Special Hearings — Caprivi Hearings — 1997-08-14

MR FALCONER: Thank you, Mr Chairman.  Mr Chairman, before I commence if I could also just bring to your attention the document which was submitted to the Truth and Reconciliation Commission on the 5th of September 1996 by the President of the Inkatha Freedom Party, Minister Buthelezi, Dr Mdlalose and Dr Ngubane.  This submission deals with many of the concepts which are covered in our
 /submission
submission in far greater detail, and in that regard we would request that you have due regard to this other submission as well please.  Mr Lassidge will also be reverting and touching on certain issues which relate to the submission of the 5th of September '96.
A number of allegations have been levelled against the President of the Inkatha Freedom Party, the Honourable Minister of Home Affairs, Dr M G Buthelezi, certain prominent Members of Parliament, and the Provincial Legislature, members of the erstwhile KwaZulu Police Force, some of whom are now incorporated into the South African Police Service, and also against numerous persons who at some stage or other had some involvement with what has subsequently become known as the Caprivi training, who we represent.
The perception we have is that this Commission - sorry, that this Caprivi training is perceived by many, including certain witnesses who have testified before this Commission, as a joint effort between Inkatha and the erstwhile South African Defence Force to create a military means to eliminate political opponents such as the UDF and the ANC.  We believe this not to be the case, and will in this submission set out not only the history, but also the perceptions of the Inkatha movement during the relevant period.
We also believe that the findings of the Court in the case of S v Peter Msani and Others gives support to our views.  To this end we refer this Commission to the evidence led at that trial and the findings of the learned trial Judge.
By way of background there are certain factors which
 /we would
we would like to bring to your attention.  Inkatha was a cultural movement, and only became a political party in July 1990.  Inkatha, since its inception, always stood for the liberation and empowerment of black South Africans.   Inkatha never supported the constitutional concept of independent homelands.  The creation of the KwaZulu homeland was foisted upon the Zulu nation by the Nationalist Party Government.  Apart from the KwaZulu Police in the early 1980s KwaZulu had no other means of protection.  In spite of the Honourable Dr Buthelezi being the Minister of Police for KwaZulu he was not permitted to issue firearm licences.  During the late 1970s it became clear that the African National Congress and Inkatha had become irreconcilable in their differences as to methodology and ideology in the struggle for liberation.  We believe the above factors to be irrefutable, and it is against this backdrop that we must endeavour to pierce through the veils of lies, perception, disinformation, misinformation and propaganda that has been the hallmark of the political conflict over the last two decades.
After the split between the African National Congress and Inkatha the African National Congress adopted violence, the armed struggle, and Inkatha chose negotiation.  Inkatha became the victim of unseeming propaganda and violence, all of which emanated from the African National Congress and its allies.  Because of the approach adopted by the African National Congress Inkatha was labelled a puppet of the Nationalist Party government.  It must be remembered that although Inkatha was a cultural movement at the time its aims included the social and political upliftment of the Zulu people.  Accordingly it
 /has always
has always had a strong groundswell of support from the inhabitants of the erstwhile KwaZulu.  Flowing from this it is logical that the KwaZulu Government of the day was predominantly controlled by Inkatha supporters.
It is common cause that during the early 1980s the KwaZulu Government property, officials and Inkatha members were the victims of merciless attacks by the African National Congress, and its internal wing, the United Democratic Front, in accordance with its stated policies.  There was thus a crisis.  How could KwaZulu lawfully defend itself?  The Chief Minister could not issue firearm licences, and the KwaZulu Police Force was insufficiently manned and trained.  Inkatha had always believed in lawful measures to obtain a political or strategic objective.  Since KwaZulu inhabitants were still South African citizens who had refused so-called independence they believed that the National Government had a duty to protect them.
It should also be noted that the African National Congress has gone so far as to admit that one of its units plotted to assassinate Dr Buthelezi.  In this regard we refer you to the submission which I previously referred to of the 5th September 1996, wherein these allegations were made, and subsequently admitted by the African National Congress.
One should also have regard to statements made by Dr Buthelezi during the relevant period.  Some of these are before the Commission, and we refer the Commission to the extract from his speech to the KwaZulu Legislative Assembly on the 28th of May 1984.  This document forms part of the section 30 notice sent to Dr Buthelezi 
 /preceding
preceding these hearings.  I'll quote a portion from it.
"It is clear to me that we need more training in paramilitary police methods.  It will be a sad day when brother has to defend himself against brother.  This is exactly what we will be forced to do if these kinds of incidents, that is attacks on buildings, escalate.  I have no fear whatsoever that if and when we have to have a fully potential paramilitary wing in our police force we will not be a soft option."
And that is our emphasis, as you will see in the submission. It must be stressed that the State claimed that the training of the 200 in the Caprivi was itself unlawful.  The Court, in the case of S v Msani and Others, considered this allegation by the State, which constituted the backbone of its conspiracy charge against the Caprivi trainees and others, very carefully.  The Court held that there was no evidence that the training was per se unlawful.  It its judgment at page 4456 the Court said,
"The evidence is that the training was broadly similar to that of ordinary recruits in the army.  The trainees were all South African citizens, and no statutory or other prohibition has been shown to exist against the South African Defence Force training its own citizens as soldiers, or for that matter as policemen."
It was also contended by the prosecution in the
 /Msani case
Msani case that because the trainees were trained for Inkatha, and not for the KwaZulu Government, that was an indication of the unlawfulness of the training.  In this regard the Court stated at page 4458,
"This too does not in our view seem to be an indication of illegality.  Even if the argument is correct then I can see nothing wrong with the proposition that the Defence Force should train citizens for private organisations."
Here the learned Judge was referring to Inkatha.
Our clients do not believe it serves any purpose for its political opponents, in the spirit of conciliation, to continue accusing it of having acted as puppets of the National Party government, and to this end being the driving force behind so-called hit squads.  The KwaZulu Government had, in the light of its ideology, no choice but to approach as citizens the National Government for assistance.  It had to defend itself and its members from attack.  The National Government accepted its responsibility and promised to give KwaZulu assistance.
We pause here to reflect on the situation at that time.  At that stage the African National Congress was banned.  Their members were referred to by the Nationalist Party as communists, terrorists and criminals.  There was a war in Namibia, and the Nationalist Party was waging a counter-revolutionary war in Southern Africa against a perceived communist threat.  It was requested that the Inkatha people be trained for the purpose of defending themselves and KwaZulu, it being clear from the speeches of the Honourable Dr Buthelezi during those days that he
 /needed a
needed a paramilitary capacity to deal with the actions of Umkhonto we Sizwe and its cadres.  It was also anticipated that the attacks against KwaZulu might intensify or escalate to a state of an all-out war.  Accordingly what was required was a corps of well trained men who could fight back should the need arise.
When the 200 men concerned were recruited the documents reflected that Dr Buthelezi was advised that they would be trained by a private company from money from an overseas sponsor.  It was only shortly thereafter that it became clear that Military Intelligence were running and controlling the operation.  The defence of people and property was always foremost in his mind, and although there was a degree of co-operation between the Military Intelligence and Inkatha it was never with a view to furthering ulterior, and in particular unlawful, objectives.
A further problem was how to lawfully implement the deployment of the trainees.  The KwaZulu Government was not permitted to have an army as such, and there was talk of legislation to rectify this constitutional problem.  Due to the urgency of the matter such plans were shelved, it then being decided that the trainees could be incorporated into the KwaZulu Police Force.  In this regard, however, there were certain budgetary constraints, in that funds provided by the central government to the KwaZulu Police Force were inadequate, resulting in inordinate delays in respect of their recruitment into the police.  The bulk of these trainees were just left to their own devices.  In this regard we refer the Committee to the evidence of M Z Khumalo in the Msani case at page
/2634.
2634.
We now deal with the alleged hit squad activities.  at no stage were the alleged hit squad activities ever sanctioned by the leadership of Inkatha.  In fact we note that the Honourable Commissioner, Mr Lyster, in a letter to The Natal Mercury during the early part of June, stressed that it is not, and shall not be, alleged that the Honourable Dr Buthelezi was aware of the said hit squad activities. 
When Mr Khumalo gave evidence in the case of S v Msani, and was questioned as to whether it was ever envisaged that the Caprivi trainees would be used in an unlawful manner, he replied in the negative and added,
"I believe that the number of people that had died would have been very big.  It had never happened."
That is reflected on the record at page 2658.
We accept that unfortunately people from all sides of the political spectrum were killed due to illegal activity.  We are, however, instructed that it was never part of Inkatha policy.  We believe some of these activities emanated from individuals within Inkatha, who did so in the defiance of policy on the matter, as did, we believe, certain ANC members.  As will be seen later, we argue that if anyone should bear responsibility for alleged Inkatha hit squad activity then it should be Dalakholo Luthuli.  We find it significant to note that witnesses such as Dalakholo Luthuli, David Zweli Dlamini, whose alleged activities were material to the case of S v Peter Msani and Others, were never called by the prosecution.  We submit it is because they could not be
 /relied upon
relied upon as sources of acceptable and reliable evidence.  Perhaps they are trying to ingratiate themselves with their former political enemies in order to secure advantage.  A close reading of the evidence led by the State in the trial of Msani and others, when read with the statement of Luthuli and Dlamini, clearly reveals that such evidence was, in certain material respects, inconsistent, and we urge the Commission to have regard to the wise decision taken by the Attorney-General which has been disclosed in his letter.  No prosecutor would have risked scuttling the State's ship on a sea of lies.  The reason for not leading such evidence is not, as is alleged by Luthuli, that the Attorney-General did not intend to succeed with the prosecution in that trial, but for the reason we have already submitted.  In spite of Mr Varney's submissions regarding the Attorney-General we submit that he did everything possible to secure a conviction.  The record of S v Msani speaks for itself in this regard.
I will now hand over to Advocate Lassidge.