yes.

MR BERGER: It's only answers, it's only those answers. If Dr Barnard will be able to give evidence one suspects are on a great many relevant issues which will not necessarily tend to incriminate him, it's only in relation to answers which tend to incriminate him that the requirements of reasonableness and justification in an open and democratic society come to the ...(intervention)

CHAIRPERSON: How is he brought into this hearing, by virtue of what Van der Merwe and others said about him, it's all coincidental and the same issue? He was chairman of CIC, I think that's common cause and there was apparently a discussion, formal or otherwise with certain members or the full CIC. There's no certainty about who was present at that discussion. Now if that is the only, if we accept that is the only way he is brought into this hearing, it stands to reason that's the only relevance his evidence would have to this hearing. It is the text book example of how to restrict cross-examination, isn't it? It should only be on that score, do you agree?

MR BERGER: Without excepting his mere say so as the final word, yes.

CHAIRPERSON: What basis can you say if he comes and says look, it may be that I was party to such a discussion, I can't recall it and I can't tell you what was said. Are we not stuck with that answer?

MR BERGER: With respect not because one can then work backwards from when he found out about the raid, was he shocked, did he know about it beforehand? If he wasn't shocked then maybe he suspected it or he was informed. One can work backwards, there are lots of ways in which one can test a witness on. He says "I don't recall that particular meeting", then one can go from different angles. Obviously angles that are relevant but the reasonableness and justifiable in an open and democratic society test only arises when a question is put to Dr Barnard or any particular witness and he says "I refuse to answer that question on the grounds that it may tend to incriminate me". It's only then that Section 31(ii) comes into play.

JUDGE KHAMPEPE: Mr Berger, I agree with you with regard to your interpretation of Section 31, it deals pertinently with persons who are likely to incriminate themselves and that will come into being obviously after the Committee has also applied it's mind on the possibility of that person having to incriminate himself or herself. But that being so, Section 29 requires that we allow a person to be subpoenaed if his evidence is going to be relevant and material to the subject matter which we have to determine with regard to issues of amnesty. That of necessity requires that their evidence should not be a duplication of what has already been before this Committee. Therefore it becomes necessary evidence and it becomes reasonable evidence that must be led before the Committee.

MR BERGER: Judge, it's evidence, it's questions which are relevant to the subject matter so there's no prohibition on duplicating evidence that's already been read. The whole point of calling Dr Barnard is to test the evidence of Mr van der Merwe because if there's no other evidence, relevant evidence placed before you then the only way one can challenge the evidence of Mr van der Merwe is to say that he contradicted himself or his answers are so improbable that they cannot be believed but if they are weighed against other evidence which is credible and relevant then his evidence has to be seen in a different light so it's essential to a determination of whether or not Mr van der Merwe has made full disclosure to get the people that he refers to, whether concretely or vaguely, to get them to come along and either confirm or deny what he says and if they come along and confirm what he says so be it. We're not here to ambush, as I've said from the outset my instructions throughout from my clients have been, get to the bottom of this, we want the truth to come out. If that means that the applicants get amnesty as a result so be it but we want the truth to come out and if Mr van Heerden and Mr Barnard have relevant evidence let them come and say what they know because otherwise those questions are never going to be answered.

CHAIRPERSON: Mr Berger, can you define relevance for us please in this specific - I'm not putting you to a test or any bounds, I just want to understand what you understand by relevance?

MR BERGER: Relevant evidence is evidence that has prohibitive value, in other words evidence that can usefully be used to assess other evidence so that the Committee can come to findings of fact which are correct. This is not akin to a civil trial where each side presents it's own evidence and then the court makes a finding on the available evidence. This is akin to an inquest where there's a search for the truth and any evidence that will assist in a search for the truth which has prohibitive value in that search is in my submission relevant evidence and the key issue here is a question of authority, express or implied and ratification, express or implied. That is Mr van der Merwe's case.

CHAIRPERSON: Well Mr Berger, listen to my proposition to you and see whether you agree with it. Relevance has many meanings depending on the context in which it's used. In this particular case calling Mr Barnard and or Mr van Heerden is relevant to the degree that they or mentioned in evidence from Mr van der Merwe not in my view relevant to all the facts of the case or of the hearing and I want to put this proposition to you that calling both of them or either of them, the relevance in calling them to testify would be to check on how they were mentioned by Van der Merwe and others and I have already said that coincidentally they were all - both were mentioned in the same context by all those who mentioned them. I don't know if it extends to all the relevant aspects that we've heard in this hearing like for example can he be - and I'm not asking, this is not an invitation, can he be asked about these guidelines?

MR BERGER: Yes.

CHAIRPERSON: Precisely. Therefore I'm asking you let us determine or let us discuss the definition of relevance in this context. You are asking us or you asked us to consider subpoenaing him because he was mentioned by Van der Merwe as being a person who was possibly consulted with and or met with and had prior knowledge of the proposed attack. Now you yourself say that you want to test Van der Merwe's credibility and one of the ways you can do it is by calling Van Heerden and Barnard to testify on this specific issue. Now if that is the relevance of their testimony to check or to test Van der Merwe's credibility on that issue of whether he had a consultative meeting or otherwise, then isn't that the ambit of the testimony?

MR BERGER: Chairperson, with respect, it goes further and that is because Mr van der Merwe is saying that he had implied authority to do what he did. One question is who did he consult with, who did he talk to and there they can say yes it was me or no, it wasn't. But the other question is ...(intervention)

CHAIRPERSON: What if both of them or either of them say no, then what?

MR BERGER: Then I'll argue at the end of the case what weight you can attach to Mr van der Merwe's evidence but it goes beyond that because we know independently of Mr van der Merwe, we know from the minutes which are now common cause that Dr Barnard was the Director General of Intelligence and Mr van Heerden was the Director General of Foreign Affairs and we know that the Police in the person of Mr van der Merwe had asked Foreign Affairs in the person of the Director General, Mr van Heerden to urgently inform Lesotho of this threat within their borders and to tell them that if they didn't take action South Africa was going to deal with the situation in the way that it deemed fit. Now to suggest that Mr van Heerden would not have relevant evidence to give in relation to this raid would be to ignore what he did with this information and how events played themselves out after this. He was told to warn Lesotho that if you don't act we are going to act and then the police act so what happened before the raid and what happened after the raid as far as Mr van Heerden is concerned and whether he conveyed that to his political master, Mr Botha, is relevant to whether or not there was authority for this raid. I'm not talking about legal authority but whether there was approval for the raid which is what Mr van der Merwe relies and then he also relies on some unwritten understanding within the Police and Foreign Affairs and the government and all the significant role players. He mentioned CIC, he mentioned the State Security Council, he mentioned the cabinet, there was this understanding that he was empowered to do what he did, either before the event or after the event. Now surely the Director General of Foreign Affairs and the Director General of Intelligence who had a direct line to the State President can tell us what they know about this raid before, during and after and on the basis of that evidence we can assess whether there was this implied authority and whether there was this implied ratification, it's directly relevant to the issues that you the Committee have to be satisfied on?

JUDGE KHAMPEPE: That being so, Mr Berger, what would you suggest should be the exact terms of reference with regard to Mr Barnard, let's start with Mr Barnard?

MR BERGER: That he should be subpoenaed to come and give evidence before this Commission on his knowledge of all relevant events before, during and after the raid on Maseru on the 19/20th December 1985.

CHAIRPERSON: So you're actually telling us now that the reason you would like Barnard to come testify and be open to cross-examination is not only the issue of whether Van der Merwe had a meeting with him or not?

MR BERGER: That is so.

CHAIRPERSON: That was before ...(indistinct). Okay, we've heard you.

...(inaudible)

CHAIRPERSON: Is there anybody who has got objections with that suggestion?

MR BERGER: Chairperson, Visser on record. Perhaps I should just make my position clear, I don't act for either Mr Barnard or Mr van Heerden and whatever I say must not be taken to be in defense of these two gentlemen. I can tell you first of all that it is General van der Merwe's view that if they came, if they were subpoenaed, he'd also prefer them to answer questions on all issues and not be restricted but that is going to depend on what these two gentlemen are going to be advised by their own legal advisors.

CHAIRPERSON: We will cross that bridge.

MR VISSER: Yes, so that's the point I'm trying to ...(intervention)

CHAIRPERSON: I'm just talking about the limitations.

MR VISSER: But that's directly relevant to the brief as it were that you're going to stipulate in your subpoena, Chairperson. One must bear that in mind. They're not here and they're not represented to come and argue to you that they should or they should not be asked on one or other question but if I may deal and just very briefly with the whole basis as it now appears that Mr Berger is arguing for this wide brief if I may call it that, it appears first of all that the whole purpose is to attempt to discredit the evidence of General van der Merwe.

CHAIRPERSON: So I thought.

MR VISSER: And with respect, Chairperson, isn't Judge Khampepe absolutely spot on with her questions? What do you need to decide on in order to grant amnesty for General van der Merwe? Assuming these two gentlemen came and this is the question you asked of my learned friend and they denied all knowledge.

CHAIRPERSON: Or they don't remember it.

MR VISSER: Let's take the worst case scenario. They say "we remember that very well and we tell you know it never happened." How does that effect Van der Merwe who says that Schoon says "I was on my way to a CIC meeting", this is supported in an indirect way by De Kock. "I, in my position, would never have at that stage being a junior officer that I was and second-in-command of the security branch, would never have taken this decision on my own bearing in mind the sensitive relations which were at play at the time between South Africa and Lesotho. I can't remember" and you've pointed this out on more than one occasion to my learned friend. Van der Merwe's evidence goes not further as "I can't remember but I think it must have happened." You put to my learned friend it probably happened or words to that effect but he says it must have happened. Now assuming those two gentlemen ...(intervention)

CHAIRPERSON: Are you saying I was correct, because I thought I was persuaded that I wasn't correct?

MR VISSER: You were absolutely correct, that's Van der Merwe's evidence, he says "I don't remember but Chairperson, he says that it must have happened and he gave you the reasons and the considerations which he in his mind has taken into account to come to the probable answer, "I must have spoken at least to some of the people." What I ...(intervention)

JUDGE KHAMPEPE: Mr Visser, I don't recall his evidence to be saying he doesn't remember if he did, it must have happened, I thought his evidence was that it did happen?

MR VISSER: No, no with great respect, that was never his testimony. His testimony, the golden thread here is "in this particular incident my memory is vague, I can't remember". He gave you the evidence of what he could remember but when it came to the question of discussing it with members of the CIC or a CIC meeting, his evidence was very clear, I can't remember but if you ask me today what I think happened I say, if you look at his probabilities "I think I must have spoken to them."

Now my question is just in taking Judge Khampepe's argument a step further, the question that she asked was this, what happens if Van Heerden and Barnard come and they deny it? How does that make Van der Merwe a liar, how does that infringe on his credibility? It doesn't, Chairperson, that's the first point.

The second point is how does it effect your deliberations and considerations as to whether he should obtain amnesty or not? In the Cosatu House case the matter was dealt with and there the suggestion was made by Mr de Kock that the State President had given the authorisation. That was denied by Vlok and Van der Merwe and Brigadier Schoon. The amnesty committee in that decision of theirs in the Cosatu House case came to the conclusion that they rather leave the question unresolved and then they specifically found that fact, namely whether or not somebody higher up gave authority is not such a material fact so as to stand in the way of granting amnesty. Well, if that is so, this Committee will have to decide whether they disagree, whether they think that that was an entirely incorrect approach or not? We submit that's the correct approach, it's just one of the facts which have to be placed in the basket when considering whether an applicant has made full disclosure. Now Chairperson, my learned friend has now based the whole argument on the question of implied authority and in doing so he has restricted the meaning and application of applied authority in Section 22(f) to what the legislature never intended because if that interpretation which my learned friend places on implied authority is correct it means that nobody could ever - and the Honourable Chairperson has already taken the point - then the person who takes the decision if there's nobody above that can give him authority can never apply for amnesty or obtain amnesty and we know, Chairperson, in many instances before all of you, amnesty applications have been heard when somebody along the line took a decision. Here General van der Merwe's evidence is "I took the decision". It would be very easy for him to rely on an authority but he doesn't do that. He doesn't do that, he says "I took the decision". So in order to answer to give the correct answer to the question of Judge Khampepe was in most ...(intervention)

CHAIRPERSON: Well how easy would it have been with people only having suspicions?

MR VISSER: I beg your pardon, Chairperson?

CHAIRPERSON: How easy would it have been for him to say I got authority from so and so higher up because those fellows seem to be denying everything. ...(inaudible) have suspicions?

MR VISSER: Chairperson, yes and no. We know that from day one there has been a refusal to admit being accomplices to what had been going on in the country. We only have to refer to evidence that has been received by the Human Rights Violations Committee to know that, on many occasions but in my respectful submission and in answer to your question, history has shown that where there was a case where authority came from higher up, particularly as far as General van der Merwe is concerned, he wasn't afraid to say so. He did say so. Whether that was going to be, in fact it was denied by the State President in the Cosatu House case - no, that's in the Khotso House case, I'm sorry, not in the Cosatu House. The Khotso House case where Van der Merwe came onto the witness stand and did exactly what you are now putting to me, he said the State President gave this authority and it was denied. So in other words, to answer your question, Chairperson, if you assume credibility and honesty on the part of the witness then Chairperson, this issue really doesn't come into play and the application of Van der Merwe must be adjudicated on his evidence and he takes it no further than to say I can't remember but it must have happened.

CHAIRPERSON: So you're arguing, calling either of those witnesses or both is not necessary?

MR VISSER: I already gave notice on Friday, Chairperson, that that is our view. Whether they now come and tell you whatever, it's just not going to make - the only thing it may prove if they deny it is that they're also covering for themselves but they may come and admit it, I don't know and Van Heerden must come and admit that somebody from the security branch spoke to him on or before, shortly before the 13th December, we know that from Mr Botha's evidence. He has already conceded that. So at least that Van Heerden must come and concede which is direct corroboration for the evidence of Van der Merwe that he must have spoken to somebody. We say Chairperson, that we leave it entirely in your hands but really, ...(intervention)

CHAIRPERSON: I take what you say, I've heard what you've said, have you any comments on the suggested terms of reference if you want to call it?

MR VISSER: I was just coming to that to wrap up Chairperson. In our respectful submission may we just raise one further issue before I do that? We are now in the process of considering calling witnesses where it is clear that there must be minutes floating around somewhere, there must be minutes of the Secretariat of the State Security Council other than the ones that we've got here, there's certainly must be minutes of CIC. I can tell you that in the evidence of Dr Neil Barnard before the Human Rights Violations Commission in December 1997, he says:

And then he goes on to say:

Now Chairperson, we would like to make the suggestion that perhaps the Investigation Unit ...(intervention)

CHAIRPERSON: No Mr Visser, where are these minutes?

MR VISSER: Pardon?

CHAIRPERSON: Where are the minutes?

MR VISSER: Chairperson, if we had control over them we would have been able to tell you but ...(intervention)

CHAIRPERSON: It doesn't help to answer that way, Mr Visser. In that letter - or you read from a letter or a document which says there exists a complete set of minutes of the CIC. It is there. Where?

MR VISSER: That was the evidence of Dr Barnard before the Human Rights Violations Committee and what you must bear in mind, Chairperson, is at this stage of the proceedings a person like General van der Merwe has no access to official documentation. He can't walk in at police headquarters and say listen here, I want to go through your files, I want to look for minutes but the Investigation Unit of this Committee has that power and we were urgently and seriously asked for the Investigation Unit to attempt to find minutes, Chairperson, because it may be that in the next minute of the CIC, or one of them, there may be a reference to this and with great respect, Chairperson, I'll tell you now what Barnard's going to say. He's going to come and say, he's going to come and say "give me the minutes and I'll tell you, I can't remember" because he's already said that to the Human Rights Violations Committee when asked about this specific incident and perhaps it might be of some help if you looked at his evidence, there's only a page and a half which is relevant to this particular incident, the Lesotho incident.

Chairperson, but coming then to your question, on the evidence as it stands at the moment, I find myself in complete agreement with what you suggested. These two gentlemen must be called to come and answer whether there was a discussion that they can remember between Van der Merwe and either one or both of them and what the context of that discussion was in relation to what we now know was the raid of the 20th December. It can go no further than that but General van der Merwe, I say again, says that he's got absolutely no problem if they asked about anything Mr Berger suggested they should be asked about.

My submission to you is that you must exercise your discretion on issuing the subpoena in a judicial fashion and merely because witnesses wish a witness to be subpoenaed to give certain evidence does not necessarily have to exercise your minds in exercising the discretion. You must do so judicially and judicial exercise of that discretion will mean here is the evidence which has been led, what is relevant on that evidence and I issue a subpoena on that basis, that would be a judicial ...(intervention)

CHAIRPERSON: Mr Berger argues in his extended reasons for now wanting those two gentlemen to come and testify, that over and above the fact that they are possibly in a position to comment on whether that meeting took place or not and if they can remember the contents of that meeting was, is that this reliance on implied authority - I must say I didn't understand Mr van der Merwe to emphasise that, but in any event even if I've misunderstood the impact of his evidence, what do you say about this definition of relevance that included in the evidence that at least Barnard can give, is the existence or the justification for this implied authority for Van der Merwe?

MR VISSER: Chairperson, with respect, that's not Van der Merwe's case before you, you are absolutely correct, he doesn't rely on implied authority, not at all, in that sense in that narrow sense. Chairperson, the implied authority with which Amnesty Committees have worked thus far is a very wide concept, it's a concept which in terms of the decision in the Cronje case was stated to be that which policemen were led to believe they were expected to do because of what politician's said - we gave you examples of Malan's speeches in parliament, of what they thought they were expected to do on behalf of the government to support the government's power base to - and Van der Merwe also gave evidence, to create a holding action for a political settlement to be eventually agreed upon. It is a very, very wide concept and I don't want to argue this now, we will again refer to it at the end of the day, but insofar as it may be relevant now. Chairperson, as far as that implied authority is concerned, I was just wondering whether there isn't authority on that point, but the issue also does not stop only with whether there was objectively implied authority or not because Section 22(f) deals with the reasonable belief of a person that there was, so it's not necessary to prove as my learned friend would have it that there in fact objectively was an implied authority. That's not a test which the Act places on that concept at all.

CHAIRPERSON: Assuming that it was his evidence from where would this implied authority have come from in this case?

MR VISSER: Well that's exactly the point, one must now start asking yourself that question and presumably he could have obtained authority from the Commissioner of Police or from his Minister and as far as Van der Merwe's concerned it would have stopped probably with the Commissioner of Police because he told you that he didn't have access to the State President, he certainly didn't have cession on the State Security Council, he didn't give evidence about the Minister. But let's assume he might have gone to the Minister if he wanted authority, an order?

CHAIRPERSON: That would have been direct authority, I'm talking about this implied authority.

MR VISSER: Well we submit Chairperson that again that the implied authority which the legislature had in mind and which has been applied by amnesty committee's does not confine itself to a person giving you an order. It is an implied authority because of circumstances which existed and pertained during the struggle of the past and as perceived by individuals, that is the implied authority.

CHAIRPERSON: But wouldn't Mr Berger be correct therefore, Mr Visser, by saying that such implied authority must have emanated from certain government structures like the CIC and the SSC?

MR VISSER: Well we know it couldn't have emanated from CIC and perhaps I should ...(intervention)

CHAIRPERSON: Why not?

MR VISSER: Because the evidence is that they had no authority to do so, Van der Merwe gave that evidence.

CHAIRPERSON: Well let's examine that Mr Visser, now. They were all involved in illegal activities. The question of authority as far as I'm concerned when they're embarking on illegal activities is irrelevant?

MR VISSER: Yes of course.

CHAIRPERSON: So CIC could in any event have sanctioned an illegal act?

MR VISSER: Yes.

CHAIRPERSON: If that was their policy?

MR VISSER: Yes I follow your argument.

CHAIRPERSON: So what Mr Botha testified last week I don't attach too much to but look, we deny authority because CIC didn't have authority to do that. Nobody had authority to do it.

MR VISSER: Absolutely, absolutely. No, from that point of view, from a practical point of view you are of course absolutely correct. Neither could Van der Merwe ever have given this order legally. No, absolutely. But now from a point of view of official administration on their books or on their brief they wouldn't have had authority to do anything else except to coordinate information.

CHAIRPERSON: Isn't there something to be said not as far as relevance is concerned but as far as authority is concerned in what Mr Berger submitted, that it could possibly the implied authority or his belief that he had implied authority could possibly have emanated from CIC or any institution above him, right?

MR VISSER: Chairperson, I just want to reiterate, I'm not opposing the issue.

CHAIRPERSON: I accept that.

MR VISSER: We're just dealing with terms of reference now. My client says to me that he is quite happy on the basis that Mr Berger has put it to you. My only submission to you is that it's still for the Committee to exercise it's discretion on all the facts of the case and what I'm saying is the facts as you placed them before us today in my submission are correct. I take it no further than that.

CHAIRPERSON: Comment on that before we adjourn? We want to adjourn to discuss this and make a ruling at the end of the day. We want to adjourn in order to discuss this as a Panel and to inform you during the course of the day, it's 11 o'clock now, hopefully by 2 o'clock we can tell you but I'd like to see all representatives in call it chambers right now please because we've got to work out the logistics for the future. We also thought that Mr Coetzee could be finished today before we adjourned for a period. Are there any objections to that?

MR BERGER: No, in fact I was going to ask because Mr Coetzee asked me on Friday whether he would be finished today.

CHAIRPERSON: Would you prefer to finish Mr Coetzee now and then adjourn to consider this other issue?

MR VISSER: Chairperson yes, we would certainly prefer that, yes.

CHAIRPERSON: Who was at the wicket last. Mr Berger?

WILLEM HELM JOHANNES COETZEE: (s.u.o.)

CROSS-EXAMINATION BY MR BERGER: (cont)

Thank you Chairperson.

Mr Coetzee, do you recall when you gave evidence in the application, well in the only application that you're applying for amnesty, the London Bomb application, you gave evidence to the following effect. You said that but for the London Bomb you never authorised or approved of any illegal conduct on the part of any of your policemen?

GEN COETZEE: Yes I would have said so Honourable Chairperson.

MR BERGER: And in fact you went further and you said that if you had ever become aware that either before or after the commission of an unlawful act by any of your policemen you would have ensured that such policemen were prosecuted to the full extent of the law?

GEN COETZEE: That is what I said Honourable Chairperson and that is what I did. I never said that by means of inferences and so forth I would have been aware of cases of unlawful action or at least I mentioned the three monkey syndrome, that we would not be in the position where we said we didn't know about anything, we didn't say anything, we didn't hear anything because that was also said during the context of that evidence.

MR BERGER: Well am I incorrect when I summarised your evidence to the effect that you never approved of illegal conduct on the part of your men and women?

GEN COETZEE: I never gave orders before such action. Two policemen, for them to act unlawfully except in that case for which I requested amnesty and knew that the minister and the government and the Commissioner and myself had the authority to have the deed committed for which I gave the order. According to the law we were not however capable of doing this.

MR BERGER: No, Mr Coetzee, let me put it to you then and if you dispute it I will get the evidence. Your evidence during the London Bomb application was that - let's take it in stages, you never but for the London bomb because that you've applied for amnesty for that, but for the London bomb, you never authorised the commission of illegal conduct on the part of any of your policemen?

GEN COETZEE: Never before it happened.

MR BERGER: Right, your evidence went further and you said you never ...(intervention)

CHAIRPERSON: Just hold on Mr Berger. What was put to you, Mr Coetzee, as that with the exception of the London bomb incident, you never gave permission to any member of the police to do something wrong, full stop. We're not referring to the period subsequent to the incident, this is your evidence in that regard?

GEN COETZEE: My evidence with regard to that case is that I never gave an illegal order to a policeman, that is my evidence in a nutshell.

CHAIRPERSON: That is a curious difference. The statement to you was that your evidence during the London bomb hearing was that with the exception of that particular case you never gave any of your members permission to commit unlawful actions?

GEN COETZEE: Yes that is correct.

MR BERGER: You will recall during your cross-examination by Mr Bizos that a whole host of crimes were brought to your attention, crimes that were committed either during your term as head of the security branch or during your term as Commissioner of Police and you denied any knowledge of them at the time?

GEN COETZEE: That is correct, Chairperson, Mr Bizos did put certain incidents to me which took place during my period of tenure which were unlawful and he wanted to know whether or not I was aware of such incidents and my response was, which he later wrote in his book, my response was that I would have to be confronted with a particular incident in order to be capable by means of documentary evidence and enquiry to determine what precisely I knew about it.

MR BERGER: And in relation to each one of the incidents that he particularised you said you had no knowledge of those incidents, do you remember that?

GEN COETZEE: Well at this stage I cannot say that it is so but I would accept it as such.

MR BERGER: And you went further and you said that during your term of office as head of the security branch or as Commissioner of Police - and of Commissioner of Police - you were not aware of any unlawful conduct on the part of any of your policemen?

GEN COETZEE: Yes I said so, I knew of cases where I acted where I had persons charged where for example I had persons from Vlakplaas charged when they committed crimes of which I was aware. There were other persons who killed persons during interrogation whom I had charged in the courts of this country when I was aware of it.

MR BERGER: Indeed your evidence was expressly "if I had become aware of any unlawful conduct on the part of any of my policemen I would have ensured that they were prosecuted to the full extent of the law."

GEN COETZEE: Insofar, obviously, as it was within my power to do that.

MR BERGER: Indeed. In other words you were saying you would not have swept unlawful conduct under the carpet.

GEN COETZEE: That is correct.

MR BERGER: Now why did you do that in this case?

GEN COETZEE: Honourable Chairperson, the first point that I must emphasise and that I have already testified about is that before the incident I was completely unaware of it. There was no authorisation and I could not issue such legal authorisation and it was not requested from me. That is the first point.

The second point is that when I became aware of it when I was informed verbally in terms of the Police Act of that time I did what the Act told me as Commissioner to do according to the prescription of the Minister of Law and Order, I went to him and said "Sir, this is what I have been told, this is what has been said to me". This officer states that he was in a situation of emergency, this officer states that he informed interested parties and for him as the Minister who had to have the final say it was his responsibility to tell me "listen, this is illegal we will have to place this officer on trial, you'll have to conduct a criminal investigation but I cannot speak on behalf of him but he could of thought that he had access to the minister of justice and that he also had access to the legal advisors to the State, not I and never again discussed it with me or gave any orders. Indeed there was a process during which not only he made the decisions which was also entrenched in the law and in legal regulations, he gave these persons medals therefore I didn't ratify or condone anything in the law, that I did not have any authority over. I did precisely what my act, the Police Act prescribed to me to do.

MR BERGER: Well let me unpack what you've said. Are you saying that when you were briefed by Mr van der Merwe after the fact of the operation, the attack, you were of the view that a crime had been committed?

GEN COETZEE: No, I'm not saying that. I haven't said that.

CHAIRPERSON: But Mr Coetzee, you must have known. If you received a thorough report you must have known that a murder or murders had been committed?

GEN COETZEE: But it could have been Honourable Chairperson that as it was presented to me it appeared to be a situation of emergency that the officer perceived it as such and this is the message that I conveyed to the Minister as the Act required of me to do.

CHAIRPERSON: So it may have been, according to you, that the incident was one of emergency.

GEN COETZEE: Yes it is possible, I'm not saying that it is a probability but it is also possible that it was the type of crime which was committed abroad where I didn't have any jurisdiction and I had to allow myself to be led under those circumstances by the relevant Act, the Police Act and I had to inform my Minister and that is what I did.

CHAIRPERSON: Well let me ask you, I don't know how far it goes or what the relevance is but let me just ask, at least you must have realised that whatever was done would boil down to a conspiracy in South Africa among those involved?

GEN COETZEE: Yes, yes Chairperson, including Mr van der Merwe who gave you the report. Yes, that they had made a joint decision about this, that there was some form of a conspiracy.

CHAIRPERSON: Then why didn't you act as the Commissioner at that stage?

GEN COETZEE: But Chairperson, at that stage I only heard about it subsequent to the incident, after the incident and at that stage I had not conveyed my approval to him but told him very clearly that I would necessarily have to take this matter to the Minister.

MR BERGER: Thank you. Mr Coetzee, Mr van der Merwe says in his amnesty application at page 103 of bundle 1, he says that according to a memo submitted in this regard, this is in connection with the raid, General Coetzee was fully aware of all the circumstances relating to this incident. Do you agree that that is correct?

GEN COETZEE: This is what he says but it refers to the memorandum which after the incident on the 13th January was submitted to me with regard to the awarding of medals and the discussion that he had with me when he came to inform me.

MR BERGER: Let's start there. After the fact you were fully informed and you were fully aware of all the circumstances relating to this incident?

GEN COETZEE: I've already stated this.

MR BERGER: After the fact?

GEN COETZEE: After the incident, in other words when I returned from leave and this would have been approximately before the weekend of the 10th January because I think that the memorandum was issued on the 13th, General van der Merwe came to inform me and I then went to inform the Minister and then a memorandum followed stating that I had been informed.

MR BERGER: The point I'm making, Mr Coetzee, is that in January of 1986 you were fully aware of all the circumstances relating to the incident, is that correct?

GEN COETZEE: Yes I wouldn't think that that would mean, Mr Berger, the operational aspects pertaining thereto but that I would have been aware of what General van der Merwe had told me and what I had told the Minister and if I have to rely on my memory where I've given you the basic components or elements, I was aware of it.

MR BERGER: You were aware of January 1986 that a conspiracy had been formed within South Africa to commit murder in Lesotho?

GEN COETZEE: Chairperson, I have already stated that I do not wish to end up in semantic confusion and will maintain that if it was a murder and if it is argued as such then it was a political murder. The same as that which Mr Slovo had admitted to the South Africa Public, a political murder.

MR VISSER: Mr Chairperson, I don't want to interrupt but I would be failing in my duty if I didn't place on record that it would appear, Chairperson, that none of the questions asked this morning seem to have any relevance to the application for amnesty before you? It seems to be an attack on this witness, either on his credibility or to show that he was criminally liable in this incident which has nothing to do with what we're busy with.

CHAIRPERSON: Mr Visser, if you look at Van der Merwe's application it will become clear where this line of questioning is going. Proceed, Mr Berger?

MR BERGER: Thank you Chairperson. I don't know why you refer to Mr Slovo, I don't know what the relevance of that is but ...(intervention)

GEN COETZEE: I am sorry, I just want to state ...(intervention)

CHAIRPERSON: Just carry on with the relevant stuff please?

MR BERGER: The point of my question is, is that by January 1986 you were aware that certain of your members, including Mr van der Merwe, had been party to a conspiracy to murder which had been formed in South Africa to be carried out in Lesotho, you were aware of that?

GEN COETZEE: I was informed as such.

CHAIRPERSON: It is actually an admission which was made to you, by Van der Merwe, he was part of that?

GEN COETZEE: Yes he informed me with his apologies and his viewpoints he came to inform me.

MR BERGER: And that conspiracy could have been the basis for a prosecution for murder in South Africa, you knew that in January 1986?

MR VISSER: We deny that that is so Mr Chairperson. It's an incorrect legal submission that is made to the witness. How could that ever have been murder in South Africa?

MR BERGER: Conspiracy to murder is a crime in South African law?

CHAIRPERSON: No, you omitted to say conspiracy when you made the proposition. You may have intended it but you didn't.

MR VISSER: Chairperson and what is more there's decision of the Supreme Court, Justice Hartzenberg in the Mouton case - in the Basson case, I'm sorry, to say that that was not a conspiracy within South Africa if the crime is committed in another country so my learned friend is incorrect in his legal statement to the witness or at ...(intervention)

CHAIRPERSON: Just for your information I don't feel bound by that decision.

MR BERGER: Mr Coetzee, in January of 1986 you didn't have the benefit of his Lordship Mr Justice Hartzenberg's decision in the Basson case. In January of 1986 were you or were you not of the view that a crime had been committed by amongst others, Mr van der Merwe?

GEN COETZEE: Honourable Chairperson, at that stage when I was informed I would most certainly have considered as one of the possibilities that this could constitute a crime in South Africa, I would most certainly have considered that but in terms of my act I had to consult my Minister with regard to such an event. My Minister clearly possessed the expertise, he was an Advocate, he also had access to the State legal advisors, he also had access to the Minister who served with him in the cabinet and he had access to the State President. He should have told me, he should have given me an order because my act said in the final analysis that according to his prescriptions he would have to guide me in such an incident, in such an obvious incident, what I had to do.

MR BERGER: What section of the Police Act are you referring to?

GEN COETZEE: I'm referring to the Police Act 1958, Act No. 7 of 1958 and Section 4.1 that said:

MR BERGER: So you never had the power to institute disciplinary action against Mr van der Merwe or any of his men unless the Minister of Law and Order concurred?

GEN COETZEE: Honourable Chairperson, on Friday I had already responded to this sort of point that I would have been surprised if I had gone to the Minister and told him "Minister, this is what has happened but these persons, these particular persons who are involved state that they were acting out of defence against persons who were on their way to South Africa to commit murders in South Africa before the festive season" and that the government and he would have had to take responsibility for the trial of a man who would have stated in that public trial "this is why I acted". That was my precise motivation, my motive and now the State would be charging such a man who, in a certain sense, had indeed preserved or rescued the peace and quiet in South Africa and in a certain sense had observed the Police Act in that it stated that it was his duty to preserve peace and quiet in South Africa and to prevent the disruption of security in South Africa. I said that I would have been surprised but he could have done it, the onus rested upon him.

MR BERGER: You see, Mr Coetzee, that wasn't my question. My question was did you as Commissioner of Police have the power without consulting the Minister of Police to institute disciplinary action against those of your men whom you believed had committed a crime. Did you have that power or did you not?

CHAIRPERSON: Mr Berger, aside from what the witness interprets the Act, would it not be more correct to formulate the question or the proposition that would he not be compelled, being the Commissioner of Police to refer this matter to the Attorney General because when you talk of disciplinary action it may in certain circumstances talk about internal punishment of some sort but if you are talking about a person being in the position of the witness, having to do his duty as a citizen in particular being the Commissioner of the Police, then is that what you intend to ask, why didn't he refer it to the prosecuting authorities?

MR BERGER: Thank you Chairperson, yes.

CHAIRPERSON: Is that what you intended?

MR BERGER: There are two aspects to my question but I'll take that one first.

GEN COETZEE: Chairperson, I would have in any case before I could have done so I would have informed the Minister of the sensitive matter because I was of the opinion that disciplinary action had to be taken because he in the final analysis with regard to a senior officer had to be approved by him and I had to go to him any way.

MR BERGER: And a reference to the Attorney General? You also had to go to the Minister before you could refer a matter to the Attorney General.

GEN COETZEE: I would have thought that in practice I would not have gone to the Attorney General if I had known that the Minister who regularly consulted his cabinet members and not necessarily informed me about it that he would speak to the Chief of the Attorney General, the Minister. So I in such a sensitive incident, I would not have gone and said without the Minister and gone to the Attorney General and said "Mr Attorney General there is a confidential matter that I would like to take up with you without my Minister's knowledge.

MR BERGER: So then to go back to your evidence in the London Bomb application, would it be fair to say now that if you ever became aware of criminal conduct on the part of any of your men you would have instituted disciplinary proceedings either internally or through the office of the Attorney General against them only after you had obtained approval therefore from your Minister?

GEN COETZEE: No, it is not as simple as that, Chairperson. Another facet of this matter is in January of this year I was informed about it for the first time. January of this year, January 2000.

MR BERGER: It's the first time you were aware?

GEN COETZEE: That is correct.

MR BERGER: Of what?

GEN COETZEE: That General van der Merwe alleges that he had informed me in 1985 with regard to the Lesotho incident. So when I gave evidence in the London Bomb incident I would not have known of this incident.

MR BERGER: When you ...(intervention)

CHAIRPERSON: Did I hear you correctly, when was the first time in January that you heard of it?

GEN COETZEE: I was on my way in my car with regard to other cases from Graaff-Reinet to Pretoria, the legal advisor might be able to recall the date.

CHAIRPERSON: Of what year?

GEN COETZEE: Of this year.

CHAIRPERSON: Is this the first time that you heard of it?

GEN COETZEE: That is correct, that I was informed by the legal advisor, the attorney, who contacted me on my cellular telephone and told me that he would like to discuss another matter with me and then he informed me that in the amnesty investigation of General van der Merwe there is an allegation that I had been informed fully after the incident and that I had taken certain steps with regard to the award of decorations.

CHAIRPERSON: So in January in 1986 you did not know the facts of this attack?

GEN COETZEE: It was never discussed with me after this incident. Chairperson, what had happened was that, I refer to the amnesty application, what happened in January 1986 I was informed but the fact that there was an amnesty investigation I only heard this year.

CHAIRPERSON: Oh.

MR BERGER: But if you didn't know until January of this year 2000 how can you now testify to a conversation that you had with the Minister of Law and Order in January of 1986?

GEN COETZEE: Because I recall the discussion with General van der Merwe, he came to see me in my office and immediately thereafter I went to the Minister and informed him about it and then the process with regard to the medals took place.

MR BERGER: You say when you gave evidence in the London Bomb application you had forgotten about this incident.

GEN COETZEE: Yes entirely correct.

MR BERGER: And if you had remembered you would have given different evidence about never having approved illegal conduct on behalf of your men?

GEN COETZEE: No Chairperson, I said that I do not know, up to today after various discussions with various legal representatives, whether in these circumstances if it was necessarily a crime.

MR BERGER: And the only reason that now remember all the facts of what happened at that time is because Mr van der Merwe has jogged your memory in the year 2000?

GEN COETZEE: Yes when for example when this document was drawn up by me for the Truth Commission initially and I was asked with regard to the Lesotho incidents I cannot recall what was asked wither it was '82 or '86 but I had placed it in writing, my involvement in the '82 incident, in other words I did not recall then that in 1985 incident I also had some involvement.

MR BERGER: You see, Mr Coetzee, isn't it that the evidence you're now giving is really based on what Mr van der Merwe told you happened at the time, you don't have an independent recollection of what happened at the time?

GEN COETZEE: No and the memorandum that has been submitted.

MR BERGER: Which memorandum now?

GEN COETZEE: The memorandum of which the original had to go to the Minister with regard to the medals.

MR BERGER: Besides what's written there and besides what Mr van der Merwe has told you, you don't have an independent recollection?

GEN COETZEE: No, after I said: "General, I came to see you and you were informed" and if that is so then I would accept it.

MR BERGER: And if he had come to you and said "General, remember I discussed this raid with you before the attack and you said if the circumstances are so urgent, go ahead. In fact, General, you gave me permission to go ahead with the raid."

GEN COETZEE: No, I was entirely unaware up to the time that I went on vacation of the absolute urgency of how the matter had developed. What I had known was I would say almost the normal threat that was imminent from the ANC soldiers in Lesotho.

MR BERGER: My point is this if Mr van der Merwe had come to you now in the year 2000 and had said "General, - I know you don't remember it but think back, I discussed with you the urgent intelligence that we had received and I discussed with you the need to go and attack ANC bases in Lesotho, it was when you were on holiday on the south coast, do you remember that General?" You said "Do what you think is necessary." If he's said that to you now, could you dispute that?

GEN COETZEE: Yes, because I would not have given him that authority, I did not have the powers legally or by implication to give such authority without at least at that stage, if I had gone to the Minister and said such a discussion was held with me or such a proposal was put to me. I did not do it. When the matter came to a head I was away from the office.

MR BERGER: Well if you didn't have authority to sanction such a raid, how could Mr van der Merwe have sanctioned such a raid? What authority did he have to sanction such a raid?

GEN COETZEE: Honourable Chairperson, no-one - and I have said this in speeches to police members, from the State President, from the parliament of this country, the Commissioner, the Minister, no-one has the legal power to authorise an unlawful illegal act.

CHAIRPERSON: That is good to hear, Mr Coetzee, but we do not refer to legal action. Many-a-time I have heard evidence of persons who said that they received such and such an instruction to act unlawfully, and Mr van der Merwe gave evidence here that he had felt that he had the right to continue with this attack and the question to you is about that. We are not discussing legal power, we refer to the powers of persons in rank who could have felt or could have said that they had the power and the right to do certain unlawful things. That is what it is about.

GEN COETZEE: Chairperson, I have not studied every amnesty application.

CHAIRPERSON: I understand.

GEN COETZEE: I did not attend it. But my general impression is, Chairperson, that they had decided on their own, knowing that they were not authorised. And that is the motivation for their application for amnesty.

CHAIRPERSON: No, Mr Coetzee, Mr de Kock's application reads that he had received an instruction from Mr Schoon and Mr Schoon says that he had held discussions with Mr van der Merwe. I don't know whether Mr van der Merwe gave him an instruction or whether they jointly decided or whatever the case may be, but when van der Merwe gave evidence he said he felt that he had the power and the right to continue under these circumstances and he took this decision. He had gone looking for you, or he had thought about contacting you in order to describe the circumstances to you, but unfortunately he says you were on vacation at Margate or somewhere on the south coast and he did not deem it necessary to find anyone else. He says somebody acting in your office was someone by the name of de Wit, at that time. Now you say that you did not feel that you had the right and the power to do it. Considering those circumstances may I ask you once again - exclude the Act because everything that the police had done with regard to murder during those years was illegal, we all know that, could he have thought - this is van der Merwe, that he was authorised to continue, that he had the authority from somewhere?

GEN COETZEE: Definitely, Chairperson. He could have thought that even in accordance with the Act per se he had acted illegally, that he was authorised to do so under the circumstances.

CHAIRPERSON: Would you have felt that you were authorised under the circumstances?

GEN COETZEE: I was not confronted by such a decision. If I think about it, Chairperson, then I have to place myself in the entire milieux and the entire context that had reigned at that time and under those circumstances, as it has been sketched to me, then and where his discussion had joggled me and that I now autonomously recall, I would most probably have taken the same decision.

CHAIRPERSON: On what basis, that you would also have thought that you were authorised to take such a decision?

GEN COETZEE: Chairperson, I would like to stick to what is relevant, I do not want to drag up all types of examples here, but I was Chief of Security and I was confronted with an instruction from the Minister who pretended that he had spoken on behalf of he government. That is the evidence I gave in the London bomb. And it is clear that an unlawful instruction was given to me, I knew it, the Minister knew it and my subordinates knew it. But nevertheless, I went against the advice of the then Commissioner who became involved against his better judgement and for all practical reasons, nevertheless I went and executed and had that instruction executed. Those were the circumstances that reigned during that time, Chairperson, and those were the circumstances which were certainly interpreted as such by Gen van der Merwe when he decided that he would give the instruction.

MR BERGER: You had been approached by Mr van der Merwe shortly before the raid and he given you the information which he subsequently gave you after the raid. Obviously excluding the information that people had been killed. But you know what I'm saying. If he had given you the justification which you gave you after the raid, if he had given you that justification before the raid, would you had given him the go-ahead?

GEN COETZEE: Honourable Chairperson, that is a hypothetical question, you have to concede that. I can only with the knowledge that I think that I had then and the clear knowledge or information that he would have conveyed to me, I would have had to made a decision. There is a possibility, I'm not saying a possibility, that soon before, it might be a day or two and the other options of which I as a Commissioner had to be aware of, we could go in and bomb we could get the army to launch an attack which, Chairperson, which in my experience in 1982 was quite a fiasco where 40 persons were killed, including women and children. I could have considered South Africa's economic position, its international position. So all those things had to be thought of in ...(indistinct) position to each other and there exists a possibility.

CHAIRPERSON: Mr Coetzee, we do not want to interrupt you ...(intervention)

GEN COETZEE: That I would have said yes, go ahead.

MR BERGER: Now Mr Coetzee, you've given a long explanation ...(intervention)

CHAIRPERSON: Mr Berger, I think we got the answer at the end of the day.

MR BERGER: Yes, Chairperson, but the answer is predicated upon if this were the position and that were the position. The fact of the matter is we know exactly what the position was from your point of view, because in January of 1986, having been given all the information, all the relevant information that you speak about, you approved of the raid, did you not?

GEN COETZEE: No, Chairperson, what I had done, I executed the step that the Act had prescribed to me. I had to inform my Minister, I had to rely on his prescriptions and his instructions.

MR BERGER: If you have a look at Mr van der Merwe's statement, Exhibit A, the very last page which is the medal memorandum.

CHAIRPERSON: What exhibit is that?

MR BERGER: Exhibit A.

This is one of the documents that you rely on to refresh your memory, and there it is noted that the recommendation that Mr van der Merwe put together, was approved by the Generals Staff on the 21st of January 1986, and it also had the approval of - I can't make it out but it's the organisation that you were the head of - Compol.

GEN COETZEE: Compol. It's the abbreviation for the Commissioner of Police.

MR BERGER: Yes. So this also had the approval of the Commissioner of Police.

GEN COETZEE: Not at all. You are interpreting it incorrectly.

MR BERGER: You gave approval but you decided that the South African Police Silver Cross for Bravery should be awarded instead of the award which Mr van der Merwe was proposing and which had been approved by the Generals Staff, which is the South African Police Star for Outstanding Service. That's what happened, isn't it?

GEN COETZEE: No, Chairperson, the position as to how you should interpret it is that Mr van der Merwe held discussions with me, I went and conveyed this to the Minister verbally, I then had Gen van der Merwe draw up a memorandum - this is a copy, that was meant to go to the Minister of Law and Order and there following on what is proposed here that the higher decoration had to be awarded, I decided Mr Chairperson, that this was my approval and the other one, the other decoration was more fitting. That is the approval that I gave.

MR BERGER: That's what I said, Mr Coetzee.

CHAIRPERSON: I think you're speaking past each other here, the Advocate is not referring to the approval of these medals.

GEN COETZEE: But that is what I am referring to.

CHAIRPERSON: Yes, he wants to know with regard to the approval of the action.

GEN COETZEE: No, that it was not approved of in here.

CHAIRPERSON: No, but please listen carefully. The fact that you had agreed that medals had to be awarded with regard to this incident, he puts it to you that this entails approval of the action, do you follow?

GEN COETZEE: Chairperson, on Friday I had testified that the award of a decoration in the South African Police Force is basically a neutral act and I want to add to that that today. On both sides of the war, people are walking around with high decorations and that does not mean that the persons who approved of it had given their permission with every act that that man had committed. The fact is here that I had granted permission not to Gen van der Merwe, but to the men who had been involved that he sketched to me were in a dangerous situation and I knew in my heart that at that stage there was a military threat in Lesotho that had exploded later, and I had said that they should be awarded a decoration for bravery that they had done this. Whether their conduct had been lawful or unlawful is not to be judged here.

CHAIRPERSON: And that is why it was put to you that you had given approval for the incident.

GEN COETZEE: No, I did not give any approval for the incident.

CHAIRPERSON: Now I want to ask you then, how could you have agreed that any medal - it matters not what type of medal it was, how could you have awarded a medal to those persons who had launched this attack if you were not in agreement with it?

GEN COETZEE: Chairperson, I am clearly aware that these decorations, even the one I had said that was lower than the one that was asked for, had to go through the process of to the Minister and eventually to the executive board of the government.

CHAIRPERSON: But why could you not have stopped it and said "Listen I am the Commissioner, it will not pass me because I do not agree with the incident"?

GEN COETZEE: Chairperson, I never said that, I said that in all possibilities under the same circumstances that had been sketched, I would have agreed.

CHAIRPERSON: But Mr Coetzee, let us get to the point directly. Did you or did you not by means of the award of a medal, approve this incident post facto?

GEN COETZEE: Chairperson, after I had consulted the Minister and after I had heard his opinion and had put my opinion forward, and at least tacitly I expressed my approval.

CHAIRPERSON: Mr Berger, I don't know if we're going to get much further with it.

MR BERGER: I will try, Chairperson.

MR VISSER: ...(indistinct - no microphone)

MR BERGER: I beg your pardon?

MR VISSER: I'm saying it's probably not enough for the Attorney-General yet, Chairperson, because I still don't understand, with great respect, and I say this in humility, what these questions have to do with the amnesty application before you. And I object to these questions, Chairperson.

CHAIRPERSON: Mr Visser, as laborious as it may be, there is a point to be considered here. And what the worth or value of the point at the end of the day's going to be, I'm not too sure. It is intended I would assume, it can't be for any other reason, but an attack on van der Merwe's credibility.

MR BERGER: Chairperson, I just want to make it clear that I hold no brief for the Attorney-General and that I am not attempting to elicit information which can be used against Mr Coetzee. And in any event, the Act makes it quite clear that any information obtained from these hearings cannot be used against anybody in any proceedings in a Court of law, in any criminal proceedings in a Court of law. That's not my purpose.

Mr Coetzee, my purpose is this. I'm trying to establish whether you approved of the raid after the fact. I'll come to before the fact just now, but you see Mr van der Merwe says at 103 in his amnesty application, he says -

GEN COETZEE: That's right.

MR BERGER: So that is correct.

GEN COETZEE: That's entirely correct.

MR BERGER: Now if we have a look at the motivation for the medals, ...(intervention)

CHAIRPERSON: Before you get onto the motivation, which was very cryptic, according to van der Merwe, he goes further on page 103 and says that -

That's what he has to say.

MR BERGER: Yes. You've read that?

GEN COETZEE: Yes, that is correct.

MR BERGER: In the motivation for the medals which you saw, there is talk about a highly clandestine - paragraph 2 -

Now you knew by the time you awarded the medals or you approved of the medals, let me say that, you knew of all the circumstances. You knew that ANC cadres had been killed in the raid, that Lesotho citizens had been killed in the raid. And I put it to you that is why you approved of the award of the medals. Put another way, if you had learnt that in fact what had happened during the attack was that a church, a house had been targeted and that house actually was a church, and that nine members of a church congregation had been killed during the raid, I wonder whether you would have approved of medals for bravery. Would you have?

GEN COETZEE: That is highly unlikely.

MR BERGER: Exactly. Or if they'd blown up a pig pen and killed nine pigs, you wouldn't have approved of an award for bravery, am I right?

GEN COETZEE: For the pigs?

MR BERGER: Yes.

GEN COETZEE: No, that is dubious.

MR BERGER: Right. I'm just highlighting an absurd situation to show you that when you gave approval for the medals, you must have been giving approval retrospectively for the raid.

GEN COETZEE: No, Chairperson, it is not necessarily so, this memorandum ...(intervention)

CHAIRPERSON: We are not referring to necessity, we just want to know what the position was.

GEN COETZEE: It was intended for the Minister. This memorandum was intended for the Minister. Let us just complete the succession here. After I had informed him of the circumstances and I told him that under the circumstances of which I was aware, after I had been informed, I said that I thought that the medal should be of a lower order, bravery for those men involved.

CHAIRPERSON: And you approved it.

GEN COETZEE: Yes, I approved it and this is what I told Gen de Wit, and with that message he went to the Staff Generals.

CHAIRPERSON: Why did you approve the medals?

GEN COETZEE: Because according to what was described to me at that stage, the action of the members in Lesotho - because this is a medal for bravery, it is not for judgement or anything like that ...(intervention)

CHAIRPERSON: Mr Coetzee, I'm not really concerned with what sort of medal it is.

GEN COETZEE: Then I felt that this was the medal to award him with for bravery.

CHAIRPERSON: How was he brave?

GEN COETZEE: Brave enough to enter another country where there was a highly critical situation. He was brave in the sense that he dealt with trained persons there and according to my judgement he was brave in that respect.

CHAIRPERSON: In the sense that he killed trained ANC persons and not pigs?

GEN COETZEE: That is correct.

JUDGE KHAMPEPE: Mr Coetzee, may I interpose?

GEN COETZEE: Yes, Judge.

JUDGE KHAMPEPE: Wasn't that bravery pursuant to a decision that had been taken by Mr van der Merwe?

GEN COETZEE: That's correct.

JUDGE KHAMPEPE: That's the pointed issue that Mr Berger is trying to cover.

GEN COETZEE: Yes, Judge.

JUDGE KHAMPEPE: That by approving the granting of the medals, that meant you approved of the decision that had been taken by Mr van der Merwe. How can you extricate the two?

GEN COETZEE: Judge, my attitude to that is the fact that afterwards, subsequent, about two three weeks subsequent to the event, I approved medals which were specifically intended for the acts of the members concerned. It must not be construed, Judge, as that I would of necessity have given prior approval of the incursion. And I said that if I was confronted, Judge, after the event and with all the information at my disposal, I would under the circumstances - I said in Afrikaans "'n moontlikheid bestaan", there's a possibility that I would have given that same order.

JUDGE KHAMPEPE: But the way I've been understanding your evidence is that by the 10th of January 1986, you had been placed in possession of all the facts surrounding and relating to this incident by Mr van der Merwe. Have I understood that piece of evidence incorrectly?

GEN COETZEE: No, that is quite correct. Afterwards I was placed in possession and I could ask him questions about it and ...(intervention)

JUDGE KHAMPEPE: That's right. And that was prior to you approving these medals to the footsoldiers, because this approval was approximately after the 10th of January.

GEN COETZEE: That's correct, a day or two, I think it was a weekend, I'm very sure. I think the 10th or the 13th or the 10th, was a Friday and the 13th the Monday or something like that, I'm not sure of those facts.

JUDGE KHAMPEPE: Yes. So by the time you approved of the medals, you already were privy to the facts surrounding the raid, you already knew of the circumstances that led to Mr van der Merwe taking the decision which he did in launching the raid in Lesotho.

GEN COETZEE: That is quite correct, Judge, I already at that stage discussed it with the Minister.

JUDGE KHAMPEPE: Yes. Mr Berger?

MR BERGER: Thank you, Judge.

And so therefore, Mr Coetzee, given that you wouldn't have approved of medals if a church meeting had been blown up, I'm putting to you that your approval of medals for bravery, it doesn't matter what level or where in the stepladder it fits, the fact that you approved of medals for bravery for this raid against ANC targets, can mean only one thing, is that you gave retrospective approval for the decision to carry out the attack.

GEN COETZEE: No, I cannot go along with that as it is formulated, Judge, I'm sorry. But what I will say is that obviously at footsoldier level, the fact that you get a medal, could be construed by him that it's approval.

MR BERGER: Well you see Mr Coetzee, you're trying to have your cake and eat it now. You're saying that if Mr de Kock saw the medals as subsequent approval by the senior brass, that's fair and it's okay, I can understand why he sees it that way, if Mr van der Merwe sees your approval of medals as approval for his decision to launch the raid, that's also fair and understandable, but you, Mr Coetzee, did not mean to indicate approval for the raid when you approved the medals. That's your evidence.

GEN COETZEE: It's not correct.

CHAIRPERSON: I'm going to grant you the opportunity once again to respond to this question. Why did you approve any medal with regard to this incident?

GEN COETZEE: Because, Honourable Chairperson, it was said to me and explained to me and because I also knew from within my own knowledge, that to enter Lesotho under the objective circumstances of that time and to engage in contact with trained ANC soldiers, was a tremendous risk and I felt that such persons who were prepared to do so, should be rewarded. That is why I did it.

CHAIRPERSON: Yes. And then furthermore, you approved the medals because you wanted to say in other words "Well done men, what you did was right".

GEN COETZEE: No, let us get the facts straight, I didn't award the medals.

CHAIRPERSON: Yes, but somewhere along the line you approved it.

GEN COETZEE: I recommended it.

CHAIRPERSON: Or at least recommended it then, it doesn't really make that much difference. Why did you then recommend the medals?

GEN COETZEE: Because I thought that those footsoldiers had acted bravely.

CHAIRPERSON: Yes, well done men, you have done well.

GEN COETZEE: Yes, as I had received under other circumstances.

CHAIRPERSON: In other words then, would I be correct to deduce that the award of these medals would indicate that somewhere you must have taken a decision about this incident ...(intervention)

GEN COETZEE: A recommendation.

CHAIRPERSON: Yes, a decision. ... and that you decided that this was right and recommended for the medals to be awarded, is that correct?

GEN COETZEE: No, Chairperson, after I had received the information and went to the Minister and discussed it with him, after this I received a recommendation which had to go to the Minister, not to me, to the Minister, and in this process I recommended that the men who were involved, should be awarded with medals, those who were there in the combat situation.

CHAIRPERSON: Let me then ask you this in a strange manner. You're the postman, or was it up to you to decide whether or not this letter or this recommendation would go further to the Minister?

GEN COETZEE: Naturally I could not have withheld it, I had to make the recommendation, I was obliged, that when this memorandum came I had to take it to the Minister.

CHAIRPERSON: So you had nothing to do with the decision for these persons to receive medals?

GEN COETZEE: No, I recommended it.

CHAIRPERSON: But that's my question. As they state in English, you had to apply your mind.

GEN COETZEE: Well I would at least have had to say that the medal which was proposed by Gen van der Merwe was in my opinion not appropriate and I said that those men who were involved there had to receive the medal. But I do not with for you to infer from that that I necessarily - well I could have awarded it even if I knew that they had exercised a completely unauthorised operation and that they who were on ground level had been brave. Therefore I would have been able to say "These men put their lives in danger, award them with a medal".

CHAIRPERSON: Is that the only reason why those medals enjoyed your approval?

GEN COETZEE: No, not at all.

CHAIRPERSON: Then you have confused me completely.

GEN COETZEE: Chairperson, I am really trying to sketch the circumstances.

CHAIRPERSON: Then let us try a little harder. Why did you think it was correct for these men to receive a medal?

GEN COETZEE: Because they were brave.

CHAIRPERSON: And you knew how they had been brave.

GEN COETZEE: Yes, it was explained to me.

CHAIRPERSON: And you agreed with it.

GEN COETZEE: I conveyed the information as it had been put to me.

CHAIRPERSON: No, I'm referring to your attitude, we will get to what you conveyed later.

GEN COETZEE: To get to the point, I think that my attitude would have been reasonable positive, I would not have disapproved it.

CHAIRPERSON: Why not?

GEN COETZEE: As a result of the reasons that I have mentioned here.

CHAIRPERSON: So you agreed with the action and you thought that a medal for bravery would be an appropriate medal to be awarded for something that you agreed with?

GEN COETZEE: I said, Chairperson, that most possibly, I cannot evaluate today how I would have felt, but most possibly I would have agreed with the award. If it is interpreted today that I agreed back then and said to the Minister this was excellent action by these men and so on and so forth, that is not what happened.

CHAIRPERSON: If you didn't agree that they had conducted themselves well and that they had achieved their goals, you would not have made any recommendations?

GEN COETZEE: No, not for bravery.

CHAIRPERSON: You would not have made any recommendations.

GEN COETZEE: No, I wouldn't have.

CHAIRPERSON: You would have said no?

GEN COETZEE: That is correct.

MR BERGER: Well Mr Coetzee, it's really very simple. You wouldn't have approved of medals for bravery ...(intervention)

CHAIRPERSON: Mr Berger, he just said so.

MR BERGER: Then let me ask you this simple question. It's clear now that once you were informed of all the facts, you approved of the decision to attack the ANC base in Lesotho. That much is clear, isn't it?

GEN COETZEE: No, I don't think that that is a necessary conclusion. I have qualified it.

MR BERGER: No, but Mr Coetzee you say not "nie noodwendig nie", but we have you, you're here, you can tell us, did you or did you not approve of the instruction after you came to hear of all the facts?

GEN COETZEE: I cannot give you a meaningful yes or no or yes but, or no but, answer to that because I would not be able to remember. I will now have to interpret and infer at the hand of what has been submitted to me and my recollection.

CHAIRPERSON: Mr Berger, can we get onto something else now, I think you've exhausted all your attempts to get what you wanted.

MR BERGER: Thank you, Chairperson.

You see, Mr Coetzee, what I want to put to you, and this is what I've been leading up to all the time, and that is that not only did you approve of the raid after the fact but you also approved of the raid before the fact.

CHAIRPERSON: On what basis can you put that, Mr Berger?

MR BERGER: Well that's what I'm going to work through now, so that my learned friend knows what the relevance of my questions are.

CHAIRPERSON: I'm in the same boat.

MR BERGER: I was often told by Judge Nugent in the Shell House inquest, "Make the proposition, if the witness agrees with you, that's the shortcut, if the witness disagrees with you, then you go the long route".

CHAIRPERSON: ...(indistinct - no microphone) system.

MR BERGER: Thank you.

On the 21st of October you attended a State Security Council meeting where guidelines were adopted in relation to cross-border raids, carried out by the SADF, am I correct?

GEN COETZEE: Yes, where it was submitted.

MR BERGER: So you were ...(intervention)

GEN COETZEE: By the Defence Force, by the Secretariat.

MR BERGER: Yes. You were aware before the end of October 1985, that if the SADF was to carry out cross-border operations, overt or covert or clandestine or whatever, that there were certain guidelines which had to be adhered to, certain people had to be informed so that South Africa wouldn't be unnecessarily embarrassed internationally. You were privy to that whole debate.

GEN COETZEE: Chairperson, I do not wish to invite an exhaustive debate once more, but that was a departmental guideline for the Defence Force. Initially they submitted it to the Working Committee before October, thereafter it was given to the Secretariat of the SSC. One would not receive it before the time or before the meeting, it would be on the table and it would be discussed. One would also not receive it subsequently, one would receive only the extracts from that decision for one's specific department, it was not of application to the South African Police. There has been no reference to the South African Police therein, we did not have such guidelines. And I have testified extensively about this previously.

MR BERGER: Mr Coetzee, if you will just stick to my question, I'm coming to the police. I'm trying to do this quickly but discretely. I don't mean discretely, I mean in discrete chunks.

The memorandum to the State Security Council, was circulated to all members of the State Security Council, of which you were one ...(intervention)

GEN COETZEE: On the day of the meeting.

MR BERGER: No, on the 17th of October 1984, four days before the meeting. If you have a look in bundle 3 at page 59.

GEN COETZEE: Yes, that is correct.

MR BERGER: You will see there a letter from the Secretary of the State Security Council to all members of the State Security Council, dated 17 October 1985.

GEN COETZEE: Correct.

MR BERGER: And this was to be placed on the table for discussion four days later.

GEN COETZEE: Correct.

MR BERGER: Right. And my only question to you is, you were privy to this discussion at the State Security Council, when the whole question of guidelines governing the control of the South African Defence Force in cross-border operations, was discussed.

GEN COETZEE: Yes, Chairperson, before it would have been sent to me, I would have been made aware of this at the Working Committee. I was aware of it.

MR BERGER: Even better. And this discussion included overt operations as well as covert operations and clandestine operations.

GEN COETZEE: Everything for the South African Defence Force.

MR BERGER: Now you say that there were no such similar guidelines for the South African Police.

GEN COETZEE: Such a document does not exist, at least not that I am aware of, until my retirement in 1987.

MR BERGER: Well let's leave aside the document. Surely if the State Security Council is going to go to such lengths to regulate all conduct of the South African Defence Force in cross-border operations, whether legal or illegal, surely the State Security Council would have been concerned with similar conduct on the part of the South African Police.

MR VISSER: Chairperson, has it been established in the evidence before this Committee, that any of those guidelines to which reference is now made, concerned illegal covert operations? Has that been established?

Because if it hasn't been established, then my learned friend is putting an unfair question to the witness.

MR BERGER: I asked Mr Coetzee two questions ago, whether it governed overt, covert and clandestine operations of the South African Defence Force, and Mr Coetzee's answer was -

I would have thought that that established it in the evidence. But if that's not enough, if we look at the document itself at page 62 under the heading "Special Operations", there is reference to covert operations and clandestine operations, and covert operations are defined as secret operations where the conduct cannot be traced back and should not be traced back to South Africa.

MR VISSER: But with respect, Chairperson, that's only half the point. The point is, the evidence of van der Merwe concerned illegal operations ...(intervention)

CHAIRPERSON: Mr Visser, I've indicated to you a little while ago that I'm not very interested in whether these things can classified as legal or illegal. Let me try to help.

Mr Coetzee, when was the London bomb placed, the bomb for which you applied for amnesty?

GEN COETZEE: Chairperson, I would just like to recall this. It was while I was the Security head, briefly after I became he Security head, so it was in 1985.

CHAIRPERSON: ...(indistinct - no microphone)

GEN COETZEE: Yes, it was a long time before this incident.

CHAIRPERSON: Before the guidelines became available?

GEN COETZEE: Yes, before the guidelines for the Defence Force became available.

CHAIRPERSON: So within the context of the following, let me just put it to you clearly, when these guidelines were discussed you realised, you knew that the police were also guilty of cross-border explosions.

GEN COETZEE: Yes, Chairperson.

CHAIRPERSON: And I think the way that I understand the question of the Advocate, it is that if this is the case and if the guidelines as intended, were only of application to the Defence Force, and you were aware of the fact that the police was also launching similar attacks, did it not occur to you or didn't you think about formulating similar guidelines for the police?

GEN COETZEE: No, Chairperson, because the London bomb was a singular event or matter in which I was involved and I didn't think that a pattern of such actions was forming, which would then require extremely secret guidelines.

CHAIRPERSON: You must have known prior to or subsequent to the attack, of attacks which took place between '82 and '85.

GEN COETZEE: Yes, I must have known of some of them.

CHAIRPERSON: So it is not only the singular incident that the police was involved in.

GEN COETZEE: That's correct.

CHAIRPERSON: So the pattern that you have referred to must have started forming by the time the guidelines for the army came to light.

GEN COETZEE: Yes, Chairperson, in retrospect I would not be able to tell you that I was really aware of police action. For the police it was illegal, I could never have gone to the SSC and requested illegal guidelines.

CHAIRPERSON: No, we are not referring to anybody else, we're referring to you as Commissioner, you knew of illegal police actions by the police, whether internal or external.

GEN COETZEE: I did not have individual knowledge of such matters.

CHAIRPERSON: You were the head of the Police.

GEN COETZEE: Yes.

CHAIRPERSON: And how could you not have known?

GEN COETZEE: But I told you, Chairperson, that I wanted the individualisation of the cases, in other words, which I knew of and those that I did not know of.

CHAIRPERSON: No, we're referring to the pattern or - what are the words that you just used, a custom, for the police being involved in illegal actions.

GEN COETZEE: To illegal actions?

CHAIRPERSON: Illegal.

GEN COETZEE: No, Chairperson.

CHAIRPERSON: Whether internal or external.

GEN COETZEE: No, I was not aware of that.

CHAIRPERSON: Not at all?

GEN COETZEE: Chairperson, ...(intervention)

CHAIRPERSON: Only the London bomb?

GEN COETZEE: Yes, I knew about that because I myself was involved, but with regard to other actions it was - and I have already stated this, it was approved by the SSC or by a Minister, as far as I am concerned. I do not regard this as something which would contribute to the creation of a pattern.

CHAIRPERSON: Let us begin again. You stated that you were aware of cases in which the police became involved in illegal actions, regardless of whether or not this was internal or external to the country. You have already testified to that effect.

GEN COETZEE: Yes, Chairperson, there were cases which took place long before I became the Commissioner, during which it was alleged and proven ultimately by interdicts that persons had been abducted abroad. Over this period of time there were all sorts of allegations, whether supported or unsubstantiated. I cannot tell in all honesty today that a pattern developed accordingly, and in terms of this I would have to seek out guidelines.

CHAIRPERSON: How many incidents would you have thought were enough to say "Now we need guidelines"? ...(transcriber's interpretation)

GEN COETZEE: No, Chairperson, it wasn't only about the number of incidents, it was also about the culture of the police. You heard that it was a government guideline for the police not to cross the border.

CHAIRPERSON: Yes, we know, but they did, they crossed the border.

GEN COETZEE: And I wrestled with that problem, particularly in South West Africa. I do not wish to waste your time, Chairperson, but it was said to me regularly that the police would follow up soldiers of SWAPO over the border and they said "We can't stop at the border". I experienced such problems very regularly, but I never had any concrete proof which was reported to me or conveyed to me directly, indicating that we had established a pattern.

There would have been the exception when it comes to Swaziland, where I by means of negotiations of the Swaziland government, placed a senior office in Swaziland as a main link with their police on the highest level and ultimately an understanding developed that we could cross their border, that they would not impede our course. And at a certain stage they even gave us a map of the country, saying you may act in this part of the country.

CHAIRPERSON: So whatever the case may have been at that stage, you maintain that you did not regard it as necessary to formulate guidelines for the police?

GEN COETZEE: No, because the police found their guidelines within the Act.

CHAIRPERSON: Yes.

MR BERGER: Well, in January of 1986, you knew that Mr van der Merwe had gone beyond the Act, the Police Act.

GEN COETZEE: Entirely correct, yes.

MR BERGER: Did you set up any guidelines at any time during 1986 or 1987?

GEN COETZEE: I then retired, Chairperson.

MR BERGER: I know that you retired in 1987, that's why I ask up to 1987. At any time from January 1986 until the time that you retired, did you find it necessary to draw up any guidelines for cross-border action by the police? You knew it had happened, what was to stop it from happening again?

GEN COETZEE: No, Chairperson, I did not think that that one incident which had been reported to me, which I necessarily reported to my Minister, that here I will now lay guidelines for the police that has to be approved by the State Security Council. I did not think it was necessary.

MR BERGER: Why ever not? Here was unlawful conduct on the part of a senior officer of the South African Police ...(intervention).

GEN COETZEE: No, Chairperson, I have already answered that with regard to me at that stage with the information available to me and the reaction of the Minister and thereafter the government, through the process of the award of the decoration that I had inferred that they had approved, I inferred, no-one told me, and I did not think that now because of this once- off incident that may have possibly been a legal action, it could have been an urgent situation that now I have to go and draw up guidelines for the police.

CHAIRPERSON: Mr Coetzee, when was Vlakplaas founded?

GEN COETZEE: Chairperson, Vlakplaas was established approximately in 1980.

CHAIRPERSON: For what?

GEN COETZEE: Chairperson, the instructions for what those operatives had to do is embodied in my document here, if you would like to see it.

CHAIRPERSON: Tell me please.

GEN COETZEE: This was, Chairperson, in South Africa soldiers of the ANC came in, they used false identification documents, they were trained persons, there was no way to identify them except for the persons who were trained with them. That was the motivation and that is what the memorandum said to the Minister and that is when we said that we shall make use of the ANC soldiers that had been arrested. And in every Court case much evidence is led and many of them afterwards were murdered - I do have the incidents here, and we decided that the only manner in which we could effectively identify these insurgents is by means of physical identification, and that was the original instruction. If afterwards whether it has changed character but these are the instruction that I had issues to the operatives there and to the Commanders of the Security Branches right across the country. So for them who had acted, they were clear and legal instructions.

CHAIRPERSON: They should not have done anything illegally?

GEN COETZEE: I have already said that if I had become aware of any unlawful actions, I would have had them charged.

JUDGE KHAMPEPE: But on that score, Mr Coetzee, no-one is trying to attach any particular blame on you as an individual. By 1986, you must have been aware of the many cross-border operations that the police were involved in, particularly in places like Swaziland ...

GEN COETZEE: Yes.

JUDGE KHAMPEPE: And one immediately has recall to the killing of Mr Zweli Nyanda, who was an ANC solider, quite a prominent member of the ANC in Swaziland, particularly by the police. And I think in that case, I'm not sure, I don't think Mr van der Merwe was involved as a Commander of the Security Police, but you must have been a Commissioner by then when Mr Nyanda was killed, and the abduction of Mr Sedibe. There are quite a number of instances that one can recall, which showed quite a clear pattern of the police' involvement in cross-border operations by 1986, at least. So if your response is that it was not yet customary by 1985, for the police to be involved in cross-border operations, surely there must have been an indication by then because Mr Nyanda had already been killed by 1985. I'm speaking now under correction, I think his death occurred in 1984, and it was a prominent incident.

GEN COETZEE: Do you want me to respond, Judge?

JUDGE KHAMPEPE: Yes.

GEN COETZEE: Thank you very much, Judge. Judge, I must abinitio say that I've got no personal knowledge of the events that you're referring to and whether there was amnesty granted or considered for those people and what their story is. Whether they went in illegally and did it or whether there was any higher involvement, I don't know that. But what I've said in the case of Swaziland, that in the case of Swaziland I was privy to go to them and to make special arrangements, like I've tried in the case of Lesotho, for the South African Police to be involved there in Swaziland, which was granted by that government ...(intervention)

JUDGE KHAMPEPE: Yes, I'm aware of that as well.

GEN COETZEE: ...(indistinct) those police officers.

JUDGE KHAMPEPE: Yes. There also - the very people that you placed in Swaziland - I just can't recall the name offhand, I've been trying to put something in my mind, I don't think it's Mr van Dyk, but the person that you put in Swaziland for instance to liaise with the Commissioner of Police in Swaziland, there is an incident of Mr Sedibe where they went beyond, I think, your parameters, they abducted Mr Sedibe. I mean that surely should have given you an indication that they thought they had more than authority, I mean they had authority to be involved in such operations.

GEN COETZEE: They may have thought so, Judge, that is so, but the one instance where it was reported to me particularly that there was an abduction, and I've given that evidence, I went and I was paraded before the King of Swaziland, who eventually said no, he didn't want to speak to me but I sat the whole day there because he was objecting to this, he said it looks as if they're becoming just a tool of South Africa. But nevertheless, the officer that I'm referring to, Judge, is not van Dyk and he was seconded, officially seconded through Foreign Affairs to the Police in Swaziland and he sat in at the highest level about discussions there and he was the liaison officer there with the security police, of which I was no longer at that stage the Commander.

JUDGE KHAMPEPE: So what you are saying is that by 1985 you were not aware of the police' involvement in cross-border operations.

GEN COETZEE: Unless it was reported to me.

CHAIRPERSON: No, it's not a question of whether it was reported to you, were you or were you not?

GEN COETZEE: I do not want to fall into the trap of the previous ...(indistinct), I suspected something. I've already given, Mr Chairman, my view that one must not fall into the situation where you are like the three monkeys, you never heard anything, you never said anything and you never spoke anything. That is not my position, my position is ...(intervention)

CHAIRPERSON: What did you see and what did you hear and what did you say?

GEN COETZEE: I think every observer in South Africa, Sir - you have quite rightly said, Sir, who do they think, who did they think were doing these things? The politicians, who do they think, who did they think were doing these things?

CHAIRPERSON: ...(indistinct) you that question.

GEN COETZEE: Well Sir, there were certain - I think the answer to that question lies most likely in the answer that Mr Leon Wessels gave at an amnesty hearing or at the Commission, where he said "We knew, but we didn't want to know".

CHAIRPERSON: How does that apply to you also, because you say you are not in a position to say anything about whether you knew by 1986, whether the police was committing anything illegal and therefore you didn't think it necessary because of a lack of pattern, to consider whether guidelines must be implemented.

GEN COETZEE: That is so, Chairperson, but I also said there were many factors why I wouldn't have, I wouldn't have formulated a set of guidelines, first discuss it throughout the police with all the Commanders and then submit it to the State Security Council. I do not want to dwell on that, Sir, but ...(intervention)

CHAIRPERSON: Well we're not even talking about sending it to the State Security Council, why not an internal guideline amongst the police, as coming from the Commissioner "This is what must happen".

GEN COETZEE: But there were very many instructions emanating from police headquarters, stressing that they must not involve themselves in illegal activities.

JUDGE KHAMPEPE: So you did not think it prudent to even come with internal guidelines, notwithstanding the fact that you already had the suspicion that the police were getting themselves involved in such operations?

GEN COETZEE: Yes, that is quite right, Judge. Although I suspected, I had no particular knowledge - and I would like to be confronted with the particular incident itself, but as a general observation, yes, someone - what's the word used, was it the fairies, someone was doing it who was on our side, that we were unaware of. I must have suspected that.

JUDGE KHAMPEPE: But you didn't think it prudent to probe, to find out who was actually doing it, is it your own police.

GEN COETZEE: Madam Judge, in those cases where I received information, direct information, I was confronted with evidence, I acted.

JUDGE KHAMPEPE: Was there an incident such as that in which you were given evidence of the police involvement in cross-border operations, where you took some action?

GEN COETZEE: Yes, yes.

JUDGE KHAMPEPE: When was that?

GEN COETZEE: This is when - the case where a man by the name of Mr Pillay, I think, was abducted from Swaziland, he was abducted, and when I discovered - it was reported to me officially, I took disciplinary steps and had the Commander of that unit removed from that job.

JUDGE KHAMPEPE: In what year approximately, Mr Coetzee?

GEN COETZEE: I beg your pardon?

JUDGE KHAMPEPE: In what year was this approximately?

GEN COETZEE: I think it was approximately in '81/'82.

JUDGE KHAMPEPE: Thank you, Mr Berger.

MR BERGER: Thank you, Judge.

Mr Coetzee, let's leave the fairies out of this and let's concentrate on the people who you had suspicions about. You say you were not one of the three monkeys?

GEN COETZEE: That's right.

MR BERGER: So you suspected - let's leave aside hard evidence, you suspected that the police or that members of the police were involving themselves in illegal cross-border activity.

GEN COETZEE: Yes, the fact that you're gathering information in another country is an illegal activity.

MR BERGER: Well let's - you know what I'm referring to, you suspected that members of the police were involving themselves in murders across the border.

GEN COETZEE: No. What I'm saying is I suspected that South Africa, by all its arms, were committing illegal acts.

MR BERGER: Yes, of murder.

GEN COETZEE: Of murder is you - political murder outside the borders of South Africa.

MR BERGER: Including members of the police.

GEN COETZEE: Yes, I could have suspected that also.

MR BERGER: Right. Now if you were the Commissioner of Police and you suspected that, then it stands to reason that you would have issued guidelines, whether written or not I'm not concerned with, but you would have issued guidelines setting out the circumstances under which members of the police could participate in such political murders.

GEN COETZEE: No, Mr Chairman. In other words, what you say to me, Sir, is that I must have issued guidelines for the police of an unlawful nature.

MR BERGER: Well it's either that, either you - the fact is you suspected that the police amongst others, were involving themselves in murders across the borders in various neighbouring states. So either you as Commissioner of Police were going to regulate the position and say that only under the following circumstances, be it emergency or whatever, or only with the approval of certain people can these actions be undertaken, or as Commissioner of Police you were just going to allow members of the police force, carte blanche to do whatever they thought fit in the circumstances. Which one was it?

GEN COETZEE: No, you've got two alternatives against one another now, that was not the position. The position is, I could not give guidelines or instructions of an illegal nature, we know that. I could not do that.

MR BERGER: So you then just allowed things, people to have carte blanche.

GEN COETZEE: If, if I became aware of a specific incident that a member of the police has committed a