Ann Eveleth
KWAZULU-NATAL attorney general Tim McNally has again come under fire from the Investigation Task Unit (ITU)probing hit- squads in the province after he declined to prosecute the third hit squad-related case brought before him since the October acquittal of former defence minister Magnus Malan and 19 others.
The ITU’s civilian board convenor Howard Varney said he saw “little prospect of organised political violence being exposed and stopped through the administration of justice” after McNally this week refused to prosecute former KwaZulu Police (KZP) commissioner Lietenant-General Roy During and two senior KwaZulu government officials in connection with an illegal arms cache uncovered in 1993.
Last week McNally declined to prosecute former KZP deputy commissioner Brigadier Sipho Mathe in connection with allegations he issued a false police appointment certificate to a Caprivi- trained hit-man who had admitted to committing 24 murders.
Late last month McNally also declined to prosecute several senior IFP officials including provincial MPs on hit squad charges emanating from the 1995 trial of the Esikhawini hit squad. Varney said the cache referred to in the case investigated against During – comprising a light machine gun (LMG), a spare barrel and a large quantity of ammunition – was uncovered in a basement storeroom of the KwaZulu Legislative Assembly by a building manager in September 1993.
During arrived to investigate but, according to his own admission, stopped the investigation on the instruction of then KwaZulu chief minister Mangosuthu Buthelezi’s admnistrative secretary Stan Armstrong who he claimed was his “superior”: “According to During, Armstrong claimed that the weapon and ammunition was under the control of Robert Mzimela, then secretary of the KwaZulu government. Neither Armstrong nor Mzimela supplied During with an explanation,” said Varney.
The ITU investigated charges of defeating the ends of justice against During for his role in stopping the investigation, and charges of unauthorised possession of arms and ammunition against Armstrong and Mzimela, both of whom continue to enjoy similar senior positions under the KwaZulu- Natal Government.
McNally confirmed his decision not to prosecute in the case but said this decision was taken by a member of his staff. Explaining the decision, McNally said: “The memorandum drawn up by the ITU and which acompanied the docket indicates a lack of confidence in the case. It stated that `there does appear to be insufficient evidence against either Armstrong or Mzimela to make their prosecution on this case viable’. General During is described in the memorandum as `a relative innocent in the affair’ … The charge of allegedly defeating the ends of justice appears to have been something of an afterthought,” McNally said.
Varney said the most serious charges were those against Armstrong and Mzimela, but agreed the evidence was “not that strong”. Denying the charge investigated against During was an afterthought, Varney said the ITU had requested his prosecution by letter: “A strong prima facie case of defeating the ends of justice existed against General During. We should not have to explain to an experienced attorney general the seriousness of a police commissioner defeating the ends of justice.”
McNally’s office said, however, that there was “no evidence to suggest During … [was] defeating or obstructing the course of justice. In fact During set in motion the investigation regarding the [weapons] … The explanation of During that he recieved instructions from Armstrong must be accepted”.
Varney countered that McNally’s “assessment of the facts makes little sense. On During’s own version he admitted to stopping a police investigation into the possession of a highly lethal weapon which has since vanished … During was the chief of police. Armstrong was not During’s superior,” he said.
Varney added that the ITU regarded the case as “extremely serious”, especially in light of evidence led in the trial of Vlakplass commander Eugene de Kock that substantial weaponry from the SADF’s operations in Namibia was illegally procured, some of which were handed over to IFP functionaries in Ulundi: “It appears that light machine guns were amongst [these weapons],” said Varney.
McNally said “there is nothing in the papers available to me to suggest any link between the machine gun in question and Eugene de Kock”. McNally added that “Varney is an attorney who is employed by the Department of Safety and Security as the convenor of the ITB. His role is that of an investigator. So far as I am aware, he has no experience as a prosecutor. It is his function to oversee the investigations of his unit. It is the function of the attorney general and members of his staff to make decisions as to whether to prosecute or not.”