DATE: 4 & 5 DECEMBER 1997


DAY 1 & 2


MR LYSTER: We have to start again for a brief session before we close this evening at about quarter to five.

MR MARITZ: For the record my name is S.J. Maritz of the Pretoria bar and instructed by Arenz, Penzhorn. And I appear for General Malan. He has or he is attending this sitting by reason of a subpoena which was served upon him. And you will recall that some time ago General Malan approached the Commission of his own volition and handed up and I think placed on record a written submission which was quite lengthy and which was substantiated with relevant documents. He was also thereafter questioned by a number of members of the panel which heard him, and his evidence in that regard is also available.

We have received together with the subpoena quite a number of documents which we have dealt with during consultations and we are ready and able to precede therewith. The difficulty is, as has been pointed out by my learned colleague, Mr McAdam that apparently the page numbering is not the same of some of these things and we're not sure that we have the same body of documents. So we would like time to sort those little problems out. On the other hand you've indicated that you wish to proceed to not to lose too much time until round about five 'o clock this afternoon. Now, I'm making this terribly long.

Let me get to the point. In preparing to attend this sitting General Malan was not of the view that he could substantially add to what he has already said to another panel of the Commission. That on consideration he has decided to seek leave to address you on issues which he thinks are very important in regard to the structure and operation of the old SADF. And if, he says he's ready to proceed and if we could deal with that beforehand I'll be very grateful. So it would have been in a nature of a short resume of the issues which he regards as very important. Thank you.

MR LYSTER: Oh no it would be fine if he wanted to start like that. I take it there's no written document to hand in.

MR MARITZ: No. We've not prepared a document but he will with reference to documents and if it's any fresh documents we undertake then to make copies available overnight and have it for you tomorrow morning. Thank you.

MR LYSTER: Ja. Thank you. Mr Malan we welcome you here today. Thank you for your patience and General Malan for waiting all day and before you begin we'd like to ask you to stand and briefly take the oath. And can we have your full names please?

ANDRE MARANDOM MALAN: (sworn states)

Thank Mr Chair, as advocate Maritz has indicated I voluntarily on the 7th of May appeared before the Truth Commission. I made very important points there, important statements, certain questions that were put today to Dr. Barnard were addressed by me in a comprehensive way. I would then like to say that with regards to this submission there's nothing that changed. I still view this as important and what I am going to do today results therefrom. That's the first aspect.

The second aspect; I think that in the functioning of a state, especially with regards to the Defence Force - and I specifically talk about the Defence Force. There are certain parameters within which planning and certain decisions take place. In other words, the way in which the Defence Force functions in a certain milieu. Some of the Commissioners today asked questions in that regard and it's very clear that they are important questions. They are lacking in knowledge but you sit there with their document before you. That document was submitted by the Defence Force but the Defence Force never discussed that document with you. The document was handed up and General Viljoen and the other people who were there discussed other things and not the document. I am not going to discuss the whole document with you but I'm just going to give you the first part because I think that some of your follow-up questions would be facilitated thereby if you want to put them.

It basically concerns the following four aspects. In the first place it's about the security threat. And as Dr. Barnard said there was a yearly forecast, you didn't want to give your documents. I think it's important to discuss that because we had to determine what the circumstances were at that stage. The second one is the national strategy. I do not have documents but there is a document. The only documents I do have are the documents that you have given me. Second one is national strategy. There's referred to the goals and aims of government and it's policy. All departments had to try and realise that goal and aim and policy, that's the questions that you were asking on departmental level.

The third one resulting therefrom, concerning the Defence Force. The Defence Force had to fulfil certain tasks. I, Dr. Barnard referred to certain budgets. If a government says that there are certain aims and the departments had to look at them then there are three things important. And then one had to calculate this. And tell the government and say if you want this task to be fulfilled this is what it's going to cost you, this is the manpower needed and the machinery. So there is a logical aspect thereto and then I'll make some remarks on that.

The previous time I appeared before the Commission a Commissioner asked me a question, a lady. She asked me what I would think the Defence Force should do today and I also think of the question that was asked to Dr. Barnard earlier. The question concerned checks and balances as well and this is where the checks and balances lie. That is why I would like to make this contribution.

The first part is on, it was delivered to the Commission on the 8th of October '97. He looks at the, in other words he tells you what this country is facing on security front. Then he comes to revolutionary war and I would like to quote a short part thereof. Which in essence all described it as a conflict which wide ranging and radical change in the political, the social and economic field are brought about through the use of violence. Basically revolutionary war is the pursuit of a policy of a politically inspired and organised group inside a country. By all means available also with outside support success obtained by the creation of a situation of instability and political intolerability through a war of attrition thus producing a climate of political collapse or acceptance of a negotiated solution. Without necessarily defeating military opponents on the battle field.

Then violence, terror, propaganda and intimidation by the revolutionaries are a key ingredient to promote fear, instability and ensure support and to mobilise the masses. As had been the case during world war two the intensive use of psychological operations breeds dislike and hatred or creates sympathy on one or both sides.

External support as well as the need for external manoeuvre and freedom of action is of vital importance to the revolutionary movements. The external areas must also be chosen so as to inhibit and paralyse the external freedom of action of the government forces. Compelling them onto the defence. Thus creating scope for the revolutionary military forces and making their opponents commit vast resources on the protection of the population and infrastructure.

The next heading is cold war. The cold war. And here I quote a few passages. In areas where direct (...indistinct) was unlikely the super powers were prepared to participate or to support others in their wars on a proxy basis. As part of the cold war the communist powers supported the wars of national liberation which sort to gain independence for the former colonies of the European empires as well as in other areas. And a bit further down; most revolutionary wars were thus not only wars of liberation for people concerned, but also proxy wars for the super powers.

The following were among the explicitly declared objectives of Soviet policy in Southern Africa. First to establish and improve relations with the frontline states of Angola, Botswana, Mozambique, Tanzania and Zambia. Secondly, to support and strengthen the national liberation movements in South Africa, Namibia and Zimbabwe. Thirdly; to support progressive programmes adopted by African governments which had embarked on the non-capitalist development. Then the reduction of USA and West European influence. The following one; to obtain the right of bases and reconnaissance in the area. Second last; limiting American and West European access to the mineral resources of the region and lastly; threatening one of the oil supplies routes of the United States and Western Europe.

The instruments of Soviet policy in Africa included economic and military aid, technical assistance, trade, diplomatic relations, assistance in the field of intelligence, security and propaganda and direct military intervention especially in the case of Angola and Ethiopia. Border wars, other conflicts, internal struggles and general instability were avenues for Soviet involvement. The Soviet Union succeeded in establishing socialist orientated states in Congo, Brazzaville, Angola, Mozambique and Madagascar. While Zambia signed an arms deal with the Soviet Union in 1979. Soviet weapons and training assistance were made available to SWAPO, AZAPO and the ANC. The conflict was also part of the cold war and South Africa saw itself allied on the side of the west.

The aim was not only to counter the revolution but also to halt the expansion of Soviet domination in the sub-continent. At that stage the RSA's military strategy was mainly based on defensive posture. Because of a commonality in the threat perception between South Africa, Portugal and Rhodesia as well as the direct or indirect involvement of SWAPO and the ANC in Rhodesia, Angola and Mozambique. The South African Defence Force became involved on a limited scale in these countries during the early sixties. This was the first step towards a more outward defence policy.

In the turning point, in the direct threat to South West Africa, Namibia and South Africa occurred in April '75 when the Portuguese government in Lisbon was overthrown. Which was followed by a consequent collapse of the ALVOR agreement in Angola which resulted in the purge by the MPLA with Cuban assistance the expulsion of the FNLA and UNITA from Luanda and the ensuing civil war. With the accession of power of FRELIMO in Mozambique and the MPLA in Angola the way was now clear for SWAPO and the ANC to move their bases and other facilities further south. These circumstances brought about the first significance change in South Africa's defence strategy when the Vorster government decided to follow the actions of the USA and side with the FNLA and UNITA forces against the Soviet back MPLA. The first South African weapons were delivered to UNITA in October 1974. By that time SWAPO was already establishing itself in the southern areas of Angola.

Now I, Mr Chairman I carry on with the strategy and the counter strategy. While the SADF was involved in South West Africa, Namibia the ANC was also active in furthering it's plans for actions in the internal struggle in the RSA. The ANC applied a new strategy based on the four pillars of their revolution. Briefly they are: developing underground structures secondly, united mass action, mass mobilisation. Thirdly; armed offensive and lastly; international drive to isolate South Africa.

From 1976 onwards, Angola had become the main trading centre of the ANC with Lusaka as the main operational centre. After 1978, Mozambique became the pivot for armed action against the RSA. With regional head quarters being established in Botswana, Swaziland, Mozambique and Lesotho. South Africa was slowly being encircled from the north. In the general review of operations, sorry I left something out, I'll just add it in. South Africa and the SADF was however determined not to lose the initiative in the immediate external or tactical area, thereby being forced on the defensive.

Then in the general review on operations contained in a white paper on defence and I referred at a previous meeting to study the white papers and I just quote here a small potion of it and I quote: In the present operation situation there is no controlled neutral zone between the RSA and the host countries of it's enemies. The result is that the enemy is able to establish and operate bases, armed depots and logistical routes close to the borders of the RSA and Namibia with the approval of the host country concerned. This means that the enemy can cross the border to lay land mines, kidnap and intimidate. Then within a few hours return to the host country where he is unassailable. No government in the world can afford a situation of this nature. Consequently when the situation arises the SADF had no other option than to launch pre-emptive operation against the border, across the border in order to destroy enemy bases, depots and logistical routes and in this way to discourage enemy actions from areas adjacent to the RSA border. This was published in parliament so all the politicians knew about it. I'm quite sure that it was also circulated in the SADF.

Later a situation was again debated in parliament and I made the following statement. I'm quoting a small portion of it. Let me again remind honourable members of the words of George Schultz, US Secretary of State. And he said: "From a practical standpoint a purely passive defence does not provide enough for a deterrent to terrorism and the states that sponsor it. It is time to think long, hard and seriously about more active means of defence. Defence through appropriate preventive or pre-emptive actions against terrorist groups before they strike." End of his quote.

And I quote further on. Consequently to act against the ANC in neighbouring countries and destroy their facilities is a form of self defence for the Republic of South Africa. It is based on a justified principle. In, and I'm quoting from the document again. In applying this dimension of the national strategy the South African Defence Force had two major problems. In the case of SWAPO their bases in southern Angola were so situated as to make maximum use of the protection of the MPLA facilities, infrastructures and units as well as sophisticated Soviet air defence.

In the case of the ANC and PAC their cadres were not operating from bush based in isolated rural areas but mainly from houses, camps and similar facilities in or on the outskirts of towns such as Maputo, Gaberone, Maseru and later Harare. These base were mostly small, clandestine facilities which changed regularly. A target base could therefore be active on the one day and gone by the next. Military factors such as accurate intelligence, security, surprise infiltration and infiltration of the attacking forces, etc. were of primary importance.

Besides this there was also the danger that such facilities could include civilians. Thus endangering their lives or property. These problems accentuated the need for an effective, covert intelligence capability and the increasing requirement for clandestine and covert special operations. Therefore the SADF's organisation in this regard had to be developed and frequently adapted these requirements. Including the need for a CCV type of unit. There was a clear correlation between the ANC strategy and the counter revolutionary strategy of the South African government.

The first extensive national strategy was approved by the Cabinet in March 1980 and titled; Boek 1, Beluit die RSA se Belange en - the RSA's Interests and goals and aims and policy for orderly government." From these aims and orderly government it was necessary for the departments to with those aims in mind, individually and jointly to formulate their own tasks and from this it is required from the department as I have just said the three M's. That is where it was determined. The manpower of the Defence Force, it's weapons and it's logistical capabilities and monies were then given to it. It occurred from year to year. The Defence Force could put out it's budget for twenty years in the future.

The previous occasion when I appeared here I made the remark that what must the Defence Force do now. This is what the Defence Force has done in the past. That is to help the communities who have lapsed behind. We had a community in Kimberley the males alone who had no qualification in the age group 16 to 23, they came voluntarily. We accepted them, we handled them conscripts, we paid them money and we negotiated with the department of manpower and we taught them certain skills. They became technicians, etc, bricklayers and when he obtained a job we released them. If he did not get a job he retained in the military where he developed his expertise regarding his necessary skills. Later he went back to his communities. This can be done at the moment with this analyses I've provided today I would have requested you to ask the present government what is the task of the Defence Force. What are the dangers on the horizon, what are the three M's? It's very important and I've told the Commission because these skills divisions have been created in the new South African Defence Force. There's a general Maloi, he was an MK cadre, he's responsible for this. He's been appointed there, why don't they give him money. He has no money, he can't train the people. Can you see I agree with the question previously asked a certain adjustment should be made. But then it should be done on a scientifically and orderly way to determine what is necessary to appropriate to the Defence Force and how can they help to uplift the disadvantaged.

Ek gaan vort. This morning an allegation was made that the Defence Force at a very late stage thought of winning the hearts and minds of people. In the 1970's already I've said that eighty percent of this country's activities should be to win the hearts and minds of people on the political level, economical level, welfare level, constitutional level. That's where the problem is. Politics is only twenty percent of a country's management.

The need for co-ordinated action on all above terrains and recognise the eighty, twenty percent requirement of the conflict. That is that the greater accent should be placed on the political and other spheres while the security aspects only made up twenty percent of the solution. Based on the strategy and as a part of it's application the region was subdivided in three areas. An area of responsibility that's South Africa, an area of influence to outside. And an area of interest. And this is very important. Are you buying naval ships to go and fight in India? Is that the government's objective in life? Or are you concerned about your neighbouring states?

The reason why I'm discussing these things, we are allocating money. I developed this system and to a very great extent with the help of my colleagues and I doubt whether there's a other way of doing it of allocating priorities by using the government's objective and what he wants to achieve. The strategy emphasised the defence of the RSA for available, a defence of the RSA with all available means within the limits of the law against any form of external aggression or internal revolution, whatever the origin.

Secondly, the need for a suitable, conventional military capability so as to ensure the defence of the RSA against outside aggression by pro-active action. The need for an effective intelligence network has to provide the required backup for the planning and the support of operations. This included requirement to provide accurate and timeous military intelligence to other authorities within the parameters of the division of responsibilities in the intelligence community. The need to conduct cross-border operations into neighbouring states as a preventative action in self defence.

Second lastly. The prevention of a build up of hostile terrorists or conventional forces in neighbouring countries that could constitute a threat to the RSA. And lastly, the need to support the aims and position of anti-Marxist movements in the region so as to form a buffer against Soviet expansion and to promote common anti Communist interests. The document provided the framework for further strategies and for further applications of the strategies, guidelines that emanated from the State Security Council with the approval of Cabinet. And please remember that the State Security Council couldn't prove, it could recommend. Numerous guidelines, directives and new strategies were issued by the Cabinet from 1980 onwards.

This all developed at the stage that the ANC was vigorously applying it's new strategy and that was the regional political military committees with their machineries or military task groups were being established in Maputo, Swaziland, Botswana, Lesotho, Lusaka and later Zimbabwe. Violence in the country escalated. MK cadres played an important role in testifying the internal onslaught and political and military training of MK members inside the country and in the neighbouring areas was ongoing. MK began to establish military structures and political cells in some of the townships areas which developed into bases or so-called no-go areas.

And then a few remarks. From the above it should be obvious that the national and departmental planning process was an ongoing and of a dynamic nature with a constant adaptation according to the actual and perceived threats. It also illustrates the fact that the SADF operated according to a specific mandate. It did not function in a vacuum or of it's own desire. It operated with adequate direction from the government and parliament. Defence strategies followed specific guidelines and directives after continuous and detailed analyses of the threat to the country's security. The proceedings for strategic planning at national, interdepartmental and departmental level was specified in numerous State Security Council directives.

The overall planning was also summarised in the white paper on defence and was tabled in parliament on April 1979. The following was stated in regard to defence planning. Within the South African Defence Force the planning is executed as follows; For it's design the SADF strategy are determined by the State Security Council's total national strategy directives and the total national strategies and analysis of the threat as well as of the SADF's capabilities. These strategies are determines inter alia missions and tasks to be executed by the SADF to counter identify threats according to stipulated time scales.

The military threat to the country was very real particularly because of aggressive Soviet intervention in Angola. Both in Namibia and the RSA the threat was that of a classical revolutionary war. Simultaneously integrated with the potential of a limited conventional war. There was also the ever increasing threat of violence, terror and intimidation against those who did not support the revolutionary struggle.

The SADF was acutely aware of the fact that the solution to the revolutionary struggle was only twenty percent military and eighty percent political. More importantly it was often the SADF itself that warned the political leaders that the solution to the conflict in South Africa was not to be sort through military means but by political restitution.

At no stage during this time however was it the official policy of the government or the military that the SADF or any other organisation was above the law. Neither did the military see itself as the substitute or caretaker of the government of the day. Neither did the former SADF attempt a so-called silent coup in order to be able to play the predominant role. The members of the former SADF clearly understood that the SADF could only be part of a total solution and not and end in itself.

Mr Chairman this is the part which comes from the South African Defence Force. It's very important and you should take note of that. If there is still time left I think that the next aspect as why I'm here refers to the State Security Council and I wish to make a few remarks concerning this.

For me and my approach based on the study of all the Cabinet and State Security Council decisions which I saw and you've seen more than I have. These are attempts by all the members of those two bodies and it shows that always they supported legitimate actions. Nowhere mention is made of how they acted without the bounds of the law. Read decisions of the Cabinet, SSC. I don't know how many there are, there could be a thousand. I think there are almost ten thousand problems they addressed and in every respect it was lawful methods or lawful actions they addressed. And when no legitimate actions could be taken it was left just like that.

And the functioning of that it was State Security Council it was mentioned that there were four committees. Those four committees reported to the Cabinet. It was the social and the economic amongst others. Not one of the others was subordinate to the other. The SSC was a statutory body and because of that it had certain sub-structures and where these sub-structures necessitated it that it was responsible for making security recommendations according to certain specifications. Because of that the strategies derived from security and these Cabinet committees provided their inputs, the secretariat processed it and it was approved according to that and presented to the Cabinet for approval or disapproval.

It was not that the one was subordinate to the other. There were no parallel lines of authorities. The various departments were not incorporated here. There were representatives here, the Ministers were represented here but the departments were directly responsible to the Cabinet.

The SSC had certain long standing members but they also had co-opted members. While Mr Botha was there, I can't remember about Mr de Klerk, it was always the provincial leader of a province who served on the SSC. And the provincial leader had to have his finger on the pulse of what the feelings of the people were so that he could provide his inputs. Not necessarily that he had specific department to provide input. If there was a certain matter outside the SSC or whether a certain department had to be drawn in, the Minister and also the DJ or the auditor general from that department was called in. The SSC provided advice.

And the minutes. Doctor Barnard referred to that. I wish to confirm that. The minutes were cryptic and short. The person who talked the loudest was recorded and the others perhaps not. It was not the various points of view and the various discussions were not recorded. The chairman listened to everything and in the end he gave a summary and he said it feels as if the meeting said we should do this or that and we did that, acted accordingly.

There was also always an opportunity for Ministers to object. In a certain instance the Minister said he wanted to object it and after a long discussion he withdrew that. Or he could if he did not agree and left and said I could leave the Cabinet but once that decision was taken by the SSC and the Cabinet approved that everybody carried the political responsibility for that decision. I don't know whether all these decisions were documented. We went through various phases. There were two very important documents regarding the Defence Force's operation. The white document you will find here and the document you've given me it's 1979, August '79. I'm not sure, it's document number A. It's a very important document. It gives an indication of how the checks and balances were functioned once the Defence Force will operate; should he do it or should he not do it.

In 1985 a new document was drafted. I think various other documents were drafted afterwards. This was a dynamic management way. What is relevant today may not be relevant the next day because situations changed so drastically. But if a question is asked about that I will try to give your answers regarding those two specific documents.

The SSC as you heard, met every two weeks. Special meetings could be arranged and in the Defence Force it was a big problem for me and the same might apply to various other departments. For example in foreign, department of foreign affairs, if now suddenly the British government wanted some reaction for us he couldn't go to the SSC because they want an immediate answer. Then he went to the State President. Or perhaps they could consider bringing in other colleagues or not. If I had to lead certain sensitive operations which had to be done immediately then I consulted the State President. That's where the buck stopped. That is how a government is being ruled. That's not undemocratically because somebody should accept the responsibility. If he had taken a decision and it becomes known, I could just leave the meeting or I could accept co-responsibility. I don't think we should shy away from that.

And then lastly I want to refer to political responsibility. Political responsibility was caused by a dilemma in 1977 when I became head of the Defence Force. When I told myself; if we do cross-border operations with a certain group of people, who will carry the responsibility in a neighbouring country? I approached the Minister of Defence Force, I took General Viljoen with me and we approached Minister Vorster. We put the problem to him and he said no the lieutenant or the captain should take the responsibility. And I said no that person should carry the military responsibility but the political responsibility should be carried because if the United Nations had a problem or something you can't blame the lieutenant because that was the political responsibility.

And around 1979 documents were compiled, there's another document which I don't think was presented to the members and I wish to say questions which were asked today appear in this document. I handed it in previously and it appears under cross-border operations authorisation of the Defence Force operational cross-border activities, the 21st October 1985. And it specifies whose going to do that, who assumes political and military responsibility and the Cabinet was bound by this. I did that specifically because I was frightened of the situations you are encountering today that this person will say: "You have said this."

These are the guidelines, here are the checks and balances. Should he have obtained permission or not? The government if he decided to apply his security operations for example the Defence Force they should act according to certain norms. There were certain prescribed doctrines according to which he had to act. There were delegated capabilities. He was acting on behalf of the state, he's a service organ of the state but the state carries the political responsibility. And the actions will take place according to these norms.

Let's divide this into two. Let's take the internal situation. This organisation, the Defence Force has said repeatedly in written form and orally the Defence Force acts according to these guidelines and they are subordinate to the laws of the country. They can't just go and shoot people. There are laws of the country which state that you may not murder and if his action is legitimate the Cabinet carries the responsibility. And if he acts unlawfully it's his own responsibility. That is the division between these responsibilities. In neighbouring countries he uses his delegated competencies and if he acts accordingly the sate carries the political responsibility. But he should act according to a certain doctrine. The (...indistinct) aspect of the state is not there, the legal aspect. This is also a problem you have regarding the granting of amnesty.

For cross-border operation the political responsibility is provided by certain guidelines. When a decision is accepted it does not mean that any action is acceptable. I think that this is the problem you are having. The dispensation in South Africa was built on certain norms and according to that he should act. Those norms are the laws of the country. The Defence Force gets an instruction and result of that which comply with the norms, the consequences complying with the norms are the state's responsibility. If it's without or outside the norms of the state, it's not the state's responsibility. Whether it is to achieve a goal, whether it's a goal set by the state. I'm not a legal representative, I'm just trying on a simple way to see how I see this. I just want to add one thing. I want to compliment the ANC and I want to end with that.

In my submission I want to read this because I did not try to get it to somebody, released a very important statement a while ago, namely and I quote: "All member of the ANC involved in planning, commanding and carrying out the actual operations fall within the ambit of this submission. The leadership has taken collective political responsibility for the conduct of the combatants in the course of the arms struggle. The political responsibility is accepted for all the cadres even though we know that during the course of the liberation struggle anomalies may have arisen."

I think this is an excellent example set. Thank you very much Mr Chairman.

MR LYSTER: Mr Malan it is part of our job, as you are aware to investigate the motives and perspectives of role players such as yourself, in the conflicts of the past. And you have added valuable information to our store of motives and perspectives. And tomorrow we will resume and your attorney has requested if you could start a little later tomorrow morning because he has an appointment with the Archbishop. And I think we said that we agree to start at nine thirty. Perhaps before we break, we could enquire from Mr Penzhorn, I understand you are representing Mr P.W. Botha and whether you're able to tell us whether he will be here tomorrow because we have arranged, as you know to continue with General Malan. And as far as you know or are you able to enlighten us as to what we can expect? Because I don't want to tell General Malan that we will start with him at half past nine if?

MR PENZHORN: Mr Chairman as far as that is concerned I think if we can start with General Malan at nine thirty tomorrow morning I think that should be in order. I see no reason why we couldn't continue tomorrow morning with General Malan.

MR LYSTER: Perhaps you'll be able to be in a position to tell us tomorrow what the situation with Mr Botha is.

MR PENZHORN: I hope to be in a position.

MR LYSTER: Well not quite but I'll accept it. Thank you very much.

MR MARITZ: Mr Chairman I have one problem that I have to record and that's this. That traditionally once a witness has taken the oath it's hands-off. Now I wish to record that there were some matters that came up during the day which I have to attend to in consultation with my client. And I just hope that there won't be any objection against it but for what it's worth I ask your leave to consult with General Malan on those fresh issues that cropped up today. If Chris doesn't have any problem, I'll be very grateful. Thank you very much.

MR LYSTER: Could we just bear in mind that we have a bit of a time constraint and.

MR MARITZ: No, no. I'm just saying that I'm seeking leave to consult with him.

MR LYSTER: Oh I see.

MR MARITZ: He's under oath now and I'm hands-off, I can't do it without telling you. That's why I'm saying (...indistinct)

MR LYSTER: We will adjourn until tomorrow morning nine thirty. Thank you very much.



MR LYSTER: Thank you and good morning. In terms of the Commission's original agenda for the two days we were to hear evidence this morning from Mr P.W. Botha. We understand from Mr Botha's lawyers that a meeting took place this morning and perhaps if you can just place on record Mr Penzhorn as to whether your client, Mr Botha will be present today or not?

MR PENZHORN: Mr Chairman, as I told the Commission yesterday at the conclusion of these hearings, my brief here today is on behalf of, to appear on behalf of General Malan, together with Mr Maritz. As far as Mr Botha is concerned Mr Chairman I have just come from a meeting of the chairman of the Truth Commission and I have advised the chairman of the Truth Commission that in fact Mr Botha will not be appearing today. I think for the record that is all I have to say.

MR LYSTER: We note then for the record that Mr Botha is not present. And that matter is I understand from you being dealt with by the chair, the deputy chair of the Commission?

MR PENZHORN: That's correct Mr Chairman. I think it's the matter has been fully discussed with the chairman and the deputy chairman.

MR LYSTER: We will then proceed with today's hearing with General Malan. We finished off yesterday afternoon with General Malan having given us a short input regarding some new perspectives on the role of the Defence Force. And he concluded that at 5 p.m. yesterday and we will now again start with questions relating to General Malan's evidence by Mr McAdam.

MR MARITZ: Mr Chairman, before Mr McAdam proceeds may I just record the following? Last night I think it was in a region of about 6:15, last evening, we were given additional documentation. We have looked at it and we are somewhat prepared to deal with it. I wish to place on record that we are in no way obstructive. That we are making every endeavour to make the proceedings proceed as speedily as possible. But I would just record the misgiving that I have that possibly my client won't be able to deal with these matters as comprehensively as he may, as he could possibly have done had he had more time to prepare. And I would rather beg you to bear that in mind when the fresh documentation is considered.

May I also record that we've been handed a document which apparently relates to military writing. As far as that is concerned, as you well know my client is a career, or was a career officer. He spent all his life, apart from the ten years in politics, all his life in the army. And I dare say that if someone were qualified to give you specialised meanings as used in military terms, it would be my client. But I would once again request you to bear in mind that there's been no preparation whatsoever on this document which apparently relates to military writing. Thank you very much.

MR LYSTER: Thank you Mr Maritz. If General Malan is unable, unwilling to answer questions on the basis that they relate to documentation which he has not had a time to comprehensively look at them we will certainly bear that in mind and will not require him to answer questions on that point. Mr Daniel Malan you are still under oath and I ask Mr McAdam then, oh sorry.

MR McADAM: Mr Chairman if I could just put on record. I confirm the correctness of the fact that at approximately six 'o clock last night these documents were served on Mr Maritz. I'd also point out that the intention is that should it be necessary for any of these documents to be referred to or the General asked to comment there on this will be raised before any questions are put and furthermore it's not our intention to go into any detail on these late documents. If it's necessary to put a question or two we will alert the General to that fact and we'll take it from there.

As far as the questioning is concerned. I came into the matter at a late stage due to the resignation of the person who lead the evidence at all the proceeding hearings. There are essentially two things. One is the state security policies per se and secondly the military involvement, in so far as it can be linked to state security policies. Now Mr van Zyl has done enormous research and preparation on the former aspects and I propose then that questions relating to that issue be put by Mr van Zyl and that I would then confine myself to purely questions that are of a military nature. And it's not an attempt to try and either wear the General down by war of attrition or to have two bites at the cherry. They are two separate themes. We've crossed notes to see we don't overlap and it would be more convenient for Mr van Zyl to commence and then I'll proceed once he's completed his section.

MR LYSTER: Okay Mr van Zyl.

MR MARITZ: I switched it on and then it died. Any how I heard what my learned colleague has said and I was taken aback yesterday at what transpired here. A procedure took place which is totally foreign to any rule of procedure. At least in this country and now the same thing is happening again. There is not a court in the land, there is not an institution in the land where this is countenanced. There cannot be a situation where you can line up people on one side to conduct proceedings of whatever description sort of in tandem or each one taking a little bite at a thing and then carrying on down the line.

The reasons are so obvious that I'm, with great respect, astonished that this sort of procedure is contemplated. Where it is such a firmly established rule of procedure throughout our legal history and which does not countenance breaching at all, in my experience. I find it rather astonishing that there would be an attempt to deviate from this very, very well established rule of procedure. In any sort of procedure such as this is. And I would seriously object to this procedure being followed and we quite prepared to answer the questions. But there's no room for a series of people acting on one side to come in and sort of this one doing that and that one doing that and that one doing a little bit. It just doesn't make any sense whatsoever and we seriously object thereto.

MR LYSTER: That we adjourn for two minutes to discuss this but if you want to say something before we adjourn please do Mr McAdam.

MR McADAM: Mr Chairman I wish to point out this is not a criminal trial where the state has preferred charges against the accused and the state is presenting it's case. It's a Commission to canvass a number of issues and particularly if we look at the preamble to the act and section four of the act; the Commission must within a period from 1960 right up to '94 gather as broad a possible picture of human rights abuses committed inside and outside the country. And I submit that given the fact that there are a number of multiple issues that it is not unreasonable to say that this could be split between various persons within the Commission who have done the necessary research.

Secondly I would like to draw the committee's attention to the Caprivi hearing where Mr Maritz and Mr Penzhorn appeared and there the committee allowed the defence to have submissions which would commence with the attorney, switching to the senior counsel and then finally being concluded by the junior counsel. And that was done not only by one defence team but there are various teams that adopted that strategy. And I don't think that there's anything irregular or improper in what was done there. But I submit that what we propose to do now is simply in the same vein and we're not here to break the person down. There are a number of issues and those must be tested and clearly if the General feels that he's been overwhelmed he can always apply for adjournment or a break between questioning.

MR LYSTER: Okay we'll ...(intervention)

MR MARITZ: Mr Chairman may I just reply very briefly? The one thing is that ...(intervention)

MR LYSTER: This will be the last reply.

MR MARITZ: Absolutely, but now let me just point this out. That I have experienced this in the Appellate Division that in addressing the court or a body of course you can divide the workload, this is done in the Appellate Division. I've got no objection to that at all. But it's got nothing to do with the present situation. This is not addressing a body. Secondly I would like you to consider the fact that you may be opening a Pandora's box which you won't be able to close because next week if I appear for a client I'm going to arm myself with fifty people to cross-examine in tandem, one after the other. You can't allow this sort of thing because there is no sensible line to be drawn here. That the principle has to be maintained that on one side one fellow cross-examines, that's it. There is no room whatsoever for such a procedure to be adopted. Thank you.

MR LYSTER: Thank you. We will adjourn for a very short while to consider that. We'll make a ruling in a few minutes.



MR MARITZ: Mr Chairman, I record that in the interval my instructing attorney and I had discussions with members of the panel, including yourself. And we have come to a practical arrangement to try and facilitate these proceedings and to have them proceed because I maintain it is in the interest of my client that the matter proceeds as soon as possible.

At the same time I've recorded my objection in principle to the proceeding that is being adopted here. We have come and I have conceded that I will bear it grudgingly, without conceding that this is a correct procedure in any way whatsoever, but as a practical solution let's give it a try. But I must make it very clear that I reserve my rights in this regard and the moment I'm of the persuasion that my client is being prejudiced I'll raise my objections. If we can proceed on that basis Mr Chairman then maybe we can come to a practical solution. But I want to make it very, very clear that I do not concede under any circumstances that this is a valid procedure that can be adopted in the discretion of the committee. Thank you.

MR LYSTER: Thank you Mr Maritz. (break) Okay in view of the fact that there has been an agreement, albeit a begrudging one I won't make a formal ruling. So we will then proceed on the basis as arranged. Mr van Zyl if you restrict yourself to the material that you have prepared on relating to as I understand State Security Council accountability and Mr McAdam will thereafter proceed. And it's not a question of having two bites at the apple as it were. The two of you dealing with different sorts of material altogether.

And I also would like to place on record that the procedure that took place yesterday afternoon was irregular and I have, neither myself nor Mr McAdam had any forewarning of it at all. And it certainly won't happen again. Thank you Mr van Zyl.

MR VAN ZYL: Thank you Mr Chairman. For the record; Paul van Zyl. Mr Chairman I just want to say from the outset that of course Mr Maritz has every right to intervene if he feels his client is any way prejudiced. That is any case his right at any stage during any proceeding. I just hope that this agreement will not be construed as saying that the questioning that will be put to Mr Malan will not be probing and will not be the kind of questioning to which any other person who has appeared before this Commission would be subjected. Thank you. I intend to proceed on that basis.

Good morning Mr Malan, General Malan.

MR MALAN: Hello Mr van Zyl.

MR VAN ZYL: General Malan what I intend to do is to talk through some of the evidence that we have gathered in the course of our enquiries into the role of the State Security Council. Evidence given to us by the leadership of the security forces at the time and those people appearing at the arms forces hearing. As well as people appearing at the State Security Council hearing. The transcripts of which both have been provided to you. And to put you some statements about the role of the State Security Council in order to assist us in getting a clear picture as to how it worked and how state security policy was formulated.

Would it be fair to say that the State Security Council was established in order to develop a co-ordinated state response to what was perceived to be an increasing revolutionary threat to the country, a total onslaught as some people would put it and that what the State Security Council was designed to do was to develop a total strategy to counter the evolutionary threat to the country?

MR MALAN: I want to put it in this way. I don't have a problem with the explanation you've given or the question you've asked. But the main problem here is regarding security and the co-ordination of the other committees for example welfare, economic and constitutional.

MR VAN ZYL: And you said yesterday in what I regarded was a very helpful introductory statement before we adjourned the proceedings, that the State Security Council was in fact an advisory body. It was a sub-committee of Cabinet that had no executive powers, is that correct?

MR MALAN: That's correct.

MR VAN ZYL: To say that notwithstanding the fact that it was an advisory body it was a very important body. It was a considerable importance was attached to the decisions taken there, the deliberations held. It was chaired by the then State President, who himself was previously the Minister of Defence and who took a direct interest in the security of the country. It was an important committee in other words.

MR MALAN: The State Security Council was a very important body subordinate to the Cabinet. The Cabinet took the main decisions, it was the main decision maker. And the State Security Council was on the same level as the other three committees, the other three Cabinet committees I've referred.

MR VAN ZYL: We have information that indicates and I wonder, I'm not putting it to you that it is correct. We have information that indicates that the secretary of the State Security Council in terms of the civil service had the status of a director general and that the secretaries of the other three sub-committees that you refer to had lesser status. Would you be able to comment on that?

MR MALAN: I accept it could be like that but I explained yesterday that the one was a statutory body and the others not. Should there be a statutory body there was a difference in staffing. That's not a matter I know a lot about.

MR VAN ZYL: You said that the discussions that occurred at the State Security Council and the decisions taken at the security council would have been regarded as extremely important by members of the security forces, particularly the head of the SADF and the Commissioner of police who sat on that structure.

MR MALAN: I don't think the security forces knew which decisions the State Security Council or the Cabinet or the other committees made. The minutes of State Security Council were not distributed among the security forces. It was accepted in the department. The department in the normal manner would distribute it in the department. Every department acted differently. The military acted differently than the police or justice.

MR VAN ZYL: State Security Council and that would include the head of the, the chief of the SADF and the Commissioner of police would have received the minutes recording the decisions taken at the State Security Council?

MR MALAN: Mr Chairman, this goes over a very long period. Yesterday I tried to say that the procedures and the work method was dynamic. I want to put it in this way initially. Late in the 1970's, early 1980's I know that there was an instruction that only the Minister may receive minutes of the State Security Council. Afterwards there was an instruction that in certain aspects it could be used in departments. In other words, the other members could also receive that. I don't know exactly when that had happened. There was a situation that the State Security Council minutes had to be authorised by the Cabinet.

MR VAN ZYL: In certain instances the minutes of the State Security Council were not circulated to all the people who participated in the decision making processes in the State Security Council?

MR MALAN: Correct.

MR VAN ZYL: That's correct? General Malan how then would for example the head of the SADF, chief of the SADF and the Commissioner of police, who were members of the State Security Council, as I understand statutory members, how would they know how to implement decisions taken?

MR MALAN: Well they'll liaise with the Minister. The Minister will discuss it with them.

MR VAN ZYL: So the Minister would be at liberty to convey certain decisions taken but they would not have access to the full minutes?

MR MALAN: Well that's originally.

MR VAN ZYL: But did that change?

MR MALAN: Initially.

MR VAN ZYL: I beg your pardon. You said that?

MR MALAN: That was initially but afterwards they received the minutes too.

MR VAN ZYL: At what stage did that change?

MR MALAN: I wouldn't know. I'm not a secretary. I wouldn't know what they were doing there. I think the best person that can supply you with a satisfactory answer will be the secretary of the State Security Council.

MR VAN ZYL: Okay. Thank you very much. General Malan would you accept, we've heard from many, many people who've testified before the Commission that from the early to mid-1980's there was a rapid deterioration in the security situation in the country. There were an increasing number of attacks, there were boycotts, there was destabilisation, there were terrorists attacks and in consequence thereof members of the State Security Council, members of the Cabinet, the leaders of the security forces urged that stronger and firmer steps be taken to address the deteriorating security situation to bring stability to the country?

MR MALAN: Mr Chairman, the situation since the middle of the 1980's it is correct that it did deteriorate. I can't remember the correct date but the first state of emergency was declared in 1985. It was only in certain areas and in June a second state of emergency was declared for the whole of South Africa. But those actions indicated that the security forces were given more authority to act accordingly. The situation was of such a kind but if you refer to a firmer action, I don't know what you are meaning. Does it mean that they should be more draconian measures or they should act more purposefully. If you think more purposefully, in other words to have a more co-ordinated attempt.

MR VAN ZYL: urging by, and this is confirmed in the testimony provided for example by the Minister of law and order, Adriaan Vlok. That the then heads of the security forces and the political heads were urging the security services to take firmer steps to bring stability to the country?

MR MARITZ: Mr Chairman I must object to the question. It's repetitive. You have a clear answer by the witness. He has stated categorically that there was definitely a deteriorating situation, steps were taken to address it and there was a definite policy to what he calls; "Doelgerigte optrede." To step that up and to contain the situation that's developed. The question has been answered.

MR VAN ZYL: Mr Chairman I will proceed. That would you agree that members of the security forces who were acting on the ground who were charged with the responsibility of maintaining law and order began to experience two influences from the mid-1980's

MR MALAN: Can you repeat that part please?

MR VAN ZYL: That members of the security forces on the ground, charged with maintaining law and order began to experience two new influences. The first of which was a growing militancy and unrest throughout the country and they began to feel that the country was - as many have said and as Commissioner van der Merwe and as General Geldenhuys, head of the SADF, that the country was beginning to slip into what is termed the fourth phase of revolutionary war was beginning to move increasingly into a state of undeclared war.

MR MALAN: What's the question?

MR VAN ZYL: I say would you agree with that? That, that's what they began to experience and that was their view of the deteriorating security situation.

MR MALAN: Mr Chairman I accept that at a certain stage we're going to talk about terminology. I'm going to use this as an example. When we refer to terminology we should not generalise. Yesterday when Barnard was here the military was meant to be policed. I'm not here for the security forces. I'm here for the military and for the Defence Force. The Defence Force during that time supported the police. The police, and this analysis could be done better by the police. You are quoting from what van der Merwe and Vlok said. I can't contradict that because I don't have firsthand knowledge. I did not concentrate on that aspect.

MR VAN ZYL: In that period urged members of the SADF to take strong measures in order to bring the situation under control. It's that you were asking members of the military to perform, to stabilise the country. You urged them to take strong measures?

MR MALAN: Mr Chairman it's very difficult for me to say what are strong measures. Does it mean that you are hitting him harder every day? I did not do that. I did something else. I tried to look at a co-ordinated plan and with that I don't mean that stronger measures should be taken by the security forces. They should have acted in a more co-ordinated way. I want to refer to the Springbok rugby team now they are playing much better because they play in a co-ordinated way, as one team. I did not tell them to take stronger measures. We went along in a normal way and we had our normal guidelines, namely first to stabilise and then to normalise. Those were actions taken which were normal. And it's not a question of stronger measures.

MR VAN ZYL: About the mid-1980's and yesterday you gave us a very good account of the military's approach to the conflict that was being conducted that at one stage the threat analysis being generated particularly through the military, was that the threat was emanating. Particularly from frontline states where the ANC had established bases where they were stockpiling weapons, where people were undergoing training and people were then infiltrating into the country. But that at a certain stage in the mid-eighties the threat was no longer exclusively external to the country. That in fact terrorist bases or groups of terrorists began to be established internal to the country. And that the threat was also emanating internally?

MR MALAN: This is a very difficult question for me and I'm going to try to my utmost best to remember. I just want to ask Mr van Zyl, you must put your microphone a bit nearer. I can't hear very well. No, no I don't want it, it's better this way that we can communicate on eye level, eyeball to eyeball. Thank you.

I want to put it in this way, I don't know if terrorist bases were established internally in the country. There might have been but it was just a temporary measure. some people would come into the country and then leave later on. That's what I would have done if I were in their position. There were the so-called liberation movements. Those were not armed forces. Here I just want to repeat what I've told the previous meeting if I refer to the ANC, to the AC, I refer to the MK. That is a problem regarding terminology.

To come back to this point I think Alexandra in Johannesburg was the one liberation area. It does not mean that there necessarily were armed persons. There were certain obstacles round this township and the security forces especially the police were driven out. And the police stayed outside this area. This can be described that there were internal bases. I don't know of any bases from where operations were launched but from outside the country, definitely. There's no question about that.

MR VAN ZYL: General Malan at some stage in 1985, P.W. Botha began the State Security Council meeting and I don't want to refer directly to the minutes. He just expressed a sentiment which I'd like you to comment on. He starts by saying, it's an opening address. He says he is now convinced that the brain behind the unrest is inside the country. And I take that, would you say that, that would be illustrative of a growing awareness by people in the State Security Council, that in fact whereas previously people were based exclusively outside the country and were infiltrating in. There was now, I agree not armed ANC camps inside the country but the ANC was beginning to establish cells inside the country. That they were beginning to establish a presence in certain places in the country. Not necessarily formerly armed bases but they were internal to the country as well.

MR MALAN: I'm not sure whether that was the way he mentioned that but I want to give you my standpoint. If I want to refer to the ANC, MK. I would say the MK was on the inside. Perhaps just certain individuals who came in and then left the country again. But I want to put it in this way that politically the intensity and that was during the time of the UDF and the mass democratic movement, this whole situation was intensified. The comrades were there, there was a situation where certain pressure was exerted on the communities. And revolutionary concept developed and it could have been that he perhaps referred to brains inside and perhaps referred to these people. I'm not sure. This was how I could explain it.

MR VAN ZYL: (...indistinct) be that at a certain stage in consequence of the deteriorating security situation that a broad and principled decision was taken that whereas in the past, the SADF would confine itself to by and large to protecting the sovereignty of South Africa. Particularly dealing with matters, security threats to the country which occurred external to it, outside of the country. That in consequence of the fact that in fact the threat was emanating as well from inside the country, the SADF would cooperate closer with the South African police in restoring law and order and combating terrorism within the country.

MR MALAN: Mr Chairman that is correct. During that time in the middle 1980's a state of emergency was declared. The Defence Force operated internally and the Defence Force had a task internally and outside the country. It had to ensure or protect the sovereignty of the country and it co-operated closely with the police in support of the police. And I want to put it in this way. I'm not always sure whether you regarded the Defence Force at that time are as a lot of conscripts were used in the urban areas but the commandos played a very large role in this regard. If we refer to the commandos, they were situated especially in the rural areas. And like they covered the whole country and they could act country wide and assist the police country wide.

MR VAN ZYL: I quote, I think it was by George Schultz, the former US secretary of state who talked about at certain times it was necessary to act pro-actively in order to be defensive. And I thought that was an important articulation of a concept which I think perhaps has been misunderstood. Do I understand you to be saying that in certain points in time the SADF would, for example if they acquired knowledge that a terrorist base in Mozambique was staffed by members of the ANC and that information was brought to your attention that they plan to infiltrate into the country or launch an attack there, it would acceptable to launch a military attack against that base in a proactive way. But with the ultimate aim of being defensive. Would that be a fair comment?

MR MALAN: Just the last portion, the last sentence?

MR VAN ZYL: It would be acceptable to launch a proactive military attack against such a group of individuals in order to be defensive?

MR MALAN: Mr Chairman I want to come back to what I've tried to explain yesterday. The question is absolutely correct in the sense that what George Schultz said. And if you read the strategies which were agreed to by the Cabinet there was a policy of initially, proactive defence policy and when the situation developed dynamically it was changed to an offensive posture. And this offensive posture actually means that you could act across the borders and it should maintain the initiatives.

If you look at cross-border operations like you have mentioned, in the offensive posture of retaining the initiative and acting pro-actively according to the government's policy if the Defence Force has to act against such a target, the government had to say yes or no. The Defence Force would not do it on their own behalf.

MR VAN ZYL: Once it was approved by the government such proactive steps against armed groups of terrorists outside the country would acceptable?

MR MALAN: Will be?

MR VAN ZYL: Acceptable, will be permitted?

MR MALAN: Yes that is correct. If they approved it.

MR VAN ZYL: General Malan would that principle apply in respect of armed groups of terrorists who had crossed the border and were now inside South Africa and information was provided that this group of terrorists was about to launch an attack on a shopping centre or an SADF base or a Wimpy bar, etc. Would that principle that you would apply externally also apply internally?

MR MALAN: Mr Chairman it's easy to philosophy about these type of actions but if you go to the reality of the situation, it's very difficult because the circumstances will prescribe what to do. I will answer it in this way. If it was a armed force coming across the border it was highly probable that the police had the responsibility to look after this. If they carried arms the police would say the military had to assist them. If that situation occurred and the enemies stayed in the same place you would attack an armed force with arms. If they asked for a truce you would arrest them and take them away. In other words you will fight with weapons against weapons internally under those circumstances.

MR VAN ZYL: If I understand you correctly that if an armed group of terrorists enter into the country and they are armed it would be acceptable for the SADF to engage them militarily and act against them in the same way that they would act against them if they were outside the country?

MR MALAN: Yes. If the army was available to do that, I don't have all the guidelines now but under the circumstances you've described it would act in that way.

MR VAN ZYL: that the SADF and the South African Police had principally different ways of dealing with a threat to the country or how shall I put it? Restoring law and order? That the ultimate aim of the South African Police is to arrest people involved in unlawful activity and bring them before courts of law. And that the SADF would act against people in a military way and launch military operations. That the SADF were not trained to and generally did not perform arresting actions?

MR MALAN: Mr Chairman this is a very serious question. There's a very important factor emerging here. This is why I keep on saying that the army supported the police. The Defence Force does not take the initiative. They do not for example have the powers to arrest people. They could not kill people for example. The Defence Force supported the police. The Defence Force acts as a group. There's not one soldier standing all by himself acting individually. It's usually part of a group. A group with one leader. This one leader gives instructions. This whole facet of action is done in an organised way. He's working according to certain drills and those will be applied under all circumstances. There are standing instructions. There are the codes of discipline.

If he's in the country he is not above the laws of the country. He has to act lawfully and this is what I want to convey to you all the time. So yes, he would act but the probability that he would get into a situation in an armed confrontation is very rare.

Let us look at the towns. he would go into these towns and he would man road blocks but the police would search the people and the police would arrest the people. The police would be in charge. If certain areas are searched the police would do it, not the army. I hope that answers your question.

MR VAN ZYL: General Malan if there is an armed group of terrorists within the country and intelligence is brought to the SADF's notice that they are within the country, say at a safe house somewhere and they are, information is brought to your attention that they are about to launch an attack, it is conceivable that the military would then be brought in to take action against those terrorists?

MR MARITZ: Mr Chairman, I'm sorry to intervene again but these hypotheses are taking us no where. Have we got an academic discussion here? What is worth to this Commission, I don't know but I certainly cannot fathom any useful purpose in a hypothetical discussion of this nature. If the cross-examiner has something to say let him say it but this sort of debate is not taking us any where.

MR VAN ZYL: Chairperson what we are here to do is try to establish state security policy. The terms of that police had very real consequences for people in this country, for the ways in which members of the security forces conducted themselves. And I put it to you that it is not by any means academic. It had very real consequences for the lives of people in this country. I'm generally attempting to establish from General Malan questions in relation to what in policy terms would be and would not be permitted and then we will proceed to discuss specific case studies in respect thereof.

MR LYSTER: If you could move towards the point that you hope to make?

MR MARITZ: Well Mr Chairman, with great respect that is an issue that I understand. If that is the question why can't the witness be asked in direct terms what was the government's policy in this particular situation. Then everybody knows where we're going but a hypothetical discussion is really not going to take us any where.

MR LYSTER: Well I think we certainly are learning something about how the military behaved in the late 80's during the state of emergency and I think that it's a series of questions about the same thing rather than one question but nevertheless if you could draw to a?

MR VAN ZYL: I'm happy to do so chairperson. General Malan would you agree and these were sentiments expressed by Minister Pik Botha, Minister Adriaan Vlok, Roelf Meyer and Leon Wessels during our previous hearing and those transcripts were provided to you, that from the mid-1980's onwards the leadership of the National Party and the leadership of the security forces began to use increasingly strident rhetoric in relation to countering the terrorist threat to the country? They began to use forceful language as to what steps should be taken to counter terrorism in the country?

MR MALAN: Forceful language?

MR VAN ZYL: Strident rhetoric like: "Stamp out the revolution, hunt them down, sniff them out, etc"

MR MALAN: Mr Chair it's very difficult for me to react to this. I do not know to what they were exposed but I can testify about my exposure. I visited all the JMS's, I visited most of them but I never heard this kind of language, this forceful language you are referring to. The fact of the matter and the centre of the matter was something completely different. At the JMS's I accept you refer to their focus was on social and welfare terrains. The police and the defence force did not use these words. But if you want start referring to certain words like "elimination" and "neutralising" and such words, if you call these words strident, I would have to agree.

MR VAN ZYL: Regard these words as "klagdadig" and I quote from speeches that you yourself delivered in the house of assemblies. 28th of May 1985, Hansard, column 6378 to 9: "It is the RSA's policy to put it's case and defend and safeguard itself offensively with all the might at it's disposal against any form of foreign aggression or internal revolution, whatever the source." First quote.

Second quote. 29th of May 1985, house of assemblies; "Let me place it clearly on record once again that the ANC and it's fellow travellers are constantly threatening our security in this country. I want to make it clear again. I make no apology for doing so. That we shall do everything possible to sniff out and locate the ANC and take action against them wherever they may be. We shall look for them wherever and however we like."

Then at a speech reported in the Cape Times on the 10th of December 1985: "The SADF will not hesitate to root out terrorists wherever they may be. Whether it's in South West Africa, the northern Transvaal or our residential areas or city."

Then on the 4th of February 1986 in the house of assembly, Hansard, column 162 continuing: "The security forces will hammer them wherever they find them. What I am saying is the policy of the government. We shall not sit here with our hands folded waiting for them to cross the borders. We shall settle the hash of those terrorists, the fellow travellers and those who help them."

Would regard that as "klagdadig" language?

MR MALAN: Mr Chair, the question that you asked me, as I recall you refer to the security forces. I never spoke about the politicians, you are now referring to politicians. I will answer the politicians if you want to. I do not think that Mr Botha, Vlok and the others was that involved with the security forces when there were strong words used but if you want to refer to the politicians, yes. The politicians as a corpus did use this kind of word. It was general terminology used.

In my submission which I gave on 7 May I refer to this kind of situation. All the speeches you have now quoted I have quoted myself. I tried to show to the Truth Commission that, that was the kind language that I used. I checked and I said that this was also the language used by the ANC and the people at grassroots level could have had problems with them. I want to give this to you in an objective way. I want to put it you now in this way. That's why I say we will have to recall the realism of that time. What was the circumstances when these words were used.

Last night you quoted parts to me that you found in your research regarding acts that were committed across the border and words that I would have used. I gathered from that, that you were looking for a connection between my words and cross-border operations. I think you are making a gross miscalculation there. What you should have done was to go and take the statistics that I have given to you in the first submission. And I would like to quote from it. It is a much better version of what happened during that time.

I refer to page 28 A paragraph 103 A: "of targets. In 1981 attacks against hard military targets comprised 80 percent of the total. By 1986," and we talking about the mid-eighties, "however attacks against soft targets," that's in other words civilians, "comprised 80.7 percent of the attacks."

Then we go to the statistic breakdown of the terrorist attempts. In C on page 29, September '84 to April '92. Unrest related incidents 8507. Persons injured during unrest related incidents; 18061. Persons killed during unrest related incidents; 9280. Death or injury through burning in unrest related incidents, September '84 to December '89, death by necklace methods; 406, injured by necklace method; 28, death by other burnings; 395, injured by other burnings; 150.

Mr Chair this is not finished yet. If we look at the Defence Force's submission of the 8th of October this year to the Truth Commission. On his chapter, chapter 3 he gives you all the incidences during the shorter or longer periods and he then says how many schools were burned down, what the damages were, houses burned down, etc., etc. I think it is a very important factor. My speeches to me and those incidences were much more correlating than other incidences that you have now put to me.

But now I will have to continue with the facet of the speeches I have delivered that you have referred to. Most of them were made in parliament. There were approximately let's say 150 members, I can't remember exactly but those are members of parliament. There were various opposition parties as well. We did not agree on policy, there was much criticism but nobody criticised this in parliament, this what was said at the stage because under those circumstances it was possible to use those words. There was a privilege in parliament. I had no problem with it. I would have said this outside parliament as well because that was government policy and it comes from strategies of government.

The oppositions had the same privilege if they wanted to object to that they could have done it. I would like to put it to you in this way. All the MP's agreed with that. That was the situation in the country at that stage if you want to use that from my speeches do get a balanced view thereof. Atrocities on the one side and atrocities on the other side.

I read a very interesting article in the Cape Times this morning I would like to point you to it. It was written in the Cape Times this morning regarding the Truth Commission's task. It is their task to investigate both sides and to adjudicate justly. Especially with regards to the amnesty applications heard recently. The impression that I have gained was that this paper is questioning the Truth Commission's actions. I am not doing that, I am trying to help you. Just look at this in a balanced way.

MR VAN ZYL: precisely why I went through the introduction that I did, talking about the tremendous deteriorating security situation in the country was an attempt to acknowledge the very real situation in which you acted. In the first part of your response you indicated that members on the ground, security force members on the ground and I think the words you used would have a problem with what you were saying. What did you mean by that?

MR MALAN: I don't know, what are you referring to now?

MR VAN ZYL: Let me formulate the question this way. Would you agree that language like this that you used in parliament, particularly in response to the gruesome acts that were occurring and being carried out by terrorists at that time in South Africa, language that you used could have been interpreted by members on the ground to authorise illegal activity?

MR MALAN: It might have. In my first submission I tried to indicate that the Truth Commission should take this into account. It might have. If I am talking about troops, I'm talking about military personnel. The military person could have got that from papers and so on but he is acting according to orders. So the possibility that, that could have happened is minimal. He is well trained and he knows that he cannot transgress the laws of the country. He cannot cross the border and shoot people.

MR VAN ZYL: 2 saying that and you went at great length to say that nobody objected in parliament when you used this language. It was the policy of the government of the day. You've also just said that it's possible that, that could have been misinterpreted. So you're saying that government policy of the day could be interpreted to authorise, particularly in respect of people who were coming across the borders engaged in terrorists activities in gruesome attacks, could have been interpreted by members on the ground to engage in illegal activity.

MR MALAN: I sketched the situation to you, the 7th of May. I would like to point it out to you that it is your task to find out from the troops and the people at grassroots level. If I would have to take it any further for you I would have to speculate and I do not think it's my task to be speculative. I never gave any orders and the people are bound by the laws of the land. I think you must ask this question to the troops.

MR VAN ZYL: a member of the SADF were to take armed action against a person who is a member of the ANC or MK or one of their fellow travellers and kill such a person in an unlawful manner but kill them nevertheless. And they were to come to the Truth Commission and say: "I was a soldier at the time. I was being urged by the members of the security forces to take the strongest possible measures. In fact the then Minister of Defence was urging us to hunt down terrorists, to sniff them out, to hammer them." Would such a person be entirely unreasonable to interpret those statements that you made as authorisations for illegal activity? Would it be unreasonable? Would such a person be clearly acting in a mala fide way? Would they be a bad apple?

MR MARITZ: Mr Chairman with great respect, I have to lodge an objection. I have read all these debates which took place in this forum for purposes of preparing for this sitting here. And I saw that over hundreds of pages this same question was debated at great length with people who were my clients, Cabinet colleagues at the time and I became totally frustrated and I am still being frustrated. The fact of the matter is this, you cannot ask my client to do the work of this Commission. You cannot ask my client to make findings which are particularly within the (...indistinct) of the Commission. It is not for my client to make a finding whether it could objectively be said so and so and so. And for that matter what does it matter? It has absolutely nothing to do with the question of an amnesty application. Which is as far as I know done on a different, totally different basis. The totally different basis is this; that one has to look subjectively and apply a subjective test in an amnesty application. And one has to evaluate the evidence before the relevant committee of the Commission dealing with that application. It is of no value whatsoever whether my client expresses an opinion or a view that viewed objectively which is a totally foreign concept to that which is being applied in the Truth Commission. That objectively viewed the fellow who says that he was subjectively of a certain persuasion was either lying or not lying. It doesn't take us anywhere whatsoever.

And for that matter Mr Chairman I can see that it poses another very severe difficulty. Imagine that Joe Soap is in front of an amnesty committee pleading his innocence on the basis that subjectively he was persuaded that was he was doing was in the furtherance of the good of the country and that for that reason he did this for political reasons. Now my client sits here and he says objectively, whatever that means now, objectively the man is lying, he could never have thought so. Can you take that evidence in account when you are dealing with the applicant before you? Doesn't the applicant have the right to test the view being expressed by my client in a different part of the Commission? And what is the value of it? If somebody wants to present the evidence of my client in a particular amnesty application to say; "Aye or Nay." That's a totally different matter and he can then be tested by that particular applicant. But to continue and to carry on with this type of exercise, is patently (...indistinct). It can lead no where whatsoever.

MR LYSTER: Thank you Mr Maritz. Look what we're talking about here is clearly (...indistinct) and it's an uncomfortable question that Mr van Zyl has asked to your client and that I think that he should express a view. He was the man, he initiated those words. He's conceded that he did so and he should express a view as whether someone on the ground could reasonably foresee that, that language, that sort of language, that sort of rhetoric may be interpreted in such a way that the person would go out and do something which was totally illegal. And we all know the law about foreseeability in a civil court a defendant may well be asked such a question and may be required to answer it. "Did you not foresee and should you not have foreseen that what you did may have lead to XYZ consequences?"

And General Malan has conceded that he used language like that. That sort of language was the order of the day, not only in parliament but in press reports and I've no doubt that, that sort of language filtered down to the rank and file of the Defence Force. If he said it in parliament there's absolutely every reason to suspect and to believe that he would have used it in addressing his senior generals. And I would like him to express a view as to whether he should or could have foreseen whether using that language may have lead to incidents on the ground in which people acted outside of the law. It's not asking him to put himself in the shoes of the troop on the ground. It's asking him to take stock of the language that he used and to express a view as to whether this language could be interpreted in such a way that illegal acts ensued. So I would like the General to answer the question. Could he or should he have foreseen that, that sort of language may have had lead to illegal actions?

MR MARITZ: Well Mr Chairman that's wonderful because now it puts a totally different aspect on what's going on here. Because now you spelt out that it is not in regard to any belief that somebody on the ground may have had but it regards to the culpability of my client. And let me remind you sir that I have the ruling by this Commission which prevents you from pursuing that. Let me read to you what was said to my client by the then chairman, Archbishop Tutu when he appeared there, whenever it was. I've got the record here and I'll read from 22. The Archbishop said the following, he said: "I appreciate very, very much, we appreciate very much your readiness to have done what you have done. And I want to say again, there is no desire on our part to put anybody as it were on the spot. We are deeply committed as you to this reconciliation to ensuring that this country doesn't go up in flames." And it's not me speaking, it's the Archbishop speaking. "And we don't, there's no gain for us if we set you up and you become an object of vilification. That doesn't help us. I mean all we want is we could get the truth and you are able, you said if you remember you wanted as a military man to fill up the gaps that you were aware were present in the knowledge of this Commission." This is a very, very salient re-ruling but it is a proper ruling made by this Commission. And what is happening now flies directly in the face of that hearing and on that basis I object to it.

MR LYSTER: Thank you Mr Maritz. I don't think that what the Archbishop said has any relevance to what is being asked now. What he did say there is that we want the truth. We are not vilifying General Malan in any way whatsoever. We are asking him whether language that he admits that he used whether he believes that could have reasonably been interpreted by somebody on the ground as to commit an unlawful act. And that is all we are asking him. And you've committed yourself here or he has through you to assist this Commission and we need to have an answer from him. He has said earlier on today that - I can't recall his words. That it could have been misinterpreted. Is that correct? And perhaps that is the answer to the question. I don't know whether he wants to take it any further.

MR MARITZ: Mr Chairman on a lighter vein. No I don't want this on record because counsel do not function between 11:15 and 11:30, can't we have smoke break please?

MR VAN ZYL: Mr Chairman perhaps if these interjections were to stop coming we would be making progress.

MR LYSTER: Should we just go on until 11:30 and then have a fifteen minute break. General Malan do you want to add to what you have already said? Whether the sort of language that you have conceded that you used inside and outside of parliament could have been reasonably or should you have foreseen that such language could reasonably have lead to someone on the ground, troops on the ground taking the law into their own hands? Or being over robust and committing acts, unlawful acts which they shouldn't have committed?

MR MALAN: Mr Chair this is the dilemma of the Truth Commission it's the problem of continuity. If you look, I do not want to criticise you but if you look at my report from page 30 on up until page 49, I give a culmination of factors which could have played a role. I answer the question in detail there and I will stick with the answer I have given. The Commissioners at that stage were quite satisfied with that.

MR LYSTER: To refer us back to what you said in May and October?

MR MALAN: It was May, the 7th of May and it's recorded on my submission page 30 to 49. On this specific subject and it wasn't only about one part of it. It was culminating in various factors.

MR VAN ZYL: Mr Chairperson, I'm going to move on but I'd like to place on record that I don't think that, that's a satisfactory answer.

Moving on, General Malan, I'd now like turn to decisions taken by the State Security Council and minuted in the minutes of the State Security Council. If you'd like I can refer to specific documents which have bee provided to you but I want to put a general proposition to you. Minister Pik Botha, Minister Roelf Meyer, deputy Minister of law and order at the time, Leon Wessels and Adriaan Vlok have all conceded in their testimony that the language used in State Security Council minutes and documents but, minutes of the State Security Council principally. Although they did not intend that they would authorise unlawful activity at certain times words used such as "eliminate, neutralise, verwyder," etc. could have been misinterpreted, were ambiguous. Would you agree with that?

MR MALAN: Mr Chair I think this is a very important question that was now put to me. I have thought about this question for a very long time in the sense that so many words were used which could possible be open to various interpretations. I must add that I have virtually no document with the exception for the documents that the Truth Commission have made available to me. My reference source is therefore very limited if I refer to documents, I am referring to this small bundle that I have received. If I am correct on addendum I that you have supplied me with on the State Security Council on the 14th of April '86, that is agenda item number 4. (That was a bit too fast.) Wat hier aan die gang is, is dat doe vrae wat aan my gestel word, the deterioration of the internal security situation. Then there's another addendum where in which goals for the law and order was put. It is a State Security Council document instructing the JMS what to do. I only have two pages but I cannot say with any certainty what I have is in a number 3 in the aims it says: "To neutralise enemy leaders, to eliminate them. And to break the influence they are exerting." Those were the specific words. (The interpreters can't see the witness.) I want to say that this is what my friend has now asked me.

MR MARITZ: Which has been supplied to us.

MR MALAN: En daar staan

MR LYSTER: Sorry just, General it's 14th of April sorry?

MR MALAN: It's 14th ja.



MR MALAN: '86 ja. Thank you. It says in column B regarding tasks I have read the aims and now I will read the tasks. I want to refer to task number 2, Roman number 2. "Neutralise, eliminate enemy leaders." There are some definitions. I do not know what the problem could possibly be with that. It is specified here to justice, police and the Defence Force. The SEM members as well, they were the socio-economic members. It was specified to them what was meant with that, there were definitions. But now you're going to ask me or you ought to ask me why did we have these problems? Why do we use these words? I realise that at grassroots level during my visits to the JMS's that is where the problem comes from. I am trying to give it you in all honesty.

Various departments had various terminologies. And they always also have different laws, cultures and management mechanisms as well as various terminologies. It is quite correct, they have different tasks and their actions are different. In other words their execution of the tasks were different. I think this is where the problem originated because now we have generic terms and then this came up.

I have thought of an example in which I had been involved concerning Sandton, Alexandra, north of Johannesburg which was in terrible conditions. I took the people from the papers and brought them to military training college. I addressed them on revolutionary warfare. I then told them, after we had discussed everything that we are now going to fly to Alexandra. I'm going to show you Alexandra. And if I had been born and raised in Alexandra I would have been the leader of the revolutionary forces in this country because as a Christian I cannot understand how my neighbours can live under such circumstances. They smiled to me, we landed there and we got off. The government's policy during that time was that they pay these people approximately 20 000 pounds. At that stage the people still had this in shoe boxes. There was no running water, there was no other services. It was raining at that stage, there were pools of mud, there was no refuse removal. It was a complete tragedy there.

Then we spoke with that JMS and the order was, I cannot remember whether it was eliminate or neutralise the ANC because then it was a liberation area with the police withdrawn from there. The Defence Force came in, lifted the, the ANC members were arrested and the Defence Force made sure that everything was conducted in an orderly way. The civil force members gave me plans, plans on city planning how to get water there and how to get all the other services there and he gave me 12 million rand. I then went to the regional service council, they gave me the area on the other side of the Jukskei River for administration of that town. There was a guy with the name of Burger who was the chairman of a sub-JMS and the departments doing wonderful work. We relieved that there.

What did the departments do regarding elimination and neutralisation? The police arrested, the defence force removed the cordons, (the witness is moving a bit too fast) The municipality was involved, the regional people were involved, the private companies were involved. I was there when the first houses were sold. (interruption)

What I am trying to tell you is that the terminology slipped in due to various cultures in various departments who had to do certain tasks.

MR VAN ZYL: gain useful, illustrative material but I'm afraid you haven't answered the question that I posed. And that is; are those words ambiguous and capable of misinterpretation? Or are they clearly not capable of misinterpretation at all?

MR MALAN: (...indistinct) approach. I think you should ask the people who are really involved here. On an official level there was no problem, there were people who used it. Once again you have a situation there where one must go to each and every individual and determine whether they interpreted it correct.

MR VAN ZYL: (...indistinct) conceivable that in certain instances they will be misinterpreted, they are ambiguous?

MR MALAN: I'm saying something else. I'm telling you that you have to look at each and every case individually. If he interpreted it incorrectly and if he committed a crime he will have to come and ask and apply for amnesty. You can then ask it from him whether he interpreted it in an incorrect way. I would not have made that mistake but I cannot speak for other people.

MR VAN ZYL: (...indistinct) difficulty came that there were a whole range of different cultures, different departments, different styles, different ways of operating. And I supposed I'm asking you that if I put those words in different settings, amongst different people, with police, with the SADF, with the department of social welfare either in Alexandra or in the Eastern Cape or in Mamelodi or wherever, is it possible that somebody would misinterpret those words?


MR VAN ZYL: It's impossible to interpret.

MR MALAN: Don't ask me.

MR VAN ZYL: No I'm asking you is it possible? Because you sat on a body which drew up these words and approved them. Is it possible that a member of the security forces, for example the Commissioner of police, is it possible that he could interpret this to mean eliminate, is it possible?

MR MALAN: Mr Chair, I'm sorry. I'm coming back to this. I'm speculating now. It is not correct. This is a very important facet, I'm not trying to, I've referred to difficult circumstances. I can't speak on behalf of other people. You must ask from them. If the Commissioner of police says - (is dit belangrik?)


MR MALAN: I'm too fast again or what? Okay sorry.

VAN ZYL: Sorry. What I was trying to ask you. I was not asking you

MR MARITZ: Mr Chairman please.

MR VAN ZYL: Sorry if I could complete my question?

MR LYSTER: I think he didn't finish what he was saying.

MR VAN ZYL: Oh, sorry.

MR MALAN: No you can have the floor.

MR VAN ZYL: I think he was finished. General Malan I'm not asking whether in each individual case a certain policeman interpreted those words in that way. I'm saying whether it is possible to interpret those words in that way? I'm not asking in each individual case. Is it possible? Not whether they did, whether it's possible?

MR MALAN: I don't think Mr Chairman it's for me, who do not know the culture and the actions of the police, to provide you an answer to this. I've told you in regard of the Defence Force because I know that culture and I know if in the Defence Force said you should not contravene the country's laws. I can speak on behalf of the Defence Force but not on behalf of other departments. I've tried to illustrate what happened when those words were mentioned.

MR VAN ZYL: misinterpreted?


MR VAN ZYL: Not possible?


MR VAN ZYL: Right. I'm going to move now. We'll just do a last thing and then we'll take an adjournment ...(intervention)

MR LYSTER: (...indistinct) it's a long question with a long answer?

MR VAN ZYL: I just put it on record that four of your Cabinet colleagues who did sit on the State Security Council have all indicated that it is possible to misinterpret those words.

MR MALAN: Did they talk on behalf of the Defence Force or did they talk about the other departments?

MR VAN ZYL: They said in general terms in relation to the conduct of the security forces.


MR LYSTER: Thank you we'll break until twelve, till five to twelve.



MR LYSTER: Okay we will resume the questioning now. Mr van Zyl I understand that you will proceed and bring your questions to a close in the next twenty minutes or so.

MR VAN ZYL: Thank you very much.

MR MARITZ: Mr Chairman sorry. My client has just said to me that he wants to make some correction. I don't know what it is. Could he just proceed to make - can he just make the correction before we proceed with the questioning?

MR MALAN: Mr Chairman when I previously referred to all the factors which should be taken into consideration by the TRC, I referred to page 28 to page 49. I've made a mistake there. During the adjournment I had a look at that. It's from page 23 and it says: "... which the actions of the South African Defence Force and it's members should be judged as far as bona fide is concerned." And it continues further on.

MR VAN ZYL: (...indistinct) to page 24?

MR MALAN: In actual fact you can take it page 22, paragraph 8.4 to 49. Ja, I think that's even better.

MR VAN ZYL: Thank you very much that's useful. General Malan I want to take you to a specific document, it is marked "M" in your bundle.

MR MALAN: (...indistinct)

MR VAN ZYL: "M" for Magnus.

MR MALAN: Right, I didn't write it.

MR VAN ZYL: It is, at the top it is: "Strictly confidential, strategy against a counter revolutionary warfare." On page, unfortunately the page numbers are not clear. But it's the third last page, starting with the letter "H" for Harry. And I read that into the record. "Intimidated, should by means of formal and informal policing, they should be neutralised." (...indistinct) steps in terms of and I think that's the "other objectives; departmental activities."

(...indistinct) to the Commission what you understand that to mean?

MR MALAN: Mr Chairman I first want to refer to this document. It's not a State Security Council document. It's a departmental document. In other words the Defence Force is providing input to the State Security Council. It will look at all the various inputs, look at all the differences and decide what will be the final document to presented to the State Security Council. And this would have been the final document. Looking at this document, it's only a departmental document. I don't know even whether it was approved or disapproved or amended. I've never seen this document. It was never shown to me and as I'm looking at this document I'm giving you my interpretation. I would say that this is a typical, classically counter revolutionary action which is being compiled here which should be executed. Seen in totality, intimidators should by means of formal and informal policing be neutralised. I would say and I think there was a strategy developed at that time in which it was said that other groups which are against revolution, in other words people who are pro-government should also be supported. And I think it's on that basis that this formulation was done. Or this purpose was determined and on the basis of that approval would be given if it was accepted at the SSC.

MR VAN ZYL: (...indistinct) think or that's what you know? Are you speculating what it would be about or do you know?

MR MALAN: I'm speculating now for you, for your sake.

MR VAN ZYL: And why is it that you have to speculate?

MR MALAN: Well let me put it in this way, I think the need for this is very important. I can't personally remember whether this aspect was discussed, whether it was approved. This was the type of tasks which had to be done and which the government also had to undertake and therefore I am open, ja.

MR VAN ZYL: I put it to you in document in which you have before you which is a State Security Council document. In fact that decision is repeated in that document and is approved by the State Security Council. I don't think we need to go through that. It is in the documentation before you. And I suppose I'd like to ask you, would you be surprised if this was the kind of decision which would be accepted by the State Security Council?

MR MALAN: Mr Chairman, in all fairness to the witness can we have the specific approval that's being referred to?

MR VAN ZYL: It's document "N". It's on the, again page numbers are not here, it's the fourth last page of that document. It's marked Roman vii, it's document "N". It's headed: "Strategy against the revolutionary warfare." (...indistinct) number six, it's point six. Fourth last page.

MR LYSTER: Is it "alternatiewe"?

MR VAN ZYL: No the next one, vii Roman "Intimidation by means should be neutralised by means of formalised, informalised policing."

MR MARITZ: Mr Chairman, I'm sorry I can't follow this. My document "N" is an extract from the minutes of a security council meeting dated the 1st December 1986. And I have paragraph, item six which is underlined or highlighted, which says: "Agenda number five, concepts strategy against the revolutionary onslaught against South Africa number 44."

The document annexure 2 to this minutes are accepted with certain amendments. It's not said what the certain amendments were. (...indistinct) by the secretary of the State Security Council dated the 27th of November 1986. I can't make out whether that was bylaer twee or what it was. Then there's a further report also by the secretariat dated the 27th of November 1986 with a heading: "Concept national strategy against the revolutionary onslaught against the republic." (...indistinct) as it stated in the minutes. It doesn't contain any legend indicating that, that (...indistinct) is bylaer twee. So I really don't know but for practical purposes possibly one would have to accept that number 44 referred to in the decision, minuted decision would then refer to this letter or this verslag dated the 27th of November. And at the same time I wish to point out that we don't have any inclination as to what the "Certain amendments" are.

MR VAN ZYL: (...indistinct) to Mr Maritz. I have a document here which is under the signature of the secretary of the state veiligsheid raad. It says: "To all members of the staats veiligsheid raad," then it says - it's number "N". It says: "Concept nationally strategy against the revolutionary onslaught against the RSA. Guidelines against the revolutionary onslaught against the RSA was decided on the 28th of April, was approved by the State Security Council."

MR MARITZ: Well then that makes it worse because then it can't be bylaer twee because "N" is a document dated the 1st of December 1986. And now apparently to this letter, this number 44 thing was approved on the 28th of April 1986. So I don't, it doesn't look as if the security council was again approving something on the 1st of December '86 that it had already approved according to the letter on the 28th of April 1986.

MR VAN ZYL: Perhaps I can help you.

MR MALAN: Because here the thing says -sorry.

MR VAN ZYL: Sorry.

MR MARITZ: The minutes says: "Document annexure two is apposed and accepted with certain amendments "(...indistinct) had been approved on the 28th April 1986 then possible bylaer twee is something other than this strategy number 44. I don't know.

MR VAN ZYL: Sorry Mr Maritz. If you look at my copy there. It's got bylaer twee at the very top on it and it's the same thing.

MR MARITZ: Ah I see.

MR VAN ZYL: It obviously was cut off in the photocopying process on your copy but it's the same, it's exactly the same document.

MR MARITZ: Thank you very much.

MR VAN ZYL: Sorry about that, photocopying. That obviously lead to that. So it's accepted that, that particular which was handed up via the head of the South African Defence Force, then gets translated into strategy document number 44 and approved by the State Security Council, is that correct?

Sorry is that correct? I was saying you accept that in fact that was approved by the State Security Council?

MR MALAN: Sure, if you say so. I accept it.

MR VAN ZYL: I do say so. Now I just want to bring you back to your previous answer just for clarity. I'm not trying to be repetitive, just for clarity. You were saying that you presumed that what that particular sentence meant was that particular groups who opposed intimidators or revolutionaries be given support by either the police or the military under certain circumstances?

MR MALAN: Ja, sure. I think if you read it here then it seems as if it's concerned with formal and informal policing. I don't know whether the defence force would have given support or training. It refers to responsible instances. The police and the Defence Force. That's what I'm saying, perhaps a supporting action. But the Defence Force was not responsible for policing.

MR VAN ZYL: In your answer you said that you presumed that this was the meaning. Why did you presume it was the meaning?

MR MALAN: Mr Chairman, we referred to a certain document deriving from the Defence Force, I said I've never seen this document before and I've given a reply in connection with this document. And you came to me and said that is correct. What else did you want me to answer then?

MR VAN ZYL: You seem to indicate that in terms of this question you presumed that this was what it meant, meaning that you think that it could have meant something else. You weren't particularly clear. By reading this particular instruction you presumed that this is what it meant. Because perhaps it was ambiguous, perhaps it wasn't exactly clear. Is it capable of being interpreted in another way? Why did?

MR MARITZ: Mr Chairman I object to this. Can't we move on please? If the questioner has something pertinent to say let him say it. But this type of circle argument is not going to get us (...indistinct)

MR VAN ZYL: Let me phrase it (...indistinct)

MR LYSTER: If you presume that it says something it's not necessary an indication that you think it means something else. It's an indication that you think it means what you think it means.

MR VAN ZYL: I beg your pardon. Is it capable, is this instruction capable of being interpreted in different ways by different people?

MR MALAN: Really I don't know. I'd like to help you but I wouldn't know.

MR VAN ZYL: Is it possible that somebody can interpret this statement to authorise via the use of informal policing the neutralisation of activists, i.e. the elimination of activists or intimidators? Is it possible?

MR MALAN: Just the last portion again I didn't hear you clearly?

MR VAN ZYL: Is it possible to interpret this statement to mean that via informal policing - I'm not sure what informal policing means. I don't know if there's a strict definition of informal policing. To interpret that phrase to mean that activists could be eliminated, i.e. killed? Is it possible?

MR MALAN: You know it is very difficult for me and I've referred to this specific aspect. I don't know what the terminology is and the various interpretations among the various cultures. In the Defence Force, if it was the infantry involved in the situation, I would answer; no, they won't interpret it in that way. The result is that I can't tell you that people outside could have interpreted it in this or that way. But the Defence Force could not have interpreted it in that way. It had certain doctrines according to which they acted. And all the time I'm referring to internal activities. And I would have said no. The Defence Force could not, should have not, should have not interpret this in that way.

Mr Chairman, referring to the Defence Force you act in groups, not individually. You have written and oral instructions. They should have not interpreted it in that way. Neutralising in the Defence Force terminology it does not mean that.

MR VAN ZYL: (...indistinct) "Uit te wis" - that means kill?

MR MALAN: I want to put it in that way, previously you've said that should there been armed forces infiltrating the country and the Defence Force was asked to act against them. Remember that question? And then the instruction would be: "Eliminate them." That means: " do the task because they going to shoot you," and I won't allow my soldiers to be shot. But they asked for a truce, at that moment you can arrest them.

MR VAN ZYL: (...indistinct) terminology means kill?

MR MALAN: In this specific instance yes when I refer to the armed forces.

MR VAN ZYL: I'd like to refer you to a document that I gave you earlier this morning, was the document that Mr Maritz referred to about the orders. And again both I acknowledge that you were a; given it this morning and b; that Mr Maritz has said that you will attempt to assist and also that you are a person with tremendous expertise in this particular regard.

MR MARITZ: I didn't say that. I object I never said that. I said he was career officer all his life and possibly he'll be able to interpret it as well as the next guy. I didn't make him an expert.

MR VAN ZYL: Thank you. I draw your attention to page 1, point 7 which says clarity. "The use of accepted military terminology and phraseology helps to convey identical meanings to users. Expressions that could be conveyed different meanings to different people must be avoided." Number 1.

We turn over on the next page. Point 10 under the sub heading simplicity. "All elements are to reduced to their simplest form. Any possibility of misunderstanding must be eliminated." And then if you go to point 14 under authoritative expressions. The last sentence: "Subordinates are to be told in direct and unmistakable terms exactly what the commander wants them to do."


MR VAN ZYL: Now to be direct, I put it to you that the phrase that we've been debating, the phrase talking about intimidators must through formal and informal policing, must be neutralised, in fact doesn't comply with these instructions. It's vague, it's capable of misinterpretation and it's particularly on your version capable of conveying different meanings to different people.

MR MALAN: What's your question?

MR VAN ZYL: I'm putting it to you that the section we've been talking about referring to intimidators must be by means of formal and informal policing, they must be neutralised does not comply with the spirit of these instructions. In that it can convey different meanings to different people. It is, it's not reduced to it's simplest form. It is possible of being misunderstood and subordinates are capable of misinterpreting it.

MR MARITZ: Mr Chairman I must raise another objection. One of the functions of a cross-examiner is to listen to answers. My client has stated categorically that he cannot speak for other departments, he can speak for the SADF and his clear evidence was there's no room for misunderstanding by a member of the SADF.

MR VAN ZYL: Mr Chairman, point 1 it is an instruction which comes to the State Security Council from the SADF. If it comes to the State Security Council from the SADF it is expected that it will comply with the conventions of service writing approved by the SADF. And I'm putting a very simple question to Mr Malan. I'm asking whether in fact the instruction that comes from the SADF to the State Security Council is in compliance with these conventions of service writing.

MR LYSTER: General Malan has said that in the context of the Defence Force nothing that was done or said at the State Security Council could have been misinterpreted. In the light of this document which relates to clarity, simplicity, non ambiguity, does he want to express another view and or revise his view in any way? I think that should be the question. Because this document was only discussed after General Malan gave his answer relating to the fact that nothing that's said in the SSC could be misinterpreted within a military context.

MR MALAN: Thank you Mr Chairman. I'm not explaining myself very well. This question had been asked previously and I would like to repeat my answer. I've said that if you work on an interdepartmental basis there are various cultures and terminologies but if you work in your own department and these directives and orders these are purely operational directives. This is a completely different facet you are referring to. If the Defence Force should go to the State Security Council with this proposal you mentioned I can understand that because of the milieu of interdepartmental dependency that they won't work on this basis because this was compiled, there should be a cordon established. This was the guideline for the commanding officer to tell him how to act.

MR VAN ZYL: (...indistinct) a document internal to the SADF, but surely the principle should apply equally. This is an instruction which is accepted by the State Security Council to be implemented both by the South African police and by the South African Defence Force. Both of them.

MR MALAN: Which one are you referring?

MR VAN ZYL: The intimidators should be neutralised by formal and informal policing.

MR MALAN: Are you referring to "N"?

MR VAN ZYL: I am referring to document "N" of the State Security Council.

MR MALAN: That's exactly what I've said

MR VAN ZYL: No, I've not finished my question. I'm saying that came through to the State Security Council via the SADF. The principles in respect of clarity and simplicity particularly, and I draw your attention to particularly the phrase that says: "expressions that could convey different meanings to different people must be avoided." Now this is coming into a State Security Council where this instruction is being acted upon by both the South African defence force and the South African police. South African police are different people, should you not avoid using expressions that are capable of being misinterpreted by the South African police, if you are submitting a document to the State Security Council?

MR MALAN: Mr Chairman this is a very difficult question to answer. I've tried to answer it, I'm going to try again. We are busy with small technical details now. And this has no relationship with this whole matter. The one is operational orders issued departmentally. If it came from a department like the Defence Force and it had to go up to the State Security Council where there were other departments and other colleagues possibly other terminologies would have been used because it had to fit into a specific milieu. I don't know about the police. I did not act or work with them. But I think the terminology here would have meant the same to the police and to the Defence Force. Probably that's why they used the terminology. But to give you an answer as to the intentions of the person who gave these instructions, it's impossible for me to say.

MR VAN ZYL: The Minister of law and order Adriaan Vlok has conceded and it's in the documentation that's been provided to you that in instances where such orders or such proposals came to the State Security Council and were subsequently approved he was, he conceded that he was negligent in not, and the words he used is: "gekwerie". He was questioned, he did not question, how they should be interpreted. Would you not say that in a structure like the State Security Council, given the influence that it carried amongst members of the security forces, one should be extremely careful and cautious about the use of words employed and approved at the State Security Council?

MR MALAN: I would have not interpreted this word wrongly.

MR VAN ZYL: (...indistinct) it's not whether you General Malan misinterpreted it. If it could be misinterpreted by others? And this was the testimony given by Minister Vlok. He was negligent in not querying the use of words which could be misinterpreted.

MR MALAN: I'm glad you are referring to what Mr Vlok has said. He's speaking on behalf of the police. I have no problem if he speaks on behalf of his department and I agree with you perhaps one should look at a better way determining these words.

MR VAN ZYL: (...indistinct) why is it that if one wants to convey authorisation for purely lawful actions in the State Security Council, and it's quite clear what is lawful and what is unlawful, why is it that what is lawful is not spelt out? When we want to talk about neutralisation why doesn't the State Security Council say: "detain, arrest, restrict, imprison"? Why is it that words that are at least capable of misinterpretation being used? Would you not concede that, that is negligent?

MR MALAN: I want to put it in this way. When using certain words if they had different interpretation it could have been necessary to do it like you say. There was a certain instance and we perused a certain document it was sent back and it was said no this was not what we meant. We meant something differently. And if it was unlawful activities it should not be covered up. It should be put straight forward. At the State Security Council we had the best legal aid we had available. The whole department of justice for example through his director general. And if I understand correctly what you've asked me they were the people and it was their field and they said this word had the following implications. I'm not trying to pass the buck. But there were various experts in the State Security Council.

MR VAN ZYL: (...indistinct)of justice to draw that to your attention if these words were capable of misinterpretation?

MR MALAN: I want to put it like this. This aspect would have been discussed and while discussing this, mention would have been made of the intentions. If the intentions were illegal the department of justice or the D.J. would have said: "No, you can't do that." During these discussions it would have happened that the police would have give their interpretation to "neutralising." The Defence Force would give their meaning they attach to this word and it would have gone down the channels like that. If the Minister of law and order said the police could have interpreted it wrongly I accept that.

MR VAN ZYL: (...indistinct) a further question. Did it ever come to your attention while you were head of the South African Defence Force that or did you ever suspect that activists were

MR MARITZ: No, no, Mr Chairman. This type of double barrelled question doesn't work.

MR LYSTER: Ask it (...indistinct)

MR VAN ZYL: Did you ever, did it ever come to your attention as head of the South African Defence Force that any members of the South African defence force were engaging in unlawful activities? And by that I mean the killing of political opponents?

MR MALAN: The killing of what?

MR VAN ZYL: Political opponents. Did it ever come to your attention?

MR MALAN: Not that I can recall.

MR VAN ZYL: (...indistinct) or Minister of Defence?

MR MALAN: I want to answer this question as follows. Not that I know of but if it should have happened the judicial system would have taken the necessary steps to a certain legal action against the people who acted unlawfully. And the judicial process would have taken it's course. In South Africa the regiment of discipline would have been applied.

MR VAN ZYL: (...indistinct) second part of that. Did you ever suspect that members of the South African Defence Force or security forces were involved in illegal activity?


MR VAN ZYL: In illegal activity?

MR MALAN: Illegal?

MR VAN ZYL: In and by that I mean the killing of political opponents.

MR MALAN: Mr Chairman, I know of one instance. I'm not even sure whether it was question of killing, where there was illegal action necessary steps were taken and the people were apprehended. To say it was general practise, no I did not know about it.

MR VAN ZYL: (...indistinct) you never suspect when activists were being eliminated the security forces were responsible?

MR MALAN: The, you're talking about the military?

MR VAN ZYL: The military.


MR VAN ZYL: You never suspected?


MR VAN ZYL: And General Malan when they were high profile assassinations of activists and that was reported in the national media and carried in the national media and in the international media and allegations were made? Allegations and I put it that no more than allegations were made that in fact the security forces were involved in that, did you ever suspect that there may ever be any truth in that?

MR MALAN: Did I ever be?

MR VAN ZYL: Any truth in those allegations?

MR MALAN: Mr Chair regarding this question I would like to put it to you in this way. I, from my perspective was much more worried and concerned about the atrocities being committed in South Africa by the opposition, by the ANC and the MK people. I just now gave you the statistics and it's (...indistinct) statistics of things that happened. It was on a day to day basis while you gave me the statistics of the so-called possible transgressions by the Defence Force. I do not know whether they did it or not but it's minimal. You can say it is high profile, I agree with you there were one or two about which I was concerned but it was not the Defence Force's responsibility to investigate this. It was the task of the South African police and the police did this. I never personally got involved in these aspects.

MR VAN ZYL: (...indistinct) that when you approved words like "neutralise or elimineer," etc., and then high profile activists did indeed get killed and you on your evidence you said that was never your intention, did it not occur to you that perhaps we should issue a statement of clarification. I mean these things are being interpreted, by your own version in different departments according to different institutional cultures. Shouldn't we to be absolutely clear issue a statement - I'm not finished.

MR MARITZ: A very long-winded question is being asked here and hidden in the long-winded question is an inaccuracy. My client never said that departments actually misinterpreted words in documents. He conceded the possibility that, that could happen. But that concession doesn't entitle the questioner to state it as a fact in a very long-winded question and sort of hide it there in the middle to be recorded and to held against my client.

MR LYSTER: I think the way you pose the question Mr van Zyl is you're asking General Malan: did you not think that you should re-clarify the language in view of the fact that activists were being killed impliably by the security forces who had misinterpreted the instructions? And General Malan has not conceded that they did. He said it's possible that they may have. So.

MR VAN ZYL: I suppose my question is if there is a possibility, I'm not saying it indeed is a fact. If there is a possibility and this is the evidence that you lead, that different departments will interpret it in different ways, if that is a possibility and at the same time activists, high profile activists are indeed being eliminated. Should one not to foreclose the possibility that it's being interpreted make it absolutely clear that these words should not be interpreted in this way?

MR MALAN: On hindsight yes.

MR VAN ZYL: Thank you. Final question General Malan. Minister Vlok concedes in his testimony before this Commission and I don't want to misinterpret your last answer. But you just said you were more concerned by the terrible atrocities that were being carried out by the ANC and by terrorists organisations and Minister Vlok in response to a question put to him as to why there was no wide scale, thorough going, high level, comprehensive investigation in relation to the allegations that members of the security forces were eliminating activists, said very frankly that:

"At that time we were more concerned with the victims of terrorism and that was what we concerned ourselves with. And perhaps we were negligent in not listening sufficiently to allegations of abuse by the security forces."

Do you have any comment on that?

MR MALAN: Do I have any?

MR VAN ZYL: Comment on that?

MR MALAN: Mr Chair, the Minister of Law and Order, his primary task is now under discussion here. I expect that he must give you that kind of answer. That's not my task. My primary task was the defence of the Republic of South Africa. We have an average of a hundred thousand troops in the fields, we were busy with a war and that is why I was not that intensely involved in the domestic circumstances. I was much more concerned about the statistics of atrocities committed by people crossing the borders and coming from other places. I am sorry I expected as I've gathered expected from me to protect the country. I thought that law and order would be concerned with that, that is the Minister of justice. They had functions and they launched certain actions and I accepted that, that was the correct procedure.

MR VAN ZYL: (...indistinct) task was ensuring that law and order prevailed in the country. That's law and order for everybody not just for victims of terrorism. It's law and order for every person within South Africa. Would you be, would you concede that it's fair to say as a member of the State Security Council, the State Security Council did not perhaps pay sufficient attention to the criminal activities potentially carried out by members of the security forces against one group of South Africans? That they were more concerned with the unlawful acts being conducted against other South Africans?

MR MALAN: I have to disagree with that. Essentially the greatest extent of the atrocities were not committed against the whites. It was against the disadvantaged people in our country. That was the kernel of the revolutionary warfare. The masses had to be swinged around. If one has this intimidation one is busy loosing. I was very concerned about these atrocities. I was much more concerned about these atrocities who came through who were high profile politicians. It was not my first priority. The other one was my first priority. Perhaps I should have looked at this one as well as a member of government, not as Minister of Defence.

MR VAN ZYL: Why was it not your first priority? I beg your pardon. Why was it not your first priority?

MR MALAN: According to the law, the act, the Defence Act. It was the defence of the country. My first priority was the Defence Force not the law and order force.

MR VAN ZYL: No, General Malan you just said that it was not your first priority to be concerned with the deaths of one or two high profile activists. It was more to deal with the gruesome acts that were occurring to other people. Why was it not your first priority? Surely you should treat them equally.

MR MALAN: Mr Chair as it is not the Minister of law and order's first priority to lead operations and to look after the well being of troops, it was not my first priority to take over his tasks.

MR VAN ZYL: Would you say it's fair to say and I'm not talking about in terms of race, I'm talking about in terms of who was the allegations against whom. Let me rephrase this. Would you say that the State Security Council and the security forces of the day subjected allegations of abuse and crime by members of the liberation movements and terrorist organisations to the, were equally vigorous in their investigations of such abuses as with crimes allegedly committed by the security forces? Would you say that they committed them?

MR MARITZ: Mr Chairman I must object to this. My client has made it clear he wasn't the Minister of law and order, it wasn't within his (...indistinct) and it is totally unreasonable to expect my client to answer this question.

MR VAN ZYL: I'm asking the question.

MR MARITZ: This question has to be asked to the Minister of law and order not if so repeatedly.

MR VAN ZYL: I'm asking the question to General Malan as a member of the State Security Council and a member of the Cabinet of the government of South Africa which takes collective responsibility. I'm not asking him the question in respect, in his capacity as Minister of Defence.

MR MALAN: What's the question?

MR VAN ZYL: Would you say that the Cabinet of South Africa at a political level committed equal resources and investigated allegations of abuse by the security forces and allegations of abuse by members of the liberation movements with equal vigour?

MR MALAN: I wouldn't know. It's very difficult to say. I wasn't so intimately involved in it. So I'm sorry I can't reply to it.

MR VAN ZYL: How many times in Cabinet was concern raised about abuse carried out by security forces against members of the liberation movements?

MR MARITZ: Mr Chairman once again this is a totally unfair question. The questioner possibly would have access to Cabinet minutes, he can take it up there. But to try and ask my client to remember off-hand what happened over a stretch of ten years in Cabinet is totally unreasonable.

MR VAN ZYL: Let me rephrase the question. Can Minister Malan ever remember ever a concern being raised in Cabinet by, about abuses by the security forces?


MR VAN ZYL: Which instance is that?

MR MALAN: A letter arrived from people concerned and it was discussed.

MR VAN ZYL: Could you give us more information on that.

MR MALAN: I'm afraid you'll have, I'm not sure whether it was at the State Security Council or where. I only know about that and it happened round about the nineties.

MR VAN ZYL: In the nineties? Prior to that you have no recollection of abuse by the security forces being discussed in Cabinet or the State Security Council?

MR MALAN: No this wasn't abuses by the security forces. It was unsolved murders.

MR VAN ZYL: Unsolved murders of anti-Apartheid activists or terrorists or just unsolved murders like criminal murders?

MR MALAN: I wouldn't know. I think what you should do is go to the, I think it was Mr de Klerk. Go and ask him.

MR VAN ZYL: But just for the record, you have no recollection of abuses by the security forces being discussed in Cabinet?

MR MALAN: Not that I can recollect. There might have been but not that I can remember. But I must put it to you it could have occurred especially if I think in terms of operations where aspects went wrong, it could have been discussed. I do not think it would have been discussed at the State Security Council. That department doesn't discuss this. In the State Security Council a Minister would inform the, would be informed if there were certain atrocities. I do not know whether it was discussed there or whether it was ever discussed there, I cannot recall that. It does not mean however

MR VAN ZYL: (...indistinct) to the cross-border raid which occurred simultaneously in Gaberone, Harare and Lusaka. Were you aware of that raid before it occurred?

MR MARITZ: Mr Chairman I have another difficulty here. I've read in the presentation by the old SADF

MR LYSTER: By who?

MR MARITZ: SADF, that's the Constant Viljoen thing. I read there that there has been and that's my impression, there has been a ruling that because of the total uncertainty relating to amnesty and the difficulty is, is that amnesty does not apply beyond your borders. And in regard to things which were done across your borders and amnesty wouldn't avail you, and that being the case I understood from that presentation by General Viljoen that there's been a ruling or there is an understanding in the Commission that particularities of specific operations are not pursued. That's the one thing.

My understanding of it is that what can be pursued is the government's policy in regard to operations across the borders. Now it sounds like a fine distinction but it's not a fine distinction. And if you would address the issue of the government's policy without reference to specific occasions where the dilemma of placing a person on risk and where there is no room for amnesty being, to be granted, I must object to questions directed at that kind of particularity. Because it may very well be that my client could be placed on risk in that regard. So I just want to sound this caution that if it is a general discussion on government policy as depicted in the relevant papers and if it can be restricted thereto, then we can get somewhere. Thank you.

MR LYSTER: Mr Maritz my only understanding of any ruling by the Commission relating to such questions apply only in respect of people who have applied for amnesty and who correctly I believe request the Commission not to ask them any questions concerning matters which would be dealt with fully at a public amnesty hearing. But I know of no ruling whatsoever which prohibits questions being asked about or to people who have not applied for amnesty.

MR VAN ZYL: And furthermore Mr Chairperson there is currently - shall address him when he (pause)

Mr Chairman if I could perhaps address you on this matter? There is currently in a section 29 investigative enquiry pertaining to the activities of the CCB a number of members of the CCB who were asked questions in relation to cross-border activity and on this matter they refused to answer questions not, on the basis that it may incriminate themselves. Notwithstanding that the act provides for people, compels people to answer to questions in instances where they may incriminate themselves and that is currently a matter which is being placed before the attorney general for a decision in this particular matter. So perhaps what we should do is ask the questions to Minister Malan and Minister Malan will then, General Malan would then be in a position to make a decision as to whether he wishes to answer the questions or not. But the act in terms of which Mr Malan is here states that he is under an obligation to answer questions and it is for him to, based on consulting with his legal advisor to make that decision.

MR LYSTER: I think that is the general position that we would quite understand that if General Malan had applied for amnesty and would want to deal with any questions relating it cross-border incidents at that enquiry. It's another question as to whether he feels that the question may subject him to possible criminal investigation. As to whether he should

MARITZ: Mr Chairman may I just record another facet of this. This isn't a free for all. The lines have been drawn very clearly in the notices that we have received and in the documentation that we've received. This enquiry relates to the activities as we understand it of the State Security Council. That's what we're here for. It's not a free for all. And I would sound the caution is that we're going to object very strenuously to it being turned into a free for all. If we can direct our attention at the object of this exercise then I'll be happier.

MR VAN ZYL: Mr Chairperson this in fact falls directly within the realm of the responsibilities of the State Security Council. In fact if you looked at the testimony provided by Minister Botha, he indicates that he was shocked to discover that the cross-border raid, a simultaneous cross-border raids in Gaberone, Maseru and Maputo were not discussed or approved by either the State Security Council or Cabinet. And what we are attempting to endeavour is to ascertain, particularly because the State Security Council had laid out very clear guidelines as to the authorisation procedures for cross-border raids. Whether in fact that is 1; the case and 2; whether Minister Malan outside any of those structures did in fact give approval? Is I submit directly relevant.

MARITZ: Mr Chairman with respect, let's get on with it. Let him ask the questions and we'll see how it goes.

MR LYSTER: Okay the question is then; did General Malan know about the cross-border raids into those three towns which have been mentioned, before they took place? And I suppose a follow up question is; did he authorise them and if so with who?

MR MALAN: Thank you Mr Chairman. I want to focus your attention on the fact that the names of the towns are wrong. Maputo was not included. I think one should look at this matter historically and I wish to explain it in that spirit because there is no clear cut answer to this matter. Firstly one should look at which circumstances prevailed at that time. I've previously told you that in 1985 the republic was declared an operational area. The Defence Force was activated and this was an indication of the escalation against South Africa. In one of the documents I've read about the increase and with the limited expertise I have and over a period to remember twelve years back, especially when you retired. There was an increase in terrorist activities. If I look at 1982 there was 39, 1983 - 56 and 1984 - 44. 1985 - 136. It's a 300 percent increase. It's an indication that there was a tremendous escalation.

If you think about the state of emergency. The first one was declared in 1983. It gives you an indication that the escalation has started. The intelligence sources of all the agencies referred to this escalation. If I can remember correctly the president of the ANC, Mr Tambo said in, declared 1986 as the year of Umkhonto weSizwe. I perused these documents you've provided. I just want to find the specific place. And annexure I, we've referred to this previously. I just want to see whether I'm at the correct place. Here you refer to the minutes of the security council and that's regarding certain problem areas in the counter revolutionary warfare. You see there was a deterioration in domestic security. There should be legislation it is mentioned and all this was an indication that certain things were happening. In H of these documents provided to me and I thank you for these. In H there's an indication of ANC terrorists infiltrating.

On request of the State President he gathered the various security agencies and says he wanted intelligence or information of what was going on. It was 1986. The Defence Force and the police met, they did certain planning and they identified targets should there be defence mechanism. Cross-border operations essentially influences domestic activities. There will be a decrease in activities in the country because the head quarters are destabilised. The communication lines are destabilised. And therefore after the Defence Force made this joint planning they required that three countries or three targets should simultaneously because of the interdependency, should be attacked. This would have been a bad influence on the ANC. There were certain safe houses, certain parafares(?), there were stores, there were other facilities available. I want to add that these countries had often been warned. These host countries they were warned by the department of foreign affairs that there were ANC members there and they were involved in terror attacks against the republic and they were requested to take the necessary steps against the ANC. And it was spelt out, otherwise the republic would necessarily defend themselves.

In the 24th of April information was obtained that the ANC had made provision that the republic would attack them. The inference was drawn because of a white paper supplied by the government on the 23rd of April 1986. And if I can remember correctly it was during that time that America attacked Libya. I'm talking under correction. It was the international climate at that time and the ANC read all this very well, they understood it very well.

The Defence Force's request was that in the second, that this operation should be executed the second half of April. They approached me, I approached the State President. I asked his approval. I explained and he gave his approval. It was an approved operation therefore. Like all sensitive operations, sensitive in the sense that should there be any leakages there would be a loss of human lives, etc. The State President told me to keep quiet about this, this is very sensitive. And at that stage the ANC had already penetrated certain departments, so leakages could take place.

However because of all the reasons I've provided and for various other reasons the Defence Force decided that they could not undertake that operation during the second half of April. And then in the middle of May they approached me and asked me whether they could now launch that operation for which approval had been given. I approached the State President again, explained the matter and obtained his approval. You should remember you do not speak about this very light heartedly. There could be loss of lives for example and the second aspect is I can't decide about this all by myself. Because there would be international complications.

There type of operations had a tremendous, obtained a media coverage internationally. And you can think for yourselves if the head of the Defence Force approved this type of operation, I did not have the competency to do that. But in any case this operation took place on the 19th. The eminence persons group visited South Africa during the same time. I was not aware of their programme, I was not aware of what they were doing here. I've never met them and I only was concerned with the onslaught against South Africa. And on the 19th we launched the attack.

After that operation no colleague or anybody else came to me and complained about this operation or even mentioned the operation. There was one party in the parliament who locally investigated. They approached the head of the Defence Force and they said they thought it was an overkill. That was the criticism. I'm just glad that the EPG's interpretation was and they stated categorically: That the decision to discontinue the discussions." I answered your question completely now I think.

MARITZ: Mr Chair I would like to have a break now. Would you please consider I think on a high level, the level of concentration is very high, as you can see he's not that young any more. And in all fairness to him we don't want to have this develop into and inquisition. I think we've got to be fair to the man and even if he says to you that he's alright. He's lying. Let's adjourn and let's conduct the matter in a way so that it will be fair to him in all respects. Thank you.

MR LYSTER: Thank you Mr Maritz. Mr van Zyl do you have?

MR VAN ZYL: I'm very happy to take a break now for lunch and we can perhaps resume later.

MR LYSTER: How much longer are you going to be?

MR VAN ZYL: I'm concluded with my questioning.

MR LYSTER: Alright we'll have a break and we'll resume afterwards with Mr McAdam and I have asked Mr McAdam to be as brief as possible.

MR McADAM: Mr Chair how long are the proceedings going to go on today? Because I know my learned friend does have an air ticket for three 'o clock and I've discovered from other persons that it's impossible to shift flights today. Everything is full. In this short adjournment I'd like to somehow look at how I can condense it into the time frame that would be available and if I have an indication of how long we're going it will assist me in knowing how much to actually put to the witness.

MR LYSTER: Okay let's break for half an hour then.





MR LYSTER: Whilst we would obviously like to finish this afternoon in time for everyone to get their respective aeroplanes, in the nature of things these hearings take a lot of organisation and particularly money. And we are very mindful of that and it would be very, very difficult to reconvene this hearing. So while we will make every effort to get through the work in a time allocated there is the outside possibility that we would have to go on. So I'd like to without restricting the questions that you're going to ask, to ask you to try and put them, to (...indistinct) them and crisply as possible. And by the same token to ask General Malan to give the answers in a shorter manner as possible, which hasn't always been the case. So Mr McAdam if we could ask you then to continue?

MR McADAM: Thank you General. Very briefly, in your submission you, after referring to a number of examples of ANC excesses came to a conclusion that the ANC was a terrorist and not a guerrilla movement in the period under consideration?

MR MALAN: Correct.

MR McADAM: Just three crisp examples. Were on the day when the new batch of national servicemen to report at the centre to register before they would then be taken to the military camps where their two year training would commence. Members of umkhonto weSizwe wearing South African Defence Force uniforms would approach these youngsters and under the pretext that they were then going to be taken to their army camps loaded into a vehicle, taken to a spots, drugged and blown up. Would you regard that as a military action by umkhonto weSizwe or is it terrorist action?

MR MALAN: When I refer to them as a terrorist or guerrilla activity I defined it. It's written here in my submission. Or rather I gave Natanaus a quote on it. So you can see what I'm saying there. Now we're talking about activities.

MR McADAM: No, just this specific act, how would you classify that?

MR MALAN: Well it depends. If they're in uniform and they fighting against us, then they're becoming guerrillas. If they go for soft targets they terrorists and avoid fighting the armed forces.

MR McADAM: Would you regard conscripts who had not received military training and who weren't wearing arms as being soft targets?

MR MALAN: Well I gave you the soft target indication here. Eighty percent from '86 onwards. Twelve percent can be hard targets. Yours might be in the hard target.

MR McADAM: A hard target?

MR MALAN: Well if it's military people, and they're fighting military people it will be a hard target.

MR McADAM: But it's conscripts, people who haven't received any formal military training and are not bearing arms? And if they fail their medical examinations they might not actually be fit for an military service at all?

MR MALAN: It's very difficult to say what their intentions are, I'm talking about the conscripts. Are they intended to become part of a military force, well then they can be a hard target.

MR McADAM: They'd be a hard target? Fine. Now there were various civilians who gave moral support, especially to national service men, providing them with accommodation in their own homes when the service men had a short pass and could not get back from the base to their own homes. If members of Umkhonto weSizwe had to attack those civilians who provided that support in their homes and shoot them dead, would that be a soft or a hard target?

MR MALAN: Well it depends, are they attacking a house of a civilian?

MR McADAM: That's correct.

MR MALAN: Or are they attacking military?

MR McADAM: No, they're civilians that accommodated these national service men in their own homes?

MR MALAN: Well I'll say it's a soft target. My definition of hard and soft is; is it a civilian attack, I mean on civilians or is it attack on military forces, military forces being security forces? That's the definition that I'm using now.

MR McADAM: And where the ANC had a leader one of their own leaders who had become an embarrassment to the party, their supporters were now moving to the opposition groups. The ANC decided the best way to deal with the situation is, kill that person and make it look like the security forces were responsible. Would that be a soft or a hard target?

MR MALAN: I wonder whether it's not murder.

MR McADAM: I'm happy with that answer.

MR MALAN: If it's in South Africa?

MR McADAM: In South Africa.

MR MALAN: Well if you do things like that in South Africa you have a law, a legal system. There is a legal system and the legal system will not allow that people are murdered. One must act within the law.

MR McADAM: I take it as Minister of Defence you would have had detailed briefings from the chief of the Defence Force and his staff as to what plans and strategies the military was implementing to combat the revolutionary onslaught in so far as it related to action by the military?

MR MALAN: I doubt whether that would be a submission to me. I would more or less be involved in a discussion in the State Security Council and if it is necessary that the Minister must know and give orders regarding defensive operations, not internally necessarily because the head of the Defence Force is the operational expert and has certain competencies. The question is whether it is delegated powers or now.

MR McADAM: (...indistinct) a major switch of strategy?

MR MALAN: If the complete switching over of strategy is involved the State Security Council would have to take the decision because it was stipulating policies and the department acted in accordance with that. Especially internally the JMS systems would be involved. If you come into a JMS system the military will be involved in the area and would be part of a whole package acting in a co-ordinate way in that area.

MR McADAM: Special forces would you agree with me that they are highly trained specialists, they were a scare commodity and a very valuable force and a level control on the use of those persons was very high?

MR MALAN: I want to point your attention before I answer the question to the South African Defence Force's submission given on the 8th of October in which a specific submission was made regarding the special forces, with which I agree it's in chapter 2, 6. If we look at special forces, yes they were very well trained.

MR McADAM: Certainly they would be the super soldiers of the Defence Force. The persons most proficient in the use of all types of weapons, explosions, demolitions, as a top fighting elite?

MR MALAN: No, they're not the top fighting elite, everybody is elite when we're fighting a war. There is no differentiation between categories but the question you want to ask is whether they would be trained in various weaponry. Yes they would in other bodies of the Defence Force they would concentrate on a certain body, infantry or whatever. They would not have the same level of training in that main weaponry but they would also have demolitions, etcetera, training. The special forces, the name of the special forces is aimed at having more training in a special direction.

MR McADAM: (...indistinct) were primarily deployed externally, on external operations and external intelligence gathering?

MR MALAN: I was never involved and I must put it to you this way; I was never involved in operational units, not as Minister. Those were aspects the head of the defence force would decide. What you are saying now sounds correct to me. Internally it would not be used in the fighting or the combating of revolutionary onslaught because it would not be required therefore. Except if armed forces come in or if there is a hijacking of a South African aeroplane but overseas, yes.

MR McADAM: At the hearing in October this year we heard General Geldenhuys state that in the mid-eighties he told General Joubert, whose was the commander of special forces at that stage, that he should devise a plan to assist the police internally. Why would General, would you accept that firstly?

MR MALAN: If he said that, I will have to accept.

MR McADAM: But he never actually, physically reported that to you or did he?


MR McADAM: Have you any, do you know of any reason why General Geldenhuys would give an instruction to special forces to help the police internally?

MR MALAN: No. I think that's the kind of question you must pose to him. I was not that involved in operational circumstances that I would have been involved. I had the politics and the management of the department on my hands. He had to deal with the nitty gritty of the operational unit.

MR McADAM: The reason why I ask you that is because at that stage the only assistance that the army could give to the police would be to back the police up when they went to arrest people either for detaining them without trial or for ultimately bringing them before courts of law on criminal charges.

MR MALAN: I accept that.

MR McADAM: And if we look, you said it out very clearly that at that period the major problem was the anarchy, the necklacings, the destruction of property, the boycott actions?

MR MALAN: Correct.

MR McADAM: Could special forces possibly be of assistance to the police in that circumstance? And specifically in the instance of the powers which the police could exercise internally at that time?

MR MALAN: I don't know. I can't answer that question.

MR McADAM: Would it not have been more appropriate to deploy infantry into those townships? I mean patrols would deter all these mobs from necklacing, destruction of property, protection of people who were branded as collaborators?

MR MALAN: I don't know what you are referring to but let me put it in this way. If we come back to the underprivileged, if the Defence Force had to support the police it would have been according to certain assessments, operational assessments that were made. And the Defence Force would then decide whether it's better to give this under these circumstances. I do not know what the circumstances had been and what the information assessment would have been or what the task would have been. But in general I can assure you that cordons were thrown and there were roadblocks, etc. That kind of, during those kind of operations the Defence Force supported the police.

MR McADAM: And a person in the position of General Joubert, a man of impeccable credentials, who was previously the commander of five South African infantry, the commander of sector ten in Namibia, the commander of a mechanised infantry, I take it would be very aware of what the army could or could not do inside the boundaries of South Africa in support of the police?

MR MALAN: I would accept that.

MR McADAM: Now what I found extraordinary is that when General Joubert testified he said that his plan involved the elimination of the ANC as a political and military organisation. It extended not only to actual armed combatants of umkhonto weSizwe but their helpers, their supporters, the facilities they used. And he was very clear that these persons instructions had to eliminated as in kill.

MR MALAN: Inside South Africa?

MR McADAM: Inside South Africa.

MR MALAN: Ask him where he gets that. I won't know. I testified that any actions, any illegal actions domestically would not be allowed.

MR McADAM: (...indistinct) the South African army was not above the law internally, externally. There were checks and balances in place. There were clearly defined laid down procedures?

MR MALAN: Mr Chair if we can come back to the question of the counter revolutionary war I will have to spend some time on that. There are three groups; Mao Tse Tung, define this concept there was the masses and a small group who supported the government and a group against them. The struggle is then who can get the masses on it's side? If the government wants to do that he will have to find a workable solution. It can only get the people on it's side by giving better things in the sense of a roof over his head, food, education. Where the other group that wants to overthrow the government works with acts of terror and by creating fear. And by taking those kinds of steps. In other words he forces the people in his direction. If a government starts transgressing the law or then you'll have problems. I will come back to that problem. Internally it's unacceptable to do these things, never mind a legal perspective. One would be working counter productively because a government if you are linked to the government and if you are busy with other activities, you will be bringing the government in discredit with the masses. In that spirit I'm telling you that one cannot act illegitimately and one has to act within the boundaries of the law.

MR McADAM: (...indistinct) if he carried out an order from the chief of the Defence Force that he would have reported back to the chief of the defence force and said: "This is what I've done in compliance with your order," as a check and balance. That the Chief of Defence will say: "Well fine what you're doing is perfectly acceptable go ahead or no it's out of the question." You don't implement that?


MR McADAM: And taking it further, General Joubert's plan involved firstly the attack on doctor Ribeiro and his wife in their home in Mamelodi. They were both shot dead. The plan went further to go into an area which was a thriving recruitment centre for would-be members of Umkhonto weSizwe, that operatives would come into that area, go to the youths, tell them they're members of Umkhonto weSizwe, they're looking for volunteers for military training. Those people would be taken into a kombi, driven to a remote spot near the borders of Botswana, blown up. They also resorted in the assassination by means of a car bomb of Peter Ntuli, a homeland leader. And in that particular instance the ANC in exile claimed responsibility for Peter Ntuli's death saying they were riding the country of a notorious homeland leader. Can you just comment on these type of actions that were carried out by the commander of special forces, members of his staff in support of the police?

MR MALAN: Mr Chair I don't know whether special forces did this. I have no specifics about this. I don't know and I have no information under which circumstances this took place. Was it armed terrorism or weren't they armed terrorists? If it had not been the case then it would have resulted in big problems because then one is not helping the counter revolutionary struggle. This kind of incidence you would have to investigate and one would have to put questions subjectively to these people. I've given my clear point of view on this and I can't add anything to it.

MR McADAM: (...indistinct) General it goes even further. It's submitted by both Geldenhuys and Joubert that within weeks of the deaths of the Ribeiros that Joubert reported this to Geldenhuys and Geldenhuys' only response was to say: "Stop any further such operations." That's for your information. And I would like you to comment as a former chief of the Defence Force, as the Minister of the Defence Force, how appropriate was the course of action implemented by general Geldenhuys when he received this information that this is how Joubert had operated?

MR MARITZ: Mr Chairman I'm sorry, you're putting my client on the line. You ask him to judge a matter. It's not his function to judge. We know what the facts are, we know that it's sitting before the Commission and it is in my submission unreasonable to ask my client to sit in judgement. He has made his position patently clear. And I think it's unfair to ask him this. And also it's unfair towards those people who I believed have asked for amnesty to have the General make it a public judgement which may be to their detriment and where they don't have the opportunity of testing him.

MR LYSTER: Thank you Mr Maritz. With greatest of respect it appears that if an uncomfortable question is asked of the General then there is an intervention and I think that it is an appropriate question that this is sworn evidence before the Commission from General Geldenhuys from major General Joop Joubert, from others, major Hechter. That this is what they did as part of special forces and as chief of the Defence Force. And the question that is being asked of the General as a senior politician as he then was, was is this sort of thing appropriate. A: is it appropriate what major general Joubert did as head of special forces? And B: is it appropriate that General Geldenhuys should say well don't do it again? General Malan has talked extensively today about the need to maintain law and order, to act within the bounds of what is lawful. And I must say that it is a fair question. Does he have an opinion as to whether what these two people did was correct?

MR MARITZ: Mr Chairman look I don't want to fight with you at all. You know me well enough for that. I merely wish to record that I take up (...indistinct) the suggestion that I am trying to prevent or to save my client from a difficult situation. That is decidedly not the aim. I've merely pointed out the difficulty in regard to the result of what is now sort. But you've made your ruling and we must proceed, if it's of any value to the Commission by all means if you think so, let him answer the question with all the consequences attached. But I voice my disappointment. That it is said that I am trying to protect my client in a manner which is not lawful or proper. Thank you.

MR LYSTER: Thank you. Do you have a response to that question General as to whether what major general Joubert as head of special forces did and B: what follow up action General Geldenhuys took in the circumstances?

MR MALAN: Mr Chair it's very difficult for me to answer this question because you have had the opportunity to listen to Joubert as well as Geldenhuys. I am sure that they had given much more detail than the question contains, has been put to me now. This makes it difficult in a sense, do I get all the information they've placed on the table or don't I? If I have to go according to this limited amount of information without knowing what it is about and what we are dealing with I cannot express an opinion and I think that, that's where you must listen subjectively. If General Joubert has transgressed the laws of the land he will have to take the consequences. If there are laws in the country I'm certain of it that there are if you would hide this kind of information or would not take the necessary steps, then steps must be taken against you. That must be logical, that's all I can add. But I must tell you straight that I do not know whether these people have broken the laws of the land. Because I am not trained in law.

MR McADAM: (...indistinct) killing one of it's leaders who've become an embarrassment, you said that's straight murder and if we look at Peter Ntuli, if the roles are swopped around, it's exactly the same situation. You have a homeland leader which at that stage was one of the organs which supported the National Party government and that person's murdered and it's made to look like the ANC did the job to get him out of the way. Because what happened is that his excesses were such that the people who lived in that community were joining the ANC in droves.

MR MALAN: You are not understanding me correctly. I said that murder is not acceptable, under no circumstances would murder be acceptable. If it had not been an armed attack. I remain with that position. What I'm now saying is something completely different. I do not know the particulars of the circumstances but if what you are saying is correct that a murder was committed then the laws of the land must take the necessary steps. I do not want to be associated with murder. The government cannot be associated with murder and I never gave any orders that. I gave my first evidence, I was never asked and I never gave permission that people could be murdered.

MR McADAM: And in the background of the type of Defence Force which operated at that stage, this would be completely bizarre and extraordinary conduct on the part of both General Geldenhuys and General Joubert?

MR MALAN: If they transgressed the laws of the land. Yes. If a murder was committed. Yes. That's what I said.

MR McADAM: Now General we also have the evidence of Craig Williamson at the same hearing. And Mr Williamson is firstly a distinguished service man the security branch of the South African police. Thereafter as a member of the military intelligence and directorate covert connections. Culminating of becoming not only a member of the National Party itself but part of the defence caucus. Now what he told us is briefly the following.

Firstly within the arsenal of combating counter revolutionary onslaught, not exclusively but within the framework were violent and unlawful remedies. Which for obvious reasons were not openly discussed. He said the politicians of the day deliberately kept themselves at arms length from those remedies. And when asked when the politicians knew or did not know, he then said that Cabinet Ministers, deputy Cabinet Ministers were on a daily basis furnished with intelligence reports. Had they read these reports they would have noticed this weaponry at work and they would have queried it and they never did.

MR MALAN: Question?

MR McADAM: Do you accept that opinion expressed by him or not?

MR MALAN: Mr Chairman I want to refer to Mr Williamson. He was not part of the defence caucus. He was part of the defence study group. This study group was a group of individuals and politicians interested in various fields. And they are informed by the Minister. Any communication he had came from me. He never posed this question to me. He never made these comments to me. This is Greek to me. I don't understand it at all. That he's saying this and he's saying this in regard to defence, if he said that in regard to defence. I don't know what he knows about politicians or the Cabinet. I've never seen him in the Cabinet. I've never seen him at State Security Councils. I don't where he's developed the expertise to pass judgements in absentia regarding their activities.

If I refer to these information reports, yes there were many reports. There were so many you can't even go through every one. And I told my secretary: "just mark the essential aspects." Because I couldn't keep up with all this reading matter. But it's not what he said or that's not what one department did, all these things dovetailed. Perhaps it's just like CIC, all the information was gathered. It was all compiled and then report was compiled. I can't comment on that but I'm just telling you what I know about it from my point of view. He never spoke to me about this weaponry at work. I don't know anything about that.

MR McADAM: (...indistinct) he gained his material on which to express that opinion is all years of being involved with firstly the security branch and secondly the military. And he went on to say that these views were being aired and there would be never any sense to that. He himself expressed these views and he said that there was a very senior group of persons who listened to his views and none of them ever condemned them or (...indistinct) military and security (...indistinct)by the security branch (...indistinct)

MR MALAN: Mr Chairman I don't know what this is about.

MR McADAM: (...indistinct)

MR MALAN: Mr Chairman I can't comment, I'm sorry. I've never been involved. I've never been exposed to this. I don't know anything about this. This is the first time I hear this information. I'm not trying to say that you are wrong I'm not trying to be funny. What I'm saying is the Minister does not function on that level. If I functioned on that level and I was exposed on that level to those things I would have never been able to do my work. I'm sorry I can't help you any further.

MR McADAM: Now (...indistinct) a situation where South Africa was (...indistinct) the Western world (...indistinct)

(The speakers microphone is not on.)

MR McADAM: (...indistinct) to carry support of foreign countries for it's policies that would have been more and more, Western countries were implementing more and more stringent sanctions. There's more and more lobbying by the ANC for Western countries to join the Soviet block in supplying military training and bases. Would you agree with that?

MR MALAN: Generally speaking, yes.

MR McADAM: Now in the context of a rapidly declining security situation horrific atrocities being committed against defenceless civilians, people who have done no wrong but suffer all these horrific outrages of necklacing, of peoples' courts and of houses being burnt down and clearly that state of affairs could not existed if the existing legal means of dealing with the situation were not failing or being ineffective. Do you agree with that?

MR MALAN: Just the last? Not being effective?

MR McADAM: The legal methods of trying to contain that violent situation weren't working?

MR MALAN: Was not effective?

MR McADAM: Or not effective?

MR MALAN: It was effective as far as I'm concerned.

MR McADAM: Well General I don't want to give evidence myself but for many years in this period I was a member of the attorney general's office in KwaZulu Natal as well as a serving member of a civilian Defence Force unit which was employed to try and bring the violence in that region to an end. And from a prosecutor's point of view we came across literally hundreds of thousands of murders where nobody would submit a statement. One had the futility in the army of simply arriving and seeing these people burning alive in the streets and nobody being able to come forward and point people out that we could have arrested and hand over to the police. And more and more people fleeing out of their homes and having to set up horrific living conditions in squatter areas getting worse and worse. Would you agree with that?

MR MALAN: With that experience yes, that you had. I agree with you. I'll accept it.

MR LYSTER: The question was were the legal lawful means open to the government that prosecution and imprisonment of people, was it effective at the time? And you said it was effective. I think the point Mr McAdam was making; if it was effective why did these things continue to happen?

MR MALAN: Well we had the state of emergency. In the end there were many powers because of the state of emergency. Powers to detain people and one of the, in one of the minutes of the State Security Council instructions were given to the Minister of justice and police to investigate new methods of detention or new legislation. So there was a question of certain problems and to see how that could be contained.

MR McADAM: (...indistinct) that was causing very strong backlash from the Western countries who were continuing to support South Africa?

MR MALAN: Ja, you're right.

MR McADAM: And the state of emergency also had it's problems because more and more the people who were being detained challenged the validity of that legislation and the security police had to spend all day at court justifying why X should be detained without trial and not in the field doing their job?

MR MALAN: Mr Chairman I'll accept that. I had nothing to do with the police but I would accept that. That those were the circumstances. That sounds quite logical.

MR McADAM: (...indistinct) any possible way out of this impossible situation would be for that state itself to give these terrorists a dose of their own medicine? Because I think you had the situation that these people could do everything with impunity and very little or nothing was done against them.

MR MALAN: Mr Chairman if the state considered that and if they did do that they could never win the revolutionary war. I've already described that. Yesterday I said that never ever in the Cabinet or the State Security Council or in the Defence management system I ever saw that any decisions were unlawful. I don't know of any time that these type of considerations were discussed in the State Security Council. Like overthrowing the laws of the country.

MR McADAM: (...indistinct) I'm just saying that in that situation it would not be possible for the government to further extend it's laws to cover that type of counter reaction because of the international repercussions (...indistinct)?

MR MALAN: Well they kept it didn't they? They maintained the state of emergency. I want to take it a bit further. As I've said in this submission. I want to put it like this. the security forces notwithstanding all these onslaughts they created a situation and maintained the situation that negotiations on the political field could continue. There was no victory on the military field but they could create the circumstances for negotiations.

MR McADAM: (...indistinct) is that of the state adopted terror tactics. They could not put it in laws, put it in minutes because if it might be acceptable inside the country it wouldn't be acceptable outside. Secondly, there is a major difference between detaining people alive without trial than giving the army and the police carte blanche to every time they came across a supporter of an illegal organisation to summary execute that person. If that had happened and the government had passed a law giving the security forces that type of power, the Western countries would have probably joined in supplying the ANC with arms. Not so?

MR MALAN: No Mr Chairman I would have gone further, The government would have been overthrown because the members of the government would have resigned.

MR McADAM: Now what I'm going to put to you further is if the state had as a secret strategy adopted terrorist tactics that would very logically and easily explained the conduct of honourable soldiers such as General Joubert and General Geldenhuys?


MR McADAM: Mr Chairperson I did promise that I would be as brief as possible. I think what I have done now has covered all the major issues. The research department did come to me with a number of aspects and on those aspects I discovered late yesterday afternoon the General and his legal team did not actually have those documents. I propose, if there's no objection from, that those issues be canvassed by way of written questions at a later stage to the General. I've just been asked by one member of the research team, there's one aspect. And that relates to a 1990 State Security Council minutes and dealing with the closure of the CCB.

There are two questions that the research department would like. Was the CCB closed down in it's entirety or was it only the one element that had actually caused the problems that were aired in the Harms Commission?

MR MALAN: Mr Chairman according to the minutes I saw the Cabinet minutes I reported back quickly. I don't know where I had obtained the information from that it was region six. But the conflict at that stage has already passed after the 2nd February speech and I've said that until the Harms Commission region six would be removed and the others would be reorganised. Later on I gave instruction that the whole CCB had to be closed. That is not something which could be done immediately but it was closed down. That was my instruction.

MR McADAM: (...indistinct) was correctly informed as to what the right, the correct position was on the closure of the CCB?

MR MALAN: Well I don't know whether I reported it to the Cabinet but I made it known to the media. So I accept that the Cabinet would have known that. I can't remember that specifically. This part I wouldn't have even remembered if you did not supply a copy of the Cabinet minutes.

MR McADAM: Mr Chair I don't have any other questions. Thank you General.

MR LYSTER: Sorry I, we'll ask a few questions. We were joined this morning by another panel member and I apologise for not introducing her. It's Ms Phumla Gobodo Madikizela from the human rights violations committee and she will ask a question.

MS MADIKIZELA: Thank you Chairperson and good afternoon to you General. Do you mind if you speak in English so that we can speak directly to each other? I just have one or two questions.

It's not about the State Security Council as such but I hope that you can still maintain your commitment to assisting in filling up the gaps. I really need your opinion on something. It's become quite clear to s through a number of hearings we've had here at the Truth Commission statements and submissions made as well that the ANC was an enemy to be fought, eliminated or neutralised in any way. Now when we consider a statement that you made this morning earlier, concerning the conditions in Alexandra. That if you lived there you yourself would be leader of the revolution. Do you think that the notion of enemy is helpful in an attempt to understand what the issues were at the time?

MR MALAN: Thank you. We talk about the issues of the time. Mr Chairman this is a very important question and I'm going down to the, I'm going to refer now to the joint management system where you had various geographical areas. What I did and that was prior to the national joint management system, before that came into working. I went to each and every centre, JMC to see how they operate because they were responsible for the security of people, for the welfare of people and the economic viability of people. And education and things to that effect. To improve it. In other words instead of having a government at the top looking down, it was a question of bringing it down to a lower level. Let's say the grassroot level. I went to most of these JMC's, well I went to everyone. But to some of them I went even five times to improve their functioning, co-ordinated functioning. Because the departments like, let's put it in public welfare department, public works department. And departments like that saw the security matter completely away, not being their responsibility but the so-called security forces. In other words the police and the military to do that.

I'll give you a very good example. There was an uprising in Queenstown and the chairman of the joint management centre went there to establish what was the problem. And they established that the uprising was because there wasn't running water, sufficient and toilets. So he called in the chap who was the representative of the department, who was responsible for that and he said: "You got to do something about it." And the chap said: "It's not a priority." And he said: "But don't you realise what's happening in this country? You're aggravating the security situation. You're not getting the people to our side. Do something about it," And there he started with that type of example all over the country in getting a combined unit to assist and to improve the situation of the people.

I took the State President and some of my colleagues to Port Elizabeth. I took them especially to Soweto by the sea. It's the most filthiest place I've ever been to. Sewerage water running in the streets. We came on a little square there where women folk and children were selling their stuff, a fleamarket type of situation. And the president there addressed the Minister who was responsible for public works and he said: "You'd better erect here roofs and coverage for rain and for the sun. Give then a viable environment." He even went further because according to the law you weren't allowed to do it if you haven't got a licence. And he said: "I couldn't care less about. In this country stop that type of limitation. Let's open it up. Let's get people to help themselves."

The reason why I'm explaining this is to give you an idea there was a very sensitivity towards it. Whether it was done enough or too late, that's a different question. I an recall we went to a certain place there where people were housed into, in horse stables. Horse stables that were erected by the British troops in the late 1800's. You can't expect people to live in those conditions.

MS MADIKIZELA: But that is precisely my point General. Thank you very much I appreciate your response. I'm glad you make reference to Queenstown. I know Umlungisi township in Queenstown very well and I know they battle in Queenstown I know. What happened in Queenstown is a microcosm of what was happening in the rest of the country. That people lived under those kinds of conditions which were really quite deplorable as you yourself has pointed out.

But the point I'm making is if we look back and we review all that happened. The counter insurgency, the death that resulted as result of it, the actions by the ANC, does the notion of the ANC as an enemy or the notion of the supporters or fellow travellers of the ANC as an enemy help us in understanding what happened in the past? Now the point I was making is that for me it seems that it blurs our understanding. Because as you yourself point out people were living under those conditions and I know for example that in Queenstown the issue of toilets and water were very topical and it lead to boycotts of shops in Queenstown and in wars in Queenstown.

Now it undermines, if we simply say that we were fighting an enemy or the government was fighting an enemy. It undermines some of the fundamental reasons that lead to the conditions of fighting or of the war or it avoids some of those conditions. And I think that's it. I'm not going to belabour the point.

But another question I want to ask you, make perhaps a comment from you is whether you think that the South African Defence Force in it's counter insurgency crossed the line from being a peace keeping force to one that monopolised violence as a strategy for it's own use?

MR MALAN: Mr Chairman if I can refer back to the comment that you made. I agree with you. It's a pity we had a war. Because the problems we had at that stage are still here at present. If we combined our efforts earlier on and did it in a different way, now this is hindsight talking now, it would have been much better. But again we talking about the period and the heart breaking things of a situation in our country where fellow South Africans were fighting each other. It's a pity. And people were killed. I feel very sorry and I apologise it from my side. But I'm coming to the next one with peace keeping against violence.

If we talk about the, and I'm talking about internally specifically now. If we talk about the situation in South Africa, as a peace keeping versus a violent type of organisation, South Africa was a peace keeping one. We're talking about thousands of troops who committed themselves, who went there and assisted and they knew it was winning the hearts and minds of people.

I'm going to tell you a story now and I'm referring to Tembisa. And it was a very wicked place, Tembisa. There were very few - I wouldn't say law abiding people. But law and order couldn't be enforced there. It was difficult through various reasons. But when the troops moved in there the first time, my biggest problem was to tell them you'd better take the tea and the biscuits that the ladies are giving you in that township. Drink and eat it to show and to acknowledge their hospitality. I talk about the old South Africa, they were peace keeping troops. And I'm talking about 95 percent plus. You had certain elements who were violent and I'm very sorry about that. But they weren't organised to be violent if I can put it that way. It was mostly individuals that were involved. One day when we talk about the history I'm afraid that the period that we are referring to now is gonna be a bad blob in our history. And I'm talking about a century forward or two centuries. They will always say: "Why couldn't the people of South Africa get together and join hands?"

MS MADIKIZELA: Thank you Chairperson just one last question. Talking about hearts and minds, we are very clear about what that meant in relation to black people in South Africa. What was your strategy to win the hearts and minds of white people in South Africa?

MR MALAN: We never as a military organisation, we never set a goal in winning the hearts and minds of white people as such because we're talking in a sense of haves and haves not. It was the haves not, they were the majority. They were the people who really suffered to a greater extent. They were the group that you had to get on your side if you want to win a revolutionary war.

MS MADIKIZELA: I suppose I mean that in a literal sense. How did you get the white community to be supportive of the strategies used by the Defence Force?

MR MALAN: Well it was a question of influencing them, talking to them and I think most of the white South Africans are tired of the whole business and they realised and that's the reason why negotiations started. Because it's a political thing. They were influenced to realise it's not separate groups living in South Africa, we're a nation here, we're one nation and we've got to build that nations. So I think it was automatically accepted by them.

MS MADIKIZELA: Thank you Chairperson.

MR LYSTER: Thank you. I'd like to just break for a couple of minutes just to ask my colleagues whether there are any other areas which they think is important enough to?

MR MARITZ: (...indistinct) eventually you'll be (...indistinct) thank you.


MR LYSTER: I think we just have literally probably one question to ask before we close, General Malan. And it relates to something which hasn't been covered yet and that is the civil co-operation bureau, the CCB. This was something which you testified to yesterday when you started late in the afternoon that it was something that was established very much at your initiative. And it was headed by a former head of the special forces, sorry it was headed by a former special forces head, Mr Joe Verster. People in the CCB were also recruited from special forces and you have agreed with Mr McAdam what sort of operatives, what sort of skills training people in special forces had. It was a highly clandestine operation, it cost the state an enormous amount of money. Can you tell us what, bearing in mind what I've said and where these people were recruited from, what was your expectation that these people would do? Or that this bureau would do?

MR MALAN: Thank you Mr Chairperson. In my presentation the previous time I was before the Truth Commission I reported on the CCB. The question was already dealt with there. I will just very briefly (...indistinct) special forces was approved in principle by me. Special forces was the integrated and supported part of the South African Defence Force. The role envisaged by CCB was infiltration and penetration of the enemy and gathering of information and the disruption of enemy. This is basically all that I know about the CCB. I saw in the Defence Force's submission they also included the CCB and special forces. It is probably what they know about the CCB. I never directly worked with the CCB. I, in other words never went to them. I knew the commanding officer or the director of the CCB because he was a commanding officer of a reconnaissance unit. I never received any reports from them. I do not know where they operated, how they operated. You must keep in mind as Minister I did not get involved in operations in the sense that the CCB was consisted of approximately 150 men. If I were to become involved and if I had to expand my expertise to those operations then I would have to give my attention to all such operations in the country. That's why I never had anything to do with the CCB.

When the bomb burst the Harms Commission was appointed. Judge Harms did not invite me to testify before him and he came to certain conclusions, he made certain findings. They were brought to my attention as you have seen in the press and those were crimes. This matter of planting a foetus in a man's house, in blowing up houses, attempted murders are completely contrary to what I have testified here today. I cannot allow certain organisations to break the laws of the land and to have double standards and tell others that they cannot do that. That's basically all I can tell you. I expected that after the Harms Commission's report I expected that the AG would automatically take certain steps. It might be because of the Truth Commission being created that those steps weren't taken. But I accept that those deeds and offences were, where people applied for amnesty with regards to them I never approved any actions of the CCB. And that is basically what I can tell you about the CCB.

MR LYSTER: You seem to be suggesting that it was a plan that was entirely lawful and even benign in it's inception but that people did things that were unlawful and you express regret therefore but we, Colonel Joe Verster has given evidence and he, and there's a document, I don't have it available and I apologise. But I can assure you that the contents and the short extract from the 1987 year plan of the CCB is that they express a view, he expresses a view, Colonel Joe Verster that the purpose of the CCB was: To disrupt the enemy to maximum. It means to kill, it means "dood, dood te maak." And that would support the view that far from being a plan that went a bit wrong because of some misguided, the actions of some misguided individuals that it was basically the purpose of the organisation was to in a clandestine or covert or secret way, was to identify enemies of the government or opponents of the government within the country. And to kill them. And people, that's what they did. That's what operatives of the CCB did and they've asked for amnesty for that. And that view, I'm not saying it's a view that this Commission has excepted, that view is in direct contrast with the view that you have given us. And the question I ask you is whether you had absolutely no control over this organisation to the extent that you didn't know what they were doing? Or whether you knew what they were doing and you kept an arms length view away from what they were doing? Or whether there's another explanation which you want to put forward and ask us to consider?

MR MALAN: Mr Chair if we talk about disrupting I do not visualise killing but killing might be included as well. In that sense I mean this, I do not want to tell you that it does not mean it at all but disrupt means lots of other things as well. Disruption of the ANC towards the South African Defence Force was exactly what was the, exactly the same as what was expected from the CCB. It did take secrets of the Defence Force and channelled those secrets to the ANC. I have the greatest respect to them for that. One has to know one's enemy. One has to know what the enemy thinks. That's what they thought. That is the name of the game. The one towards the other.

But there are other factors of disruption as well. I mentioned as an example the matter of if there is an ANC vehicles one can put sugar in the petrol because they can't leave at the moment that they are supposed to arrive. There are various such things that can be done. One can take it's information and pass it on. One can influence them. Do not ask me now to give any examples of that because I only know of one such example where this took place. But it is good that I don't know anything about it. Because it is on a need to know basis.

If one comes to the control of units, for example the medical general or the air force, special forces, infantry or whomever who were four or five times as big as this one who played an equally important role, a Minister can't be involved with that because then I would take over the Defence Force. Then it would be better for me to be head of the Defence Force and to take over control of that again. The Defence Force was delegated according to the Defence Act. I am not saying that I kept them at arms length on purpose. During this discussion we've had today and yesterday we are talking about the Defence Force. The bigger part of my budget was not for the Defence Force but it was for Kruigkor, for ARMSCOR. And the affiliates thereof. I visited all of those affiliates at least once just to show my face there but if things went wrong there the nuclear situation in the country I went there once. I did not have any time to go and look at nuclear bombs. I just informed myself I did not regard it as important. The Minister of Defence has to have his finger on the pulse of all these things.

MS MADIKIZELA: Thank you Chairperson. I'm just wondering if this idea of the needs to know basis, if it is possible at all that part of the reason for this was perhaps to avoid not in an actively conscious way but in a kind of subtle way to avoid confronting the problems on the ground by delegating them to other to do the job in a way. While you as a Minister or the people in charge sat in the background and watched the results and not got involved in the process. Do you think that part of the function that, that serves was to remove you from direct accountability so that you're not directly involved on the grounds but you know, others are doing it? Do you think that is possible?

MR MALAN: No. Sorry if I talk about need to know I'm talking about need to know about certain specific things. Horizontally as well as vertically. For instance the nuclear bomb I doubt whether there was more than five people in the Defence Force who knew about it. That's a need to know basis, that's what Iím. And I'm not trying to avoid accountability or responsibility. That's the reason why when we spoke here yesterday I came out and I said this is political responsibility. And I've got to carry it. Now if the CCB did certain things in South Africa that was unlawful it's their responsibility but otherwise it's my responsibility, political responsibility.

But basically where I would have met them, met in the sense of it might have been discussed was I had a, as a Minister I insisted on getting all the various arms at the air force, army and navy and all the staffs that's the personnel, the operations and so forth, get them around a table. And I'm talking about maybe 50, maybe 60 people once a year. It took at least about three days to work out the budget and it could have happened that in the budget people will say well we need for special forces a 100 million or 10 million or what the case may be. And I'll say well are you sure that's enough or should we give them more? Debating between the people who are subjectively involved and I should be objectively in the sense of keeping it back. And keeping and that's what I tried to do yesterday, explain yesterday that's the forecast of operations that will take place for the next year, for the next five years or the next twenty years, etc. But otherwise no, need to know basis wasn't keeping the Minister out of the picture because there was delegations. And I must say something else too. I doubt whether there's any other department in South Africa that had a policy of management by objectives and decentralised control and command written. And this is the way business world work and it's a scientific way. We did it. But need to know didn't play a role there.

I'm not quite sure but I have an idea that somewhere you fed us with a need to know definition or something. I picked it up in studying and preparing myself to appear here. But it wasn't keeping the Minister away and let's do the dirty tricks here under the table. No.

MR LYSTER: General just before we broke for lunch you talked about the raids at the time of the EPG mission. And you said that essentially that decision was taken or was it needed to be taken in circumstances of great sensitivity by yourself, essentially by yourself and the State President. Obviously on the advise from the head of the army whoever it was in the army. Now was that something which took place on a regular basis? Where if it was of a sensitive nature or if it was of such a nature that a decision had to be made quickly that decisions were made by the State President and the Minister responsible? And I'm talking really about yourself and the Minister of law and order and perhaps one of the other Ministers within the security arena?

MR MALAN: Well Mr Chairman this was a question of sensitivity of not so much time-wise because we had leakages previously and failure in operations because of that. And because it could have been postponed again. I always went to the State President for any operations across border. To keep him informed because the implications, the international implications were so great. I couldn't take those decisions on my own. But in this specific case he said fine in the middle of May. But unfortunately then I was out of circulation for approximately a month. So what happened after his approval to the operation and coming back into the folds of the government I wouldn't know. That's why I said I'll take responsibility but it was the government's decision there.

Except if you followed the golden rule that I explained in parliament today where I said those words. Nobody said you are advocating murder now. Nobody said it but they should have done it there. If somebody was against it then he should have gone to the State President because he saw it on the 19th. He could have done it personally or he could have waited for the State Security Council or say: "I'm sorry I disagree with it." And the golden rule, leave government if you disagree with government. I mean that's the way it functions.

MR LYSTER: Ja. I was really asking a more general question as to whether these sorts of decisions were taken by Ministers in consultation with the State President? Not cross-border raids but other decisions which may have had national and international repercussions? Was that how the, was that the milieu in which you operated at the time? That the State President made decisions in consultation with a Minister or perhaps two Ministers?

MR MALAN: He could have done it that way or he could have done it in isolation. It depended on various factors. There wasn't a golden rule to say he had a group in. I saw him in certain situations that he got a group in, depending on the situation. It wasn't operations. I mean when they caught those chaps in France they say smuggling arms and ammunition for South Africa, he called in a couple of people like people who were involved in it. Involved in a sense of relationship with France, etc., etc. So you could play it any way. My problem is the international implications and national and therefore I went to him and then he decided what to do. In this specific case I advised we should do it and he decided to do it. I'm not sure whether he spoke to the other chaps or he didn't speak to them. I went out of the normal routine there.

MR MARITZ: Mr Chairman can I just record General Malan has referred to the fact that in that time slot he was out of circulation. I just wish to record that I think from somewhere in May to about July 1986 General Malan was incapacitated because he underwent heart surgery. A heart bye-pass was done which is a very large operation and I just wish to record it so that you can take it in account (...indistinct) Thank you.

MR LAX: Thank you Chairperson. Just for the record Ilan Lax speaking. General one of the things that struck me when we heard the evidence from your colleagues, your Cabinet colleagues in Johannesburg was all of them said that the tenor, the tone of the Botha government and the Botha Cabinet in particular was such that you just didn't ask questions. You didn't question decisions because he just didn't tolerate that sort of thing much. That's how they put it across.

MR MALAN: I wouldn't know. That wasn't my experience. I can distinctly remember in a period in round about '84, '85 and we had a terrible fight the two of us because I disagreed with a decision. I even went so far as to appoint a Commission of Inquiry to see whether my decision was right or wrong and I got business people from outside to do it. And they reported back to the State President. So it's fine, it's not a nice thing to have. If you're there, you're there for a purpose and then you've got to, you have to make a standpoint, you've got to do it. You've got to have the guts of doing it. Generally speaking, fine there was disagreements. Mostly between colleagues a lot of disagreement and eventually we agreed upon the solution to it. I think that's the way I experienced it.

MR LAX: Just one last question. And that was your concern just in relation to that particular series of cross-border raids that were simultaneous that you spoke about, was the foreign implications and yet for some reason it wasn't, certainly on Mr Pik Botha's evidence it wasn't discussed with him. It strikes one as a bit odd.

MR MALAN: Sure but I'm not sure whether the leakage might have been at foreign affairs but there was definitely a leakage and that was my instruction.

MR LAX: Thank you Mr Chairperson.

MR LYSTER: Thank you General that's all we have. If there are other issues which we would like to follow up on and you'd like to be able to do it through your attorney?


MR LYSTER: Thank you for being here today and for answering the questions and co-operating with us. And thanks also to others who've co-operated in this hearing. Thanks to the rector of the college, who made this place available, technical staff, interpreters, media liaison people. logistics and the administrative staff and the researchers and investigators.

MR MALAN: Mr Chairman can I just retaliate on that? I say thank you very much the way you conducted it, for the Commissioners here, the questions the way they set it. I tried to be as open as I could. A special word of thanks to Mr McAdam and Mr van Zyl.

MR MARITZ: (...indistinct)

MR VAN ZYL: In needling me.

MR MALAN: Thanks to the translators and the staff here. Thank you very much for the lunch and the tea and the coffee, it was most enjoyable. And above all thanks for being Cape Town.

MR LYSTER: Thank you, we are adjourned ja.