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&#9;TRUTH AND RECONCILATION COMMISSION
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 &#9;TRUTH AND RECONCILIATION COMMISSION

&#9;AMNESTY HEARING

NAME:&#9;&#9;JOHANNES VELDE VAN DER MERWE

APPLICATION NO: AM5157/97

DATE:&#9;&#9;28TH FEBRUARY 2000

MATTER:&#9;&#9;LESOTHO ATTACK ON 19TH DECEMBER &#9;&#9;&#9;1985

HELD AT:&#9;&#9;IDASA CENTRE, PRETORIA

DAY:&#9;&#9;&#9;5

______________________________________________________CHAIRPERSON: Good afternoon. For the purposes of the record I'm Judge Pillay. I'm going to ask my colleagues here on the panel to identify themselves, for the purposes of the record and thereafter all the legal representatives and if you have an attorney and your counsel present, only counsel need identify themselves.

JUDGE KHAMPEPE: I'm Judge Khampepe.

ADV BOSMAN: Advocate Bosman.

MR HATTINGH: P A Hattingh, Mr Chairperson, I appear for Mr de Kock.

MR VISSER: May it please you Mr Chairperson, I'm instructed by Wagener and Muller, I appear on behalf of Gen Coetzee who has received a subpoena in terms of Section 29 and for the applicant, Gen Johan van der Merwe and Brigadier Willem Schoon. I'm sorry, I'm told that I neglected to tell you who I am. My name is Louis Visser, Mr Chairperson.

MR TOWEEL: Mr Chairperson, C R Toweel, I'm acting on behalf of Mr J H A Coetser.

MR CORNELIUS: &#9; Thank you Mr Chairperson, Willem Cornelius, I act on behalf of the applicant Nicholas Johannes Vermeulen.

MR LAMEY: Thank you Mr Chairperson, the surname is Lamey of the firm Rooth and Wessels, I represent applicants Nortje and Bosch.

MR BERGER: Chairperson, my name is Danie Berger, I'm instructed by David Dison, Norval, Ameer and Ndlovu, my instructing attorney is Ms Karien Norval. We act on behalf of quite a number of victims. I'm going to read them out, there are a lot of names. We act on behalf of the family of Leon Meyer and his family will include or includes Chris Meyer, his brother. Dawn Botha, his sister. Noleen Whiteboy, his sister and Richard Meyer, his brother. We also act ...(intervention)

CHAIRPERSON: Was he married?

MR BERGER: Yes Chairperson, he was. 

CHAIRPERSON: How about his wife?

MR BERGER: She's one of the deceased. 

CHAIRPERSON: And children?

MR BERGER: I'm coming there, I'm coming to that. His daughter as well, Phoenix Quin, she's also the daughter of another of the deceased, Jackie Quin. In relation to Jackie Quin we also act on behalf of her parents, Patricia and Philip Quin, her sister Jane Quin, Deborah Quin, Margot Quin and her brother Rory Quin.

&#9;Then we act on behalf of the family of Nomkhosi Mary Mini, her bother Xolile Mini, another brother Vukile Mini, sister Nonxaba Mini and another sister Nkosazana Bisiwe.

&#9;We also act on behalf of the family of Vivian Stanley Mathee, his grandmother Caroline Magdalena Mathee, his mother Maria Carolissen and his cousin with whom he grew up, Tommy Mathee.

&#9;We also act on behalf of the family of Nankaelang Mohatle.

JUDGE KHAMPEPE: How do you spell that name Mr Berger? Both the name and the surname?

MR BERGER: Nankaelang is N-A-N-K-A-E-L-A-N-G and the surname Mohatle M-O-H-A-T-L-E. Her mother, Celia Mohatle, her siblings Seemiso S-E-E-M-I-S-O Mohatle, Rapoloane R-A-P-O-L-O-A-N-E Mohatle, Mamohau M-A-M-O-H-A-U Mohatle and Anna A-N-N-A Mohatle as well as her children, two boys, Relebohile R-E-L-E-B-0-H-I-L-E Mohatle, Reitumetse R-E-I-T-U-M-E-T-S-E Mohatle. 

&#9;We also act on behalf of the family of Monwabisi Mayoli, also known as Themba Mayoli. In this regard his wife, Lydia Mayoli, his son Nomkululeku Mayoli, his sister Caroline Nontinti Mayoli and his brother Ntobeko Mayoli.

&#9;Chairperson, we also act on behalf of the family of Lulamile Dantile who is also known as Morris Seabelo and in this regard his next-of-kin is his mother, Buyelwa Elda Dantile.

&#9;And then fortunately, Chairperson, we don't act on behalf of the family of Mr Midian Zulu who is listed as a victim because he fortunately is not deceased, he is alive and well, he is in the audience today, he was not in Lesotho at the time of the raid and he just wanted me to say that and set the record straight.

CHAIRPERSON: So he wasn't a victim in this attack?

MR BERGER: No.

CHAIRPERSON: Are those all Mr Berger?

MR BERGER: Those are all the persons for whom we act, yes.

MS PATEL: Thank you Honourable Chairperson, Ramula Patel. 

MR JOUBERT: May it please you Mr Chairperson, Honourable Members of the Committee, my name is H P Joubert, I appear on behalf of Elvis Vincent McCaskell.

MR TREURNICHT: May it please you Mr Chairperson, the name is N J Treurnicht, I represent the interests of Dr Neil Barnard, I'm acting on the instructions Cape Town attorneys, De Klerk and van Gend.

CHAIRPERSON: Mr Visser, I was told that you are going to start?

MR VISSER: Chairperson, yes I was told the same thing. Chairperson and Honourable Members ...(intervention)

CHAIRPERSON: It's hard not to be in control, hey?

MR VISSER: Mr Chairperson, yes, before I call the first witness would you allow me just a brief remark about certain documentation which will pass before you during this hearing. It has been some time since I personally had the honour of appearing before you and in the meantime there was an event which took place on the 6th February last year which you know about and at the Chairmanship of Justice Wilson assisted by Mr Malan at which time the legal representatives that act for many or some of the applicants in amnesty applications were called together in an attempt to find ways and means of accelerating the process. I say what I'm saying with apologies to Justice Khampepe and Advocate Bosman because they've heard this before but I believe I have to repeat it for your benefit, Mr Chairperson and at the time the legal representatives were invited to do whatever they can in order to this speeding up of the process. From our part we undertook and in fact put into operation three documents, well two documents Chairperson, with a promise of a third.

&#9;The first document which we drafted which deals with the general background seen from the point of view of the security policemen during the course of the struggle. On the last occasion when we appeared before you in the Kondile matter, if I'm not mistaken, you will recall that you heard ample evidence from each of the applicants setting out background etc, etc, personal circumstances. What has been done now is that has been compiled and summarised in a document which is now included in your Volume 3, Chairperson, from pages 87 to 113. We don't repeat the whole of that in our evidence of our applicants, Chairperson, save that the applicants will be invited to identify in that document to the Committee which parts of it, it does not agree with if that be the case and for the rest in line with the decision in the Cronje case, it is taken to be read until such time as somebody challenges it.

&#9;The other document, Chairperson, and again you will recall in the beginning what the written argument looked like, it was volumes and we've reduced that Chairperson, to only such items as do reoccur in amnesty applications.

CHAIRPERSON: It's still a lot.

MR VISSER: Unfortunately, that is so but what's - and I can say that now already, Chairperson, we will hand this to you but we will not deal with the whole of that document save for such issues as may appear during the course of this hearing in which event hopefully it will all be here and we can save time by simply referring to that. 

&#9;Chairperson, the third thing that we did was to promise and we have stuck to that promise to present the Committee with statements of the evidence which will allow first of all interested parties to see beforehand, as long as possible beforehand. We've handed to some of the interested parties only this morning the copy, Chairperson, but for the Committee and everybody to have a copy of a statement before them which is the evidence that the applicant will lead barring such additions thereto as may arise from questioning etc.

&#9;Therefore, Chairperson, we would now ask you to receive - I'm not sure whether you've been given a copy of the statement of the evidence of Gen van der Merwe, I would ask you to mark that Exhibit A and I will in the evidence ...(intervention)

CHAIRPERSON: It's the one that has a computer reference WTRC/Lesotho I.

MR VISSER: That is correct, Chairperson, that is the one. Could that be marked Exhibit A perhaps Chairperson and may I then beg leave to call Gen van der Merwe who is present, who is willing to take the oath and prefers to give his evidence in Afrikaans?

MR BERGER: Mr Chairperson, before Gen van der Merwe takes the oath might I just place on record that of the three documents that Mr Visser has referred to, the General Background, apparently that appears in Volume 3, we got that for the first time this morning, we hadn't had an opportunity to read it.

&#9;The second document which he didn't say what the title of that document is, we've never seen and the third one, the statement which was supposed to be given as long as possible beforehand we received this morning. That one we have read.

CHAIRPERSON: Yes Mr Visser your second statement or second bundle?

MR VISSER: Chairperson, my learned friend has seen it before, this is just a shortened version of the written argument which we used in the London Bomb, basically with some additions and some issues which we left out so it will be a written argument.

CHAIRPERSON: Is it possible to get a copy to him?

MR VISSER: Yes Chairperson, you must forgive us for having thought that we'll leave it until the end, until the argument stage but we have no problem in copying it right now and giving it to Mr Berger and others who might be interested beforehand. Thank you Chairperson.

JOHANNES VELDE VAN DER MERWE: (sworn states)

EXAMINATION BY MR VISSER: Gen van der Merwe, you are an applicant in what has become known as the 1985 Lesotho Incident, is that correct?

GEN VAN DER MERWE: Yes that is correct.

MR VISSER: Your application for amnesty can be found in bundle one from page 79 to 105?

GEN VAN DER MERWE: That is correct.

MR VISSER: Do you confirm according to your knowledge and conviction the truth and correctness of the content of that application?

GEN VAN DER MERWE: Yes.

MR VISSER: And do you then request leave to elaborate on that and offer explanations in your evidence here today?

GEN VAN DER MERWE: That is correct.

MR VISSER: You are familiar with the content of bundle 3 from page 87 to 113, the General Background which pertains to policemen during the struggle of the past?

GEN VAN DER MERWE: Yes that is correct.

MR VISSER: Is there any section thereof which you do not concur with or which you do not have knowledge of?

GEN VAN DER MERWE: No, I agree with it.

MR VISSER: And do you then request that those aspects would be incorporated as such within your evidence?

GEN VAN DER MERWE: That is correct.

MR VISSER: You have given evidence frequently before the TRC as well as the various Amnesty Committees?

GEN VAN DER MERWE: That is correct.

MR VISSER: And you implicate under paragraph (b) on page 1 of annexure A where you have given evidence before, is that correct?

GEN VAN DER MERWE: Yes that is correct.

MR VISSER: Do you then also request that that evidence be incorporated with your evidence that you will give here today?

GEN VAN DER MERWE: Yes I do.

MR VISSER: You also rely upon and request that the amnesty decisions in the applications which are referred to on page 2 will be born in mind in the evaluation of your application, is that correct?

GEN VAN DER MERWE: Yes that is correct.

MR VISSER: Now General, you are requesting amnesty for the Lesotho Incident which as we are now aware took place on the 19th to the 20th of December, that would be the night of the 19th to the 20th December 1985 in Maseru?

GEN VAN DER MERWE: Yes that is correct.

MR VISSER: And among others you apply for murder or any minor crime or delict with regard to the death of certain persons and we will deal with that at a later stage?

GEN VAN DER MERWE: Yes that is correct.

MR VISSER: As well as the transgression according to your orders which you gave of international border or customs control regulations and legislation, any offence with regard to the possession, transportation and application of firearms and/or explosives, intentional damage to property, defeating the ends of justice with regard to an offence or any other crime or delict which may have been committed by the applicant which is directly or indirectly connected with the aforementioned incident with regard to the evidence.

&#9;A little later on in Gen van der Merwe's evidence you will ...(intervention)

CHAIRPERSON: What is he actually asking amnesty for? About seven or eight murders?

MR VISSER: Well Chairperson, the application for amnesty is for the names as identified at page 2 or for any other person who may have been injured or killed that he is unaware of because he wasn't there so it is basically for the murder of all the people that were injured or killed during this particular operation during the night of the 19th to the 20th December. May it please you Mr Chairperson.

CHAIRPERSON: And what else?

MR VISSER: Well he's asking, Chairperson, for - flowing from his instructions to carry out this operation, contravention of international border control regulations and/or statutes as applicable, any offence in regard to the possession, the transportation and the use of firearms and/or explosives.

&#9;Chairperson, perhaps to save you writing it down if you would look in Volume 2, page 113, that is a letter written in reply to a query received from the Amnesty Committee and you will see there, it is Volume 2, page 113, Chairperson. It's a letter - has that not been bound into your Volume 2? Is it Volume 2 not Volume 3? My attorney assures me it's Volume 2, Chairperson.

JUDGE KHAMPEPE: We don't have page 113 in Volume 2. 111.

MR VISSER: Chairperson, what we have received is a little bundle of documents from Smith Patel I think which has a cover sheet index volume 2 addendum and may we hand this to you, Chairperson, perhaps. Let me hand this to you, this is what we received from the Evidence Leader I think Chairperson, I think somebody from the TRC and you will see at page 113 a list of the offences and/or delicts for which amnesty is applied for. And it will be the same in regard to Brigadier Schoon, Chairperson. It's part of Volume 2, Chairperson, as you will see, it's an addendum to Volume 2 which we understood to be the official Volume 2. There's another letter also that should be attached. Chairperson, just on that score on the issue of the identities of the persons who were victims there you might have noticed in Exhibit A that there are ten names mentioned there whilst on most of the other records which we've been able to find there is only mention of 9 persons.

CHAIRPERSON: ...(inaudible) explained that Mr Zulu is very much alive.

MR VISSER: This is the reason why I'm mentioning this because we haven't got a Mr Zulu in our list Chairperson but what we do have is that Lulamile Dantile is duplicated now from what we've heard from Mr Berger this morning with Morris Seabelo so that brings it down to 9.

JUDGE KHAMPEPE: And so is Mr Mathee? Stanley Mathee, Vivian Mathee, that should be one person.

MR VISSER: Oh, I wasn't aware, thank you Chairperson.

JUDGE KHAMPEPE: Well I just picked it up when Mr Berger was informing us with regard to who he was appearing for.

MR BERGER: And Glen Darries.

JUDGE KHAMPEPE: Yes.

MR VISSER: Yes. Chairperson, we will explain, Gen van der Merwe will explain in his evidence just now where these names come from and I can tell you, it's not a secret, we got this from the written presentations of the ANC and we got some information from the evidence which was given by Eugene de Kock, Mr Eugene de Kock during his evidence in his criminal trial. But we'll come to that, Chairperson.

&#9;Gen van der Merwe, would you please address Exhibit A and inform the Committee of the background with regard to this application and your knowledge thereof?

GEN VAN DER MERWE: Thank you Chairperson. When I completed my written application for amnesty my recollection was with regard to detail of the incident was quite vague and I depended upon that I would acquire the minutes of the meeting in order to refresh my memory. CIC is abbreviation for Co-ordination and Information Committee or Co-ordinating Intelligence Committee.

&#9;Despite efforts I was not successful in acquiring these minutes and on Thursday, 3rd February 2000 I received a second bundle from the TRC which amongst others contained certain minutes. I shall comment on this later.

&#9;By means of enquiries and research I have tried to refresh my memory as well as possible and my evidence to the best of my knowledge and true and correct with regard to the facts and circumstances of this incident. Amongst others I surmised that not only were two persons killed as I have said in paragraph 9(b) of my amnesty application but indeed 8 or 9 persons were killed. By means of enquiries and from documentation I determined the identities of most if not all of the victims. I confirm that I concur in general with what is written in there and with exception where I shall indicate where I do not concur.

&#9;With regard to Lesotho, Chairperson, I refer the attention of the Honourable Committee to the General Background to Amnesty Applications to the part that deals with revolutionary activities of the ANC/SACP Alliance in and out of Lesotho during the period of time before this incident took place. That is in bundle 3 page 108 to 112.

&#9;I confirm that the information therein concurs with my memory and the knowledge of the Security Branch during the relevant time. In my humble opinion it is relevant to mention that Lesotho from the early '70's was used by the ANC/SACP Alliance as a base for revolutionary activities against the R.S.A. In this regard I can mention that a number of members of the so-called Mombaris Group who had infiltrated the R.S.A. during 1972 had established themselves in Lesotho, amongst others the late Mr Chris Hani, where safe houses were operated and where training both politically and military in nature were provided. 

&#9;According to the May 1997 submission of the ANC to the TRC on page 38 reference is made to the fact that from as early as 1976 - oh, I beg your pardon, that from as early as 1976 Chris Hani and Lambert Moloi were commanders in Lesotho and that they directly reported to the revolutionary council of which Oliver Tambo was the chairperson.

MR VISSER: Chairperson, we're making reference to this document.

GEN VAN DER MERWE: On the same page mention is made of the fact that Lesotho was run by the ANC as an independent area with it's own political, military and intelligence components. What made Lesotho a popular point of departure for attacks against the R.S.A. was the fact that ANC supporters could safely travel by aeroplane to Lesotho from abroad and that they with reasonable safety and comfort could cross the Lesotho R.S.A. border in many places in order to commit acts of terror in the R.S.A. and in order to infiltrate people and weapons into the country. 

&#9;In general, I wish to draw the attention to the fact that in 1985 to 1988 were of the worst four years with regard to violent actions by revolutionaries against the R.S.A. In this regard I refer to the other side of the story of Gen H Stadler, page 183 and 184 as well as page 193. The security situation in the R.S.A. during 1985 was extremely volatile and mass resistance grew daily. The general violent situation in the R.S.A. was such that in June 1985 a partial state of emergency was proclaimed. This state of emergency was later extended to cover the whole R.S.A. and continued up to 1990.

&#9;By 1985 Lesotho developed as one of the most important infiltration routes where people and arms were infiltrated into the R.S.A. for purposes of committing acts of terror.

MR VISSER: General, in paragraph 13 on page 4 you refer to bundle 3 which serves before this Committee pages 77 to 80?

GEN VAN DER MERWE: That is correct, Chairperson.

MR VISSER: Would you please tell the Committee what these documents are?

GEN VAN DER MERWE: Chairperson, this was a situation report which was prepared by the branch national interpretation which formed part of the Secretariat of the State Security Council and the task of this national interpretation branch was to take all information which was collected by the intelligence community, all information and information which was gleaned by other means to evaluate this intelligence and to interpret it for purposes of the State Security Council and for use by this intelligence community. 

MR VISSER: With regard to the status or the reliability of information which is embodied in such a document, what is the degree of reliability of this in your experience?

GEN VAN DER MERWE: Chairperson, the principle was that only information which is reliable to such an extent that the State Security Council can deal upon it would be included in such a document. It was a strict principle in the light that the point of departure was that information would not be supplied to the State Security Council upon which it could not deal with.

CHAIRPERSON: Mr van der Merwe, did you believe that the information which was provided to you was the truth?

GEN VAN DER MERWE: Yes Chairperson, I did. 

CHAIRPERSON: After the incident, briefly after the incident, the international community complained about it, do you recall that?

GEN VAN DER MERWE: Yes Chairperson.

CHAIRPERSON: And South Africa was asked what the incident was about and do you recall what South Africa said?

GEN VAN DER MERWE: I recall Chairperson.

CHAIRPERSON: What was the official position?

GEN VAN DER MERWE: You will recall that the initial allegations from Lesotho's side was that the R.S.A. had acted upon unconfirmed information and the R.S.A. government denied this. The R.S.A. government, not the government as such but I don't think that upon any opportunity they directly with regard to the government referred to this incident but I know that the army and the police denied that they were involved in this incident.

CHAIRPERSON: Very well, what does concern me somewhat is that if you believed you were head of the ...(intervention)

GEN VAN DER MERWE: I was second in command of the Security Branch, Chairperson, but for all practical purposes I acted as commander and you were in a position to answer as to what was asked.

GEN VAN DER MERWE: That is correct Chairperson, but it was a covert operation and as you know the principle of a covert operation is that the action should not be traced back to the government of the day so obviously one would not answer to that in public.

CHAIRPERSON: Yes I understand that, I do not say that that is the right way to do it but I understand it. What I would like to know is if you firmly believed that the information upon which you reacted was the truth and it was correct to act in that manner, why was it not confirmed that South Africa was involved in this action?

GEN VAN DER MERWE: Chairperson, because at that time according to the facts that are available now, we judged that the R.S.A. could not openly become involved in such an action, this would have not been in the interest of the R.S.A. on diplomatic and international level but if we have regard for the progress of peace, the fact that we had acted covertly, had carried the approval of the State Security Council but at that stage it was in the interest of the R.S.A. to act covertly and that is why we acted covertly.

CHAIRPERSON: Please explain then if South Africa was attacked as you had believed, was South Africa not justified in taking certain steps to prevent such action?

GEN VAN DER MERWE: Chairperson, yes. We could have definitely have taken certain steps but you have to keep in mind that in 1982 South Africa took such steps and in 1985 the R.S.A. was in a situation where we had to deal with resistance internally when the pressure internationally had increased and the attitude was aimed at confirming a legal state and to prevent fingers being pointed and it being said that we were a police State and the approach was not that we would act openly. In such an instance the army would have gone in and great loss of life would have ensued.

CHAIRPERSON: But South Africa was a police State, we know that?

GEN VAN DER MERWE: Yes but that was never accepted and purported to by the government, the general image which they projected to the outside was that of a legal State.

CHAIRPERSON: So is that what the government believed at that stage?

GEN VAN DER MERWE: Yes that is what they believed and that is what they wanted to project as well.

CHAIRPERSON: Do I understand you correctly that the then government really believed that the world did not think this was a police State?

GEN VAN DER MERWE: Definitely Chairperson, the idea was indeed to act as such as where we initially had used security measures and limitations, had a grasp of the situation, we wanted to release this so that the image could be projected that the R.S.A. was not a police State but a legal State and in that manner to develop international relations.

CHAIRPERSON: This was in 1985?

GEN VAN DER MERWE: Yes Chairperson.

MR VISSER: We had arrived at paragraph 14 on page 4?

GEN VAN DER MERWE: Chairperson, I am aware of the evidence which Col de Kock had delivered during his criminal trial with regard to this incident and I can confirm that the Security Branch during this time was in possession of similar information specifically regarding attacks of police officers and buildings which was orchestrated from Lesotho. I refer here to bundle 2, pages 84 and 92. 

MR VISSER: Page 84 is the evidence of Col de Kock and page 92 is the Sunday Times article with the caption:

&#9; "Raid victims linked to South African Terror"

and although the caption is not very clear it says:

&#9; "Nine people shot dead in last weeks mystery Maseru raid were highly trained members of the ANC's military wing and have been linked to several other attacks in the R.S.A. it is claimed."

That is what you refer to?

GEN VAN DER MERWE: That is correct, Chairperson.

CHAIRPERSON: When was that?

MR VISSER: It was in December 1995, I just want to make certain of the date. I am told it's the 29th.

CHAIRPERSON: 10 years after?

MR VISSER: 29th December. No, 1985 the same December when this happened. In fact a few days later, 10 days later.

Did I say '95? Oh, I do apologise Chairperson.

GEN VAN DER MERWE: The statistics regarding the violence which was orchestrated from Lesotho would appear amongst others from the written submission of the ANC to the TRC dated May 1997 pages 82 to 85 where the following is shown which according to my opinion was probably related to in operations from Lesotho. 

MR VISSER: Yes General, just to explain what we wished to do here is not to repeat everything that is said by the ANC

to the TRC but only those incidents which could be related to Lesotho, is that correct?

GEN VAN DER MERWE: That is correct, Chairperson.

MR VISSER: And it is not necessary to read all of it now but there are six incidents which you could identify in this regard?

GEN VAN DER MERWE: That is correct, Chairperson.

MR VISSER: Please continue?

GEN VAN DER MERWE: During 1985 I was a brigadier and second-in-command of the Security Branch and Major General Stan Schutte was the Chief of Security. He was informed in November 1985 that he would take charge over the detective branch and he had spent much time there in order to familiarise himself with the workings of the detective branch and consequently I was for all practical purposes the Chief of Security and I dealt with security issues independently. &#9;I officially took over command of the Security Branch on the 1st January 1986. Actions in neighbouring States, I never had any personal knowledge of the existence of any written policy for the Security Branch which was applicable for actions against terrorists in the neighbouring States. The general policy of the South African Government was that terrorism should be combated and terrorists should be fought wherever they were. Abroad, I also did not have any knowledge with regard to guidelines for cross-border operations which was laid down by the State Security Council.

CHAIRPERSON: Mr van der Merwe, let us not use the word "terrorists" any more. Some people would ask who were the terrorists and that might upset some people. Please use the word activist.

GEN VAN DER MERWE: I will refer to MK members if you understand.

CHAIRPERSON: I would just like to prevent some people taking offence to this.

GEN VAN DER MERWE: Very well Chairperson, I shall make mention of MK members but during that time they were referred to as terrorists but in future I shall refer to MK members.

&#9;And along with that it was accepted that ...(intervention)

MR VISSER: I beg your pardon, General, I would like to return to the previous paragraph. You say you were never aware of any guidelines and you say that guidelines might have existed for the South African Defence Force but there were no guidelines prescribed to the SAP?

GEN VAN DER MERWE: That is correct.

MR VISSER: The study of these documents which was made available to us by the TRC, it would appear that there were guidelines which were laid down and there were guidelines with regard to the South African Defence Force?

GEN VAN DER MERWE: That is correct, Chairperson.

MR VISSER: You say at that stage you were not aware of those?

GEN VAN DER MERWE: Not at all.

MR VISSER: When did you become aware of the existence of guidelines for this Defence Force?

GEN VAN DER MERWE: Only now during the preparation of these applications and I must say that I heard from security forces in Cape Town which dealt with the actions of the security forces. No one ever confronted me with it, it was never relevant at any other stage and it was also accepted that preventative measures against enemy bases could be executed across the border in accordance with international and legal principles as it was laid down by the government. In this regard I refer to certain statements by the then Minister of Defence, Gen Magnus Malan. 28 May 1985 Hansard, column 6378 to 6379:

&#9;"It is the R.S.A. policy to put it's case to 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."

29 May 1985 in parliament:

&#9;"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, 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."

10 December 1985 during his speech:

&#9;"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."

4 February 1986, Hansard, column 162:

&#9;"The security forces will hammer them wherever they find them. What I'm 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 ...(indistinct) or those terrorists, fellow travellers and those who help them."

In this regard I also refer to the minutes of the exceptional SSC meeting of 20 December 1985, that would be bundle 2, Chairperson, page 109.

MR VISSER: And perhaps, Chairperson, I could present it to you. There it is noted, at the top of the page Chairperson, starts with a heading: "The supply of terrorists from neighbouring States" and it says the chairperson who is the chairperson of the SSC. Volume 2, page 109. At the top:

&#9;"The chairperson requests that the South African Police, the South African Defence Force and National Intelligence Services will collectively investigate the supply of terrorists from neighbouring States. A target presentation to the Secretariat of the State Security Council (Branch - National Interpretation) must be executed"

and then the words:

&#9;"If any such incidents such as the land mine incidents drastic steps including the use of cross-border and military power must be used."

This was the policy of the government, no more than that.

&#9;Would you then proceed please, General?

GEN VAN DER MERWE: The South African Police had the obligation to maintain internal security and to combat crime. Furthermore the Security Branch was at the forefront of the struggle against the revolutionary onslaught. The security forces with the Security Branch of the SAP at the helm attempted everything to combat and prevent the violent revolutionary onslaught against the State's dispensation due to the threat which MK bases in neighbouring States or MK members who by means of neighbouring States were under way to the R.S.A. for internal security, there was a practice which developed where members of the security forces, particularly those of special forces and of the Defence Force and the Security Branch of the SAP from time to time would act in a covert manner against MK members in neighbouring States.

&#9;These MK members would then be comprehensive because it may have been members from other groups but I'm simply using the term in terms of the terminology which may be damaging. MR VISSER: That could also include ANC cooperators and collaborators?

GEN VAN DER MERWE: Yes but they would not have been regarded as terrorists, they didn't have to be ANC only, they could have been PAC or other groups as well as long as they had been trained. I understand that we all understand this term now.

&#9;Events leading to the incident, during October/November 1985 a written security report from the Security Branch Ladybrand was presented to me. That would have arrived at my desk via the appropriate desk at security head office.

&#9;This information was sent through to the security structures. That would then include the branch of National Interpretation. According to the minutes of a meeting of the 3 December 1985, bundle 2, page 99 to 108, Mr Neil van Heerden of Foreign Affairs reported that during October 1985 30 members of uMkhonto weSizwe had arrived in Lesotho which then brought the number of ANC defectees in Lesotho to approximately 80. To the best of my recollection this information emanated from the Ladybrand report. In terms of among others the Ladybrand report, the Security Branch requested the Department of Foreign Affairs to warn Lesotho and to inform Lesotho regarding the aforementioned circumstances. It was then also requested that the Lesotho Government be warned that if it did not combat this threat the R.S.A. would have to take it's own steps. This matter was discussed during this meeting on 3 December 1985 according to the minutes.

CHAIRPERSON: Chairperson, perhaps this is important enough to refer to the particular passage, it's at folio 103 to 104 of Volume 2 and the actual wording of that, Chairperson, you will find in paragraph 3.2.1 where it is stated:

&#9;"Mr van Heerden states that according to information which was gathered on the 29th November 1985 of the South African Security Police, on the 30th October thirty ANC terrorists arrived in Lesotho and that at this stage there were 80 ANC terrorists in Lesotho who were on standby to act against the R.S.A. The SAP requested ..."

Which SAP was this particularly?

GEN VAN DER MERWE: It was the Security Branch and me in particular.

MR VISSER:&#9;"That Foreign Affairs would inform Lesotho about this as a matter of urgency and inform them that if they did not take any action the R.S.A. would take steps according to it's better judgement."

Now Foreign Affairs would have put it to the Lesotho Government that the R.S.A. would act?

GEN VAN DER MERWE: That is correct.

MR VISSER: What would the CIC have understood if you told them that the R.S.A. would deal with this according to their best judgement?

GEN VAN DER MERWE: Chairperson, I think that the intention with that was very clear, that violence would be used by the R.S.A. in order to deal with this threat.

MR VISSER: Specifically by whom?

GEN VAN DER MERWE: Specifically by the Police.

MR VISSER: Because it was you who requested for this to be sent through?

GEN VAN DER MERWE: That is correct and we are also the ones who made this point.

MR VISSER: So on the 3 December when this CIC meeting took place the CIC knew that the police was considering cross-border action?

GEN VAN DER MERWE: It would definitely have been discussed during that CIC meeting, I cannot say that such a decision would have been taken at that stage but it was definitely considered at that stage, most definitely.

MR VISSER: And then the paragraph continues, General, where Foreign Affairs apparently asks CIC for an opinion regarding the partial or complete closure of the border between the R.S.A. and Lesotho?

GEN VAN DER MERWE: That is correct.

MR VISSER: And the CIC then decided that it did not have the authority to make any statements about the possible closure of such a border?

GEN VAN DER MERWE: That is correct.

MR VISSER: And then it requested that the branch of National Interpretation would prepare a document before the end of December 1985 regarding Lesotho, the flow of arms to Lesotho as well as the political climate within Lesotho?

GEN VAN DER MERWE: That is correct.

MR VISSER: That is at page 104, Chairperson.

&#9;And then finally CIC states in paragraph 3.2.3 of the minutes that:

&#9;"The CIC is in agreement that whatever action is planned against Lesotho it be proceeded by a well-planned propaganda campaign"?

GEN VAN DER MERWE: That is correct.

MR VISSER: Very well, that would have been on the 3rd December?

GEN VAN DER MERWE: That is correct.

MR VISSER: Please continue?

GEN VAN DER MERWE: At that stage the Security Branch was thoroughly aware and the Ladybrand report most probably referred to the fact that several ANC safe houses in Maseru were operated by supporters of the ANC and members and sympathisers of MK and that the houses were used to accommodate MK members in transit as well as to provide training in the use of weapons and to conceal weaponry.

&#9;Chairperson, with regard to diplomatic tension, due to the presence of MK members in Lesotho and the level of violence which was at the order of the day in the R.S.A. among others, serious land mine explosions in the Northern Transvaal. During the second half of 1985 a serious diplomatic confrontation developed between the R.S.A. government and the government of Lesotho. The R.S.A. accused Lesotho that it had allowed MK members to operate from within it's territory and requested that ANC, MK bases be closed. The Lesotho Government omitted to act with the excuse that there was not sufficient information to substantiate these allegations.

&#9;From a copy of the minutes of the SSC, bundle 2, page 109, it appears that the then Minister of Foreign Affairs on the 13 December 1985 warned the Lesotho Government regarding the presence of ANC terrorists in Lesotho. In a newspaper article of the 22 December 1985, bundle 2, page 87, reference is made to a telex which was sent by the South African Government to Lehboa Jonathan who was the first Prime Minister of Lesotho during which mention is made of the information which had come to light that a group of MK members were planning attacks in the R.S.A. during the festive season from Lesotho.

MR VISSER: Now the point is this, it may be the same note to which Mr Pik Botha has referred or it could be a second?

GEN VAN DER MERWE: That is correct.

MR VISSER: You cannot confirm this?

GEN VAN DER MERWE: No, I'm not completely informed about this.

MR VISSER: Please continue?

GEN VAN DER MERWE: As would also appear from the aforementioned SSC minutes, the SSC noted that diplomatic and violent measures against Lesotho had been approved. Indeed the diplomatic actions had already been taken earlier.

MR VISSER: And we must not forget that this SSC minute to which you refer that meeting was an exceptional meeting of the SSC and it took place on the morning after the night of the action by the police in Lesotho against these persons?

GEN VAN DER MERWE: That is correct.

MR VISSER: Please continue?

GEN VAN DER MERWE: After the CIC meeting of 3 December 1985 a serious change came about because security information which was received from Ladybrand indicated that a group of MK members, this is the group under the leadership of one Leon Lionel Meyer planned to execute attacks in the R.S.A. very soon from Lesotho with AK-47 guns and Russian handgrenades and that they were on the point of entering the R.S.A. This information is now partially substantiated by one Sandy Jacobsen, bundle 2, page 59.

MR VISSER: Mr Chairperson, if I may interrupt to read it to you? At page 59 of Volume 2 you will find a statement, a written statement by Ms Sandy Jacobsen and in the first paragraph, the last sentence reads:

&#9;"The day before the raid "Joe" (Leon Meyer) Trevor, that is Vivian and Themba were due to go into South Africa that night and the scenario was worked out that when Jackie, that is Ms Quin, said goodbye to Joe, she would fetch me and would go and sleep in a flat that I had organised."

And then further on, Chairperson - no, well we'll come to that later.

GEN VAN DER MERWE: As well as Nico Adam Botha, bundle 2, page 6.

MR VISSER: That's paragraph 26 at page 6, Chairperson, and perhaps I should just read that as well. It says:

&#9;"Mr Nglovu, an ANC diplomat in Lesotho Maseru, related the sequence of events that led to the massacre. Mr Nglovu said that my brother.."

this is with reference,

&#9;"the brother-in-law of Mr Meyer, Mr Nglovu said that my brother-in-law and other ANC cadres were preparing to carry a mission in South Africa when they were killed."

GEN VAN DER MERWE: Chairperson, Mr Nglovu was the chief representative of the ANC in Maseru. The informer who conveyed the information provided two Russian handgrenades which he had removed from weapon stockpiles in Lesotho in substantiation of his information regarding this. The informer also gave the names of the relevant MK members but he could not provide any further information regarding the precise targets which the group intended to attack out of fear that he may create suspicion with his enquiries. Today I can no longer recall independently who the members of the group were and I cannot recall with surety who precisely died during the operation. I remember Leon Meyer or alias Joe as well as Ms Jacqueline Quin. Indeed 8 to 9 persons died according to reports during the operation. However, I can state that the targets were only MK members. However, one can never with such an operation exclude the possibility that collaborators or supporters or even innocent persons could be hit.

&#9;I was informed that the ANC itself mentions the following names in it's August 1996 submission to the TRC on pages 62 and 93. Chairperson, these are the names of Jackie Quin, Joyce Modemeng, Nomkhosi Mini, Leon Meyer, Stanley Mathee, Vivian Mathee, Glen Darries, Lulamile Dantile hereafter referred to as the Meyer Group. Furthermore, Col de Kock refers in his criminal trial, bundle 2, page 84, to where the rightist, Steven Ellis and Chebo Sheshaba in their work "Comrades against Apartheid" refer to the divisional commander Morris Seabelo and the chief of staff of the ANC, Joseph Mayoli as two further persons who were killed during the operation. Because I'm not capable of not saying precisely who was killed I request amnesty for any persons who were then killed during the operation.

MR VISSER: Chairperson, if I may interrupt the witness? In the TRC report that has been published in Volume 2, chapter 2, dealing with the States outside South Africa between 1960 and 1990, this is at page 109, the TRC in it's first report also referred to names. I'm not going to burden you with reading all of them, Chairperson, but you will find some names there and obviously here is where Midian Zulu was mentioned to which Mr Berger referred and other names and there's also a duplication but we know now what the situation is so I will leave it there. Please proceed?

GEN VAN DER MERWE: Chairperson, most members of the Meyer Group received military training abroad. This information is currently confirmed from newspaper reports and evidence which is contained in bundle 2 on page 2 paragraph 8, page 3, page 4, page 55, page 74 as well as page 92. According to the standards and ideas of that time along with the legislation of that time these persons were consequently regarded as terrorists by the security community.

MR VISSER: Very well and that is why you have referred to them as such?

GEN VAN DER MERWE: That is correct.

MR VISSER: Without your attempt to prejudice or insult anybody?

GEN VAN DER MERWE: That is correct.

MR VISSER: Very well?

GEN VAN DER MERWE: We proceed to this CIC meeting. This new information made preventative action rather urgent in order to prevent terrorism in the R.S.A. I was also of the opinion that a successful operation against those involved would generally contribute to a decrease in political violence within the R.S.A. As it appeared the operation had precisely this effect. Members and supporters of the ANC were deported shortly after the operation.

&#9;I refer to bundle 2, page 60 to 61 as well as page 94. And the ANC was dealt a sensitive blow in Lesotho. Consequently I gave Brigadier Schoon the order to conduct the necessary investigation in order to determine whether or not the Security Branch could possess the capacity to act against the aforementioned group of terrorists in Lesotho and to make an urgent submission to me. I have taken note of the content of the amnesty application of Brigadier Schoon, bundle 1, page 141, as well as the evidence of Col de Kock in his criminal trial, bundle 2, page 78, that the report of Col de Kock was written in red ink and that the report was conveyed to me while I was underway to attend a CIC meeting. As far as I can determine it must have been a CIC meeting which took place after the meeting of the 3 December 1985, possibly on the 17 December 1985 seeing as the CIC always met fortnightly.

MR VISSER: May I interrupt you please, General? If we refer back to the minutes of the CIC meeting which can be found in Volume 2 from page 99 onwards, we see at the end of those minutes that - at page 108, Chairperson, of Volume 2 - that reference is made to the following meeting of the CIC which was scheduled to take place on the 4 February 1986. So from that one has to infer that there was no scheduled meeting for the 17 December 1985. 17 December was two weeks after the 3 December when normally a meeting would have taken place because according to Dr Barnard and according to you the CIC met fortnightly?

GEN VAN DER MERWE: That is correct.

MR VISSER: Now you say here that it was possibly on the 17 December, are you referring to a meeting. You have already stated that you cannot recall this very clearly and that you cannot recall whether such a meeting really took place, you have stated this in your application. What is the possibility which took place when this information regarding the urgency was then presented to you which could have taken place after the 3 December pertaining to CIC?

GEN VAN DER MERWE: Firstly I must state that during the CIC meeting of the 3 December it was clear that the matter would be dealt with before or on the 16 December and the branch of National Interpretation received an order to present or prepare a report which dealt with the presence of MK members, the flow of weapons as well as the political climate in Lesotho and that a thorough analysis of these factors would be presented in the report so there was a very clear indication that further discussions regarding these points would indeed take place.

&#9;Secondly, it is also so that in the light among others of the question which was put regarding covert action I would not have been able to make such a decision independently without consultation with other members of the security community regarding what would have been the best steps to take regarding the circumstances and if one takes all of these factors into consideration, the possibility that such a meeting could have taken place on the 17 December 1985. The possibility for this is great. Unfortunately I cannot recall much about this. 

&#9;I do not have an independent recollection of these events when I refer to these incidents I refer to the CIC meeting which I referred or of the meeting, that is what I tried to express in my amnesty application. Bundle 1, page 103 where I said:

&#9;"I cannot remember that if or at what stage the matter was dealt with by the CIC."

I do recall that I received a written submission which was written in red ink. I also recall that the extent of it was that the Security Branch had the necessary means to launch an operation against targets in Lesotho. I am convinced that the evidence of Brigadier Schoon and Col de Kock is indeed correct because it concurs with the probabilities of the incident. At that stage I was only second-in-command of the Security Branch and a brigadier which, who could not like act otherwise without clearing this with the other members of CIC. I definitely would have dealt with the matter in concurrence with the CIC in order to ensure that there was no conflict of interest or conflict between the actions by the Security Branch and the South African Defence Force. 

&#9;The incident regarding the presence of MK members in Lesotho had already been tabled at a previous CIC meeting. I can then concur with this evidence of Brigadier Schoon and Col de Kock with regard to CIC. It is important to state that it did not have any commanding capacities. Insofar in this regard as I use the word "approved", bundle 1, page 104, I would say that in my application I might have expressed myself incorrectly by using the word "approved" and I intended to say that there had been no opposition from CIC.

MR VISSER: Yes, paragraph 11(a) of ...(intervention)

ADV BOSMAN: I beg your pardon, Mr Visser, may I just enter here?

&#9;General, you say that CIC had no commanding capacities but we know now that an instruction was given from your evidence, so who had the capacity for giving this command?

GEN VAN DER MERWE: Chairperson, the instruction in this regard, I accept responsibility and accountability for that.

ADV BOSMAN: You say you would not have acted because you were second-in-command? Do I understand you correctly, you say you would not have acted because you were only second-in-command, but now you are saying that CIC had no commanding capacity and who had this commanding capacity. Did you hear my question?

GEN VAN DER MERWE: I would like to state this clearly, the reason why I concurred with CIC was indeed because at that stage I was a brigadier and would not be able to depend on my own judgement but with my peers in the other departments I had to liaise with them in order to determine whether they accorded with the idea that the security community could act against MK members and with that I mean that I would not have acted without consulting. I did not mean that I wouldn't have done so without an instruction. My intention with this evidence is in order to tell you that I would not have acted without any consultation, I would have had to consult and liaise with other members of CIC and what their opinion was about this incident. 

ADV BOSMAN: So are you saying that you used the CIC in consultation and then you gave the instruction thereupon?

GEN VAN DER MERWE: Yes.

CHAIRPERSON: Did it matter whether they agreed with you or not?

GEN VAN DER MERWE: Yes definitely, Chairperson, because it would have destroyed me. If I acted as such I would have been in conflict with the State Security Council or the other members of the security community and the intelligence community, that would have been very stupid.

CHAIRPERSON: Then the question is who actually had the right, let us state it as a right, to take such a decision.

GEN VAN DER MERWE: Chairperson, with regard to covert actions and I would like to reiterate here as I understood it, covert indicated that that action could not be traced back to the government. This also necessarily means that that action could not depend on international law for protection so insofar it has regard for competency, competency in order to give such an instruction, I was in the worst position because one could not expect that the Minister or anyone else except for where he would do so openly in accordance with some or other statute because he had less dependability, I could depend upon the police, upon internal security, where there was a threat and I could combat that threat and where the law did not make a provision for any such actions I would make my own decisions in order to find out what could be done.

JUDGE KHAMPEPE: If I may interpose, Mr Visser, before we lose this point?

&#9;If, Mr van der Merwe, you requested Mr Schoon to investigate if the police had the necessary capacity to act against activists in Lesotho, if you gave such a request, did you give such a request after you had consulted the CIC members or was that request given before such consultation had been made?

GEN VAN DER MERWE: Chairperson, no, it was before. The idea was in order to make that information available in consultation with members of CIC so that I could answer if any questions were asked with regard to our capacity.

JUDGE KHAMPEPE: If your memory can serve you probably well in regard to this issue, do you know how soon after you had requested such an investigation to be conducted, did you then probably have such a consultation with such CIC members who approximate and say to us within a few hours after requesting such an investigation, a few days or a few weeks?

GEN VAN DER MERWE: Chairperson, here I have to depend on the evidence of Brigadier Schoon and Col de Kock who had said that I requested the information reasonably briefly before I attended the CIC meeting. I think the evidence states that it was a day or so before and I recall that they filled in the information in red ink, they could not fill it in a usual report form and the next morning I took that form with me.

JUDGE KHAMPEPE: Thank you Mr Visser.

MR VISSER: Thank you Chairperson. General, I wish to return, in answer to the question of the Chairperson you have said that with regard to covert actions there was no permission to be obtained from a Minister and with regard to a covert operation you were saying that you would not find it in the minutes of CIC or the SSC, it is only in regard to where actions were done overtly as in Matola, in the Matola Raid where aeroplanes were sent, where the Government would accept responsibility, where it could base it upon international law or as it had thought it could account with regard to international law?

GEN VAN DER MERWE: That is correct, Chairperson. I cannot judge as to where the action was covert, where the intention was that that action could not be traced back to the Government itself by means of whatever member of the Government could give approval for such an action because the intention was clear that the Government would distance itself from it publicly, it would deny it and secondly, to use whatever legal principle would necessarily mean that without the State's authority it did not carry any weight so with regard to covert actions, these were intended to do it in such a manner that it could not be traced back to the Government and that nowhere a trace could be left which could connect the Government to it.

MR VISSER: If we refer to this particular type of covert actions where the border was crossed and people were killed would that ever be justifiable in legal terms?

GEN VAN DER MERWE: No Chairperson, definitely not, despite the fact that as the Chairperson has pointed out, if we believed that our intelligence was correct then one could act accordingly in accordance with international law but where we were we judged in those circumstances that covert action was in the best interest of the Government of the day.

MR VISSER: Very well then and that is why you request amnesty?

GEN VAN DER MERWE: That is correct, Chairperson.

MR VISSER: Would you please continue with paragraph 47?

GEN VAN DER MERWE: It is therefore not my evidence that CIC had approved the operation in a sense of operational authorization. CIC could have reacted by conveying information which was available to CIC and/or inform me about activities of other components of security forces in the area and/or warn me of any incident which might endanger the operation or might render it not viable.

MR VISSER: Another question then, you've already explained that during this time period there was a serious diplomatic strain between Lesotho and the R.S.A.?

GEN VAN DER MERWE: That is correct.

MR VISSER: Did you have knowledge of all the aspects of such diplomatic strains so that you could determine whether your actions would not further jeopardise diplomatic relations?

GEN VAN DER MERWE: No I would have to liaise and consult with other members.

MR VISSER: And who would this be?

GEN VAN DER MERWE: It would have been the Department of Foreign Affairs.

MR VISSER: And they were represented at CIC?

GEN VAN DER MERWE: That is correct, Chairperson.

MR VISSER: Please continue?

GEN VAN DER MERWE: CIC usually functioned under chairmanship of Dr Neil Barnard. Consequently they were also representatives of national intelligence, military intelligence, of the South African Defence Force, Security Branch of the South African Police and Foreign Affairs. Representatives were not always the same persons as already explained. I cannot recall the circumstances of this particular meeting and consequently I cannot give evidence as to who exactly were at this meeting or what was discussed there.

MR VISSER: And this was depending on that there was a meeting and whether it was just a discussion with other members?

GEN VAN DER MERWE: It could be the one or the other Chairperson. Brigadier Schoon's evidence is furthermore that after the CIC meeting I instructed him to continue with the operation and this would necessarily mean that this particular CIC meeting or whatever the form or nature of it was would not object to this operation. Because of the fact that the Security Branch would act covertly it was decided that whatever was discussed at CIC meetings would not be taken up in detail. In the minutes I would state that at that stage I did not sit on the State Security Branch Council and that I had no previous knowledge that the decisions which would appear form the SSC minutes would have been taken.

MR VISSER: Very well then?

GEN VAN DER MERWE: And I do accept that after the action in Lesotho members of the National Intelligence Service as well as the Defence Force would have been informed on several levels that the action had been undertaken by the Security Branch. With the different levels I refer hereto on grassroots level where members liaised daily with each other as well as with regard to liaison at head office where members of National Intelligence Service and the Defence Force and the Security Branch regularly met with each other. Neither the State Security Council, neither the Defence Force and neither CIC, Co-ordinating Intelligence Committee, ever objected against this action in Lesotho and neither did they question it.

MR VISSER: Chairperson, perhaps it is relevant to refer you at this junction to the subsequent minutes of the State Security Council, not in detail but simply to draw your attention to the fact that not a word was noted about this Lesotho incident. Perhaps I don't have to refer you to it now but I just want to draw your attention to that fact. Neither in the next meeting of the State Security Council was there any mention made of this raid, nor in a cabinet meeting which you'll find in bundle 3 which came later was there any mention whatever made, in fact it is safe to say that nowhere will you find any entry made of the Lesotho Raid in any official document after 20 December 1985.

JUDGE KHAMPEPE: After the 19 December isn't it Mr Visser?

MR VISSER: I beg your pardon.

JUDGE KHAMPEPE: After the 19 December not the 20th?

MR VISSER: The 20th was the meeting of the extraordinary meeting of the State Security Council where Lesotho was specifically referred to.

JUDGE KHAMPEPE: Can't one draw an inference that no such mention was made of the Lesotho Raid on the 20th December because the State Security Council knew nothing about this incident?

MR VISSER: Chairperson, fortunately it will be my submission that the merits of the applications for amnesty does not depend on us proving or disproving that fact, that if you ask me, Chairperson, with great respect, no person at that State Security Council meeting on the 20 December could have pleaded that he didn't know about the raid of the previous evening and certainly - well perhaps we should ask the witness that?

GEN VAN DER MERWE: Chairperson, it's an important aspect because on has to keep in mind that that operation took place just after midnight and the following morning it was already by means of radio reports but that afternoon it was headline news, not only on radio but in most newspapers as well who had the necessary links with Lesotho and you will notice that the State Security Council commenced at 11 a.m. and with regard to Lesotho a press conference was arranged which would be submitted and would be approved just after lunch.

&#9;What is so obvious is that you have to recall that the threat was Lesotho and at that stage the situation report from the branch National Interpretation would mention that MK members in Lesotho are readied in order to enter South Africa over the festive season and commit acts of terror and the State Security Council would have known at that stage or knew at that stage that a serious threat faced the R.S.A. and if one would look at decisions that were taken, that firstly diplomatic negotiations with Lesotho would have to be started again in the light of the fact that Mr Pik Botha had already reported at that meeting and on the 13 December he sent a diplomatic note to Lesotho upon which a nonsensical answer was returned. Secondly, the branch National Interpretation in their report to the SSC say that Lesotho, the Lesotho Government are aware of the activities of MK members and they indicate this, it's a clear indication that further diplomatic negotiations with Lesotho would be futile and thereafter border patrols were stepped up and border control was stepped up. Thereafter the closing of the border and thereafter the repatriation of workers and thereafter violence and then one realises that if the SSC or members of the SSC did not know at that stage that the threat was there they would have never taken such an irresponsible decision in the light of the threat that faced us and that is why I say that members of the State Security Branch at that date were aware that action was taken in Lesotho and that the threat that existed had been warded off.

&#9;I took note that the applicant, Nortje, bundle 1, page 19, alleged that special forces of the South African Defence Force were busy planning for the same operation. Confirmation for this is found in the TRC's written report, Volume 2, page 109, paragraph 256. I was definitely not informed before the 19 December 1985 about such planning. If I was informed I would have reconsidered this particular operation. 

MR VISSER: As you have already said that is why it was important for you to consult with CIC?

GEN VAN DER MERWE: Yes that is correct, I also took note that Col de Kock mentions in his criminal trial, in his evidence, bundle 2, page 79, that his instruction was to act in a co-ordinating capacity because there were already members of the CCB in order to carry out this operation. It might be that Col de Kock had referred to special forces of the defence force upon which I should have commented. If he does refer to the CCB, the Civil Co-operation Bureau, then I have to say that during 1985 I was not aware of the existence thereof.

MR VISSER: Chairperson, we are close but I'm afraid not close enough to be of any real assistance to myself. May I ask whether in order to accommodate my wife to get overseas, you will allow me to break for the afternoon, Chairperson? What time?

CHAIRPERSON: Half past nine.

MR VISSER: Half past nine suits us, thank you Chairperson.

COMMITTEE ADJOURNS

