Special Hearings — Caprivi Hearings — 1997-08-06

MR LYSTER: 3B it relates to a financial arrangement that on the face of the documents appears to disclose the buying off of one individual who had a falling out with Military Intelligence and was, I believe, bought out of the project and I think that that quote there is evidence of that.  Under the heading, "Offensive actions = unlawful actions and the question of legal costs".  According to a document produced during October 1986, Buthelezi met with DST officers, Cor van Niekerk and John More.  This in fact was the only document provided between June 1986 and January 1988.  Now according to this document, Buthelezi equated offensive actions with unlawful actions and the taking of the law into their own hands.  Now that is quite unambiguous and to claim that offensive actions means one thing in this document but something else in another or all the others, is a claim that I think rings hollow.  So here he was referring to Inkatha members who had taken offensive actions against radical elements and some of these Inkatha men had been arrested and charged and he further purportedly said that although Inkatha had been approached for assistance with legal costs, if money was paid out of party funds, this would come down as - or be seen as a condonation of unlawful actions, a perception which he, as president of Inkatha, could not permit.  Now I know - I am aware that this particular passage is going to be the subject of much debate and will be hotly disputed by my learned friends on that side.  They will argue, of course, that it simply says that because Buthelezi would not approve the paying of legal costs of those charged for carrying out offensive actions out of party funds, because that would be - it will come down as

MR LYSTER: /being

MR LYSTER: 3B being seen as a condonation of unlawful actions, that therefore Buthelezi would never have condoned anything unlawful and I don't believe that that particular interpretation can be sustained.  Already you have an idea of what the Chief Minister had requested and what offensive actions were all about and if that interpretation were to be sustained, then again the documents make absolutely no sense.  It requires in fact the magical expunging of every other reference to offensive and its unlawfulness.  It quite obviously cannot be done.  There was never any suggestion that the offensive capacity requested in 1985 which I have referred to and granted and implemented through to 1989, changed in its essential form.  I shall revisit that particular sentence very briefly at a later stage, given that that particular passage, I'm sure, will be relied upon to paint a virtuous picture of Buthelezi's intentions and his view of offensive actions.  Dealing with the next heading, "The mysterious year of 1987".  No documents were made available for this entire year and being the first year of deployment of the Marion members, it would have been one of their most active.  Apart from the carrying out of the Kwa Makutha massacre in January 1987, another example of this activity was the case of the "Eight Directors".  Now the Eight Directors were referred to independently by Van Niekerk, who at that time was in charge of Operation Marion and Captain J P Opperman, an instructor at Caprivi and the liaison officer on the ground.  According to Van Niekerk's diary and entry on the 6th of March 1987, it reads as follows -

MR LYSTER: "Reeva sit met 8".

MR LYSTER: /Reeva

MR LYSTER: 3B Reeva sits with 8.  Reeva was the codename for M Z Khumalo.  Now according to Opperman, the eight referred to eight individuals, M Z Khumalo was hiding from the police and these eight persons had murdered somebody.  Some of the eight were Caprivi trainees.  According with Opperman he made arrangements with John More and Cor van Niekerk and money and food were provided to the eight.  They were codenamed the Eight Directors and the group was eventually filtered back into society.  M Z Khumalo himself played a central role, but I'm not going to go into that detail.  Now it is unlikely that the absence of documents for the year of 1987 and the training months in 1986 and other specific documents, like the one I've quoted there and, in fact, we heard from the evidence of Brigadier John More that monthly reports were compiled.  Not a single monthly report was made available.  I don't believe that the absence of these documents was a matter of coincidence or an accident, as in fact claimed by Brigadier Van Niekerk, but according to Van Niekerk he colluded with Colonel Mike van den Berg in removing the documents from the Operation Marion file and for those of you who are not familiar with the background, the story goes that Van Niekerk kept certain documents behind in order to, so he claims, as an insurance policy and that policy related to nothing more than showing that the whole operation was of an entirely innocent nature.  Now in the trial he testified that he and Van den Berg were deeply concerned about how vulnerable Project Marion officers were to criminal prosecution.  According to evidence led in the Msane matter, the Marion file was still available during March 1992 and according to further evidence, the

MR LYSTER: /balance

MR LYSTER: 3B balance of the Marion documents were not recorded as destroyed in the official register, so it is likely then that at some point, some point in time the balance of those documents were specifically removed from the file and it isn't out of question that this took place in the three days between, when investigators arrived at MI Headquarters and the handing of the bundle over to investigators.  That, I concede, is speculation, but it is not out of the question.  What is clear is that those specific documents were removed.  As I mentioned, I believe that Van Niekerk's claim that he took the documents to show that the project was innocent is a story that he has concocted.  If that was the case the documents could quite easily have been kept for that purpose in MI Headquarters itself and further, they would have been disclosed to nip the controversy in the bud when Goldstone investigators first approached the military and I would argue it is quite obvious that the documents were taken in order to show that the project was properly authorised from the highest level.  That's what an insurance policy is all about.  But, of course, proper authority and lawfulness are not necessarily the same thing, as in this case and others.  Moving to the role of the security branch, the SB supplied key support to Operation Marion.  Its most important function was to ensure that investigations of crimes committed by the paramilitary unit never saw the light of day and assistance was provided in concealing fugitives from justice and investigations were interfered with.  An example was the investigation into the Kwa Makutha massacre and in that case the initial investigation officer, one Warrant

MR LYSTER: /Officer