This resource is hosted by the Nelson Mandela Foundation, but was compiled and authored by Padraig O’Malley. It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.

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22 Sep 2000: Wagener, Jan

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POM. You represented the – ?

JW. The State Attorney's Division, all the State Attorney's Offices in the country. I represented them in this meeting with the Minister of Justice and the new top structure where we had to discuss how the policy should go for the next few years to come and they all said that the State Attorney's Office is too white. I said, yes I accept that, we must do something about it. But basically it worked something like this, we had in the State Attorney's Office, I think we had six levels: the articled clerks would be on the bottom one, then five levels of attorneys. The top one would be the heads of the office. I was at the second level. Now I made suggestions as to how we should deal with it, how to bring in the black people. I said to them our salaries on these levels compare quite well, in fact better than the private sector.

POM. Sorry, at the bottom two levels blacks were represented?

JW. No, at the bottom two levels the salaries, the financial compensation of people working for the state, was in fact better than in private practice. At the top, there at the top it was the other way round. At these levels people in private practice would earn far more money and in the middle two levels the things start to change. So I came along with a suggestion and I said let's bring in black guys in all the vacancies on these levels, we can get the best ones.

POM. That's the bottom two levels?

JW. Yes, and we can get the best people because we pay the best salary. We can attract the best candidates, even on the third level, we can bring the blacks in on all these levels and then we treasure them, we give them all the opportunities to go by way of quicker promotion, accelerations to go up. So by the time when they get to the top levels they don't earn that much money that they could have earned in private practice, unfortunately, but at least at that stage they have a vested interest in the pension funds and they've got accumulated privileges as a civil servant. So my suggestion was something towards that and they hammered me, they said no this is not good enough, this is not good enough, this is going to take too long. I said it will take a few years of course. They said it is going to take too long. And in the end I was blatantly accused of racism. When I said to them, well I spoke to the guy who's now the present Director General of the Department of Justice, at that stage he was merely an advisor to the minister, and I said to him, "You've never been in practice, you've never been in practice in the Office of the State Attorney, I've been there for 20 years, please, I think I know what that office is all about. Give me the opportunity of putting (what I thought were) sensible suggestions to you guys." And then I said to him, "You've never been in practice." He said, "Well what do you mean?" I said, "Well exactly what I say", and immediately he retaliated by saying, "You're a racist. It's obvious that you're not the right person for the new SA. You got stuck in the old SA, you're not ready to proceed into the new South African situation." To me that's the one thing. To me that is not the way to go about it. I can understand the wrongs of the past, I think I can understand it. There it refers to this meeting, you will see this refers to this meeting when I said I resigned from the Department of Justice four days after that meeting because my suggestions were merely swept off the table. Now unfortunately that is what happened there, that is what happened there. And to me still that –

POM. But that's still going on.

JW. And really I can understand that what was done in this country was not the right thing. I can understand the blacks feeling hostile towards the whites. I can understand all that, but on the contrary I can also, I can imagine myself, like in a situation like this, you would come forward with constructive advice, you would come forward with constructive criticism and the moment you do that they say you're a racist, you're a racist. Now really this had nothing to do with racism. We're now five years down the road and it happened exactly what I said, the Office of the State Attorney is in shambles, I can tell you that, because of that, because of what I said at that meeting. I said to them, "Let's bring the people into the system in an organised way, let's train them, let's make them useful lawyers for the state", but they said no.

POM. To leapfrog an entire training –

JW. That woman that they're complaining about here, she took my office, the one here that they say she's got one year's experience. She actually took my office in the end, she's still in my office. She had no experience whatsoever. This article is all about a court case, it was a court case that the State Attorney brought against Justice to try and stop them merely appointing blacks in each and every position. This is what this story is all about, it was in The Sunday Times of nearly five years ago. It was just after I resigned and they refer to my position there.

. I don't know what we're supposed to talk about today but that's the one thing that I really find disappointing is that – that's been my experience. The moment you say something that seems to be a bit unpopular they say you're a racist. It's got nothing to do with it whatsoever. I advised the present government, I was there as a State Attorney until the end of 1995 so I was there for 18 months more or less serving the new government and I had a few unfortunate experiences where you had to advise them, they wanted to do something and you say, "You can't do it, it's unlawful. The Act or the law says you can't do it." And immediately they say you've got a hidden agenda or you've got a motive, some motive.

POM. You're part of the old guard trying to hold –

JW. You're part of the old guard, you're a racist.

POM. That, cautiously, is still going on today. One result I find is that people won't speak their minds. They won't speak their minds because they think that if they do they will immediately be accused of being a racist so rather than be accused of racism they say, do you know what? I say nothing.

JW. That's the problem.

POM. That's why many black intellectuals don't get involved because if they do they will be told that the accusation will be made that, well, you're really part of the old order, you're white, your soul is white, you're not part of the transformation process.

JW. I wish I could tell the present government on how many occasions I've directly opposed the previous government also when they wanted to do something and I would say, "You can't do it, it's unlawful." But I assume that's the history of my country and we will have to live with it.

POM. Maybe you have to go through it and then it begins to even itself out as it becomes more apparent to government that they don't have competent, trained people in positions that demand competence, training and expertise – things fall apart. It might be a lesson that has to be learnt the hard way.

JW. I also say I can understand it from the other side as well, but whatever – I told you last time why I left it.

POM. Did you get a copy of this? This is the transcript. I've got it marked up, at the end – or we can do it now so you have it front of you, have a copy made. I thought that Judy would have e-mailed it on to you. I only got it yesterday.

. If you have the image in your mind of somebody and then you met the person and the image and the person just don't gel, they are two entirely different things. I knew he (Adriaan Vlok) was a different kind of person from talking to him on the phone because he was always so nice and what I found refreshing about him and I think one of the starting points I want today is his willingness to say I did wrong and I take responsibility for what I did, not making excuses, not trying to hum and haw around some quite difficult questions I put to him but answered them in a very straightforward and forthright way.

JW. He phoned me afterwards and he said to me the two of you discussed the situation of the communist threat and things like that and he asked me whether I have any documentation on that visit of General Kalugin.

POM. Yes he mentioned that.

JW. It's some reports from certain SA newspapers.

POM. This is in 1995.

JW. That would be the Pretoria News of that day, you will that that's the name of the newspaper. That would be The Star of that date. I think it's only the Pretoria News and The Star but every time the date, you should find somewhere – or else it's obviously there. I had these copies made for you, you can have them.

POM. Thank you very much. I think you said the last time that you were representing before the Amnesty Committee about 16 Generals or very senior officers. Without going into the specifics of any case a couple of things: (i) on what grounds will they seek amnesty; (ii) for what kind of offences; (iii) what justification will they offer for their actions; and (iv) will any of them point their fingers at their political superiors (without naming them to me)? Will they say I did it on the orders of – or I thought I was operating under the instructions of Minister X, Y, Z, or I thought I was operating under government orders or I thought I was operating under an instruction from the State Security Council?

JW. OK. You've read those six pages that I faxed to you the other day, those first six pages from the Cronje judgment? You've read them? I would some of the answers to your present questions you can get there. Basically I would say during the years of the conflict, and I'm not trying to debate anything on what's right and what's wrong, (I would imagine that's the basis of our discussion) huge pressure was heaped upon specifically the police, specifically the Security Branch of the police. They were tasked in terms of the Police Act and certain other security legislation to be responsible for the maintenance of internal safety in our country when the internal safety of our country came more and more under pressure since the seventies but specifically since the early eighties. It was the Security Branch that had the legal obligation to maintain internal security, that was their legal duty. Now coupled to that pressure was built upon these people every day in many, many ways and just all my clients have testified to that effect, whether they were Generals or Sergeants, they all said, "We felt the pressure of the crime."

POM. The pressure would come from whom?

JW. The pressure would come from the community, obviously largely the white community but also certain parts of the black communities. Pressure would come from politicians. You can start reading Hansard over those years, politicians' speeches, fighting talk. The Minister of Defence or the Minister of Police would stand up in parliament during the discussions on his budget and he would say, "We will fight the communists. We will fight the terrorists. We will find them. We will kill them. We will destroy them wherever we can find them. We won't sit back in SA and wait for them even to enter our country, we will go and look and for them and we will destroy them wherever we find them." Talk like that, and there are many examples. In some of the documentation I gave you last time around you will find examples of that.

POM. I didn't take any – you took everything with you. I said I would get it from you the next time.

JW. OK, sorry, I thought I left some stuff with you. But anyway, fighting talk, fighting talk. The minister would make speeches, he would go around the country, the Minister of Defence, the Minister of Police and also the State President, specifically PW Botha. He would attend a big military parade or a police parade where declarations were handed out and he would make a speech and it was fighting talk once again. He would congratulate the men for what they are doing and they should keep on – huge pressure, huge pressure was put on these people. They've got to maintain internal stability, the internal safety situation in our country has got to be normalised, stabilised. Huge pressure on policemen. Now that in turn, the senior Police Commanders would start doing the same. When they're doing their rounds at individual police stations they would meet the local policemen and say, "You've heard what the minister said the other day and I can only reiterate what he had said and I can only tell you guys once again, keep on your good fight. We will stop the terrorists, we will stop the communists." That kind of thing. Often it was young people.

. In my own personal experience, you will remember I was in the defence force when I was 17years of age, I became a member of a fighting unit.

POM. Paratrooper.

JW. This was the kind of language you heard every day of your life and you're young, of course you're impressionable, you're being indoctrinated, if you can use that word, of course. But it's not a single thing, it's a whole lot of issues working here together. When I say that there was a lot of pressure on the policemen, let's confine this discussion to the police and the security problem, huge pressure upon them in the newspapers and, of course, the friendly newspapers at the time they would spur them on. They would congratulate them when there's skirmish and terrorists were killed. I think you can accept as a fact this whole basis of being pressurised.

POM. So there's a climate of acceptance and approval -

JW. Of course, of course.

POM. - for the kind of actions that the more dead terrorists they could produce they more praise they received.

JW. Yes and this thing became a kind of a vicious circle because we all know that in a war situation like this the opponent is not really bound by any military rules. The policeman, he is bound by the statutes of the country so the fight is by nature somewhat unbalanced. You have to fight the first – he's got no rules on his side. You must, whatever you do must still be within the ambit of the law and this became impossible in certain situations. This started leading to situations where policemen started to act unlawfully, not in every single instance. A perception has been created lately by the TRC process that unlawful action was the norm. I can still say in my own experience definitely not. We had a conflict spanning some decades in our country, at any given moment the police force would have been about 100,000 – 120,000 members. We have 250, maybe, applicants for amnesty. We've got a small number of incidents if you have a look at the war as such, and it was a war. I will keep on referring to it as a war. It was not the everyday situation where policemen acted unlawfully even though that perception has been created in the last few years. But, yes, in certain situations, yes they would fight the opponent in an unlawful way and they would kill him and now they sit with the problem if they admit in each and every detail how they did it they realise it can be seen as a crime, it can be seen as murder. So the facts are just slightly altered. In the report-back situation the Commanders are told slightly different facts, like 'we ran into an ambush and we had to defend ourselves and then we fought bravely and we killed the enemy'. Whereas the true fact may be exactly the opposite. It may have been an ambush from the police side. It can even be a cold blooded murder situation but the facts are changed around in the report-back situation. So it's been reported to the immediate Commander and then it goes up the line of command and by the time that it gets to the office of Adriaan Vlok, the minister, this is actually being hailed as a very courageous act and there are even recommendations for medals.

POM. We've covered that bit.

JW. But you understand, this is this whole thing of – I'm trying to answer your question that you started, that why they did this and why do they think they had the authority. Of course you will never find in any statute a section saying that you, the police, are hereby entitled to commit murder or to commit crimes. Of course not.

POM. No, that part you covered brilliantly the last time. I suppose what I'm asking in a way is more specific. Will senior police officers say we were operating under the instructions of the government of the day?

JW. OK, I will give you a specific example. I represent a guy called General Gerrit Erasmus. He's a retired Security Police General.

POM. He was down at the house?

JW. Yes, OK, sorry, you actually met him.

POM. I know him.

JW. OK, let's take him as an example, you actually met the man. He was always known as a tough commander and no nonsense type of guy. He is still today – that is his image. At some stage he was promoted to the rank of Colonel and he was appointed the Divisional Commander of the Security Police in Port Elizabeth in the Eastern Province of our country, and those were during the turmoil days. We had certain hot spots in our country and the Eastern Cape, Port Elizabeth, was definitely one of them. So he got his promotion and he's transferred there and now he's the man there. He and his Security Branch members under his command they must maintain internal law and order and safety. That is his mandate in terms of the Police Act and all the other security legislation. He is the man there at ground level now, his head office is in Pretoria, 1500 kms away, where all the Generals would sit. He's down in PE as a Colonel, he's there, hands on. Now he's got to deal with the security situation in his jurisdiction area. Now in a certain instance, I will take a specific example, it is the matter of Sizwe Kondile and I will be very specific, this is a specific incident. I'll give you the Amnesty Committee judgment on it as well. It was a youngster called Sizwe Kondile who was eventually killed. His father is a judge today in our country so it's a sensitive thing. I will take this as a concrete example. . What happened is that the Security Branch they arrested this young activist, Sizwe Kondile.

POM. What year would this be?

JW. This is 1981 or 1982, I think it's 1981. They arrested him, they had information, because that's the way the Security Branch worked, they had informers everywhere, they had informers within the Lesotho structures of the ANC and they got information he will be infiltrating our country and when he did so they arrested him and they detained him in terms of security legislation. And they did to him what they did to just about everyone else, they tried to recruit him as an informer with pressure, with assaults, yes. And this youngster he was frightened out of his life and he agreed to co-operate with the police, or at least that was what they thought, and they took him over a time span into their confidence and they started briefing him on certain informers they had within Lesotho at the time. The idea was they would put him back into the ANC structures but he would then be like a principal agent of the Security Police and he would be liasing with other informers of the Security Police so it would make him a very important man. So they went through a long process, it spanned over a few weeks, and just when they thought they would now release him and he would then be their spy or whatever you want to call it, the informer, they stumbled upon a situation where they realised that he was taking them for a ride. He was indicating co-operation in order to be released but he was not co-operating at all.

. So the policemen involved, two men, one is Du Plessis and the other one is Van Rensburg, they didn't know what to do, what should they now do with this man? So they drew up a memorandum and they went to see their Commander, Colonel Gerrit Erasmus. What now? Because now this man was now a huge threat because if they now release him he had knowledge of other informers within Lesotho. What are the alternatives now? The alternative would be try and charge him, but it's the problem that I spoke to you about the last time round, when you try and charge the man then you have to reveal other informers. So it's a vicious circle kind of thing. But to cut a long story short Gerrit Erasmus said, after some agonising, much agonising and sending these two back and to come back to him with further details, he in the end said as a Colonel, "Kill the man. That's the only way of protecting our security informer network within Lesotho. He will destroy that otherwise and it will take us years to rebuild something like that. You go and kill him." Which they did, they killed him.

. Now 16, 17 years later they all applied for amnesty for the murder, because this is murder, of course, of Sizwe Kondile. I represented Gerrit Erasmus. Afterwards he was promoted, he became a General, he became quite a senior officer before he retired. I represented him in this instance. He gave the command, kill the man. Now at his amnesty hearing he was grilled under cross-examination. Of course you can just imagine that. Where did he get the authority from doing a thing like that anyway, because the Act says a policeman to get amnesty you must show that he was acting within the course and scope of his duties and within his mandate as a policeman or else at least on reasonable grounds he must show that he had reason to believe that he was acting within his authority. And Erasmus was hammered on this. He was told that: "Where were you authorised to give a command like that? Who are you? You were playing God, you were only a Colonel. You were not even a General. Why didn't you get instructions from your head office?" for instance, he was asked. And he said very frankly, he said in evidence, "I didn't ask my head office for instructions because I was the man at ground level, it was my responsibility to maintain law and order in that area." And he said, "I would never have asked for instructions like that from head office because if you ask them in very specific terms they've got no option but to say no." It's like when you tell your own children, please don't ask me anything that you know the answer has got to be no, then rather not ask it. That was his evidence. "But", he said, "My authority to give this command is clearly not in direct terms in any statute or police order or anything. I derived that from the very broad sense of what my duties were as the Security Commander in that geographical area." Then he went back to this issue of pressure that we've just discussed now, the fact that head office kept on saying you must stop the terrorists, you must stop this rooi gevaar, the communism, all those things. And he said, "I honestly believed that it was my duty to stop the terrorists at all costs even if it meant in an isolated situation like this that someone had to be killed." And he was given amnesty for that. I will give you the judgment, it's a very short judgment but he had us.

. Now that is a concrete example. I don't know to what extent I've been answering your questions. I've got another example by way of examples. In 1985 things were really bad on the East Rand also, much violence making the country an ungovernable situation and the Security Police had an informer that infiltrated a certain group of young activists and he came back with information to his handlers that this group they had received hand grenades and they were planning to attack specifically black policemen and their houses because black policemen were seen as sell-outs. So this information was then taken up the command structures how to deal with it and Johan van der Merwe, you met him, he later became the Commissioner of Police, at that stage he was, I think, already the Commander or the Second-in-Command of the Security Branch but he was already at Police head office, I think he must have been a Brigadier at that stage which is also a senior rank, it's just below that of General, and he said these people must be stopped. But then again your problem, if you now arrest them for possession of illegal explosives and arms it is a minor offence, there are all sorts of technical defences, they may even walk away and once again you have to expose your informer. So, again to make a long story short, he decided, "Bring me the hand grenades", which was done. They were modified to the extent that if you pull the pin there is no time delay whatsoever so if you pull the pin you're dead or likely to be killed. He said he saw this to some extent as self defence. In other words he told me years later that it wasn't even clear whether this would be unlawful or not, whether you would be entitled to protect your people in this way or not. I think in the end we all accepted on a legal basis that that was unlawful, people killed in that instance can be seen as murdered. But he said that was the only way, and he gave extensive evidence about attacks on black policemen at the time, how they had to be taken away from their homes, their families, how special arrangements had to be made to protect specifically black policemen at huge cost for the state. He said he was rather desperate and as a last resort he said let's do it this way. In the end on the night when they were to attack a number of houses of policemen, and I think there were also planned attacks on certain power sub-stations, the guys throwing the hand grenades either killed themselves or they seriously injured themselves. No innocent people were involved, innocent in that sense. They can never say they were innocent, they were throwing a hand grenade at the house of a policeman but when they tried to do it they killed themselves.

. Now I said to Johan van der Merwe I think that's murder, I think you won't succeed in a legal defence of what you did was merely self defence. I think the legal concept of self defence won't really cover this situation, although a court may say there are lots of mitigating circumstances it's still murder. So you ask for amnesty for that. We haven't received judgment yet but I think he will get amnesty.

. That's an example, so I can go on, I can give you many, many examples. I hope that by giving you examples I'm also in an indirect way answering your questions.

POM. You're giving a very good illustration of the inter-dependencies of the dynamics which operated an informant system and the way they played back and forth.

JW. You also asked me about the State Security Council. Now as far as I know the SSC never said specifically internally within our country, they never said to any security force in any direct way in the sense that it has been noted in the minutes, go and kill X or go and kill Y. What the SSC did is they approved certain cross-border operations by the military, they did. In fact they had a policy, there was a written policy regarding cross-border operations by the military, not the police, the military because the Defence Act gave powers for the military to operate even outside our country whereas the Police Act confines jurisdiction and powers to policemen to within the borders of our country. But there were written guidelines for cross-border operations by the military. Yes, in fact next week, Wednesday, we're arguing before the Amnesty Committee here in Pretoria this specific issue where there was a cross-border raid in 1985 into Lesotho and a number of policemen had asked for amnesty, including General Johan van der Merwe. We've had this hearing over many weeks and the argument will be next week Wednesday and in that matter one of the many documents was a set of guidelines or rules but for the military how cross-border operations should be conducted. So, yes, there are a few, not many – again not many, it's not as if it happened every single day, but there are a few examples of cross-border operations authorised by the SCC.

. What makes it very problematic though, and we are going to deal with one the week after next, there is going to be a hearing in Johannesburg in the centre of town, a situation which is rather complicated in the sense that it was that on 14 June 1985 there was a huge cross-border raid into Botswana by the military. They attacked a number of addresses in Gaborone killing I think about 15 people and so on.

POM. Is this the one that took place when the Eminent Persons Group was here?

JW. No, no, that's a different one, this is an earlier one. This is the one that coincided with the Kabwe conference, the Kabwe conference was 14 June 1985 somewhere in Tanzania I think, the same date. But what happened there is that it was a military operation but all the intelligence was provided by the police. The police had a better intelligence capacity, they had better infiltrated informers. So all the intelligence regarding target selection was done via the Security Police and only one policeman went in with the military, it was a black policeman, to a specific address which was not clearly identified so he went in. But it was basically a military operation but based upon police intelligence.

. Now the question arose whether anyone should ask for amnesty for that. The military said no ways, this was a lawful military operation, in fact it was okayed by the SSC and anyway it is totally in line with international military doctrine, that a country can with its military powers strike across its borders on a pre-emptive basis if you know your enemy is preparing to launch attacks against you. So the military, they're not applying for amnesty for this. The policemen who went into Botswana and who did the intelligence and played an important part in the target selection, they are my clients and they asked me what should they do. I said it's very difficult, as a lawyer it's very difficult, should you ever be charged for murder, for instance, you may or you may not be found guilty. I am not sure, there is a huge difference of opinion amongst eminent lawyers but I advised them, "Listen guys, we're into this process anyway. We're trying to come clean, we're trying to put the past behind us and proceed with our lives. We're asking for amnesty for many things, we'll ask for amnesty for this as well."

. Now you get the rather strange position that the people who actually executed the operation, they're not applying for amnesty. The people who supplied the intelligence, who basically played a supportive role, they are asking for amnesty. So once again the SSC involvement or not it's very difficult. All the questions you ask me, to not one of them is there a simple answer, a short answer, a yes or a no kind of thing.

POM. You having had a military training, and I'm just taking this passage out of Desmond Tutu's book No Future Without Forgiveness, where he's talking about a cross-examination of General van der Merwe and quotations from minutes of the SSC, he said:-

. "All the powers given to the security forces were to avoid the ANC/SACP achieving their revolutionary aims and often with the approval of the previous government we had to move outside of the boundaries of our law. That inevitably led to the fact that the capabilities of the SAP, especially the security forces, included illegal acts."

. Then he says: "If you tell a soldier 'eliminate your enemy', depending on the circumstances he will understand that means killing. It is not the only meaning but it is specifically one meaning. When he was pressed the commission, I am saying (this is the commission saying) I am saying would you not agree that unfortunate use of that language – destroy, eradicate, to wipe out, eliminate and so on – resulted in deaths? Would you agree with that? And he said, yes, Mr Chairman."

. My question is, if language like that was used and instructions communicated to senior people who in turn conveyed it to people below them and you were told to wipe out such-and-such, what would you interpret that as? I mean yourself. If you received instructions to wipe out Padraig O'Malley, eradicate Padraig O'Malley?

JW. I'll answer you in a moment. There was a hearing and I think that's the hearing which Tutu is referring to there. It was in October 1997 in Cape Town. They called it 'The Armed Forces Hearing'. They spent one day on APLA, one day on the police, one day on the defence force and one day on the ANC. Now I was there the day of the police. The witnesses were General Johan Coetzee, a previous Commissioner, General Johan van der Merwe, a previous Commissioner, Craig Williamson you know, and then a guy called Brigadier Willem Schoon and a guy called Brigadier Alfred Oosthuizen the Intelligence guy. Now they started off with Johan Coetzee. Now Johan Coetzee if you've met him, he's very much an intellectual. He's a guy who's been studying, he's got a number of degrees, he's now 72 years of age and he's now completing his Articles to become an Attorney. He retired as Commissioner of Police about 13 years ago I would think, 1987, but he's an intellectual guy. He's an Honorary Professor at UNISA, he's got degrees, he's very much intellectual. Now at that armed forces hearing he was asked, first of all he was shown certain of these documents mentioning words like eliminate and things, and he was asked, what does this mean? What he did is he got his dictionaries out of his briefcase and he said, "Well, let's have a look. What's the meaning of eliminate?" And he started to reading to the commission and to the audience and to everyone all the different meanings of the word eliminate. So in the end he said, "There Mr Chairman, you see for yourself, eliminate can be many things."

. Now later in the day another witness gave evidence, also a client of mine but not philosophical, he's a soldier, Brigadier Willem Schoon, tough old customer and they read to him the same document and they asked him, "What do you think? What would eliminate mean?" And he would say, "Kill them." It's as simple as that.

. From my own military experience, I was a foot soldier in the military, remember that, as a soldier I never rose to great heights, I was a foot soldier. In the bush war if they would say you go on patrol, watch out, the enemy is Swapo, be careful. We are here to eliminate Swapo, of course it only means kill, it can never mean anything else specifically if you're a soldier. You must remember the military doctrine, I explained to you last time round, maximum force, no court directed actions. So if a soldier he gets his enemy he won't arrest him. In the old days maybe when we had gentlemen wars and things like that but in a guerrilla war like this I think it's terribly naïve to think that soldiers would go around using minimum force and arresting their opponents and treating them like prisoners of war. It doesn't happen that way. You kill him otherwise he will kill you.

POM. So in fact the rules of engagement have changed from more or less capturing your enemy and taking him along with you as a prisoner of war and putting him in a camp and leaving him there for the rest of the conflict.

JW. How many prisoners did the ANC take? How many prisoners did they take in all these years? I think you can count them on the one hand. If you find your opponent you kill him.

POM. In the post-1990 period after Mandela was released –

JW. And the unbanning of the ANC.

POM. The ANC was unbanned and then you had this huge wave of violence that began in the Vaal Triangle in August/September 1990 and was to last right through Boipatong and beyond. It simmered down a bit after the Record of Understanding. But you had the ANC saying, you had Mr Mandela himself arguing to President de Klerk, "You are pursuing a dual strategy. On the one hand you are talking to us and on the other hand you are engaging in operations which are resulting in the deaths of leading members of our organisation in the townships, you're weakening our organisation, you're indicating to the people in the townships that we can't defend them. You're undermining us." So there was what they called the dual strategy, talk to them on the one hand, undermine them on the other.

JW. That's politics.

POM. Did you in your discussions, your functions, ever come across people in the military who said, yes we're engaged in dual strategy? Even though we're in negotiations, the thing is negotiations is to use every means to put yourself in the strongest position possible, or was that a fantasy on the part of the ANC?

JW. My experience was whereas the security forces were fighting, and fighting in the literal sense, the ANC prior to 1990, they did not continue that. Maybe one can think of one or two very, very isolated incidents which can be elevated to that level but what did happen is the monitoring didn't stop. That one must accept. The security forces had huge intelligence powers and structures and those structures didn't stop functioning after 2 February 1990. At ground level you had people put into structures to gather intelligence on any security related situation in our country and of course they had to proceed with their functions. They still had informers. They still, if you want to use the word spy, they spied on people, they proceeded with that capacity although it started changing. It basically started changing away from the political things to what was perceived as a normal criminal threat. But in the process of gathering intelligence, yes, intelligence, that was my experience, was to some degree still gathered on people or individuals connected to previously banned organisations. That was my impression, that was never unlawful, it was never wrong. That was the normal duties of these people. And they would still be doing it today as we sit here now, you would still have intelligence structures in our country of people gathering intelligence of all sorts of situations and in the normal course of events it may include people with political profiles. That would be the position today.

POM. I would be talking about the violence, the third force, what the ANC called the third force, elements within the security forces who were operating mainly alongside Inkatha or supporting Inkatha.

JW. Yes. There are a few examples of policemen siding up with Inkatha but that would be, according to my perception, in a very personal capacity, that would never have been a strategy or the official policy of the government in those times. But, yes, we all know that a guy like Eugene de Kock he had strong links with Inkatha, strong links with Themba Khoza. There's evidence that he liased and provided arms and other logistical support. But the way I understand the position today is that that was never official policy.

POM. But De Kock mentions prominent Generals.

JW. No, what I'm saying is the fact that a body like Inkatha was supported, in principle supported, yes, that was done. I think that Inkathagate thing showed that, that certain support was given to certain opponents of the ANC.

. The way I understood the position was that in any political situation where you get political opponents and political allies I think it's clear that Inkatha was seen as a kind of a political ally but that wouldn't mean that you would now go along and kill people, that's not the way I understood it and I have no knowledge or no evidence of that. One of two examples by way of exception maybe was this whole thing of Vula. You know about Vula which was an unfortunate thing in many respects where clients of mine killed people, they killed two blokes and they're asking for amnesty for that now, which was in July 1990. It was some months after the unbanning of the ANC. This was an exceptional situation really, I can't even think of any other example. But what I'm trying to say is prior to 1990 I think we can accept that there was a kind of an undeclared war between certain liberation movements on the one side and the security forces of the state on the other side. And they went for one another and in many situations they killed one another. Now my perception has always been that after the unbanning of the liberation movements, basically the ANC and the PAC, that stopped.

POM. But you had, if you recall, at the time allegations repeatedly by Mr Mandela that the security forces were involved in massacres in townships and he would go to President de Klerk and say, "Our people can establish that police were present, you must do something about the situation." Was that ever brought to your attention in any way?

JW. The allegations? Yes.

POM. Yes, investigate and find the hell out what's going on here?

JW. I'm not an investigator so that won't be correct but you must remember I was State Attorney at the time. What happened was there was a commission set up, the Goldstone Commission, to try and deal with these allegations and I was to some extent involved with the workings of the Goldstone Commission. So in that sense, yes, I was involved in dealing with allegations, these so-called third force allegations. Now if my memory serves me right this whole thing of third force was equally a pie in the sky in the sense that it was never really found. There were many allegations. The Boipatong incident, you know very well what happened there, you know what all the allegations were immediately afterwards. You know what were the results, I mean the whole CODESA was pulled off the rails because of that. And also as we sit here today, no police involvement or defence force, military involvement in an unlawful sense has ever been proved. There are some allegations made by some of the guys at ground level there, but you know this incident, I think, better than I do and you spoke to Christo Davidson the other day. I think that was all part of politics if you may ask me and maybe I must be careful with my words here but this was a purely subjective impression that I had, that in the run up to the new SA there were many in-fights amongst certain black groupings in our country, between certain black aspirations in our country as to jockeying for position towards the new SA should that dawn, where will each one stand. And, yes, unfortunately, the very highest levels of violence that our country has ever seen was after 1990. Statistics proved that, after the unbanning. Yes, I've heard many, many allegations of this third force thing.

. On a lighter note, well not even really a lighter note, I myself have at times been accused by certain people of being the lawyer for this third force and destabilising the country, which I think is very unfortunate. Yes, I do represent a lot of people that were part of the security forces but this sinister third force creating all the problems after 1990 being what - ex-policemen, ex-soldiers, I haven't come across it.

POM. In your view was President de Klerk – well two things about him, one I would like you to go into, if you can, a bit more detail of the proposals you made to him and to other politicians regarding the way they should approach the TRC, an approach that was rejected by Mr de Klerk.

JW. Without going into much detail it came down to this: the ANC, the main opponent, they came forward and said this is what we did. Now remember on the ANC side the political leaders and the military leaders were largely the same people. They came forward and said this is what we did, yes we resorted to the armed struggle, yes we got ourselves an armed wing called MK and, yes, we trained them in guerrilla warfare and we sent them into the country to commit certain acts. Many people were killed in the process, even innocent people. We are sorry for that, it's always a pity but these things happen in a war situation, innocent people are caught in the crossfire. But, yes, that is what we did but we did it for this and this and this reason.

POM. But they took responsibility.

JW. They took responsibility. On the other side I always thought that a person like Mr PW Botha, he's the right one, not Mr de Klerk because Mr de Klerk – I always thought he came into this at a very late stage. I told you before he only became President in 1989, before that he was never part of this inner circle of securocrats or whatever you want to call them. Mr PW Botha could have come forward to say, yes, this is what I did and this is what I commanded my people to do, to fight these terrorists, to kill them if necessary, to stop them from taking over my country. In other words, this is what I did. But the problem was, and it was along those lines that I advised, because I said this was a political conflict in our country and a political conflict comes from a specific political dispensation and a political dispensation comes from the politicians who make the laws in parliament. So whether the politicians knew of any specific incident or not I said that's not the real question, whether Mr FW de Klerk knew that Gerrit Erasmus in 1982 commanded the murder of Sizwe Kondile or not, that's not the question. The question is who created the big picture, the big environment within which everything happened in our country? And I said that you can never divorce or distance the politicians from that and therefore whether a politician knew or didn't know of a specific incident or not, I said to my mind it's not that important. But I would have loved to see on our side the same basic approach as on the side of the ANC. Surely Mr Mandela or whoever, Mr Tambo at this stage, he was not personally aware of every incident where his people, his cadres, where they committed certain acts. So I don't expect from Mr PW Botha or FW de Klerk, whoever, to say I knew that specific incident or I sanctioned that specific incident. I don't think that's the question. I would have loved to have seen the lines based upon accountability and morality and even liability to be taken right through as was done on the ANC side.

. Two months ago I was in Messina, I think I told you, when I appeared for that guy in that landmine incident, I think I told you. What happened was in the mid eighties the ANC decided to resort to a landmine campaign.

POM. Oh yes.

JW. You remember that?

POM. Yes, yes, he was proud –

JW. Yes, these guys, what they did was not strictly in line with the policy of the ANC on this subject. The ANC said you must go, you must recce, you must come back, we put the landmines where the military vehicles go. In the end we know that didn't happen, innocent people were brutally killed. But even there, even there the ANC leadership came and said it's our policy. At operational level things went a bit skew here and there, yes we're sorry for the innocent people who died but at least it was still part of our broader plan to serve our broader political purposes. So even that guy who planted that landmine, and really it was a horrible incident I can tell you, it was about the worst I have ever seen, he can sit there without any fear because his organisation has taken responsibility right to the top. Now on our side of the world we've got this kind of cut off point basically between the officials and the politicians. That's why people like Johan van der Merwe they had to shoulder the responsibility for themselves and all the other people under them because the line was not clearly taken right through. Now that was in a broad sense how I advised unsuccessfully.

POM. So I wouldn't be incorrect if I paraphrased you by saying your advice was: Mr de Klerk, even though you did not know personally about any incident on record, you took part in no decision where instruction was given to murder or otherwise incapacitate the enemy, you are now still the leader of the NP and you can accept responsibility. Through you, you can be the instrument of accepting responsibility on behalf of all previous governments that may have been engaged in one way or another or condoned implicitly or explicitly actions that resulted in unlawful activities and for that you apologise to all the victims of all those families, and you say we accept responsibility.

JW. Because by not doing that my clients were relegated to criminals for what they did which I still say is a shame. Once again forget about certain exceptional incidents, there is always the exception, I'm not talking about the exception, there are certain exceptions where even policemen went too far and where they committed crimes which can never, ever be contained and I'm not trying to refer to those few exceptions, I'm trying to speak in the general sense if I say my clients. And I still say as I sit here today, my clients are not criminals. In fact the vast majority of them they are proud soldiers and they defended this country, I would say, in a proud way but to some extent because that which we've discussed now where the lines were cut, my clients became criminals and they had to fend for themselves in protecting their own positions. Again, that's why I say people like Johan van der Merwe, he had to stand up and shoulder that responsibility.

POM. This is just a passage because it bears on what we are talking about. It's from Biko to Basson by Wendy Orr, she was one of the TRC commissioners but she deals in depth with Mr de Klerk's final appearance before the TRC when he very legalistically defended himself, very skilfully but legalistically defended himself against everything that was put, every question that was directed at him. She just says: -

. "The questioning continued unrelentlessly. Mr de Klerk blustered, flustered, objected and denied. He refused to accept that any human rights violation had occurred with the knowledge or sanction of senior government officials and made it clear that government policy had never contemplated abuses as a method of retaining power. By doing so he abandoned every one of his operatives from Generals to foot soldiers. He effectively made it very difficult for them to be granted amnesty. If they were the mavericks, male fides, bad apples, they could not get amnesty. He also missed out on a wonderful opportunity to show again the statesmanly qualities which had earned him the joint Nobel prize."

. Would you agree with that statement?

JW. Basically yes. Let's again be practical. The security forces were involved in what can be termed as a war with the ANC, the ANC outside our country. Now regularly there would be news in the media that the top ANC representative in Swaziland, for instance, was last night killed in his bed in Manzini by unknown persons, allegedly whites from SA. The top ANC man in Zimbabwe was killed when a bomb was detonated in his house in Harare. Four ANC operatives were mysteriously killed last night in a house in Gaborone, and so the story goes on. Now whether the politicians instructed it or not, whether they condoned it or not as ordinary citizens, what would you think? Who did it? Was there some mysterious ally working on the side of our security forces? Was there this fairy godmother or whatever assisting our cause, our cause being opposing the ANC? Who was doing all this? And remember we had one of the best intelligence capacities in the world, that's a fact. Between Military Intelligence, Security Police Intelligence and the National Intelligence Service, I still say they knew every single thing that happened in this part of the continent. Keep that also in mind. Keep in mind that the Chief of the National Intelligence Service during those years, Niel Barnard, he reported directly to PW Botha, he had no minister of cabinet responsible, he had a direct line to PW Botha, to keep the State President informed of each and every thing that happened in the subcontinent.

. Now if you take this altogether and you hear a politician saying, "I never instructed this", I will accept that. "I never condoned this", it's becoming more and more difficult because what does 'condone' mean? Did you ever discipline anyone? Did you as cabinet when you read in the newspaper that the top ANC man in Swaziland was mysteriously killed last night in his bed, did you as cabinet instruct the Chief of the military and the police to appear before you and instruct them to investigate this matter and to bring the culprits before cabinet so that they can be brought before court and imprisoned for murder or whatever? Did you as the cabinet ever do that? No, you didn't. What does that mean? Did you in other words condone? No. You can play around with words, you can say I can't condone anything if I don't know the true facts. So once again one can play around with words and say they could never condone it because they never knew as a fact who did it. But then one's playing with words.

POM. A human reaction.

JW. In the ordinary sense, we have a secret ally killing the opponent and without us knowing who it is all these years. Is that what they're saying?

POM. The human reaction would be - our boys must be doing a good job.

JW. Of course, who else? If it's someone else our intelligence capacity would show who it is. Our intelligence capacity was tops. As I say, if there's a secret supporter somewhere killing my opponents we would have known. So, again, one can play around with words, one can say I never knew and I never condoned and I never ratified. Very difficult.

POM. It was funny at the end of the Racism Conference, the poet Antjie Krog –

JW. Antjie Samuels, she used to be Antjie Krog. I know her.

POM. She said what we need is a gesture from whites to say they are sorry for the wrong things that were done during all those years and Mr de Klerk missed that opportunity at the TRC.

JW. I still say yes, but I still say it should have been Botha. Botha missed the opportunity. Had I been his lawyer and he would have listened to me, which I doubt, I would have advised him: take the TRC and convert it into a complete victory. He could have done it. He could have gone there saying, yes, these were our beliefs, this was the reasoning, the motivation, that's why we did it and we did it, and of course we're sorry for what we did. I mean that's what the ANC did. Of course we're sorry for what we did. Many people suffered because of that. Many people still suffer because of that, but we're not criminals and that's why we did it.

POM. This is a very aside question altogether, it's just one that I occasionally ask people, and it is that President Mandela always seems to have a soft spot in his heart for PW Botha. He visited him, they had tea together, he didn't push his appearance before the TRC.

JW. That was the impression one got.

POM. But with Mr de Klerk it was one of antipathy, kind of a sourness, a bitterness that is only now beginning to heal. Why do you think if he was so generous towards the man who was either Minister of Defence or Prime Minister or State President during most of his imprisonment and certainly the hard man of apartheid and so ungenerous with the man who released him and in a way negotiated himself out of power so that he could succeed him as President?

JW. Yes one can speculate on this, but what I've seen is that after a war the fighting men, the soldiers, they seem to get along with one another much easier, the soldiers, guys who even tried to kill one another, physically. They seem to understand one another. I've spoken to many people of our military. Recently I've spoken to two Generals, the one is a present serving General in the defence force, the other one is recently retired but they were both involved in the new South African Defence Force and the integration of the MK and the Apla guys. You get the clear message that soldiers, true soldiers, they can get on with one another. Politicians often not. Now I'm speculating here, I'm not a soldier nor am I a politician but I'm speculating, maybe Mr Mandela and Mr PW Botha they understood one another far better because I think they're from the same era, from the same generation. They were maybe soldiers fighting one another, but this is speculation, I don't know. But, yes, you're right, that was the message or perception that everyone got.

POM. To go back to Vula for a minute. That was an operation that threw a spanner in the works at a very sensitive stage of when negotiations were just getting off the ground and suddenly it's revealed that the ANC still has underground structures operating in the country. In fact the present Chief of Staff of the SANDF was one of the people who was centrally involved in it. Was a decision made at high level? Was this discussed, what do we do here, do we press ahead with prosecutions or do we say in the interests of negotiations, the interests of getting ahead, we drop it? Nyanda and Mac Maharaj were in jail one month and there seemed to be a considerable body of evidence gathered against them and the next month Maharaj was back at the negotiating table.

JW. You will get different opinions on the whole Vula issue depending on who you interview. The way I saw it - ?

POM. Who should I be interviewing?

JW. I'll come back to that. The way I saw it and still see it is that this was basically a kind of a contingency plan of the ANC which in my own perception can never be criticised in the sense that you're working on plan A but you should always have a plan B and a plan C and preferably a plan D somewhere should things go wrong. That's the way I was trained. So the way I saw this whole thing was, yes, the ANC was engaged in negotiations but of course they could not have been absolutely certain at that stage how things would turn out. This was early days remember and also you must remember Vula came into being I think in 1986 already, it was four years prior to the unbanning. It was not a sudden thing after the unbanning. This is a broad concept, contingency plan which was set up, a very intricate structure, already I think in 1986 so when the ANC was formally unbanned in February 1990 and talks about talks started off soon afterwards, the Record of Understanding I think was somewhere in July of 1990.

POM. It was after Groote Schuur, July of 1990, yes.

JW. But anyway what I am saying is that I can understand that why the ANC did not completely disband the whole thing immediately on 2nd February 1990, to have a primary contingency plan somewhere in your hind pocket, to me it makes sense. Yes, I can remember this well, I was in the State Attorney's Office. I was not involved at a very high level but I was at some level involved as legal adviser and, yes, it was obviously decided by the politicians that – I mean the political prisoners a lot of them had already been released at that stage. There was an ongoing process of releasing political prisoners. What would be the sense in trying to charge these people? We also had that temporary indemnity in terms of the 1990 Indemnity Act anyway saying to the ANC you can bring your people to the negotiating table, we give them – I now say it was wrong – but anyway it was a temporary indemnity given to them. In other words we won't charge you. So the political embarrassment and the point that the then government could score out of this whole discovery of Vula, surely that must have been enough at the time, they couldn't take it any further. So I can understand, I know the frustration of the policemen at ground level because they're my clients, the policemen who actually uncovered this thing, who actually worked long hours in their normal duties, in the course of their normal duties investigated what was seen as a threat in terms of the security legislation of the time. Of course to them it was a disappointment. They spent many hours – but it's like all kinds of amnesties where a policeman would investigate a crime over a year or two and then it would go to court successfully and the man would get convicted and a year later there may be some kind of political amnesty and he's back on the street again, that kind of disappointment. I think it's merely human and natural for a policeman to be disappointed in that kind of situation and it should not be misinterpreted as third force because I know some of my clients, it was suggested to them at the amnesty hearing in the Vula matter that they were in an improper way unhappy about the outcome. But like they said, of course we were unhappy, we worked hard, we worked long hours, we risked our lives, we were in dangerous positions to try and solve what was still at that time in terms of legislation a crime.

POM. This was with respect to the first two men who were involved with Vula who were murdered?

JW. Yes, that amnesty hearing. Tshabalala and Ndaba, we're still waiting for the judgment, but yes we did the hearing. It started last year and finished this year.

POM. And their defence was – before you had used the informer?

JW. Well the informer thing was still very much part of their defence here because you must remember after the unbanning, I say again, after the unbanning of the ANC the Security Police didn't stop operating, they still had the same mandate. They still had the mandate to secure internal security and safety in our country. That was still their mandate and they still had to gather intelligence and they still had to investigate situations that were seemingly a crime at the time.

POM. So in a sense the government had its own contingency plans?

JW. Of course, of course, but that contingency plan was infringed in statutes in the sense that it was the duty of the police, but of course I think anyone would agree you can't merely say there was a war for 30 years, now let's start talking and that very same moment we abandoned all our capacity to continue the fight. That would be terribly naïve.

POM. You said in a couple of places in our last conversation that you had been entrusted with matters of significant political sensitivity, with matters of huge political impact and, again, that you were busy with very sensitive matters that you were doing on behalf of the police and the defence force. Could you elaborate a little on that or can you not?

JW. For instance I was involved in dismantling, the closure of covert structures. You must also remember – well in setting up covert structures and then dismantling them afterwards, when Mr de Klerk unbanned the ANC in February 1990 he immediately started the process (you will remember, I think it was called the Khan Commission) he got the services of certain experts to advise him on the feasibility of secret projects and this led to the closing down of just about all of them. But you can't do that in one day only. Even the CCB I was extensively involved in the closing down of that. You can't say I'm closing it down, now, today, it's stopped to exist. You have to manage it, it's a process. Each and every individual has got to be managed in a certain way protecting his life, protecting other interests. You can imagine that. Things like that.

. As an example, I was to some extent involved in what was called Stratcom, we discussed it the other day, Strategic Communication, the defence calls it Comops, Communication Operation, Strategic Communications whereby you fight the enemy but not in the military sense, in the psychological sense. At times I had to advise on things like that. I often had to advise on things like that.

POM. How were they doing the psychological - ?

JW. How far can you go before it's a crime? What would be the legal aspect? Disinformation, when does that become a real crime? When is it becoming unlawful in the sense that if you're now caught you can be charged and convicted in a court of law. There are many court cases where in the national emergency - you will remember that it was the declared policy of the UDF, basically the ANC, to also take the war to our courts and not only to the military battlefields. At one stage the strategy was to flood the courts with many, many court cases and in that way drawing the operatives into the court system. So take them off the battlefield and bring them into the courts. That kind of concept where I was very much involved, each and every arrest, each and every police action, proclamation, you call it, was challenged in court. In other words trying to clog the system, forcing your opponent to use all his resources to try and keep up with that. The policemen or the operatives who should be out in the field, they are now all sitting in lawyers offices all day consulting their lawyers, that kind of thing.

. I can give you a list of cases that I did in the courts. For instance, where can I start? At some stage the End Conscription Campaign would bring an application to our courts the effect of which, had they succeeded, would be that the whole military conscription policy would be unlawful, very technical, legal arguments, one that the government can just not afford not to win because the whole military will be down the drain if the court would say that the whole policy of conscription is unlawful. Cases like that. I used to be the lawyer. Prominent activists were arrested and detained, they would go to court challenging the validity of that. I would be the lawyer. The court cases are easy because everyone knows the court cases are recorded. The difficult stuff is where you had to advise things that are not going to the courts, where you sit in consultation, in a meeting like the two of us now, and you have to advise what to do.

POM. I suppose what, in a roundabout way, I'm trying to get at is Mr de Klerk was not part of the securocrats, was not part of the whole security apparatus. He now becomes the State President. Was he ever fully in control of the state security apparatus?

JW. I don't know. I'm not really in a position to say. One can speculate on that.

POM. Well if you speculate, how would you speculate?

JW. In my own experience what I did find in the security environment is that you're either accepted or you're not accepted, you're either trusted or not trusted.

POM. Did his Generals trust him? I mean he dismantled that whole maximum security –

JW. That's what I'm trying to get at here. You're either taken into the club – for some unknown reason that happened to me. I was always accepted. I think that that must have been a problem for Mr de Klerk when he became President. Technically he was now the Supreme Commander of the Defence Force in terms of the Defence Act. He was now the chairman of the State Security Council. He was now in the 'buck stops here' kind of position. He had to sit with people he didn't know, who didn't know him. It must have been difficult. By way of speculation I would say he must have experienced problems in that sense, of trust.

. I told you last time round when Roelf Meyer became the Minister of Defence – didn't I tell you about that? There were the old guard soldiers, they wouldn't accept him as their minister for one simple reason, when he did his military training he sang in the Air Force choir which is actually totally irrelevant to what kind of minister he would be. I spoke to a number of very senior people saying that that choir is called The Canaries, and they all said, "We've got a canary now for a minister." Now Roelf is a friend of mine and I still say he's a very capable guy but there wasn't this trust, he wasn't accepted as one of the soldiers.

. I can only say that it must have been the position with Mr de Klerk. I'm not really the person to tell, maybe someone like General van der Merwe is in a better position, he was the Commissioner of Police. He became the Commissioner I think six months after De Klerk became President. People like that I would think are in a better position to say but from where I sit, in terms of my own experiences of whether you're accepted or not, all I can say is he must have had serious problems in being accepted. That I can tell you.

POM. In other words it would be difficult to envisage him saying to himself - I can completely trust my Generals?

JW. Maybe, yes.

POM. What I'm trying to get at, was he under – when he retired a number of Generals both in the police and –

JW. It's difficult for me to say that, to really answer that specific question, but maybe he's the best man to answer that. But on the basis that we're talking about perspectives in the process, we are speculating, yes. But again, don't elevate me to a position that I was not. I was merely a State Attorney at the time dealing with sensitive matters. Yes I was at some stage a direct adviser to Mr de Klerk as well.

POM. You also mentioned that when Kobie Coetsee was minister that sometimes he would come along and want to know what you were up to with regard to the police or the army and you would say, "I can't really talk about it, they're my clients and it's privileged information." To whom were you accountable? You're a civil servant –

JW. You see I was sitting on two chairs. On the one hand I'm a civil servant but on the other hand I'm a practising lawyer. I'd say the same rules of ethics, I am also a member of the Law Society like any practising attorney in this country, I was always - by law I was a member of the Law Society so therefore the rules pertaining to a lawyer were also applicable to me, the rules of ethics, the rules of privilege. So this is a very, very long and, once again, difficult argument that can arise from your question but I always said that I still had to maintain my legal integrity and the ethics and morality that go with that. So when a specific minister would brief me, say the Minister of Defence would brief me, on a very sensitive matter and ask my advice and I advised him, I saw that as a privileged situation between me and him and the law of privilege says the privilege is his, not mine. So if another minister, the Minister of Justice, who is the political head of my department comes to me and says, "I want to know, what did you and my colleague the Minister of Defence discuss?" I was perfectly entitled to say I can't tell you, you can go and ask him yourself in terms of your party political structures or whatever and if he is prepared to tell you he can do so because the privilege is his. He can waive the privilege, not me as the lawyer.

. But, yes, I can see where you're aiming at and that is that the State Attorney has always been and still is today in a difficult situation on that score because on the one hand you're equal to a private practising attorney. On the other hand you're a civil servant and you've got different lines of accountability. I in my own mind decided many years ago, because of the sensitive nature of my work, the way I'm going to deal with it is to say to the Minister of Justice, I'm not prepared to tell you anything, this is privileged. You are my minister, meaning administratively if I have matters pertaining to my salary or my fringe benefits or the structure of my office and things like that and my money, my budget to run my office, that goes via your department, but in terms of line function I'm not accountable to you. That was the way I saw my position all the years and I know specifically Mr Coetsee, there were times when he was terribly unhappy about that. Yes. But that's the way I thought and I still think is the correct way as a lawyer. The one thing that is paramount in my job is trust between me and my client and whoever my client is if he can't trust me 110% then I'm not functioning as I should be.

POM. To go back to the advice you gave to Mr de Klerk and other ministers which only in the end Adriaan Vlok accepted –

JW. Did he tell you about it?

POM. He mentioned it yes. He said he felt that he was morally obliged to do so, it was the right thing to do. It was a moral decision. But on what grounds did Mr de Klerk say no, or did he ever give grounds? You're making a very persuasive case to him.

JW. I'll explain it this way. I wonder whether I'm allowed to say it. At a later stage he was personally prepared to accept it to a very large extent but on a democratic basis it was decided upon at that meeting that I told you about –

POM. No you didn't tell me.

JW. OK. There was a big meeting and he said it must be –

POM. This involved his cabinet?

JW. His previous – the people involved during previous years. As a group they decided against it. I prefer to answer it in that way. In other words it was a collective decision, it wasn't him.

POM. So when he was speaking he wasn't speaking really personally, he was speaking as the representative of the collection?

JW. Yes, as the leader of the NP. Yes.

POM. Do you think that the state you served for 20 years was a legal state, that it did things according to the law?

JW. That is an unfair question. Legal in the sense, yes it was a legally instituted government in terms of international law and it was accepted by lawyers as such. It was the legal government of the day in terms of international law. Yes. But I mean, again you will get many lawyers arguing the contrary but at the time it was the legal government of our country. Now you ask me was everything that they did lawful? Of course not, no government in the world could claim that everything that they do is lawful but it can be thousands of examples to show degrees or levels or whatever, because the word 'unlawful' has got a very wide meaning. Suppose the law says the State President has got a discretion to do something. Now the administrative law says to make that a lawful decision that he's taken he's got to comply with certain rules of law and if he doesn't do that the decision can be reviewed and set aside by a court as being unlawful. That often happens. It's not unlawful in the sense of criminally unlawful but in the sense of civilly unlawful of course. It happens every single day. All governments are taken to court with success, that's seen all over the world. In that sense, of course, our government, many, many things were done that were challenged in courts and with success. Wasn't that your real answer or question?

POM. Before decisions were made, like in many of the activities that you were involved in, it would appear that the security people or the army people came to you looking for advice as to the legality or illegality of their action. So in that sense did they - ?

JW. Did they always accept my advice?

POM. That's different.

JW. No they didn't.

POM. But they would come to you at least and ask for an opinion?

JW. Basically yes. I'm not sure whether I'm understanding you. Yes, that's the way they would approach, say we want to achieve this, we want to achieve a certain result. How can we go about it? Is there a legal way? Can we do it within the ambit of the law? Does the law provide that we can achieve that?

POM. So you might say?

JW. Yes or no.

POM. It doesn't, and they might say thank you, and then go ahead and do it.

JW. Well let's be concrete. In terms of the State of Emergency there were certain detention powers given to police. Now they would target a high profile person but they're not sure whether the evidence they have would be enough to cause a successful arrest even if challenged in court and they would come to me and say we would very much like to arrest and detain this person, and I would say, well OK, what facts do you have? What evidence do you have? And then I would say on this evidence I don't think it's enough. If you arrest the man now and he would challenge you in court he will be successful. This evidence would not warrant a lawful arrest and detention. That kind of situation often happens to be specific.

POM. Might they go ahead and say, well we'll arrest him anyway because we want a high profile arrest?

JW. What happened, I will give you a concrete example. There was a film, Cry Freedom, on the life of Steve Biko that the police wanted to ban, to have this film banned in some way or another. It went through the process of the Publications Control Act but there it was decided right through that there is no real harm in the film, the film would be allowed. What happened there is that the legal advice, well the censorship proceedings were from a police view unsuccessful, it went to the Appeal Board on Publications and it was said that the film won't cause real danger to the safety of the state, so they allowed it and the police were still unhappy and they again asked me can't they ban this film in terms of security legislation. Then I said the only way that you can ban it is if you can show that the showing of this film will indeed lead to violence and I've got no evidence to that effect. Now we all know what happened. The police went out and they put explosive devices at a number of theatres where the film was due to start showing the next day and there were all sorts of bomb scares and there were even some little bomb explosions. Then the police made a proclamation saying they ban the showing of the film, look now there is concrete evidence. Now I wasn't aware of that. Ten, twelve years later in the amnesty process they came to me and said, "Do you remember that time, that film? We actually set the bombs ourselves. We created our own evidence on which to act lawfully." You understand? That's what happened with the film called Cry Freedom. Now they've applied for amnesty for that. Adriaan Vlok is one of them and they received amnesty for that.

. But that kind of situation where you said to them if there's no evidence that this will result in that you can't act lawfully the way you intend doing. Then they created their own threat or what would you call it.

POM. So very often they took your advice as a means to say, well if we need the threat of violence –

JW. We will cause it ourselves.

POM. - we will cause it ourselves and give us the excuse to –

JW. That's what I now know after all these years. I realise I was taken for a ride. That is what happened there and on that basis the film was in fact then banned in terms of security legislation. It happened.

POM. One other thing, if you want to leave things as they are maybe we can grab one more hour before I go if you have time?

JW. No, I've got a person that's got to see me, he's on his way here. He should be here in about 15 minutes. Unfortunately I have to leave in about an hour's time, I must leave here for some other venue and I must see this person first but we can continue until he arrives.

POM. You didn't give me any papers the last time. I said I would wait till I saw you again but you had a big –

JW. What did I say? I can't remember what you have and what I should give you. What I should perhaps do, not to waste time, I think by way of your questioning I can compile some documents for you after today and I can ask Mandy to prepare you something and have it available and then phone you and say it's here and you can send someone by to pick it up or whatever.

POM. Will you be at a hearing on Thursday next week?

JW. We're arguing that big Lesotho matter on Wednesday and Thursday in Pretoria, it's a big argument, it's the cross-border thing.

POM. I'm going to be in Pretoria, maybe I'll drop in.

JW. It's at the Idasa Centre. We start on Wednesday morning. The argument is Wednesday and Thursday. It's the whole thing of cross-border and authorisation or not of the State Security Council, it's a big thing. Johan van der Merwe is also on that ticket. But I've got Senior Counsel to argue, I've briefed Senior Counsel, but that's on Wednesday and Thursday next week. So if you want to come by maybe and experience – I don't know whether you've attended any amnesty hearings? It won't be evidence, the evidence has been completed, it's only legal argument.

POM. You said that sometimes you yourself had suspicions.

JW. Of course.

POM. Did you ever raise your suspicions with anybody?

JW. I may have, but you know also in what sense? What I can tell you is that my suspicions have always been that it must have been the military. I was somewhat taken by surprise in later years, in this present amnesty process, when I was told it was in fact police who did a lot of these things. I was always under the impression it could only be the military. For instance killing a prominent ANC member in Swaziland or in Botswana, I was always under the impression it could only be the military. But suspicions? Yes, I mean anyone telling me he had no suspicions, he must be very naïve. Again I say, who else could have done it? Some secret supporter? Who else? If a top ANC man in Europe or in Maputo or wherever is killed or attacked, who could have done it? They were not at war with other countries or forces, they were at war with us.

POM. Were you ever asked to investigate or look into allegations of torture in detention?

JW. In individual cases yes, one would get an individual case where person A would come forward and say I'm suing the Minister of Police because I was detained and then tortured, and then one would go into that specific case. Yes, that often happened and in many cases, depending on what I found, I would recommend to the police that this is unfounded or it is founded, settle the matter. But then it is a specific allegation where a specific individual would sue the government, the police or the military or whoever. No, that often happened and then you would investigate that specific situation because that is then the subject of a court case and you have to advise deny liability and go to court, this is unfounded, because often it also happened, much more than I think many people would like to accept, that unfounded allegations were made. But, yes, many allegations I had to recommend settle this thing out of court, you won't be successful in court. Yes. That often happened.

POM. Just two things in terms of looking at the time. You make the point over and over again that you grew up and were in a system where SA was the object of a total onslaught, the overwhelming threat of communism was always at the fore.

JW. That we've heard since school.

POM. And yet you lived in a society where there was obvious injustice around you, the pass laws, the influx control laws.

JW. Absolutely.

POM. The inequalities, injustices, the right to vote. Did you ever say to yourself there's something rotten here?

JW. Of course, of course, many, many times. One would use the phrase, 'had I been a black person in this country I would have done the same', of course. And I still say that today, as I sit here today, I still see we're now a democratic SA, one man one vote, struggle, the war is over, but I still see every day when I drive home, I drive in a nice vehicle, I've got enough money, I've got a pleasant lifestyle. I'm not a rich man but I'm living quite, I would say, a very privileged living standard. And I see the blacks and I still see them, they now have the vote but they still suffer. Of course, of course I see that and that's why maybe this is a point to stop, I must make a very important decision in my life in the next three months, I must decide what I'm going to do with the rest of my life and I can tell you that I'm seriously considering, I've actually started having discussions with people that I'm not sure if I want to be a lawyer, an ordinary lawyer in this office dealing with ordinary legal cases. I said to myself in view of my experience and the certain know-how that I have acquired whether I shouldn't try and put that at work in some other direction. I'm not sure where and when but not sitting in court defending a drug dealer or not sitting in my office drawing a will or a contract for someone, because I've never done that, I've never done that anyway. I have made my availability known in certain directions. OK, obviously I'm tainted in a certain sense, certain people regard me with suspicion because I was part of the enemy. But seriously I'm actually looking towards something in a direction where I think I can be of some use, of some constructive use in the governance of our country or our future. I'm not exactly sure where or when. The TRC work comes to an end in two months time and then I must start all over with my life.

POM. Do you think the TRC has achieved any of its objectives? Has it uncovered truth?

JW. Some of the objectives necessarily, there have got to be certain incidents where the truth has been uncovered, where people always – they were never sure what happened and now they have a good idea what happened. But that's only limited I would think. In the bigger, bigger picture, you've read the book of Dr Anthea Jeffrey, (The Truth about the Truth Commission) that's been my experience also. The way the truth was reached for me as a lawyer, not satisfactory. I think the TRC could have done far better and I said to you last time round how I still say they should have appointed top objective people, lawyers, in doing the job. They got to a large extent people with, and I say that with direct bias, I've experienced that. If you take each and every person in the TRC process where do they come from, what is their personal history? It can never be said to be objective. Therefore the credibility of the whole procedure to me stands under huge question-marks which could have been much, much better had they obtained services of objective lawyers because it's basically a legal process but they appointed ministers, psychologists, preachers, teachers, all sorts of people to try and establish the truth. Even the investigators are not investigators by profession. I say the TRC could have done much, much better. But even though by saying that, I don't say everything that was achieved is wrong.

POM. Has it contributed anything towards reconciliation or has it resulted in a polarisation?

JW. You know I may not be popular for saying this but I say that there's been some reconciliation in our country but I don't think the TRC can claim the credit for that, which they readily do.

POM. Which they like to do?

JW. Which they like to do.

POM. They like to justify their existence.

JW. I say that where I come from there is lots of reconciliation on a small level, the small man on the street level but the victory that's being claimed by the TRC in the process I have my serious doubts. That's my personal view.

POM. I find race relations now more polarised than they were in 1994.

JW. Yes, yes, most definitely. And I think the TRC has even contributed to a certain extent, which is a real pity because once again in theory it could have been a much more positive instrument. But OK, the people there they won't admit it, they would say whatever reconciliation has been in our country, they would claim the credit.

POM. Everyone's getting a book out of it. Alex Boraine's book is coming out, 100-page book coming out this week. Wilmot James who wasn't on the commission but was in Idasa, he's got a book coming out on Reflections on the Truth & Reconciliation, Judge Goldstone has a book coming out.

JW. That's my personal view from where I stand and my involvement with the TRC. I still say that I've been involved with the TRC extensively, from the first day, but that's my own viewpoint. Other people will obviously differ, other people would say you're still stuck in your old mind frame. You're a racist the moment you say something unkind, they say you're a racist, things like that which is a real pity because things like that often stand in the way of what I would like to term real progress. That's why I'm serious when I say I'm considering a new kind of career because of my experience.

POM. You mentioned one thing, there's always one last thing, after you said there's something rotten here and could say if I was black I would probably be doing the same thing, I would probably be fighting against this kind of injustice, but then you took no action, you just continued being part of it. Is that just the human thing to do? Do you say, what can I do?

JW. Yes, I've often debated that issue. There I was sort of doing a job, trying to create a living for your family. Yes, with hindsight one can always be very clever, saying I could have done this, I could have done that, I should have done this, I should have that. In a certain strange way I thought by giving what I hoped to be objective and correct legal advice to these people, you did contribute in a certain way. But of course what you say, I can't argue with that. With hindsight I could have done this, I could have done that. Each of us could have said in a biblical sense, sell everything and go into the missionary field sort of thing, all of us, we could have done more. We could have done more for this, we could have done more for the poor people of the world, we could have done more for –

POM. That's not the way of human beings.

JW. If you start arguing things like that, of course, of course. I tried to say in my own personal capacity I was never cruel to anyone, in my own personal capacity I did not ever assault anyone or kill anyone, but of course that's lip service because in an indirect way you served the system which had that broad effect on many millions of people. What can I say? I didn't do it. I'm sorry. I don't know what I should have done but of course I could have done many things. I think that's what Leon Wessels said. Those were his kind of words also.

POM. At the time of the Soweto uprising you said you were in your last year –

JW. 1976, yes I was a final year law student.

POM. Was that discussed at college, did the students talk about it?

JW. Yes and no. You know a student being a student, it was final year, it was study, it was party time, it was everything, it was politics also but I think being a student one's rather naïve.

POM. Did the information filter through that 400 schoolchildren in Soweto had been mowed down by the police? What kind of message would you say?

JW. I can't remember what exactly went through one's mind at the time but I would imagine by way of trying to restructure what you would have thought –

POM. But that kind of information was made available? Did you know what happened?

JW. Obviously not all the detail. One would not have known all the detail. Also as a student you would have been busy with the good things in life, you're a final year student, you're enjoying life like hell before you start your work career and also you're very ideological. In one sweeping statement you would have solved all the problems of the country and then have another beer. Isn't that what a student is all about? You should know.

POM. I was at the University of Pretoria yesterday, I think I told you I do a lot of work on AIDS, it's one of my big preoccupations, they've an AIDS Institute at the university. It's a little office and under the office there's a cafeteria and it has a bar, fully stocked bar, the bar opens at nine o'clock in the morning.

JW. Yes, that's long hours.

POM. One could while away a couple of years.

JW. One can speculate on this, why didn't you react differently.

POM. It's a leading question particularly for an outsider to ask when the reality is that –

JW. You firmly believed, you see we firmly believed, I, not we, I, I firmly believed, you must remember that was at the time shortly after my military training, I firmly believed these are the communists coming at us. It's not merely individuals trying to establish principles of human rights. That would be the last thing on your mind. One would have said the communists are at us, they're attacking us, go for them. I mean it's a completely different mind frame at the time.

POM. I know I asked you this before but I asked it for a particular reason because it's something I've been trying to look into at a number of different levels, that I often run across people who will say, oh yes, when separate development failed the government had to think of something else to keep apartheid going and so they discovered 'the communist threat' and used that, propagandised the people, made them feel they were under threat and of course the country was never really under threat, it was used by the government to make people believe that it was. Do you believe that?

JW. You should read what General Kalugin said, if one can accept what he says is correct. He actually corroborates the whole theory of the total onslaught.

POM. Why didn't they call him before the TRC? Is he still around?

JW. Who?

POM. The General Kalugin.

JW. I don't know, I don't know where he is. I've never met him.

POM. I'm looking for him. I will leave it at that.

JW. Do you mean he never existed?

POM. No, no, I mean he's in Russia.

JW. Is he a fake? Is that what you're saying?

POM. No, no, I'd like to talk to him.

JW. Once again one can, I assume one can speculate on this for hours but the reality I would say is that that was the firm impression of the ordinary white person in this country, specifically the Afrikaans speaking people, where I come from, whether right or wrong. All through I hope you didn't understand me to say that. I've never tried to argue the right or the wrong of either side of the conflict in our country. I don't try to bring that into our conversation at all.

POM. No, that comes through very clearly.

JW. I hope so.

POM. What you can do with this transcript is go through it, correct it, there are a couple of gaps on names, places where the recorder didn't pick up something, to go through that and when this one is done I'll have it sent on to you and I may be in touch again. It's always a pleasure talking to you.

JW. Thank you.

POM. I've learnt a lot and it's helped me. I think what comes clearest to me is like when a war is dirty it's dirty.

JW. All is fair in love and war.

POM. And the cycles build within themselves where people become entrapped in situations of where their options narrow to the point where it's not a matter of saying do I have the option of A, B, C or D. Slowly the options disappear and it becomes a matter of self survival.

JW. It's easy to speak as one sits here. I keep on saying had I been in the position as a youngster, had they taken me to the real war situation, I would, I assume, have done the same, killed people for my country, for the purpose that I believed in. I would have done the same whether right or wrong.

POM. Had you been a black person?

JW. Yes I would have had a go at the whities of this country. That I've said many times in my life, and as I say, I still say that now. To me it's still a situation, we're six years into the new SA and we whites, we still have a good life and the blacks they still don't have. Exceptions always but for the vast majority of blacks in our country I don't think that much has changed in their day to day life. And the same with me, I've continued to a large extent with my lifestyle. So the unfairness of the situation is continuing.

POM. OK. On to Leon.

The O’Malley Archives

22 Sep 2000: Wagener, Jan