Special Hearings — Caprivi Hearings — 1997-08-14

MR WILLS: Yes, indeed there is.  I will be as brief as possible, Mr Chairperson.  Thank you for this opportunity.
Mr Chairperson, Member of the Committee, the first comment that I want to make, and that is that a lot of the evidence and argument contained in the legal teams for the old government authorities seems to be based on what I would consider to be the propaganda of that particular era.  For example, they refer specifically to people - certain elements of terrorists, and the threat against Dr Buthelezi, that the ANC and its internal wing, the UDF, was consistently attacking the Inkatha territories and buildings.  
I am sorry, Mr Chairperson, I am getting an intermittent signal, I am not sure if I am being recorded.  This is - it's actually quite disturbing.  It's going on
 /and off
and off in my ears.  (Pause)    Thank you, that's much better.
What I would like to say is that with the purposes that the Commission has before it, ie, to uncover the truth, that their argument that, for example, Dr Buthelezi had to be protected, based on what I would submit may well be propaganda, the National Party propaganda concerning the armed attacks and such like, the basis of that assertion has to be looked at, and I submit it's up to the Commissioner to look at that.  I am not suggesting that there was no violence at that time, but I certainly think that a particular slant has been put on this - in the submissions, where we are led to believe, for example, that there was a serious guerilla war emanating from outside our borders, and was just about to take over the town at that time, but that clearly wasn't the case.
In the same regard, Mr Chairperson, I submit that it is not common cause that the IFP was being subject to attacks, and it's clearly not common cause that the ANC started these attacks.  And those are the sorts of issues.  I can't tell you who did those sorts of things, but clearly from my point of view, and from the clients I represent, that isn't common cause, and I would submit that if arguments based on that assumption are going to be considered by yourself that you look into the basis of those arguments.
Another thing that I want to refer to was raised by counsel this morning concerning the defensive nature of the training as portrayed by my clients and the clients of Mr Stewart, and I would submit, with the greatest respect to my learned friend who raised this point - I believe it
 /was Mr Coetzee
was Mr Coetzee - that this is in fact a selective reading of the evidence.  My clear impression was exactly the opposite.  The full training - the major purpose given by all of those witnesses was to kill and eliminate the ANC, and this has also gone beyond this hearing, and I again refer to the record of the Msani trial at page 4413, when Khumalo states there - that's B Khumalo, states that people were told that they were attacking Hani and Thambo in the Caprivi training.
Another aspect that I'd like to submit is not accurate - I think this matter was raised by Mr Maritz - and that is that the impression he gave the Committee was that the violence, or the illegal activities of the Caprivians, only commenced when Gina Mkhize got involved post 1991.  Now, clearly that isn't the evidence that I have before me on the documentation and on the evidence of Mr Luthuli.  I see clearly that both Mr Luthuli and also Mr Dlamini were involved in violence from as early as 1987.  So, to suggest that their activities only started in 1991 is in fact factually incorrect.  Whilst I do concede that Mr Mkhize only started unlawful activities in that time, one cannot draw the inference from that that there was no other persons who didn't act unlawfully prior to that.
The last and most important aspect of my reply, I submit, Mr Chairperson, is I have been criticised by two counsel, Mr Visser and Mr Maritz, in respect of my submission that the past security forces, to quote them loosely, should be held criminally liable, and Mr Visser went - sorry, Mr Maritz went as far as to say that the Committee did not have the capacity in terms of the Act to
 /hear that
hear that argument, or even to consider it.  With the greatest respect to Mr Maritz I submit he's wrong, and I refer to the Committee to section 14 (a) read with section 4 (a) (v) of the Act, and I quote.  I won't quote section 12, it just empowers the - section 12 empowers this Committee to look into the items raised under section 4, the functions of the Commission, and I specifically refer -
"The functions of the Commission ..."
I am quoting from section 4.
"The functions of the Commission shall be to achieve its objective, and to that end the Commission shall, (a) facilitate and where necessary initiate and co-ordinate inquiries into ..."
Now, Mr Maritz implied that the limitation - you were limited to what was said in subsection (iv), ie, the question whether such violations were the result of deliberate planning on the part of the State.  I realise that is part of your mandate, but I refer you specifically to section (v) of section 4 (a), which says you must enquire into accountability, political or otherwise, for any such violation.  I would therefore submit that my submission that you look into the possible criminal liability through negligence on the part of these persons is not ultra vires.
Continuing that argument, from my learned friends I have had a lot of criticism - words used as preposterous and ludicrous if my memory serves me well - about that argument.  Now, as I understand the basis of my learned friends' argument against my proposition that there was
 /foreseeability,
foreseeability, I understand them basically to say that what happened in 1986 - it would have been impossible for any of their clients to have foreseen what happened later on, and I make these submissions in counter to that argument. 
First of all I'd like - there are certain serious questions that I've got in regard to command and control.  People have made comments that if my argument is accepted then every national serviceman or every soldier trained, if he does something wrong it would be the responsibility of those who trained him.  That is a misunderstanding of my argument and a gross simplification of it.  Basically what my argument is, is that if you train a person, and then you - once you utilise those skills you are obliged to put that person under command and control purely for the purposes of preventing potential unlawful activity.  And to that extent I would have submitted that it would have been essential for people to be so - trained in such deadly skills to be incorporated immediately into some structure on their return to South Africa.  Had they not been - they had not been incorporated, and we've had certain reasons for that.  I submit those reasons cannot be accepted.  
Mr de Vos commented, and I submit he is correct in this regard, is in those days the army could do things properly - sorry, could do things quickly.  We have a period where these people are trained for six months.  We have knowledge that they are going to be returning to KwaZulu-Natal.  I cannot accept that the army could not have arranged - made arrangements for them to be put in a position where they were properly housed, controlled and
 /organised.
organised.  Now, there's a number of options available.  They could have immediately been put into the KwaZulu Police.  Now, there's arguments against that, arguments of financial nature, but again my understanding from the documents that I've perused, specifically that of the statement by Luthuli, is that these people were paid financially up until as late as 1991.  Now, that seems to me to indicate that even if the budget was switched they could have been paid in the KwaZulu Police.  They could have been put into 121 Battalion.  I have serious doubts, or I have serious questions raised as to why they were not controlled, and I submit that the army is liable for that.
The notion that the army, or the co-ordinators of this training were expecting them to go into the KwaZulu Police?  Well, my argument on that is that if you are going to train such a powerful force then you must ensure that the whole plan is co-ordinated to the end.  To think that they thought that they were going to be in the KwaZulu Police, and in reality that only eventuated much later, to my mind is not an excuse.
But it's not as simple as that.  I submit that it's not just that they were left alone when they returned.  I want to refer to little bits of the evidence that has come out over this hearing, and I am sure that with the evidence that you have before you through other hearings and amnesty applications, you will have a lot more than what I've got here.  It appears to me that these people were returned, and then they weren't left alone by the police and the army authorities, they were actually in a very covert way nurtured by them.  For example, there's evidence of Detective Warrant-Officer van Vuuren of
 /warning
warning Israel Hlongwane of his arrest, and that's in his statement.
There's evidence of Major Terblanche of the SAP Riot Unit supplying weapons to Mr Luthuli.  Or should I rather say supplying ammunition, would be more accurate.  There's evidence of Terblanche and the person who's been referred to as Polbury - I believe from Military Intelligence - meeting frequently at the Polo Pony Hotel with Dalakholo Luthuli.  There's information about an MI front company called Creed, which played a certain role according to Luthuli's statement.  There's evidence that Brigadier van Niekerk and Major Louis Botha, apart from attending the passing-out parade, were involved in what Mr Luthuli refers to as the planning committee.   And also there's evidence that these people were actually paid.   And the issue of payment, I can't say myself from the papers that I've seen where that payment actually came from, but I certainly think that it's an issue that this Committee, with respect, should investigate to find out exactly where that payment came from, and for how long it lasted.  Clearly there was co-operation between Inkatha and Military Intelligence long after the return of these trainees when - as is indicative in all of these arguments.
In short, Mr Chairperson, my submission is that whilst the trainees were told to avoid the police and the army, that cannot be regarded as all police and army.  I think a sensible interpretation of this is that there were certain aspects of the police and the army which knew about this operation, and clearly there were close ties with these people.  Because of its covert nature the whole
 /operation
operation was not spread around all the security forces, and hence a lot of people would not have known about it, but in short I submit and I maintain my submission that in fact the army and the security forces who started this are liable by the - by virtue of they must have foreseen what they were doing.  
Just a very short analogy, and it pertains to the law relating to wild animals.  If you have a wild animal, and you train it to kill, and by the time you bring it to your house you don't have a cage for it, and it goes out and kills somebody - as has happened in this instance - you can't go then and say, "Sorry, the arrangements for the cage to be delivered were delayed, or we didn't make it."  You have an obligation to control what you create, and I submit that the Defence Force and the security forces in general have failed in that regard.
Briefly, in reply to the submissions made on behalf of Inkatha, the thrust of their attack on Mr Mbambo and Mr Mkhize is that they are criminal liars.  It's easy to say that through counsel on paper.  No version has been put to our client.  Nothing that they've said has been disputed in any intelligent way whatsoever.  They have just taken the easy way out and said that they're liars, and I submit that submission cannot be accepted by the Court - sorry, by this Committee.  It's clear that Mkhize and Mbambo were prepared to subject themselves to long cross-examination.  I went on record as saying that I agreed with counsel that people can cross-examine.  They were prepared to sit there for any length of time to be cross-examined.  
But that isn't the point, and I agree with a comment
 /made by
made by the Chairperson earlier that, whilst there was limited time for cross-examination, much of that limited time was not in fact utilised by persons available.  And I submit that this is particularly pertinent in regard to the IFP's attack on my clients.  I submit that this - that the submission that they were lying cannot just hold any water whatsoever. 
Finally I am, in the absence of Mr Stewart, going to make one comment as regards the IFP's allegation regarding Mr Luthuli.  For the IFP to submit that one man can control the resources, and to control all of those people in Natal, without any support from the Inkatha Freedom Party whatsoever is, I submit, ludicrous in the extreme.  And again it's a bare denial without any substance, so I submit that that also should be not treated very seriously by this Commission.  Thank you.