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Amnesty Hearings

Type AMNESTY HEARINGS

Starting Date 26 June 2000

Location JOHANNESBURG

Day 1

Names AMOS TSHABALALA

Case Number AM8050/97

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MR MBANDAZAYO: Chairperson, Mr Tshabalala is Sotho speaking.

CHAIRPERSON: Mr Tshabalala, do you have any objection to taking the oath or would you prefer to make an affirmation?

AMOS TSHABALALA: (sworn states)

EXAMINATION BY MR MBANDAZAYO: Mr Tshabalala, is it correct that you were born in Gauteng on the 1st March 1973?

MR TSHABALALA: Correct, Chairperson.

MR MBANDAZAYO: How far have you gone at school?

MR TSHABALALA: Standard 8, Chairperson.

MR MBANDAZAYO: Can you tell the Committee when did you join PAC?

MR TSHABALALA: In 1989.

MR MBANDAZAYO: Will I be correct to say that you joined PAC through Azania?

MR TSHABALALA: Correct Chairperson.

MR MBANDAZAYO: Now when did you become a member of the Task Force of APLA?

MR TSHABALALA: In 1990.

MR MBANDAZAYO: Did you undergo any training as a Task Force member?

MR TSHABALALA: Correct Chairperson.

MR MBANDAZAYO: When did you undergo that training and where?

MR TSHABALALA: In 1990 in Transkei.

MR MBANDAZAYO: Where exactly in Transkei?

MR TSHABALALA: I don't know the locality of that place Chairperson.

MR MBANDAZAYO: What were you trained in?

MR TSHABALALA: ...(inaudible)

ADV SANDI: Are you saying that you don't know the name of the place where you were trained in the Transkei?

MR TSHABALALA: I'm not able to recall the name of the place, Chairperson.

ADV SANDI: Where about is it in the Transkei? Near Umtata, Port St Johns? Where about? Which town in the Transkei?

MR TSHABALALA: It is near Umtata, Chairperson.

ADV SANDI: Thank you.

INTERPRETER: May you please repeat your question, Sir?

CHAIRPERSON: Mr Mbandazayo, if you could just repeat your last question about the training?

MR MBANDAZAYO: Yes Chairperson.

What were you trained in when you were trained in the Transkei and how long were you trained?

MR TSHABALALA: I was trained in the use of weapons Chairperson, again in the defence of the community.

MR MBANDAZAYO: How long did your training take place?

MR TSHABALALA: Two months, Chairperson.

MR MBANDAZAYO: Who trained you in Transkei?

MR TSHABALALA: Judge Makakula.

MR MBANDAZAYO: On your coming back from Transkei, what did you do?

MR TSHABALALA: I went home.

MR MBANDAZAYO: What were your activities as a Task Force member at home?

MR TSHABALALA: To enhance the APLA objectives.

MR MBANDAZAYO: Now am I correct to say that you were arrested whilst you were already integrated in the South African National Defence Force?

MR TSHABALALA: That is correct, Chairperson.

MR MBANDAZAYO: When did you join the South African National Defence Force before you were arrested?

MR TSHABALALA: In 1995.

MR MBANDAZAYO: Were you arrested the same year?

MR TSHABALALA: I was arrested in 1996.

MR MBANDAZAYO: Now Mr Tshabalala, did you listen to the evidence of the first applicant?

MR TSHABALALA: Yes Chairperson.

MR MBANDAZAYO: Do you confirm the evidence of the first applicant in as far as it relates to you?

MR TSHABALALA: Correct Chairperson.

MR MBANDAZAYO: Do you also want the evidence of the first applicant to be part of your evidence?

MR TSHABALALA: Correct Chairperson.

MR MBANDAZAYO: Now do you confirm that on that day in question you were armed with a shotgun?

MR TSHABALALA: Correct Chairperson.

MR MBANDAZAYO: Do you confirm that you were the person who shot Mr van Wyk?

MR TSHABALALA: Yes.

MR MBANDAZAYO: Can you tell the Committee why did you shoot him?

MR TSHABALALA: I shot the deceased after I received instructions from Mr Ntantiso.

CHAIRPERSON: Sorry, what was the relationship between you and Mr Ntantiso in your capacities as members of the Task Force?

MR TSHABALALA: He was my senior.

MR MBANDAZAYO: Mr Tshabalala, there is evidence that you shot the deceased above the knee. Can you tell the Committee why did you shot him if you were shooting to kill him, why did shoot him above the knee?

MR TSHABALALA: Because the mode of the weapon I had, if you shoot, the bullet would disperse therefore I would shoot even people who were innocent or who were just near the place.

CHAIRPERSON: Sorry, I can't understand that. Are you saying that you deliberately aimed low because you knew that the bullets would spread? I mean the pellets would spread?

MR TSHABALALA: That is correct, Chairperson.

MR MBANDAZAYO: Now what was your intention? Was your intention to kill him or were you to injure him?

MR TSHABALALA: My intention was to kill him.

MR MBANDAZAYO: When you shot him at that particular place did you think that is going to kill him?

MR TSHABALALA: The way I knew the firearm I used, I believed that I would kill him.

MR MBANDAZAYO: Now the victims, especially the sons of the deceased are here. What do you say to them?

MR TSHABALALA: To the sons of the deceased I would say I apologise because the deceased was at the wrong place at the wrong time because it was during the war situation.

MR MBANDAZAYO: That is all, Chairperson. Thank you.

NO FURTHER QUESTIONS BY MR MBANDAZAYO

ADV SANDI: I'm afraid I'll have to ask you to explain that. You say the deceased was at the wrong place at the wrong time. Do you mean to say that if you had encountered the deceased at some other place at some other time you wouldn't have attacked him?

MR TSHABALALA: In that year we were engaged in war, therefore he was there at that particular place at that particular time.

RE-EXAMINATION BY MR MBANDAZAYO: Chairperson, just to - just an oversight. There is a second incident in which you are applying for amnesty.

Can we, Mr Tshabalala go to that incident that where you were arrested at the roadblock with arms, can you tell the Committee about this?

MR TSHABALALA: It was in 1994, we were campaigning for 1994 general elections. We worked from Tembisa from the campaign. When we returned we were arrested with arms. We were together with the youth president of Azania and that is - his name is Masotu Batani.

MR MBANDAZAYO: What were you specifically doing yourself with Masotu Batani?

MR TSHABALALA: Mr Batani, as he was the president of the youth wing, it was our duty or our responsibility that our leadership was protected at all times during that time.

MR MBANDAZAYO: Will I be correct to say that you were a bodyguard of Masotu Batani at the time?

MR TSHABALALA: Correct Chairperson.

CHAIRPERSON: What firearms and ammunition were found in your possession when you were arrested?

MR TSHABALALA: We had 9 mm, 7.65, that is R1 on our person and .38 Special.

CHAIRPERSON: And the relevant ammunition to be used by those guns?

MR TSHABALALA: That is correct, Chairperson.

CHAIRPERSON: Mr Mbandazayo?

MR MBANDAZAYO: Thank you Chairperson, that's all.

CHAIRPERSON: Mr Richard, any questions that you would like to put to the applicant?

CROSS-EXAMINATION BY MR RICHARD: Yes Chairperson, with your leave.

Mr Tshabalala, at page 1 of the bundle, I see in your application you record that you were born in Sebokeng and you give your address still as Zone 12 Sebokeng. In other words, is it correct, have you lived in Sebokeng all your life apart from the time that you spent in jail?

MR TSHABALALA: That is correct, Chairperson.

MR RICHARD: Now are you familiar with the environment in and around the premises described as the PAC's office?

MR TSHABALALA: Yes I do.

MR RICHARD: And you know it well?

MR TSHABALALA: That is correct.

MR RICHARD: Now you've heard the descriptions of the football field and the drilling rig. Do you confirm with what Mr Ntantiso has said?

MR TSHABALALA: Yes I do agree with him.

MR RICHARD: In other words you confirm that you saw this drilling rig with people working around it and near it from the time you arrived that day onwards?

MR TSHABALALA: That is correct.

MR RICHARD: Now I make the observation that at the time of this incident you were 20, is that not correct?

MR TSHABALALA: That is correct.

MR RICHARD: Now ...(intervention)

CHAIRPERSON: Sorry, while you're busy Mr Richard?

This Task Force, did you work in units?

MR TSHABALALA: That is correct.

CHAIRPERSON: And who was the commander of the unit?

MR TSHABALALA: It was Ntantiso.

CHAIRPERSON: That's the other applicant, your co-applicant?

MR TSHABALALA: That is correct.

CHAIRPERSON: Mr Richard?

MR TSHABALALA: Thank you Chairperson.

At page 13 of the bundle your co-applicant, Mr Ntantiso, says at the paragraph at the top of the page:

"I thought they were attacking our office as the State attacked our members."

Now do you identify yourself with that statement and that you thought that they, whoever they were, were attacking your office?

MR TSHABALALA: Yes, as a soldier I had to agree with the instructions from him therefore I do agree with what he has stated here.

MR RICHARD: I am not asking you for whether you agreed or disagreed with your instructions. I'm asking a far simpler question. Did you, as your commander states here, at that time think your offices were about to be attacked?

MR TSHABALALA: That is correct.

MR RICHARD: And that is what you believed?

MR TSHABALALA: Yes.

MR RICHARD: Now we go back to the scene of the events that day. According to your recollection, what time of the day did you arrive at the office?

MR TSHABALALA: It could be around quarter to twelve.

MR RICHARD: And at that time were you aware of the drilling machine?

MR TSHABALALA: Yes.

MR RICHARD: And at that time did you observe a white man working amongst other men in and around and with the drilling machine?

MR TSHABALALA: Yes.

MR RICHARD: And did you observe a Mercedes very near the PAC's office?

MR TSHABALALA: Yes I did.

MR RICHARD: Now did you see the white man there all afternoon?

MR TSHABALALA: I saw him at the time we arrived there until we attacked him.

MR RICHARD: What were your duties that afternoon?

MR TSHABALALA: My task was to shoot him.

MR RICHARD: Other than to shoot him, what were your duties while you were at the PAC's office that day?

MR TSHABALALA: I didn't have any task for that day.

MR RICHARD: Weren't you supposed to stand guard and protect your comrades, watch out and be vigilant?

MR TSHABALALA: This thing happened when we arrived there so I wasn't able to do other tasks as well at the same time.

MR RICHARD: I don't understand your answer. "This thing happened when we arrived there". What was this thing?

MR TSHABALALA: Because we were saying that I was supposed to guard and look out for other comrades so what I'm saying is I was not able to do that at the same time and also shoot that white man.

MR RICHARD: We know that you arrived at some time before twelve. We also know that the shooting happened more than three hours later. Is that not correct?

MR TSHABALALA: I do not agree with you, Sir.

MR RICHARD: When did the shooting happen?

MR TSHABALALA: It didn't take us long.

MR RICHARD: After you ...(intervention)

CHAIRPERSON: Could you give us an estimation? You estimated that you arrived back at the office at about quarter to twelve. What time do you estimate the shooting took place?

MR TSHABALALA: It could be around 1 o'clock.

MR RICHARD: Were you here when your co-applicant gave evidence?

MR TSHABALALA: Yes.

MR RICHARD: What time did he say the shooting happened?

MR TSHABALALA: I don't remember what he said.

MR RICHARD: It was not at 1 o'clock, it was later.

CHAIRPERSON: He said that the shooting took place the late afternoon at go home time, I think it was referred to as.

MR TSHABALALA: Well I cannot explain that because this thing happened many years ago so I don't know why he said that.

MR RICHARD: Are you right or is he right?

MR TSHABALALA: I do not remember well therefore I cannot say who is right between the two of us.

MR RICHARD: Well I will put it to you that there are numerous other eye witnesses who can be called to the hearing if need be who will say that it happened at a time well after 3 o'clock in the afternoon. Would you dispute that evidence which is consistent with your commanders?

MR TSHABALALA: That is why I say I do not remember well therefore I would not disagree with them.

MR RICHARD: So fine, so that your answer that it happened around 1 o'clock is then wrong? Isn't it?

MR TSHABALALA: I would agree.

MR RICHARD: Now I go back to what my first proposition on this line was. You arrived at quarter to twelve or somewhere there about in the morning?

MR TSHABALALA: Yes.

MR RICHARD: Before you decided to do anything or were told to do anything with the deceased, what would you have done for the rest of the day while at the office? What were your ordinary activities at the office? What were your ordinary duties?

MR TSHABALALA: I was going to attend the meeting that day.

MR RICHARD: With who were you going to meet?

MR TSHABALALA: We were going to have a meeting with other units of the Task Force.

MR RICHARD: Did you meet with other members and units?

MR TSHABALALA: No we did not.

MR RICHARD: Then what did you do for those three and more hours while at the offices? What did you do?

MR TSHABALALA: After our arrival there we went to the office and we met there at the office and then I went to the cafe and then when I came back from the cafe we left. That's when we went to attack the deceased.

MR RICHARD: Did you see the drilling machine busy all afternoon? You agreed that it made a big noise, big row, you couldn't miss it?

MR TSHABALALA: Yes that is correct.

MR RICHARD: Now you talk of two other white men. Where were they for those three or more hours, more hours, not only three hours? What were they doing?

MR TSHABALALA: They arrived and they had some discussions with the deceased and they left thereafter.

MR RICHARD: Now long were they there for?

MR TSHABALALA: It wasn't that long it could be five minutes.

MR RICHARD: So they were there only for five minutes, is that your answer?

MR TSHABALALA: Yes I would say so.

MR RICHARD: Now do you recall what the deceased was wearing that afternoon?

MR TSHABALALA: No I do not.

MR RICHARD: If I put it to you that he was wearing a blue workman’s overall would you dispute that?

MR TSHABALALA: No, I won't disagree with you.

MR RICHARD: Now you've agreed with me that you had three and more hours to watch what the deceased was doing. What did he do in that period that was threatening to you or the office?

MR TSHABALALA: I have explained that when I received my instructions from my superior I have to carry those instructions. So when he told me that these people may attack us I had to agree with him because in those days members of the PAC were being attacked by the police so we regarded him as one of the people who could endanger us.

MR RICHARD: You've agreed with me that you thought, according to your evidence, that they were attacking "our offices" to quote the words. That's what you say you thought not because you were told to think that. I've asked the next question. Did the deceased do anything specific that you can point to that made you personally believe that you were about to be attacked?

MR TSHABALALA: That is after his two other colleagues had left we became suspicious.

MR RICHARD: What made you suspicious? You've got to be exact and precise. A generalisation is meaningless.

MR TSHABALALA: We did not know what was in their minds because our office was just near the place where they were working.

MR RICHARD: You could see what the man was doing, he was working with the drilling machine and the drilling rig's team, they were busy tending to the machine. Did you find that suspicious?

MR TSHABALALA: No I did not see him working.

MR RICHARD: Well I put it to you that you've already admitted that you saw him working and that you're lying, you change your answers as and when convenient? I put it to you that there was nothing at all suspicious about his behaviour?

MR TSHABALALA: I said to you the machines were working, I could hear the noise, yes. Because you asked me about the machine and I agreed with you that the machine was working.

MR RICHARD: And you admitted in clear, unambiguous terms that you saw him working with the machines? Are you trying to withdraw that answer?

MR TSHABALALA: Maybe you did not understand me.

MR RICHARD: I didn't misunderstand you. I heard you clearly say you saw him working with the machines. That's what your evidence under oath was? There's no misunderstanding.

MR TSHABALALA: What I said is that I could hear the sounds made by the machines.

CHAIRPERSON: So when you arrived at the office, did you see the deceased?

MR TSHABALALA: Yes.

CHAIRPERSON: Yes and you said you also saw him talking for five minutes with two other white men, is that right?

MR TSHABALALA: Yes.

CHAIRPERSON: Now after those two other people left did you see the deceased again before the shooting?

MR TSHABALALA: Yes I did.

CHAIRPERSON: Now where did you see him after that?

MR TSHABALALA: He was at his car.

CHAIRPERSON: What, just sitting in his car? Was this just before the shooting?

MR TSHABALALA: He was trying to get his car keys which were inside his car.

CHAIRPERSON: So are you saying that you didn't see the deceased from the time that those two other white men left until the time that he was trying to get in his car?

MR TSHABALALA: I saw him that time when he - after they have left they went to his car, that's when I saw him.

CHAIRPERSON: And before that, was the first time you saw him when you were speaking to those men? When you arrived at the office we know it's about at least three hours, more than three hours since your arrival at the office until the time he was shot, did you see him at all before then?

MR TSHABALALA: No, that is at the time when we arrived there.

CHAIRPERSON: Mr Richard? Sorry, just one more.

Did you see him near the drilling machine?

MR TSHABALALA: I saw him next to his car.

CHAIRPERSON: I'm asking you did you see him on the football field where the drilling machine was, did you see him near the drilling machine? I'm just asking you, at any stage?

MR TSHABALALA: I saw him next to his car. The car was just next to the field.

CHAIRPERSON: Mr Richard?

MR RICHARD: Thank you Chairperson.

Now one of the propositions with which you have associated yourself with is that I put to your co-applicant the proposition, there are other witnesses available to be called should the need arise which will say that the deceased spent most of that day working with the drilling machine, going in and out of holes a couple of metres deep, taking samples of soil and being pulled by a hoist and working with the drilling machine and the men that helped him with this machine. Would you dispute that evidence is correct?

MR TSHABALALA: I would not dispute that.

MR RICHARD: And in other words there's no need for me to call a witness to say that?

MR TSHABALALA: It is not necessary.

MR RICHARD: Thank you. Now the next proposition I put to you is from where the office is, if someone was fearful of an attack and was keeping a careful outlook at what was happening on the football field they would have been able to see exactly what was going on in and near the drilling machine without any difficulty?

MR TSHABALALA: Yes I do agree.

MR RICHARD: Now I then put it to you that wouldn't it have been natural if you were preparing an attack to have kept a very, very careful lookout as to what was going on not only on the football field but all around your office?

MR TSHABALALA: That is correct.

MR RICHARD: Were you keeping a proper and careful lookout as might be expected if you might be fearful of an attack?

MR TSHABALALA: Like I have already explained that I did go to the cafe.

MR RICHARD: My question is not whether you went to the cafe or not, my question is did you keep a very careful lookout as to what was going on around you that afternoon, that day?

You were scared of being attacked according to your evidence?

MR TSHABALALA: My other comrades were also there the time I wasn't there when I went to the shop, they were also looking around.

MR RICHARD: How long were you at the shop for? Five minutes, ten minutes?

MR TSHABALALA: I could be five minutes.

MR RICHARD: Very well now, we've got it that you agree that sometime well after 3 p.m. the deceased went to his Mercedes along. Do you confirm that?

MR TSHABALALA: Yes.

MR RICHARD: Now according to your version, which we do not accept, you say the keys were locked in the car. Is that your version?

MR TSHABALALA: That is correct.

MR RICHARD: Now for how long did people fiddle around the car to try and get the keys out?

MR TSHABALALA: It was not long, they just broke the window, the took out the keys.

MR RICHARD: Did they just smash the window when they saw the keys were locked in, you know, in two seconds? Did they use a piece of wire?

MR TSHABALALA: They talked to him and thereafter they smashed the window and they took out the keys.

MR RICHARD: So was that a transaction that lasted one minute or five minutes or ten minutes?

MR TSHABALALA: It could be three minutes.

MR RICHARD: And I put it to your comrade that should the need arise I will call a witness which will say that when the car was recovered there were no broken windows? Do you stand by your version that a window was broken?

MR TSHABALALA: Yes.

CHAIRPERSON: Sorry, did you see the window being broken, yourself, with your own eyes? When did you know that a window had been broken?

MR TSHABALALA: Yes I did see it with my eyes.

MR RICHARD: Alright then - sorry Chairperson.

CHAIRPERSON: Continue please.

MR RICHARD: On your version, once the keys were taken out of the car where were they taken out of the car? Were they on the seat, in the ignition, on the back seat?

MR TSHABALALA: Well I don't know where the keys were inside the car.

MR RICHARD: Did you see the keys being taken out of the car? You say you did?

MR TSHABALALA: I saw them smashing the window of the car.

MR RICHARD: Which window was smashed?

MR TSHABALALA: The small window at the back.

MR RICHARD: On the left or the right?

MR TSHABALALA: On the right.

MR RICHARD: Right. Which door was then opened?

MR TSHABALALA: The front door.

MR RICHARD: How did ...(intervention)

CHAIRPERSON: So are you saying that they had long arms or what? They break the window at the back and then they get long arms and open the front door?

MR TSHABALALA: They smashed the window and they opened the big window and then they opened the front door.

MR RICHARD: Very well. Then what happened next, tell us?

MR TSHABALALA: And then the deceased ignited the car and he went out of the car.

MR RICHARD: So I understand that the deceased then climbed into the car, started the car and climbed out the car, is that correct?

MR TSHABALALA: That is correct.

MR RICHARD: Now where were you standing when this all happened?

MR TSHABALALA: I was coming near the car.

MR RICHARD: How far away from the car were you? Please give us an approximate indication?

CHAIRPERSON: If he can't mention a distance, if he can point out a distance? What distance do you want? At the time of the shooting or when?

MR RICHARD: The deceased is climbing in and out of the car and starting the car, where was he? How far away from the car?

CHAIRPERSON: The question is how far away were you from the car when the deceased let's say got out of the car after he had got in and started it. If you could indicate a distance or mention an approximate distance?

MR TSHABALALA: Like Ntantiso has already explained, it could be from where I sit to that red line on the floor.

CHAIRPERSON: The same three to three and a half metres.

MR RICHARD: Now please tell me, Mr Tshabalala, approximately how high does a shotgun stand? Is it this high of the ground or is it this high off the ground?

CHAIRPERSON: The size of your shotgun, if you could indicate how long it was from the tip of the barrel to the end of the stock?

MR TSHABALALA: It can be like I'm indicating.

MR RICHARD: From the floor to the ...(intervention)

CHAIRPERSON: He indicates approximately a metre. I don't know if you agree, Mr Mbandazayo, Mr Richard?

MR RICHARD: I agree with a metre.

CHAIRPERSON: Approximately a metre.

MR RICHARD: Now where as the shotgun when you were standing there?

MR TSHABALALA: It was with me.

MR RICHARD: In your hands?

MR TSHABALALA: Yes. I had a long jacket, it was hidden inside the jacket.

MR RICHARD: And how many other people were there around the car?

MR TSHABALALA: There could be 20 people around the car there.

MR RICHARD: Now once the deceased, Mr van Wyk, got out of the car, how far away from the car did he go?

MR TSHABALALA: He was just next to the car door.

MR RICHARD: Now what were your instructions from Mr Ntantiso? What was the plan?

MR TSHABALALA: He instructed me to shoot him.

MR RICHARD: At what point?

MR TSHABALALA: At that time when we were approaching him.

MR RICHARD: You heard my question. Did he instruct you to shoot him once he was in the car or before he got into the car?

MR TSHABALALA: He didn't explain whether I should shoot him while he was inside or outside the car, he just said I should shoot him.

MR RICHARD: And then what did it mean to you when Mr Ntantiso said to you as he says in paragraph 5 on page 27

"I then told Tshabalala that as soon as I got behind the steering wheel of Van Wyk's motor vehicle, I must shoot at him."

What did that mean to you?

MR TSHABALALA: I do not understand what is written there because the instruction that I got from him was to shoot.

MR RICHARD: Did he tell you when to shoot him?

MR TSHABALALA: At that time we were approaching him, that's when he instructed me to shoot.

MR RICHARD: How far away from him were you when Mr Ntantiso instructed you to shoot him?

MR TSHABALALA: It could be from where I sit to that line, the red line.

MR RICHARD: And at that point Mr van Wyk was already out of the car?

MR TSHABALALA: That is correct.

MR RICHARD: Where was Mr Ntantiso when the shot went off?

MR TSHABALALA: He was next to me.

MR RICHARD: Now who was in front of you?

MR TSHABALALA: It was another person I do not know, a member of the community.

MR RICHARD: And where was the deceased?

MR TSHABALALA: He was standing next to the car door.

MR RICHARD: And that wasn't in front of you?

MR TSHABALALA: You mean the deceased?

MR RICHARD: Yes.

MR TSHABALALA: He was in front of me.

MR RICHARD: And who was behind him? Was there anyone behind the deceased?

MR TSHABALALA: There was a car and another person and the deceased.

MR RICHARD: Now how much nearer could you have got to the deceased by just walking towards him? You were walking towards the deceased. Was there anything stopping you carrying on walking towards the deceased?

MR TSHABALALA: Yes, according to the type of gun that I had I could not go near him.

MR RICHARD: I put it to you that you shot him at point blank range. In other words, literally from the red line to yourself and that means if the shotgun is a metre long, no more than two metres separated you from the muzzle of the shotgun to the deceased? That's point blank range, is that correct?

MR TSHABALALA: No I wasn't near him that much.

CHAIRPERSON: Are you saying that when you shot him you were about the distance from the red line, is that what you're saying?

MR TSHABALALA: That is correct.

CHAIRPERSON: That's same three and a half metres?

MR RICHARD: Now where did you shoot the deceased?

CHAIRPERSON: You mean on what part of the body?

MR RICHARD: Yes.

MR TSHABALALA: I'd say around the waist.

MR RICHARD: Why did you shoot him in the waist?

MR TSHABALALA: I have already explained that I did not want to injure the person who was standing behind him.

MR RICHARD: Now what part of the body is the waist? It's the stomach is it not? It's where your belt goes round?

MR TSHABALALA: At the side as I'm pointing.

CHAIRPERSON: He points to the waist area, midriff.

MR RICHARD: Now is that where you aimed your shotgun? That's your evidence?

MR TSHABALALA: I wanted to shoot him at his head.

MR RICHARD: So instead you aimed at his stomach, his side?

MR TSHABALALA: That is correct.

MR RICHARD: In front of 20 other people?

MR TSHABALALA: That is correct.

MR RICHARD: But then I put it to you that you confirmed your comrade's evidence that he was shot above the knee, not in the waist?

MR TSHABALALA: Maybe I do not recall correctly because this thing happened many years ago.

MR RICHARD: Mr Tshabalala, on your version, I must put this to you that we have nothing more in front of us than a straightforward armed robbery of a man who has been stupid enough to get out of his car while the ignition has been left on and you, without any intention or without any political intentions and motives, simply seized the opportunity and shot the man and then stole the car? Just plain common law robbery? Those are the facts consistent with what you describe and the rest is merely a convenient lie so as to avoid the consequences of your murder? What do you say to that proposition?

MR TSHABALALA: No, that is what you say. I do not agree with you on that.

MR RICHARD: Very well. Now you say you spent two months in the Transkei. Was that near the sea, in the mountains?

MR TSHABALALA: We were at the township.

MR RICHARD: In the township? Do you know the name of the township?

MR TSHABALALA: I have said that I do not recall the name of the township but it's next to Umtata. Gangaliswe.

MR RICHARD: Sorry, Gangaliswe? What is that name?

CHAIRPERSON: It's a township in Umtata. He is asking was it Gangaliswe?

MR RICHARD: Sorry, I've missed you?

CHAIRPERSON: Sorry, no I'm just asking if it was perhaps Gangaliswe?

MR TSHABALALA: Well I don't know, I was still young at that time.

MR RICHARD: Now for how many hours a day did you receive training?

MR TSHABALALA: We would receive training any time of the day when we were free.

MR RICHARD: Did you receive training every day?

MR TSHABALALA: That is correct.

MR RICHARD: Did you do anything else besides receive training?

MR TSHABALALA: No.

MR RICHARD: Now you've already told us that you received training in weapons and handgrenades. Other than weaponry, did you get trained in what the tactics of the PAC were in trying to overthrow the government?

MR TSHABALALA: We were trained in protecting the community in general.

MR RICHARD: How were you to protect the community?

MR TSHABALALA: We would defend the community because the community was attacked by the then government so we had to resuscitate some of our Task Force units which were dead.

MR RICHARD: Other than to defend the community what else were you trained to do?

MR TSHABALALA: We would hold discussions about PAC politics.

MR RICHARD: Would you be taught who to attack and not attack?

MR TSHABALALA: We were taught that we should not attack Africans but we should attack those who were oppressing the people.

MR RICHARD: Who were you taught oppressed the people?

MR TSHABALALA: Those are the people who were protected by the government of the day, that included the whites.

MR RICHARD: Who else?

MR TSHABALALA: Those are the people that we had to attack.

MR RICHARD: Were you taught to indiscriminately attack civilians?

MR TSHABALALA: I have explained that only the Africans were not supposed to be attacked. So if you were not an African that means you were an oppressor because those were the people who were supporting the then government of the day.

MR RICHARD: So that means you were taught by the PAC that it was your function to attack anyone who was not an African with absolutely with no discrimination? Is that your evidence?

MR TSHABALALA: No that is not what I'm saying.

MR RICHARD: Then what are you saying?

MR TSHABALALA: ...(inaudible)

CHAIRPERSON: I didn't get an interpretation?

MR TSHABALALA: I have said that we were attacking those who were oppressors.

MR RICHARD: Who were the oppressors?

MR TSHABALALA: Those were the people who were protected by the government of the day. That is the white people.

MR RICHARD: So then I go back to my statement. Is your evidence that you were told and taught that you may attack any person who is white simply for that reason with no discrimination? Is that what you are saying you were taught?

MR TSHABALALA: That is not what I'm saying.

MR RICHARD: Then who amongst the whites were you not to attack?

MR TSHABALALA: We were supposed to attack all the white people because they were protected and supported by the then government irrespective of whether they were voting for that government but they were protected by the government of the day.

MR RICHARD: How many people taught you near Umtata? Did you have one instructor or five instructors?

MR TSHABALALA: We had many instructors.

MR RICHARD: Well how many is many? More than five, more than ten?

MR TSHABALALA: Every unit had it's own commander.

MR RICHARD: I'm not talking about commanders, I'm talking about instructors?

CHAIRPERSON: It was instructors at that two month training period, how many people instructed you?

MR TSHABALALA: That's one person.

MR RICHARD: And what was that person's name?

MR TSHABALALA: That's George Makakula.

MR RICHARD: And it's George Makakula who taught you that all white peoples were legitimate targets?

MR TSHABALALA: That is correct.

MR RICHARD: Now why did you attack Mr van Wyk?

MR TSHABALALA: Mr van Wyk was one of the people who was protected by the then government of oppressors so he was also supposed to be attacked.

MR RICHARD: Now you've made mention of the Year of the Great Storm. Who taught you about that?

MR TSHABALALA: This was said by Sabelo Pama. He said that every member of the community should participate in fighting the oppressive government so that we can reclaim our land from the oppressors.

MR RICHARD: And how did he say you should fight?

MR TSHABALALA: He said members of the community should use any way that they can use to attack the government as long we'll be able to obtain our objectives.

MR RICHARD: Chairperson, may I beg an indulgence while I ask?

CHAIRPERSON: Yes certainly.

MR RICHARD: Thank you for the indulgence Chairperson.

You say Mr Ntantiso gave you the command to shoot Mr van Niekerk?

CHAIRPERSON: Van Wyk.

MR RICHARD: Van Wyk, sorry. When was that instruction given, was it in the morning, lunch time, afternoon?

MR TSHABALALA: Just after our arrival at that place.

MR RICHARD: Why did you wait so long? Well, about 12 o'clock until some time after three?

MR TSHABALALA: I told you that I do not remember the time exactly when the attack took place because this happened many years ago so that the time that you are saying comes from you.

MR RICHARD: No further questions.

NO FURTHER QUESTIONS BY MR RICHARD

CHAIRPERSON: Thank you. Mr Mapoma, do you have any questions you would like to ask?

CROSS-EXAMINATION BY MR MAPOMA: Just a few, Chairperson.

Mr Tshabalala, you've got a statement that you made. It appears on page 22 of the bundle. On paragraph 7 you say:

"On the 12 October 1993 I was at the offices of the PAC in Sebokeng when Johannes told us to kill whites, to make the then whites in charge of the country ungovernable".

Do you confirm this?

MR TSHABALALA: Please repeat your question?

MR MAPOMA: Do you confirm ...(intervention)

CHAIRPERSON: The contents of paragraph 7 of your statement that appears on page 22, that's just the typed version of the statement which starts, the written one which starts on page 18. Paragraph 7 says

"On 12 October 1993 I was at the offices of the PAC in Sebokeng when Johannes told us to kill whites, to make the then whites in charge of the country ungovernable."

And then the question is do you confirm that?

MR TSHABALALA: Yes Chairperson.

MR MAPOMA: You went on in paragraph 8 to say

"At first Johannes pointed at two white males dressed in khaki shorts and shirts and told us that they were AWB members and that we should get rid of them."

Do you also confirm this?

CHAIRPERSON: Well just carry on, I think two of the last sentences?

MR MAPOMA: Then you went on to say

"We could not do so as they were escorted by members of the APS."

CHAIRPERSON: SAPS.

MR MAPOMA: Yes.

Do you confirm the contents of this paragraph as well?

MR TSHABALALA: I do not Chairperson.

MR MAPOMA: What is it that you don't confirm or that you disagree with?

MR TSHABALALA: Is that they were accompanied or escorted by members of the South African Police Force.

MR MAPOMA: How come does it appear in your statement?

MR TSHABALALA: Maybe it's because of the person who was writing that statement.

MR MAPOMA: Thank you Chairperson, I'll leave it there.

NO FURTHER QUESTIONS BY MR MAPOMA

CHAIRPERSON: Mr Mbandazayo, have you any re-examination?

MR MBANDAZAYO: None Chairperson.

NO RE-EXAMINATION BY MR MBANDAZAYO

CHAIRPERSON: Judge Motata, do you have any questions that you would like to ask the applicant?

JUDGE MOTATA: Just one concerning his statement.

Mr Tshabalala, if you could turn to page 18. That statement, it's the written one by long hand up to page 21. Is this your handwriting?

MR TSHABALALA: No Chairperson.

JUDGE MOTATA: I see it's eventually at page 21 signed by one, if I may read that. It looks like Stephanus Johannes Killian, Commissioner of Oaths, ex officio RSA, 15th Floor, Carlton Centre, Commissioner Street, Johannesburg. Where was this statement made?

MR TSHABALALA: I think it was made at ...(indistinct)

JUDGE MOTATA: If you can look at page 21 there is an "x" where there is a date 16.03.2000, there is a signature next to the "x". Is that your signature?

CHAIRPERSON: About the fifth line.

MR TSHABALALA: Yes.

JUDGE MOTATA: This person who took the statement, you told him all what is contained there?

MR TSHABALALA: That is correct, Chairperson.

JUDGE MOTATA: In what language were you communicating with this person while taking the statement?

MR TSHABALALA: I was using English, Chairperson.

JUDGE MOTATA: Was this statement read back to you?

MR TSHABALALA: He was the one who was writing this statement.

JUDGE MOTATA: I say after completion of the statement, was it read back to you after you had spoken to him and he was writing, when he finished did he read all, everything to you back because you will notice there are approximately 17 paragraphs. This statement contains approximately 17 paragraphs.

MR TSHABALALA: Yes.

JUDGE MOTATA: And you saw to it that everything was true?

MR TSHABALALA: I thought what I told him, what I told him what was correct.

JUDGE MOTATA: Mr Tshabalala, just listen now, I'm trying to find out from you, I would just like an explanation of what I don't understand. Okay, do we understand each other so far? You said you spoke to this man in English and he was writing. What I want to know from you is after he had written all the 17 paragraphs, did he read this whole of the statement back to you?

MR TSHABALALA: Yes.

JUDGE MOTATA: And you confirmed the contents?

MR TSHABALALA: Yes.

JUDGE MOTATA: Thank you Chairperson, I've got no further questions.

CHAIRPERSON: Mr Sandi, have you got any questions you'd like to put?

ADV SANDI: Yes I do Chairperson. Maybe one or two.

Mr Tshabalala, you say you were trained in 1990 in the Transkei, is that correct?

MR TSHABALALA: That is correct.

ADV SANDI: Whilst you were being trained in the Transkei as a member of APLA were you told anything about the Beauty Salon operation as one of the strategies of APLA?

MR TSHABALALA: Yes.

ADV SANDI: What was said about it?

MR TSHABALALA: It was a unit which will after we've repossessed some items in our operations we'll hand over the loot to them.

ADV SANDI: Were you specifically given orders to take part in this repossession operations?

MR TSHABALALA: Our unit was led by Ntantiso, that is the person who gave instructions or orders.

ADV SANDI: How did you relate to the Beauty Salon operation? Did you have any role to play in regard to that unit?

MR TSHABALALA: No, I received instructions or orders from him.

ADV SANDI: On your way back from the Transkei, that is after you had received you training, what mode of transport were you using?

MR TSHABALALA: A car.

ADV SANDI: Whose car was that?

MR TSHABALALA: It belonged to the organisation.

ADV SANDI: Did you meet any white people on the road?

MR TSHABALALA: No.

ADV SANDI: Before this incident, that is when you attacked and killed Mr van Wyk, did you ever have an opportunity to kill a white person or was it the first time you had an opportunity?

MR TSHABALALA: I did not take part in any operation.

ADV SANDI: What did you do from 1990 to 1993 as a member of APLA?

MR TSHABALALA: We were developing units of the Task Force in our area.

ADV SANDI: Thank you. Thank you Chairperson.

CHAIRPERSON: Thank you. Mr Mbandazayo, do you have any questions arising?

MR MBANDAZAYO: None Chairperson.

MR RICHARD: None Chairperson.

CHAIRPERSON: Mr Mapoma?

MR MAPOMA: None Chairperson.

CHAIRPERSON: Thank you Mr Tshabalala, that concludes your evidence. You may stand down now.

WITNESS EXCUSED

 
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