This resource is hosted by the Nelson Mandela Foundation, but was compiled and authored by Padraig O’Malley. It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
TEC Report on KZN Hit Squads (2)
PROGRESS REPORT FROM LEGAL ADVISORY SERVICES CONCERNING SECURING THE ATTENDANCE OF Lt-GENERAL DURING AT A TEC MEETING FOR PURPOSE OF PROVIDING INFORMATION, DOCUMENTATION AND EXPLANATIONS ON HIT SQUAD ACTIVITIES WITHIN THE KWAZULU POLICE
Pursuant to the TEC decision of 25 January 1994 to mandate the Management Committee to take all necessary and legal steps to secure the attendance of Lt-General During at a TEC meeting, the following steps were taken:
1. In the light of the urgency of the matter the decision to commence instituting with legal action was taken in consultation with the Joint Executive Secretaries.
2. Attorneys MacRobert De Villiers Lunnon and Tindall Inc were instructed to act as attorneys for the TEC.
3. Advocate Malcom Wallis S.C. (Durban Bar) and Gilbert Marcus (Johannesburg Bar) were instructed to settle all court papers and move the application to ensure LtGeneral During's attendance.
4. The application was duly prepared and attested to but was held back for service on the Respondents, pending a decision by the Management Committee authorizing that the application proceed.
5. On Monday 31 January 1994 the Management Committee authorized proceeding with the legal action, but further resolved to hold back the action until 11:00 today, pending a final attempt to secure the co-operation of Lt-General During.
6. Lt-General During once again declined to respond favourably.
7. The Management Committee decided to proceed with service of the application.
8. The TEC's attorney's have been instructed to serve and file the application.
DATE: 01 FEBRUARY 1994
IN THE SUPREME COURT OF SOUTH AFRICA (DURBAN AND COAST LOCAL DIVISION)
CASE NUMBER:
In the application of
THE TRANSITIONAL EXECUTIVE COUNCIL and LIEUTENANT GENERAL ROY PETER DURING THE MINISTER OF POLICE : KWAZULU THE GOVERNMENT OF THE SELF'.GOVERNING TERRITORY OF KWAZULU | Applicant First Respondent Second Respondent Third Respondent |
AFFIDAVIT
I, the undersigned
TREVOR DEON RUDMAN
do hereby make oath and say:
1.
I am the Executive Director of the Transitional Executive Council and I am duly authorised to make this affidavit. The facts contained herein fall within my personal knowledge unless the context indicates to the contrary and are true and correct.
PARTIES
2.
The Applicant is the Transitional Executive Council (the TEC), a council established in terms of Section 2 of the Transitional Executive Council Act, 1993 (Act 151 of 1993), (~the Act').
3.
The First Respondent is Lieutenant General Roy Peter During (Lieutenant General During"), an adult male, employed by the KwaZulu Police as Commissioner of Police : KwaZulu and as such a person in the service of KwaZulu. The Commissioner of Police: KwaZulu is, in terms of the KwaZulu Public Service Act, 1990, (Act 5 of 1990 as amended), the head of the department of Police.
4.
The Second Respondent is the Minister of Police: KwaZulu who is cited herein in his official capacity by virtue of the powers and duties vested in him in terms of the KwaZulu Police Act, 1980 (Act 14 of 1980), and also by virtue of the interest that ho may have in this matter, of the KwaZulu Government Building, Ulundi, KwaZulu.
5.
The Third Respondent is the Government of the Self-Governing Territory of KwaZulu (the KwaZulu Government") being a self-governing territory as defined in Section 38(1) of the Self-Governing Territories Constitution Act, 1971 (Act 21 of 1971), who is cited herein by virtue of the interest that it may have In this matter, of the KwaZulu Government Building, Ulundi, KwaZulu.
THE TRANSITIONAL EXECUTIVE COUNCIL ACT
6.
The objects of the TEC are set out in Section 3 of the Act which states the following
3. The objects of the TEC shall be to facilitate and promote, in conjunction with all legislative and executive structures at all levels of government in South Africa, the preparation for the transition to a democratic order in South Africa by -
(a). creating and promoting a climate for free political participation by endeavoring to-
(i). eliminate any impediments to legitimate political activities;
(ii). eliminate any form of intimidation which has a bearing on the said transition;
(iii). ensure that all political parties are free to canvass support from voters and to organise and hold meetings and for those purposes have access to all Voters;
(iv). ensure the full participation of women in the transitional and electoral structures and processes;
. and
(v). ensure that no Government or administration exercises any of its powers in such a way as to advantage or prejudice any political party;
(b). creating and promoting conditions conducive to the holding of free and fair elections;
(c). exercising such powers and performing such duties as may be conferred or imposed upon It by any other law.
7.
The general powers of the TEC are set out in Section 7 of the Act. Reference to this Section will reflect that the TEC shall, in addition to the other powers conferred upon it by this Act or any other law, for the purpose of attaining its objects, have the power to:
(a). Request and obtain, subject to any other provision of this Act, i such Information and documents as may be necessary f~ attaining its objects; and
(i). Take such steps, including legal steps, in terms of any law or fr common law, as may be necessary to give effect to this Act or I any decision taken by the Council or a subcouncil under this Act C any other law.
8.
The Act is applicable In all self-governing territories including KwaZulu. This I confirmed in Section 21(1) of the Act which provides:
Notwithstanding the Self-Governing Territories Constitution Act, 1971 (A~ No 21 of 1971), or any other law, this Act and any amendment thereof c addition thereto under Section 28, shall also apply In all self-governing territories."
9.
The following is stipulated in Section 24(5) of the Act:
A Minister or head of any Department of State or a person designated b such Minister or head, or any other person in the service of the State shall, when requested to do so by the Council, or a subcouncil, attend an meeting of the Council or subcouncil at which a matter relating to the functions of that Department and the objects of the Council is to be discussed and shall at such a meeting, subject to the other provisions of this Act, furnish such information or document or explanation In connection with such matter as may be required with the Council or subcouncil."
BACKGROUND TO THE PRESENT DISPUTE
10.
Due to the unacceptable level of violence In South Africa the Prevention of Public Violence and Intimidation Act, 1991 (Act 139 of 1991) was passed, inter alia, for the purpose of facilitating the Investigation Into the phenomenon of public violence and intimidation to enable recommendations to be made, inter alia, regarding the steps to be taken to prevent public violence and intimidation. The Commission of Inquiry Regarding the Prevention of Public Violence and Intimidation ('the Goldstone Commission") was established pursuant to the provisions of Act 139 of 1991 and has investigated a wide variety of matters.
11.
Moreover, the TEC was established for the purpose of promoting the preparation tar and the transition to a democratic order in South Africa. That process is severely threatened by acts of violence and intimidation which render it extremely difficult to create and promote conditions conducive to the holding of free and fair elections.
12.
Whilst a National Peacekeeping Force is being established it is clear that the bulk of responsibility for maintaining law and order and enabling an election to take place In a peaceful environment as well as the responsibility for the investigation of criminal acts and intimidation will be with the various police forces in South Africa. It follows that if there are acts of political violence perpetrated by members of a police force, that makes it extremely difficult for that police force to discharge its functions and diminishes public trust and belief in that police force to fulfil Its functions. This may encourage people to take the law into their own hands and will discourage them from co-operating with the police force in investigating crimes when they occur.
13.
On 6 December '1993 the Goldstone Commission presented Its Fourth Interim Report to the State President. A copy of this report is attached as annexure "A".
14.
In paragraph 2 of annexure "A" the Goldstone Commission indicates that It had received credible evidence of a hit squad which at the time of its activities consisted of members of the KwaZulu police. The Goldstone Commission states that the facts had come to light In consequence of a request by Lieutenant General During to the South Africa Police. An investigation had been undertaken by Brigadier E S Du Preez of the South African Police.
15.
The Goldstone Commission reports in paragraph 2.4 that:
"The evidence establishes the high probability that a hit squad consisting of 5 KwaZulu policemen has been responsible during 1992 and 1993 for the murder of no less than 9 people including leaders and members of the ANC."
16.
In paragraph 2.5 the Goldstone Commission reports:
"Having regard to the seriousness of a hit squad operating In a police force, the Goldstone Commission considers it to be in the public interest to make the above Information public at this stage. Apart from any other reasons, the implications in relation to the election make that imperative."
17.
In paragraph 2.6 the Goldstone Commission states:
"The Goldstone Commission expresses the sincere hope that this disclosure will be a spur to adequate steps being taken by all interested parties and organisations to prevent further deaths and injuries."
18.
The disclosures were viewed by the TEC in a most serious light having regard to the objects of the TEC referred to above.
19.
I will refer below to meetings of the TEC and Resolutions taken by the TEC at certain meetings. In order to avoid undue repetition I hereby confirm that all such meetings were lawfully constituted meetings in terms of the provisions of the Act and all Resolutions taken by the TEC were lawfully adopted pursuant to the provisions of the Act. I was present at all relevant meetings and I am accordingly able to identify and confirm the Resolutions referred to.
20.
At a meeting of the TEC on 9 December 1993 a Resolution was taken in the form of Resolution 1 which is attached hereto as annexure "B".
21.
In terms of this Resolution It was resolved that the TEC be provided with a full report by Lieutenant General During and Brigadier ES Du Preez "on the said hit squad and the possible existence of any other similar groups within the KZP. I directed letters (together with a copy of the resolution) to Lieutenant General During and Brigadier ES Du Preez on 9th December 1993. Copies of these letters are attached as Annexures "Cl" and "C2".
22.
On the 10th of December 1993 a telefax message was received by the TEC from Lieutenant General During. A copy of this response is attached as annexure "D".
In this annexure the following is stated by Lieutenant General During:
"I am directed to respond to your Council's Resolution I para 1(a) as follows:
The KwaZulu Government did not participate in the decision nor was It consulted regarding the establishment of the TEC and hence recognises no obligation to provide It with any Information. The fourth interim report of the Goldstone Commission was based on Information submitted to It by the South African Police for action by the Commission. Any further Information required by the Transition Executive Council should accordingly be sought from either the Goldstone Commission or the South African Police."
23.
Insofar as this response indicated any uncertainly as to the person to which the request was directed, the TEC adopted Resolution number 6 on the 14th of December 1993, a copy of which is attached as annexure "E". This Resolution was passed in order to clarify any uncertainty in regard to the fact that the request for information was directed to Lieutenant General During and not to the KwaZulu Government.
24.
At the same meeting the TEC established a Task Group. Attached as annexure "F" is a document confirming this and setting out the constitution of the Task Group and the directions given by the TEC to the Task Group. This Task Group is proceeding in terms of the instructions given to it.
25.
On the 17th of December 1993 I sent a letter by facsimile transmission to Lieutenant General During together with a copy of Resolution 6 (Annexure "2'). A copy of the letter is attached as annexure G".
26.
On the 20th of December 1993 a letter, dated 18 December 1993, was received by the TEC by facsimile transmission from Lieutenant General During. The letter was signed by Colonel T P Reed on behalf of Lieutenant General During, having been duly authorised thereto.
27.
A copy of this letter is attached as annexure "H". In this letter Lieutenant General During states that his response was that any request for information such as that envisaged in Section 15(l)(f) of the Act, must be directed not to himself as subordinate official but to the political head of his department in the KwaZulu Government.
28.
The TEC submits that Lieutenant General During was in fact obliged to react to the Resolutions taken by the TEC and that there was no justification for Lieutenant General During's refusal, on the grounds set out by Lieutenant General During or on any other grounds, to comply with the requests of the TEC.
29.
After the refusal by Lieutenant General During and furthermore, particularly as the TEC was of the view that a report of the sort envisaged In terms of Section 15(1)(f) would not be sufficient the TEC obtained legal advice concerning this matter of sell-evident importance. The TEC thereafter decided that it would be more appropriate to proceed in terms of the powers granted to it in Section 24(5) of the Act In order to obtain information, documents and an explanation from Lieutenant General During about what had been done, what was being done and what should be done within the KwaZulu Police Force to ensure that all these Involved in the hit squad or squads were dealt with.
30.
The TEC went into recess on the 22nd of December 1993 and resumed its activities on 11 January 1994.
31.
Upon resuming its activities and further considering the responses received fro Lieutenant General During, the TEC adopted a further Resolution, number 12, 18 January 1994. A copy of this Resolution is attached as annexure "I". In terms this Resolution the TEC requested Lieutenant General During, in terms of Section 24(5) read with Section 3 of the Act to attend a meeting of the TEC on Tuesday January 1994. The purpose of this request was to obtain from Lieutenant General During all information and documents at his disposal or in his possession, and also to provide such explanation as may be required by the TEC relating to the existence of the hit squad and/or hit squads referred to in the fourth interim report of the Goldstone Commission.
32.
I prepared a letter to Lieutenant General During dated the 18th of January 1994 enclosing a copy of Resolution 12 (Annexure "1") and Informing Lieutenant General During of the fact that the Resolution had been passed and requesting Lieutenant General During to attend a meeting to be held at the offices of the TEC on the 25th of January 1994. A copy of my letter to Lieutenant General During is attached as annexure "J". This letter was received personally by Lieutenant General During on the 21St of January 1994 (Annexure "J1').
33.
On the 25th of January 1994 a message was received by the TEC by facsimile transmission from Colonel Reed of the KwaZulu Police. A copy of this response Is attached as annexure "K'.
34.
In this response it is stated that Lieutenant General During was on vacation leave and would be returning to duty on the 31st of January 1994. It was further stated that:
"I am instructed to inform you that Lieutenant General During, on the instructions of the Minister of Police, KwaZulu, will not be attending the meeting scheduled for 14h00 on 25 January 1994."
35.
Lieutenant General During personally gave no reason for his refusal and/or failure to attend the meeting and he did not attend the meeting of the TEC on the 25th of January 1994.
36.
I refer to what is stated in Paragraph 21 above where I confirmed that in terms of resolution 1 (Annexure "B') Brigadier Du Preez was, like Lieutenant General During, requested to submit a report to the TEC. Brigadier Du Preez furnished the TEC with a report on 13th December 1993. This report reveals, inter alia, evidence of participation by members of the KwaZulu Police in various crimes including murder and the alleged instruction to eliminate leaders of the African National Congress. Furthermore, the report reveals that on the 13th September 1993, a team of detectives was assembled on a request of Lieutenant General During to look into the existence of a possible hit squad. Brigadier Du Preez expresses the Opinion that without the assistance of members of the KwaZulu Police the investigation would not have proceeded as it did and that the assistance of the KwaZulu police is imperative to the further successful investigation. I have deliberately not annexed a copy of the, report of Brigadier Du Preez since I have been advised that it contains the names of witnesses whose lives may be jeopardised should their names become public. The TEC is prepared to disclose the report to the legal representatives of the respondents and to this Honourable Court, subject to a suitable order being made in regard to its confidentiality.
SUBMISSIONS
37.
The Applicant views the situation that has arisen in an extremely serious light
38.
The existence of a hit squad in the KwaZulu Police and the high probability that such a hit squad has been responsible during 1992 and 1993 for the murder of no less than 9 people, Including leaders of the ANC, gives rise to grave concern and must be investigated by the TEC.
39.
I humbly refer again to the objects of the. TEC as set out in Section 3 of the Act arid in particular to the provisions of Section 3(a)(i), (7i1), (iii) and 3(b).
40.
It is submitted that:
40.1 Having regard to the objects Of the TEC, the disclosures made in the Goldstone Commission's report (Annexure "A') and in the report of Brigadier Du Preez, It is essential that the allegations must be Investigated by the TEC so that the TEC can, in the light of the results of that investigation, take the necessary steps to ensure that the operation of any such hit squad or squads be terminated, the persons responsible therefor detained and this threat to peaceful and uninhibited political action be removed;
40.2 The TEC is entitled to call upon Lieutenant General During to make available the Information and documents requested by the TEC In Resolution 12 (annexure "I');
40.3 Lieutenant General During Is obliged to comply with the request of the TEC and to attend such meeting in order to make available to the TEC the information, documents and explanation called for;
40.4 Lieutenant General During is a person falling within the category of persons mentioned in Section 24(5) of the Act and the information required falls within his personal knowledge and is directly relevant and material to the objects of the TEC;
40.5 The refusal and/or failure by Lieutenant General During to respond to I request of the TEC has no legal basis whatsoever;
40.6 None of the reasons furnished with regard to the refusal and/or failure Lieutenant General During to respond to the request of the TEC is justified in law and Lieutenant General During has made no attempt to appear personally before the TEC to furnish such explanation as he might ha for refusing and/or failing to appear.
40.7 Insofar as It is suggested in annexure "K" that Lieutenant General During was acting upon the instructions of the Minister of Police : KwaZulu (the Second Respondent), I have been advised and respectfully submit:
40.7.1 it was still incumbent on Lieutenant General During to appear before the TEC and to furnish such explanation;
40.7.2 In any event, the instruction of the Minister of Police: KwaZulu I an unlawful instruction In as much as the Act is, In terms of Section 21(1) of the Act, applicable in all self-governing territories.
RELIEF SOUGHT
41.
The first meeting of the TEC after the hearing of this matter will be on the 10th a February 1994 in the Saambou Building, 227 Andries Street, Pretoria at 13h00.
Should this Honourable Court be in a position to do so, it is requested that Lieutenant General During be directed to appear and to comply with the request of the TEC at the meeting of the TEC scheduled for Thursday the 10th of February 1994 at 13h00, alternatively at a meeting of the TEC scheduled to take place thereafter. At the hearing of this matter Counsel for the TEC will have details available of the meetings of the TEC scheduled to take place after the 10th February 1994.
42.
The Applicant humbly requests the above Honourable Court to grant an order In terms of the notice of motion to which this affidavit Is attached.
URGENCY
43.
In terms of the Fourth Interim report of the Goldstone Commission, It appears that the facts (relating to the existence of a hit squad), came to light In consequence of a request by Lieutenant General During to the South African Police for the South African Police to investigate the relevant allegations.
44.
It is submitted that it is urgent that the TEC investigate these allegations. The election in South Africa has been set to take place in April 1994. It is essential that clarity in regard to the allegations that have come to light be obtained by the TEC immediately. Of major relevance is the fact that the Tec's primary functions and objectives must be carried out in the very limited period prior to the election.
This fact is stressed in the Goldstone Commission Report (Annexure "A" Paragraph 1.4). The TEC needs not only to investigate the allegations, but also to address the steps that need to be taken within the KwaZulu Police to ensure that all persons involved in hit squad activities are dealt with and the necessary steps taken.
45.
I respectfully submit, as has been pointed out in the Fourth Interim Report of the Goldstone Commission (annexure "A"), that violence constitutes a grave threat to the forthcoming elections in April of this year. It is common knowledge that there Is an extremely high level of violence in Natal. The existence of a hit squad within the KwaZulu Police Force who are charged with the duty of maintaining law and order and investigating crime, self evidently poses a grave threat to the stability of the Natal region and to the attainment by the TEC of its objects.
46.
As the facts set out above Indicate, repeated attempts have been made to elicit information from Lieutenant General During and all such attempts have met with obstruction and lack of co-operation. The urgency which now exists has been increased as a result of the refusal by Lieutenant General During to co-operate with the TEC and to provide the TEC with the information and documents requested.
47.
In the result, the TEC has been frustrated in its efforts aimed at taking such steps as may be necessary pursuant to the information received by Lieutenant General During in order to perform its statutory objects as set out in Section 3 of the Act.
48.
The only basis upon which the co-operation of Lieutenant General During and the Minister of Police: KwaZulu can be obtained is by Court Order.
49.
Under the circumstances, the TEC humbly requests the above Honourable Court to deal with this application on an urgent basis and to dispense with the normal forms, service and time periods stipulated in the Rules of Court.
DEPONENT
THUS SWORN TO AND SIGNED before me, at PRETORIA on this the 30th day of JANUARY 1994, the Deponent having acknowledged that he knows and understands the contents of this Affidavit.
COMMISSIONER OF OATHS
NAME:
ADDRESS:
CAPACITY:
RESOLUTION NO.12 ON THE KWAZULU HIT SQUADS ADOPTED BY THE TEC 18 JANUARY 1994
The Council once again notes the Report of the Goldstone Commission concerning a hit squad within the KwaZulu Police and the possible existence of other similar groups.
In view of the serious consequences that the operation of such a hit squad and/or hit squads could have with reference to the attainment of the objects of the Council, it is resolved that the matter in question be further discussed at the meeting of the Council on Tuesday, 25 January 1994.
The Council further notes, in the light of the said Goldstone Commission Report and further information placed before it by Brigadier Du Preez of the South African Police that Lt. Gen. During, the Commissioner of the KwaZulu Police, will probably be able to furnish information and documents relating to the activities of such a hit squad and/or hit squads.
The Council resolves in terms of the provisions of section 24(5) read with section 3 of the Transitional Executive Council Act, 1993, to request the Commissioner of the KwaZulu Police, Lt. Gen. R.P. During, to attend the said meeting of the Council in order to furnish all information and documents at his disposal or in his possession, as welt as provide such explanation as may be required by the Council, relating to the existence and operation of such hit squad and/or hit squads.