THE STATE PRESIDENT
The Commission of Inquiry regarding the Prevention of Public Violence and Intimidation has the honour to present a report on the preliminary inquiry into the shooting incidents which took place in the centre of Johannesburg on 28 March 1994.
The Commission has made no findings.
The main recommendations are as follows:
1. that the Committee of the Commission which considered recommendations in relation to mass action reconvene to hear evidence and submissions and make further recommendations with regard to the policing problems which arose in johannesburg on 28 March 1994;
2. that, when further evidence and statements have been made available to it, the Commission will determine the terms of reference of a committee to hear evidence with regard to the shooting incidents on 28 March 1994;
3. that the conduct of Mr Humphrey Ndlovu be referred to the Independent Electoral Commission.
R J Goldstone Chairman
21 April 1994
1.1 On Monday, 28 March 1994, the central business district of Johannesburg was virtually brought to a standstill. Some areas became battle zones with bullets flying in all directions.
1.2 The events of the day were precipitated by the calling of a gathering of many thousands of Zulu people at the Library Gardens. Notice of that gathering was given to the Chief Magistrate of Johannesburg by letter dated 22 March 1994. The letter, on a letterhead of Inkatha Freedom Party (IFP) was signed by Mr Humphrey Ndlovu, the West Rand Chairperson of the IFP. The relevant part of the letter reads as follows:
"With Ref. IFP Launch, Monday March 28 1994I hereby wish to ask permission for the IFP to launch its Anti-Election Campaign on Monday, March 28 1994. This gathering will be peaceful and will be from 09h00 to 14h00. Approximately 20 000 people will be attending this launch".
1.3 On the following day the requisite application was also made to the Johannesburg City Council on behalf of the IFP. The form reflects the organiser as Mr Humphrey Ndlovu. The purpose of the gathering is stated to be "Anti-Election Campaign". The number of marshals who were to be available is said to be 200.
1.4 At the preliminary inquiry it was submitted on behalf of the KwaZulu Government and the IFP that the gathering was not in fact arranged by the IFP but by or on behalf of "the Zulu people" and that the IFP letterhead was only used because Mr Ndlovu did not have available a letterhead of the KwaZulu Government. The Commission has no hesitation in rejecting this submission as being fanciful and disingenuous. The argument about the letterhead is refuted by the contents of the letter. In very clear terms the application was made, not only on behalf of the IFP but also for the purpose of launching the IFP Anti-Election Campaign. The letter, furthermore, is signed by Ndlovu in his capacity as an IFP official. The application to the City Council is in similar terms. This spurious argument is also given the lie by the vague allegation that Mr Ndlovu in fact was calling the gathering on behalf of "the Zulu people". How Mr Ndlovu was authorised to act on behalf of "the Zulu people" could not be explained by counsel for the IFP and KwaZulu Government. There can be no doubt that the purpose of the gathering was party political and that, in any event, many members of the Zulu nation would not have wished to participate in an IFP Anti-Election Campaign.
1.5 The Commission is of the view, therefore, that the gathering was indeed called by the IFP and that its belated efforts to rid itself of responsibility therefore must be rejected.
1.6 Amid other incidents of violence that took place elsewhere, the shooting incidents in the centre of the city occurred:
1.6.1 Outside the Selby Hostel;
1.6.2 In the vicinity of Shell House, in which are situated the national offices of the African National Congress (ANC);
1.6.3 In the vicinity of Lancet Hall, which houses the regional offices of the ANC;
1.6.4 At the Library Gardens.
2.1 On the same day that these unfortunate events occurred, i.e. 28 March 1994, the IFP addressed a letter to the Commission requesting it to investigate the events of that day. On the following day, the Commission requested interested parties to make submissions to it in writing concerning the events by Friday, 15 April 1994. And, on 1 April 1994, the Commission announced that it would hold a preliminary inquiry into the events on Monday and Tuesday, 18 and 19 April 1994.
2.2 All five members of the Commission heard the submissions of counsel for the South African Police (SAP), the IFP and the ANC.
2.3 On the first day of the inquiry counsel for the IFP informed the Commission that he was unable to make any submissions because he had been briefed only on the previous Thursday. On the second day of the inquiry, counsel for the IFP informed the Commission that the delay in instructing legal representatives was the consequence of the Easter Weekend and the unavailability of witnesses. This explanation is rejected. According to the letter from the IFP of 28 March 1994, witnesses were already then known to it. They are referred to by name. It would appear that no serious attempt was made to prepare for the inquiry. That failure was not satisfactorily explained and is regrettable.
3.1 The SAP put in very detailed, well prepared and helpful submissions. In particular the Commission was informed of every detail of the extensive preparations made by the SAP for the gathering. It will serve no purpose to repeat that detail in this report.
3.2 The SAP attempted to obtain as much information as it could relating to the gathering and generally as to the plans of the IFP for the events of 28 March 1994.
3.3 Counsel for both the ANC and IFP criticised the SAP, alleging that the SAP had an insufficient presence on the day in question.
3.4 More particularly, it was submitted on behalf of the IFP/KwaZulu Government that more SAP and SADF members should have been deployed in the vicinity of the Library Gardens as well as to accompany groups making their way there through the streets of the City.
3.5 In turn, on behalf of the ANC, it was submitted that insufficient precautions were taken by the SAP to avoid the outbreak of violence and to protect Shell House. In particular, the SAP failed to disarm marchers before they became large groups. The further criticism was that the SAP did not have the political will to prevent armed and undisciplined groups from causing havoc in the City streets.
3.6 The issues of policing which have been raised by the parties are both difficult and important.
3.7 The Commission regrets that although promulgated some 12 weeks ago, the Regulation of Gatherings Act, Act No 205 of 1993, has not been brought into effect. It has apparently been held up by the TEC. Had its provisions been in force, some at least of the unfortunate events of 28 March 1994 may have been avoided.
3.8 The issues raised under this heading will remain relevant and important after the elections. How police should react to large groups of armed demonstrators is not an easy question to answer and the problem is by no means peculiar to South Africa. So, too, are other related questions. The prospect that, as presently advised, after the election no adequate legislative provision for the regulation of gatherings and marches will be in place, is alarming.
3.9 A Committee of the Commission considered the recommendations of the international panel established by the Commission in 1992 in relation to mass marches and demonstrations. The Committee consists of the Chairman and the Vice-Chairman of the Commission together with Professor D van Zyl Smit, Dean of the Law School of the University of Cape Town. The Commission has decided to request that Committee to hear evidence and submissions on these issues. It will consult with all the interested parties thereon and, in due course, make recommendations to the State President.
4.1 The parties appeared to be agreed that the events which took place in the vicinity of Shell House and Lancet Hall required full investigation, either by the Commission or by the South African Police and the Attorney-General, if criminal proceedings are to be instituted. They were also agreed that the shooting at Selby Hostel did not require to be investigated by the Commission.
4.2 The ANC and the SAP were of the view that the shooting at the Library Gardens arose from the SAP shooting in self-defence and that the ANC was in no way involved. On the other hand, the IFP was of the view that the shooting there was the consequence of criminal conduct by members of both the SAP and ANC. It alleges that some of the shots were fired at IFP supporters by snipers who were on the rooftops of a number of buildings overlooking the Library Gardens. Counsel for the IFP submitted that the SAP and the ANC did not want that shooting investigated because they were the cause of it.
5.1 The versions presented to the Commission of the events at these two buildings are contradictory in material respects. Whether the ANC security guards who opened fire on the IFP supporters acted in self-defence, as alleged by the ANC, or whether they shot without any good cause, as alleged by the IFP, is a question of considerable public interest and importance.
5.2 The Commission is enjoined by the provisions of its statute, Act 139 of 1991 (Section 7(4)) to ensure that any inquiry held by it does not adversely affect any existing or pending judicial procedures. Having regard to that provision, and with the possibility of criminal charges arising out of the shootings, the Attorney-General of the Witwatersrand, Mr K P C O von Lieres und Wilkau was consulted by the Chairman. The attitude of the Attorney-General was that the Commission should feel free to institute such inquiries as it might deem appropriate.
5.3 The Commission has been informed that the SAP has appointed a team of detectives to investigate the Shell House shootings. POST MORTEM examinations are to be conducted on the bodies of those killed in the incidents. Other forensic tests are being conducted by the SAP.
5.4 The ANC and IFP presumably have access to many eyewitnesses of the shootings. In particular there are the ANC security guards and IFP marshals and supporters.
5.5 The Commission has decided that it would be premature at this stage to establish a committee to hear evidence on these shootings. The terms of reference of such a committee can only meaningfully be determined when the Commission knows what witnesses and evidence are available. For that purpose the SAP, ANC and IFP are requested to submit witness statements, photographs and other relevant information to it on or before 31 May 1994.
6.1 For similar reasons the Commission will request the IFP and SAP to submit witness statements, photographs and other relevant information with regard to the shooting at the Library Gardens. Again, the documentation will be requested on or before 31 May 1994.
7.1 On behalf of the ANC counsel submitted that on the evidence before it the Commission should find that the IFP was guilty of:
7.1.1 Public violence;
7.1.2 Contraventions of the Electoral Act and the Code of Conduct.
7.2 It emerges from the evidence that acts of public violence were committed during the events of 28 March 1994. On the submissions presently before it, the Commission cannot make any findings as to the responsibility for these acts. No evidence has been heard and the person or persons responsible therefore have not been identified. Indeed, the evidence as to where the incidents occurred has in no way been tested.
7.3 However, there appears to be prima facie evidence of a contravention of the Electoral Act and Code of Conduct. The offender is the IFP official, Mr Humphrey Ndlovu who, during a public address on the day in question, informed IFP supporters that the election would not proceed on 26, 27 and 28 April 1994/. The Commission was shown a video film of the speech. This is a matter which the Commission will refer to the Independent Electoral Commission.
8.1 On the very day that the submissions were heard, 19 April 1994, the IFP decided to contest the elections. Its supporters are now being exhorted to vote in the election. The very season forwarded by the President of Inkatha, Mr Mangosuthu Buthelezi, for participating in the election, is to avoid further violence. In a press statement issued by the Commission on 20 April 1994, it welcomed that decision. Further mass action in Johannesburg before the election was called off by the Inkatha Youth Brigade. That is also to be welcomed.
8.2 It is the sincere hope of the Commission that a more inclusive election will reduce considerably the phenomenon of public violence in South Africa.
8.3 The behaviour of political parties and their supporters after the election will determine the agenda of the new Government and the Security Forces in the area of public order. The Commission expresses the hope that we will enter a new era of democratic government and that all political leaders and their followers will accept the election results as reflecting the broad will of the people of South Africa. Much nation-building and reconciliation will remain to be done. The nature of formal inquiries which this Commission or any other similar body requires to do in the future should be left for the decision and advice of the new Government.
8.4 Particular gratitude must be expressed to the legal team of the SAP for their extremely detailed and helpful written submissions. They considerably eased the task of the Commission and of the legal teams appearing for the ANC and IFP.