This resource is hosted by the Nelson Mandela Centre of Memory, 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 It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
23 Sep 1997: Kriegler, Johann
POM Let me start, Judge, with two questions that refer to our previous interview and they both refer to comments made, you've probably read or run through this book.
JK Very briefly browsed but not studied.
POM One statement is, and I'll read the statement, it says: -
"When counting reached the half way stage NP officials approached Judge Kriegler with the demand that the irregularities they had documented should be rectified before final results were declared. They felt confident that had the election been conducted rigorously by the rules of the NP the vote would have been at least 25% and that the election was being jeopardised by large scale fraud. Kriegler reportedly said he did not wish to rule on this and asked the NP to come to an accommodation with the ANC. The ANC's Secretary General, Ramaphosa, then reportedly consulted with his party colleagues but came back with a refusal to deal. As the ANC's percentage of the vote crept steadily up to over 65% further meetings took place. At this point the NP made it clear to the ANC that it was not prepared to see an ANC two thirds majority obtained by what it regarded as fraudulent means. Rather than accept that it would go to court to secure an interdict declaring the election invalid in light of the multiple abuses detailed in its affidavits. The apparent result of this threat was to put the election on hold. Certainly it is true that at this stage there occurred an otherwise unexplained period of around 48 hours in which no further results were declared and vote totals stood still. Then came the final result with the ANC percentage suddenly dropping to 62.65%. In order to bring the party's total down to this level from 65.5% that it had stood at previously would have involved a reduction of some 560,000 votes or over 785,000 votes had the ANC achieved its magic two thirds towards which it seemed to be heading. The final result, according to this account, was thus at least partially bargained although the exact process by which this sudden fall in the ANC vote achieved remains unexplained."
JK What do you want from me?
POM Just a comment on it, is it accurate?
JK No of course not, it's a collage of some fact, some lie and a great deal of reaching conclusions. The fact of the matter is there was a 48 hour standstill in the announcement of vote counts. The author knows or ought to know what the reason for that was, it had nothing to do with any negotiation between the parties whatsoever. The counting process had been polluted from the inside. We had to stop immediately on the whole programme of counting and switch to the back-up which the monitoring division had which was a steam driven collation exercise compared to the much more sophisticated front line counting system, not counting, collation at head office, and that caused the 48 hour standstill and that was announced at the time and the Auditor General sent in his people and the government sent in their people and the ANC sent in their people and the political parties were fully aware of what had happened at that stage. I think that was on the Tuesday night, the Wednesday of the count week. There certainly were discussions between Ramaphosa and Roelf Meyer of which I was aware.
The suggestion was made by the National Party, particularly in Northern Province and in Eastern Cape that there was massive fraud by which there were more votes being cast than they thought should be cast, or that there were less of theirs being counted than should be counted. I at no stage ever intimated that the commission would not respond to that. On the contrary the attitude was, "You bring me evidence and we will most certainly deal with it." That was my response to the NP complaints in those two provinces. It was exactly the same response that I gave to the ANC when it complained about the alleged election stealing that was going on in KwaZulu/Natal and exactly the same as was my response to the Democratic Party that was complaining.
The proposition I would like to put is that the theory of a major conspiracy to pervert the election results is ludicrous in its basic assumption which must include a proposition to the effect that dozens, if not hundreds of people of every political persuasion and various walks of life including representatives of each and every of the reputable accounting firms in the country were a party to a plot to deceive the general public and there has not been one single item of evidence to that effect and not a single one of the perceived grand conspirators has seen fit in the three years since to disclose the truth as perceived by the illuminati like Mr Johnson.
POM You were talking about or had mentioned conversations between Ramaphosa and Meyer?
JK Certainly. Roelf Meyer and Cyril Ramaphosa were certainly discussing the possibility as proposed by Meyer that the ANC agree to abandon 300,000 votes in Northern Province and 200,000 in Eastern Cape or vice versa in order to allow for the perceived election stealing, perceived by the NP. Ramaphosa said that he would consider it and put it to his people, he reverted subsequently, whether he talked to anybody or not I cannot say although I doubt it. My attitude throughout that period was, gentleman you can agree on what you like, the IEC has got an obligation in terms of the Electoral Act and under the IEC Act, you've got to give us the facts, if you don't give us facts to justify docking somebody certain numbers of votes we can't do it, go and get me the facts. Of course, no such facts were ever produced.
POM But it would have been your impression that Meyer wanted to reach a settlement but that Ramaphosa simply wasn't going for it?
JK Oh yes. Ramaphosa was holding the cards and he wasn't amenable to a settlement and there was no reason for him to settle I don't think. I didn't think then and I still don't think now that Meyer could produce evidence of massive electoral fraud. I don't think there was massive electoral fraud, incompetence certainly, mistakes yes, errors in counting yes, but massive fraud certainly no. And I don't think that there was any incentive, any quid pro quo for Ramaphosa to agree to it. He was going to win anyway and Meyer couldn't come up with any alternative. Not one of the parties was prepared to actually go to litigation. The nearest was the DP whose leader, to his eternal credit when I suggested that if they want to go to court they know that they're risking the transition for which the DP had fought for many years would be jeopardised, and he acknowledged that and instructed his underlings to withdraw the threatened litigation. They weren't settling anything, they were at one another's throats and at the IEC's throat, not in a komplot with us. If the word komplot isn't understandable -
JK It exists in Afrikaans and in Russian, in Russian and in my language, Afrikaans.
POM It does?
JK Oh yes, a komplot is a major plot.
POM I must remember that. Then I read the passage, also from Johnson.
JK Oh about the military?
POM I'll read it just so I have it on the record. He said: -
"The IEC was perhaps more effective than most institutions. Even so it was largely rescued by white business on the one hand and the old white led defence force on the other. The army provided 6000 troops to perform crucial election duties and deployed many thousands of others in protection and reaction roles. In no fewer than 41 of the 46 sub-regions of the country the army provided support and storage facilities, guards, escorts, transport for ballot boxes and the like. It and the South African Police also provisioned the IEC with everything from beds to electricity generators while the army printed over 650,000 ballot papers itself. The South African Air Force was also quite crucial. It conducted 175 special missions during the election, provided airborne election observation, erected satellite dishes and communications networks throughout the country, flew in over 600 tons of ballot papers from Europe and repeatedly solved critical logistical problems by emergency flights."
JK As I said before and I will repeat as briefly as I can, it's a collage of truth, falsehood and unjustified conclusion. Of course the military played a major role and they were included in the planning from day one, as was the police force. Not one ounce of ballot papers was flown in by the Air Force from abroad, the contract with the printers in Britain included delivery at the Air Force base at Waterkloof from which point the distribution was to be done by the military. That had been planned from the beginning. The suggestion that it was a last minute rescue operation is nonsense. We had planned from the beginning that major distribution would be done from the Air Force base by military aircraft and by military land vehicles and others, including the postal services and private contractors. The military played a major role, as did the police force, and the suggestion that they came to the rescue of the IEC is just false.
The suggestion that business stepped in at the last minute and saved the IEC is not based on one single fact that I have seen. Of course major business played a big role. One of the ironies incidentally is that the IEC was severely criticised at the time for not getting in experts from business and that criticism was in relation to the logistics and the distribution of voting materials. Now that was done by a representative of the biggest retail distributor in the country who had been seconded to the IEC and did sterling work with his team that he brought with him from the private sector. What broke his plan, and damn nearly broke the back of the election, was the introduction of some 560 additional voting stations in the last week of the run up to the elections that had to be provisioned and that meant stripping the strategic reserve of ballot papers and other voting material down to nothing, we had no reserve, because we had to supply KwaZulu/Natal. We couldn't cut ballot papers out of the air at that stage. And the second major crack that the planning got was that we had to produce 80 million stickers and distribute them to 10,000 points in three or four days. We couldn't do it. It broke down, not because we were trying to do our own little thing as the Johnson's of this world would think, with incompetent Afrikaners and blacks instead of going to the clever men in big business. We had big business. They couldn't do it, not because they were bad but because the job was insurmountable.
POM I had said it was an irony and you said the irony was different but that -
JK The irony was that the biggest goof, perceived, was by the representative of the biggest private sector operator in the country. Of course it wasn't a goof.
POM The biggest goof perceived?
JK Was that we couldn't deliver the ballot papers to the voting stations and that was planned by big business.
POM And they couldn't do it.
JK They couldn't do it, and they couldn't do it for very understandable reasons.
POM What I want to refer to I suppose is the military and the police had for so long been identified with the structures of apartheid and the imposition of oppression and yet a smooth transition, in fact a transition, an election could not have been held without their full and absolute co-operation at every level.
JK No doubt at all about it.
POM So in a way they're the unsung heroes.
JK They're not unsung heroes. In the commission's report they are very much sung. A fortnight before the election we persuaded the political parties to change the Electoral Act yet again so that we could provide for special votes for soldiers and policemen because we realised that they were the heroes and that they were essential. We didn't have a single voting station that wasn't protected by either the police and/or the military. They broke the back of the right wing within the last ten days before the election. That's why the elections could take place because they were true to their jobs. But then of course it didn't surprise me, I come from a military background. I didn't think that there would be treachery. There would be reluctance yes but their job they would do eventually.
POM When you hear what comes out at the Truth Commission regarding the activities of some policemen and - ?
JK It's not surprising.
POM Do you think that it's not put in, what would I call it, a more comprehensive framework of what ultimately the military and the police did to ensure that there was a peaceful transition?
JK Mr O'Malley, you're embarrassing me because I don't want to talk about the TRC, that's not my area of expertise, it is politically contentious. I've been a proponent of the concept of it for many years and argued for it in court as I think it carried some weight. We were in a civil war at the time and there were very, very nasty things being done on both sides, more on the side of the government. They had more resources, they had more nasty people. I think they had more skills in the dirty tricks of civil war. I don't think I have heard much or read much of the evidence before the TRC that came as any surprise. I knew it was very ugly and in fact I had said so publicly at the time. But once the settlement had been reached, once there was an agreement that we would go into the transition by means of the transitional mechanisms that were created by the government of the day and the protest movements of the day coalescing into these transitional bodies and the election was part and parcel of that rite of passage, the military as a body, I don't say each and every one of them, and the police as a body, once again not each and every one, but as an institution of state put its weight behind the election, there's no doubt about it, and did so competently and honourably.
POM There was one other point I think I may have missed that's just of historical, anecdotal - a nice anecdote that you said on the evening of the 6th, the Friday, when you were going over to your sleeping quarters in the Carlton Towers -
JK Oh yes at one o'clock in the morning, the ANC had hit 67% and I was phoned at five, half past five to say it was dropping because then when I got back to the office, having had some two or three hours of sleep, it was then at 65% and going down and it went down perfectly simply, not from Mr Johnson's postulated reasons that we were managing to steal hundreds of thousands of votes from under the noses of the Deloitte & Touches and Coopers & Lybrandts who were there and watching everything, but simply because their opponents' heavy areas were coming in. The show grounds in Durban, the show grounds in Pretoria, and then later in the morning from about six o'clock onwards from Empangeni and deep KwaZulu.
POM These were all places where there had been logistical difficulties?
JK Major difficulties in getting the count going. We had sent Dikgang Moseneke, who was the Vice Chairman, he had gone up to Empangeni to resolve that, Charles Nupen had performed miracles in Durban. He's a genius at mediation between confrontational types. He resolved the battle in the Durban show ground counting crisis and no sooner had the quivering remains of Charles landed in Johannesburg back from Durban than we sent him to Pretoria and said, "Come on, so far you've done well, go and settle that one." And he got it going. I got the show grounds going here a little earlier but what it needed was some boldness, somebody from the outside who could come and show those who were involved in the enmeshed battle with one another that the cause is bigger than all of you, let's get on with the job. But the suggestion that we then decided and managed to do a devious plot can only have been written by somebody who wasn't there.
POM Though Meyer would have liked to have done a plot?
JK Of course he would have. Ultimately I don't think so. Ultimately I think Meyer, as he said at the count because he was at the count when we announced the count the Friday afternoon, Meyer was there, Meyer was, I think, well pleased with the result which gave them 20%, just over 20% as I recall it, entitlement to an Executive Deputy President, entitled to a major presence in the cabinet and combined with other parties the capacity to block constitution making. I think a major component was also their winning Western Cape. I think they thought they were going to win Northern Cape as well and I think it was a disappointment to them. It was touch and go there. It's a very sparsely populated area and I think a little bit of finger pulling in the organisation, the logistics of the party structures could have made the difference but it didn't.
POM You made an interesting point in the letter that you sent me when you said that it is curious that none of the proponents of the grand conspiracy theory, including those with academic aspirations, publicly reassessed this theory in the light of the local government elections. Have there been any studies done in the last year? You wrote this in September last year?
JK Not that I have seen. What I have seen, Mr O'Malley you must excuse me, I'm bitter because I think that the academics and the senior journalists have let the country down. I don't think they've done their job and I am bitter. I have seen superficial comment, I have seen glib journalese but true academic response, research based on hard work I haven't seen. It would probably be very, very useful to the new Electoral Commission if somebody could have done that, not that somebody could have come up with proof of a plot but it may well have come with indications of where the PR system went badly wrong, how somebody managed to pervert it. We didn't tumble to it, the party politicians didn't tumble to it but somebody could have done some good hard work and come up with the evidence. It would have been very useful. They didn't. What they have done is on the census. On the census there have been three or four public utterances, at this stage still pretty off the cuff, not really considered. One I followed up with the chap who wrote it who is an excellent fellow academic, Tom Lodge, who said that the statistical figures seemed to show that the IEC had over-estimated the number of voters and therefore there must have been a lot of ghost voting.
POM Over-estimated the number in 1994?
JK That's right, that there were actually less people in the country than we had guessed and therefore when we came up with an 86% overall turnout it must have been over 100%. Actually when you go and look at the demographic profiles of the preliminary census results that are out it's just a superficial comment, it's not a true comment. The moment you have a look at it you see that the major mistake that was made, if mistake it was, was an over-estimating the 0 - 5 and the 6 - 10 year olds in the population. In common with urbanising communities throughout the world one thinks that your mortality drops before your birth rate drops and that your pyramid broadens out at the bottom whereas ours shows a narrowing which I think is magnificent news for the country. It shows a real prospect for the per capita income to grow and everything else is on the up and up. Anyway, that was not picked up and people said, well there was a gross over-estimate of the population and therefore the IEC results must be bad. I don't think that that is correct. There were a number of those superficial comments. I haven't seen academic analysis of the electoral results casting significant doubt on anything. I've seen the Johnson type. I've had recent correspondence with an academic of some repute who at an international conference suggested that the election results had been cooked. I followed it up with him. I said please tell me, and three letters later I abandoned the exercise because when an academic purporting to be an electoral expert relies on the Business Day and the Weekly Mail as sources of scientific data, I said, "No I'm sorry, I draw my own inferences that you have no basis for saying what you said. I'm a stubborn fellow but I'm pretty open minded. I'd love to know where people managed to put one over on us because a party to a fraud I wasn't."
POM What are the lessons as you're restructuring the process for the election of 1999, what are the lessons that you have learned from 1994?
JK I can't answer that honestly because if I had to answer that I would have to answer it with a false modesty, the suggestion being that things have now appeared to us on the way back from Damascus. It's not so. It stuck out like a certain part of a dog's anatomy from day one that you cannot run an efficient election in four months, it's not on. So, 'lesson number one', start in time. Lesson number two, you cannot run an efficient election without the full involvement of the governmental agencies of the country. You can't try to do it with ad hoc employees whom you've got to press-gang at the last moment and try to train. You need to use the government structures. That's not news. We knew it and this time round, God willing, we will be using the government structures all the way down to local government structures or local central government representatives like magistrates courts and the like.
Number three, you cannot hope to run an election without a voters' roll. It's not news, everybody knew it at the time but there wasn't time for a voters' roll. This time round there is going to be a voters' roll. Number four, you can't hope to run an efficient election with an organisation that you tack together hurriedly at the last moment. You need people who have trained, who have studied, who have been tested to see that they have absorbed the training and they must be tested in operation with one another. That's not news. Everybody knows that you can't create a business whether it's selling beer or distributing condoms or running an election in four months, you need time. We've got more time, it's not enough for an ideal operation but it will be done.
POM On that I think I'll let you go. I hear the thunder.
JK What transport have you got?
POM I've got none.
JK Where do you want to go?
POM I'm just going to Melle Street. Just one question. There will be free and fair elections and whatever, yet the strength of the ANC is so overwhelming that it's what would be called a one-party democracy. Does this worry you that politics might cohere around racial lines and that what you do end up with is essentially a one-party democracy where the parliamentary opposition is there but it's not effective and where perhaps the main instruments of opposition have to be through the development of the organs of civil society?
JK If you say does it worry me, obviously the answer is yes. One would be a fool if you were not concerned about it, if you weren't worried about it. I must tell you I don't see it happening like that. I don't believe it's blind optimism. I'm a pretty old fellow and I've been around. I believe that for the next decade ethnicity will play a major role in voting patterns. I think it's impossible for it not to be like that. The only white party of any force is the ex-government. The only party of any force, other than the ANC, is ex-government with all of its baggage of the past. The Democratic Party with the best will in the world is an elitist, middle class, upper middle class, suburban party. But I do believe that the ANC is not a political party either. It's a collage of many strands that co-operated in the liberation struggle that is being kept together at the moment by a number of factors, one of which is, of course, the messianic image of its leader, the other is the pressure of the immediate past, of the forces of darkness as they see it and they had to overcome, which is kept alive to some extent by the TRC revelations and the horror of the shared repression that they have. But I also believe that there is a very real prospect in the next five years of there being an ideological split within the ANC. I think that to try to cover all of its constituencies under one blanket will prove impossible in the very near future in terms of the history of peoples, and I think it's a healthy move. I think it would be politically healthy for the business orientation and the labour orientation to go their several ways and pursue the interests of their several constituencies without the trappings of comradeship born of history.
POM Does it worry you too that it might perhaps gain more than two thirds of the vote in the next election or do you think that's less likely?
JK I don't think it's healthy. It doesn't particularly worry me. I think as at present if the ANC really wanted to push through constitutional amendments it would do so, it would get the support of the PAC or some elements of the IFP, NP. I am much, much more concerned about the hard business of running a country than I am about the politics of the country. I am very much more concerned about managing the economy, managing the administration of government, the efficient distribution of resources and application of limited resources to where it does best. Of course the law and order issue is one of major concern. As a lawyer my whole life it concerns me a great deal that the forces of maintenance of law and order are in disarray. It worries me for two reasons. I see too many temptations for cheap solutions, quick fixes: reduce the prospects of bail, introduce minimum sentences, lock people up and throw the keys away, even bring back the death penalty, as being ways of meeting the breakdown of law and order, whereas I know from many years of work in the field that law and order starts with jay walking and dropping cigarette butts in the street and jumping stop streets and skipping traffic lanes and not paying your income tax and defeating the ignorant newspaper vendor by giving him a coin that looks like one and is the other. Law and order is a holistic concept in which it's very, very difficult to separate out taxi drivers who stop in the middle lane of a freeway to pick up traffic from taxi drivers who convey bank robbers. Law and order is a total concept. And the gross disparities between the haves and the have-nots being what they are, unemployment being as high as it is, the misery being as deep as it is, it takes a good deal more than stiff sentences and strong arm cops to restore law and order.
And I haven't even addressed the ideological history that we have, that for 20 years the ANC and its allies promoted a spirit of civil disobedience. You don't reverse that overnight. It's very difficult. The Masakhane campaign has not succeeded and I didn't think it would succeed in a hurry. It will take time. And of course there are arms, automatic firearms, you can buy an AK47 for R25. If you're hungry and you're desperate and you grew up in a home where it was regarded as smart to beat the system then you'll get your own for R25. So I'm not worried about the ANC being a one-party state. I'm much more worried about society in general forgetting civil libertarian principles that were bought very dearly and flogging them for a quick fix, security.
POM OK. Thank you ever so much for the time. You're a terrific interview.
JK I'll say on and off the record, but I want to say it with great emphasis, I suffer the most profound, profound, profound frustration when the Johnsons of this world will not have the elementary courtesy, fairness, to say, Kriegler this is what you do, or, come on let's sit down over a beer, informal, jackets off, let's get to grips with this one, let me see your records, let me go and check on the IEC dubious recording system. I find it very frustrating that I am deprived of that opportunity. And it's started again of course in relation to the next election. I know there is nothing I can do about it. I had a journalist phone yesterday and he said, "My editor says that the next elections are going to be a total disaster. Don't you want to give me an interview?"