Special Hearings — Caprivi Hearings — 1997-08-06

MR LYSTER: 3A offensive capacity to carry out retaliatory or pre-emptive actions against the ANC, even in Lusaka, if needs be and that is hardly an expression of a desire for a protective capacity.  Under the next heading, "The SADF acts upon the request", the Defence Force accordingly took steps to supply Buthelezi with such a capacity.  A further memorandum was put together dated 19th December 1985 and Buthelezi's request for an offensive arm was confirmed.  He himself referred to the use of offensive capacity to act against the ANC and the speculation - sorry, the anticipation of the unlawfulness of the envisaged actions against members of the UDF and ANC was recognised in this document and I quote from paragraph 17.  It was noted that -

MR LYSTER: "... it would be practically impossible to indemnify from prosecution such a huge group for steps taken against members of the ANC and UDF".

MR LYSTER: Now, Chairperson, that sets the scene from the very outset in a document put together during December 1985, even before the operation has been fully discussed and implemented.  At that stage they are anticipating unlawful actions flowing from the project and this is a theme that runs through the documents or perhaps the documents are infected with it from start to end, culminating in reference during 1988 to protection in terms of the Defence Act against charges that may arise which carry the death penalty.  It was also suggested in the same document that some sort of security structure could be set up through which offensive actions could be taken against the UDF.  Now such a structure wouldn't make these actions

MR LYSTER: /legal

MR LYSTER: 3A legal all of a sudden and indeed there was no suggestion that it would.  Such actions would be unlawful regardless of what structures they are clothed in.  By way of example, the police are not in a position to simply go out and attack people to take initiatives offensively.  They have to act within the confines of the law and within the confines of the Criminal Procedure Act and they are taught that law.  These trainees were never taught that law.  However, the security structure would have been of practical assistance insofar as it would act as a cover for their offensive operations and indeed the trainees were issued with fake security company ID cards and several were issued with false KwaZulu Police appointment certificates and this permitted them to get away with murder;  it permitted them to escape detection.  In the same document, the protective and the offensive capacities were clearly distinguished as separate entities.  Now the obvious question which ought to be raised is, if we were to believe and accept the argument that this group was simply going to carry out purely protective and lawful duties.  Why then did the State simply not increase this capacity in the KwaZulu Police or establish a properly constituted and open above board community guard or reserve guard system?  Why come together with a highly clandestine covert system which is called "offensive"?  Now as will become evident, the KwaZulu Police was to be expanded in any event as part of the wider package, so they had another purpose in mind with this clandestine operation.  As the Chief of Army, General Liebenberg has conceded in his evidence in the Malan matter, no civilian force may act offensively, so again the question, why

MR LYSTER: /train

MR LYSTER: 3A train civilians offensively?  Liebenberg said, "Well, it was a grey area" and he thought they were destined for the KwaZulu Police or the military, which then begs the same question, why were they simply not trained in the KwaZulu Police or in the military and deployed in the police or the military as normal soldiers or police people?  But the documents are quite clear, they were destined for Inkatha, nowhere else.  Two and a half years later, many were placed into the KwaZulu Police, but for very different reasons, as we will see.  Buthelezi's requests were then placed before the State Security Council at a meeting on the 20th of December 1985 and three Minister, Malan, Le Grange and Heunis were tasked with establishing a security force for Buthelezi.  A sub-structure of the State Security Council was appointed to investigate the implementation of this decision and a sub-committee was drawn, appointed to draw up a detailed report and if one looks under 4.1 at the notes of a member of the sub-committee of the interdepartmental committee, in his handwritten notes he made, he set out who would provide the protective support and there he says Buthelezi and VIP protection.  He attributes that to the South African Police and National Intelligence, the groups that normally supply such protection.  Then he has a heading, "Inkatha against UDF" and that is to be supplied by the SADF and DST or the SADF's DST and that I believe is indicative not of protective support to Inkatha, that is offensive.  The sub-committee report which was eventually produced in January 1986 distinguished, as previous documents had, between the two capacities and called for the following requirements of Buthelezi to be met.

MR LYSTER: /(a)  personal

MR LYSTER: 3A (a) personal protection;

MR LYSTER: (b) protection of other selected VIPS;

MR LYSTER: (c) an offensive paramilitary element;

MR LYSTER: (d) enlargement of the existing KwaZulu Police Force;

MR LYSTER: (e) a conventional or ceremonial force;

MR LYSTER: (f) a national security management system and an intelligence services;  and

MR LYSTER: (g) the authority to issue firearm licences.

MR LYSTER: So a wide range of support, including protective and offensive measures and as mentioned, it was confirmed in that report that the SAP and intelligence would supply the protective measures and the SADF would create "an offensive paramilitary element and a conventional force for KwaZulu".  That was then sent to a meeting of the interdepartmental committee and this meeting is very interesting, because according to a military document, there was a debate at this meeting around whether in fact Inkatha should be supplied with an offensive paramilitary element as set out in the sub-committee report and there was some dispute, it seems.  Dr Barnard of National Intelligence and Dr Van Wyk of the Department of Constitutional Development objected and argued against it and they were then countered by the KwaZulu and police and military representatives.  It was argued that Inkatha was already taking paramilitary steps which were being conducted unprofessionally and carried high risks and the planned paramilitary steps were only a small part of the political, economic and welfare psychological actions.  A compromise was extracted and the following recommendation was made, that -

MR LYSTER: /"The

MR LYSTER: 3A      "The creation of a paramilitary element must be investigated at the highest political level and clarified with the Chief Minister".

MR LYSTER: So the highly sensitive issue of whether to authorise the creation of a paramilitary element, an offensive paramilitary element was then placed squarely before the State Security Council.  Now Dr Neil Barnard who released a public statement before he appeared before a Section 29 hearing confirmed in this statement that he opposed the creation of an offensive paramilitary unit for Inkatha, because, and I quote -

MR LYSTER: "... it would lead to a further increase of the military conflict in Natal and the result would be more loss of lives ..."

MR LYSTER: and he also noted ... (intervention)

MR LYSTER: MR   (?): Mr Chairman, sorry.  We haven't got that document.

MR LYSTER: That document will be made available to you.  It was issued about three weeks ago and it was printed extensively in the national press.  A document will be made available to you after this hearing.  Please continue, Mr Varney.