Special Hearings — Armed Forces Hearings — 1997-10-09

MR GOOSEN: Thank you very much Mr Chairperson.   General could you disabuse my mind of the impression that I get from your answer that whether a matter is lawful or unlawful, bearing in mind that you were a policeman for many, many years charged with the responsibility of upholding the law so you should understand in essence what it is, that whether a matter is lawful or unlawful is determined solely by the circumstances which motivates the action in the first place, is that what I understood you to say?

PETRUS JOHANNES COETZEE: Yes, I said that the circumstances which obtains at the time when the decision is taken to do a certain act that may affect the legality or illegality of that subsequent action.

MR GOOSEN: It is unlawful to kill another person, do you agree with that?

PETRUS JOHANNES COETZEE: No, Sir, no, no, no.

MR GOOSEN: You don't agree with that?

PETRUS JOHANNES COETZEE: It's illegal to intentionally and unlawfully kill another person Sir.

MR GOOSEN: Good.   Now in circumstances in which a member of the Security Police who would have fallen under your command then, while you were the commander of the Security Police and between 1983 and 1987 you were the Commissioner of the Police ...(intervention)

PETRUS JOHANNES COETZEE: No, no, no, '80 to '83 sir.

MR GOOSEN: '83 to '87 you were Commissioner of Police?

PETRUS JOHANNES COETZEE: Ja.

MR GOOSEN: So all policemen fell under your command in essence at that stage?

PETRUS JOHANNES COETZEE: Yes.

MR GOOSEN: If a member of the Security Police applies for amnesty for intentionally and unlawfully taking the life of an individual, therefore stepped outside of the bounds, and it's clear that it was intentional, that it was unlawful, you would say that that person firstly was never authorised to do that, and secondly that person was acting outside of any authority that could have emanated from you or any higher authority, correct?

PETRUS JOHANNES COETZEE: No Sir.  What I would say to that question I would say that that is specifically why this Commission was created with all its subsidiary committees to look upon it, to investigate it, to probe it Sir, and for that man to appear before the Amnesty Committee.  That's how I would answer that question Sir.  This is specifically why this was created, as I understood it Sir.

MR GOOSEN: And the way in which this Commission can get to that answer is to ask you as a Commissioner of Police what your perspective is on that, and that's why I am asking you the question.

PETRUS JOHANNES COETZEE: I have responded to that Sir by saying that at my level, at my level of command at that particular time there was no illegal instruction to policemen to commit acts outside the realm of the South African law within the country.  That's what I said.

MR GOOSEN: Thank you.

PETRUS JOHANNES COETZEE: If they did it Sir, they did it prompted by reasons which they must explain Sir, reasons which I have tried to spell out and General van der Merwe has also tried to spell out, misconstruction of words, misconstruction of commands, misconstruction of instructions, all those matters which they must handle themselves and their legal advisors.

MR GOOSEN: But you would say then in the period '83 to '87 any actions of that nature would be totally unauthorised, fall completely outside of the ambit of the authority vested in a member of the police, is that correct?

PETRUS JOHANNES COETZEE: Sir I cannot comment in a blanket way on that issue.  I have told you that there were certain actions authorised by the government in the State Security Council.  I have said it in my initial statement, here it is, I've said it authorised and unauthorised actions, so I have already commented on that.  I am again saying Sir, that as far as I am concerned I did not, I did not give any policeman any illegal instruction, unlawful instruction, kill a person, assault a person or do anything of that nature.   As a matter of fact the Vice-Chairman has spoken about people in incarceration.  We had extensive instructions published in force orders about how these people should be dealt with Sir, not anything illegal contained in that Sir.  How they should be treated.  If a policeman stepped outside that he must explain that Sir. He must explain his actions.

MR GOOSEN: You never authorised anyone and if any person under your command purported to authorise someone to commit an unlawful act that person would have been acting unlawfully, is that correct?

PETRUS JOHANNES COETZEE: That person must be asked ...(intervention)

MR GOOSEN: That person would be acting unlawfully?

PETRUS JOHANNES COETZEE: That person must be asked ...(intervention)

MR GOOSEN: I am asking you whether that person acted unlawfully or not, it's a simple question.

PETRUS JOHANNES COETZEE: Yes but you place it in a very simple category.  The fact is you are asking me, I've told you Sir, I've told you that I haven't given any policeman, not a single policeman, any order to commit an illegal act.  Whether he constructed what I said in a wrong way, whether he constructed what I said in another way that I meant it, I cannot comment on it, he's the man, his mind must be probed, not mine.

MR GOOSEN: General you never gave any person in your command beneath you the authority to commit an unlawful act, agreed, and I accept that ...(intervention)

PETRUS JOHANNES COETZEE: Inside the country....

MR GOOSEN: Yes we are talking about inside the country.  You also stated that it's not within the authority of a person beneath your command to be able to authorise an unlawful act, is that correct?

PETRUS JOHANNES COETZEE: But Sir how do I know that?  How do I know how another  person - in theory yes, but in principle he may be under the impression that he's giving a legal order, he's obeying a lawful command.  This is what I say the Amnesty Committee should probe.  He should question that man.  That man should give his version.
 I didn't, this is all that I can comment on, what I wrote, the instructions that I have given in writing, the instructions which I have given orally, I never told the man to commit in South Africa an illegal act.

MR GOOSEN: But General you did not have the lawful authority to issue an unlawful act, will you agree with that statement?

PETRUS JOHANNES COETZEE: I will agree with that ...(intervention)

MR GOOSEN: Thank you, thank you ...(intervention)

PETRUS JOHANNES COETZEE: ...that is quite, quite clear ...(intervention)

MR GOOSEN: And no officer under your command could ever have the lawful authority to issue an unlawful order, is that correct?

PETRUS JOHANNES COETZEE: In theory it's correct.

MR GOOSEN: Absolutely.

PETRUS JOHANNES COETZEE: Ja.

MR GOOSEN: Absolutely.

PETRUS JOHANNES COETZEE: Ja, as far as the legal situation ...(intervention)

MR GOOSEN: That's what we are talking about General.

PETRUS JOHANNES COETZEE: Ja.

MR GOOSEN: That's what we are talking about.  Therefore if any person under your command purported to issue an unlawful order that person would be acting unlawfully.

PETRUS JOHANNES COETZEE: If he knew it was unlawful Sir.  If he didn't know it was unlawful it was within his rights.

MR GOOSEN: Well, if he purported to issue an unlawful order he would be acting unlawfully.

PETRUS JOHANNES COETZEE: No Sir, purport means that he didn't - I say that if he knew, if he knew, if he was aware that he was issuing an unlawful order he couldn't do it.  He was not entitled by law to do it.  But if he thought he was entitled to do it, that's his excuse, that must be probed.  This can't be ...(intervention)

MR GOOSEN: He would have an excuse, he wouldn't ...(intervention)

UNKNOWN: Mr Chairman may I come in ...(intervention)

MR GOOSEN: ...it wouldn't render it lawful would it?

UNKNOWN: May I please come in here?

CHAIRPERSON: Yes go ahead.