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Type AMNESTY HEARINGS
Starting Date 02 November 1999
Names ABSOLOM MADONSELA
Case Number AM3131/96
CHAIRPERSON: Yes, thank you. As mentioned just prior to the lunch adjournment, we will be commencing with the hearing of another application now, Mr Motepe indicated that that will be the application of Mr Madonsela. Mr Motepe?
CROSS-EXAMINATION BY MS LOCKHAT: Thank you Chairperson. I want to start with the first incident, that is on the 30th of May 1987, where the two Municipal police officers were assaulted. Can you just tell us, you said that Dingaan gave the orders. Did he just give you the order, or was it for Finnias and your brother as well?
MR MADONSELA: Dingaan and Veyi. I would just like to explain about Dingaan and Veyi. Dingaan was the senior Commander and Veyi was second in command. On the day of the operation, Dingaan is not the person who issued the order, but it was Veyi. In my application I said it was Dingaan for the reason that Veyi is now late. He passed away in 1988. When I followed the TRC hearings, I heard that many comrades implicated Chris Hani as the person who issued orders. I thought it would be wise for me to name someone who is still alive, who can confirm about the operation because at that time, Dingaan was outside the country, but when he returned, Veyi did report to him about the operation, that he had issued such and such an order and it had been fulfilled. He also showed him the firearms that were obtained from that operation.
CHAIRPERSON: So when you say in paragraph 3 of your statement that an order was issued by Mr Dingaan Mdlalosi to disarm the guards and drive you, you are basically saying that he only ratified the operation after it had been finished, but Veyi Tshabalala in fact gave the order prior to the operation?
MS LOCKHAT: And was Vincent Tshabalala as your Commander, was he happy with that incident, was he - did he authorise the shooting of the policemen and so forth? Did you inform him that you did in fact shoot the policemen?
MR MADONSELA: The order as such did not specifically mention that we must shoot at them, but that we should disarm them and then drive them out of that area, after which we would turn on the lights, that they switched off.
MR MADONSELA: When we explained how the operation went, he questioned as to why we had to shoot and I responded that as a trained person, if I point my firearm at somebody who is also trained, and someone who is also armed, you should try and act before that person does. When we approached them and pointed our firearm at them, one of them went for his firearm and that is how it came about that I also fired a shot at him. Thereafter that explanation, he was satisfied.
MS LOCKHAT: So tell me, and then was your mission accomplished, did you quickly switch on the electricity again, was it normalised after that? Did you have any problems in relation to the switching off of the electricity again?
MS LOCKHAT: I want to come to the incident at paragraph 4, where you were found in possession, where you were carting the guerrillas around and you were found in possession of a stolen vehicle. Can you tell us whose vehicle that was, where did you obtain that vehicle from?
MR MADONSELA: My elder brother was involved in stolen vehicles. When I got involved with MK, I realised that the comrades required transport to move around the country. Most of them were from the 76 detachment. My brother who used to be involved in stealing cars, was informed by me of the operations and eventually he also got involved in the ferrying of comrades from areas like Rustenburg in the North West Area. I would pick them up from there and transport them to Soweto. Those were the cars I used and they were stolen by my brother. I used them for security reasons.
CHAIRPERSON: Mr Madonsela, why didn't you mention this car - being in possession of stolen cars? I see in your affidavit you apply for your arrest and conviction in respect of being in possession of a stolen car, after your arrest in 1987 and then again during 1993, you were again found in possession of a stolen car. Why didn't you mention any of that in your application form?
MR MADONSELA: The shooting of the policemen resulted from an order that was issued by the Commander. The stealing of a vehicle, was not from an order issued by a Commander, but it was stolen by my brother.
MR MADONSELA: As mentioned earlier, there was a need for transport that would ferry them and we decided upon using stolen vehicles and I would inform them as to where the vehicles came from, because they also enquired as to whose vehicles those were.
CHAIRPERSON: What was the charge, can you remember? If you cannot remember, tell us? Was the charge theft of a vehicle, or was the charge using a vehicle without the owner's consent or do you know what the actual charge was? Was it theft?
MR MADONSELA: He returned from Angola in 1991 and he visited me in prison to inform me that he had received indemnity and he was also surprised as to why I had not received the same, that is also the reason why I decided to escape from prison, and apply for indemnity when I am already outside the country. I did not receive any response as to whether my application had been turned down or what.
MS LOCKHAT: And then you said that a friend of your brother's, gave you this Nissan bakkie and you were going to use this bakkie to go to Zambia and to leave the country. Did you know it was a stolen vehicle?
JUDGE DE JAGER: Must we entertain that application at all, was it timeously made, was it connected as a - can you apply for amnesty after the cut-off date? There was no indication of this offence before?
CHAIRPERSON: My reading of it and I have just read it again now, is that the application is really just about the electrical sub-station, switching the lights on, shooting the two policemen, taking the guns. There is no hint of anything else.
CHAIRPERSON: Sorry, there is just one thing I cannot understand, I think this must be a typing mistake, because you say Vusi stole a motor car and he then gave it to you to use to get out of the country, and then you say
I mean that is a contradiction, first of all you say Vusi stole the car, then you say you told the truth to the police and informed them that Vusi knew nothing about the car, what is the situation? Do you see that Mr Motepe, it is paragraph 5, just above conclusion?
"I then approached a friend of my brother for assistance in terms of transport. He gave me a Nissan bakkie and informed me that it had been stolen two weeks before."
MR MOTEPE: All right. Mr Madonsela, you testified that at some stage, some stages, you used stolen vehicles. Can you explain to us what the motivation was of using stolen vehicles as opposed to borrowing a car that was being owned by someone legitimately, so that you can go and carry your mission, why did you opt for these stolen cars?
MR MADONSELA: We used stolen vehicles, so that they could not trace us after for instance carrying out an attack. For example if they could identify or if somebody identified the registration number at the scene of the incident, then they would not be in a position to trace it back to us.
JUDGE DE JAGER: Sorry, you are saying so that they could not identify you when you were carrying out an attack, but you only carried out one attack and that was on the electrical sub-station and you went there by foot?
MR MOTEPE: Perhaps if I can assist, my understanding was that he was saying that was the motivation behind using stolen vehicles, not that at the particular stage they were arrested using them. It is true that they went on foot to the sub-station, but the motivation behind using the vehicles, was for an eventuality that they were arrested or something of that sort, so that there won't be trace of the owner of the vehicle. Mr Madonsela, but after using these cars, what happened to them? What happened to the stolen cars?
MR MADONSELA: After an operation, we would normally dump them at freeways because if you carry out an operation and you are found in possession of a stolen vehicle, that will link you to that operation. So we will take those vehicles and leave them in a busy road, say a freeway so that they be found.
JUDGE DE JAGER: I still don't understand this last answer of yours, because if you didn't take part in any operation, then there was no need to leave the car on the freeway. Now you used a few cars, were there then in fact other operations you took part in, and you left the cars after the operations, or what is the position?
MR MADONSELA: By this word operation, I am also referring to the collection of cadres from Rustenburg to Soweto. Those are the sort of operations I was mainly involved in because I was in the Transport Department. Therefore after collecting those comrades, I would leave the vehicles on the freeway.
ADV SIGODI: Just on the incident at the, to the two people who were shot. There is a statement here by Mr Skweni on page 15 of the Bundle, paragraph 2, he says that, I think this is the statement that he made to the police for the trial
"I just heard the voice "staan vas" and the person shoot at me. I fell down and when I woke up, I found that my firearm was taken away. I managed to run until I fell down again, the person shot me at the stomach."
MR MADONSELA: It was somewhere on his body as the applicant is indicating, because when I told him to stand still, and he tried to reach for his firearm, I shot immediately. So I am not sure just exactly where I hit him.
MR MADONSELA: The second person lay flat on the ground and after Finnias had removed the weapons, he said "you did not shoot this person", and I told him that we must leave and on saying this, he shot at this person with the same firearm that he had removed from them. I learnt in court that that person was shot on the thigh.
MR MADONSELA: As I mentioned before, the order was not that we should shoot, but - because Finnias had already carried out the act, there was nothing I could do. I could not dissociate myself from the act.
MR MADONSELA: That is true, but as a soldier, he also took the initiative. It must have been, it might have been that he thought for security reasons, it was better to shoot at this person, and there was nothing I could do after he had carried out the act.
MR MADONSELA: Yes, I would accept that because we did not receive such an order, but I also had to shoot because the other person was reaching for his firearm. The second person lay flat on the ground.
CHAIRPERSON: What were you doing in the Transport Department when you were 16 years of age? Wouldn't it be ridiculous to place you in the Transport Section because if any Traffic cop stops you and ask you for your driver's licence, you won't have one? And now you are saying you are driving all the way up to Ndola, carrying guns and comrades and things and you are 16? Who put you in the Transport Section when you were 16?
MR MADONSELA: I did not drive from Ndola, but I only drove inside the country. With regards to the police, the order that was issued to me was that I should not stop. So even if I met one, I would not stop, I would just drive passed and find a place where we can desert the car and flee.
MR MADONSELA: While I was still very young, I think I was 12 years old when I was arrested, when I was arrested for driving without a licence. I was driving my father's car at the time. My brother was a mechanic.
CHAIRPERSON: Well, I will check it up on the map, but as far as my knowledge goes, Ndola is way up north in the Copper Belt, hundreds and hundreds, if not thousands of kilometres from Lusaka. I have been to Ndola, but many years ago, but I remember it wasn't next to Lusaka. What do you say to that?
MR MADONSELA: As I mentioned before, he used to assist us with transport, so even on that day, I had to collect him because the guards had big firearms in their possession. We did have a vehicle that we had parked a distance away from the spot.
MR MOTEPE IN ARGUMENT: Chairperson and members of the Committee, as far as the offences relating to the vehicles, I can find nothing in the Act that will allow us to launch an application at this late stage and without in fact, having filled Annexure A ...
CHAIRPERSON: Yes, it seems, I think one of the difficulties Mr Motepe is, if an offence is omitted from the form, which is linked up to the offence above, or it is not really a problem, like for instance, if the applicant applies for amnesty in respect of murder and it turns out that in the evidence, that the victim was shot during the course of a political operation with a gun that wasn't licensed, you know, having that licensed gun, that is sort of intricately linked with the act, but if somebody applies for some other offence that has got nothing to do with the incident applied for, then there is a difficulty.
MR MOTEPE: I do consider we do have a difficulty at hand, so perhaps one should just limit himself to - that is correct - 1987. It is the evidence of the applicant that on this particular day, he had specific orders, he was acting under orders and we would know that around that area, we had a situation where they ran boycotts around the country, and as he explained in his supplementary affidavit, there were dangers for them to be caught in such dark situations where electricity was not activated. They were easy targets for the Security Branch and one would even add that even criminal elements would roam easily, and they ...
JUDGE DE JAGER: Sorry, I think you could accept we wouldn't have problems with going there in order to switch on the lights, even if it meant assaulting the people there. I think that we would, or speaking for myself, I would consider that to be associated with a political objective. My problem would be if they had been ordered to disarm the people, was it necessary to kill them after he had been disarmed?
MR MOTEPE: Yes, it was just attempted murders. The situation was that when they arrived there, the guards were obviously armed and there was a rifle at view, and when the guards were ordered to "staan vas" as they were ordered, one of them attempted to grab the rifle. Logic would tell us that a security guard in that situation, realising that he is in danger, he was going to shoot.
MR MOTEPE: Yes. It is a situation that did not require a Commander to come and say "now shoot", he was far remote at that particular time. It was an emergency, if one can say so, he was faced with a situation and he had to, in my submission, he had to do it. Had he not done it, he wouldn't have accomplished his task of firstly complying with the command of reactivating the sub-station. So yes, the shooting at that particular time, although there was no specific command on the shooting, in fact there was a command to an effect "do not shoot", just disarm and drive them out, but they were faced with a situation, they had to shoot and that is what they did. In my submission ...
MR MOTEPE: Not at all. In fact it has been part of our history that people in the communities were ordered, comrades were ordered or told to go and disarm policemen and they used to kill those policemen in order to get those arms. It was almost a similar situation, the Commander couldn't have, he never perhaps foresaw the situation, but couldn't have wished away the fact that there might be a shooting. Once you talk of disarming a person who is trained and armed to guard a particular place, you want to remove him from the place and you want to take his arm, obviously he has to comply with his orders himself.
MR MOTEPE: That is correct. And all the incidents emanating from this particular occurrence, in my submission they do qualify as politically motivated. What other motivation would they go and want to switch on the power station, was it only for their homes? No, but for the community at large, with a clear command from their Commander. In my submission, on this particular occurrence, the applicant does qualify for amnesty.
MR MOTEPE: In a sense it is, but if one looks at the supplementary affidavit, they reached a stage where they both thought that the one who was shot, was dead. The other one who was alive, obviously had a chance of looking them in their faces, and he was going to be a danger, after this, and one would accept that ...
MR MOTEPE: Precisely. He might identify them and lead to their subsequent arrest and convictions. For that particular reason, although one is sitting here looking at it, it looks as though it was disproportionate, but it is very clear that it arose from that particular incident, and in order to quell whatever leads that might be endangering them. It is my submission that it is in that context that that particular shooting happened. In my submission therefore, the applicant at least as far as this occurrence, has made a full disclosure and he does qualify in terms of the Act. Thank you Chairperson.
MS LOCKHAT IN ARGUMENT: Chairperson, I concur on almost everything my learned colleague had stated in this application. It is an issue which Adv Sigodi did raise, that once these two policemen were disarmed, one was laying flat on the ground, the other one was already shot. They could have left at that stage, and just left and hoping that they would not be recognised, but it seems that it was an issue for the applicants, at that stage, that they might be identified by the policemen. The fact that, it doesn't seem as if they were good shots either, if they even wanted to kill both the policemen, because the one was shot in the stomach and the other one in the leg. I mean it just so happen that they also did identify the applicants. The fact that this applicant also associates himself with that act by Finnias, is important. He associated himself with the continuous act, by Finnias, and his reason for shooting the policemen was because he was afraid he was going to be attacked and shot in return, where Finnias had another objective, maybe this applicant didn't go that far to think that "look, we might be identified" and Finnias then took it a bit further, and asked him "did you shoot the person", that is what the applicant stated, that Finnias actually asked him whether he had shot the person and he said no, and then Finnias just continued the act.
MR MOTEPE: Chairperson, concerning other matters, one of the applicants, I was only able to consult with him this morning, and even then it was not a full consultation. The other applicant as I have indicated in the chambers, there is some difficulty with his evidence, I was still trying to sort it out, and find out exactly what the real story is. I would perhaps ask the Commission to, I have already discussed that with Lynn that perhaps we should continue tomorrow. We will be able to finalise all these matters tomorrow, if that will please the Committee?
CHAIRPERSON: Yes, thank you. Mr Motepe has indicated that he would like a bit of time to take further instructions from his clients in these two remaining matters in which he appears. It is now after three o'clock, he has asked whether we could then commence tomorrow morning. His request does not seem to be unreasonable and we will accordingly adjourn until tomorrow morning, at this venue, I think at half past nine? At half past nine tomorrow morning. The people from Correctional Services, is half past nine tomorrow morning, will that be all right? Thank you, thank you very much.