The Inkatha Freedom Party and the Truth and Reconciliation Commission (TRC) are gearing up for a legal showdown in the Cape High Court over the TRC’s finding that the IFP and its leader, Minister of Home Affairs Mangosuthu Buthelezi, were responsible for gross human rights violations during the apartheid period.
Buthelezi has applied for 37 findings against himself and the IFP to be set aside. He has requested the court to order that they be expunged from the TRC’s final report and all copies of the original interim report delivered in October 1998.
Earlier this year the TRC was interdicted from delivering the final report pending the outcome of the hearing, which is due to begin on January 29.
The case is the culmination of a long battle by Buthelezi against the TRC and its findings. The IFP rejected the amnesty process and, following the publication of the TRC report, sought unsuccessfully to bring a defamation action against the commission.
In an affidavit prepared for the resent case, Buthelezi complains that the TRC’s adverse findings have ”unjustifiably infringed the IFP’s and my own entitlement to a good name and reputation”. He argues that the findings could not have been based on ”factual and objective information and evidence” as is required by the TRC Act.
While Buthelezi’s complaints are wide-ranging, the issue raised in most detail in his statement relates to the finding by the TRC that Buthelezi was implicated in the establishment of an IFP hit squad trained by the former South African Defence Force (SADF).
This refers to the so-called ”Caprivi trainees”, 208 IFP members who were secretly trained by the SADF at the Caprivi strip in the former South West Africa. They thereafter fell under the control of Buthelezi’s then personal assistant, MZ Khumalo (currently the IFP’s secretary general). The top-secret operation was code-named ”Marion”.
Operation Marion and a 1987 attack on suspected ANC sympathisers in the KwaZulu-Natal township of KwaMakutha — carried out by Caprivi trainees — later became the subject of the infamous Magnus Malan trial.
Malan, the former apartheid minister of defence, and other senior military officers were acquitted in that case, as was Khumalo. The judgement also exonerated Buthelezi of any responsibility for the unlawful activities of the Caprivi trainees.
The TRC, however, found otherwise and held Buthelezi, the IFP and the SADF accountable for the KwaMakutha massacre and other attacks carried out by the Caprivi trainees.
Thus the scene has been set for what amounts to a civil ”retrial” of the Malan case, the outcome of which could have devastating implications for the credibility of either Buthelezi or the TRC. A key legal aspect at issue is the level of proof required by the TRC to justify its findings, particularly when they run counter to judicial decisions.
Buthelezi argues that in rejecting key aspects of the findings of Judge Jan Hugo in the Malan case, the TRC commissioners were either guilty of bad faith or failed to apply their minds. He complains: ”I have been held both personally and vicariously liable for gross human rights violations of which I have no personal knowledge and even if true could do nothing to prevent.”
However, the TRC is staunchly defending its findings and argues that Buthelezi has misunderstood the nature of its task.
Commissioner Richard Lyster states in a detailed replying affidavit on behalf of the TRC: ”I stress that the role of the TRC is different from that of a court of law.”
The task of determining legal liability is the task of a court, Lyster argues, while the TRC was responsible for assigning political, moral or personal ”accountability”, which is a different matter.
Setting out the basis of its decision to implicate Buthelezi in the setting up of a hit squad, thereby contradicting the Malan judgement, Lyster argues: ”The applicants [Buthelezi and the IFP] place great reliance upon this judgement as if it were binding on the TRC. This is an erroneous approach. The TRC was bound to form its own view of the matters within its mandate.”
He also refers to new evidence obtained by the TRC after the Malan trial, including the testimony of Colonel MA van den Berg, a key officer involved in Operation Marion.
It was Van den Berg who authored a top-secret report of one of his discussions with Buthelezi, stating: ”The Chief Minister was concerned because he was losing the armed struggle and he hinted/implied [hy het daarop gesinspeel] that ‘offensive action’ is still a requirement, meaning the use of ‘hit squads’.”
Asked to explain this report, Van den Berg, who did not testify at the Malan trial, told the TRC: ”I am saying at this point that things developed to the point where I understood the Chief Minister to say by offensive action, [he meant] hit squads … It should not be delimited only to hit squads, but it certainly includes hit squads.”
Lyster also quotes the testimony of Colonel JA Niewoudt, who was involved in training some of the IFP recruits, saying ”the aim of the offensive group was to attack and eliminate ANC targets”.
Lyster states: ”The averment that the applicants [Buthelezi and the IFP] always used lawful methods is disputed. All the major political parties adopted violence and unlawful methods to achieve their political ends. The applicants were no exception.”
While the case is politically significant, it could get bogged down in legal technicalities — and even be dismissed on that basis. The IFP has complained that it has been denied a copy of the full record of information on which the TRC based its findings, despite a 2002 court ruling ordering that such documentation be supplied. Due to this, its legal representatives argue they have been unable to prepare a proper case.
The TRC, on the other hand, has called for the dismissal of the case, arguing that the IFP and Buthelezi should have made representations to the TRC rather than to a court, so that these issues could have been considered in the drafting of the final report.