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 It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
13 Mar 2002: Chaskalson, Arthur
POM How did you become involved in - ?
AC It would have started I think in 1990 when George Bizos and I, who were together at the Legal Resources Centre at that time, were asked if we would join the ANC's Constitutional Committee. I wasn't a member of the ANC but I had, as indeed George had and I believe he also wasn't a member of the ANC, we had both defended members of the ANC for 30 40 years or more, many of the people, and they asked us if we would join their committee and, George would have to speak for himself and he's a person well worth speaking to because he has a formidable memory unlike me, I have a rather impaired memory.
POM That's why you're Chief Justice.
AC Well no, some things I do quite well but my memory is not I don't remember details that well, they just fly away from me and when I'm with somebody who talks about them then things come back to me. I do remember this incident very well and I remember being asked and I remember saying yes, it would be a great honour to join that committee but I wanted one thing and that was that I wish to retain my own independence, I was not a member of a political party and I felt that I could give better advice if I remained independent and didn't feel obliged to follow any political line. I felt totally committed to everything that the ANC stood for in its programme and transformation of the country and I believe they knew that as well I wished to retain didn't wish to be within a party structure where I would have to follow any party line at all, that I could remain independent, express my views quite independently of any decisions which might be taken and if needs be would engage in public discourse and express my own views. They very generously accepted that without any hesitation at all.
George and I then went up to Lusaka. The ANC had been unbanned at that stage, I think it had been unbanned, I'm not sure, it must have been unbanned. It was very early in 1990. We went up to Lusaka and we met with the exiled members of the committee. George and I went up, I think Dullah Omar went, I just can't remember all who were there from inside at this stage. That was my first meeting when the exiles and the locals, as it were, the people who had remained within SA, were brought together to talk about it. I remained a very active member of that committee thereafter. I attended all its meetings, I attended all its conferences.
I was then during the course of the year brought into the Negotiating Committee at the ANC head office. I became an advisor to them, not at the committee level but as an individual attending meetings of the Negotiating Committee. What its name was at that stage it was a special committee set up to deal with the negotiations. Hassen Ebrahim provided the secretarial services to that committee and he subsequently provided became the principal functionary at the Constitutional Assembly but he provided the secretarial services and managed the committee and used to call us to meetings. Not all the members of the Constitutional Committee were there. I can't remember who else but it was a meeting, it was really Cyril Ramaphosa and Valli Moosa, Joe Slovo, Jacob Zuma was there quite often. I don't remember everybody but it was really a place where principal decisions were being taken and they needed advice.
POM When was the first time your life and Mac Maharaj's crossed?
AC I'd have to go back a long time. Mac, of course, was on this committee, he was a very important member of that committee. It's really difficult to say because it's extremely likely that our paths crossed at some stage in the 1950s but I can't be certain of that. You would have to ask Mac. I remember Mac's trial. I didn't defend him but I remember the trial.
POM This was the trial in 1964?
AC Again, I don't remember the dates. I would have been in the Rivonia trial at that stage. I remember Mac's trial. I knew him but we didn't really know each other well at all. I think we probably did it's difficult now to recollect whether we actually, whether our paths actually crossed at that stage or whether it was just simply that I knew about him because of the work that I was doing at that stage. He would better be able to tell you than I can. I don't remember. Certainly it wasn't a close relationship.
POM I'm taking you forward to 1990, negotiations had begun.
AC From the very beginning, as soon as I got involved in that. I can't tell you exactly when I met Mac but as soon as I was brought into the mainstream out of Constitutional Committee and right into the heart of the negotiations, the policy negotiators, I was certainly working with Mac at that point but I can't remember when it would have been 1990 without any doubt.
POM He was arrested in June 1990.
AC Obviously got things conflated, it went over a long period of time. I wouldn't have seen him before I would have seen him when he got out of jail and I've lost the sequence there.
POM Do you remember - ?
AC I remember the incidents around Operation Vula. I'm a little surprised as far as time is concerned. I remember the arrests and I remember the fuss around Operation Vula. I remember that Mac was actually quite angry about what had happened.
POM Angry in terms of?
AC The arrest. My sense was that he had been quite upset about the fact that his arrest and that whole procedure had been allowed to happen without adequate protest being made.
POM That's the opinion of quite a number of people.
AC A sense of the thing. You know it's very difficult for me to know Mac was very much involved in this whole management of the negotiations and it's very difficult for me now to go back and say at what stage I met him for the first time. I would have put Vula a little earlier than you've said it, clearly my memory is at fault as far as that is concerned.
POM When Vula broke - ?
AC I didn't have anything to do with Vula in the sense that I wasn't involved in anything around it. No, no, I don't think it presented a legal problem for me in the sense that I don't think anybody spoke to me. I must really try and work out when it was that I got pulled into the I'm pretty certain it was some time, certainly during 1990 that I was asked to start attending those meetings. I can't really remember when that would have been because the early part of 1990 would have been involved with the ANC Constitutional Committee meetings. We had a lot of work to do at that time and there were a lot of conferences which we were attending and organising, the conferences on Bill of Rights and we were drafting a document on the Bill of Rights. So there was a lot of work going on at that time.
I know that I was asked to attend the first CODESA meeting as one of the advisors to the ANC and I didn't go to it, I couldn't go to it, for a variety of reasons I couldn't go. It was a big public occasion, there wouldn't have been much for me to do on that occasion and I had promised my wife we were going away and so we went to Cape Town.
POM Your wife so far?
AC No, no, it was just something - I had been working immensely hard during the year because my work at the Legal Resources Centre was continuing, we had this and though it was a great historic occasion it was all really show. There wasn't any need for advice at that stage. The question was, did I stay in Johannesburg and sit behind someone and say nothing, because I wouldn't be allowed to say anything at that stage, and nothing was going to happen, or did I go down to Cape Town and be with my family which I had agreed to do. I didn't think that I was letting anybody down by not going to that formal opening. So that's where I went.
I had already been asked to be and they were only allowed about two advisors I think. At that stage I must already have been asked to act as a principal advisor by then. Now that was in December and that was when I hurt my back because I remember it very well, my back in that December. I think that during the year 1990 I was already attending some of these other meetings but I can't be absolutely sure. It may have been just after that.
POM When Operation Vula was revealed in the circles that you were then advising or communicating with or whatever, was it a big deal, something that was peripheral?
AC I wouldn't say it was peripheral because obviously there were important people involved in Operation Vula and somehow I think it was perceived as being a threat to the negotiations in some way but it didn't stop the negotiations. What was going on was going on at that stage. The negotiations got much closer after the formal CODESA meetings started and that would have been early in 1991 there was that grand opening in 1990 but the actual work started, when I say the actual work, the actual meetings of the CODESA group started early in the new year.
I think that Operation Vula was I wouldn't actually have got right into the heart of the events at that stage, the time of Operation Vula. I must have been brought in to the centre of what was happening there a little bit later because after that I accompanied them to all the bilaterals. Whenever there was a bilateral between the ANC and the NP I went with as the legal advisor and even when they had small little groups, and I think Mac Maharaj was talking about in Cape Town when there were about four people, it was Joe Slovo, Mac Maharaj, Valli Moosa and me I think, wherever they went for negotiations they took me as their advisor. So I went to many bilaterals in different parts of the country bosberades to all sorts of strange places where I served as an advisor. That started moving forward towards late 1990, then from 1991 onwards I was right in the thick of things right up until 199- Well yes, I did actually continue, my role really stopped, there wasn't that much for me to do because the elections were 1994 but the constitution was, the draft constitution was adopted at Kempton Park in November, curiously I was out of the country again at that stage, I had had another commitment which I had put off once and I couldn't put it off a second time, so on that final day of the celebrations and the parties I was out of the country.
I came back at the end of November and they were still going and then I was asked to go down to parliament to check everything that came out, if there were any changes that were going to be made in parliament. There were two of us, the government law advisor was a man called he was a parliamentary draftsman, a very good person.
POM Fanie van der Merwe?
AC No, he was at that stage a principal parliamentary draftsman and he would be responsible for the formulation of any changes which might have come through as a result of the parliamentary debate and I was to be there to advise them, advise the ANC, as to whether any of the changes, if any changes were made if there was any significance in it. So I had to be down in Cape Town for that at the time of parliament. At that time I remember very clearly that the resolution on reconciliation and national unity, which was a resolution which was incorporated into the interim constitution, was produced. It wasn't drafted at Kempton Park at all.
POM This is the post-amble?
AC The post-amble, Albie calls it the post-amble. Sydney Kentridge says there's no such word. That was not drafted at Kempton Park, it was drafted in Cape Town and I remember very clearly we were sitting there, we were working on this final draft and doing tiny little things to bring it into shape and Mac Maharaj came in. He may have had Fanie come in with him. He handed it to us and said, "Do not change one word. At last we've reached agreement on this and nothing can be changed." We just put in the post-amble, as we called it, into the document so that was done, Mac had been involved in that commentary. It didn't go through any of the committees, any of the formal public committees.
POM That was the issue, that was amnesty?
AC Yes, the one which dealt with amnesty, yes that's the one. It deals with many things but
POM Do you recall the debate about it within the government of national unity which evolved around that?
AC Those debates took place at different levels and at different times. The whole issue around the government of national unity was one of the tasks which the Technical Committee on Constitutional Matters, of which I was a member, had to deal with, we had to formulate the provisions of the interim constitution dealing with that. We would do so on instructions on the Negotiating Committee. We would go into the chamber and we would get our instructions and sometimes it would come in writing and sometimes we would attend discussions and listen to the discussions and go back and come down and try and formulate. There were discussions within the committee itself as to how these matters would have to be dealt with and I think in the end we agreed that that was a matter which would really have to be left to the political negotiators to decide. My recollection is, and one would have to go back and look because there are reports of the Technical Committee, you must have seen those reports, but at each stage of the process of the evolution of the constitution the Technical Committee would prepare reports as to what it was doing and it would prepare drafts and it would work in sections, draft chapter one, draft chapter two, not necessarily in that order but they subsequently became chapters. They were prepared, they would go into the Multi-Party Negotiating Forum chamber and they would be publicly tabled and they would be debated. In the light of the debate they may be refined or rejected or something else would happen. And so the constitution was built up, the interim constitution was built up in that way through drafts from a Technical Committee, going through to the Multi-Party Negotiating Forum and there was a sort of a two-way process and at a certain stage quite a lot of important decisions were taken at bilateral discussions between the ANC and the NP. If it was really difficult the ANC and the NP would have a bilateral to discuss how to manage a particular situation. The two people who would attend that would be two of the members of the Technical Committee, one would be Francois Venter who was the legal advisor to the NP, now professor of law at Potchefstroom University, I would go for the ANC at those bilaterals. Though we were both on the Technical Committee the other members of the Technical Committee knew that we were attending those meetings and occasionally some of them would attend meetings of people who wanted to see into that but when we were on the Technical Committee we functioned very much as lawyers, indicated what the position of a particular party might be but we would look at it to try and find solutions and we didn't get instructions at that stage. We would work together in trying to resolve the problem.
POM But this was one of the key cornerstones of the government of national unity on how decisions would be taken in cabinet?
AC That's right. I think it was largely a function my recollection is at the end of the day nobody would write - I'm not entirely sure, my sense is that you will not find any document at the end of the day which deals with this. I may be wrong, I may well be wrong. I think that cabinet takes its decisions by consensus and of course the ordinary rule is that at the end of the day the Cabinet Chair who is usually the President or the Prime Minister will say well that's the decision, after listening to everybody. And if you don't agree with it you leave the cabinet.
POM That's the way the NP operated.
AC Yes, and I think that's the way lots of parties operate. I would be surprised if you find a document anywhere dealing with how those decisions are to be made. I think it was just left on the basis that there was going to be a cabinet, the majority of the cabinet would reflect the majority party and at the end of the day decisions would be taken and that there would be a political necessity to honour them, certainly to try and achieve a consensus and on other issues there may be, the majority party would I don't recollect any firm and final document dealing with it but I may be wrong and one would have to go back and look at some of the records and one would have to look quite importantly at some of the documents which, there were some documents which came out of the bilaterals which aren't necessarily public documents and the person who's got all the records is Hassen Ebrahim.
POM He told me that he was writing a second book.
AC Well he's got all the records, he sat there with a little computer and he was making his notes, going through every bilateral, Hassen was there sitting with his typewriter preparing notes and so on. I've never seen it, I don't know what he said, I don't know how accurate whenever you see what somebody has recorded of a long conversation you sometimes say, well I wouldn't have put it that way. I would be surprised if there was a detailed document dealing with how cabinet decisions were going to be taken but that doesn't mean that there isn't one and it doesn't mean that it wasn't a subject of discussion at a high political level between the really major political actors. It was absolutely essentially a political question but it's not in the constitution and it's not in any legal document.
POM How did you find even as a lawyer but involved in bilaterals, many bilaterals between the ANC, any of the discussions that you were present at of there being this dual strategy to negotiate with the ANC and on the other hand to decimate them? Did that ever surface in discussions between participants across a table?
AC There was a time when all the discussions were suspended. That was round about the time of Boipatong. They were actually suspended and the channel was kept open with Roelf Meyer and Cyril Ramaphosa and everybody knew because work didn't stop, people kept on going on even though there were no negotiations taking place at that stage and obviously there was a great deal of tension. At many stages in the negotiations there was tremendous tension. I mean CODESA collapsed, CODESA failed in a sense. Well when I say it failed, it didn't achieve the goals which it had set itself and that was to get particular consensus around particular important issues which were going to be finalised and announced publicly in a public gallery. At a very late stage it failed. One of the central issues there had to deal with the
POM Percentages over the bill of rights and
AC Yes, the whole percentage thing and what it meant, what it meant to have those percentages, what the implications of those percentages might be for the future.
POM It was August when violence began to break out. As legal advisor to the ANC did anyone ever accuse anybody across the table of being engaged in a dual strategy, or was everything very civilised?
AC No, you've got to my own role became much more actively involved in these negotiations probably round about, I think in 1991. I think that most of my time in 1990 was spent with the ANC's Constitutional Committee working on their draft. We had to have a draft constitution, we had all sorts of drafts which we were preparing at that stage and I don't think at that stage we were down to the sorts of nuts and bolts that would require me to be at bilaterals because it really only got down there when we got down to the technical matter of what the documents were going to look like, that I was called in. So looking back at the time frame, though I know I had been asked to go to the opening of CODESA as one of the advisors, there were to be two advisors and I was to be one of them, I don't think I had been engaged in bilaterals before that. I think the bilaterals before them were largely about political issues. You had your meetings in Cape Town and in Pretoria around
POM Going into 1991 when the working groups were operating.
AC As soon as you started getting into the details of what was going to go into the laws, what was the constitution going to look like, what are the intermediate structures going to do, how is the transition to take place, once one had moved into that stage I moved away from the Constitutional Committee, though I didn't leave it, but most of my time was now spent around the Negotiating Forum, in CODESA, later at the Multi-Party Negotiating Process and at the ANC's head office at Shell House where I would go to their meetings. Every week there was a meeting which I would attend which would deal with stuff.
Now at that particular time though there were obviously moments of great tension and not complete trust on both sides, I don't remember, I really don't remember meetings at which there was overt hostility in the sense that people would become aggressive to one another. I'm quite sure that sharp words were passed at times but on the whole there was an overriding need to keep the thing going and I think everybody saw that but what people might say away from the negotiating chamber was one thing but while they were together and discussing they really managed the thing extraordinarily well.
POM But you had to have as a legal advisor an understanding of what the ANC's understanding was of what the government's strategy was. It's still built into the ecology of the ANC to this day that the government was doing two things. In discussions you had both with ANC people or at bilaterals the question never was overtly addressed or nobody hurled an accusation to say, we know what you people are doing, you're burning our townships, the IFP and the police are in collusion?
AC But that was said at the negotiating chamber. At the time of the raid on the Transkei when there was that raid of the police on Inkatha there was a public the negotiating chamber actually called the police, there was a whole scene at the negotiating chamber. So it wasn't that it wasn't mentioned but it was very, very well managed. There was actually a public debate around that incident of the raid on the Transkei where people were, I've forgotten when it would have been, whether it would have been during 1991. You remember the incident of the raid on the Transkei where people were killed I think in the Transkei, where the police raided homes and there was some suggestion of some plan. The police said that they had information that something improper was taking place, I can't remember the details.
POM In your consciousness it doesn't surface as something that was, not prominently - ?
AC I think there was always at one level a degree of suspicion. I don't think there was ever complete trust. On the other hand there was a willingness to go along and a willingness to talk openly and we had sufficient trust to negotiate. But I do think that there was always the concern of protecting your back, as it were. I don't remember I actually don't, you see this is where I don't recollect incidents where somebody spoke out loudly accusing somebody in the NP of doing something improper but there was always a sort of sub-text present that you needed to be extra careful about everything that was being done and you didn't take for granted that things would necessarily reach finality. I think everybody realised that at a certain stage there the political dynamics were such that it was going to happen. I just don't remember incidents where somebody leant across a table and shouted at someone. I have no doubt that there would have been voices raised at times.
Ramaphosa is a very, very skilful negotiator and he tended to be the principal spokesperson though he depended very heavily both on Joe Slovo and on Mac Maharaj. They were influential in what he was doing but he would be the person who would speak and he's a past-master of looking cross and being angry and raising his voice and dropping his voice, but not in the context of a full-scale fight. He was always much too much in control to lose control. If he expressed anger it would be very controlled anger. He's very, very good.
POM Anger for a purpose.
AC He wanted someone to understand that he was angry but he wasn't so angry that he didn't know what he was saying or couldn't control what he was saying. He's a very, very skilful negotiator.
POM Do you think, looking back on the negotiations, that the government completely underestimated the calibre of the negotiators that the ANC would bring to the table?
AC I think they didn't realise what was going to happen. When you say underestimate, I think possibly they did underestimate the calibre of the people they were going to deal with but I think it was not so much a question of under-estimating the calibre, I think that they were in such a powerful position that they could ultimately dictate the terms of the negotiations and that they would be able to control the final product. I think what happened is that they lost control and they couldn't control the final product.
POM Why do you say the first, what was the second?
AC How do you mean?
POM Why do you say they came to the table thinking they could control the eventual outcome and then how did they - ?
AC I think that's largely because of the documents which I saw being produced and the sort of position which they were taking up at a very early stage. It really meant that they would retain a position of control of the different types of structures which would enable them to, if not to control the country but to have a veto over decisions or laws which they did not like. I think they thought they could achieve that, but I may be wrong. It's just my own interpretation that they went into that negotiation thinking that they could protect what they considered to be their absolutely vital interests at the time and that they would be able to manage the negotiations and that what was being offered to the liberation movements would be sufficiently attractive to bring them into the process and even have a majority government in the Assembly but they wanted external mechanisms to be able to control laws and veto decisions and matters like that. I've often thought, though that's merely speculation, nobody's ever said it to me, I've always thought if they had known when they started negotiations how they would end they might never have started them. But that is purely speculation and there were of course huge political pressures and the negotiations took place because of what was happening inside the country and outside of the country and the questions which were on the government at that time. They had to salvage a situation which was spiralling out of control, would have spiralled out of control I think over a period of time if they hadn't entered into the negotiations. I think there were very powerful political considerations. I've never seen it as a moral decision, I've always seen it as a purely political decision that they took to enter into the negotiations. It would have spiralled out of control if they hadn't. But I think that in the end the absolution and I think it protected some very important interests of the white community, the governance of the people who the government saw as their constituency.
POM When did you first - ?
AC During the CODESA time that it would be round about that. You see my whole problem is at the moment I really cannot remember when I I would have seen Mac and had dealings with Mac. He would have attended any number of these conferences which were held in 1990 at which I attended and I spoke at some of them. He would have been there and I knew Mac and I would have during 1990 we would have had contact with each other on many occasions because he was very actively involved. I can't remember when he was detained and when he was released. I would have pushed it back earlier than you said. When did he actually come out of jail then?
POM It was a couple of months.
AC About July/August?
POM He was detained in July. It was either the beginning of CODESA because he had resigned from the ANC for a while, then he came in
AC Certainly after Christmas I was very much in so that will be the time when we would have started seeing a lot of each other at meetings largely and at the World Trade Centre.
POM Your evaluation of his mind, the way he works, the way he operates. In your estimation if I said who is Mac? In your legal mind. He wanted to be a lawyer, never got did you know that? This is a small story.
AC I didn't know he wanted to be a lawyer.
POM I will tell you that when he finished matric his father wanted him to be a teacher. He said he had the whole resources of the family behind him to be a teacher, there's a crux. None of us will support you if you want to be a lawyer. He went to University of Natal, the first faculty for law was they had to have at least seven students and he was the only one of the seven who passed so they said that's no way to earn a living, you've got to become a teacher. Can you remember impressions he left with you?
AC I think the overwhelming impression that I had of him at that time was of his extraordinary managerial skills. Really that process at the multi-party negotiating process was managed by Mac and Fanie van der Merwe and they were extraordinarily skilful. Mac had both a political nous as well as an ability to get things working in a very, very practical way. They would arrange the meetings, they would arrange the agendas. They would identify the issues. They would know when to move off into private, when to be in public. He was right at the heart of that side of the negotiations. He did attend lots of the bilaterals. I'm trying to remember who the people were who used to go. Joe Slovo and Cyril Ramaphosa were almost always there and Valli Moosa and I think Mac but I do have recollections of Jacob Zuma being there on occasions as well. I can't remember, there were some quite big ones where some of the political not that those people weren't political heavyweights but a lot of political people would come in. You'd have a lot of people from the cabinet attending, to have discussions. You'd have largely the leadership of the ANC present, President Mandela and President de Klerk didn't attend those gatherings. You would have people like Cyril Ramaphosa and Thabo Mbeki and Joe Slovo and others would be at those larger gatherings. But there were the smaller gatherings as well and Mac was at big gatherings and some of the smaller gatherings. He was very much present at, what did they call that, that committee? It wasn't the Negotiating Committee, it had a special name and I just don't remember it.
That was the Management Committee there but at the ANC's Internal Committee where they would meet to discuss what was feasible and not feasible, he also was there and did a lot there. I think he's got an acute mind. He has the ability to express himself well, he writes well. He writes quickly and he gets things done.
POM He still does.
AC It's a person like that who drives the process. You need people to drive processes and he was a driver.
POM He was a driver. Would you see him, say if you had to use your imagination and this is how we must think about what they would be putting forward so we have contra positions.
AC I think there were a lot of people that - I think there were a number of people who would and a lot of that would take place at that committee whose name I've forgotten. It might have been the National Working Committee, I don't know what it is called. Really, it might have been called the National Working Committee. I just don't remember what it was called but a lot of it would take place there and there were a lot of people. Mac was a person with very keen political insights and practical insights but you had other people who were there, Valli Moosa was a major contributor, Joe Slovo was a major contributor and a very thoughtful person, very skilled, Cyril Ramaphosa, who would engage with each other and they would decide where they were going. I think it would be wrong to identify any one person as being the person who would necessarily shape how the negotiations were going to go and what positions were going to be adopted. There is no doubt that Mac was absolutely fundamental to driving the process and getting it going and making sure that it moved, looking for the problems that there were whenever there were problems, there were all sorts of little problems around. There were whole hosts of people who had to be accommodated, whose needs had to be attended to. If somebody was causing trouble there somebody had to go and see that there was a problem and try to find a way of solving it. It wasn't just a negotiation between two parties even though there were two later participants and if they could get a consensus they were in a position to move the process forward but you couldn't move it forward in a way which didn't accommodate, which simply ignored other people so you had to take into account what other people's concerns were. I think Mac was very good at identifying what people's concerns were, trying to find out what they were and working towards finding solutions and he would always be off talking to people.
POM Did you play any role in the Record of Understanding?
AC When you say Record of Understanding, you mean after Boipatong?
POM After Boipatong.
AC No I didn't play any role in it but, again I can't remember the sequence of events.
POM You had Boipatong, then you had the channel, then you had Bisho and then you had meetings between the ANC and the NP that led to the Record of Understanding.
AC There was one up in the north near Ellisras, there was a big bosberade at Ellisras and I can't remember whether the Record of Understanding was drawn there or whether that followed the Record of Understanding. I remember going there, we flew in a big aeroplane, a big army aeroplane, I remember sitting in that aeroplane, I was sitting next to Joe Modise going up there and we flew up there and then we were taken to what was some sort of a resort. The meeting went on for about two days. I can't remember whether the document, whether the R of U had been prepared. I think it had been prepared before and that this meeting then followed it. I think the IFP was very angry at that stage over the R of U, very angry at this meeting that took place. A whole lot of issues were debated and quite a lot of important decisions were taken. I'm not going to be able to remember what they were. I do remember that meeting. I remember going there, I remember the evenings, I remember Hernus Kriel was there laughing at Joe Slovo's jokes. I remember Pik Botha coming to put on a performance, I can't remember what it was but he did some sort of a performance in front of the fire one night. This was quite an important meeting, quite a lot moved forward from that meeting. We're not going to be able to remember what it was.
POM Many people who attended that described it as, in the way that you did, that barriers were broken, it was the first basis for establishing trust and they found themselves no longer talking as adversaries, they were talking as -
AC A lot happened at that meeting and I think quite a lot of important decisions were taken even if they weren't final decisions. I think people had an idea of how to move forward and part of it was also, if I'm not mistaken you know at one stage the structure had to change. One of the weaknesses in CODESA was the separate working groups which were working apart from each other, the five working groups. Now I was in the working group which was going to deal with the transition. I was the advisor there. Thabo Mbeki led the ANC delegation in that group and in fact our group was one of the few that reached a consensus.
POM And went right through.
AC Well the consensus we reached at that thing and the structures we devised went right through, it was never changed.
POM They went right through the Multi-Party Forum.
AC It had to be fleshed out there and there were different people who got involved in it at that stage but the actual plan of the transition was worked out there at CODESA and we were one of the few groups which actually came up with a document which talked about the transition, how to move from how the transition would work and the two-stage transition and the election. One of the things that was resolved there was that there would be an elected government and that there would not be, as it were, an appointed government to take control during an interim period, an interim unelected government. It was agreed that there would be elections and that the Constitutional Assembly would then draft a constitution, the constitution would be drafted afterwards, the final constitution. It was agreed that we would have this two-stage transition no I'm not sure of that, I'll have to go back again and look at my notes because I remember the two-stage transition came up at the Technical Committee as well, in one of our early reports we dealt with a two-stage committee. I remember very clearly that we talked about this interim and the structures to control that there would be external structures which would exercise control over certain central functions like an independent electoral commission, things like that.
I'd have to go back and look at it but I know the framework which we developed there provided the framework for the later, which was built upon and developed and fleshed out at the multi-party negotiating process but that group actually completed its mandate and planned a transition which was acceptable and which was agreed upon and to the best of my knowledge it never departed from in principle though it may have changed its shape as it went along whereas some of the other groups couldn't get to consensus. The people who were dealing with the bill of rights got partly along the way but I don't think it was a separate bill of rights, I think it was much more of a broad constitutional
POM Fanie van der Merwe makes that point, the one you're talking about shaped everything. It went through, it survived even the breakdown, survived the collapse, went into the multi-party talks, then the TEC was established almost exactly in line, along the basis of
AC That's right. My recollection is we actually emerged from our group with a transitional document which was acceptable to everybody. I think we adopted it by consensus in our group. I don't think that any of the parties represented in that working group resisted it. There were a whole lot of debates along the way. I remember lots of different things. I also think this particular structure was adopted, and Thabo Mbeki was very influential in the conceptualisation of that structure and also in getting it accepted within the ANC. But it stayed. We'll have to go back and look at the document but I remember being prepared, I remember there's a photograph somewhere after the document had been drawn. I remember I had to write out things and somebody took photographs. I assume there's a photograph at that final stage.
POM When you look back at that whole period - one thing in particular and that's Boipatong. That's where the ANC broke off negotiations. They blamed lock, stock and barrel on the government that they were behind it.
AC I was actually out of the country at that time. I remember very clearly I was in Europe at that time attending a conference when Boipatong happened. I do remember being out of the country. I was with South Africans so I wasn't actually in the country at the moment of Boipatong. I remember reading about it there and I remember that some people at this conference wanted a resolution adopted to condemn what had happened at Boipatong, but it was an international conference, it wasn't just a South African conference. I can't remember in what country it was at. I did get involved in Boipatong because when I came back I acted for the Boipatong community before the Goldstone Commission hearing and I was Counsel in that case.
POM This is with Goldstone?
AC Goldstone was commissioned. He brought out Bagwati from India and he had with him Solly Sithole I think who was from the Pretoria Bar and there were three of them and they sat in Boipatong, in that region. I was appearing for the Boipatong community. Dennis Kuny I know was in the case, he was one of the juniors in the case at that time. Caroline Heath-Nichols was the Attorney and there was a third counsel. I know a lot about Boipatong but that's only afterwards, I wasn't here when Boipatong happened.
I really think, the more we're talking, I would think that my movement into the direct bilaterals and negotiations was probably late 1990, early 1991, somewhere round about there I would have been pulled in.
POM Just on Boipatong because it's something I've assiduously followed police action.
AC I don't remember it. I just don't remember them but they may be there were people, there weren't peace monitors at Boipatong but there's absolutely no doubt about one aspect of what happened at Boipatong and that is that the police knew where the attacks came from. I think they either followed immediately behind them or shortly behind them (I'd have to go back and look at the record to remind myself of it). My recollection is they actually followed them as they were going back from the scene at the end of the day, back to the hostel. The police were outside of the hostel after the attackers got into the hostel. They didn't go in and search then and there, they took a couple of days before they went in and when they went in by that stage people had just thrown all the bodies into a pile and they couldn't identify anyone. There was no doubt that the police action after the event either side what happened during the event, there was a lot of dispute about what happened during the event but the police action after the event was passive in the extreme.
POM I'm not going to talk an awful lot more on this. It's a document inserted into the TRC as its findings. After that I was intrigued so I went back and I began to investigate the investigators.
AC The TRC investigators?
POM TRC, and I found there had never been an investigation into Boipatong at all. At that time the TRC had published its report and the cases of the 17 members of the IFP from KwaMadala Hostel were pending before the Amnesty Committee. In their amnesty applications they had said there was no police involvement at all. The TRC findings began by saying that there was complete and total police involvement. This is like double jeopardy.
AC I find that astonishing that they should have just picked up a pamphlet and put it in as who was the person who wrote that section? It must be one of their investigators.
POM I have that amount of material on there being no investigation.
AC But somebody must have written it, somebody must have.
POM Well I won't name names but the commissioner who -
AC It's very serious.
POM The 17 men, I went through their entire amnesty applications and at the end of two years the Amnesty Committee gave them evidence that there was any Police involvement at all. The Amnesty Committee which has completely contradicted the editing of the TRC and now she's putting together the final two volumes and trying to reconcile. As I looked at the workings of the TRC, the internal workings on Boipatong which had been a pivotal event, a turning event, the investigation into other massacres were made.
AC Now you know at the Boipatong enquiry itself, the Goldstone enquiry, there was indeed some evidence which sought to implicate the police. Whether it was reliable evidence is another matter but there were some people who gave evidence that they had seen police vehicles. My recollection of my argument at the end, because there was never a report by the Goldstone Commission, was really on a different track. You'd have to go back, there will be a record of it, that there were people who claimed to have seen either Casspirs or Hippos or whatever they were, I can't remember what vehicles, in and around that time and also people who claimed to see the vehicles following the attack. There were some very strange coincidences. The first thing was that the attack was timed for an occasion when there was going to be a changing of the guard, that new people were going to come on shift and other people would go off shift. One of the reasons the police, if my recollection serves me correctly and it may not be entirely accurate, is that one of the bits of evidence was that because there were new people coming on and other people coming off that there were certain delays in responding to calls like that. The other thing was that it was done absolutely openly. People came in, walked across the main road into the township and proceeded to attack. One of my arguments at the time was that nobody would do this unless they knew it was safe and they could see that it could be managed and have some sort of assurance that they could undertake it and that they wouldn't be stopped. They marched across the road, there was some evidence that they were seen to come across the road.
We had a map at one stage which marked which houses had been dealt with and we could see which way they went. Because of the damage you could follow they did break up into actually they went right through the township and around and out and it took time. They went into houses. There were witnesses who talked about the people coming into their houses and what they did there. It wasn't just an in/out thing of attacking one person, it was a massive full-scale attack on that township. To me at the time, I always thought that the argument I advanced anyway before the Goldstone Commission was that even if you couldn't make a finding that there were these police vehicles there it was extraordinary (a) that the police didn't intervene either during the event or after the event when they knew where the people had come from and when they went outside the hostel and just sat there and didn't do anything. It was pretty strange that a venture like that could be planned and undertaken so openly and so transparently at a time such as that. There were regular patrols going round, there were police vehicles going around that part of the world, they used to go round and round and round, that somebody felt sufficiently secure to launch an attack knowing that nothing's going to happen.
POM When we went back two years ago we went to the houses of the victims, we just walked in and asked, "Point us to a house where somebody was a victim", and we would go into one house and the residents of the same house but the thing is the 17 men who did apply for amnesty
AC Said there was no police involvement except one who was disbelieved.
POM Totally, and the Amnesty Committee - would it be your, this is not you sitting as a judge or whatever, your belief that there was some kind of police complicity of the kind?
AC It's difficult for me now to express an opinion. It's also difficult when you've been counsel in a case and you've got very involved in it, to look back on it. I do find it strange that it could happen the way it happened. I have a recollection, maybe quite wrong, a recollection that one of the persons who was involved in the De Kock trial, I think his name was Van Heerden. You remember De Kock who is now sitting in prison? Van Heerden is the man who was involved in it and he got an indemnity and I remember, my sense is that he did talk about weapons passing between the police and the IFP.
POM And Themba Khoza.
AC Yes, but not only him, it was Themba Khoza and Themba Khoza was involved, when I say was involved, there was a suggestion that Themba Khoza had been I think Themba Khoza may have come with the police. I can't remember but I know that Themba Khoza's name was mentioned somewhere in the evidence about Boipatong. I think Van Heerden mentioned it. Whether it came out at the trial or not I don't know. It's very difficult to say. My recollection of the evidence, of the people who claimed to have seen the police vehicles, was that it was not particularly good. They talked about it but when you got down to time and place and things like that, under cross-examination there was a lot of - I don't think you could have convicted anyone on that evidence. There was some evidence that there were white people in balaclavas there. That's a different matter. There were a number of people who talked about it and a lot of them were very poor witnesses. There was no doubt that there was a real belief within the community that there were whites involved. That came through quite clearly but some people were afraid to talk, some people were afraid to give evidence. Some people gave evidence and gave evidence badly and you can't really disaggregate all of that but what I did find extraordinarily strange, you know almost every window was broken. They went down streets smashing windows into houses, killing people and so on. That was a full-scale attack. I find it amazing that it could take place without police intervention because there were people phoning and all sorts of things were going on. Also who launches an attack that openly at a time when there's a very big police presence and then vehicles driving around and nobody came. It was not as if it was being done in a very remote rural area where villagers were attacking villagers and there were no police around. In an urban setting, and it's not just targeting one person and going in after them and running away, it was a massive full-scale attack, everybody in the hostel must have known what was going on. You couldn't do it otherwise. Where does the confidence come that you can actually engage in that and that there's going to be no retribution? I don't know.
POM I've two more questions for you.
AC But the evidence of the actual, my recollection of the Goldstone Commission, you can ask Richard, my recollection is that there was no hard evidence that reached the police in the actual killings and slashings.
POM There never has been a final report.
AC No, it was never given. My argument might have been reported.
POM OK I'll look that up.
AC Really I don't know what to say but I had a very full and comprehensive argument which I quite persuaded myself on it.
POM Well if you're not a good lawyer, what else can you do?
AC I always thought it was a good argument.
POM I have two questions. If you recall that recordings of that night on the police machines got all screwed up and the argument was made that they were new machines and that they should only be recorded on one side. My question has been, which it seems no-one has asked, well if that were true then certainly the person operating the equipment the night before and the night before and the night before and ever since that new equipment had been introduced would have all made the same mistake, so that all the tapes would have made garbage from all the previous nights. So the person who was handling the machinery that night, if that man or woman had handled the same machinery two nights before would have done the same thing, so those tapes should have been equally spoilt. No-one ever asked that question.
AC You'll have to go back again, and I don't remember, but my understanding was that the evidence was that this was the only occasion on which it had happened. It was a woman and she gave evidence, had some explanation and I don't remember what it was. My recollection isn't that one would again have to go back and look at the record but she certainly gave evidence before the Goldstone Commission and she gave an explanation as to what had happened and I can't remember now whether the explanation was that it was an error or was it that she had previously been using double sided tapes and this was a single sided tape and therefore she I think there might have been, I'm speculating, but I have a vague idea that there might have been double sided tapes where you could turn it around and then the other side would record and for some reason
POM You can only use one side.
AC Well I'm not sure whether it was the new equipment which said that you could only use one side or whether the actual tape which had been put in had been a one-sided tape and they'd turned it around and it wasn't a double sided tape. I can't remember. It may be that you could use double sided tapes but for some reason a single sided tape had been put in and they turned it around and it obliterated. Or it could be that she had said that, she had worked on the old equipment previously which had a double sided tape and this was her first time on the new equipment and she didn't know it so she turned it around. The whole thing came to a head very soon afterwards. My understanding was, you'll have to look at that record, she gave evidence, I can't remember anything of her evidence to suggest that she was either particularly good or a particularly bad witness. I don't think there was there were a lot of attempts to try and find out what was underneath the tape. It was actually sent off to experts in England, the Goldstone Commission sent it off to experts, I think somebody in the English police, to uncover, to see if they could get, to see whether the tape had really been turned, to try and find out exactly what had happened and I think, again I remember that the evidence which came back was equivocal but not when I say equivocal my sense was that there was nothing in the English investigation which necessarily assisted us in the case. I don't think at the same time that it exonerated anybody but I would have to think back and I know there's a lot of trouble around those investigations too as to what happened and how they were done. I know that there was an attempt to try and see if you could recover, because there are techniques upon which you can recover the sound beneath the sound.
POM Then my last question is: on the TRC full disclosure, political motivation, in the case of Boipatong 17 men said they were engaged in the attack and everybody it was not full disclosure. The IFP the following day said this was nothing we condemned the attack completely. Then switch that around to the Clive Derby-Lewis case, Chris Hani, and amnesty was rejected on the grounds of lack full disclosure, engaged in violence
AC You know I'd have to look at the evidence. I don't even know whether they're the same or different panels who dealt with it.
POM Different panels.
AC I don't know what arguments were put before the two panels. My recollection is that at the Derby-Lewis case as far as I can recollect, and I would know only from what I had read in the paper, that part of the case was actually directed very specifically as to whether this was done on behalf of the Conservative Party or not. We don't know what the case was in Boipatong and I don't know how it was presented and what the people said. The reason that only 18 sought amnesty, I should imagine, was that they convicted about they were the people who were in jail so the people who hadn't been convicted wouldn't have had any interest in coming forward because they hadn't been convicted and they probably didn't anticipate I don't know what those 18 said in their evidence and I don't know whether the IFP