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Type AMNESTY HEARING
Starting Date 25 March 1999
Location CATHOLIC CENTRE, EAST LONDON
Names CHARLES ALEXANDER MATHER - WITNESS
Matter MAYAPHUTI BRIDGE ATTACK
ADV PRIOR: ... 25th of March 1999. The amnesty application of P M Dolo proceeds. The other applicant, Mr Makuala has become deceased. He died since the last hearing. He died I understand whilst in prison.
Mr Chairman, as you will recall there was an allegation made by the Tsemane family regarding the motive behind the killings in this particular matter, as a result of which the Committee requested the matter to be investigated, which is was. A report was filed by the Evidence Leader regarding the investigations, and I wish to call today a Mr Charles Mather, a businessman from the Sterkspruit area, who will be in a better position to describe to the Committee the conditions and the perceptions of the community as they existed at that time.
As a result of possible prejudice to interested persons, notices were sent to inter alia, Mr J H Hatting in terms of Section 19 of our Act, as a possible implicated person. It was made clear to Mr Hatting's attorney who is present today, Mr N Naude, that Mr Hatting was not directly implicated in any evidence arising from these applications, but that the possibility may exist that by implication his client's rights may be affected. And for that reason the Amnesty Committee or the Amnesty Department felt obliged to serve him the necessary notice.
In addition hereto, a Section 19 notice was also served on Mr Buyafuti, a businessman from Sterkspruit. I understand from Mr Mbandazayo who says that he acts from time to time on behalf of Mr Buyafuti, that he isn't here. Is that correct, he's not here today?
ADV PRIOR: I have a Section 19 notice which was marked by hand and I think it was given to the East London staff, but similarly the notices were served in Sterkspruit and that area, Lady Grey on Mr Hatting, that's why Mr Naude is here. A notice was sent to Mr Mather and he's here. I do have that correspondence. So possibly, Mr Naude the newcomer, could put his name on record for purposes of the transcribers.
ADV PRIOR: Could you just briefly give the Committee an idea of your business interests and the family's business interests. I understand from what you told me this morning, that the Mather family have been in that area for some time and have business interests in that specific area. Could you possibly just briefly describe those to the Commission please.
When I first went to work for him he had a small little trading station. If you go back 30 years, at that time business was basically restricted to white people, of which my family had a trading station where we had the privilege of trading.
ADV PRIOR: Now during 1991/1992, that was before the problems that arose in the Sterkspruit area which were directly related to these amnesty applications, what were you business interests in that area?
MR MATHER: We had four different businesses, grocery supermarkets, wholesale, petrol, petrol sales, garage workshop, construction, manufacturing bricks. So we were quite a large firm operating out of Sterkspruit.
ADV PRIOR: Before we proceed with the other interested parties in Sterkspruit, you also indicated to me, and I wish you also to briefly describe to the Committee, during the time in the Transkei as it was then known under the Matanzima regime, what was the policy of that particular regime towards white traders?
MR MATHER: Alright. When the Transkei was granted independence, I can't remember the year, 1970-something, it was the policy of the then Matanzima's that the white traders should move out of the area. In fact there was an agreement with the government that you could put your business up for sale and they would come and evaluate it and it was purchased by the then Transkei Development Corporation and they would pay you a very fair price based on goodwill over the last three years, or five years, I can't remember.
All the white owned businesses were allocated to different people in the Transkei. We of course refused to sell. A lot of traders sold, a lot didn't sell. We weren't forced to, but the general attitude of the government of that time was that the white trader must go and it must be bought by local black business people, Transkei business people.
I do know, I can remember somebody coming into my shop and saying: "Well, this business is going to be mine one day, it's been allocated to me" and can I show him around and: "Can I look at the house?", and all those types of things. I remember saying to him: "I think you're mistaken, this business is not for sale and it will never be for sale."
ADV PRIOR: Now when the Matanzima era came to an end and Brigadier Bantu Holomisa took up power, that was round the middle of the '80's, 85/86, what was the attitude towards white business in the Transkei at that time?
MR MATHER: Under the Holamisa rule the policy of the government changed, the Transkei Government, the white businesses were welcomed, a lot of the chain stores moved into the Transkei where they were not allowed to before ...(intervention)
MR MATHER: Well the effect that it did have is that the local businessmen, myself included, came under quite severe strain as far as business was concerned, because all of a sudden you had very good appositions trading under modern techniques where, if I have to look at the Herschel district and the people, somebody like myself, I was born there, never been exposed to the outside environment and all of a sudden you were faced with the threat of, for example a Pep Stores, I mean everybody knows Pep Stores, opposing you, grocery people opposing you, furniture people coming in that weren't in the area before, so they took a lot of the cash-flow out of the market by means of selling HP and yes, the businesses did go under a bit of financial strain at that time.
MR MATHER: Buyafuti, I don't know exactly where he came from, but he opened businesses in Sterkspruit. I can't quite remember whether it was before independence or just after independence, but he opened businesses in Sterkspruit. He acquired property and he then got into business and he was selling groceries. A little while later he was selling building material, and he was involved in a butchery.
MR MATHER: Yes, I think everybody knew his political persuasion. If you have to take the Herschel district it's probably about a 40 kilometre radius, a little homeland surrounded by Zastron area, the Free State on the one side, Lesotho on the other, the North Eastern Cape on the other side, and basically everybody in the Herschel district knows everybody, it's a very small community in terms of South Africa, or if you look at the large part of the Transkei, so being a small little area everybody knows everybody, everybody's in some way related to everybody else because of marriage in that area. So yes, I knew Mr Tsembeye(?) and I knew his political feelings at that time.
ADV PRIOR: Now it's common cause that during 1992 serious problems arose in the Sterkspruit area which culminated in several attacks alongside the road, particularly between Lady Grey and Herschel, on the road to Sterkspruit, and on the Zastron side at the Mayaphuti Bridge, were you aware of those incidents?
ADV PRIOR: Now up until the commencement of those attacks, as far as you can recall, were there any problems in that order, regarding violence on the community or members of the community, before those attacks commenced?
ADV PRIOR: And I'm not referring to the normal, if there was any theft or housebreaking or stock thefts, I'm not referring to those incidents, but incidents of violence which was sort of out of the ordinary.
ADV PRIOR: Ms Tsemane on behalf of her father who was killed, gave evidence in Aliwal North and my sense of her evidence was that certainly before these attacks there was a certain harmony between the black people and the white people working in Sterkspruit. Are you able to comment on that?
MR MATHER: Yes, that is so. Well in fact most of the Transkei one could look at it that way. I mentioned earlier that in the old days, 30, 40, 50 years ago, the white trader was allowed to, had the privilege of having trading stations as we used to call them, and basically that white trader used to be the doctor, the post office, the bank, so there was always a very good relationship between the old Transkei Trader and the local population. There was always a good harmony, because in order to succeed in business at those times, it was very important that the local community support you, so there was always a very good relationship between the local and the white trader.
MR MATHER: I know of Mr Myburgh's farm being, his house being burnt. I did not involve myself too much with the politics at that stage. I know that Mr Vorster's shed was burnt down with Lucerne, but I can't tell you very much ...(intervention)
MR MATHER: That's right. Mr van Rooyen who owned the bakery, I think possibly that was one of the first attack that took place where either a bomb was thrown at his car, but there were, I think there could have been two attacks on Mr van Rooyen on his way to work.
ADV PRIOR: Yes. Now you mentioned that with the change of attitude by the Holamisa rule a lot of new business came into the area, such as chain stores and the like which created cash-flow problems for existing business. How did you, just briefly, how did you cope with those changing conditions as a businessman in that area? Obviously your business interests were also affected by this influx of business, new business, is that correct?
MR MATHER: That is so. Well we went into construction as an additional means of income and we starting building, owing property there we started buildings and leasing them out to the chain stores. That served as another means of income. And we joined some of the bigger buying organisations like Megasave, which is a Shoprite/Checkers group, to give us purchasing power so that we could oppose the opposition, which we did very successfully.
MR MATHER: Yes, Mr Hatting asked me on quite a few occasions to join him with business to strengthen our businesses. It was around the time when Cashbuild came in. Cashbuild as you all probably know, a large building material ... and both of us were suffering at that time because of the opposition and Mr Hatting approached me and that if we'd join we'd be a better opposing force. I was not interested.
MR MATHER: Well it's a premises that I lease. Probably about, I can't remember the time, but quite a few years before this trouble where we started having attacks it was burnt down. We suspected arson.
ADV PRIOR: Now you indicated that as far as you were aware, Mr van Rooyen was attacked on his way into Sterkspruit. It's also common cause that on this particular day - if the Chair will assist me, I don't have the date, I think it was May or April, March '92, sorry, November '92, that Mrs Brummer who I think worked at the Score Supermarket ...(intervention)
ADV PRIOR: And on the way on the Lady Grey/Herschel portion of the road they were attacked by the applicant and others, who shot at them with automatic weapons, the vehicle came to a standstill, they apparently both alighted, Mr Schroeder ran in a certain direction towards Lady Grey.
And at that time, Mr Tsemane who was leaving Sterkspruit apparently to do business in Lady Grey or in Aliwal North, I'm not too sure, came upon the scene and it's apparent that he gave Mrs Brummer assistance by taking her aboard the vehicle and turning his vehicle, presumably in order to go back to Sterkspruit, where the vehicle was fired upon, it left the road, Mr Tsemane was fatally injured and Mrs Brummer died some time later in hospital. Mr Schroeder was also killed alongside the road. Did you become aware of that incident?
MR MATHER: Yes, we've basically got four or five vehicles moving in from Lady Grey every day to different management opening the different businesses, so our or some of the people working for our company were right behind that ambush.
MR MATHER: Craig Rawson who used to run our wholesale. I think he was one of the first on the scene. He was warned by oncoming traffic to turn around, that there'd been an ambush. He did so, he turned around and alerted everybody else not to proceed.
ADV PRIOR: Now how did that incident affect the community, particularly the business community in Sterkspruit, in the light of the van Rooyen had earlier been attacked as you've described? How did that affect the business community in Sterkspruit?
MR MATHER: Well the business community were very deeply shocked, very scared, very afraid. I know through all the management that worked for me people didn't want to go to work, they were scared. I think anybody that's got a possibility of being shot gets scared. We then took immediate steps and we hired a security firm.
MR MATHER: Our business, our own business. We hired a security company with an armed vehicle and they used to escort us to work and back because it appeared that, well it didn't appear, it was obvious that the people that were under attack were business people from Sterkspruit, and the early morning and evening is when the people moved, and this is when the attacks took place.
CHAIRPERSON: I think we should perhaps get on the record we have heard this evidence in the past. You said people were afraid to go to work. The position was that people worked in Sterkspruit but did not live there.
MR MATHER: Well the armoured vehicle would travel ahead, proceed head with weapons so that if anybody wanted to attack we would be able to defend ourselves. I can't remember the name of this vehicle, but it was quite a large vehicle like used in the army, a "Ratel" I think or something of that nature. And if at any stage that we felt we could have actually got into that vehicle and be taken with an armoured vehicle backwards and forwards.
MR MATHER: Yes, the armoured vehicle would arrive at the border post between Lady Grey and Sterkspruit and it would wait then for us to arrive and we knew that they'd be there at half past seven, and that was basically the meeting time and the armoured vehicle was waiting and we used to proceed with the armoured vehicle.
Then I may as well add that basically we hired this vehicle, but everybody got to know about it and there would sometimes be a convoy of 20 to 30, 40 vehicles behind the armoured car. The same procedure would happen in the evenings, we would meet at a certain point, I can't remember the time, maybe 6 o'clock, and this vehicle would escort us back to the border post at Lady Grey.
MR MATHER: No. You know if we talk about an arrangement we must understand that my company hired this security company to protect our people, other members of the community made use of riding in that convoy, which I had no objection to because the objective was to protect my own people.
Reps that were coming into the area used to wait. They got to know that the armoured vehicle would be waiting and they used to wait. A lot of black people that live in Lady Grey used to join that convoy as well. In the beginning it was quite a large convoy and as the months went by and nothing happened, nothing happened, the convoy started to get smaller and smaller.
When it looked like there was no more threat, we discontinued the armoured car but we still used security people to be in the area. And to this day we still have security people, not on as large a scale but we do have security people.
MR MATHER: That is difficult to answer because Mr Hatting doesn't run the business himself, he had management that was running the businesses and I don't remember that he ever ran any one of those stores. So it's difficult for me to say that yes, he joined the convoy or he didn't join the convoy.
MR MATHER: Yes, as I've explained it's a very small area and everybody knows each other. On numerous occasions I was approached by local black people to say, Charlie there's a threat out on you, you and your family must take precautions.
ADV PRIOR: Ms Tsemane made a specific allegation when she put questions to the applicants, Dolo and, Mr Dolo in particular and Mr Makuala, that these attacks were not politically motivated but were motivated by business interests, in other words by certain business interests against other business interest in the Sterkspruit area, in other words against competition. And when one looks at the nature of the attacks in that area throughout that period of 1992, it certainly appears that the persons who were attacked were all attacked in the morning, they were predominantly white people working for business in Sterkspruit and they seemed to be attacked in more-or-less the same manner, by the same or similar groups within the APLA movement. Are you able to comment at all on that allegation or to give the Committee your perception or your view on that?
MR MATHER: Well I would support that. It was also possibly basic common knowledge amongst all the local people. As I've explain before, it's a small district and everybody knows each other. Yes, it was common opinion, not only myself or Ms Tsemane, but it was a common consensus that that is what was happening.
MR MATHER: Delivering fresh produce, Dairybelle, Simba, Willards, coming in doing weekly deliveries, Coca Cola and general reps with all the different food companies that you get. Some operate on a weekly cycle, others on a fortnightly cycle, others on a monthly cycle, but yes, they were active in the area. No attack that I'm aware of was ever made on any outsider, white or black.
Mr Mather, my first question will be, I'll start with the era of Matanzima. Are you saying that there were no Pep Stores, nor Russells, not Ellerines in Transkei, or are you saying that was the case in Sterkspruit?
MR MATHER: No, I'm saying that was the case in Sterkspruit. Prior to the Transkei independence, I want to just confirm that Ellerines approached us to build for them at that time. Now I can't remember whether Ellerines were in just slightly before independence or after independence, but chain stores in general were not in Sterkspruit.
MR MATHER: I think it depended on how long ago that they gained entrance, but during the Matanzima regime I know I opened a business and I had to get a black partner because white people were not allowed to get licences, new licences at that time. So it was very difficult, I don't say impossible, but it was very difficult for an outside white organisation to obtain a business licence.
MR MBANDAZAYO: Chairperson, I'm not disputing Sterkspruit area if he concerns himself with Sterkspruit, but if he talks about other areas, Butterworth, Umtata, I know that they were there during the era of independence. And also that is ...(intervention)
CHAIRPERSON: But were they formed after independence? He is saying they were there during the era of independence, but he said that from the time of independence it was very difficult for any white firm to get a licence under the Matanzima Government. If you had an existing licence, it remained.
MR MBANDAZAYO: Chairperson, if that's the case then I have no problems with that. My impression was that they had to leave and then they came back during, those who were there, they came back during the era of Holomisa.
CHAIRPERSON: No he said no new white stores, as I understand the evidence, no new white stores started. You were not forced to leave, you were encouraged to sell to the Transkei Development Corporation, who paid a fair price for your properties, but the police was to take over from the existing white, but they weren't forced to leave.
MR MATHER: I tried to avoid whatever contact with Buyafuti. Naturally, if he came into my business and he wanted to buy something I would sell it to him, but I never had any friendship or business dealings with him.
MR MBANDAZAYO: No, I'm saying that, I'm asking whether you were surprised that a person who is anti-white as Mr Tsembeye, as you have heard about him, that he was a business partner of a white person?
MR LAX: Sorry, you're being asked in essence, would it surprise you, did it surprise in essence that a person like Tsembeye was in a business relationship with a white person? I'm not saying that you said that.
ADV SANDI: Yes but, Mr Mather, would such a thing surprise you today? If a person who is alleged to be a racist and anti-white enters into a business partnership with a white person, wouldn't you find that a bit odd?
MR MATHER: If I have to remember, I think when Mr Hatting first formed the business relationship with Buyafuti, it was quite a considerable time before we started having these political problems. I think if I have to answer that truthfully, the only way for a white man to basically get into business in Sterkspruit was you'd have to have a partner so no, I don't see anything that I would be surprised because Mr Hatting wanted to open a business and there was his partner that gave him access to business. So the fact that I know he was racialistic does not necessarily mean that at that time - I find the question very difficult to answer, but I'm trying to ...
CHAIRPERSON: It's not Mr Hatting that we're interested in. We've heard that if you wanted to get licences or something, you had to get a black partner. But the question, wasn't it surprising that Mr Buyafuti who disliked whites, as I understand you say, was racist, wanted them out, that he would ever have entered into a partnership with a white man?
MR MATHER: I think that if you want to make money and you've got a means of making money, which was obviously Mr Tsembeye, he saw Mr Hatting as somebody that will give him financial assistance and a means of making money. I can't see any other ... but as I said, they made this partnership quite a few years before the political situation of APLA.
MR MATHER: If we look at the political time round about where the new South Africa was emerging, Mandela was released from prison, this is when you started having the political parties like APLA becoming active, which was round about that time, where it became knowledge that Buyafuti was with the PAC and APLA. Before then we didn't have that activity, you did not have that political activity, it started to happen in the new South Africa, where you started getting PAC attacks and APLA attacks, where people started to make it aware that they belonged to the ANC or they belonged to the PAC. I was on numerous occasions asked to join the ANC, I don't think anybody would have asked me to join the PAC, but people became aware of who and what parties they belonged to, it was round about that period.
MR MBANDAZAYO: No can you just - lastly, my last point with you would be about what was put by the Leader of Evidence, that there was a suggestion that the possible reasons for the attacks was that it was only business interest. Now can you elaborate that and do you confirm that? Can you be in a position to elaborate on that, why do you say that it was because of business interest?
MR MATHER: They weren't necessarily business people no, but I can't give you a reason why they joined the convoy, maybe they felt nervous, maybe they were frightened to get into a - you know I don't think you can ask me to explain to you why they joined the convoy. I can't tell you, I don't know.
MR MBANDAZAYO: You have answered one of the questions I was going to ask then. Then if they also themselves they have that fear of these attacks, wouldn't it be that they did not have that notion that this thing has something to do with business interest? Would it not be that?
ADV PRIOR: With respect, how can this witness answer what could be in the minds of other people, it's really an unfair question. He stated a fact that there was a convoy on his initiative, to protect his interest, other people joined in, why other people - and he's explained to the best of his knowledge that presumably people felt more secure travelling in the convoy.
CHAIRPERSON: He just said he can't say why. He has just said, perhaps they were nervous. If you were driving along the road which you knew people were frequently shot on, wouldn't you rather travel with some sense of security?
MR LAX: Well in fact, Mr Mbandazayo, doesn't it go the other way? I mean your question, frankly doesn't take your point you're putting any further at all because you question tends to point out to the fact that it wasn't political because black people felt threatened, they used the convoy and therefore it must have been something else. I don't see the point you're trying to put across, and in any event the witness has indicated he doesn't know why people joined the convoy. So his opinion is irrelevant in any event.
ADV SANDI: Sorry, Mr Mbandazayo, I thought you are asking this question because the witness has said there was a widespread perception in the community that these attacks were business inspired. Now you are trying to, as I understand you, the purpose of your question, I thought you are now trying to ask him to reconcile the two.
MR MBANDAZAYO: Maybe I couldn't express, you express it better, Member of the Committee, that is exactly what I'm getting at because he said that it was the perception of the community. Then if the perception of the community was that it has something to do with business, why would they go there, because they have nothing, they were not involved in any business?
MR MATHER: ... when I say detected, round about that period is where different people expressed their political beliefs, and to my knowledge, Mr Tsembeye was, and to hearsay at that time, involved with the PAC and APLA and I think anybody at that stage that was involved with APLA was anti-white, the objected was killing white people.
MR MATHER: Let's put it this way, they were business rivals of any businessman in Sterkspruit at that time, they formed part of the business community. I can't say they were rivals of only Mr Hatting or Mr Tsembeye, they were rivals of mine as well, they were business people in Sterkspruit.
MR MATHER: Mr van Rooyen was a businessman baking bread, Mrs Brummer used to work for Score, who sold groceries and inside the Score building was a butchery. But I don't think I've made an allegation that those people were killed because of Mr Hatting or Mr Brummer or Mr Tsembeye.
MR MATHER: Right. If we look at the situation of Sterkspruit, my property happens to border Mr Tsembeye's property and my, at that time when I went with the proposed plans it was to develop my side of the property and he could develop his side of the property. There was no talk of a joint venture, it was more the development of the town situated around our businesses.
MR MATHER: I think I've already commented on that, it was not to go into a joint venture, there is a property sitting here and a property sitting there and there is a supposed street linking these two properties which has never been developed, and my proposal, I think Mr Tsembeye at that stage was the Mayor of Lady Grey, of Sterkspruit, I can't remember, I just think so, but it was to develop that street so that I could develop my properties this side and he could develop his properties that side, not a joint venture.
MR MATHER: No, alright - sorry, if I gave that impression, I'm mistaken but what I can say is that when the political problems started, because this was long before the political problems, before that time and I think I even mentioned that, somebody asked me was it surprising to join and that Mr Hatting had a business relationship and I said no, it wasn't surprising, to me anyway.
MR LAX: If I could just assist you here. The issue wasn't contact, the issue was, did he have a relationship with him. That's how the question was originally put by Mr Mbandazayo. Did he know the man, was he able to - the thrust of the question was how did he know he was anti-white. That was the context in which that question was asked and ...(intervention)
What I'm trying to say is that I never understood this witness to be saying he never had any contact with the man, he said the man had come into his shop on occasion, they might have spoken. What he is saying is that he had no business dealings with him, he didn't know him well, he didn't understand his political philosophy. That was the thrust of his question. So what I'm suggesting, Mr Naude, is that to suggest that the witness was saying he had no contact whatsoever with the man is not a fair thing to put to the witness at all.
MR LAX: Except you misconstruing it again, Mr Mbandazayo, he said the man might have come into his shop and bought something from him. The implication was that there may have been casual contact of one kind or another, but that he didn't want to associate with the man because of his views, he avoided him in that sense. It doesn't mean he might not have spoken to the man on the odd occasion. Really, I mean we're taking a very general statement and we're trying to make it very specific, and I think it's frankly unfair to the witness.
MR MBANDAZAYO: The impact, Chairperson through you, I agree with him, he said so, that he might have gone there, but what I wanted to get at, that's why I had to stop asking him the question whether he has never had ... I didn't know that he had business, whether he has never talked as business people, and he said
CHAIRPERSON: My note again is that he said he tried to avoid any contact with him and he had no personal experience with him, he might have come into his shop and he would have sold him something. He limited it to that.
MR NAUDE: I want to put it to you that my instructions are further that you visited Mr Hatting on the farm and then asked him to become joint partners in the hardware business, and your exact words were you want to use the knowledge of Mr Hatting as being a chartered accountant and one of the financial directors of Rembrandt.
MR NAUDE: I want to put it to you that that is in fact my instructions. Can you say in that period of round about three months that you made use of the security vehicle, the armed vehicle of the Security Forces, on how many occasions did Mr Hatting visit Sterkspruit?
MR MATHER: No, I think I made it clear that during the time of the security, Mr Hatting does not run spores(?) in Sterkspruit so he doesn't go to work at 8 o'clock in the morning and leave at 5 o'clock.
MR MATHER: I think I was quite clear in my answer to that, I had no knowledge of whether he joined the convoy. And I've also specified that Mr Hatting does not go so work in Sterkspruit at 8 o'clock every morning and leave at five, he visits his business, as my observation has been from time to time.
MR MATHER: To my knowledge outside business people were not attacked. I think the incident of the Telkom person was at the same time that Mrs Brummer was killed and Mr Tsemane and he came upon the scene at the time of that ambush, as my knowledge goes. So my perception of that was he was involved in the ambush by pure coincidence.
CHAIRPERSON: What is the point of putting something that has not been mentioned? You say: "Are you aware of it, because there never was such a thing". I'm afraid I don't understand the point of the question.
MR NAUDE: Are you aware of the fact that at one stage, Mr Swartbooi, the bank manager that is now deceased, had to escort Mr Hatting out of the Sterkspruit area when there was rumours that business people, or that whites were being attacked, that white people were attacked?
ADV PRIOR: I haven't broached this question with my learned friend, Mr Naude, does he intend calling Mr Hatting? This would possibly be a convenient stage to interpose, at this stage, Mr Hatting's evidence if he intends calling him. If not then I'm going to suggest that Ms Tsemane be recalled because her evidence is ...(intervention)
ADV PRIOR: Yes. I gather from the record that Mr Mbandazayo did not cross-examine Ms Tsemane. Due to the nature of the allegations that she was making - if you will recall Mr Chairman we then adjourned her evidence, so without further ado, may I invite Ms Tsemane ...(intervention)
MR MBANDAZAYO: Chairperson, just before - at the time she's being called also I would like to know from the Leader of Evidence whether one of the people who was mentioned also, with the exception of Mr Tsembeye, Mr Hatting was mentioned a certain Chief Pitso which he alleged that, was he also informed because it was some of the people who were mentioned who also had a soccer team.
ADV PRIOR: I can inform the Committee that I don't have any information or correspondence that this person Pitso was contacted. What I can inform the Committee about is that the Baduza family, or Mr Baduza, I don't know if he's related to that family, was contacted and they didn't want to participate at all, and they were approached about making a statement or whatever and they just refused to give any cooperation to the Commission. But the information, Pitso, that was never followed up in any detail and I don't have any record of a Mr Pitso being approached with a notice to either appear or that he was implicated.
ADV PRIOR: May I also enquire, Mr Mbandazayo may help us, is that also one of his clients, because if so we can possibly via his office then serve him an appropriate notice, but according to the correspondence file that was handed to me by the Evidence Analyst, there seems to be no follow-up with Mr Pitso.
MR MBANDAZAYO: I just also have it in my notes, Chairperson, when she was also questioning Makuala about where they were staying. Before she gave evidence herself, she also asked about the place, that he was a local chief. If you still remember when she said her father used also to act as a chief there was also ... I have it in my notes, Chairperson, I didn't go through the bundle, I was looking through my notes.
ADV SANDI: Mr Prior, according to my handwritten notes that was on the very last day when we adjourned, because certain names were being mentioned and these people had not been given a Section 19 notice.
ADV PRIOR: ... of the record, Mr Chairman, there's talk about the house at which they were staying and this is when questions were put by Mr D Tsemane, a house in Jozana, but I don't think at that stage it was named. Then Mr L ...(intervention)
ADV PRIOR: Hang on, hang on, no, it's earlier than that. Mr Chairman, from page 108, Mr L Tsemane one of the sons, was challenging Mr Dolo to name that person and then at page 109 at the bottom they talk about, it's been transcribed as Pila. Okay it's Phila, where does he stay, is he around?
MR MBANDAZAYO: That's Phila Powa(?). Ja, that's true, Chairperson. I'm afraid that the record does not, some of the things I was reading through do not reflect what I have in my notes, some of the things have skipped from the record, it does not reflect.
MR MBANDAZAYO: Chairperson, definitely I would like to ask a few questions, but as I indicated I wanted to have some ...(indistinct) from the Committee, because at the time when I was to cross-examine the witness when these names were mentioned, that's why I asked whether, because definitely the allegation was that at that time ...(intervention)
MR MBANDAZAYO: Yes, that's questioning, Chairperson, that's why I said look, my problem is that I'm going to ask her about, I do have in my notes that, and I was talking to her now about that, that the allegation was that, that was the reason, the allegation was that when it comes to other people it was because of business reasons that they were killed. Then when it comes to her father it was because he was a rival to Pitso.
MR MBANDAZAYO: ...(indistinct). I don't find it in the transcript. If you remember, Mr Lax, when she mentioned that her father used also to act as a chief, that's how I have it, that Pitso was a chief. Maybe I ...(indistinct)
Ms Tsemane, you asked Mr Makuala about Pitso, whether he knows Pitso or not and it was his answer that he does not know Pitso, and it was your, the impression I get, that he was not telling the truth that he does not know Pitso. Now I want to know who is Pitso.
MS TSEMANE: Pitso is a businessman in Jozana's Hoek and he is also, I don't know what do you call it, he's not really a chief, we've got a chief and then we've got a headman. I would say he was a headman of Jozana. And Jozana is not near our village, it's a little bit far away from our village where we stay.
MS TSEMANE: My father had four wives. Pitso's sister, how I don't know because I know the surnames, my father's second wife was Ms Pitso. So in our culture it ...(indistinct) a long way and then it ends up being a family.
ADV SANDI: Sorry, Ms Tsemane, can I just interpose for a minute. But Mr Mbandazayo, my understanding is that no allegation specifically has been made about Mr Pitso, why are you dragging him into this?
MR MBANDAZAYO: Chairperson, I'm coming to that point. I think at page, where it was said that he was used both these people, Mr Pitso and Mbele Bhele were used, they had football clubs and they were rivals. I'm still going - so they were used by them. So that's what I'm trying to get at.
"Ms Tsemane. The places you were always at Mbele Bhele and Pitso where I saw you most of the time, do you know that all these people had football clubs? That is why I say to you they were using you for their aims."
MR LAX: Mr Mbandazayo, couldn't you draw whatever inferences you want to in argument in relation to this matter and just leave it be? It's up to - I don't want to tell you how to run your client's case, but the witness may have put something then never testified about it and now you want to bring it back in in viva voce evidence. Look it's up to you, I think you must ...(intervention)
Ms Tsemane you will notice that Mr Naude is here as a result of investigation of allegations that you made at the last hearing, Mr Hatting was present, do you know Mr Hatting, have you had any dealings with Mr Hatting in the Sterkspruit area?
ADV PRIOR: Yes, that's the evidence, Mr Chairman, arising out of that allegation. May I possibly just make it abundantly clear that Mr Hatting's presence, or notice was given to him as I've explained earlier, arising out of the possible inference that possibly may be drawn or which could have been drawn from any evidence which indicated that Mr Buyafuti or Mr Tsembeye was in some way implicated, and it was for that reason only that we as the Amnesty Department felt that in fairness to Mr Hatting, he should be given proper and timeous notice.
ADV PRIOR: It was certainly the feeling of the community at the time based on what was going on, and obviously in a situation of that nature there were perceptions abounding and there were obviously speculations and there was rumour. Obviously we had to discharge a duty placed upon us, that if he possibly was implicated we had to give him notice. In fact it was indicated to Mr Naude that Mr Hatting did not have to attend, but that he had to just take cognisance of the fact that he may possibly be implicated. Thank you, Mr Chairman.
CHAIRPERSON: Before we hear argument, could I indicate on behalf of the Committee, Mr Naude, that subject of course to anything we may have said to us, we do not intend to make any finding implicating Mr Hatting in any way.
Chairperson and Honourable Members of the Committee, I want to remind the Committee that this case we have just finished leading evidence on is one of these cases where the Committee has been hammering the PAC to make submissions regarding the policy of the PAC in cases of this nature, and when I was looking at the record it also reminded me that the Chairperson always wanted and we were trying all our best to get the PAC to come across about its policy regarding incidents of this nature and the submission is before the Committee, the submission which was made by the PAC and it clarified its policy with regard to white persons as targets.
I don't want, Chairperson, to go to that document, it's well-known to the Members, but I would like to say that during the week I quoted a quotation from Sobukwe who PAC always, they always interpreted the documents which were written by him and also his speeches, and it was from there, even the quotation which is there in the submission which I quoted in full during the week, it was on Tuesday, that quotation.
Chairperson and Honourable Members, you will recall that Dolo was a regional commander and as such he was in a higher position than ordinary commanders who commands a unit to attack. He also had a discretion to identify the targets and he was also as evidence was led, that he was also, had a task of training and giving lessons to new recruits and Sterkspruit was one of the places where he was doing this training with the recruits and then they would be redeployed somewhere by other people relevant and as such he was in a much higher position. And also when it comes to this, he told the Committee that indeed he was reporting to Letklapa Mpahlele with regard to this incident, before and after the incident. And as such it has the blessing, if one looks then to the policy of the PAC as it also was put in their submission. So what I'm getting at is that it was what they did they did and they believed that what they were doing was the benefit, was for the benefit of their organisation.
Chairperson, I have before me a document which was called Azania Combat, it was the mouthpiece of the PAC military wing, and in this document there are various newspaper reports and also some radio talk shows. In one of those radio talk shows the then national organiser of PAC was called in Radio Metro talk back show, that what is their position with regard to APLA attacking, then it was called soft targets, and he made it clear, Maxwell Nmatsibanane(?) that they will never condemn APLA for what it's doing because of the roll the enemy, of the role played by the enemy in the settler community. That is how he put it.
And it was the same case when Sabelo Pama came inside the country, he was asked about these incidents and he explained that according to them when it comes to South Africa, inasmuch as he recognised that they are things like soft targets, but when it comes to South Africa he does not think that it applies because from tender age white people are taught how to handle a gun and as such the South African community is, white community is militarised and as such they are targets. And that was strengthened by one of the prominent white academics in South Africa, Gary van Staden. This appeared published on the Saturday Star of the 5th December 1992 and I would like to quote what he said. He was referring to then what was the first so-called on the white civilian soft targets, the Golf Club incident.
"While he could have articulated his position a little better, PAC Secretary-General, Benny Alexander was quite right to suggest that it was necessary for more white South Africans to die if the problem of political violence is to receive the attention it demands. While I remain aware that the next victim could be me, or worse my wife or child, we need to be logical and not emotional in addressing the issue of political violence.
Despite their protestation most white Africans and certainly the Security Forces and the Government, do not respond to the deaths of black victims with nearly as much passion as followed in King William's Town killings. To dismiss the thousands of township deaths as mere black on black violence is callous in the extreme and morally reprehensible.
Only when all South Africans respond with a deeply felt outrage and anger at each and every death, only when the media begin to print the detail of each and every death with the same depth as according to King William's Town victim, will the message begin to penetrate that we ordinary South Africans of all races gave no-one the right to murder in our name."
Chairperson and Honourable Members of the Committee, I think Gary van Staden sums up, though this was a very sort passage from what he said, unfortunately I wanted to lay my hands on the paper he presented in Harare regarding this aspect, where he was in the delegation of the media, journalists, BLA(?) to meet APLA outside, it's where he told them that even if I'm a victim but you have to hit at the white South Africans in order to, for them to realise that it is not only happening in the black areas.
So what I'm trying to get is that even some of the white people, I want to use that name to emphasise what I'm trying to put across, were aware of some of these things and they accepted that as it was put that directly or indirectly, white South Africans benefitted from the oppression of the black people. There is no doubt that there were those who were on the side, but because of the situation in which ...(indistinct) people were sceptical to accept that, because directly or indirectly he was a beneficiary.
And as such, Chairperson, it was, if you take now ordinary cadres who are not policy-makers, which I must conceded that sometimes it was even difficult to PAC to explain the whites, the name settler, and they were at pains when they are pressed to do that. Now would one ask a question, how much more to an unsophisticated member or follower or cadre who some of them did not go far at school when they have to interpret that and put that into operation.
And it's on that basis that you find that there were incidents like this, because they have to put into operation, they were told in simple language that the white person is your enemy. The only thing they saw was the colour.
It so happened that the people who were oppressing black people were white in colour and it's the same when it comes to black people who oppressed were black in colour. Because if you look at what was, APLA did in the early '60's and also late, that collaborators, even black policemen were killed because they regarded them as part of the system. Chiefs were killed by Pohko because he was a foreigner of APLA. Why did they kill them if their struggle was racist, instead of directing to the whites? Because they regarded them as collaborators. In that way they put them as part and parcel of the oppressive system.
And as such, Chairperson and Honourable Members of the Committee, it is therefore my humble submission that the cadres on the ground applied the policy to the letter and they were not policy-makers when it comes to decisions like this, that the person who was oppressing you is a white person and as such if you want your liberation and if you want your land, you have to kill them, you have to hit at them. That is the only way you will be able to regain your land.
Chairperson, I don't want to bore you with my submission. On that basis it is therefore my humble submission that the applicant, the remaining applicant, Phila Dolo should be granted amnesty as he has satisfied all the requirements of the Act under which this Committee exists. Thank you, Chairperson.
Again on behalf of the victims and as Evidence Leader, I would be failing in my duty not to address this Committee fully in this particular incident. My learned friend has differed from his usual address to the Committee and I'm going to submit, for good reason, because he's unable to raise the same arguments in this particular case as were applicable in other matters, for example like the King William's Town Golf Club attack or the Yellowwoods Hotel attack.
This particular incident, Mr Chairman, has a particular brutality attached to it which strikes at one of the elements of gravity, which this Committee must weigh as one of the many factors in whether granting or not of the amnesty.
Now understanding my learned friend's argument, and we've heard this and we understand the submissions, that it wasn't a racist struggle, it was a struggle against the oppressor, the oppressor was identified as a white person predominantly, whether that white person be a child, an old woman, an informed person or a young healthy person. There was not distinction as to who the oppressor was among a particular group. Oppression was associated with a white skin and visa-versa.
In this particular case not only do we have Mrs Brummer, a white woman who by all accounts could have been a Xhosa woman because she was accepted by the community of Sterkspruit, who spoke their language and who understood their culture, we have Mr Schroeder, a coloured man who by no stretch of the imagination could be identified as an oppressor. The evidence of the applicants themselves, Mr Dolo, was that Mr Schroeder was shot when the barrel of the high-powered rifle was put against his neck after the car in which he had been travelling was ambushed and he was callously executed in this manner.
There can be no question in the mind of this Committee that the applicants could have been under any impression that this was a white man who was an oppressor who deserved to die for the sake of liberation.
In addition hereto we have Mr Tsemane, and I want to make a submission in public that the act or the conduct of Mr Tsemane, with respect, was possibly one of the greatest acts that we've heard of in this amnesty process, where a black man gave his life to rescue, not only a white woman or a coloured man, but a human being, and he paid the supreme price. Was he an oppressor, with respect, was he identified by Mr Dolo as an oppressor? Mr Chairman, it defies credulity to attack that connotation or that argument to Mr Tsemane.
Mr Tsemane saw the madness, and I want to say madness, that occurred on that day where Mrs Brummer was running in the road and Mr Schroeder was running in the road, being pursued by armed gunmen. He stopped and picked up Mrs Brummer and was then attacked himself, he lost control of the vehicle and went off the road. Mr Chairman, this was never properly canvassed, one simply accepted that Mr Tsemane was shot in that exchange of fire, however on a closer reading of the record which was put us, that is the bundle, I want to refer the Committee to the statement which Mr Makuala had written in Sotho which was translated into Afrikaans before a Magistrate and then typed, but at page 33 of the bundle it will appear from Mr Makuala's statement, that after - and that is the first paragraph, if I may be permitted to quote, he called Mr Tsemane's vehicle the taxi. He said:
"The white people stopped the taxi. It stopped, they got in and it made a u-turn. Kenny said there should be no-one shooting because he wanted to aim at it. He aimed at it and said: 'I hit it.' I left my spot at that time. I was with them. I was with them when he aimed at the vehicle. The taxi turned but did not drive for a distance and fell into the bridge."
Now the Committee will be aware from the photographs that were handed up, that the vehicle left the road and landed up in what appeared to be a causeway of sorts. Mr Makuala proceeded to say in his statement:
"Soon another vehicle from Sterkspruit approached. Kenny said that I should hijack it for us to get away."
"He (referring to Kenny) told Roger and Totina to stand over the bridge to check whether no-one ran away. I then heard a gunshot. Kenny too ..."
"... went over the bridge and also shot. By that time I had already stopped a vehicle. Inside were three women. I told them that I was borrowing the vehicle and that they will find it in Sterkspruit."
ADV PRIOR: Page 33 of the bundle. It forms part of Mr Makuala's Form 1 or his amnesty application. It was the papers that were put up. It is the English translation from his statement where he describes it as "my ops", which was written in Sotho.
MR MBANDAZAYO: Chairperson, my recollection is that what he is reading at was for another bundle, that's why he never even canvassed himself during the hearing when Mr Makuala was testifying, because that's not the bundle.
ADV PRIOR: Well then I want an adjournment, maybe we should go there. Maybe it should be brought to the attention of the Committee because it certainly impacts on whether this Committee has received all the information relating to this incident. It certainly was supplied to the Committee because I'm reading from Mr Lax's bundle.
ADV PRIOR: Mr Chairman, I have it now. It seems that it was given to the Committee in respect of the Lady Grey Farm Attacks, but it was made by Makuala who was also involved in that matter. And if you recall, those bundles were prepared and distributed to the Committee and to Mr Mbandazayo at the commencement or before the commencement of the Aliwal North hearing. So they are before the Committee, it was just that we didn't hear evidence on that specific incident. I think because it occurred in the bundle relating to the farm attack, it didn't form specifically part of the Lady Grey/Herschel bundle.
MR LAX: Chair, I may be wrong, but my recollection was that some of those statements of Mr Makuala were referred to, he was asked about them at some point. I know in some of them certain portions were crossed out as not being relevant and then we looked at them again, but I stand to be corrected, I don't have a clear recollection on the matter.
MR MBANDAZAYO: Chairperson, I think so, it was at a certain stage because they were not relevant for the farm attacks then it appeared. It's when we were about to start farm attacks and these statements were there and they were not relevant, they were crossed out. But my point is that if it was put to him, because the evidence before the Committee is different to what Mr Prior is putting, and Mr Makuala was never given a chance to answer as to the difference between his version and the one which appeared on his statement, so we have that problem, to explain himself.
ADV PRIOR: Mr Chairman, the portion of Mr Makuala's statement to which I'm referring was not specifically put up in respect of this incident, but it was placed before the Committee as part of Mr Makuala's amnesty application in respect of other incidents which were set down at the same time in Aliwal North, although for specific incidents, portions of that statement had been crossed out. In other words, where portions of that statement were not relevant to the specific hearing at hand, those portions were crossed out.
My reference thereto is fairly simple and obviously I'm alive to the arguments of my learned friend, that if it wasn't specifically put, Mr Makuala's now deceased, what weight, but I submit that he can reply and argue that. I simply draw the Committee's attention to the fact that this information does exist, it is before you, although not specifically and formally before you, my submission is that the Committee can have cognisance of all information that's relevant to an inquiry as to whether a gross human rights violation occurred or not. Similarly we have insight into the PAC submissions of October 7, '97 where these are not specifically placed before the Committee by formal evidence. Those submissions were made to the HRV Committee and this Committee has insight and cognisance and can take those submissions into account. So I submit, on a very similar basis this Commission can have cognisance and take cognisance of that information.
Mr Chairman, quite simply the point I wish to make is that Mr Makuala in the statement, and he was cross-examined on this aspect in his evidence, as to the identity of the driver of the bakkie or the taxi as it was referred to, that is Mr Tsemane, and the indication from the applicants is that they were unaware that this was a black man, they were unaware that Mr Schroeder was a coloured man or looked coloured, or looked like a coloured person.
However, at page 32 of the bundle to which I refer to, and that's the bundle relating to Lady Grey Farm Attacks, it's on the actual first page of Mr Makuala's typed, that's the English typed translation of his statement, he stated that:
"Suddenly a taxi from Sterkspruit approached. It was only one person driving in that taxi, the driver who was a black person."
The point I wish to make then and to conclude on on that aspect is that at least if they were not aware at the time that Mr Tsemane stopped to pick up Mrs Brummer, then certainly when the vehicle had been shot at and had left the road, they must have been aware that Mr Tsemane was not a white person.
It would seem that Mr Tsemane could have been shot, and in all probability was shot at after the vehicle had left the road, if one then looks at the statement he makes regarding shots being fired from the bridge.
Mr Chairman, that then brings one to the question of proportionality. My submission is it is one case, it is one thing to say as APLA have consistently said, they were acting under orders, their information or intelligence was that a specific target was a sanctioned target. For example the King William's Town Golf Club, where in military style and with military style precision the club was attacked, persons were killed during the operation and there was the withdrawal.
I submit that this particular incident, with respect, can be distinguished on the facts. Here the applicants were not satisfied with simply attacking the target, being a white person driving the vehicle, in terms of their orders, but they went beyond that, they were not satisfied in injuring the persons, they proceeded to execute, to kill persons that had already been injured and that never posed any threat to them and could not have by their deaths, have furthered any political objective that they had in mind because by the initiating of the attack as they did, the political statement had already been made.
So in respect of this particular application, my submission is that Mr Dolo in particular has not satisfied the requirements of the Act, particular Section 20, and that he is not entitled, he has not discharged the onus that rests on him to satisfy this Committee that he is entitled to amnesty.
May I also mention, and this was also canvassed during the evidence, that after this specific incident they proceeded to the Sterkspruit Hotel where they robbed it. There an amount of R65 000 was taken and the evidence was that it was because they were hungry, they felt hungry, they went past there and they robbed the hotel. Surprisingly enough no-one in the hotel, which included the white manager, Mr le Roux, was not killed, he wasn't shot. That doesn't, somehow it does not gel with their earlier evidence that their object was to kill white people, people involved or identified with the oppression. And although that Sterkspruit Hotel is not specifically before the Committee, there's doesn't seem to be any explanation or any suggesting by Mr Makuala or Mr Dolo that that money was handed over to the hierarchy.
At the level of suggesting that they have not, in respect of the Herschel/Lady Grey Attack, they have not taken the Committee into their confidence. For example, Mr Dolo steered judiciously away from admitting that the vehicle which Mr Tsemane was driving was in fact driven by a black man and that Mr Schroeder in his view was a white person, I submit he realised the difficulty that he was in and steered judiciously away from that.
MR SIBANYONI(?): Mr Mbandazayo, before you reply I would like you to address the Committee on this aspect, the white person who was driving a 4X4, the one from the Telkom, was not killed, and then when I look at the evidence it is said that Dolo ordered Kleintjie to shoot at the car not at the white person and - ja, if you can cover that in your address, thank you.
Chairperson, the question of the evidence and the information, that is the statement by Mr Makuala, Chairperson, I have no qualms about the statement, that it was made by Mr Makuala, the only thing is that, my question is that how much weight should be attached to it because Makuala was subjected to a very lengthy cross-examination regarding some aspects of his statement, but none this was, which was the subject of the hearing to ask him to comment as to why his evidence is contrary to what he gave before the magistrate. That was not done and unfortunately there is no question that now he can be called to answer that. So that information was never tested.
Inasmuch as my learned friend is saying that this Committee should do as it did with the submission of the PAC before the HRV Committee, Human Rights Violations Committee, I think that information, that statement, submission of PAC was tested because those people who were there to make the submission were questioned lengthily about all those submissions, and as such it was accepted as part because they were required to do that.
With this statement of Mr Makuala one can raise many questions, as it did, that he was tortured by the police, it was not voluntary, all those things. There are many questions that can be raised with this statement. So it cannot be likened to the submission, the statement made by Mr Makuala.
Coming to the point that they were shot, these words "they were injured", I think they made it clear that their purpose was to kill, it was not to injure anybody. It may be the opinion of Mr Prior that he feels that this political statement was made, but to them that was a totally different matter, they had to kill those people and they did exactly that. And as such, the question of injuring ...(indistinct), their purpose, their mission was to kill and they did exactly that.
Coming to the question of Sterkspruit Hotel. With due respect, inasmuch as the evidence would portray as it if was after that, they were questioned at length. They went home, they went to their area after that incident. It was after that, it was not the same day that this happened. It never happened the same day, the question of the Sterkspruit Hotel.
And inasmuch as it was mentioned during the evidence, but it was not the subject of, though they were questioned about it and who was involved. I still remember it was because there were many names and these names kept on cropping up and that the name of Mr Dolo, Kenny, was there and where he said he was not there and ended up saying it was not Dolo, Kenny was not this Dolo. I still remember it in those things when he was questioned about the names which were there. He kept on changing the names, Mr Makuala, that it's not this one, he was making a mistake it was another incident. So it came during that time, the question of the hotel.
Now coming to the question of this 4X4, the other ... I think if I may, maybe the Honourable Member interpreted it as if he was saying he must just shoot at the car. My interpretation I thought that he was saying he must shoot at the car, at the person but who was driving the car. That's how I interpreted it, that the instruction to Makuala was that he must shoot at that car. So I interpreted it that he must shoot to the occupant of the car, but it may be interpreted the other way around. But my interpretation was that at the time when the evidence was led was that he must shoot at the person. But I think Mr Makuala indicated that I think he missed it, he was unable to hit at the car, but I think the instruction was, my interpretation, but I cannot take it any further, Honourable Member, if that's how you saw it. My interpretation was that I thought that when you're saying shoot at the car, you must shoot at the occupant together. He will shoot through the car in order to get the occupant.
The other last point I would like to make is that of Mr Tsemane. I think that was made clear by the applicants, that he was not part of them, it's only after they have shot at the car, because it was said that the view, since it was in the morning they could not see properly. And they indicated that it was not their intention to kill, but they did shoot at the car and it ended up falling on the other side of the, in the bridge. But I don't think we can make much about that, as if they did it, they saw him as he was reading at the statement. It's another thing to make a statement after the event because you have a knowledge now. They were aware a the time he was making a statement that that person who was killed was a black man, not necessarily at the time when the incident happened that he knew.
And these, Chairperson, are the dangers which I was seeking to avoid when I said, when it was not tested and the applicant asked about that you will have different interpretations about the whole matter. Thank you, Chairperson.
The other aspect. I would like some of these incidents, I would like the Committee to take into account is that some of these incidents, Mr Makuala was not arrested for, was arrested for another matter and they mentioned some of these incidents. And especially also Dolo, he made an application, he was never arrested, he was never any suspect, he just gave the information voluntarily. He applied for amnesty not knowing that he was involved in the whole of this matter. Thank you, Chairperson.
ADV SANDI: Can you have an objective for an act which has been committed accidentally? Is it possible to have a political objective if the act that was committed was not committed intentionally, in other words it is something that had happened accidentally? Is it possible to have an objective in those circumstances?
MR MBANDAZAYO: Thank you, Chairperson, through you, Chairperson. I wouldn't like to dwell much on that, but my interpretation with that, if definitely my intention, my objective was to achieve a political purpose with that, we know that there are many people who have been killed in the cross-fire and I think the Committee, inasmuch as this is not this Committee which was sitting. If I may, we had one of the similar cases which I think Mr Lax was sitting in one of the Committees which something like this happened in Natal, where a taximan was shot at accidentally and it was during this and they were granted amnesty.
We had similar incidents like this. And also an ambush of this nature, but none of the members of the Committee were present in Johannesburg, which happened at Vereeniging Road, where Zola Mabala who was an applicant in Heidelberg was also an applicant. It was the same like this, an ambush, and he was granted amnesty by the Committee. So we've had some similar cases of this nature which actually did take place.
MR SIBANYONI: Just a slight - on the same issue, Mr Mbandazayo, wouldn't you say the attack having started when Mr Tsemane assisted the people who were being attacked, one would argue and say he might have been perceived as interfering with the attack and also assisting the victims and to take it further, to say their action would cover that because at the time they started the attack they've already made an objective to say we are attacking these white people and now the action during which Mr Tsemane was injured can be regarded as arising out of the one and the same act?
MR MBANDAZAYO: I wanted, I was tempted to use that argument, but I had this slight problem that it is alleged that if there was evidence that at the time, as my learned friend was arguing, that he was assisting he saw these people were stranded and had to assist, my argument was going to be like this, but I refrained from that because there was no evidence to that effect. It may have been that they regarded the person who was assisting as part and parcel, as a corroborator or whatever nature, that he's trying to save you know, the target, their target and as such he ended up being one of the targets also, as a result of that. But Honourable Member, I agree with what you are saying, that's another possibility.
MR LAX: Mr Mbandazayo, I still don't feel you've addressed the issue of proportionality sufficiently. Even if the intention was to kill, what was their direct political objective? I just would like you to be clear about that. And then in relation to that, the proportionality aspect. Can you just help us there? Because it's one thing to talk about white people being fair game so to speak, in terms of no distinction between soft and hard targets, I understand all of that, but these individuals had a specific objective in mind and I just want you to address again that objective and then in relation to that objective, the proportionality of these killing.
"We wanted to drive them away as they were doing in the farms, that we wanted to create liberated areas where we can operate in order to launch further attacks."
Now coming to the question of proportionality. Through you, Chairperson, I'm always, there's one point which I'm always having difficulty to address and one would always ask in proportion to what? Because what I'm - my argument is always and again I will use the same argument that this question of proportionality it's my argument, I may be wrong, that it should be applied to the policy-makers. The policy-makers are responsible for that.
For instance, if the authors of apartheid, if I may make an example, the Parliament makes but it's not always the case that legislatures are the people who are applying that, ordinary people on the ground were applying it differently. But if you look broadly you find that this emanates from somewhere and the reason why they were that, they know that they are protected because this is covered. And as such you cannot then punish those people who are applying it, saying look it must be applied to them. That's my argument, that proportionality should be applied to the people, to the policy-makers who are responsible for that, not the ordinary foot-soldiers.
MR MBANDAZAYO: Yes, he was not a foot-soldier, he was a regional commander, he was identifying the target, but at the end of the day the final decision did not lie with him. As you can see in the record, he has to seek approval first and after that he has to report that here is my target. He was not doing without seeking the approval first to show that he cannot do as he likes, that must be approved.
If you still remember, for instance there was an exchange to that effect: when did you phone? It was after another incident. I phoned earlier to inform that there was that there was that, hence there was that commotion in Aliwal North. It was because of those things. That he has to seek permission and after that he has to again report about the outcome.
MR MBANDAZAYO: Although he has ...(indistinct), the target was identified by him but at the end of the day if they policy-makers had said look, you can't do that, definitely he can't proceed, then if he proceeded then he can be held, he must be the person who must be held responsible. Thank you, Chairperson.
ADV PRIOR ADDRESSES: Mr Chairman, Mr Mbandazayo has been given an opportunity to address you on other matters. If at the end of it if I may just be able to make a closing statement on behalf of the victims.
ADV PRIOR: Mr Chairman, I don't think we should confuse the issues here. We all understand that APLA was operating as a military organisation and they had specific targets and objectives for a specific purpose. And even for example, if one looks at the attacks on motorists at the Mayaphuti Bridge, and even if one accepts that white people going about their normal business were legitimate targets, the question of gravity and proportionality must feature in the final analysis because APLA, as we've heard in the submissions, weren't an undisciplined organisation, they had structures, they regarded themselves as soldiers. In terms of their own 15 points of conduct they weren't able to mistreat captives or prisoners and their own rules made provision for that.
Now Mr Schroeder who had been injured seriously, shot through the body, lying there, to have his head blown away as it was, or Mr Tsemane who was assisting Mrs Brummer who had been shot or injured, I submit it goes beyond what a soldier does, it goes beyond the objective. They had achieved their objective, it wasn't necessary, it wasn't justified, it served no political purpose or objective to execute the people as they did. And that is the question that Mr Lax has properly put, therein lies the proportionality, that the deaths weren't justified in those specific circumstances.
And understanding everything that has been said and understanding about the way they operated on the ground, we have understanding to that, but once they had finished the attack it seems that the people were in a very callous and cold-blooded manner dispatched, when it was totally unnecessary to do so. So I submit that that is a factor or a feature that this Committee must bear in mind and must strongly weigh against the simple statement that we were carrying out orders and we had no ... Mr Dolo was the regional commander, he wasn't a foot-soldier as has been correctly pointed out, he could decide. They went on training runs, as the Committee heard, they tested their weapons, they were able to withdraw, they were able to choose, they weren't simply robots carrying out orders under pain of death. Thank you, Mr Chairman.
ADV SANDI: Sorry, Mr Prior, can I just ask you to explain this. Are you then submitting that maybe one at the end of the day, has to draw a distinction between Dolo and others, Dolo by virtue of the fact that he was the commander?
ADV PRIOR: Well certainly Dolo on the evidence occupies a far stronger position and a far more responsible position than his comrades, I mean he was in charge of the operation. He could tell them where to go, he could tell them to withdraw or not, to shoot or not. And in fact because we don't have a clear chain of accountability further up, because we know that APLA chose targets or allowed the local commanders to choose the targets, what they were doing was part of a broad offensive but there is not clear line of accountability beyond Mr Dolo except for example, Mr Letklapa Mpahlele who says well we accept responsibility because it was part of, he never gave a specific order to do that specific attack.
So Mr Dolo chose the target, he must ultimately be responsible for that decision and everything that flowed from that incident. And possibly yes, he may have a greater degree of moral accountability than for example, Mr Makuala or the others who were simply there to carry out instructions. Thank you.
ADV PRIOR: Well we know Mr Tsemane was the breadwinner and he leaves a widow. The children are all adult and employed, so strictly speaking Mrs Tsemane would be the victims or the survivor, would be directly.
ADV PRIOR: That is so. We only had one Mrs Tsemane at the hearing in Aliwal North, but possibly if the Committee could rule that the wives of Mr Tsemane be referred to the R&R Committee for consideration, because if they're wives in terms of a customary union then I would submit that they all equally must be victims or dependants.
ADV PRIOR: We have the matter of Mr Gqomfa which involves the death of Mr Smit and the injury to Mr Fransen(?). That was at the Mayaphuti/Zastron Bridge. And then we have one of Mr Dolo, also at the Zastron/Mayaphuti Bridge. Now that involves Mr Griesel. Mr Griesel was not killed, he was injured in the attack. Mr Chairman, I think that one is a straightforward matter in the sense that the evidence is before you. I don't have any submissions to make on the various aspects of the requirements of the Act, so I leave that in the hands of the Committee. Obviously Mr Mbandazayo can be led by that, that there's no opposition formally on behalf of the victims on this matter, which would then leave us with arguing Luyanda Gqomfa and the Mr Smit murder. I would like to address specifically on that aspect, or that matter.
I hope I've made myself clear. The Zastron/Mayaphuti Bridge involving Phila Martin Dolo, AM 3485 which was heard on the 28th of April, I don't have any address and that may assist my learned friend not to take too much time with his argument.
MR MBANDAZAYO: Chairperson, what I wanted to say, I was going to say in this matter, I think it is on ...(indistinct) the one which we argued, except that no person died. I think the reason would be because they held fire from that because they realised that there was a black man in the car, I think that's the, so they did not proceed with that. So that's what they did. Because when they saw that, they started firing when it was nearer they could see that there was a black man so they decided to abandon the whole thing.
ADV PRIOR: Mr Chairman, my information is that Mr Griesel went into a very deep depression after this attack. He got shot through, I don't know if it was the neck or the face, and after that he lost his job and thereafter in that state of depression, my understanding - I haven't seen a psychiatric report, my understanding from the investigating officers and the, I think it was Mr Griesel's widow who is now remarried, was that he never recovered fully from this particular incident. So he possibly was a victim and the dependants may well be, but I understand she is now remarried.
ADV PRIOR: Yes, I'm unaware whether he had children, but if it could be referred and if there are no dependants then obviously then the R&R Committee would decide that and that would be the end of the matter but possibly to be safe, maybe the Committee could make, in the event that there are dependants of Mr Griesel ...(intervention)
CHAIRPERSON: Well should we make the finding that in the event firstly, that there are dependants of Mr Griesel and that his suicide was in consequence of the injuries he sustained during this attack, then we think that such dependants should be referred to the Committee.
ADV PRIOR: Thank you, Mr Chairman, I'm indebted to the Committee. Sorry, there are two others. If you look at page 2 of the evidence, there was a Mr Tladi(sic) and Mr Delene who were with Mr Griesel at the time. Also to the extent that they may have been affected by this incident, may they also be referred?
MR SIBANYONI: ... had cut marks on his face as a result of the glass, abrasions, pieces of bullet that hit the glass that caused the injuries, but there's no indication from his evidence that there was any lasting consequences of this, Mr Chairman. I think he indicated at page 62 of the record that he was shocked.
CHAIRPERSON: It appears that Mr Mjale, T N Mjale also suffered injuries in the course of the attack, the burning sensation in his arm and damage to his face caused by broken glass. We have evidence before us as to any permanent injuries sustained by him, but in the event of there having been any he would properly be classified as a victim and we accordingly refer him to the Committee for them to investigate the question fully.
My argument, because these incidents are similar which we heard today, will be the same which I used before in the case of Makuala and Dolo. I still want to use the same argument. So my argument is on all fours with the one I used there, with the exception of that in this one I would like to add that for the first time in the hearing we had one which the man who has been always in the forefront referred to, that he gave approval, was actively involved in this one, Letklapa Mpahlele.
MR MBANDAZAYO: Exactly, Chairperson, he was there, he commanded this time, he did not even give an order from there, ask approval, approved the operation. He was there personally and he personally commanded and he personally executed the ...
MR MBANDAZAYO: Chairperson, I wanted just to add that aspect on this one, that the man always referred to this time was personally involved in this incident. And that, Chairperson, it is therefore my humble submission that Luyanda Gqomfa be granted amnesty. Thank you, Chairperson, unless there are questions which the Committee would like to pose.
MR LAX: Mr Mbandazayo, just in this regard I'm pretty sure Mr Prior will raise this so you may as well just address it now so that he can then reply to it later, the question of gravity and proportionality will come up again in relation to the killing of Mr Smit.
MR MBANDAZAYO: Chairperson, exactly. I think I will advance that argument. I won't have any qualms if Mr Letklapa was an applicant here, he was present also, he made submissions. I won't advance any argument because he was a policy-maker, definitely a top man. Then I wouldn't have any qualms when you talk about proportionality when it comes to him because definitely he was a decision-maker, he was not (sic) part and parcel of the decision-making in the APLA as person who was having high office and given that responsibility to direct operations. So definitely he was there - when it comes to him.
But when it comes to Luyanda Gqomfa was a foot-soldier and he was commanded by him, instructed him to do that. I would definitely, Chairperson, also advance the same argument that when it comes to him at least the proportionality and the question of gravity should not be applied.
MR MBANDAZAYO: Yes, Chairperson, exactly, that is correct what you are saying, it's correct. But what I am saying is that there were these structures, there was a High Command but some of the members of the High Command which were having certain positions, like for instance if we take the Defence Secretary who was a member also of High Command, was also a member of the Military Commission. It's the same with the question of when it comes to Director of Operations because he's the man whose always charged, he should be there.
MR MBANDAZAYO: Yes, I agree with you there. What I'm trying to say is that they were represented. It's just like - if I may make an example, like if you take for instance in a university where you have, in a university where, if you take the senate where you have members, heads of the department, professors and all the like, they are there, a part of it, not all, everybody, though some are having a higher position. It's just when you come to the council of the university you have the rector there, you have certain members of the administrative structure of the university, part of the council which is a policy-maker of the university, but they have their own separate structure which has nothing to do with the Military Commission, which is the High Command.
MR MBANDAZAYO: Thank you, Chairperson. Yes, I think it was also confirmed by one of the witnesses who even said that he was trained and that he even that it would have been a different ball-game if they had weapons.
CHAIRPERSON: Well he went on to say that Mr Fransen - "as the shots were firing I was just rolling and going off like we were trained to do in the army"
So he have legitimately have come to the conclusion from ...(indistinct) - these were trained soldiers. He could have come to the conclusion from observing them as they ran that they were trained soldiers.
MR MBANDAZAYO: Yes, Chairperson, that's what he told the Committee, that the way they rolled when they were shooting he could see that these people were trained and then it was confirmed by Mr Fransen that that was indeed the case.
MR MBANDAZAYO: I think, Chairperson through you, it was a general knowledge they had that they have that notion that all white males, white people were trained militarily since they have that notion that it's militarised.
MR LAX: With the greatest of respect, Mr Mbandazayo, they had this notion that it applied to all white people, from a small age onwards. Of course that was a very erroneous notion, but some white males were trained in fact. And we'll leave that as ...(intervention)
"I'm saying that before I did not know that they were trained, but at the time we were shooting ..."
ADV PRIOR: ...(indistinct) he shot Mr Smit out a feeling of hatred towards him. That was the evidence. He may have said Letklapa said "shoot him", but that wasn't the compelling reason. And then if I may just start my argument in an ordered fashion.
This Committee must also decide properly, in terms of Section 20.3, whether Mr Gqomfa has satisfied those requirements. Now he's told us about his motive, which was the liberation of Azania and that entailed the killing of white people across the board, because we know what he did in Heidelberg. I submit that that can be distinguished in this particular case again. And Mr Lax has already identified the difficulty in this case, and I will emphasise it as the question of gravity and proportionality.
Now it can't be argued, and the Chairman has correctly pointed out they had no idea whether these occupants of this vehicle were military trained or not until they alighted and were running for their lives. But how does one accept the veracity of the entire basis of the motivation of Mr Gqomfa when one of the occupants is a black person and must have clearly have been visible. When the car was coming slowly across the Mayaphuti Bridge - we're seen the photographs, it's a narrow bridge, in fact there's a stop street on either side of the bridge, there could have been no doubt in Mr Gqomfa's mind that here in the car was a black person who the orders were not to kill. But nevertheless they shoot at this vehicle in order to bring it to a standstill and they succeed, reckless or not, whether the black person who was not their target would be killed or not, and I think it was only a miracle that this person was not in fact seriously injured or killed. Then we deal with the situation that Mr Smit who was badly injured, was shot through the legs, the upper legs, was unable to get away, he crawls a distance away from the vehicle and he is in a sitting or crouched position next to the road when his attackers come up to him.
The Committee will recall that Mr Gqomfa, after some probing in cross-examination, conceded that the man may well have been pleading for his life before he shot him in the chest with a high-calibre and high-powered rifle. Whether the shot of Mr Letklapa was necessary in the circumstances we don't know, possibly that was the coup de grace. But in any event, my submission is that cannot be associated with any political objective or any known political objective as stated by Mr Gqomfa.
Another aspect which this Commission cannot ignore, or this Committee cannot ignore, was whether the act, omission or offence was committed as part of any political uprising, disturbance or event or in reaction thereto. This occurred during 1992 at a stage when all political parties were unbanned, they were all participating in the democratic process. In fact it was not via the efforts of APLA that liberated this country, we all know as a fact that it was through negotiation and through parties sitting down and putting aside their prejudices and differences, that the democracy was born.
ADV PRIOR: What I'm saying is, Mr Sandi, is that after the release of Mr Mandela in 1991, or 1990, soon thereafter there was an unbanning of all political parties that were previously unbanned, which included the PAC and which included, well obviously the organs, but whether APLA continued with whatever operation, I'm not alluding to that, I'm simply saying there was a vitality in the political life of this country which hadn't been witnessed before. So what I'm saying is that what we hear in this application is simple political rhetoric, that they had to liberate this country through the barrel of a gun. The country was liberated, as we know for a fact, through negotiated settlement. So the killing of Mr Smit, and I urge this Committee to consider this, served no political objective.
MR LAX: Well, Mr Prior with the greatest of respect, APLA continued its armed struggle until a year later in fact. The date exactly at which that armed struggle stopped is a matter for debate, some people will say it was December '92, others will say it was January '93, but be that as it may it continued. It's not to say that PAC weren't part of the negotiations, they were in fact part of the negotiations but they were continuing both the struggle and involved in the negotiations. If we were to accept what you're arguing at present then every APLA operation cannot be politically justified, and in fact that's not been the finding of the Commission as a whole and that's not been the finding of the Amnesty Committee in general terms in respect of many, many such operations. I think if we confine ourselves to this matter in isolation, we might run the risk of blurring the issue somewhat, which I think is what is happening here.
ADV PRIOR: I'm alive to what you are saying to me and I'm not trying to conflate or to confuse, what I'm saying is that the death of Mr Smit and these particular circumstances. I'm not saying, I'm not arguing that the broad operation of APLA didn't serve a political purpose, I'm talking about the specific manner in which Mr Smit was killed, that that event, that act, served no political purpose, and it's for the applicant as an individual to show to this Committee that it did serve such an objective. That is what the provision of the Act, of the Section enjoins this Committee to find.
ADV PRIOR: Well was he following orders, with respect, on the evidence? When one reads his evidence, he doesn't, he was asked specifically whether he acted out of hatred as he had indicated or was he following simply the order of Letklapa Mpahlele. He never ...(indistinct) strictly following the order of Mpahlele, he went on to explain that we shouldn't confuse hatred for the white man, it wasn't racism, it was hatred for the oppressor. So he was given an opportunity to clarify that and he never took that opportunity.
ADV SANDI: Ja but at the end of the day the fact remains that he was a member of a military formation which had as its policy the policy of attacking whites. This was their policy, whether I like it or not there's nothing I can do about it, but this was their policy.
ADV PRIOR: May I, with respect, attempt to draw a comparison. How does it really differ from the Donne Meyers matter, where as a white person and as a symbol of oppression she was an enemy of APLA? She was taken away from the spot where her father was killed and she was later despatched. We know that she may well have been injured to some extent in the initial shooting, but she was executed in a certain manner away from that spot.
Mr Smit had been injured in the initial attack in that operation, but because he couldn't get away he was executed in a cold-blooded manner which was totally disproportionate to what the attack was about.
ADV PRIOR: I'm arguing, with respect, that there is no proportionality when one looks at the manner and the gravity involved here. One can distinguish it from the other type of attacks where for example, the operation was carried out and people died or were injured and they withdrew.
My submission is that the operation ended at a certain stage. What they did to Mr Smit went beyond that, he was injured, he was executed, it served no political objective in those circumstances as far as the applicants were concerned.
CHAIRPERSON: So you are saying if APLA wants to kill people and serve a political objective, they must do it with the first bullet? Is that your argument, that it serves no political purpose if they had to shoot him twice?
ADV PRIOR: Yes, murder by one bullet, with respect, or murder by a prolonged or sustained assault is another thing. We've heard evidence in other hearings, in the Cradock matter, where people were over a period of time tortured. I'm not saying Mr Smit was tortured to that extent, but there are degrees of conduct, there's degrees of, and that's why the requirement is one of gravity, is that how grave is the act?
MR LAX: Doesn't the requirement of gravity go to the issue of the gravity of the crime, not just the way in which it is committed? The way in which it is committed would to my mind go more to the issue of proportionality in relation to the object to be achieved, how they carried out the offence, what methods did they use etc. You see, Mr Prior, it's quite clear that these, Mr Gqomfa and his colleagues, if they'd managed to hit those guys who were running away they would have killed them.
Now when - I was looking for the portion here, somewhere Mr Gqomfa was asked about what he would have done and whether he felt any, whether he had any feeling for the man before he shot him. I can't remember the exact place, but the simple fact was he said: "look, I was a soldier, I had a job to do, I did it." If I paraphrase him not quite correctly I apologise but it was words to that effect. Does that not keep it within the realms of the political object, if you like?
The last aspect which I wish to draw the Committee's attention to is that the object or objective of the act which was directed, that is (d) of (3) of Section 20, is whether it was directed at a political opponent or State property or personnel or against private property or individuals. I think therein lies the question of proportionality. I have no further submissions.
ADV PRIOR: Mr Chairman, if you'll just bear with me please. The widow of Mr Smit was represented by Mr Jan Wagener I see, who never appeared on the last occasion and that was fully canvassed. I ask that Mrs Smit be referred to the Committee on Rehabilitation and Reparations.
MR LAX: One of the other people was injured, he was shot. He had his one finger shot off and he was shot in the side. Was that Fransen or the other person? If you'll bear with me I'll find it for you. It was the other person, Mr Martin.