Apartheid-era defense chief acquitted in '87 massacre Prosecutor wanted to lose, say some S. African blacks

THE BALTIMORE SUN

JOHANNESBURG, South Africa -- The highest-ranking official of the apartheid government in South Africa to face charges for the human rights abuses of that era was set free yesterday after his acquittal on charges of involvement in a 1987 massacre.

Magnus Malan, the former defense minister who directed a so-called "total onslaught" campaign against anti-apartheid forces, had been charged along with 15 others in the 1987 deaths of 13 people in KwaMakuthu, a black township outside of Durban.

The court's decision at the end of the seven-month trial brought angry protests from many blacks and cast doubt on the ability of the country's Truth and Reconciliation Commission to fulfill its mission to investigate human rights abuses during the apartheid years.

Delivering his verdict in the Durban Supreme Court, Judge Jan Hugo said that the prosecution had established that the killing of the 13, including six children, was carried out by a group trained by the South African government to help officials of the Inkatha Freedom Party in its fight with the African National Congress.

But, claiming that the key prosecution witnesses -- two former policemen involved in these squads -- lacked credibility, Judge Hugo said that Malan and his fellow defendants could not be held legally responsible for the assault.

The killings occurred in a nighttime assault on the house of a man tangentially involved in the ANC's anti-apartheid struggle. The raid left the home riddled from automatic weapon fire.

After the verdict, Malan, 66, praised President Nelson Mandela, who heads the ANC, for not ignoring calls from former white leaders to intervene, saying: "Due to him, we were able to defend ourselves in a court of law."

"All who believe in democracy can gain hope for the future from this," Malan said. "Today the truth has prevailed."

As Malan and his co-defendants accepted the congratulations of their families, about 100 Inkatha supporters danced in victorious glee outside the courthouse.

Mandela, attempting to head off black outrage, promised that those guilty of the KwaMakuthu killings would face justice.

"Judicial findings, based on cold and dispassionate analysis of the evidence put before it, must be respected even, or especially, by those who are aggrieved by these findings," said a statement from Mandela's office.

That was no solace to Mbusi Ntuli, whose father and three sisters died in the attack., "South African justice has always been like this and will always be like this," he said. "Murderers go free."

Ntuli was one of many to question the motivation of prosecutor Tim McNally, whose conduct of the case was ridiculed by Judge Hugo in his verdict.

"He engineered this," Ntuli said of McNally. "If a prosecutor doesn't want to win, he won't."

In a statement, the ANC also cited the weakness of the prosecution, saying: "Questions have arisen as to why McNally chose to prosecute Malan and others without ensuring that there was adequate evidence placed before the court."

Speaking on the condition of anonymity, a top truth commission official speculated that McNally intentionally put on a weak case to ensure that Malan and his co-defendants would get off, thus closing off any further prosecution.

Bishop Desmond Tutu, the commission chairman, said: "It would be very unwise for perpetrators waiting in the wings to think that the outcome of this trial offers them any reassurance. It is important for perpetrators to come to the commission before they face the alternative of being prosecuted in a court of law."

McNally, who is prosecutor in KwaZulu/Natal, the province controlled by Inkatha, has often been criticized by the ANC for refusing to go after those suspected of attacking ANC members in its decade-long bloody struggle with Inkatha.

As defense minister from 1980 to 1991, Malan waged the zTC campaign against anti-apartheid groups inside the country and in neighboring states .

McNally brought the charges against Malan and the others after a committee of the ANC-controlled national government grilled him on his prosecution standards.

After the verdict, McNally defended his conduct in the case, saying he "worked day and night" on the prosecution, only to be let down by the testimony of his witnesses.

The commission offers amnesty in return for full disclosure, but the not-guilty finding in the Malan case highlights the difficulty of tying top officials to specific actions. Without the fear of successful prosecution, it is thought that few former officials will cooperate with the commission.

Indeed, sources in the commission have speculated that top apartheid-era generals recently postponed their submission to the commission because they wanted to wait for the verdict in the Malan case to gauge their vulnerability to prosecution.

Pub Date: 10/12/96

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