special Caprivi Hearings 1997-08-08 DURBAN https://sabctrc.saha.org.za/hearing.php?id=56254&t=&tab=hearings https://sabctrc.saha.org.za/originals/special/caprivi/caprivi5.htm 1A PROCEEDINGS RESUMED ON 1997/08/08 APPEARANCES AS BEFORE CHAIRMAN: Please can you take your seats, we are going to start now. MR MACADAM Mr Chairperson, Mr Luthuli has been brought back, not for any further fresh evidence, but merely to be cross-examined by counsel on the evidence he has already tendered before the Commission and Mr Dlamini will then follow him on precisely the same lines. There will be no further evidence led today. MR WILLS /Committee. 1A Committee. CHAIRMAN Thank you, Mr Wills. Yes, I have a copy of that. I'm not going to make a ruling that they - that the counsel for those implicated should reply by Monday or Tuesday, but I would suggest that it would be helpful to all concerned if we did have a reply on the basis as requested. MR DE VOS Mr Chairman, can I just give my viewpoint? We're not on trial here. We - certainly, if this is a new procedure and we can assist, we wouldn't object to try and assisting this Commission, but to receive such type of documents after we've been here for a week is senseless, having regard to the limitation on cross-examination and various other aspects. I'm not going to waste my time to even look at this document at this stage. CHAIRMAN MR VAN ZYL /proceedings According to my submission it is ... [break in recording] ... and secondly ... [break in recording] ... it seems clear that witnesses who testified here and especially Mr Mkhize who testified yesterday in this regard deliberately failed to answer certain questions, gave long protracted and unnecessary answers, made political speeches and they are allowed to continue in this vein without answering the question. My submission is that insofar as the legal representatives have been restricted in their cross-examination to save time, and that duty has been performed by the Committee, they in the same way have a duty to order witnesses to answer questions to make meaningful cross-examination possible and in the light of the above I, as far as my clients are concerned, at this stage I will not participate any further in cross-examination, especially in light of the way in which witnesses are allowed to answer questions, which actually does not achieve anything; where questions are not answered and, in fact, other evidence is then placed on record which may seem to be unfavourable and I will accordingly have no further part in cross-examination inasmuch as one can call it cross-examination of witnesses. I will attend the rest of the proceedings simply to protect my clients' rights /and 1A and also offer any assistance which the Committee might require from me or my clients. Thank you, Chairperson. MR MARITZ Mr Chairman, for the record ... [break in recording] ... has already raised an issue which came to the fore and I must say to you that I have been requested by other colleagues to address this matter this morning. We must stress, Mr Chairman, that we represent our respective clients and it is our duty to protect their interests to the best of our ability. This panel is bound in law to act reasonably at all times and this is categorically stated in the decision of the Appellate Division in the case which has already been referred to by my colleague, Du Preez and Van Rensburg. Now notices was caused to be sent to our clients and your attention has been drawn to the notices in the course of these proceedings on more than one occasion and it is a fact that they contain very serious allegations which could have grave consequences for our clients. It is plain that they have the right to rebut such allegations; that they have the right to be represented; that they have the right to test the credibility of witnesses in cross-examination, which is the universally accepted method to test evidence. We respectfully submit that it is plainly unreasonable to attempt to impose one's own subjective views on a legal representative as to how he should conduct his client's case, which obviously includes cross-examination beyond the rules evolved in law. If interested parties are prejudiced, the process is flawed and of no real value to anyone. If we are not /accorded 1A accorded a proper opportunity to exercise our clients' rights, this entire process will be of little value. Mr Chairman, we respectfully point out that your duties are prescribed in law. Our clients are in the realm of Section 4(a)(iv) of the Act which governs these proceedings. We submit that our clients - that this aspect is as important as all the other aspects mentioned in that section. To pay mere lip service to our clients' rights falls short of your true duties. Invariably there are two sides to a story. If one closes one's eyes to the one side in an inquiry, one has an exercise in futility. We are well aware of your time constraints and we have endeavoured to assist. At the same time we are troubled by the manner in which time is allocated. Yesterday is an example. Thank you very much. MR COETZEE If I may shortly put one or two aspects on record. It is our feeling and we submit that cross- /examination 1A examination as allowed here amounts to no cross-examination. Yesterday there was a most unfortunate incident with the person that was cross-examining, namely my leader, landed up being cross-examined by a Commissioner. The rules of national justice can never ever be met on that basis. Due to the manner in which our cross-examination has been curtailed, it is of little or of no value whatsoever. At this stage we will be putting no more questions to any witness, because of the limitations that are put on our cross-examination. I would like furthermore to put on record that our clients have been - testified in a Court of Law where full cross-examination was allowed. Their version was tested and they were found not guilty in a Court of Law. The witnesses in these proceedings make wild allegations and their allegations cannot be tested. It's my submission that it's clearly - the manner in which these proceedings are further proceeded that - that it is of very little value. However, I will urge all the Commissioners to please read the proceedings of the Msane matter, under oath, where our clients' versions are clear. Furthermore, we must reserve all remedies and rights that we might have for our clients and further - I realise that this is not a Court of Law, but there's certain rules of procedure that is to a certain extent unfortunate that while witnesses are testifying, other witnesses hear what they're saying and specifically relating to Mr Luthuli and the other people that have testified here. It is clear by all their evidence and the statements that - Mr Luthuli seemed to have controlled them and have a certain amount /of 1A of authority over these witnesses and then he sits and listens to what they're saying, specific issues that are relevant for our clients. We say if the Defence Force train these people, they are not liable for people that become hit squads that are under Mr Luthuli's control and then Mr Luthuli sits here and listens precisely what they're saying and on the basis that such limited cross-examination is allowed, it serves little purpose. If you will just bear with me for a moment? My attorney has brought it to my attention that it was one of the rulings of this Committee that versions that have been put forward in other forums don't have to be raised over here during the proceedings. At this stage no cross-examination is allowed, all that's said is, "Put your version. Put your version". And my learned friend is asking particulars of what your version is and regarding that issue, that's all I'd like to place on record. I have nothing further to say. Thank you. CHAIRMAN Thank you. Is there anybody else that would like ... (incomplete)? MR VON WILLIGH Mr Chairman, yes. Willem von Willigh. I wish to place on record that I join with the previous speakers, my learned friends, I join with their views and I subscribe to those views. I will also not place any questions in cross-examination and will also not consider the Request for Further Particulars. There is no provision made for it. CHAIRMAN Yes, I have already said that, Mr Von Willigh. I said that nobody is obliged to answer those at all, so I take your point completely. / MR VON WILLIGH 1A MR VON WILLIGH I accept that, Mr Chairman. I'm just placing on record that I will also not supply any Further Particulars. Thank you. MR WILLS Mr Chairperson, if I could say something here. Mr Chairperson, I must agree with my learned friends to an extent in that whilst I understand the time restraints that the Commission is under, I do believe that the credibility and the weight given to the evidence of my clients does depend to certain extent, in any event, to the amount or to the freedom of cross-examination of my learned friends. To that extent, whilst there are time restraints, I must agree that they be allowed to be cross-examined. Thank you. MR MACADAM Sorry, Mr Chairperson, the issue of cross-examination is not within my ambit, but purely on the allegation that Mr Luthuli is present when other witnesses testify, my difficulty in this regard is specifically the Van Rensburg judgment requires that when a person is implicated in evidence and clearly there is evidence implicating Mr Luthuli out of these other witnesses, they say they were more or less taking orders from him at the times when they committed these extremely serious offences. The judgment is clear that Mr Luthuli would have the right to be present to here this evidence, these allegations, to instruct his counsel to challenge it and say, "Well, look, you're bringing me - you're implicating me on frolics on your own. I might have given you certain instructions, but not all the cases that you're telling the Commission about flowed from my orders", he has that /right. CHAIRMAN Yes, that was raised at the beginning of these proceedings. It was discussed and it is absolutely proper that Mr Luthuli should be here while the others give their evidence and I don't want any further argument on that. It is proper that he should be here, his rights are also affected in the same way that an accused person may be affected. MR VISSER Mr Chairperson - yes, Mr Chairman, I believe it is proper for us to place our position on record. Mr Chairman, our position is slightly different from that of our learned friends who appear for members of the Defence Force, as you will well realise. First of all, /our The mere fact that we're here, that we're assisting, Mr Chairman, we do with the intention and with the purpose of attempting to assist the credibility which is projected to the public. I'm sorry if it's not really relevant, /Mr Chairman, CHAIRMAN Thank you, Mr Visser. Mr Stewart. MR STEWART Thank you, Mr Chairperson. As I understand the various submissions that have been made or rather the recordings of matters for the record, no specific ruling has been asked from yourself or from the panel, so I don't respond to that and I don't respond to much of what has been said, notwithstanding that I may disagree with it, but I do ask one thing and that's of my learned friend, Mr Maritz, who spoke about the Du Preez judgment and also about the rights of cross-examination and I understood from him to imply that that judgment sets out the rights of cross-examination in a forum like this and I would appreciate it and I am sure it will be useful to the panel as well, if my learned friend would refer to what section of the judgment in particular deals with that, that in my reading of the judgment it deals primarily with issues of notice, both time and substance and not the whole issue of the nature of cross-examination in a forum like this, but I'd gladly be shown to be mistaken on that. CHAIRMAN Thank you. I will draw your attention to it. I really don't want us to have a debate now about what the Van Rensburg judgment does or does not say. It's now twenty to ten and I'm not going to deal in reply to every matter that has been raised here. This panel is well aware that I role is prescribed by law and it's unfortunate that one member of counsel shows to characterise the attitude of the panel as the /implementation "... this will enable him and his legal representative to actually hear the implicating evidence and see the demeanour of the relevant witness or witnesses. Conceivably the implicated person might be able readily to rebut the allegations of the witnesses and in such a case the Committee might well be under a duty to hear rebutting evidence forthwith and permit cross-examination". So that is the only reference in the entire judgment to rebuttal of an allegation, of a specific allegations against the client and that was the point of my opening address, was to say we are not going to allow counsel to wear this Committee down, the panel down and the witness down by taking the witness seriatim through every item of their client's version, we simply will not allow it and that is why I suggested to client(?) that they, within the framework of what we would feel as equitable, that you put the client's version to him, but you are not going to be allowed to take witnesses seriatim through your client's /version. 1A version. We simply cannot allow that, because we do not have the time to do it and it would be unfair on - if counsel A did it, it would be unfair on counsel B, C, D and E. So we're going to proceed with cross-examination now. At no stage did I say that a version which had been given in another forum may not be put here, I never said that. I said that it should be put to the client - and by that I didn't mean it should be merely put, "My client's is X, what do you say?". Put it to him in a limited way, so that you are seen to be rebutting, in the words of CORBETT CJ, the version of the witness and I'll ask counsel please to take these comments to heart and just let us get on with the matter and let us go beyond the unpleasant confrontation which we've seen over the last few days. This is not a Court of Law. We don't have eight months at our disposal as people had in the Malan trial, the Msane trial. We have been given two weeks. It's not of our doing and we have to make the best - we have to do the best that we can in that short time available. Yes, obviously we have taken note of the Msane record and the judgment and we will continue to do that. No findings are made at the end of this hearing. They will be made in - if they are made at all, they will be made in months to come and reference, repeated reference will be made to that record and to that judgment and I don't want counsel to get the view that we are ignoring that. We are aware of the various versions of your respective clients. MR LAX If I could just add one thing. Part of the problem is that the witnesses don't know /what 1A what your client's version are and that's why we want you to put it to the witness. We may know what your client's version is, having seen the judgment; having read aspects of the trial and so on and having sat through, for example, Section 29 inquiries with some of your clients. We know what some of their versions are already. The point is that the witnesses don't know that and that's really why you want to put it to the witness. The other final aspect I would want to add, is that in due course, as I said earlier in this hearing, in terms of Section 32(2)(b), your clients will all receive in due course - may, if we decide to make a finding in respect of your clients, a further opportunity to get detailed substantive aspects of what we intend finding and to make representations in relation to those aspects. So really, your clients, those who may be subsequently implicated in any finding, will get a second bite at the cherry at that point and your submissions that you're going to hand in to us as well, so really, we can't take it any further than that. CHAIRMAN MR DE VOS Sorry, is this Mr Luthuli now in the witness box? CHAIRMAN That certainly is. MR DE VOS Well, isn't Mr Mkhize - oh, he's coming back on Monday. CHAIRMAN Yes. MR DE VOS Sorry. MR MARITZ Mr Chairman, for the record, Maritz speaking /again. 1A again. CHAIRMAN Mr Maritz, are you going to start? MR MARITZ With your leave, yes. CHAIRMAN I'll just swear him in before you do so. MR MARITZ Thank you. DALUXOLO WORDSWORTH LUTHULI (Sworn States Further) MR MARITZ Mr Luthuli, I must tell you quite frankly, right at the start, that this is not really cross-examination. This is an attempt to gain more information and possibly to gain some understanding of what transpired. The first thing I wish to ask you is this and it may be of some importance, is that you mentioned that you received military training abroad to be able to become an MK member. Do you recall that? --- Yes. Where did you receive your training? --- In the ... (inaudible). Could you give - and when was it? --- It was 19 ... [break in recording]. Could you give us a brief description of what the training entailed? --- It was a guerilla warfare, a mobile warfare. Now you made a statement to the ITU, I think it was somewhere in December 1995. Do you recall that? I think Chief Superintendent or whatever his rank was, Dutton. --- Yes. Was the person who was involved in that statement. Do you recall that? --- Yes. And as I understand that statement, you then intended and it's quite a lengthy statement, you intended to make a full disclosure of what had transpired here in Natal. Is that correct? --- Yes. /Now 1A Now in that statement you referred to the fact that you became - and I'm paraphrasing, I may be using the wrong words - that you became the commander of the Inkatha armed forces. Do you recall that? --- Yes. Is my understanding correct? --- Yes. Was that just in respect of the Caprivians at that stage? --- I'm talking here about the 200 who were trained at ... (intervention) Yes, yes, the Caprivians? --- Yes. Well, people that took part and I once again refer to it as a war, because there was in fact a war being /waged 1A waged in KwaZulu-Natal, not so? --- Yes, there was a war. Right. Now the war wasn't waged just by 200 Caprivi trainees. A vast number of people took part in that war ... [break in recording] (END OF CASSETTE NO 1A) (START OF CASSETTE NO 1B) 1B MR MARITZ ... inter alia by yourself? --- By who? Inter alia by yourself. --- Okay, come. Is that true? --- I don't know that. Were other people not trained in a military manner? --- Which people? Young people, young men? --- From where? From Natal, from KwaZulu? --- From which organisation? Mr Luthuli, please, I'm not here to answer questions, you are. If you don't know, say so. --- I don't know. So what was the extent of your armed forces which were under your command? --- I don't get you. Well, I think it's - it's ... (intervention) --- Can you put it some other way? ... it's a plain question. What was the extent of the forces under your command? --- I've already told you, 200. Only the 200? --- Yes. That was throughout your involvement? --- Yes. Now you heard the evidence of Mr Mkhize yesterday. If you take the Esikaweni matter which he testified about, that was a case in point where other people, other than the Caprivi trainees were involved in the action that was /taken. 1B taken. How did that come about? --- No, I can't answer that question, because you have already put it now that there was a war between the ANC and the IFP and then during that war people were fighting, not because they were trained as soldiers. What were they fighting with? --- They were fighting with whatever they had in their hands, either spears or guns or home-made guns, petrol bombs, whatever they had. And you say they didn't need any training to equip themselves to fight? --- Yes. Now, Mr Luthuli, when the Caprivi trainees returned from the Caprivi to KwaZulu, will you describe to us what happened to them? How were they deployed? What did they do? MR STEWART Mr Chairperson, the witness is indicating he wants to ask me something. Mr Chairperson, the witness has requested to be able to speak in Zulu, he is struggling in English. CHAIRMAN No, that's what we expected him to do. --- Can you repeat your question again, please? MR MARITZ Yes, the question is this. When the Caprivi trainees returned to KwaZulu-Natal, what happened to them? --- I will start from scratch. Will you allow me? AT THIS STAGE THE WITNESS SPEAKS THROUGH THE INTERPRETER CHAIRMAN Please don't be too long, Mr Luthuli. Just deal with it in stages, we don't want to take a long time with that, because we have - we've heard some of that evidence before. --- When they came back from Caprivi they got to a place called Nhlungwane and the preparations that were made or apparently there were no preparations /made 1B made for their return, so they had to go back to their respective places. During that time that's when we started to conduct meetings at 121 Battalion. That's where we were devising some means as to how they were going to be deployed all around the KwaZulu-Natal area. That's why we put some offices as to enable us to deploy them in those offices and that's exactly what we did. [Break in recording]. --- That is so. MR MARITZ Mr Chairman, I'm terribly sorry. I forgot to adjust my earpiece so that I could hear the reply. I heard a lot of Zulu which I don't understand. Can I just try and find the channel ... (intervention) CHAIRMAN If you put it on No 2 you'll hear the English translation. MR MARITZ I'm getting the translation. Could the interpreter speak, please, to see whether I've got it? CHAIRMAN Can the interpreter please speak? INTERPRETER In English? Yes, can you hear me? MR MARITZ [Break in recording]. INTERPRETER Could you please repeat the question as well? CHAIRMAN I think Mr Luthuli knows what - you don't want your question repeated, just Mr Luthuli's reply? MR MARITZ Yes, I didn't hear him at all. I'm sorry. CHAIRMAN /what 1B what they were going to do since they have come back. That's when we put some offices where we were going to deploy them and the offices we put up, they were deployed in the respective offices around Natal. MR MARITZ Yes. Yes, thank you. Mr Chairman, bear with me, I have to spend a bit of time on this because it's important to me to have a full picture here. Mr Luthuli, once again, if I'm out in my numbers, nothing turns on it, I'm just working with broad figures, but No 1, there was a unit which was trained for VIP protection and this was roughly about 30 young men in that unit, not so? --- That is correct. When you returned, were those people in fact deployed for that very purpose immediately or virtually immediately to do their job as VIP protectors? --- I will explain in this manner. After the training at Caprivi, they went first because there were certain courses that they were supposed to attend in Pretoria with regard to the work you have just referred to, so they left before us and when we got to Ulundi later on, they did not arrive with the same group that I've referred to, which was at Nhlungwane camp. They went straight to their respective jobs, that is the job that you've spoken about to go and safeguard some VIPs from the KwaZulu Government and thereafter I never got any contact with them, but that didn't mean that I did not have any powers to use them wherever they were. INTERPRETER The speaker's mike is not on. --- But that didn't mean that I had no authority or powers upon them, but at that time they were on the other side, the one that I have just mentioned and the rest are the ones /who 1B who were sent back home so that we could make some preparations for them to be deployed. MR MARITZ Now do I understand you correctly that although the VIP bodyguards were deployed to do or to perform that exact function, your understanding was that you were nevertheless still their commander? --- Yes, that is correct. Now the other very large group were the fellows who were involved in contra-mobilisation, not so? Do you have a figure of how many they were? MR VISSER Could I assist? I've got the exact figures and we don't have to ... (intervention) CHAIRMAN Ja, please do. MR VISSER They were 114, according to Exhibit 1F handed in before the Goldstone Commission, which is an extract from official documents. Mr Chairman, there were 28 VIP protectors and may I just see whether I can find the other two figures as well? The 28 were the defensive group, 114 was contra-mobilisation. Intelligence was 31 and the offensive group was 33. Those are the exact correct figures. CHAIRMAN Thank you, Mr Visser. MR VISSER May I just add, where the figure doesn't tally with 200 or whatever, please bear in mind that other people were taken along. For example, Daluxolo Luthuli was not reckoned to be a Caprivi trainee, nor was Xesibe, nor were the cooks and drivers or whoever were taken along, but those were the Caprivi trainees, Mr Chairman. CHAIRMAN Thank you, Mr Visser. I think Mr Maritz mentioned that the figures were not particularly important, the exact figures and nothing would turn on /them, 1B them, so let's not get too hung up with the exact figures. MR MARITZ But while we're about it, Mr Chairman, may I ask from Mr Luthuli whether you would, for our purposes, be prepared to accept these figures which have now been given by Mr Visser? --- Yes. Now these contra-mobilations fellows, they were deployed all over KwaZulu-Natal, not so? --- That is correct. And I understood from Mr Mkhize yesterday that they had to perform the function which they were trained for, namely to perform contra-mobilisation. So that was their job? --- That is correct. Now I'm afraid I know nothing about the defensive fellows. How were they deployed? Defensive. The defensive group or the intelligence group or whatever you wish to call them, those 30 fellows, 31 fellows. --- I had already explained that they were one group now at that point, that is the contra-mobilisation as well as the defensive group. As they were divided into their respective offices, they were also deployed at different areas. They were doing their own job as specified with their training and the contra-mobilisation unit was going to discharge its own duties. And do I understand the situation correctly that the main function of all these trainees was to enhance the Inkatha movement; to enlarge it, to recruit members and to establish it as a political force throughout KwaZulu-Natal? --- Yes. That's the one main purpose, not so? --- (No audible reply). The other main purpose was to render protection /against 1B against attacks from those who were in conflict with Inkatha. Is that correct? --- Yes. And as I understand it further, the - one of the main purposes was to protect the - well, if I'm insulting you here in any way, I plead innocence, because I'm going to use words such as Indunas and Chieftains. Would that description satisfy you? --- Are you referring to Inkatha members? Yes, yes. --- No, that will be fine with me. In other words, their role was in particular to render protection to - if I may call them dignitaries of Inkatha all over KwaZulu-Natal? --- Yes, that is true. Now, Mr Luthuli, you will recall that Mr Mkhize - and I mention him as a case in point, just to try and understand the situation - became a policeman, a KwaZulu policeman and some 5 years later, in 1991, you recruited him to perform specific tasks in Esikaweni. Is that correct? --- No, I never recruited him. I deny that. I gave him an order. His evidence, if I understood him correctly was that you came to him and you said to him, "The time has come for you to do what you were trained to do and I need you and I have a job for you" and he remonstrated with you, he wouldn't and you had to persuade him that he has to adhere or concede to your demands - accede to your demands and to fulfil his role as a trained soldier of Inkatha. Not so? --- I deny that I had to coerce him. I did not have to beg. It was an order that I issued that he should act accordingly. He knew that he was trained specifically for that job and when an order issued for you to discharge that particular duty, you know fully well that you ought /to 1B to do that without being begged. You don't even need to be coerced, but if the order is issued, he should act accordingly. Yes. The fact of the matter is that you left him alone for some 5 years and then on a given day you said, "The time has come and the walrus said, you have to come and do your duty now". --- Yes, I do. But I'm using the word "recruiting" and it's easier for me to facilitate my questioning of you, to keep on using the word "recruiting", with this particular meaning that we have now given to it between ourselves. Do you follow that? --- You can use the word "recruit", but it doesn't tally with me. As you understand that when I use this word, it has the same meaning that we have now decided it will have, for our purpose. Okay? Now was Mkhize the only Caprivi trainee who was so recruited as the need arose, or did it happen on other occasions as well? --- Yes, that is true. [Break in recording] ... say and could the panel understand that you employed Caprivi trainees as the need arose? --- Yes, that is true. In other words, can we dispel the concept that here was a force that was continuously acting against foes in a proper type of war situation as an organised army outfit, that that wasn't the case? --- I cannot agree with you. Maybe that's your interpretation of the situation, but it's not mine. I should rather argue it, if you don't want to assist me, but what is of importance is that over a long timespan, at least a timespan of what is it, from 1986 to /roundabout 1B roundabout 1993 somewhere, 92/93, you recruited members of the Caprivi trainees to perform specific tasks in specific areas which had been identified and you did so as the need arose from time to time. Is that correct? --- Let me just explain to you. Those Caprivi trainees, as they were divided into different groups and in different offices, according to the training that they had been given, they were working on their own in the respective areas and whenever there was anything or any duty that they couldn't discharge, that's when I came in. In other words, they were working in groups and they were not known in their respective areas as to what they were doing. If there was anything that they had to do, they did not specifically had to wait for me and they didn't have to come and report that they had seen such and such a person and whether they were needed to help. At some stage they had to use their own discretion, so it was not an army situation where they were at a base and waiting for an order to be issued. That's the situation and that's how they were operating. Maybe you'll get an insight now. MR LAX What's happening is that you are sometimes talking before you switch on the mike. It's having problems, for example, with the transcribers. The person in charge of the transcribers just asked me to mention please, if people could switch on the mike, make sure it's on and then talk, because the record is now showing "inaudible" and then suddenly it starts, so if you could just ... (intervention) MR MARITZ Mr Chairman, I think I picked this up over the course of the proceedings. I think that what happens is that when the interpreter speaks, she cuts me off and /once 1B once she puts her microphone off, then I come on line again. Mr Macadam had the same problem. MR LAX Ja, just ... (intervention) MR MARITZ For much of what he said we didn't hear anything because of the same problem and if the interpreter would just immediately, after she'd spoken, switch off her machine, that will probably solve the problem ... (intervention) MR LAX Ja, I'm just asking ... (intervention) MR MARITZ ... because this machine is on all the time. MR LAX I hear you. I'm just asking us all to be a bit careful about that so we can just try and facilitate a proper record. Thanks. MR MARITZ Thank you. Now, Mr Luthuli, when I read your statement which you made to the ITU, I gained the impression that you were very wary of the South African Armed Forces comprising the Defence Force and the South African Police. Is that impression correct? --- Yes, that is correct. As a matter of fact, I think you categorically stated that you didn't trust them at all? --- That is correct. As a matter of fact you weren't going to tell them what you were doing under any circumstances, because you didn't trust them? --- That is correct. And is it also so, Mr Luthuli, that in much of your activities - and that's the impression that I gain. If it's the wrong impression, please correct me, but in much of your activities, you were in the invidious position that you had to steer clear of the South African Police and the Defence Force, because in a sense they were your /enemies 1B enemies as well, because they could harm you, they could act against you? --- May I please just explain? After the 121 meeting, I spoke to M Z Khumalo, as my fellow comrade and I asked him as to how could we allow the Special Branch, the army, to know as to what we were doing as members of the IFP, because we didn't know what they were doing. We didn't know the operations of the police and later on they would come back to us and use us to do their dirty job and if we refuse, they will tell us that we did some operations at certain places and we will always be under their control or power and he said he understood me, but he said there was nothing that we could do, because they were the powers that be and we were getting the money and arms from them. That was the day I went there and it was my very last day. He realised that whatever I was saying, was what I said in Caprivi, that they are asking me as to what the other group wanted, because they had realised - and at times they speak Afrikaans, thinking that we do not understand Afrikaans. They had to speak English right through and I wasn't going to be in a problem of answering as to who this other group was. That's where the matter is. Well, the long and the short of it is that you mistrusted the South African Government and their agents, whoever they were. You didn't want anything to do with them. That's the long and the short of it. --- I think you can put it in that way, I'll just listen to what you say. Do you agree with that? --- I've already explained. Don't coerce me to say yes or no, I've already explained. We have come here to enlighten each other and /I'm 1B I'm trying to enlighten you as to why I did not trust them. It's because I didn't know their operations and I did not want them to know my operations. That is what we discussed at the meeting. Whether I trusted them or not, is no relevance in this matter. I just didn't want them to know what I was doing, because I didn't know what they were doing. Thank you very much, your explanation is a good one. Thank you. Now there's another thing that bothers me a bit and maybe you can help us and I know - and I was must just introduce this topic. I know that you have in your statement to the ITU, made some attempt to describe this person, you gave a description of him and you also said that he had a friend by the name of Jumbo. Now in these proceedings it came across on record that the person you are referring to is a Mr Paul Berry or a Major Paul Berry, whereas in the statement you made to the ITU, this same person is referred to as Polberry, P-o-l-b-e-r-r-y. Now you know who I'm talking about? --- Yes, I do. Polberry, as - I don't know, this thing is wrong again. Was it in fact "Polberry", as written in your ITU statement? --- I don't know, maybe it's the pronunciation. You could pronounce it any way, but if it's the Polberry that was working for the Military Intelligence, there's no other person that I'm referring to. Whether it's Polberry or Paul Berry, I wouldn't deny that. What did this person say his rank was? --- He said he was a major. From Durban or where? Or don't you know? --- He was from Durban. /You 1B You see, Mr Luthuli, the difficulty I have is that those instructing me, that they searched for a Major Polberry which could have had anything to do or was in the SADF at any time from 1985. There is no such person. Can you appreciate my dilemma? --- The dilemma that you have I also do have, because when we looked for this Polberry, I had his phone numbers. I was working with people who were working under him at Hammarsdale from the Military Intelligence and the very same people who were working for the Military Intelligence who were in Hammarsdale could not be found nor traced, not even a single one of them. Well, we couldn't - well, my clients couldn't find him either. Now there is a possibility here, maybe more than one possibility, is No 1, that this person who said he was Major Polberry from Military Intelligence, may have been lying to you as part of his cover, or he may have belonged to some other intelligence organisation, as for instance National Intelligence or he may have been a policeman, I don't know. Could you possibly assist us? --- I know him very well, that he was working for the Military Intelligence, because one of his members was working at the IFP offices in Durban and when we got hold of him, he told us under no uncertain terms that he was scared and he didn't want to talk. He was working for the Military Intelligence here in Durban, so I'm positive(?) ... [break in recording] (END OF CASSETTE NO 1B) (START OF CASSETTE NO 2A) 2A [Break in recording] ... was working for the military intelligence. I have worked with him for quite some time. I know him very well. As a matter of fact, you repeated that this morning, but in a different manner, by saying that M Z Khumalo said to you, "Yes, but we are being paid and provided with our needs by the SADF", not so? --- That's correct. Now, I looked at your statement to the ITU and in paragraph 27.1.2 thereof you refer to armaments and you then describe that M Z Khumalo had a shop. Inter alia, he had coffins in his shop and he used to use those coffins as a storage place for the arms and ammunition which he had available to him. Do you recall that? --- Yes, I do. Now, in that self-same paragraph you said to the ITU unequivocally that you did not know where M Z Khumalo got his arms from. --- That's correct. MR STEWART /in front of CHAIRMAN Okay, it seems that the statement then refers to the specific weapons held in that shop or in those coffins. MR MARITZ I'm just saying do you recall that you gave a very detailed description under the heading, "Gun running". Do you recall that? --- Yes. I put it to you that nowhere in that portion of your statement when you were specifically dealing with arms and ammunition did you intimate that these arms were acquired from the SADF. --- Can I explain to you? I will just give you a brief explanation. I won't waste your time. During the incident which took place at KwaMakutha where people were killed, it came to a stop. For some time the soldiers didn't supply us with firearms and we started on our own trying to find our own sources where we can get /firearms. All 2A firearms. All the people you are referring to at the moment, you are referring to people who were going out on their own to find firearms. Do you understand? That's all. Well, on that score I must merely record that, and I cannot speak for anybody else but my own clients, /because I don't 2A because I don't have a brief for them, but my own clients, which are on record, deny that the military supplied arms and ammunition to Inkatha at any time. --- Can I ask a question? CHAIRMAN MR MARITZ You obviously know what you said in your statement to the ITU, and there's quite a lengthy passage about you becoming disenchanted with the IFP and that you decided that you wanted to go back to the ANC, that you had discussions with the various people and that eventually - I think the gist of it is that you were required to remain in the IFP and pass on information, but that you had a /desire to I don't know whether this is an important issue at all, but I merely want to read to you what is stated in this statement of yours and I'm reading from paragraph 39 and I think I'll read the entire 39, which makes it plain that it doesn't appear as if you are being entirely candid. It says the following, /"Kay Mtshali was 2A "Kay Mtshali was an Inkatha Youth member whom I had trained at Mpumalanga. He was married to my niece. We were very friendly. He had been telling me for a long time that he was in contact with a man by the name of Magadhla. He told me that Magadhla worked for the ANC and wanted to meet with me. By the end of 1994 ..." That's long after Robben Island. "... I had become thoroughly disillusioned with the IFP and wanted to return to the ANC. I expressed an interest in meeting Magadhla. Before Kay was able to set up a meeting he was murdered." And then I carry on to 39.8. "A series of meetings took place between Magadhla and I and as a result thereof I had a meeting with Jacob Zuma. They wanted to debrief me and wanted me to remain at Ulundi in the employment of the IFP and pass on intelligence to them. I wanted to be accepted into the new SADF together with the Caprivians. We were still in the process of negotiation and had not reached any agreement. I was not debriefed by the ANC. I was still considering my options when, soon after this meeting, I became aware through Advocate Visser that there was a suspicion within the IFP that I was meeting with the ANC. I stopped all further meetings because I was not sure as to how this information had come to /the knowledge 2A the knowledge of the IFP. I thought that there may have been a leak in the ANC." Is that all correct? --- Yes. Have you still not made a decision? --- No. INTERPRETER Yes. MR MARITZ I have kept my word. I've been very brief, but can we have a tea adjournment, so that I could just consider my position finally? MR (?) CHAIRMAN MR MARITZ I said, "You have still not made up your mind?" and he said, "No, I haven't". CHAIRMAN Did you mean as to which camp you belonged to? MR MARITZ Because he says in the statement that he hadn't made up his mind and I was asking whether it was still the same position. CHAIRMAN Yes, I heard him say, "No" in Zulu and, "Yes" in English. MR MARITZ CHAIRMAN MR (?) CHAIRMAN No, I was just going to say we would break for /20 minutes. 2A 20 minutes. MR (?) CHAIRMAN SHORT ADJOURNMENT ON RESUMPTION DALUXOLO WORDSWORTH LUTHULI /So those are MR VISSER CHAIRMAN MR MARITZ CHAIRMAN MR MARITZ NO FURTHER QUESTIONS BY MR MARITZ CHAIRMAN / MR LASICH 2A MR LASICH Just now, a short while ago. --- No, there is no truth in that. MR STEWART MR LASICH Unfortunately ... (intervention) --- Are you referring to the one I'm showing just now? CHAIRMAN MR LASICH /described? A 2A described? A cold-blooded killer or a foot soldier? --- I regard myself as a soldier, but a politically-minded soldier or politically-aligned soldier. Now, if I understood your evidence previously, and you can correct me if I'm wrong, but you indicated you were involved in the murders or the killings of so many people you can't remember precisely when and where in certain respects. --- I want to explain what I was referring to when I said that. What made me say that was there were so many occasions that took place in South Africa where my name has been mentioned or where I have been involved and it is possible that I was not personally present when these took place, but I issued the specific orders for these murders to be carried out. Therefore I could say I could be equated to a killer myself. Did you not yourself personally take part in assaults on UDF members? --- I had already explained that I did that. Now, I don't want to delve in this over too long a period during this cross-examination, but it's been mentioned that you served time on Robben Island for what's been termed, "Terrorism-related offences". Could you just give us an idea of what those offences were? --- Firstly, I was arrested in the then Rhodesia. That is where I was fighting. And I was later deported by the then Smith Government. I was deported to South Africa and in South Africa I was convicted for the fact that I went outside the country to be trained without a travel document or passport. I was also charged for being a member of an illegal organization. And did you plead guilty to those offences or not /guilty? --- 2A guilty? --- You remember that at that time we were fighting. I wouldn't have admitted that I was guilty, knowing fully well that I was fighting for a good cause. Now, you've said that your motivation, and you can correct me if I'm wrong, your motivation to come clean was inspired by bodies such as the TEC forming basically the beginnings of a new South Africa. That motivated you to come clean and in the interests of peace and reconciliation admit all? --- That is correct. Could you give us an idea of round about what year that was that you had this motivation to come clean? --- I don't remember the year. Was it before the Mbambo trial? --- I don't remember. Was it before the 1994 elections? --- I don't remember. MR WILLS I haven't got a microphone. I'd just like to ... (intervention) CHAIRMAN Just hang on. Just borrow a microphone so that you can go on record, please. / MR WILLS 2A MR WILLS CHAIRMAN Yes, that's correct. MR LASICH CHAIRMAN Sorry, were you or were you not - sorry, I didn't really understand the answer to that. You put it in a way that if he answered, "No", it meant no, he wasn't frank. MR LASICH Now, I'm going to be brief about this point and you could probably anticipate the proposition that I'll put to you. You lied at the Goldstone Commission. Could I just finish, please. The prosecution did not call you in the /so-called Malan 2A so-called Malan trial, S v Msane, and I'm sure you can guess what I will put to you. In other words, my suggestion to you is that people have difficulty in believing your story. --- I will answer you. The fact that I was not called during the Malan case was not a mistake. It was deliberately done, because I'm telling you now, so that you can also tell your clients that the people who killed others at the KwaMakutha massacre are the ones and the people who were present there is the military intelligence that JP was working hand in hand with. M Z Khumalo and myself are the ones who applied for the KwaMakutha matter - that is myself and him. The reason that I wasn't called was a very deliberate effort so that they could be acquitted. That is why they didn't even want to come before this Commission. That's why they are sending you, because they do not want to disclose the truth. People were mistakenly killed, but they had been told that they apologised. That's why M Z Khumalo slaughtered a sheep or a goat, because they killed the wrong people. CHAIRMAN MR LASICH Now, I'm sure you can guess what my clients would say about your evidence implicating them, including /M Z Khumalo, 2A M Z Khumalo, with regards to setting up a military wing for the IFP. Would you tell us what you think their answer would be to that. MR LAX MR LASICH MR LAX I think the question was that there was a request from M Z Khumalo to set up a military wing for Inkatha. MR LASICH Yes, that is correct. MR LAX MR LASICH That is correct. --- Let me tell you this - the IFP mobilised or organized people for military training and the soldiers do admit that they did train these people. They can say anything that they want now, but what I'm telling you is the IFP had a right at that time, because it was being attacked. This is the reason why they had to go out and organize or mobilise people so that they could protect themselves and during the recruitment the police were not involved, it was only the /Inkatha Freedom 2A Inkatha Freedom Party and the South African Defence Force that were involved. That is all. And when they came back they didn't go to the police, they went out to do whatever they were trained to do. Now, I do not know as to why they are denying or what are they denying, because I did not apply. There are no forms that I filled in. I was requested specifically to be a political commissar of that particular group, because they were facing an enemy and they wanted a person who was knowledgeable and who had the necessary skill. What did they come to me to do? MR STEWART /seen it. 2A seen it. In order to answer the question he would need to know that. There are obviously an enormous number of IFP members and we need to know who is included in the ambit of that question in order to be able to answer it. MR LASICH MR STEWART MR LASICH CHAIRMAN MR LASICH CHAIRMAN And is that also consistent with the finding in the Msane trial? Because I'm a little confused now, because it appears from the judgment in this matter that -in the words of the Judge, that it was common cause, and I would take it that your client, the IFP and Dr Buthelezi and M Z Khumalo, that would include them - it was common cause that in 1985 M Z Khumalo was asked by Buthelezi to assist in the recruitment of some 200 Inkatha supporters /to be trained 2A to be trained and eventually employed as KwaZulu Policemen, and that they were, in fact, trained in the Caprivi Strip. Does your client concede that? MR LASICH CHAIRMAN MR LASICH CHAIRMAN MR STEWART /confirming all 2A confirming all of his evidence, which is not going to serve any purpose. CHAIRMAN MR LASICH NO FURTHER QUESTIONS BY MR LASICH CHAIRMAN Thank you. Is there anybody else who would like at this stage to resume the cross-examination? MR VISSER CHAIRMAN MR (?) CHAIRMAN MR WILLS You indicated that they were deployed to do their /work. Can 2B work. Can you tell me what that work actually was? --- Firstly, it was to assist members or certain members of Inkatha in places that were under Inkatha or Inkatha strongholds. Secondly, they had to assist in the training of the Inkatha Youth in their respective places. Thirdly, it was to help the people to kill certain members who had been identified by the Inkatha leadership. Now, tell me, do you have any knowledge whether or not this type of activity extended to parts of what is now Mpumalanga/Ermelo - the Ermelo area townships like Wesselton or ... (incomplete) --- That is true. And did this type of activity extend to certain areas of the then Transvaal? --- That is correct. NO FURTHER QUESTIONS BY MR WILLS MR VAN ZYL CHAIRMAN MR DE VOS MR MACADAM /position and MR VAN ZYL MR MACADAM CHAIRMAN MR STEWART CHAIRMAN MR MACADAM MR (?) /later. Are 2B later. Are we going back on that and saying now we can cross-examine? Because we've attempted that procedure and we know it doesn't work. MR MACADAM CHAIRMAN MR MACADAM No, not at all. CHAIRMAN Their evidence is then concluded. MR MARITZ /now the 2B now the transcript of the evidence available to us. I would like to look at it over the week-end and it will definitely facilitate speedy cross-examination and I would suggest that we take the adjournment now until Monday morning. CHAIRMAN Yes. MR STEWART CHAIRMAN I think the fact is that we have agreed that we will stop at one. It's now 12 o'clock. I can't anticipate how long counsel may take and I don't want to say that we've got one hour, because that's not really an opportunity for cross-examination and I'd rather hold it over. MR MACADAM /would go CHAIRMAN Is there anybody who wants to say anything with regard to a possible decision to stand this matter over until Monday? MR VAN ZYL CHAIRMAN MR (?) Could we possibly make it 10 o'clock, because we are all flying from Johannesburg. CHAIRMAN 10 o'clock Monday morning. MR MACADAM /cross-examination, PROCEEDINGS ADJOURNED TO 1997/07/11 /PROCEEDINGS RESUMED