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Type AMNESTY HEARINGS
Starting Date 09 September 1998
Location CAPE TOWN
MR ARENDSE: Thank you, morning Mr Chairman and Honourable members of the Committee, thank you for the indulgence. I do believe that my colleague is going to lead the evidence of one of the victims Chairperson.
MR MAPOMA: I do confirm that Mr Chairperson. Mr Chairperson, there is a victim, Mr Meyer, who was involved in the shooting, he was a victim at the police van. He wants to give evidence regarding that incident. May I call him?
MR MEYER: As we were travelling to get in Old Klipfontein Road, there was a T-junction, there was a stop and I was slowed down, almost stopped with the vehicle, when immediately shots came from the hill side.
That was opposite the Old Klipfontein Road, in our direction. Then I heard the bullets struck the van and the van's engine just cut out, and it stopped, it ceased. Then Constable Makwanasi told me that he was shot.
The people are shooting at us, he said. I told him that I heard. Then he said that he was shot and he said, his last words it must have been, he said Sergeant, I was a Sergeant at that time, he said Sergeant, let's duck down. Then he ducked down and lay with his head on my lap. The second shots came and then I was struck, that was such as a brick that had landed on my shoulder with the impact.
MR MEYER: It could have, I didn't hear any crash or windows, I could hear bullets striking the vehicle as such. Then the second shot, I was shot through my left chest, I could feel a whole there, directly on my heart.
That must have been of the shooting. Now, then I saw this man was going to shoot again, he was very near to me. I think most probably it couldn't be more than 20 metres or 30 metres. Approximately 30 metres.
I could see his face, I could recognise he had on a shirt with short sleeves, there was brownish in it, and his pants were I think, it could have been also brownish. He was to me a bit short. His face looked as the one accused I have seen here.
The light was a bit dim, it was not totally light, so it was not so easy to recognise it fully. What I wanted to say is that then when the third shots came, I saw then that he would strike me, because he was very near, and I could do nothing, I could just call upon my Lord to help me. I called Jesus' name. I believe in him like many other people also believe. I could just call He must help me.
That I could feel the shots as they were passing me, here by my feet and here by the seat where I was sitting, leaned and so, and so it struck everywhere around me, but no shots - I was not shot anywhere. I was lucky not to be shot.
Then I decided I must start the van again and then I started the van again and it took on. As I was pulling away, I think it was in a southern direction, that is in the direction of the old SAP Crossroads, then I could hear again somebody firing, but then it felt to me as if he was firing from in front of me.
Those bullets didn't strike the van totally, it missed so that the most of the bullets just struck the sails, the canvass at the back of the van. Then I contacted with the radio our Radio Control and gave them the situation where I was, what I was in. I made it to the police station, where I handed over my gun and reported the case.
The Squad Control were very quick on the scene, and they took me to Conradie Hospital where I was stabilised. On the way my lungs fell flat, I had a lot of pain, I was bleeding a lot. When I came to Conradie Hospital, they put a tube straight in the wound where the bullet went in to get all the blood out. Then my lungs started functioning again.
All I can say shortly is that they have established that the wound didn't damage any bones. The shooting wound didn't damage any nerves. It made the outward, where the bullet went out, it made a hole of 12 x 8 cm. The (indistinct) muscles had been destroyed totally, it was a big hole.
MR MEYER: The exit wound was at the same side, on the left hand side, at the rear of my back, where the (indistinct) muscles are and it just went out where the bones, just where it is open, by the shoulder blade and I think it is the humerus, the neck of the humerus.
Between those two bones there, it went out, it took away all flesh and muscle. That is why I couldn't lift up my arm. Now, as a cause of that I had a lot of pain, I lost a lot of blood. I didn't believe in taking blood, it is against my Christian principle. I refused to take blood.
I thank the Lord for the medical people, for what they did for me, but I believed I had this thing, that I feel I shouldn't be taking the blood, because I saw a TV programme the week before that they said that the blood is not so very safe. I refused to take the blood.
Then I was transferred to Panorama Hospital and there I had been treated for three weeks I think. Then they performed a skin transplant over this opening of the hole at the rear of my back, which they said is 12 x 8 cm.
MR MEYER: Yes, I was transferred from them to Panorama Hospital. To make it short, when I went home, I had still a lot of pain. Physically my arm was in a sling and after two months, this arm didn't want to straighten. I had to get physiotherapy treatment.
I had a lot of pain to get it straightened. It was very difficult for them at that stage, to get my arm right. I went through a lot of pain. This whole shooting I went through a lot of pain. That is nothing against the fact of the spiritual pain I had.
When I was in the Panorama Hospital, after three days I think, then one day something strange happened to me. Suddenly my chest, I couldn't breathe and my throat just pulled together to such an extent that I couldn't talk. I didn't have any voice. I was in such a state that I felt I could die.
I couldn't talk. That was a shock, they said it is the shock of the shooting, because when I was waiting to be killed. I was waiting for them to kill me, I couldn't defend myself. That made a big shock on my body, but after a few hours, I regained my voice.
I had some psychological treatment as part of that. And then I have had sleep trouble, insomnia. I also had to get medical treatment for that. I couldn't sleep because in the night I got nightmares and people were shooting at me.
Up to this stage, I am battling to sleep regularly. I have got sleeping problems. On the other hand, my health is good. The arm doesn't hinder me, not much. I train with weight and it doesn't effect me. My arm is just a little bit stiff, that is all, but I would say psychologically I had a lot of strain. I still have a lot of strain.
MR MEYER: Makwanasi was a Christian. The only Christian I knew there that could have testified to this effect, that could say I am a Christian. He was very quiet man, very nice, he was a friend of mine.
MR MEYER: I couldn't really recognise his injuries, because things are going so fast when such a thing is happening. What I have heard is that he had a bullet through his head, and a bullet struck his body in the middle, the hip bone, and when such a bullet strikes, it starts wobbling through the body and his intestines were totally destroyed. That is what I heard.
MR MEYER: When he ducked on my lap, I didn't hear him die. I was under the impression that he was still living, because when I reached the Groote Schuur Hospital, they brought him in there and then he was dead.
MR MAPOMA: Sorry Chairperson, for the record Chairperson, Mrs Linda Mvundlela was notified as a mother of Mr Makwanasi the late, and she was here on Monday and I spoke to her about this matter, with her about this matter, and she advised me that she is not opposing the application, but her son died and she never received anything from the government as a result of the death of her son.
MR MAPOMA: Her first name is Linda, her surname is Mvundlela of Cala Street 57, Nyanga. She is not here today and she indicated to me that she is not interested at the hearing itself, so she excused herself.
He asked me that he wanted to meet my family also to apologise to them. Then I said to him, it is not necessary I will just tell them myself. They understand the position. I have listened to the Court here and I have come to the impression that what has happened, they have the right to say, they have their own convictions. I can feel with that.
MR ARENDSE: No Chairperson, save to say that I am really sorry to hear both personally and on behalf of in this case, applicant Mr Tanda, about what happened. I am pleased to hear that Mr Meyer says that he understood the context in which this took place at the time.
When we returned to our guard room, we saw someone from Elita Park, crossing the train lines, going towards Elita Park. We took this person, arrested kind of, took him to the guard room, because our duty was to check people who crossed that station, those lines there.
CHAIRPERSON: Please talk in such a way that we have a chance to write down what you are saying, so don't talk too fast, and give the Interpreter a chance to interpret to us what you are saying. Do you understand?
Whilst this was going on, I myself and the deceased and the third person, were sitting on the desk that we used to write on. I was next to the door and the deceased inside and the other one, more inside. I left my sitting position and went to a corner, to sit at a corner.
Not two minutes passed after I had left that position to my corner, and gunfire erupted. I ducked and the other two also went down too, over my body. We were screaming at that time, because we were being shot at. We then discovered that the third one was only screaming because he had been hit.
The shots took some time I think. When they stopped, we tried to ensure that we could leave that place. When we were outside, we saw nobody. We tried to ask to go to Site B Police station and the other four ...
MR MTAMZELI: Unfortunately sir, I would not be able to properly and be certainly able to identify them. There was Ntshica, his surname, the deceased was Mbambo, I do not know his name, and then Jackson and Jerry.
We then went with the Police to the Police station, all of us and the deceased, to give a statement as to what happened. After that, nothing happened, we were only called whilst I was working for Springbok in 1994 and then questioned about what we had explained.
We then gave the same story. After that, nothing was heard about the case until I got a letter indicating that those who had shot at us, are now requesting amnesty and that we are invited to come and appear.
CROSS-EXAMINATION BY MR ARENDSE: Thank you Chairperson. Yes, just one or two. Mr Mtamzeli, we understand from reading some of the statements that was given to the Police by yourself and some of your colleagues, that one of your colleagues had also returned fire from inside the room, is that correct?
MR ARENDSE: Sorry, but thank you for confirming that Mr Mtamzeli, because we also understand and I just want to confirm this for the record, that one of your colleagues were shot in the hand by a colleague of yours who was firing shots from inside the room to the outside, is that right?
ADV SANDI: The fact that you were wearing a uniform very similar as you have said, very similar to the one that was being used by the Police, did that not create a perception that you were somehow part of the Police?
MR MTAMZELI: You see, right now because I was not hit and I am free now, and I am happy that I have seen those people who had shot at us, coming to apologise, as a person I forgive them, because I understand that there was conflict at the time.
MR MAPOMA: Sir, I can just point out that unfortunately when I was giving a list of those persons who were on guard there, I forgot or I omitted to mention the name of Jerry Nkobezekwa. He is one of the five survivors.
MR ARENDSE ADDRESSES: Thank you Chairperson. Chairperson my colleague and I, Adv Ngawana, we have together prepared some written submissions. I have left a copy with you and the Honourable members of the Committee and with my colleagues on that side.
MR ARENDSE: I will do that. Thank you for that guidance Chairperson. Can I just say that except that the evidence that we heard this morning from Mr Meyer and Mr Mtumzeli, except that that really does, with respect, assist the Commission greatly in filling in the picture as it were, about the two incidents in question, they don't effect the written submissions at all.
In fact, I want to suggest that it supports the disclosure, albeit limited from their point of view, that the applicants have made. What struck me especially from this morning's evidence, is and I am sure the Committee must have picked this up also in other applications, is the almost total disregard for the plight of black people, including black policemen and officials like Security Guards, when it came to summonsing the assistance of the official Police to come to their assistance.
MR ARENDSE: Thank you Mr Chairperson. In the heads, we say that the applicants apply for amnesty in respect of five, only four had been mentioned specifically in your bundle. The one that had been added was in fact the one so graphically described by Mr Meyer, which is the Guguletu attack at NY 108. It is I have pointed out yesterday, at page 32, it is mentioned by one of the applicants.
The points we would like to highlight, if I could just refer to page 8, the Claremont restaurant attack in which my colleague, Mr Warner has an interest. This concerns only applicant Shiceka and we submit that this attack is very similar to the one perpetrated on the Crazy Beat Disco at Newcastle, the Heidelberg Tavern attack in Cape Town and the St James church attack and in respect of all those three attacks, applications for amnesty were made and were granted.
We have pointed out to you the numbers of this Committee's decisions. We submit that there is a common thread that runs through all these incidents, including the Claremont restaurant attack, that they were given instructions by senior APLA leaders, that these instructions were not questioned. Whether they came from the High Command to the Commander of the Unit or instructions given by the Unit Commander to the members of his Unit. In all of these attacks, the applicants didn't know any of the victims personally, they therefore had no personal malice towards them, they couldn't have had.
In none of these attacks did they gain personally, we have dealt with the R1 000-00 that was given to Shiceka. It is uncontroverted on the evidence that he used it for food, accommodation, clothing and so on, for him and members of his Unit. In all these attacks, a vehicle was stolen and then subsequently abandoned. And importantly for the purposes of the political affiliation, association and the political objective, APLA claimed responsibility for these attacks.
We submit therefore that the requirements of Section 21 and those set out in 20 and the criteria set out in 22 and 23 have been met. We then quote from a dicta in the St James church application which we say is of application also in these applications before you.
We deal in paragraph 9 on page 11 with the affidavit filed on behalf of Ms Amanda Warner, where she had submitted that the requirements of 23 had not been met. We say that it is not in fact disputed that the attacks were politically motivated, that the applicants were members of APLA and the PAC, that they acted on instructions from the APLA High Command and that they didn't know any of the victims, including Ms Warner, that the applicants did not gain materially or personally from any of these attacks, that the attacks were in line with APLA policy and then I think just importantly we say that in any event, Adv De Jager SC, a member of this Committee, had made an important observation in the Amy Biehl application, where he said and perhaps I just want to read that back.
It is however not a prerequisite for amnesty that the offence should fall within the category set out in Section 23(f). The Committee often pointed out in previous decisions that Section 23 provides criteria or guidelines to assist the Committee to decide whether an act is associated with a political motive or not. The provisions are criteria and not requirements or preconditions that must be complied with.
We submit that in any event, they had complied. Our submissions are repeated in respect of the other attacks, the Khayelitsha train attack, the Khayelitsha Police vehicle attack, the Crossroads Police attack and the Guguletu Police van attack.
Firstly paragraph 9.3, my colleague alleges that it is not disputed that the applicants acted in accordance with instructions. It was in fact disputed in that I alleged that the instructions were not so broadly phrased as to include attacks on civilian targets.
Secondly in paragraph 9.6, it is alleged that the attack was in line with APLA policy and that this was also never disputed. I did in fact dispute that. I disputed the fact that APLA at that time had a policy of attacking so-called soft targets or civilian targets.
In order to reconcile ourselves with the injustices committed against ourselves, by our fellow Africans, it is necessary that we understand what it was that motivated people to commit acts of violence against others.
Only once we are able to figuratively stand in the shoes of our former enemies, is forgiveness possible. This is why it is of crucial importance that amnesty applications are not rubber stamped in the absence of opposition thereto. Whether or not the victim's opposition to the amnesty application at hand, can be categorised as having been successful, depends not so much on whether or not the Commission grants amnesty, as to whether or not the truth has emerged and whether this has been of assistance in the process of reconciliation.
Having heard the evidence of the applicant and having been afforded the opportunity of testing this evidence in cross-examination, I am in a position to re-access the opposing affidavit of my client, and to make the following concessions:
At paragraph 18.2 thereof, it is accepted that the applicant was indeed a member of a publicly known organisation or movement bona fide in furtherance of a political struggle which was at the time, being waged against the State by the aforesaid organisation, to wit the PAC and its armed wing, APLA.
At paragraph 18.4(a) thereof it is accepted that the applicant was indeed motivated by something other than malice and hatred of white people. There is however an important (indistinct) to this concession, in that it is alleged that a hatred of whites in their capacity as oppressors of the African people, must have been and indeed was, a contributing motivational factor.
The applicant does not appear to have shown remorse in the time immediately following the attack, and even went so far as to say that had a white person been killed in the train station attack, he would have been more satisfied with the relative success of this operation.
At paragraph 18.4(1) thereof it is accepted that the act may be seen as being proportional to the objectives of the organisation, namely the liberation of the African people from oppression. It is further conceded that this act and similar acts, may have influenced the demise of the Apartheid system.
At paragraph 18.4(k) thereof, it is accepted that the applicant bore no personal grudge against the victims of this attack, other than that which he may have held against them as a class of people he refers to as the oppressors.
It is not clear what the plan referred to by the applicant, was when he arrived in Cape Town. He says he told his comrades what the mission was, but the details of this mission were not forthcoming on cross-examination.
Not only were these people civilians, but they were unarmed and no attempt was in any event made, nor was it alleged to have been made, part of the plan to acquire arms during this operation. On the contrary it would appear as if they made sure that no Policemen were present at the time when the attack was launched.
The attacks on civilians at St James church, Heidelberg Tavern and Crazy Beat disco only took place during 1993 and 1994. It is unclear why the applicant was under the impression that he bought tobacco from a restaurant that firstly does not sell tobacco or did not sell tobacco, and secondly was only open for business in the evenings, and the applicant claimed to have bought tobacco from the restaurant during the day.
He could have mistakenly viewed the two adjoining establishments as one. It is conceded that this is possibly an easy error to make. It is noteworthy that the attackers arrived in a Datsun 1200 motor car, left the driver in the car, yet all three are alleged to have escaped in a bakkie.
The Mitchell’s Plain Magistrate's courts were known to have been experiencing serious problems during the time in which the applicant was acquitted, ostensibly for lack of evidence and it is submitted that not too much reliance ought to be placed thereon.
Only white adult males between the ages of 17 and I speak under correction here, 55 were liable for military service. Full time students were exempted from such service for the period of their studies. Females were not required to undergo military training.
It is not for me to decide whether or not the applicant has met the requirements for amnesty as set out in the Act. I wish to state however, that whatever the decision of the Committee, it has the support of my client, Ms Warner, and I would like to convey her instructions to me that knowing what happened and hearing the applicant's version thereof, has been of assistance to her, and although she has no desire to meet with the applicant at present, she does not rule out the possibility of such a meeting in the future.
MR WARNER: (iii) yes. It is alleged that the applicant's grounds for believing that he was acting within the scope of his duties or an expressed or implied authority, were not reasonable grounds. Paragraph 4(d). The object of the act was not primarily directed at a political opponent or State property or personnel.
And then just secondly to say that notwithstanding his objections, I think his problem which is a fatal one, is that no evidence was led before this Committee to support any of the objections or the contentions that he otherwise makes, thank you.
CHAIRPERSON: The Committee will now, or rather in due course, consider the evidence that has been adduced before it, and will consider the submissions that had been made by Counsel and make known its decision in due course. Thank you very much.
I wish to express the thanks of my Committee members and myself for the assistance we had been given by Counsel. Thank you very much for the trouble you have taken in preparing these heads at such short notice. Thank you.