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LOTHAR PAUL NEETHLING Appellant
MAX DU PREEZ 1st Respondent
CAXTON LIMITED 2nd Respondent
WENDING PUBLICATIONS 3rd Respondent
JACQUES PAUW 4th Respondent
AND
LOTHAR PAUL NEETHLING Appellant
and
THE WEEKLY MAIL 1st Respondent
W M PUBLICATIONS (PTY) LIMITED 2nd Respondent
GAVIN EVANS 3rd Respondent
Case Nos 184/91 and 401/91
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
LOTHAR PAUL
NEETHLING Appellant
and
MAX DU PREEZ 1st
Respondent
CAXTON LIMITED 2nd
Respondent
WENDING PUBLICATIONS 3rd
Respondent
JACQUES PAUW 4th Respondent
AND
LOTHAR PAUL NEETHLING Appellant
and
THE WEEKLY MAIL 1st Respondent
W M PUBLICATIONS (PTY) LIMITED 2nd Respondent
GAVIN EVANS 3rd Respondent
CORAM: CORBETT CJ, HOEXTER, NESTADT, NIENABER JJA et NICHOLAS, AJA
HEARD: 16, 17, 18, 19, 20 AUGUST 1993 DELIVERED: 2 December 1993
JUDGMENT
HOEXTER, JA
2
HOEXTER, JA
(A) INTRODUCTION:
In two separate actions instituted in the Witwatersrand Local Division during December 1989 the plaintiff, now the appellant, claimed damages totalling R1'5 m in respect of certain matter defamatory of him which had been published in two weekly newspapers published and circulating within the Republic of South Africa. The newspapers in question were VRYE WEEKBLAD ("VWB"), which is published in Afrikaans, and THE WEEKLY MAIL ("WM"), which is published in English.
In what follows I shall, in the main, refer to the action against VWB as "the VWB case", and to the action against WM as "the WM case". The VWB case related to articles in two separate editions of the newspaper, the
3
earlier article ("article VWB (1)") appearing on 17 November 1989 and the
later one ("article VWB (2)") on 1 December 1989. The author
of both these
articles was Mr Jacques Pauw ("Pauw"). The WM case related to an article ("the
WM article") which appeared in the edition
of WM dated 24 - 30 November 1989,
the author of which was Mr Gavin Evans ("Evans").
As the first,
second and third defendants in the VWB case there were respectively cited that
newspaper's editor, printer and publisher;
the fourth defendant being Pauw. In
respect of each of articles VWB(1 ) and VWB(2) the appellant claimed damages in
the sum of R500
000. As the first, second and third defendants in the WM case
there were respectively cited that newspaper's editor, printer ("Seculo
Printers") and publisher; the fourth defendant being Evans. In respect of the WM
article the appellant claimed damages in the sum
of R500 000.
4
Both actions were defended. In each action all four defendants filed a single joint plea. In both actions the same team of senior and junior counsel drew the pleadings on behalf of the appellant on the one hand and on behalf of the defendants on the other. In terms of a court order granted on 14 August 1990 the hearings of the two actions were consolidated.
The trial came before Mr Justice Kriegler. In the course thereof a settlement was concluded between the appellant and Seculo Printers, the second defendant in the WM case. Against the remaining defendants the appellant's actions proceeded to their conclusion. At the end of the trial Kriegler J gave judgment with costs, including the costs of two counsel, in favour of the four defendants in the VWB case and the remaining three defendants in the WM case. The aforesaid seven defendants are the respondents in this appeal.
5
Against the judgment of the trial court the appellant sought leave to appeal. Kriegler J granted the appellant leave to appeal to this Court in the WM case but refused him leave to appeal in the VWB case. In the latter case, however, this court subsequently granted the appellant leave to appeal to it. At the trial leading counsel for the appellant was Mr Oshry, with Mr Witz as his junior. Both in the court below and before us the respondents were represented by Mr Levin and Mr Rautenbach. In this court the case for the appellant was argued by Mr Cilliers, with whom Mr Witz appeared.
(B) THE CHIEF CHARACTERS
There are two chief characters in this unusual case. They were the main witnesses at the trial. The one is the appellant himself. He is a Lieutenant-General in the South African Police ("the SAP"). The other is a
6
retired SAP officer: Captain Dirk Johannes Coetzee ("Coetzee"). The ultimate resolution of the issues in the appeal involves, inter alia, a careful appraisal of their respective characters, dispositions and proclivities. To provide some background to the case it is convenient at this juncture to mention a few personal details concerning these two men, and to give a thumbnail sketch of their respective careers.
The appellant, who was born in East Prussia in 1935, came from Germany to South Africa as a war orphan in 1948. Having matriculated in this country he enrolled as a science student at the University of Pretoria where in the years 1955 and 1958 he successively gained the degrees of B Sc and M Sc, the latter cum laude. Next the appellant was awarded a bursary by the Atomic Energy Board which enabled him to undertake research in chemistry in the United States of America where he gained a Ph D in 1 962 at the
7
University of California.
In 1965 the appellant was appointed
head of the biological radiation unit at the Onderstepoort Veterinary Research
Station. Thereafter
part-time study earned him a D Sc in physiological organic
chemistry from the University of Pretoria in 1970. In that year the SAP
required
the services of a scientist equipped to undertake research into hair analysis.
There were 26 applicants for the post. The
appellant was the successful
candidate, and in January 1971 he was appointed to the position with the rank of
a full colonel. The
task of creating a forensic laboratory for the SAP was
entrusted to him. Initially the laboratory was housed in a building in Church
Street, Pretoria. During 1971 it moved to premises at 171 Jacob Mare Street.
There it remained until February 1987 when it moved
to the L P Neethling
Building, named after the appellant, in Silverton, Pretoria. From small
beginnings the forensic laboratory
8
rapidly expanded. In its first year of operation it dealt with some 150 analyses. By 1 989 the figure had grown to 26 000. On 1 September 1979 the appellant was made a Major-General in the SAP. Further promotion to his present rank of Lieutenant-General followed on 1 June 1985. When his actions were instituted the appellant was the Chief Deputy Commissioner, Scientific Technical Services, in the SAP. The appellant has been the recipient of various local and foreign police decorations. He is a member of the SA Chemical Institute and of the Akademie vir Wetenskap en Kuns. The appellant is a member of the Society for Forensic Science in England and the International Society of Toxicologists. In 1989 he received the Armscor Award for exceptional contribution to the development of explosives detection techniques. In his official capacity he has attended many conferences in his field of study in the United States of America, in England, Switzerland and
9
Western Germany. The appellant has frequently testified as an expert
forensic witness in criminal trials in this country and in neighbouring
states.
In short the appellant is an eminent forensic scientist whose skills have gained
international recognition.
Coetzee was born in the Northern Cape in
1945. After matriculating he worked for a while in the Post Office before
joining the SAP
in March 1970. At the end of that year he passed out of the
Police College as the best student on the training course. His further
advancement in the SAP was rapid. Having become a sergeant he attended a course
for dog-handlers. Thereafter, and as a warrant officer,
he served for a while
north of the country's borders with the Rhodesian security forces. While so
seconded he became acquainted with
counter-insurgency techniques such as the use
of poison against the foe, and the incineration of the slain enemy to prevent
subsequent
identification of
10
corpses. Having been stationed for a while at Sibasa, Coetzee became a
commissioned officer in the SAP in 1975. As a lieutenant he
did a brief stint
first at the Police College and then at Volksrust.
In January 1976
Coetzee was appointed commander of the SAP border post at Oshoek on the frontier
between South Africa and Swaziland.
His duties there involved close cooperation
with the Security Branch of the SAP. In addition they afforded Coetzee very
ready access
to Swaziland, in which kingdom he soon acquired a wide circle of
friends and agents. At Oshoek he became involved in certain irregular
activities, the nature of which will be detailed later, in consequence whereof
Coetzee was transferred to Sunnyside, Pretoria. Through
the intervention of
senior officers well-disposed to him the transfer was countermanded and instead
he was moved to the Security
Branch at Middelburg. Shortly thereafter Coetzee
was promoted to the rank of
11
captain.
In August 1980 Coetzee was transferred to the head
office of the Security Branch in Pretoria. He was posted to Section C1 under the
command of Brigadier Viktor; and he worked from a secret station situate
south-west of Voortrekkerhoogte called Vlakplaas. Vlakplaas
was used as a base
to accommodate a number of men who had defected from the African National
Congress ("the ANC") and who assisted
the Security Branch in tracking down
members of that organisation.
Coetzee remained at Vlakplaas from
August 1980 until the end of 1981. From Coetzee's own evidence it appears that
this period of his
police career was one of sustained participation in
wide-ranging illegal acts, including a number of murders. At the end of 1981
Coetzee was transferred to the Security Branch office at Krugersdorp. For
personal reasons this move was
12
unacceptable to him. Once again senior officers interceded on his behalf and in the result he was transferred instead to the Pretoria office of the South African Narcotics Bureau where he remained, until July 1982, as the head of the section dealing with offences involving liquor, immorality and gambling. Next Coetzee served as staff officer to the Divisional Command for the Northern Transvaal. In August 1984 he was moved to radio control.
At about this time Coetzee seems again to have incurred the displeasure of his seniors in the SAP. He did so by meddling with a police inquiry into the affairs of a friend of his, one Whelpton. This and other behaviour on Coetzee's part resulted in a departmental disciplinary inquiry against him, at the instance of the then Commissioner of the SAP, General Johan Coetzee. He faced seven charges of misconduct. At the conclusion of the hearing he was found guilty on five of the charges. Coetzee
13
is a diabetic. At the hearing, and in mitigation of sentence, medical
evidence was adduced on Coetzee's behalf regarding the nature
and extent of his
diabetic condition. In the final upshot Coetzee's salary was reduced by two
notches and he was permitted to retire
on pension from the SAP on the grounds of
medical unfitness.
In broad outline Coetzee's fluctuating fortunes
have now been traced up to the year 1985. When the appellant instituted his
actions
in December 1989 Coetzee had, shortly before, fled South Africa. His
testimony at the trial was taken by a commission de bene esse
in London from 8
to 12 October 1990.
It is necessary next to consider what befell Coetzee after his retirement from the SAP; what precipitated his flight from this country; and to see in what circumstances VWB came to publish the articles VWB(1) and VWB(2) on which the action against VWB was founded.
14
Before taking up the narrative it is convenient at this stage to interpose a synopsis of that portion of Coetzee's evidence in chief at the trial in which he described his involvement in the murder of a Durban attorney, Mr Griffiths Mxenge ("Mxenge"), on 19 November 1981.
While he was stationed at Vlakplaas, so testified Coetzee, he was made the leader of an operational group. Its second-in-command was sergeant Paul van Dyk ("van Dyk"). Other members of the group included Constable Tshikalanga ("Tshikalanga"), Constable Butana Almond Nofomela ("Nofomela") and two men respectively named Joe Mamasela and Brian Nqulunga. By November 1981 Brigadier Viktor had been succeeded as the commander of Vlakplaas by Brigadier Schoon ("Schoon"). In command of the Security Branch for Port Natal at that time was Brigadier van der Hoven ("van der Hoven"). Coetzee's account of his part in the Mxenge
15
murder, tersely stated, amounts to the following. During November 1981, and at the request of van der Hoven, Schoon had sent Coetzee's operational group to Durban in order there to assist in tracking down ANC members at places like railway stations and shebeens. During this period van der Hoven told Coetzee that Mxenge, who practised and lived in Durban, was suspected of using his bank account as a conduit for channelling ANC funds and that Coetzee should eliminate him otherwise than by shooting, and in such a way as to create the appearance that Mxenge had been the victim of a robbery. As a first step towards the assassination of Mxenge the dogs at his home were poisoned by means of meat which had been treated with strychnine. Coetzee assigned the actual killing to Nofomela, Tshikalanga, Mamasela and Nqulunga. He instructed them to stab Mxenge to death with knives and they agreed to report back to Coetzee at an appointed place after they had carried out their grisly
16
assignment. When on the night in question the four
men
rejoined their leader Mamasela was wearing Mxenge's
jacket
and wristwatch. He was also in possession of
Mxenge's
wallet and the keys of his Audi motor car. Having on
the
same night reported the success of his mission to van der
Hoven, Coetzee and others on the next day took Mxenge's
motor
car to the Golel frontier station on the Swaziland
border. There the Audi was provisionally concealed in a
garage. Coetzee says he then returned to Pretoria and
reported to a senior Security Branch officer, Brigadier Jan
du Preez ("du Preez"). Coetzee proposed to du Preez that
Mxenge's Audi be exchanged for a Koevoet vehicle, but this
idea was rejected by du Preez. In the result Coetzee and
van Dyk travelled to the Eastern Transvaal in order to get
rid of the Audi. In Bronkhorstspruit the demolition party
was joined by Captain Koos Vermeulen ("Vermeulen"), a man
who according to Coetzee was involved in many of his
17
criminal exploits. They travelled on to Golel where
Mxenge's
Audi was removed from its place of concealment,
taken to a plantation near the Bothasnoop border post,
doused
with petrol, and then set alight.
After the above digression in regard to the Mxenge
murder the chronicle of events following upon Coetzee's
retirement from the SAP must be resumed. This part of the
case has been succinctly summarised by the learned trial
judge in the course of his very thorough and comprehensive
judgment. Here I can do no better than to quote from it at
considerable length. The observations by Kriegler J which
follow hereunder are based largely, but not exclusively,
on Coetzee's own evidence. Kriegler J remarked:-
"Die dissiplinêre stappe teen hom laat Coetzee met 'n wrok teen die polisiemag, of ten minste teen sekere senior lede daarvan. Voor die uitslag daarvan was daar reeds blyke van onvergenoegdheid en ontrou jeens die mag by hom aanwesig, soveel so dat hy loslippig geraak het oor vertroulike sake, waaronder die werksaamhede van die Vlakplaas-kontingent. Hy kom deur Whelpton in aanraking
18
met twee joernaliste verbonde aan Rapport, mnre Welz en Pauw, en maak mettertyd talle mededelings aan hulle oor wat hy tydens sy Vlakplaasdae sou gedoen het ....
Coetzee se verbittering word na uitdienstrede gesterk toe hy etlike werksgeleenthede verloor as gevolg van sy ongunstige veiligheidsklaring. Hy bekom naderhand 'n aantal werkies by vriende en familie waardeur hy die pot aan die kook hou. Eers laat in 1989 slaag hy daarin om 'n werksaanbod te kry wat sy ervaring en kwalifikasies waardig is. Voor hy egter daarmee begin, vind daar 'n aantal dramatiese gebeure plaas.
Almond Nofomela, die eertydse lid van Coetzee se Vlakplaas-groep, bring op Donderdag, 19 Oktober 1989, vanuit die dodesel waar sy teregstelling die volgende oggend sou geskied 'n dringende aansoek om stuiting daarvan. In sy vestigende eedsverklaring ....beweer hy onder andere dat hy laat in 1981 tesame met Brian Ngulunga, Tshikalanga en Joe Mamasela, in opdrag van Coetzee en Brig Schoon 'n Durbanse prokureur by name Griffiths Mxenge vermoor het vanweë sy betrokkenheid by ANC aktiwiteite. Luidens Nofomela se verklaring sou Coetzee 'n foto van Mxenge en besonderhede van sy bewegings aan hul verstrek en ook opdrag gegee het dat hy nie geskiet nie maar met 'n mes gedood moes word.
Uiteraard het Nofomela se bewerings groot openbare beroering ontketen en is dit onder andere die Vrydagaand, 20 Oktober 1989, in beide SAUK-TV
19
nuusuitsendings genoem. Tshikalanga bel
uit
Venda vir Coetzee by sy huis na die
vroeë
uitsending en Coetzee kyk na die tweede.
Vroeg
die volgende oggend le hy besoek af by
Brigadier
Jan du Preez, 'n afgetrede
senior,veiligheidsman,
mentor en beskermer van Coetzee tydens hul
Veiligheidstakdae. Hy soek raad oor wat hom te
doen
staan in die storm waaraan die Nofomela-
aantygings horn blootgestel
net. Die advies wat
hy kry is om vas te staan op 'n ontkenning van
die
bewerings. Dieselfde dag probeer Coetzee in
aanraking kom met Paul van Dyk met wie hy in die
jare sedert sy uittrede uit die polisie kontak
verloor het. Hy word meegedeel dat van Dyk van
die grens teruggeroep is en daardie aand op
Waterkloof-vliegveld sou aankom. Coetzee reel
met van Dyk se eggenote dat van Dyk hom sou bel.
Die Sondag en Maandag, 22 en 23 Oktober 1989, hoor
Coetzee nie van van Dyk nie. Op laasgenoemde dag
tree hy in verbinding met twee persone. Die een
is Pauw, die joernalis met wie hy reeds in 1984/85
kennis gemaak het en wat toe vir Vrye Weekblad
werk en mettertyd die vierde verweerder in die
aksie sou wees. Die twee van hulle was juis
enkele weke tevore in gesprek met mekaar oor die
moontlike skryf van 'n boek waarin Coetzee se
wedervaringe in gefiksionaliseerde vorm verhaal
sou word. Die ander persoon was 'n Johannesburgse
professionele man wie se naam Coetzee geweier het
om te openbaar maar wat hy beskryf as 'n middelman
tussen homself en die ANC.
Vroeg dieselfde week word bekend gemaak dat die prokureur-generaal van die Oranje Vrystaat,
20
advokaat McNally en luitenant-generaal
Alwyn
Conradie, hoof van die Suid-Afrikaanse
Speurdiens,
opgedra is om die Nofomela bewerings te
ondersoek.
Die daaropvolgende Maandag, (30 Oktober
1989),
besoek van Dyk vir Coetzee by sy huis waar hulle
in die straat voor die huis 'n gesprek voer.
Volgens Coetzee
(wie se weergawe nie voor my
weerspreek of bevraagteken is nie) deel
van Dyk
horn mee dat hyself, brigadier Schoon,
Brian
Ngulunga en Joe Masamela reeds voor die
McNally-
kommissie getuig het en te kenne gegee het
dat
hulle van Nofomela se bewerings niks weet nie.
Van Dyk deel hom ook mee dat die ondersoekbeampte
van die McNally-kommissie vir hulle polisiemanne
op die hoogte hou van wat by die kommissie gebeur
en dat daar rede is om te vertrou dat Nofomela se
bewerings in verband met die Mxenge-moord verwerp
gaan word as net 'n poging om sy nek te red.
Coetzee en van Dyk is toe uitmekaar met die
verstandhouding dat laasgenoemde weer kontak sou
maak. Teen Vrydag van daardie week het hy nog
nie van hom laat hoor nie en Coetzee probeer
tevergeefs met hom in aanraking te kom. Intussen
is daar, sover Coetzee weet, ook geen stappe van
die kant van die Suid-Afrikaanse Polisie of die
McNally-kommissie om met hom in verbinding te tree
nie. Dit bevreem hom aangesien hy volgens
Nofomela 'n sleutel rol gespeel het. Sy kommer
groei. Dit lyk vir hom of hy in 'n hoek gedryf
word waar hy Nofomela se bewerings sou moes ontken
(wat hy nie wou doen om redes wat later onder die
loep kom) en bowendien die risiko loop dat hy as
potensiële sondebok uitgesonder word.
21
Saterdag, 4 November 1989 besluit hy finaal
om
land uit te vlug, sy verhaal in die buiteland
aan
Pauw te vertel en dan sy lot by die ANC in te
werp.
So besluit so gedaan. Hy en Pauw vlieg
die volgende dag na Mauritius
waar hulle tot die
Woensdag (8 November 1989) 'n bandopname
maak
waarvan die oorkonde (bew "P") 198 bladsye
beloop.
Hulle stel ook 'n formele verklaring op (bew
"K")
wat 26 bladsye beslaan. Die wou hulle
beëdig
maar kon vanweë formaliteitsprobleme nie
daarin
slaag nie. Die Woensdagmiddag vlieg Coetzee na
London waar hy
daelank met verteenwoordigers van
die ANC konfereer. Sedertdien werk
hy vir die ANC.
Sy vlug na Londen, sy verblyf aldaar en sy
bestaansbehoeftes sedertdien word deur sy nuwe
meester gefinansier.
Na die verskyning van die eerste gewraakte berig in die Vrye Weekblad [article VWB(1)] en voor die tweede verskyn, skakel Coetzee vanuit Bulawayo, waarheen hy intussen gereis het, met Pauw en maak 'n aantal verdere mededelings aan hom wat in die tweede berig [article VWB(2)] bygewerk word. Op 4 Januarie 1990 word op aansoek van die prokureur-generaal van Natal 'n lasbrief uitgereik vir Coetzee se inhegtenisname (bew "XX") -
'....aangesien daar op grond van inligting onder eed redelike gronde vir verdenking teen hom bestaan dat hy....'
op 19 November 1981 vir Griffiths Mxenge vermoor het.
22
Van 25 April tot en met 3 Mei 1990 gee hy sewe dae lank in Londen voor die Harms-kommissie getuienis waartydens hy deur 'n battery advokate ondervra word. Die getikte oorkonde van sy getuienis aldaar beloop 690 bladsye. In Oktober 1990 getuig hy weer in Londen en wel voor die kommissaris de bene esse in hierdie verhoor. Tydens die verhoor is 'n video-band in die hof vertoon (en ingedien as bewysstuk "B") van 'n TV-program wat op 4 April 1990 in Brittanje gebeeldsend is, getitel 'Dispatches'. Dit is 'n sensasionele en wydlopende stuk, propagandisties en striemend in sy kritiek op die Suid-Afrikaanse veiligheidsorgane en 'n aantal politieke figure. Coetzee speel 'n prominente rol daarin, word telkemale vertoon en gehoor en doen oenskynlik lustig mee."
(C) THE DEFAMATORY ARTICLES
The way has now been prepared for a scrutiny of
the matter published in articles VWB(1) and VWB(2) and in the WM article. For the sake of convenience reproductions of these three articles have been embodied in appendices, respectively numbered "I", "II" and "III", subjoined to the body of this judgment. Further, and in order to facilitate reference to specific parts of the text, there have been introduced by me in the margins of the columns in each
23
article a series of capital letters to identify
particular
paragraphs together with a series of numerals in order
to
pinpoint their sub-paragraphs.
Dealing first with article VWB(1) one finds on the
front page a large photograph of Coetzee with the caption
"Bloedspoor van die SAP". Flanking the photograph on its
right-hand side the following is then stated:-
"Ontmoet kaptein Dirk Johannes Coetzee bevelvoerder van 'n moordbende van die SA Polisie. Hy vertel eksklusief die volle grusame verhaal van politieke sluipmoorde, gifkelkies, buitelandse bomaanvalle en briefbomme."
The following page features four smaller photographs of
Coetzee, underneath which there appear the words:-
"Moordbende se register van terreur. Alle berigte en foto's deur
JACQUES PAUW"
Below this there are portrayed three miniature photographs
of (1 ) the appellant; (2) Craig Williamson; and (3) Gen
Johan Coetzee. It is in the balance of article VWB( 1 ) in
24
which the statements defamatory of the appellant are to be
found. The introductory portion reads thus:-
"KAPTEIN DIRK COETZEE erken dat hy tot en met 1982 aktief deelgeneem en help beplan het aan verskeie moorde en terreuraanslae wat deur die S A Polisie se spesiale eenheid te Vlakplaas gepleeg is. Daarna het hy steeds noue kontak met verskeie lede van die moordbende behou en is bewus van nog terreur in die jare daarna. Hier is sy doodregister:"
What follows is a catalogue of murders furnished by Coetzee
to Pauw. Each section of the register begins with a brief
superscription marked by an asterisk, presumably composed
by
Pauw, followed by Coetzee's narrative between quotation
marks.
Paragraph (A) [* Die moord op die anti-
apartheidsaktivis en Durbanse prokureur Griffiths Mxenge] is
devoted to an account of the Mxenge murder and the alleged
roles therein of van der Hoven, Schoon, Coetzee himself, van
Dyk, Nofomela, Tshikalanga, Nqulunga, one Joe [Mamasela ?]
and others.
25
Paragraph (B) [* Die moord op twee ANC-lede naby Komatipoort] involves a description of a protracted chapter of events to which hereafter reference will be made as "the Vusi and Peter murder." Here are alleged the roles played in the Vusi and Peter murder by Schoon, Coetzee himself, Vermeulen, Major Archie Flemington ("Flemington") and, very pertinently, the role alleged to have been played by the appellant. In sub-paragraph (B)(2) Coetzee is quoted thus:-
"Ek en Vermeulen het gif, wat deur die forensiese laboratorium voorberei is, in hul koeldrank en bier gegooi. Almal het gepraat van 'Lothar se gif, (Generaal Lothar Neethling is die hoof van die forensiese laboratorium). Ons is verseker dat sestig gram genoeg sou wees om hul aan 'n 'hartaanval' te laat beswyk. Die gif wou nie werk nie. Ons het die dosis tot 360 gram elk verhoog, maar niks het gebeur nie."
In sub-paragraph (B)(4) Coetzee is quoted thus:-
"Ons het Vusi en Peter 'n slaapmiddel ingegee wat ook deur die forensiese laboratorium voorberei is. Ons is vooraf gevra om aantekeninge oor die uitwerking daarvan te hou. Toe die twee terries
26
goed deurmekaar was, het Vermeulen hul met 'n Makarov-pistool met 'n knaldemper deur die kop geskiet.
Die twee lyke is hierna met hout en buitebande wat ons op 'n ashoop gaan haal het, verbrand. Dit het sewe ure geneem voor die liggaam uitgebrand was. Die as en oorblyfsels is in die Komatirivier geskep."
In sub-paragraph (B)(5) Coetzee is quoted thus:-
"Tydens die verbranding van die twee terries het die veiligheidsmanne van Komatipoort aan my vertel hoe hulle sterk drank wat met gif gedokter is, onder ANC-lede in Maputo versprei. Die gif word met 'n mikronaald deur die prop in die bottels ingespuit."
In paragraph (C) [* Die
verbranding van 'n "tweede Biko"]
there is described in
sub-paragraph (C)(1) the theft in the
Eastern Cape by Coetzee and
Nofomela of a motor car
belonging to a trade union leader in Port Elizabeth; and in
sub-paragraph (C)(2) Coetzee's subsequent encounter at
Jeffrey's Bay with a lean detainee said to be suffering from
haemmorrhage of the brain. I pause to mention that
according to Coetzee's evidence at the trial the detainee
27
in question was one Kondile. In what follows reference
will
be made to Kondile's alleged fate as "the Kondile
murder". In
sub-paragraph (C)(3) there is described a
decision to get rid of
this detainee, and to that end a
meeting at a Komatipoort farm of
various persons including
Coetzee and Flemington.
In sub-paragraph (C)(4) Coetzee is quoted thus:-
"Die skraal man is van Lothar se slaapmiddel ingegee waarna 'n polisieman van Komatipoort horn met 'n Makarov-pistool met 'n knaldemper deur sy kop geskiet het.
Ons het hom op h brandstapel van hout en buitebande verbrand en die as na die tyd gelyk gehark."
Paragraph (D) [* Die moord op die aktivis Patrick
Makau] deals with the destruction by explosives in Manzlnl
of (i) a house used by the ANC as a transit facility and
(ii) the house of an unnamed ANC member. Sub-paragraph
(D)(1) mentions that for this purpose Coetzee was in charge
of a group consisting of van Dyk and two explosives experts.
28
Sub-paragraph (D)(2) describes the successful execution of the mission
and concludes with a hearsay statement by Coetzee that a child
was
killed.
Paragraph (E) [* Die bomaanslag op Chris Hani,
militêre bevelvoerder van Umkhonto We'Sizwe] deals (in subparagraph (1))
with
an alleged plan by the Security Branch in Bloemfontein to assassinate Chris
Hani in Lesotho by means of a car bomb planted by one
Moshesh. Sub-paragraph
(E)(2) describes the premature detonation of the bomb, with consequent injury to
Moshesh, and the latter's
arrest by the Lesotho authorities.
In sub-paragraph (E)(3) Coetzee is quoted thus:-
"Ons het borg vir hom gaan reel, en nadat hy losgelaat is, het ons hom uit Lesotho gesmokkel en na Vlakplaas geneem."
Paragraph (F) [* Die moord op Ruth First] deals (in subparagraph (1) thereof) with an order given to Coetzee to break into the office of the United Nations High
29
Commissioner for Refugees in Mbabane. Sub-paragraph (F)(2) describes the housebreaking and the articles stolen. Subparagraph (F)(3) contains hearsay statements by Coetzee concerning the murder of Ruth First in Maputo by means of a letter-bomb.
I deal next with article VWB( 2). On the front page of the newspaper
there is the headline:
"LOTHAR SE DOEPA" followed by the
quotation:
"Hy het die gif aan my gegee"
Under the
name "Jacques Pauw" there appear two large
photographs of Coetzee
(on the left-hand side of the page)
and of the appellant (on the
right-hand side of the page).
Beginning in the column separating the
two photographs the
following statements are then made on the front page:-
"GENERAAL Lothar Neethling het persoonlik gif aan kaptein Dirk Coetzee verskaf om twee ANC-verdagtes mee te vergiftig. By 'n ander geleentheid het die generaal 'n slaapmiddel aan Coetsee gegee om 'n ANC-
30
lid uit Swaziland mee te ontvoer.
Die en nuwe onthullings oor die vergiftiging van ANC-lede is vandeesweek deur Coetzee gemaak kort nadat Neethling, hoof van die forensiese laboratorium in Pretoria en assistent-kommissaris van polisie, gedreig net om Vrye Weekblad weens beweerde laster vir R500 000 te dagvaar."
On the newspaper's second page paragraph (G)(1) refers to the fact that in article VWB(1) [see subparagraph (B)(2) above]:-
"....vertel Coetzee dat hulle gif voorberei deur die polisie se forensiese laboratorium, in die koeldrank en bier van twee gewese ANC-lede wat geelimineer moes word, Vusi en Pieter, moes gooi. Coetzee verwys na die gif as 'Lothar se Gif.'"
Thereafter the alleged role of the appellant in the Vusi and Peter murder is considerably amplified and embellished with circumstantial detail. It is stated that in his own office the appellant personally handed to Coetzee a sleeping-draught and poison; that he gave Coetzee instructions as to the dosage of the former to be administered; and that he expatiated on the efficacy of the latter. In paragraphs
31
(G)(2) to (4) Coetzee is quoted thus:-
"Voor die operasie om Vusi en Pieter te elimineer, is ek en Koos Vermeulen deur brigadier Willem Schoon opdrag gegee om na Neethling se kantoor by die forensiese laboratorium in Jacob Marestraat te gaan om die gif te gaan haal. In sy kantoor net 'n Oostelikes-rugbyfoto gehang en 'n sertifikaat dat hy in die Concorde of een of ander snaakse vliegtuig gevlieg net.
Hy net eers die slaapdruppels uit sy kluis gehaal en vir ons vier tot agt druppels per volwasse man uitgemeet indien ons dit sou nodig kry. Hy net ons gewaarsku om nie te veel te gebruik nie omdat 'n oordosis fataal mag wees.
Daarna het hy 'n gryserige poeier uitgehaal en vir ons gese as iemand daarvan inkry, gaan hy dood aan 'n hartaanval. Hy het gese hulle het dit op skape getoets en dit is baie effektief."
In
sub-paragraaf (G)(5) it is stated that according to
Coetzee they
followed the appellant's directions closely by
adding 60 milligrams
of the poison to the drinks of the two
intended victims. When this did not work Vermeulen
returned
to Pretoria where he obtained more of the poison.
The second dosage
of 120 milligrams likewise failed to
32
produce the desired result.
Thereafter article VWB(2) proceeds to relate
details of an alleged further visit by Coetzee and Vermeulen
in guest of an effective poison. Sub-paragraphs (G)(6) to
(10) quote Coetzee thus:-
"Toe die gif steeds nie wou werk nie, is ek saam met Vermeulen weer terug na Pretoria waar ons vir Lothar die Sondagoggend by sy huis gaan sien het.
Hy het in die Hatfield-omgewing naby Tukkies gebly. Ek onthou nog hy het twee verskriklike wreedaardige Dobermanns of Rottweilers gehad.
Hy het uitgekom in sy pajamas en gou 'n kortbroek en slippers aangetrek voor ons saam met hom na die forensiese laboratorium gery het. Neethling kon nie glo dat die gif nie wou werk nie.
Hy het van sy chemiese boeke uit sy boekrak gehaal en daarin rondgeblaai.
Hy het dieselfde gif uitgehaal en die keer 180 milligram afgemeet. Hy het die gif self opgelos en dit in een van my insulienspuite opgetrek en ek het dit met foelie toegedraai....
Neethling het gevra dat ek vir hom aantekeninge moet hou oor die uitwerking van die gif. Ek het die aantekeninge in my ondersoekboek gemaak."
33
Article VWB(2) goes on to say that according to
Coetzee's
account the third dosage of 180 milligrams (360
milligrams
in all) failed to work, whereupon the sleeping-draught
was
administered to Vusi and Peter before they were
ultimately
shot through the head and incinerated.
In sub-paragraph (H)(1) article VWB(2) states:-
"Coetzee vertel dat die slaapdruppels in verskeie binnelandse en buitelandse operasies gebruik is. Coetzee vertel dat hy persoonlik van die slaapdruppels by Neethling se kantoor gaan haal het."
In sub-paragraph (H)(2) reference is made to an abortive
kidnapping raid into Swaziland undertaken by Coetzee and
Nofomela with the object of abducting an ANC commander known
as "General". The attempt failed because by mistake the
sleeping draught was added to the drinks of the General's
driver. In connection with the sleeping draught provided
for use on this occasion sub-paragraph (H)(2) states:-
"Hy het vir die operasie agtien druppeltjies
van
34
Neethling ontvang, onthou Coetzee."
In sub-paragraph (H)(3) mention is again [see sub-paragraph
(C) above] made of the Kondile murder, and there is
said,
inter alia:
"Hy ['n gevange verdagte ANC-lid] is na Komatipoort geneem en van die slaapdruppels ingegee voordat hy tromp-op deur sy kop geskiet en verbrand is."
In sub-paragraph (H)(4) it is stated
that Coetzee was also
involved in the poisoning of a COSAS leader in
the Eastern
Cape in 1981. The article VWB(2) does not link the
alleged
incident with the appellant.
Lastly I deal with the WM article. It begins
with the headline:
"THE OLD THEORY THAT ASSASSINATIONS WERE THE WORK OF RIGHT-WING GROUPS IS BEING SWEPT ASIDE."
It proceeds (in paragraph (J)) to quote at length from a
paper written in 1977 by a military writer who was offering
advice to intelligence services as to how "extra legal
operations" should be carried out. The WM article then
35
states that much suggested by the military writer "has
come
to pass with devastating effect to its victims." By way
of
example it cites recent instances of "activists" who
were
victims of hand grenades which had been booby-trapped
and
which exploded in their own hands.
Paragraph (K) reads as follows:-
"According to self-confessed death squad leader Captain Dirk Coetzee poison was one of the methods used by the SA Police in dealing with ANC suspects.
He said bottles of whiskey were injected with poison prepared by the police forensic department and sent to Maputo to be given to ANC members and that an ANC suspect in detention in Post Elizabeth was poisoned."
Paragraph (L) reads as follows:-
"Evidence of hit-squad activity has mounted steadily over the past 18 months in a series of court cases and inquests. What the Dirk Coetzee allegations have done is give shape to the jigsaw. GAVIN EVANS traces the emerging patterns."
Sub-paragraph (M)(1) begins by saying:-
"SUPPORT for police assassination squads has
come
36
from the commanding heights of South Africa's security forces"
and adds that this is the
implication of the account by,
inter alia,
Coetzee.
Sub-paragraph (M)(2) reads as follows:-
"Coetzee's account names former police commissioner General Johann Coetzee as approving the hit squad murders and both Coetzee and Nofomela name recently retired police Brigadier Schoon as the man behind several of the slayings."
This is followed up immediately by sub-paragraph (M)(3),
which states:-
"According to Coetzee, another senior police officer involved was Lieutenant-General Lothar Neethling, head of the South African Forensic Bureau, which is said to have prepared the poisoned whiskey allegedly sent to ANC members in Maputo."
It is necessary next to determine the main issues
in the case by reference to the pleadings in the two
actions, both in their original form and also after an
amendment to the pleas following upon an application
37
therefor made and granted at a very late stage of the trial.
(D) THE PLEADINGS: (1) In the VWB case:
The appellant's particulars of claim alleged that
articles VWB(1) and VWB(2) contained matter which was
"false, malicious and defamatory" of him. The plea to
the
claim based on article VWB(1) denied that the words
used
were defamatory. The plea to the claim based on
article
VWB(2) denied merely that the words used were false
or
malicious. In the case of each claim there was the same
first alternative defence, formulated thus:-
"....the statements contained in the article were
true; and
the publication thereof was in the public
benefit."
In the case of each claim there was pleaded a second
alternative defence, formulated thus:-
"....the publication of the article complained
of
38
was lawful in that it took place pursuant to a duty on the part of the Defendants to inform the readers of the Vrye Weekblad newspaper as members of the general public of the contents of the article and a corresponding right on the part of the readers of the Vrye Weekblad newspaper as members of the general public to receive the information contained in the said article."
The appellant's replication was a general joinder of issue.
(2) In the WM case:
The appellant's particulars of claim alleged that
the words in the WM article were per se defamatory of the
appellant. The main defence pleaded was the followlng:-
"The Defendants admit that the statements were defamatory per se of and concerning the Plaintiff, but plead as follows:
The statements were true, and their publication was in the public benefit."
As an alternative to the above the plea raised a defence
which was formulated thus:-
"....the statements were published as the result of a debate about the existence or otherwise of
39
organisations or persons that had allegedly committed unlawful acts on behalf of the State, which debate had been raging in the press for some time, about, inter alia, the following disputed allegations...."
Thereafter the alternative
plea in five sub-paragraphs gave
particulars of five different
disputed allegations, the
fifth being that on 17 November 1989 VWB
had published
article VWB(1) which contained a reference to the
appellant.
The alternative plea concluded with the
following
averments:-
"In the circumstances the Defendants plead that the statements formed part of a series of allegati ons and denials thereof by the State, in an ongoing debate which was reported widely in the press, and as such the publication of the statements was in the public interest."
The appellant's replication was a general joinder of issue.
(3) The effect of the amendment to the Plea in each case:
By notice of amendment dated 29 November 1990 the respondents jointly gave notice of their intention to amend
40
their respective pleas. The application was resisted
on
behalf of the appellant. Having heard argument on
the
application Kriegler J allowed the amendment.
Paragraph A of the notice referred to discursive
particulars set forth in paragraph B thereof. The preamble
to
paragraph B recited that -
"Details of the facts and circumstances surrounding and leading to the publication of the contents of annexures 'A' and 'B' [articles VWB(1) and VWB(2)] to plaintiff's particulars of claim in case 89/24659 [the VWB case] and of annexure 'A' [the WM article] to plaintiff's particulars of claim in case no 89/24969 [the WM case] are as follows..."
What followed were six foolscap pages containing nineteen
paragraphs, respectively lettered (a) to (s), which were
rounded off by a further paragraph bearing the letter (t).
This last paragraph Kriegler J described as a peroration.
The thrust of the amendment appears sufficiently from the
following passage from the judgment of the court below:-
"In wese kom die wysiging daarop neer dat 'n reeks
41
van 19 openbare en belangwekkende verklarings in verband met onregmatige optrede deur lede van Suid-Afrika se veiligheidsmagte onder beskerming van bo groot openbare belangstelling gaande gemaak het. Daar word dan afgesluit met die perorasie [paragraph (t)]:
'In all the premises the publication by the aforesaid defendants of the said articles took place pursuant to a duty to publish vitally important information concerning a matter of wide public interest and concern and readers of the said newspapers as members of the general public had an interest in and a right to receive the said information.'"
The terms of paragraph A of the notice of
amendment show at once that the effect thereof was
more
radical in the WM case than in the VWB case.
The
particulars set forth in paragraph B of the notice were
to
be inserted after those paragraphs in the pleas in the VWB
case which raised the defence that publication of the
matter complained of had taken place pursuant to a duty on
the part of the defendants to inform its readers and a
corresponding right on the part of the readers to receive
42
the information. In the WM case, however, the particulars set forth in paragraph B of the notice of amendment were to be inserted, not after the paragraph of the plea in which the alternative defence was raised, but in place thereof. In the original plea in the VWB case the second alternative defence was explicitly formulated so as to indicate that the defendants in that case were relying on the defence of qualified privilege. In the VWB case, therefore, the function of the amendment sought was simply to supplement and augment the alternative defence of privilege. This follows from the unambiguous terms of paragraph (t) in paragraph B already quoted above, which is cast in the typical and traditional mould of a defence of qualified privilege, i.e. by averring the existence of a duty on the part of the defendants to publish and the existence of a reciprocal interest on the part of the readers of the newspapers to have the defamatory matter brought to their
43
attention. In the WM case the matter stands otherwise. In the original alternative plea in the WM case the defendants pleaded no more than that by virtue of an "ongoing debate", reported widely in the press, the publication of the defamatory matter "was in the public interest." Through the amendment this lastmentioned plea, for whatever it may have been worth, was jettisoned; and in its stead the defendants in the WM case invoked, as their only alternative defence that of qualified privilege.
After the amendment had been granted therefore, and assuming proof of the defamatory nature of the matter published in each case, the court below had to consider both in the VWB case and in the WM case the validity or otherwise of (1) a main defence of justification (that the defamatory matter in respect of the appellant was true and that its publication was in the public interest) and (2) an alternative defence of qualified privilege based on the
44
existence of a duty on the part of the newspaper to publish the
defamatory matter and a reciprocal interest on the part of its readers
to have
the matter communicated to them.
For the sake of completeness I
mention that in both cases Kriegler J correctly found the matter published of
the appellant to be defamatory
of him.
(E) THE EVIDENCE
The essential issues reflected in the pleadings having been indicated, one turns to the evidence led at the trial.
In regard to the quantum of damages claimed three witnesses were called on behalf of the appellant. These were (1) Dr D J C Geldenhuys, the general secretary of the SA Akademie vir Wetenskap en Runs; (2) Dr M J Pieterse, the deputy executive director of the Water Research Commission and a former fellow-student of the appellant; and
45
(3) General M C W Geldenhuys, a former Commissioner of the SAP and an old
friend of the appellant. Their testimony as to the appellant's
unblemished
reputation was not challenged by the respondents; and it was accepted by
Kriegler J.
On the merits a number of witnesses testified on either
side, the main witness for the respondents being Coetzee. Before examining
the
main features of his testimony it is convenient to get out of the way a whole
body of evidence which was led at the trial but
which is irrelevant for purposes
of the appeal. On Coetzee's evidence the space of time during which the
appellant supplied him with
poison and soporifics is confined to the period
between September and December 1981. On behalf of the respondents evidence was
further
adduced, however, in order to establish that at a much later date, that
is to say, during the period January to March 1987, poison
had been supplied by
the appellant or his subordinates at the
46
forensic laboratory; and that such poison had been used
by
South African security forces against the ANC. In
this
connection three persons testified for the respondents,
the
main witness being a Mr C J Lesia. Their allegations
were
denied by the appellant himself and by four other
witnesses
on his behalf. This evidence in regard to the
alleged
supply of poison during 1987 need not be recounted. It
was
meticulously sifted by the learned trial Judge in the
course
of his judgment. Kriegler J recorded as his conclusion
(which was not challenged in this court):-
"....dat die getuienis wat die gebeure rondom
Lesia in 1987 betref onafdoende is om die
lasterlike bewerings in die gewraakte berigte te
bewys."
At an early stage of Coetzee's examination in
chief, and by way of a prelude to the lengthy recital of the
various crimes committed by him in the course of his
chequered career in the SAP, counsel for the respondents
asked the witness to enlarge upon a concept described as "die veiligheidskultuur." It is necessary to quote at
47
length from Coetzee's response:-
"Ek kan miskien dit net meld dat in die veiligheidspolisie het ek en my kollegas, soos alle ander lede van die veiligheidspolisie bale spesiale beskerming geniet, 'n Beskerming wat ons in staat gestel het om onwettige operasies binne en buite die Republiek van Suid-Afrika uit te voer, asook binne en buite werksverband. Nou hierdie spesiale beskerming wat ons in staat gestel het om verhewe bokant die wet en polisiereels en regulasies op te tree, is nie statuter vasgestel nie en is moeilik om te definieer. Dit is vervat in wat ek noem ' 'n kultuur' wat behoort het aan 'n ' kliek' of wat was soos 'n hegte klein familie. Nou die kultuur is 'n droom van arrogante eksklusiwiteit, van verhewe wees bokant die wet, van geheimhouding, van noodsaaklikheid, van lojaliteit, van vertroue en begrip onder mekaar, van 'n baie spesiale verhouding tussen seniors -die hoofde - en juniors wat jy nie in die uniformafdeling byvoorbeeld sal kry nie .... hierdie eksklusiwiteit en noodsaaklikheid van geheimhouding is gerespekteer deur die res van die polisiefamilie, asook deur die bree publiek in die algemeen .... ons het dit aanvaar dat u weet 'all is fair in love and war'. Ons vaardighede, ons tegnleke, ons metodes is konstruktief aangewend om die regering van die dag se doelwitte en doelstellings te bevorder. Hierdie nie alleen ons kultuur nie, maar ook ons ingesteldheid, ons vaardighede en tegnleke, het baie ooreengestem met die van 'n bende boewe. Al verskil tussen ons was dat ons het deel gevorm van die bree
48
polisiefamilie wat sulke boewery aan die man moes bring .... Ek kan miskien ook meld dat hierdie polisiekultuur is nie iets wat amptelik onderrig is nie. Dit is iets waar jy in gegroei het, jy groei in dit in. Jou vordering word bepaal deur jou bonding teenoor die ANC, jou vaardighede en jou persoonlikheid .... Ons bet dus oortredings of misdaad soos moorde, poging tot moord, ontploffings, diefstal was aan die orde van die dag....Dit het by ons gegaan oor landsveiligheid en met enige middel moontlik die doel te bereik deur die aanslag teen Suid-Afrika van die sogenaamde terroriste af te weer met alle middele tot ons beskikking .... Die 'need to know' is 'n algemene uitdrukking in die veiligheidsmagte dwarsoor die wereld soos ek uitgevind het ook in die ANC. As ek 'n opdrag sou ontvang om iemand te elimineer, sal daar nie vir my gese word: Ons bet vanmôre 'n vergadering gehad met die minister of met Johan Coetzee of met wie ookal en die opdrag bet van hulle gekom en hulle het gesê jy moet daardie man gaan doodmaak, met ander woorde dat ek presies die aanloop tot die ding self nie noodwendig ken nie. Vir my sal daar gesê word: Jy moet ontslae raak van so en so en ek weet dit kom van bo af, dit is nie vir my nodig om te weet van wie af nie en ek sal dit uitvoer en so vir my word daar gese wat hulle nodig ag ek moet weet en so sal ek ook ondertoe werk met die ondergeskiktes ....As 'n man gevang word, dan se hy jy bet die elfde gebod oortree, moenie gevang word nie."
Coetzee's evidence-in-chief roved far and wide.
49
It involved, inter alia, affirmation of the truth of those statements which had been culled by Pauw from the transcript (exh "P") of the interview recorded at Mauritius and attributed to Coetzee in articles VWB(1) and VWB(2). In his evidence at the commission de bene esse Coetzee expanded upon the matter traversed in the articles by providing further circumstantial detail; and in addition he testified to the commission of further crimes by him not mentioned in articles VWB(1) and VWB(2). It is convenient here to make brief reference to the more important examples of such crimes.
(1) Car thefts in Swaziland:
Coetzee testified that while he was a lieutenant at Oshoek Captain Nick van Rensburg ("van Rensburg") of the Security Branch at Ermelo asked him to steal in Swaziland motor vehicles for relocation to Rhodesia as replacements
50
for vehicles destroyed in that country in land-mine explosions. In compliance with this request Coetzee stole a number of motor vehicles in Swaziland.
(2) The Rita Botes incident:
While Coetzee was
stationed at Oshoek a woman called Rita Lourens was prosecuted for illicit
dealing in diamonds. She sought the assistance
of Coetzee in the matter of
concocting an alibi defence. Coetzee helped her by falsely affixing certain date
stamps to the pages
of her passport.
(3) Accessory after the murder of a diamond dealer:
During or about November 1981, and while he was
based at Vlakplaas, Coetzee lent the sum of R5 000, which he had borrowed from his mother-in-law, to Nofomela, Mamasela, Tshikalanga and a fourth man ("the buyers") to enable them to buy diamonds from a seller in Lesotho. When the buyers returned from Lesotho with the diamonds Coetzee inspected
(50)a
their purchases and told them that they had been gulled. Coetzee told the buyers to return to Lesotho and to recover what they had paid. Soon afterwards the buyers reappeared in a Datsun motor car ("the Datsun") bearing a Lesotho registration number. The Datsun belonged to the seller of the diamonds. The buyers informed Coetzee that they had lured the seller out of Lesotho and that they had shot him to death near Lindley where they had left his corpse. Coetzee took prompt steps to have removed from the Datsun all marks of identification, whereafter he used his own police vehicle to travel with Nofomela and Tshikalanga to Lindley in order to collect the corpse. Having retrieved
(cont. p 51)
51
the corpse Coetzee travelled with it in the boot of his car via Durban to a spot close to the Swaziland border. There, with the assistance of van Rensburg and van Dyk, a pyre was built and the corpse of the seller was incinerated. In order to effect repayment of the loan to Coetzee's mother-in-law the Datsun was sold in Durban to an Indian who had useful trade connections in Maputo and Swaziland.
(4) The Joyce Dipale incident - attempted murder in Botswana:
Coetzee testified that on the evening of 26 November 1981 he sent Mamasela in a police van bearing false registration number plates through the Kopfontein border post to reconnoitre the road to Gaborone. Thereafter, and under cover of darkness, Coetzee, Vermeulen, van Dyk, Tshikalala and Nofomela surreptitiously crossed the border fence. The marauding party was armed
52
and the object of their exercise was an attack upon
the
occupants of a house in Botswana well-known to Mamasela
who
had earlier infiltrated the ranks of the ANC.
Having
established the absence of road blocks Mamasela linked
up
with the marauders and guided them to the house of
one
Joyce Dipale. The party had taken up their position at
the back of the house when at midnight a heavy thunderstorm
cut off the electricity supply and plunged the house into
darkness. The ensuing attack was only a qualified
success. In his evidence Coetzee described the critical
events thus:-
"En terwyl ons daar papnat gereën of gestaan en wag het en gedink hoe gaan ons in die huis inkom het twee dames met 'n kers in die hand in die kombuis ingekom, die agterdeur oopgemaak en in Joe [Mamasela] en Almond [Nofomela] vasgeloop. Joe het die een om die nek gegryp haar mond toegedruk en 'n skoot teen haar afgetrek wat vir my gelyk het in die donker soos 'n nek- of kopskoot. Sy het op die grond neergeslaan. Die ander dame het in die huis teruggehardloop, skote is agter haar ingeskiet. Ek het agter haar aangehardloop tot in die gang en nog skote agter
53
haar aangeskiet waarna ons padgegee het...."
(5) The theft in Johannesburg
of a trade union Kombi:
Coetzee testified that in August 1981 he
was informed by van Rensburg, then a colonel in the security branch at Port
Elizabeth, that
a group of trade unionists from that city were travelling by car
to Harare in order to attend a trade union congress, and that they
would break
their journey by spending the night at a Johannesburg hotel. Van Rensburg told
Coetzee that this party should be prevented
at all costs from reaching Harare in
time for the congress.
In response to this instruction a party
including Coetzee, Vermeulen, van Dyk and Nofomela went by car to the hotel in
question where,
in the hotel's parking area, they located the car in which the
trade unionists were travelling. It was a new Kombi ("the Kombi")
and the
ignition keys were in it. Vermeulen drove the Kombi away
54
followed by the remainder of the party in their own
vehicle.
At a later date, and with the approval of Schoon, the Kombi
was driven to the Oshoek border post by Coetzee and van Rensburg. The
Kombi had
meanwhile been provided with false licence and third party insurance discs. On
the South African side of the border the
Kombi was sold for R7 000 cash to an
obliging Portuguese motor dealer from Swaziland with whom Coetzee had earlier
had dealings.
(6) Malicious damage to property in the North-Eastern Cape:
According to Coetzee's evidence he set alight a number of motor vehicles in the North-Eastern Cape. These acts of arson were committed at the instance of the major in charge of the Security Branch office at Aliwal North, within whose area of operation there fell also the village
55
of Rhodes.
In Aliwal North there served in the uniform
division of the SAP a black sergeant who was viewed with disfavour for his
leftist tendencies
and his negative attitude towards the Security Police. He was
the owner of a Toyota Cressida motor car. Coetzee and others placed
an old tyre
containing petrol in this vehicle and set it alight. For reasons unknown to
Coetzee the flames failed to engulf the car.
At the same time there lived at Rhodes a colony of so-called "hippies" or artists whose presence was regarded by the major in Aliwal North as a nuisance. Late at night a party including Coetzee, van Dyk, Tshikalanga and Nofomela made an unobtrusive entry into Rhodes by car. While van Dyk and Tshikalange devoted their attentions to certain other parked vehicles Coetzee and Nofomela doused with petrol and then set alight a Volkswagen and a car
56
described as "'n stompneusvoertuig", before they sped away in their own car.
(7) The Lindley incident - defeating the ends of
justice.
According to Coetzee the killing of Vusi and Peter at Komatipoort was the culmination of a complicated sequence of events involving much roaming over large tracts of the country. These travels, in which hundreds of kilometres were covered, were punctuated by a brief incursion into the town of Lindley in the Orange Free State while he was motoring from Lesotho and bound for Middelburg in the Transvaal.In the course of this incursion Coetzee was travelling alone in his car followed by a truck driven by Nofomela in which Mamasela was a passenger, when a car ("the coupe") with five occupants turned into the road ahead of Coetzee. The coupe careered from side
57
to side in the road and Coetzee noticed that its driver as well as its four passengers were very drunk. Coetzee tried unsuccessfully to force the coupe off the road. Mamasela decided on firmer measures. He opened the door on the passenger's side of the truck, and while leaning out of it, he fired several shots at the coupe with a Makarov pistol.
When the coupé was finally brought to a stop it was discovered that three of the passengers had sustained gunshot wounds. Mamasela was not a member of the SAP and the Makarov pistol used by him in his attack on the coupe was an unregistered weapon. Mindful of possible complications Coetzee decided that a cover-up operation was necessary. He gave his own 9 mm parabellum to Nofomela with which the latter fired a few shots. Coetzee gathered the empty cartridge shells from the shots fired with the parabellum and took them to the police station at Lindley.
58
From Lindley Coetzee telephoned Schoon. He described the incident to Schoon and suggested that in the official report thereof it would be better if Nofomela should be represented as the man who had fired the shots, using the SAP parabellum, and that Masamela should be kept out of the whole matter. Coetzee testified that Schoon approved this course of action. Accordingly Coetzee drew up statements for the police dossier, for signature by himself and Nofomela respectively, in which the above false version of the shooting was set forth.
Against the above background I proceed to examine those parts of Coetzee's evidence which bear directly cm the actual issues in the case. The sting of the defamation is that as part of a criminal scheme to murder persons the appellant prepared and supplied poison; and that as part of a criminal scheme to kidnap and abduct persons the appellant prepared and supplied soporifics in
59
the form of "knock-out drops" which would render the victims unconscious. Of particular relevance, therefore, is the testimony of Coetzee in regard to (1) the murder of Vusi and Peter; (2) the murder of Kondile; and (3) the abortive kidnapping raid into Swaziland [see sub-paragraph (H)(2) in article VWB(2)] with the object of abducting an ANC commander, to which reference will hereafter be made as "the 'General' incident".
(1) The murder of Vusi and Peter:
The Vusi and Peter murder involves an account of the peregrinations of Coetzee and Vusi and those of Vermeulen and Peter during the month of October 1981. The saga begins with the date on which Vusi was released at the Brits police station and delivered into the custody of Coetzee; and it ends with the date on which, Vusi and Peter having finally been killed at Komatipoort, Coetzee
60
returned to base at Vlakplaas.
Documentary evidence established that Vusi was
released from the Brits police station
on 11 October 1981,
and that Coetzee, having thereafter travelled
far and wide,
returned to Vlakplaas on 29 October 1981. Coetzee did
not
have an independent recollection of the former date, but
he
was firm on the point that he had received instructions
to
collect poison and sleeping-drops from the appellant before
he collected Vusi at Brits. In his evidence in chief
Coetzee said:-
"Wel, voor ek Brits toe is het brigadier Schoon vir my gereël by generaal Neethling en ek is na generaal Neethling se laboratorium toe in Jacob Maréstraat waar ek by hom 'n gifpoeier opgetel het en druppels vir die doeleindes van ontvoering."
According to the witness the appellant was then known to
him only by name and reputation:-
"Ek het geweet dat hy 'n bale goeie chemiese ekspert was, spesialis was, 'n dubbele doktorsgraad in chemie gehad het, hy die hoof van die forensiese laboratorium was en baie knap was
61
in sy werk ... dat as die veiligheidspolisie gif nodig gehad het, het hy dit altyd voorsien asook drank en wat wie ookal nodig gehad het."
Coetzee was initially emphatic on the point that
before this visit to the laboratory in Jacob Mare Street
in
connection with Vusi and Peter, he had never met
the
appellant. " In describing this meeting the witness
said
that he introduced himself to the appellant:
"....en hom gesê daar is twee manne wat ek van ontslae moet raak, waarna hy my met twee pakkies gifpoeier voorsien het."
This conversation took place in the appellant's office, but
according to Coetzee he was given tea in the laboratory.
In the office Coetzee noticed an old police safe standing
on a base which he described as "houtstellasietjies"; and
hanging on the wall he observed a certificate recording the
fact that the appellant had been a passenger on a Concorde
flight; and a photograph of a rugby fifteen of the
Oostelikes Club wherein the appellant could be seen
62
standing in the middle row. The appellant told Coetzee
that
he had played rugby for the Oostelikes Club.
Questioned by counsel for the respondents as to
what the appellant had given him on this
occasion, Coetzee
replied as follows:-
"Twee ....pakkies poeiertjies .... die getal 60
is genoem ....Dit was baie min gewees. So dit moet wees 60 milligram. En ek het ook gevra vir druppels wat ons kan gebruik in drankies van persone tydens ontvoering, waar hy my van 'n deurskynende plastiekhouertjie voorsien het nadat hy druppels uit sy brandkas uit gehaal het, en hy gese het dit is baie duur druppels. Ek dink hy het R30/40 gemeld per druppel. Hy het vir my ek dink dit was agtien druppels afgetel in ook 'n deurskynende houertjie. Wat jy dan in 'n persoon se drank moes gooi. Vier druppels vir 'n medium-bou persoon wat dieselfde uitwerking as choloroform sou gehad het en wat die man dan in slaap sou laat ingaan en jy hom sou kon ontvoer. As jy te veel van dit sou toedien sou die man sterf."
Having left the appellant's office, so Coetzee's
evidence-in-chief continued, he obtained in Pretoria the
documents necessary for him to procure the release of Vusi
63
at Brits. He duly secured Vusi's release and took him,
via
Zeerust, to a farm near the Kopfontein border post on
the Botswana
border. On the farm there was an old
farmhouse which was used by
Vermeulen and his men as
sleeping quarters whenever they engaged in operations in
that
area. Vermeulen and Peter were already at the farm.
The events at
the farm were described thus by Coetzee:-
"Koos Vermeulen het die twee poeiertjies in 'n drankie leeggemaak. Vusi .... het 'n koeldrank gedrink, Peter het bier gedrink .... en terwyl hy dit voorberei het, het ek Vusi drie hoofkantoorbron-salarisontvangs voor laat teken, blanko, oningevulde salaris-kwitansies met twee verskillende penne .... twee sal in dieselfde kleur ink wees en die ander een dan in die ander kleur .... Dit was om voor te gee ....dat hy vir drie maande salaris sou ontvang het, 'n hoofkantoor informant-toelae, waarna hy weggeraak het .... om enige persoon wat navraag doen te mislei oor die werklike toedrag van sake, naamlik dat ons van horn ontslae geraak het."
As to what took place after Vusi and Peter had consumed
their drinks laced with the powder obtained from the
appellant, Coetzee remarked:-
64
".... daar het niks gebeur nie. Volgens generaal Neethling as iy die spesifieke poeier in daardie hoeveelheid vir 'n skaap sou ingee was dit tussen vyf en ek dink vyftien minute, die skaap sou net in die lug spring en dood neerslaan en die nadoodse ondersoek sou dan 'n hartaanval aandui."
The powder having had no apparent effect on the intended victims, when night fell meat was grilled and consumed. Vusi was manacled to Peter, the latter having been led to believe that Vusi was in his custody. Coetzee and Vermeulen then gave Vusi a drink containing four drops of the appellant's soporific - later to be dubbed "knockout drops" - whereafter they proceeded to note down what the effects of the drops were on Vusi and how soon they manifested themselves. Coetzee explained that the appellant had told him that the effects depended upon a number of imponderables as, for example, how long before their taking them the victim had last had anything to eat, and the rate of ingestion of the drops; and it was at the specific request of the appellant that he kept a
65
record of Vusi's reactions. The effects, as observed
by
Coetzee, were that within twenty or thirty minutes Vusi
was
bereft of speech. His eyes were:-
"wild, wild oopgesper, hy het op stadiums in die grond langs hom gegrawe terwyl sy oë oopgesper was. Dan het hy begin rondrol, vreeslik rusteloos gewees. Dwarsdeur die nag en dit het aangehou tot die volgende oggend .... ek dink die volgende môre het hy net van hoofpyn gekla."
On the following day Coetzee remained at the farm while
Vermeulen went to see the appellant in Pretoria, whence he
returned with a double dose of the poison. The appellant,
so Vermeulen informed Coetzee, found it difficult to
believe that his powder had not had the desired results.
According to Coetzee a further dosage was then administered
by them to Vusi and Peter, with equally disappointing
results.
From Coetzee's evidence-in-chief it is clear that
it was after this second and abortive administration of the
appellant's poison that he and Vermeulen travelled to
66
Pretoria to see the appellant at his home on a
Sunday
morning. Coetzee's recollection of the sequence of
the
events intervening before the visit to the appellant's
home
was somewhat hazy. Having described the second
and
unsuccessful attempt to poison their victims,
Coetzee
proceeded to say:-
"....en toe net daar 'n periode verloop wat ons. onder andere verhuis het Groblersdal toe om in daardie omgewing te gaan werk met die hele span
When counsel for the respondents asked the witness whether he could remember what happened from the time they left Kopfontein and until they reached Groblersdal, Coetzee answered that he had no specific recollection thereof. He added, however, that from certain dates that had been made available to him he knew that at a stage when he was journeying by car from Lesotho to Middelburg in order to give assistance in tracking down certain terrorists who were on the run after they had gunned down people in a
67
caravan at Ogies ("the Ogies incident"), his journey had been interrupted near the town of Lindley. At this stage of his evidence in chief Coetzee embarked upon a lengthy and detailed account not merely of the Lindley incident (whose essential facts have already been outlined in this judgment) but also of the whole and rather complicated aftermath of the Lindley incident in regard to prosecutions by the office of the Attorney-General of the Orange Free State.
After this diversion involving a description of the Lindley incident the threads of the Vusi and Peter tale were taken up once more by the witness. Having finally completed his journey from Lesotho to Middelburg Coetzee reported to the divisional headquarters of the Security Branch at Middelburg, whereafter he and the entire Vlakplaas contingent were based in an old farmhouse at Groblersdal while the search for the terrorists involved in
68
the Ogies incident continued. After Coetzee had already moved into the farmhouse Vermeulen arrived there with the two hapless captives still in tow. With reference to Vermeulen's appearance at the Groblersdal farmhouse counsel for the respondents inquired of Coetzee whether this happened "daardie selfde Saterdag aand", to which the witness replied that he could not remember whether it was on that night or the following morning. Thereafter Coetzee's evidence-in-chief proceeds:
"MNR LEVIN: Ja, en wat het toe gebeur? ----
KAPTEIN COETZEE: Ons het toe....op 'n Sondagmôre
na generaal Neethling se huis toe gery.
MNR LEVIN: Wie?
KAPTEIN COETZEE: Ek en Koos Vermeulen.
MNR LEVIN: Met watter doel?
KAPTEIN COETZEE: Om weer gif te gaan haal vir
die derde keer om Vusi en Peter dood te maak."
Coetzee then proceeded to describe the situation
of the appellant's house in Prospect Street in the Eastern
69
suburbs of Pretoria. He put the time of the visit at
between
9 am and 10 am, and said that they had come from
Groblersdal. When
counsel sought to elicit the date of
the visit more precisely, the
answer of the witness was:-
"Ja, ek kan nie onthou of dit spesifiek daardie Sondag was of die Sondag net daarna."
When they knocked at the door, so Coetzee testified, the
appellant, still clad in his night-clothes, appeared.
Asked whether he and Vermeulen had explained their purpose
of the visit, the witness said:-
"Ja, maar net weer gerapporteer dat daardie gif wat hy vir ons gegee het, nie gewerk het nie."
Thereupon the appellant went into the house to get dressed.
He did not invite the visitors to come inside his house;
and while the appellant got dressed Coetzee and Vermeulen
waited for him on the stoep. After a while he reappeared
holding a bunch of keys. Coetzee and Vermeulen then
accompanied him to the forensic laboratory.
70
Of the events at the laboratory on the Sunday
morning Coetzee gave the following account:-
"In die laboratorium het hy op 'n stadium in 'n boek naslaanwerk gedoen waarna hy die poeier, 'n triple (sic) dosis in twee insulienspuitjies van my opgelos het, en in twee insulienspuitjies 100 eenhede insulienspuitjies opgetrek het, dit in blink papier toegedraai het sodat die silinders nie kan afdruk en die vloeistof uitspuit nie, en waarna ons .... hom eers gaan aflaai en toe terug is Groblersdal toe."
Counsel for the respondents invited the witness
to say something of the appellant's house. Having
described its external appearance Coetzee went on to say:-
"Die huis het 'n stoep voor met 'n gang na die voordeur toe, en die voordeur in die gang wat in die huis afloop, deel die huis basies in 'n linker- en regterkantse deel. Die vertrekke loop links en regs uit die gang uit. Die huis het plankvloere."
As they were leaving the house, so testified Coetzee, he
heard the appellant speaking in German to females in the
house -
71
"....en op 'n vraag van my net hy my meegedeel dat hulle huistaal Duits is. Hy praat Duits met sy dogters."
The witness
further said that he heard two large dogs
barking. He noticed on the
premises two Rottweilers.
There was some sort of discussion between
him and the
appellant about these two dogs, but Coetzee was unable
to
recall what had been said.
Having dropped off the appellant at his home,
Coetzee and Vermeulen returned to Groblersdal. There, so
testified Coetzee, Vermeulen used the triple dosage of the
appellant's poison to lace drinks which were given to Vusi
and Peter; but again the powder proved to be a complete
failure. Thereupon it was decided that the party should
move to Komatipoort. At Komatipoort they joined forces
with Flemington and two or three of his men. They all
foregathered at a spot next to the Komati river which
Coetzee proceeded to describe in minute detail. There it
72
was that the two victims finally met their end. Coetzee
gave the following description of their execution:-
"....daar is ....Vusi en Peter van hierdie druppels ingejaag ... wat die effek van chloroform het, en toe hulle goed bedwelmd was het Kaptein Koos Vermeulen elkeen van die twee agter die oor geskiet nadat hy hulle kop skeef vasgetrap het met 'n skoen."
The victims
were shot to death with a Makarov pistol fitted
with a silencer
provided by Flemington. According to the
witness Vermeulen, whom he described as a reactionary with
no love for Blacks, insisted upon doing the shooting
himself. Thereafter the two corpses were placed on a pyre
made of old tyres and leadwood stumps, and set alight.
The fire was carefully tended through the night as members
of the party refreshed themselves -
"....digby die vuur, by hierdie brandstapel het ons die hele nag maar gesit en drink en vleis gebraai terwyl ons heelnag natuurlik die grootste hompe van die liggaam wat nog oor was, vars kole onder ingekry het sodat dit kan heeltemal uitbrand tot as - en die volgende more vroeg het ons wat oorgebly het van die brandstapel in die
73
rivier met grawe ingegooi."
Counsel for
the respondents asked whether during the night
in question there had
been any talk of poison. This
question elicited the following reply
from Coetzee:-
"Daar was. Majoor Flemington het ons meegedeel hoe generaal Neethling vir hulle 'n bottel whisky voorberei het deur met 'n mikronaald gif in die whisky in te sit sodat die seel nie gebreek word nie en die gaatjie weer afgeseel word waarna hulle die bottel met 'n informant in Maputo ingesmokkel het na die ANC toe en iedere een wat uit daardie bottel iets sou drink sal doodgaan."
Coetzee's evidence in chief in regard to the Vusi
and Peter murder was rounded off by a further reference to
the salary receipt forms which Vusi had been made to sign
in blank at the farm near Kopfontein. The witness
testified that late in 1982 or early in 1983 he was
summoned to the Security Branch head office by Schoon.
Schoon told him that Vusi's attorneys were becoming a
nuisance; and he instructed Coetzee to make a statement to
the effect that Vusi had disappeared from Vlakplaas.
74
Coetzee described how he carried out this instruction:-
"Ek het toe 'n verklaring ingesit in my handskrif waarin ek meegedeel het dat hy losgelaat is en vrywillig vir ons gewerk het; dat hy 3 maande vir ons gewerk het; dat ek hom nie op die plaas gebring het, maar aan die einde van die maand wanneer die ander Askaris af het, het ek hom by die stasie gaan aflaai sodat hy die naweek sy familie kon besoek en dan het ek weer 'n punt met horn bespreek waar ons hom sou optel. Dit was om te verhoed dat daar van ons ander kollegas op die plaas, Askaris, wat hom kon sien en later kon sê dat hy wel op die plaas was. En nadat ek hom die derde keer afgelaai het aan die einde van die maand, het hy nooit weer teruggekeer nie. Ons weet nie wat het van hom geword nie. En natuurlik as bewys dat hy sy salaris ontvang het en 3 maande vir ons gewerk het, het ons dus daardie 3 getekende informantfooie-kwitansies voorgelê."
2) The Kondile murder:
In sub-paragraph (C)(1) of article VWB(1) there is described the theft in the Eastern Cape by Coetzee and Nofomela of a motor car belonging to a trade union leader in Port Elizabeth. Coetzee testified that the car in question was an Audi. Documents made available by the
75
SAP established that Coetzee and Nofomela were in the Eastern Cape during September 1981, and that an Audi car was stolen there on 13 September 1981. Coetzee further testified that the stolen Audi was taken to Jeffrey's Bay, and that it was there that he encountered Kondile (cf subparagraphs (C) (2)-(4) of article VWB(1))
In his evidence in chief Coetzee gave the following account of his dealings with Kondile:-
"Op 'n stadium later nadat ek op Jeffreysbaai was, ek kan nie spesifiek onthou watter datum nie, het ek opdrag ontvang van brig Schoon om druppels van gen Neethling te verkry, wat soos chloroform werk, wat ek gaan optel het vergesel van adjutant-offisier Paul van Dyk van Vlakplaas en dat ek kol van Rensburg saam met maj Archie Flemington op Komatipoort moes ontmoet."
According to Coetzee he and van Dyk saw the appellant in
the latter's office, collected the drops, and proceeded to
Komatipoort where they met up with Flemington and two of
his men. On a particular farm, whose location Coetzee
described in some detail, there arrived later in the
76
afternoon Col van Rensburg, Capt du Plessis and a Sgt
Raadt.
They were travelling in a Cortina motor car, and
they had Kondile with them. What happened thereafter
Coetzee described rather tersely in his evidence in chief:
"....waar hy [Kondile] weer van hierdie druppels in 'n bier ingegee is, baie kort daarna omgeval het en toe is hy met dieselfde Makarov pistool en knaldemper van maj Archie Flemington in die kop geskiet deur 'n sersant of 'n adjutant-offisier -skraal ligte-kop sersant of adjutant-offisier van die personeel van maj Archie Flemington. Weer eens het hulle die hout aangery en bande waarmee 'n brandstapel opgerig is en waar hy, Kondile, deur die nag op gebrand is tot as terwyl ons baie na aan die vuur deur die nag maar vleis gebraai en gedrink het."
The place in question was not near a river. The ash was
simply raked flat.
(3) The "General" incident:
In his evidence in chief Coetzee testified that "General" was a relatively senior ANC official living in Mbabane, Swaziland. He was a friend of one Lockwood, a
77
South African citizen, and a police informer, who spent
much
time in Swaziland where he had a flat and was often
visited by "General". Coetzee was given orders to abduct
"General" from Swaziland. It was hoped to obtain from him
information concerning the places of residence of other ANC
members living in Swaziland.
In execution of the above order, so alleged
Coetzee, he and Nofomela:-
"....het die nodige druppels na oorleg met brigadier Schoon en generaal Neethling van generaal Neethling opgetel van sy kantoor af en is af Swaziland toe waar ons in 'n lee huis by Nerston grenspos ....dit was in Desember 1981 -het ons kamp opgeslaan...."
From Nerston and Oshoek Coetzee telephoned Lockwood and
made certain arrangements with him. On the appointed
night "General" arrived at the flat of Lockwood at Matenga
Craft in a Mazda driven by his driver who was a Swazi.
The plan was that Lockwood should ply "General" with wine
laced with the knock-out drops. The driver of the Mazda
78
was soon rendered insensible but, for whatever reason,
Lockwood failed to drug "General." When Coetzee and
Nofomela had secreted themselves into a darkened bedroom
adjacent to the lounge in which "General" was being
entertained they could hear from his manner of speech that
"General" was far from being benumbed.
Immediately
-afterwards they obtained confirmation of this state
of
affairs when, on his way to the toilet, "General" walked
through the bedroom in question. Of the resulting
encounter between the would-be abductors and their quarry
Coetzee gave the following description:-
"Hy het in die donker kamer in ons vasgeloop. Ons het hom vasgevat en ons is grond toe met hom. General het geskree soos 'n maervark. Almond [Nofomela] het sy mond probeer toedruk - dit is 'n kort, skraal mannetjie, maar hy is so sterk soos 'n leeu. Hy het Almond op die voorarm .... ek dink dit is die linkerarm gebyt . . . .Ek het sy keel probeer toedruk en kon dit nie regkry nie. Almond het my meegedeel dat hy hom byt en ek het gesê:Byt terug, waarna Almond 'n stuk kopvel agter uit sy kop uit gebyt het. Die woonstelligte het toe aangegaan en ek het vir Almond gesê ons
79
moet padgee ....ons is toe uiteindelik by die venster uit en weggehardloop en onverrigtersake is ons terug Oshoek toe."
So much for Coetzee's account during
his evidence in
chief of his direct personal dealings with the
appellant in
connection with the supplying of poison and soporifics
by
the latter to the former. As will emerge in due
course,
the appellant in his evidence not only denied that he
had
ever supplied poison or soporifics to Coetzee, but he
was
unable to recall that he had ever had any personal
dealings
whatever with Coetzee. A documentary piece of
evidence
relevant to this question is a note-book (exh "B") which
Coetzee kept while he was at Vlakplaas. In the note-book
Coetzee recorded the telephone numbers of a large number of
persons. At page 43 of exh "B" there is inscribed the
telephone number of the appellant at the forensic
laboratory (in 1981 when it was housed in Jacob Maré
80
Street). In what follows reference to this entry will be
made
as "the telephone entry". The telephone entry is
made in the hand of
Coetzee and in it the surname of the
appellant is misspelt. It
appears thus:-
"Genl Neetling Tel: 28.2218 ) 3-2553 )
H "
The circumstances in which he made the telephone
entry, and the probable date thereof, were explored at
length with Coetzee during his evidence. In chief the
witness was asked why he would have made the telephone
entry. His answer was -
"Omdat ek met hom kontak gehad het en hy die nommers vir my sou gegee het, dat as ek hom nodig sou kry of enigiets verder van hom verlang het, kon ek met hom skakel."
In cross-examination Coetzee was asked when he had obtained
the numbers reflected in the telephone entry. He replied
that he had got them at some time during the period of
81
seventeen months (August 1980 to 31 December 1981) while
he
was at Vlakplaas. He said that he was unable to indicate
a
more precise date. When asked how he had obtained
the
numbers the witness initially answered:-
""Dit moes deur gen Neethling persoonlik vir my gegee gewees net."
Further pressed on the point Coetzee said "Dit kon net hy
[the appellant] gewees het; and when the suggestion was
made to the witness -
"Now are you sure General Neethling gave you
these two
numbers? "
he answered in the affirmative.
Further questioning elicited that the appellant
had never telephoned Coetzee; and that the witness had no
specific recollection that he himself had ever telephoned
the appellant. When later in his cross-examination
Coetzee was again asked when he had been given the numbers
he responded by saying that it had been in the course of
82
one of his visits to the appellant. Pressed to say when
he
had for the first time visited the appellant the reply
of
the witness was:-
"Ek vermoed dit was die slag toe ek Peter en Vusi se gif gaan optel het."
Counsel for the appellant explored with Coetzee the
sequence of his alleged visits to the appellant. The
witness
agreed that on his version the first occasion had
been shortly before the release of Vusi; the second
occasion
had been the visit to the appellant's home; and
that the third visit had been in connection with
Kondile.
Asked to fix the date of the third visit, Coetzee
replied:
"Ek kan nie onthou wanneer is hy doodgemaak nie. Ek weet dat ek hom gesien het by Jeffreysbaai polisiestasie op 13 September. Nou weet ek nie hoe lank daarna ons hom toe uiteindelik doodgemaak het nie."
The next visit, so testified Coetzee -
"....moes gewees het vroeg in Desember net voor ek af is Swaziland grens toe vir General se storie."
83
Coetzee was unable to say whether Kondile was killed
before
or after Vusi and Peter were killed.
In cross-examination Coetzee stated that the idea
that Vusi and Peter should be killed
by poisoning had
originated with him; and that he had suggested this
means
of killing to Schoon. He explained his penchant
for
poison by saying that it was a better means -
"....om 'n ou dood te maak as om hom te skiet terwyl hy vir jou staan en kyk."
Counsel for the appellant pointed out to Coetzee that at an
early stage of their travels with Vusi and Peter he
(Coetzee) and Vermeulen knew that the poison was not working, but that the drops were. He then put the
following question to the witness:-
"Why did you have to go back to Pretoria on two more occasions to get poison when the poison had not worked the first time? You had the drops, you could have administered the drops and shot them, couldn't you? ---"
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The witness replied:-
"Ons kon, ons net dit nie gedoen nie."
He proceeded to explain the drops cost R40 each, and that they did not want to
waste them at
that stage.
So much for the evidence of Coetzee. For the purposes of the appeal it is necessary to consider the testimony of two other witnesses called on behalf of the respondents. These were Mrs M S E Coetzee, the mother of Coetzee, and Mr M W Welz. The evidence of Mrs Coetzee may be very shortly stated. She was formerly employed by the Nursing Council in Pretoria. She testified that she stopped working for the Council on 6 March 1981 in order to assist in the care of Coetzee's younger son who is also a diabetic.
On an unspecified date thereafter, but at the time when Coetzee was based at Vlakplaas, she asked her son to take her to town by car. When she had attended to her
85
own business Coetzee asked her whether she was in a hurry -
"Toe sê ek nee hoekom, toe se hy want ek wil gou by die Forensiese Laboratorium lets by generaal Lothar Neethling gaan haal."
An objection to the above oral communication was made by
counsel for the appellant. How it was ultimately dealt
with by Kriegler J may conveniently be considered later.
According to Mrs Coetzee her son then drove to Jacob Mare
Street and parked his car under a tree in front of the
forensic laboratory which he entered. She waited in the
car. After a while she saw her son descending the steps
in front of the laboratory. He carried something in his
hand. She neither saw nor inquired what this object was.
As he approached the car Coetzee put the object into the
pocket of his safari jacket.
Mr Martin Sylvester Welz ("Welz") is a free-lance
journalist. At the end of 1983, when he was following up
a story which led to the resignation of the then Minister
86
of Manpower, he got to know Whelpton who had been
the
Minister's secretary. Whelpton, in turn, introduced
Welz
to Coetzee. Welz said that he was unable to put an
exact
date to the latter meeting "but it must have been
early
1984". Over a period of a year, so testified Welz, he
and
Coetzee often met. The nature of their relationship and
the topics of discussion between them were described as
follows by Welz during his examination in chief:-
"And what was the purpose of these meetings? ---
At first they were more sort of social encounters when I saw Whelpton, Coetzee would be there or would arrive. Subsequently it was in the course of following up a story on possible illegal telephone tapping by the police and after that it was, I think it was probably a mixture of the two with some interest in the possibility of Dirk Coetzee's other material sort of coming to the stage where one could publish something.
Now did Dirk Coetzee confide in you at all ---
Initially not, subsequently yes.
Was that done on a confidential basis or was it done on a basis that .... the information was
available for publication? --- It was done on an
absolutely confidential basis, in fact Whelpton
87
had persuaded him that he could speak openly in my presence and that was when I heard some of the first stories about irregular activities in the police force."
Welz kept no notes of the information given to him by
Coetzee. The witness explained:-
"I soon realised that whatever it was the
material was very dangerous material to be
handling and certainly not publishable at that
time."
When counsel for the respondents asked the
witness whether Coetzee had mentioned to him any stories
involving soporifics or poisons Kriegler J questioned the
relevancy of the evidence proposed to be led. Thereupon
Mr Levin submitted that evidence of prior consistent
statements by Coetzee to Welz, at a time when Coetzee had
no motive to misrepresent, was admissible in order to repel
a suggestion implicit in the cross-examination of Coetzee
that his implication of the appellant was an imaginative
fabrication. The question of admissibility was argued by
88
both sides.
In the result Kriegler J ruled the evidence so
tendered to be admissible "to rebut the suggestion of subsequent fabrication by
Coetzee
of the procurement by him from the plaintiff of poison." Welz then
continued to testify. The kernel of his evidence is to be found
in the following
passage:-
"What was the information you were given? ---
I cannot remember any detail of these stories, but I do recall that they had got to discussing how they had got rid of uncomfortable witnesses or cases that were potentially embarrassing and had to be disposed of without sort of attracting public attention and he then told with some hilarity, I would say at the time, of how they had obtained poisons from the police laboratories and he did name General Neethling by name at the time, that I do recall as General Neethling being quite a prominent figure in the police hierarchy at the time. I say that because I don't recall the names of other policemen that were involved ...in this specific incident but he told how they
89
had obtained the substance which they had added to drinks that had been given to persons they had in their custody and how they had sat around waiting for something to happen and how nothing had happened and how they had administered more and still nothing had happened and the hilarity I think was prompted by the fact that the newfangled methods didn't work, so they finally just shot them anyway and the old method seemed to work were the more reliable ones."
In cross-examination Welz said that
when presented with the
whole of Coetzee's story his assessment at
the time was
that its reference to the appellant was unimportant
and
"merely a funny aside"; and that at that stage he
"regarded .... Neethling as a minor element in the story."
I turn to the testimony of the appellant and to
those of his witnesses whose evidence is germane to the
appeal. Before dealing with the evidence of the appellant
himself it is convenient to deal briefly with two witnesses
called in rebuttal. Mention has already been made of the
fact that General Geldenhuys testified on the issue of the
quantum of damages. While the witness was being led in
90
this connection, however, the questions put by counsel
for
the appellant strayed into the field of the merits.
The
ensuing procedural dilemma for Mr Oshry was removed by
an
agreement between counsel; and thereafter the
witness
testified further on the merits. The purport of
his
evidence was general in nature. It is usefully
summarised
by Kriegler J in the following passages of his
judgment:-
"Die generaal, wat ten tye van die gewraakte gebeure die Kommissaris van die Suid-Afrikaanse Polisie was, getuig dat hy geen kennis gedra het van enige polisiebedrywighede van die aard wat Coetzee beskryf nie en dat hy daarvan bewus sou gewees het as daar soiets plaasgevind het. Hy dra geen kennis van enige bedekte Suid-Afrikaanse optrede oor landsgrense heen nie. Wat hom betref was die werksaamhede normale misdaadondersoek wat altyd met die goedkeuring, die magtiging, die samewerking van die plaaslike polisie geskied het. Hy het wel verneem van die opblaas van huise, die gebruik van briefbomme en ontvoerings maar dra geen kennis van enige verband daartussen en die Suid-Afrikaanse Polisie nie. Hy herinner hom vaagweg 'n geval soos dié van Pillay maar kan geen besonderhede daarvan onthou nie. Dit is vir hom onbegryplik en onverstaanbaar dat Schoon ooit vir eiser kon versoek het om gif aan Coetzee te verskaf. Dit
91
sou ongehoord gewees het en eiser sou horn bejammerenswaardig agter gelaat het .... Eiser was in geen opsig verbonde aan die operasionele sy van die veiligheidspolisie nie...."
Flemington was also called in rebuttal. This witness joined the SAP in 1959 and was transferred to the Security Branch some seven or eight years later. In 1971 he was posted to the Lebombo border post at Komatipoort where he remained until the end of 1981 when he was transferred to Durban. He went to Komatipoort as a lieutenant and left it as a major. In 1983, and for financial reasons, he retired from the SAP.
According to Flemington his dealings with Coetzee were few and somewhat trivial. During Coetzee's spell of duty at Oshoek he and the witness saw each other on a number of occasions at Middelburg at conferences of branch commanders.
Flemington told the trial court that their last meeting occurred somewhere between March 1981 and, at
92
latest, mid-1981, when Coetzee arrived at his office at Komatipoort with a party of men which included two Askaris. Coetzee informed him that they were on the trail of ANC terrorists who were crossing the border into South Africa, and he sought accommodation for his party at one of Flemington's border guardposts. This Flemington arranged for them.
According to Flemington the persons Koos Vermeulen and Paul van Dyk were unknown to him. When Coetzee's allegations regarding what had happened at Komatipoort in connection with the Vusi and Peter murder were put to the witness he denied that there was any truth in them. Flemington similarly denied any participation by him in the events surrounding the murder of Kondile at Komatipoort or in the disposal of his remains.
Asked whether there was any truth in Coetzee's
93
allegation that Flemington had told him of poisoned
whisky
being sent to the ANC in Maputo, the witness said
the
following in his examination in chief:-
"No, I never told him any such thing.
Did any such thing ever take place? ---
Not ever, I don't even know General Neethling, I met him for the first time on Monday in your chambers .... The very first time I ever set eyes on him in my life."
In cross-examination Flemington said that he had never even
heard of poisoned liquor prepared in the manner mentioned
by Coetzee.
Flemington testified that while he had been
stationed at Komatipoort his border-post men were never
deployed in operations across the border. When tested
during cross-examination as to his knowledge of the "need
to know" rule Flemington responded by saying that he could
imagine what the expression meant, but that he himself had
never encountered it. Nor, according to the witness, had
94
he ever heard of what was known in the security police as "the eleventh
commandment."
Turning finally to the appellant himself, it is
necessary to begin by mentioning a few domestic details. He married in 1959 a
woman
born in Pretoria of a German mother. While the appellant himself is fluent
in German, his unchallenged testimony is that Afrikaans
is his home language. He
says that his wife's understanding of German is reasonably good and that her
spoken German is adequate.
He adds, however, that he speaks German to her only
when they are in the company of Germans. They have two sons and two daughters.
According to the appellant he has never spoken German to any of their children.
Indeed, he says that none of the children is able
to speak German.
The appellant told the trial court that his house in fact has wooden floors, but that since 1973 or 1974 the floors have been covered in carpeting extending from wall
95
to wall. In 1981 the family owned a Rottweiler bitch. They have never had
a Dobermann.
In the course of his evidence the appellant described
with some particularity the lay-out of the forensic laboratory and his office
at
Jacob Mare Street. He stressed that, whether by day or by night, his office had
never been locked and that to gain access to it
would not have been a matter of
difficulty. The appellant also described the furniture and fittings in his then
office. He admitted
the presence both of the certificate recording his flight in
the Concorde and the photograph of the Oostellkes Club rugby fifteen
of which he
had been a member.
The witness agreed that there had been (and still was) a safe in his office; but when his counsel invited him to say whether there was any resemblance between it and the safe which Coetzee had described in his cross-
96
examination he replied that there was none.
When asked
whether he was an authority on poisons the appellant claimed a wider knowledge
than most of his colleagues in this particular
field for the reason that over
the years he had become engrossed in it. He acknowledged that he would know, if
bent on homicide by
poisoning, what poison would be quick and lethal.
The appellant flatly denied that he had ever
supplied poison or soporifics to anybody. In regard to
the so-called "knock-out drops" he said that there was no
such thing in his laboratory. He denied that he had ever
received a telephone call from Schoon requesting him to
supply poison to Coetzee. Asked what his probable
reaction would have been had Coetzee come to him in quest
of poison he replied:-
".... ek sou hom waarskynlik weggejaag het en ek sou die telefoon opgetel het en of die speurhoof òf die Kommissaris gebel het...."
97
When his counsel asked the appellant whether he
knew Coetzee he answered -
"Ek kan hom nie onthou nie al sou 'n mens my gepynig het."
The appellant's possible knowledge of Coetzee was explored
with him in cross-examination:-
"Soos ek u getuienis in hoof verstaan het, ken u
horn glad nie, u het hom nooit ontmoet nie, u kan
horn nie onthou nie, u het niks met horn te doen
gehad nie op enige geleentheid tydens u polisie-
loopbaan, is dit die korrekte weergawe wat ek van
u getuienis-in-hoof verstaan?
Ek dink dit is in hoof trekke korrek met die veronderstelling dat ek gesê het dat as hy in een van die klasse gesit het waar hy dalk 'n lesing van my kon gekry het of as hy dalk by die laboratorium sou aangedoen het vir watter doel ookal en ek hom daar sou raakgeloop het sonder dat ek eers geweet het wie hy is. Met ander woorde, sy gesig op hierdie oomblik is onuitwisbaar in my geheue maar ek het hom nie geken voordat hierdie fotos van hom nie gepubliseer is en .... ek het hom nie geken, ek sou nie geweet waar hy geopereer het nie."
During his evidence
in chief the appellant denied
98
that he had ever given any telephone numbers to Coetzee. He also gave details of his absences from South Africa during the months of September and October 1981. He was out of the country from 25 September to 6 October; and he was in West Germany from 17 October for a visit lasting one week. He returned to South Africa after the last-mentioned visit on Saturday 24 October 1981.
Against the background of the above general outline of the appellant's evidence there must now be brought into closer focus certain excerpts from the appellant's testimony not only at the trial but also before the Commission of Inquiry presided over by Mr Justice L T C Harms ("the HCI"). Such closer examination is necessary for a proper understanding of the nature, scope and significance of a number of adverse credibility findings made against the appellant by the learned trial judge which will be considered later in this judgment.
99
By way of introduction it may be mentioned that the video-tape of the particular edition of the British Television programme "Dispatches" which was televised in the United Kingdom on 4 April 1990 was handed in at the trial as exh 3. Exh 3 portrays, inter alia, camera shots of the front of the appellant's house. During the trial exh 3 was viewed by the court below. During the hearing of the appeal it was also viewed by this court. Before he testified at the HCI the appellant obtained a copy of exh 3.
(1) At the HCI Mr McNally put the following question
to the appellant:-
"Waar meen u kon kaptein Coetzee die besonderhede
van u huis gekry het as hy nie, soos u nou getuig
het, u nooit besoek het? "
In answering this question the appellant referred to exh 3
and said that he had seen that Coetzee -
100
"....daardie beskrywing kon hy gekry het deur net na die televisieopname te kyk maar dat hy dan as hy kom by die detail heeltemal verkeerd is."
As an example of Coetzee's faulty
detail the appellant then
mentioned to the HCI that the front door
of his house (as
portrayed in exh 3) was open and -
"....as 'n mens met die televisiekamera daar [the open door] ingaan dan gaan jy tot by die agterste kamers ingaan en jy sien duidelik dat dit is 'n lang gang maar verder eintlik niks."
(2) After exh 3 had been viewed in the court below
and during the appellant's evidence in chief counsel put
the following question to the witness:-
"As far as you are able to make out, you have seen this picture, I know, more than once, at the time when this video was taken was the front door open or closed?---"
This simple question elicited from the witness an effusion
of words which in the transcript of the record occupies
some forty lines but which nowhere contains any sort of
101
answer to the inquiry. The above unsatisfactory response
to a
plain question was taken up at length with the witness
in cross-examination. Again the reaction of the witness
was
unsatisfactory. After a plethora of equivocations one
finds the following question and answer:-
"Ja maar die vraag wat ek u nou vra is spesifiek of 'n mens kan sien of daardie deur oop is of
nie?---
Vir my lyk dit so."
(3) At the HCI Coetzee in describing the appellant's
house said that "there is a verandah in the middle of the
house in front". When the appellant testified before the
HCI he was cross-examined by Mr Kuny. When Mr Kuny put
this portion of Coetzee's evidence to the appellant the
latter resisted the notion that his house had a verandah:-
"Dit is die probleem wat jy net. As jy kyk na die video jy kry alleen 'n twee-dimensionele beeld en nie drie-dimensionele beeld nie en daarom is ek oortuig dat wat hy hier beskryf is wat hy
102
gesien het op die video. Dit is hoegenaamd nie 'n verandah nie." (Emphasis supplied)
When at the trial Mr Levin was debating with the
appellant what, - upon a viewing of exh
3, could and could
not be observed of the appellant's house, the
witness
purported to quote to Kriegler J from the HCI record
in
order to demonstrate what his reply to Mr Kuny had been.
In quoting his reply to Mr Kuny the witness used the
following words:-
"As jy kyk na die video kry jy alleen 'n twee-dlmensionele beeld, nie 'n drie-dimensionele beeld nie daarom is ek oortuig dat wat hy hier beskryf het hy op 'n video dalk gesien." (Emphasis supplied)
The appellant proceeded to comment thereon to Kriegler J as
follows:-
"Ek sê nie watter video, ek sê êrens 'n video, dalk nie hierdie een nie want van hierdie een kan daar 'n tien ure lang video wees wat u en ek nog nie gesien het nie." (Emphasis supplied.)
103
4) During his cross-examination at the trial the
appellant
reaffirmed his evidence at the HCI that his house
had no
verandah:-
"En 'n verandah is in my opinie 'n stoep waar mens op sit en koffie drink en oor jou beeste stories vertel volgens mense maar ek het nie so 'n plek nog ooit in my lewe gehad nie. So dit gaan miskien oor semantiek maar ek wil dadelik vir u toegee om weereens die hof se tyd te spaar dat daar 'n gedeelte is wat 'n plaveisel is ...." A little later, in answer to a question by Kriegler J as to
whether Coetzee had been correct in saying that there was a
verandah in the middle of the front of the house, the
appellant replied as follows:-
"Ja, as ons aanvaar dat die term verandah vir my iets anders beteken as vir hom en ek het dit uitgeklaar met my kollegas wat argitekte is, vir hulle is dit ook nie 'n verandah nie, dit is 'n ingangsportaal maar dit maak nie saak nie. Ek is heeltemal tevrede om te se dat hierdie besondere konstruksie kon dalk deur 'n onkundige wat miskien 'n beter kenner is van honde 'n verandah verkeerdelik genoem gewees het, maar ek kan nie toegee dat dit 'n verandah is nie maar dat dit 'n toegangsportaal is of iets van dié aard maar as hy dit 'n verandah wil noem gee ek regtig nie om
104
nie."
So much for the essential features of the evidence adduced at the trial. The merits of the appeal may now be considered. On appeal it was common cause that in each action the matter published of the appellant was grossly defamatory of him. The main defence raised in each action, as already pointed out, was one of truth in the public benefit; the alternative defence in each action was one of qualified privilege. I shall deal with each defence in turn.
(F) THE DEFENCE OF TRUTH AND PUBLIC BENEFIT IN THE WM CASE:
Kriegler J concluded that on the evidence before him there was insufficient proof of the truth of the matter defamatory of the appellant in the WM article. As the following observations from the judgment will show the
105
learned judge gave this defence short shrift:-
"Coetzee dra nie persoonlike kennis van die versending van vergiftigde drank na Maputo nie. Hy het by Flemington daarvan gehoor en het dit oorgedra vir wat dit werd is. Gesien my bevindinge aangaande Flemington se geloofwaardigheid se dit nie veel nie. Gesien die sentrale belang van die betrokke stukkie hoorse getuienis, die onbetroubaarheid van die bron daarvan, die potensiële benadeling vir die eiser as dit toegelaat sou word en, les bes; Flemington se ontkenning van beide die bewering self en dat hy dit aan Coetzee sou vertel het, meen ek nie dat dit behoorlike uitoefening sou wees van die diskresie wat by artikel 3(1)(c) van Wet 45 van 1988 verleen word nie. Die enigste moontlike ander skakel tussen eiser en die vergiftigde drank was die getuienis van Lesia en dit het ek reeds ontoereikend gevind om die waarheid van die beweringe te bewys ...."
(G) THE DEFENCE OF TRUTH AND PUBLIC BENEFIT IN THE VWB CASE:
In the court below it was initially argued on behalf of the respondents that inasmuch as in his particulars of claim the appellant had asserted the falsity
106
of the matter complained of he bore the onus of
demonstrating
its untruth. This argument was summarily
rejected by Kriegler J who
correctly observed:-
"Valsheid is geen noodsaaklike komponent van lasterlikheid nie. Omgekeerd is waarheid op sigselfstaande geen verskoning vir die publikasie van lasterlike aantygings nie."
In this court it was common cause that an onus
rests with the respondents. What was in issue at the
trial, however, and what remains an important issue in this
appeal,is the question whether the respondents are
saddled
with a primary onus of proof (the risk of
non-persuasion)
or simply with an evidentiary burden (a "weerleggingslas").
The rival contentions, and their respective implications,
were stated thus by the trial judge in his judgment:-
"Namens eise
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