Amnesty Hearings — Cape Town — 2000-11-21

MR COETSER: Well the point is he has set out the factual situation in his statements and he has elaborated thereon, or indeed they have been gone through to see what he can remember and can't actually remember in relation to what he actually knows about the matter.  In so far as full disclosure is concerned, there are two issues to my mind.  Whether in relation to the information aspects that he's been questioned on, the Commission comes to the view that he has deliberately and intentionally hidden facts from this Commission on aspects that he has been questioned about and aspects which the Commission would like to know about.  That's the one.  The second aspect is whether or not the Commission was of the view that with regard to the information that he has conveyed to the Commission, he has deliberately lied.  If those two aspects are absent, well then in relation tot he information that he's disclosed and any further aspects the Commission wants to know about from him in the performance of the Commission's function, those two aspects are absent, then he has made full disclosure, from a practical point of view.  The only issues that remain are, are there indications that clearly show that in relation to the information he has provided, he has, in a material respect, lied to this Commission, or in relation to aspects of information incidents or whatever the Commission is interested in and want to know about, he has deliberately withheld information from the Commission.  Now I would, with respect, submit that in the analysis of his testimony, looking at it holistically, taking it as a whole, there is no proof that he has done either of those things.  What he has been exposed, is doing in one or two instances at worst is that he has indulged in reconstructive reasoning when providing the affidavits concerned, but in the controlled process of oral testimony and cross-examination, reconstructive reasoning on one or two aspects has been exposed, but I would, with respect, submit that in conveying what he knows about the situation to this Commission, these aspects are not particularly material.  Whether he was told for example by Pretorius, at the time when Pretorius spoke to him that there was going to be this raid on Botswana or whether he found out about it at Hammanskraal, is neither here nor there.  What difference does it make?  He found out about the raid.  It may be that he reconstructed in his mind that Pretorius told them this, whereas being tested in oral testimony on his memory, he realised, no, sorry, this came from Hammanskraal.
	Is that material?  I pose a rhetorical question.  I would submit not.  There are one or two other aspects that I would say that the same argument applies on those other two aspects.

JUDGE MOTATA: What comes to my mind ...

MR COETSER: The point of the ...(indistinct) question is the frustration that the Commission expressed when he said:  "Look sorry, I can't remember the names of the General" for example.  "I can't remember this".  It is hugely frustrating, I know, it's massively frustrating for everybody, but can the Commission be convinced on the totality of his testimony that he is for example hiding the name of that General from the Commission?  Is he doing that?  I would submit there is no justification to say he is not, when he can't remember other aspects.  Is there a single aspect that he was questioned on and when he said:  "Look I'm sorry, but now I'm afraid I cannot remember, I cannot supply you that information", are there any aspects, I pose a rhetorical question again, where the Commission can be satisfied that no, he's lied to us about no remembering, he's actually deliberately withholding this evidence from us.  I would submit there's not one single example upon which the Commission can be satisfied that that is the case.  So in that respect I would say that there has been full disclosure from this man in relation to what he can remember.

CHAIRPERSON: Are you finished?

MR COETSER: Yes.

CHAIRPERSON: Mr Cornelius, it's our view that your client falls in exactly the same position as those of Mr Visser.

MR CORNELIUS: That is correct, Mr Chair.

CHAIRPERSON: Do you wish to add anything?

MR CORNELIUS: I've got nothing to add, thank you Chair.
NO ARGUMENT BY MR CORNELIUS

CHAIRPERSON: Mr Berger.

MR BERGER: Thank you Chairperson.

MR BERGER: Thank you Chairperson.  I'm hoping that I can persuade you away from that view.  Chairperson, the requirement of full disclosure, my Learned Friend, Mr Visser, indicated earlier today that he was going to argue, but he never did, that despite what his client said, the targets of the raid were ANC members regardless of whether
they were involved in military activities or not.  That wasn't the evidence.

CHAIRPERSON: Well let's be fair to his clients, I'm not talking about him, he has a job to do.  His clients, as time went on and as evidence came along, started to water down the initial proposition that their targets were in fact MK members who posed a direct threat to South Africa.  I understand what you're saying because later on when it became convenient, some of them said no, it was the broad ANC rebel group that we saw as the enemy.  We're aware of that.

MR BERGER: Well but and it doesn't matter that the evidence came out in cross-examination, that's the purpose of cross-examination, it's to test the evidence and the strong theme from each and every witness was that - you'll recall the debate about whether it was people carrying out military activities, or whether it was people providing logistical support for military activities, or whether it was people planning military activities, but what was clear throughout the evidence of all the applicants was that the targets of the raid were ANC members who were involved in one way or another in military activities and I went so far as to say:  "Does that exclude ANC members who were involved in political activities?" and the answer was yes, it excludes them.
	Now I submit that the reason why that approach was taken was because then you can justify, we know, we've heard from witnesses on both sides, we know that the ANC used Botswana as a base from which to launch attacks, be it one fifth, or whatever, to launch attacks against South Africa.  We know that, it's part of our history and there's no doubt that the Security Forces wanted to neutralise that threat.  Now if that was all there was to it, there were attacks being launched from Botswana and the purpose of the raid was to neutralise those attacks, to destroy the military capacity of the ANC in Botswana, well then we have a quid pro quo.  It's terrible to use that, but then there would have been proportionality within the meaning of the Act, which is what the Act requires.

CHAIRPERSON: I don't follow that.  Just tell me.

MR BERGER: What I'm saying, if the aim of the raid, if the purpose, if the real purpose, is what I'm saying, was the stated purpose which is to knock out the military capacity of the ANC in Botswana, in Gaberone ...(intervention)

CHAIRPERSON: I follow, then there's an equal balancing effect.

MR BERGER: Indeed Chairperson, then the purpose of the raid would have been proportional to the objective which was ultimately being sought.

CHAIRPERSON: And justifiable in terms of the Act.

MR BERGER: Indeed. And that's ...(intervention)

MR MALAN: Sorry, before you proceed.  I'm not sure that I understand it in the same way.  If you look at Section I thinks it's 20 (3), ...

MR BERGER: I have it right here.

MR MALAN: It starts off, and I don't have a copy before me, but it says in arriving at a decision as to whether something was political.

MR BERGER: Yes.

MR MALAN: In other words, if well in guiding you on the politics.

MR BERGER: Yes.