DATE: 24TH JULY 1998

DAY : 5



COUNSEL: Now I know as far as this Commission is concerned they should always be judged as reliable but from certain press reports we have been given to understand that certain other people might be called before this Committee. Now what I would just like to enquiry from the Committee is, I'm referring to a statement by the Truth Commission last night, whether the intention is for those people to be called before this Committee because the words Committee and Commission was unfortunately used in some of the ...[intervention]

CHAIRPERSON: It is not our intention at the present time to call anybody. What this Committee is doing is giving notice in terms of Section 32 of the Act to five people who were mentioned yesterday, that their names have been mentioned, that a copy of a transcript of the evidence will be available for them on Monday and that in terms of the Act they are entitled to make representations or to give evidence before the Committee. It is entirely in their discretion as to what they choose to do.

COUNSEL: Mr Chairman, in other words as far as the programme for next week is concerned, it is not at this stage the intention of the Committee to have those people until you've been advised that those people in fact want to. It is merely for practical and logistical reasons?

CHAIRPERSON: Yes. We do not intend to do anything. Of course it may be that one of the applicants wish to subpoena these people as witnesses now, I don't know but before we go on I want to raise another matter. That I yesterday received, after the close of the proceedings I received a letter from the South African Catholic Bishops Conference raising the question of the bombing of the Khanya House in Pretoria on the 12th of October 1988. Insofar as I can recollect, this has not been mentioned during the course of these proceedings.

I propose to hand the letter to the Leader of Evidence for him to make any enquiries he wishes to in that regard and to make it available to the other parties to the proceedings, to make a copy, not to make enquiries, to let them have access to it. Together with the letter was a booklet which I have never seen before, dealing with the, it's headed: After the Fire - The Attack on Khanya House. I haven't read it. There are photographs of the building after the damage had been done. I merely notify that it has been done and if any of the parties wish to, they can talk to Mr Mpshe about it. It may be something that the South African Council of Churches intends to raise during the course of their questioning, I do not know.

MR BOOYENS: Mr Chairman, on the subject of Khanya House specifically, I know certain of my clients have applied for amnesty for the arson of Khanya House but it was decided apparently by the Evidence Leader, that the Khanya House matter falls outside the ambit of this inquiry. So there are applications I know, at least from my side, in for Khanya House.

CHAIRPERSON: ...[inaudible] in the letter is that if the investigations ceased, they have had no report-back about it. ...[inaudible]

INTERPRETER: The speaker's microphone is not on.

CHAIRPERSON: Sorry. The letter indicates that the Catholic Bishops’ Conference got no report-back about it. The investigations seem to have merely ceased. They do not appear to be aware of the fact that there are amnesty applications pending in regard to that. I don't know if they have been notified. They apparently haven't been notified of those amnesty applications. It's clearly a matter that they should be because it may be that they will seek to say that they are linked or that persons responsible for bombings elsewhere may have been responsible for bombings here.

I take it your clients are members of the South African Police Force?

MR BOOYENS: Yes, Mr Chairman, they are applicants in this matter.

CHAIRPERSON: So it may well be the allegation that this was another action by the police and part and parcel of the same, and there hasn't been a full disclosure. I don't know, but I think it's a matter that causes me some concern, to hear that they have not been notified that there are amnesty applications pending.

MR BOOYENS: Mr Chairman, as far as I know no hearing has even been set down. My learned friend is aware that there are applications in respect of Khanya House. In fact I think in certain of our papers you may see even, as the papers were duplicated, a reference to Khanya House.

MR MPSHE: Mr Chairman, if I may be afforded an opportunity to outline what has happened here. It is unfortunate that I was never told about this and never asked by the Committee as to what is happening, and the matters raised here is very unfortunate.

The position Mr Chairman is that I have written letters to all members who are herein, as Advocate Booyens correctly indicates, and copies of those letters are in the Chairman's possession. The position is that because this hearing was not even to be scheduled during this month. It was hearing suggested by the TRC upon request that we do this hearing, particularly of Minister Vlok.

Now in order to get Minister Vlok, because of him having applied for only the three incidents, we had then to link all other applicants affected by the three incidents and not any other incident. My letters to all members and to the Committee is very clear in this regard.

I am aware that there are members herein, more than the number that are here today, who have applied for the Khanya House bombing incident but this has not been applied for by Minister Vlok and that is why it is not before this Committee. I indicated in my letter that those matters would be dealt with later. That is the position Mr Chairman. And they were never informed that there was going to be a hearing because Khanya House is not scheduled.

CHAIRPERSON: But is that not relevant. If the persons who have applied for amnesty in respect of Khanya House, make the averment that their instructions came from higher up and the chain of command, if evidence links the chain of command, is it not something that should have been investigated here?

MR MPSHE: Mr Chairman, I don't dispute that it is not a matter that should not be investigated but the point I'm trying to make is, the linkage of all applicants herein present is Adrian Vlok and Adrian Vlok has not applied for the Khanya House ...[intervention]

CHAIRPERSON: Mr Mpshe, the point I'm making is if the evidence in the Khanya House implication indicates that the instructions came from Mr Vlok through General van der Merwe, it's a matter that should have been put to him here, shouldn't it?

MR MPSHE: Mr Chairman, I don't know whether I'm starting to make myself clear ...[indistinct]

CHAIRPERSON: You are not, you are accepting we must start with Mr Vlok and because he hasn't ...[indistinct]

MR MPSHE: That is the position Mr Chairman.

CHAIRPERSON: Yes. But if he has not disclosed it but evidence shows that he was responsible, is that not extremely relevant?

MR MPSHE: Then Mr Chairman, if the other applicants mention that he was responsible then he will not be coming here as an applicant but as an implicated. ...[intervention]

CHAIRPERSON: Well have had all these enquiries been made?

MR MPSHE: Mr Chairman, they have not been made because the matter was never intended to be scheduled and the matter is not scheduled. Well I'll leave this in the Chairperson's hands, the discretion, but this is how I was made to understand to schedule this hearing as per request. Mr Jan Wagenar can bear me out there, that this matter was not even to be heard. We had to struggle to set it down because of the request of the TRC. ...[inaudible] that this hearing shouldn't go on because of the absence of the Khanya House incident, it's unfortunate. I will abide by the Committee's decision and the Committee can take it further.

MR HUGO: Mr Chairperson, Hugo on behalf of Mr de Kock. De Kock also applied for amnesty with regards to the Khanya House incident. He was in charge of the operation and I can tell you for record purposes, he did not say that General van der Merwe or Vlok gave any instructions. He is not going to say that, he is going to implicate someone completely different.

CHAIRPERSON: Well that solves that problem. It's a matter that, I think I speak for the Committee, should have been investigated to make sure before we had a hearing, that there were not links to other incidents but we now hear from Mr Hugo that the link diverts from Colonel de Kock and that solves the problem.

MR VISSER: If I may Mr Chairman, that may solve the one problem but it has just occurred to us that your remarks raise other issues as well because there are many, many cases of bombings and attacks on property, where no doubt there will be allegations made that those people at least believed that their actions were accepted by authorities from higher up. This has come as a surprise to us Mr Chairman, but I must say we are in full agreement with you.

One should perhaps take the view that at the end of this hearing, before you make any decision on whether to grant amnesty or refuse it, that one should listen to the others as well.

CHAIRPERSON: Well, I don't think one can link up various bombings that took place. We all know that there were many. This one is I think relevant in that it was another church, the South African Council of Churches in Johannesburg and the Catholic Bishops building in Pretoria, they're the same type of buildings.

MR VISSER: Perhaps Mr Hugo can inform us if he knows whether there are also other applicants, one would assume that there would be, whether they hadn't made, if he does, whether they haven't made allegations which will coincide with the fears that you've expressed.

ADV DE JAGER: Sorry, I think we should be a little bit practical. If we try to have hearings of all people linked in certain events, I don't know perhaps then we'll have to go to the arena at Voortrekkerhoogte to find a place where this can be accommodated and we'll sit there for the next two years. People being involved in one incident would sit there and they may ask one question in two years. I don't think it's practical and let's try and solve the problems as they come about. I think this problem has been solved now and let's not get into other matters now, let's continue and see how far we can get with this one.

MR DU PLESSIS: Mr Chairman, I don't want to waster time necessarily. I am also as concerned as Mr Visser about the question, if that is going to effect my client's credibility or the question of full disclosure. I have two clients, Hammond and Kotze who were also involved in the Khanya House incident which came after these two incidents.

It seems that a lot of people here were involved in the same incident. My clients have also applied for amnesty. So if we can be sure that disclosure of that at this hearing will not have any effect on full disclosure then I don't have any problem to go on but I have to make the point that we applied for amnesty and if it's necessary for full disclosure to deal with that incident then we will have to.

CHAIRPERSON: No, but you have made a disclosure by applying for amnesty, you don't have to lead the evidence here. The question arises only if there had been a direct link going back from Colonel de Kock up through General van der Merwe to Mr Volk as there was in the other. That is the only question, and they have not disclosed that.

MR DU PLESSIS: Yes, Mr Chairman, then I'm satisfied. My clients also don't link it up to Mr Vlok or General van der Merwe.

CHAIRPERSON: We have been told now that that link is not going to be suggested, so the question doesn't really arise. It may be, I do agree with Mr Visser, desirable that we should not come to a firm conclusion till we have heard other evidence but we can certainly continue with and finish this hearing.

MR MAFUNYANI: Mr Chairman, on behalf of the S.A.C.C., may I just say that although at this point we obviously cannot say that the two incidents are linked, we would certainly be interested in being provided with the applications in respect of Khanya House, which we may need to use during our cross-examination, thanks.

MR MPSHE: Mr Chairman, that would certainly be done when the Khanya House is scheduled for a hearing. All members are entitled to the applications of all applicants.

CHAIRPERSON: What you were suggesting was that the persons we have just been told, the applicants who apply for amnesty before us now have also in their applications dealt with the Khanya House incident so those applications are before us. In fact we haven't been supplied with the full applications in most cases, to cut down on the paper work, quite rightly so. I think that if any of the parties wish to see the full applications, they're entitled to because that application is before us, we are only dealing with certain portions of it.

MR VISSER: Mr Chairman, my attorney has asked me to draw your attention to a fact, not that we make any point of it, but just to draw your attention to the fact that in the case of the ANC, what happened there was precisely the thing that has filled Commissioner de Jager with horror. They had all their bombings in one application and one wonders whether that is not the way to go.

MR BOOYENS: Mr Chairman, just insofar as the submission of my learned friend on behalf of the S.A.C.C. is concerned, I would certainly have reservations about the question as to whether he's entitled to cross-examine my clients who were foot-soldiers at Khanya House in regard to this one. I would ...[intervention]

CHAIRPERSON: I don't think it was a suggestion that it was the foot-soldiers that he would want to ask questions about, I think it is the cross-examination that has been reserved till Monday. That is so isn't it?

MR MAFUNYANI: ...[inaudible]

CHAIRPERSON: Right, can we continue?

MR VISSER: Mr Chairman, continuing on the issue of press reports, there appear to be some press reports that are circulating both in the newspapers and on television which appear to give a distorted view what the evidence of General van der Merwe was. There is one which upsets General van der Merwe to the extent that he has asked me to ask you to grant him an indulgence just to state clearly what is evidence is in regard to State President Nelson Mandela, because there was news report in the Beeld of this morning, charging that Mr Nelson Mandela covered up investigations and we believe that it is such a serious allegation that General van der Merwe should be allowed just for a few minutes to tell you what he said to you and what he intended to say to you and what his evidence is in that regard. Will you allow that indulgence Mr Chairman?

ADV DE JAGER: Yes, I have no objection to that but I don't think I've misunderstood his evidence. It seems as though the press misunderstood his evidence and perhaps he should address the press and not us, but I've got no objection if he wishes to address us.

CHAIRPERSON: I take it what he is doing is using us as a platform to address the press because we will have the transcript of his evidence available to us and we will not be influenced by misleading press reports, but if he wishes to now clarify the position we will give him the opportunity to do so.

MR VISSER: Thank you Mr Chairman. He is still in evidence.

GEN VAN DER MERWE: Chairperson, I am still under oath. Chairperson, thank you very much for the opportunity. Firstly, I would like to mention that I submitted the evidence during cross-examination and I merely quoted casually, I didn't put it in perspective but in spite of that I still don't think that the deduction now made in the media, that I infer that President Mandela tried to cover something up, that is not at all reasonable.

Chairperson, I would just like to sketch the background for you against which my discussions with Mr de Klerk, Mr Coetzee, Doctor d'Oliviera and eventually Mandela took place. It took place during the negotiation process where the granting of indemnity or amnesty was constantly implicated. We were of the viewpoint right from the beginning of the negotiations that some kind of satisfactory process should be established to deal with the deeds and omissions which came about through the conflicts in the past. In the light thereof, when Judge Goldstone, and I must say it was more or less, at the end of the Goldstone investigation, continued with the investigations against members of the security forces, specifically the security branch, I then went to the then President de Klerk and I told him I feel it is unfair, it is unreasonable towards the members of the security branch that such investigations were being carried out at that stage whilst in the case of the ANC/SACP Alliance those investigations were stopped. To indicate to him why I thought the government had a specific obligation in this sense, I mentioned to him that the security branch acted on instruction of the government when they blew up Khotso and Cosatu House.

MR VISSER: This would have been before 1994, it would have been round about the middle or end of 1993?

GEN VAN DER MERWE: The end of '94, maybe the beginning of '94 but definitely before the elections Chairperson.

Mr de Klerk's point of view was that those types of offences in any case fell outside of the mandate of the Goldstone Commission and that he could not see how he at that stage had to concern himself with it. Because the situation remained unchanged, I went to Kobie Coetzee and I put the same to him. I told him explicitly that they must bear in mind that the government has a duty here. We blew up Cosatu House and Cosatu House on their instructions. I would just like to emphasise it wasn't about Khotso and Cosatu House as such. I just mentioned it as examples why, on the side of the government, there lay a specific duty. Mr Coetzee's attitude was: We are busy with negotiations with the ANC/SACP Alliance with regards to indemnity or amnesty which is at quite a progressed stage and it seems as if we will reach an understanding and that you do not have to worry about it anymore. In my presence he also contacted d'Oliviera and he told him that he must bear in mind that negotiations with regards to amnesty or indemnity already are at a quite a developed stage and that he must treat his investigations against that background.

MR VISSER: Did ex-Minister Coetzee refer to Khotso House or any specific incident during his conversations with Doctor d'Oliviera?

GEN VAN DER MERWE: No, Chairperson, he also spoke generally.

After this also did not really stop the investigations by the Goldstone Commission or members thereof, I went to President Mandela. I must mention to you that on several occasions before 1994 or before the elections I had negotiations with President Mandela with regard to amnesty or indemnity, so we had discussed this subject from time to time and at one stage Doctor Neil Barnard was also present. At one occasion I told President Mandela, then still Mr Mandela, I feel that it's very unreasonable and unfair that the continuation of investigations against members of the security forces, in particular the security branch should continue while similar investigations in the case of his people were stopped. I also told him that it's very difficult for me to motivate members of the security branch who would play a key role in ensuring that the elections proceed peacefully and without incident, if it should appear that from the beginning there would be discrimination against them, especially in the light thereof that negotiations regarding amnesty and/or indemnity already were at a developed stage. President Mandela agreed and he told me that he undertakes to speak to Judge Goldstone about this. The intention was not at all that anything would be covered up or that perjury would take place or that an attempt would be made around this to treat the situation in such a fashion that the law does not run its course. The idea was pure, we are busy with a process where all these deeds are going to be handled and our approach was that at that time there was an unequal, unreasonable handling thereof and we wanted that to stop.

MR VISSER: In other words what you are saying is that there was a holding action and you thought that the holding action had to be applicable to everybody?

GEN VAN DER MERWE: That is correct Chairperson. I want to emphasis that I never on any occasion gave any particulars with regards to any incident to Nelson Mandela. It was not about, in all these cases, about Cosatu House or Khotso House. I basically mentioned it as examples just to emphasise the principle but not for President Mandela. In an earlier stage I told the Attorney General, Doctor d'Oliviera about this and he must remember in his investigations that these things were done on the instruction of the government and I do not want the members of the security branch who were involved in this to be prejudiced.

MR VISSER: Is that all you wanted to say?

GEN VAN DER MERWE: That is all, thank you very much Chairperson.

MR VISSER: Thank you Mr Chairman.