Justin Pearce
A CIVIL Co-operation Bureau (CCB) operative turned mercenary boss and a disabled youth from Alexandra township made unlikely bedfellows as litigants in the Consitutional Court this week.
In separate cases, Lafras Luitingh and Mokela Mohlomi challenged Section 113 of the Defence Act, which places limitations on the right of citizens to bring civil action against the Minister of Defence.
But the supreme court cases which saw Luitingh and Mohlomi become simultaneous Constitutional Court litigants were as different as the backgrounds of the two men. Mohlomi is attempting to sue the Minister of Defence after allegedly being shot by a soldier in 1994 and suffering permanent disablement. Luitingh’s case seeks compensation of more than R1-million for costs which, he says, he incurred after allegedly being forced to emigrate to the United Kingdom when the Harms Commission exposed him as a CCB operative in 1990.
Luitingh, now usually resident in South Africa, is one of the founders of the controversial company Executive Outcomes, which offers soldiers for hire and is currently employed by both the Angolan and Sierra Leonean governments.
Luitingh is one of three directors of the holding company Strategic Resource Corporation, which owns Executive Outcomes.
As personnel officer for the CCB’s Region Five (that is, operations inside South Africa), Luitingh was responsible for the employment of operatives such as convicted double murderer Ferdi Barnard, a former Brixton Murder and Robbery Squad policeman who told Luitingh he had shot activist David Webster in 1989.
Luitingh’s and Mohlomi’s cases were both referred to the Constitutional Court after the Minister of Defence, as defendant in both cases, argued both claims were invalid since summons was not issued within the six-month deadline specified by the Act. Mohlomi’s case missed the deadline by a few days thanks to a student at Wits Legal Aid Clinic who mistakenly recorded that Mohlomi claimed to have been shot by a policeman. Luitingh’s case, however, was brought to litigation only years after he was allegedly forced into exile.
The cases were brought to the Constitutional Court on the grounds that Section 113 violates the constitutional provisions on equal access to justice, equality before the law, free economic activity and fair labour practices. Central to the applicants’ arguments is the contention that Section 113 gives the minister greater protection against litigation than is available to ordinary citizens.
In court on Tuesday, Judge Didcott raised questions about the appropriateness of referring the Luitingh case to the Constitutional Court when factual issues of evidence had yet to be established by the supreme court. The case went to the Constitutional Court after applicant and defendant agreed that an early Constitutional Court ruling could potentially save much court time. If the court upholds the validity of Section 113, Luitingh’s case can go no further. If, however, Section 113 is overturned, his case will be subject to further deliberation by the supreme court.
Luitingh maintains he was connected to the CCB and the then South African Defence Force by means of a special contract. Luitingh is trying to make the Defence Force compensate him in terms of his contract, saying he was forced to leave South
Many other members of the CCB were paid out millions of rands in secret settlements in and out of court since the covert operation was disbanded five years ago.
Even if Luitingh is in principle entitled to compensation, the sum involved remains in dispute.