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

JOHANNES FELDE VAN DER MERWE: Mr Chairman what do you exactly mean, was that deliberately done that those words were deliberately used in that way to create that perception on groundroot level?  That there was a deliberate attempt by the State Security Council to in that way create the perception that those people had to be killed, is that what you mean?

MR GOOSEN: Well you have indicated General that in the context it would be reasonable, given what was being said at the time and given the use of those words, that it would be reasonable for people to interpret them to mean "elimineer" means kill.
 But you've also indicated that operatives, security police members, lower order security police members, members of the South African defence force, were enjoined in fact to take harsh action, that by utilising those words the State Security Council members were creating for themselves a situation in which they could deny that they had instructed the elimination, meaning kill, of any particular person.

JOHANNES FELDE VAN DER MERWE: Mr Chairman, no, I was never involved in such a way in these discussions, I have no facts on which I can base a viewpoint to say that it had been deliberately done to create such a perception so that a message could be conveyed subtly, that people, the lower order operatives, could kill people.  These are aspects which can be determined if the people were involved in these discussions in the State Security Council could be asked.  I have no facts.  I have no grounds on which I can base such a statement or point of view that those words were used to create a perception under lower operatives that they would accept that people had to be killed.

MR GOOSEN: And General in the circumstances why do you think that words of that nature would have been used, if for example intention was in the particular context "neutraliseer" should mean that people should be detained, why not say that people should be detained?  Why utilise language that is capable of an interpretation other than that which is intended by the people that use them in the first place?

JOHANNES FELDE VAN DER MERWE: Mr Chairman like you and Mr Goosen I can only guess about that.  I have no facts to my disposal.  I agree it would certainly have been better, and I think at a certain stage a committee of inquiry said where the word "elimination" was used it was an unfortunate choice of word, but to go as far to say that was done deliberately I do not have any grounds to substantiate that.

CHAIRPERSON: Mr Ntsebeza, if I can just.....

MR GOOSEN: Can I just follow-up on one aspect?

CHAIRPERSON: Go ahead Mr Goosen.

MR GOOSEN: Thank you very much Mr Chairperson.  General you've indicated that it's an unfortunate use of language, would you regard the use of such language, from one of the highest organs of political authority in the country, as an irresponsible action in the circumstances?

JOHANNES FELDE VAN DER MERWE: Once again you must keep in mind that we were in a situation of war.  Even the members of the State Security Council were aware of the desperate situation prevailing.  Against that background I believe that from their side also there was this need for more strong or harsh action to combat this situation which was deteriorating.
 We should look at all the factors involved again and I would not like to say that it was a reckless attitude they had but you must keep in mind that the consequences of that was that the lower operatives did develop some perceptions, and you as a committee have to decide which value can be attached to that.

CHAIRPERSON: Mr Ntsebeza.

MR NTSEBEZA: Thank you Chairperson.  You see General the problem that I also have with those ambiguous words is the context and the time, the context in which and the time at which they were used.  Now as one time head of the Security Police you are aware that you had an armoury of legal provisions, firstly in the form of the Terrorism Act, or the Internal Security Act as it then was, do you concede that?

JOHANNES FELDE VAN DER MERWE: What is your question, yes that is correct.  There was security legislation which gave us certain powers.

MR NTSEBEZA: You were by law permitted to hold in detention in communicado in circumstances where a detainee would not be seen, would not be visited by friends or family, by even lawyers, and in terms of which you could legally hold him for an indefinite period until he has answered questions to the satisfaction of his detentors generally. That was the general position in terms of Section 6 of the then Terrorism Act and for subsequently Section 29 of the Internal Security Act.

JOHANNES FELDE VAN DER MERWE: Mr Chairman no he could not be detained for undetermined periods.  He had access to the courts.  There were many incidents where we had to provide reasons why a person was detained.  He was also visited by a magistrate and other people.  It's not a question that he could be removed from the community and be detained indefinitely and no people had contact with him.  There were certain control measures in this regard.

MR NTSEBEZA: But generally I mean the fact that he was not able to, he or she would not be able to be visited by certainly legal representatives made the conditions of his detention all that much more stringent. He was available, at most instances, for longer periods only to members of the Security Police.
 I take the point about visits by judges and magistrates and medical people, but generally the conditions under which people could be detained or arrested were such that the police could have a reasonable and a longer time to deal with the person in detention in such a way that that a person could be neutralised in the sense of detaining him for a longer period so that he or she is not available in the community to do the things that the person was doing or was perceived to be doing.  Would you agree with that?

JOHANNES FELDE VAN DER MERWE: Mr Chairman, if by this question you mean that we could just avert this threat by detaining them by security legislation it could not be done.  At a certain stage we detained more than 40,000 people in terms of this legislation and then this conflict even worsened.  Security legislation could, in this war situation where intimidation was used so that the greatest deal of the masses were forced to use civil disobedience then legislation could not be the solution.

MR NTSEBEZA: This is exactly the context, you have just stated the point in my view, you are saying even with such draconian laws it was the perception at the time that the legal or legally available methods of dealing with perceived enemies of the State were not efficient to deal with the situation.  Is that what you are saying, because ...(intervention)

JOHANNES FELDE VAN DER MERWE: Yes definitely Mr Chairman.  I have also said that if the previous government would be honest and adding to that if circumstances allowed that they had to ask for a martial, apply martial law.  We were almost busy with a civil war.  If we look at the civil disobedience on the wide level and organisations when they were all united by the UDF it could not have been able to combat that effectively through legislation.  That's why the government used other methods apart for a constitutional solution.

MR NTSEBEZA: Yes.  And if I understand you well then it was as a consequence of a conclusion drawn by yourselves, and as I understand it by the government, that because the legally available methods of dealing with the perceived enemies of the government were not effective some other measures were resorted to, and it was in the context of other measures that terms like 'elimination of enemy leaders' came to be the vocabulary of a strategy to deal with the enemies of the people.