Special Hearings — Caprivi Hearings — 1997-08-14

MR LASSIDGE: Very well.  Paragraph 18 at page 8 of the section 30 notice, dealing with the signal sent from Malan's office to Pitter and Geldenhuys on 31 August 1988, and which deals with the meeting between M Z Khumalo and Malan on 30 August 1988.  The portion of the signal which has been extracted and translated from the Afrikaans text reads as follows.
"Experiencing serious problems in respect of persons who must temporarily be
 /withdrawn
withdrawn from communities."
This is completely inaccurate, we submit, misleading and prejudicial.  The Afrikaans text refers to the singular, in other words one person who must be temporarily withdrawn from the community.  If the Commission has due regard to the evidence of M Z Khumalo in the Malan trial they will have a more balanced approach in interpreting this document, we submit.  
As an aside, Mr Chairman, if I recall correctly Mr Khumalo talks about David Zweli Dlamini in his evidence, and more or less what Mr de Vos has indicated is in line with Khumalo's evidence in that regard.
The effect of the allegation that Dr Buthelezi was involved in the cover up of crime, and the incorrectly translated statement is to create the suggestion that Dr Buthelezi was involved in hiding a number of persons from justice.  There has been absolutely no evidence to suggest this.
Another example of grave concern to us is that at page 2, paragraph 3 of the notice Groenewald remarked further that,
"Although you wanted to take the struggle to the ANC in Lusaka you did not at the time have the capacity to do so."
The Afrikaans text reads as follows, and I would request the interpreter not to translate it.
"Hy sal dit selfs oorweeg om die ANC die stryd in Lusaka aan te se, alhoewel hy tans nie oor so 'n vermoe beskik nie."
We believe that the correct translation should be he would even consider taking the struggle to the ANC in Lusaka, although at present he does not have the means to do so.   /We submit
We submit that this is nothing like the allegation that Dr Buthelezi wanted to take the struggle to the ANC in Lusaka.  He was considering this as an option according to the document.  
The two problems we have with this allegation in the notice is, firstly, as we have pointed out, it is inaccurate and misleading in respect of its translation.  It suggests that, as we have said, Dr Buthelezi wanted to take the struggle to Lusaka, and was only limited by virtue of his resources.  This, we submit, is completely out of line with our understanding of this text.  Secondly, as we have said, it is taken out of context.  Why did the allegation not include the previous sentence?  Perhaps the interpreter would like to translate this.
"He also remarked that although he was a proponent of a peaceful solution the ANC must realise that if it uses violence against KwaZulu the Zulus are also capable of violent action against the ANC."
We actually believe we are being generous in pointing out this quote, which you have placed in this document out of context.  To take it further we quote from page 2 of the relevant secret document.  Perhaps the interpreter could interpret here, and I quote.
"The impression was not gained that the Minister was using this as a threat."
This is in reference to the idea that Inkatha members would take the law into their own hands, and I quote again in Afrikaans.
"But that he was seriously worried about
 /such a
such a possibility."
Now, surely that indicates to the Commission that the Chief Minister, as he then was, was all for maintaining a lawful and orderly state, and not to propagate or support hit squad activities.  
We have, as I stated at the outset of the submission, dealt seriatim with each of the allegations in the notice in a schedule which is attached hereto.  It is significant that this Commission is not in a position to lead direct oral testimony of Dr Buthelezi's support of hit squad activities.  There is nothing in any of the documents or any testimony which directly implicates Dr Buthelezi in hit squad activities.
It reflects the very heart of Inkatha's objection to these proceedings that we submit that no prosecutor would have ever dared to frame such a charge sheet, as he would have well known he did not have the evidence to support his allegations.
If we may now turn to the evidence led before this hearing.  Although it has been repeatedly stressed that the proceedings were not conducted in the form of a trial, and that certain hearsay evidence will be admitted, and that cross-examination will be limited, it is nevertheless trite that they are subject to the rules of natural justice due to the restricted time allocation, and it was inevitable that cross-examination would be of a limited nature.  In our view for the Commission to deal substantively with the evidence of witnesses who testified cross-examination ought not to have been limited in any manner.  It is respectfully submitted that cross-examination of witnesses is the only accepted tool in the
 /search for
search for truth.  As we have said, given the limited time available, and the restrictions that flowed therefrom, the right to cross-examine could never be exercised to its fullest extent.  In such circumstances this Commission will never, we submit, achieve its stated object as framed in the Promotion of National Unity and Reconciliation Act, and we refer to section 3, which we quote.  That is,
"To promote national unity and reconciliation in the spirit of understanding which transcends the conflicts and divisions of the past by, inter alia, establishing as complete a picture as possible of the causes, nature and extent of the gross violations of human rights which were committed during the period from 1 March 1960 to the cut off date, including the antecedents, circumstances, factors and context of such violations, as well as the perspectives of the victims and the motives and perspectives of the persons responsible for the commission of the violations, by conducting investigations and holding hearings."
In respect of the witnesses who have testified we point out that all of them are self-confessed murderers facing long terms of imprisonment.  They have every reason to lie in an endeavour to seek amnesty and to claim that leaders with Inkatha and the KwaZulu Police encouraged unlawful activities.  This would be the surest way of them attaining amnesty.  Furthermore, our attention has
 /recently
recently been drawn to certain information regarding what we would term private, as opposed to political, criminal activities.  We have been advised by Mr MacAdam that Superintendent Marion - and I apologise to Marion for the incorrect spelling of his surname here - will draw the relevant files and disclose this information.  Save to say at this stage we believe that the following committed such private crimes whilst members of the alleged hit squad:  Israel Hlongwane, Romeo Mbambo and a Constable Shangase, who we believe is serving 21 years for a hijacking and murder.
As we have said, all of the witnesses are self-confessed murderers, and we add here liars, and we do not need to go into too much detail in regard thereto, but for ... (inaudible - end of Side B, Tape 3) ... and who pleaded not guilty at his trial.  It was only when Mkhize was convicted, and the proverbial chips were down, that he then decided to come clean in order to secure a lighter sentence, we submit, by attempting to relieve himself of the moral blameworthiness for his conduct, and blame high-ranking officials.  One must therefore question his bona fides in this regard.
We can say the same for witnesses such as David Zweli Dlamini, who has to date never faced any charges as far as we know in spite of the number of killings he admits to being involved in.  He has everything to gain by getting amnesty, and everything to lose by not being granted amnesty.
Of significance, we submit, is the role of Dalakholo Luthuli.  It is common cause that he was an operative of Umkhonto we Sizwe, and served some time in prison for such
 /activities.
activities.  It is also common cause, and in this instance we refer to the evidence of M Z Khumalo, that Luthuli was appointed as a political commissar in the Caprivi in order to maintain the morale and ideological state of mind necessary for Inkatha supporters.  We submit that it is open for this Commission to find that Luthuli took it upon himself on his return to the area of KwaZulu-Natal with the trainees to become, as we would term, the supreme commander of the trainees.  Given Luthuli's background it would not be surprising if he was single-handedly involved in directing certain elements of the trainee group in perpetrating unlawful hit squad activities.  Luthuli has every reason to lie.  He misled the Goldstone Commission.  We submit that he was not entirely frank in the Mbambo trial, and relied, in the face of his professed desire to come clean, on the provisions of section 203 of the Criminal Procedure Act, which entitled him not to answer questions of an incriminating nature.  One would have thought that if Luthuli was motivated by his desire to tell all in the spirit of truth and reconciliation, which commenced after the foundation of the TEC, as he states, then he would have surely told all at the Mbambo trial.  It is clear from the prosecution that they were prepared to indemnify him in respect of certain counts, which begged the question as to whether or not Mr Luthuli ought not to have discussed other issues with the prosecution.
Our clients also express concern about the manner of investigating violence in KwaZulu-Natal.  The perception gained is that this is a one-sided tribunal, with the focus entirely on Inkatha and the erstwhile KwaZulu Government.  It seems to our client, and we believe
 /rightly so,
rightly so, that this Commission, with the greatest of respect, is not endeavouring to investigate activities perpetrated by ANC/UDF cadres during the same period in question.
We believe that a statement was made to the media by members of this Commission to the effect that Inkatha has not come forward with any information on such activities.  Mr Chairman, perhaps I am incorrect in that submission, but that's as our understanding of it is.  We dispute this, and refer in particular to the lengthy submission, which Mr Falconer has already referred to, put forward by the Inkatha Freedom Party to this Commission, which is dated 5 September 1996, and which sets out numerous and detailed instances of activities against Inkatha members and leaders.
I pause here to state, Mr Chairman, that since 1985, and up to 5 September 1996, 422 leaders of Inkatha were killed.  This is only the leadership we're talking about, and their details are set out in this submission, together with other members of Inkatha who have been killed or attacked during that period.
In conclusion we draw the Commission's attention once again to the provisions of section 3, which I have already quoted, and we hope and we urge that the Commission will follow this approach as set out in the founding legislation, and to this end change the perception of our clients that no investigations of any substance are being undertaken in respect of activities by the ANC/UDF cadres during the relevant period.
Of further concern are the provisions contained in section 7 of the said Act, and we refer in this regard to
 /section 7
section 7 (2) (b), and I quote.
"The Commissioners shall be fit and proper persons who are impartial and do not have a high political profile."
In our respectful submission persons such as Dr Boraine, who sat in on these hearings for the first few days, ought not to be on this panel.  We note that objections were raised by our learned friends as to his presence at these proceedings, and we endorse those.  Dr Boraine has been a well-known figure in politics over the last two decades.  There can be no doubt that Dr Boraine is a person with a high political profile.
The decision arrived then by the Court in S v Msani and Others was based on tested evidence, on evidence that was subject to cross-examination and careful evaluation.  We accordingly submit that it can be accepted as an incontrovertible fact that the training was not unlawful.
Thank you, Mr Chairman.