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Amnesty Hearings

Type AMNESTY HEARINGS

Starting Date 24 July 2000

Location JOHANNESBURG

Day 1

Names PHILA MARTIN DOLO

Case Number AM3485/96

Matter EIKENHOF ATTACK

CHAIRPERSON: Good morning. We want to start the proceedings. For the record, it is Monday, the 24th of July 2000. This is a hearing of the Amnesty Committee, sitting at the JISS Centre in Johannesburg. The presiding Panel consists of myself, Denzil Potgieter, and with me on the Panel are Judge Motata and Advocate Sandi. We are starting off with the amnesty application this morning of Mr Phila Martin Dolo, the amnesty reference number is 3485/96. I'm going to ask the representatives to put themselves on record, we'll start on behalf of the applicant. Mr Mbandazayo?

MR MBANDAZAYO: Thank you Chairperson and Honourable Members of the Committee. My name is Lungelo Mbandazayo and I'm representing the applicant in this matter. Thank you.

CHAIRPERSON: Thank you, Mr Mbandazayo. And then the Leader of Evidence.

MS MTANGA: Chairperson, I'm Lula Mtanga, the Evidence Leader for the Amnesty Committee. Thank you.

CHAIRPERSON: Thank you, Ms Mtanga. Whilst we are with you, we have a note that there are two interested parties, Mr Norman Mitchley and Mr Craig Lampbrecht who are present.

MS MTANGA: Yes, Chairperson that is so and so far they don't intend to oppose the application, they will sit and listen to the evidence and will decide afterwards. No lawyer has been instructed on their behalf with their instructions, they will not require any lawyer. They will put questions if the need arises, themselves. Thank you, Chairperson.

CHAIRPERSON: Thank you. And if needs be you'll be of some assistance to them?

MS MTANGA: Yes, Chairperson, I will.

CHAIRPERSON: Very well. You're otherwise satisfied that we are in a position to proceed with the matter? Good. Yes Mr Mbandazayo, anything that you wanted to put on record before we proceed to the evidence?

MR MBANDAZAYO: None Chairperson, except that as I indicated in chambers that after Mr Dolo I would like to call General Fihla. Presently it seems as if we had some confusion about dates, he thought that it's 25, but anyway he's on the way now, he's leaving Pretoria, so he said he will meet us halfway, so by the time we've finished he will be here. Why I'm putting it on record, there's a possibility that if by the time we've finished, if we're finished before he comes I would like a short adjournment to check where he is, because he's not familiar even with the area where the hearing is, unless he got lost, but he said he will be here within thirty minutes. Thank you. Otherwise Chairperson, there's nothing I want to put on record. The applicant is ready to give evidence, he may be sworn in Chairperson, thank you.

CHAIRPERSON: Very well, Mr Mbandazayo, we've noted that and we've had the unfortunate experience this morning that quite a few people got lost on their way to this venue, so hopefully General Fihla's lot won't be the same.

Mr Dolo, will you please stand to take the oath. Are your full names Phila Martin Dolo?

PHILA MARTIN DOLO: (sworn states)

CHAIRPERSON: Yes Mr Mbandazayo.

MR MBANDAZAYO: Thank you, Chairperson. Chairperson, for the purposes of this hearing we are going to use the affidavit which starts from page 31 of the bundle.

CHAIRPERSON: Very well.

EXAMINATION BY MR MBANDAZAYO: Yes, Chairperson. Chairperson, the reason being that the affidavit at page 31, is the most comprehensive one. The one was done in '98 when the Amnesty Committee wanted to investigate, so it did not have the details, it was for purposes of investigation. So the second one was the most detailed one regarding the event. Thank you.

Mr Dolo, the affidavit which is front of you is also before the Honourable Committee, do you confirm that this affidavit was made by yourself and you abide by its contents?

MR DOLO: I do.

MR MBANDAZAYO: Thank you. Chairperson, I will read the affidavit for the purposes of the record and thereafter I will lead Mr Dolo on certain portions of the paragraphs.

CHAIRPERSON: Very well.

MR MBANDAZAYO: Thank you.

"I, the undersigned, Phila Martin Dolo, do hereby make an oath and say that I'm the applicant in the Eikenhof operation. The facts to which I deposed to are true and correct and within my personal knowledge, unless the content states otherwise.

I was born in Uitenhage in kwaNobuhle township and grew up in the Eastern Cape. I was born twenty nine years ago and unmarried. I left school in 1989, doing standard nine and left the country to Botswana the same year. I joined PAC through AZANYO in 1984 and joined APLA in exile in 1989.

As APLA operative my general instruction from the APLA High Command, was to prosecute this armed struggle with all means against the then racist minority regime, which was undemocratic and oppressive. The said armed struggle was in essence a guerrilla warfare during which we as APLA cadres had to seek and attack the bastions and minions of the then aforesaid regime.

The ultimate objective of PAC and APLA was not only to topple the then racist minority regime, but to eventually return the land to the majority of the African people. The bastions and minions of the then erstwhile regime were in terms of the APLA perspective, the members of the South African Defence Force, the members of the South African Police and reservists in general. The farmers, as they belonged to Commando structures, over and above the fact that they occupied the farms which we had to drive them away from, so as to widen our territorial operational base which was aimed at eventually consolidating the liberated and repossessed land. The white homes which were garrisons of apartheid.

My general instructions was to seek, identify and attack the enemy who was seen in the context of the above bastions and minions of the regime and also to train other cadres and command them in whatever operation that is being embarked upon.

In consequence of, and in pursuit of the above-stated objectives, during or about the 19th March 1993, I gave an order to a unit of APLA cadres that ambushed a vehicle in Eikenhof and as a result three people lost their lives.

I wish to state that APLA's mode of thinking and indeed operation, did not distinguish between soft and hard targets, nor indeed between military and civilian targets. We were simply fighting against criminals who sustained the apartheid system. Criminals, because also apartheid was declared by the international community, represented by United Nations organisation, as crimes against humanity. To us, anybody who was a driver, moving apartheid forward and those that supported it were therefore criminals. This was our mode of thinking during the struggle. Hence the attack at Eikenhof was authorised and I ordered it.

I was deployed in the Gauteng area by the then Director of Special Operations who was also Deputy-Director of Operations, Comrade Sipho Bulelani Xuma, alias Billy. He deployed myself, Kenny and Bongani, between January and February 1993. I was to be a Regional Commander of Special Operations. Our contact person in Gauteng was to be Comrade Lawrence General Mnqandela.

The Eikenhof operation was the first for Special Operations in Gauteng. This operation was carried out by four operatives. It was Comrade Kenny, the Commander, Bongani Siha, all armed with AK47s and a recruit who was armed with a grenade.

I must state that I do not know the real names of these cadres, as we were not supposed to know each other's real names for security reasons. The leaders of APLA will be in a position to know the real names, as they were keeping the records of the cadres.

I have contacted the former Director of Operations, Lethlapa Mpahlele, and he advised me that all the PAC/APLA documents were confiscated by SAPS in Lesotho and Umtata in 1995, and they are presently in the hands of the SAPS.

My legal representative, Mr Mbandazayo, has requested the police to release the documents in order to assist PAC/APLA cadres in their applications for amnesty, but in vain. I understand that he has been furnished with certain names by the police, but they mean nothing to me as I knew my comrades with their operational names.

All these cadres were staying in the Vaal area near Eikenhof. The reconnaissance was done by the Commander of the operation, Kenny. After they have finalised their reconnaissance they briefed me about the target which was a school bus, and I contacted the Director of Operations for approval of the attack and the approval was given. I then gave an order for an attack on the school bus.

This operation was to be carried out by three operatives, but after the operation they told me about the fourth person who was a recruit. They used him as a driver as others were not good drivers.

Subsequent to the operation Kenny, the Commander, gave me the oral report about the operation and reported to me that because of logistical difficulties they missed the school bus, instead they attacked a motor vehicle which was occupied by the Settler School children and their parents. I subsequently learnt through the newspapers that the occupants who lost their lives were Sandra Mitchley, her son Shaun and Claire Silberbauer.

After the oral report I demanded a written report which was to be sent to APLA High Command. They gave me the written reports which I in turn address them to Director of Special Operations, Billy, and Director of Operations, Happy. I believe that these reports are in the hands of the South African Police Services who took them together with other PAC/APLA documents.

One of the AK47 machine guns that was used in the Eikenhof attack, was confiscated by the police at a roadblock at Orange Farm, together with the motor vehicle we were driving. The motor vehicle was subsequently released after we sent Lawrence General Mnqandela under whom it was registered, to claim it.

I was informed that the same AK47 used at Diepkloof on the attack at the policemen, was also used in the attack at Eikenhof. I wish to state that it is likely because the Eikenhof operation was before the Diepkloof operation and after the Eikenhof operation I removed the weapons and one of them is the one I indicated in paragraph 13 above, that it was confiscated in the roadblock. Also that one of the operatives in Eikenhof, Kenny, was present in the Diepkloof incident and he was also present during my arrest on the 29th May 1993, but escaped.

Thereafter I ordered that the weapons be moved to Soweto and some of these weapons were used in the Diepkloof attack. Though I cannot say who was carrying which one, but myself I was carrying an R4 rifle.

I have been shown the photographs of Boy Titindweni, Siphiwe James Bolo and Sipho Samuel Gavin, appearing in a set of photographs. I've never seen the aforementioned persons and they have never been in my units and even among the cadres I have trained. The only person I recognise in those set of photographs was Sipho Xuma, who was both the Director of Special Operations and Deputy-Director of Operations.

I have been informed that some of the eyewitnesses in the Eikenhof operation pointed him as one of the attackers. I want to put it categorically clear that Sipho Xuma was my senior and member of the High Command and deployed me in Gauteng to carry out operations and it would then have been impossible for me to give him an order, being my senior, to carry out an operation. And I reported to him after the operation, hence there was a report addressed to Billy, which was his Chimurenga name for our unit.

Further, as indicated in paragraph 15 above, I sought approval from him Umtata for the operation and he gave me the approval and I ordered the attack. Any person who says he was there is either mistaken or being ...(indistinct) about truth.

In the course of my APLA activities and operations I have never had any contact or dealing with the members of the ANC. We regarded ANC as more closer to the regime than the PAC, and we did not trust them. Any member of the ANC who wanted to join us, we would have suspected him as an informer who was trying to infiltrate us, because at the time they had already suspended the armed struggle.

I wish to state that I came with the details of my involvement and of APLA in the Eikenhof incident voluntarily and nobody influenced me to come forward with information, except the Truth and Reconciliation Act 34/95, which was thoroughly explained to me and I felt compelled to come forward with this information, though I never consulted the people involved and I do not know whether they are still alive or not.

The only people who knew exactly about this operation, that it was carried out by APLA operatives, was myself and the unit which carried out the operation, members of APLA High Command and Lawrence General Mnqandela, who was our courier. The others knew it because Lawrence Mnqandela phoned SAPA and informed them that APLA carried out the operation. This General did despite the clear order from APLA High Command not to claim responsibility for our operations, because it will be done by the High Command at an appropriate time.

I am convinced that the SAP knew at the time of my arrest that it was APLA that carried out the attack at Eikenhof, because Landman told me that but said that they will not go to Transkei and look for the people who were responsible for the attack. I am now sure that even if the SAP has doubted at the time that the APLA was involved, they are now sure and clear that the Eikenhof operation was carried out, was carried by APLA, after they stole the reports of the operation at Lesotho and Umtata.

I therefore state and confirm without fear of contradiction that the convicted ANC members or cadres were never involved in the Eikenhof operation and anybody who said they were involved is not mistaken, but a liar.

I hold no brief for the ANC, because it is my candid view that if it was true that we were liberated, we will not be languishing in prison today, nor applying for amnesty for being involved in the struggle for liberation of the African people.

The Nationalist Government of de Klerk released us but the so-called "our government", that is the ANC government, is arresting us for taking part in the liberation of the African people.

I respectfully submit that my application complies with the requirements of the Act, and that I have made full and proper disclosure of my involvement in the Eikenhof operation."

Thank you. Chairperson, as I indicated, after finishing reading the affidavit of Mr Dolo, I would like to take Mr Dolo through certain paragraphs of this affidavit.

Mr Dolo, I would like to go to paragraph 11 of your affidavit.

"I was deployed in Gauteng area by the Director of Special Operations, who was also Deputy-Director of Operations, Comrade Sipho Bulelani Xuma, alias Billy. He deployed myself, Kenny and Bongani, between January and February 1993. I was to be a Regional Commander of Special Operations."

Can you, Mr Dolo, tell the Committee about Kenny and Bongani, do you know the real names of Kenny and Bongani and do you know where are they now?

MR DOLO: The time I went to the then PWV area, I was with these guys, Kenny and Bongani. To say that I know their names, I don't know their names, we know each other with Chimurenga names. I knew them as Kenny and Bongani and for now I don't know where are they currently, because after that I was apprehended and I was released in 1998 and up to now I have no whereabouts of them.

MR MBANDAZAYO: Now Mr Dolo, am I correct to say that also this name, this Chimurenga name, Kenny, was also used by yourself in certain operations? Can you tell the Committee in which operations did you use the name.

MR DOLO: Before I went to the then PWV, I was operating around Free State, I was the Director of Operations for Free State region. At that time I was using this name of Kenny. After all there were two people in that area who was using this name, it was myself and someone else, there was someone else who was also using such a name.

MR MBANDAZAYO: Was it the procedure in APLA that you use various name, not one Chimurenga name?

MR DOLO: As we were operating underground, to many areas in the country not to be known by many people and also by the enemy of the then, it was advisable and as a guerrilla movement to use such names, Chimurenga names for security reasons.

MR MBANDAZAYO: Now will I be correct that whenever you moved to a certain area of operations, you would change the names and the names given to somebody else to confuse the then regime?

MR DOLO: Not per se. I don't know in this case, sometimes we will be given names, that you go to this area, then your name will be this one. Like in this case of the former Director of Special Ops, this name of Billy. He told us that he will be called, when we liaise with him he will such a name as Billy, but other units will use another name to call him to when they're addressing to him.

MR MBANDAZAYO: Now do you know now where the Director of Special Ops is, Sipho Bulelani Xuma?

MR DOLO: I'm not sure, I think he's around Transkei. The last time he said he's studying around in Transkei. I think he's still around there.

MR MBANDAZAYO: Chairperson, if there's no questions on that paragraph I'll move on.

ADV SANDI: Sorry, Mr Mbandazayo, if you'll be asking him questions on a different aspect, can I just ask him, these two people, Kenny and Bongani, did you say that you have not come across any person after you were released from prison in November 1988? You've not come across any person who says to you he did see one of these people somewhere?

MR DOLO: Pardon?

ADV SANDI: Have you come across any person who was able to say to you he had seen one of these people somewhere?

MR DOLO: Oh it was of interest to me after all when I was released, to look for these people as there was these hearings of Eikenhof. It will have helped me a lot after all if I was able to come across them, to try and talk with them and then if I appear now I stand with them here. I did manage to talk to a lot of people like to the former Director of Operations, Happy Lethlapa, he could not give me any detail about them. I tried many other people too, but up to no avail.

ADV SANDI: So at things are now, there's not even a rumour that one of these persons was seen somewhere?

MR DOLO: I have many things to do when I was released from prison. I was released in '98, late '98, I have to go home and perform some other traditional things and then I have to look for work too. Lucky enough, last year I was employed within the South African Air Force. I'm now with the Air Force, I'm busy with the Air Force. Like even now I was in the course, attending a course, I have to leave it in the middle of the course to come and attend here. So I've been a busy person for now. I didn't give much time, if I have to say it, to take this as a main priority, as I have to live on with my life.

ADV SANDI: Thank you. Thank you, Mr Mbandazayo.

MR MBANDAZAYO: Thank you.

Now paragraph 12, you indicated that your contact person in Gauteng was Comrade Lawrence Mnqandela, General Mnqandela, can you tell the Committee about Mnqandela.

MR DOLO: Mnqandela was a well-known person amongst the ranks of the youth of South Africa, as he was, I believe, the Chairman of the ANZANYO for this area and I think also for nationally. Within the politics he was known too and within the labour sector he was also known as he was also within the Committee of Hotelika(?). There's one labour organisation named Hotelika. I know him even before I left the country, the time we were still busy with the ANZANYO. I know him just as a comrade and lucky enough the time I was deployed here I was told that he is the person to contact and I have to use him as my courier too.

MR MBANDAZAYO: Thank you.

Am I correct to say that Mnqandela passed away in a car accident?

MR DOLO: Yes, I think he was on their way to attend a conference in Transkei, of the PAC, if I'm correct.

MR MBANDAZAYO: Now Mr Dolo, paragraph 13 of your affidavit, that you do not know the real names of Kenny, Bongani and Siha, even if you were given the real names you wouldn't be in a position to do that, it's only the members of the High Command of APLA, would I be correct to say that you were shown the names which were said to be belonging to Kenny, the real names of Kenny, which was known by the South African Police Services and they meant nothing to you, because you knew the operatives by their Chimurenga names?

MR DOLO: That's correct, provided if maybe they were in the position to furnish me with photos, I think that would have helped a lot as that ...(indistinct)

MR MBANDAZAYO: So if you were just furnished with names, it won't help unless it's accompanied by photographs?

MR DOLO: Yes.

ADV SANDI: Sorry Mr Mbandazayo, if I can just come in again, just about Kenny and Bongani once more. At the time you were operating with Kenny and Bongani as members of APLA, did you have any idea as to which part of the country they were coming from?

MR DOLO: I will say they were more fluent to Xhosa/Zulu, so that will make them around Eastern Cape, KwaZulu Natal area.

ADV SANDI: Thank you.

MR MBANDAZAYO: Thank you, Chairperson.

Chairperson, I'll move to paragraph 15 of the affidavit.

CHAIRPERSON: Very well.

MR MBANDAZAYO

"After they have finalised their reconnaissance they briefed me about the target which was a school bus, and I contacted the Director of Operations for approval of the attack and the approval was given."

Can you tell the Committee why the school bus was chosen as a target.

MR DOLO: If you can recall, it was around 1993, the time when there were these negotiations taking place in South Africa and as APLA and the PAC we have another view with regard to all that set-up, that of negotiations were just meant to sell out the people of this country, the AZANIAN people of this country, so we felt that as a Special Ops with Special Operations, with the politics involved and with the understanding of what was taking place in the country, if we can come up with operations that will have a turning point in the whole set-up, then hopefully things will be on our side.

And two, the question that - I think it has been stated after all already, the question of civilians, because I believe in that bus there will be civilians and kids too, a lot of kids. We didn't have any differentiation between, at that time, between soft targets and hard targets. So after considering the pros and cons that would be gained, I felt that really the gain is ...(indistinct)

MR MBANDAZAYO: Now Mr Dolo, I understand that the specific order was to attack a bus, but the bus was not attacked and instead another vehicle was attacked. Now would you say that what was done by the operatives was still in line with your command, or with your order?

MR DOLO: We were first an irregular army, a guerrilla force, meaning we didn't have orders that maybe would have to come from the President and then those orders will come up to the rank and file and would have to be executed as they are. As an irregular army we followed much with the question of initiative, that we are given absolute initiative and to take on our grounds when we operate and after the operation I didn't have any problem as a substitute to the original operation they were given, to carry it out, that this for time being is worth enough.

MR MBANDAZAYO: So what you are telling the Committee is what was done by the operatives was in line with the command an order, or in line with the policies and principles of APLA and PAC? They did not deviate.

MR DOLO: Yes.

MR MBANDAZAYO: But the only thing is that they took an initiative after the first target failed.

MR DOLO: Pardon?

MR MBANDAZAYO: They took their own initiative after they failed to reach the target which was their focal point of attack.

MR DOLO: Yes.

MR MBANDAZAYO: Now can you tell the Committee what steps, after they attack have taken place, what steps did you take in terms of reporting and who did you report to and how did you report?

MR DOLO: After the attack they came and briefed me, their Commander, I think it was Kenny, they briefed me and then after that I demanded a written report so that I can send it down to my seniors and I did have a written report and I have to do some changes to the written report, so that I can put it also, do it in my own writing and take whatever was written there and send it down to Transkei. I did report to - I sent two reports, one to the Director of Operations, and the other one to the Director of Special Ops.

MR MBANDAZAYO: So what you are saying is that the reports that were sent in Transkei to the Director of Operations and the other one to the Director of Special Ops, were written in your own handwriting.

MR DOLO: Yes.

ADV SANDI: Where were you when you received this report? Sorry, Mr Mbandazayo.

MR DOLO: I can't hear you properly.

ADV SANDI: Where were you when you received the report?

MR DOLO: The reports?

ADV SANDI: The first report from Kenny.

MR DOLO: I was around Soweto.

ADV SANDI: How soon was it after the attack had been carried out, was it on the same day?

MR DOLO: The same day that it came to me and we did have a shot.

MR MBANDAZAYO: Did you by - how did you send the reports to Transkei, to the Director of Special Operations and the Director of Operations?

MR DOLO: I'm sure exactly. I used to go to Transkei at that time, but I also had my carrier who was Lawrence Mnqandela. I'm not sure exactly whether I did go there myself physically to send those reports or I use Lawrence Mnqandela.

MR MBANDAZAYO: But what you are trying to - can you tell the Committee, did you by any chance go to Transkei and personally meet the Director or Operations and the Director of Special Operations and discuss the operation?

MR DOLO: Yes, as I've said, I used to go to Transkei, I would be called to go down there, then on another occasion I had to go there for reports or just for any needs that I may have.

MR MBANDAZAYO: Now it is - and also in your affidavit, do you confirm that one of the firearms that you used during the attack at a police vehicle in Diepkloof, was one which was used at the attack at Eikenhof, do you confirm that?

MR DOLO: Yes, I confirm.

MR MBANDAZAYO: And also, do you also confirm that Kenny who was commanding in the Eikenhof incident, was also part of your unit when you attacked the Diepkloof police vehicle?

MR DOLO: Yes, I do.

MR MBANDAZAYO: And you also confirm that when you were arrested, the day of your arrested you were with Kenny, but he managed to escape.

MR DOLO: Yes.

MR MBANDAZAYO: And also the AK47 was discovered during your arrest.

MR DOLO: Yes.

MR MBANDAZAYO: Which was used also at Eikenhof.

MR DOLO: Yes.

MR MBANDAZAYO: Now you have alluded in your ... that three ANC members were convicted of that incident and there was enough evidence in court to convict them, and also it is alleged that some of them confessed being the people who carried out that attack on Eikenhof, and now you are coming and telling the Committee that it's your unit that carried out the attack. What do you say?

MR DOLO: First of all, we have learnt that through torture, torture can extract a lot of confessions from people and that information might be used against people, but that spells one thing that, and as in this case, spelt one thing and ...(indistinct) one thing that such tortures, a long run, or such confessions that were started through torture, happened to be lies, as this has demonstrated in this case and that those guys, those three ANC guys were not involved in that Eikenhof accident and apparently were all released.

MR MBANDAZAYO: Now what you are telling the Committee is that the three ANC members were wrongly convicted for that incident.

MR DOLO: Yes.

MR MBANDAZAYO: Because they were never part of your unit.

MR DOLO: Yes, as you go through my submission, I have stated there that I have no knowledge of them, I've never met them before and they were not part of my unit and therefore they were not part of that operation.

MR MBANDAZAYO: Mr Dolo, was there at any stage any co-operation between ANC and PAC cadres, like APLA and MK on the ground?

MR DOLO: I will say at the highest level whereby the MK at the time, had suspended the armed struggle and APLA was still continuing with it, I will say there was none, but within individuals, people who felt supportive towards what APLA was doing, we did have hearsay that around Transkei there were MK people who were supportive to the cause of APLA and I will take it, it was not just a verbal support, but to this operation and where I was operating, I have never come across ANC people who happened to be part of my unit.

MR MBANDAZAYO: Now finally Mr Dolo, at that time when you were operating in Gauteng, what would have been your response if there was an ANC person or cadre who wanted to be part of APLA, because maybe he was not happy with the - he was not happy because ANC has suspended the armed struggle?

MR DOLO: I will have welcomed such a thing, that would have increased our strength, our numbers and I will have informed my superiors, as at that time I was not busy with any trainings. I was not involved in training of recruits, I was dealing with that at the time I was still around ...(indistinct) and the person, I would have sent him down to Transkei for further scrutiny.

MR MBANDAZAYO: Now Mr Dolo, really finally, is there anything you want to tell the Committee, or want to add to your testimony regarding this incident, Eikenhof incident?

MR DOLO: It won't be about the Eikenhof incident, what I can say is that we were fighting a vile force condemned internationally and we were it as an ...(indistinct) and we were the embodiment of our people to their right to self-determination. We felt that the government of the day, through the TRC, ...(indistinct) salute for freedom fighters. It's ...(indistinct) as we still have a lot of our cadres who are still quarantined in prisons, who still have to enjoy their life inside bars and now it's already 2000. It is said that we are liberated in 1994, and it is six years now in a row and there are still freedom fighters who are still lavishing inside the prisons of South Africa. I have this plea to the people of this country for freedom fighters, that they pardon them as the alternative to this ...(indistinct) TRC.

MR MBANDAZAYO: ... victims, some of them are sitting on the opposite side, what do you say to them?

MR DOLO: What I can say, it's a pity that in the course of the history, in the course of our days as we are living, that some of us lose our lives through many things and with the history of South Africa that we all understand as we all were brought and grew up in this country. I take it all, you know, what has happened in the past, as it was happening in the past, has led us to stand up here now and talk about those things, I will say it's a pity that they have lost their loved ones and we too have lost our loved ones. That's all I can say.

MR MBANDAZAYO: That is all, Chairperson, at this stage. Thank you.

CHAIRPERSON: Thank you, Mr Mbandazayo. Questions?

CROSS-EXAMINATION BY MS MTANGA: Thank you, Chairperson, I have a few questions to put to Mr Dolo.

Mr Dolo, you mentioned that the three operators that you used, Kenny Siha and Bongani, you didn't know who they were, how were they brought into your unit, or how did they join your unit?

MR DOLO: If I believed I said I went to the then PWV with Kenny and Bongani and Siha I met around here, and Lawrence. We met in Transkei and then we were joined together that day and we were told that we have to come here together.

MS MTANGA: In your other hearing in respect of Yeoville, the Yeoville application, actually you didn't apply for that, but two people who were also members of your other unit in Gauteng at that time, that is Matebula, and I've forgotten the second person, but in the Yeoville operation, according to the Court's information that is in the judgment, Kenny is mentioned there, the two members of that unit that were arrested and convicted, who applied for amnesty, couldn't they help identify who Kenny was, because he had participated in that operation as well?

MR DOLO: If I'm hearing you correctly, you are saying in that hearing in court, whereby the name Kenny was also used, you also say there were also other two people, that is Godfrey Matebula and Peter Mushundi, they were also mentioned there. I would take it Kenny was mentioned as a fourth person, if I include myself.

MS MTANGA: Yes, and my question is, did you try and ascertain from Matebula and Mushundi where Kenny is and where you could get hold of him?

MR DOLO: Oh well, I did after I was released out of prison. As we were approaching, as I have to adjust myself through this reconciliation, that I've even left with them, so I did try to talk to those guys, Godfrey Matebula, to try to get hold of those people, of Kenny and Siha and Bongani, so that if there is still anything left, we go and surrender it to the police and then we go forward with this reconciliation, but up to no avail, they say they don't know where they are.

MS MTANGA: Somewhere in your affidavit you mention that this General Mnqandela, at some point went to claim a vehicle that was taken by the police, what vehicle are you referring to?

MR DOLO: The time I was operating here, the Director of Operations, together with the Director of Special Ops, did send me a car, a legal car from Transkei, a Honda Ballade, and then at that time I didn't have a licence and I was operating illegally, so-called illegally, and then I took the car and then I gave it to Lawrence Mnqandela to register it under his name.

MS MTANGA: So this vehicle had nothing to do with Eikenhof?

MR DOLO: Pardon?

MS MTANGA: Would I be correct to say that this Honda Ballade had nothing to do with Eikenhof?

MR DOLO: With Eikenhof?

MS MTANGA: Yes.

MR DOLO: Yes, it was not used there.

MS MTANGA: Okay. You also say that the driver of the vehicle in the Eikenhof incident was recruited by your unit members, does this mean he was a PAC member? Was he part of APLA, technically, or was he just a PAC member who was asked to help?

MR DOLO: At that time more operatives of APLA are people who are coming from the ranks of the PAC, who have a background of the PAC, and more we'll prefer to recruit such people to join the ranks of APLA, as they have the background of the politics, of what we are fighting for. And the same applies with such a person, as I learned it later, yes he was a member of the PAC.

MS MTANGA: Was it also possible for them to obtain any person who had a vehicle at that time and request that person to use their vehicle for the operation, even if the person was not a PAC member? Or could they have forced someone to do that?

MR DOLO: For that operation the person, the vehicle owner, I don't think was a PAC member, I don't have any background about it, but when I get it from the media and from the unit itself, they have highjacked a car and then they used this fourth person to drive the car as they were not in the position to drive.

MS MTANGA: There's been some concern about the fact that you applied in 1996 and you did not include Eikenhof incident as one of the incidents that you're applying for, why did you only apply for Eikenhof in 1997?

MR DOLO: Oh it was still open, maybe at that time I was still having doubts to talk about it, but I did apply later on. There's no problem of that.

MS MTANGA: What doubts were you having?

MR DOLO: Pardon?

MS MTANGA: What doubts were you having?

MR DOLO: That I was still withholding information, that I won't talk about it at that time. I felt so. I don't see any problem with regard to such.

MS MTANGA: You also mentioned in your evidence and also in your affidavit that the reconnaissance was done and it was finalised and you were briefed about it, can you tell the Committee how long before the incident was this reconnaissance done and how many times was it done?

MR DOLO: I'm sure it would be a matter of days, I'm not sure about the many operations I appeared here in the TRC, for how many operations and all those operations involved reconnaissance too, but I will say it was a matter of a day or two. And I think I didn't say it here for record too, for the last time for the operation, the last reconnaissance, I did take part to it, whereby we used the Honda Ballade, to see for myself this bus. I did take part to it.

MS MTANGA: So you went to the spot where this took place?

MR DOLO: Yes, just to see for myself, to satisfy myself.

MS MTANGA: Another point of concern is that you gave an order, these operatives went and did a reconnaissance and they came back to you and they told you they'll be attacking a school bus, and then you took that and you consulted your Director of Special Operations, who was Sipho Xuma at that time, and he approved, and that's the order you gave. So what happened, what was the situation with the attack on the vehicle which you never sought approval for and you technically didn't give orders for?

MR DOLO: I informed them after the incident that instead of the bus we did attack this vehicle and then I furnished them with information with regard to such. That's then that the question of reports, written reports have to be sent down to them with regard to such, and lucky for us they did approve of what we did, they didn't have any problem to it.

MS MTANGA: When you say "them", who are you referring to?

MR DOLO: Pardon?

MS MTANGA: When you say "them", who are you referring to?

MR DOLO: When I say?

MS MTANGA: You say you informed them that the school bus was not attacked, instead a vehicle, another vehicle was attacked, so who did you inform?

MR DOLO: I informed the Director of Ops, together with ...(intervention)

MS MTANGA: Sipho Xuma?

MR DOLO: ... with the Director of Special Ops, yes.

MS MTANGA: Chairperson, can I be given a minute to consult with Mr Mitchley and Mrs Lampbrecht?

CHAIRPERSON: Yes, certainly.

MS MTANGA: Chairperson, I will carry on and put some questions to the applicant on behalf of Mr Mitchley, and Mr Lampbrecht would like to put his questions himself, once I have finished, if the Committee will allow him. And Mr Mitchley is indicating that he would like that too. Can I just consult with Mr Mitchley again, he's just whispered to me that he wants to put his questions himself.

Chairperson, I wish to end my questions and then if the Committee will allow Mr Mitchley and Mr Lampbrecht to put their questions, as Mr Mitchley has elected to do it himself.

NO FURTHER QUESTIONS BY MS MTANGA

CHAIRPERSON: Thank you, Ms Mtanga.

CROSS-EXAMINATION BY MR LAMPBRECHT: I just want to ask you one question, why did you take it out on children that were innocent and knew nothing about politics?

CHAIRPERSON: Yes, just for the record, the question is from Mr Lampbrecht. Yes.

MR LAMPBRECHT: I just want to ask you one question, why did you take it out on children that were innocent and knew nothing about politics at the time?

MR DOLO: Can you repeat your question as I was busy setting this thing.

MR LAMPBRECHT: I just want to know, why did you take it out on children that were innocent and knew nothing about politics at the time?

MR DOLO: I stated here that at that time this country, or other parties were involved in negotiations, we felt as the APLA and the PAC, that those negotiations were there just to sell out the people of the country and we needed to do something as operatives, as APLA operatives, that will be a turning point and such a turning point a favour on our side, meaning there will be no negotiations. So we sat down and understanding the politics involved and our operative, ...(indistinct) of the APLA, as it has no differentiations between soft targets and hard targets, so we felt it, it is worth the ...(indistinct) to attack such people. We have no problem in doing such.

MR LAMPBRECHT: Another thing I want to ask you, just now you had said in your, part of the question, you say it's not the main priority in your life that you've done a criminal offence, you've killed three people and injured two.

MR DOLO: The criminals that were condemned internationally, in my understanding were the government, the previous government and its supporters, that is maybe yourself and this other person too, were the criminals who were condemned internationally by United Nations, as what they were doing. Pressing ...(indistinct) apartheid is crime against humanity, so those were the criminals, not myself. I was not a criminal, I was a freedom fighter, fighting for this country.

MR LAMPBRECHT: But we're part of your country as well ...(intervention)

MR DOLO: And if you understand the history of South Africa you'll accept what I'm saying, that I'm not a criminal standing here. Instead, the criminals were yourself.

MR LAMPBRECHT: Why do you say we're criminals? What were we doing at the time? We were only 14 and 15 years of age, we knew nothing about the politics at the time.

MR DOLO: The criminals as they were declared internationally, were the previous government of the day led by the National Party and its supporters. You should have asked then your parents then what was happening, not to ask me here now if you're not satisfied with what I'm telling you.

MR LAMPBRECHT: I'm not satisfied, I'll never be satisfied. But to complete that, but we're also part of South Africa, why take it out on us, why can't you take it out on somebody else? I mean to me you're a coward, because you took it out on children at the time, I was only 14/15 years of age, I didn't even know how to use a gun at the time.

MR DOLO: Oh well, in a war situation you attack your enemy when it is weak, where it is weak.

MR LAMPBRECHT: But we aren't enemy, we were nothing at the time.

MR DOLO: At that time there was a tense situation, a war between two nations, an oppressed nation, that is an African oppressed nation against the invaders, the European settlers. So it was a war between such two nations.

MR LAMPBRECHT: That's all I have to say.

NO FURTHER QUESTIONS BY MR LAMPBRECHT

MS MTANGA: Chairperson, that ends the questions of Mr Lampbrecht.

CHAIRPERSON: Thank you, Mr Lampbrecht. Mr Mitchley?

CROSS-EXAMINATION BY MR MITCHLEY: It's rather strange that you had to go and change the report of this particular Eikenhof incident and do it in your own handwriting. My questions here is, do you guys as individuals, operators, get recognised for your achievements in terms of the targets that had been set for you?

MR DOLO: I don't get you when you say "get recognised."

MR MITCHLEY: Okay. You are set a task, you are a freedom fighter, you're told to attack a bus, but you didn't attack the bus, you guys attacked an innocent car, but we of course in your book were the enemies, did you get recognition for every attack or every achievement of hits that you were sent out to go and do?

MR DOLO: I will take that as something that happens to any grouping of people who are involved in such activities, where any kind of activities ...(indistinct), when you succeed in doing such you get recognised.

MR MITCHLEY: Right, so in this case of this incident, the Eikenhof incident which you have authorised the attack on the bus, you had actually nothing to do with the attack on our vehicle, yet you have claimed responsibility so that you can have the recognition. You changed Kenny's, his report, and you wrote it in your own handwriting and sent it to your Director of Operations, so you weren't there, you don't know what happened, you didn't even know it happened, you heard it through the media, yet you are claiming responsibility. It's just rather - I'm just making the comment, it makes no difference today, it's very convenient that a lot of the witnesses are dead, you don't know the operators, your colleagues that were with you, supposedly, in this. I make the comment, because it's quite interesting.

MR DOLO: And to respond in your comment too, I knew the people I was operating with, I didn't know their names and where they came from, I knew them as the comrades and I trusted what they reported to me and that was supported by the media reports. So what I reported was not something that I didn't know about and it as well known in the country too.

MR MITCHLEY: Given the past situation and your approach and your attitude towards the enemies, how do you feel today?

MR DOLO: Can you say that again?

MR MITCHLEY: Okay. Given the past situation, what you were doing, your freedom fighting, that's changed now, what is your feeling today?

MR DOLO: Firstly, I don't feel proud that for what I've did I have to come here and talk about it, because I would take it that this is an injustice to us, as we were the freedom fighters, as it is claimed that we liberated this country, so there was no need for us to come here and be given such a treatment that we are given, and that of first to go to prison and enjoy life in prison and then for us to get out of prison, we have to come here and talk about it. And secondly, I'm proud for what I've done in the past, I have no problem with it, I've no apology for what I've did. That's all.

MR MITCHLEY: Then why are you asking for amnesty?

MR DOLO: I didn't ask for pardon, I'm here to state my story.

MR MITCHLEY: No further comment.

NO FURTHER QUESTIONS BY MR MITCHLEY

CHAIRPERSON: Thank you, Mr Mitchley. Has the Panel got any questions?

ADV SANDI: Thank you, no questions from me Chair, thank you.

CHAIRPERSON: Thank you very much. Mr Mbandazayo, any re-examination?

MR MBANDAZAYO: None, Chairperson.

NO RE-EXAMINATION BY MR MBANDAZAYO

CHAIRPERSON: Thank you. Do you want Mr Dolo to be excused?

MR MBANDAZAYO: Yes, Chairperson, I would like Mr Dolo to be excused. I'm not sure, because I understand Gen Fihla he was said to ...(indistinct) Braamfontein, he was just getting his way here. If we can have a short adjournment, as also in the meantime I would like to consult for the next application.

CHAIRPERSON: Yes, perhaps we should just stand down and allow you an opportunity to ascertain where Gen Fihla is at this stage and when he is likely to be present here, and then you can give us an indication in chambers, as to that.

MR MBANDAZAYO: Yes, Chairperson.

CHAIRPERSON: Very well. Mr Dolo, thank you, you're excused.

WITNESS EXCUSED

COMMITTEE ADJOURNS

ON RESUMPTION

CHAIRPERSON: Yes, Mr Mbandazayo, has your witness arrived?

MR MBANDAZAYO: Yes, Chairperson.

CHAIRPERSON: Very well. Do you want him sworn in?

MR MBANDAZAYO: Yes, Chairperson, he can be sworn in.

CHAIRPERSON: Mr Fihla, could you please stand, can you just give your full names for the record.

RAYMOND MBULELO FIHLA: (sworn states)

CHAIRPERSON: Thank you, you may be seated. Mr Mbandazayo?

EXAMINATION BY MR MBANDAZAYO: Thank you, Chairperson.

General Fihla, am I correct to say you are presently a General in the South African National Defence Force?

GEN FIHLA: That is correct.

MR MBANDAZAYO: And attached to the Military Intelligence of the South African Defence Force.

GEN FIHLA: That is correct.

MR MBANDAZAYO: Now am I correct to say, before you became a member of the National Defence Force, you were a member of APLA and a member of the High Command of APLA? Can you tell the Committee which rank you were occupying, which position in APLA were you?

GEN FIHLA: In APLA I was Director of Military Intelligence and according to our rank structure I was holding the rank of a Brigadier in APLA, and then I integrated in 1994 into the South African National Defence Force.

MR MBANDAZAYO: And after you integration you became a General in the South African National Defence Force.

GEN FIHLA: I fist became a Colonel, because we were told that our rank structures were not an equivalent of the Defence Force structures, but then I was later promoted again into the rank of a Brigadier-General.

MR MBANDAZAYO: Now General Fihla, today Phila Dolo was applying for amnesty with regard to Eikenhof incident and this incident happened in 1993, and everybody knows that members of the ANC were convicted of this incident, can you tell the Committee, do you know anything about this incident, Eikenhof incident?

GEN FIHLA: I do know about it because I received an official report in my capacity as a Director in Military Intelligence in APLA, and this report was submitted to me officially and the whole operation itself was endorsed by the APLA High Command, so I got an official report and we took responsibility as well for the operation itself.

MR MBANDAZAYO: Now, can you tell General, at what stage did you become aware of the incident, was it in 1993 or after the, immediately after the incident, or is it a year or two years thereafter?

GEN FIHLA: I knew about this incident immediately after it took place, but I knew about the events that led to it, before the incident took place itself. That is was in 1993. As I'm saying that the report was officially conveyed to me through our structures internally, so I knew immediately after the incident itself, that the people who actually carried it out were our members.

MR MBANDAZAYO: Now, as APLA, what was your reaction after the arrest of the ANC members regarding the incident?

GEN FIHLA: I think the first reaction was that of joy, joy in the sense that it provided the security to our members who had actually carried out the operation. So to us the more the operation was not linked to APLA, the better for the security of our men, so we were happy with that.

MR MBANDAZAYO: Now, Phila Dolo testified that the target was a school bus, but at the end of the day they did not attack the school bus, but they attacked another car. Would you say that was still in line with APLA and PAC policy?

GEN FIHLA: Definitely it was in line with the APLA policy, because the basic policy of APLA was that we did not separate between what used to be called hard and soft targets, to us we had only one target. So whether it was the school bus, whether it was a bakkie, to us it meant the same thing. So in terms of APLA policy, that fell within that scope.

MR MBANDAZAYO: Now if arguments are advanced that these were just innocent schoolchildren who were in the bus who were attacked, who knew nothing about the South African policies and all those things, knew nothing about politics of the day?

GEN FIHLA: The problem we had with APLA was that all of us would recall that the situation was that on the black community's side, schoolchildren were dying, all the people were dying and we sat in the High Command to discuss whether we needed to separate in terms of targets, I remember the APLA Commander, Sabelo Pama, used a Xhosa proverb that "A thorn can only be taken out by another thorn", meaning that if people kill your children, then you need to do likewise, so that the same feeling that we are feeling must be felt on the other side. So that was the basic position of APLA, and therefore the question of whether some people were innocent or not, it didn't come into our minds. It is unfortunate that the South African conflict took a racial connotation, but it was the reality of the situation, so when we looked at the situation ourselves, we were looking at it in terms of what it was to the black people and therefore we also inflicted the same pain that the black people were feeling as well. So whether the people were innocent or not, it didn't fall within our agenda in the High Command.

MR MBANDAZAYO: Now I will come back again to this point. Do you know that the three members of ANC who were convicted, confessed that they participated in the event, the Eikenhof incident and they were subsequently convicted because of their confession and other evidence, some witnesses who said they were there, and now Phila Dolo and yourself are confirming that it was an APLA operation which has nothing to do with them, what do you say to that?

GEN FIHLA: I'm not too sure about the circumstances under which they confessed, if they did confess, but the fact of the matter is that the police in the final analysis did get information that the people who carried out the operation were APLA members, because when they confiscated some documents in the Transkei, part of those documents did give a diary of incidents and operations that were carried out by APLA, and one of such incidents was the Eikenhof incident, which the police themselves must have found in those documents. Now if they had been honest enough themselves, they would have maybe revisited their case, but they didn't do that. So whether they confessed or not, I'm not too sure about that.

MR MBANDAZAYO: Now Phila Dolo testified that the authority to attack the school bus was received from Sipho Bulelani Xuma, who he said at that time he was Deputy-Director of Operations and also Director of Special Operations and that also there is also some evidence, that is, some people pointed out in the photographs that Sipho Xuma was present in the operation.

GEN FIHLA: I can't remember whether Sipho Xuma was present in the operation, but all I know for a fact is that he knew about the operation, in his capacity as Deputy-Director of Operations. Now it was to his discretion to decide whether he participated himself personally in any operation or he gave the responsibility to his subordinates. So I cannot recall whether he was there in himself or not, but to my, if my memory serves me well, I don't think he was there himself, but I think he knew about the operation.

MR MBANDAZAYO: Let me put it this way, was it possible for Phila Dolo to give an order to Sipho Xuma to go and execute the operation?

GEN FIHLA: The reverse would be the case, subordinates would never give orders to the superiors.

MR MBANDAZAYO: Chairperson, that's all, I think I've covered what I wanted General Fihla to cover with regard to this aspect of this incident. Thank you.

NO FURTHER QUESTIONS BY MR MBANDAZAYO

CHAIRPERSON: Yes thank you, Mr Mbandazayo. Ms Mtanga, any questions?

MS MTANGA: Chairperson, I do have one question.

CHAIRPERSON: Yes, go ahead.

CROSS-EXAMINATION BY MS MTANGA: General Fihla, you've mentioned that when the ANC 3 cadres were arrested for this incident, your organisation was happy because it meant that your cadres who carried out this operation were secured, they couldn't be arrested for it, what was the attitude towards the application by Mr Dolo?

CHAIRPERSON: For what?

MS MTANGA: For amnesty in respect of this incident. What was the attitude of the APLA High Command?

GEN FIHLA: The APLA attitude? It took us a long time to finally decide, to decide whether we accept the operation or not and eventually one important motivating factor for us to accept the operation was that also our consciences were haunting us, that we knew that there were people, comrades who were sitting in prison who had not - who were innocent, and we took a long time to deliberate and debate this issue and finally we accepted that we needed to take open responsibility of the operation. This is basically what led to Phila finally applying for the application. I also did assist with the legal representatives of the ANC members who were arrested, I went to meet them in Johannesburg to give evidence, so that they made sure that they succeeded in releasing the members. That was basically the main driving force.

MS MTANGA: There a concern from the families who are affected by the Eikenhof incident, who lost their loved ones, and the main concern is that we have a person like Phila Dolo applying for amnesty and as far as the families are concerned, all he's saying is pure hearsay and they still do not know what really happened and who the people are that carried out this operation. What do you say to this? Would you be in a position to assist them identify the operatives, because they feel what's being said by you and Phila, is just hearsay, not direct from the people who were carrying out this operation.

GEN FIHLA: I think it will be difficult to convince people who suffered and felt pain in the course of the conflict in the RSA. I appreciate the concern which they have, and the best person who could assist them in pointing out the other people who participated in the operation, is Phila himself, because I may not have the details myself, exactly who were the people who were with him at that time, but I fully agree with their concern, it is normal to me.

MS MTANGA: When a decision was taken that Phila must apply for this operation to rescue the ANC 3 who were in prison at that time, was there anything done by APLA High Command, to try and locate other applicants to apply? The real operators in this incident to apply.

GEN FIHLA: The issue of application for amnesty, we left it to the individuals. What we did ourselves was just to highlight the significance of amnesty and we also indicated it to our members, the implications of not applying for amnesty, but we were not in a position to compel people to apply for amnesty. Now the problem with APLA is that the issue of amnesty, together with the issue of integration and the issue of negotiations prior to 1994, those were the matters that caused serious divisions, starting from the PAC and APLA itself, and eventually we had to be convincing ourselves firstly, with participating in the talks, we had to convince the leadership that it was necessary to participate. After the elections it became difficult for us to convince APLA members to integrate into the National Defence Force, and finally we took a decision that that would be voluntary, those who would not want to integrate, it was their choice. Equally with the application for amnesty, we also left it into the choice of the members.

MS MTANGA: Thank you, Mr Fihla. I have no further questions, Chairperson.

NO FURTHER QUESTIONS BY MS MTANGA

CHAIRPERSON: Thank you, Ms Mtanga. Mr Lampbrecht, have you got any questions you want to ask? Mr Mitchley? Panel?

ADV SANDI: Just one question from me, Mr Chairman. Thank you.

General Fihla, just to get more clarity on this, is it the position here that the persons who are alleged to have been involved in the attack on this particular vehicle, you didn't know them personally?

GEN FIHLA: Not that I don't know them personally, I think maybe the - what I can indicate maybe is this, what we used to do, the people who carried out an operation would not be revealed to other people, except the actual Commander himself, all I would receive myself was a report that this operation has been carried out by us and the Commander of this operation would be this person. But that would be diarised by the Commanders themselves.

The reason why we did that, it was mostly for security reasons, it was on the need-to-know basis. Now if I was not involved in a particular operation, there would be no need for me to know the details of that operation, for security reasons. And we deliberately did that to make sure that in case anything happens, because I myself would come into the country, in case I'm arrested, I would not be in a position to reveal what I'm not supposed to. So that was basically the reason.

ADV SANDI: Let us take them one by one. The information we have, or rather the evidence that has been led is to the effect that the people who carried out this attack were Kenny, do you know that person?

GEN FIHLA: Who?

ADV SANDI: Kenny.

GEN FIHLA: Kenny who? Kenny Fihla?

ADV SANDI: No, that is all that was given about him, there's no surname, it just says Kenny.

GEN FIHLA: There were about three Kennys that I knew, so I would not be sure which one that one is, and one of them, Kenny who it was here, because two of them, Kenny was not their real names and only had that name. So if I could get maybe the surname I could know ...(inaudible). They are Kenny Madoda ..., that one, I know that one, he's my younger brother, and that was not his real name, it was his combat name.

ADV SANDI: Where is he now?

GEN FIHLA: He's a member of the National Defence Force.

ADV SANDI: Do you know Bongani?

GEN FIHLA: Which Bongani, because there are many Bonganis as well, unless he's here. I may not be sure which Bongani, if I can get the full names I could be in a position to ...

ADV SANDI: ...(inaudible) Bongani. If there were more than one Bongani, would you know which particular Bongani was involved in this operation?

GEN FIHLA: I cannot be sure, but the immediate Bongani who comes to mind can be one who was, that was his real name, but the name he was using was Keith, so I'm not too sure whether it's that one.

ADV SANDI: Would you know Siha, do you know which Siha was involved in this?

GEN FIHLA: I don't know Siha, I don't know that name.

ADV SANDI: Thank you. Thank you, Chair.

JUDGE MOTATA: General, you mentioned that you received an official report about this Eikenhof incident, what I want to find out from you is that if you get a report about an incident, are you also in that report having names of the operatives who carried out the mission?

GEN FIHLA: Basically that would not happen, the only time maybe names would be revealed is when the Commander of APLA himself wanted to be told who carried out the operation, but under normal circumstances, the way we operated, we never used to get the names. The reason was that we were a bit worried about our means of communication. Like in my case, I was based in Zimbabwe for instance, now if I would receive a report in Zimbabwe, it means that the report will come to me either through the radio or through the telephone, now if the names of the people are revealed through the telephone, then that would be a serious breach of security, so we wouldn't allow that to happen. So the only time possibly we'd get the reports in terms of names, was when maybe we were sitting in the High Command meeting and if the Commander himself wanted to know the full details.

JUDGE MOTATA: Now this was also sanctioned by the High Command, if I understood you well, was this revealed at that High Command?

GEN FIHLA: The operation itself, prior the time it took place, was not necessarily sanctioned by APLA itself, by the High Command, but after the incident itself, the reported did come that this operation was carried out by our members and the High Command accepted that operation. But we didn't get the report because this operation was not planned beforehand, "that we were going to attack this bakkie in Eikenhof, does the High Command approve or not?" It was not the case. So it just happened and then the High Command just got a report about it.

JUDGE MOTATA: Thank you, Chairperson. Thank you, General.

CHAIRPERSON: Thanks very much. Mr Mbandazayo, any re-examination?

MR MBANDAZAYO: None, Chairperson.

NO RE-EXAMINATION BY MR MBANDAZAYO

CHAIRPERSON: Thank you. General Fihla, thank you, you're excused.

WITNESS EXCUSED

MR MBANDAZAYO: Chairperson, that's the evidence for the applicant, thank you.

CHAIRPERSON: Thank you, Mr Mbandazayo. Ms Mtanga, is there any other evidence that will be presented?

MS MTANGA: Chairperson, I intend to lead no evidence.

CHAIRPERSON: Mr Lampbrecht, did you intend to give any evidence? Thank you. Mr Mitchley? Thank you.

Mr Mbandazayo, are you in a position to address us?

MR MBANDAZAYO IN ARGUMENT: Yes, Chairperson.

Chairperson, only I'll touch on a few issues, I won't go to the requirements of the Act, Chairperson, in detail, but suffice to say to the Committee that it's my submission that the applicant has fulfilled all the requirements of the Act and that the applicant belonged to a bona fide organisation and acted on behalf of that organisation, which is APLA in this instance and he had made full disclosure of his involvement in this incident and further, that he has not acted for any personal gain in this instance.

Chairperson, I know that there have been some doubts as to whether this has been an operation which belonged to APLA, or not, but I want to point out a certain few things. The reports about the incident were received by the police in 1995, when they raided Umtata and Lesotho, and the reports were written in 1993, and at that time Phila Dolo had not applied for any amnesty for this incident. So Chairperson, even if one would say it's just a fabrication, why would he make a report about an incident even before he knew whether he would have a chance to apply for amnesty or not? So it's clear that the report itself have nothing to do with the question of application for amnesty, it was a routine thing to do, for him to report to his Commanders about the operation. And the police discovered that in 1995 and they decided to keep them secret.

And furthermore, Chairperson, it's not in dispute that the firearm, one of the firearms that were confiscated when the applicant was arrested the same year, in 1993, at the end of May 1993, was linked ballistically directly to Eikenhof. And all this the police kept it secret, they never divulged this whole thing. So it's clear, even then at that time, nobody knew about that there will be any amnesty process at that time. So Chairperson, there's no way that one can say that this whole thing, the firearm, the reports were a fabrication.

So it's therefore my submission that it's clear that the incident, the Eikenhof incident was done by APLA and was not done by ANC members, and he had nothing to do with the ANC members. As, Chairperson, it's clear from the application of the ANC members, when they applied for amnesty they left it blank because they could not justify it, because they were not involved, they said "we were never involved in this incident". Now if they were involved in the incident, they had an opportunity before the amnesty, to write there that "the reason why we did this was because of a, b, c, e", but unfortunately they couldn't do that because they had nothing to do with the incident.

So Chairperson, I know the other contentious issue is the question of the people who were involved in the incident itself, who were directly involved in the incident. Though ...(intervention)

JUDGE MOTATA: Before you come with that, Mr Mbandazayo, you say the police subsequently became aware when the documents belonging to the PAC were impounded in 1995, and they kept quiet about this, are you suggesting that they kept quiet because the three ANC members were already sentenced, that is in the end of June 1994? Would that have caused an embarrassment to, probably the system, that they had incarcerated wrong people?

GEN FIHLA: Chairperson, I wanted to put it clear that that's the reason, simply the reason, because they knew that wrong people were convicted.

And Chairperson, it is clear the reason why the reports - it was difficult even to get the reports, they have to be stolen, Chairperson, in order to get the reports. If I may put it, they have to be stolen from the offices of the police and also from the Attorney-General, because they didn't want anybody to know about this thing, because wrong people have been convicted. So it's a battle. And even what has been put by Phila Dolo in his affidavit, Chairperson, it's difficult to get the reports, they didn't want to release the documents, so that the people were actually involved, could be identified, because they want to leave it open, to create that doubt that these people, Phila Dolo, is lying about that APLA was involved in this incident, the three ANC people who were convicted were the real people who were convicted. They wanted to leave that doubt, because, Chairperson, the reason being that whenever we have written to them saying "Can you give us the names of so and so, who are the real names of these people", it was difficult for them. And of course after consultation with APLA High Command, they said the problem is that those names are coded, unless they get somebody from APLA who will tell them what the actual name is, it's difficult for them. You know, they may be able to decode other names, to say it was so and so, but it's difficult to, it will be very difficult to all of them. So we are sitting with that problem, the police don't want to release the documents, because the documents will help and clarify the whole issue about this incident, because they have convicted the wrong people who were convicted.

JUDGE MOTATA: The denial goes further, that when newspaper reports carried that the PAC is claiming that they carried out the Eikenhof operation, then it was somewhat said that this is a collusion, that the PAC people colluded with ANC that the three should get out because amnesty was now before the Amnesty Committee. That there is nothing of that nature, are you saying that it's a perpetuation of a lie?

MR MBANDAZAYO: Chairperson, I don't even - I've tried to figure it in my mind how would that happen. Chairperson, fortunately I was involved when this thing came out, when Phila Dolo was applying for amnesty I actually met him. Also to myself it was a shock, because I knew people who were convicted of this incident and I couldn't believe it, and he referred to members of the High Command and who confirmed it. And to say that somebody who's - at Port Elizabeth, he came here for operations and after he finished his operations, he was arrested ...(indistinct) when he was staying he was serving his sentence in Port Elizabeth, to say he colluded, ANC and PAC decided to collude in this aspect, and everybody knows the relationship between ANC and PAC, even about the new dispensation. I'm unable to figure out how would that happen, that collusion, except to agree with you, Chairperson, that it's still the perpetration of trying to hide - in fact, Chairperson, if I can put it bluntly, people were embarrassed about the whole thing when this came out. Everybody was embarrassed when Phila, the applicant, came out that Phila applied for amnesty, they were hoping that nobody will come out. The PAC would up come out, APLA would not come up with this incident, it will be left as it is and those innocent people would rot in jail, but when it came up, everybody who was involved in the case was embarrassed. So everybody has to be involved in a face-saving situation, and now the stories have to come up and say look, there was a collusion between ANC and PAC.

If one followed this incident after it came out in the papers, I doubt one can say there was a collusion, because there was an exchange of words, you know some ANC people were saying look, the PAC owes them an apology about this thing and all such things and there was an exchange of rude words that "look, we don't owe you any apology about this". So definitely, if one can say there was a collusion, I doubt where one would get that. It's clear that it was just as General Fihla put it, that it was working on their conscience about this thing, that those people were innocent and Phila decided that he has to come out clean and tell the whole world that "look, those people are innocent".

CHAIRPERSON: Mr Mbandazayo, just to round up that particular issue that you have been talking about now, what eventually happened in regard to the three people that were convicted and sentenced for this particular incident, and what was the eventual attitude of the prosecuting authority and the police, in regard to that particular side of the matter?

MR MBANDAZAYO: Thank you. Chairperson, when this thing came out, luckily I was involved because I was assisting the legal team of the three, the attitude of the police was always - I remember, Chairperson, I was in Bloemfontein in August 1998, I think it was, I don't know whether the rank is Major or Colonel Hugo who actually confiscated the documents, met me in Bloemfontein and specifically told me and asked me why are we pursuing this matter because the APLA guys will never be tried and convicted for this offence, the only thing that we'll do is just to embarrass the South African Police Services and the justice system as a whole, is whether what we are doing, we are trying to do that, "let's leave this thing as it is". And he told me that at that time, Chairperson, as you would remember that there was going to be a hearing in Kibler Park, where this matter was going to be heard, and he told me in no uncertain terms that this matter is not going to be heard, "we'll make sure that this matter does not come up for hearing". And Chairperson, as you know that this matter did not proceed at Kibler Park. So it was clear to me that the police and everybody involved were trying their best not to have this matter heard and luckily when the whole - maybe the hope was that the courts which this matter ended up in, the Supreme Court of Appeal, would not rule in favour of the convicted three, and luckily the ruling was in their favour and they knew that they have lost. They had no reason now to go and oppose that this matter can no longer come to the hearing, when the Supreme Court ruled that this matter must be retried and Phila Dolo, Sipho Xuma and all others who were mentioned, should be called as witnesses. So it was clear that they will no longer now try and sweep this matter away.

CHAIRPERSON: What happened to the retrial that was ordered?

MR MBANDAZAYO: Chairperson, I understand, when - the return, that was ordered that at the end of the day it had to come before the same Judge who heard the matter and he recused himself and eventually the Director of Prosecutions in Gauteng decided no longer to proceed with the matter, prosecute the matter again.

CHAIRPERSON: So the entire case was simply just dropped like that against those three persons that were convicted and sentenced?

MR MBANDAZAYO: Yes, Chairperson, eventually the case was dropped against the three people were convicted and sentenced for this case.

JUDGE MOTATA: Mr Mbandazayo, you mentioned that this Hugo who was either a Colonel or a Major, I did not follow well, why was he saying that the Amnesty Committee would never hear the application of Phila Dolo?

MR MBANDAZAYO: Chairperson, he said that they are doing their best. At that time I did not know what was happening and I understand that, after that I learnt that Mr D'Oliviera, who was the then Attorney-General of Gauteng, went to see the Chairman of the Amnesty Committee, Judge Mall, about this matter. I was not aware at the time, I was in the hearing, I did not know. I subsequently learnt that that's what he meant and that's why the matter was removed from the roll. So that's why he was ...(indistinct - no microphone). I did not take him seriously because I didn't know anything at that stage and I felt that maybe he's just threatening, he wants us to, Phila to withdraw the matter. That's what they were impressing upon me, that Phila Dolo should withdraw this matter.

CHAIRPERSON: Yes, thank you for the clarification. You can proceed with your further submissions, if you have any.

MR MBANDAZAYO: Can you come again, Chair.

CHAIRPERSON: No, I just thank you for the clarification, but I said that if you have further submissions, you can proceed.

MR MBANDAZAYO: Chairperson, if I may, just to add that I'm just receiving - not about this matter which you wanted clarity about, what happened eventually to the case, that at the end of the day I understand the prosecuting authorities made their own investigations too. Adv Ackerman and others were not convinced of the guilt of the three, that is the ones who were convicted and sentenced to death, that is the three ANC members. So after they made their own investigation, they were not convinced of their guilt also, so that's why the case was dropped eventually. Thank you, Chair.

ADV SANDI: Mr Mbandazayo, is it not part of the information here that during the time of the prosecution in court, a lot of information which was favourable to the accused', was withheld from the Defence, it was never disclosed?

MR MBANDAZAYO: Chairperson, I didn't want to go to the matter of the three Eikenhof, it's clear Chairperson, I've got many records of this, I've been following ... luckily, the legal representative of the ANC 3 kept me informed. Even the records up to the Supreme Court of Appeal, I've got all the records about the whole thing and the outcome of the whole matter. It's clear that also it came out in the Supreme Court of Appeal, and the Judges were not happy, that vital evidence was withheld from the Defence about this, which was favourable to the accused at that time. That for instance, certain people - that the three were not pointed out by certain witnesses, they pointed out certain people who happened to be linked to APLA, those people who were pointed out. But the whole information was withheld, everything was withheld from the Defence.

So it leaves one with one question, whether at that particular point in time, during the prosecution of the trial, of the Eikenhof 3, was it not that the prosecuting authority and the police aware that these were the wrong people? So it leaves one with one answer, that at the time of the trial they were aware. As the affidavit of Phila Dolo indicates, he was arrested on the 28th of May, if not 30th of May 1993, and Landman, Major Landman, I think he was a Major then, who arrested him, who was involved in the Eikenhof matter also, told him, that's in the affidavit, told him that, "I know that you are the people who were involved in the Eikenhof incident, but I'm not going to go to Transkei and look after those people." So it's clear, during the trial, even before the start of the trial the police were aware that these were the wrong people.

ADV SANDI: I further - sorry, Chair, I further notice from the papers contained in the bundles that some of the witnesses who appeared in court and testified against the so-called Eikenhof 3, they subsequently said that they were simply saying what they had been told to say in court.

MR MBANDAZAYO: Chairperson, let me be open about this matter. There is a Wesselsbron incident which, in 1998, I'm referring to ...(indistinct) in Bloemfontein, which I was involved in when Colonel Hugo, Major Hugo came to me, and it was involving a supermarket and the alibi of the three was that they were in Wesselsbron and on the papers it's clear that when the owner of the Wesselsbron - Major Landman went to Wesselsbron, where the applicants, where the three Eikenhof were at the time of the incident which happened here at Eikenhof, the three members of the ANC, which was their alibi, and there was - they met somebody who, the witness who was there and whose shack was destroyed and was burnt and Landman told this guy that the three were involved in that matter and if he wants them to be prosecuted, he has to give evidence that they were not at Wesselsbron during the incident of this. And there was a braai there and also the owner of the supermarket was involved in that matter at Wesselsbron. So there's quite a lot involved in this matter. The groundwork was done by the police to close all the loopholes, so that they can make their case against the three because they were aware that they were prosecuting wrong people. So there's quite a lot involved in this matter, there was a lot involved in this matter.

CHAIRPERSON: Yes, I think that the actual relevance of all of that, for our purposes, is that it might very well be then, listening to what you had said to us in this regard, it might very well be that some of the answers which the victims are seeking, because that's one of the issues that they raised with your client and with your witness, they want to know who was involved, the identity of the perpetrators. So it might very well be that some of that information could have been available at a very early stage in the investigation and that that sort of information could have been made available to the victims way before the stage that we have reached now.

MR MBANDAZAYO: It's clear, Chairperson, that the information is there, but it's with the police. The information is there, the whole information with the victims, which they want, is there with the police, but they don't want to release that information.

You know Chairperson, if I may refer, there was an incident which one of the APLA was applying, Lichtenburg incident near Bophuthatswana, where we were involved in one application you know, where the Committee decided that at the end of the day you find out that the applicant was the victim, where every document was destroyed, there was nothing regarding that incident. Only to find that the reason why they destroyed the whole evidence, the police, you couldn't get even the police docket regarding that incident, was because the police were the perpetrators and the applicants were the victims and innocent people were shot by the police and they did not want that to come out.

And the reason why I'm quoting that is because even in this case it's clear that the only reason why they don't want to release that information, they don't want to release those documents, is because it's going to embarrass them because it was alleged that the three who were convicted made a confession that they were involved in this incident and now, if now an evidence comes out after people have admitted that "we were involved and we're the people who did that thing", that they did not do it. Now the question will be, what is the position with the confessions? Whether somebody can rely on the confessions at the end of the day.

So at the end of the day it is a serious indictment in our judicial system, hence everybody is so, if I may use the word I know, so sticky about the whole thing. When this came out, nobody wanted anything, everybody was touchy, that no, no, no, the right people were convicted. Nobody wanted to touch it. So it's a serious indictment in our judicial system, the whole judicial system, that at the end of the day those innocent people have to stay the whole six years in jail, having done nothing. And in order now to save their face, they have to withhold every information which is there, to the detriment of the victims. And the victims are here, they want solutions to their, who did this to them, and we cannot provide any, and yet the police are sitting with that information.

CHAIRPERSON: Thank you, Mr Mbandazayo. Are there submissions on the merits of the application?

MR MBANDAZAYO: Chairperson, finally - I won't go much now, finally my submission is that Mr Dolo has met all the requirements of the Act, and that he should be granted amnesty as applied for. Unless the Committee would like me to address on any other specific point regarding this matter, thank you.

CHAIRPERSON: Yes thank you, Mr Mbandazayo. Ms Mtanga, any submissions?

MS MTANGA: Chairperson, I have no submission to make, except to say that the families of Mr Mitchley and Mr Lampbrecht would like to leave this matter in your hands and they'll be bound by your decision.

CHAIRPERSON: Thank you, Ms Mtanga, we noted that.

Mr Lampbrecht and Mr Mitchley, do you confirm what Ms Mtanga has submitted to us? Yes, thank you.

Mr Mbandazayo, have you got anything further you want to add?

MR MBANDAZAYO: None, Chairperson, thank you.

CHAIRPERSON: Yes, that concludes the formal part of the application. This is a matter, as is apparent from the discussion that had occurred here, that had long history and that involves a number of issues. We would like in the circumstances, to consider the application and to consider the submissions that were made to us, and take time to decide the application. So under those circumstances, the decision in the matter will be reserved and we will notify all of the interested parties as soon as the decision in the matter is available.

We take the opportunity to thank you, Mr Lampbrecht and Mr Mitchley, for having taken the trouble to come and to participate in the hearing. It is, in our view, important that the hearings should be open and accessible to interested parties, particularly those people who are the victims of the incidents for which amnesty is being applied for. So we appreciate your presence and your participation.

We could just point out that of course, our duty is one that is prescribed by the law, in the sense that we must judge the application that is placed before us, against a set of requirements that is written into the law. Where the application complies with the requirements that are spelt out in the law, we are left with no discretion but to grant amnesty under those circumstances. To the converse, where the application that is placed before us, does not comply with the requirements of the law, again we are left with no discretion, we have to refuse the application. And that is the exercise that we would be doing. We would like to take some time to reconsider everything that was placed before us and to then judge the application against those requirements which are set out in the law. We will endeavour to conclude that exercise as quickly as circumstances permit. Unfortunately the Committee is under, and has been always, under tremendous time constraints, but even so, we appreciate the fact that there are important considerations that apply to these matters and we do our best to conclude them and finalise them as soon as circumstances permit, which is what we intend to do in this case as well. So in the circumstances, the decision is reserved.

Ms Mtanga, I assume that we would best take the adjournment at this stage and will await you to indicate to us when the next matter is ready to be heard.

MS MTANGA: Yes, Chairperson, I will do so. Can you perhaps indicate what time should we reconvene.

CHAIRPERSON: Yes, it is past lunch-time, will you give us an indication around 2 o'clock what the position is. Let me put it this way, we would like to start in the region of 2 o'clock. We've got two further matters on the roll for today, which we would do our very best to conclude, so if you can give us an indication around 2 o'clock. We will certainly be ready, but you indicate to us whether everybody else is in a position to proceed and we will then reconvene.

MR MBANDAZAYO: I was going to request, because I know I'm involved, Chairperson, that if we put it exactly, at the latest at half past two, because these two incidents we are going to hear, I haven't consulted with the applicants as compared to others, I've been consulting with others since 1998, so this matter is new. I've just received the bundles on Friday, so I want to have some time and I think it won't be long, even the hearing for them. If I am given just enough time, we'll be able to shorten matters, we'll be able to accommodate the two applicants today and finalise them.

CHAIRPERSON: Will it assist you if we reconvene at two thirty?

MR MBANDAZAYO: Yes.

CHAIRPERSON: Very well.

MR MBANDAZAYO: Thanks.

CHAIRPERSON: Yes, we will then take the luncheon adjournment and we'll reconvene at two thirty.

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