Special Hearings — Caprivi Hearings — 1997-08-06

WITNESS:   I have given you the answer, Mr Maritz, and it's quite obvious, from what I have said, that when Buthelezi went to the State he had in mind an operation that would include a protective capacity and an offensive capacity and he would have been aware what that offensive capacity was about, and that is reflected in these documents.  One, of course, is relying on the face of these documents.  Buthelezi himself has not testified, but if one reads the documents and you read the obvious and most simple references to offensive actions, meaning hit squads, to people wanting protection from charges carrying the death penalty, on this one can put a convincing break in between those documents and what was requested.  Then perhaps you may have a point, but I don't see where that connection was broken.  If you look at the very first document, he wants an offensive capacity to strike at the ANC in Lusaka.  Even the Court remarked on the particular comment, and that was the first document, and the Court remarked during the evidence of General van Tonder that that particular remark looked as though it was an offensive, as opposed to a defensive capacity, and how can you protect in Lusaka unless you are taking preemptive actions?

MR MARITZ: Mr Varney, please, this was the subject of a very

MR MARITZ: /long debate

MR MARITZ: 5A long debate.  Now, can I say this to you that if you are going to protect yourself with fire power, there is no way in the world that you can prevent taking life.  Do you concede that?

WITNESS:   That I can prevent taking what?

MR MARITZ: Life.

WITNESS:   Life?

MR MARITZ: Yes.

WITNESS:   If you want to protect yourself?

MR MARITZ: Yes.

WITNESS:   There are circumstances when that does happen, yes.

MR MARITZ: Absolutely.  Now, the point is this, when Dr Buthelezi went to the Government, is there any evidence at all that he was bound on a course of mayhem and murder?  Is there any such evidence?

WITNESS:   Mr Maritz ... (intervention)

MR MARITZ: In other words, is there any evidence at all that he was dishonest, that he was lying to the Government, that what he really wanted to do was a force to act in a murderous manner and totally unlawfully?

WITNESS:   Mr Maritz, with the greatest respect, you've read my submission.  You've read the very first page of my submission.  You will see that I concede that the objectives seen from the perspective of Inkatha, and seen from the perspective of the State, that by taking such actions, by striking at the ANC and UDF, by perhaps even eliminating targets, that that will produce a protective objective.  It will have the result of preventing further attacks.  Now, I can concede that the objective seen in their eyes is protective, but as the Court pointed out in the Mbambo matter, no matter how noble the overall cause, the means to achieve are certainly not legitimate in the eyes of the law, and Buthelezi would have known it and the State would have known it, absolutely.

MR MARITZ: /On the same

MR MARITZ: 5A On the same basis, would you concede that there was no basis on which the then Government could have viewed Dr Buthelezi, when he came with his request for help, that he was a murderer and a liar and that he was trying to pull the wool over the eyes of the then Government?  Do you concede that?

WITNESS:   Well, I think you couch your questions in an unusual fashion, and I think you should refer yourself to the military document dated 27th November 1985 and, in fact, you should refer to all the documents that flowed from that particular document, right through to the early 1990s, and you will see there is a consistent thread, an unbreakable thread that runs along.  In that very first document Groenewald makes a little remark, a little recording.  He makes a comment on a remark made by Buthelezi, that is he needs an offensive capacity to act against the ANC and UDF.  If the ANC is going to act violently against him, then the ANC must know that the Zulus are in a position to act violently against them.

MR MARITZ: But none of this means that he was bent on an unlawful course.  That's the point I'm trying to make, and this is all I'm asking you.  Do you have any evidence, apart from speculation or argument or deduction, evidence at all that Dr Buthelezi was bent on an unlawful course of action?

WITNESS:   I think the documents before you put out an extremely compelling case which says just that and, in effect, what you're asking me to say is that the word, "Offensive" in these documents - every one of these documents is a fabrication in your eyes, which I don't think you are going to push that particular line, or, in fact, in the line which I believe you will be pushing, is

MR MARITZ: /that offensive,

MR MARITZ: 5A that offensive, in fact, has some sort of lawful connotation.  It, in fact, is in reality protective and that is the contention that I believe is incorrect and I believe, "Offensive" should be read in its normal meaning, offensive.

MR MARITZ: In other words, if I understand you correctly, what you are saying is that legalistically one must attach some blame to these role-players.  Is that what you're saying?

WITNESS:   Might one attach some blame?  I have made my submission and in my submission I say that those leaders are accountable for what flowed from that project, including the acts of murder, yes.

MR MARITZ: But this is a purely legalistic standpoint that you have?

WITNESS:   Mr Maritz, with respect, I think you should move on.  I think we are labouring the point right now.

MR MARITZ: No, no, it's not for you to say to me where we should go.   I'm asking the questions.  Don't forget it.  Do you concede that your entire submission is a very legalistic one, which is neither here nor there?  And I'm putting it to you.

WITNESS:   Well, I reject that contention.

MR MARITZ: Very well.  Now, you have also said this in your submissions somewhere, and I find it terribly contentious, that if, for instance, the Caprivians had not been trained, one would not have had loss of life or to such an extent.  Did I understand you correctly?

WITNESS:   Mr Maritz, with respect, that is a disingenuous way of interpreting my document.

MR MARITZ: Is that not ... (inaudible) ... (intervention)

WITNESS:  Nowhere, nowhere, Mr Maritz, will you find me saying that, "But for the Caprivi trainees this place would have been harmony and a wonderful place to live, with no deaths and

MR MARITZ: /so on".

MR MARITZ: 5A so on".  I think that line of argument doesn't assist the Commission in reaching the bottom of the matter.

MR MARITZ: Well, I thought that was ... (intervention)

WITNESS:   You will read in all those documents that I have drafted, Mr Maritz, that the Caprivi trainees, what they carried out, contributed in substantial measure to death and mayhem in this country.

MR MARITZ: Yes, I thought it was a very pernicious standpoint  you had and that's why I raised it, but it doesn't look as if you still adhere to it.  Nevertheless, can I just, lastly - I told you I was going to be brief - ask you this.  I'm not quite sure of your answer, because you argued and I don't want an argument.  I want a factual statement.  Are you a military expert?

WITNESS:   That I have already answered.  That question has been put to me.  I am not a military expert, aside from spending a great deal of time over the past 2 1/2  years studying these military documents before me.

MR MARITZ: But you are not a military expert?

WITNESS:   The question has been answered, Mr Maritz.

MR LAX: He said so.  You don't have to put it again.

MR MARITZ: Now, you are a lawyer.  What is the position with the evidential value of an opinion if you're not an expert?