About this site

This resource is hosted by the Nelson Mandela Centre of Memory, 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 It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.

Armed Forces Hearing

MK Appearance

10-10-1997: Day 4

Held At: Cape Town

CHAIRPERSON: I would like us to make a start and I begin by welcoming all of you who are attending this hearing. In a moment I will formally welcome the delegation from MK high command.

I want to put this in context and mention, for the record, that this is the final day of a four day hearing which started on Tuesday when the Apla high command was present and made a statement and answered questions. They, on the Wednesday we had the former SADF who were here. And yesterday the former South African Police and today we have former leaders of MK.

The purpose of the hearing is to try and reach as much information as possible to assist and enable the Commission to do the work which the Act of Parliament lays down. And in particular the Act demands of us, as a Commission, that we have as close to a picture and as full a picture as possible of what took place during the period of conflict, both motives and perspectives, perceptions, decision-making, communication, chain of command, accountability, etc. These are the kinds of questions that we have been putting all week and we will continue to do that today.

I want to remind you that this is not a court of law. No-one is on trial. At the same time we would ask that the decorum of a normal court shall be observed.

I want to also state that there is translation available, English, Afrikaans and Xhosa and if anyone wishes to avail themselves of that there are headphones and if you don't have a headphone please indicate that to one of our members of staff and we will make sure that you get that.

The Interpreters are a very hard-working group of people in that box over there. From time to time they may complain that one of us, either from the delegation or from the panel, are speaking too fast, they will indicate that if necessary and I will try and convey that so that we can achieve our work as efficiently as possible.

I want to welcome the media who are present and are present at all the work of the Commission and to remind us again that a formal decision was taken in the Parliamentary debate that the work of the Commission should be in public and not behind closed doors and there was a reason for that. The major reason as far as the Commission is concerned is that we do not want to see the TRC as a group of people sitting somewhere totally isolated from the rest of the country. That if there is any worth in the work of the

Commission at all, and I know there are many who would doubt that, but if there is any worth in the work of the Commission then it is right that as many people of the country should be apprised of that and obviously without the media we simply could not do that.

The final point in this regard is this, that if there is to be unity, if there is to be reconciliation in this country then you cannot reach that at least without knowing the truth. One of our objectives is truth-seeking and whether it be from victims, survivors or perpetrators, whether it be from the security forces or liberation forces makes no difference. We want as complete a picture as possible, so we are grateful for the cooperation that we have received from so many.

I want to introduce my own panel before moving directly on to the delegation. On my far left, Ms Mary Burton who is a Commissioner and is a member of the Human Rights Violations Committee and is based in Cape Town. On my left is Dumisa Ntsebeza who has many titles, one of which is head of our Investigative Unit, but also in the absence of Archbishop Tutu he is acting deputy chair of the Commission. On my right, Ilan Lax who is KwaZulu Natal, a member of the Human Rights Violations Committee and he's come to be part of these hearings for the entire week. My name is Alex Boraine, I am the acting chair of the Commission and will chair this session at least until lunch time, after which I am hoping very much that Dumisa Ntsebeza will chair the afternoon session. Mr Goosen on my right, assisted by Paul van Zyl will direct most of the questions, but obviously members of this panel are free to ask any questions and make any comments as well.

Mr Modise I would like to welcome you very formally as the leader of your delegation and I hope that you will introduce your delegation to us. All those who participate obviously have to take the oath, so once you have indicated what form this is going to take I will ask Mr Ntsebeza to assist you in taking that oath. So welcome and we would like to hear from you now. Thank you.

MR MODISE: Thank you Mr Chairperson. The delegation on my side is composed of Mr Abubakar Ismail, Minister Mac Maharaj; Deputy Minister Ronnie Kasrils; General Sipiwe Nyanda. In addition we've got Premier Matthews Phosa, who is part of the delegation. We have got Mr Sydney Gosho; we have got Miss Thandi Modise; we've got Mrs Geraldine Fraser-Moleketi; we've got Johannes Shabangu; we've got Zola Kakota; we've got Mrs Nosiviwe Naqkula. This is our delegation. We will do everything in our power to give this panel our fullest cooperation.

Mr Maharaj will field most of the questions that are coming, in fact he is leader of this delegation. Having said that Mr Chairperson I will then hand over to him, he may have a few remarks to make. Thank you.

CHAIRPERSON: Thank you Mr Modise. Mr Mac Maharaj.

MR MAHARAJ: I think the leader of our delegation seems to be making a distinction between commander-in-chief and leader. It's one that I am not familiar with.

Mr Chairperson as you are well aware this is the third time we will be present before the Truth Commission in its public hearings. We were in a little bit of difficulty when we received the subpoenas because we thought we had, as exhaustively as possible sought to answer the questions. So this time we are not opening with any statement, what we would offer you is our cooperation in responding to any questions that you may want to put to us, both for further clarity or any new matter.

For the rest let us repeat that we think that the Truth Commission process has been very important for our country. That many things that feature in our submission have been further elucidated by the work of this Commission. It is now possible in many instances to say that what we asserted as a general understanding from the point of view of the African National Congress have now been substantiated by the work of many hearings.

So we would say once more that the work of this Commission is very important for the processes in this country in healing the wounds of the past, in adding to the basis for reconciliation and taking us forward as a nation and as a country. Thank you very much.

CHAIRPERSON: Thank you very much. Mr Ntsebeza.

MR NTSEBEZA: Thank you Chairperson. I am not so sure whether all of the persons that you mentioned Mr Modise are going to be testifying in which event it may be convenient to swear all of you now.

MR MODISE: I think all of us will testify and I am sure we are ready to take the oath.

MR NTSEBEZA: Now I don't want to proceed on the basis of any assumption, are you all going to take the oath or are some of you or all of you going to make an affirmation? In which event those who are going to make an affirmation maybe I will just ...(intervention)

MR MAHARAJ: There will be clearly some affirmations and some oaths.

MR NTSEBEZA: I would have expected so.

MR MAHARAJ: We are a broad church after all. (Laughter)

MR NTSEBEZA: Yes. Maybe let's start with all of those who will take the oath and if they can stand and Minister Modise will read the names of those into the record.

MR MODISE: I omitted the name of Mr Fana Hlongwane who is also behind us.

MR NTSEBEZA: Now are these going to take the oath? Can you read their names into the record?

GENERAL ABUBAKAR ISMAIL:

JOE MODISE: (sworn states)

GENERAL NYANDA: (sworn states)

MATTHEWS PHOSA: (sworn states)

THANDI MODISE: (sworn states)

FANA HLONGWANE: (sworn states)

SYDNEY GOSHA: (sworn states)

MR NTSEBEZA: I see Mrs Nyakula at that back there.

MR MODISE: Madam Nyakula will take the oath.

MS NYAKULA: (sworn states)

MR NTSEBEZA: And if I can ask you Minister Modise for the same exercise, I think it will be Minister Maharaj this time. Mr Maharaj all those who are going to make an affirmation.

MR MAHARAJ: I am having a bit of difficulty I don't know their real names.

RONNIE KASRILS: (affirms)

ZOLA KOTA: (affirms)

GERALDINE FRASER-MOLEKETI: (affirms)

MAC MAHARAJ: (affirms)

CHAIRPERSON: Thank you Mr Ntsebeza. If for any reason anyone else joins your delegation and wishes to take part we will then swear separate oath or affirmation. Mr Goosen.

MR GOOSEN: Thank you very much Mr Chairperson.

CHAIRPERSON: So sorry, can I just make one other announcement, my colleague on my right who is from Durban seems to find it hotter here than anywhere else, whether it's the atmosphere or the temperature I am not sure, but he, as you can see, is without a jacket, if anyone from the delegation or in the audience would like to take their jackets off please do so. I forgot to make that announcement until very late yesterday.

Once again, Mr Goosen.

MR GOOSEN: Thank you very much Mr Chairperson. Minister Maharaj I will proceed by addressing questions to you, to the delegation, unless there's a specific question to address to anyone of the members of the delegation and I will indicate that.

In a political report of the NEC to the Consultative Conference held in 1985 the following statement was made which was quoted in "Oliver Tambo speaks".

"Our conference itself would be remembered by our people as a council of war that planned the seizure of power by these masses; the penultimate convention that gave the order for us to take our country through the terrible but cleansing fires of revolutionary war to a condition of peace".

In similar vein a passage that is extracted from the book by Minister Ronnie Kasrils, Armed and Dangerous, is as follows:

"We were succeeding in our main objective of locating armed resistance amongst the mass of the people. For every one operation launched by MK combatants there were scores carried out by a mobilised population. Between September 1984 and April 1986 over 800 policemen's homes were attacked".

The strategy of people's war, the revolutionary strategy of people's war, much of which we have been debating during the course of this week, would you agree that that strategy of necessity meant the blurring of distinctions between trained armed soldiers and ordinary civilians who were caught up in quasi military formations such as amabuto or SDU's in the later period?

MR MAHARAJ: Chairperson first of all the strategy of people's war was a development based on the fundamental premise that ours was a just war. That just war was directed at a system of rule which we knew as apartheid. And apartheid was, both ideologically and practically a system of governance based on the ideological premise that there existed in this country a super race, which by virtue of being a super race had the right to rule over all others and to subjugate them. The people's war strategy therefore was a development in the course of that struggle.

The distinction between civilians and combatants had, as President Tambo repeatedly said, been blurred by the activities of the apartheid regime. In fact I recall being present at Matola when the apartheid regime raided Mozambique and homes were raised to the ground, where the President asked, if you say that people who were living in those homes were armed and therefore justify the South African regime's attack then the question arises, aren't all white South Africans then legitimate targets? Because white South Africans possessed arms in their private homes. We did not accept that distinction but we said, this is the reality in South Africa and yet the South African regime was at times appearing to justify its actions against civilians both inside the country and abroad by saying that those were reported to be armed homes.

Kabwe made the second point that in the intensification of the struggle until then we had always sought to avoid an operation which had a likelihood of leading to injury or death of a civilian, be that civilian white or black, Kabwe acknowledged that that rigid condition would have to be relaxed. Debates had often taken place and continued to take place in our ranks, often to take the easier route to abandon our principled policy positions and seek to strike at the enemy at its most vulnerable and easiest spots.

The President then was simply saying that the strategy of people's war would rest on the concept of an uprising by the people and that our role as the armed formation was to enhance that capacity.

So that is how the issue was posed. Whether that necessarily leads to a blurring is a debatable question, because what we were saying was that the regime had even located its armed forces within highly dense, whether commercial areas or residential areas, and if we had sought to get to grips with the regime's forces necessarily we had to accept that at times civilians would be caught up. So that was an acknowledgement of that reality.

If I recall the Kabwe meeting took place two days after the Gaberone raid. That raid killed civilians. Those civilians were not just South Africans, they were Botswana citizens. Men and women and children were killed there. And it was against that context that you must understand the question and the answers that our President put.

MR KASRILS: Yes Mr Goosen since you quoted a book of mine which actually has been in the news this week in terms of the FBI, I think from your question about for every action of MK, 20 actions from the people. Every struggle invariably starts with a small number of people who seek to show the way forward, whether it's Ghandi leading peaceful non-violent group to swell the ranks to involve the population against inequity, or when those channels of peaceful change are blocked you have a movement turning to armed struggle, invariably starting very small in numbers and the whole objective is to mobilise people to bring them into action and with us, when we saw in '76 the youth rising, enjoining MK, we saw this as a great step forward in the struggle to overthrow apartheid.

In the eighties where this reference comes from we saw the fact that people now were rising as evidence of their involvement in what Mac Maharaj has referred to, the people's war, the objective of an uprising by our people, and that's why I formulated that statement in my book that way.

MR GOOSEN: I think that's really the point that I am trying to make. I am not looking at it from the point of view of the actions of MK directed at civilian targets, we can come to that a little bit later, but from the point of view of the capacity of MK to engage in a people's war was dependent upon the ability of MK to mobilise, not only trained combatants, formally trained combatants of MK, formal members of MK, but also the general population, youth workers, students and so on, into armed formations and to prosecute the people's war on the basis of that people's army which comprised not only MK, as armed combatants, but armed formations, and in that sense that the distinction between armed combatants and trained combatants and mobilised masses blurred the distinction.

MR MAHARAJ: That would be too narrow an interpretation because at all times ANC policies emphasised the centrality of the political struggle and whilst the people's war strategy saw the culmination in terms of a mass uprising that mass uprising could take many forms. One of the dreams of all revolutionaries against unjust system has been the possibility of a general strike which would bring the country down to its knees. And in many instances where a general strike has been sought to be the expression of that uprising it becomes necessary if the ruling authority were to use force to also ensure that there is some defence capacity. The ANC has never been a movement which would put forwards a theoretical, analytical perspective for a strategy and simply insist that the reality must bend to that theory. The art of revolution has been to adapt the strategy to the realities that you meet on the ground.

So I am saying to simply say it is a natural consequence of those positions that that blurring would arise does not follow.

The second is the way in which the struggle was shaping up inside the country. One of the great advantages that we today have, which has brought us to this democracy has been the very high level of politicisation of the mass of the people in South Africa. It's a unique feature in the world. Now when you look at some of the targets, as we have explained previously, often it is the people in that area who would know best within the system which particular individual epitomised that system in their day-to-day life. None of us could say so from afar.

What has also come out in the recent past is often many masqueraded as civilians from the regime's side, even sometimes it's armed forces went into covert operations pretending to be civilians, because they were dressed in civilian clothes, but they would be known to the people that this one is from the security forces. In fact my whole experience of the security forces, from the police section was all of them, my own personal torturers and the torturers of others did their work in civilian clothes.

And that has also been illustrated the way, for example the Pretoria bomb, was reported upon. We now know better how much the former regime manipulated the way in which the reports would go into the media. In the Pretoria bomb case there was an early report, if I remember correctly in one of the papers, possibly the Rand Daily Mail which said immediately after the bomb there was a phalanx of uniformed people on Church Street. But the reports kept on talking about 19 people as if they were civilians. No newspaper sat down and said let's take the names, were they working at the Air Force headquarters, were they part of the Air Force staff or officers.

So I am saying we need to be a little bit careful on that blurring. I accept that if the struggle had reached its culmination by means of an armed uprising there was a great likelihood that the distinction would have been substantially blurred.

MR GOOSEN: But from the perspective, from the perspective of the security forces, the fundamental element of the revolutionary strategy was to utilise the population as cover and in fact to galvanise the non-combatant population into armed action, and that that was the key component of MK strategy through the 1980 period.

MR MAHARAJ: The very nature of our struggle was that it was the oppressed people whom we had to mobilise and against whom - within which and amongst that population that we had our greatest safety, and it is for that reason also we justify the just war and the tactics that we used. Our tactics were not to indiscriminately attack the civilian population and even in mobilising the public our tactics were to remind them that it is a political struggle against a system. And from the formation of Umkhonto we emphasise that we had to use tactics to try and avoid this from degenerating into a race war where people, because of their colour, would be legitimate targets.

MR GOOSEN: In those circumstances, in the circumstances in which as a key component of revolutionary strategy MK utilises the population as cover how do the security forces distinguish between what they in their terms termed "terrorists" and those who were not terrorists?

MR MAHARAJ: This is the fundamental misconception of all minority oppressors who are in power. They would portray us as terrorists. We were not terrorists. There is a clear distinction, even in the literature of revolutions between terrorism, guerilla warfare, people's war. Terrorism would be the indiscriminate use of bombs put in all sorts of public places simply to frighten the oppressor community into succumbing. We avoided that.

But when the security forces put that perspective the underlying assumption is that the oppressed majority were happy with their condition, that it was just a bunch of agitators and terrorists who were the trouble-makers. And it is from that assumption that gross violations of human rights becomes systemic in the apartheid system, because of that assumption.

Our position was the opposite. It was a political struggle where we had to make the mass of the people who were objectively oppressed and exploited to understand their oppression and therefore to stand up and join the political struggle against that oppression. When we, who were part of the people, lived amongst the people it was not as cover, it was in order to mobilise that population into struggle. Of course from the security forces who saw all black people as inferior people and who saw us as simply agitators and troublemakers and intimidating the masses into supporting the struggle they would pose the question as taking cover.

When I was in this country illegally I took cover in the white areas. In fact I lived in a garden flat where the owners of that flat would invite top officers of the SADF to a braai and I went to one such braai. It was my best cover, because they never assumed that a so-called terrorist would live within their ranks. Because the situation which I found in 1988 if I was living in a black area it would be more likely that I would be arrested by accident because the townships were under a reign of terror. Any black person in any group moving about the streets was assumed to be a troublemaker. So that's the difference. And I think that when the security forces pose the question that way it is based on their misconception of the nature of oppression and the nature of the struggle.

MR KASRILS: Mr Goosen I just want to add very briefly ...(intervention)

CHAIRPERSON: Mr Kasrils.

MR MAHARAJ: Okay, thanks Chairperson. I just want to add that that attitude of the former government, of the security forces to justify their actions, their terrorism against a population as a whole is reminiscent of the Nazis - few hundred people in the Warsaw ghetto rose justly against their persecution, the Nazi response is they having cover in the ghetto, the people provide that cover, wipe out the ghetto, Americans at Mai Lai, Vietnam, nauseating litany throughout history is linked to that kind of insidious philosophy of the former government and security forces.

CHAIRPERSON: Mr Ntsebeza wants to just make a particular point here.

MR NTSEBEZA: Thank you Chairperson. I think, let's just forget about the terminology that is being used, I have no, personally, I have no problem accepting your explanation and distinction between what constitutes and what does not constitute a terrorist, but I think since we are dealing with trying to find out what were the motives and perspectives of all the armed forces one of the views that has been indicated to us by other armed forces who have come to us is that what they call terrorists, which you would define otherwise, use the people as their bush, which in classic terminology conforms to a revolutionary strategy, Maoism and all that sort of thing. Now, and I think what the question seeks to establish is what - how would the security forces distinguish, or how did you expect them to distinguish between trained freedom fighters, who obviously in the nature of terror warfare would not appear to the ordinary person as trained persons, they would be ordinary civilians like yourself in that white suburb, now how would they be able to distinguish between yourselves and other persons who were not trained combatants? In other words who were not trained freedom fighters amongst whom they found themselves. See it from their perspective, and see it most probably against the background of an attitude of mind in them that said well when you are going to eliminate or neutralise or whatever, all those words that they used, you must not only deal with trained persons you must deal in the same way with their fellow travellers and all those who associate with them, because in the end they are all of the same mind.

MR MAHARAJ: Chairperson it is important to recognise that often we've had to try and locate ourselves in the enemy's mind. That's the only way you can lead them into an ambush so I will try to make that effort.

If they were genuinely saying that they were looking just for the trained MK cadre they would recognise that their fundamental premises has to be changed because they saw all black people as enemies, and they saw every white person, as the struggle developed, who stood up in any vague way to speak against the injustice towards the black people, they saw that person as the enemy too.

In the recent evidence coming up before this Commission one security force member now says that in Pretoria, as part of his covert operations, he bombed white houses in Pretoria and made them appear as if they were houses bombed by and attacked by the ANC. I think it is Eugene de Kock who said that.

So when they try to maintain that they were seeking to find the trained MK operative they are not speaking the truth. They saw blacks and any white who in any way supported any, opposed any form of injustice, they saw those as enemy. Because if they wanted to make the distinction very carefully then they would use their intelligence capacity more intelligently than they did.

The evidence is clear that from the fifties, even before the armed struggle, they were infiltrating the ANC and the Congress movement, both as provocateurs and as sources of evidence to try and pin us, in terms of their law, to be guilty of crimes in prosecuting the struggle. And it is now known that they had an extensive intelligence capability. They had spies sent into our ranks, into our camps reaching all sorts of positions in the ANC and therefore they would use that information to sift out if they did not make the assumption that every black person is the enemy. They didn't do that.

In fact they did the opposite. They always assumed that if a person was speaking and standing up against injustice that person must be a threat to the State and must be a member of the ANC and must be possibly MK.

You now have the same justification put by them when they say how they and why they killed Mthimkulu in the Eastern Cape. They say that this young man was the gravest threat to the security of the State, therefore even after he was released from detention, poisoned and virtually confined to a wheelchair they still had to go and kill him and kill him in a way that looked like he had gone to join the ANC.

Now let's put ourselves in their minds from the arguments that they are using and from the reality of the way they were conducting themselves. If we only confine ourselves to their statements then I say there would have been a clear, sophisticated mechanism which says the majority are not with them, these are just troublemakers, we need to cream off the troublemakers. We need to be systematic. Because if we hit more people than the troublemakers we damage ourselves, those mass of the people who are happy will become disaffected. But when we put their practice on the scale we realise it doesn't conform to the justification. This is a rationale that they are putting forward, justifying their actions and seeking to garb it in a way that makes it acceptable and I reject that.

So I have made this effort, I can go on and on about how racism has been their instrument but their greatest downfall, their greatest downfall. In prison in communications, when they had severed all our communications with the rest of the sections and when we were using the toilets in the isolation section, the rim of the toilets as the communication mechanism, and they found that mechanism, they broke our communications. We had no way to reach our comrades in the rest of the prison, but analysing the officer we put our excreta into that rim and we watched the officer when he went and put his hands there, he never went back to touch that rim and we resumed communications. (Laughter)

CHAIRPERSON: Mr Modise

MR MODISE: Thank you Mr Chairperson. To respond to the question that was put by Mr Ntsebeza, the excuse that has been given that when they come out against the people they are looking for MK because MK is hiding amongst their people. The question of June '76 when those schoolkids were drowned in their own blood were they looking for MK? Was MK dressed in school uniforms, gym dresses? It was not. It is the same attitude that Minister Mac Maharaj has explained here. The enemy was the black person and when they came out to come and butcher the oppressed they were indiscriminate in many instances.

CHAIRPERSON: Mr Goosen.

MR GOOSEN: But Mr Modise is it not so that when you mobilise an irregular army you exhort people to arm themselves, to utilise whatever arms, mechanisms are at their disposal, to attack, to go on to the offensive, that you unleash forces which ensure that the, if you like, from your perspective, the disciplined guerillas are no longer the sole group responsible for armed action, but that armed action embroils whole communities, armed formations that develop? Does that not carry with it the consequence that those armed formations become targets themselves, legitimate targets from the perspective of the security forces for military action or security force action?

MR MODISE: The South Africans were not the only ones who employed such methods to liberate themselves. Here we are talking about an oppressed people, a people who are brutalised, a people who are murdered on a daily basis, what did you expect us to do? We had to call upon the people to defend themselves and to use whatever methods they could to protect themselves, protect themselves against oppression, protect themselves against the rampant slaughter that was taking place in this country. Our country was drowned in blood.

And it is this regime that regarded, I mean it is that racist regime that regarded every black person who stood against them, who stood against oppression as the enemy.

Yes we encouraged people to liberate themselves and many people throughout the world who have been oppressed took that route and our people had the right to struggle for liberation, they had the right to defend themselves. So it was within our right to call upon the people to defend themselves against these brutalities.

Yes, I agree with you that when you have a people's war, and that statement has been made before, then the targets begin to get blurred. But what must not be forgotten that amongst those masses there was organisation. We had people's leaders amongst them and the policies of the movement were put across most of the time.

And also some of the atrocities that have been carried out

MR MAHARAJ: May I just add to that Chairperson.

CHAIRPERSON: Mac Maharaj.

MR MAHARAJ: If we look at our submission in August 1996, page 52 in the second column halfway down we refer to a pamphlet that the ANC distributed in the country called "Take the struggle to the white areas". In that it made a call to the people, and it gave them a guidance what they should be doing in taking the offensive in the struggle. It was not just saying take arms and start shooting. It said number one -

"Strengthen our worker's organisations and engage in united action in the factories, mines, farms and suburbs".

That's disciplined industrial action, not shooting away like cowboys.

Secondly, "Spreading the consumer boycott to all areas of the country".

Again not a violent form of action.

Thirdly - "Organised and well-planned demonstrations in the white suburbs and central business districts".

Then, "Form underground units and combat groups in our places of work and taking such action such as sabotage in the factories, mines, farms and suburbs and disrupting the enemy's oil, energy, transport, communications and other vital systems.

Next point - "Systematic attack against the army and the police and the so-called Area Defence Units in the white areas".

Last - "Well planned raids on the armouries and dumps of the army, police, farmers and so on to secure arms for our units".

So this call was being made with a very clear focus, there's a multiplicity of forms of actions. So we should not be reading this particular area of arm yourselves to simply mean that the focus of action was simply to get arms and shoot. All these actions, in the context of South Africa of the time, if even workers went on strike would often lead to the police and security forces acting against them indiscriminately and violently, and may necessitate a further development of defending yourselves.

So I think that if you locate it in terms of that, what we were putting forward and policy and guidelines and if you locate it within

CHAIRPERSON: Could I just before Mr Kasrils speaks, just for the record could you, I know you've made this before in your submission but I can't recall the - when was that call made, what year, can you remember?

MR MAHARAJ: 1985.

CHAIRPERSON: Thank you very much.

MR MAHARAJ: After the - 1985 after the Vaal Triangle was burning.

CHAIRPERSON: Thank you very much. Mr Kasrils.

MR KASRILS: It provides me with a cue, Chairperson, to focus on what I feel Mr Goosen is focusing on. Mr Maharaj has said that this was in the context of the Vaal Triangle burning, why was the Vaal Triangle burning? Why did Sebokeng rise up? Because the people were under attack by the security forces and the government of the day and its policies, that's why. That's why. And there's a litany of this in our history.

Our presentations in the past, the two past presentations

Kennedy had put it in a brilliant way when he said that those who make peaceful change impossible make violent change inevitable. So it's a question as we, as the ANC has put it in its submission, that apartheid was genocide against the people of this country, the black majority. They were out to kill people who rose because they found that the system was unjust. They killed people if people attempted to demonstrate and protest. So they are absolutely out of order in history, and they place themselves with all the tyrants of history when they say that they unleashed violence on a people demanding their rights because guerilla resistance or freedom fighters were opposing them, and they couldn't distinguish between the freedom fighters and the population as a whole, and therefore it's the freedom fighters who are to blame for the security forces of a tyranny having to deal with the people in this harsh way. That's what is behind, that's the philosophy behind this rationale. And that's why Mr Modise is perfectly correct when he points to the schoolchildren of Soweto in 1976.

CHAIRPERSON: Thank you. Mr Abubakar.

MR ISMAIL: Mr Chairperson to come back to the question that has been raised about the fact that they could not identify the combatants or members, trained cadres of MK, one raises the question, if there is a saboteur moving around the streets do the security forces simply go and bomb the entire suburb because there's a single saboteur there?

One raises the question, if there's a spy what did the Americans do? They used the sting operation to ferret out those spies. They didn't round up the entire population and chuck them into prisons. Now that is the equivalent of what the regime was doing.

They did that purely because of the racist ideology of apartheid, because they saw blacks as subhuman and didn't care about their rights, and therefore they thought they could do it. What did they expect the population to do? The population as a whole arose. It is not only the combatants that were there to fight the regime. The entire population was fighting the regime.

CHAIRPERSON: Mrs Burton.

MS BURTON: Thank you Chairperson. My question is prompted really by my experience serving on the Human Rights Violations Committee and working our way towards making findings because we find that there's blurring of a distinction between the population as a whole and combatants, sometimes raises questions in our minds

Now among the attackers there might be some trained personnel or there might be local people who were mobilised into a unit or there might be local people simply motivated by their own political experience, their own experience of living in that area, their own political awareness of the mass resistance that was happening in the country, but probably not trained, not anticipating what the consequences might be of their actions, if they are shot or killed or injured are they not victims of the situation as much as they are of the action taken against them? Are they combatants? Are they victims?

How do we find in these situations where the distinction is so blurred?

MR MAHARAJ: I think that you've got to - the question of victim or perpetrator is a very difficult one because it keeps shifting and it's tempting to want to go to the original cause or the original sin, but it doesn't answer the question completely.

I think General Ismail made a very interesting point. The regime's forces would hear that there's a problem in this township, maybe people are not paying rent or they are demonstrating at the rent office, but using its understanding that that could not be normal activity by people, it must be incitement by some agitators, and using this spectre of the ANC as a foreign, communist dominated terrorist force there must be an agitator amongst them. What they did was to go and bomb them all. Now what it does then, if you ask victim, perpetrator, combatants, I think there is a problem there if people went to the rent office protesting against having to pay rent, there's no way, Chairperson, that we can caste them into the combatant role. It's a legitimate right to protest. So no way can we just put combatant therefore and shift it to a military terminology.

But what they did, as General Ismail says, is go and bomb all of them. But worse for something that happens in Sebokeng they go and bomb Gaberone. So it's not even those people that are involved on the rent boycott that are attacked and bombed it's somebody else in another country. That gives us some bearing to this problem.

The other side of it also, is that Mr Goosen has been asking me by looking at the statements made in 1985 by the President after Kabwe, let's look at what we were consistently saying even after

"Our combatants must continue to distinguish themselves from the apartheid (...indistinct) forces by the bravery of its combatants, its dedication to the cause, its refusal to act against civilians both black and white".

That is in our submission page 53, the first one.

" '88 August - The National Executive. The ANC..." again a public statement to the people - "The ANC hereby underscores that it's contrary to our policy to select targets whose sole objective is to strike at civilians".

So it's not just one statement at Kabwe.

But if you look at the other side what it was doing, every form of protest was cast in the mode of an MK operation inciting the masses and therefore attack the masses. That's the mindset that will give us a chance to work through this problem and realise that

CHAIRPERSON: Mr Maharaj can I just take this one step further. General Viljoen was before this panel earlier this week and in the course of his presentation he made a very strong point, which we have been skirting around, that the security forces had no alternative but to step up their attacks, if you like, on the - flowing from the attacks which they interpreted and in the townships and he used this phrase, which is not his, it's an ANC phrase I think, but you can correct me if I am wrong, he said -

"That the call to make the country ungovernable led to the destruction of schools, churches, shops, houses, people being killed and/or injured and as a result of that the security forces had no alternative but to move in and to oppress or suppress the uprising as you have described it".

Do you want to comment on that?

MR MAHARAJ: Well I have great respect for General Viljoen as a military strategist but it illustrates, very graphically, the problem in looking at this apartheid history of our country. It is looking at the mandate given to the security forces and taking a political problem and seeing it as a security problem, solely. That is why he is simply a military leader not a guerilla leader. He doesn't bring humanity into the reckoning. He hides behind that humanity.

That raises a very interesting problem, because it may be that General Viljoen put their problem that way because they are betrayed by their political leaders, because the political leaders should always be explaining to the security forces how they should be acting in terms of a constitution and in terms of human rights. But the regime never gave them that guidance, and where it did it told them blacks have no human rights.

The destruction of schools didn't start with the call of the ANC to make the country ungovernable. The shops were burnt, councillors were killed long before the ANC made its ungovernability call. Now General Viljoen, by casting it in pure military terms, and removing the political dynamics cannot see the chicken in the egg. That's pure simple rationalisation, denuding himself of any humanity when he acted as a military leader, and that's very unfortunate for our country.

Chairperson then I can take you chapter and verse, dates, from Sebokeng and before, where people in their anger spontaneously seeing many of the institutions and buildings as symbols of apartheid and of oppression, destroyed them. Where they were forced to study Afrikaans, not their language and then compelled in the schools and that was one of the major and immediate sparks of the '76 uprising. That's long before the ANC made the call for ungovernability.

But he takes ungovernability and very opportunistically makes it the cause of that destruction. And then having made it the cause of that destruction says they had no option but to save that property and to stop the deaths. It's completely wrong, it doesn't stand up to the facts.

CHAIRPERSON: Mr Modise.

MR MODISE: Thank you Chairperson. I think General Verwoerd, ugh General Viljoen (laughter), pardon me, I think General Viljoen should have gone back to his masters and said to them, give the people their freedom and then there will be no reason for ungovernability. That's what he should have done.

CHAIRPERSON: Mr Kasrils can I just say that one of the disadvantages of having a panel, rather than one particular person, is that we may stray into the possibility of having many answers to one question, so if you could restrain or confine yourselves, I know it's difficult and I know the questions we are asking are not pleasant, but it would help us. Thank you. Mr Kasrils.

MR KASRILS: Thanks. I am just going to make one sentence in a statement here. General Viljoen is being duplicitous, he's being duplicitous, because Chairperson the SADF of Viljoen, of all the generals, they were in two minds about how to handle the situation.

So the generals, and we remember it was the generals, said we ought to be using the approach of winning hearts and minds. But of course the people of South Africa weren't prepared to accept that formula. The sweets that were given to kids etc whilst at the same time people's rights were being crushed.

CHAIRPERSON: Thank you. Yes, Mr Lax.

MR LAX: Thank you Chairperson. I want to just focus on - you made reference to the 1988 speech, in August 1988 in fact, and inherent in that was a statement that said that where civilians were the sole object of an operation that should be avoided at all costs. Now how was it going to be possible to differentiate between sole object, general object, people caught in the crossfire and so on?

And what mechanisms did you as an operational command have in place to try and ensure that that didn't happen or to in some ways censure the fact that it might happen?

MR MAHARAJ: Chairperson in our presentation, main presentation we have said that there was always, throughout the

But the statement that was made in August '88 by the National Executive Committee is in the context that what was happening in the country that it looked like civilian targets were being attacked, as pure civilian targets, and it looked like it was being done by us. That's what the media was saying. And we were no longer sure. Today we know, today we know many of them were false flag operations carried out by the security forces that General Viljoen is talking about. Nonetheless in that situation we have to give a political guide, and I am saying, we repeated it, we said the NEC -

"...expressed concern at the recent spate of attacks on civilian targets".

And in that context reiterated its position.

However, at an operational level, and we've explained this previously, in great detail, taking the Church Street bomb in Pretoria. Target - South African Air Force headquarters, located in a commercial area, timed, now we can't say because the headquarters is located there at that stage of the struggle leave them

Now Kabwe had said you need to op against the enemy forces, the restraints that we have put on ourselves are actually restraining us from advancing the struggle, but very calculatedly you need to go forward. So that's where the problem arises.

But for the public now, the question that Mr Goosen has been asking, you were mobilising the masses to go into uprising, one clear guideline came up. If the target is solely civilian - no. Then the refinements arise operationally, and there is no book of rules and regulations that you could have written to encompass every situation that would arise operationally. That would arise from the way we linked up with the masses and what leadership we take, and even there operationally problems would arise where you would need to sit down and very carefully analyse what you are trying to do and what are the likely consequences.

CHAIRPERSON: Mr Lax.

MR LAX: If I could just follow that up, I hear you, I hear the difficulties of operational command, we heard that from Apla themselves and we heard how difficult that became as the struggle intensified, as more and more people were recruited and training became less intensive and more difficult as the struggle intensified. But what we are trying to gain an understanding of in essence is, take for example the so-called notorious Magoo's bomb where the vast majority of victims were civilians in that particular instance. We've heard that that was a last minute decision to change the nature of the target, the specific place. Cadres on the ground made those sort of decisions, what sort of censure in the light of what subsequently happened came from the high command when it became apparent that this was a bit of a mistake in a sense, what steps were taken?

MR MAHARAJ: I think the Magoo's Bar has again been dealt with extensively by us, and what we showed was that in the operational situation we were living in an environment where the overwhelming majority of our actions were correct, well targeted, achieved what they set out to achieve. Then we come to a number operations that begin to move into the grey, faulty intelligence, false flagging, enemy forces penetrating and misleading our forces on the ground directing them towards a target not in keeping with our policy, it's in that situation that as command we have to take the correct

Firstly, again in our representation, we show how when we noticed this phenomena manifesting itself that civilians were becoming the people who were suffering, President Tambo called a special meeting of military headquarters to raise the problem, give a directive, and arising out of that meeting senior commanders, including the overall commander Joe Modise, were sent out to the forward areas to brief the command structures.

Furthermore, as happened with the landmine cases, we saw that the consequences we desired were not being realised. We put a stop to the action.

Similarly, we even reached a point where Sipiwe Nyanda and myself were sent in the country as part of an operation to begin to provide on the ground leadership because decisions we could see had to be taken there and then.

You make the point about the Magoo's Bar. Even the change of target, that decision was made by the comrades on the spot. No matter all the rules that you lay out the only way to handle that is to keep, to ensure that more and more senior leaders more steeped in the politics of our struggle would be present on the ground. But even with our presence it did not mean that we would be able to give that leadership. Two, throughout this country, was totally inadequate.

But even in that experience problems arose and we had to act always bringing the politics first, so you say what action? The first line of action of the ANC is given that the cadre has acted in good faith and made a mistake to start by repeating the politics of the struggle, to show that the consequences are counter productive to our political goals of mobilisation, and to show that therefore we need to be even more careful in the way we act. That was the approach that we took and that was the only one that we could take in that situation.

CHAIRPERSON: Thank you.

MR GOOSEN: Can I just follow up on that one in particular because yes, in 1988 senior leadership was sent to articulate the position of MK command that attacks on civilians, and in particular the landmine campaign should be halted, but following that there were a range of attacks on restaurants, Wimpy Bars in particular and we have received amnesty applications in respect of those from persons claiming that they were MK members attacking those targets. How do we deal with that situation?

MR MAHARAJ: Sir we have indicated our position in all, consistently, each time we have appeared. We say we want to be as helpful as we can. We accepted by virtue of those statements that I am referring to you can see that when we saw evidence that Wimpy Bars were being bombed we accepted that it may be some of our

We are saying to you that if you have an application for amnesty on this matter from a person purporting to be ANC, and purporting to have interpreted, rightly or wrongly our guidance and carried out such an act and now wants amnesty, we say in our submission, here is our structures over time, those who were in command, and if that operation can be stated in its time and detail that what the applicant is giving, we would do a quick check to verify whether that person was a member of the ANC and operated under a legitimate command of the ANC, and then give that information to you because we believe that even if that person acted wrongly, but in good faith, you should apply your minds to his amnesty application in the context of whether the person is not misleading you and saying I was acting politically or whether the person was genuinely was part of a political formation. We would help you in that regard.

CHAIRPERSON: Mr Goosen.

MR GOOSEN: Thank you. From a period slightly earlier to that,

CHAIRPERSON: General Ismail

GEN ISMAIL: Mr Chairperson I will deal with the questions of the offices of the National Party, Temple Israel. Chairperson the Nationalist Party was the government of this country. It was the Nationalist Party which was the architect of apartheid and for them to think that they would not be legitimate targets, or for anybody to think that those who were the perpetrators of apartheid would get away with it, we had targeted them, just like we would have targeted people who collaborated with apartheid. Yes, there may be civilians but civilians who were giving the orders to others to carry out attacks against our people. And that is where it comes from.

The Temple Israel attack, the operatives there had information that the next day a senior leader of the Nationalist Party was to appear at Temple Israel, made the connection and it was to prevent that person from appearing at the temple. It was not an attack on the temple. It was preemptive, it was done at night so that nobody would be injured in that, but it was also to send a message, do not collaborate with apartheid. And one wants to say

CHAIRPERSON: Mr Mac Maharaj.

MR MAHARAJ: Deal with the question of the Anglo-American example, because I think General Ismail has made the point very clear that even where we were involved such acts would have been more of a symbolic nature rather than directed at the personnel. In the case of Anglo-American I don't know whether it falls into the grey area list or the list that we say, yes we carried it out, but there was a problem, there was a problem. And we said this, we stated this problem at the Pafuwe meeting where business, including Gavin Relly came over to Zambia. We reminded Gavin Relly that just before his visit to us in the Pafuwe they had fired 14,500 workers in the platinum mines in the Rustenburg area. But we said you are solving your industrial relations problem using the most vicious apartheid laws. That the phenomena that had become common in industrial relations in South Africa was workers legitimately with

Now, with the recognition that the mass of the people in this country, the black people, were oppressed and exploited, needed a way to even improve their daily lives through industrial struggle and the State's repressive forces were brought in on the side of the employers by the employers, how would we support and send the message to business what we expressed to Gavin Relly, verbally face-to-face at Mafuwe? So I would say whether it falls in the grey area or not if we carried out that action I could understand why such an action would be carried out in support of the struggle of the workers to improve their daily lives even while apartheid existed.

CHAIRPERSON: Do you want to follow up or not?

MR GOOSEN: Thank you very much Mr Chairperson. Just to clarify portion of an earlier answer, at the previous hearing the ANC claimed that party politicians or members of political formations were not targets for attack. I am not sure that I

MR MAHARAJ: No Sir, let me amplify that. Again I'd need to look at the operation of the National Party offices but I am almost certain that that operation would have been at night, not intended to kill people inside the National Party offices but an attack on the National Party offices as a symbol, and as a message.

Now this happened also from the start of MK. We attacked Pass offices, but we tried to attack them when the people were not there. We even have in Durban, in the trial of the first comrades in 1963, I think it is Ebrahim Ismail, Ronnie was part of that group of terrorists - (laughter) - where in that trial it comes out very clear that they went out to bomb a certain target, a building ...(intervention)

MR KASRILS: National Party office.

MR MAHARAJ: ...National Party offices and a newspaper office, something happened there, there was surveillance, they were disturbed, they couldn't carry it out and Ebrahim took the train late at night and that's how that bomb was left on the train. But again very clear he says it was an empty train but he didn't know what to do with this bomb - (laughter).

So I am saying that the National Party offices, if they were attacked, the policy remained it was the party in power, we needed to send a message, we attacked its buildings, but the policy that was articulated and the balance of decisions that we had to make as illustrated over the Republic Day, I think it is, where we could have hit a major portion of the Cabinet, including the State President, we said no, that would send the wrong message, however dramatic it may be. So I think the policy stood.

MR GOOSEN: Thank you. Just one further follow-up. The clarity then is party politicians in government were not targets specifically so, did that include party politicians in Homeland structures and the like?

MR MAHARAJ: Chairperson again, that does not mean that particular persons could not become targets, it does not mean. Secondly, that takes us to the whole question of issues such as councillors, Bantustan leaders, particular individuals. I must say from my point of view, understanding ANC policy, if I had a chance, if I may use the word that has become part of the need for debates yesterday where dictionaries have been produced, if I had the opportunity to eliminate Magnus Malan in 1988 inside the country I would have eliminated him, because although he was a party politician, clearly identified Minister of Defence, if I had the opportunity I would have done it.

Now, but the problem about the actions is what was happening spontaneously on the ground. We were teaching people, we were fighting a system. Now you know you can't throw stones at a system, it's got to be at something, and the people were saying to us in our political lessons, no I hear you, I agree with you, but who do I shoot? On the ground the people would look, police, councillors etc, how are they behaving towards them. So the lesson that that institution was bad would be translated by them in spontaneous action, and it was that that was happening even before we had addressed the question.

So we didn't turn around and say now that's not a legitimate target. What's his name in the Eastern Cape, Linde, Tamsanga Linde, okay, councillor, next thing what do we find he is the leader of vigilantes and when the people acted against him they were not asking the fine distinction is he a councillor and therefore not a legitimate target, or the leader of vigilantes and therefore a legitimate target. So these were the problems that arose.

What I am saying is that in relation to the case that you have raised of the National Party, it did not mean that we would not hit a leader of the National Party and in government. Even a leader not in government depending on the role that that individual was identified with in the public mind, so that's where it would stand from our point of view.

CHAIRPERSON: You want to continue do you?

MR GOOSEN: No sorry, it's just that I had in fact specifically asked about Homeland structures, whether the same principle applies in respect of people in Homeland structures or not?

MR MAHARAJ: No, I think the Deputy President Mbeki Chairperson was very, very frank at the last hearing when he dealt with the question of Mr Buthelezi, and he showed how a unit was planning to kill him. He showed how the moment we heard about it we took steps to ensure that that idea is not even entertained.

Now just being Homeland did not make you a target, but we know that in particular situations at particular moments particular Homeland leaders played a very, very vicious role. And people reacted to them and saw the need to act against them.

So those situations arose but there was no carte blanche position because you're a Homeland leader you must be killed. Individuals could become legitimate targets by their own actions.

MR GOOSEN: I think you have indicated that you might want to break at this point.

CHAIRPERSON: Yes I think this is a good time to break for tea. I would suggest that we try to get back here as soon after 11 as possible, and could I say to the delegation before us that if you wouldn't mind using that door and go down to the 7th Floor tea will be provided for you there. We will adjourn until 11H05.

HEARING ADJOURNS

ON RESUMPTION

CHAIRPERSON: Right, the session is resumed. Mr Goosen.

MR GOOSEN: Thank you very much Mr Chairperson. I want to pick up on the point that we had ended off on just before the tea break and focus specifically on KwaZulu Natal.

In the second submission in response to questioning it was raised at that point, the point was made that at no stage did the leadership of the ANC take a decision or give instructions to conduct an armed struggle against the IFP. It was also stated that you did not regard the IFP, its members as legitimate military targets and at no stage were any decisions taken to attack the IFP as IFP.

Then went on to say in response to the questions at that point, that in the period after 1990 when the Defence Units, the SDU's were established, some of those SDU's did indeed act, they did indeed act in the context of on-going conflict then in KwaZulu Natal and Gauteng Province in defence of the people, not against the IFP but against people who were seen as warlords and people who belonged to military groups or groups that were engaged in violence on behalf of the IFP.

Now those two statements appear to be contradictory in the sense that no decision to conduct military actions against the IFP, as IFP, but actions against people who were seen as warlords or belonged to military groups, or groups that were engaged in violence on behalf of the IFP, how do those two statements reconcile?

MR MAHARAJ: Chairperson could Mr Goosen just help me with the page reference number to that one.

MR GOOSEN: I apologise Mr Maharaj, it's on page 7 of the transcript of the proceedings. I think that was made available to you.

MR MAHARAJ: Just give me a moment please Mr Chairperson I just want to locate that clearly.

CHAIRPERSON: Take your time please.

MR MAHARAJ: Thank you very much. Ja. Chairperson Deputy President Mbeki at the last meeting went into the background of the post-'90 formation of the SDU's, and the SPU's arising from the DF Malan Accord. Conceptually the idea of those units was that they would be community based, non-partisan from the political side, and that they would be armed with licensed weapons and that they would be guided by the community leadership to defend the communities. There was a debate about the word 'protection' versus 'defence'. That was the concept.

In reality things moved somewhat differently. In reality the violence against the African people continued to escalate. The need therefore to help defend them became more and more urgent.

Secondly, the opportunities to provide them with licensed weapons did not materialise.

Thirdly, they became, in fact, partisan, because the idea of a non-partisan formation did not materialise.

So on one side we persisted with our objective of ensuring that the SDU's were under the community leadership, not under ANC leadership and MK leadership. The next thing that arose was the Polla Park case study that we put up to show how, from the regime's side, it was acting different to what was conceptually agreed. It was in fact infiltrating the SDU's to turn them against the defence of the people but for the destruction of the people's democratic organisation.

At the same time there is no evidence that I am aware of where the IFP campaigned and assisted in organising them in a non-partisan way.

So insofar as the formations that became to be associated with areas where the Mass Democratic Movement was strong we persisted with the path you are for the defence.

But on the other side, SPU's in KwaZulu Natal were created and other formations, as it now turns out from more and more evidence, continued to act on the basis that targets were legitimate simply because they were non-IFP.

So it's in that context that you find that formulation problem. Our policy position remained and stands firm. The IFP at no stage was defined as the target, neither the IFP nor simply saying members of the IFP. In practice the people on the ground in particular areas found that they would be engaged in defending themselves against forces who purported or who were engaged in the name of the IFP.

And I advisedly say purported also because I think in the last session Comrade Matthews Phosa gave a resumé of all the gangs from the Black Cats to the Asignora(?) in various parts of the country and how they were linked to the regime and recruited in many instances within the prisons.

So that's the context in which what looks like an apparent contradiction is explained by the reality that obtained on the ground. ANC position remains firm, at not stage did we even encourage the idea that the IFP, as IFP was a legitimate target to attack.

MR GOOSEN: What leadership if you like, or direction, did the ANC or MK cadres give on the ground in relation to SDU's in that context to ensure that that policy position remained intact?

MR MAHARAJ: The leadership that we gave is not only repeated

MR GOOSEN: We have received again numerous applications for amnesty purporting to be from SDU's members, ANC members in respect of actions directed specifically at IFP members, resulting in deaths of IFP members. Now I understand the position that you have articulated previously that we must present to you those specific cases and one can look at those, but from a conceptual point of view how does the Truth Commission deal with the reality of large numbers of those applications seemingly indicating a different approach on the ground to that reflected in the policy from the ANC?

MR MAHARAJ: I think that the reality as against the policy must be assessed by the Commission by the objectives for which you are set up, and this relates then to the amnesty objectives. It is to try and close a very sordid chapter in our history so that we create the maximum conditions for reconciliation to develop even deeper. Cadres, individuals, may have acted with the best of intentions. In particular instances the community organisations which were conceptually to give the political leadership did not give it.

But the reality against which you have to assess those applications is that there was a massacre going on, and in that massacre the regime certainly played an important role, and that there was a major effort at disinformation from the regime's forces side. Many operations were portrayed as ANC when they were not. And in that condition members of the SDU's may have done things where they began to translate that the target became the IFP.

Similarly individuals in the IFP may have done so. Those put in leading positions, whether they were Caprivi trainees etc, if they understood it the way they have been giving evidence before the Commission in certain court cases, that the ANC, the UDF, Cosatu were legitimate targets, then what message would they have been giving to the cadres that they were training and organising under the name of the IFP.

So we are asking for that approach to be taken and we will help you to ensure saying was, to arrive at that decision, was this person bona fide acting in that belief. That is the only approach that I can advocate in the interests of reconciliation and unity.

CHAIRPERSON: Thank you. Mr Maharaj what concerns us, and I am sure concerns you and concerns the whole country, is that the violence continues in KwaZulu Natal with the terrible loss of life. This Commission has no mandate for contemporary violence, but it certainly does have until 1994, and the perception amongst many people in KwaZulu Natal and outside of KwaZulu Natal is, that there is a major struggle for turf, for political influence going on, and that the major parties in that struggle and in that political fight with the ANC on the one hand and the IFP on the other. There is no doubt that many people who had IFP membership have been killed. There is no doubt that many people with ANC allegiance have been killed.

In order to help us to try and assist even the contemporary situation because we are concerned, as you know, for reconciliation, for unity, for the end of violence and so on, there are being many allegations, and let's put it out on the table, that the TRC is in itself biased and prejudiced because it hasn't taken enough action against allegations that many IFP leaders and members, and I talk leaders now, local leadership not major positions of leadership, have been killed, whereas we have taken action on the other hand. Our dilemma is that we can only act on people who come to us and give evidence, and cooperate with us. We can't force people unless it's through subpoena as you well know. How is it possible that so

CHAIRPERSON: Chairperson I think this is a matter that ...(intervention)

MR NTSEBEZA: Can I piggy-back a question on that particular one, perhaps because I think you might assist us. I think one of, for me in exactly the context that Dr Boraine has raised the question, one of the complicating factors is the fact that before he was unmasked Siphiso Nkabinda was an ANC person, and was characterised, certainly by the media, if by no-one else, as a warlord, an ANC warlord, sometimes associated with the late Harry Gwala. Now what I think one wants to establish is, what leadership role was Siphiso holding at the time and at the height of these conflicts, certainly within the period falling within our mandate, if he had any leadership role at all?

And whilst I accept that you know we haven't sent him notice if anything might be said to his prejudice what you are going to say by giving us a reply, I can indicate that there has been a request for us to test the validity of your claims that he was an informer, but then that's beside the point quite apart from the fact that it's not our mandate, but what I am saying is there is also that complicating factor and I don't know if you think that you can in your composite and comprehensive reply also deal with that aspect of things.

MR MAHARAJ: Thank you Chairperson. I would start by referring you to the response that was given by Deputy President Mbeki at the last hearing where he said he rejected issues such as that the real problem is a political problem of intolerance etc, etc. And dealing with that and the background he made the point that throughout all this clearly somebody was interested that the idea of working together between these two forces does not materialise. And I think that's the central problem. The central problem, you've got reports of Operation Marion tendered up in a court case, acquittal, and yet Operation Marion was there, it was a reality. You had the Kwamakutha Massacre, people charged for it as part of Operation Marion, yet we know unmistakably now that that massacre was not the UDF, but it was portrayed as UDF. So clearly, clearly there is a problem there. Who gained and gains still from that violence?

Deputy President Mbeki in his response also referred to the experiences about Shoshabane, post '94, we now have the experience of Richmond itself, still the question is, who gains from that violence?

And we are clear Chairperson that with the change to a democratic government, from the point of view of the networks that were created by the security forces for all forms of its covert operations these forces remain extant within our society, in different places within the straight structure, in the private sector, across the board. Some of them are continuing as if they have been saints throughout their lives. So that's a major problem.

And we have requested that one of the key benefits that the TRC could do for this country is to help us unearth that entire national security management system, root and branch, from our society. Identify them where they exist and help us, not from the perspective of simply punishing them, but in the context of our commitment to reconciliation and truth, to ensure that by their identification we have a minimum hold that they are not going to continue with that activity.

So that's an enterprise that we have to share and everybody should share it, not just the TRC, not just the government, but political parties, community organisations, we should all share that enterprise and commitment because the object of this exercise is not

So it's in that context we come to the questions raised about Siphiso Nkabinda. I am not sure that we have any background pre-'90 with regards to Siphiso. As far as I can recall he rose to prominence suddenly post-'90, and for a period was at least secretary for the Midlands region, for a period of possibly two years. What I can say simply here Chairperson is that insofar as we came across evidence that he was working with the police we became aware of that before the National Working Committee and the NEC took the decision to say that he's no longer a bona fide member of the ANC and to announce that publicly. Before that efforts were made to discuss with him, often I believe on a one-to-one basis so that our general approach to those who worked with the enemy forces could be implemented in rehabilitating people. It didn't work with him. And we reached the point where a special committee looked at the evidence and provided a processed report to the National Working Committee and the NEC. On the basis of that we decided to go public on the matter.

So we are satisfied with that evidence. We think you should call him, because it's no good reducing the TRC to a court of law, one of your strengths is without subjecting the individuals to the processes that they go through a court of law, you create the conditions for them to speak freely and to gain the protection of amnesty processes by coming clean and committing themselves to reconciliation.

So we think you should get him to come before you, explain his role, certainly he would have been associated with the SDU's, would have had a link in the Midlands and certainly it would mean, just as many SDU's or at least some of them like the Polla Park were subverted by the regime we may find that in the Midlands SDU's were subverted and put in a different path. So that the violence portrayed as IFP-ANC was perpetuated and so that the forces working for peace kept on being diverted, because every time there is killing tension grows, like right now, tension grows and any effort by stabilisation for us to reach out and say now let's put that past aside, let's unite everybody, let's accept that people on the ground, on both sides may have been carried away, forget the past, let's work together for development and peace, once the killings take place emotions run high on all sides and the efforts we make politically to bring unity are delayed and defeated that way.

So I would plead, and I think we would all agree that we would support that the TRC considers subpoenaing Siphiso Nkabinda and others who are with him. Thank you.

CHAIRPERSON: Could I just have a short follow-up here. I know Mr Goosen you have a train of thought here and I don't want to cut across it, but directly in response to this, and it's probably partly

MR MAHARAJ: Chairperson I was brought up in the ANC never to blame the people, I still can't. The proposition the Deputy President put, who benefits from this violence is the key. The people don't benefit. They are the ones that are dying. Not even you and me are dying. The problem in this equation is the great culpability of the National Party regime, it's refusal to rise to the political challenge of reconciliation, it's refusal to come clean,

So that is why I think the ANC makes it clear that it is deeply disappointed with the role of the National Party. And I believe that if you can persuade them you would have done a tremendous service to the (break in recording)... that would apply of course as Ronnie is saying to all arms of the security forces. It would open the door for security force officers to come forward and say yes, we did this, rather than hedging it and bringing dictionaries to argue what is the meaning of eliminate.

CHAIRPERSON: Mr Ntsebeza.

MR NTSEBEZA: Now yesterday we heard evidence, from among others, Major Craig Williamson, and one of the points that he made was the whole theory of my enemy's enemy is my friend, and in contextualising that he did indicate that certain forces were used as surrogate forces in the perpetration of violence and he gave a series of examples, divide and rule, contain them and all that.

Now I just want to know whether it is your perspective that when you say who benefits from the perpetuation of that violence it is something akin to what Williamson in other words was indicating, that their duty as security forces was to maintain the status quo, and one of the methods that they used was to couch the sustenance that divide and rule and maintenance of the status quo through other methods, one of which is to use the phraseology of my enemy's my enemy's friend, or my friend is my enemy's enemy?

MR MAHARAJ: Chairperson all that theory that Craig Williamson has been using belongs to the dictionary of the anti-colonial struggles through the centuries in every country. He would have been of greater help if he told the TRC what role he played in the killing of Steve Biko, as we have said in our previous submissions. But I think he does testify to an aspect of the truth. Yes, it is

The real issue is the evidence, and the evidence stares us in the face, and as a I say the National Party and its leading officers who were key government people and key people in the security forces does not want to come clean. The training of the KZP, Caprivi, their deployment thereafter; their incorporation into the KwaZulu police; their provision with all sorts of covers so that the one would surface in the Black Cats somewhere, another one would surface in Welkom and always it would be in the context of fomenting black-on-black violence. The role of Koevoet. The Witdoeke in the Western Cape. The Crossroads conflict. Now all of them there is one common thread portrayed as black-on-black violence, reality - somebody else, somebody else has an interest in fomenting it.

So people like Williamson contribute to now bringing about the understanding of what we called a Third Force, and bringing about some acceptance that there were these dirty tricks, covert operations.

But they do not advance substantially the cause of taking us

People were being tortured, thrown out of windows in 1963, 1963. The genesis of NIS goes back to the Republican agency, it goes back, when I was in detention in '64 a number of my torturers were on the payroll still of the South African Railway Police. They made it systemic and not just endemic to the apartheid system. That's the (...indistinct). And this is why, whilst the evidence is helping us to understand and accept that there was this covert operation we still cannot firmly prove it and depend on you.

We remain by putting the question, in whose interest was it? And when you ask in whose interest, it was in the interest of the apartheid system to survive. But we've got to dig out this evidence. What would be really helpful if the National Party leadership was to come here and come clean.

CHAIRPERSON: Mr Goosen.

MR GOOSEN: Thank you very much Mr Chairperson. Minister Maharaj accepting for the moment the argument in respect of a

MR MAHARAJ: Chairperson I may be a bit faulty in my memory because I was in prison at that time, I recall that against the evidence put by the Deputy President and President Tambo at Kabwe about the formation of Inkatha, that its origins were in a cooperative framework between Mr Buthelezi and the African National Congress, I recall sitting in prison pre that period how Mr Buthelezi was the target of covert operations by the State. How many times we read reports in prison of efforts made to bomb his car and to kill him.

But somewhere down the line I recall Mr Jack Buchner appearing on the scene in KwaZulu Natal. And along that line you see a steady deterioration of the relations. And Mr Jack Buchner I don't have to give you the history of Mr Jack Buchner. I don't have to even confront the Commission, I don't have all the evidence ad hoc on me of how he is very short on the truth. So if you look at that shift the problem is at some point, and you have also the evidence of Mr Groenewald in Military Intelligence, how they went systemically to persuade him that the ANC was his enemy and seeking to kill him, until he believes it. So there's a major problem there, that there was a change in his own thinking and the leadership of his party supported that change in thinking.

But again who benefits? Who did that to bring about that change? It's too early for me to make that judgement call, but I say there are a lot of indicators strewn on the ground that we need to take into account. It would be helpful if the IFP saw its way to cooperate with the Truth Commission, once more not for the sake of indicting each other, but for the sake of this country. If they could even come here and say how and why their thinking developed in a certain way, even from the point of view of their perception and however unsubstantiated by the facts, it would help all of us to grapple and exchange views to move it in the right way.

So I am saying yes, the regime was deeply involved and the key manipulator of that, but in the process of that manipulation there was a dramatic shift in the thinking of Mr Buthelezi. That shift at that level gave the opportunity for the idea of IFP versus ANC as the major conflict to take root in KwaZulu Natal. In other parts of the country where they made the black-on-black violence efforts to stick it did not stick, we were able to defeat that move, because no substantial person of political stature emerged to embrace the idea that the ANC was their enemy. This would be part of that low intensity conflict.

But the point I am making is that in other parts of the country

MR GOOSEN: And do I take it from your answer that once the conflict, I mean you've described from your perspective the genesis of that conflict, but once that conflict took root that there would be a significant contribution from the side of the ANC to the continuation of that conflict, given that the conflict had taken root?

MR MAHARAJ: The significant contribution if there is anything from the ANC could not be in its policy, could not be in the leadership of comrades like Jacob Zuma, it would be located in certain pockets of the leadership like the Siphiso Nkabindas.

But more significant is that those on the ground who were dying would become so emotionally charged that many, many people in leading positions in the community who could get caught up in that atmosphere. But the ANC was very clear, we are systematically, from the time we were legalised, engaged in initiating processes to try and get peace through talking and we have persisted at the moments of greatest violence. Even now every time the violence erupts in Natal, the leadership of the ANC situated in the Natal wherever they are in the country abandon everything to rush back there to try and get peace moving and to hold the processes there.

So I am simply saying that yes, I think it comes back to that the forces of the National Security Management System remain embedded in our society, sometimes even in the ANC structures.

CHAIRPERSON: Mr Lax.

MR LAX: Sorry Chairperson, just the last answer has in essence forced me to ask a particular question, but it's contemporary in a sense because we have strayed onto a contemporary issue, and that is, I am just trying to understand in the light of that response why it is that elements in Richmond and within ANC leadership structures in Richmond are saying we won't talk to Siphiso and his - they refer to them as criminals, they say we are not going to discuss peace with those people, and I am just trying to understand that response.

MR MAHARAJ: It's problematic when we keep on keeping to the present. I know it's a real problem but you must appreciate that it's at the same time not for glib reasons that the ANC in government has had to deploy Mr Engelbrecht to head the investigation in Richmond, and it is clear that that deployment began to deliver the first arrests. It's a repeat that in the security forces deployed in that area, particularly in the police, clearly the violence has been continuing and the perpetrators have been getting away because there is some linkage with those in the police force. We send a

But the question you are asking goes beyond that. I am saying that we can't get detained with that here. What we have to say in your investigations pursue the proposition that we have put and help establish whether that proposition has validity, and to the extent it has find a way to reach the other parties involved to try and contribute to this process of coming clean so that the public can, and people involved can understand the reality. So that's all I can say at this stage.

Insofar as the people in Richmond saying we won't talk, well Chairperson all of us said we will never talk to the apartheid regime, but the ANC is an organisation guided by principles and policies, those principles dictate to us to talk to the National Party regime. Many of the individuals that sat with us at the table at Kempton Park carried out more killings than anybody in Richmond, but we talked to them to bring democracy here and to bring reconciliation.

So if the conditions mature, if you can help it, our position will not be a vindictive one but will be searching a solution in the interests of unity, peace and reconciliation.

CHAIRPERSON: Thank you. Mr Goosen.

MR GOOSEN: Mr Chairperson thank you very much. Mr Maharaj I understand the perspective that principles and policies dictate

And I raise the question in the light of the fact that if one looks at propaganda statements issued by the African National Congress in relation to the conflict in KwaZulu Natal one gets a different sense of what is being proposed in relation to that conflict, and let me put a few of those to you.

In the MK journal, Dawn, published in 1983, I think it's Dawn 7, 1983, in response to the killing of students at the University of Zululand, well now KwaZulu Natal, the quote is -

"Gatsha and his ilk are on the same side of the battle line as the murderers of Mxenge and countless others. Let those who excel at swinging the two-edged sword for the enemy be warned. The string of popular patience is overstrained and the slightest swish will snap it unlatching the sluice of popular anger.

As for us, the combat ranks of our people's army, we remain committed to an unyielding offensive against the oppressor. We are prepared to break his barricades right to the seat of racist power and feed it to the flames of revolution.

To battle comrades, to battle.

Death to the puppets".

And in African Communist, no.104 1986, this is the quote -

"It's no accident that in the eyes of the people Buthelezi has come to be identified with the enemy who stand on the armed struggle and sanctions he supports".

And further on -

"He, Buthelezi, should be reminded that in the eyes of the people whose cause he is betraying he is a suitable case for treatment".

MR MAHARAJ: Chairperson, Mr Goosen is doing himself an injustice. You know that we have made in our submission very clear statement that issues like this and even bigger issues were the subject of constant debate. They still are subjects of debate. Now you take an article in Sishaba, written by an individual as an opinion, or Dawn, and you say the ANC does this. You take an

If you said to me it was an editorial that would be a different matter. But even so Chairperson the issue was raised in the context of responsibility for actions. We have said this is our policy. We accept against that policy deviations occurred, but even those deviations where they occurred in our ranks we accept responsibility. I think I have been very clear about that. So we accept responsibility beyond our policy. We've accepted that mistakes occurred, violations occurred and we say yes we agree. We will take responsibility.

You will see in the answer of Joel Ntzitenzshe at the last session, he says, first and foremost to characterise the journals that he was referring to, the African Communist and Dawn, to say that these were forums for debate amongst ANC members and cadres and party members, and not all the statements and articles found in

CHAIRPERSON: Mr Goosen.

MR GOOSEN: Mr Maharaj I accept the fact that it doesn't necessarily reflect policy, and that it might well be a forum of debate, but the essential issue is - goes to the question of responsibility and the interpretation, leave responsibility for the moment, the interpretation that may be attached to matters, to articles of this nature by people on the ground, and what that may give rise to. We've put the question, we've put the question to commanders of the armed forces of the other armed formation in respect of the reasonableness of the actions of security force members, for example, their reasonable interpretation of what, it may not be policy, but what appeared to be policy to them. And it

MR MAHARAJ: Those, those security force members are not ordinary soldiers, they are generals who have been to military academy, been long in service and they should know how to read, they should know how to read. They mustn't make these excuses to me.

Chairperson if a general cannot distinguish between an article in a debate and a policy statement he is not fit to be a general, not in the past South Africa and not in the present one, because it means they just don't understand democracy. What you are asking me is that they are saying we should have censored and not had debate in our ranks. We should always be saying this opinion comrade will be misunderstood, or understood that way, but it is contrary to our policy therefore shut up, censored. Completely antithetical to debate ...(intervention)

MR KASRILS: I'd just like to make a point I was actually ...(intervention)

CHAIRPERSON: Mr Kasrils.

MR KASRILS: Thanks Chairperson. I was actually the editor of Dawn in the camps. That's not my style I daresay, I left the Angolan camps in 1980 and I think you are quoting from a couple of years later, but Dawn had an editorial and it had the articles and I can remember that particular article very well because I came back

So Mr Goosen we would correct, through debate, a particular point of view. And when you say that surely this would be interpreted by combatants in a specific way and we quote from an article, a journal, you are not seeing the kind of debates that were taking place as a result of that article. One of the most wonderful things about our training camps I very seldom had an experience that can compare was this intense intellectual debate that took place, and it was extremely healthy, and that is one of the ways in which we gave guidance to our combatants.

CHAIRPERSON: Could I just say that I think the point that is being missed is what we - I think what Mr Goosen is really arguing, whether we talk about Dawn or any other publication, or whether we talk about Radio Freedom, for example, what I think we are asking is, was it possible, at least possible that people who were not within

MR GOOSEN: Perhaps Mr Chairperson before Minister Modise, if I can just - Those journals were distributed inside the country. The question that I asked earlier to Minister Mac Maharaj didn't relate to the interpretation of the generals, I am not asking, as it were, for your interpretation of that and your knowledge of what is intended by this particular publication, it has to do with what the soldier on the ground is interpreting that to mean. And here I am also not referring to the trained combatant in the camps. The trained combatant who undergoes significant political education and then is infiltrated into the country, I am talking about the mobilised mass and how they interpreted it.

MR MAHARAJ: Chairperson I find the question extremely abstract the way it is posed, as you pose it Chairperson, because it is saying, is it a possible, likely consequence? Now the real issue is, it was distributed in the country, it was intended for combatants as part of the process of politicising them, as part of them understanding that political decisions are not arrived at by somebody just issuing an

Now if you want to put all the possible consequences that could flow from it I don't know where we are going with that exercise. Because we are ready to accept responsibility but not in that remote abstract way. Because our primary duty was to politicise our people about their conditions and to make them understand the need for disciplined struggle. That's a fundamental obligation we hold. And if that objective and that democracy that we practised in debate is to be nullified by one possible consequence I find it difficult to accept that that consequences responsibility I must accept. It must be a reasonable and probable consequence for me to address it, not just a possible one, because otherwise I think that there is difficulty and I think it undercuts a fundamental proposition. So that's my difficulty.

I am saying that if you want to put it in the abstract and say this could have been a consequence therefore you accept responsibility, I could say it glibly but we want to say very seriously when we accept responsibility we are accepting it in a very serious way.

CHAIRPERSON: ...my question was abstract, but I accept that it may be interpreted in that way. Let me rephrase it then - in a moment, I want to clarify my question so that you can answer it.

Is it not reasonable to assume that people who saw the ANC as their leader, as their liberator, which they did on the ground, and who know nothing or very little about the niceties of having a journal where people can debate issues, but actually read what they see as an authoritative word from the party that they look to, is it not a reasonable assumption that they will take what is there as gospel and not sit back and say well wait a minute, let's not take this too seriously because Kasrils and company are still debating it in the camps? Let me put it more bluntly then to avoid being abstract, is it not reasonable to assume that people on the ground would read that and not wait for the next instalment but say well this must be what's in the mind of our leadership because these are the people who we look to to guide us? That's all I am saying.

MR KASRILS: Chair I have considered this a great deal and I must say the TRC process has been invaluable in making one

But we mustn't make the mistake of then, in terms of some of the questions asked earlier, the sort of statements of General Viljoen or so, look at that as the reason why the security forces then could see anybody as a target. I think that's very important.

CHAIRPERSON: Thank you Mr Kasrils. Mr Goosen.

MR GOOSEN: No I accept that, that those two issues are not linked in my view at all.

Could I perhaps look to a slightly broader, if you like a broader issue and go back to some questions asked right at the outset of this session relating to the notion of people's war. The mobilisation of an irregular army in a sense, and I use the term irregular in a sense that I would for a moment regard trained MK combatants organised as a regular army, so an irregular army in the sense of the development and formation of armed groupings within townships, that's that a critical element of the notion of people's war?

And I think in the submission made by the ANC previously is recognition that those formations, those armed formations were not under the command of MK, under the direct control of MK, but that they may have acted in line with MK directives, MK positions. In a situation where you embark on a strategy of people's war the question is how do you shut down that mobilisation? And I want to ask this specific question in relation to the cessation of armed activities, suspension of armed struggle by the ANC, what steps did the African National, what steps did MK leadership take to ensure the, for want of a better word, the demobilisation of armed formations in the townships, the people's army?

MR MAHARAJ: Chairperson, the idea of self-defence units doesn't date from 1990 only, it pre-dates that. It dates it to mid-late eighties, '87, when repression had reached intolerable levels in the

The situation changed in 1990. The decision taken by the National Executive in July 1990 to go to the Pretoria discussions and offer a cessation of hostilities, a cessation of the armed struggle, suspension of the armed struggle, was taken by the NEC and communicated and a matter of debate thereafter even within the ANC, but it was a decision taken and communicated publicly and across the length and breadth of our structures. And even when communicated as a decision it was allowed to be debated. But that did not mean that the cessation of hostilities, of the suspension of the armed struggle meant stop the SDUs, because the violence in the black community was escalating and then the question of the SDUs arose in a different context now, and that is where Deputy President Mbeki related it to the DF Malan accord. So while the term SDU is

So we did not have to communicate and say now stop the SDUs, because if I remember correctly the NEC decided to suspend the armed struggle around the 20th, 22nd of July, and I was in detention on the 25th and on the 26th of July General Basie Smith came to see me at Sandton Police Station and said the wave of violence that is going to hit this country will make everything else a child's play, and when I came out indeed, August, September, was a murderous time for our people in the townships. So that's the context. So we did not go out to say stop the SDU's but we certainly went out to the MK combatants that the armed struggle is now suspended.

CHAIRPERSON: Mr Kasrils.

MR KASRILS: Yes, just taking up that point Chairperson that as far as the organised contingents of MK were concerned the record is a very good one, because as Mac Maharaj points out with the August decision, August 1990 by the ANC, cessation of hostilities, I think that's the DF Malan Agreement, MK as an organised unit there was absolute obedience, absolute discipline, and that's the way a revolutionary movement exercises and shows it can exercise very

Now if I can just elaborate a little in a theoretical way, because Mr Goosen is looking at something we were developing, particularly in the latter half of the eighties, and this was in Sishaba, I certainly contributed to this discussion, how we saw the armed struggle developing into people's war. Chris Hani made many statements and articles and interviews on that. Firstly, if I could just correct you, we didn't see MK as a regular force. A regular force is the professional armed structures of a State, and an insurrectionary movement or a guerilla movement is an irregular force, so MK we always knew it as a guerilla army, an irregular force, not organised on the formal lines of a regular army, a conventional army, but we viewed MK as the advanced armed military detachment of the revolution, if I can use that term. And as the struggle developed our whole focus was similar to that of other revolutionary movements, whether in Nicaragua, Sandanistas in Salvador, the Vietnamese, and very influenced, as the green book shows, by the Vietnamese theory which in a sense embodied revolutionary guerilla warfare from China and many other countries in history, was that the advance vanguard is actually small by nature, and you are seeking to link with the people in terms of freeing the people and freeing a country.

And Mac Maharaj earlier talked about the fact that for us, and

And in our theory we spoke about, Mr Goosen the objective of organising - we used the term in the mid- eighties, it later came to be called the SDU's of a people's militia and we defined it, now this isn't strict ANC or MK theory it was more a discourse which did gain ground, that a people's militia we saw as people in localities struggling with sticks and stones in hand as being the type of people we would want to bring in as our reserve and support of MK.

That then became the SDU's and as Mr Maharaj has pointed out and Mr Mbeki previously in a totally different context of that

CHAIRPERSON: Just to clarify, Mr Maharaj, you were telling us that there were three levels of leadership and you gave us the MK officer, but I think in the description I missed out the other two or you didn't give it to us, I'm not sure.

MR MAHARAJ: If you look at our submission of August '96 Chairperson, Page 64, you will see a document referred to as an extract from the ANC discussion document titled, "Broad Guidelines for Organs of People's Power", and it says the layers would be cadres organised into self-defence units, combat units and MK officers was conceived. It then discusses that whole question and how it arose in 1987 and what we've been presenting is in conformity with that. It then deals with the SDU's in the low intensity period and in the post '90 period.

CHAIRPERSON: Thank you. Mr Goosen.

MR GOOSEN: Thank you, perhaps just a follow-up question, it's

MR KASRILS: Mr Goosen just to go back in terms of that explanation with the discourse, that I gave about the original idea of a people's militia in the '70's or so, a la people's war. At that point, if you see some of the discussions taking place and the way we're formulating it, what I've referred to as the militia, we didn't see that strictly as defensive but as a reserve, a support for MK's advanced combat units who we hoped, it never really materialised to that degree, would be involved in that all-out intensification of the armed struggle against apartheid.

By the '90's in that new context, post the ceasefire we then were well and truly looking at something slightly different as the SDU's - we dealt last time, Mr Mbeki dealt with the fact that General Malan had actually said during the peace accord discussions, why don't you organise your self-protection units, and we then worked on that concept of the community-based self-

CHAIRPERSON: Mr Lax.

MR LAX: Thank you Chairperson. I hear the debate and I'm aware of the reference to abberations and so on, but there were phenomena particularly in the province that I come from where there developed a kind of warlordism within a whole range of

MR MAHARAJ: Yes Chairperson. Becoming aware was part of a process and intelligence work and looking at the conduct. We have documented the case of Polla Park because it is such a clear case study. But in our presentation on the 12th of May, page 31 you will find that we refer to that first submission and go on to say- "That the State made every effort to subvert the SDU's in order to prevent any form of sustained resistance to State-sponsored violence inflicted on their communities and to discredit the ANC. Some SDU's became little more than gangs of criminals, at times led by police agents and inflicted great damage on popular ANC-aligned community structures. This is well illustrated in the case of Polla Park and we say another instance of this nature is provided by the activities of police agent Siphiso Nkabinda".

So we haven't gone into exhaustive documentation but it shows that there was a problem and that we were aware of this problem and increasingly became aware of it.

How would we deal with it? Since the SDU's by nature were supposed to be under the community's political control and guidance it would mean we would have to go and interact with the community leaders. ANC members, ANC leadership would have to interact with the community because simply to say from the ANC that that SDU has gone corrupt is not enough. That would be the key to the processes that you would unleash.

At the same time we'd have to continue with intensive work at the intelligence level which led us to the point where we can say police agents were involved. Not an easy exercise, particularly as that exercise had to be carried out when generally in the major parts of the country in black areas violence was rampant and in addition to township violence, violence on the trains was taking place. So, but it is referred to in both our documents.

CHAIRPERSON: Thank you. Mr Goosen.

MR GOOSEN: You caught me by surprise. I thought Mr Lax was going to follow that up.

CHAIRPERSON: Not often that that happens.

MR MAHARAJ: Oh I know that Mr Goosen doesn't want to listen to me sometimes.

MR GOOSEN: I'm just known to be sometimes a bit verbose and he was expecting that.

CHAIRPERSON: Right, Mr Goosen.

MR GOOSEN: If you just give me a moment.

CHAIRPERSON: Mr Goosen wouldn't this be a good time to adjourn or have you got -

MR GOOSEN: No we can definitely adjourn, my throat would appreciate it.

CHAIRPERSON: I would suggest that we adjourn and that we resume here at 1:30. Again for the delegation from MK, ANC, would you please make your way through there down to the 7th floor. Lunch will be provided if you'd like it.

MR MAHARAJ: Mr Chairperson may I just say one thing on KwaZulu violence before we break. A point that has been missed is the question of large quantity of arms that are endemic in our, are prevalent in our society and in that province. Clearly government is doing more and more to try and contain that situation but it does look like the presence of weapons is a major problem also in that situation and we are deeply concerned about it.

CHAIRPERSON: One of the toughest investigations that we're involved now, as the TRC, is to try and identify sources which go

HEARING ADJOURNS

ON RESUMPTION

MR NTSEBEZA: As Dr Boraine indicated earlier, he will not be joining us this afternoon. Mr Lax will be joining us in a moment. Advocate Goosen, maybe before you begin, there's something that I would like the delegation to deal with which Minister Maharaj alluded to in passing, because it really came out in yesterday's proceedings in particular, and that was namely that when it became clear, now that was the position as it was put to us, when it became clear that lawful methods of containing what was perceived to be a revolutionary situation inside the country by ordinary legal means in the form of arrests and detentions, the attitude of the security forces was that revolutionary and unconventional methods should be resorted to in order to deal with the situation, because there were various levels of trying to explain what unconventional and revolutionary methods meant. It seemed to us that one of the interpretations stripped of all verbiage was that unlawful methods could be resorted to and the whole debate about eliminating, neutralising and stuff like that came up.

Now can you give a comment, seeing that it was in fact a comment on what was perceived to be your way of waging the struggle that gave rise to a change in tactics of combatting?

MR MAHARAJ: Thank you very much Chairperson. May I just before responding just ask once more for the formulation that says from the Generals' side, when did they say, under what conditions did they say they had to begin to use this so-called unconventional methods?

CHAIRPERSON: Maybe Advocate Goosen should indicate in context.

MR GOOSEN: Thank you Mr Chairperson. As I understood the testimony, they didn't indicate any specific period as to when that applied, but it was in the context of the understanding of operatives within the Security Police as to how they understood the approaches that they could adopt through the eighties and they weren't specific as to at what point that necessarily came into play.

But there was a more general context raised that the period late 1985 and from then onwards in response to what were perceived to be shifts in the MK's revolutionary strategy, they recognised the need to themselves shift their strategy which would then include the use of unconventional methods inside the country.

MR MAHARAJ: Mr Chairperson, let me start by saying that legal forms of struggle, though not extra parliamentary forms which we've had to use from the formation of the ANC were effectively illegalised in 1960. That was a culmination of a series of legislation, but what is clear that by 1992, they equipped themselves with the Sabotage Act to be followed by others which started with the detentions without trial, because previously until then the law allowed 12 days maximum detention before a person was brought to trial. So there's a whole series of legally empowered unconventional measures that were made legal.

But our experience in detention goes back to 1963. The first death in detention was 1963. I think the second was also 1963, the late Looksmart Ngudle. By 1965 at least 6 people were already dead in detention, political people. I myself was detained in that period and the methods used were already, to put it mildly, unconventional. Just about everything that became formalised and generalised, electric torture, the helicopter, sleep deprivation, standing on a brick, beatings, they were all there. Their refinement was such that the participation of the district surgeons was also there. I was visited by a district surgeon. The court records will show that when I appeared in court I stated exactly what had happened and the judge said, well I've noted what you've had to say, I'll forward it to the Attorney General.

It is at time that Babla Saloojee was also thrown out of the window. Timol was '72, '71, and I think by that time, by the time of Steve Biko we're talking about number 46. So all these methods of

So I'm saying, to present it as they do, that only when the revolutionary onslaught had reached a point where the normal methods were inadequate and they were under pressure from their superiors, did they resort to this, is completely inaccurate.

Lieutenant Viktor and Lieutenant van der Merwe of 1964 had just returned from a training course under the Portuguese Pedepolice and the other one under the French in Algeria. That was their training. Their first experimentation with the Portuguese instrument which has holes in it on a piece of plank, which starts off with larger diameter on one side to a taper, which is used on the soft part of your body, so that when you are hit with that, even in the gentlest of slaps, sucks your skin into that hole until it is total agony. Colonel Swanepoel the notorious Rooi Roos was there. Johan Coetzee was there, van der Berg was there 1964, was in the

So I'm saying I find it very very strange that this explanation is given, that it is only roughly somewhere in the eighties when the revolutionary onslaught had reached untenable proportions, that they resorted to unconventional methods.

Port Elizabeth, Eastern Cape, produced hundreds of prisoners for Robben Island. They came there in '63 facing split charges. Thomson Ndewete was serving 21 years and served the full 21 years for an offence which was split into membership of ANC, an unlawful organisation, collecting funds for the ANC, attending meetings of the ANC. Those were split into three charges. This was done, and I'm talking about the entire judicial systems, it was done by the police who were detaining you using the 90-day law, torturing you, covered up by the district surgeons, dockets sent to the State Prosecutor, the prosecutor prosecuting and splitting those charges and the magistrates and judges sitting there, know they were administering that law. And whenever you raised your torture and illegal act, what were patently unlawful, the judges, he did in my case, Judge Boshoff said, "I've heard you, I will send that report to the Attorney General". He was not prepared to consider that, as an issue that would determine the relevance of the evidence that the police were putting and the prosecutor was leading in that case. And I'm talking not just of some prosecutor in some magistrate's court,

So I think that issue is a vital issue because, as I said earlier, I became aware, we knew that there was somebody called the Republican Agency as the intelligence service. We knew that there was a security branch but this body hit us in the sixties. In my detention I found that a number of them were on the payroll still of the South African Railways Police. Our studies have shown since that the Railways Police was used by the National Party when it came to power in '48 as the venue, an institution where which they built their own security arm so as to infiltrate the entire police force and turn the police force which they had inherited from United Party rule to become the sole instrument of the National Party. That is our information.

The Intelligence Services similarly started with the Republican Agency. Amongst the first exposures of its activity was its concentrated effort on getting journalists on their payroll as spies and that led then subsequently to BOSS, to NIS but the continuing attention to recruit journalists to use them not just to portray a certain image of the struggle of the then government but also to be sources of information on activities of what they regarded as counter- revolutionary activities started then. Gerald Ludi was

So to argue the way they have argued leaves a huge gap in their having to explain the practical reality of the tortures and the deaths that took place in detention and some of the mass assaults that took place in the case of industrial relations problems as well as general attempts to mobilise people. One of the revival instruments of the Mass Democratic Movement was the Human Rights Committee in the late sixties, the second was the Trade Union Movement which culminated in the strike of 1973. You will find that the reign of terror that obtained in this country between 1965 and 1973 which led to almost a total absence of any form of mass protest was achieved by means of that repression using what they now call unconventional methods which I understand to be methods that were illegal in terms of their own immoral laws.

CHAIRPERSON: Ronnie Kasrils.

MR KASRILS: I just want to focus on the military in this regard. Mr Maharaj has looked at the Security Police. The military liked this idea of unconventional warfare against the revolution, counter-insurgency warfare. It's not new, a discredited regime throughout history, its military comes to a point where it starts playing around

The British have utilised this in their anti-colonial struggle, in their struggles against the colonies, counter-insurgency warfare, Burma, Malaysia and so on. In relation to the IRA there's the example under the heading, Death on the Rock, where the British SAS broke the rule of law and if you remember they killed three suspected IRA people on the Rock of Gibraltar, shot them down, gave them no chance whatsoever, it turned out they were not armed. So the apartheid regime and it's military played with this idea when one illegal form of methodology had clearly failed, it was already unlawful what they were doing in terms of the draconian laws of apartheid, the military became very involved in the eighties from the time of General Viljoen, developing their theory of counter-insurgency and one must recognise that as just a worse form of illegality. There was illegality before and now they resorted to a worse form of illegality and attempted to clothe that in this term, counter insurgency warfare.

Let us always remember that when they descended to these dirty tricks, it was as a result of the fact that they were bankrupt. It

MR MAHARAJ: May I just add Chairperson, because I'm saying that yes in the eighties there was a massive step-up in ignoring the law altogether in their activities, but I'm saying that all the mechanisms, the methods were already being practised from '63 onwards. When we went to Robben Island in 1965, end of '64, in my truck was a spy put in as a prisoner, sent to the isolation sections, and I think I ended up there just to give him a cover, otherwise I would have been in the general sections, but he was put there to come and spy on us and when they found that we had realised that he was a spy they then came to work one day and announced, sorry he's not your relative - Mr Raymond Nyanda, your appeal has succeeded and he was released.

He had served more than a year with us to be able to spy. That was the extent to which they were carrying out these activities across the board, all of them, unlawful in terms of their own laws.

The same thing happened even insofar as bugging. They bugged the rooms where we were consulting our lawyers. 1963 the Rivonia Trial, if the President could come here he would tell you that in their room they had to communicate with their lawyers by

And the explanation that we need, the issue that has to be really searched for when asking what happened and why, it's not the abberations, it's how a system generates that and makes it structural to itself. There will be abberations in our history in the future and we will have to guard against it but if we do not attend to the systemic factors that generate it then we will not have learned a single thing from our past and those generals should be helping us for their own sakes and for their children's sake.

CHAIRPERSON: Advocate Goosen.

MR GOOSEN: Thank you very much Mr Chairperson. On a totally different tack, getting back to the issues that we were canvassing before lunch, we were dealing with the notion of SDU's as they had developed from their original conception of people's militia. In the period prior to 1990 when people were recruited internally for short term military training, how did the MK leadership exert control over the targets that they selected? What was the nature of the training received in those circumstances? How were those people engaged in armed action?

The question really there is is it possible that in consequence of the actions of those people who received limited training, that human rights violations took place and specifically that that process of recruitment, minimal training and then engagement of those people, that that may have contributed in practice to an increased number of attacks on soft targets if you like?

MR KASRILS: But Mr Goosen we really feel that that was thoroughly canvassed last time. Mr Maharaj is just checking the pages. We'll gladly respond to the question here Chairperson and try to keep our answers much shorter than they've been but I don't really quite frankly see anything new in the way the question has been posed. We pointed out that - I think at great length dealing with this, that at that specific stage with the struggle intensifying in South Africa and much greater recruitment, Kabwe, there is that decision to intensify the struggle at all costs. We've got our forward command areas in places like Swaziland, Botswana, etc and even some units operating within the country well-trained people who had been outside in the camps for some time, we wanted to prevent a situation whereby people came out for a long period of time and found themselves in Angola for a year, sometimes two years or so, which had been the case, particularly in the seventies, so there was this need to step up training.

We recognised that this would create problems in terms of

We had good results this way. It did assist in developing our presence in the country, the number of MK cells. And the way we would seek to exercise control would be with a communication link with those individuals with very, very clear-cut guidelines to them and discussion between the commander in that frontline area who was training the people as to what categories of targets to go for.

So I don't know whether it's so much the shortened training period, although I think in our submission we do refer to that, but the reason perhaps why there were some of the actions which we had to intervene and stop was very much the result of the way emotions were running in the wake of massacres at home and people's feeling on the ground that they should react interpret the Kabwe guideline of intensification of the armed struggle and the struggle generally in White areas.

You know I'm going on at a great length now but it's all there and I'll just ask Mr Maharaj if he can refer you to the references.

GEN NYANDA: Thank you Mr Chair, I just wanted to say that in my experience as an operational commander, there is no evidence

Where such abberations took place there were mistakes on the part of the people who carried out the operations and because of certain reasons which have been outlined, like mistakes where we targeted farmers and military personnel in the form of landmines, but innocent civilians were caught in the crossfire or innocent civilians detonated those land mines, and there is no evidence, it cannot be established that in fact it was people who were trained, who had received crash courses, who had received inadequate training were responsible for this. I just wanted to make that point, thank you.

CHAIRPERSON: I just wanted to say can the record reflect that that was General Sipiwe Nyanda.

MR MAHARAJ: Chairperson if we look at our submission of the 12th of May '97, page 66, you will see there that we acknowledge first of all that as a guerilla force we were operating in conditions

It then went on to say that yes the crash courses did create their own problems because some of the recruits, not all, because in general I would say many of those who came for crash courses already came having some contact with the movement. This was not like the 1976 exodus. It was people by arrangement with people inside the country would come out for a prepared crash course, generally not just a two to four day but two weeks, three weeks four weeks at a time. Some of them would even be flown to Angola for a six weeks course and brought back. It was still within the crash course concept. So they came with some political base from home, that's the general crash course person. But some of them had sketchy political understanding about the nature of the struggle and some of them as supporters, drifted in and out of structures, not simply because they were weak or bad people but because of conditions of life in this country. You were being harassed in Kwamashu, you would try to save your skin by going to Claremont, and if you were harassed in Claremont you would try to get away to Alexander. So that movement would take place together with the impulse to fight oppression. So that did create problems.

But to illustrate then a little bit of the detail. Comrade Andrew Zondo was a fully trained cadre, but his testimony shows that he came under enormous pressure within the country and within himself when the massacres took place. And he recognises even in the court that he acted in a way contrary to ANC policy. In that desperate state looking at what was happening to our people, a trained cadre could succumb to those pressures. A crash course could easily succumb to those pressures as well. There is no guarantee that the discipline of our army could ensure that not a single cadre would act then outside of the disciplinary framework that we tried to impose. And for that too, we acknowledge with regret, and apologise for any actions that were done by them under those conditions.

How did we take the training? We saw the training in modules. We didn't see that single crash course visit as the end of the cadre's training. We saw it as a component of the cadre's training. We saw the cadre going in doing reconnaissance, bringing information pointing to potential targets, potential recruits, storing arms, before the cadre went into combat. And when it came to sabotage also, we saw the cadre being involved in simple sabotage before the cadre would be given a more sophisticated sabotage job.

This is one of the reasons why we began to rely on the limpet mine, because it was so simple to operate, it would have been more

The same thing was happening inside the country. The cadre would be selected from inside the political formations as a potential combatant, given certain types of training, asked to practise that training and when performing well put in a unit and then go on to advanced to further training in small modules. All the time linking it to political instruction and all the time linking it to the need for a disciplined formation.

So that's how we tried to bring about that discipline and that's how we conceptualised even the combat groups and the SDU's in the late eighties, that they would be a stepping stone to further development of the cadre into a combat group and ending up as a fully-fledged MK cadre, And it was our hope that if the struggle went on that path in a prolonged way, we would then be concentrating on training officers outside from selected people who had already seen some sabotage experience on the ground.

MR GOOSEN: Thank you very much Mr Chairperson.

 

CHAIRPERSON: Mr Lax.

MR LAX: Thank you Chairperson, just, you spoke earlier about false-flag operations and that was a contributing factor in some ways to this whole issue. One of the areas that you may well have touched on, and I haven't seen the full purport of your previous submissions, was the issue of basically compromised communication lines. In other words, and I quote one instance that I'm personally aware of, is the case of Ben Langa and those cadres who executed him and then were themselves executed. And the information we have at this stage is that that unit was compromised and that there were certain instructions issued as a result of that compromising so to speak, misinformation in terms of which he was executed and clearly that was people at work, agent provocateurs and so on in a way - how did you try and deal with that situation where you were at risk in that way?

MR MAHARAJ: That instruction to that unit came from an enemy agent who had risen to hold a position in the Natal military machinery known as Ralph or known as Fear, whose wife was also an enemy agent, whose confessions showed that she while based in Swaziland, had visited South Africa at least four times clandestinely to report to her superiors. And it was (...indistinct) who gave that instruction, am I right?

MEMBER OF DELEGATION: Yes.

MR MAHARAJ: So yes communications also would get compromised, and of course it would be the dream of the other side to intercept a communication channel so that they could put in their own communications into it to lure you. The same thing is documented in the case of a person called, I think his student name's Librarian.

Librarian had similarly infiltrated because one of the communications' mechanisms was to use couriers and Librarian was used by the enemy forces to infiltrate us in a position of couriers. Again we can talk about the Librarian case because when we tumbled on to the fact that he was an enemy agent, we were able to rescue two comrades from within the country, George Naiker and Ebrahim Ismail and then the enemy, callous as they are with regard to black cannon fodder, because Librarian was an Indian chap, they sent him back to Swaziland and Mozambique to look for what's happened to George and Ebrahim and we were able to lure him from Swaziland into Mozambique and apprehend him and take him to Angola and question him.

So that pattern is there and communications was a crucial problem, crucial, crucial problem. And that is why when Sipiwe and I came into the country, in that mission sent by President Tambo, we spent 50,000 pounds developing our communication system, and whatever the Stadlers have got to say, they didn't crack it, what they got, what was available decoded on the tapes, but it is those long lines of communication are a guarantee of vulnerability.

So the infiltration was not only within us at command level, it was in the communications system, it was on the ground. And interestingly Chairperson, you ought to get Craig Williamson here to ask him about Ben Langa, because he was one who was feeding the information within the country suggesting that Ben Langa was working with the enemy. And he ought to come clean, not just on the theory of his superiors, but what he was doing.

CHAIRPERSON: Advocate Goosen.

MR GOOSEN: Thank you Mr Chairperson. On a different tack. The point was made earlier by Minister Maharaj I think, about the significance of the January 8 statement as a general statement of policy, and the question really concerns the position articulated at the beginning of, in January 8, 1983 in respect of the necessity to organise democratic forces into a front for national liberation. Now you will know that the question that has often been raised, certainly perspective raised by security forces, is that the United Democratic Front which was initiated during the course of 1983 and established, that that was a front effectively established by the African National Congress, and the question there is whether that in the view of the MK command would be correct as well as whether the UDF would then have been seen as a part of the ANC's overall military strategy

MR MAHARAJ: Mr Chairperson, besides our statements, yes at times people would read our statement and interpret it in the way their mindset wants to see it. But again because I was at that time secretary to the underground political structure, there is a video that we sent into this country that people still speak about, Bound to Strike Back, where I was interviewed on the relationship between the ANC and the UDF. That video and articles that we wrote in Sishaba appeared in the Delmas Trial for the defence and even the court accepted that the United Democratic Front was not a rubber stamp or a simple creation of the ANC. I used the word on the video that there was a symbiotic relationship, now I don't even know the meaning of that word, and I hope none of you are going to ask me for a dictionary, but the question when posed by the security forces is that no matter what we said in our policy statements, they had a mindset where they were incapable of processing what they were reading. They read it with a mindset to see a sinister conspiracy in everything. Detainees Parents Support Committee is created in the country for the legitimate reason that thousands of people are going into detention, they need welfare support. The cases are not reported, the families don't know. From the regime's security forces that's a sinister arm of the SACP and from SACP it's a Moscow arm, from Moscow arm it's led by Colonel Joe Slovo who became a Colonel at the age of 11. That's the mindset and that's a major problem.

Chairperson if you go to the Mayabuwa Centre, in '94 I donated to the Mayabuwa Centre three volumes of the National Intelligence Service study of me. It has got the official stamp of NIS, and you will see that they were intercepting every letter coming to me in prison and going out from me from prison, that is once in six months letters. And they had Carl Edwards sitting and doing a profound study of the implications of each word used in that letter, and what they saw when I called my wife, darling in one letter and sweetheart in the other, they underlined it to say, now who is he referring to? (General laughter)

That's the context in which we've got to get to grips with this divide in our country. That the security forces were so sheltered, so protected not only by the law but by their superiors when they broke the law and murdered people, that the regime saw their security forces as their bible and they did not have to prove their assessments. Events were not even sufficient when they contradicted their assessment. They were a total law unto themselves licensed by their political masters. So they read all our statements, whether on the UDF or on anything.

They never accepted that what we said in our NEC statements was policy. They saw that as a conspiracy and read between it that no it's written that way to mislead them. They never understood that we were mobilising our people.

So that's the framework on the UDF. The UDF was not created by the ANC, the UDF is well documented that comrades on the ground in the Mass Democratic Movement, analysing the problems of this country, saw the need to build a broad front.

Yes the January 8 statement of that year had also called for a broad front. The fact that our analysis coincided did not mean that there was an instruction now to form it or that Cas Saloojee and Alan Boesak who proposed it at a TIC Conference were now stooges of the ANC. But I can understand how the security forces would ask you that question.

MR GOOSEN: Thank you very much Mr Chairperson. Mr Chairperson I know that the panel have some matters that you would wish to raise, I have no further matters to raise at this stage thank you.

CHAIRPERSON: Mrs Burton.

MS BURTON: Thank you Chairperson. I would like to return to my earlier question about the difficulty that we have of drawing dividing lines between trained armed combatants, aware of the risks that they run and of members of the population. Sometimes those people were politically willing to follow the call to action, sometimes they were coerced or maybe intimidated, but in any case,

Mr Chairperson, Mr Kasrils indicated that he might have some thoughts on the matter, maybe I could address my question to him in the first instance.

MR MAHARAJ: We just want to understand the question you're grappling with Mr Chairperson.

MR KASRILS: Do you understand the reason, we just really want to have clarity amongst ourselves to try to help on this because we have discussed it earlier.

MR MAHARAJ: Can I just ask Commissioner Burton, this question, is it asked against the backdrop of who do we see as a victim of gross violations or is the distinction something else that you're trying to get to grips with?

MS BURTON: I think that is my main concern for my own purposes, I think it's quite a difficult decision in any kind of warfare like this. I understand it's a very broad question, but we offer for example where the situation - can I mention a specific case? Let us look for example at the group of people who came to be known as the Upington Twenty Six. They killed an agent. Some of them, one of them killed an agent of the State. In that encounter,

MR LAX: If I could just elaborate a little bit. As a lawyer one looks, there's a principle in law which Matthews would be familiar with, which is in a sense volenti non fit iniuria, in other words, consent to engage in certain conduct means you abdicate your right, you waive your right to thereafter claim that you were injured in that process, but there's a further dimension to all of this which relates to Geneva Protocols and a whole range of other things which basically says that when people engage in activity which is likely to result in their own injury and they are in fact injured in the process, and I'm drawing a distinction between injury that exceeds the normal bounds, for example a cadre gets arrested and then he's summarily executed when that wasn't necessary. That's the one extreme if you like. The other extreme though is that he's injured in the process, and he then dies and then is that a gross violation? Not is that person a victim, let's not confuse the issue, is that a gross violation of human rights? Because victim status follows on the

MR MAHARAJ: Well that's not an easy one because I think we're all grappling. Let's just ask the question in the case of Nazism. Today it has been acknowledged by the Swiss banks that they have to compensate the Jewish people who banked in the Swiss banks. Until the nineties the very idea that they could recover their property was alien to any thinking and certainly the Swiss government and the banks did not accept any responsibility. Now here's a case, we go further. You're finding today in France with somebody facing trial, a Frenchman currently on trial for having handed over a number of people to the Nazis to be sent to the concentration camps. I don't know what his defence is going to be but he might say that he was just sending them to the labour camp. But today we accept that those consignments were gross violations. And in the case of the banks, not returning the money to those who deposited it or their descendants is regarded as a violation of their rights.

Here in South Africa, none of us participated in the struggle on the basis that, did you expect to be alive today? We never expected that. We didn't do so on the basis that we saw ourselves as victims of the struggle, we saw ourselves as serving our people who

We also know from our painful experiences that you can't compare sacrifice or measure sacrifice. A woman cadre raped in detention goes through that instant more than what I underwent over 60 continuous days of torture in 1964 and remains with a scar perhaps right through her life. And I think I'm intact now. There's no basis for comparing. So I think what you are grappling with is such an area where you've moved into the greyest area between victim and perpetrator and innocent victim and conscious victim. I don't know whether we are ever going to find an answer to that boundary.

I think that we have to accept that the driving force of this process is to try and unearth what happened, why it happened and to do so in a way that will promote reconciliation. And I think that the measure of who feels more victim, the victims themselves must speak and they must say how they feel. I have never seen myself as a victim even when they tortured me. I have never seen myself as making a sacrifice in the struggle. I've seen the struggle as a privilege to serve my people. So I don't know if that rules me out of compensation. It's not my aim - (General laughter)

I'm simply saying that I think that the people who see themselves as victims must speak and you must listen to them because how they feel is important to how we bring about reconciliation. That's the only answer I can give, I don't know if you can add to it. The lawyer will try a legal one.

CHAIRPERSON: Let the records show that it is Mr Matthews Phosa.

MR PHOSA: Chairperson I was not going to talk it is just that someone spoke a language that I understand volenti non fit iniuria. So I thought I must respond to these things. I think there's a broader context which some of us are very anxious and worried that the TRC seems, at least at this stage, not to be taking into account. The resolutions of United Nations of the OAU and many international organisations including the churches, The United Nations declared apartheid a crime against humanity. A crime, it was a crime, the whole world saw it as a crime. No qualification. The churches regarded it as a heresy. Now the TRC cannot be unmindful of these international moral judgements.

I think it's a broader context in which we should look at this whole thing, but take the other thing of victims and -, there are certainly victims in a conflict of this nature and there are many and I agree that you cannot deny them the right to be victims if they are victims. But I don't think we should vulgarise the sacrifices made by activists even when we deal with reparation and say that because I've lost an arm I need R10. That's not what it's all about which is why Mr Maharaj is making this emotional point about seeing himself and like most of us as people who were engaged in a very noble cause which was worthy of prosecuting.

CHAIRPERSON: Well I can only say to you Mr Phosa, wait until you see the report and you will see that we have been far-sighted, much more far-sighted than ...(intervention)

MR PHOSA: I think the people of South Africa will wait with anticipation for that report.

CHAIRPERSON: Thank you.

MR MAHARAJ: Is that far-sight that arises Chairperson from the fact that newspapers show you in deep contemplation in several poses?

CHAIRPERSON: Exactly. (General laughter) Mr Kasrils.

MR KASRILS: I'd just like to pose a question. Is the question that you've posed, Mrs Burton, aimed to try to distinguish the question of who is a victim of human rights violation and who isn't? You did start off to talk about the dividing line between people as cannon fodder or somebody who actually participated in a direct act. If your only goal is to try to focus in on the reparation aspect, then I don't think I've got anything to add, but if you're interested, if part of this question is about how do you distinguish between a combatant having his or her human rights violated or not having their rights violated, then I've got something to say.

MS BURTON: I think Mr Lax is correct to draw the distinction

MR MAHARAJ: From a point of view of mobilisation, I'm seeing mobilisation and activisation of an individual in stages. We did try to instil the pride in the masses that simply to participate in protests and struggle gave you a badge of being a combatant. But that was from that perspective. The perspective was that we had to instil a sense of pride in the assertion of the individual, it was not from the point of view of helping you today with the problems you face.

CHAIRPERSON: Ronnie Kasrils.

MR KASRILS: I would then just like to focus in on the

In the same way when as happened on many occasions, the security forces raided somebody's house, whether that person was living inside South Africa or in Gaberone and they attacked that house and killed that person, even if that person was sleeping with an AK-47 under his or her bed, that was a gross violation of their rights and I think one must keep that in mind.

In - I gave an example of the celebrated Death on the Rock with three IRA members who were killed in cold blood by the British SAS, that's a celebrated case of that kind and is condemned in terms of international law.

MR MAHARAJ: It's one that the Commission has to really tease out amongst themselves.

CHAIRPERSON: Minister Modise.

MR MODISE: I just wanted to point out that whichever way we look at it, victims, and those who participated in the struggle in defence of their rights, who got injured, who fell, I think what we should look at in the end are the overall causes. Why did people have to take that course? Because under a normal system which recognised the rights of all people, there would be no need for people to choose that path.

CHAIRPERSON: Mr Lax.

MR LAX: Just one comment and then my final question. Just the term victim is one that's in the legislation unfortunately because somebody in my personal position would have preferred to see survivor or some other much more neutral empowering term, but we're stuck with it at the moment so when we use the word victim I just want you to understand that that's the language of the statute unfortunately.

My last question is really aimed at a phenomena which I had, as a lawyer I dealt with quite often, and I wondered to what extent it formed part of the holistic strategy and the holistic campaign, that was the issue of people's courts and whether in any way there was something in MK strategy that sought to encourage that in local areas. I must say I'm not passing judgement on people's courts, I saw some very good ones and I saw some very bad ones. I'm not passing judgement at all. I'm just asking to what extent that was a

MR MAHARAJ: People's courts were again a spontaneous development within the country in different communities arising from their particular situations. It may be possible that if you dig up in the literature of the democratic movement you would have found that different stages individuals also writing on this matter but it was never a matter formalised. What did arise was the concept that a stage was reached around the mid-eighties, a post anti-Republic campaign that rudimentary organs of people's power were developing within the country and by the mid-eighties the need then to ensure non-functional the administrative machinery of the apartheid state to allow for people's organs to develop. And I would understand the people's courts phenomena, those who taught about it, who created them, where they rose spontaneously began to discuss it in that framework. Like many efforts that we made, the regime often took what was happening and tried to turn it around. Just like when we began to set up combat groups, SDU's they sent, now it is admitted by Joe Mamasela, to go and arm the Duduza youth with doctored handgrenades so that they went off instantaneously. Similarly they turned around to destroy the relations and potential for a friendly relationship between the IFP and the ANC, and similarly, I think the peoples' courts, both became vulnerable to inflamed passion by the people and therefore

It's not the end of the story of involving the people in a participatory democracy including the judiciary. The issue is coming up again in serious analytical debate but I do not recall that the ANC as a policy level sanctioned and advocated the people's courts. Individuals would have commented on them but they were essentially a spontaneous development within the country.

Anybody want to correct me on that?

CHAIRPERSON: Is that all?

Well that brings to a close these proceedings and it remains for me to ...(intervention)

MR PHOSA: Before you close the proceedings if you don't mind. You're dealing with a very difficult area so we thought we will read you very nice lines here. We've characterised as a very complete (...indistinct) analyse.

CHAIRPERSON: Is that a poem in Afrikaans?

MR PHOSA: Listen. Just listen. English for a change. (General laughter)

"The first to go are the niceties, the little minor conformities thus suddenly seem absurdities. Soon kindling animosities, surmount old civilities and start the first brutalities. Then come bold extremities, the justified enormities, the unrestrained ferocities."

CHAIRPERSON: Mmm critical appreciation that would take days on end to try and unravel that mystery. (General laughter)

Well we have come to the end not only of these particular proceedings but to the end of this week and to the end of these forms of hearings that we conducted this week.

I have to thank particularly the ANC delegation who have once again indicated to us that they treat this process with a fair amount and have in fact a great deal amount of seriousness. You have increased our body of knowledge far more than you did in the last two presentations, which themselves were very comprehensive. So for that we have to thank you.

I would like merely for what it is worth to state what I have stated during the course of the week, that I don't think that there is any requirement by certainly the Truth Commission or the Commissioners to expect any group of persons who were involved in the conflict to apologise for actions that they took in pursuit of the objectives that they had set themselves out to achieve. I think what is of paramount concern to us in the Commission is that we would like to find, or hope to find that from the testimony of any one group that appears from us or any one individual, we are hopefully able to establish that a minimum threshold of moral accountability has been exhibited and I think by and large, whilst

I must say that some of the concessions you made are concessions that particularly I could have found difficulty to have made. Maybe I am influenced by the position that I took at the time that I had to defend some of the cadres who were confronted with Dawn and Sishaba and in the course of which the argument raised by Minister Maharaj were used first the disclaimer and secondly the context in relation to other documents. But for you to have made the concession that you did, in spite of the position taken by Minister Maharaj, is helpful to us because in the end it seems to suggest that there is a conscious and deliberate effort on your part to say, let's look, situated in the present coming from the past to the

I think you have demonstrated that this not a place where legal arguments are necessarily, however correct the end that is sought to be achieved. I think at the end what is sought to be achieved is something much much more than correctly lodged arguments. I think you are trying to assist us and assist others to realise that whereas the exposure of truth is one of the elements of this process it's concomitant other aim in the equation is the achievement of reconciliation through which we hope will contribute to nation building and reconstruction of our society.

I have to thank all those who have been patient and have made these proceedings the place to be at on a day to day basis. The media of course must come for particular mention, especially those who are very very able to observe that commissioners are able to be absorbing and be very thoughtful with their eyes closed. The paparazzi are coming for special mention in that regard.

Lastly but not least, Minister Maharaj mentioned two items, a video and an NIS study of himself. I think we would benefit if we could have copies of those particular items, even if you have to go and borrow them from Mayabuwa Centre for reproduction.

That brings to the conclusion of these proceedings and these

MR MAHARAJ: May I just say that on behalf of all of us, thank you very much for the questioning that you have subjected us to. In the spirit in which you've concluded it I'd like to say, I now declare a cessation of hostilities with Mr Goosen.

CHAIRPERSON: I so declare.

HEARING ADJOURNS

This resource is hosted by the Nelson Mandela Centre of Memory, but was compiled and authored by Padraig O’Malley. Return to the Nelson Mandela Centre of Memory site.