Unconventional warfare: ‘List of ANC informers’ would have been exposed in TRC prosecutions, hearing told

The Khampepe Commission of inquiry into possible political interference in post-Truth and Reconciliation (TRC) prosecutions has heard that Jan Wagener, legal representative for former apartheid generals, claimed to have “a list of informers” that would expose ANC members should apartheid-era prosecutions proceed.The inquiry has learnt that in an interview with journalist Stephan Hofstätter for the Dutch publication De Volkskrant in 2020, Wagener admitted that he had used “political pressure” to halt the arrests of his clients, former minister of police Adriaan Vlok and police commissioner Johan van der Merwe, for the 1989 attempted murder by poisoning of Reverend Frank Chikane.‘Containment strategy’This, claimed Wagener, had been part of a “containment strategy” to “protect figures of both sides of the conflict”. However, the lawyer refused to disclose the identities of alleged informers, quoting the “Golden Rule” of intelligence – “never drop your informers”.He alleged that this network of informers was “highly extensive” and that penetration had reached from low-ranking members of the ANC “to the very high-ranking people who were in fact informers for the security forces”.Former minister of law and order Adriaan Vlok (centre) with former police commissioner Johan van der Merwe (right) on 17 August 2007 after their high court trial relating to the attempted murder of Frank Chikane in 1989. (Photo: Johnny Onverwacht / City Press / Gallo Images) A shield against accountabilityHuman rights activists and researchers have noted that this threat by the generals of exposing alleged ANC spies and releasing “dossiers” had functioned as “a powerful shield”.While Wagener denied that his clients ever explicitly threatened to expose informers, he strongly maintained that his clients would demand equal prosecution “for ANC crimes, backed by a lot of evidence”.He added that the “warning” had been “strictly legal” in that if former security forces were targeted for prosecution, “they” would ensure that ANC members were also held to account for specifically, the 1985 landmine campaign. This spin on post-TRC prosecutions is what grew into a brainworm in National Police Commissioner Jackie Selebi’s mind. The inquiry has heard that Selebi was convinced that Wagener was telling the truth, despite repeated assurances to the contrary by Priority Crimes Litigation Unit prosecutor advocate Anton Ackermann and the National Prosecuting Authority (NPA).The suspicion and paranoia, particularly among returning exiles, had been acute at the time, and Selebi had reinforced the notion of imminent arrests.Later, when the inaugural head of the NPA, advocate Bulelani Ngcuka, was falsely accused of being an apartheid spy, agent RS452, Wagener, at the subsequent Hefer Commission into these allegations, refused to disclose the names on the alleged list.In the end, Ngcuka was vindicated and those who accused him ended up with egg on their faces as the real RS452 turned out to be Eastern Cape lawyer and activist Vanessa Brereton.This was an early example of several “dirty tricks” that were deployed on both sides of the divide in the aftermath of the TRC.Puppet master Wagener has been central to claims by the families of victims of apartheid atrocities, known collectively as the Calata Group, that a secret post-TRC agreement had been reached between the ANC and the old guard for indemnity from apartheid-era crimes.The inquiry has heard that Priority Crimes Litigation Unit head Ackermann, who was determined to charge Vlok and Van Der Merwe, had received a call from Wagener in 2007 informing him that the high-profile arrests would be halted.Former head of prosecutions Dr Silas Ramaite has testified at the inquiry that former minister of justice Bridgett Mabandla had contacted him to inform him that a moratorium had been placed on post-TRC prosecutions.In the 2020 interview for De Volkskrant, Wagener set out how in November 2007, when his clients had faced arrest, he had contacted “high-level intermediaries” to step in. He told Hofstätter that he had been subsequently informed that Mbeki had intervened to place the arrests on hold.When Ackermann later repeatedly requested Wagener and his clients for this “extensive evidence” implicating specific ANC leaders, none had been forthcoming, he told the inquiry.Political footballThe inquiry has heard that Chikane, who survived the attempt to poison him in 1989 with chemicals procured from the government’s chemical warfare programme and its head, Dr Wouter Basson, became the equivalent of a political football.New prosecutorial guidelines introduced by then president Thabo Mbeki in 2004 to deal with the “unfinished business” of the TRC were later challenged by the late advocate George Bizos. The Constitutional Court found the guidelines to be unconstitutional.Reverend Frank Chikane. (Photo: Gallo Images / Luba Lesolle) Chikane has testified that he had felt caught in the currents of history with the old guard on the one hand and the new democratic government, which he served, on the other.Secrets and liesWagener, who later retired to Hermanus, admitted in the De Volkskrant interview that while his security cluster clients successfully kept secrets about informers, they also lied directly to him about actual crimes, and in other high-profile inquiries such as the Harms Commission in 1990. Several policemen he represented, said Wagener, had taken them “for a ride”. These officials had given evidence under oath and had “stuck strictly to their fabricated versions” when years later, during the TRC amnesty process, those same clients had provided testimony that was “180 degrees around” from what they had previously sworn to be true.Wagener admitted that these revelations were a “shock” and had left him “deeply unhappy”. He explained that as a lawyer, when a client’s version of events was plausible, he had no choice but to accept it and present it in court. Discovering, in hindsight, that he had been lied to had been “highly distressing” as the presentation of a false version in court put his professional integrity directly at stake. DM