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Type AMNESTY HEARINGS
Starting Date 28 October 1999
Location CAPE TOWN
Names FUMANIKILE BOOI
Matter DEATH OF NICHOLAS JOHANNES ELS
CHAIRPERSON: Good morning everybody. Before we proceed with this Hearing, for the purposes of the record, I'm going to announce my name and I'm going to ask my colleagues to do the same and the respective representatives.
MS PATEL: Thank you Honourable Chairperson. Ramula Patel, Leader of Evidence. Honourable Chairperson, perhaps it's appropriate at this stage just to mention the position of the victims. We were unable to locate the next of kin of the deceased, Mr Els, or Mr Moyese, who was a victim in this matter and the other victim, Mr Beeslaar was involved in this incident has elected not to participate in the proceedings. Thank you.
MS PATEL: An ad was placed, I've got a copy of it, I just can't make out which newspaper it was placed in, but an ad was placed to try to get hold them and then our investigative unit, in terms of Mr Moyese, contacted the police and investigations were made through those Channels and he's apparently moved home quite a few times and we've since not been able to locate him. No-one knows whether he's presently employed either.
CHAIRPERSON: Ms Patel, we're satisfied that the Commission has done sufficient to locate those victims. It's unfortunate that it was not successful. In regard to the third one you say that he's indicated that he's not willing to participate in these proceedings?
CHAIRPERSON: Mr Papier at some time during the Hearing we would expect you instead of your client to indicate for which offences he is applying, given the fact that the niceties of law are not always understood by the man in the street.
MR PAPIER: Thank you. Thank you Judge. Now Mr Booi, you have submitted an application to the TRC which appears on pages 1 to 7 in the bundle, a copy of which you have in your possession as well, is that correct?
MR BOOI: Yes. I was working with ANC members such as Oscar Mpetha, Stuurman, old stalwart of the MK and I was highly involved in Rand boycott as instructed by the organisation and also to organise the youth around the country, in the Western Cape at that time.
MR BOOI: I was detained together with the late comrade Oscar Mpetha and the 18 others in August 1980. I stayed in solitary confinement for the rest of 1980 up to 1981 under Section 6, the old law and then in 1981 I was formally on the 15th of April, charged with other co-accused of mine and then we were awaiting trial at Pollsmoor, refused bail for three years. After the three years I was acquitted.
MR BOOI: Yes, that is correct. I joined the ranks of MK in Lesotho, advised to by the Commander, Sipho. I arrived in Lesotho, I was deployed as a Political Commissar on a transit group and as a security screener for those who were coming from South Africa, to investigate whether there were no enemy agents among them. I later in 1986 left Lesotho for further military training. I went to Angola via Lusaka. I met Comrade Kiswane in Lusaka who asked me to work with him and report directly to him on those trained comrades in Angola who were ready and willing to be deployed inside the country.
Comrade Chris Hani instructed me in Lusaka that on my arrival in Angola, I will meet many of comrades, in particular those coming from the Western Cape. I'll have to liaise with them and find out who are those who are willing to come back and fight inside the country.
He further instructed that I be sent to a special training camp in Pango, that is part of Angola where I was supposed to be doing military combat work, tactics, firearms, topography and engineering and intelligence as a ...(indistinct) command. That I did do for 6 months in Pango.
I was further in the same year after 6 months specialising in Pango. I was instructed to go and specialise in military engineering Yugoslavia military academic school, in Yugoslavia. I went to Yugoslavia in 1986, I specialised in military intelligence and counter intelligence, camouflage tactics, firearms as a company commander. I finished my training in 1987 and I returned to Angola.
On my arrival in 1987 in Angola from Yugoslavia, I was deployed in Vienna, that is a transit camp in Angola, in Luanda. I was deployed there as a political commissar on the kitchen platoon, the platoon which was responsible for the food and all those things, so I was residing as a political Commissar.
Later that year, when a number of soldiers, 31 battalion, UNITA rebels, other sinister forces which were mobilised by the then apartheid regime were sent to attack our basis in Angola in the Northern part of Angola where some of our new arrivals who'd come for training, were being trained in the camp of Kabashe and also in the camp of Pango and we had our camp known as the Quatro, which was also situated in the northern part of Angola.
I was given instructions with other comrades to go and defend those camps in the northern part of Angola. On arrival there I was deployed as an Engineer Commander and in the headquarters platoon and I fought in Angola in that battle for the whole year of 1987 to 1988.
MR BOOI: Of course, it's correct, so the following day he was going to do a public address at NY47 in Guguletu. So Comrade Chris asked, gave us instruction to meet with him. After the meeting where we were later being given a mission to carry on.
MR BOOI: It was myself, it was Lincoln, pseudo name Lincoln, his real name Monde, it was Wiseman, pseudo name Wiseman, his real name Papama. Mabuya, I don't know his real name, but his pseudo name is Mabuya.
MR BOOI: The unit was briefed that there is information that there are askaris which have been instructed to assassinate the late Comrade Chris Hani before his address in Guguletu at NY49, while he's in Cape Town. Now my mission was to command this unit to counteract those askaris, if possible to kill them when I met with them.
MR BOOI: Yes, all of us were armed. I was armed with Soviet made automatic pistol, five ammunition magazines, two hand grenades. Lincoln was armed with an AK47, Wiseman was armed with a Makarov pistol, Soviet made and Mabuya was also armed with a Makarov pistol, Soviet made.
MR BOOI: I myself, I was armed with an automatic tasking pistol, Soviet made, Lincoln was armed with an AK47, Soviet made, Mabuya was armed with a pistol, a Makarov pistol, Soviet made, Wiseman was also armed with a Makarov Soviet made pistol, 9 mm.
MR BOOI: Yes, the information we had is that these askaris were based in Graceland in Khayelitsha then I joined the unit and we proceeded to the area in Khayelitsha to investigate their presence there.
MR BOOI: Yes. We went there, we found the house closed, we investigated, we found some information that the policeman who was staying here had left for NY47 in Guguletu, NY47. Then I commanded the unit to proceed immediately to NY47 because Chris was actually going to sleep around Guguletu that evening.
MR BOOI: We decided to take the Lansdowne road from Khayelitsha to cross through Nyanga East, ...(indistinct) on our way to Guguletu. When we got into Nyanga East, entering ...(indistinct), we just passed one street on our left-hand side, a second street, there was a riot police van parked next to the stadium.
Yes, when we passed this van, it's lights were put off, we couldn't see the occupants of the van, but we could see the structure of the van itself. Immediately when we passed we were about in the middle of the T junction, the van put on its headlights, brightening the car we were occupying with its headlights, but we continued, we proceeded and it immediately followed behind us.
We found out that we were not the only cars which were on the street at that particular time, so we were not even sure whether they were following us or not but for precautionary measures, I ordered the driver of the car who was Wiseman, to turn left to see whether the car, the van is following us or not and then we turned left into the Turf Street, branching out of ...(indistinct)
When we turned left this particular van left the other cars which were proceeding on the same way and continued to follow us. I instructed the driver again that: "Can you please decrease your speed, 50, 40 a little bit." He decreased his speed, the van continue to follow us. His lights were on and then we turned right again on the next street. When we turned right again, the van put on its bright lights and we could see that there were a group of people who were still sitting in a shebeen partying, some cars outside and all those things. We passed. Immediately when we passed that house, the van which was following us switched off all its lights and it was not light and then it reached us. It was very close behind us.
We started to panic. We started to discuss amongst ourselves that these people are up on something. Immediately our briefings came to mind, that we have been briefed that there are the askaris, are actually travelling around with police vans and all those things and they are clad in police uniforms. So I started to order the group to be comrade-readiness, everybody to have his weapon next to him and then immediately we turned right, back to the street where we came from, that is Ems Drive. While we were proceeding to Ems Drive the speed was decreasing from the van behind us. Then we turned left into Ems Drive again. Unfortunately where we turned left, opposite us there's a school with big trees. On the other side there are no houses, there is a dark spot and immediately the van overtook us and before it overtook us actually, the passenger on the left-hand side showed with his torch that we must get off the road. We have done so immediately and I ordered the comrade who was driving the car, comrade Wiseman to stop the car and everybody to sit inside the car until we can see what is going to happen.
The van arrived, they slightly crossed our car's front, giving us space not to run away, all those things and then I immediately opened my window. When the first policeman jumped out, he was carrying a pistol. I would say it's a policeman because he was wearing a camouflage uniform. He carried a pistol in his right hand. The second one from the driver's seat who jumped out, was carrying a sub-machine gun which appeared to me at that stage as an Uzzi because I - when I saw the sub-machine gun and the policemen were pointing the firearm direct to me, I decided then to take a decision to shoot. I shot at him first because I know if I couldn't shoot first, I would be killed on the spot with the occupants.
I shot at him, I opened automatic fire and immediately as I ordered comrade Lincoln, who was seated next to me at the back seat of the car carrying an AK47 to cover the other side of the van, if there are any people at the back of the van, because we couldn't see the back of the van and also the driver's side.
I ordered Mabuya at that stage to cover the front side of the van and also to observe for any reinforcement, if possibly there is because we've got into an ambush now. So we continued firing. After some few seconds, when we felt that we were having the situation under control, we decided that Comrade Lincoln as instructed, he's going to cover us, then we will be leaving with the car. We left with the car from the scene immediately after this.
After I left the scene with the unit that was now two, we were three, one was left to cover the scene with his AK47, Wiseman dropped me off where I was supposed to go and meet Comrade Chris Hani and report to him what has happened. I'd immediately gone to the late Comrade Chris Hani and informed him that on our way to NY47 in Guguletu we were ambushed by askaris. We managed to retaliate, we don't know whether there are people injured or not, but we presume that there are some people who are injured.
MR BOOI: Yes, in the morning of the 7th when I read the newspaper, Cape Times, I established one of the occupants of that car died and it was Sgt Els Khulu, as it was said in the paper. I regretted it because never was it our intention at that stage of negotiation to continue with assassination or killing any policemen and what.
MR BOOI: Yes, actually what Comrade Chris said on his address in NY49 Guguletu, he said "Since ever I arrived in South Africa and the organisation was involved in negotiation with the government we're repeatedly saying that askaris, some police force members, special units who were against the negotiation, were keeping on assassinating our comrades and all those things. The incident which happened in Nyanga is not an isolated incident to all the incidents which are happening all over the country at present."
MR BOOI: Yes, he actually told the Magistrate that he is there in the court because I was on a political mission, under his command and his instruction and he believed whatever we've done, was under the political blanket of the ANC and the liberation movement Umkhonto weSizwe.
MR BOOI: It advanced political advancement, (1) because the ANC get into negotiation with the government and the government was reluctant to commit itself fully to the negotiation, also underestimating the presence of MK unit inside the country. The skirmish itself actually sent a clear message that MK is inside the country and it is advancing its military wing because it is the first time that the police could report a high number of highly trained MK terrorists being in the same operation at the same time, inside Cape Town in particular. So that sent a panic button to the government there and put the ANC in a stronger position, also to say that despite the question that the government has promised that there won't be any further assassination on MK members and its leadership inside the country, but there was a continuity. In that regard it was politically motivated, in advancing the government.
MR BOOI: Yes. Actually after the unbanning of the ANC all the units which were based inside the country in particular in the Western Cape where the negotiations were taking place, Groote Schuur, we were given further mission to protect the leadership from prison and to protect those leadership who were attending this negotiation in Cape Town. Chris Hani was part of those comrades who were supposed to be protected by the units based in Cape Town at that time.
MR PAPIER: Now you have amongst others, been charged I understand Mr Booi, with possession of ammunition, with murder, attempted murder as contained in the draft charge sheets on pages 12, 13, 14, 15, yes pages 12 to 15 of the bundle. I understand that you are applying for amnesty in respect of all those charges and any related charges flowing from this incident?
MR PAPIER: And so just to contextualise the question, Mr Booi, I understand that at the meeting with the late Chris Hani on the 6th, you had gotten to that meeting on your own means and it was there, if I understand you correctly, that you were ordered to join your other colleagues in the car.
MR BOOI: Yes. Actually what was happening, the unit, it's not my unit from Angola, I had my own unit. There were special units, many various units, I was just called for that special mission to go and join that unit, so I left my car and joined the unit in that car because they were all ready in securing the late Comrade Chris Hani, I was just to command them on the mission on that particular day, until the comrade left Cape Town then join my unit back.
MR PAPIER: Now, Mr Booi, I understand that there a number of case reports and your photo and identikit was also displayed at police stations throughout the country. These two documents do not form part of the bundle, I beg your pardon for that Commissioners, I just received it this morning and I now beg leave to just hand in...(intervention)
CROSS-EXAMINATION BY MS PATEL: Just for the record, Mr Booi has referred to a previous matter where he was arrested, charged and then acquitted. It is in fact one of the - well that specific incident that he was acquitted on, is an incident we heard last week, the Beaton and the Jansen incident, he was one of the co-accused in that matter. And then just a couple of clarifying questions Mr Booi. You stated that when you went to report back to Chris Hani, you informed him that you were ambushed by askaris.
MR BOOI: I won't agree with you in that because the askaris are not only, were not only the unit of those soldier who deserted from MK. What the then government did on these operation forces, it took a couple of specialised, in particular white males in the police, in the army and formed a special unit which has been tracking down MK cadres around the country and assassinating some high leadership members. They were not of any colour, but they were based - they were not only from the ranks of MK, we dubbed them all as askaris, because they were doing the same mission and what I further say, that ordinary police don't use conventional arms in a normal urban area. The presence of sub-machine guns was a clear indication that this is part of the Special Force which will be assembled to assassinate and delay the talks inside the country.
MR BOOI: Because the askaris and some of the Special Force members in the government were not necessarily supporting the ...(indistinct) negotiation and further, you have to understand that when the government and the ANC started negotiation, there were still skirmishes which were happening between the two armed forces and those skirmishes were always involved with askaris, Special Units, MK forces around the country until late 1993, before the election actually. Some of those sinister forces are actually those who participated in assassinating Comrade Chris Hani, that far the skirmishes had been going, so they were not of any colour.
MS PATEL: Well perhaps your understanding of the term askari is not the normal understanding that we have here of an askari being a turned liberation or MK, PAC person who would then be turned and then used by the Security Forces against the liberation movements, but I'll take it no further.
MR BOOI: No, I don't disagree with you in that but I'm just going further that they were not operating on their own solely as the turned guerrillas of APLA and MK but they were operating under the command of white policemen and soldiers as a group of askaris, so you dubbed them all as askaris when they operate in that fashion because they were no longer ordinary police which are supposed to maintain law and order in the country, but they have special missions of assignment.
MR BOOI: (1) it will be to take down the leadership of the political organisations, that means ranging from Cosatu, SACP, ANC, the UDF at that stage, their missions were either to assassinate some to the leaders, also to assassinate activists, they were highly trained to track down MK operatives inside the country at that time, those were their missions. They were also crossing borders outside the boundaries of South Africa, carrying this mission.
MR BOOI: When we parked our vehicle, they just slanted in front of the car on the right fender, their right fender was closing our right fender and one policeman, the one who was seated on the left, he jumped out of the car carrying a gun in his hand. The second policeman jumped out of the car, carrying an Uzzi on his right-hand side.
MS PATEL : Okay. Now I just want to put Mr Beeslaar's version to you. Mr Beeslaar is one of the people who was injured in the incident. He states that, it's in Afrikaans, so I'm just going to read it in Afrikaans, the translation will come through to you.
"While our vehicle and the suspect vehicle were slowly moving, a black man who was sitting on the left-hand, at the back of the car jumped out and Sgt Els also jumped from the police vehicle."
MR BOOI: Before I comment on his version, I just want to ask the Committee to understand that when this case was prepared against me in 1992, it was prepared for the sole purpose that I have to be sentenced, but if you can consult them today to tell the truth of what is happening, they'll give you a different version. This is the way how we were always being sentenced, that the policemen have always been the best in what, but coming to your question, in his version, I ordered my comrades in the car that no-one should get out of the car until it is standing, because we didn't know how many people were there at the back of the car and right at that present moment we had no intention to shoot anybody if they were police. My decision came only when I became convinced that these are not police.
MR BOOI: At that present moment ourselves and the government had a mutual understanding that we are inside the country, we are armed, the police had that knowledge. They had instructions that when you arrest MK cadres, they will proceed to the police and we'll inform our own Commanders and then that will be a negotiation between them.
MS PATEL: Alright. Thank you Honourable Chairperson, there's just one point I want to check and it will be my last. Will you grant me a moment? No, thank you Chairperson, it's in fact confirmed that the policemen had an Uzzi in their possession in terms of the documents before us. Thank you, I have no further questions.
MR BOOI: I say round about that time, I'm not quite sure about the time, but it was late in the evening, because we had our briefings in Fawu, starting from 8 o'clock so it might be past 9, 10 or whatever it is.
MR BOOI: I drive from Fawu in Guguletu with my unit to join Comrade Chris Hani in Khayelitsha, inside Khayelitsha next to Khaye Bazaar that is inside, in the middle of Khayelitsha, far away from Lansdowne Road.
MR BOOI: Yes, because we went specific, I asked Comrade Chris Hani that we will be now carrying weapons in the car and we are busy negotiation, what will be the consequences when we are confronted by police. His first response is that not at any stage should I allow that unit to be arrested or assassinated because they are here on missions and they are here to observe whether the negotiation is going forward or what. I have to protect them as a Commander. Secondly, I must understand that within the forces of the government, that includes police, Special Units and askaris, turned MK cadres and what, they are out there to derail the negotiations, so in no certain circumstances should we play when we met them, we must know that they're armed and they're dangerous, they're out to kill.
MR BOOI: Yes, I say that, that is one part of it. I just want to say that from the moment I saw this van, a question mark come into my mind. In the middle of the night there's a van parked, his lights off, next to a stadium in a dark corner. Immediately when we pass, cars were in front of us but when our car passed they put on their lights and immediately follow us. To my mind comes up that the first thing I thought, have these people been waiting for us all along and then that's why I took the decision of trying to make sure they are really following us or not but taking all these corners to make sure, have we been expected here.
And I further noticed, I said that when we turned into Ems Drive, one of the tactics which normally happen when you are being ambushed and assassinated, these units won't assassinate in front of the public next to houses, they look for dark places, isolated places where nobody will be able to point a finger and say this one was there and that and it's exactly how it happened, they put us into a dark corner. They could have stopped us long ago, we were not on high speed, but it was clear to me when I took the decision, that these people were out to kill us and if I didn't shoot it means all of us could have been dead today.
MR BOOI: First of all, in the unit in MK, there are going to be two mixed feelings, (1) some will take decision to continue with their missions which they designated for inside the country, secondly the leadership, some leadership members would also feel that the government has not been serious in negotiation, there could be an impact and also the masses, because we've been known around the streets of Cape Town as three of us were coming from Cape Town, the masses, the people outside there could have reacted in the same manner, maybe taking up to the street or whatever way it is and it could have been a high loss for the MK because all of us were belonging to the Special Ops Unit and it is a highly trained unit, to lose four highly trained members of your force.
MR BOOI: Actually today I won't be rent boycotting and going out to the community as I've since whenever, since I've come back. People go and pay the services, people go and support the government, people go and stop the crime on the street because those day we were fighting, today we are supposed to reconstruct the country and build unity across the country.
CHAIRPERSON: Yes, thank you. We will reserve our decision on this matter. I thank you. Mr Papier, I omitted to give you a chance to address but perhaps I must ask Ms Patel first if she has anything to say.