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Type AMNESTY HEARING
Starting Date 14 January 1998
Location CAPE TOWN
Names SOLA MABALA, LUYANDA GQOMFA, VUYISILE MADASI
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EXAMINATION BY MR PRIOR: We are ready Mr Chairman. Mr Chairman, maybe Iíll be permitted - before I lead or present the formal evidence, to call Mr Atkinson - he is one of the victims in the matter, he wasnít available at the last session. He appears as Item 8 on the second bundle: "Submissions by Victims" - he was the owner of the Heidelberg Tavern.
MR PRIOR: Just to summarise, there were allegations made during the hearing and in papers presented at the hearing, that the Heidelberg Tavern was regarded - particularly by APLA, as a military target. Could you comment on that?
MR ATKINSON: I wasnít sitting in a position, I wasnít - the tavern is in two sections and I was in the front section - the forward section where the actual bar is, not in the back section of the tavern.
MR PRIOR: Mr Chairman, I have taken the liberty of preparing an additional bundle of documents which is headed: "Heidelberg Tavern Attack" in items 1 to 8. I understand from my learned friend Mr Arendse, that in respect of the formal evidence regarding the powder residue tests carried out on the hands of Mr Cerqueira - the deceased from the Machado Restaurant - those are the affidavits of Mr du Plessis and Stoltz, that he has no objection to those affidavits handed up as exhibits and that they are not contested - in the sense that I do not have to prove that they were in fact - the acts referred to there were in fact completed by those persons, as well as the affidavit of Mr Kompion of ballistics who retrieved certain or examined certain cartridge casings and made certain finding on those affidavits set out at pages 9 to 12.
I simply place on record - the Committee will recall that during cross-examination of the applicants, the evidence leader suggested that - given the locality of the cartridges within the Heidelberg Tavern, that the firing or the shooting at the victims must have occurred from a very close proximity - this affidavit Exhibit H belies that.
A demonstration was conducted last year on the 24th of November of 1997, where a similar machine rifle was used - an R4 or R5 type, and it was then discovered - and thatís set out at paragraphs 4, that the cartridges were ejected at an angle of between 30 and 45 degrees from the weapon and that the distance of the cartridges as they landed from the weapon, varied between 8 and 17 paces, so thatís roughly in the order of 8 to 17/18 metres Mr Chairman.
MR PRIOR: Mr Chairman, yes - thank you, I was going - at some stage before the close of all the evidence, to ask that Mr Gqomfa be recalled just on a specific aspect where - in this application, he setís out the motivation of the attack on the farm and that portion was highlighted at - I think itís page 17 of the paginated papers, that the attack - I think itís the second paragraph half way through
MR PRIOR: That was the only significance of incorporating that in the bundle and that would depend if the Committee would allow me to put that - it may also be a matter of argument but I felt that the applicant ought to be able to - should be given an opportunity to respond to that.
And in the last item on Exhibit G was the affidavit of Mr Sibaya insofar as his evidence, he recanted his evidence given before this Committee during the previous hearing. Mr Chairman, he is available and subject to anything the Committee wanted to ask me before I call him, I call Mr Sibaya.
"This attack on this farm was to persuade and to force the Government to take African people seriously in their struggle for national liberation"
"As it was already known that the main house will be vacant that night, as the purpose was not the loss of life of a human being. The operation was executed for pressurising the electorate to persuade the their Government to commit itself in peaceful settlement"
MR GQOMFA: First of all, I donít think that all the APLA operations or this specific operation can be used as a yardstick to judge which is correct to launch our armed struggle. When you say there are other ways that could have been used, I donít think thatís fair especially to the oppressed.
First of all, this operation - or this question can be answered by the APLA commanders because they select the targets, they assemble the personnel, they draft the strategy for the army and the tactics that are used thereof.
When you talk about fairness - or the reason why I say this is not a fair question is because you could ask such a question when you know our way that we have other chances or opportunities because you as youíre sitting there and your people, you closed and sealed all the doors before the PAC decided to launch an armed struggle - this is the best way I can answer this question, I hope youíre satisfied.
MR PRIOR: Yes, I just want to assure you that it wasnít an unfair question, it was a question arising about what you said was the reason for burning down the farmhouse - there were other means of putting pressure on the electorate - other than killing.
CHAIRPERSON: Well, I think the answer is that the APLA commanders decide on what tactics they use because they imagined - or rather they believed, that they were engaged in a war situation. So it isnít whether - it doesnít matter very much what he believes.
MR PRIOR: Mr Chairman, before Mr Sibaya is called, may I also place on record copies of the final report of Mr Justice Richard Goldstone - was circulated, could that be marked exhibit ...[intervention]
MR DONAN: You have made two statements - two affidavits, which you have signed and you have appeared before this Committee for the duration of two days - so Iím informed, and suggested that you have personal knowledge. I want to briefly deal with those three ...[intervention]
MR DONAN: Perhaps I put it before the Committee wrongly, but there was a suggestion that he had personal knowledge of acts which were associated with the attack and I was intending to say precisely what Judge Wilson has said and deal with each of those statements which were made.
On the 5th of January 1994, you signed a statement before Mr Etsebeth in which you said that you had been in Guguletu on the night of the 30th of December 1993 and seen weapons being transferred to a white Audi XA12848, is that correct - you made that statement?
MR SIBAYA: Mr Segal and Mr Mazibuku came with such information to me, I have never seen such photograph of Mr Ntsebeza and the registration number thereof was brought by Mr Segal to me about something that I donít know about.
MR DONAN: Sorry, all I would like - if you could this information, that statement which you made to Mr Etsebeth - sorry, you didnít make a statement, the statement which you signed which was presented to you, was that statement false? You didnít have personal knowledge of what was in that statement?
MR DONAN: And in that statement, you repeated what you had previously signed before Mr Etsebeth and you added two little bits of information - (1) that you had seen a map to the Heidelberg Tavern fall out of the Audi and you had heard one of the people carrying the weapons say that
JUDGE WILSON: You have not answered your counselís question which was: "Why you made - in the statement to Mr Lubbe, why you said that a map fell out of the car and that somebody commented about his cap.
MR SIBAYA: Mr Lubbe came to me saying heís a policeman from the Truth Commission, he brought photographs of Mr Ntsebeza and a registration number. I thought that he worked together with Mr Segal, I thought that I could not reveal the truth to him because he brought things the same way as Mr Segal - a photograph and a registration number and I did not trust him because he was also a policeman with the same photograph.
MR DONAN: You testified also for a number of days before this Committee, in which you - and on one of those occasions you pointed out Mr Ntsebeza and you also repeated what you had said in your affidavits, is that correct?
MR DONAN: But you falsely pointed him out and you had no personal knowledge of the attack - of the information which you gave the court - I beg your pardon, the Committee, the information was in fact false, is that correct?
MR SIBAYA: Mr Segal had said that he would destroy my home, he would burn down my house - he had a huge rifle. He said I must not change my story - Mr Mazibuku was already dead and everything depended on me.
MR DONAN: Just for the record, you say that you were arrested by Mr Segal and you were assaulted by Mr Segal and Fulani and Mr Mazibuku was the person who was arrested and assaulted with you, is that correct?
MR SIBAYA: He refused - they would stand by the OKís and ask me to call him from the taxi rank and he would refuse. Iíd get there and say that Mr Mazibuku was not there - I would tell him to run away.
MR SIBAYA: First of all, he said that heíd come back to look for him and the second time he said I must leave him, I mustnít worry about Mr Mazibuku. The second week he told me that Mr Mazibuku had been shot by other taxi drivers, he then showed me where all this had taken place. He said that I must say that Mr Mazibuku had knocked on ...[intervention]
MR SIBAYA: The last time Mr Segal said I must wait by a restaurant in Kenilworth when it was dark, we then went to 121 where all this had happened - 129, I apologise. He said that I must say that I knocked on number 3 on 129 and he asked me if I still knew the registration number and I said: "Yes", he said: "Those are the important things. He said that I must say that the map had fallen off from the car and Mr Madasi had left the cap from the black car or the darker car, these are the things he told me to say.
Mr Sibaya, on the 3rd of November 1997, you made a statement to Mr Lucky Najuzela of the Truth Commission and that statement is item number 8 at pages 22 to 26 of Exhibit G, could you look at that statement and confirm that what Iím saying is correct? Is that the statement that you made to Mr Lucky Najuzela?
"I was extremely afraid of Mr Desmond Segal because heíd assaulted me and also advised me that he had a device in his car which could destroy my house"
MR SIBAYA: He said I must never ever change that information because he was going to kill me and my children because he wanted to go to the Judge with full information so that he can be able to implicate Mr Ntsebeza.
MR DONAN: It is correct too - will you confirm that Mr Lubbe testified before that Commission and said that he too was not prepared to take the Truth Commission into his confidence and therefore withheld certain documents from it when he was investigating the allegations which you had made?
MR DONAN: Mr Lubbe testified before the Goldstone Commission and he said that - he presented certain documents there which he had not presented to the Truth Commission when he had already received them during the second half of 1997, he said he did not present those documents because he did not trust the Truth Commission?
MR SIBAYA: I was from the shopping centre and the police called me, they said they wanted to protect me against APLA and I told them that I donít know anything about APLA, they must just leave me alone and I went back to my house.
Even now - December time, I was from the shopping centre and I saw two policemen driving in a van, they called me and they said: why did I relieve Mr Ntsebeza from all these implications and I told them that I had no reason - because I donít even know whoís the APLA, I was just telling the truth.
They couldnít make a U-turn because they were driving on a one-way road and I had to run away from them. I went to one of the houses and I knocked in this and I heard them ringing the bell at the front door.
MR ARENDSE: Mr Chairman, thereís just one aspect which concerns me and the applicants and that is - I want to make reference to page 327 of the typed transcript, where Mr Sibaya was being led by Mr Prior and itís the last 10 lines or so.
"Were you able to describe any person that you saw in the street at or near either the dark vehicle or the white coloured vehicle"?
"I said to the police there was people that arrived with weapons, I could not identify them because it was dark. I just heard one of them saying: "Madasi, you left a cap in the car", however the one we had found in the car - I told them it was a well-built man"
Now, thatís what you said when you gave evidence there - I just want to ask you, why did you mention the name of Madasi who is one of the applicants sitting over there with the white top, why did you mention his name when you were sitting here giving evidence under oath - Mr Segal wasnít here, in fact by then you knew he had died, no-one had put you under any pressure, why did you mention his name that day?
MR SIBAYA: Mr Chairperson, Iíd already said that Mr John Lubbe - I didnít know that he wasnít one of Mr Segalís people because he brought a photo of the person that Mr Segal brought to me but he said to me he was a policeman from the Truth Commission. I donít know those people, thatís the information that I got from them because they wanted enough information to implicate Mr Ntsebeza.
MR ARENDSE: Mr Sibaya, this is got nothing to do with Mr Ntsebeza, itís got to do with Mr Madasi and the use of his name by you, did you use his name out of your own or did someone tell you or instruct you to use his name?
MR SIBAYA: In my second statement Mr Lubbe came up with this name, Mr Lubbe came up with this name because he wanted it also to be included in that statement and that Mr Madasi was working with Mr Ntsebeza because his cap was found in the car. I donít even know who is Mr Madasi but I only knew Mr Ntsebeza because he was in that photo but I was told that I must emphasis that Mr Madasiís cap was found in the car.
MR ARENDSE: Now, you made a statement to Mr Lubbe on the 12th of August 1997, if Mr Lubbe wanted you to use or to link Mr Ntsebeza with Mr Madasi, why didnít he tell you to say so in your written statement? - thereís no mention of Mr Madasiís name in your second written statement.
MR SIBAYA: I canít get your question clearly. In my first statement I didnít mention anything about Mr Madasi and Mr Ntsebeza, in my second statement itís where I included Mr Madasiís name because it is said that Mr Madasiís cap was found in the car - I donít know which one is Mr Madasi.
MR ARENDSE: Mr Sibaya, Mr Madasiís name is not mentioned in your second statement, itís exactly the point Iím trying to make. The easiest thing for Mr Lubbe to do was to include his name in the written statement which he got you to sign - his name is not in there, you mentioned Mr Madasi out of your own when you gave evidence here.
MR SIBAYA: It was Mr Lubbe and the other one - the one with the moustache, heís also one of the policeman - Iím not sure of his name but heís working with him, heís the one who always brings me to this place.
MR ARENDSE: So Mr Sibaya, can we accept that between the period that you made your last statement on the 12th of August and when you gave evidence before this Committee in October - when was it, 28/29 October, that you were also briefed by Mr Lubbe and/or Mr Benado as to what to say before this Committee?
ADV SANDI: Mr Sibaya, when you appeared before the Goldstone Commission, did you tell Judge Goldstone that Mr Lubbe and this other gentleman - whoís name youíre not sure of, did you tell him that Mr Lubbe and that gentleman had told you what to say to this Committee?
Mr Sibaya, in your statement - your last statement to Mr Lucky Najuzela, you said that the reason for telling this Committee so many untruths was because you had wanted to speak to Archbishop Tutu but you didnít see him here today - on that day, is that correct?
And lastly, do you agree that before you gave your evidence, you were informed by Mr Benado that Mr Segal had passed away during May of last year and that - if there was anything that you had feared from his side, that fear was no longer present?
MR SIBAYA: The inspector said they are calling us because there was a buyer coming to buy our crayfish, he came to fetch us and we later realised that he was not a buyer, he was going to torture us - he came as a buyer who was going to buy our crayfish.
MR SIBAYA: The inspector said they had rearranged a buyer for us and they talked through the radio and they called Mr Segal, he didnít come as a person who was going to arrest us, he came as a buyer - he pretended to be a buyer.
MR SIBAYA: We were assaulted, we were never charged for poaching crayfish and we were told afterwards - and we were given these photos with Mr Ntsebezaís registration and car and we were not going to be charged for crayfish, he would take back the equipment.
But what he wanted us to do was to implicate Mr Ntsebeza, therefore he gave us his photo and registration and he instructed us to memorise the car registration and he even told us to call the flying squad whenever we see Mr Ntsebeza and he told us that Mr Ntsebeza was in Cape Town but my question was this ...[intervention]
MR SIBAYA: Yes, whenever we see his car with the registration XA12848. He gave us his business card so that we can call him whenever we see Mr Ntsebeza and he told us that he was in Cape Town. And when I was from Bishopscourt and we saw Mr Ntsebeza and I could recognise him and with the car with the same registrations in the photo but I kept quite because I said: "I wonít call Mr Segal for that".
And I saw Mr Ntsebeza again in Pinelands in one of the supermarkets, but I asked myself: "Why canít they arrest him"? but I could sense that something was not clear - they know that heís in Cape Town but why canít they go straight there as police and arrest him and thatís the reason why I didnít call him.
"Mr Nonguaza fetched me on the 6th of January in Guguletu and I was taken to the Bellville South Police Station. Mr Segal and Mr Fulani arrived and they put me in a cell"
MR SIBAYA: I didnít want to come but they told me that I was going to be forced to come to the Commission, thatís why I came - I was not prepared but they told me that they were going to force me to come to the Commission.
MR PRIOR: Mr Chairman, just in respect of the last remark, Mr Sibaya was under Subpoena from the Commission or the Amnesty Committee - I think the impression that is created is that possibly a warning - and I donít know, that as a witness and if he failed to appear what the penalties would be, I donít think that was the motivation behind getting him to the Commission.
I donít wish to prolong this particular aspect, Mr Benado is available - his affidavit was before the Goldstone Commission, if the Committee wishes to call him. I donít propose to lead any further evidence Mr Chairman.
MR ARENDSE: Mr Chairman, members of the Committee, Iím in a position to proceed with my final address in this matter. I have prepared written heads of argument and I propose to go through them and obviously if the Committee wishes to ask questions at any stage, then please do so. I think copies have been handed to the interpreters.
Mr Chairman, may the matter just - everyone else seems to have them except the members of the Committee, may the matter just then stand down for a minute or so until they find them. I came here with 10 copies and I sit with the original Mr Chairman.
MR ARENDSE: Thank you. Mr Chairman, the reference in my heads to the record would be reference to the original bundle which was before the Committee as we were proceeding. Reference to the transcript will be to the typed record of the evidence given in this matter.
These are the principal submissions on behalf of the applicants. On 7 December 1994, the applicants were found guilty in the Cape High Court by Judge Conradie of amongst other things, murdering Bernadette Langford, Lindy-Ann Fourie, Rolanda Palm and Noselino Cerqueira, attempting to murder Benjamin Joseph Brode, attempting to murder Quentin Cornelius, Dave Deglin, Justin Fouche, Michael January and other persons and they were also found guilty of the unlawful possession of arms and ammunition, two ...[indistinct] R4 or R5 rifles and AK47 machine guns and ammunition as well as hand grenades.
These offences were committed by the applicants on the 30th of December 1993 at the Heidelberg Tavern in Observatory, Cape Town. The applicants pleaded not guilty and did not give any evidence in their defence. Judge Conradie sentenced Madasi to 24 years imprisonment, Mabala and Gqomfa to an effective 27 years imprisonment each. They currently serve their sentences in various prisons throughout the Republic.
Gqomfa applied for amnesty by completing the prescribed form on the 20th of March 1997, while he was being held at the Grootvlei Maximum Prison, Madasi signed his form on the 3rd of May 1997 and Mabala also signed his form within the prescribed cut-off date.
Save for Gqomfa, the applicants provided very little or any detail of their participation in the Heidelberg Tavern murders, however on the day the amnesty hearings commenced and before the applicants separately began to give their evidence under oath, written statements containing details of their individual participation were provided to the Committee.
In his written application, Gqomfa states that after he and five others including Madasi and Mabala had commandeered a vehicle, they drove to the Heidelberg Tavern in Observatory - this is on the night of the 30th of December 1993. There they parked in front of the tavern entrance door, Gqomfa jumped out of the vehicle and shot through the tavern windows and double-door. Madasi had fired a rifle grenade but this did not explode.
On their withdrawal, they passed a certain corner shop and a person who fired at them was shot while they were driving by. He later found out that the person who was shot and killed was Mr Jose Cerqueira. In his application, Gqomfa states that the Heidelberg Tavern was attacked because according to the APLA Intelligence Sources, it is "frequented by security forces".
The attack he says, was carried out on the instructions of the APLA High Command and the names of Bulelani Xuma, alias Sipho Polite, Sikumiso Nonuba who is now deceased and Raymond Leklapa Mpashlela who are also mentioned in their applications. At the time of the attack on the Heidelberg Tavern and immediately before that when they took the blue Opel Record by force, Gqomfa was armed with an AK47 assault rifle.
In his application Gqomfa states that he sincerely regrets the loss of life caused by the attack and he extends his deepest and honest apologies to the families of the victims. He acknowledges the pain, agony and sorrow he and others caused as a result of the attack on the tavern.
As stated earlier, the order to attack not only the Heidelberg Tavern but before that the Nyanga East Army base and the Lingelethu West Police Station, was given by members of the APLA High Command and these operations were supported logistically by members of the PAC Regional Executive Committee in the Western Cape.
In his application, Madasi gives little or not detail of the acts in respect of which amnesty is sought and he says inter alias that the order was given to him by Leklapa Mpashlela. Also in his application, Mabala gives even less detail. Both Madasi and Mabala had their application forms completed by either PAC or APLA officials although they signed it. Only Gqomfaís application was in his own handwriting.
It is not in dispute that the applicants were all members of the PAC and members of APLA. It is also not in dispute that prior to the Heidelberg Tavern incident, the applicants were involved - together as a unit, in attacks on the Nyanga East Army Base and the Lingelethu West Police Station. It is also not in dispute that the applicants have also applied for amnesty in respect of other offences committed by them before the Heidelberg Tavern incident.
It is submitted that it is also not in issue that the attack on the Heidelberg Tavern which was preceded by attacks on the Nyanga East Army Base and the Lingelethu West Police Station, was ordered by members of the APLA High Command which included Mpashlela, Xuma and Nonuba.
"The accused were not those who would have benefited by the broad media coverage which the attack enjoyed, they were clearly not the people who initiated the attack. I canít believe that they of their own accord - in respect of the weaponry which was found, namely automatic guns etc., they would be able to actually find these weaponry, they were far too young for that, too inexperienced and"
That the murder of innocent, young and unarmed persons constitutes a gross violation of human rights is beyond question. That the applicants in the ordinary course got what they deserved when they were sentenced to lengthy terms of imprisonment is beyond debate. That justice prevailed is not in issue.
However, as much as the trial court valiantly tried to piece together the pieces of what happened at the Heidelberg Tavern that fateful night, it nonetheless could not succeed in putting together the complete picture of what took place here. The applicants had refused to testify as they were entitled to do and there was otherwise no direct identification of the applicants by any of the witnesses who were at the tavern that night.
This submission Mr Chairman, at this point - and members of the Committee, will be that we do now have a complete picture of what happened at the Heidelberg Tavern and to that end the purpose of this process has been served. The next issue I want to deal with is the amnesty process in itís legal and constitutional context.
(b) that the act, omission or offence to which the application relates, is an act associated with a political objective committed in the course of the conflicts of the past in accordance with the provisions of Sub-Sections 2 and 3 of Section 20 and thirdly that the applicant has made a full disclosure of all relevant facts.
In the matter of AZAPO and others versus the President of the Republic of South Africa which is reported in 1996: 4SA671, the Constitutional Court per Mohammed who was then the Deputy President and who is now the Chief Justice, said on behalf of the Constitutional Court that - and of course, very few of us can set it out more eloquently than he does:
"The effect of an amnesty undoubtedly impacts upon very fundamental rights. All persons are entitled to the protection of the law against unlawful invasions of their right to life, their right to respect for and protection for dignity and their right not to be subjected to torture of any kind. When those rights are invaded, those ...[intervention]
CHAIRPERSON: Yes. The point that I wish to make - arising out of the AZAPO case, is the distinction between the ordinary criminal justice process as a result of which the applicants are serving long terms of imprisonment and this particular process.
You will recall Mr Chairman, that on a number of occasions - perhaps unfairly, I tried to engage some of the witnesses especially the victims and families of the victims, about this issue and that is why Iím addressing it now before you - I think you mentioned that it should be addressed in argument. So itís very important to understand the context in which this whole process takes place and that is what Iím highlighting by - and especially the emphasised portions in the quotes..
Thus, whereas the criminal process resulted in the suppression of the truth by the applicants using their right to remain silent, the amnesty process has encouraged the applicants to openly and publicly disclose what they did and why they did it. The inherent value of the amnesty process is nowhere better illustrated than in an exchange which I had with one of the victims, Mr Quentin Cornelius who gave evidence both at the criminal trial and before this Committee.
"I felt in the first place that due to the evidence that was there - and they were convicted on that evidence, that is was the right thing to have happened - for them to be jailed or sentenced for crimes committed, so I felt that that was correct.
I also felt that is was - justice had been served but I hadnít heard the entire truth, I hadnít heard everything behind it. So I did have a feeling of emptiness and I must admit that through these proceedings it has been a lot more evident to me and a lot more has come out than what we knew after that court case and for that I am grateful".
Then just to deal with the grounds of the opposition to the amnesty application Mr Chairman, is really two fold. Firstly, on an emotional basis which I understand I donít have - no one can have a problem with that, when your loved ones have been brutally killed and injured in the fashion that they were, then I donít think one can have a problem with that. Unfortunately that is not a legal requirement and it is not a requirement which this Committee has regard to. The second one is the more pertinent one and that is that the applicants must make a full disclosure of all the relevant facts.
It is submitted that it is otherwise common cause that the applicants have complied with the formal requirements of the Act and that the offences which they committed as a result of the attack on the Heidelberg Tavern are offences associated with a political objective committed in the course of the conflicts of the past in accordance with the provisions of Section 20(2) and (3) of the Act.
In this regard it is common cause that the applicants are members of the PAC and of APLA and that they were trained soldiers of APLA. Both the PAC and APLA are publicly known as political organisations and liberation movements which advised, planned, directed, commanded, ordered and committed offences in furtherance of the liberation struggle waged against the apartheid State, crucially before 10 May 1994.
Accordingly, it is submitted that the whole of the amnesty process must be located in the struggle for the liberation of the majority of people in this country. During the course of that struggle or conflict against the apartheid State, many, many, gross human rights violations were committed on both sides of the divide. Both the Constitution and the Act recognise this.
Parliament has indicated by law that the cut-off date beyond which no amnesty applications would be entertained, is the 10th of May 1994. In other words, were any act, omission or offence was committed before the 10th of May 1994 and which essentially had a political objective or was ordered, directed, commanded etc., by a political party or liberation movement, then provided a full disclosure of the relevant facts is made, then such an act, omission or offence would attract amnesty.
Now, I mention this at this point Mr Chairman, because of two things, the one is the line of cross-examination - which again I understand and have no problem with which I picked up from the questions put by my learned friend Mr Prior, was the morally reprehensible nature of the deed - there were lots of questions about how close they were to the victims, they were shot at point blank range etc.
"Why did this attack take place notwithstanding the fact that people were talking and they were busy negotiating"?
"Parliament, all the political parties have recognised the cut-off date is the 10th of May 1994, not December 1993 as it was originally as it was extended"
So, provided the requirements of the Act can be met and most important, that the acts can be associated with a political objective and all the relevant facts are disclosed, then that is not in issue. That is the point that arises out of that section of my Heads of Argument.
Then Iíve referred to some precedence Mr Chairman, I referred to the cases of Brian Victor Mitchell - Judge Wilson of course knows this case very well, he presided in the trial, and also Dirk Coetzee. So with respect to Judge Wilson, I hope I havenít said anything that I shouldnít have said about the Brian Mitchell case.
But both those cases - from pages 13 through to page 16, I highlight to make a point and that is, in both those cases - in the case of Dirk Coetzee, Griffiths Ngenge was brutally murdered, hacked to death, disembowelled, it was a terrible, terrible deed, amnesty was granted. This Committee found that Coetzee had received an order even though van der Hoven denied that he gave Coetzee a direct order, the Committee nevertheless found from the evidence, that he did get an order. Of course, in turn Coetzee had directed members of the task group - whom he had assembled to kill Ngenge, that they were under his orders.
So in that case presumably - well, one must accept, full disclosure was made and Coetzee was granted amnesty for that particular offence. Mitchell likewise collected a group of special constables, ordered them to burn down a hut. Unfortunately the wrong victims were killed, they were men women and I think young children were killed - it was a most awful deed which certainly compares with what happened at the Heidelberg Tavern if not worse.
Again in that case Mitchell was under orders, he was fighting against the ANC and the UDF - this Committee accepted that he acted under those instructions and that he believed subjectively, that what he did was in furtherance of the political aims and objectives of the Government of the day.
The case for the applicants is that their case should be seen no differently, that here they were members of a liberation army APLA, they carried out orders, those orders they did not question. Yes, it is a fact - we now know it, that the Heidelberg Tavern was not frequented by the security forces, that those who were killed were young, unarmed, innocent individuals and thatís what happened. Notwithstanding that, my submission is that the applicants in this case should be granted amnesty and should be treated no differently than Coetzee, Mitchell or any other applicant who has come before this Committee to ask for amnesty.
And then from page 17 onwards, I proceed to deal with the facts. My submission is that the only requirement which this Committee should be considering in this application is whether or not the applicants have made a full disclosure of the relevant facts. Now, from page 17 I say that it is common cause that the applicants at the time of the attack, were members of APLA and that they were given this instruction.
It is clear that it was part of an operation, they were told on the 17th of November, they were despatched to Cape Town and only Madasi and Jantjie - whoís now laying in the Conradie Hospital, only the two of them come from Cape Town and know Cape Town, none of the other applicants or none of the other members of that group come from Cape Town. They were told to carry out certain attacks - Lingelethu West, Nyanga Army Base and the Heidelberg Tavern.
(a) The applicants were members of a political party, namely the PAC and a liberation army namely APLA.
Just to make a point here - that during the Coetzee application I remember reading your decision that this Committee found that if those who instruct you or who give you a command, if they satisfied themselves that it was necessary to carry out a certain act or deed, then it is not incumbent on the foot soldiers to question that - it is enough for this Committee to satisfy themselves that they in fact carried out an order. Because that too was in issue here:
"When you came to the tavern and when you were so close to the people in the tavern, you could surely have seen that they were young and they were there to enjoy themselves"
CHAIRPERSON: You donít know distinction between the carrying out of orders by people who are employed by the State, the security police - as happened in the Coetzee case. They carried out orders as part of their employment, orders by their superiors - you donít know distinction between that case and the case of the applicants.
MR ARENDSE: I think thatís perhaps being too artificial and I think with respect, the Committee will run into certain problems in terms of interpreting politics and ideology if we start to make that distinction. I think what ...[intervention]
MR ARENDSE: Yes, there is a legal distinction but Iím saying that this Committee would be asking for trouble - almost, if you begin to examine that distinction beyond itís surface and that is that yes, Coetzee and others were employed by the State, they were carrying out duties and instructions from the State - in that sense they had formal employment with the State.
JUDGE WILSON: Canít one draw a distinction between persons employed by the State carrying out their duties which they believe to be lawful and persons employed by the State committing acts which they know to be blatantly unlawful?
MR ARENDSE: Well, that is a valid distinction to draw. The point I want to make is that if one has regard to Section 20(2), no such distinction is made between what you can call statutory forces and non-statutory forces - you are either employed by the State or you were a member of a liberation army.
Yes, I would agree if the point that Judge Wilson wants to make, you can also have a situation where a member of APLA for example had gone off on a frolic of his own, then yes, the same principle would apply where you have a member of the statuary forces - of the ex-security forces, also having committed an act or a deed and that act or deed was not - however morally reprehensible it was, it wasnít sanctioned by the High Command, then that should also be looked at on the same footing.
Now, unless - and thereís no evidence before this Committee, unless it can be shown of course that these three young applicants were doing their own thing and that they were not commanded or ordered by the APLA High Command to do what they did, then of course itís a different matter.
My submission is that is quite clear that the orders that they carried out, were from the APLA High Command, they were clearly not - and the trial court also found, they were clearly not doing what they did for personal gain or had any personal motive for doing what they did.
The attack on the tavern - ...[indistinct] it mistakenly, was carried out in order to further the political objectives of APLA, namely to win the land back for the oppressed Black masses of this country before May 1994. As found by the trial court, none of the applicants made any personal gain out of these attacks and had any personal motive for committing the offences.
And most importantly Mr Chairman, the applicants have disclosed to this Committee that they were responsible for causing the death and the carnage which occurred on that fateful night of the 30th of December 1993. The applicants admitted that they were members of a group of six APLA operatives who attacked the tavern that night. Gqomfa was commander of the unit and he and Jantjie had initially launched by shooting through the double-doors of the tavern and through the windows of the tavern, armed with R4 rifles and an AK47 machine gun. Iíll deal with this aspect of the AK47.
Madasi was supposed to have launched a rifle grenade by entering the side door of the tavern, Mabala was to throw a grenade and Sebeko - who is not before this Committee, was a look-out and Matebo was the driver.
What in fact happened however, was that after Gqomfa and Jantjie had launched the attack by shooting through the tavernís double-doors and windows, Madasi had entered the side door with an R4 rifle and a rifle grenade. He however saw some movement which to his mind would endanger Gqomfa and Jantjie and instead of doing what he was supposed to, he opened fire with his R4 rifle and in the process shot and killed - he probably killed the three people inside because he was closest to them - I recall we were talking about distances of 4/5 metres from where he would have been, and that shot and killed Lindy-Ann Fourie, Rolando Palm and Bernadette Langford.
Indeed Madasi had finished a magazine of 35 bullets and upon withdrawing, had fired another 11 bullets from the magazine after he had unsuccessfully launched the rifle grenade - the rifle grenade itself did not explode. Between Gqomfa and Jantjie, they had fired a further 48 rounds of ammunition while firing from outside the tavern. Mabala had not thrown the grenade as he was supposed to do, claiming that if he did so he would have killed his comrades. Sebeko appears to have fired at the buildings across the street - thatís the Club Planet or something like that. Makebo was at all times sitting at the driverís seat.
After getting into the car and driving away, Gqomfa alleges that Mr Jose Cerqueira had come out Machados Restaurant - which is on the corner of Station Road and Lower Main Road Observatory, armed with a gun and that it appeared that Cerqueira was firing shots in his direction whereupon he shot Cerqueira with his AK47 rifle.
This version i.e., that Cerqueira had initially been alone appears to be supported by the evidence given during the criminal trial by John Jacobs - John Jacobs Mr Chairman was a or is probably still an employee of the City Council, he was in the truck and they had approached the corner of Lower Main Road and Station Road just at the time that Mr Cerqueira had emerged from Machados and he had then also seen the attackers inside this vehicle.
And I also submit that it is substantiated by Madasi and Mabala who also claimed to have heard shots coming from the vicinity of Machados restaurant. After the applicants left the scene, the car was abandoned by Makebo and Madasi in Guguletu. The car itself was not damaged, which lends credence to the view that the applicant was - as the Judge put it in the criminal trial:
Thereafter the applicants split up into pairs and went their separate ways. In fact Madasi and Mabala were arrested together at Elliot in the Transkei on the 4th of January 1994 while they were together on a bus. Gqomfa was arrested on the 14th of July 1994.
Mr Chairman, it remains for me to deal with a few of the more controversial aspects with relate to full disclosure of the relevant facts requirement, firstly the issue of the order. It is submitted that it cannot be disputed that the applicants were under orders to carry out the attack on the Heidelberg Tavern. The order emanated from the APLA High Command which comprised Mpashlela who is the Director or Operations, Xuma the Deputy Director of Operations and Nonuba who is a senior member of the High Command - Nonuba is also now deceased.
They planned, directed and conceived of the idea that the Heidelberg Tavern be attacked because according to their information, it was a place frequented by members of the security forces. Nonuba had given the order directly to Gqomfa before the 13th of November 1993, as the commander of the unit and on 30th December 1993, Gqomfa had ordered Madasi, Mabala and the other members of the group to attack the tavern.
It is clear from the evidence that APLA soldiers do not question orders given to them by the unit commanders or by the APLA High Command. In fact when one thinks of it - like in the St James matter, these operatives - except for the unit commander, hardly have any time to question these orders, they are told virtually on their way to a particular target, that this what youíre going to do.
Then the attack on the tavern itself. A witness had - during the criminal trial, testified that she had seen two men inside the tavern that night wearing balaclavas, one shorter than the other. This witness was not called to give evidence before this Committee. Now we know that only a cap was found subsequently in the abandoned Opel Record and that no balaclavas were found in the car or in the black bags that were subsequently dug up.
The applicants deny that there were two attackers inside the tavern. Madasi disclosed that he was the only attacker inside the tavern and that he used an R4 rifle to "Protect" his comrades. In this regard Madasi had deviated from his original instructions to launch the rifle grenade only.
He did say in his evidence - which cannot be disputed with respect, that as a soldier he is allowed some "Flexibility" when it come to "Protecting his comrades". He had seen a movement while he was in the passage and this had alerted him to a possible counter-attack against his comrades - Mr Chairman, bearing in mind that they are told that this is a place frequented by the security forces - we now know obviously that that was wrong information.
He had seen a movement while he was in the passage and this had alerted him to a possible counter-attack against his comrades. He then used his initiative to open fire with his R4 rifle. The fact that some 46 R4 cartridges were found inside the tavern, testifies to the fact that Madasi had been inside the tavern armed with an R4 rifle. He had fired indiscriminately at those inside the tavern, aiming to kill as many people as possible.
It is clear - it is submitted, from the photographs which is Exhibit A, that shots were also fired through the double-doors of the tavern and the windows of the tavern, these shots were fired by Jantjie and Gqomfa - 48 R4 cartridges were picked up outside the tavern. On examination, it was found that the cartridges were fired from three separate R4 rifles. Gqomfa alleges however that he was armed with an AK47 machine gun. It is submitted that it is probable that Gqomfa was in fact armed with an AK47 machine gun.
An AK47 machine gun was used in the attack on the Lingelethu West Police Station - that was established in the criminal trial. The evidence in the criminal trial was also that earlier that night before the Heidelberg Tavern incident, one of the applicants was armed with an AK47 machine gun and that Mrs Nkolise Nkebwa - who was in the house when the car was highjacked by the applicants in Khayelitsha, that she handed a cartridge to the investigating officer, the late Don Segal.
It was established that the cartridge was fired from an AK47 machine gun. In fact, if one has regard to the charge sheet and the summary of the facts used in the criminal trial, then it would appear that the prosecution - that their case obviously before evidence was led, was that one of the accused in that case was in fact armed with an AK47 machine gun. It is submitted however, that it might be that Gqomfa was mistaken and that he in fact used an R4 rifle during the attack.
Now this next part is really from my own enquiries Mr Chairman, we didnít have the benefit or the luxury of getting in an expert but I spoke to some people who know about these things and one of these experts mentioned to me that: "If you know nothing about guns and rifles and things - if you walk in and he puts it out on the table, then you wonít be able to distinguish between the two as obviously as he would.
It is submitted Mr Chairman, that what is material and relevant is that Gqomfa has admitted responsibility for the killing of the victims of the Heidelberg Tavern attack and that he caused the deaths of the victims by shooting them. It is respectfully submitted that is matters not whether the victims were murdered with R4 rifles or AK47 machine guns.
Then the next and last controversial aspect which I want to deal with Mr Chairman, is the killing of Mr Jose Cerqueira. Now Gqomfa alleges that Cerqueira - while he was alone outside the Machados restaurant, had fired shots in their direction and that as a result he shot and fatally wounded him. In this regard it is submitted that the evidence given by Gqomfa is supported in material respects by evidence given in the trial court. Reference has already been made to the evidence given by John Jacobs - who is a City Council employee, in the criminal trial.
Benjamin Brode had given evidence in the criminal trial and during his testimony he made no mention that he was Mr Francesco Cerqueira or the other waiter by the name of Michael, when he went outside and saw the attackers. The trial court in fact said that:
"It is however clear that the deceased had to have moved past Brode to the exit at some or other stage"
It is submitted that this corresponds with what Jacobs had seen namely, that at one stage Cerqueira was the only person who had emerged from the Machados Restaurant. After shots were fired, Jacobs had taken cover in his van and while he did so, Brode had emerged from the restaurant and he then saw the car moving in his direction and shots were then fired at him.
He ran inside shouting for Cerqueira and his gun but Cerqueira had already gone outside with the gun. After he had taken refuge inside the restaurant, he returned to the front door and there he saw the deceased lying in the gutter - Francesco Cerqueira and the other waiter followed him.
It is submitted that this is the more probable version It is submitted that Mr Cerqueira - his evidence in this regard, must be treated with caution as he was - by his own admission, upset whilst giving evidence - I accept some responsibility for that I suppose. In fact seriously, Mr Cerqueira told us here that he decided to give evidence before this Committee because he heard an allegation that his brother would have fired a shot or shots at the Heidelberg Tavern attackers.
On his own evidence, Mr Cerqueira was upset that his statement to the police appears to have been ignored. It is also interesting to note that the attackers were not prosecuted for the attempted murder of Mr Cerqueira or this other waiter Michael because if you recall Mr Chairman and members of the Committee, he went - he pulled Brode in when these shots were fired at them - they were all fired at, at the same time according to Mr Cerqueiraís evidence.
Now, unfortunately a number of critical questions remain unanswered, which it is submitted, should not detract from the validity of the applicantsí amnesty application. Some of these questions include, firstly:
"Why did Brode give the gun to Mr F Cerqueira to give to the police if it had not been used at all"?
"Why was specimens taken from the hands of the deceased for the purpose of a gun residue test at 4H30 a.m. on the 31st of December 1993, after the deceased had been shot and killed at 11H30 p.m. the previous night on the 30th of December 1993, if it had not been for the fact that the deceased had fired his firearm"?
MR ARENDSE: That may be so Judge, I just wanted to mention that in a discussion with the officer concerned, he did say that it is routine for these specimens to be taken from deceased persons. I just want to then mention - and if you could just insert this in the Heads, the further point that in the letter which du Plessis - who took these specimens, in the letter which is dated the 11th of January 1994, which he wrote when he sent the specimens to Pretoria, he says in the first paragraph that - in Afrikaans: " That it had been alleged that the deceased had fired a firearm".
Now, that is very interesting and very revealing - that is as early as a couple of days after this incident. This Committee has heard and weíve have heard for the first time someone claiming responsibility for killing Mr Cerqueira for amongst other things - for the reason that he fired a firearm. So, for the first time Mr Gqomfa - in his application in March 1997 and then subsequently here in October 1997, makes this allegation - itís unanswered, where does the allegation come from that he had a gun?
MR ARENDSE: That is correct but not Gqomfa, Gqomfa was arrested in July and even if one has regard - and I did, to the so-called confessions that were extracted from both Mabala and Madasi, no mention was made of Cerqueira or him having a gun.
"Why was an analysis not done of the specimen taken from the hands of the deceased after it was sent for analysis in January 1994"?
These tests were only done on the 18th of November 1997. Now again, I had made a written request to an expert in this field to assist me and obviously thatís not evidence before this Committee but I think itís just common sense, he say amongst other things that: "Yes, it is possible that you could store the specimen for as long as it has been stored and still get an accurate analysis done", so I donít have a problem with that.
He said the big problem is that period between 11H30 to 4H30 the following morning, during this time the deceased could have been moved and the residue from his hands could have been removed in that fashion. He says: "It is also possible that if one has regard to the photographs - if one looks at the way Mr Cerqueira was lying, he appears to have both his hands beneath his body and when he was removed thereís a large pool of blood at the scene - at the drain where he was lying", so thereís a number of questions which then arises from that.
So yes, the specimen that was sent does not reflect that he used a gun but itís possible that the gun residue could have been removed by him having been touched - we know that Mr Brode for example and his broth Mr Francesco Cerqueira claimed to have gone to him and they lifted him and during the course of that they could have touched his hands and in that fashion the gun residue could have been removed.
MR ARENDSE: Mr Cerqueira died at 11H30 on the Thursday night, thatís also apparent from Annexure G, the very first page comes out of the docket. Thereís also the possibility Mr Chairman, that the specimen could have degraded over this period of four years or so but my point is - which I would like to make here, that it doesnít require this Committee to make a finding, itís not particularly material. The reason for that is Gqomfa - heís accepted responsibility, heís said: "I shot the man and I killed him"
ADV SANDI: Iím sorry, Mr Arendse, whilst you are there, can I interpose for a moment? Have you thought about addressing us on the question of the political objective when deceased Mr Cerqueira was killed, doesnít that appear as an act committed in self defence?
MR ARENDSE: Well, my - not that I didnít, I thought it very important enough to raise this as an issue because clearly it could be argued that the killing of Cerqueira is then simply a gratuitous act of violence. Yes, one can perhaps accept that he went to the Heidelberg Tavern, security forces are supposed to be there and now you did your mission. Now youíve finished at the Heidelberg Tavern, for what reason do you then kill almost - if you can call it, innocent bystander - surely the act is not covered.
My answer to that is that this all happened very quickly, they were in the process of getting away and in that sense that act is associated with what they did - which is the main act, by going into the Heidelberg Tavern. Yes, according to Gqomfa, it was possibly a case of self-preservation that Cerqueira shot at him or that he was under the impression that he was being shot at.
Because at that stage we must also remember and I think the same thing applies to Madasi, I think we must remember that the applicants are at that stage under the impression mistakenly - we now know, that this place is teeming with soldiers and policemen although they may obviously be out of uniform, there are people in this place that are armed with guns.
MR ARENDSE: Well, the applicants themselves canít give an answer and havenít given an answer and havenít attempted to give an answer. I have attempted in trying to complete the picture, Iíve said - and I think one can infer this safely from the facts, that Sebeko - the other chap that was on the other side of the car, that he was the person that must have sprayed some bullets across the road.
There is also evidence from John Jacobs - the Council chap, that he saw shots being fired on that side of the street - against the building on the other side of the road and we also know from Brode that those shots were fired. Now, unless we want to question the credibility of any of the three applicants, they claim that each one did what he was supposed to do and they didnít - I think Mabala was questioned quite extensively on this point, that he said: "Look, I was focusing on what I was supposed to do, I was a lookout, I had to see that my comrades were not being attacked, I donít know what anyone else did".
MR ARENDSE: Perhaps Iím putting it too strongly Mr Chairman, they - Iíve already explained that each has disclosed here to the Committee what they did, what they saw and what they heard. This attack happened in a matter of two minutes or so, there were six of them and each one was concentrating on what he was doing. Certainly they did not deny - and think this is more important and more relevant, they did not deny that it was this group in which they were that caused the buildings on the other side to be damaged with gunshots and so on. So, in that sense they do accept responsibility for what happened but individually they deny that they were the ones who caused that damage.
Then Mr Chairman, just again on some of the questions raised by the Cerqueira gun incident. Lastly or second lastly, I make the point that no evidence was led before this Committee that any policeman had examined the deceased firearm and had established that no bullets were fired from the gun although this was put to one of the applicants - I think, by Mr Prior and I speak under correction. And then lastly, the firearm itself has never been produced here.
I make the point Mr Chairman, that notwithstanding these unanswered questions which result unfortunately in a lack of clarity and certainty, it is submitted that the material and relevant facts relating to full disclosure, is Gqomfaís acceptance of the responsibility that he shot and killed Cerqueira - whether or not Cerqueira was armed with a firearm or not, is not particularly material. I would insert there perhaps, the question posed by Advocate Sandi regarding the objective and: "How does that relate to your main objective", that it could perhaps figure there.
It is respectfully submitted that in all probability Mr Jose Cerqueira was armed with a firearm and had shot at the Heidelberg attackers. I submit that it is however unnecessary for the purposes of this application, for the Committee to make a finding in this regard. In fact, Gqomfa could quite easily have failed or refused to disclose the fact that he shot and killed Cerqueira, this is particularly so in the light of the fact that the three other attackers are not before the Amnesty Committee. Nevertheless, Gqomfa has done so and I submit that he deserves credit for it.
It is respectfully submitted that whatever differences there may be regarding the evidence before the Committee, the fact remains that the applicants have admitted and have accepted responsibility for causing the deaths of four people and thereby having committed gross violation of human rights. They have also admitted to attempting to murder a number of people and having had in their possession unlawfully, arms and ammunition.
One cannot think of any reason why the applicants would not want to make a full and proper disclosure of all the relevant facts. They have already been convicted and sentenced to terms of imprisonment ranging from 24 to 27 years, it must surely be in their interest to make a full disclosure of all the relevant facts within their personal knowledge.
The applicants have all said that they regret deeply the loss of life caused by the attack on the tavern and that they regret what they did and that they seek the forgiveness of the victims and the families of the victims. It is respectfully submitted that the truth of what happened at the Heidelberg Tavern on the night of the 30th of December 1993, has been revealed before this Committee and that the whole process has gone a long way towards healing the wounds caused by that dreadful attack which took place on the 30th of December 1993.
In conclusion Mr Chairman, it is submitted that the applicants have met the requirements of the Act for amnesty to be granted to them in respect of the offences committed during the attack on the tavern. It is submitted furthermore, that there is no reason why this Committee cannot decide to grant the amnesty sought as soon as possible.
In this regard Mr Chairman, the PAC and APLA and the applicants note with concern that this Committee has seemingly had no difficulty in granting amnesty to White and Black perpetrators of gross violations of the human rights of Black persons killed during the course of the conflicts of the past, such as the amnesty granted to Coetzee, Mitchell and others. However, when it comes to the granting of amnesty to Black applicants - in particular ex-APLA soldiers where White or Coloured lives have been taken, this Committee seems not to be able to make any decision at all.
MR ARENDSE: Iím saying this - these are my instructions, the PAC, APLA High Command and these applicants, they find the delay unacceptable - itís a case of justice delayed is justice denied, regrettably this creates the impression and the perception that White lives are more valuable than Black lives.
It is respectfully submitted that it is in the interest of this Committee and in the interest of the Truth and Reconciliation Commission as a whole, that this Committee give a decision - one way or the other, in this matter as soon as possible to allay any such concerns or fears.
JUDGE WILSON: But they did, they did. So, that would mean - if they looked backwards, the shooting would have come from the direction from the Heidelberg Tavern and they assumed it was the deceased who was shooting whereas it might have been someone else who had come out of the tavern.
MR ARENDSE: I would respectfully differ from that construction, I think what was said during the evidence is that after - they were in the car, the car was moving towards the robot when Gqomfa says that he heard shots being fired in his direction and I think itís seems to be clear from the way and the manner in which Mr Cerqueira was shot that he was shot from the front.
MR PRIOR: Thank you Mr Chairman, Mr Chairman, I intend to be as brief as I can. I have not prepared written heads but I would ask the Committeeís indulgence while I simply highlight certain of the areas. The bulk of the evidence is before the Committee and the Committee will no doubt have to consider all the statements and all the evidence that has been led so far.
Mr Chairman, I submit that this matter - this amnesty application, must be seen against the light of the political situation as of the 30th of December 1993. I think it is singularly important to have regard to the fact that the controlling - the political arm, the PAC were party to those negotiations and it was made very clear during the submissions of the security forces - particularly that of the APLA, that the controlling organ within the organisation was the political structure.
"But the command structure was such that the commander at the end of the day, has got to be politically accountable and he had to be politically accountable through consultation with the political Commissar"
"So whatever we did had to enjoy the blessing of the Commissariat because at the end of the day, all our actions had to be politically justified"
"APLA is an organisation with the principles and the rules and regulations. We perfected and developed it as an organisation that is subordinate to the Pan Africanist Congress. It has the power"
Now, Mr Chairman, it would see from the other submissions made during that presentation, that at some stage there was a breakdown in the desired line of communication where the political organ of the PAC in ...[indistinct] were unable to pass on the decisions that would have a military impact and it was then said that as a result of the breakdown of that communication, local commanders - and particularly in a large amount of the cases people without sufficient or adequate political education, were called upon to make decisions regarding targets to be attacked.
"A new pattern arose in the 1990ís where civilians within the White community were attacked. In the nature of guerrilla war which is unlike conventional war, detailed plans could not be made from Dar es Salaam - targets were decided by local commanders"
Now the question was put that these were departures or errors which had been previously been avoided by APLA and in an earlier statement or in a statement submitted by APLA, the attacks on St James Church, Heidelberg Tavern and other attacks like King Williamís Town Golf Course, were referred to as being specifically ordered and within the knowledge of APLA High Command which later transpired not to have been the case because of this breakdown of communication.
Now, if I may refer the Committee also to page 201 of that submission and 202 where the delegation were in fact taxed on this question of authorisation for these attacks and whether this was a departure and whether it had been countenanced by the High Command, Brigadier Mophokeng said the following at page 201 at the bottom:
"I want to add here to the answer, when these attacks took place and before the attacks took place, the leadership - the political leadership, was not informed, it was only the military people who were aware of these attacks when the attacks took place.
The people who claim were our publicity department - the political leadership inside the country, Bennie Alexander for example, when they were interviewed by the media they denied this. I donít know whether they are afraid because they are inside the country, if they claim they will be arrested or whatever but the military people claim these attacks"
"That such attacks did take us a little of guard, we were surprised and we discussed - when we discussed it. Iím sure that initially with the question of King Williamís Town for instance, we were completely at a loss and we discussed and certain explanations were made to us by the High Command.
My submission in this regard is that APLA had difficulty in deciding whether the military High Command in fact had ordered these specific attacks inter alias the Heidelberg Tavern attack or whether these were simply the decisions made by local commanders close to the targets.
Now, I raise these aspects because one of the difficulties that one faces in this application is the acceptance of the political objective indicated by the three applicants. The political objective stated does not seem to marry with what the military command of APLA was saying during their submissions made before the TRC Human Rights Committee during the week of the 7th of October because what was indicated at page 220 of that bundle, Brigadier Mophokeng again stated that:
"We were very much concerned about the killings of the African people attending the night vigils, commuting to work, the Boipatong etc., and so forth and we were concerned that only the African people are suffering in this regard and of course the oppressors were also to feel the pinch.
"Yes, I just want to add Comrade Chairman, that during the time when our people were being killed in the townships, members of APLA - those commanders who were inside the country, were very angry, to the extent that they thought that maybe our people will say they are not protecting them properly or successfully. That is one of the things which made them to take this decision of mounting these operations. They feel guilty that if the war is being taken to the Black townships, they must also take the war to the White areas - this was one of the reasons"
Now Mr Chairman, if that in fact was the case then the political objective stated by the three applicants is considerably effective because what we have - being stated by the military command of APLA, was that the attacks on inter alias Heidelberg Tavern, was simply launched by the commanders as an act of reprisal against what was happening to the Black population and could not have been contemplated as furthering the political objective of reclaiming the land from the White oppressors and particularly seen at the time - in itís time frame, against the discussions that were occurring and to which the PAC were an active party.
Mr Chairman, Section 20(3) sets out the criteria with which this Committee must approach the evidence before it - there are six criteria. The motivation of the offender is particularly - is an important criteria to be considered. The circumstances in which the offence has been committed have been adequately presented before the Committee.
I do not propose to go into any length at all about the discrepancies on the evidence, I think it suffices to accept that the attack took place as described by my learned friend, that three people were killed inside the tavern premises, there were three or four people that were injured and Mr Cerqueira was shot on the street. Whether a hundred rounds were used or a thousand rounds were used, whether an AK47 was used or an R4 rifle used, I think pails into insignificance.
I think - and my submission is, that given the gravity of the offence or of the occurrence, I submit one cannot lose sight of the fact that the attack was a sustained - whether it took only a few seconds or not, it was a sustained attack, it was sustained gunfire and the intention certainly was to create as much death or to cause as much death as possible and that is evidences by the nail studded rifle grenade that failed to explode.
"Whether the object of the offence, whether it was committed against Government personnel or property or directed primarily against private citizens"
Mr Chairman, it seems from all the literature that is available - if one reads the literature on International Law, International Constitutional law, if one deals with the judgements - with the opinions written by Professor Noorgaard and the various supporting or the various commentaries on the Noorgaard opinions, it would seem that civilians or attacks on civilians are specifically excluded when one has to determine whether there is proportionality between the objective of the offence and the object of the - sorry, the political objective.
ADV SANDI: Iím sorry, Mr Prior, if I can ask one question for clarity on my part, I think youíve heard Mr Arendse when in his argument he was referring to the Brian Mitchell case and he seems to argue that that particular case should be viewed in the same way as this one, do you have anything to say to that?
MR PRIOR: Yes, that it was not directed at any recognisable governmental structure. For example, earlier in the week or earlier in the month or earlier on, they had attacked the Nyanga Police Base - sorry, the Army Base, theyíd attacked the Guguletu Police Station - clearly, one cannot even being to argue on the same basis of Heidelberg.
Those were obviously targets - military targets within the perception and within the range of the applicants - cadres, soldiers of APLA but where we were dealing with Heidelberg - a restaurant in a built up area, the applicants explanation is that they were simply carrying out orders blindly. That seemed to fly in the face of the surveillance done the day before or some days before by one of the applicants - I think it was Mr Gqomfa.
...[inaudible] the situation, maybe a distinction may be drawn then between the Mitchell case and - because I donít know the facts of the Mitchell case, whether any surveillance or reconnoitring had been done before the attack. My argument is simply that if one had taken the Heidelberg Tavern as a military target and it had been reconnoitred - as we heard from the applicants, then my argument is simply that that seems to improbable.
That they would have been convinced that it was a military installation, that the people there would have been all armed to the teeth, as suggested by my learned friend, that they were expecting a possible resistance - testified to by Mr Mabala and/or Mr Madasi, I submit that that is improbable on the evidence as we know it.
We also have the added feature that there were people partying or having a party opposite the Heidelberg Tavern and those people who were shot at or shots were directed in their direction, that is unexplained. We also have - and I was going to then lead on with Mr Cerqueiraís shooting but my argument without fully being aware of all the facts of Mitchell, I would say there is possibly a distinction - on that basis only.
Mr Chairman, if one possibly accepts - for the purpose of the argument, that Heidelberg was a military target within the understanding of the applicants and they each simply carried out what they been instructed to do, then one has difficulty in understanding why Mr Cerqueira was gunned down because geographically he was not part of the Heidelberg situation, he was clearly at a position removed from Heidelberg.
I submit that Mr Gqomfa has not adequately explained - has not made an adequate disclosure as to why he gunned down or shot at Mr Cerqueira. I submit - to make his version sound somewhat more palatable, Mr Cerqueira is firing shots at him - he raises a type of self-defence although that would not avail him in these proceedings but it certainly - if one seeks some moral justification for shooting at Mr Cerqueira, then that would be it - that the man was firing at us.
However, I would submit that on the evidence before the Committee, we have the evidence of Mr Cerqueiraís brother - or be it emotional, I submit there was nothing to suggest he was an untruthful witness, in fact he withstood cross-examination very well. I submit at the end of the day heís unshaken when he says he would have known if his brother had shot.
The criticisms made by my learned friend are valid to a certain extent, Mr Brode who was a very emotional witness and who displayed that emotion in these hearings, was unable to satisfactorily explain why he would have handed the firearm - Mr Cerqueiraís firearm to the police, but the fact that that was done was never challenged.
MR PRIOR: No, just that he was emotional and he had come forward because he had heard that people or the press reports were saying that Mr Cerqueira had been shooting at the applicants and he felt strongly about that and he came to set the record straight.
Whatever criticism one has against the powder residue, I submit it goes some way to support Mr Cerqueira. Thereís no evidence before the Committee to indicate that the length of the time or the ...[indistinct] of time would destroy or hamper in anyway the test. It would seem from Stoltzís affidavit that she - and from du Plessis affidavit, that the samples were taken, they were properly sealed and they were properly despatched and the were properly analysed.
The relevance of the criticism may be a good one except that in the criminal trial this was also not challenged to - Cerqueiraís death was never challenged, so one doesnít really know why the State never led that evidence - maybe it was irrelevant. Thereís also a consideration with respect, is that if Cerqueira had been armed and he had seen the applicants coming away from Heidelberg Tavern where there had been an unlawful act, then he would have been entitled - possibly, to apprehend the applicants.
We also had evidence from Brode which was corroborated to a large extent by Mr Cerqueira as well, that shots entered the Machado Restaurant and if they were being shot at then naturally they would have been justified in defending themselves. So, on whatever basis Mr Cerqueira - maybe the first proposal that I made was to a larger extent than the last proposal that ii doesnít avail the applicants to rely heavily on the fact of his being armed.
MR PRIOR: Yes, as Judge Wilson had indicated, that is also a possibility, then we have a situation where Mr Gqomfa was completely mistaken then and if that is the case then one could safely reject his evidence by saying that - if I recall correctly, Mr Cerqueira either raised his hand or shot in his direction, then that could not have been the case. One has to then ask oneself: "Well why does he then say what he says"?, if at all to possibly exonerate - to whatever extent, himself from that situation.
My submission in respect of Mr Cerqueiraís death is that the applicants have difficulty - severe difficulty, in that they have not firstly given a full disclosure of the facts surrounding that shooting and secondly their political objective in respect of that death has not been satisfactorily presented or explained to this Committee.
ADV SANDI: Mr Gqomfa may have not seen the person firing from the tavern and I thought in his evidence in chief he said he shot Mr Cerqueira - the late Mr Cerqueira because he thought he was firing at them, he didnít say he saw any other person besides Mr Cerqueira ...[indistinct]
MR PRIOR: Yes, I think thatís what he says, he says he fired at Cerqueira because Cerqueira fired at him and he leaves it at that, he doesnít explain why - you know, whether he believed - I think one could safely infer from that that Mr Gqomfa did not want to be apprehended, it certainly would have been against their interest to be apprehended at that stage, by anyone who was shooting at them.
And no doubt, if that was the case then that person had to be taken out as it where - to be killed or to be stopped from arresting them but that again - thereís no evidence to support that, that would simply be possibly speculation or an inference - a possible inference to be drawn.
CHAIRPERSON: ...[inaudible] was to go and attack the Heidelberg Tavern and as obedient soldiers they carried out that mandate to attack the Heidelberg Tavern, does that cover them in respect of the attack on Cerqueira?
MR PRIOR: Yes. With submission, if that was their mandate then clearly anything outside of that - for example other premises, would not be covered by that because the Heidelberg was specifically targeted, it was specifically identified.
MR PRIOR: People coming out of Machados, like Mr Brode, Mr Cerqueira, his brother and Michael, were clearly not part of the military establishment within the minds - if we accept that, within the minds of the applicants.
MR PRIOR: Yes. Mr Chairman, I was going to conclude by referring the Committee to: "South African Criminal Law and Procedure - General Principles" where it deals with the nature and rationale behind superior orders, whether that can be of any assistance to the Committee.
Unfortunately the authorities deal with and still refer to terrorist attacks where they are completely unjustified. Thatís obviously dealing with it in a situation where you have a legitimate Government and a legitimate army fighting against liberation groups that are perceived to be the enemy, so the authorities are set in that milieu.
"That the law of warfare however does not authorise certain acts, such as rape, looting, killing of civilians and the like. The defence presently under consideration is pertinent to the situation where a soldier is ordered to perform an act which is not authorised by civil or military law"
ĎThe defence would not be available in respect of a member of a guerrilla force carrying out the order of an officer in that force"
May I just - possibly in conclusion, refer the Committee to an interesting remark dealing with proportionality made by - I think, Brigadier Fitla. It was interesting at the open submissions or the open hearings, that the Committee questioned APLA on whether there were any limiting factors to the amount of force or the military - or the application of force and military operations and at page 220 - at halfway down the page Mr Chairman, there was a quote from an earlier submission that:
"The decision was aimed at carrying out legitimate reprisals and forcing the regime to end the killings of South African civilians. This was done both in reprisal and self-defence and the only requirement was proportionality"
"Wherever an operation is not politically motivated, that operation falls outside our ambit of our definition of a target"
MR PRIOR: 230, yes. Now, at page - sorry, Iím jumping around Mr Chairman, but the last quotation I want to refer you to is at page 228. Now, Brigadier Fitla was the military person and seemed to be the person with the most military knowledge of APLAís Military High Command said - they were talking about political benefit and whether they would have lost political support and this ties in with my earlier submission that what seems to have been the motivation or the rationale behind these attacks - St James, Heidelberg, King Williamís Town, The Crazy Beat Disco in Newcastle, was the sense that APLA were losing or PAC were losing political support among the electorate and he says at - five lines from the top
"So that is the political benefit also we are talking about and when we talk about proportionality here, we could easily gone for easier targets than the adults, we could have gone for crŤches, we could have gone for institutions for the disabled but we had to look at proportionality.
Some of the things we could also politically justify and defend. If we had gone for children in a nursery school, we would not be in a position to stand on this platform today and proudly speak of those activities, so we had to look at our operations on two levels as well. First the political benefits that we derived from those activities in terms of also the support that both APLA and PAC would enjoy. Also when we talk about the psychological effect to put
And Mr Chairman, I submit that that pretty well sums up - at page 228 of the bundle and itís at page 94 of their typed submission - Mr Chairman, it would seem then that APLA seems to suggest that there were certain limits to which one could or could not go and my argument is simply that the fact that the evidence of the applicants is that:
I submit, must also be seen against the background of the porsity of evidence presented on their behalf or by them regarding the commands given. There was some difficulty between Mr Madasi and Mr Gqomfaís recollection of who gave the orders, whether there was a meeting in Umtata, whether Bulelani Xuma - that seemed to be the suggestion of Mr Madasi, whether he was the one who gave the orders to attack the Heidelberg or whether it was Leklapa Mpashlela who gave those orders.
And for whatever reason, those persons were not called. I understood that Mr Bulelani Xuma in fact was present at the last session - he was present at these proceedings, he was not called to give evidence.
One has a difficulty in understanding whether in fact those orders were in fact given by them or whether they were decided upon by persons like Mr Gqomfa - for the reasons supplied in the APLA submissions, as pure acts of reprisal against what was happening against the Black population.
ADV SANDI: Mr Prior, have you had a look at page 235, the first three lines - that is the submission by APLA and Brigadier Fitla is doing the talking in that line, he says: they didnít know anything about International Humanitarian Law. That area concerns what happens to civilians when there is an armed conflict and he says they did not even educate their forces on those matter.
MR PRIOR: I think itís a sad comment but that doesnít seem to tie up with the distinction that the Brigadier made with not attacking crŤches and not attacking disabled people, not attacking hospitals. Thereís certainly - those are the very - we just donít know because one is unable to cross-examine the document, so unfortunately when it is stated that they did not apply International Humanitarian Law, then I submit with respect, itís a sad comment because they were embarked on a war a liberation and those protocols should have been drawn to the attention of their members - given their structures and given their political training.
"I got the meaning of what International Human Law is when I integrated into the South African National Defence Force, equally the form of South African Defence Force did not even know what International Humanitarian Law was"
MR PRIOR: Iím simply drawing the Committeeís attention to try and understand what motivated these attacks. If one follows the rationale that there was a political decision and the military action was to further the political objective, then one understands it because then those acts are understandable within the context of the amnesty process - one of the criteria are, that here has to be some
ADV SANDI: If I recall, last time when this Committee was sitting hearing all the evidence on this matter, one of the applicants - I think it was Mr Madasi, when he was asked as to whether they had any conversation in the vehicle whilst driving to the tavern, his answer was
There was not attempt whatsoever to find out - to get any information about the place they were going to and the impression I get from that is, these were just people who wanted to carry out the orders.
MR PRIOR: I must agree with you, that was the evidence and whatever questions were put to them, they stuck to that that they never discussed the target - although it was suggested at some stage that that was improbable, that they would not even have discussed afterwards what had happened because that was the evidence.
They never - once they had disbanded and dropped the weapons off and parted, not even at that stage was it discussed. But I do agree with you, that was their evidence - that they were simply singing, they werenít discussing what they were to do and they all seemed to know what to do at the Heidelberg Tavern when they got there - I canít take it any further than that.
MR ARENDSE: Mr Chairman, the analysis done by Mr Prior on APLAís strategies and objectives and so on, would carry a lot of weight in a normal situation but the fact of the matter is - and we donít need evidence to be placed before this Committee, is that we were - before May 1994, in a grossly abnormal situation. It is not appropriate to subject the strategies and the political objectives of any organisation for that matter, to the kind laboratory analysis which my learned friend attempted to do.
The Committee hasnít gone beyond that and it hasnít done so for good reason, it hasnít done so because then the Committee will become embroiled in political debates, it will start making value judgements. In other words, this Committee with respect, cannot objectively look at whether or not a political objective or a political aim was objectively sound and valid etc.
The Committee has to rely - in the nature of itís work, it has to rely on the belief of the perpetrators of an act or of an offence. For as long as that belief is not so outrageous or so unreasonable or so insupportable, the Committee has set a precedent by accepting that: "If that is what you believe, then - and it can be supported and itís not impossible, then we will accept what you say". And that was done in the case of Coetzee, it was done in the case of Mitchell and it should be done in the case of these youngsters.
These youngsters were sitting in the Transkei, you have a command who is sitting in Dar es Salaam or wherever - in the situation which prevailed at the time, it is impossible for them to have had communicated to them what exactly this strategy would be, how this strategy would be carried out.
There was a lot of misinformation, miscommunication yes, and that often led to misinterpretation of instructions and orders and it may well be that the Heidelberg and the St James may be such examples. But the fact of the matter is that these applicants did not commit the Heidelberg Tavern massacres on their own account or for their own benefit, clearly they did not do so - the evidence cannot be attacked.
In fact, one of the regional PAC members applied for amnesty and was granted amnesty by this Committee - Mr Siyolo, for harbouring - I think, APLA members, so there was a support structure. They believed that they were given a genuine order and they carried out that order and that is how far it should be taken otherwise you get into a situation whereby you now have to call PW Botha and FW de Klerk to come here and say to you exactly what they meant when they told people to carry out certain instructions.
In fact, it is of interest to note that they have publicly said - maybe not before this Committee, that: "We never told Dirk Coetzee and other people to do all these terrible things that they did" and the Generals have also said so. Notwithstanding that, this Committee has accepted in amnesty applications, that people during the course and scope of their duties, they believed they were conducting a war against the ANC, against the UDF, against APLA, against the liberation movements - they had a genuine belief that they did that.
Just another aspect, it is also common knowledge and a fact that is sufficiently notorious for this Committee to accept and that is that the PAC had not as at December 1993, renounced the armed struggle - that is a fact of the matter and we also know as a fact that APLA was the armed wing.
CHAIRPERSON: ...[inaudible] that the PAC may have made statements but APLA had not. In other words, the military wing had not taken the decision, though the political wing may have, is that not the position?
MR ARENDSE: That is correct Mr Chairman. I also recall that there was large-scale dissatisfaction - understandably, from some parties to the negotiations - how can you negotiate will youíre conducting and waging this armed struggle?
So, the point I want to make Mr Chairman, is that the applicants were told that the Heidelberg Tavern is a place where members of the security forces meet. I think on the 30th of December of any year, one doesnít expect people to hang around unless it is in fact an army base or a military installation. You donít expect military people to wear their uniforms when they are having a good time and having a good drink, so in their minds it was a place that was frequented but unfortunately, it was not.
As far as the criteria are concerned - I think Iíve made this submission in a previous matter, the Committee looks at the criteria cumulatively - none of these criteria which is mentioned by my learned friend in 23, is decisive on itís own and the Committee weighs it up. The way Iíve read this Committeeís decision, it appears that if it is established that an order was given, that that order was given by the State or by a military liberation movement or a political party, then this Committee will accept that that was case and that the act was done with a view to realising whatever the political objective of that particular organisation or liberation army may have been.
Mr Chairman, Iíve dealt at length - in anticipation, with the Cerqueira issue and Iím not going to take that further, save to say that - and just to pick up what Judge Wilson says, that surely either before, immediately before, during or after an operation where you are conducting an operation of this kind, if you feel threatened or impeded or you perceive that you may be impeded or threatened, that that would - that there is a sufficiently close link to associate that with the main objective and in this case weíre talking about seconds.
You get into a car, there may be a feeling that a shot is being fired at you - whether itís in front of you or behind you, the proximity is sufficiently close enough to be associated with the attack on the Heidelberg Tavern. Weíre not taking about the applicants having travelled to Khayelitsha or Guguletu or even down the road to Observatory to the main road, where now they have just gratuitously shot at a passer-by.