Amnesty Hearings — Cape Town — 2000-11-21

MR MALAN: That's exactly the point I'm making.  If we look at the facts also conceded by some of the applicants where they say:  "We didn't really know.  We were involved in some way but we were not directly involved in the target selection.  Others had a certain duty, we did present whatever we had."

MR BERGER: But Mr Malan, with respect, they can't wash their hands of the targets that were chosen because they had a hand in putting forward information which was ultimately relied upon for targets to be chosen.

MR MALAN: Absolutely, that's what they say.

MR BERGER: Amongst those targets, they say, were people like Dick Mtsweni and my submission is that with the intelligence that they had at their disposal, with the intelligence machinery that they had at their disposal, they would have known that Dick Mtsweni was a driver who drove supplies.  An old man who drove supplies for the ANC and that they would have known that in the exile community there were people who needed toilet paper and soap and underpants and all those things.  They would have known that, so the question is, why did they pass that information through?  Why did they allow Dick Mtsweni's name to go onto the list, which is what Loots says, it was on the list.

JUDGE MOTATA: Because they saw him transporting high profile ANC members from the airport.

MR BERGER: Yes and so then he became a target.  That didn't make him involved in military activities.  That made him an ANC member, it made him part of the ANC family in Gaberone and I submit that the ANC family in Gaberone was the target, it didn't matter, as I said, whether you were military, or political or not.
	I ask the Committee to ...(intervention)

CHAIRPERSON: In either case, would you - I'd like your comment.  In either case the requirement of political motivation would be satisfied, I'm asking?

MR BERGER: In either case?

CHAIRPERSON: Ja, whether it was directed supposedly at MK or the whole ANC family on the other hand.  I'm asking, I'm not proposing it.

MR BERGER: Well Section 20 (3) says have a look at the motive.  What was the motive?  Was the motive to hit at MK or was the motive to hit at the ANC generally?

CHAIRPERSON: We know as a fact, historically, that the military wing of the ANC was MK and they fell into one group as opposed to the apparatus of apartheid.  Here we have a clash between the sustainers of apartheid against the ANC and/or its military wing.  Would that satisfy the Act if we accept that the two clashed?

MR BERGER: Yes, if it was a clash between the SADF and MK, is that what you're asking?

CHAIRPERSON: No, I'm saying whether the perpetrators of this attack, whether they say it was firstly directed at MK or not and then it's watered down to ANC generally, if we find that it was against either, or let's say we find at worst it was against the ANC, would that satisfy the Act?

MR BERGER: Well, no, firstly you then have to say:  Are we satisfied that they made full disclosure.

CHAIRPERSON: We'll come to the full disclosure, we'll come to that.

MR BERGER: Okay, leave that out.

JUDGE MOTATA: The political aspect.

MR BERGER: You then have to ask:  If it was against the ANC family, from Mike Hamlyn to Chris Hani, if it was against that whole family, then you must ask, was it proportional to the objective which was being pursued?

CHAIRPERSON: Then we have to resort also to all those guidelines.

MR BERGER: All the guidelines in 20 (3) and if you're of the view that MK could have been attacked and the military capacity of the ANC could have been substantially cut down by a well-planned attack against MK targets, if that is your view, then going against Mike Hamlyn, Dick Mtsweni, Thami Mnyele, going against them would have been out of proportion, I submit, to the objective which was being sought.

CHAIRPERSON: What you are saying, the killing of Dulcie September could never be justified, whereas the attempted murder of Aboobaker may very well be?

MR BERGER: It depends what the objective that was being pursued was.  If the objective was to utilise a military threat, which is what the stated objective of this raid was, a military thing, if that was the objective, then killing the politicians is beyond the pail, out of proportion.  If the objective was to wipe out the ANC because politically they were causing the apartheid state huge embarrassment throughout the world, well then there's a different test, but that is not the stated objective of this particular attack.  The stated objective of this particular attack was to neutralise a military threat.

CHAIRPERSON: It was a pre-emptive defensive mechanism.

MR BERGER: Indeed, against a military threat.

CHAIRPERSON: Or at least a violent threat.

MR MALAN: Could you just argue for me, what would the relevance be, because you talk about the State's objective, the Apartheid State Regime's objective?

CHAIRPERSON: No the stated objective.

MR MALAN: Ja of the State.

MR BERGER: The stated objective of the State.

MR MALAN: The applicants before us clearly are operatives at some lower level than where the decisions were taken.  Could you just give me an argument on that?

MR BERGER: Yes.  The evidence is clear.  Remember, I forget which witness it was who referred to the green bundle and said, I think it was headed, I may be wrong:  "Dade van terreur uit Botswana" or something, Mr Wagener has it, "Infiltration of African National Congress and Pan Africanist Congress Terrorists to the Republic of South Africa via Botswana".  This dossier was put together to show the so-called acts of terror which were being perpetrated in South Africa from Botswana.  The Western Transvaal Security Branch from which the first four witnesses came, they were at the forefront of this intelligence-gathering exercise because the Western Transvaal was monitoring the military operations which were being planned and executed against South Africa.  So Western Transvaal focus was and plan was to stop these military attacks, these attacks in South Africa which were emanating from Botswana, so the stated purpose of the raid was also the purpose for which information was being passed on by the very applicants in this case.

MR MALAN: Well there was also evidence that that document was a compilation of all the intelligence from all the different branches.

MR BERGER: Yes.  No I'm not only relying on this document.  If you consider the evidence ...(intervention)

MR MALAN: No but it clearly wasn't, for instance the evidence I think of Pretorius that Soweto's intelligence on Botswana was much better than that of Western Transvaal.

MR BERGER: And they were also concerned, Soweto was also concerned about the military threat from Botswana into South Africa.

MR MALAN: Yes.

JUDGE MOTATA: Because the attacks in Soweto largely emanated from Botswana.

MR BERGER: Yes.  So all of the 8 applicants, well not all because there are two that I must deal with separately, they were concerned with gathering information which they say they knew was to be used for the purposes of planning a strike against that military threat which was emanating from Botswana.

JUDGE MOTATA: But the setting up of the Western Transvaal Branch of the Security, wasn't it, could I describe it as a collation point where all these reports would eventually end up and thereafter taken to Pretoria?

MR BERGER: Yes.

JUDGE MOTATA: Would I be describing it correctly?

MR BERGER: I submit so, yes.  But all of them were concerned with gathering intelligence to counter this military threat.  The evidence of various applicants before you in the last hearing, was there was this escalation in military activity from Botswana.