Special Hearings — Caprivi Hearings — 1997-08-14

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.