Special Hearings — Caprivi Hearings — 1997-08-14

CHAIRPERSON: "Yes, I don't see that it's a particularly material point.  I am not suggesting that he was involved in specific cases, that he arrange bail and concealed people himself, but here is providing overall direction, policy in a sense.   What he is saying is, "Bail can be arranged," and then take the members away ..."

CHAIRPERSON: and then the words that Mr Varney adds,

CHAIRPERSON: "... conceal them."

CHAIRPERSON: Now, the last two words of his answer is not reflected in the document he bases his submission on.  He prefers to add them on his own accord, and I'll deal with this later.

CHAIRPERSON: Now, the submission made by Mr Varney, based on documentation that called for such an inference is challenged.  Firstly the status of the documentation, and secondly the interpretation thereof.  During Mr Varney's submission he made the following in respect of the status of the documentation upon which he based his argument, namely, firstly he said the originals of all documents referred to in the submission are held at the State archives, or are authenticated exhibits in court files and inquests.  And secondly - at least here he qualifies it with, "As far as I am aware" - he says, "The authenticity of the document has not been seriously disputed.  The authors confirm their contents, it's only their interpretation which has been the subject of much debate."  Now, these statements are incorrect.  The undated document referring to the Liberty Life meeting held on 8 November

CHAIRPERSON: /1988, which

CHAIRPERSON: 1988, which is the document on which the allegation of the involvement in the covering up of crimes is based, is not held at the State archives and is not an authenticated exhibit in a court trial or an inquest.  No evidence was led during this inquiry by the author of the document to confirm its contents, and no such evidence was led at the S v Msani trial.  From the Msani record it appears, from an answer that I think Colonel van Niekerk gave, that van den Berg is the author of the document, but despite his apparent availability at the Msani trial he was not called to testify.  Now, following these misleading statements Mr Varney's interpretation of this document should be viewed with circumspection.

CHAIRPERSON: During the cross-examination of Colonel van Niekerk in the S v Msani trial he was asked the question whether he had perused the cryptic note attached to his covering letter - this is now the Liberty Life document - and whether he was satisfied with the note.  Now, his reply is that quite the contrary appeared, as the covering letter itself has a number of mistakes in, and I refer you to page 3962 of the record.  At the time of the signing of this covering letter it was the first time he had seen the notes in this format.  Apparently in the file were handwritten notes on pages torn out of a small notebook and stapled to the file.  That you'll find on page 3963 of the record.  He was not in a position to confirm that the contents of the typed notes corresponded to the handwritten notes.

CHAIRPERSON: General van Tonder at Msani trial also criticised Colonel van den Berg for his writing style, which was not always accurate, and you'll get that reference on page

CHAIRPERSON: /3714 of

CHAIRPERSON: 3714 of the record.

CHAIRPERSON: Now, perusing the document it is apparent that the document contains obvious inaccuracies.  For example the reference to the dates.  The document is clearly not minutes of the meeting.  This raises the question when was this document created?  A year later, and therefore the mistake in the date?  I think experience shows that one seldom makes a mistake in writing the date of the year still to come, you rather make a historical mistake.  This tends to show that this document was only created in 1989, possibly at the same time as the covering letter.  There is thus a great danger in assuming the correctness of the balance of the contents.  The author will record his own perceptions, and his knowledge and recollection has a further impact on the interpretation of the document.  The document is clearly incorrect, and then interpreting the document, and furthermore adding your own words to the document, as Mr Varney does, in order to interpret this, is a recipe for disaster.

CHAIRPERSON: Now, Mr Varney's subjective interpretation of the document is clearly demonstrated during his cross-examination by Mr Visser, when he was asked about the meaning of the words, "taken away," and how he interprets it.  He said that whatever Mr Visser proposed was a laughable contention, and he also tried to explain what and how he understood, or how he interpreted it in view of the problems that was addressed or posed at this particular meeting, the problems with regard to offensive action.

CHAIRPERSON: Now, the interpretation of Mr Varney as to what the SAP solution purported to be is much more unlikely than

CHAIRPERSON: /the submission

CHAIRPERSON: the submission of Mr Visser of his client's instructions, namely that the persons should be taken out of the area.  I think it can be accepted as common cause that if a member of the unit is or was involved in a crime, or is a suspect of a crime in a highly volatile politicised area, surely such a member is given bail and if he is returned to his unit to continue with his normal daily activities, it is quite evident that such a situation would cause greater problems.  You know in ordinary police situations if members are involved in a serious matter they are sometimes suspended, or not sent back to the same unit because of the problems they can create.  Now, to interpret the document to imply that a person had to be taken away and to be concealed is not a solution at all.  Would it be the intention that such a person had to be a fugitive forever?  What about the second or third person that would be granted bail under similar circumstances, and then disappears?  What about the credibility of the police members involved assisting and supporting the bail application?   The public prosecutor and Magistrate who ultimately grant bail would all be party to this concealment option.  Now, if you have to draw an inference on the probabilities, and you consider these two possibilities, surely the explanation by General van der Merwe is the more likely interpretation.

CHAIRPERSON: Just to address one further aspect with regard to Mr Varney's answer on how he understood to be taken away, is on what he perceived the problems were that the SADF  discussed with the SAP.  Now, once again this does not appear from the document.  The Committee can never make a finding on interpreting the document because it's

CHAIRPERSON: /unreliable.

CHAIRPERSON: unreliable.  The only options to evaluate the evidence given in the Msani trial by the people present at the meeting, and in subsequent section 29 inquiries.  I can only deal in that respect with my client's own evidence with regard to section 29 inquiries, and furthermore alert you to the fact that he was not an accused in the Msani trial and did not have any opportunity to challenge any evidence given at the trial by others present at the meeting.