Special Hearings — Caprivi Hearings — 1997-08-14

MR DE VOS: In our submission this clearly indicates that what was envisaged was a legal paramilitary force who could act in a protection role in a proper structure.
Then I am going to the next document in the bundle.  After this there was a meeting, State Security Council meeting, dated the 20th of December 1985.  The request by the Chief Minister was discussed at a meeting of the State Security Council on the 20th of December '85 under the chairmanship of President P W Botha.  It was decided by the meeting - and I am going to quote the Afrikaans from the minutes.
"The security of Chief Minister Buthelezi and KwaZulu.  Minister Heunis, Minister Le Grange and Minister Malan must give assistance to Chief Minister Buthelezi so that a security force can be established in KwaZulu.  Chief Minister Buthelezi must have available additional security personnel and security measures, especially in view of the deteriorating security situation in Mozambique, which could allow larger numbers of ANC terrorists to operate the
 /borders of
borders of Northern Natal."
Close the Afrikaans quote.  General Groenewald testified that before this meeting he was requested to see General Malan, and he discussed the contents of Chief Minister Buthelezi's request with General Malan, using his own letter dated the 27th of November 1985, as well as the telex dated the 9th of December '85, as the basis for his discussion.   The document dated the 19th of December '85, prepared by van Niekerk, was not used to brief Minister Malan.
Evidence was also given in the Msani trial that this point on the agenda was introduced by Minister Heunis, who was the then Minister of Constitutional Affairs, and under whose authority self-governing states resorted.  No specific details were available to the SSC as to what Dr Buthelezi's requirements were at that stage, except that his life was in danger.
A meeting thereafter took place on the 9th of January 1986 between Chief Minister Buthelezi and Ministers Heunis, Malan and Le Grange, as well as Dr Dlomo, Brigadier Laas and Colonel Mathie.  Now, the last three people, Dr Dlomo, Brigadier Laas and Colonel Mathie were all attached to the KwaZulu Police at that stage.  After submitting his reasons for protection as stated above a head committee and subcommittee was appointed.  I must mention this document, the 9th of January '86 meeting, was also referred to in the exhibits been handed in in the Msani trial.
Now, this head committee that was appointed consisted out of Dr van Wyk of Constitutional Affairs, Dr Barnard of National Intelligence, General Coetzee of
 /the South
the South African Police, General Geldenhuys - van der Westhuizen, sorry, of the State Security Council, General Major Groenewald of the SADF, Mr Kobus du Toit Bosman, KwaZulu, and Brigadier Laas, KwaZulu, and Colonel Mathie of KwaZulu.  The head committee appointed a subcommittee, which consisted out of the following persons.  In other words they delegated their work to the subcommittee, and it consisted out of Mr Myburgh of Constitutional Affairs, Mr Voskenk of Constitutional Affairs, the secretary, General Groenewald from the Defence Force, Brigadier Verster, SAC, Colonel Marais, SAP, Mr J Kemp, National Intelligence, Mr Velgemut, National Intelligence, Mr K du Toit Bosman, KwaZulu, and Colonel Mathie on behalf of KwaZulu.
Now, the head committee instructed the subcommittee to investigate the following aspects - see the subcommittee's report, paragraph 9 of the documents before this Commission, dated the 15th of January 1986, Exhibit E2, page 56, paragraph 6 - and the instructions in this document reads as follows.  I'll quote from the Afrikaans.
"The creation of a national intelligence service for KwaZulu;  the creation of a paramilitary unit;  the training of 500 additional police;  the possibility of Chief Minister Buthelezi, as Minister of Police of KwaZulu, issuing firearm licences;  financial implications."
I close the Afrikaans quote.  
Brigadier van Niekerk was then called upon by General Groenewald to assist the subcommittee in its
 /preparation
preparation of its report.  The subcommittee had to make recommendations to the head committee on the 16th of January 1986.  Now, see also in this regard a handwritten note that does also not form part of the documents before this Commission, but which was handed in as Exhibit E2, page 34 and 35, in the Malan trial.  Now, that document sets out the head committee, subcommittee, and what the subcommittee's instructions were, and it also has a reference that they would have to report back by the 16th.
The subcommittee that was appointed then met with Chief Minister Buthelezi on the 14th of January 1986 at Ulundi.  See paragraph 1 of the subcommittee's report.  The subcommittee's report prepared by Mr Myburgh, the Chairman, contains the following important aspects.
(1)  In order to protect Chief Minister Buthelezi's power base the assistance must be clandestine or covert.  It should be done on a need-to-know basis.
(2)  Certain paragraphs contained in the Cor van Niekerk appraisal dated the - there's a mistake there - the 19th of December '85 corresponds exactly with the wording of the subcommittee's report.  It must therefore be inferred that the subcommittee had access to the 19 December '85 document when the subcommittee report was prepared.  This won't be unusual because Groenewald sort of incorporated him into the workings of the subcommittee.
(3)  Paragraph 9.  An appraisal and a plan can only be made after discussions with Chief Minister Buthelezi as to his needs.  That's what they say in that report.
(4)  The Chief Minister's present needs are already including the training of personnel for the protection of VIPs, the creation of a national security system, the
 /training
training of additional police, and an offensive capability to act against the ANC, and the need for a paramilitary task force.
(5)  Paragraph 12.  Proposed certain statutory amendments.
(6)  Paragraph 19 stated, under the heading of conclusions - there again the needs of the Chief Minister was again summarised. 
The subcommittee's report was then handed to the head committee on the 16th of January 1986, as appears from that letter written by Groenewald dated the 17th of January to Pitter to inform him what transpired there.
Now, the report prepared by the head committee was thereafter submitted to the State Security Council, and this report of the head committee was attached to the State Security Council meeting of the 3rd of February '86.  Now, item 3 (b) of that minutes of the State Security Council meeting refers again to, 
"The security of Chief Minister Buthelezi in KwaZulu."
At this meeting,
"Minister Heunis reported to the meeting about arrangements which had been made in this regard.  The meeting notes and approves that Minister Heunis proceed with the recommendation as set out in the attached appendix A to the minutes."
Now, we also wish to point out that annexure A does not form part of the documents received by my clients from the TRC.  A perusal of this document, however, shows that what was recommended was that Ministers Heunis and Malan - we
 /got access
got access to this annexure through some other source.  It reveals that what was recommended was that Ministers Heunis and Malan - I quote,
"... must conduct a discussion with the Chief Minister to make a proper appreciation of his needs and intentions with the paramilitary element."
Close quote in Afrikaans.  
Mr Varney, in his Marion report, states it as a fact that the subcommittee's recommendations was accepted by the SSC, and that it was approved.  This submission is incorrect.  The head committee did not accept the subcommittee's report, nor did it reject it.  The proposal was that the two Ministers - and now I am going to give my own translation of what was said in annexure A - I quote,
"... would have a discussion with the Chief Minister in order to ascertain his needs and aims with such an element."
Varney's further submission that permission was granted a the highest level is also incorrect.  No final decision was taken by the SSC.  The matter was referred to Ministers Heunis and Malan to investigate - and I want to stress investigate again - and to find out what exactly Buthelezi's intentions was with this paramilitary element.  See in this regard Varney's report, page 76.
To summarise the outcome of both the head committee's meeting of the 16th of January '86, as well as the State Security Council meeting of the 3rd of February '86, it can be stated that no final decision was taken, either by the head committee or the State Security Council.  
 /Varney's
Varney's attack on Judge Hugo in this regard is, with respect, also unfounded.  Varney states in his report, 
"Although Hugo J referred to this paragraph in his judgment he made no attempt to assess why the matter had to be cleared at the highest level."
See record, page 77.  As pointed out above the SSC referred the matter back to Heunis and Malan to investigate.
Varney concludes his argument about these events by stating,
"The State Security Council was seized with the issue of whether to authorise the creation of an offensive paramilitary unit for Inkatha."
See record of his Marion report, page 78.  It is obvious from what was said above that the offensive paramilitary element was not even discussed by the SSC.  Varney goes on and says, 
"They followed the head committee's recommendation and referred the matter to the highest political level.  Although the SSC members deferred the decision it is apparent that the body supported the initiative.  The minutes do not indicate any objection or dissent, or an endeavour to stop the operation.  Nobody present at the meeting has to date distanced themselves from the decisions made on the 3rd of
 /February 1986.
February 1986.  If such details had been disclosed at an earlier stage an unquantifiable number of lives could have been saved, particularly in the early 1990s, when the full offensive force of the Caprivi trainees was unleashed.  All present are accordingly accountable for the acts of murder and mayhem that flowed from the creation of the project."
  We say Varney's submission in this regard is, with respect, totally unfounded and untrue.  This is particularly clear if one compares what is said at the bottom of page 77 and the top of page 78 of his report.  He alleges that annexure A, the recommendations of the head committee, reveals that the two documents are almost identical.  Exactly the opposite is true.  The subcommittee's report incorporate portions of van Niekerk's document dated the 19th of February '85.  There are no minutes of the head committee's meeting.  In his haste to incriminate the SSC and the Cabinet he misleads this Commission portraying that a number of lives would be taken in 1990 as a direct result of the unlawful nature of the assistance.  Compare footnote 161 on page 78.  Note also paragraph 6 of annexure A, that it was in relation to the more overt structures, namely the intelligence components, VIP protection and security management system, that the impression had to be created that KwaZulu generated these capacities themselves.  This is now what Varney's ... (inaudible - end of Side A, Tape 2) ... was not included here because of its sensitive (it
 /is unlawful)
is unlawful) nature, and it would have no visible presence, being completely secret.  Now, this reference made by Varney stands in relation to an incorrect allegation that the head committee and the subcommittee reports are almost identical.  
What we're saying to this Committee is his whole argument falls flat if he can't build up some sort of - or lay down a basis to incriminate the State Security Council or the Cabinet that they had discussed the possibility of people that's going to be killed.  There's nothing wrong that people can be killed.  I mean if somebody attacks me and I defend myself.  Is there anything wrong with that?  Isn't the State allowed to and obliged to protect its own people?  But what he is doing, he's doing it on another basis.  He's trying to draw it in on the basis that they discussed this subject, they were aware of that, and because of that they deliberately made decisions which causes people to be killed at a later stage, whereas it wasn't even discussed by them.  It wasn't before them, they don't know anything about it.  And that is the misrepresentation he's making, and he carries it right through until 1990-1991, with the Esikhawini squad.
Now, we further say it is obvious that his submissions on pages 77 and 78 of the Marion report is based on his incorrect assumption as to the contents of the documentation placed before the SSC at the meeting, and the omission of the word "investigate" in Groenewald's letter dated the 17th of January '86, as well as an incorrect understanding the of the recommendations made by the head committee to the SSC.
Now, I am going to refer now back to a covering
 /letter that
letter that was written ... (intervention)