Special Hearings — Caprivi Hearings — 1997-08-06

MR VISSER: "The Commissioner of (the South African) Police Johan van der Merwe and his deputy Basie Smit were not willing to assist ..."

MR VISSER: And what I want to contend with you is this:

MR VISSER: "... beyond arranging bail ..."

MR VISSER: First point.

MR VISSER: "... and then assisting in the concealing of members from detection."

MR VISSER: Would you please, Mr Varney, take the document which is the minute of the meeting in the Liberty Life Building of the 8th November before you.  Have you got it before you?

WITNESS:   Yes, I think just read it.  I am familiar with it.

MR VISSER: /Well, I

MR VISSER: 5B Well, I really want to refer you to it because I've just got one simple question for you.  Well, two.  First of all, are the inferences which you draw in your paragraph 22 based upon that document, or are they based upon some other evidence?

WITNESS:   It is based upon this document, read together with the evidence of General van Tonder.

MR VISSER: But they are the SADF, Mr Varney, with all due respect.  Whatever other people said or didn't say or thought or didn't think is not what is relevant, in my respectful submission to you.  What I'm asking you is is there any other evidence than the minute of the meeting of the 8th November, upon which you base these inferences?

WITNESS:   Well, I don't believe that the evidence of Van Tonder is entirely irrelevant in this matter.  The allegation against your clients is that they colluded in preventing the detection of offensive crimes - offensive actions, which were crimes, committed by these trainees.

MR VISSER: Right, now what is your ... (intervention)

WITNESS:  And they did so through interfering in investigations and the like and you've seen that, in my submission.  Although your ... (intervention)

MR VISSER: I'm sorry, I'm not sure I understand that.  You say that I have seen that they interfered in investigations.

WITNESS:   Here I am referring to the police.

MR VISSER: Not to my clients?

WITNESS:   Well, I think by implication your clients come into, being the most senior officers of the day and read in conjunction with that particular document.  What they are saying to the military is that, "These members who are arrested, who the law wants, let them get bail and once they've got bail take

MR VISSER: /them away".

MR VISSER: 5B them away".  Now, that, in my view, is a number of things.  It is colluding in preventing the law from taking its course and it is colluding in the overall aims of this particular project.

MR VISSER: Mr Varney, with respect to you, can we read what this document said for a minute, please?  That's why I asked you to get it before you.   It says in paragraph 1, and I'll read it slowly to be interpreted.

MR VISSER: "HDIO gives an overview of Operation Marion."

MR VISSER: It then talks about offensive action and then paragraph 2, Mr Varney, if I may take a little of your time - 3.  In order to save time, Mr Chairman, may I loosely translate it instead of wasting the time for having it translated.  General van der Merwe said, "Look here ..." - that's paragraph 4 - "Every case has to be decided upon on its own merits".  You can paint a picture very easily.  They are sitting there and they says, "We've got a problem here, people are being arrested, etcetera.  Can you do something?", and Van der Merwe says, "Hang on.  Let's deal with each case on its own merits".  He says, "There is no way in which I ...", I assume, "... can act pro-actively".  In other words, "I can't assist you in any other way but which - the following.  Where a member of the Caprivi trainees lands in trouble bail could be arranged", not what you're saying here in paragraph 22, with respect, Mr Varney.  "And then the member has to be taken away."  No way is it suggested that he should be concealed.  It is suggested that he should be taken away and I'm putting it to you that what Van der Merwe meant was, "Take away out of the area, because if you don't do that there's going to

MR VISSER: /be further

MR VISSER: 5B be further trouble".  What he had in mind is that such a person can interfere with witnesses, there may be further fighting, whatever the case may be.  You laugh at me, Mr Varney, and I take exception to that.  Please just read the words.  There it is in front of you.  What else could it mean?

WITNESS:   My apologies for smiling, Mr Visser, but in my view that is a laughable contention that the members involved in murder may then be taken away to prevent further interference.  I don't see how you can read that into that document.  If you look at how the document flows.  You correctly say that HDIO gave an overview of Operation Marion - sorry, DST2 gave an account of problems with regard to offensive actions.  General Smit then queries the liaison with security policeman, Captain Louis Botha.

MR VISSER: Yes.

WITNESS:   Now, remember what these problems are with offensive actions.  The problems, as we have seen from previous documents are that Caprivi trainees involved in offensive actions are getting arrested and the concern is they may talk and if you go back into the documents you will look at the problems around people disappearing, temporarily disappearing and so on and so forth.  It has been conceded in evidence before the Court.  Those people were concealed from detection from the law.  Now, this is the same problem.  The problem was not going away.  It was increasing.  So the next paragraph - unfortunately, I don't have the particular document before me, but according to my report here, it reads, "General Smit's detective branch's involvement complicates matters.  What/who must be done/no.  It does not help to make promises which cannot be carried out".

MR VISSER: /Correct.  ---

MR VISSER: 5B Correct.

WITNESS:   Now, my reading is those promises are, as you say, you cannot interfere and intervene in each and every single case.  That's my reading of that because the very next paragraph relates to a possible solution - or the SAP solution, as Van der Merwe puts it, and that is that each case must be dealt with on its merits.  There is no manner upon which to be pro-active.  He's not making any guarantees here and his solution is as follows, "Where a member is in difficulty, bail can be arranged", and we know that a lot of policemen testified in support of bail applications for Caprivi trainees and others, "But then the member must be taken away".  There is no suggestion that the member must be taken away to interfere with the proper investigation.  The member must be taken way in order that he is - he doesn't get detected and caught again and, in fact, the evidence of others who have testified here is that, in fact, that is what happened on a repeated basis.  They got bail and then they simply disappeared.  They were concealed at Mkhuze, at a chief's kraal down the South Coast, and so on and so forth.  That emerged in the Trust Feeds case and others, and that is my reading of this paragraph and I would submit that it's the only plausible reading of it.

MR VISSER: Mr Varney, we know what happened in the Goniwe case.  Why don't you just argue that they should be killed then?  Because taken away, taken out, removed.  I mean isn't that also a possible explanation?  I don't want to cut hairs with you, but with all due respect, are you not prepared to concede that your inference cannot be the only reasonable inference?  That's all I'm asking you.  That the one I put to you is equally as reasonable?

MR VISSER: /Well, again,

MR VISSER: 5B Well, again, that is a highly legalistic argument, but I would like to submit before this hearing that in the light of this document, seen together with all the other documents, seen together with the evidence of Luthuli, Van Tonder on this particular aspect and several other cases, yes, indeed, that is the only reasonable inference to draw from the circumstances.