Special Hearings — Caprivi Hearings — 1997-08-14

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.

CHAIRPERSON: 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

MR COETZEE: /purposes

MR COETZEE: 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.

MR COETZEE: 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.

MR COETZEE: 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.

MR COETZEE: In analysing the evidence of the Esikhawini hit

MR COETZEE: /squad these

MR COETZEE: 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.

MR COETZEE: 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.

MR COETZEE: "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,

MR COETZEE: /and he

MR COETZEE: and he felt brave enough because he will be under their wing."

MR COETZEE: He further testified,

MR COETZEE: "In other words their role was in particular to render protection, if I may call them dignitaries of Inkatha all over KwaZulu-Natal.

WITNESS:   Yes, that is true."

MR COETZEE: That's on page 455 of his evidence.

MR COETZEE: 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.

MR COETZEE: 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.

MR COETZEE: /The next