Special Hearings — Caprivi Hearings — 1997-08-11

CHAIRPERSON: Mr Macadam, do you just want to place on record how the proceedings will take off today?

MR MACADAM: Mr Chairperson, I received a telephone call from Mr Stewart, who represents both Mr Dlamini and Mr Luthuli.  He asked to be excused from today's proceedings because of urgent matters that have arisen, which he did not anticipate when he agreed to represent the two person.  He will be available tomorrow and he requests that any cross-examination or further evidence from his clients stand over to tomorrow.  Secondly, Dr Williams would have been available for cross-examination at 10 o'clock this morning.  His flight has been delayed.  He will be arriving during the course of the morning and I would therefore ask that his further evidence stand down until he is available and can be slotted in at a convenient stage.  That would leave us then with only three witnesses - Mr Mkhize, who has already given evidence-in-chief, but whose cross-examination stood over last week.  Mr Romeo Mbambo has not given evidence at all, but his evidence relates purely to the Esikhaweni activities.  He himself has not trained in the Caprivi at any stage.  And then Superintendent Marion from the South African Police, who would merely give statistical evidence which is relevant to the hearing.  Mr Mkhize and Mr Mbambo are both represented by Mr Wills, and he made a request that Mr Mkhize's cross-examination be finalised before Mr Mbambo testifies.  Unless there's any objection to that suggestion, I'm inclined at this stage to call Mr Mkhize for further cross-examination.
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CHAIRMAN
1A

CHAIRPERSON: And then?

MR MACADAM: And then Mr Mbambo and if Mr Williams is available we'll then take his evidence and then finally we'll hear Superintendent Marion's evidence.  Mr Luthuli has already been cross-examined.  It is purely if counsel after the week-end wish to raise further issues with him.  Mr Dlamini has merely to be cross-examined.  He has no further new evidence.

CHAIRPERSON: Thank you, Mr Macadam.  We then will proceed with the further cross-examination, if any, of Mr Mkhize.  Mr de Vos.

MR DE VOS: Thank you, Mr Chairman.  I think he must be first sworn in.

BRIAN GCINA MKHIZE: (Sworn, states) (Through Interpreter)

MR DE VOS: Mr Chairman, I think I was busy last.  The decision we've already taken not to proceed with cross-examination.  I'm not going to put any further questions to this witness, thank you.
NO FURTHER QUESTIONS BY MR DE VOS

CHAIRPERSON: Thank you, Mr de Vos.  Is there anybody else who would - Mr Lasich?

MR LASICH: Thank you, Mr Chairman.  Mr Mkhize, I gather you know who I represent.  My name is Lasich.  Now, Mr Mkhize, the only time, if I understand it, that you decided to come clean, as it were, was after your conviction in the trial known as S v Romeo Mbambo and Others.

WITNESS:   I don't understand whether he's putting a question or whether he's telling me - or making a statement.

MR LASICH: I am putting it to you to confirm or deny that.

WITNESS:   I deny that.

MR LASICH: /During the

MR LASICH: 1A During the trial itself, when the charges were put to you, you pleaded not guilty.  Is that not correct?

WITNESS:   I remained silent for one reason.  I did not want to contest ...

INTERPRETER: The speaker is not audible enough.

WITNESS:   I had already made a decision.  As the case went on I had already made my decision.  If I may help this Commission, I made the decision at the time when I realised that IFP has turned its back towards me.

INTERPRETER: The speaker is not audible.

WITNESS:   The way IFP went on, not wanting to come out clean as other organizations, especially during the negotiations before the new South Africa, when it was said all the organizations should tell the truth and put their view openly and explain clearly what their stance.  We knew ourselves as the IFP soldiers and how much we have wronged the nation, and we were waiting for our organization to come out clean as well as others - just like others - and also admit to the fact that they had trained a certain number of men and put out the weapons in the public and explain to the public what it has done in as far as violation of human rights.  If it wasn't ready to do that ... (intervention)

MR LAX: Please just answer the question.  You are going on a whole long - basically a political statement.  If you could restrict yourself to explaining very briefly why it was that you changed your mind and have clean, as you've been asked.

MR LASICH: I think you've given us a lengthy explanation there, Mr Mkhize.  I was actually going to endorse the views of Mr Lax there, that you tend to ramble on, instead of keeping your answers as simple as possible.  We have

MR LASICH: /limited time

MR LASICH: 1A limited time as it is.  Now, Mr Mkhize, I want to suggest to you that your motivation in coming clean, if we can call it that, was because you knew you were going to face a lengthy term of imprisonment and you decided to now tell the Court what was going on.  Could you comment on that?

WITNESS:   That is not true.  It is painful to me that when I decide to disclose all the reasons why I took these actions and you will restrict me in that regard.  I do not know whether you are doing that so I may not come out clean or I should just go by your decision.  My objective is to explain the reasons why I disclosed the truth.  Because I'm here as well to tell the truth and open up.

MR LASICH: Now, Mr Mkhize, it's already been discussed on the last occasion between yourself and Mr Visser the statement that you made to the Goldstone Commission, but what I want to find out is if you had this genuine interest to come clean, why didn't you approach the State or tell your counsel that you wanted to come clean?  This is in the criminal trial for which you were convicted.

WITNESS:   You are not aware at the time of the mitigation in the court of law I told them exactly what I am telling this Commission as it is, but that was in connection with the cases at the time.

MR LASICH: You said in your evidence some time back that you were involved in mobilisation at first but that you had been told to avoid police, because you were not doing anything lawful.  Could you explain what was unlawful about mobilisation or contra-mobilisation?

WITNESS:   I don't clearly understand the question.  Please explain, so that I get your question clearly.

MR LASICH: Right, my note - I will just give you the background

MR LASICH: /to the question.

MR LASICH: 1A to the question.  You said, if it's correctly recorded here, that,  "It was emphasised that we should avoid the police because we were not doing anything lawful".  That was in 1988.  If I understood your evidence, you were involved in contra-mobilisation.  What I want to know is what was unlawful about contra-mobilisation?

MR WILLS: Sorry, Mr Chairman, I beg to differ with my learned friend's timing of that question.  My understanding of this witness' evidence was that it was as far back as during the training in the Caprivi in 1986 that he was told not to - to avoid the police.

MR LAX: I confirm that, Mr Wills.

MR LASICH: Well, perhaps - all I'm asking the witness then is what did he perceive to be unlawful about contra-mobilisation, if it was unlawful.

WITNESS:   I had already explained to the Commission that I was getting and receiving orders from my superiors.  If my superiors happened to give me some work to apply contra-mobilisation I would do that.  Then there was nothing absolutely wrong with the contra-mobilisation at the time.  And again, after the instructions or orders that will necessitate my skills or the offensive skills that I received during intensive training, I would do exactly that - apply the intensive training skills, and that would be wrong.  That's where the wrongness came into the picture, not from the side of the contra-mobilisation.