REPORT OF THE MOERANE COMMISSION OF ENQUIRY INTO THE UNDERLYING CAUSES OF THE MURDER OF POLITICIANS IN KWAZULU- NATAL Contents INTRODUCTION ....................................................................................................................................... 2 ANALYSIS OF THE TERMS OF REFERENCE ............................................................................................... 7 WITNESSES ............................................................................................................................................ 10 THE EVIDENCE ....................................................................................................................................... 18 FINDINGS ............................................................................................................................................. 412 RECOMMENDATIONS ......................................................................................................................... 417 ACKNOWLEDGMENTS ......................................................................................................................... 424 1 | P a g e INTRODUCTION 1. “Something is rotten in the State of Denmark.”1 2. Had Shakespeare lived in KwaZulu-Natal (KZN) between the years 2011 and today, he might have had a modern-day Marcellus utter those words – a theme to which we shall return. For present purposes, suffice it to say that the apparently never-ending murder of politicians in KZN is a symptom of a serious pathology in the Province’s body politic. 3. On 28 October 2016 the Premier of the Province of KwaZulu- Natal, the Honourable TW Mchunu, established a Commission of Enquiry into the underlying causes of the murder and attempted murder of politicians in KwaZulu- Natal, (KZN), in terms of section 127(2) of the Constitution of the Republic of South Africa, 1996, (“the Constitution”), read with section 2(1) of the KwaZulu-Natal Commissions Act, 3 of 1999, (“the KwaZulu-Natal Commissions Act”). 4. The establishment of the Commission was made known by the publication of Proclamation 1 of 2016 in Provincial Gazette 1748 of 28 October 2016. 1 William Shakespeare: The Tragedy of Hamlet, Prince of Denmark (Act 1. Scene IV). 2 | P a g e 5. The Commission was appointed with the terms of reference, generally, to investigate and report on the underlying causes of the murder of politicians in KZN with reference to: 5.1 the number, nature and locality of incidents of murder and attempted murder involving politicians, both as victims and suspects, in the Province from 2011; 5.2 indications whether the incidents are related to political, ethnic, tribal, social or criminal factors or any other internal or external influences or factors which may be considered relevant; 5.3 the outcome of any police investigation and prosecution of the incidents, including the number of successful prosecutions, trials and convictions of the perpetrators; 5.4 the perceptions of the public, political parties, community structures and members of the relevant communities in respect of the underlying causes of the incidents of murder and attempted murder involving politicians, both as victims and suspects, and the effectiveness of the policing thereof by the police service in the Province. 3 | P a g e 6. The Commission was required to make recommendations: 6.1 to address the underlying causes of the murder and attempted murder of politicians in KZN; 6.2 in respect of the prevention of future incidents of murder and attempted murder involving politicians, both as victims and suspects and ensuring the successful investigation and prosecution of the perpetrators; 6.3 on any other matter of whatsoever nature that the Commission deems necessary or appropriate. 7. The provisions of the KwaZulu-Natal Commissions Act No 3 of 1999 were made applicable to the Commission, provided that the Commission was required to produce and submit its final report containing a summary of the evidence, its findings and recommendations no later than 12 months after 28 October 2016. 8. By reason of the fact that there were unavoidable delays in the commencement of the functioning of the Commission, its term was extended by five (5) months to 27 March 2018 by Proclamation 1 of 2017 published in Provincial Gazette 1891 of 27 October 2017. 4 | P a g e 9. The duration of the Commission was further extended by Proclamations 2 and 3 of 2018 to the end of April and the end of May, respectively. 10. In terms of section 2(1)(e) of the KwaZulu-Natal Commissions Act, Advocate MTK Moerane SC was appointed Chairperson of the Commission, whilst Advocate V Gounden and Prof C Potgieter were appointed as additional Commissioners. Mr S Mdledle was appointed Secretary to the Commission in terms of section 2(1)(d) of the said Act. 11. In terms of the Regulations applicable to the Commission, the Chairperson designated Advocates B Manyathi and AM Ngqanda of the Durban Bar as Evidence Leaders and Retired Brigadier C Marion as Investigator. The said persons were duly appointed as such. 12. The appointment of the Commission arose out of concern by the Executive Council of the Province of KZN over politically related killings which had become prevalent in KZN since 2011 and had escalated rapidly during 2016 with adverse consequences for governance in the Province. 13. The situation was of great concern not only to the Provincial Government, but also to political parties in the Province of 5 | P a g e KwaZulu-Natal, who were of the view that the matter required urgent intervention. 14. Regrettably, there does not seem to be any reduction in the rate of the murder of politicians in KZN. There is still something rotten in the Province of KwaZulu-Natal. 15. Long after the establishment of the Commission, there was criticism from certain quarters about the necessity of establishing a Commission of Enquiry into the murder of politicians as a group or class of persons. It was argued that politicians were not so special as to warrant the time, energy and resources devoted to the investigation of only their murders. It was also contended that the Commission would amount to nothing more than a mere “story telling” exercise. However, some of these critics actually came before the Commission and gave relevant and valuable evidence. 16. It is generally accepted that it is the responsibility of the South African Police Service (“SAPS”) to prevent, combat and investigate crime in terms of section 205 of the Constitution. On the other hand, the Provincial Government is responsible for research, analysis and the development of safety models in terms of the Civilian Secretariat of Police Service Act 2 of 2011. The Province is accordingly mandated to analyse the 6 | P a g e underlying causes of murder, in general, and the murder of politicians in KZN, in particular, and develop measures to address such causes. 17. In any event, the Premier is empowered by section 127(2)(e) of the Constitution of the Republic of South Africa, 1996, read with section 2 of the KwaZulu-Natal Commissions Act, to appoint a Commission of Enquiry. Furthermore, the establishment of the Commission of Enquiry has not been the subject of a legal challenge. ANALYSIS OF THE TERMS OF REFERENCE 18. At the outset it is deemed appropriate to set out our understanding of the import of the Terms of Reference. 19. As stated above, the Commission is required to investigate and report on the underlying causes of the murder and attempted murder of politicians in KwaZulu-Natal …. 20. The question that immediately arises as to who is a “politician” within the contemplation of the Terms of Reference. The South Africa Pocket Oxford Dictionary defines “politician” as “a person who is involved in politics as a job, either as a holder of or a candidate for an elected office”. Other dictionaries define the 7 | P a g e word as “a person who is professionally involved in politics, especially as a holder of an elected office”, “representative”, “candidate”, “official”, “legislator”, “office-bearer”, “statesman”, “stateswoman”, “officer”, “policymaker”, “lawmaker”, “elected official”. 21. It is clear from the above dictionary definitions that the word “politician” has a wide connotation encompassing various persons who are involved in the political process as elected representatives or officials, candidates, office bearers, lawmakers or legislators, officers or officials etc. This was also the connotation that the Evidence Leaders urged the Commission to adopt. 22. We have accordingly adopted this broad definition of “politician” to include elected councillors, candidates in local government elections, municipal officials and officers, such as, Municipal Managers, Mayors and Deputy Mayors, members of the Executive Committee of municipalities, members and office bearers of political organisations. 23. Furthermore, the Terms of Reference are wide enough to permit the Commission to investigate the murder and attempted murder of politicians, as defined, “with reference to indications whether the incidents are related to political, 8 | P a g e ethnic, tribal, social or criminal factors or any other internal or external influences or factors which may be considered relevant.” 24. The Commission was acutely aware of the fact that all murders and attempted murders are, by definition, crimes or criminal acts. However, we conceived our mandate as that of identifying those killings or attempted killings that were perpetrated with a political motive or purpose or were politically related.