Special Hearings — Caprivi Hearings — 1997-08-06

MR FALCONER: Thank you, Mr Chairman and members of the Commission.  My name is Patrick Falconer.  I act on behalf of the Inkatha Freedom Party and Minister Buthelezi.
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1A Certain events which Mr Lasich and Mr Macadam have alluded to took place after this Commission adjourned yesterday, which we find extremely disturbing.
At 7.00 pm last night I was telephonically contacted by a journalist who identified himself as Allan from Reuters.  He notified me that a press conference had been held here after the Commission had adjourned and that certain questions were put to Mr Luthuli which incriminated Minister Buthelezi.  In fact he allegedly answered a question stating that Minister Buthelezi must have been fully aware of the hit squad activities.
I am also advised that at 8 o'clock last night and in subsequent news broadcasts on the SABC, including the Zulu news broadcast similar reporting was made.  I have managed to acquire the introduction portion of the SABC 8 o'clock news broadcast last night and I wish to read a portion of that.
"Former IFP hit squad leader, Daluxolo Luthuli says there is no way that Inkatha leader, Mangosuthu Buthelezi could have been unaware of the killings committed by the Caprivi trainees in KwaZulu-Natal in the mid eighties".
I am presently awaiting video footage of all of the news broadcasts.
As the legal representative for Mr Luthuli says, all he did was say certain things in clarification.  Unfortunately our recollection does not go to any evidence of this nature having been tendered before this Commission.  He clearly exceeded what he had told this Commission.
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1A In our view, Mr Chairman, this conduct constitutes a prima facie offence, a violation of the provisions of Section 39(a), (b) and (c) of your Act and I'll read 39(c) -
"Any person who does anything in relation to the Commission which, if done in relation to a Court of Law, would constitute contempt of Court".
We submit that Mr Luthuli's behaviour and anyone who may have advised him to so behave constitutes a criminal offence.
I have had opportunity to take instructions from Minister Buthelezi this morning.  He has asked me to voice this objection.  He has informed me that he is astounded by the allegations that have been made and he vehemently denies any implication or knowledge with the hit squad allegations.
Mr Chairman, I would like to just take this opportunity to point out that a further difficulty which we have is that many high profile people in this country, of influence, are being implicated in allegations.  Once such statements are made it constitutes irreparable damage, no matter what apologies are made thereafter.
We accordingly request that those involved act more responsibly and not permit certain statements to be made to the public until such time that this Commission has had an opportunity to properly evaluate all the evidence and make its findings.
In the circumstances we require, before continuing and participating and lending this Commission our co-operation, an unconditional undertaking from Mr Luthuli
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1A and those instructing him - advising him, at least, that they shall not make any further such statements until the Commission makes its findings or a report.  We require a ruling from this Commission to the effect that a directive be issued to all witnesses and the media that no such conduct shall be tolerated in the future and an apology from Mr Luthuli and those advising him for his improper conduct.  We would also appreciate a proper explanation as to what exactly transpired.
Thank you, Mr Chairman.
MR   (?): Sorry, Mr Chairperson, obviously the parties I represent are potentially in a similar category and I would just like a further explanation from the representatives of the IFP as to the basis for the allegation that Mr Luthuli is guilty of contempt of Court.  My understanding of the provisions of the Act are entirely the contrary.

MR LYSTER: Thank you.  I don't want to enter into a legal debate between two representatives at this forum.  I am going to take a minute to discuss that with my colleagues and we will reply to Mr Falconer.

MR FALCONER: (?)   Thank you, Mr Chairman.
MR   (?): Sorry, Mr Chairman.  One further thing that I would like to have considered in the discussions that you have with your fellow committee members and that is, is that like Mr Luthuli, my clients are here to tell the truth.  They see this forum as an opportunity to let the public know exactly what happened in their histories and I would certainly be very surprised if any decision was taken that thwarted that process in any way.  Thank you.

MR LYSTER: We'll take a five minute adjournment.  Please
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1A don't leave the room, we're going to adjourn for five minutes and we'll be back.
BRIEF ADJOURNMENT
ON RESUMPTION

MR LYSTER: Thank you.  We've had an opportunity to discuss this matter during a short adjournment.
Mr Falconer raised four issues relating to -
(1) an undertaking from Mr Luthuli that he would not make such statements or take such action again;
(2) a ruling from the Commission that witnesses should not in the future do what Mr Luthuli is alleged to have done yesterday;
(3) an apology from Mr Luthuli;  and
(4) a proper explanation from Mr Luthuli and his counsel as to why this took place yesterday.
With regard to (1), (3) and (4), that's the undertaking from Mr Luthuli, an apology from Mr Luthuli and a proper explanation, the Commission clearly cannot play a part in this at all.  This is something which Mr Falconer should take up directly with Mr Luthuli and his counsel and I would advise him to do that at a later stage.  It is not something which the Commission can involve itself in at all.
With regard to (2) a ruling from the Commission that witnesses should not engage in this sort of behaviour.  We must realise here that we are dealing with competing rights, rights of Mr Luthuli;  the rights of Mr Buthelezi and the rights of the press and these are equal rights that these various people enjoy.  This Commission is committed to transparency and we feel that we are not able to make a ruling which would seek to in any way muzzle the
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1A right of Mr Luthuli to say what he wishes to say.  It should be borne in mind that these issues can be taken up with Mr Luthuli when he is cross-examined and counsel for Minister Buthelezi and the IFP will have a full opportunity to rebut these allegations in public.  So the Commission cannot make a ruling with regard to the second issue raised by Mr Falconer.
And finally, if there is a feeling that there has been a breach of Act 34 of 1995, then this is obviously something which Mr Falconer and his client should take up with the SAP.
I think that is all I need to say at this stage.