Special Hearings — State Security Council Hearings — UNKNOWN

ANDRE MARANDOM 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.

ANDRE MARANDOM 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?