ON RESUMPTION
CHAIRMAN: Thank you, Mr Maritz. There are - as I have said to counsel before the break, there are points of clarification which we may seek in writing, and we will address these to your client through Mr Penthorn's office.
MR MARITZ: Mr Chairman, thank you very much. May I also request permission to be excused a bit later. I have other matters to attend to. But may I also say that Mr Penthorn will remain, and I would be very grateful if, if there were any matters to be addressed, and which could be dealt with here, that Mr Penthorn be given an opportunity. Thank you very much.
CHAIRMAN: Thank you, Mr Maritz.
MR DE JAGER: Mr Chairman, I believe I am next in line, is that right? Mr Chairman, I have ... (intervention)
CHAIRMAN: Yes, Mr de Jager, sorry. Mr de Jager, sorry, during the lunch break Mr Olivier, who appears on my left here for Colonel Buchner and others, asked whether they could make a couple of minutes - take up a couple of minutes of our time just to make their clients' submissions.
MR DE JAGER: No problem, Mr Chairman.
CHAIRMAN: Thank you.
MR OLIVIER: Thank you, Mr Chairman. Mr Chairman, I will be very brief. May I say from the outset that I echo those submissions made by my learned friend, Mr Visser, as far as they relate to the three meeting in November 1988 referred to. This document is not an official memo or document, and the author thereof is not even known.
I must stress that my learned friend is incorrect to allege that General Buchner was not at the meetings. As
/far as I
far as I can recall he has no recollection of these meetings. During the section 29 hearing General Buchner informed the Committee that he could not recollect these meetings. I submit that those aspects raised by Varney in respect of General Buchner have been extensively dealt with by him during the section 29 inquiry, and need no further elaboration. The Committee, through Mr Lax, also indicated on national TV that they were satisfied with the answers given by General Buchner, and it is therefore not necessary for me to elaborate any further on those aspects raised by Varney. Thank you.
CHAIRMAN: Thank you, Mr Pienaar - sorry, Mr Olivier. Mr von Wielligh(?).
MR ?: Thank you, Mr Chairman. Mr Chairman, in the circumstances of this case I have no submissions to make, and I would beg leave to be excused.
CHAIRMAN: Certainly. Thank you, Mr von Wielligh. Mr de Jager.
MR DE JAGER: Well, well, well, Mr Chairman, they were indeed short. That's contrary to the nature of attorneys. Mr Chairman, I have prepared a written submission for you. I had some computer problems this morning, I don't know if you're aware of it, but it made me also the typist. But I have it available, I would just like to stand off and hand it to you just after I have given my oral submissions. It gives me the first opportunity to double check whether there aren't any more spelling mistakes and so forth, but I'll hand it up to you afterwards.
Mr Chairman, I make the submission to your panel on behalf of the former State President, Mr P W Botha. Mr Chairman, the Truth and Reconciliation Commission,
/hereinafter
hereinafter referred to as the TRC, informed our client, in his capacity as the former State President and Chairperson of the State Security Council, on the 23rd of June 1997, that he was implicated in documents in the possession of the Commission in a manner which may be detrimental to him.
As our client's good name was clearly at stake we attended these proceedings during the past week and a half. From the documents provided to our client, as well as in the evidence of numerous witnesses, Mr Botha's name was, save for the minutes of the State Security Council, never directly mentioned.
The only attack levelled at the former State President came through the submission of Mr Howard Varney. We neither regard Mr Varney as a witness, nor his so-called testimony as fact. His spirited attempt is at high-water mark simply no more than some sort of a submission. Mr Varney has set up a conclusion according to which all the people involved in the deliberations leading to a decision to assist Chief Minister Buthelezi with the training of a paramilitary force are accountable for the acts of violence that flowed from the creation of this project. To this end it becomes necessary to establish to an unlawful intention by, inter alia, our client, to actually create what is popularly known as a hit squad. Without proper evidential material available to him Mr Varney is obliged to make wild deductions and to create at best a factual basis from which sinister connections and deductions can be made in order to force our client into his net of accountability.
For this purpose, Mr Chairman - and I must at this
/point pause
point pause to say to you that my submission will be short - I am going to deal with the attack of Mr Varney, and the way I perceive it is that he used a three-pronged attack. He employed three avenues of attack, ie, our client's request that the State Security Council conduct an investigation into the establishment of a third force, which by strange reasoning he eventually received in the form of the Caprivi trainees. Then secondly, Mr Chairperson, he adopts the attack that the doctrine of counter-revolutionary warfare, which our client supposedly propagated, and which, with a little stretch of the imagination, then materialised in the creation of a hit squad in KwaZulu-Natal. And the third leg, Mr Chairperson, is the secrecy, ie, the covert and/or clandestine nature of the operation as an illustration of the unlawful design underlying its creation.
Now, I shall deal with these seriatim. And, Mr Chairman, whilst we were in Durban we did a little research, because you will know that on numerous occasions there is this link of the third force. It is linked to Operation Marion, it is linked to other activities, it is linked to other - may we call it wars in this country at the time, to other conflicts. And on more than one occasion one gets the impression that certain documents become available, and they tend to show that this is indeed the situation.
Now, Mr Chairman, unfortunately we could not make copies, and I'll deal with that in my submission now, but I just pause to say this to you, that it was out intention to put each and every document which is still available in State archives to give you a full picture of what really
/happened
happened there, because without the full picture you will also be confronted, as the Truth Commission, the courts of law, etcetera, etcetera, with extracts from documents tendered to suit the purpose of the person making out some sort of a case. And for that reason that is the only aspect with which I am going to deal to some extent. And what I did was I tried to put together a summary of all those documents available that tells a story, and to give you the historical development of the whole idea of a third force, which in fact did emanate from my client.
And I am now going to deal with that aspect. We do not intend to quote all the relevant details of the decisions taken by the State Security Council from time to time, but it has become of paramount importance for all concerned that full and transparent disclosure of the history in connection with the investigation of the establishment of a third force be made public.
At the State archives in Durban, under reference NI22/1/1/3/2, volumes 1 and 2, all the relevant documentation concerning the history of this subject are still available for scrutiny. We intended to put, as I have pointed out to you already, both these files before your Commission, but we were not permitted to make copies of them, and are thus unable to assist you in this regard. Your Commission, however, has access to those files, and should, in the interests of the truth, conduct a full investigation of same.
Mr Varney's attempt to use selective quotes in order to find some cornerstone for his otherwise shaky arguments is unfair. If he had access to the few documents that he do refer to it is inconceivable that he did not have
/access to
access to all of them.
Mr Varney is correct that on the SSC meeting of the 12th of May 1986 the Ministers of Defence and Law and Order were tasked to investigate the creation of such a third force. The following appears from the minutes of the State Security Council of that date. Mr Chairperson, I have to quote in Afrikaans.
"Bespreking van die Derde Mag"
I skip sub (a), Mr Chairperson, and I directly go to the quote of sub (b), because that's what Mr Varney also stresses.
"Die Voorsitter sê dat die voorgestelde Derde Mag aanvullend tot ander veiligheidsmagte moet wees sodat die..."
"... should be supplementary to other security forces."
Sorry, Mr Chairman, I am now hearing the Afrikaans translation. Just give me a moment.
CHAIRMAN: If you put yourself on channel two, Mr de Jager, then you'll hear the English.
MR DE JAGER: Yes, I am at the right point now.
"The Chairman says that the proposed third force should be supplementary to other security forces so that the security forces do not get underfoot."
I then skip (c) and (d), Mr Chairman, which obviously is available for your scrutiny.
"(e) the third force should be moveable, with a well-trained capability to effectively counter terrorism."
Now, Mr Chairman, that is very simple Afrikaans. They
/intended
intended to go for terrorists and to wipe them out. There is definitely no intention of employing this against the normal citizen population. But I will develop that further, because in fact this - I just say in the passing, because if one goes on you see what the intention really is when you look at the documents.
The abovementioned is tendered to illustrate - that is now by Mr Varney - the State President and the State Security Council's unlawful motives. By giving this order our client was prepared to act unlawful - sorry, Mr Chairman, by giving this order it is now indicated that the intention of our client was to act unlawfully. He purportedly sanctioned the creation of a hit squad, and was thus involved in, and accountable for, the ensuing violence in Natal. One should pause here to note that since the early 90s the word "third force," in this country at least, has become synonymous to the other sinister colloquial term, ie, a hit squad.
Perceptually, by the selective quotation of these passages from a minute of the State Security Council, held under the chairmanship of our client, the public must, even through this Commission - although I believe you do not intend that - by necessity gain the impression that this was precisely what the State President ordered on that day. That would have been my first impression if I was not fully acquainted with all the facts, like people like yourselves is supposed to be, and which I think you will still have a long way to get to.
We say that selective transparency is worse than total secrecy. To put this before the public without giving the fully history of the aims, content and final
/result of
result of the so-called third force envisaged in this minute is unfair, and could even have misled this Commission. Nothing new is contained in these particular State Security Council minutes, especially not as far as the intention to wipe out terrorists is concerned. This is consistent with the attitude of the Botha government towards terrorism and terrorists throughout its tenure. Mr Botha and other members of his Cabinet repeatedly, both on public platforms and in Parliament, stated that terrorists would be wiped out wherever they were found. No reference is made to innocent members of the public, or in regard to the assassination of political opponents, especially not civil political opponents.
May I remind you that your own deputy chairman, Dr Boraine, was a Member of Parliament for many a year, and present during these debates where this was said by National Party politicians.
These viewpoints were widely published, both in the printed and electronic media. To elevate the minutes of the State Security Council on this specific occasion and in this respect to that of a great discovery of the true intentions of the Botha government is simply ludicrous. But I pause here to say it is obviously done so because it is found in conjunction with the words, "derde mag," third force, which, ie, then is hit squad, and that makes it all so simple, Mr Chairman.
Now, I am now going to take you through the history of what happened with this so-called third force. Before I do that what should immediately be added hereto as a result of the decision taken by the State Security Council as aforesaid, a thorough research was done, by structures
/to which
to which I will refer hereinafter. This is clear from the documentation, which are all available for your inspection. A bona fide research in respect of - and I wish to stress, Mr Chairman, because it is - the papers are full of it in those two files, and also in the State Security Council minutes - it was a research in respect of a lawful, openly-structured, uniformed third force, which we find in many other countries, and which was intended to act against terrorism. That was the research that was being conducted, not the one Mr Varney is looking at.
It was the clear intention of our client that the creation of such force would enable the police to continue with their normal policing duties, on the one hand, and the military to be employed only in true military combat and supportive roles. It is important to note that General Malan informed the Court during the Malan trial, and also did so during his appearance before this Commission, that he was a staunch opponent to this concept.
The sequence of events and salient features concerned the assumed creation of this supposedly sinister third force were the following. During 1985, as a result of increasing intensity in the onslaught against the State, various alternatives to resist the onslaught were investigated, and were debated even in public. A good example of this is an article by Otto Krause in the newspaper, Die Vaderland, of the 22nd of October 1985, in which the establishment of a special unrest police force was debated. In a meeting - that's a State Security Council meeting with the number 18/85, dated the 4th of November 1985, a decision was taken to investigate the
/possibility
possibility of the creation of such a third force. On the 4th of December 1985 Brigadier M S Verster, in his capacity as the secretary of the State Security Council, required the Chief of the Defence Force to task the military attaches to collect information of such third forces in other countries all over the world. This was done.
We may pause here to indicate that our client's personal instructions to us are that he first became aware of the efficacy and the advantages of such a third force when Mr Franz Joseph Strauss introduced him to the concept of the Bunders Grensch Schutz(?), which is the border police in Germany, and is a typical third force, albeit lawful and uniformed.
Mr Adrian Vlok was then - sorry, Mr Chairman. Mr Adrian Vlok was then appointed, in his capacity as Deputy Minister of Defence, to chair a special SSC committee to co-ordinate the investigation and research in this respect. The first meeting held by this committee was on the 13th of February 1986. The decided that they will create an even larger chief committee, and they did so by co-opting other people from different department. The actual work was however to be done by this subcommittee.
On the 20th of February 1986 the working group, that is the subcommittee, had a meeting where extensive discussions took place, and it was decided that all the interested parties should put down their ideas on paper. And interesting, Mr Chairman, if one looks at those documents available, they did so. Of great importance was the meeting then held by the chief committee on the 28th
/of February
of February 1986 under chairmanship of Mr Adrian Vlok. A long, technical discussion took place, from which it clearly appears that no sinister motive could ever have been contemplated. If by the wildest stretch of imagination Mr Varney, or any other person, wishes to make out that the contents of these documents were aimed at the creation of what is now known as a hit squad, it goes beyond our comprehension. And I invite you, Mr Chair, please, do yourself the favour and read that discussion that took place there. They were talking about what kind of uniforms should be taken, what should the definitions be, etcetera, etcetera. Now, if this was to be intended a hit squad it must have been intended to be the first uniformed hit squad in the world.
The input of academics from faculties such as law and criminology were obtained. One common denominator emanating from all these reports and advice is, however, the resistance of the people participating in these deliberations, or their disagreement with the whole concept, and those were for tactical reasons. Not only tactical - technical reasons, tactical reasons, and policy considerations, Mr Chairman, which I do not have the time to elaborate on - save if you want to hear me on that.
Meanwhile it should be indicated that whilst these investigations were in progress, and specifically on the 3rd of February 1986, Operation Marion, which involved the training of a paramilitary unit, was approved by the State Security Council. To simply suggest that this has now become the third force, or was intended to be the third force, or a third force of a kind, is irreconcilable with all the available documentation which are on that file.
/We wish
We wish to remind you that these document were drafted - and I am referring now to those two files that I have drawn your attention. Those were drafted at a time when top secrecy prevailed, and when nobody ever anticipated that a Commission such as yours will be scrutinising the contents thereof. To ignore them just to make a point in order to contaminate honourable members of the then State Security Council, and especially our client, with sinister and unlawful motives, illustrates bias and/or ulterior motives.
The work group - and then, Mr Chairman, I am referring not to your Commission when I said that. I am referring to the people making such suggestions to you, because I don't know whether you ever had the opportunity of looking at those.
The work group brought out its final report on the 13th of March 1986. They embarked, inter alia, upon the formulation of an elaborate definition - have I got your attention, Mr Chairman? Upon the formulation of an elaborate definition of a third force which describes anything but a hit squad. It's a long definition, Mr Chairman. I did not see fit to include it in this submission.
Finally the Committee recommended that such a force should not be established, and that the existing capabilities of the SAP - now, very important, not the South African Defence Force, neither the KZP, but the SAP, - be restructured to fulfil these tasks envisaged in the definition of the third force. On the strength of this report the SSC took its decision on the 12th of May 1986. From the papers it is clear that the decision of the State
/Security
Security Council then took its normal course.
Now, Mr Chairman, you will recall that was the decision that Mr Varney was referring you to. That's the decision of the 12th of May. They've chosen the option that, rather than to create a separate third force, you will recall, they will now extend the capabilities of the police. Now, the immediate and the general rumour going around about that is, "Yes, yes, and then we got Vlakplaas," etcetera, etcetera.
Now, as far as my client is concerned, Mr Chairman, I don't know what happened on the ground, but I want to show you what happened in respect of my client after this decision was taken. He was bluntly ignored. I'll show you why. This appears from the minutes of the working commission - oh, just a moment, Mr Chairman, I've slipped one sentence.
From the papers it is clear that the decision of the SSC then took its normal course, ie, it was referred to the working committee of the State Security Council for implementation. This appears from the minute of the working committee dated the 21st of March 1986, and you will find that under item 2.1. You will find that in all the decisions of the working group of the State Security Council particular functionaries were then tasked to perform the relevant duties. It is significant that in this particular instance - that is now the third force - such tasking is ... (inaudible) ... on first blush the seeker of sinister matters would clearly have found it upon this feature also, in order to prove that some other dark point or other some dark reason why this was not assigned to a functionary. However, if one continues the
/research
research such an avenue is not open, and for the following reasons. On the 2nd of June 1988 the secretary of the State Security Council reports back in writing, under item 4, and he says as follows - and this is important, Mr Chairman. I have to quote to you in Afrikaans.
"The idea of a third force in the RSA. The Chairman, in response to a suggestion that intimidation be combated, referred to a thought that a third force, additional to the SAP and South African Defence Force, was necessary in the RSA to continue ..."
May I pause here, Mr Chairman, to say you see the same sentiments that my client raised on the first meeting in November 1985, and which went through this decision in 1986 - we're now in 1988, and what does the State President, my client, says about his third force. It's very important the next sentence. I read in Afrikaans.
"In this way both the SAP and the Defence Force hands can be released to concentrate on their primary functions."
And then he says a very strange thing for a person who already has a third force.
"He expressed his regret that this matter was smothered in the past by someone and was never properly investigated."
Now, Mr Chairman, those were the words of the State President to the State Security Council, who, according to Mr Varney's submission, already supplied him with his third force in the form of the Caprivi trainees. Everyone, even Mr Varney, then knew that my client already
/got what
got what he asked for, so indeed if one looks at this quote Mr Botha must have been a stranger in Jerusalem.
Then, Mr Chairman, on the meeting of the Cabinet of the 22nd of June 1998, the State President - this is now a further occasion - raised these same sentiments again to Cabinet. This appears from the Cabinet minutes of that date, which are also available for scrutiny by the investigators of the Commission, and hopefully by the Commissioners themselves.
This saga however continues, and the plot thickens, Mr Chairman. On the 5th of April 1988 - 1989 - we have now travelled yet another year in history, the secretary of the State Security Council again writes to the working committee of the State Security Council, informing them that there are still certain matters which had not been attended to, or which had not been implemented. One of these was the third force. This appears from item 1 (c) of this letter. The letter refers back to the State Security Council's minutes numbered 18/85, 7/87 and 12/88. From all this it is clear that no third force had yet been created, at least not in the mind of the secretary of the State Security Council, or in the mind of my client, and the working committee was required to give its attention to this neglect.
On a meeting of the working committee now, who again - that is now in 1989 - is seized with the implementation of this scheme or plan. Now, on the 8th of May 1989 the matter was dealt with, and this was done under the term described as "Outstanding matters." That is my free translation, "Uitstaande saake." The minutes of this meeting reads as follows, and I have to quote in
/Afrikaans.
Afrikaans.
"Regarding subject 9 (third force), General de Wit sketched to the Committee the financial and legal technical problems around the creation of such a force. At the same time he said that the foundation of Municipal Police and the extension of the South African Police Riot Unit, absolved the creation of a third force. The Committee accepted the explanation."
Now, Mr Chairman, this was now in - as I pointed out to you in 1989, and shortly after that my client became inactive in politics in South Africa, but nevertheless this was the last word ever spoken in this regard. And for obvious reasons. De Wit came back to the working committee, who puts this on as outstanding matter, and it was never attended to.
In any event once again one must take cognisance of what happened at the same time, or in the same time span. In 1988 Operation Marion still existed. If what Mr Botha initially intended for this third force was to be Operation Marion the entire contents of these documents becomes supercilious.
Finally we wish to point out to you that one of the documents which forms part of the whole research effort in connection to the so-called third force was the input of a certain Brigadier Ferreira on behalf of Chief of the Army. And if I may pause here, Mr Chairman, you will remember that I told you now in my submission, which you can go and check for yourself, that inputs were obtained
/from many
from many people - the police, the army, the attaches which were attached to Military Intelligence, from academics, etcetera, etcetera. Now, what bothers me, Mr Chairman, and in fact it annoys me as counsel, for obvious reasons this specific study document was singled out to put before you as part of Mr Varney's submission. Mr Varney selected this document to illustrate his point on page 9 of his written submission. We are not going to deal with these arguments at length, but simply wish to state that it appears that the reader did not understand the Afrikaans language. Ferreira never indicated that the third force already existed within the Security Forces. He was dealing with the capabilities which a third force should have, and he simply indicated that these capabilities, separate capabilities, Mr Chairman, which such a force should have, do to a lesser or greater degree already exist within different branches of the security forces. Which is so. If one looks at it technically - and if I may refer you back to Mr Rocky Williams' evidence, as far as I am concerned in my submission objective evidence, you will see that all these different aspects must have existed at the time, but to create a hit squad you have to get this clandestine little group and you have to put all your capabilities and effort in them in order to assassinate and do all other evil things which is attached to that. If you want to have a true, uniformed, legal third force, then you will have to have all the mobility and other capabilities be centralised in that force, and that's what Ferreira is arguing in this document. And in fact it doesn't - it's not open for a different interpretation, it's simple Afrikaans.
/Then he's
Then he's simply indicated - Mr Chairman, Mr Varney's interpretation of this document is patently wrong, and we concede that the incorrect interpretation does go some way to prove his point. If this document is read properly, and if the status of thereof is evaluated in the greater context of the other documents, there is simply nothing in this point.
Then, Mr Chairman, I go over to the next issue, and I now give you the good news. I am nearly at the end of my submission. The next item that I am going to deal with is the doctrine of counter-revolutionary warfare.
Now, Mr Varney's argument, it appears, simply boils down to a conclusion that the anti-revolutionary doctrine adopted by our client, and accordingly by the South African Defence Force, was to promote the concept of counter-terrorism. This was then to be decided on the highest level, which would for obvious reasons, have been our client. To develop this argument he had to go a long way, and he is again dependent upon selective quotations in order to fit the point into his complicated puzzle. The book of General Frazer signed by our client specifically deals with so-called "weerwraak maatreëls" and you will find that on pages 18 and 19 thereof, and it therefore clearly rejects it as untenable if one subscribes to the principle of winning the hearts and minds of the people. The so-called Frazer document which Mr Varney latched upon was an old version which was never subscribed to by the army or the Defence Force or by my client. Uncontested evidence to this effect was given at the Msani trial. In the same vein Mr Varney has to postulate and deduce far-reaching conclusions, based upon
/our client's
our client's reference to McEwan in the preamble of Frazer's book. Immediately a quote in paragraph 98 of the summary of McEwan, which we don't know what the status is of. Now, this is now exploited to illustrate that some sinister, counter-revolutionary, guerilla force was to be created, and that our client subscribed to that.
His reference to McEwan, that is my client's reference to McEwan, was indeed a specific reference, but was done in the context of a broad reference to all the other books which appear in Frazer's list of bibliography. And it says so in that preamble, Mr Chairman. It says so clearly. I would like you to read this McEwan book, but there are many other books which he refers - that is Frazer now - which you can read so to understand the revolutionary warfare. That was very clear. That was what it was intended to do. Now, Mr Chairman, this list includes books authorised by, inter alia, Mao Tse Tung and Che Guevara. So, if that argument must go through one must also now deduce that Mr P W Botha must have been a communist.
Now, the true facts are that our client, as well as the military, rejected State terrorism advocated by McEwan or otherwise. To have adopted those proposals would, of necessity, have destroyed law, order, and any measure of much-needed good will in the theatre of battle, or the prospective theatre of battle, ie, the areas of unrest. The principle is inherently self-destructive, and was appreciated as such by our client. And therefore, Mr Chairman, we reject this strange line of attack on our client.
Then, lastly, the secrecy of the operation. I must
/concede not
concede not much is made out of that by Mr Varney, and we also know another thing, that everything was about secrets in those times. But let me deal with it in any event.
We do not wish to go into detail as regards the secrecy of Operation Marion. The reasons for the secrecy of the training, and of the Caprivians, was fully explained in the trial of Peter Msani and others. The political relationship between Dr Buthelezi and the South African Government, and the embarrassment that would flow from the training of this paramilitary force by the SADF, with whom he, for obvious political reasons, did not want to be associated with, are clear. General Malan's evidence in this regard appears from the record of the Msani case from page 3483 and further. The documents procured as evidence in the said trial also clearly indicate the reasons for the secrecy.
Mr Chairman, that brings me to the end of my submission on behalf of President Botha. We appreciate that we had this opportunity to address you on these issues. The accusations levelled at our client clearly do not appear from the evidence available to you, and we hoped that through the research that was being done that we could add something to also give you the opportunity to look at the other side, which are clearly and elaborately documented.
Mr Chairman, we say that the attack on our client was unwarranted, that the Commission needs not hear this type of attack if there are no evidence available, and we say that it was the result of wild conclusions and illogical deductions by Mr Varney, which flies in the face of all available evidential material available to you, and
/probably
probably already in your possession, and which we strongly reject on behalf of our client.
Mr Chairman, we thank you for the opportunity.
CHAIRMAN: Thank you very much, Mr de Jager. Just before we continue I just want to have a word with my colleague.
MACHINE SWITCHED OFF
CHAIRMAN: Mr de Jager, there are one or two matters which we may address to you in writing, but I think at this stage we should just say that the Commission is satisfied, and has for some time been satisfied, that the reference to third force in the SSC documents was at all times reference to a lawful, uniformed third force, and there's no suggestion that any illegality attaches to those discussions, or any discussions after that date with regard to a third force used in that sense. And we are fully aware that it never came to fruition in any event.
MR DE JAGER: Well, I am glad to hear that, Mr Chairman. I am glad that it is said by yourselves in the open. You will understand why I dealt with it, because again if one looks at Mr Varney's attack on my client, we are referred as a starting point, we are referred back to those, and that is where we had to start. So, I am glad to hear what you say, and then at least this has come out in the open, and the opportunity that such a thing can happen in the Commission, due to all the other speculation, etcetera, we feel was then a good opportunity for us to have addressed you on this. Thank you very much.
CHAIRMAN: Thank you, Mr de Jager. Mrs Kruger.
MR ?: Mr Chairman, just before Mrs Kruger starts, I just want to beg your pardon for my absence just after the
/lunch break.
lunch break. We had a bit of a logistical problem with getting Mr de Jager's(?) submission to you in time, but I believe Mr Maritz ably answered any questions you had there. And if there is anything in regard to the couple of aspects which I mentioned obviously you could communicate them to us.
CHAIRMAN: That's fine. No problem at all.
MR ?: Thank you.
CHAIRMAN: Mrs Kruger.
MRS KRUGER: Thank you, Mr Chairperson. For the record then my submission, or preliminary submission on behalf of General Smit. Now, Kipling said in The Elephant's Child, "I keep six honest serving men, they taught me all I knew, their names are What and Why and When and How and Where and Who."
Now, those are the questions that his Committee has to answer before making a finding to the detriment of my client.
According to the section 32 noticed dated the 23rd June 1997 the following allegations are made against him. Firstly, that he colluded with senior members of the former SADF in supporting the deployment of Inkatha's offensive paramilitary capacity; that this capacity was utilised offensively against political enemies of Inkatha; furthermore that he anticipated that the offensive paramilitary capacity would be used to carry out pro-active and/or pre-emptive attacks which would result in death and injuries. The second allegation, that my client was involved in the covering up of crimes committed by the Caprivi trainees.
/Now, in
Now, in respect of the first-mentioned allegations, neither evidence was adduced in support of these allegations, nor were any documentation referred to which could be interpreted or inferences drawn from to support these contentions. You must carefully scrutinise the evidence and documentation, and you'll find that the six honest men, the what, why, when, how, where and who questions relating to my client are not answered.
I join issue with Mr Visser in his interpretation of the documentation, and with specific reference to the section 30 notice that was sent, and the paragraphs as it was set out there by Mr Varney. I just want to, add one remark was made by Mr Varney, and I refer you to paragraph 9, in support of drawing this whole line from the planning right until the end operations. He refers in paragraph 9 ... (inaudible - end of Side A, Tape 3) ... 68 of this document, and the Minister of Defence had instructed on the 21st of March 1988 that General Johan van der Merwe, Commissioner of Police, must be kept informed with regard to Operation Marion. Now, what is created there? The impression that's created by Mr Varney is that the Commissioner of Police must be kept informed, in other words that he had already known of Operation Marion. Now, with all due respect, at this stage that General van der Merwe was the head of the Security Branch, and if you read - a careful reading of page 68 you'll find that Mr Varney has once again - and I think my other colleagues have alluded to the fact that there has been, and I would suggest a deliberate attempt, to mislead you, to project or to promote a certain perspective. Because that particular document, and I am quoting this in Afrikaans,
/says
says,
"(Inaudible) ... proceed to give support to Buthelezi regarding Marion GS2. Actions against counter-mobilisation will be continued in a co-ordinated fashion. SADF security must be informed to obtain his support."
Following from this General van der Merwe had to be advised presumably then of Operation Marion to get his support, and this document is only in 1988. Next to that there's a little note that says,
"The Minister of Defence instructs ..."
on my copy the date is not clear, but it says March '88,
"... that General van der Merwe be informed about Marion."
And this is important, because the deduction that Mr Varney wants to make is that the SAP had been involved right from the start to Operation Marion, that the Security Branch was part of parcel, that there was close co-operation between the South African Defence Force and the South African Police, and in particular the Security Branch, with regard to the whole conduct of Operation Marion. Now, if you accept this document and the handwritten note clearly it makes no sense, but from the South African Defence Force's own document they indicate, as late then as March '88, that the South African Security Branch has to be informed of this.
Now, my client's evidence at the section 29 inquiry was clear that he was only informed of the existence of a group of Inkatha members trained by the SADF at the meeting held on the 8th of November 1988. From the
/evidence
evidence adduced at the S v Msani trial there is further evidence that after this meeting with the SAP the SADF resolved to disband the group. See van Niekerk's evidence on page 3972 of the record. Mr Howard Varney's submission also supports this contention, and I quote from his submission given on Tuesday the 6th of August 1997, where he says,
"As a result of this meeting, and the somewhat depressing outcome for the military officers concerned, a decision was then taken that somehow they must get these people into the KwaZulu Police, and steps were then taken to demobilise the paramilitary unit, and most Marion members were ultimately placed in the KwaZulu Police during June 1989."
Now, in respect of the second allegation, that my client is implicated in the covering up of crimes committed by the Caprivi trainees, no evidence was adduced in support of this allegation. Mr Varney apparently did not deem it necessary to present evidence to support this contention, and I argue that he in fact did not have any evidence to support his contention. During cross-examination he was asked by Mr Visser whether he possessed of any evidence throughout all his inquiries and investigations in the position in which he worked which he could point this Committee to to support his contention that General van der Merwe knew anything about the concealment of persons anywhere. Now, the question was asked where you could draw the line, make the connection
/to him,
to him, and the answer,
"Yes, I don't see that it's a particularly material point. I am not suggesting that he was involved in specific cases, that he arrange bail and concealed people himself, but here is providing overall direction, policy in a sense. What he is saying is, "Bail can be arranged," and then take the members away ..."
and then the words that Mr Varney adds,
"... conceal them."
Now, the last two words of his answer is not reflected in the document he bases his submission on. He prefers to add them on his own accord, and I'll deal with this later.
Now, the submission made by Mr Varney, based on documentation that called for such an inference is challenged. Firstly the status of the documentation, and secondly the interpretation thereof. During Mr Varney's submission he made the following in respect of the status of the documentation upon which he based his argument, namely, firstly he said the originals of all documents referred to in the submission are held at the State archives, or are authenticated exhibits in court files and inquests. And secondly - at least here he qualifies it with, "As far as I am aware" - he says, "The authenticity of the document has not been seriously disputed. The authors confirm their contents, it's only their interpretation which has been the subject of much debate." Now, these statements are incorrect. The undated document referring to the Liberty Life meeting held on 8 November
/1988, which
1988, which is the document on which the allegation of the involvement in the covering up of crimes is based, is not held at the State archives and is not an authenticated exhibit in a court trial or an inquest. No evidence was led during this inquiry by the author of the document to confirm its contents, and no such evidence was led at the S v Msani trial. From the Msani record it appears, from an answer that I think Colonel van Niekerk gave, that van den Berg is the author of the document, but despite his apparent availability at the Msani trial he was not called to testify. Now, following these misleading statements Mr Varney's interpretation of this document should be viewed with circumspection.
During the cross-examination of Colonel van Niekerk in the S v Msani trial he was asked the question whether he had perused the cryptic note attached to his covering letter - this is now the Liberty Life document - and whether he was satisfied with the note. Now, his reply is that quite the contrary appeared, as the covering letter itself has a number of mistakes in, and I refer you to page 3962 of the record. At the time of the signing of this covering letter it was the first time he had seen the notes in this format. Apparently in the file were handwritten notes on pages torn out of a small notebook and stapled to the file. That you'll find on page 3963 of the record. He was not in a position to confirm that the contents of the typed notes corresponded to the handwritten notes.
General van Tonder at Msani trial also criticised Colonel van den Berg for his writing style, which was not always accurate, and you'll get that reference on page
/3714 of
3714 of the record.
Now, perusing the document it is apparent that the document contains obvious inaccuracies. For example the reference to the dates. The document is clearly not minutes of the meeting. This raises the question when was this document created? A year later, and therefore the mistake in the date? I think experience shows that one seldom makes a mistake in writing the date of the year still to come, you rather make a historical mistake. This tends to show that this document was only created in 1989, possibly at the same time as the covering letter. There is thus a great danger in assuming the correctness of the balance of the contents. The author will record his own perceptions, and his knowledge and recollection has a further impact on the interpretation of the document. The document is clearly incorrect, and then interpreting the document, and furthermore adding your own words to the document, as Mr Varney does, in order to interpret this, is a recipe for disaster.
Now, Mr Varney's subjective interpretation of the document is clearly demonstrated during his cross-examination by Mr Visser, when he was asked about the meaning of the words, "taken away," and how he interprets it. He said that whatever Mr Visser proposed was a laughable contention, and he also tried to explain what and how he understood, or how he interpreted it in view of the problems that was addressed or posed at this particular meeting, the problems with regard to offensive action.
Now, the interpretation of Mr Varney as to what the SAP solution purported to be is much more unlikely than
/the submission
the submission of Mr Visser of his client's instructions, namely that the persons should be taken out of the area. I think it can be accepted as common cause that if a member of the unit is or was involved in a crime, or is a suspect of a crime in a highly volatile politicised area, surely such a member is given bail and if he is returned to his unit to continue with his normal daily activities, it is quite evident that such a situation would cause greater problems. You know in ordinary police situations if members are involved in a serious matter they are sometimes suspended, or not sent back to the same unit because of the problems they can create. Now, to interpret the document to imply that a person had to be taken away and to be concealed is not a solution at all. Would it be the intention that such a person had to be a fugitive forever? What about the second or third person that would be granted bail under similar circumstances, and then disappears? What about the credibility of the police members involved assisting and supporting the bail application? The public prosecutor and Magistrate who ultimately grant bail would all be party to this concealment option. Now, if you have to draw an inference on the probabilities, and you consider these two possibilities, surely the explanation by General van der Merwe is the more likely interpretation.
Just to address one further aspect with regard to Mr Varney's answer on how he understood to be taken away, is on what he perceived the problems were that the SADF discussed with the SAP. Now, once again this does not appear from the document. The Committee can never make a finding on interpreting the document because it's
/unreliable.
unreliable. The only options to evaluate the evidence given in the Msani trial by the people present at the meeting, and in subsequent section 29 inquiries. I can only deal in that respect with my client's own evidence with regard to section 29 inquiries, and furthermore alert you to the fact that he was not an accused in the Msani trial and did not have any opportunity to challenge any evidence given at the trial by others present at the meeting.
Now, looking at the evidence on the problems discussed at the meeting, bearing in mind that this was the first time that the SADF members met with my client, he was an unknown factor to them, and is, if I may use the words, a new kid on the block, the security forces, having joined the Security Branch headquarters on the 1st October 1988, what they disclosed of the problem they are experiencing is found in van Niekerk's evidence in the Msani trial, confirmed by General van Tonder, as the problems relating to the status of the trainees, the ... (inaudible) ... of the Defence Force of arming these individuals and deploying them for the purpose for which they were trained and created, namely the protection of the IFP. Further aspects that was brought about in my client's own evidence I'll deal with herein below.
You questioned Advocate Visser with regard to Colonel van Niekerk's statements during the trial, with regard to how he understood van der Merwe's interpretation. Now, General van Tonder in his evidence was also - and this is with regard to the same issue, is how he understood General van der Merwe's suggestion, is that they're taking away a member, he would have to
/forfeit
forfeit bail. That's how he understood it. We must clearly distinguish between was that was General van der Merwe said or was that how they understood the whole question?
Now, the further question, and I quote in Afrikaans from the judgment. On a direct question of HUGO J it says,
"Are you telling us that he and the police have colluded to confuse justice, and that you would remove him from the Courts? --- No, I am not saying that. I am saying the basic problem with the police is a practical one, what we have to do in a case like this. The answer seems to be that the person needs to be taken away. Yes, the police replied that they would not get involved. But you did say that the member had to be taken away."
Now, I do not intend to repeat the evidence of my client given at the section 29 inquiry. Suffice it to say that the problems posed, and the security risk, was given against the background of these people's military training, the trainees not being au fait with the law and their rights. In the carrying out of their protective duties they could transgress the law and then pose a security risk. The assistance asked by the SADF was for a special detective investigation unit to become involved when an SADF/Inkatha trainee was arrested. This request was refused. In that sense the remarks were made by General Smit that asking for special detectives to become involved was not practical. It is incorrect to
/translate
translate ... (inaudible) ... with General Smit's detective branch. He was not at the detective branch at the time. With a little effort Varney could have established the fact if he was indeed interested in finding the truth. In his March Varney report(?) he preferred, and even in the section 30 notice, to refer to my client as being the detective branch, and I submit that was done to further his submission of a greater conspiracy between the detective branch and the security police, which is devoid from all truth.
From the evidence at the Msani trial it was clear that the Security Police, and in particular General Smit, was not prepared to interfere with the detective branch and their investigations. Now, the evidence presented by ... (inaudible) ... who at that stage was in the detective branch, supports this, that he and his unit were doing their job in the 1980s and 90s.
Now, in determining the truth you are to consider the evidence led at the meeting held on the 8th of November 1988. Now, the submission I made in respect of the first allegations equally apply to the second allegations, and in fact support the complete opposite, that the SAP were not willing to assist in the covering up of crimes.
There is one last aspect that I would like to take up with you, and just to demonstrate how easy it is to make a mistake in interpreting documents, even if you're very bona fide. And I took this up with my learned friend, Advocate Visser. You will recall that he made the submission with regard to the South African Defence Force attending Mr Buthelezi, and that General Smit went along
/to give
to give information. Now, from a reading of the documents it appears that the South African Defence Force contemplated asking General Smit to go along to Ulundi, but in actual fact he never went along, and by reading the documents, with your background of your perception, you draw an incorrect inference. And that's a danger, and I want to urge if you look at the documentation be very careful in your interpretation thereof. I think what you should bear in mind is the evidence you have, the evidence led in terms of the section 29 inquiries, and in that respect I would be grateful if those submissions of other people present at the meeting could be made available if we need to answer any further issues. Thank you.
CHAIRMAN: Thank you very much, Mrs Kruger. Mr de Vos, tomorrow morning? Just you and Mr Lassidge, I think, for the IFP. Anybody else? You'll be long, ja. Tomorrow morning, 9 o'clock. Thank you very much. Adjourned until tomorrow morning.
PROCEEDINGS ADJOURNED TO 1997/08/15
/PROCEEDINGS
PROCEEDINGS RESUMED ON 1997/08/15
CHAIRMAN: We will start now, and we will hear submissions this morning from Mr de Vos, Mr Toweel and Mr Lassidge, who will be in later, on behalf of the IFP. Before we start we just acknowledge the presence of the Mayor of Durban, who is seated in the front, and we welcome her here today. Mr de Vos.
MR TOWEEL: Mr Chairman, Mr Toweel, on behalf of Colonel van den Berg.
CHAIRMAN: Sorry, Mr Toweel.
MR TOWEEL: If the Commission decides or contemplates a finding to the detriment of Colonel van den Berg, and notice of such contemplated finding is given to Colonel van den Berg, then Colonel van den Berg will exercise his rights in terms of section 30 of the Act, so no submissions will be made at this stage.
CHAIRMAN: Thank you, Mr Toweel.
MR TOWEEL: Thank you, Mr Chairman.
CHAIRMAN: Mr de Vos.
MR DE VOS: Thank you, Mr Chairman. On behalf of our clients, General Geldenhuys, Liebenberg, Groenewald, Pretorius, Admiral Pitter, and Brigadier Sonnekus(?), we would like to make the following submissions to this Commission.
At that stage I just want to place on record we handed heads of - or submissions to this Commission. Unfortunately, due to lack of logistics on our side, it's not really a final document, but in order to assist the Commission at this stage we have handed a copy to the Commission.
We start off with our submission with a background
/to the
to the present hearing, and on page 1 we start off then by saying that the acquittal of the accused during October 1996 in the criminal case of S v Peter Msani and 19 Others, and the subsequent articles that have been written by Mr Howard Varney, forms an important chapter of this Commission's inquiry into alleged hit squad activities performed by ex-Caprivian trainees in the district of Esikhawini during the period 1991 until 1993.
Now, the whole saga with Mr Varney actually starts in an article named, "Failing to pierce the hit squad veil," an article written by Mr Varney and Mr Jerry Misaken(?), where a picture of the Malan/Msani trial is sketched by these two people. The authors allege that all the accused were acquitted because - and I quote from the article -
"Deception on a spectacular scale is precisely what happened in this case. In consequence the first, and perhaps only, opportunity to hold individuals in senior positions accountable for attempts to eliminate political opponents by violent means has been lost. Furthermore, serious allegations are being made against the Attorney-General, Mr Timothy McNally SC, and his legal team, as well as the presiding judge, Judge Hugo, sitting with Assessors."
It is alleged in this article that there was a failure on the prosecution's side to maximise the evidence available to it, inter alia, that crucial elements of the
/conspiracy
conspiracy were excluded from its presentation; the failure to produce documentary evidence coherently and systematically; the failure to call key witnesses, and the failure to raise key aspects of the accused's foresight of the killings, were all aspects that would have changed the outcome of the case. The article further surprisingly criticises the presiding judge for his failure to call certain key witnesses, and secondly that the Court failed to develop an intimate understanding of the documentary evidence, and failed to critically analyse the said documents in relation to the oral evidence.
The article then endeavours to create a sinister nexus between the creation of a paramilitary capacity given to Inkatha and the granting of authority therefor by the highest political level, namely the SSC, the State Security Council, and the Cabinet. The thrust of Mr Varney's argument is that the former State and its employees were party to the provision of an offensive military capacity to Inkatha, and I stress the point, offensive. This capacity was utilised offensively, according to them - to him, against the political enemies of Inkatha. It is alleged that the participants, in creating the offensive paramilitary capacity, foresaw and anticipated that pro-active and/or pre-emptive attacks would result from such training, which would eventually lead to deaths and injuries.
Subsequently, during March 1997, that's about six months after judgment was given in the Msani trial, Mr Varney prepared a report under the title, "The Role of the Former State in Political Violence. Operation Marion - a Case Study." In a lengthy document, consisting of
/some 161
some 161 pages, Mr Varney reiterates the allegations referred to above. When our clients received notice of the present hearing this document was forwarded to them as part of the TRC documentation to be debated by this Commission during this hearing. Subsequently a second report was received from the TRC, also prepared by Mr Varney, and this is apparently a summary of Varney's original report consisting of some 21 pages.
Lo and behold, however, on the first day of this hearing, the 4th of August 1997, a third report prepared by Mr Varney was handed to our clients under the title, "Submission to the Truth and Reconciliation Commission. The Caprivi Trainees. 4th of August 1997." This last document is another summary of Varney's original Marion report. I may add that - it is not in the heads at this stage - that one other aspect is brought in, and that is the actions taken by the ANC and the UDF against Inkatha in the mid-80s, and he starts of with this portion in his later summary, but he did - this aspect did not form part of his original document or his first summary.
Now, due to the fact that Bishop Tutu, after the acquittal in the Msani case, informed a news conference that, "The TRC would have to establish the truth about the KwaMakutha massacre," as reported in various newspapers, for instance The Eastern Province Herald of the 14th of October 1996, The Independent, The Cape Times during October 1996, and The Citizen dated the 12th of October 1996, certain questions arose. Now, during a television broadcast by SABC1 on the 20th of April 1997, of a programme known as "TRC Special Report," reference was made to the so-called Varney report.
/Now, all
Now, all these references created the perception amongst our clients, and members of the public, that the TRC and its Commissioners had the facts to prove that the then government and the senior military were engaged in the unlawful killing of its political opponents.
In an address by General Geldenhuys at an extraordinary meeting of the Infantry League, held on the 15th of March 1997, General Geldenhuys stated the feeling of ex-members of the South African Defence Force that the TRC is prejudiced and biased towards former members of the Defence Force. Due to the perceptions held by our clients a letter was sent to the Commissioners presiding at this hearing to ascertain what our client's rights would be during this hearing. In reply to the above request the Commission informed General Groenewald as follows.
"At the discretion of the Commission, and after your client has clarified to the Commission as to what aspects of the witnesses' evidence he challenges ..."
that's by referring now to Mr Varney,
"... he may, through you or your counsel, be permitted to put questions to the witnesses, or to make a submission with regard to the allegations against him."
In this letter it was also indicated that Mr Varney would be a witness. However, at the commencement of the proceedings the Committee decided that Mr Varney would not testify, and therefore would not be subjected to cross-examination. However, after much consideration and listening to legal argument it was decided that Mr Varney would be called as a witness, and that limited cross
/examination
examination would be allowed.
As a result of the time constraints placed on cross-examination, and lengthy answers given by Mr Varney - and I submit these lengthy answers were given by Mr Varney in order to evade this question - not much could be done. Consequently very little could be done to establish the truth, nor could the true reasons for Mr Varney's vehement onslaught against the former State and its employees be explored.
Now, perhaps in a lighter vein, with this as background, I will commence my argument by saying to the honourable members of this Committee that what transpired concerning the KwaMakutha trial, and Mr Varney's conclusion on how the trial was conducted, it can be militarised in the following terminology. As the evidence was nearing the culmination of its battle design, and was approaching its offensive objective, it was slowed down by harassing defensive fire. The truth is however stranger than fiction, in that the unreliability and lack of credibility of the accomplice witnesses became the Waterloo of the State's case. Mr Varney described the State's Waterloo as follows on page 57 of his report.
"The witnesses' performance was poor. Opperman, the star witness, in particular attempted to paint a more sympathetic picture of himself by claiming that the intention of the attack on the house in KwaMakutha was to kill only Victor Luthuli. However, it was clear that the attack on the Luthuli household aimed to kill all the
/"occupants.
occupants. Kruger withered and ultimately fell apart under the unrelenting cross-examination of seven senior advocates. The oral evidence of the accomplice witnesses is not examined in detail in this paper."
Before we deal with the inaccuracies in this report - referring to the Varney report - I wish to draw the Committee's attention to the following objective tests that should be applied when evaluating Mr Varney's evidence. According to the guidelines in the case, S v Rhoodie, 1980 PH, a set of facts must be evaluated according to the circumstances and time in which the incident occurred. The Honourable Commissioners will recall that Mr Rhoodie was the director-general of the Department of Information. He was convicted of theft and then appealed to the Appellate Division, which ruled as follows, and I am now going to quote in Afrikaans.
"The clear and uncontested evidence that the appellant, in his capacity as chief administrative official of his department, received from the authorities a particularly wide discretion regarding expenditure, especially regarding sensitive projects such as anonymous colleagues. In this case ordinary treasury regulations would not apply. In the execution of his instructions to conduct a psychological and propaganda war he had to act unconventionally and take unusual risks. /Against
Against this background and in these unusual circumstances his explanations, which might have been questioned otherwise, become quite acceptable, and the State's insistence that normal practice was ignored does not carry much weight."
I revert back to the English. Varney alleges that the training of the Inkatha members was per se unlawful. It is necessary to refer briefly to the legal and factual position in this regard. In terms of section 1 (1) of the Bantu Homelands Constitution Act, Act No 21 of 1971, the KwaZulu-Natal was a self-governing territory within the meaning of the Act, with its own legislative assembly and powers of legislation. However, certain legislative powers were reserved by the central government. According to the Act central government remained responsible for the maintenance of public peace and order, and the preservation of internal security in, and the safety of the area concerned. Section 4 of this Act reads as follows.
"A legislative assembly shall have no power to make laws in relation to any subject falling within the following classes of matters, namely,
(b) the control, organisation, administration powers, entry into and presence in the area concerned of any police force of the Republic charged with the maintenance of peace and order and the preservation of internal
/security
"security of the area concerned and the Republic."
This means that the power to determine what kind of safety measures would be applied in a specific area was specifically reserved by central government for itself. The KwaZulu Government, having had only self-governing status had limited legislative powers. The maintenance of public peace and order and the preservation of internal security fell outside the purview of the powers of the KwaZulu Government, but fell within the powers of central government. Since 1985 there was a serious escalation of violence aimed at the KwaZulu Government, its leaders, its people, installations and buildings. Now, I'll revert back to this passage, Mr Chairman, when I deal with the documents in itself, to give you certain quotes of what was said. The perception existed that the Chief Minister of KwaZulu had been targeted for elimination. The way we read the documents it would appear that the ANC/UDF alliance was held to be responsible for the escalating violence.
It is against this background of a self-governing territory, which hasn't got any legislative powers with regard to internal security and maintenance of law and order, that we must deal with Mr Varney's evidence in conjunction with the other evidence heard by this Committee. It must be borne in mind that in 1985 there existed no clear distinction between Inkatha, on the one hand, and the KwaZulu Government on the other hand. Inkatha was for all practical purposes, according to the evidence led in the KwaMakutha trial, the KwaZulu Government. Nobody had real clarity or a clear
/distinction
distinction in his or her mind exactly what was the role of the one and what was the role of the other one. They were totally intertwined. Technically Inkatha was a cultural movement, and its members were the government of the day.
A further aspect to be kept in mind is that the ANC at that stage was a banned organisation, a state of affairs that existed until the 2nd of February 1990. Very limited information pertaining to the ANC was published by the media, and the only time it was published it was when the odd ANC supporter appeared in court, usually charged with terrorism, sabotage or murder. It was even a criminal offence during those years to quote members of the ANC. The point is very little information about the ANC was readily available to the ordinary man in the street from about 1961 until the 2nd of February 1990.
At the same time, looking at the 1985-1986 period, the State Security Council Act, Act No 64 of 1972 was in existence. I mention this because Mr Varney refers to several State Security Council minutes emanating from this period. According to section 5 of the SSC Act its functions were to advise central government on the policy to combat any particular threat to the security of the Republic of South Africa. In the Malan trial Minister Malan testified that the State Security Council resolutions relevant to Operation Marion were debated in Cabinet and approved.
Against this background, and leaving aside the macro background of the so-called cold war, and the effect of Russian and Cuban presence in Angola, and the eventual intentions with South Africa, as well as South Africa's
/government's
government's strategy against it, the regional conflict between the ANC/UDF alliance and Inkatha/KwaZulu Government erupted during the mid-80s. It is against this background that Mr Varney argued that the training of the Inkatha members were per se unlawful. The basis for his argument is to be found in the following, namely that the State Security Council acted unlawfully by issuing instructions that paramilitary support must be given to Inkatha. He is of the opinion that the State at the time was guided by classic counter-revolutionary warfare principles as expounded by authors such as McEwan and Frazer. On page 13 of his initial report he wrote as follows.
"These principles involve in essence recognising, inter alia, that a revolutionary war is a political war, and recognised the four stage to a revolutionary war in order to employ the correct counter-strategy. Counter-revolutionary war involves gaining the support of the population through winning their hearts and minds, while neutralising the insurgents. Both authors refer to the central counter-revolutionary tactic of developing counter-revolutionary forces who would employ revolutionary methods to engage in political mobilisation and annihilate revolutionary guerillas. Frazer advised the use of terror had to be used tactically so as not to boomerang, and
/that it
that it should be cleared at the highest political level. Operation Marion was a case in point."
We refer you then to the Varney report, under the heading, "The Role of the State in Political Violence," pages 13 and 14, and also in his latest summary, page 6.
In his second summary the following was stated.
"The training and deployment of the Caprivi trainees fell equally within the strategies adopted by the South African State in the mid-80s."
I am referring to page 2, the last paragraph, where he says - and then there's another quote,
"The State adopted equally drastic measures to counter these threats, which included the use of acts of terrorism and guerilla warfare. These were carried out by specific security organs, and the middle- or counter-guerilla groups within and outside South Africa. The IFP/SADF-trained offensive element was a case in point of such an operation within South Africa. See page 3, the first paragraph."
And then he continues,
"And the Government adopted the guiding strategies of counter-revolutionary warfare (CRW) principles ..."
that stands for counter-revolutionary principles. And then he goes on to say,
"These principles involve tactics aimed
/at destroying
"at destroying the insurgents and revolutionaries while winning the hearts and the minds of the population."
At this point I just want to - I'll refer later back to what an insurgent in fact means. He then goes on and repeats by saying,
"Key tactics of CRW included the use of terror in certain circumstances, and the establishment of counter-guerilla or middle groups to mobilise politically and to act violently against the revolutionary forces."
And there his argument is based on several documents. The first one is an SSC meeting held on the 18th of July 1985 adopted a number of CRW principles under item 8 (a). All these principles coincided with lessons and principles set out by counter-revolutionary writers such as General C A Frazer and J J McEwan, to whom I will refer shortly.
Secondly he refers also to the following. He says that during 1986 the State President at the time, P W Botha, authorised the circulation of a document titled - I am quoting the Afrikaans heading of this, "Revolutionary Warfare, Principles of Counter-Insurgency," dated 10 September 1986, hereinafter referred to as the Botha document. That document was a paraphrasing of a paper by the SADF's General Frazer's book titled, "Lessons to Learn from Past Revolutionary Wars," hereinafter referred to as the Frazer document. Both documents refer to the careful weighing up - and I quote him, "of the use of force before it is used." Frazer's original document
/specifically
specifically - now, it's important to note that he refers to Frazer's original document. Frazer's original document specifically related to the use of force to acts of terrorism. After cautioning against the indiscriminate use of terror he advocated that,
"The use of terrorism by government forces must be decided upon at a high political level, and it must be so applied as to avoid boomeranging."
And then the third leg of his argument is the Botha document, where he says,
"The Botha document referred to J J McEwan's, "The Art of Counter-Revolutionary Warfare in 1996."
McEwan's book had been paraphrased and distributed within military and security structures. Paragraph 98 of the summary of McEwan's referred to the creation of counter-guerillas. The development of a counter-revolutionary guerilla force, which is employed according to guerilla tactics to annihilate revolutionary guerillas and take control of the population. Page 6, paragraph 1 to 3. The Frazer document at paragraph 39 (b) also advocated the creation of guerilla forces as an important adjacent (sic) to a government strategic force. The government adopted this strategy. See Varney's latest summary, page 5 and 6.
Will you bear with me for a second? I just want to take something out of my bag. (Pause) Thank you, Mr Commissioner.
It is our submission that Mr Varney misinterpreted the true contents of the relevant resolutions adopted by the SSC. His endeavour to link the so-called "hit squads"
/to the
to the alleged authority obtained at the highest political level therefore accordingly falls by the wayside and is false. In this submission we will try to explain to this Commission that the training received by the recruits was for a lawful purpose, and that it was not the intention of the Cabinet, the SSC or the military to train them to pursue an unlawful course of conduct, which would include murder, mayhem and other crime.
Before we elaborate on certain aspects, and before I forget about this, I just want to refer the Commission to McEwan - of what Varney said about McEwan in his original Marion report, the thick one, the one with 61 pages. If you look at page 34 he says the following,
"McEwan and the concept of counter-guerillas. Summary of McEwan's, "The Art of Counter-Revolutionary Warfare."
And all he says about this,
"Found in a book form in the SSC files."
That's all he says. It's not part of the State Security Council resolutions. He found it in the SSC's documentation. Now, if you come to my library and you find a book like Mein Kamf, or any of these type of things, it doesn't mean it's part of my policy. And that's the way Varney has been conducting his argument before you, and I will prove it when we get to the Frazer document. But with specific relevance to McEwan it is stated in his own statement, in his own article, it was a document found in the SSC files. Now, I suppose there must have been hundreds of Seshabas and various other documents. It was the State Security Council. Out of necessity they must have had many or thousands of
/documents.
documents.
Now, I will then move on to a critical analysis of the evidence given during this hearing, before I start dealing specifically with Mr Varney. We want to add at this stage that as an introduction General Geldenhuys was the Chief of the South African Defence Force at all times relevant to the issues being investigated by this Committee. General Liebenberg was the Chief of the Army, General Groenewald was the Chief Director of Intelligence Operations up until the completion of the so-called Liebenberg Report, and Admiral Pitter was the Chief of Staff, Intelligence up until March 1989, when he was appointed to another post. Brigadier Sonnekus and General Hattingh Pretorius were not really directly involved.
At the beginning of these hearings a broad overview of the evidence to be led, as well as possible inferences that might be drawn from this evidence was placed on record by the evidence leader, Mr Chris MacAdam. It was indicated by certain members of the Esikhawini hit squad would testify, namely Chikina Mkhize, Romeo Mbambo, Zwele Dlamini and Dalakholo Luthuli, the commander of the Esikhawini hit squad. From the evidence of these hit squad members the Committee will have to decide whether, due to the fact that certain of the members of this hit squad received training by the former SADF in the Caprivi in 1986, there is any link between their illegal activities and the training received.
Furthermore, the Committee evidence from Mr Varney, who inter alia requested this Committee to make the following inference.
"It is plain to see that the politicians
/anticipated
"anticipated that the supplying of an offensive unit together with arms and ammunition to a civilian organisation involved in an ongoing violent conflict would result in an attack being launched against the political opponents of the organisation in question."
I am referring to page 230, lines 12 to 17 of his evidence.
It was also indicated that Dr R Williams would be called as a witness to give his expert opinion on the evidence led and certain of the documentation relevant to this hearing. The proceedings of S v P Msani and Others, also known as the Malan trial or the KwaMakutha trial, as well as the record of S v Mbambo and Others are also relevant to the findings that might be made at a later stage. We propose dealing with the above evidence and the possible inferences that might be drawn.
Now, in the next paragraph we wish to set out our approach to be followed in this submission. Before commencement of this hearing the Committee indicated that this hearing is to be held in terms of section 29 of the Promotion of National Unity and Reconciliation Act, Act No 34 of 1995, hereinafter referred to as the Act. It was indicated at this stage that no findings will be made detrimental to any parties represented. However, it was indicated that findings will be made once the totality of evidence has been weighed up at a later stage, which will include a wide range of evidence gathered through, inter alia, section 29 investigations and submissions received. Only once these have been collated will the Commission be
/in a position
in a position to make findings, and at that stage all parties implicated will receive a further notice in terms of section 32 of the Act to make further representations if they so wish.
There have been various section 29 inquiries, where various persons implicated have been questioned by members of the Human Rights Violations Committee. This evidence has not been made available to us at this stage, except for that of a statement made by Dr Neil Barnard, but the Chairman, Mr Lyster, has indicated that he is going to advise the Commission to make this information available to us. We also have not received a transcript of the section 29 proceedings relating to Admiral Pitter, although requested. Furthermore, the Committee has indicated that they intend holding further section 29 inquiries. Furthermore we are still waiting for reasons why Dr Boraine never recused himself, which we once again request.
In the light of the following we are prepared to make the following limited submissions at this stage.
The evidence. I am referring now - I am going back to Mr Varney's involvement in this matter. Before I deal with that we say it's our respectful submission that there is no evidence which implicated General Hattingh Pretorius and Brigadier J W Sonnekus.
Howard Varney. The evidentiary weight of Mr Varney's evidence. Our first heading is we submit that Mr Varney's evidence is inadmissible per se: (a) We say it is clear for Mr Varney's evidence to be admissible he has to quality as an expert. From the evidence given in the Msani trial it is clear that the documentation and the
/meanings
meanings attached to words can only be explained correctly by a military expert. This point of view is even more apparent having regard to the expert testimony of Dr Williams, as well as the testimony of General Ulzig in the Msani case. From this evidence it appears there has been various research and studies relating to counter-revolutionary warfare, and Mr Varney as a layman cannot express an opinion on these military doctrines, and/or on which basis, and/or how they were implemented by the government of the day. Although Mr Varney can give evidence relating to certain facts obtained as a result of his investigations as a member of the ITU relating to murders and atrocities in KwaZulu-Natal, but this in no way makes him a military expert. During Mr Varney's cross-examination by Maritz SC, as well as by myself, he conceded the obvious, namely that he is not an military expert.
On this - and I am referring to pages 285, 286 and 331 of the record - it is our respectful submission that Mr Varney's evidence, for that reason alone, should be declared inadmissible. However, in the light of the fact that the Committee does not appear to share our view at this stage, we have no choice but to deal with certain of the aspects of his evidence.
Our next heading is the bias or subjectivity on the part of Mr Varney. We say the following. In the background to the present submission we dealt with certain aspects relating to Mr Varney's bias and subjectivity. We submit that the Committee limited cross-examination relating to the bias of Mr Varney. During cross-examination the Committee indicated, "Whether he's biased
/or not may
or not may not necessarily be the point." See the record, page 303, lines 9-10.
At this stage it is unclear to us whether the Committee accepts that Mr Varney is biased or not. We submit that it is clear that he is subjective and biased, and in this regard I will refer to the following.
1. He was a prominent figure in the End Conscription campaign, whose direct aim was to oppose compulsory military training. As a result of this aim the South African Government and the South African Defence Force was a direct target during the 1980s of Mr Varney's actions. His previous actions and attitude most definitely place him in direct conflict with the people he makes allegations against, and he must be considered biased towards our clients.
2. Mr Varney was a member of the ITU, the investigating task team who brought the KwaMakutha trial to court. It is common knowledge that the Judge, sitting with Assessors, severely criticised the ITU, especially Frank Dutton, on the evidence given at the trial. Judge Hugo commented as follows.
"Then there is the Dutton's evidence of his visit to Iscor, which was either totally irrelevant or was misleading. He testified as to the security position as he found it at Iscor earlier this year. If there was no intention that the Court should infer that the security arrangements in 1986 were similar to those in 1987 then the evidence was
/totally
totally irrelevant. If an inference was intended then Dutton's evidence was at best misleading, and probably deliberately so."
I am not going to explain what happened about the whole Iscor saga. I may briefly state for clarity that it was alleged that the weapons used at the KwaMakutha murder was later destroyed at Iscor.
3. We say that what must be kept in mind about his bias and subjectivity is that following.
May I just add before I go on, the Judge also said about Dutton,
"I may say that in all I was not particularly impressed by Dutton as a witness, where he showed an unwarranted degree of self-satisfaction,"
and I do submit at this stage in my submission that the same sort of degree of self-satisfaction was expressed by Mr Varney when he gave evidence before this Commission.
Now, if we go back to Varney's report in itself, we submit,
4. Mr Varney stated in paragraph 1, page 3, in the first paragraph of the original Marion report, under the heading, (a) Introduction.
And he says the following:
"The case made out in this report is a product of investigations and research of Frank Dutton, Clifford Marion, Melanie Loux and their respective teams."
It is not alleged that he personally conducted the
/investigation,
investigation, referring now to Varney. It must therefore be inferred that his evidence is purely hearsay, and a product of the investigation conducted by Dutton, Marion and Loux. Now, it must be borne in mind that hearsay evidence is inherently unreliable and normally inadmissible. Varney accepts that the State witnesses, Opperman and Cloete(?), were unreliable witnesses. However, when it suits him he relies on Opperman's evidence, but when the evidence does not support his point of view he rejects it or does not refer to it.
In this regard the following example is used for illustration. Mr Opperman in unequivocal terms stated that until November 1989, when Opperman was transferred from his duties in Natal, the Defence Force was only involved in one operation, namely the KwaMakutha massacre, and after this operation the Defence Force was involved in no further operations. In this regard we refer to Opperman's evidence in the Msani trial on pages 285 and 286 of the record. Now, if one looks at Varney's evidence here, if one looks at his reports, this fact is glaringly absent from the documentation. It is respectfully submitted that an objective and an unbiased witness would have brought this to the Committee's attention. If this evidence were to be accepted it is clear that there would be no direct involvement by any member of the military after the KwaMakutha massacre, and that there is accordingly no nexus with the deeds committed by the Esikhawini murderers. That is a very important point, Mr Commissioner, that must be stressed.
Then a second point of criticism against Mr Varney is that we say that Mr Varney's reports and evidence
/contains
contains the following factual inaccuracies, misrepresentations, illogical and incorrect inferences. Under this heading I am going to deal with a couple of these examples, and when I deal with the documents at a later stage I will bring in a couple more examples.
Varney's evidence before this Commission is a summary of his original report and of a highly controversial nature. We submit that no, or very little, cognisance can be taken of his evidence as inaccuracies, incorrect submissions, untruths and bias contaminates his original report. Due to the lack of time available we will refer to a few examples to prove that this is indeed the case.
Firstly, when one looks at the original of the report it starts of with various headings, namely table of contents, a bundle of documents, a preface, acronyms. Now, all these appears on page 1 of the original report. Now, looking at the acronyms we wish to point out the following. We say the acronyms contain highly debatable statements and/or factual inaccuracies. An example in this regard is a translation of - I am going to quote in Afrikaans ... (inaudible - end of Side A, Tape 1) ... system." I continue. He quotes, "gesamentlike veiligheidsstelsel" as Joint Security Centre of the SSC. The correct translation is Joint Security System, and not Centre. By using the word centre he deliberately creates the impression that there existed a centre from which operations were planned. We respectfully submit that this inaccurate translation was deliberately used.
The next point we want to make is the following. We are going to refer this Committee to a few paragraphs of
/this type
this type of semantic manipulation, improperly creating nuances and connotations to favour the author's cause. We do this because one of the main features of his report in our opinion is exactly the unfailing regularity at which these tricks appear. In this case it occurs even before the first paragraph of the contents. We have consulted a variety of dictionaries, but could not find any reasonable explanation for this mistake. In a document of this nature, and in the context and in a military sense the word centre is usually associated with a structural focal point such as an operations centre, from where operations are controlled. This is far removed from a "stelsel," and the usual synonym, "sisteem" or system.
The next point we want to make is the following. The original Marion report starts off with an introduction on page 3. In the very first paragraph the author states,
"The case focuses on the decisions made by those individuals (the politicians and senior functionaries of the former South Africa and KwaZulu Governments) which facilitated the establishment of a paramilitary capacity for the Inkatha Freedom Party, IFP ..."
and I underline Inkatha Freedom Party, IFP.
"... a capacity which they intended to engage in violent, offensive action against their political opponents ..."
and I underline, "which they intended to engage in violent, offensive action against their political opponents." Then the quote goes on,
"The case made out in this report is a
/product
product of the investigation and research of Frank Dutton."
and I underline Frank Dutton.
With reference to Inkatha Freedom Party we wish to point out the following. The author states the correct factual position in a footnote No 2, page 3.
"In 1986 the IFP was known as Inkatha."
This approach is incorrect and misleading. It is submitted that the word "Inkatha" should have been used in the main script because that is the name by which it was known at the time during the events. The author leaves the impression that this was merely a name change, preferring not to mention that the actual organisation of Inkatha changed radically from that of a cultural movement to a registered political party. This could not have been a bona fide oversight on the part of the author because the difference means that the South African Defence Force did intend to assist a political party militarily, whereas the intention was to assist a cultural movement. There is a radical difference, and if the author is either ignorant or insensitive to the significance of this distortion he should not be regarded as qualified to write such a report. The only other inference to be drawn is that he indulges in distorting the true facts.
The next passage from the same paragraph refers to, "against the political opponents." This, we submit, is also a wilful misconstruction of the real situation. The author chooses to ignore the numerous documents and evidence led in the KwaMakutha trial to the effect that there was indeed a need for Inkatha to defend themselves against violent attacks that the UDF and the ANC had
/initiated
initiated against them.
The third reference, also to the first paragraph, is a reference to Frank Dutton. In footnote 4 the author describes the status of Dutton, mentioning that he was an officer in command of the ITU, and that he left to join the United States International Criminal Tribunal in the Hague in the mid-1960s - in the mid - I suppose it's 1995, I am not sure. The quote here, 1960s, might be incorrect. But he chooses to omit what Judge Hugo said about the credibility of his evidence in his judgment in the Durban trial. I have already referred to this passage of the judgment.
All these misrepresentations appears in the very first paragraph of the first leading sub heading, introduction. We submit, following this remark, it would be appreciated if one starts guessing from the outset what the true nature of the document is, and to whom it is directed. The answer to this question seems soon to become apparent.
Following the introduction the author moves on to the actual contents under the heading, Overview. Under this heading he has a subtitle on page 10, "Relationship with Attorney-General, Mr T P McNally," followed by, "The Malan Trial Failing to Pierce the Hit Squad Veil." From these paragraphs it is clear that the author was highly begrudged by the Attorney-General's alleged mismanagement of the Malan trial, a lack of co-operation and ill-judgment, as well as the Judge's and Assessors' poor reasoning in their failure to call certain witnesses.
Whether the Varney criticism is valid or not, if it is meant to discredit McNally that is Varney's problem.
/However, we
However, we submit that a study of his allegations and submissions contained in his report is totally unfounded and untrue.
Now, I am going to refer the Commission now to - I have taken the introduction, I have taken the first paragraph, and I am going now to refer to the first document of the documents handed in as exhibits in the Malan trial, the first military document, and I am going to point out to this Commission that the similar mistakes as is made in the other aspects were made in regard to the first document. There are hundreds of mistakes, but I haven't got the time to draw your attention to each and every one.
Now, similarly reference is made by Varney to a document dated the 27th of November 1985 prepared by the Director of Military Intelligence, General T Groenewald. This document is the very first military document handed in at the KwaMakutha trial as Exhibit E2, page 3. It contains a report about Mr Buthelezi's request for assistance. According to Varney the Chief of Staff Intelligence, Admiral Pitter, received this letter from Groenewald and thereafter discussed it with Geldenhuys. Discussing this document Varney then adds in a footnote, column 137, page 59, which reads,
"McNally declined to cross-examine Groenewald, Malan or Geldenhuys on this aspect. See also page 59."
He seems to question, inter alia - and I am only taking General Geldenhuys because he was the Chief of the Defence Force, I am not dealing with each and every other aspect. With reference to Geldenhuys he seems to question why
/General
General Geldenhuys, for instance, was not cross-examined. This in our minds clearly illustrates the trick of pre-digested argument, namely that by cross-examining Geldenhuys some revelation could have been brought about. We strongly object to this line of thinking and expression.
The true facts of the case, however, on this point is that General Geldenhuys was not present at the meeting of the 25th of November 1985 to which this document refers. Both him and General Groenewald testified to the effect that he never received this letter. He also did not pass it on to the Minister. The said document was not discussed with him. He was not a party to writing this letter. He also did not sign it. McNally most probably decided not to question Geldenhuys on this point as this document had already been debated with Groenewald. It is also clear from the evidence produced in court by Groenewald that at that time General Niewoudt was acting head of the Defence Force as General Geldenhuys was moving into a new house, and subsequently went on leave.
A well-reasoned person, familiar with all the details of the case, as he alleges, and in the serious process of incriminating an Attorney-General, a Judge and high-ranking officers, who have been cleared by the Supreme Court, should be reasonably sure of his eventual success before making these type of allegations. How Varney can take such risky liberties with the facts is misconceivable. If the author pleads ignorance we submit his grudge paper should be declared inadmissible and scratched from all official records.
We refer to another example. Page 62 of the
/Varney's
Varney's report contains examples of dishonest semantic trickery used by the author. He states,
"Geldenhuys has conceded seeing the document of the 10th of February 1986, line 8, page 4311, volume 54."
Now, I am going to revert back to this document at a later stage, so maybe I can just refresh your memory. That was a document, it was a covering letter, and attached to the covering letter was a document dated the 19th of December written by Cor van Niekerk, Brigadier van Niekerk. I'll come back to this at a later stage.
Sorry, I am repeating, the 10th of February 1986, line 8, page 4311, volume 54. We argue in the strongest terms that Varney is in fact misleading the reader by using the word "concede." This is a blatant example of how he wants the reader to draw certain inferences from what he is writing. Various dictionaries describe concede as to admit to defeat, or to concede that one's work was inadequate, or admit defeat, or to, or grant, or yield, or to surrender. The true facts, however, are that General Geldenhuys, in his evidence-in-chief voluntarily and spontaneously and in the form of answers to questions put to him by his legal representative, stated it as a matter of fact. It was not an admission such as a defeat, nor was it a reluctant admission of the truth. It was not a concession to do something that he was previously trying to conceal. He did not resign, relinquish, abandon or waive anything. In our submission this is a very serious corruption of the true state of affairs. It passes a view over the integrity and meaning of his evidence and his credibility in making it.
/This is
This is significant in view of the following quotes from the judgment.
"Geldenhuys also gave evidence. As to be expected from a man of his stature he made a good impression in the witness box. Indeed, Mr McNally was hard-pressed to find any real criticism of his credibility."
And I also refer the Commission to pages 58 and 59 of the original Varney report.
At page 72 of the Varney report - and we're referring to another aspect - Varney refers to the following.
"The head committee meeting dated the 16th of January 1986, Exhibit E2, as reflected in a memo prepared by Groenewald from Geldenhuys to Malan."
This document is attached to the bundle of documents we received from this Commission under paragraph 10. In wording this paragraph the title is factually wrong and deliberately so. It places General Geldenhuys on the scene and in action. It is apparent from this document that Geldenhuys did not sign this memo. His name does not appear in this document and he did not see it. In the Malan trial it was proved by way of documentation that General Geldenhuys was still on leave at that stage, and this is recorded on page 2102, 2103, 2940 and 2941 of the record.
Now, what's interesting about Varney's way of thinking, and misrepresentation, and distortion of the facts, are the following. What Varney does, he latches
/this document
this document - the last document I referred to - onto Frazer's guidelines on counter-insurgency. See pages 32 and 33 of the Marion report. As will be pointed out this reference to Frazer is a reference to Frazer's first book, that did not form part of the State Security Council meeting of the 18th of July '85. In other words what we say, this is a blatant lie.
Extensive quotes are being made from paragraph 33 of Frazer's first book portraying that a summary of the first edition was distributed at this meeting, and created the philosophical background to future decisions made by the Cabinet and the SSC. He stated, inter alia, terrorism is a particularly appropriate weapon since it aims directly at the inhabitant, etcetera. Under subparagraph (d) he states,
"This indicates that the use of terrorism by government forces must be decided upon at the highest level, and it must be so applied as to avoid it boomeranging."
He says the following at page 33,
"Note that while Frazer cautions against using indiscriminate force he does advocate the use of terrorism when its advantage and disadvantage have been weighed up very carefully, and when decided upon at the highest level, and applied so it avoids it boomeranging. Note further the words highest level, which were used by the SCC interdepartmental committee and the
/State Security
State Security Council when deliberating on the supply of an "offensive paramilitary force for Inkatha."
Now, may I refresh your memory? The 16th of January document is a letter that Groenewald wrote to Pitter. You will recall that round about the 14th of January there was a meeting by the subcommittee. They first met with Chief Minister Buthelezi, they had discussions with him as to what his needs were, and then the 16th of January Mr Myburgh, of the Department of Constitutional Affairs, handed the subcommittee's report to the head committee, and there was certain discussions that took place at the head committee, where also present was Dr Barnard of Constitutional Affairs, and Dr van Wyk. And in that letter of Groenewald then to Pitter it's stated that there was a difference between Dr Barnard on the one hand and the military Groenewald on the other side, and then it refers to what was decided by the head committee. Now, this is what the whole story is about.
Now, what he says - and that's the important portion where it kicks of. He starts off with Frazer's document, and he goes on and he says Frazer advocates the use of terrorism, and it should be cleared at the highest level. Now, he's working - and then he says - and he refers to offensive paramilitary force for Inkatha. Now, he summarises his inferences that I've quoted and states that key tactics included the use of terror, and the establishment of counter-guerilla and all middle groups to act violently against the revolutionary forces.
Now, may I add at this stage - it's not in my heads. I don't know where he finds the word "middle groups."
/I've studied
I've studied the literature, but I can't find middle groups in any military literature at all. Counter-guerilla groups, I might explain, is a force. It's a normal force fighting in normal army uniform, but the only thing about a guerilla force is you usually put them down behind your enemy lines, and they live from the earth and from the people. There's no logistical support to them. It's a force on their own. It's a huge difference from the context Varney is using it in. Middle groups, as I say, I can't find any reference to this type of thing. And also Dr Williams does not testify to that effect. Then he refers again, to stress his point of counter-guerilla middle groups, to what McEwan and Frazer said.
Now, the departure point of his argument is the SSC meeting of the 18th of July 1985, which adopted a number of counter-revolutionary principles, including 8 (a) (6), referred to resistance. Now, I've already referred this Commission to the fact that McEwan's book did not form part of this minute at all. It is submitted, and we say it here, McEwan's book, "The Art of Counter-Revolutionary Warfare," does not form part of the agenda or nexus of the SSC meeting of the 18th of July '85. Varney is aware of this fact. However, to strengthen his cause he makes the allegation that it did form part. This is a blatant lie, and I've already referred this Commission to page 34 of the report.
Now, secondly, the reference to Frazer's book titled, "Lessons Learned from the Past Revolutionary Wars," is also incorrect. Varney attaches a documents which refers to paragraph 33 of Frazer's book. It is apparent, however, that this document was not attached, or
/did not
did not form part of the SSC meeting. What is in fact attached to this agenda or the minutes is a document which stops at paragraph 32, being an extract from Frazer's second book. As explained by General Ulzig during the Malan trial Frazer in fact published two books under the titles, "Lessons Learned from Past Revolutionary Wars," and "Revolutionary Warfare, Basic Principles of Counter-Insurgency," being a revision of "Lessons Learned from Past Revolutionary Wars. The first book was published while he was still a brigadier. That was done in the early 1960s. Later, when he was promoted to the rank of general, he revised his former book. The latter book did not include certain aspects that were contained in his first book.
When the SSC meeting was held on the 18th of July 1985 an extract from a summary of the second book was distributed amongst the members of the SSC. This summary, however, does not include paragraph 33 that Varney relies upon, but only stops at paragraph 32, in other words the second book. No reference was therefore made to the use of State terrorism at the SSC meeting of the 18th of July 1985. Now, we say this is a deliberate lie and falls in line with the way of thinking that we think - we are placing before this Commission at this stage in order to get a ruling from this Commission that no reliance can be placed on Varney's evidence.
Now, perusing this agenda further, paragraph 8 (a) (6) of the agenda reads as follows. I am going to quote in Afrikaans.
"A government's intention must not only be to exterminate insurgents."
/Note that
Note that the word - I would like the Commission to look at the actual document itself. It's not necessary to do it now. Look at the document placed before you. Note that the word annihilate was written in by some unknown person above the words, "uitroei." Mr Interpreter, the Afrikaans wording is "uitroei." Please quote for record purposes.
INTERPRETER: To exterminate.
MR DE VOS: Thank you. The word "annihilate" is being used by Varney throughout his report. The military dictionary describes, I quote in Afrikaans, "opstandelinge" ... (intervention)
INTERPRETER: Insurgents.
MR DE VOS: ... as insurgents, in other words persons who are involved in insurgency. An insurgent in Afrikaans, "insurgent," according to the same dictionary, means - I quote in Afrikaans, "A local or foreign citizen who intends to subvert the government through violence." The English version means, "Indigenous or foreign national who aims to overthrow the government by force." Insurgency means, "Form of rebellion in which a dissident faction commits widespread acts of terrorism, sabotage and civil disobedience, and wages irregular warfare with the aim of overthrowing the government. In its final stages it can escalate to conventional warfare, and although it often begins internally it seldom succeeds without foreign help, support and encouragement." Now, I must mention at this stage this wording comes from a military dictionary.
When one studies the summary of Frazer's second edition it is apparent that there is nothing unlawful mentioned under any of those 32 topics that appears in
/this summary,
this summary, and that was in fact also what Dr Williams conceded. It is submitted that the second edition is a proper and responsible approach to counter-revolutionary warfare. This was actually confirmed by Dr Williams. Varney conceded during cross-examination that he has no proof that the summary of Frazer's first book was attached to the minutes of this meeting. When it was put to him by me personally that the summary of Frazer's second edition was in fact attached he avoided giving an answer. Now, this is very important. We submit it is obvious why. He knew full well that it was only the second edition that was signed by the then State President, Mr P W Botha, and he couldn't give an answer.
Further we submit, Mr Commissioners, that Varney's attempt to bring the meeting of the 16th of January 1986 in line with the Frazer document is, with respect, similarly also a deliberate distortion of the truth. If we return for a moment - because this whole scenario must be seen together. This is when these bad ideas were formed, according to him, about Operation Marion, and consensus was reached, and foreseeability originated, etcetera, etcetera. It's important, this chapter is important. I want to return to that letter of the 17th January. Again it's a reference to the head committee's meeting that Groenewald reports on to Pitter. I am returning to it.
Returning now to the 17th of January 1986 memo prepared by General Groenewald to Admiral Pitter, and the so-called inferences to be drawn from it, we wish to point out the following.
1. In the first place Varney does not rely on the
/,omites pf
minutes of the head committee meeting. He refers to an interdepartmental document prepared by Groenewald for the signature of Pitter, to be sent to the Minister of Defence. In paragraph (n) the following is stated. This is important. I am going to quote in Afrikaans, Mr Interpreter.
"Problems were however experienced with the creation of a paramilitary element."
I continue in English. Varney, however, completely changes the meaning of what Groenewald said. He says on page 72, paragraph 12 of his report.
"Two members of the head committee objected to the creation of an ..."
and this is an important aspect,
"... offensive paramilitary unit ..."
note the word "offensive,"
"... insisting that it be authorised at the highest political level, and that Buthelezi must clarify exactly what he wanted."
Now, if we go back to the Afrikaans version it is obvious from Groenewald's letter that the word "offensive" does not form part of the contents of Groenewald's letter. Varney's insertion of the word "offensive" is deliberately done to create the impression that the creation of an offensive element was specifically discussed, and it was the creation of this element that drew opposition from two of its members. This is a lie. A second misrepresentation of the facts then follows. In Groenewald's letter he says that the committee decided that - I am quoting in Afrikaans from the letter,
/"The creation
"The creation of a paramilitary element must be investigated at the highest political level and cleared with the Chief Minister."
In footnote 64 - now, I must mention here specific attention should be given to the word "ondersoek," - investigate. In footnote 64, page 33, Varney leaves out the word, "ondersoek," in English investigate. The correct English translation of the sentence contained in Groenewald's letter will be,
"The creation of a paramilitary element must be investigated at the highest political level and cleared with the Chief Minister."
Now, if we could go back to what was said by Varney just to refresh the memory, because we're working with so many quotes, he says on head space 27 at the bottom,
"Two members of the head committee objected to the creation of an offensive paramilitary unit, insisting that it be authorised ..."
authorised, not investigated. Firstly offensive, secondly it must be authorised,
"... at the highest political level, and that Buthelezi must clarify exactly what he wanted."
Two lies referring to the same document.
At page 72 of the report Varney again leaves out the word "investigate." Now, it's interesting. The first one is a reference - it appears on different pages of his report, and this is the second reference to the same
/document.
document. At page 72 of the report Varney again leaves out the word "investigate," confirming, in our submission, the inference that he deliberately misrepresents the true facts in an attempt to build up a case against the members of the Cabinet, the SSC and military personnel.
CHAIRMAN: Sorry, Mr de Vos, before you go on may I just draw your attention to something? As I recall Mr Varney's evidence that reference there to two persons objecting to the offensive, as I recall it it was the objection which was raised by van Wyk and Barnard, which is a different document to the 17th of January. And, as I recall it, it was an objection to an offensive paramilitary element. I may be wrong, but if - is it the same document? Can you just refer me to which document, because the name Barnard appeared in that document, and it doesn't appear on the - oh, it's on the first page. Sorry, yes. Okay.
MR DE VOS: Thank you. Now, the importance of the absence of the words - or of the word "ondersoek," investigate, gives a totally different meaning of what was to be decided by the State Security Council, and this argument is being followed through by Varney in order to incriminate the State Security Council and the Cabinet.
We submit that this is a serious misrepresentation of the truth, and secondly that this destroys his argument that the SSC made a final decision on the 3rd of February 1986. Now, just for interest's sake at this stage, I want to point out - I am going to deal with it at a later stage. He made the point that the SSC made a final decision on the 3rd of February 1986. The SSC didn't make any decision on the 3rd of February, it referred the matter back to Ministers Heunis and Malan to investigate,
/but that's
but that's the basis of Varney's argument to come to his eventual conclusion that what transpired in this period proves dolus in some form. With all due respect, with all these mistakes - I am not going to elaborate much further on it. If you have so many mistakes already at this stage - I'll point to some others later on - there is no way that this Commission or Committee can rely on what Varney said.
Now - will you bear with me for a second please? (Pause) I am going to be quite a while, and I think if my junior can take over for a while maybe he can assist me to save my voice for the documents at a later stage. Thank you.
CHAIRMAN: If we could just indicate to you that we'll take a short adjournment at half past 11. We've arranged for tea at that time, so we'll continue until then.
MR COETZEE: The evidence that is now going to be dealt with is the evidence of certain members of the Esikhawini hit squad. Their evidence must be evaluated on the basis of whether their training was per se for an unlawful aim, namely to bring about hit squads. We submit that this is clearly not the case. The largest number of this group were trained in contra-mobilisation, intelligence-gathering and VIP protection. The offensive element formed only a small proportion of the recruits trained. They were to be deployed as a reaction unit which could be utilised, when necessary, to protect members of the KwaZulu Government and Inkatha leaders. Their initial deployment was clearly lawful, and in a protective and contra-mobilisation capacity, as envisaged. It is only at a later stage that they were deployed for unlawful
/purposes
purposes. We wish to draw your attention to the fact that Judge Hugo, in the Msani matter, found the training to be lawful. We refer to page 4462 and 4463 of the judgment.
The further argument is that due to the fact that the military provided these trainees with basic military training they should have foreseen the unlawful conduct of the Esikhawini hit squad. It is respectfully submitted that the assumption that when military training is provided to a person unlawful conduct should be foreseen is simply preposterous. This would mean that any soldier trained in an army who participates in unlawful conduct, the army concerned can be held liable for his unlawful activities, which such person might use as a result of the skills he obtained during his training. To expect the Defence Force to foresee that members of a lawful government, Inkatha politicians and the police force, the KwaZulu Police, would utilise and deploy certain Caprivi trainees on the basis alleged by the Esikhawini hit squad members is just not on.
The further argument on foreseeability which has been alluded to during these proceedings is that the Defence Force is held liable due to the lack of control. On a proper evaluation of the facts and evidence this argument immediately falls flat. The Defence Force's planning and the training of these trainees was always done under the assumption that these trainees would fall under a formal structure, and under effective command and control. However, due to circumstances totally beyond the control of the Defence Force this never took place on the basis envisaged.
In analysing the evidence of the Esikhawini hit
/squad these
squad these aspects will be dealt with in more detail. The training was aimed at providing protection for Buthelezi, the IFP and the KwaZulu Government. The Defence Force's training of these Caprivians was as a direct result of an order issued by the government of the day. The basis for this instruction can be found in Dr Buthelezi's request for assistance or protection. The government of the day had a duty to protect its citizens from unlawful attacks by the ANC and its affiliates. The training was thus aimed at providing Buthelezi with a capacity to protect himself from these unlawful attacks.
Support for the above proposition can be found in certain of the evidence given by the Esikhawini hit squad operatives. In this regard I refer to the following. Luthuli's evidence. It was the IFP - it was that the IFP has reached a stage where it needs to construct its own military wing because the ANC now recognises - then recognises the IFP as an enemy, and therefore had to devise a means to protect themselves. This is on page 105 of Luthuli's evidence. On the return of the trainees the protective nature was once again referred to. May I once again refer to Luthuli's evidence on page 116.
"The president of the IFP who arrived, and accepted them and welcomed them very positively, and was impressed and thanked them for coming back, and also emphasised on the fact that he was now comfortable and safe. He thought he was being hunted and people threatened to kill him as well, and now that they were back, the trainees, he felt so secure,
/and he
and he felt brave enough because he will be under their wing."
He further testified,
"In other words their role was in particular to render protection, if I may call them dignitaries of Inkatha all over KwaZulu-Natal. --- Yes, that is true."
That's on page 455 of his evidence.
I now refer to the evidence of Dlamini. One aspect which is distinctly clear from his evidence is that, although he was in the offensive group, on no less than four occasions he underlined and put emphasis on the defensive and/or protective role they had to play. In this regard the Committee is respectfully referred to page 159 of his evidence, lines 19-21, where he testified that the arms he was trained in were used to protect the KwaZulu people. On page 160, line 9, he confirms that he was in the offensive group, and he again informs the Committee that they were posted to different chiefs to guard them.
The thrust of Mr Dlamini's evidence in this regard was clear when Commissioner Magwaza questioned Dlamini on this very aspect, and put it to him that it appears that he was trained to play an offensive role in the attacks, but each time he was testifying about the attacks it came across as though he played a defensive role. Although Mr Dlamini's answer was that his work was offensive, or to kill anything there was, I respectfully submit from the gist of his evidence he inadvertently indicated that their primary function was to act in protective capacity.
/The next
The next heading relating to the evidence is the following. The proposed deployment of these trainees was lawful. The initial deployment was lawful. It was only at a far later stage, as alleged by the Esikhawini hit squad members, that they were deployed by Luthuli for an unlawful purpose. In Luthuli's evidence it is clear that the initial deployment was lawful, in lines with the aims envisaged by the Defence Force. The VIP protection unit was immediately taken up in the KwaZulu Police, the contra-mobilisation group was utilised throughout KwaZulu at IFP offices in order to mobilise the masses. Certain trainees were deployed at chieftain's kraals to provide protection. In this regard I refer to 451, 452 and 453 up to 455 of the record.
It was only at a far later stage that Luthuli alleges that he deployed certain Caprivi trainees as a hit squad in the Esikhawini area. This seems to have transpired subsequent to 1990 or 1991. This deployment seems to have arisen because certain IFP politicians wished to utilise the military skills of these Caprivi trainees to form a hit squad to unlawfully attack the ANC. In this regard I refer to page 456 of the evidence.
It is also apparent that the Esikhawini hit squad never wanted the Defence Force to be aware of their unlawful activities. Mr Dlamini even entered into a skirmish with members of the Defence Force. See in this regard page 166. Mr Luthuli also testified that he did not want the Defence Force to know what they were up to, and I quote.
"Thank you. Now, Mr Luthuli, when I read your statement which you made to the ITU
/I gained
I gained the impression that you were very wary of the South African armed forces, comprising the Defence Force and the South African Police. Is this impression correct? --- Yes, that is correct."
This is on page 458.
I now refer to the evidence of Mkhize. In evaluating his evidence it is important to refer to his understanding and interpretation of the terms, "offensive training" and "protection." In this regard it is noteworthy to refer to the evidence which was given on page 56, line 25-27, where he testified as follows, referring to the Caprivi trainees.
"From the beginning of the training it was always insisted that we would protect the government of the time."
On page 61 of the record Mr Mkhize in his evidence puts emphasis on offensive training. He refers to various weapons on lines 3-7, page 61, and makes the inference that because they were trained in these weapons their training concentrated on an offensive capability. This inference is betrayed by Mkhize's own evidence on page 64, where he refers specifically to the RPG7 rocket launcher, and explains on line 20 to line 31, and on page 65, lines 1-3, why it was important to be able to recognise and know the RPG7 weapon extensively, in order to able to defend oneself, which is clearly an indication of an emphasis on the defensive nature of this training. What is more important to underline here is that the RPG7 is probably the most powerful weapon the Caprivi trainees were trained
/with, and
with, and Mr Mkhize goes at length to explain the protective and/or defensive role the training entailed relating to this weapon. I respectfully submit that this is clearly in contrast with the evidence that was given by Mr Mkhize on page 69, lines 5-11, where he testifies that they only had one aim, and that was to kill.
I further submit that Mr Mkhize makes one cardinal error in his evidence. It is so that any firearm used by a soldier in combat has the ability to kill. This does not necessarily imply that the fact that the weapon is able to kill that such soldier is trained or entitled to kill or commit acts of murder indiscriminately.
The protective nature of the training was also emphasised ... (inaudible - end of Side B, Tape 1) ... to lines, 21-27, where he testified as follows.
"It was done to equip these people with the necessary knowledge so that they could be able to counteract certain situations they found themselves in, so that they could be able to defend themselves and fight and protect themselves, as well as other members of that group, if they were needed to do that."
That is defensive. On page 393, line 3-6 Mkhize testifies that he is not in a position to testify as to the offensive training as he was training on contra-mobilisation. On line 29 of the same page it is of interest to note that his evidence was that it was a minimum amount of Caprivi trainees who involved themselves in hit squad activities. This in itself, Mr Chairman, we
/respectfully
respectfully submit, should be a clear indication to the Committee that there was never an intention or foresight on the part of our clients that the training could lead to hit squad activities. As a member of the contra-mobilisation group it was never foreseen that a member of such group would be deployed in a manner outside the area of contra-mobilisation.
On page 71 of the record Mr Mkhize alluded to infiltration techniques, which coincides with acquiring information and/or intelligence. On page 78 of the record, lines 30 and 31, and in the first two lines on page 79, he testified as to the protective and defensive element of their training. The inference drawn by Mr Mkhize on lines 1-20 on page 78 of the record is clearly incorrect. He draws the inference that because one is trained with certain weaponry that it can only be used in an attacking role and not a protective capacity.
We further submit that the chronological sequence of events is of vital importance. The Caprivi training took place during 1986. During 1989 Mkhize was trained as a KwaZulu Policeman, after he had been trained as a special constable by the South African Police, and only after these further periods of training Mr Mkhize was then, during 1991, called upon by Mr Luthuli and others to commit murders, the murders he testified about. There is simply no correlation between the fact that Mr Mkhize was trained in 1986, and thereafter underwent two courses of police training, and five years after his training in the Caprivi, during which period he never committed any crime, was called upon to engage himself in hit squad activities.
A further indication of this is found on page 351,
/lines 20-22,
lines 20-22, where Mkhize testified that he elected not to work with his co-Caprivi trainees, but indeed elected people with other characteristics, with whom he felt comfortable, to associate himself with in committing these murders.
Mr Mkhize was trained in contra-mobilisation, and he testified that this was exactly the capacity in which he was initially deployed after completing his training. In this regard I refer to page 400 and 402, lines 25-28, and I quote.
"Namely do go and do contra-mobilisation, not some other job. Not murdering people, but to go and do contra-mobilisation."
And the answer is,
"That is true."
If any conclusion is to be drawn from the evidence of Mr Mkhize it is that he does not blame the training in the Caprivi for the predicament he now finds himself in. He clearly feels that he was misused. In this regard I refer to page 411 of his evidence, lines 12-14, and 417, line 30, and page 418, line 9.
We respectfully submit that, due to General Liebenberg and Geldenhuys and Admiral Pitter's limited involvement in the training of these Caprivi trainees, they could not possibly have foreseen that the KwaZulu Police and Inkatha politicians would utilise certain Caprivians on the basis alleged by Luthuli.
We have not dealt in any detail with all the evidence of the Esikhawini hit squad members due to the fact that the Committee indicated on the 5th of August,
/while Dr
while Dr Boraine was still present, that the evidence to be given on that date by the Esikhawini operatives did not implicate our clients.
I now refer to the evidence of Dr R M Williams. Although Dr Williams, a former MK commander, and as such on the other side so to speak to that of the clients we represent, he came across as an objective and unbiased witness. It is respectfully submitted that where his evidence differs from that of Mr Varney his evidence must be accepted. Mr Varney indicated that Dr Williams was available as a witness during the Msani trial, but that Attorney-General McNally refused to call him as a witness. He is severely critical of McNally in this regard. The reason why Dr Williams was not called as a State witness is patently obvious. He supports the version of our clients.
Dr Williams explained that the term "offensive/defensive" can be defined at different levels, namely the strategic level, the operation level, and the tactical level. This is basically the level of a skirmish. He alluded to the fact that at the tactical level the distinction between offensive and defensive becomes muddled, and I quote.
"Going from what the witnesses have said here that is the level that the personnel referred to and trained here were actually deployed was more at a tactical level. There one can act defensively or offensively, although the nature of tactical deployment is such that offensive and defensive tends to be
/quite mixed
"quite mixed up at that level."
From the above it is clear that the terms offensive and defensive cannot be approached on a strictly compartmentalised basis, as Varney has attempted to do. He furthermore stated that the training received by the recruits was generic, and that the type of training received in terms of weapons corresponds to basic infantry training or platoon weapons training, and that the further specialised training received by the offensive group corresponds with the type of special forces training, and in this regard I refer to page 200 of the record.
Furthermore, he agreed in no unclear terms that it is not the training that a soldier receives that makes one a criminal or a murderer, but only once his military skills are deployed for an unlawful purpose. In this regard I refer to page 530 of the record.
In his evidence he found it strange that the recruits were trained in the use of rocket-launchers and mortars, and he felt that strictly speaking it wasn't necessary, and in this regard I refer to page 204. However, during cross-examination, when it was explained to him that the protection would take place in a rural environment, and that the experience in South-West was that villages and chieftains' kraals were attacked with mortars, and in those instances the best method to counter such an attack would be through use of mortars. In this regard I refer to 525 and 526. Dr Williams accepted this scenario as sketched.
He also initially had a problem with the training in house penetration, which he described as a grey area. However, when the following reasons were explained to him
/relating
relating to house penetration he immediately agreed with the scenario as sketched. In this regard I refer to his evidence on page 526, and I quote.
"If one gets to house penetration, I assume that the same principle applies. If you have a situation where the insurgent has gained the upper hand, and he takes control of a particular building, inter alia your charge is in the building in a hostage situation, you must have a means of penetrating that building and undoing the harm. Would you agree with that?"
And the answer,
"You certainly could if it was a reaction force trained specifically for the role."
He carries on.
"Yes. As I understand the evidence that is particularly what they were trained to do, not so?"
Answer,
"According to the evidence, yes."
Dr Williams had a difficulty in comprehending why it was necessary to train the recruits in explosives. In this regard the panel is referred to the evidence of, inter alia, General Liebenberg and General Groenewald, where it was stated that it was necessary to train the recruits in explosives for identification purposes. Say, for example, if Dr Buthelezi was to give a public rally, it would be necessary to determine if there are any
/explosives
explosives under the stage, and the recruits would have to know what to look for. This is dealt with in Liebenberg's evidence in the Msani trial on page 3162 and 3163.
The panel seems to have a problem with the fact that the recruits were trained with weapons from Soviet origin. Dr Williams seems to have less of a problem with this aspect, and he was of the opinion that this simply emphasises the covert nature of the project. In this regard I refer to page 202. Furthermore the panel is referred to the Msani record, where the reason for the covert nature of the training is fully explained. It was necessary that the recruits should not be aware that they were being trained by members of the South African Defence Force. If South African weaponry were to be used it would immediately become apparent that they were being trained by the South African Defence Force. A further explanation that is also relevant is they also had to be able to identify weapons of Soviet origin. Also the Directorate of Special Tasks had AK47s readily available for training of these recruits. One of the reasons why this weaponry was readily available also relates to the assistance given to Unita.
Dr Williams further makes the point that no type of weaponry or equipment is inherently offensive or defensive in nature. It is very much the intention, the doctrine, and the anticipated deployment behind the armed forces that determines whether the training and weaponry is going to be utilised for an offensive or defensive aim. I refer to page 201 of the record.
Dr Williams conceded that because somebody might have received military training it does not make him a
/criminal.
criminal. As many as 500 000 South Africans received military training, and this does not make them criminals. Page 530 of the record is relevant in this regard.
Dr Williams was of the opinion that it is not advisable to provide military training to a group of persons and thereafter they are not placed under a command structure. The panel must, however, take cognisance of the evidence given during the Msani trial, namely that after the trainees had received their training they were to be placed in a formal structure, and that this was the responsibility of the Department of Constitutional Affairs and the KwaZulu Government, and that Military Intelligence only had a liaison function.
These trainees were not initially placed in a formal structure due to no fault of the Defence Force and the clients we represent. It must also be borne in mind that at no stage were these trainees armed by the South African Defence Force on their return to KwaZulu.
Mr Varney was of the opinion, for what it's worth, that the line of thinking followed by the senior military officials at the time was the principles that they - I repeat, that they subscribe to the principles of McEwan. Dr Williams differs from Varney in this respect. He clearly states that the principles of Frazer were preferred, and he conceded that the military thinking of the time was the more moderate approach of Frazer, as opposed to the harsher approach of McEwan. It was further stated, and not disputed, that during the two most senior staff courses given to senior military personnel at the time that the approach that was followed was that of Frazer and not McEwan, and that McEwan's way of thinking
/was rejected.
was rejected. In this regard I refer to page 507 and 508, and also the evidence of General Ulzig in the Msani trial.
Dr Williams also agreed that it was an acceptable principle of counter-revolutionary warfare that the Security Forces do not get involved in any unlawful activity, and that at all stage their conduct must fall within the framework of the law.
It is also interesting to note that Dr Williams' evidence supports that of General Ulzig, who testified in the Malan trail. Mr Varney criticised General Ulzig as being a subjective witness. It is necessary for the panel to read the full evidence of General Ulzig, which can be found on page 4152 to 4248 of the Msani record. When it was put to Dr Williams that General Liebenberg was specifically appointed to oversee the working group's recommendations and the proposed security system for KwaZulu because of his experience gained during the establishment of the Ubombo Home Guard, the situations were similar relating to attacks on the Ubombo chieftains, and the attacks and the potential threat facing the KwaZulu Government, his previous experience could be utilised in providing a potential solution to alleviate the problem in KwaZulu-Natal - or KwaZulu at the time, sorry. In this regard I refer to his evidence on page 519 and 520.
The whole scenario which was dealt with in the Msani trial, namely that there were attacks on members of the KwaZulu Government and Inkatha dignitaries by the ANC and UDF, and that Dr Buthelezi requested protection from these attacks, and assistance from the South African Government, the basis of this assistance entailed providing Buthelezi
/with a
with a paramilitary capability, which entailed, inter alia, an intelligence gathering capacity, and means whereby VIPs could be protected, contra-mobilisation, and a reaction unit which could react offensively when the need arose to provide the necessary protection. The intended capacity indeed fell within accepted military doctrines relating to counter-revolutionary warfare. Furthermore the whole assistance was provided for a lawful aim. Dr Williams accepted the above scenario and stated that it made logical sense to him. In this regard I refer to his evidence at page 520 to 530.
And now I suggest we take a break now.
CHAIRMAN: Can we reconvene at 20 to.
SHORT ADJOURNMENT
/
ON RESUMPTION
ON RESUMPTION
CHAIRMAN: Mr Coetzee or Mr de Vos will continue with submissions on behalf of their clients.
MR DE VOS: Thank you, Mr Chairman, de Vos. I will continue on page 42 of our submission under the heading Operation Marion in the documents. What we've tried to do, we tried to give an explanation as to each and every document that pertains to our clients which were handed in during the Malan trial.
The disclosure - the background of the whole Operation Marion is the following. The disclosure of Operation Marion followed upon the leak of information to the media during 1990. The Goldstone Commission thereafter conducted an investigation into the training of the 200 Inkatha trainees, whereupon various persons, including Generals Geldenhuys, Liebenberg, Groenewald and Pitter was charged with murder and conspiracy during 1995.
The beginning of Operation Marion. The request received from Chief Minister Buthelezi. Operation Marion resulted as a direct result of the fear expressed by Chief Minister Buthelezi for his own safety, as well as the safety of various other prominent leaders of Inkatha, during a briefing given by General Groenewald to Chief Minister Buthelezi on the 25th of November 1985, which was a task fulfilled by General Groenewald on behalf of the Department of Constitutional Development. And I must stress this, he didn't appear there as a member of Military Intelligence, he went there as somebody who appears or represents the Department of Constitutional Affairs. Now, at that meeting the Chief Minister said that he is aware of the fact that, I quote in Afrikaans,
/"The ANC
"The ANC wanted to eliminate him personally."
Further references are, inter alia,
"(a) the ANC mission in exile are being sent to destroy Inkatha and to assassinate me."
Now, at this point I just want to refer the Commission to one aspect pertaining to the documents that we received from the TRC. A telex dated - or No 135, dated the 9th of December 1985 does not form part of the documents that we received. It was, however, handed in at the Msani trial as part of Exhibit E2, page 1-10, and it was attached to this letter dated the 25th of November 1985. Now, in this telex - let me explain it. This telex was a telex - Chief Minister Buthelezi wrote a letter to Mr Hans Meyer, who was then the Commissioner-General for KwaZulu-Natal, and after Mr Hans - Hans Meyer or Hans Muller received this letter, he sent a copy of that telex or letter through to General Groenewald. Now, that was after the 9th of December. Why it's important, it gives a broad background of the feelings and emotions expressed by Chief Buthelezi in that period. Now, in that telex it says the following.
"(b) The ANC has declared war on me and Inkatha. My supporters are having their homes destroyed, and they are witness to schools, offices and vital KwaZulu installations being burned down."
Further reference to the telex,
"(c) A military threat from the ANC has been directed specifically against me, KwaZulu and Inkatha.
/(d) Now
(d) Now that KwaZulu has become the target number one of those who are unleashing violence against us ..."
I am referring now to another occasion. That was a remark made during a meeting between the Chief Minister Buthelezi with Ministers Malan, Heunis and Le Grange dated the 9th of January 1986, and this document was also not given to us as part of the TRC's documentation, but it was handed in in the Malan trial as Exhibit E6. And then,
"(e) We in Inkatha are burying our dead. The ANC mission in exile has declared war on Inkatha and they have ordered my assassination."
I refer to the telex again.
"(f) Does the SA Government really think that I can watch as my people die, because they are defenceless against the mounting onslaught against us."
I refer again to the telex. And,
"(g) I have frequently called for the development of a paramilitary task force in KwaZulu. Ordinary people feel the need for protection."
Now, we submit that these requests as set out in this document of the 9th of December 1985 corresponds with the contents of a memorandum prepared by General Groenewald dated the 27th of November 1985, and spells out what is requested by Chief Minister Buthelezi, namely - and I am now summing up in military terms what he requested - (a) Personal protection; (b) the ability to gain information, in other words information training;
/(c) the
(c) the establishment of his own defence force; and (d) the creation of a KwaZulu security management system.
Now, after receiving these document Colonel Cor van Niekerk received instructions to make an appraisal, and it is important to note it is only an appraisal, of Chief Minister Buthelezi's needs, as well as the needs of Bishop Lekanyane. Lekanyane was then in the Northern Transvaal, and he had similar problems at that stage. Now, Brigadier van Niekerk prepared an appraisal dated 19th of December 1985, and he used as his source documents the letter prepared by Groenewald dated the 27th of November '85, that refers to the meeting on the 25th of November '85 between Groenewald and Buthelezi, as well as the telex that was sent by Mr Buthelezi to Mr Hans Muller.
In paragraph 3 of this document dated the 19th of December van Niekerk states the following. I am quoting in Afrikaans from the document.
"The intensity of actions against Inkatha has compelled the latter, through Chief Minister Buthelezi himself, to direct a request at the RSA authorities that military assistance be given to him in order to protect Inkatha against the actions of the charterists."
The aim of this staff report is set out in paragraph 7. I am quoting the Afrikaans again.
"The purpose of this staff report is to determine the nature, the extent and the modus operandi of the SADF support to Minister Buthelezi and to Bishop Lekanyane in order to make
/recommendations
recommendations for approval in principle to the Minister of Defence."
Under the heading, "Requirements" - "Behoeftesteling," he says - I quote in Afrikaans again from the document.
"A cogent appreciation and plan can only be drawn up once the detail of what Chief Minister Buthelezi had in mind exactly had been discussed with them."
The document then sets out the needs of Chief Minister Buthelezi as envisaged by Brigadier van Niekerk. In paragraph 15 he states - I quote from the Afrikaans again.
"The two leaders' requests cannot at all be considered by the SADF without considering the following legal aspects."
And then I quote again from the document.
"The legal competence of political, cultural or church organisations to conduct their own security services."
I then refer to paragraph 17 of this document, and the heading is the following, "Immunity Against Prosecution for Unconstitutional Paramilitary Actions." He states,
"The three organisations under discussion have a total membership of at least seven million. It would be practically impossible to guarantee immunity against prosecution for actions against the ANC and UDF to such a large group. There is only one possible option regarding this need for immunity, especially as expressed by Bishop Lekanyane, and this
/is by way
"is by way of legal adaptations, and that is to give recognition to the Makoko as protectors of the ZCC and its members. For example, as is done for security companies, in terms of which they can perform limited policing actions."
It is important, we submit, that Chief Buthelezi did not request indemnity for the actions to be taken by Inkatha members. This in itself is a very strong indication that his need throughout the deliberations was based on a protective capability for Inkatha.
Paragraphs 26 and 27 of this document refer to the protection element and the offensive element, but does not have any sinister connotations because it's a military document being set up by Brigadier van Niekerk, and with reference to what his instructions were. This is the usual type of thing that a military man will do when you get that kind of information.
Paragraphs 17, 25, 34 and 45 of this same document all refer to legal aspects that should be addressed by the relevant State departments to ensure the creation of a paramilitary force was legal. The covert nature of the training - see paragraph 21 - was to ensure that Chief Minister Buthelezi would not be regarded as a puppet of the government. Paragraph - it's been referred to also in paragraph 20. In paragraph 51 it is stated, and I quote from the Afrikaans,
"The elements to be trained must be equipped with their own recognisable basic uniforms, and at least pistols which cannot be traced back to the
/military."
military."
Close the Afrikaans quote. This clearly ... (intervention)
CHAIRMAN: Sorry, just - Mr Interpreter, you left out the word "issued" in that translation. Sorry.
INTERPRETER: No, it did appear, but it appeared at the beginning.
CHAIRMAN: Ja.
MR DE VOS: In our submission this clearly indicates that what was envisaged was a legal paramilitary force who could act in a protection role in a proper structure.
Then I am going to the next document in the bundle. After this there was a meeting, State Security Council meeting, dated the 20th of December 1985. The request by the Chief Minister was discussed at a meeting of the State Security Council on the 20th of December '85 under the chairmanship of President P W Botha. It was decided by the meeting - and I am going to quote the Afrikaans from the minutes.
"The security of Chief Minister Buthelezi and KwaZulu. Minister Heunis, Minister Le Grange and Minister Malan must give assistance to Chief Minister Buthelezi so that a security force can be established in KwaZulu. Chief Minister Buthelezi must have available additional security personnel and security measures, especially in view of the deteriorating security situation in Mozambique, which could allow larger numbers of ANC terrorists to operate the
/borders of
borders of Northern Natal."
Close the Afrikaans quote. General Groenewald testified that before this meeting he was requested to see General Malan, and he discussed the contents of Chief Minister Buthelezi's request with General Malan, using his own letter dated the 27th of November 1985, as well as the telex dated the 9th of December '85, as the basis for his discussion. The document dated the 19th of December '85, prepared by van Niekerk, was not used to brief Minister Malan.
Evidence was also given in the Msani trial that this point on the agenda was introduced by Minister Heunis, who was the then Minister of Constitutional Affairs, and under whose authority self-governing states resorted. No specific details were available to the SSC as to what Dr Buthelezi's requirements were at that stage, except that his life was in danger.
A meeting thereafter took place on the 9th of January 1986 between Chief Minister Buthelezi and Ministers Heunis, Malan and Le Grange, as well as Dr Dlomo, Brigadier Laas and Colonel Mathie. Now, the last three people, Dr Dlomo, Brigadier Laas and Colonel Mathie were all attached to the KwaZulu Police at that stage. After submitting his reasons for protection as stated above a head committee and subcommittee was appointed. I must mention this document, the 9th of January '86 meeting, was also referred to in the exhibits been handed in in the Msani trial.
Now, this head committee that was appointed consisted out of Dr van Wyk of Constitutional Affairs, Dr Barnard of National Intelligence, General Coetzee of
/the South
the South African Police, General Geldenhuys - van der Westhuizen, sorry, of the State Security Council, General Major Groenewald of the SADF, Mr Kobus du Toit Bosman, KwaZulu, and Brigadier Laas, KwaZulu, and Colonel Mathie of KwaZulu. The head committee appointed a subcommittee, which consisted out of the following persons. In other words they delegated their work to the subcommittee, and it consisted out of Mr Myburgh of Constitutional Affairs, Mr Voskenk of Constitutional Affairs, the secretary, General Groenewald from the Defence Force, Brigadier Verster, SAC, Colonel Marais, SAP, Mr J Kemp, National Intelligence, Mr Velgemut, National Intelligence, Mr K du Toit Bosman, KwaZulu, and Colonel Mathie on behalf of KwaZulu.
Now, the head committee instructed the subcommittee to investigate the following aspects - see the subcommittee's report, paragraph 9 of the documents before this Commission, dated the 15th of January 1986, Exhibit E2, page 56, paragraph 6 - and the instructions in this document reads as follows. I'll quote from the Afrikaans.
"The creation of a national intelligence service for KwaZulu; the creation of a paramilitary unit; the training of 500 additional police; the possibility of Chief Minister Buthelezi, as Minister of Police of KwaZulu, issuing firearm licences; financial implications."
I close the Afrikaans quote.
Brigadier van Niekerk was then called upon by General Groenewald to assist the subcommittee in its
/preparation
preparation of its report. The subcommittee had to make recommendations to the head committee on the 16th of January 1986. Now, see also in this regard a handwritten note that does also not form part of the documents before this Commission, but which was handed in as Exhibit E2, page 34 and 35, in the Malan trial. Now, that document sets out the head committee, subcommittee, and what the subcommittee's instructions were, and it also has a reference that they would have to report back by the 16th.
The subcommittee that was appointed then met with Chief Minister Buthelezi on the 14th of January 1986 at Ulundi. See paragraph 1 of the subcommittee's report. The subcommittee's report prepared by Mr Myburgh, the Chairman, contains the following important aspects.
(1) In order to protect Chief Minister Buthelezi's power base the assistance must be clandestine or covert. It should be done on a need-to-know basis.
(2) Certain paragraphs contained in the Cor van Niekerk appraisal dated the - there's a mistake there - the 19th of December '85 corresponds exactly with the wording of the subcommittee's report. It must therefore be inferred that the subcommittee had access to the 19 December '85 document when the subcommittee report was prepared. This won't be unusual because Groenewald sort of incorporated him into the workings of the subcommittee.
(3) Paragraph 9. An appraisal and a plan can only be made after discussions with Chief Minister Buthelezi as to his needs. That's what they say in that report.
(4) The Chief Minister's present needs are already including the training of personnel for the protection of VIPs, the creation of a national security system, the
/training
training of additional police, and an offensive capability to act against the ANC, and the need for a paramilitary task force.
(5) Paragraph 12. Proposed certain statutory amendments.
(6) Paragraph 19 stated, under the heading of conclusions - there again the needs of the Chief Minister was again summarised.
The subcommittee's report was then handed to the head committee on the 16th of January 1986, as appears from that letter written by Groenewald dated the 17th of January to Pitter to inform him what transpired there.
Now, the report prepared by the head committee was thereafter submitted to the State Security Council, and this report of the head committee was attached to the State Security Council meeting of the 3rd of February '86. Now, item 3 (b) of that minutes of the State Security Council meeting refers again to,
"The security of Chief Minister Buthelezi in KwaZulu."
At this meeting,
"Minister Heunis reported to the meeting about arrangements which had been made in this regard. The meeting notes and approves that Minister Heunis proceed with the recommendation as set out in the attached appendix A to the minutes."
Now, we also wish to point out that annexure A does not form part of the documents received by my clients from the TRC. A perusal of this document, however, shows that what was recommended was that Ministers Heunis and Malan - we
/got access
got access to this annexure through some other source. It reveals that what was recommended was that Ministers Heunis and Malan - I quote,
"... must conduct a discussion with the Chief Minister to make a proper appreciation of his needs and intentions with the paramilitary element."
Close quote in Afrikaans.
Mr Varney, in his Marion report, states it as a fact that the subcommittee's recommendations was accepted by the SSC, and that it was approved. This submission is incorrect. The head committee did not accept the subcommittee's report, nor did it reject it. The proposal was that the two Ministers - and now I am going to give my own translation of what was said in annexure A - I quote,
"... would have a discussion with the Chief Minister in order to ascertain his needs and aims with such an element."
Varney's further submission that permission was granted a the highest level is also incorrect. No final decision was taken by the SSC. The matter was referred to Ministers Heunis and Malan to investigate - and I want to stress investigate again - and to find out what exactly Buthelezi's intentions was with this paramilitary element. See in this regard Varney's report, page 76.
To summarise the outcome of both the head committee's meeting of the 16th of January '86, as well as the State Security Council meeting of the 3rd of February '86, it can be stated that no final decision was taken, either by the head committee or the State Security Council.
/Varney's
Varney's attack on Judge Hugo in this regard is, with respect, also unfounded. Varney states in his report,
"Although Hugo J referred to this paragraph in his judgment he made no attempt to assess why the matter had to be cleared at the highest level."
See record, page 77. As pointed out above the SSC referred the matter back to Heunis and Malan to investigate.
Varney concludes his argument about these events by stating,
"The State Security Council was seized with the issue of whether to authorise the creation of an offensive paramilitary unit for Inkatha."
See record of his Marion report, page 78. It is obvious from what was said above that the offensive paramilitary element was not even discussed by the SSC. Varney goes on and says,
"They followed the head committee's recommendation and referred the matter to the highest political level. Although the SSC members deferred the decision it is apparent that the body supported the initiative. The minutes do not indicate any objection or dissent, or an endeavour to stop the operation. Nobody present at the meeting has to date distanced themselves from the decisions made on the 3rd of
/February 1986.
February 1986. If such details had been disclosed at an earlier stage an unquantifiable number of lives could have been saved, particularly in the early 1990s, when the full offensive force of the Caprivi trainees was unleashed. All present are accordingly accountable for the acts of murder and mayhem that flowed from the creation of the project."
We say Varney's submission in this regard is, with respect, totally unfounded and untrue. This is particularly clear if one compares what is said at the bottom of page 77 and the top of page 78 of his report. He alleges that annexure A, the recommendations of the head committee, reveals that the two documents are almost identical. Exactly the opposite is true. The subcommittee's report incorporate portions of van Niekerk's document dated the 19th of February '85. There are no minutes of the head committee's meeting. In his haste to incriminate the SSC and the Cabinet he misleads this Commission portraying that a number of lives would be taken in 1990 as a direct result of the unlawful nature of the assistance. Compare footnote 161 on page 78. Note also paragraph 6 of annexure A, that it was in relation to the more overt structures, namely the intelligence components, VIP protection and security management system, that the impression had to be created that KwaZulu generated these capacities themselves. This is now what Varney's ... (inaudible - end of Side A, Tape 2) ... was not included here because of its sensitive (it
/is unlawful)
is unlawful) nature, and it would have no visible presence, being completely secret. Now, this reference made by Varney stands in relation to an incorrect allegation that the head committee and the subcommittee reports are almost identical.
What we're saying to this Committee is his whole argument falls flat if he can't build up some sort of - or lay down a basis to incriminate the State Security Council or the Cabinet that they had discussed the possibility of people that's going to be killed. There's nothing wrong that people can be killed. I mean if somebody attacks me and I defend myself. Is there anything wrong with that? Isn't the State allowed to and obliged to protect its own people? But what he is doing, he's doing it on another basis. He's trying to draw it in on the basis that they discussed this subject, they were aware of that, and because of that they deliberately made decisions which causes people to be killed at a later stage, whereas it wasn't even discussed by them. It wasn't before them, they don't know anything about it. And that is the misrepresentation he's making, and he carries it right through until 1990-1991, with the Esikhawini squad.
Now, we further say it is obvious that his submissions on pages 77 and 78 of the Marion report is based on his incorrect assumption as to the contents of the documentation placed before the SSC at the meeting, and the omission of the word "investigate" in Groenewald's letter dated the 17th of January '86, as well as an incorrect understanding the of the recommendations made by the head committee to the SSC.
Now, I am going to refer now back to a covering
/letter that
letter that was written ... (intervention)
CHAIRMAN: I just want to say, Mr de Vos, there's just something puzzling me here, and nobody's given us an answer to this yet, and maybe you on behalf of your clients will be able to. We see what you're saying about Mr Varney's arguments, but when was this project actually approved?
MR DE VOS: We say, and we argued it, and we led evidence on this point - we say it was only approved - you will remember when Pitter gave evidence before you, was called upon, I said there's one important document that does not form part of the documentation before you. Now, there was a telex dated the 8th of April '86 that was sent from Minister Malan's office to Chief of Intelligence, instructing him to go and see Mr Buthelezi. Now, he went down and he had a meeting with Mr Buthelezi on the 16th of April to clarify certain aspects. Now, according to the telex, this telex says - and I am going to quote the Afrikaans, paragraph 4 - I was going to get to it at a later stage.
"The Minister of Defence requested that HCI, on behalf of the Minister, the covert link of the intended organogram, in other words the part referring to creation of paramilitary force, must be sold to Mr Buthelezi. If successful this could also serve to authorise implementation talks with Khumalo ..."
and then it goes on - no, actually what happened then is the following. There was a meeting on the 16th, and on the 17th, the morning of the 17th, there was another
/meeting
meeting where Minister Malan and Mr Buthelezi personally met each other, and on that date it was agreed upon.
CHAIRMAN: That was the 17th of April 1986. And then on the basis of that minute or decision that's when the planning was finally approved?
MR DE VOS: That is correct.
CHAIRMAN: Please continue.
MR DE VOS: Thank you. Now, I am going to refer now to a covering letter that forms part of the sequence of events dated the 10th of February 1986, which accompanied Brigadier van Niekerk's document dated the 19th of December 1985. Now, a big issue was made out of this document by Mr Varney in his report, and therefore I need to refer you to this document. Will you bear with me for a second, I just want to find a certain place? (Pause)
CHAIRMAN: Sorry, Mr de Vos, is this going to follow the same line as your cross-examination of Mr Varney, if I remember correctly, where essentially there was a mix up, because obviously this document couldn't have been the basis for a decision because it was written without knowledge of the decision, and so on? Okay.
MR DE VOS: Now, this document - the covering letter was handed in as Exhibit E2, page 17, and it is part of paragraph 11 of the TRC's documents supplied to my clients. As I have said earlier this document, the covering letter itself, if one looks at it, was prepared by Colonel van Niekerk for the signatures of both the Chief of Staff Intelligence, Admiral Pitter, and the Chief of the South African Defence Force, General Geldenhuys. Paragraph 1 of this letter reads as follows. In Afrikaans I quote.
/"On 19th
"On 19th December 1986 a submission under the reference SD/311/7/7 was made by General-Major Groenewald to the Minister of Defence concerning SADF assistance to Chief Minister Buthelezi and Bishop Lekanyane. This submission is attached hereto as background. Since then assistance to Minister Buthelezi at the highest level has been approved, but no decision as been attained regarding assistance to Bishop Lekanyane."
Now, Groenewald testified in the Msani trial that he made a statement to the police before his arrest. What actually happened, before he was notified that he will be arrested two or three of the members of the ITU appeared in his offices in Cape Town, gave him about 10 documents, if I remember correctly, and asked him to make a statement. Now, he made a statement. He admitted in this statement that he used van Niekerk's 19th of December document to brief the Minister. That's what he said in his police statement. The briefing took place shortly before the State Security Council meeting of the 20th of December '85.
He testified in court that he made a mistake in this regard. The reason for making such a mistake was that not all the relevant documentation pertaining to the Operation Marion was showed to him by the Investigating Task Unit. It was only after his arrest, and after he was supplied with all the relevant documentation, that he realised that he personally had nothing to do with Bishop Lekanyane, and therefore did not brief the Minister with the document of
/the 19th
the 19th of December at hand. What he in fact used was the document dated the 25th of December '85, in other words the first letter that he wrote, reporting what Chief Minister Buthelezi said to him, as well as the telex dated the 9th of December 1985 - that's the letter written by Mr Buthelezi to Mr Hans Meyer - to inform the Minister. Van Niekerk's incorrect assumption, as set out in the covering letter, was the reason for the misunderstanding, because in the first paragraph of that covering letter van Niekerk states that Groenewald used his document dated the 19th of December to brief the Minister, but that's an assumption made by van Niekerk, and that assumption was carried through when Groenewald gave his statement to the police. One must remember that was approximately 10 years after the incident occurred. It's a long time, and if anybody says to me there's a letter confirming in '86, or whatever the case - or '86, early '86, saying I made a recommendation to somebody on the basis of another document, I will accept it. But if I start preparing the matter, and I find out exactly I didn't have anything to do with Lekanyane, I will rectify it. And Groenewald came along and he testified and he said this to the Court. I mean there's no reason to disbelieve him.
Now, the point U am trying to make is Varney makes a huge point out of this. Varney makes an issue out of the fact that it is stated in this covering letter - now I quote in Afrikaans,
"Since then assistance to Chief Minister Buthelezi has been approved at the highest level."
Now, as it is apparent from the previous paragraphs, the
/SSC referred
SSC referred the matter to Ministers Heunis and Malan to investigate and to determine the aims and the needs of Buthelezi. If the aims and needs were already determined, and if assistance has been granted to Buthelezi, there was no need for General Groenewald and other members of the Defence Force to visit Mr Buthelezi on the 12th of February 1986, an aspect that we will discuss in the next paragraph. Now, the only point we're making is that all those assumptions made by van Niekerk in that first paragraph of the covering letter are incorrect.
Then we go on. General Geldenhuys testified that he received this letter, together with the 19th of December '85 document, the van Niekerk document attached thereto, on the 10th of February '86. Geldenhuys explained in the Msani trial that after reading this document - that's now the van Niekerk document - he wrote certain instructions as it appears on page 5 of the 19 December document. See for instance the note next to paragraph 3 of the covering letter. If you look at the covering letter you will see on the right-hand side there's a small note, "See page 5." If you have the covering letter in front of you you will see it. Ja, it says there in Afrikaans,
"Yes, see note, page 5,"
and,
"Liaise with SAP and NI."
The note on page 5 reads - quote in Afrikaans,
"This section only deals with the principle. There should be a security plan issued in the shape of a security order or instructions to ensure security."
/Paragraph 3
Paragraph 3 of the covering letter makes it quite clear that the only mandate that was required by the Chief of Staff Intelligence was a mandate to make contact with the SSC. The reference in the first paragraph to Chief Minister Buthelezi is totally irrelevant for purposes of the authority requested in this letter from Geldenhuys. Varney, however, tries to link this 19th of December document and the instructions written by Geldenhuys to a handwritten note by Pitter dated the 5th of March 1986, Exhibit E2, page 80.
Now, according to what he said there - I quote from what Varney says,
"Pitter gave instructions for the direction of Geldenhuys to be carried out, and that liaison in this regard should take place with HDMI and DTI. He also called for close co-operation with the SAP. This document was stapled in a bundle between 10 February '86 memo, E2, page 17, and the 19th of December '85, E2, page 9, documents. It is not known what Geldenhuys' instruction was. Compare page 72 of the Varney report."
Now, footnote 172 of the Varney report reads as follows.
"Groenewald was HDMI. This reference casts doubt on his claim that he had no further connection to Operation Marion following the Liebenberg report. Compare also page 92 of Varney's report."
/Now, we
Now, we submit that to say it is not known what Geldenhuys' instructions was is purposely projecting false ignorance. Geldenhuys explained, as set out above, and in accordance with the court record in the Msani trial, that he received the 10th of February 1986 document with the 19th of December '85 document attached to it. Varney now refers to a handwritten note in between these two documents. Geldenhuys' instructions was clear as it appears on the cover letter dated the 10th of February 1986. All this was testified in court under oath. The question is why does Varney pretend not to know? It creates impressions to the detriment of General Geldenhuys.
A similar distortion appears in footnote 172 in regards to Groenewald. HDMI is a name of a position. At about this time Groenewald relinquished his post. He was transferred to another post in other words. This is well documented and confirmed under oath and cross-examination. See, for example, the document dated the 18th of February 1986, Exhibit E2, page 39 and page 40, paragraph 3, where he specifically requested to be released from this whole assistance to Chief Minister Buthelezi.
I am now moving to another document.
CHAIRMAN: Can I just ask one small clarification, rather than having to go back later and then bring it up? Do I understand you correctly that your client's instructions are that this document that we've been referring to of 19 December has no bearing on KwaZulu whatsoever?
MR DE VOS: Nothing at all. In fact at that stage - it will have a bearing in the sense that Cor van Niekerk, who was later appointed to be in charge of the whole
/operation,
operation, probably used these inputs on behalf of himself to organise the whole thing. But as far as the top military structure are concerned it didn't play any role, because on the 10th of February when it arrived at Geldenhuys' office he received it on the basis that it was to assist Lekanyane. So it does not play a part at that stage. What van Niekerk did at a later stage might be something different of course.
CHAIRMAN: You see, just one thing puzzles me. The document is full of references to Buthelezi, Inkatha and KwaZulu the whole way through throughout the wording of it.
MR DE VOS: No, that U agree, but that was - one must remember van Niekerk wasn't in charge of the whole project. Groenewald was the man who made contact with Buthelezi. Groenewald was the man who received that telex dated the 9th of December from Hans Meyer. Groenewald was the man who went to see the Minister, and on the instructions of Groenewald van Niekerk prepared this document. That's in - well, that's how they do it in military terms. You prepare a document visualising what will be done by the South African Defence Force, how it will be done. It's sort of a planning document. They do it quite regularly. And that's the only basis for this document.
CHAIRMAN: I am not for one moment suggesting that this document was the basis of any decision-making as Mr Varney may try and convince us, and as you pointed out. The point I am simply making is this document, to me at any rate, doesn't appear to relate exclusively to Bishop Lekanyane, but in fact relates to both of those two
/groups.
groups.
MR DE VOS: That's absolutely correct.
CHAIRMAN: And the fact that is was possibly referred to for the wrong purposes by Mr Varney, that's a different issue. I accept that completely. I am just wondering in general terms whether I am correct in my understanding of the document.
MR DE VOS: We are in complete agreement with your understanding of the document.
CHAIRMAN: Thank you.
MR DE VOS: I am now moving on to another document that refers to a meeting that took place on the 12th of February 1986 between General Groenewald and Chief Minister Buthelezi. In order to ascertain the needs of Chief Minister Buthelezi a meeting was held on the 12th of February 1986 between General Groenewald and the Chief Minister at Ulundi. General Groenewald was accompanied by various other military personnel, including Colonel C J van Niekerk. General Groenewald first met alone with Dr Buthelezi to determine his needs and aims with a paramilitary force. Paragraph 3 (b) of this document contains a clear indication of what Chief Minister Buthelezi told General Groenewald. Groenewald says - I quote in Afrikaans.
INTERPRETER
"An offensive capacity or a protective element..."
MR DE VOS: No, you're not quoting correctly. You must quote
"An offensive ..."
(incomplete)
/
INTERPRETER
INTERPRETER
"An offensive capacity (or a protective element) through which the UDF, ANC and SACP can be prevented from disrupting Inkatha meetings and destroying property and terrorising Inkatha members, to injure or to murder Inkatha members. This element would also have the capacity of protecting important Inkatha persons. This capacity will, however, not clash with the functions of NI and the SAP Security Branch."
See Exhibit E2, page 45, in the Msani trial.
At page - and now I am referring - I am going to refer to the Msani evidence, the case record, the trial that was held last year. At page 3063 and 3064 of the Msani record Groenewald testified the following about this incident. I quote in Afrikaans again.
"I told you before that nowhere in any of my discussions with the Chief Minister did he indicate that he wanted anything else as a capacity for protecting his own people against ANC hit squads. That was the connotation. I indicated by way of a remark at one place that he said at a particular moment that if he had the capacity he would be even prepared to attack the ANC in Lusaka. I never got the impression that he wanted to do anything else than to protect his own people in a legal fashion, but I repeat
/again, in
again, in the sense that offensives be used for attacking innocent people, no."
Groenewald also explains why the term "offensive element" was used. He describes that it was explained by Dr Buthelezi that when either himself or one of his other Cabinet Ministers or Chiefs were attacked, or meetings being disrupted, he didn't have the ability to counter this attack at the stage when it was executed. See the record of Msani trial, page 3065.
We submit that except for Mr Varney's allegations there is no evidence to contradict what General Groenewald said. One must therefore accept that from the military viewpoint no unlawful intentions could be inferred from Mr Buthelezi. The capabilities he requested was simply a protection capacity.
I am now going to refer to another meeting that took place on the 17th of February 1986. It was a meeting between the Minister of Defence, Mr Malan, and the following military personnel was also present - General Geldenhuys, as Chief of the South African Defence Force, General Groenewald, and I am not sure whether there was any other military personnel, and then there was also involved Mr Kobus du Toit Bosman, whose name appears as a member of the subcommittee.
Now, before dealing with the contents of this letter and the information contained therein we wish to point out that neither Pitter nor Liebenberg were aware of what transpired at this meeting. Now, you'll remember that the information contained as to what transpired at this meeting comes from a letter dated the 18th of February written by Groenewald to Pitter, sort of a report-back
/letter, and
letter, and in that letter certain information is contained. Now, before that, before that meeting took place, neither Liebenberg nor Pitter knew what was going to be discussed or what was going to be decided.
Now, two main issues were apparently addressed during the meeting, (a) the possible friction between Special Forces and Military Intelligence, and how far they, that is now the military, have progressed with the assistance to Chief Minister Buthelezi.
Now, as to the friction between Special Forces and Military Intelligence, it appeared that Mr du Toit Bosman - and let me interfere here with myself. He was appointed by Chief Minister Buthelezi to do his translations from Afrikaans to English. Now, at that stage it appeared that Mr du Toit Bosman had already had discussions with Special Forces to do the training. That's now according to his version. Mr du Toit Bosman was also of the opinion that Special Forces should be in command of the project. Groenewald, on the other hand, said that is was a task to be conducted by DST. The friction, however, was not between Special Forces and the Military Intelligence group, but between Bosman and Military Intelligence.
Now, before dealing with the paramilitary assistance, the Minister wanted to know from Groenewald why Groenewald negotiated directly with the Chief Minister as it was the task of the Minister itself. This Commission will remember on the 3rd of February Malan and Heunis was tasked to go and discuss it with Buthelezi, and now the Minister enquires from Groenewald why did he do it because it was the Ministers' task. It was then explained by Groenewald to the Minister that the purpose of the
/meeting was
meeting was to determine the needs of the Chief Minister subject to the final decision to be made by the Minister. Then a discussion took place, and the Minister gave an instruction that he needed a detailed report about the paramilitary assistance, and that Colonel van Niekerk should lead the project. Now, the detailed report eventually comes in when General Liebenberg and his committee wrote the report. That's the report that the Minister requested at that stage.
Paragraph 6 and 7 of this document sets out that the Minister then instructed the Chief of the Defence Force, Geldenhuys, to handle the matter further. According to the evidence a separate meeting was then held later that same day in Geldenhuys' office, and Geldenhuys then appointed a task group under the chairmanship of Lieutenant-General Liebenberg, the Chief of the Army. Now, the reason for appointing Liebenberg was that he had first-hand experience in South-West Africa - Namibia at that stage - that the Ubombos have been attacked, and the other members that were appointed were General-Major Groenewald - because of the reason that he was already involved from day one in the request of Buthelezi, General-Major Joubert, and Mr du Toit Bosman. The reason why Joubert was appointed was because Bosman alleged he already had discussions with Special Forces, and on the basis that certain deliberations already took place it was necessary to have - to appoint Joubert there, and to find out what his attitude were so that General Liebenberg could make a final decision, being the senior of all these military personnel, and he could make a final decision. And they were then instructed to draft a detailed report
/as requested
as requested by the Minister.
Now, on the 17th of February - actually on the 18th, Pitter - Groenewald then reported back to Pitter as to what transpired at the meeting with the Minister. It's part of one of the letters in your file.
I am now moving on to the Liebenberg report, because it's actually the next document in this scenario. After the meeting with the Minister of Defence, the Chief of the Defence Force, Geldenhuys as stated above, appointed a task group as referred to. The investigation by the task group was completed - I am not sure about my date here. I think it should be the 27th of February 1986.
Now, the most important aspects of this report are the following. What was discussed was the implementation plan, and an implementation plan and an organogram was proposed. According to this plan the paramilitary force should be under the direct control of the President's representative, Khumalo, who would in turn be directly responsible to the Chief Minister Buthelezi.
Now, while I am at the organogram - it's not in my heads, I just - I am going to jump to something else. Page 47 of Mr Varney's original report gives an organogram of the South African Defence Force. We submit that that document is totally incorrect, and that this Commission should have regard to the documentation handed in at the Msani trial portraying the proper organogram of the Defence Force at that stage.
CHAIRMAN: Sorry, we'll just remind you that we do have that already from you, as you will recall. Thanks.
MR DE VOS: I am then moving on to the organogram contained in the Liebenberg report. Varney alleges that
/something
something sinister should be read into the fact that the offensive group was not placed on the same line as the rest of the paramilitary group. See paragraph 18 of his document - of the Liebenberg report. Paragraph 24 of this report, of the Liebenberg report, however makes it absolutely clear that the offensive group was part of the paramilitary force. General Liebenberg made it clear in his evidence that the offensive group forms part of the paramilitary force. Due to a mistake made by the secretary of the task force, Colonel D C Bernadi - one must remember - can I just stop there? When these senior military people gets together they don't sit there and write out everything, they've got a secretary, and he finishes the document the next day. He takes notes and then he goes and writes the whole thing, and they afterwards read it and they sign the document. So it's not a question of sitting there one evening writing it out, dictating it like we lawyers do it. They do it on another basis. And it's common cause, according to the evidence, that due to a mistake made by the secretary of the task group, Colonel B C Bernadi, who drew up the organogram, the offensive group was not showed to be part and parcel of the paramilitary force, it was showed sort of separately. Having, however, regard to the written portion of the document - compare paragraph 26 of the Liebenberg report - it is clear that it was in fact regarded as part and parcel of the paramilitary force. It wasn't a separate force. General Geldenhuys testified that it is standard practice that scarce resources are often kept separate, and allocated and utilised when and where necessary.
/Now, Dr Williams
Now, Dr Williams agreed with this principle as stated above. In other words what it boils down to, if you've got a force consisting out of infantry, artillery, etcetera, etcetera, and you also need air support in the form of helicopter support, you will keep your air support separate. It's your offensive group, but you will use it as and when it is needed. You're not going to send each small group - you're not going to give each and every group its own helicopter. It's a scarce resource, and that's - if one looks at the offensive group, they consisted out of 30 people. You've got three shifts per day. People can't work for 24 hours around the clock, so what have at the most, you've got 10 people at the time on duty. Now, we submit it is clear from the above explanation that no sinister inference can be drawn.
General Liebenberg also explained in the KwaMakutha trial how an offensive group can and is being used as a reactionary force to provide protection. I am not going to deal with all that evidence again.
It is also proposed in this document that the support for Inkatha/KwaZulu Government would be conducted by the Directorate of Military Intelligence with the support of other Defence Force elements where necessary. The reason why the Director of Military Intelligence was earmarked to handle this project was that it was geared for sensitive liaison and had the necessary facilities and funds available.
It was also proposed that there should be a full-time project commander.
In terms of this report the following paramilitary activities were envisaged. A full-time - firstly, a full
/time leaders
time leaders corps of about 200 members should be trained for the defensive element. It was proposed that they would be trained in military procedures, convoy, roadblocks, house-to-house search, political meetings and related procedures, dispersing of gatherings, and small calibre weapon training. A this point in itself, with all due respect, if one compares to what transpired later it shows clearly that the way of thinking of Groenewald and Liebenberg at that stage was that the defensive group would be trained to control people, nothing more. Small calibre weapon training, etcetera, all those type of things.
Secondly, it was proposed that an offensive element be established, and I quote from the Afrikaans again.
"The purpose of this group was to create a small group of well-trained troops for Inkatha, which could be used offensively against the ANC/UDF and allied organisations. The group would also be used as bodyguards for Chief Minister Buthelezi. The group had to be trained covertly by Special Forces in offensive action, sniper tasks, bomb disposal and VIP protection."
It was furthermore suggested that contra-mobilisation planning should take place in co-operation with Ultra It(?) - that was a separate company - and further it was specifically recommended that bodyguards be trained for Chief Minister Buthelezi. And that was the whole Operation Marion plan when it left Liebenberg's table.
Now, it's important to note that the Liebenberg
/report does
report does not contain recommendations as to how this force should be deployed, the reason being that various other State departments had various tasks to complete before finality could be obtained as to their deployment. No unlawful inference can also be drawn from this report as it was specifically pointed out by the task group that it was foreseen that certain statutory amendments were required.
Many of the details contained in the Liebenberg report were, however, never implemented. For instance paragraphs 21 to - and I note there paragraph 21, paragraph 22, paragraph 23, paragraph 24, paragraph 28 (d), paragraph 29, and see record, pages 3175 to 3178. So what it boils down to, they prepared a plan, they made certain recommendations, people could accept certain of these recommendations or they couldn't. In this case some were accepted and others weren't. Some of the plans were never implemented and - but it doesn't take the matter against the military any further. It's just an ordinary military plan.
It is clear from letter dated the 16th of April 1986, Exhibit E2, page 99, and more specifically paragraph 8 thereof, that during the final discussions held between Chief Minister Buthelezi and Admiral Pitter that the Chief Minister differed with the impression created in the organogram, and insisted that all members of the paramilitary task group, including the offensive group, be trained as a unit. We say that is the end of any sinister meaning of the offensive training given by Varney to the Liebenberg report, because on the 16th of April, when the Chief Minister saw this document - and probably it's been
/discussed
discussed with him - he said, "No, but they must be trained as one group." Where's the sinister impression now about each one? It falls away.
CHAIRMAN: Sorry, just to interrupt there, Mr de Vos. You led to understand some minutes ago, or about half an hour ago, that final authority for this project was granted on the 17th of April. Now, the document of the 16th of April specifically says that training should start on that very day, which means recruitment would have taken place, infrastructure would have been in place, the decision clearly would have been taken to ensure that these people were in Caprivi, ready to start training. Now, how does the ... (intervention)
MR DE VOS: No, in anticipation, because you must remember on the 8th of April the fax was already sent by the Minister to Pitter, that portion that I read. He received instructions from Malan to go and sell the covert section of the organogram to Buthelezi. And in the meantime, between the 8th - this document was sent to Pitter. Obviously there was communication between Buthelezi and Groenewald, or no, not Groenewald, van Niekerk, because van Niekerk was by then already appointed to be the project leader. And it was already anticipated, and arrangements were made, that on the 16th they will start off the training. Because they were quite convinced that they have reached this agreement, and on the basis of this telex of the 8th, where it says - let me just get that portion again. (Pause)
(Afrikaans)
This is a document that you haven't got.
/
CHAIRMAN
CHAIRMAN: So who would have authorised the recruitment and the sending of the people then to Caprivi to start training on the 16th?
MR DE VOS: These discussions took place a long time before, or some time before the 16th. There were discussions, you recall, when Groenewald went to see the Minister, the Chief Minister. There were discussions about training, how many people would be trained, and it was anticipated that at a certain date so many people would be transferred for training.
CHAIRMAN: So who - where did final authority come from, because you've referred to several documents in January and February as discussion documents and planning documents. Does - I mean I am not suggesting that you're keeping anything from us, I am just - we are very interested to know where, and at what level, and by whom, these people were recruited and sent to Caprivi for training to start on the 16th of April. I mean that is something which seems to have eluded everybody.
MR DE VOS: I must say Minister Malan testified that the whole process of assistance to be given to Buthelezi was discussed by Cabinet, and that permission was given therefor. That was his evidence in the KwaMakutha trial.
CHAIRMAN: But there are no Cabinet minutes to that effect.
MR DE VOS: I haven't seen any. We didn't - at that stage we couldn't get any minutes of Cabinet meetings.
CHAIRMAN: Sorry, do you - look, we can dig up the reference to General Malan's evidence later, but would it - unless you've got it easily available. Okay, would it be fair to then say that clearly the authority for this
/operation
operation had already been given by Cabinet, but that what was being worked out here were the finer details? (End of Side B, Tape 2)
MR DE VOS: On the 7th Minister Malan wrote a letter to Minister Heunis which is referred to in the telex dated the 8th, and he informed Heunis about a certain portion of the Marion project. He didn't say anything about the paramilitary aspects, because he said that was interdepartmental. Now, one must I think accept, on the basis from my client's point of view, they got instructions within the military, and you carry it out, especially as the Minister testified at a later stage to state it was discussed and permission was granted.
CHAIRMAN: You see, no one's suggesting your client, as far as I can see, in this regard acted unlawfully specifically, but the issue is simply - we all know that any organisation takes some time for logistical things of this nature to happen. For these people to have been in the Caprivi by the 16th, and start their training on the 16th, a whole range of other things would have had to have been approved way in advance of that, and that's just a matter of plain logic.
MR DE VOS: But you will recall - I think was it the meeting that Groenewald had with Buthelezi, when all Buthelezi's needs were sort of spelled out - how many - I saw some document at some stage, I think also prepared by - I am not sure whether it's van Niekerk, where he also dealt with all the requisites and various other aspects. So there was planning, but one must remember in those days the army were quite capable of doing such things in a very short period, in the sense that they could plan and
/execute
execute within a couple of days. And it was obviously a matter of high priority because the State Security - or the security situation was such that there was a problem.
CHAIRMAN: You see, what couldn't have been done within a few days, and this is the evidence we've heard, is the actual recruitment of the individuals. That took a couple of weeks for people to be told, and to assemble at that same place, the Nhlongwane camp, to be selected, be spoken to, be assessed in some way for their - the evidence we have is that they spent two weeks there before they left, so at the very least by the end of March these people already knew that they should come for training of some kind.
MR DE VOS: Can I refer to one aspect? In this telex dated the 8th of April reference is also made to a document that was sent to the Chief of the Army. It says - well, that's dated the 3rd of March 1986. But then, if I can remember correctly, there was another document. Oh yes, here it is. You will see in paragraph 4 of this telex that I - we'll make a photocopy of that for you. It refers to,
"Indien suksesvol kan dit dan ook dien as magtiging vir 'n implementeringsgesprek met Khumalo soos gesien in u voorlegging STIG 310/4/Marion."
dated the 7th of March '86 - '86. Now, all of us during the Msani trial wanted to get a copy of that telex of March '86 document. We couldn't find one, and the State didn't find one. Nobody knows exactly what was said in that document, or why it was said, or on what basis it was said.
/Now, can
Now, can I also refer - sorry, may I also add the evidence of Mr Malan about Cabinet approval is on page 3480 and 3489 of the Msani trial.
I continue then. I am now going to deal with the telex of the 8th of April. My learned colleague is going to make a photocopy in the meantime to assist this Commission.
Now, Varney in the first place alleges that this document was sent by Geldenhuys to Pitter. This is not correct. We submit that this is also an explicable distortion of the facts which came to the fore during the Malan trial, and we refer this Commission to page 1635, 2164 and 3529 of the record. It was explained to the Court a quo that the abbreviations MV and MS means Ministerie van Verdediging, and in English, Ministry of Defence, and militêre sekretaris, military secretary. Now, when one looks at the document itself one will see that this document clearly proves, firstly, that until that day no final decision was taken, and secondly, that General Geldenhuys wasn't the person who sent this telex to somebody else, it came directly from the Minister's secretary addressed to Pitter. That's also what Geldenhuys testified in the court a quo, that he wasn't responsible for sending down this document.
Now, together with this document one should read the letter dated the 7th of April '86, by Minister Malan to Minister Heunis, and if one studies one document - you will see there's a note on that letter written to Heunis that makes it absolutely clear that Geldenhuys had nothing to do with the telex of the 8th of April, because there's a note made by the Minister's secretary on the first page
/referring
referring to - referring to this telex. I don't know, do you have a copy of the letter written by Malan to Heunis? Now, on the first page of that letter there's a note made by Opperman, who was then the military secretary, confirming that he, on behalf of the Chief of the Defence Force, sent a telex to Pitter.
Now, may I then go on - I've already dealt with it to some extent, and that is the letter dated the 16th of April '86 from CSI to the Chief of the Defence Force. Now, Varney alleges that this letter was sent by Pitter to Geldenhuys. We submit this is also incorrect. It appears that this letter wasn't sent to Geldenhuys or to anybody else, simply because of the reason that on the morning of the 17th there was a meeting with Minister Malan where Pitter was present. There was no need to contact Geldenhuys.
On the 16th of April Pitter had a meeting with Buthelezi according to this document. This document sets out the differences between Chief Minister Buthelezi and the proposals of the task group. This is set out in paragraph 9 of this document. Now, after a mutual understanding was reached it was stated in paragraph 2 of this document, and I quote in Afrikaans,
"That they then proceeded with oral authorisation with the concentration, recruitment, selection, transport and construction of bases for the 200 Inkatha members. The supposition is that formal authorisation will be obtained, and certain principles regarding the training, the application,
/the finance,
"the finance, etcetera, would be cleared with Minister Buthelezi during the above meetings between HSI and the Minister of Defence, and this should be done before 16th June 1986, when basic training would have ended."
Now, we submit that the reference there to "mondelinge magtiging" clearly indicates that this whole procedure was legal, otherwise it could not be implemented at all.
Then I am going to refer to the meeting of the 17th of April 1986 between Minister Malan and Buthelezi. Minister Malan testified that there was a meeting on the 17th of April '86 in Durban between himself and Chief Minister Buthelezi, where Admiral Pitter and Brigadier Cor van Niekerk - if I remember correctly, it might be van Tonder - were present. Final approval was given by Minister Malan on this date for this training to proceed. Pitter testified during a section 29 inquiry that it was his task to determine whether the Chief Minister was satisfied as to how the paramilitary force would be constituted and trained. He confirmed that he was satisfied subject to the amendments mentioned in paragraph 9 of this document.
Now, one must remember one thing. At this stage there was - it wasn't decided how this force will be applied at a later stage. The only important thing was at this stage that they needed training to come and do a job. So, one should read it in the time space of what happened, and nothing more can be read into any other - into the document.
Then I am going to jump a little bit and I am going
/to refer
to refer to the SSC meeting of the 12th of May '86. Now, Varney states on page 26 and 27 and 28 of his report that Operation Marion is an example of various projects set up in terms of appendix 6 attached to the minutes of this meeting. He further states that Operation Marion falls within the parameters of paragraphs (a) to (f) of bylae 6, appendix 6.
Now, I don't want to reiterate what was said by my learned colleague, de Jager, yesterday afternoon, but many of these arguments are the same. Now, we submit that Varney's attempt to qualify Operation Marion as part of so-called - let's call it so-called third force activities, is another example of his distortion of the true facts. At that stage permission was given by Minister Malan to proceed with Operation Marion. In other words even before the final decisions were taken in the State Security Council Operation Marion was already - they were already being trained, so it could not have anything to do with what was discussed at the SSC meeting.
Secondly, his reference to paragraphs 8 (a) to (f) is irrelevant as the proposals contained in paragraphs 8 (a) to (f) was never accepted by the SSC. It's pages 34 and 35 of his report, if I remember correctly, where he makes a big thing of paragraph 8 (a) to (f). But then if one reads the document properly you'll see that (g) was accepted, and (a) to (f) was totally ignored. We say this because the State Security Council decided to accept option four, as set out in the discussion document, with significant amendments, as a basis for the establishment of a third force.
Now, Mr Varney was cross-examined on this aspect.
/The contents
The contents of option four were read out in Afrikaans to Mr Varney. The Commission's record is in English, and, with all due respect, the English translation is a far cry from the Afrikaans version. We refer to the record of the proceedings before this Commission, volume 3B, page 299. Paragraph 3 (ii), for example, in the Afrikaans refers to a "situasie kamer."
INTERPRETER: Situation room.
MR DE VOS: Varney refers to this as the operations room. Compare page 298, line 15-17. Now, again a situation room and an operations room is not the same thing. It's the same thing that we had right at the beginning of his report where he also made a mistake in describing the - sorry, let me get the right word. (Pause) Yes, sorry, right at the beginning, when we referred - it was on our heads, page 17, paragraph 9.2.4, where Varney referred to a Joint Security Centre, whereas the correct translation would have been the Joint Security System. Now we've got exactly the same sort of thing here, where he's talking about an operations room which is in fact a situation room.
CHAIRMAN: Sorry, Mr de Vos, what is a situation room, if you can enlighten me?
MR DE VOS: What I understand is the following. While this whole process was going on of unrest in the country Mr P W Botha said he needs a room where all the information can sort of be gathered, in other words all the departments will put in their information - some departments were better geared than other departments - and that if somebody in the top structure walks in there he can get a quick briefing of, say, how many buses were
/running
running today, how many people were killed, or things like that. So, that was actually what was meant by a situation room. It's not an operations room like a - or an operations centre like you'll have in a war situation. It was to gather information.
Now - sorry, I know it must be a little boring to try and explain all these documents, but we thought it can save you a lot of time, and can assist you to some extent.
Now, I am still busy with the meeting of the 12th of May '86. Mr Varney was cross-examined on this aspect. Sorry, I've done that. Now we go on then at paragraph 23.1. Option four makes it quite clear that the task to counter terrorism was delegated to the South African Police. Now, we say that Varney has got all these answers, because what he does - if you look at page 28 of his report he says the following.
"At an SSC meeting on the 20th of June '88 P W Botha queries what happened to the third force which was to free the hands of the SADF and SAP to concentrate on the primary task."
Now this question, according to Varney, was answered on the 8th of May '89 at an SSC meeting by General de Wit, the then Commissioner of the SAP. He said that the establishment of the Municipal Police, the extension of the SAP Unrest Unit, did away with the need for the creation of another force. We say Varney has got that evidence, it's in his report, but he's doing it on such a basis to create the impression that there must have been some other superpower that conducted things in this country, and as far as Operation Marion is concerned
/that's just
that's just not on. There's no relation between it. So, all his references to the highest political level is irrelevant, all the links that he's trying to build a relation to Marion does not exist. Now, I am not for one moment suggesting it might - for purposes of argument it might exist in some other - with other projects, but I am not briefed on that, I am briefed on Operation Marion, and as far as Marion is concerned there's no evidence to link all these things with each other.
May I then go on to a meeting - another document, meeting with the Chief Minister on the 16th of October 1986. Now, this is the only document - can I refresh your memory? It's the only document where Colonel John Moore's name appears on. Now, Moore was important in the sense that he was an accused in the Msani trial, and he was the person in Pretoria, working for Military Intelligence, who was in control of Opperman and Cloete. In other words he was the sort of direct commander. Now, it's the only place in this whole documentation where his name appears. He testified, if I remember correctly, that he was - it was a meeting that was actually conducted between Brigadier van Niekerk and Chief Minister Buthelezi, and he, Moore, only took the notes. In other words he was only writing down what was said.
In paragraph 3 of this letter it says the following, and I quote in Afrikaans.
"The Chief Minister regards the excellent planning of the group as a positive step in securing his personal safety."
Paragraph 7 of this document refers to Inkatha members who recently took the law into their own hands and conducted
/offensive
offensive actions, sometimes with weapons, against radical elements. Now, this reference to offensive actions does not refer to any of the trainees, as the evidence in the KwaMakutha trial proved that all the Inkatha trainees were on leave for the month of October 1986. The inferences he wishes to draw is therefore once again incorrect. They finished their training by the end of September '86, then they were all sent on leave, and when - and the point is simply this, there was no trainees who could commit any offences at that stage. They were all gone.
Then another point that's been made by Mr Varney is the following, paragraph 25. He says absence of documentation for the period October '86 until January 1988 - you will remember when you read his report he makes something out of it and he says between the time that the ITU went to Military Intelligence offices in Pretoria, and three days later when Cor van Niekerk handed them the documents it could have disappeared, and Cor van Niekerk could have removed it. Now, the point is simply this. Why would Cor van Niekerk remove it and hand them all the rest of the incriminating stuff? The allegation against Brigadier van Niekerk is unsubstantiated, but as far as my clients are concerned, our clients are concerned, we have no idea what happened to these documents. You will recall that Pitter was transferred the 1st of April '89, so he didn't have any control over these documents. Geldenhuys was already retired for a couple of years, and no inference can be drawn because certain documents obviously disappeared.
Then I am going on with paragraph 26. Now, if you study the documents you will find that there were three
/meetings
meetings - or three documents that relate to meetings being held between the period 21st of January '88 and the 21st of March '88.
Now, I am first going to refer to the first document, the 21st of January '88 document. According to this document on the 21st of January '88 Admiral Pitter, General van Tonder, Brigadier van Niekerk and Colonel van den Berg met with the Chief Minister and Mr Khumalo. During this meeting it was decided that a meeting with Brigadier Pretorius, who was then the commander in Natal, was a necessity. A meeting took part on the 3rd of February 1988 in Durban between van Tonder.. "(onhoorbaar) stafinligting bevelvoerende kommandement" Natal, assisted by their various officers.
The letter dated February '88 has no status at all. You will see it was never signed, the February document was never signed by Admiral Pitter, and the contents of the February letter was reiterated - is actually contained in the letter dated the 28th of January '88. It sort of a duplication. If you read the documents you'll find it. Can I refer you to Exhibit E2, page 107.
Now, the important letter is the letter dated the 28th of January, because everything is contained in that document. Now, this letter has been prepared by Colonel van den Berg, and was sent by Chief of Staff Intelligence to the Chief of the Defence Force, and it reiterates what was said at the meeting of the 21st of January '88. Now, after receiving this letter General Geldenhuys made a note on the first page of this document. Quote in Afrikaans.
"Will discuss with Minister. HSI must arrange co-ordinating meeting."
/Now, may
Now, may I explain. If you look at paragraph 20 - well, let me explain it broadly like this. The problem was this. Because of the fact that certain aspects of the Liebenberg report was not put in place, for example a proper security system, there were a lot of communication problems between the Chief Minister on the one hand and the Command in Natal on the other hand, and in order to sort out all these things they suggested that a meeting should be held. And that's why Geldenhuys then wrote on the top of this letter,
"Saam met Minister bespreek en ...(onhoorbaar).
A meeting was then set up with Brigadier Pretorius of the Natal Command as set out in the letter dated February '88. The topics discussed are set out in a document titled, "Proposals for Improving SADF Liaison with Chief Minister Buthelezi and Inkatha." Now, if you've got a bundle of - an exhibit bundle, this document that's been referred to is Exhibit E2, page 64 to 66, and it starts off with the same subheading, and on the last page you will see there's some handwritten notes on it. Page 66 ends with handwritten notes. Sorry, I am just referring to it. I hope you have it.
CHAIRMAN: We only seem to have 64. Is this February 1988
"Navrae Van den Berg. Van ASE aan Head of the Army. Samespreking met die Hoofminister Buthelezi op 21 Januarie."
That's the February letter.
MR DE VOS: May I just approach you please and ascertain whether you have the correct document? (Pause) You don't have it.
/
CHAIRMAN
CHAIRMAN: If we could just have a quick copy of that it will help us. Perhaps you can proceed in the meantime.
MR DE VOS: Now, the point is this. The topics that were discussed were set out in this document that will be handed to you now. The discussions proved to be fruitless. Now, this can be ascertained from the handwritten notes that you'll find on the last page, page 66, Exhibit E2, page 66. Now, may I just - oh, before - can I just clarify this before I am going to go to the next issue? You will see if you look at that handwritten notes on that document there are - it's obvious that there was a meeting by people who are described by their posts that they were in. No names were given, but post descriptions were given. Now, if one compares that post descriptions, and one compares it with the post descriptions in the letter contained the 28th of January '88, one will see - there was a big allegation at some stage that General Liebenberg was present at this meeting, but if one looks at the post descriptions one will see that he wasn't present at the meeting, but in fact that some other people attended these meetings and the reference to H Leër and ASE is only by reference generally. If you go and visit, say, somebody at Chief of the Army you will say, "I am going to H leër." You're not going to see the Chief of the Army, but you're going to visit somebody. Now, that's in that sense that it's been used in the documentation.
Then you will also see on the left-hand corner of that document at the bottom there's a note dated the 21st March '88, where Minister Malan - there's an instruction from Minister Malan that General van der Merwe should be
/instructed.
instructed. My learned colleague, Ms Kruger, referred you to that aspect yesterday. Now, that's actually the outcome of the discussions that took place. No agreement was reached, nothing transpired. Natal Command couldn't give any person to be used as a permanent officer down in Ulundi to assist Buthelezi. And then there's a note, "Go on as before," and that's the end of the discussions. But it ties in then with the next meeting.
The next meeting is the meeting of the 21st of March '88, that Minister Malan held with Chief Minister Buthelezi, and you will see that the dates are exactly the same, but I think the meeting - the note on the letter, the handwritten note, says the 21st of March, and the meeting with Chief Minister Buthelezi took place on the 21st of March, so that's where the whole story comes from. But nothing - there's nothing flowing out of this whole thing.
Then there's one other aspect that I must mention. You will see that on the document the 28th of February - let me make sure, I don't want to lie. (Pause) Mr Chairman, may I also refer - you see, I've already referred to the fact there's a note on the top of the letter dated the 28th of January '88 in the handwriting of General Geldenhuys,
"Saam met Minister bespreek en HSE ... (onhoorbaar)... vergadering hou."
Now, that was actually the purpose of this meeting that was set up with Brigadier Pretorius in Natal, and the meeting by Minister Malan, in order to sort out the communication problems that they had down in Natal at that stage. Because you will remember all the evidence are
/that the
that the intention of the Defence Force was - and what they thought is that these people would be put in a proper structure, and now it was almost two years gone and they were still not being put in a proper structure. According to the Defence Force they were not applied, except a couple of them, like the VIP protection group, and they had to sort out this problem, and it was again budget time. You will see it's January/February/March. They had to sort out these problems. Now, then ... (intervention)
CHAIRMAN: Sorry, Mr de Vos, what was the nature of the problems? You know, no one's been able to tell us that exactly. We've heard a whole range of different ... (incomplete)
MR DE VOS: Yes. May I refer you - it's in the documentation. If you look at - let's take the document first dated the 28th of January. Now - just a second, I just want to see - paragraphs 7, 8 and 9 of that document refers to further Marion training. Paragraph 8, bases for Marion, and you will see there Khumalo sketches his problems in regard to discipline and so forth. Paragraph 9, liaison. He refers to a person that should be put in - placed in a permanent capacity to liaise with them. And then, if you look at paragraph 12 - no, sorry, 13, 14 and 15, under "Propositions," the same three things are discussed, what should be done about it. And then if you look at paragraph 16 you will find a reference to what they say "Operasionele verantwoordelikheid" and they refer to (a) and (b), that refers to comops, and (c) refers to covert operations "(Onhoorbaar)...volgens behoefte."
Now, that is where the liaison comes in, and that's where
/the situation
the situation should be discussed. I deal with it in my heads, in the submission. Sorry, if you will bear with me for a second. (Pause) Ja, paragraph 26.4.1 of our submission we set it out.
There wasn't proper liaison between what happened in KwaZulu, what happened in Pretoria, what happened down in Durban from the Natal Command's point of view, and this had to be addressed. And that is actually what was discussed, and that corresponds with the document, Exhibit E2, page 64 and 66. You see, that gives you that picture of that period in the history of Operation Marion.
Then we refer to the Minister's meeting. None of our clients were actually there. And you will also see from the record of that meeting that none of what was said there, what was done there, was in fact reported to any of our clients, so I am not going to deal with that.
Then the next document that we have to deal with is a document dated the 31st of August 1988, and that's a telex that's been sent by the Minister's secretary to the Chief of the Defence Force, Geldenhuys, as information to HSAW2. Now, that was Admiral Pitter. Let me rather read, otherwise I am going to talk too long. The telex dated the 31st of August '88 was sent by the military secretary, Malan's secretary, to HAW Cape, for information HSAW2, Pitter. According to the evidence led in the KwaMakutha trial M Z Khumalo visited the Minister's office on the 30th of August 1988. It was a very brief meeting, and the real content of his complaints was discussed with the military secretary, I must mention, in the absence of the Minister. That was the evidence. He complained about the lack of bases facilities, paragraph (a), personal
/transport,
transport, paragraph (b), lack of assistance from the SADF's liaison officer, paragraph (c), and the last paragraph,
"Experiencing serious problems with person having to be withdrawn from society for a time."
Now, in paragraph 4 of this telex or signal General Geldenhuys was requested to attend to these problems. Now, if you look at the document you will see the following. I am talking about the telex now. Geldenhuys in turn referred the matter to the Chief of Staff Intelligence. This is evident from a note at the top of the page that reads,
"HSI to recheck and give back."
Geldenhuys confirmed in his evidence during the Msani trial that this was his handwriting. Pitter, who received this note, in turn wrote a note to HDIO, van Tonder, that reads - please look at the bottom of that document.
"HSADF also wants a written input to discuss with the Minister before September '88."
Now, van Tonder in turn referred the matter to Colonel van den Berg, who made a note, M1, almost in the middle of the page, next to the address. Okay, you've got that place. Standing for memo 1 that reads - I quote in Afrikaans.
"Reply drafted. HSI would discuss with HSADF on 4th October 1988."
Then there's a signature and a date next to it, 6.10 - 6th October.
Admiral Pitter denies that - now, the important
/thing about
thing about this whole thing is who is the person referred to in this telex? Was it Mr Luthuli, or was it not Mr Luthuli and was it somebody else? Were any of my clients involved in a covering up at that stage, or weren't they? That's the issue actually of this whole document. We say if you look at Pitter's evidence, Pitter denies - sorry, I lose the signal. Pitter denies that Luthuli was the person referred to in this telex. He stated during the section 29 inquiry that it was only during the KwaMakutha trial that he became aware that Luthuli was taken to Ferntree base. According to him the person referred to in this telex was in fact another Inkatha trainee. This trainee was hospitalised, and was committing a security break by leaking information to the hospital staff. Now, General Geldenhuys had no knowledge - or personal knowledge as to the identity of the person, but confirms Admiral Pitter's evidence that it was somebody who was a patient in a hospital. Now, if one compares - and this is on record. This is what was said last year. Geldenhuys testified to this effect. Record, page 4291 and 4292.
Now, if you compare M Z Khumalo's evidence also given in the Msani trial it's obvious he was also referring to somebody in hospital, and it's obvious according to his evidence also that it was not Luthuli that was referred to. I am almost sure - and I didn't concentrate on Luthuli in this specific hearing simply because of the reason he does not take the matter very high up to our clients, but if you compare the time that when he was taken to Ferntree, you will find - I have got a feeling about it, that was round about January '88 or
/'89. That
'89. That wasn't in August, so the person that's being referred to in this telex is not Luthuli. That's my submission to you, but I didn't study all the documentation because we're not really involved with Luthuli at this stage.
Then can I go to the next document, the reply by Colonel van den Berg dated October 1988 ... (inaudible - end of Side A, Tape 3) ... does not form part of Exhibit E2, but in fact forms part of another document. This was found, if I remember correctly, in the Chief of the Defence Force's files. It wasn't part and parcel of the documents recovered from Cor van Niekerk, it was found in the Defence Force, the Chief of the Defence Force's files. May I just see where I have got to? (Pause) Thank you. Now, this document we say is a reply prepared by van den Berg in answer to that telex dated the 30th of August.
Now, General Geldenhuys explained in the court a quo that Admiral Pitter was apologetic about the contents of paragraphs 6 and 7 of this document. He testified as follows, and I quote from the court record now of the Msani trial.
"He told that shortly before he came to see me he took note of paragraphs 6 and 7 and noticed that these were answers to questions which had not been put in the signal. He said he didn't have the time to talk with his staff, and further explained that in reference to paragraph 6 people who were not members of the Defence Force could not apply for
/indemnity
"indemnity under section 103 of the Act. Further he said that this aspect in paragraph 7 would not end in application for indemnity, and that there had not been an incident for which indemnity needed to be applied. I agreed with him."
And this is important. Both Groenewald and van Tonder say - sorry, this is important before I go on with his evidence. None of them were aware of the so-called KwaMakutha murders. Now, we're in '88, almost at the end of '88 already, and if you receive a document at that stage, you're unaware of any illegal activities, you think it's somebody who is going to create a security break, then you consider documents in another way than you would have done if you were aware of wrongful activities, and that's the point I want to make. And that's why Groenewald then says, and I continue,
"I was not aware of an incident such as KwaMakutha which was happening, or which might have happened, and I could not see how it could have happened. HSI also told me that in any case one could not under section 103 apply for indemnity for something which could happen in the future. We agreed about this, and he said that he would convey it to his staff and explain it to them."
Now, this was stated at page 4294 and 4295 of the Msani trial record, and I think this is virtually what Pitter also said before this Committee.
/Now, Varney
Now, Varney tries to make a huge point out of the question of vryvaaring, etcetera, etcetera, but there's really nothing in it, because it does not relate to anything. It's sort of - if van den Berg had inside information, or had more knowledge at that stage, it wasn't conveyed to the upper echelon, and the upper echelon didn't do anything about it in any case. Now, General Geldenhuys thereafter discussed the aspects raised in the telex with Minister Malan, in other words only the four issues, bases, etcetera.
Then I move on, and you heard a lot of debate on this meeting of the 8th of November '88 at the Liberty Life Building between Generals van der Merwe and Smit, where one of our clients, Admiral Pitter, was also present. Admiral Pitter testified before this Commission that this meeting took place in order to inform the said police generals about Project Marion. Both of them were recently appointed to their posts. Admiral Pitter does not have a very good recollection of what transpired at these meetings. We wish to point out to the Commission that Luthuli's name - well, this is just for interest's sake. We wish to point out that Luthuli's name does not appear in this document. In other words if this was the purpose to cover up, or whatever the case may be, then one might have expected Luthuli's name to appear there, but it does not.
The Defence Force attitude was that there was information potential amongst the Inkatha trainees which could be utilised in a positive manner. General van Tonder, HIO, gave a broad picture of Project Marion, and thereafter Brigadier Cor van Niekerk mentioned certain
/problems
problems that could cause security breaks. He mentioned that certain members acted unlawfully, outside the scope of Project Marion, and that could jeopardise the security of the whole project. General Smit thereupon said that the Detective Branch cannot be influenced in any way, and that they must do their work in accordance with the law. General van der Merwe then added that in some cases bail can be arranged according to the merits of the case, and he further stated that if bail was granted the offender had to be removed from the area in which the offences were committed. The only point I am trying to make is this. There is nothing untoward in what was said there. To say that a person had to be removed from the area does not mean that he didn't have to attend his trial.
CHAIRMAN: There was evidence relating to van Niekerk's cross-examination on that very point, and he gave a very different answer, as you will recall. Have you dealt with that over the page, or ... (incomplete)
MR DE VOS: No, I don't deal with van Niekerk's version because Pitter didn't testify in the Msani case, and I thought most of the other colleagues would deal with the evidence and place it before you on the basis that ... (incomplete)
CHAIRMAN: Sorry, sorry.
MR DE VOS: Place is before you so that everything can tie up and it can be useful to you. What I can do, we can quickly look it up and make a submission in that regard.
CHAIRMAN: Ja, I think that will be useful, because it was put to Mr Visser yesterday. He also said that the discussion held at Liberty Life Building was - could only be interpreted in a benign or innocent way, and that any
/reference
reference to "wegneem van die persoon" meant to take him away from the area so he could not influence State witnesses. That's the interpretation which General van der Merwe gave to that particular memorandum or minute of the meeting of November 1988, and I pointed out to Mr Visser, who was representing Mr van der Merwe, that Colonel van Niekerk was cross-examined by the Judge in the Msani trial on this very, very point, and Colonel van Niekerk admitted that "wegneem" meant to take him away so that he would not be able to stand trial. And he was asked by the Judge whether would that not be an obstruction of justice, and Colonel van Niekerk answered yes, that would be so. So, it's clear from the evidence that was given by van Niekerk that he doesn't agree with your interpretation of the meeting of November 1988. And I put that to Mr Visser, and he said well, that was the evidence, and it may well be that if there was an obstruction of justice that was being considered there then this would be something that General van der Merwe might wish to add to his amnesty application, because as you are aware General van der Merwe has applied for amnesty for bombing of Khasho House. So, I think it would be useful to get a submission on that, because we are clearly talking about two different versions here altogether. We're not saying which one we believe at all, but there is evidence under cross-examination from van Niekerk that the question about "'n lid wat 'n probleem het en wegneem van die gebied" does not mean - does not mean that this can be interpreted in an innocent or a benign way.
MR DE VOS: I am almost finished with my submission. Maybe if you can give us a minute or two we'll come back
/and make
and make a submission on this. I am just going to finalise the submission as I was busy with it at the moment.
After listening to all the parties Pitter instructed his personnel to make the necessary arrangements to incorporate the trainees as individuals into KwaZulu Police. That's paragraph 9 of that document. Now, then Pitter's involvement in this whole saga actually ends by the end of March '89, when he again becomes the Chief of the South African Navy, and he has no knowledge what transpired after that with Marion.
A document which is also relevant is a document dated the 2nd of May 1990. It refers to CSI's visit to Ulundi on the 9th of May 1990. Obviously it does not refer to Pitter at that stage. It's an internal document prepared by Colonel van den Berg addressed to DST, and in this document, paragraph 2 (b), mention is made of what was said by - allegedly said by the Chief Minister, and that's an Afrikaans version that's been quoted there, whether alleged hit squads was mentioned. Now, it's obvious that this document never left Military Intelligence. In this regard we are referring you to the van Tonder evidence in the Msani trial. I haven't got the page number reference here unfortunately.
Then there was a signal dated the 22nd of May 1990. This document was not seen by General Geldenhuys.
Now, we then submit that none of the documents that were handed in in the Msani trial, or any of the documents that we've seen here, incriminates our clients in any unlawful activities, and we further submit that there is no nexus between the training given to the Inkatha members
/and the
and the crimes they committed.
And, before we ask for an adjournment we've got a conclusion, but maybe - I see my learned colleague, before he falls asleep, can he do the conclusion?
MR COETZEE: Mr Chairman, our clients failed to appreciate one extremely vital and important aspect relating to this very hearing. The Commission has gone to great lengths to hear and determine the so-called truth relating to the very volatile situation in KwaZulu-Natal. Many a word has been said at the instance of the Commission about the activities of the so-called Caprivi trainees, implicating only Inkatha, and/or the IFP, the former South African Defence Force, and possibly the former South African Defence Force.
Mr Chairman, your mandate is to seek the truth, which is indeed a very noble cause to pursue. The question on behalf of our clients is whether you will be able to attain just that without even endeavouring to hear evidence relating to the rationale behind the attacks committed by the ANC/UDF on members of Inkatha, as was testified inter alia by Mr Mkhize.
Why, Mr Chairman, have you not bothered to lead evidence on this cardinal aspect, which gave rise to Chief Minister Buthelezi approaching the government of the day to take measures to protect Inkatha leaders against indiscriminate attacks of violence committed by the ANC/UDF alliance?
It seems as if the ITU has followed a similar approach. Mr Varney stated that the ITU's primary brief was to investigate the KwaZulu Police. Superintendent Marion was not even in a position to provide this
/Commission
Commission with the results of the investigations pertaining to hit squad activities of the ANC and UDF. It is clear that they are also not interested in investigating hit squad activities of the ANC and UDF. In this regard I refer to the record, page 224 and 609.
Our clients wish to place on record that they abhor the unnecessary violence which took place in KwaZulu-Natal, which was precipitated by the ANC and UDF's unlawful attacks on the KwaZulu Government structures and Inkatha leaders. The political violence between Inkatha and the ANC continues. It is their honest desire that some type of peaceful and lasting solution can be reached. However, we respectfully submit that our clients cannot be held accountable for this unnecessary mayhem and bloodshed for the reasons stated herein.
Dr Buthelezi was the head of the KwaZulu Government, Inkatha, as well as the Minister of Police, and in these capacities he approached the government of the day for assistance to enable him to protect themselves from unlawful attacks launched against the KwaZulu Government and its officials, Inkatha dignitaries, and in this regard requested a paramilitary capacity to provide them with the necessary protection.
At the time Buthelezi was the South African Government's political opponent, and as such never wanted it to be known that he received any form of assistance from the government. He therefore requested that any assistance to him remain secret. Therefore the South African Government's assistance had to be of a covert nature.
The South African Government, after investigating
/the needs
the needs and requirements, instructed the South African Defence Force to render assistance to Buthelezi on the basis of a paramilitary capacity. Generals Liebenberg, Geldenhuys, Groenewald and Admiral Pitter at all times accepted Dr Buthelezi's bona fides, and at no stage foresaw that the deployment of these trainees would be for unlawful purposes as alleged by the Esikhawini hit squads. If the evidence of the Esikhawini hit squad members is to be accepted then it means that Dr Buthelezi, when negotiating with the South African Government, had a hidden agenda. At the time there was no ways that this could have been foreseen by Generals Liebenberg, Geldenhuys, Groenewald and Pitter.
The roles played by our clients have been dealt with above, and it is respectfully submitted that there is no ways that our clients can in any way be held accountable for the atrocities of the Esikhawini hit squad. It is also submitted that our clients' involvement in Operation Marion was at all times lawful.
Mr Chairman, if we could take a short adjournment, and then we can revert back to you on that one issue relating to that certain meeting.
CHAIRMAN: Yes, thank you. I am a bit concerned about Mr Lassidge, as to when he will make his submission.
MR LASSIDGE: Mr Chairman, our submission is no more than 18 pages long. I see there is sort of a lunch problem here, but I would suggest once they've finished we could then continue. Perhaps we should take a 15-minute adjournment then.
CHAIRMAN: Sorry, Mr Lassidge, we didn't intend taking a lunch break at all. We're quite happy to proceed.
/
MR LASSIDGE
MR LASSIDGE: Well, so are we, Mr Lax, so it's up to the team in front of me, how long they would like to sort out their last submission.
MR COETZEE: Five minutes will suffice.
CHAIRMAN: We'll take a short, five-minute break.
SHORT ADJOURNMENT
MR COETZEE: (Inaudible) ... deal with the meeting at Liberty Life with van der Merwe and Smit, and what - do you want to make any further submissions relating to what was said, relating to the arrangement of bail, and taking somebody away basically?
We wish to reply thereto as follows. We stand by the version as set out in our submission regarding Admiral Pitter, and also his explanation given at the section 29 inquiry. Both of you were present. The important aspect to note is not what was precisely meant as a solution to the problem, but that Admiral Pitter found that this was -this solution unacceptable to him, and that is the main reason why he decided well, look, these people must now be incorporated in the KwaZulu Police as individuals. So there was no - the proposal, of whatever nature it was, was unacceptable, and then he made a decision, look, they must now be incorporated as individuals. I think that's the most important aspect. That's all I would like to say at this stage. Thank you.
MR DE VOS: Thank you. That's summarised then everything that we want to place before the Commission. Thank you.
CHAIRMAN: Thank you very much, Mr de Vos, Mr Coetzee. Ja, thank you. There are no questions that we want to ask at this stage. We may address further points of
/clarification
clarification to you in writing to Mr van de Hoven's office. Thank you very much indeed. And, you know, you're obviously welcome to be excused now if you want to.
MR DE VOS: I personally would like to hear - I've got a long way to travel back to Pretoria, but being here, and being paid, I am going to listen to what my learned colleague is going to say to you.
CHAIRMAN: Well, you certainly earned your money today.
Mr Lassidge.
MR LASSIDGE: Thank you, Mr Chairman. Mr Chairman, before we start, the document which we've placed before you is basically written submissions in respect of these hearings. If I may explain, Mr Chairman, we'll get to that stage at some stage during the submission. It is not as bad as it looks. We've tried to be as brief as possible in our submissions as you've indicated you can forward written questions to us, and the back part of the document is actually just a schedule of certain submissions which we make which we won't be dealing with in this hearing, but we ask you to take note of that.
Mr Falconer and I have decided to deal with it in this way. He will read out the first portion of the submission, and then I will take over. I then hand over to Mr Falconer.
MR FALCONER: Thank you, Mr Chairman. Mr Chairman, before I commence if I could also just bring to your attention the document which was submitted to the Truth and Reconciliation Commission on the 5th of September 1996 by the President of the Inkatha Freedom Party, Minister Buthelezi, Dr Mdlalose and Dr Ngubane. This submission deals with many of the concepts which are covered in our
/submission
submission in far greater detail, and in that regard we would request that you have due regard to this other submission as well please. Mr Lassidge will also be reverting and touching on certain issues which relate to the submission of the 5th of September '96.
A number of allegations have been levelled against the President of the Inkatha Freedom Party, the Honourable Minister of Home Affairs, Dr M G Buthelezi, certain prominent Members of Parliament, and the Provincial Legislature, members of the erstwhile KwaZulu Police Force, some of whom are now incorporated into the South African Police Service, and also against numerous persons who at some stage or other had some involvement with what has subsequently become known as the Caprivi training, who we represent.
The perception we have is that this Commission - sorry, that this Caprivi training is perceived by many, including certain witnesses who have testified before this Commission, as a joint effort between Inkatha and the erstwhile South African Defence Force to create a military means to eliminate political opponents such as the UDF and the ANC. We believe this not to be the case, and will in this submission set out not only the history, but also the perceptions of the Inkatha movement during the relevant period.
We also believe that the findings of the Court in the case of S v Peter Msani and Others gives support to our views. To this end we refer this Commission to the evidence led at that trial and the findings of the learned trial Judge.
By way of background there are certain factors which
/we would
we would like to bring to your attention. Inkatha was a cultural movement, and only became a political party in July 1990. Inkatha, since its inception, always stood for the liberation and empowerment of black South Africans. Inkatha never supported the constitutional concept of independent homelands. The creation of the KwaZulu homeland was foisted upon the Zulu nation by the Nationalist Party Government. Apart from the KwaZulu Police in the early 1980s KwaZulu had no other means of protection. In spite of the Honourable Dr Buthelezi being the Minister of Police for KwaZulu he was not permitted to issue firearm licences. During the late 1970s it became clear that the African National Congress and Inkatha had become irreconcilable in their differences as to methodology and ideology in the struggle for liberation. We believe the above factors to be irrefutable, and it is against this backdrop that we must endeavour to pierce through the veils of lies, perception, disinformation, misinformation and propaganda that has been the hallmark of the political conflict over the last two decades.
After the split between the African National Congress and Inkatha the African National Congress adopted violence, the armed struggle, and Inkatha chose negotiation. Inkatha became the victim of unseeming propaganda and violence, all of which emanated from the African National Congress and its allies. Because of the approach adopted by the African National Congress Inkatha was labelled a puppet of the Nationalist Party government. It must be remembered that although Inkatha was a cultural movement at the time its aims included the social and political upliftment of the Zulu people. Accordingly it
/has always
has always had a strong groundswell of support from the inhabitants of the erstwhile KwaZulu. Flowing from this it is logical that the KwaZulu Government of the day was predominantly controlled by Inkatha supporters.
It is common cause that during the early 1980s the KwaZulu Government property, officials and Inkatha members were the victims of merciless attacks by the African National Congress, and its internal wing, the United Democratic Front, in accordance with its stated policies. There was thus a crisis. How could KwaZulu lawfully defend itself? The Chief Minister could not issue firearm licences, and the KwaZulu Police Force was insufficiently manned and trained. Inkatha had always believed in lawful measures to obtain a political or strategic objective. Since KwaZulu inhabitants were still South African citizens who had refused so-called independence they believed that the National Government had a duty to protect them.
It should also be noted that the African National Congress has gone so far as to admit that one of its units plotted to assassinate Dr Buthelezi. In this regard we refer you to the submission which I previously referred to of the 5th September 1996, wherein these allegations were made, and subsequently admitted by the African National Congress.
One should also have regard to statements made by Dr Buthelezi during the relevant period. Some of these are before the Commission, and we refer the Commission to the extract from his speech to the KwaZulu Legislative Assembly on the 28th of May 1984. This document forms part of the section 30 notice sent to Dr Buthelezi
/preceding
preceding these hearings. I'll quote a portion from it.
"It is clear to me that we need more training in paramilitary police methods. It will be a sad day when brother has to defend himself against brother. This is exactly what we will be forced to do if these kinds of incidents, that is attacks on buildings, escalate. I have no fear whatsoever that if and when we have to have a fully potential paramilitary wing in our police force we will not be a soft option."
And that is our emphasis, as you will see in the submission. It must be stressed that the State claimed that the training of the 200 in the Caprivi was itself unlawful. The Court, in the case of S v Msani and Others, considered this allegation by the State, which constituted the backbone of its conspiracy charge against the Caprivi trainees and others, very carefully. The Court held that there was no evidence that the training was per se unlawful. It its judgment at page 4456 the Court said,
"The evidence is that the training was broadly similar to that of ordinary recruits in the army. The trainees were all South African citizens, and no statutory or other prohibition has been shown to exist against the South African Defence Force training its own citizens as soldiers, or for that matter as policemen."
It was also contended by the prosecution in the
/Msani case
Msani case that because the trainees were trained for Inkatha, and not for the KwaZulu Government, that was an indication of the unlawfulness of the training. In this regard the Court stated at page 4458,
"This too does not in our view seem to be an indication of illegality. Even if the argument is correct then I can see nothing wrong with the proposition that the Defence Force should train citizens for private organisations."
Here the learned Judge was referring to Inkatha.
Our clients do not believe it serves any purpose for its political opponents, in the spirit of conciliation, to continue accusing it of having acted as puppets of the National Party government, and to this end being the driving force behind so-called hit squads. The KwaZulu Government had, in the light of its ideology, no choice but to approach as citizens the National Government for assistance. It had to defend itself and its members from attack. The National Government accepted its responsibility and promised to give KwaZulu assistance.
We pause here to reflect on the situation at that time. At that stage the African National Congress was banned. Their members were referred to by the Nationalist Party as communists, terrorists and criminals. There was a war in Namibia, and the Nationalist Party was waging a counter-revolutionary war in Southern Africa against a perceived communist threat. It was requested that the Inkatha people be trained for the purpose of defending themselves and KwaZulu, it being clear from the speeches of the Honourable Dr Buthelezi during those days that he
/needed a
needed a paramilitary capacity to deal with the actions of Umkhonto we Sizwe and its cadres. It was also anticipated that the attacks against KwaZulu might intensify or escalate to a state of an all-out war. Accordingly what was required was a corps of well trained men who could fight back should the need arise.
When the 200 men concerned were recruited the documents reflected that Dr Buthelezi was advised that they would be trained by a private company from money from an overseas sponsor. It was only shortly thereafter that it became clear that Military Intelligence were running and controlling the operation. The defence of people and property was always foremost in his mind, and although there was a degree of co-operation between the Military Intelligence and Inkatha it was never with a view to furthering ulterior, and in particular unlawful, objectives.
A further problem was how to lawfully implement the deployment of the trainees. The KwaZulu Government was not permitted to have an army as such, and there was talk of legislation to rectify this constitutional problem. Due to the urgency of the matter such plans were shelved, it then being decided that the trainees could be incorporated into the KwaZulu Police Force. In this regard, however, there were certain budgetary constraints, in that funds provided by the central government to the KwaZulu Police Force were inadequate, resulting in inordinate delays in respect of their recruitment into the police. The bulk of these trainees were just left to their own devices. In this regard we refer the Committee to the evidence of M Z Khumalo in the Msani case at page
/2634.
2634.
We now deal with the alleged hit squad activities. at no stage were the alleged hit squad activities ever sanctioned by the leadership of Inkatha. In fact we note that the Honourable Commissioner, Mr Lyster, in a letter to The Natal Mercury during the early part of June, stressed that it is not, and shall not be, alleged that the Honourable Dr Buthelezi was aware of the said hit squad activities.
When Mr Khumalo gave evidence in the case of S v Msani, and was questioned as to whether it was ever envisaged that the Caprivi trainees would be used in an unlawful manner, he replied in the negative and added,
"I believe that the number of people that had died would have been very big. It had never happened."
That is reflected on the record at page 2658.
We accept that unfortunately people from all sides of the political spectrum were killed due to illegal activity. We are, however, instructed that it was never part of Inkatha policy. We believe some of these activities emanated from individuals within Inkatha, who did so in the defiance of policy on the matter, as did, we believe, certain ANC members. As will be seen later, we argue that if anyone should bear responsibility for alleged Inkatha hit squad activity then it should be Dalakholo Luthuli. We find it significant to note that witnesses such as Dalakholo Luthuli, David Zweli Dlamini, whose alleged activities were material to the case of S v Peter Msani and Others, were never called by the prosecution. We submit it is because they could not be
/relied upon
relied upon as sources of acceptable and reliable evidence. Perhaps they are trying to ingratiate themselves with their former political enemies in order to secure advantage. A close reading of the evidence led by the State in the trial of Msani and others, when read with the statement of Luthuli and Dlamini, clearly reveals that such evidence was, in certain material respects, inconsistent, and we urge the Commission to have regard to the wise decision taken by the Attorney-General which has been disclosed in his letter. No prosecutor would have risked scuttling the State's ship on a sea of lies. The reason for not leading such evidence is not, as is alleged by Luthuli, that the Attorney-General did not intend to succeed with the prosecution in that trial, but for the reason we have already submitted. In spite of Mr Varney's submissions regarding the Attorney-General we submit that he did everything possible to secure a conviction. The record of S v Msani speaks for itself in this regard.
I will now hand over to Advocate Lassidge.
MR LASSIDGE: Thank you, Mr Chairman. Mr Chairman, I will start off by dealing with the allegations contained in the section 30 notices addressed to our clients, specifically the one addressed to Dr Buthelezi.
We have to express our reservations about the manner in which the allegations have been framed. For example, the allegations against Dr Buthelezi consist of documents compiled by the military during the period in question. The problem is that these so-called quotes are misquotes, or where they are correctly quoted they are quoted totally out of context. The result of this is clear. It has had the effect of creating a misleading, damaging, and
/prejudicial
prejudicial series of alleged facts, which the media and the public at large can latch onto and interpret as the truth. We find it disturbing that such misquotes and/or quotes out of context find their way into such notices, that are in effect indictments, and which are endorsed by the very Chairman who is enjoined to objectively and impartially hear evidence at these proceedings. We know that this is not a court of law, but it is an elementary principle of natural justice that the judge does not draw the indictment, but the prosecutor.
In support of our averments we quote hereunder a few examples. Paragraph 18 at page 8 of the indictment, as we call it, dealing with the signal sent from Malan's office to ... (intervention)
CHAIRMAN: Sorry, with respect, Mr Lassidge, please don't refer to it as an indictment. You know very well it is no such thing. Really, it's absolutely unprofessional to do that, with respect.
MR LASSIDGE: Well, as it pleases you, Mr Lax. I'll then call it the allegations.
CHAIRMAN: Call it the section 30 notice. That's what it is.
MR LASSIDGE: Very well. Paragraph 18 at page 8 of the section 30 notice, dealing with the signal sent from Malan's office to Pitter and Geldenhuys on 31 August 1988, and which deals with the meeting between M Z Khumalo and Malan on 30 August 1988. The portion of the signal which has been extracted and translated from the Afrikaans text reads as follows.
"Experiencing serious problems in respect of persons who must temporarily be
/withdrawn
withdrawn from communities."
This is completely inaccurate, we submit, misleading and prejudicial. The Afrikaans text refers to the singular, in other words one person who must be temporarily withdrawn from the community. If the Commission has due regard to the evidence of M Z Khumalo in the Malan trial they will have a more balanced approach in interpreting this document, we submit.
As an aside, Mr Chairman, if I recall correctly Mr Khumalo talks about David Zweli Dlamini in his evidence, and more or less what Mr de Vos has indicated is in line with Khumalo's evidence in that regard.
The effect of the allegation that Dr Buthelezi was involved in the cover up of crime, and the incorrectly translated statement is to create the suggestion that Dr Buthelezi was involved in hiding a number of persons from justice. There has been absolutely no evidence to suggest this.
Another example of grave concern to us is that at page 2, paragraph 3 of the notice Groenewald remarked further that,
"Although you wanted to take the struggle to the ANC in Lusaka you did not at the time have the capacity to do so."
The Afrikaans text reads as follows, and I would request the interpreter not to translate it.
"Hy sal dit selfs oorweeg om die ANC die stryd in Lusaka aan te sê, alhoewel hy tans nie oor so 'n vermoë beskik nie."
We believe that the correct translation should be he would even consider taking the struggle to the ANC in Lusaka, although at present he does not have the means to do so. /We submit
We submit that this is nothing like the allegation that Dr Buthelezi wanted to take the struggle to the ANC in Lusaka. He was considering this as an option according to the document.
The two problems we have with this allegation in the notice is, firstly, as we have pointed out, it is inaccurate and misleading in respect of its translation. It suggests that, as we have said, Dr Buthelezi wanted to take the struggle to Lusaka, and was only limited by virtue of his resources. This, we submit, is completely out of line with our understanding of this text. Secondly, as we have said, it is taken out of context. Why did the allegation not include the previous sentence? Perhaps the interpreter would like to translate this.
"He also remarked that although he was a proponent of a peaceful solution the ANC must realise that if it uses violence against KwaZulu the Zulus are also capable of violent action against the ANC."
We actually believe we are being generous in pointing out this quote, which you have placed in this document out of context. To take it further we quote from page 2 of the relevant secret document. Perhaps the interpreter could interpret here, and I quote.
"The impression was not gained that the Minister was using this as a threat."
This is in reference to the idea that Inkatha members would take the law into their own hands, and I quote again in Afrikaans.
"But that he was seriously worried about
/such a
such a possibility."
Now, surely that indicates to the Commission that the Chief Minister, as he then was, was all for maintaining a lawful and orderly state, and not to propagate or support hit squad activities.
We have, as I stated at the outset of the submission, dealt seriatim with each of the allegations in the notice in a schedule which is attached hereto. It is significant that this Commission is not in a position to lead direct oral testimony of Dr Buthelezi's support of hit squad activities. There is nothing in any of the documents or any testimony which directly implicates Dr Buthelezi in hit squad activities.
It reflects the very heart of Inkatha's objection to these proceedings that we submit that no prosecutor would have ever dared to frame such a charge sheet, as he would have well known he did not have the evidence to support his allegations.
If we may now turn to the evidence led before this hearing. Although it has been repeatedly stressed that the proceedings were not conducted in the form of a trial, and that certain hearsay evidence will be admitted, and that cross-examination will be limited, it is nevertheless trite that they are subject to the rules of natural justice due to the restricted time allocation, and it was inevitable that cross-examination would be of a limited nature. In our view for the Commission to deal substantively with the evidence of witnesses who testified cross-examination ought not to have been limited in any manner. It is respectfully submitted that cross-examination of witnesses is the only accepted tool in the
/search for
search for truth. As we have said, given the limited time available, and the restrictions that flowed therefrom, the right to cross-examine could never be exercised to its fullest extent. In such circumstances this Commission will never, we submit, achieve its stated object as framed in the Promotion of National Unity and Reconciliation Act, and we refer to section 3, which we quote. That is,
"To promote national unity and reconciliation in the spirit of understanding which transcends the conflicts and divisions of the past by, inter alia, establishing as complete a picture as possible of the causes, nature and extent of the gross violations of human rights which were committed during the period from 1 March 1960 to the cut off date, including the antecedents, circumstances, factors and context of such violations, as well as the perspectives of the victims and the motives and perspectives of the persons responsible for the commission of the violations, by conducting investigations and holding hearings."
In respect of the witnesses who have testified we point out that all of them are self-confessed murderers facing long terms of imprisonment. They have every reason to lie in an endeavour to seek amnesty and to claim that leaders with Inkatha and the KwaZulu Police encouraged unlawful activities. This would be the surest way of them attaining amnesty. Furthermore, our attention has
/recently
recently been drawn to certain information regarding what we would term private, as opposed to political, criminal activities. We have been advised by Mr MacAdam that Superintendent Marion - and I apologise to Marion for the incorrect spelling of his surname here - will draw the relevant files and disclose this information. Save to say at this stage we believe that the following committed such private crimes whilst members of the alleged hit squad: Israel Hlongwane, Romeo Mbambo and a Constable Shangase, who we believe is serving 21 years for a hijacking and murder.
As we have said, all of the witnesses are self-confessed murderers, and we add here liars, and we do not need to go into too much detail in regard thereto, but for ... (inaudible - end of Side B, Tape 3) ... and who pleaded not guilty at his trial. It was only when Mkhize was convicted, and the proverbial chips were down, that he then decided to come clean in order to secure a lighter sentence, we submit, by attempting to relieve himself of the moral blameworthiness for his conduct, and blame high-ranking officials. One must therefore question his bona fides in this regard.
We can say the same for witnesses such as David Zweli Dlamini, who has to date never faced any charges as far as we know in spite of the number of killings he admits to being involved in. He has everything to gain by getting amnesty, and everything to lose by not being granted amnesty.
Of significance, we submit, is the role of Dalakholo Luthuli. It is common cause that he was an operative of Umkhonto we Sizwe, and served some time in prison for such
/activities.
activities. It is also common cause, and in this instance we refer to the evidence of M Z Khumalo, that Luthuli was appointed as a political commissar in the Caprivi in order to maintain the morale and ideological state of mind necessary for Inkatha supporters. We submit that it is open for this Commission to find that Luthuli took it upon himself on his return to the area of KwaZulu-Natal with the trainees to become, as we would term, the supreme commander of the trainees. Given Luthuli's background it would not be surprising if he was single-handedly involved in directing certain elements of the trainee group in perpetrating unlawful hit squad activities. Luthuli has every reason to lie. He misled the Goldstone Commission. We submit that he was not entirely frank in the Mbambo trial, and relied, in the face of his professed desire to come clean, on the provisions of section 203 of the Criminal Procedure Act, which entitled him not to answer questions of an incriminating nature. One would have thought that if Luthuli was motivated by his desire to tell all in the spirit of truth and reconciliation, which commenced after the foundation of the TEC, as he states, then he would have surely told all at the Mbambo trial. It is clear from the prosecution that they were prepared to indemnify him in respect of certain counts, which begged the question as to whether or not Mr Luthuli ought not to have discussed other issues with the prosecution.
Our clients also express concern about the manner of investigating violence in KwaZulu-Natal. The perception gained is that this is a one-sided tribunal, with the focus entirely on Inkatha and the erstwhile KwaZulu Government. It seems to our client, and we believe
/rightly so,
rightly so, that this Commission, with the greatest of respect, is not endeavouring to investigate activities perpetrated by ANC/UDF cadres during the same period in question.
We believe that a statement was made to the media by members of this Commission to the effect that Inkatha has not come forward with any information on such activities. Mr Chairman, perhaps I am incorrect in that submission, but that's as our understanding of it is. We dispute this, and refer in particular to the lengthy submission, which Mr Falconer has already referred to, put forward by the Inkatha Freedom Party to this Commission, which is dated 5 September 1996, and which sets out numerous and detailed instances of activities against Inkatha members and leaders.
I pause here to state, Mr Chairman, that since 1985, and up to 5 September 1996, 422 leaders of Inkatha were killed. This is only the leadership we're talking about, and their details are set out in this submission, together with other members of Inkatha who have been killed or attacked during that period.
In conclusion we draw the Commission's attention once again to the provisions of section 3, which I have already quoted, and we hope and we urge that the Commission will follow this approach as set out in the founding legislation, and to this end change the perception of our clients that no investigations of any substance are being undertaken in respect of activities by the ANC/UDF cadres during the relevant period.
Of further concern are the provisions contained in section 7 of the said Act, and we refer in this regard to
/section 7
section 7 (2) (b), and I quote.
"The Commissioners shall be fit and proper persons who are impartial and do not have a high political profile."
In our respectful submission persons such as Dr Boraine, who sat in on these hearings for the first few days, ought not to be on this panel. We note that objections were raised by our learned friends as to his presence at these proceedings, and we endorse those. Dr Boraine has been a well-known figure in politics over the last two decades. There can be no doubt that Dr Boraine is a person with a high political profile.
The decision arrived then by the Court in S v Msani and Others was based on tested evidence, on evidence that was subject to cross-examination and careful evaluation. We accordingly submit that it can be accepted as an incontrovertible fact that the training was not unlawful.
Thank you, Mr Chairman.
CHAIRMAN: Thank you, Mr Lassidge. I don't want to spend any time - or much time debating issues arising from your submission, save just to draw your attention to two matters. One which appears at the bottom of page 16, in which you state that members of this Commission have said that Inkatha had not come forward with any information. I think what we - we obviously are aware that - and I myself and other Commissioners were present when Dr Buthelezi and other members of the IFP gave their submissions to the Commission in September last year. I think what we have emphasised is that ordinary individual members of the IFP have not been willing to come forward to the Commission and give their stories, despite our
/attempts to
attempts to draw them in, despite our attempts to - in our discussions with local and regional leaders of the IFP to persuade their members to come forward to tell their stories, so that their stories may be heard, and so that their stories may form part of our final report. We have not had success in that regard.
Also with regard to the list of people which was given to us by Dr Buthelezi, a list of Inkatha leaders or office-bearers allegedly killed by UDF/ANC, we have been investigating that list for some time. We are still investigating it, and we do so despite the fact that we are not getting co-operation from the IFP in our investigations.
The second matter which I wish to raise briefly is that you said that there was no document whatsoever which linked Dr Buthelezi to hit squads, and I want to refer you to the military memorandum, prepared I believe by Colonel van den Berg, dated 2nd May 1990. If you haven't got a copy of the document we can of course give one to you. I believe you do have a copy, and I refer you to paragraph 2 (b) of that document, and I am going to give a loose Afrikaans - well, I'll read it in Afrikaans and ask the translator to - the interpreter to translate it - 2 (b). This relates to a meeting with "hoofstaf intelligensie" - I don't know who that was at the time - with Dr Buthelezi on the 26th of April 1989 in Ulundi, and the minutes of the - or the memorandum reads as follows.
"The Chief Minister was concerned because he was losing the armed struggle, and intimated that there was still a need for offensive action, meaning the
/application
application of hit squads."
That's the only document I wish to refer to at this time. Obviously I have said that we will respond for the purposes of clarification to your clients' submission, and will expect him to respond to those clarifying questions raised.
Perhaps you could just - there's a note being passed to me. (Pause) Perhaps you could just indicate whether you are acting here for the party itself - is that correct, or Mr - Mr Falconer.
MR FALCONER: Mr Chairman, we here represent primarily those persons who have been implicated by the evidence, or who it was anticipated would be implicated in the evidence, and I refer to your letter of the 8th of May 1997. Obviously certain of the allegations have an impact upon the Inkatha Freedom Party, and to that extent we represent the Inkatha Freedom Party as well.
CHAIRMAN: I see. So, for example, the people who were mentioned in the hearing by a number of the witnesses as performing the corps of the alleged Esikhawini hit squad, people such as Prince Elangeni, Mrs Mbuyase, etcetera, are you acting for those people?
MR FALCONER: That is correct.
CHAIRMAN: Yes. And can we expect that in due course the individual section 30 notices will be answered to, or does this submission here represent your answer to those? I think - you know, I know that there were bare denials during the course of the evidence.
MR FALCONER: Mr Chairman, I understand that - we will obviously have to take detailed instructions from specific clients, but at this stage our response is that as
/contained
contained in this submission.
MR LASSIDGE: Mr Chairman, if I may just indicate - you drew my attention quite correctly to one of these documents. We have dealt with that in our schedule dealing with each of these documents which was raised in the allegations, and, Mr Chairman, as far as your statement concerns the investigation of the hit squad activities and that, we accept that. Thank you.
CHAIRMAN: Thank you, Sir. Mr de Vos, is there anything that you want to reply to arising out of Mr Lassidge's submission? We did say that counsel could have brief rights of reply if there was anything that was raised which affected their clients.
MR DE VOS: Not at this stage, thank you, Mr Chairman.
CHAIRMAN: Mr Wills, is there anything which you want to raise?
MR WILLS: Yes, indeed there is. I will be as brief as possible, Mr Chairperson. Thank you for this opportunity.
Mr Chairperson, Member of the Committee, the first comment that I want to make, and that is that a lot of the evidence and argument contained in the legal teams for the old government authorities seems to be based on what I would consider to be the propaganda of that particular era. For example, they refer specifically to people - certain elements of terrorists, and the threat against Dr Buthelezi, that the ANC and its internal wing, the UDF, was consistently attacking the Inkatha territories and buildings.
I am sorry, Mr Chairperson, I am getting an intermittent signal, I am not sure if I am being recorded. This is - it's actually quite disturbing. It's going on
/and off
and off in my ears. (Pause) Thank you, that's much better.
What I would like to say is that with the purposes that the Commission has before it, ie, to uncover the truth, that their argument that, for example, Dr Buthelezi had to be protected, based on what I would submit may well be propaganda, the National Party propaganda concerning the armed attacks and such like, the basis of that assertion has to be looked at, and I submit it's up to the Commissioner to look at that. I am not suggesting that there was no violence at that time, but I certainly think that a particular slant has been put on this - in the submissions, where we are led to believe, for example, that there was a serious guerilla war emanating from outside our borders, and was just about to take over the town at that time, but that clearly wasn't the case.
In the same regard, Mr Chairperson, I submit that it is not common cause that the IFP was being subject to attacks, and it's clearly not common cause that the ANC started these attacks. And those are the sorts of issues. I can't tell you who did those sorts of things, but clearly from my point of view, and from the clients I represent, that isn't common cause, and I would submit that if arguments based on that assumption are going to be considered by yourself that you look into the basis of those arguments.
Another thing that I want to refer to was raised by counsel this morning concerning the defensive nature of the training as portrayed by my clients and the clients of Mr Stewart, and I would submit, with the greatest respect to my learned friend who raised this point - I believe it
/was Mr Coetzee
was Mr Coetzee - that this is in fact a selective reading of the evidence. My clear impression was exactly the opposite. The full training - the major purpose given by all of those witnesses was to kill and eliminate the ANC, and this has also gone beyond this hearing, and I again refer to the record of the Msani trial at page 4413, when Khumalo states there - that's B Khumalo, states that people were told that they were attacking Hani and Thambo in the Caprivi training.
Another aspect that I'd like to submit is not accurate - I think this matter was raised by Mr Maritz - and that is that the impression he gave the Committee was that the violence, or the illegal activities of the Caprivians, only commenced when Gina Mkhize got involved post 1991. Now, clearly that isn't the evidence that I have before me on the documentation and on the evidence of Mr Luthuli. I see clearly that both Mr Luthuli and also Mr Dlamini were involved in violence from as early as 1987. So, to suggest that their activities only started in 1991 is in fact factually incorrect. Whilst I do concede that Mr Mkhize only started unlawful activities in that time, one cannot draw the inference from that that there was no other persons who didn't act unlawfully prior to that.
The last and most important aspect of my reply, I submit, Mr Chairperson, is I have been criticised by two counsel, Mr Visser and Mr Maritz, in respect of my submission that the past security forces, to quote them loosely, should be held criminally liable, and Mr Visser went - sorry, Mr Maritz went as far as to say that the Committee did not have the capacity in terms of the Act to
/hear that
hear that argument, or even to consider it. With the greatest respect to Mr Maritz I submit he's wrong, and I refer to the Committee to section 14 (a) read with section 4 (a) (v) of the Act, and I quote. I won't quote section 12, it just empowers the - section 12 empowers this Committee to look into the items raised under section 4, the functions of the Commission, and I specifically refer -
"The functions of the Commission ..."
I am quoting from section 4.
"The functions of the Commission shall be to achieve its objective, and to that end the Commission shall, (a) facilitate and where necessary initiate and co-ordinate inquiries into ..."
Now, Mr Maritz implied that the limitation - you were limited to what was said in subsection (iv), ie, the question whether such violations were the result of deliberate planning on the part of the State. I realise that is part of your mandate, but I refer you specifically to section (v) of section 4 (a), which says you must enquire into accountability, political or otherwise, for any such violation. I would therefore submit that my submission that you look into the possible criminal liability through negligence on the part of these persons is not ultra vires.
Continuing that argument, from my learned friends I have had a lot of criticism - words used as preposterous and ludicrous if my memory serves me well - about that argument. Now, as I understand the basis of my learned friends' argument against my proposition that there was
/foreseeability,
foreseeability, I understand them basically to say that what happened in 1986 - it would have been impossible for any of their clients to have foreseen what happened later on, and I make these submissions in counter to that argument.
First of all I'd like - there are certain serious questions that I've got in regard to command and control. People have made comments that if my argument is accepted then every national serviceman or every soldier trained, if he does something wrong it would be the responsibility of those who trained him. That is a misunderstanding of my argument and a gross simplification of it. Basically what my argument is, is that if you train a person, and then you - once you utilise those skills you are obliged to put that person under command and control purely for the purposes of preventing potential unlawful activity. And to that extent I would have submitted that it would have been essential for people to be so - trained in such deadly skills to be incorporated immediately into some structure on their return to South Africa. Had they not been - they had not been incorporated, and we've had certain reasons for that. I submit those reasons cannot be accepted.
Mr de Vos commented, and I submit he is correct in this regard, is in those days the army could do things properly - sorry, could do things quickly. We have a period where these people are trained for six months. We have knowledge that they are going to be returning to KwaZulu-Natal. I cannot accept that the army could not have arranged - made arrangements for them to be put in a position where they were properly housed, controlled and
/organised.
organised. Now, there's a number of options available. They could have immediately been put into the KwaZulu Police. Now, there's arguments against that, arguments of financial nature, but again my understanding from the documents that I've perused, specifically that of the statement by Luthuli, is that these people were paid financially up until as late as 1991. Now, that seems to me to indicate that even if the budget was switched they could have been paid in the KwaZulu Police. They could have been put into 121 Battalion. I have serious doubts, or I have serious questions raised as to why they were not controlled, and I submit that the army is liable for that.
The notion that the army, or the co-ordinators of this training were expecting them to go into the KwaZulu Police? Well, my argument on that is that if you are going to train such a powerful force then you must ensure that the whole plan is co-ordinated to the end. To think that they thought that they were going to be in the KwaZulu Police, and in reality that only eventuated much later, to my mind is not an excuse.
But it's not as simple as that. I submit that it's not just that they were left alone when they returned. I want to refer to little bits of the evidence that has come out over this hearing, and I am sure that with the evidence that you have before you through other hearings and amnesty applications, you will have a lot more than what I've got here. It appears to me that these people were returned, and then they weren't left alone by the police and the army authorities, they were actually in a very covert way nurtured by them. For example, there's evidence of Detective Warrant-Officer van Vuuren of
/warning
warning Israel Hlongwane of his arrest, and that's in his statement.
There's evidence of Major Terblanche of the SAP Riot Unit supplying weapons to Mr Luthuli. Or should I rather say supplying ammunition, would be more accurate. There's evidence of Terblanche and the person who's been referred to as Polbury - I believe from Military Intelligence - meeting frequently at the Polo Pony Hotel with Dalakholo Luthuli. There's information about an MI front company called Creed, which played a certain role according to Luthuli's statement. There's evidence that Brigadier van Niekerk and Major Louis Botha, apart from attending the passing-out parade, were involved in what Mr Luthuli refers to as the planning committee. And also there's evidence that these people were actually paid. And the issue of payment, I can't say myself from the papers that I've seen where that payment actually came from, but I certainly think that it's an issue that this Committee, with respect, should investigate to find out exactly where that payment came from, and for how long it lasted. Clearly there was co-operation between Inkatha and Military Intelligence long after the return of these trainees when - as is indicative in all of these arguments.
In short, Mr Chairperson, my submission is that whilst the trainees were told to avoid the police and the army, that cannot be regarded as all police and army. I think a sensible interpretation of this is that there were certain aspects of the police and the army which knew about this operation, and clearly there were close ties with these people. Because of its covert nature the whole
/operation
operation was not spread around all the security forces, and hence a lot of people would not have known about it, but in short I submit and I maintain my submission that in fact the army and the security forces who started this are liable by the - by virtue of they must have foreseen what they were doing.
Just a very short analogy, and it pertains to the law relating to wild animals. If you have a wild animal, and you train it to kill, and by the time you bring it to your house you don't have a cage for it, and it goes out and kills somebody - as has happened in this instance - you can't go then and say, "Sorry, the arrangements for the cage to be delivered were delayed, or we didn't make it." You have an obligation to control what you create, and I submit that the Defence Force and the security forces in general have failed in that regard.
Briefly, in reply to the submissions made on behalf of Inkatha, the thrust of their attack on Mr Mbambo and Mr Mkhize is that they are criminal liars. It's easy to say that through counsel on paper. No version has been put to our client. Nothing that they've said has been disputed in any intelligent way whatsoever. They have just taken the easy way out and said that they're liars, and I submit that submission cannot be accepted by the Court - sorry, by this Committee. It's clear that Mkhize and Mbambo were prepared to subject themselves to long cross-examination. I went on record as saying that I agreed with counsel that people can cross-examine. They were prepared to sit there for any length of time to be cross-examined.
But that isn't the point, and I agree with a comment
/made by
made by the Chairperson earlier that, whilst there was limited time for cross-examination, much of that limited time was not in fact utilised by persons available. And I submit that this is particularly pertinent in regard to the IFP's attack on my clients. I submit that this - that the submission that they were lying cannot just hold any water whatsoever.
Finally I am, in the absence of Mr Stewart, going to make one comment as regards the IFP's allegation regarding Mr Luthuli. For the IFP to submit that one man can control the resources, and to control all of those people in Natal, without any support from the Inkatha Freedom Party whatsoever is, I submit, ludicrous in the extreme. And again it's a bare denial without any substance, so I submit that that also should be not treated very seriously by this Commission. Thank you.
MR FALCONER: (?): Mr Chairman, might I have an opportunity to just make one observation from what Mr Wills has said.
CHAIRMAN: Yes, certainly.
MR FALCONER: That deals with the first point he made, where we contended that it is common cause that the Inkatha Freedom party, the KwaZulu Government, members of the KwaZulu Government, and various installations of the KwaZulu Government, were under siege of attack from the African National Congress or the UDF, or MK, as it was. And, if I understand Mr Wills' statement he says that none of his clients who he represents have contended in their evidence that that was in fact the case.
My understanding is that Mr Wills does represent Mr Brian Gina Mkhize, and I've only got my handwritten notes here to refer to, but it was clear that Mr Mkhize
/said some
said some words to the following effect.
"We saw tribal councillors being killed, elderly people forced by UDF to drink cooking oils, etcetera. We decided to fight the UDF, which was furthering the aims of the ANC."
It is upon that, and other evidence which was led before this hearing, that we based our assumption that it is common cause, and clearly his clients do state that they were under siege. Thank you, Mr Chairman.
MR COETZEE: Just one or two aspects we'd like to reply to. On the same point that my learned friend has just made, I find it extremely strange that it can be seriously contested that it is part of the facts before this Commission and common cause that the ANC was attacking the Inkatha during this time period. I don't understand on what basis my learned friend can even dispute this evidence, because it's the evidence of his own client.
Furthermore, my learned friend has misunderstood, or has not gone through all the evidence relating to the training and deployment of these Caprivi trainees. The whole function of the defence Force was only the training. The deployment would have been done at a later stage. It was the function of Constitutional Development at that stage, and the KwaZulu Government. It was not the function of the South African Defence Force to deploy the people. It was never their function. And he totally leaves this point out, and tries to make something that was the responsibility of other departments the responsibility of the Defence Force.
Furthermore, my learned friend refuses to put this
/whole
whole paramilitary group in the right perspective. The largest majority of this paramilitary force was contra-mobilisation, and he's trying to make out that this was 200 people that were trained to go attack people, which is clearly not the case. The case is that the vast majority was contra-mobilisation. And furthermore on the evidence of his own - of the Caprivi trainees that have testified here, it is only a select few that got involved in these unlawful activities, but he fails to refer to the correct evidence.
He makes an - I ask the Committee to correct me if I am wrong, but I have had opportunity to peruse the record, and there is no mention of anything happening in 1987, if I remember - if my recollection of the record is correct.
CHAIRMAN: No. Mr Luthuli gave evidence that in 1987 in Clermont and in Mpumalanga Caprivians were - according to his version were extensively involved in killing. He gave a very detailed description about how this would take place. He said that the Inkatha members would attack houses with petrol bombs, people would run out of the houses, and Caprivians would shoot them as they ran out of the houses. That was in 1987.
MR COETZEE: I accept that. The further aspect that is also clear, the unlawful deployment cannot in my submission be connected to any clients that I represent. They weren't involved in this deployment on any basis. If there was any deployment for any unlawful activity it was without their knowledge, and they could not have foreseen it.
If you would just bear with me for a moment.
/(Pause)
(Pause) I submit that my learned friend's analogy with
the Caprivi trainees to wild animals, and the duty of care relating to a wild animal, and a soldier that is trained and is supposed to be disciplined is untoward, and there is no comparison.
I have no further submissions, thank you.
CHAIRMAN: Thank you, Mr Coetzee. Just one aspect, Mr Coetzee and Mr de Vos. Maybe you can assist us here. It just arises out of what Mr Wills has said, and that is the question of payment. There is evidence that these people were paid until quite late. Do your clients agree that it was them that - or the military at any rate, that paid them?
MR DE VOS: (?): Without having the opportunity to clearly take instructions on this point, but it appears that the Military Intelligence was involved in the payment of the Caprivi trainees, and if I remember their evidence correctly the picture is that at one stage Admiral Pitter went to Buthelezi and said, "Well, look, we were only supposed to train these people, have them on our books, so to speak, for a year. You must please take them over now." And then the whole problem came that the KwaZulu Government and the central Government, and Constitutional Affairs never done the work that they were supposed to do. And their budgets - and to a certain extent they were paid by Military Intelligence because of the situation as it was. That, I think, is the best picture I can give at this stage.
CHAIRMAN: You see, my recollection was that that was in fact the case, and there was further evidence, as you'll recall, in the Msani trial that M Z Khumalo in fact asked
/the SADF
the SADF for a salary and a vehicle, and received both - through that same fund, as far as I recollect. Is that correct?
MR DE VOS: That is correct, Mr Chairman. I think - I am not sure about the date, but I think that the evidence was handed in at the Goldstone Commission that payment occurred through a front company, through Armscor. I am not sure until what time.
CHAIRMAN: Somewhere in this huge mass of documents there's a specific reference as to how payment would be effected, and it was going to be effected as if it was a foreign donation coming via Armscor to an account in the name of Inkatha. But in fact the money didn't get paid by Inkatha, it got paid by Military Intelligence themselves. The evidence is that Opperman would go up pay them, or Cloete, or one of those people, from time to time. Is that correct?
MR DE VOS: Yes, we also have the picture, but I think one - it was agreed between the Government and Inkatha that the Government would supply the money. But I think if one looks at the documents that you're probably referring to - the first document is the 19 December document in 1985, where Cor van Niekerk suggested th
