Special Hearings — Armed Forces Hearings — 1997-10-09

CHAIRPERSON: Thank you Mr Visser.  I don't want us to engage in a discussion because we have a very full programme, but I must at least make a couple of comments.
 Firstly, it is true that the questions often are, somebody termed it, robust.  They are direct because we are looking for the truth.  How can you not be direct when you are seeking truth?  
 And let me say that this is a two-way street.  If witnesses or people before us giving evidence, and I am not talking about today because it hasn't happened, but I am saying that we have had experience where people have been evasive, that people have given half answers on very obvious facts and you will appreciate that after an hour or two of that kind of evasiveness sometimes the questions become a little more than robust, and I think that in a two-way street we would ask that those responding would do it as fully as is humanly possible so that we don't waste time and that we don't have to become adversarial.  That's what we don't want to happen and we will do everything we can to ensure that that doesn't take place.
 My second point is that in many respects we think, and we may be wrong, that we in subpoenaing people who were, if you like, in the front line of the conflict, the operatives, the generals, the people who were waging that conflict on all sides, we are actually doing them a service in enabling them to state the situation as they saw it, as they experienced it and particularly in terms of ultimate accountability.  People don't invent things normally.  They don't suddenly decide in a tightly organised security force to do things on their own.  There is usually a reason, there is usually an order and we are trying to establish a chain of command.
 Because it is our view so far, it is not our finding, it is our view so far, that some people are being left to take the blame and others are walking away.  And we don't want to attribute blame to anyone.  We want people to accept responsibility for what has happened.  If there are people who have created a climate or given an indication that this is what should happen and then those become the fall guys I would have thought that we were actually doing some people a service to tell us how they saw it, and where they were coming from, and we don't want to point a finger at anyone, we just want to say - what really happened?  What were the perceptions, what were the motivations, why were you doing what you were doing?  And we have asked exactly the same questions to everybody who has participated in the conflict and I assure you that we will do that.
 Finally, the whole vexed question of extradition is a very real one, and I don't want to in any way minimise that problem.  The problem is that assurances can be given but there are certain legal instruments over which we have no control as a Commission, and I just think I will leave it at that.  
 I think that Mr Goosen has heard what you have said.  We have heard what you have said and we will, I think, conduct this inquiry in a best possible way as to serve the purposes of everybody concerned.  
 Without any further ado I think we must proceed and I would welcome especially General van der Merwe and ask him if he has any opening word - yes you would like to speak on his behalf, thank you.  Mr Levin.

MR LEVIN: Mr Chairman I speak on behalf of Major Williamson and in order to be as swift as possible I will get to the point very briefly, and that is I am ad idem with my learned friend.  There is a very real need for mutual cooperation, but there is a problem insofar as I perceive it, insofar as my client perceives it, namely the question of acts outside of the borders of the Republic.  And to that extent I am not able, professionally, to advise my client to give any evidence in regard to extraterritorial matters which may ultimately affect him.  There is machinery which is available to this Commission to hear those matters in camera and I would assume to also ensure confidentiality of the record in regard to those issues.
 I have similarly been in correspondence with various members of the Truth and Reconciliation Commission since as far back as the 14th of November 1996 when I articulated, to the best of my ability, the problem as far as my client was concerned and save for advising you that I reserve the rights of my client at any stage should questions be asked of him which touch on extra-territorial matters, to then argue the matter fully behind closed doors, as I understand the position would be, in order that my client would be protected because it really is something that one must look at from a professional point of view in advising a client.  
 And whilst my client is willing and able and I think you've seen by his performance to date and by the reams of documentation he has presented to you to cooperate fully he must do so having regard to his future life and his position and that will be the thrust of my argument should it become necessary.  I do not want to maintain a silence at this stage and have it said of me at a later stage, well this is something of an afterthought Mr Levin, why did you not raise it in inception?  And therefore I make my client's position clear by those few brief statements.  Thank you for bearing with me.

CHAIRPERSON: Thank you Mr Levin.  Mr Goosen.

MR GOOSEN: Thank you very much Mr Chairperson.  Mr Chairperson it's, as we indicated in the hearing yesterday, it's not my intention to ask questions about the specific facts in relation to cross-border operations.  The thrust of the questions will be directed at the general authorisation and the process in terms of which such operations may have been launched.  But it's certainly not my intention, I take heed of what Mr Levin has said, and will clearly not be directing questions at Major Williamson, or at any of the other witnesses in relation to the specific facts in regard to a particular operation cross-border.

CHAIRPERSON: It remains for me then just to simply add that we, through Mr Ntsebeza in particular, and other members of the Commission, we have given the assurance that some of these matters can be and should be heard in camera and we would adhere to that.  Let's take it as we go and if there's an objection that needs to be raised you will do so, we will hear you and we will proceed.

UNKNOWN: Perhaps Mr Chairman I neglected to mention one further aspect, perhaps it's not even necessary to mention it because I did perceive yesterday a sensitivity not to ask any of the witnesses about their applications for amnesty.  We do really appreciate that Mr Chairman because you can imagine the invidious situation in which an applicant whose amnesty application still has to be heard finds himself if he finds he has to answer questions now about which he will have to give evidence later.  We just want to express our appreciation that that has been done.
 We present General van der Merwe to you Mr Chairman.

CHAIRPERSON: Thank you.  Again welcome.

JOHANNES FELDE VAN DER MERWE: Thank you Chairperson.

CHAIRPERSON: Mr Ntsebeza will swear you in now and obviously people must use whatever language is comfortable for them.  There are translations for those who need it.

MR NTSEBEZA: I would have loved to administer the oath in Afrikaans but I am not so sure that I will be able to go through with it ...(intervention)

JOHANNES FELDE VAN DER MERWE: You are most welcome to do so.

MR NTSEBEZA: ... in very good Afrikaans.

JOHANNES FELDE VAN DER MERWE: (sworn states)

CHAIRPERSON: Thank you very much you may proceed.

JOHANNES FELDE VAN DER MERWE: Mr Chairman I am a retired general and a former Commissioner of Police.  I will speak as slowly as possible.
 As mentioned on three occasions ...(intervention)

CHAIRPERSON: Sorry to worry you straightaway but do you have a copy of that statement or not?

JOHANNES FELDE VAN DER MERWE: Unfortunately not.