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Type AMNESTY HEARINGS
Starting Date 27 July 2000
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CHAIRPERSON: Good morning. We want to start the proceedings. For the record it is Thursday, the 27th of July 2000. We're continuing with the amnesty application of Moti, AM6230/97, at the JISS Centre in Johannesburg. Appearances are as would appear from the record. We have had a delay this morning in starting the proceedings. Unfortunately the applicant, who is in custody, has been brought to the venue late by the Correctional Services and in the meantime there were some administrative difficulties that had arisen in regard to this Panel's hearing schedule for next week in the matters that we have on the roll there and we had to intervene in that process to ensure that we would have a smooth running hearing next week. So we apologise that it was not possible to start as we had anticipated.
Mr Moti yesterday we discussed your evidence of the three instances that you were involved in in car theft. The three matters that you mention in your application being 9, 10 and 14. Do you recall that?
MR MBANDAZAYO: Chairperson, I think we have withdrawn application number 2, so I ... (indistinct) process operation 2. As indicated that operation 10 is linked to operation 2, so he can't be cross-examined on an application I mean which is withdrawn, so it's no longer an application.
CHAIRPERSON: Yes, because the vehicle according to the testimony of the applicant, the vehicle in operation 9 was used in operation 3, which doesn't seem to concern your client. I don't think your client's jewellery was stolen.
CHAIRPERSON: And operation 10 he says is linked to operation 2 which is not before us and obviously wouldn't concern your client either, so I don't know where you're going to. You said that you ...(intervention)
MR MOOIJ: Chairperson with respect, the fact that the application in respect of operation 2 was withdrawn here at the hearing, in my respectful submission does not mean that he cannot be cross-examined on it, especially where it goes to issues of credibility.
CHAIRPERSON: Well, perhaps we must make it quite clear to you Mr Mooij that in so far as these proceedings are concerned, it's not a retrial of the matter, it is not a trial of any description, it's an administrative procedure before us. There are very clear constraints on what we are called upon to decide. The ambit of the requirements for amnesty is quite clear. There are real limitations on questions like credibility, so unfortunately you'll find that if you steer too far away from what is strictly before us, I'm going to unfortunately limit your cross-examination, it's a right that we have. We don't want to exercise it unnecessarily, but in the interests of the overall process, please bear that in mind that we are not retrying the matter.
MR MOOIJ: Chairperson, with respect, I'm not trying to retry the matter or try to revisit the minutest detail of the trial again. However, this is an application in which the applicant has to, to a certain extent he bears an onus, firstly, secondly he is under oath to speak the truth and where that becomes in issue, in my respectful submission, we've got the right to cross-examine him in that regard, especially where it goes to issues of credibility.
CHAIRPERSON: Well, as I've - I don't want to repeat myself. I think I made it clear to you that we are not deciding matters that are not relevant for our purposes and we're not in a trial situation where you can cross-examine at length on peripheral matters under the guise of credibility. It doesn't happen here. You'll find that you'll be limited quite considerably if you were to steer in that direction and where it concerns incidents that your client has got no interest in, you'll find that I will unfortunately limit you and you'll have to persuade me that what you are doing is going to assist us in deciding the matter before us, so if you can get to the point of all this, it might help me to understand where you're trying to drive it.
MR MOOIJ: Certainly, Chairperson. Mr Moti, in order to comply with the Chairperson's directives, I'll appreciate it if we could this as brief as possible, therefore I'll just ask you this. The vehicles that you were involved in the repossession of, could you just tell the Committee what those vehicles were? We know that there was a BMW involved and there was a microbus involved and the other vehicle, what other vehicle was that?
MR MOTI: Wait, it's a van, a white panel van, a Toyota panel van, white Microbus, a cream white bakkie, a white Microbus, a white BMW, a bakkie and a BMW, yes, 5 series. The one I mention, a white BMW, it's a 7 series. The other one, it's a 5 series. I don't remember clearly the colour, whether it was between silver-grey and white, the 5 series.
MR MOOIJ: So just to recap, there was a 5 series BMW, a 7 series BMW, a white panel van, I think you said Toyota, a 3 litre bakkie and a Microbus, that would be a Volkswagen Microbus. So those are the five ...(intervention)
MR MOOIJ: Right. Now you also gave evidence yesterday that the Microbus that you were involved in, you and some of your colleagues took this vehicle from two chaps and then thereafter this vehicle gave you a problem and you had to abandon that vehicle.
MR MOOIJ: Yes, that is so, but let us just have a look at that. You say in an answer to the questions that you were asked, you made the allegation in your application, Mr Moti, that you were involved in that operation, then the Commission asked you certain questions about that, more specific questions and your answer is as follows, page 24
"was a silver-grey Microbus which was repossessed at gun-point by me, Themba Radebe, Brian Dongo, Peter Mokoena, the Commander whose real name is Diseko Mogwate, it we possessed earlier that month in Doornfontein."
MR MBANDAZAYO: Yes, Chairperson, exactly ...(indistinct) Now if he's asked to answer that, it means let's go to inquire as to why he withdrew his application first. We have to go to that to explain why he came to that.
MR MOOIJ: Chairperson, the simple reason is this, that Mr Moti withdrew this application yesterday and the basis upon which he withdrew it was that he was found guilty at the trial of this offence but that it was incorrect because he had been framed.
MR MOOIJ: It helps us in the sense, Chairperson, with all respect, that he withdrew this application, it's his evidence, he says that that was incorrect, he was framed and yet he gave the particularity to this Commission in great detail of how this happened. Then he was asked, if you have a look Chairperson at the Request for Particulars as set out on page 11 of this application, he was asked: "Are you sure you were there?" and all these questions were asked and he answered those affirmatively, he gave great detail. Now we know by his own admission, he said he was not there at the scene.
CHAIRPERSON: Yes, that's apparently - that's what was said about something that's not before us. Now please tell me how does it help us to decide what is before us, to be bothered about something that's not before us?
CHAIRPERSON: Yes, you know the rule, you should know the law in this regard. A lie on one issue is not determinative of the credibility of a litigant on another issue. Now how's it going to help us? Even if he did lie about this, that was withdrawn.
CHAIRPERSON: Yes, now assume he's lying about this thing, he lied about this whole thing and he gave an untruthful summary on his Further Particulars and so on and it's all so, where do we go from there in respect of these matters that are before us?
MR MOTI: I don't know whether it's the one that I was sentenced to death, but if the place, it seems it's the same place, but not the date. The date on which that one took place, it was on the 11th of December 1990, not January 1992. If maybe it's another robbery that I don't know of, what I know is the one on the 11th December 1990.
MR MOOIJ: Because in your - on page 10 of your application you mentioned two instances, 18 and 19, robberies at Eldorado Park and of Fidelity Guards and this application, do you notice in the newspaper it talks about 25 January 1992?
MR MOTI: On page 10. I think I made a mistake when I went to the prison authorities to ask for my computer print-out because they gave me the print-out without dates and what-what, so when I applied, all what I was saying was partly based on what I have then.
MR MOOIJ: So what is this one then that you're referring to in the notice of 25th of January 1992? What is the one, the robbery then at the bottle store that you refer to in the notice dated 25 January 1992?
JUDGE MOTATA: If I may be of assistance, this notice is done by the personnel of the Amnesty Committee and some of the information that is contained in the Notice, has been extracted from the Court record, so it would not necessarily be the applicant who is responsible for that Notice, just for the sake of clarity.
MR MOOIJ: Now I put it to you that there was another robbery on the 25th of January 1992 at the same place, at this bottle store in Eldorado Park, during which Themba, well Themba was convicted for that one and you were not, not because it was found that you were not there, but because there was insufficient evidence against you, what do you say about that?
MR MOTI: That could have been better answered by my Command, because I only went to the Commander's place when the Commander ordered that I came there and briefed me about the situation. Maybe the Commands saw that I was not supposed to be there or what, but I was never informed about this operation. In fact I was never ordered to come there, so I cannot answer that, why I was not there.
MR MOOIJ: Now your evidence and your application of - your present application, the incidents that you described there, those are the same as the pointings-out that you made to the police, correct? You pointed out to the police the various robberies, where they took place, who was involved, not so?
MR MOTI: I remember on the case number, operation 5, yes, operation 5 I said to the police - oh sorry. Operation 5 I pointed the wrong place and then operation 1 I think I pointed the wrong place. I was never taken to operation 9, to the scene of the operation 9.
MR MOOIJ: Now what is strange, Mr Moti, is that you would give them the place, you would tell them the persons involved and you even told them what happened to the money, you told them how it was shared, you told them what happened to the things and now that portion of what you told the police, you are now seeking to deny. You say the others are correct, but this is not correct.
MR MOTI: The police had information, but they didn't have enough information, like for instance I was associated with other people whom I knew, I knew but they were not my friends, so they thought I was involved with them, so someone, the people who were giving them the information, maybe they didn't know that all the - what I was involved in was politically motivated.
MR MOOIJ: Why would you make pointings-out to the police, other than things that you were really involved in? For instance, why would you tell them about robberies that took place in Cape Town, if that was not the truth?
MR MOOIJ: Mr Moti, that was information that you volunteered, the way I read that part of the record, that you didn't have to volunteer if you were not involved in it, if you knew nothing about it. You were in Gauteng, you then went to Cape Town.
MR MOTI: I've never heard a policeman from any Murder and Robbery Squad say a person hasn't volunteered the information, but yet we get cases like Eikenhof where people pointed the right place and talked about the right thing, but they were still not there, so how do you compare the two?
MR MOTI: No it's not irrelevant. Here we are trying to find whether I volunteered or what, so I have never heard Murder and Robbery policemen saying people haven't volunteered the information but yet we get people complaining about being tortured and what, what.
CHAIRPERSON: So Mr Moti, again is the short answer to the issue that Mr Mooij is raising, that you never volunteered any information to the police in regard to these matters that he raised now? He says that it appears that you volunteered the information to the police, you're saying that's not correct.
MR MOOIJ: Right. Now if one adds up all the amounts stolen, that one alone being 1,7 million rand, a rough calculation tells me it's in the order of about 5 million rand. Now we're talking about vast amounts of money that was taken by your unit and yet the evidence was, from APLA's side, that they had no knowledge of this. Mr Maseko said he didn't know about it. Nobody seemed to know about this, that they ultimately received this money. What do you say about that?
MR MOOIJ: Now that question - that answer you gave to every question you were asked about the money. Now I want to ask you this, although what you said was your Commander is no longer alive to come and tell the story, I want to ask you, is there any corroborating evidence for the following submissions? One is that all the money that was taken was in fact given to the Commander by yourself and by the other people in your unit, firstly. Secondly, is there any corroborating evidence that none of that money that was taken by your unit, ended up in your own pocket?
MR MOOIJ: That is your evidence, Mr Moti, I'm asking you if there's any evidence that can confirm that? Anybody who can come and give that evidence who can confirm that what you're telling this Commission happened to the money, is the truth?
MR MOTI: First it was summary dismantling and assembling of firearms, manoeuvring, the others I trained later, but 1983 trained summary dismantling and assembling of firearms, target shooting, taking cover.
MR MOTI: We were not using the same place, it depended on the person who was training you. Sometimes we used to train at Doornkop, it's a cemetery, sometimes somewhere between Protea and Lenz, there's an open space there.
MR MOOIJ: Yes. Mr Moti, just one or two more aspects. It was there evidence of Mr Maseko that ultimately even after he left the Gauteng Region and he took over the responsibility for the repossession unit countrywide, ultimately he had the final say in who would be appointed as members of the repossession unit and he said that he - at no stage where you appointed to that unit.
MS MTANGA: Mr Moti, most of the operations you are applying for here took place in 1990 after the PAC was unbanned. Are you saying that all these operations you carried out, you carried out at the time when you were being hunted by the police?
MS MTANGA: Okay. And also in somewhere in your affidavit, in relation to the Bruma Lake incident, you mentioned that the Bruma Lake was pointed out to you, or you received information from a late friend of yours, Bheki Tshabalala, where did this Bheki Tshabalala come from?
MS MTANGA: Also in your confession to the police you mentioned that the diamonds that you obtained from the Bruma Lake incident were exchanged for some hundred pills and this exchange was done with a Nigerian guy called Isaiah and you confirmed knowing this guy in Court.
MS MTANGA: How were you protecting the unit if you had given the name? You gave the name of Peter Mokoena to the police, they knew Peter Mokoena was working with you, how would you protect him if you had given the name?
MR MOTI: They knew that I was with Peter Mokoena in all the operations, so there was nothing to hide about Peter Mokoena, but there was something to hide about what Peter Mokoena was doing for, what we were doing, the fact that Vontjie was ...(indistinct), it was open to everybody, but ...
MR MOTI: In that instant, both Bheki and the unit, because I was not aware by then that they had found the jewellery in Bheki's position and I was not aware that Bheki was the one that sold us to them.
MR MOTI: We surrendered to the Commander as a unit and the Commander ordered that I gave his pager number to Bheki, to tell Bheki to phone him, so I went and found Bheki and gave him the pager number.
MS MTANGA: In your evidence yesterday, you were asked a question about the lifestyle you lived and you said people may have thought that you had money because you drove flashy cars. Can you tell the Committee what make and models were these flashy cars that you were driving at that time?
MS MTANGA: Mr Moti, is it not true that you were running away from police because of your criminal activities, as a well-known member of a gang that used to live around Gauteng, not because of your APLA activities?
MR MOTI: It depends, Ms Mtanga, the police were not aware that what I was doing, I was doing for a political organisation so to them I was a criminal, so whatever information they will give you is based on their analysis of them, they analysed what I did, they said it was criminal, but here am I telling you that these were operations carried out to advance our political aims and objectives.
MS MTANGA: Would you say the impression that the police - in fact the police wouldn't have realised that you were doing this for APLA, because they had the same impression that everyone had, that you said yesterday that you drove flashy cars, so they thought you had money?
MR MOTI: There was a time, as I told you, there was a time in 1986 after the death of Addi, till 1988 where I was a criminal and when I was, when Peter came, I never went around telling people no, now I'm doing this, to them I was a criminal.
MR MOTI: You don't ask when, because after, as I told you, after Peter came, after the first operation on the 16th of July 1988, I never drove around in flashy cars, that life was left there, I committed what they call a ...(indistinct) society.
MS MTANGA: Can you tell this Committee how, Port St Johns is in the middle of Transkei, how did you get to Port St Johns? Where did you drive from, where did you stop, the towns that you went past, how did you get to Port St Johns?
MR MOTI: Sorry, sorry, I'm trying to answer your question Ms Mtanga. We first went to a certain house. It was in ...crest, I think, that house where we went and it is in the corner, it's about - 47A Jordaan.
MR MOTI: I was with two cadres, one from the Vaal Triangle, Seboke and the other one was - ja around Bokeni in Sharpeville, so they came there, they took me there. They took me from Soweto, we went there.
MS MTANGA: We were told in one of the amnesty applications by a PAC person that a person who is a genuine PAC member would never call PAC a Pan African Congress. They are very sensitive to that and they take - they object to people calling PAC Pan African Congress. Why did you call your organisation Pan African Congress?
MS MTANGA: There's nothing honest about it Mr Moti. You first say you are a member of the Pan African instead of Pan Africanist Congress, you leave out that you were a member of APLA and you write that you committed robberies instead of repossessions and the issue about Pan Africanism and robberies is very sensitive to all APLA members. If you're an APLA member, how could you call your own political operations robberies?
MS MTANGA: No, I'm talking about now. You are in prison. When you filed an application for amnesty you were in prison. When we sent correspondence to you we sent it to Johannesburg prison. When did you escape from the Johannesburg Prison?
MS MTANGA: Chairperson, Mr Moti was an APLA cadre, a genuine APLA cadre, he had applied with a group of APLA cadres who applied and got amnesty. His application was pending investigations and he has been informed several times, so we need to know, a person who has applied for amnesty being a genuine cadres, what could have been the reason for him to escape jail when he knew that there were prospects of him getting amnesty as a genuine cadre.
CHAIRPERSON: But why is conduct subsequent to the incidents before us, why is it relevant for our purposes? Are we not charged to look into offences that we committed in the 1990's early 80's and so on? What are we concerned about 1998?
CHAIRPERSON: This we raised at an earlier stage and he said that he denies that he ran away because he thought there was no merit in his applications. So I don't know if that is the point that you are trying to canvass. If so, his evidence is on record. You might get a different answer if you want to try, but the prospects are very slim.
MR MOTI: People escaped and I was outside prison. We used to smuggle to go out to the Headquarters and sit there with our girlfriends, so the escape took place, so the person that allowed me to go out, it was ...
CHAIRPERSON: This we don't need to have, I mean this is 1998, we're being told all sorts of things here, probably about Correctional Services and I don't know whoever else. Really I mean it might be interesting but it's certainly not going to help us and we don't have the time to even look at that, so please.
JUDGE MOTATA: Yes, no, no, listen to the question. I understood you correctly, perfectly, don't worry about that. I just want explanations that when you joined your repossession unit were you see driving cars around?
CHAIRPERSON: Yes, thank you Judge Motata. Yes well, if Mr Moti had applied in respect of the other matter and of course that is something ...(indistinct) at this stage, we're dealing with those that are before us. Just to make sure that we do still understand you correct, Mr Mbandazayo.
MR MBANDAZAYO: Chairperson, our position is that he did apply but Chairperson, if he's not there, we had similar cases of that nature, though initially they used to condone that because other applications are there, then it is accommodated, but at a later stage they were not accommodated if they cannot be found, so I don't want to take that route and say that the Committee should hear that because there is a precedent that some applications were not ...(indistinct) if they are not found, so the position is that Chairperson we accept that it's not before the Committee but we had that impression that is before the Committee, but we accept that.
MR MOTI: I was involved in criminal activities in 1986 after the death of Adam Adilowati. Adam was killed by a police in an ambush operation and it was said that my uncle connived with the Brixton Murder and Robbery Squad to kill Addi, so I was, I felt in fact alienated by members of AZANU because my uncle, and by then 1986, the situation in the country was such that anything could happen to you if you are perceived as ...(indistinct) or coming from ...(indistinct), so I didn't see Peter from then because Adam already died in April and by then, when Adam died, Peter was busy training me, so from that time till 1988, that was when I saw Peter, so I had nowhere to go because my uncle did this and when I confronted my uncle about Addi's case, I was taken to Brixton and I was locked up by, they were there, Mr Diedericks and what, what and my uncle came there and said I must repeat what I said to him because I asked him: "How can you see Addi?" He said no, there was a confrontation between him, he left the house, the next thing I heard were Brixton Murder and Robbery, they came and took me, they locked me there about 6 months without being charged or what. When I came out I wanted to make my stamp clear to my comrade friends, but I was as if alienated, so I ended up being a criminal till Peter came and told me that no, he's from Zimbabwe and he was ordered to come and establish a repossession unit and what, what.
MR MOTI: Yes, as I explained I said I became a criminal when I came from prison, that I was absolutely innocent. Yes I was found in a stolen car that I asked a lift and when the - we went to the road block, the people ran away. They were caught and came back. When they came ...(indistinct) they said no, we asked a lift, all of us.
JUDGE MOTATA: Did you understand Mr Mbandazayo's question? He said why after joining APLA in 1993, you became involved in criminal activities and your response thereto is that in 1986 after Addi was killed under mysterious circumstances, you got involved in criminal actions.
CHAIRPERSON: Mr Mooij, we're going to have to ask you to hear from your witness whether it is not possible to accommodate us. We have apparently had somebody who is able to interpret from Afrikaans. The person has been released and is not available right now, so I don't know if it is possible for the Captain to assist us and for us in turn to assist him if he might have any difficulty in understanding something or if he might want something interpreted to him perhaps.
MR MOOIJ: My attorney has indicated to me that he's prepared to assist and will answer in English to the best of his ability. If there's a problem, I ask that he can be given the opportunity to answer the questions in Afrikaans. From my side, in order to assist, I'll ask the questions in English.
MR MOOIJ: Now, if I may refer you to the matters for which the applicant has applied for amnesty, were you involved in the investigation of any of these matters for which the applicant is now applying?
MR MOOIJ: Now it is common cause between the applicant and all the other interested parties that the applicant made certain pointings-out to the South African Police, although the applicant insists that these pointings-out were done under duress. Could you tell the Committee which of these pointings-out you were personally involved in?
MR DIEDERICKS: The pointing out of the different scenes was done by an independent officer, it wasn't done by me, but after the applicant's arrest I interviewed him and he made certain admissions. He was also taken to the other officer not attached to the Brixton Murder and Robbery where he made a confession, both the confession and the pointings-out were later during the trial admitted in the High Court as admissible.
MR DIEDERICKS: That's correct. "The second incident is a Fidelity Guards robbery during May this year" that means 1993, excuse me 92. "My share was R20 000. Another incident was a First National Bank robbery, my share was R12 000 and also a Nedbank robbery in Johannesburg, my share was R22 000. There was also a Nedbank Robbery in Johannesburg during 1999, my share was R28 000."
MR DIEDERICKS: "Was 1990, Nedbank Johannesburg, my share was R28 000. There was also an incident during April 1992, we robbed a Tech. in Cape Town, my share was R2 000. There was also an incident in First National Bank in Nancefield during 1990, my share was R20 000. Another incident was Fidelity Guards was robbed in Lenasia during 1988 and my share was R10 000, also a Trust Bank robbery in Sandton during 1991, my share was R20 000. Also United Bank in Johannesburg, my share was R30 000." He didn't mention the date of that robbery. And then during 1991...
MR DIEDERICKS: 1991, "A jewellery shop in Cape Town was robbed, the jewellery was handed over to Isaac ...(indistinct) who was supposed to change that jewellery for drugs in Nairobi and also the Bruma Lake robbery of jewellery. The jewellery was handed to somebody to change it for drugs. During 1991, a Fidelity Guard robbery in Cape Town. My share was R35 000 to R40 000." That is what he told me, Mr Chairperson.
MR DIEDERICKS: Ja, other gang members also received money, but he didn't know what they received, he only told me what his share was. The other one, his co-accused Themba Radebe later told me what his share was in respect of each count.
MR MOOIJ: Now, did the applicant, when you were questioning him about these various operations of which you've just told the Committee, did he tell you who the other participants were in these operations?
MR DIEDERICKS: There were different persons involved in different operations but basically it was Vusi Maduna, Peter Mokoena, Peter Nkosi, Nuabisi John Ngana, Josiah Rabotapi, Themba Radebe, ...(indistinct) but I don't know who he is, Brian Dongo, Stembele Kala. That's basically the names he mentioned Chairperson.
MR MOOIJ: From your investigations into the operations of the unit of which Mr, or the applicant was a member, was there anything in your - in the course of your investigations that indicated that the money was for the benefit of a political organisation?
MR MOOIJ: Can you tell the Committee, was there any visible evidence to you or to members of your investigation team which indicated how the money which the applicant told you he had received, how that had been spent?
MR DIEDERICKS: I noticed his parents house in Orlando East in Soweto, during 88, 89, that work was done on their house, walls erected, an outside wall and at one stage we visited the house looking for the applicant and I noticed that all the old clothes were in a dustbin and the house was full of new clothes.
MR MOOIJ: If the Committee could just bear with me for a moment. Captain, in your investigation and by people involved investigating this matter on behalf of the police, did any information come to light regarding the monies received by the applicant going through or being paid into one or other banking account?
MR MOOIJ: Captain, during your investigations into the offences committed by the applicant, the names of the other persons who were also involved in these activities for which the applicant had been arrested, who provided you with those names, was it the applicant himself?
MR MOOIJ: Now were any of the - other than money, was there any other proceeds from crimes ever found in the possession of the applicant, to your knowledge? I'm talking specifically about - there's indications in the record that jewellery items were found in the trunk which was found in the possession of the applicant. If you could tell the Committee whether you have any knowledge of that.
MR DIEDERICKS: Col Landman merely helped me in tracing the suspects. He was actually a witness at the end of the day in the trial in the case, I was Investigation Officer in charge of the investigation.
MR MBANDAZAYO: You told the Committee that the group comprised of many people like Vusi, Peter Mokoena, Stembele Kala, can you tell the Committee when was it that the suspects told you about these people who were involved, how many incidents in which Stembele Kala was involved with the applicant?
MR DIEDERICKS: The first one was during 1992, the First National Bank robbery in Dube. The second one was the Fidelity Guards robbery in Leondale. The one was the Fidelity Guard robbery in Cleveland. Then there was the ...(indistinct) Supermarket and the one in Cape Town where the jewellery shop was.
MR DIEDERICKS: As I said, I'm not sure, I wasn't present when the jewellery was found, Col Landman was present at that time when the jewellery was recovered, I only received it from him and from there it was identified ...(indistinct) jewellery shop.
MR MBANDAZAYO: Now you indicated that you could not find anything which suggests that what was done by the applicants, has any political motive or it was done for political organisation. Did you ever investigate that?
MR DIEDERICKS: No, those cars I'm referring to, it was told to us by informers. Informers supplied us with registration numbers that were mainly false and that was one method to try to trace these suspects at that stage, also the applicant.
MR DIEDERICKS: Ja, at that stage I only knew him by the name of Peter Mokoena. At a later stage I found out that he was also known under the other name. I knew he was killed during a robbery in Randfontein.
MR MBANDAZAYO: You know, the reason why I'm asking is that during the bail application of Stembele Kala, in the Magistrates Court, it was opposed because it was said that the unit which was involved there was APLA and they have not yet apprehended some of the members.
MR MBANDAZAYO: Now because you investigated this case because you knew according to your information that the people who were involved in the robberies, were involved in criminal activity, you cannot say that it was not political because you never investigated that aspect.
MR DIEDERICKS: Josiah Rabotapi grew up in Soweto. He worked at the First National Bank in Dube. They arrested him for a robbery. After that he committed several robberies and he was recently killed by the police. He was also known as Mr Fingers.
MS MTANGA: When you say he was killed, at the time he was being arrested for robberies he carried out together with the applicant and others, did the others that you're referring to take place after the applicant was arrested?
JUDGE MOTATA: Just one Chairperson. Captain you wouldn't have been involved in politics because as your unit explains itself, that you were concerned with Murder and Robberies, you wouldn't look at the aspect of politics in this instance, would you?
JUDGE MOTATA: You mentioned several people, even though I did not take all the names down, were you able to find out like you said that the members of this gang as you described it, where different persons were in different operations, could you identify perhaps under those who were involved with the applicant today?
MR DIEDERICKS: He actually only helped me in tracing the suspects, arresting the suspects, but the investigation as such, I did it on my own, but I was - I had two other members who assisted me in that investigation, it wasn't Col Landman.
MR DIEDERICKS: That's right, he was mentioned by the applicant in one case, one incident, so obviously I had to trace him to arrest him, but I later learned, I think if I remember correctly he passed away.
MR DIEDERICKS: No, we didn't actually investigate politically related cases. While I was in Soweto attached to that Murder and Robbery unit, I ...(indistinct) political modus, but at Brixton we weren't involved in politics.
RE-EXAMINATION BY MR MOOIJ: Captain, just to clarify one aspect that you mentioned. Are you saying that after the applicant was arrested the unit that he belonged to still continued with its activities, with the robberies?
MS MTANGA: Chairperson I will not be leading any evidence or calling any witness, but at this point I would like to bring it to the attention of the Committee that we got the list that ...(indistinct) referred to and I have given a copy to my learned friends, but I also want to point out that there are two lists that I got, there's a long one without incidents and the second one of which copies have been made, with the incidents.
CHAIRPERSON: If the - we don't want to burden this record, we've already got all of these, copies of the Court proceedings and I don't know whatever else. Whatever is the shorter one that is going to serve the purposes that is relevant for us, I'll ask you to hand that in and not the unnecessarily long one. We wouldn't want to burden this record any further.
MS MTANGA: When I peruse that list it appears to me as if it's the list of people who are applying for amnesty regardless of whether they were actually PAC members or not, because I recall one name, it's a matter that I dealt with in the Eastern Cape and that person was a criminal and he was refused amnesty.
CHAIRPERSON: No, this particular issue is obviously only relevant to the applicant, so anything that is not relevant to him, I don't think it's going to help us to get a full list of all APLA members that might have applied for amnesty, or might have been members of APLA or members of the PAC and so on. So if there's something that shed lights on this applicant, I think that is what would be relevant.
CHAIRPERSON: Yes, perhaps you must argue that when we give you an opportunity to address this now, but perhaps for these purposes now, let's just get whatever is going to be the exhibit, I'm not going to - I'm not interested in its weight or nothing, I just want the exhibit before us so that we can get our house in order.
JUDGE MOTATA: Before you do, Chairperson, I have a problem about logistics. I have been handed a list but since Ms Mtanga said she has got two different lists and I must be honest to everybody present that I perused the list I have in my possession and in my perusal I found that the applicant is mentioned as number 48 ...(indistinct - mike not on) reads Vontjie Zimkulu, Orlando East murder, attempted murder, giving the date of this offence, Pretoria Central Prison, sentence - two life sentences, Region - Gauteng. What I would do with this list in my possession?
CHAIRPERSON: Yes, I mean it must have originated from somewhere. I'm not interested in the weight of the list, okay, I'm just interested in dealing with the list as such. I mean it must have originated from somewhere. Now there was this discussion with Gen Fihla about a list, that's why ...(indistinct) inquire from Mr Mbandazayo. Are you in a position to shed some light on the list?
MR MBANDAZAYO: Chairperson what happened is that I talked to Gen Fihla and we were supposed to get a list yesterday and I phoned him yesterday and he said there is a list which would be readily available tomorrow morning, which was submitted to Parliament, so as to the members of the PAC, which was wanted, so they will submit - its the list which was brought this morning, which has got PAC emblem. Now I haven't seen the second one, but he said look, he will also try and get another list.
MR MBANDAZAYO: Sorry Mr Chairperson, this one, the one he said, because it does not include others, because there were others who were still standing trial at the time, so they were still going on with their compiling of the list.
CHAIRPERSON: Well, as my colleague pointed out, there is a list and it has been handed to us and if it is relevant to the proceedings I don't see why it should be excluded from the proceedings. Ms Mtanga, what is your position? Are you saying that this thing is now excluded? You don't want this to form part of the record, or what?
CHAIRPERSON: Yes, I mean, we're not playing legal games here. It's a very serious process that we're involved in and as I've indicated before, we're not sitting as a Court of Law here, we've got to do justice. It is the constitutional right of applicants and other interested parties who appear before us, to be treated fairly and if there is material that exists that might be relevant to the matter before us, then I would certainly, I would have to be persuaded quite strenuously that it shouldn't form part of the documents before us. Whatever the weight of it is afterwards, you've indicated you want to argue about that matter, that's a different matter, I'm just talking about the accessibility of the material to my Panel here. So this list exists. I've got a list here, I'll just try to identify it for purposes of the record. It is on a letterhead of the Pan Africanist Congress of Azania, the Office of the Presidency, it is dated the 10th of April 1995. It is a Memorandum that is from the Presidency addressed to all PAC Regional Structures and it is compiled by Mr K R Sezane, MP and it incorporates a list of 51 names, no, 55 names, I'm sorry, together with two further lists annexed thereto, one list is headed Transkei prisoners list with 60 names on and the second one, list is headed Leeukop Prison Medium C List and there are 80 names on that page, so that's the document that we have and that will be Exhibit A before the Panel. Is there anything else that you wanted to add? You said you're not going to call any evidence.
MR MBANDAZAYO: Chairperson, I will be brief. Chairperson, Mr Maseko has applied for many incidents and it was not the first time for him to appear before the Committee and also his name was mentioned in many applications regarding repossession units as the head of the unit and I think, Chairperson, there's no doubt about his membership and his political affiliations. Now the question is whether what he did was politically motivated. Chairperson, we have evidence of Gen Fihla and also Mr Maseko and I don't think that is in doubt about what he was involved in, that it was for the benefit of APLA. Now that aspect will be disclosed Chairperson.
Definitely Chairperson I must concede that almost from 1997 dealing with amnesty applications, but I've never seen somebody who's honest like Mr Maseko when he deals with his applications. You know Chairperson, all his applications which he was applying here, with the exception of the Elandsberg one which was not heard, it was the only incident in which he was tried and convicted, all the other incidents he voluntarily came out with the whole information, all the other incidents. Nobody knew about these incidents, Mr Maseko came up with all of them, you know, including - one would say including those R50, those where they got R50.00. One would say, if other would not even mention those incidents, but Mr Maseko decided that he has to tell the Committee and be open about everything that they were involved in.
And as such, Chairperson, without wasting time, taking into account the evidence of Gen Fihla, it's my submission that Mr Maseko has met all the requirements of the Act and that he should be granted amnesty as applied for.
MR MBANDAZAYO: Yes, Chairperson, there's only one, if I may correct, which was given amnesty. There's one which involves Gauteng, Chairperson, the other one which he was granted amnesty, is the one UNITRA ...(indistinct) incident, he was granted amnesty on that one. I was referring, when I say incidents, also that one, but involving Gauteng it's only one.
CHAIRPERSON: Yes, I was hoping that you - I don't know if you have this summary. I was hoping that you could just confirm whether that is indeed the matters that are before us at this stage, 15 of them plus 1.
CHAIRPERSON: It's never reached me again, Ms Mtanga. I thought you had repossessed it. I don't know if you have one there Mr...? Otherwise I'll take the liberty of giving you my colleague, Judge Motata's one, just to have a look at.
MR MBANDAZAYO: Thank you Chairperson. Chairperson we have an application of Vontjie Zimkulu Moti before us and Chairperson he's applying for various incidents, but Chairperson I would like first to highlight certain things first. If the Committee will have an insight on the small bundle in the application of Stembele Kala. Unfortunately the Committee does not have - I still have the record of the initial application and also his Court record.
CHAIRPERSON: Mr Mbandazayo, there's an index, volume 2, in Mr Moti's application which contains the Maseko affidavit, the Kala amnesty application, transcript of the 24th of June 99 and the decision in respect of Kala, are those the ones you're referring to? ... (indistinct - mike not on)
MR MBANDAZAYO: Yes, Chairperson. Chairperson, if you look at that application, the evidence of Stembele Kala is that he was in the logistics department, he was approached by Vincent Mama who brought to him Diseko who was known as Peter Mokoena, Diseko Mogwate, Vusi, Morapapa, who has been also mentioned in various incidents, and others. Now Chairperson, the reason why I'm mentioning that is because what a coincidence that this same Vincent Mama who brought Diseko to Stembele Kala, is the same Vincent Mama who brought Diseko to Thapelo Maseko.
Now, if the same Vincent Mama who with no doubt Chairperson, it has been confirmed even by Gen Fihla that he was a member of PAC and they used him as a courier, brought Diseko to Stembele Kala and they went to Nedbank and they robbed Nedbank, if I may use the word repossession, and that incident was taken as political incident because it was for the benefit of APLA.
Now same Vincent goes to Thapelo Maseko who has been sent to establish repossession units and he brought Diseko with his unit, as he did within the incident of Stembele Kala. Now Chairperson, it's my submission that if the Committee takes that view and accepts that Vincent Mama was a member of PAC and what he was doing was for political purposes, now the question will arise that why Maseko did not know Diseko and according to him, Maseko, that these people were not PAC members, but he also admitted that they used - Diseko was used as a courier and such but he said he was not an APLA and PAC member, that was his testimony with regard to his group, though initially in his evidence he said that not all of them were PAC members. We don't know which ones, but he was specific that he was not a PAC member, but Gen Fihla came and he said no, and he admitted that: "We made certain mistakes" and it's one of the mistakes that were made, because at the time Maseko was going outside the country for training, Diseko was being deployed inside the country, so he did not know Diseko. Now if Maseko did not know Diseko and he knew the members of the unit and the person he was talking to was Diseko, how much more to his members of the unit to know their political affiliation and their involvement in the structures, when he cannot even know the Commander of APLA.
JUDGE MOTATA: Wouldn't it be that Diseko was deployed before this repossession unit was structured and that Thapelo Maseko would now be entirely charged with the repossession unit because if I understood Gen Fihla, he said it is an idea that came around in 1981, but it was not structured and they encountered problems how this repossession should work and it only took some share, recognisable shape, when Thapelo Maseko was deployed in the country with the other three, that they came in pairs according to Maseko.
MR MBANDAZAYO: Yes, thank you Chairperson and Honourable Members. I am indebted to the Honourable Member. It's true that's what he said that it was not structured before and that's why he admitted that they made a mistake though Diseko was not - was sent inside the country for a particular purpose, that is an offensive unit, but the reason why they established this structure is because some of their members were ...(indistinct) in repossession, they ended up doing, that's one of the admissions which was made by Gen Fihla, hence he even went to say that some of the things that were supposed to go to PAC and APLA, were not, people used it for their own benefit, inside and outside the country. So that's the reason why they wanted a structured way, but it does not necessarily mean that no people were involved, but it was not structured, they structured themselves inside the country.
ADV SANDI: If it was the situation at the time in question that before Maseko and his group came into the country to formalise the operations with respect to the repossession unit, now if there were people who were already operating let us say on some sort of an ad hoc basis, wouldn't it make sense to have Mr Maseko informed that look, you will actually be continuing with a project which some other people have already started implementing? Why would he not be given that kind of information that we do have comrades here who are already doing this thing?
MR MBANDAZAYO: Thank you. Through you, Chairperson. Chairperson I think I will canvass that to Gen Fihla, it's one of the blunders he said that they made. He admitted that it's one of the mistakes because they never introduced, when he was trying to clarify the question of Diseko, that is one of the mistakes they made and I even asked him whether they continued thereafter, he said look, it took some time before even they stopped all - they stopped those who were operating outside this structured unit. It was not something they expected that it will just automatically go away when Maseko comes in and it's shown by the fact that Maseko did not know Diseko, hence his testimony here was saying he regarded them as a bunch of criminals.
MR MBANDAZAYO: Chairperson through you, that's a million dollar question, why, because he even went to say when Maseko commented that Vontjie is very good, he would like to have him, he never responded to him, now the question is how can we answer for him, we'll have problems. We don't know why he did not answer, why he did not tell Maseko.
MR MBANDAZAYO: It remains a strange thing Chairperson, but the fact is now, what about the ordinary foot soldiers, the people who were believing that what they were doing, they were doing it for the benefit of the organisation, because all of us, we don't know what happened to the ...(indistinct), we don't know what was Diseko up to, because he never told Maseko, now what must happen to the people who bona fide believed that what they were doing, they were doing for the benefit of the organisation?
JUDGE MOTATA: How far would this need to know basis extend, bearing in mind the 15 points of secrecy which we never really got thorough explanation about, because if I recall that Maseko said out of his unit, he sacrificed himself, because he had approached them and said: "Look all the proceeds from this operation", now I'm talking about the ...(indistinct), money that would have rescued South Africa which he could not believe, or rather rescued PAC for the rest of its existence, that he said: "I said I would sacrifice myself because I did not know these people and if this thing doesn't proceed as we have planned, that they wouldn't get to the other unit", but now we hear Mr Moti saying you know there was a need to know basis and there was these 3 codes or 15 points of secrecy that you wouldn't just readily divulge in the interest of the organisation.
MR MBANDAZAYO: Well, Chairperson, if I remember, though I don't have the copy of the 15 points of attention in front of me, when I went through them I think, I know that it revolves around the question of discipline, like if you take anything on behalf of the organisation, you have to declare it and also you cannot use the organisation for your own benefit, that is the position of the organisation, and that you should not also divulge information in the hands of the enemy about the operations of the organisation. So those are basically the 15 points of attention, but there are 15 of them. Now it was ...(indistinct) we have heard in all the hearings that most of the time, some of the operations, the operatives would not be told until the last minute. Sometimes the driver would be taken to do reconnaissance on the last day to see the place which is also in the offensive unit, on the last day and be pointed out, so that they should know the terrain. It's always, the Commander always keeps it secret because the problem is that there's this need to know basis because at the same time, it's a question that not all of them can be, though they are members, they are not all of them sometimes secretive. If he mentions, on the members of the organisation, you will also tell it to somebody else and the information will leak and the whole mission will abort and all of them would be sacrificed. So it has been the modus operandi of them that most of the time you'll find it on the last minute they are told about the mission, the unit. The Commander always knows about the mission and the first person who will be told, most of the time, will be the driver who is going to drive, so that he can know the terrain, he will be taken to that place and see it, where he's going to stop the car, where is going to be the route of better way, which route are they going to take, so those were the secrets of the whole thing, but my point, Chairperson, is that as you put it, Maseko decided, because he did not know these people and it's my submission that in most of the cases, it's on rare occasion where we find that people who are introduced on such sensitive operations, are always members of the organisation. Vincent Mama would not just go and take, though we don't know about the whole thing, he would just not take Thapelo Maseko and put him amongst the criminals, which he himself does not know. So it's clear, the fact that he was able to take Maseko as he did with Kala, so definitely he knew Diseko. Even if he did not know the others, but at least he knew Diseko, that he was involved, he was a PAC member.
ADV SANDI: So in those circumstances one would have expected Diseko and Vincent to tell Maseko that look, these are our friends, they are working for the organisation, you don't have to fear anything.
CHAIRPERSON: What is the significance of this group agreeing to let's call it transfer the proceeds of this operation for the benefit of APLA and the PAC? Because that evidence doesn't seem to have been contested seriously. Mr Maseko was questioned about it but I mean there is no evidence gainsaying his version that the clear understanding was that the proceeds would be for the benefit of APLA. Nothing is promised to members of the unit, except their political freedom, return of their land as he put it, now what is the significance of that in terms of the political sort of connotations and Diseko's position?
MR MBANDAZAYO: My interpretation will be that, Chairperson, if they were willing on that particular operation to sacrifice the proceeds for the benefit of PAC and APLA, what would make them not on other operations, do that for the benefit of APLA and PAC?
CHAIRPERSON: Would that be the sort of response of hardened bank robbers, whose ...(indistinct) comes from that sort of enterprise where they put their own lives at risk and now they're just prepared to give the money to some other third party?
MR MBANDAZAYO: That's my contention, Chairperson, I was going to come there, I'm indebted to the Chairperson. I was going to come to that point that it's unlikely that you know hardened bank robbers, you would just go to them and tell that what you are going to do now from today, but your reward will be, the land, which of course definitely I think they would never understand that. It's not even understood by people who educated, the question of the land question, the importance of that, even people who are political majority, now you take somebody whose livelihood is robbing and you promise him land and he agrees on that, just promise him land that: "Look you reward is you will get the land" and he agrees to that, now it's really Chairperson, one is left with many questions that can be done by ordinary bank robbers. Hence, it's my submission that and I'm relying on the evidence of Gen Fihla, that that's the blunder they made themselves when they sent Maseko in because they never told him about the operatives, that's what he said, about the operatives who were inside and about also the individuals, he mentions that they sent certain individuals to do this, and definitely those certain individuals, Chairperson, they were not going to do that on their own. It means they were going to get people to assist them in that, in organising those funds, but they task it to certain individuals, but they don't expect that individual to go alone and pull out a bank robbery or rob Fidelity Guards and also that ...(intervention)
MR MBANDAZAYO: None, Chairperson. That is not in dispute, Chairperson, that he was an APLA cadre. That is not in dispute Chairperson. Chairperson I wanted to dwell further, Chairperson. It was not the first time what Gen Fihla said that they had to use, if Adv Sandi would remember Puma testifying about when we were dealing the incidents in the Eastern Cape for that, they consciously went sometimes to criminals to recruit them because they had courage and also Gen Fihla said here, Sabelo Pama said: "Look, you can't, if you want to steal something, you can't go to somebody who never even stole a speech and ask him to go to that", so it shows he was being open now about what was working, Chairperson. It's just like Chairperson, for instance if I may ...(indistinct) none of the liberation movements would tell you that as this is done all over the world, that you get people who are involved in drugs and they do that. There are certain individuals who raise money for organisations and they are channelled and go to organisations, but they will not, because if they have to protect the organisation at the end of the day, that will never come up.
MR MBANDAZAYO: chairperson, according to him there was also in one case Vusi, who was also involved with Stembele also and also Themba Radebe, they alleged that he was also and those who died, Peter Nkosi, I know them, for instance Vincent Mama who died with Diseko in other operation and some were for instance killed by Vlakplaas, Vincent Mama, there was an inquiry about that, so they subsequently died, some of them, in other incidents in which they were involved with Vincent Mama, though he was not involved in this, but the same members of the group also became involved with Vincent Mama.
MR MBANDAZAYO: Thank you Chairperson. Now Chairperson, I know that evidence of Captain was here, Chairperson. It will be my submission Chairperson the evidence of the Captain can't take their case any further in the sense that it was never put even to the applicant that even after your arrest your group continued", now they came they introduced something new, that this group proceeded and there was never mentioned on some of these things of Rabotapi to the applicant that: "You are involved with people who were this" and its something new comes up. Now Chairperson, with respect, as Mr Moti has said, though it was said ...(indistinct) believe, I've never heard a policeman saying that a suspect has not volunteered information. I've never heard a policeman saying that and I was asking him specifically because of Col Landman and luckily I know him personally even from Western Cape, he's a well-known somebody and unfortunately he's not known in a good light and as we know that though it's not said, it's not relevant, the Eikenhof is a classic example of confessions and also the applicant, Vontjie, admitted that he was involved in that bank, why would Mr Vontjie, knowing very well that he was never involved with Stembele and it's known here. Even Stembele when he was making application, he never mentioned Vontjie, Mr Moti, because he was never involved. Why would Mr Moti put himself in that bank when he was never involved?
CHAIRPERSON: Yes, I think the Captain has quite fairly conceded that in so far as the political element is concerned, which is really what we are concerned about here and not so much about the criminal investigation, in so far as the possible political connotation, context, that this matter is concerned, obviously they didn't apply their minds to that at all and therefore he's not in a position to assist us on that level.
MR MBANDAZAYO: And also Chairperson it's known, as we indicated about the 14 points of attention, it's clear that every time and it's known that most of the time when the suspects even on the offensive unit, will deny any link with the political organisation, even those who were arrested on the offensive unit will deny any link because their first thing is to get away with it. Now, it's worse now when it comes to this question of repossession, now to say that, to put an organisation that is involved in robbery, definitely the first thing is they have been sworn to secrecy, the first thing is to make it look like robbery, that we shared the money, it's simple. That's the simplest thing, we share the money and I don't see anything wrong if you want to protect the image of the organisation, to say we shared the money. So Chairperson, it's my submission Chairperson that though we may have doubts as to whether Diseko, what he was involved in was for the benefit of the organisation, but there is no doubt about him, that he was a member of PAC and APLA and what he told his unit was that what we are doing, we are doing it for the benefit of the organisation and they bona fide participated on that belief, that what we are doing, we are doing for the benefit of the organisation. As to whether the money reached the organisation is another issue, as one would argue for instance that whether Maseko did all his declared to the organisation, even though he was the head of the repossession unit, did it go to the organisation itself?
CHAIRPERSON: Tell me Mr Mbandazayo, there were figures mentioned here. What is the indication as to the total proceeds of these pursuits, was it - some figure of R5 million was mentioned here? I have not made the calculation myself, I'm not even sure if the information is readily available, but have you got an idea?
MR MBANDAZAYO: Chairperson, I cannot. For instance Chairperson, if I may argue this way, this amount is onwards about, when you calculate to R6 million, but when you look at the share which Mr Vontjie was getting and you would expect, when you take into account the members of the unit, he's not supposed to get that amount of money.
MR MBANDAZAYO: If you take that into account, Chairperson, I doubt that he can get that small amount, so that's why I'm saying look, it's difficult that you can rely much on the information from the police, because definitely if they are saying he was getting R20 000 and that about, if it adds up you'll find that he got peanuts, when in overall you find as the member of the Committee, Judge Motata, indicated that it's almost R6 million, now one will have questions, where is the other money. Definitely, if they bona fide believe, even the police, that they were involved in this, they would have investigated. How can you get such small amount of money when you have robbed so much money. In other incidents it's almost half a million, yet you get about R20 000, how can that happen?
MR MBANDAZAYO: Thank you Chairperson. So chairperson, without boring you with my argument, it's my submission that, I always say that the foot soldiers should not be penalised for the transgressions of their superiors, if there are any transgressions. We may have doubts but at the end of the day, why should they be penalised for the transgressions and I would like the Committee to rely on the evidence of Gen Fihla because he was honest and he conceded that some people benefited out of the whole thing and I asked him: "What is the position with the foot soldiers, would they know?" He said: "No, there's no position that they can know about that" and he also himself conceded that at one instant he was told by Vincent Mama that: "We sent so many cars", this was the organisation and they were used by individuals and now my question is, should then the foot soldiers suffer because of the transgressions of their seniors?
Chairperson, it's my submission that the applicant in this instance has made, has established that what he did was politically motivated, taking into account, if the Committee accepts that Diseko as he's accepted there's nothing which says that Diseko was never a member of APLA or PAC, that what he did was politically motivated and that Chairperson, he has made full disclosure, Chairperson and taking into account also the number of years and the number of incidents in which he was involved in, that he may not be accurate on some of these things as to what actually happened on some of these things.
MR MBANDAZAYO: Thank you Chairperson. I was saying, Chairperson, on the testimony of Moti that in some incidents Chairperson, definitely all of us, nobody is a video camera, would be able to reproduce everything. All of us here as all of us, we are legally trained, we know that we can all witness incidents and at the end of the day when we testify we'll come up with totally different stories and you will doubt even that others were present, so it's not because that person is lying deliberately, it's just because it's a human factor, we don't all of us recall incidents, we have the same memory as other people, so definitely where there are certain discrepancies, I submit that they were not major even with regard even for instance cars, which car was used in certain operations, whether it was used for that specific operation but the fact of the matter is that he admitted that they did rob cars in order to do certain operations, that's an admission from him. He admits that I was involved and I was part of it.
CHAIRPERSON: Just another - can I just confirm with you, according to Gen Fihla did it become official APLA policy early in 1980s, I don't remember whether the date was 81, perhaps you can assist, that repossessions became part of the official policy of PAC or APLA for that matter.
MR MBANDAZAYO: Yes Chairperson he said so, that that's the reason, he said look, the reason why they established a unit, it was there, the members became bogged down. Chairperson, it was part of them because the cadres were sent inside and they were told that: "You are trained, you will know how to survive inside the country" and they did not have money to be given, money, large sums of money to come here and survive. They were told: "Look, you have been given training and everything, so it's up to you, you'll know how to survive" and then they were involved in repossessions in order to survive, but they found out that they became bored in those repossessions without pulling their missions and they are arrested on the other issues, so that's the reason they later changed it that there must be a specialised unit which deals with these things. So it was part of it, the liberation movement, that they will do these things but it was not known that, that's how they were surviving inside the country. They will pull mission, there are certain robberies which are not even known, they were never solved by the police, they don't know how they were committed, because the members of the liberation will come inside the country and operate and they will be surviving on those monies they robbed.
MR MBANDAZAYO: Yes, Chairperson because, as he indicated, that you will find that something now, they are using this money for certain things, which is a human factor. If I may remind the Committee, it did not have the benefit, for instance in the UNITRA matter where Adv Sandi was, you know even Mr Maseko admitted that after that incident, he called all the members who were involved, that: "I have to search you, all of you." After they have declared: "I want to search you, all of you" and he was asked: "Why did you do that?" he said look, it's a human factor, these people are not paid for this, at the end of the day he can take R10 and say that I can, not because he does not want - he has criminal elements, but it's a human factor because they are not paid for this and they are sacrificing, so he will take R5 and R10 and all those things. Those are the admissions they make that they are dealing with human beings, but it does not detract as ...(intervention)
MR MBANDAZAYO: Of course, Chairperson, the question of the land, though they were participating they were not like a standing army, they were political soldiers at the end of the day, there is no doubt about that, but the land was lucrative, but at the end of the day, these people will have - some are smoking, they would want to buy cigarettes, not necessarily that they want to use it because they were involved there because of criminality. Like Gen Fihla said: "Look, if you are saying to me, somebody robbed R1 million and he takes R50 000, would you say at the end of the day what he did was not politically motivated because he took R50 000?" You are in a dilemma because he declared R950 000. So those are the political issues one has to decide upon.
MR MBANDAZAYO: Thank you. If you take that into account and according to what the Captain said, they did not find anything with those banks they were talking about, there was no money and I doubt if people were robbing such millions, R6 million, you wouldn't get it and fund it, even maybe they bought posh houses somewhere.
MR MBANDAZAYO: Chairperson, we don't have that. It's what they're telling us. We don't have that as an evidence. Indeed that's what the case is and what Clara Moti said, this money, where did it come from, we don't have anything like that, so at the end of the day, we cannot, Chairperson, it's my submission that he did not do it for political gains, what he did and it's my submission that Mr Moti should be given amnesty as applied for because he bona fide believed that what was told to him by the Commander that what they were doing was for the benefit of PAC and APLA. That's all, Chairperson, unless there is another aspect you want me to address you on.
Much was said about the credibility and the honesty of Mr Maseko and that his word and his motives and his honesty were never in dispute or there was doubt in anybody's mind. Now if that is so and his evidence is accepted, then serious implications flow from that.
The first is that he said that he met Mokoena, Peter Mokoena and his men for the first time in 1991 when they were planning the robbery at Fidelity Guard's depot. The Committee will recall that that is the one where the uniforms were going to be used. Now Mr Maseko also said that the reason why contact was made with this unit at all was because of their successes in what they were doing, firstly, secondly the money that they were making and because of their experience. Now surely, Chairperson, that tells us that this unit had a reputation. The information must have come from somewhere otherwise how did Mr Maseko know about it? So their reputation preceded them and if that is so, if they were involved in activities for the benefit of APLA, then surely he would have also have known about that. The fact is, he didn't.
A further interesting aspect is that once he was talking to them and he was telling them, listen from now on your money, the money that you make here will go to APLA, that means as far as he was concerned, previously it wasn't going to APLA, because this operation, when we work together, your money will go to APLA and he says they accepted that. So that leaves the question, where was it going before.
Then it is an interesting thing also that since that operation which didn't work, Mr Maseko and Mr Mokoena's, Peter Mokoena's or Diseko's, his unit never worked together again. There's no evidence that he either controlled them or that they worked together or they carried out joint operations. Now if we assume, and there's no other inference that one can put on this evidence, is that from that moment in 1991 when that robbery was being planned, Mr Maseko was fully aware of the operations of Peter Mokoena's unit. He knew who Mokoena was, he knew the names of his men, he knew exactly what was cooking with that unit and yet he says that since 1990 he has been in charge of all repossession units in South Africa. Since 1990 he established - sorry, let me rephrase that. In 1990 he established the first branch, or the first unit in Gauteng and thereafter in 1991 it was deployed on a countrywide basis. And yet, knowing of the existence of Mr Mokoena's unit, he never received a penny from this unit. So where did the money go? Nobody was called, the General certainly didn't know about the money, nobody was called from APLA to come and say: "Oh yes, yes, we have been dealing with Mokoena all along and we have been receiving his money". Junior wasn't called, as the guy who was ultimately supposed to receive the money in Botswana and surely if one considers the reputation of this unit, that they were so successful and bringing in such big amounts of money, then surely that must have come to the attention or to the notice of the APLA Command.
CHAIRPERSON: But is that, Mr Mooij, is that necessary for an applicant to establish that for the applicant, Mr Moti, to establish that if he bona fide believes in what is conveyed to him by Diseko, who is the Commander of their unit and who is indisputably linked to APLA?
MR MOOIJ: Chairperson, I understand the question and I will certainly deal with it. On that basis it was conceded on the part of the applicant that it is quite possible that Diseko may have been acting on a frolic of his own, but to come back to the bona fides of the applicant in that regard, applicant says that he was a member, he was a PAC member and he was an APLA member. His evidence in that regard however is extremely thin when it comes to where he joined, how he was trained, where he was trained, who he reported to, it is paper thin. I'm not going to elaborate on that because I'm sure my learned colleague next to me will, so I don't want to utilise her points, but one thing I do wish to point out is that if one has regard to the fact that I asked Mr Moti in cross-examination whether the evidence that he gave in respect of the various aspects, most certainly as to who was involved with him in the unit and the fact that the money was all surrendered to the Commander and that he never got any of it, or the members of the unit never got any of it, if that could be corroborated and he answered a very definite yes.
Now we know that Mr Themba Radebe was available to testify on his behalf, to support that, yet Mr Radebe, and again Mr Radebe, there's no application pending before this Committee, so he's not in a position where he could prejudice his own case or his own application, or his own appeal or anything like that at all, so he would be totally without interest in this matter and he could give evidence and say: "Yes, Moti is correct, we did give the money to the Commander. Yes, we never kept a cent. Yes, we were both members of the PAC", yet he wasn't called, they preferred not to put that evidence before the Committee.
Further it will be noticed on page 24 of the application, more particularly on page 25 and on three occasions on page 26, where certain allegations are made regarding the bottle store etc., the applicant says in his written application: "Please contact a certain Phasika Ntotsisa" and address and phone numbers are given, "to confirm, to corroborate certain things", yet that was never even mentioned in his oral evidence before this Committee. page 25 and page 26.
MR MOOIJ: That may be so, Chairperson, but once it was placed in issue, or into dispute, that he was a member, that he received training, who the members were, why was this person not called, if he could corroborate Mr Moti's evidence? ...(indistinct) wasn't called, so therefore the inference is that his version, his evidence cannot be corroborated. What goes with that Chairperson, very importantly, is that once the evidence was led that Mr Moti, the applicant, told the police that he did receive money, that evidence was not presented for the purposes of showing that, to prove the amounts that he received, but to prove that he told the police that he had received money. Now that evidence was never cross-examined on at all.
CHAIRPERSON: No, in fact it is common cause. He conceded. It's common cause that he told the police a lie and he says why he did that, he said: "I was protecting my unit and I was just giving them what they wanted to hear in any case", so it's common cause that he did tell them he got some money.
CHAIRPERSON: It's not in dispute. It doesn't seem to be in dispute that the applicant, like many other applicants, appeared before us conceding that he lied to the police, or lied to the Court and things like that, so it's not unheard of in these circles.
CHAIRPERSON: Well, the witness was called, as I understand it, to come and testify as to what the applicant had told him and the applicant had said but he did tell the police, in fact when you cross-examined him, he conceded that he did tell the police that he got amounts, so there was no real dispute between the applicant and Capt Diedericks on that.
MR MOOIJ: Well, for this witness then to say that he did not receive any money and that everything was handed to the Commander and base his bona fides on what transpired between him and Maseko and Mokoena, why did he not call any witnesses or present any evidence to support that claim, that he was bona fide and therefore I didn't know any better, so what is being argued now, Chairperson, is that well if Mokoena went off the rails, how can that be laid at the door of this applicant? That is exactly the point.
MR MOOIJ: Well that point has been met, Chairperson, in the sense that I'm saying why did he not call his co-member whom he said was there at all times, except for one operation and to say that yes, what Mr Moti says is correct, we never kept any of the money, we gave it to our Commander.
CHAIRPERSON: Well, he was saying, although the witness was present at the hearing, he is not sure if the witness was available to him because the witness could possibly still be holding a certain view towards this process, so it's not clear whether that witness was available. Nobody else has bothered it appears to us to follow anything up around that particular witness who was present at the proceedings, bearing in mind here that we're not talking in the realm of the matters that we're dealing with, we're not talking of an onus here, we as a Committee must simply be satisfied that certain legal criteria have been complied with and how we become satisfied depends on the circumstances. There's no out and out onus in these proceedings, so the ...(indistinct) of that is that it's open to anybody with an interest to present a particular aspect that is relevant to the Committee and not only the applicant, who is in custody by the way.
MR MOOIJ: That is correct but he was aware that Radebe was here, he could have asked the Committee to assist him if Mr Radebe was not willing to give evidence, but it wasn't even placed before the Committee that he's not prepared to give evidence on this applicant's behalf.
CHAIRPERSON: But you see by the same token, that's why I'm saying there's no real onus in the normal sense of the - the normal legal sense in these matters before us, by the same token, I mean if Themba Radebe, if he was a witness who was adverse to the version of the applicant, then it's open to anybody else to place that before us. To say look, applicant doesn't call him because he's going to say applicant is lying, we're calling him to tell us, to tell the Panel what the applicant is saying is a lie. It's open to anybody here, that's the nature of these proceedings, so in other words, the criticism, it's a two-edged sword, it cuts both ways and that's why not so much would turn around that particular aspect as would normally be the case in litigation.
CHAIRPERSON: I'm not sure how he landed up at the proceedings, but once he was here, I mean I never heard the applicant saying it's his witness, or anybody saying it's their witness. It might be that, as often happens in these proceedings, when a person has an interest, the Commission gives that person notice that he's entitled to be present if he so wishes, so it might be that he came here under those sort of conditions, I'm not sure, I'm just speculating, but in any case we don't know why he was here, what he was doing here.
MR MOOIJ: The point, with respect, Chairperson, still remains that the applicant certainly was aware thereof and if a negative inference surely should be drawn from that that if the person is here and he is available and this applicant testifies that yes, Radebe will be able to corroborate my points and he was asked a number of times, and the fact that he didn't call him or the fact that he didn't say to the Committee: "He is here, but he's refusing to give evidence", he didn't say that, the inference must be that Radebe's evidence will not corroborate that of the applicant.
CHAIRPERSON: Yes, no, no, I must correct you. The applicant did say, and I'm repeating what I said earlier, that Mr Radebe holds a certain view, like many other people, towards this process and we're aware of that, we're aware that certain people hold an adverse view towards the entire process, he did raise that, and that's why we're saying to you that it's not altogether correct to say that it is a witness that was available to the applicant, whom he neglected to call and therefore there should be a negative inference drawn from that failure.
MR MOOIJ: It was also stated by the applicant's legal representative as well as by the General that Diseko, or Peter Mokoena was employed for operations in South Africa, for offensive operations and the general - so in other words APLA was aware of what his status was and what his purpose was and what his mission was. The General did say that it happened during operations and he mentioned the farm instance, where they didn't come into contact with money that they must know how to deal with it, but it was certainly never the evidence from APLA officials that the purpose or the mission of Mokoena was that of a forfeiture unit or heading a forfeiture unit.
Much was made of the 15 points as being an APLA instruction or a code of conduct. The applicant's legal representative attempted to give that evidence from where he was sitting. That evidence was not given by the applicant, nothing was tendered from the applicant's side into evidence regarding that, so for what it's - I don't know how much weight can be attached, I submit none can be attached to that evidence from the applicant's legal representative, certainly not as far as the motivation is concerned for the conduct of members of the various units and this is why they were not aware of what was happening within the group.
The version that Vincent Mama was involved in this, again there's no evidence directly that Vincent Mama was officially involved in any of the repossession units. The evidence was clearly that he was a courier, I think it was called, with knowledge, so it is clear that he knew, obviously he must have known about what was happening or what was transpiring in the various units, or divisions, or departments, that goes without saying, it goes with the territory or it goes with the job. But that does not give him an active role in these repossession units and also cannot be used by this applicant to say, well because he knew, therefore we operated on a political basis and with the know-how and sanction of the APLA Command.
The fact that the applicant says that he gave his money or his - let me rephrase that. The members of his unit gave the money to their Commander or leader, Peter Mokoena, that - can one draw the inference from that that this applicant was acting in the furtherance of the aims and purposes of APLA, or was he acting in furtherance of the aims of his group? Perhaps if one says well there's a chance that Mokoena was acting on a frolic of his own, the fact that they gave the money to him, perhaps he paid them a share or a potion or a cut of the proceeds at a later stage, that would be an explanation for the applicant saying he received some money, but the fact that he says that on it's own, that they gave the money to his Commander, that does surely not mean from his perspective that he knew and from his heart he was actively supporting APLA or its cause.
The issue regarding the Nedbank incident, that was again raised by my learned colleague in argument and previously when I was dealing with it, he submitted that it should not be used because it was withdrawn and the Chairperson of the Committee also restricted me in asking questions about that. The point of it being though that - and I maintain that the effect of it is that admissions made in writing by this applicant were withdrawn, simply because he submitted an application and one must look at the application as a whole. He submitted an application to this Committee. Somebody - if one looks at the questions that were asked, the person who addressed the letters to the applicant, he was - I'm just trying to get his official title, yes, an Evidence Analyst, if one looks at the question relating to this incident, this person it looks like, he had doubt and he said: "Are you sure you were there? Are you sure you were involved with this?" and some of the questions were also phrased in such a manner to establish the truth of what this applicant was saying. He then even corrected himself and he says: "No, I made a mistake, it was actually six people." "Yes, I was definitely there." And now he comes and he tells this Committee: "I wasn't there, I was framed and therefore I'm withdrawing the application." Now that surely must reflect on his credibility. Again Mr Chairperson, I'm not trying to say: "falsus in uno, falsus in omnibus", that's not what I'm saying at all, but I'm saying it goes to the root issue of credibility.
ADV SANDI: If I may, on clarity, you say that goes to the issue of credibility. You're not suggesting that it affects credibility in general, or is it only restricted to that particular incident to which the questions related?
CHAIRPERSON: I'm also trying to - I've got difficulty to ascertain where the lie lies. Is the submission that his withdrawal and his allegation that he was framed that that is a lie, or that his ostensible response to a Request for Further Particulars implicating himself, is a lie? I'm not sure where it lies now, according to your submission.
MR MOOIJ: Chairperson, if one has a look at this, he sets out in his original application, he sets out what happened. He says he was there, he names certain other people as being there as well. Then the question is asked
"Give full details of the vehicle you used in this robbery and details of how, where and when it was obtained."
He gives an answer to such detailed questions, now how can he do that if he was not there? Now he says he wasn't there, but yet where did that answer come from? So either he was lying then, or he's lying now, that's the difficulty. So he says - and look at the answers Chairperson. He says:
"The vehicle that we used during this operation was a silver grey microbus which was repossessed at gun point by me, Themba Radebe, Brian Dongo, Peter Mokoena, the Commander whose real name is Diseko. It was repossessed earlier that month in Doornfontein."
Next question: "How many persons were involved in this robbery?" Now initially he listed a number of names. He says it was Peter, Stembele, Themba and Brian. So it was him - it was four people, then he says, he lists names and then the question comes again:
"Altogether we were a unit of six people. I made a mistake when I applied. I forgot to mention the late Comrade Vincent Mama, whom I knew as Mama."
"According to my knowledge, the money was left at the scene of the shoot-out with the police. It was left with the police in other words, where Stembele Kala and Peter Mokoena, the Commander, whose real name ..." was so and so, "got injured and arrested."
Now with all due respect Chairperson, how can a person give such answers in writing to this Commission and then come - then realising that he's going to end up in the hot water, he comes to this Commission and he says: "I'm withdrawing my application as far as that is concerned." Thinking that he will now remove himself from all the implications. "Where and how was the robbery planned?" He says he was briefed at this place. He says, he gives a name of who instructed him. "Full names of a person who recruited you to join the PAC." That he gives. "Who was the driver of the vehicle used in this robbery?" How can a person who was not there give that evidence? Now he comes and he says: "I was never there, I was framed." Now what can this Committee believe from this applicant? Was he - and I was asked Chairperson whether I'm saying that this evidence should be rejected, but my question to you again is, we don't know whether he was lying in this instance, or whether he's lying when he says he wasn't there.
CHAIRPERSON: Or whether he was lying at all, because it's not something that's before us. That is why I was trying to re-think now and to try and visualise how this can help us. Well, we're still in the dark. I thought perhaps there's some light in that issue, but it's not before us. Don't let this matter detain you unnecessarily.
MR MOOIJ: Chairperson, I won't take it any further, save to say that even after you made that ruling that it wasn't before the Committee, it was again raised by the applicant's, that whole incident was again raised by the applicant's legal representative in argument.
A further point of importance was the evidence of Mr Maseko when he said that his unit were not experienced, they weren't doing so well, his evidence indicated that they ended up with very small amounts of money, R50 and R1 000 and so forth, despite numerous attempts and he said that they then resorted to criminal gangs who were known criminal gangs, who operated, they then recruited them on occasion to assist and I think that may have been the inspiration to contact Mokoena's unit. So at that point there can be no question that they were not - there's no evidence to contradict that, that Mokoena's unit was not operating for the benefit of the PAC.
So my submissions are, to put them in a nutshell, that there's no evidence, objective evidence, which is corroborated that the activities of the unit to which Mr Moti belonged, were operating for the benefit of the PAC, or for APLA and that therefore, because he was a member thereof, it can be taken for granted that his purposes, personal objectives, were by partaking in these robberies, that he was acting with a political motive for the benefit of the PAC. There's certainly no evidence that one can say this stands out like a sore thumb, that this was the case at all, so there's every indication that he was a member of a criminal gang which had nothing to do with politics in high esteem amongst the repossession unit, because of their successes and because of the calibre people they were, but the fact of the matter is that they did not, before they met with Maseko, or thereafter, do anything that was of a political nature and that would qualify him as an applicant for amnesty and therefore those acts would fall outside of the jurisdiction of this Committee.
If one weighs up all the evidence, Chairperson, and one has a look at the probabilities, does one arrive, with the evidence before this Committee, does one arrive at the situation that you can say Mokoena's unit is now aware that these repossession units have been formalised, they're functioning properly, they're working under Maseko and the money was paid over to the PAC through the proper channels? Are the probabilities there? In my submission they're just not there and therefore they do not favour the applicant in that regard. Likewise, relating to the period before they met Mr Maseko, there's every - there's just no evidence that the proceeds of these acts ever were applied to a political party and again the probabilities do not favour the applicant.
ADV SANDI: Yes, but is not the crisp question here to be answered - I mean isn't the central issue here whether the applicant should be believed when he says he bona fide believed that the proceeds of these operations were being handed over to APLA? Isn't that the central question to be addressed?
MR MOOIJ: Chairperson again, there's no basis for saying that. He didn't say, and he certainly didn't place evidence before this Committee that says: "I gave it to my Commander and as far as I'm concerned the Commander gave it to APLA or to the PAC for this or this reason." It stops, the evidence stops and it certainly also appears from the written application, it stops at the point where it says: "We gave all our money to the Commander." It stops there and that is why I said there's nothing to say that because he gave it to the Commander, to the leader of his unit, therefore one can find that he acted in the belief that it was going to APLA. It was going to his Commander, for the rest he doesn't know anything and then also, in conjunction with that, one must consider, as I said much earlier on, how thin the evidence here is and how uncorroborated it is, that he was in fact an APLA cadre.
JUDGE MOTATA: What about Maseko in respect of the FG which was ...(indistinct) by the personnel of Fidelity Guard? That incident number 15, if I'm not mistaken. Are you opposing his application in that respect?
My instructions are that we and when I say we I mean my instructing attorney and myself, did not have a mandate from our client to oppose the application of Mr Maseko at all. Our mandate was purely to oppose the application of Mr Moti.
MR MOOIJ: That list, Chairperson, I have not had the opportunity to formally object to it going into evidence. I do so now. The reason being that when the General testified yesterday, he mentioned that there was a list that was being compiled in 1984, 1994 I'm sorry, and that this was being compiled from various sources, the purpose being to find out the identity of APLA members who had been involved in criminal matters, that had been convicted for matters of a political nature. He also said that there was a subsequent list also and there were other people involved, making lists of people who were applying for amnesty. So there was an amnesty list and there was then the other list. This list that's been floating around here which has been handed in to the Committee, the applicant, his legal representative himself, did not even ask that this list should go in to prove or disprove anything. No evidence was tendered about the identity of that list, who compiled it, when it was compiled, how it was compiled, what its purpose was and the exact date thereof and what the criteria was. It talks about political prisoners, it doesn't say who was to be regarded as a political prisoner, so that list from our perspective, goes no further to prove or disprove the membership of the PAC and of APLA as was contended by the applicant. It takes the matter no further and that list is not going to serve or could not serve to assist this Committee in arriving at a decision at all.
CHAIRPERSON: Well, I think it seemed to have been presented here in response to your questioning of Gen Fihla and it appears to contain the name of the applicant in ostensibly official list produced at the instance of Gen Fihla where it says that the applicant has committed various offences, murder, attempted murder, armed robbery, with a political intention.
MR MOOIJ: Yes, Chairperson, with respect, the list, the General made specific reference to a list that was being compiled by, for the purposes of amnesty application. He mentioned that as well and we don't know if this is the purpose of that list, to convey that. How it can take the issue whether the acts committed by the applicant, were of a political nature at the time, we're talking about 1988, we're talking about 1990, we're talking about 1991, we're talking about 1992. Also the committee must bear in mind that the evidence of Mr Maseko where he said that this applicant, I think we must disregard for the moment what he said about the other people, but he said that this applicant was not a member of the PAC, neither was he a member of APLA.
CHAIRPERSON: Yes, he seemed to have been just back in the country, he didn't even know about Maseko, so clearly Maseko ...(no sound) Sorry, I must rephrase the point. Maseko, the amnesty applicant, didn't know about the situation, the political background of Diseko, Peter Mokoena he was called as well, so obviously Maseko's knowledge was understandably limited, he had just returned to the country from exile.
MR MOOIJ: Chairperson, with respect, just to clarify something there. We're talking about an incident where he met with these people, when I say these people, I mean Mokoena's unit, it happened in 1991. On Mr Maseko's own version, he returned to South Africa at the end of 1989, so he'd not just returned, he'd been here for in excess of a year when this operation took place.
CHAIRPERSON: Yes. That makes it even worse. He's been here for a year, he doesn't know Diseko. He doesn't know that Diseko is an APLA operative, so what weight can there be attached to that knowledge? Now, there is, on the face of it, an official list by the Pan Africanist Congress, which includes the name of the applicant as somebody who had committed, amongst other things, robberies, with a political intention. So the question is, is there any merit in your submission that it's paper thin, the applicant's political affiliation? That is the real question.
MR MOOIJ: The merit lies herein that in his written application the applicant states that the evidence can be corroborated by a certain person and even perhaps by one of his colleagues in their unit. This was not done. This list was compiled in 1995, some three years after the applicant was arrested. We don't know where that list, how it was compiled, in other words where the information regarding whose names should be on there and for what, where that comes from, whether that perhaps it was when this applicant made an application for amnesty, perhaps the person who drew that list became aware of it then. There's nothing other than that and therefore that list does not answer all the questions.
CHAIRPERSON: No, it can't answer all the questions. We've got the testimony of the applicant, which is uncontested, nobody has presented any evidence to the contrary, except Maseko whose evidence obviously is unreliable in this regard. We've got Gen Fihla who said there was at some stage an official list prepared by his political organisation, that he'll make an effort to make that available to the Committee at some stage. Then the list appears, it's presented to us, it is under cover of a memorandum of 1995, it says that these people attached here, have committed the offences indicated next to their names with a political intention, so the question is, do we just wipe this off the table here, just ignore this? You're raising all sorts of queries, but you don't know how it was done and who said what and who did what, but the PAC says on an official list that was made available to us through the offices of Gen Fihla, that armed robberies were committed by this applicant with political intention. That can't be irrelevant for our purposes.
MR MOOIJ: Again, Chairperson, the author of the list did not give evidence. We don't know whether this list, and perhaps my learned colleague can address the Committee better on that, we don't know if this is the list that he referred to, he's not here that we can ask him about it and we can also not ask him the names that appear on there, did you get that from the people themselves, or was it compiled from your records, or was it compiled from Court records, or how was it compiled, and therefore with the greatest of respect Chairperson, that list is nothing but hearsay.
CHAIRPERSON: No but, ...(indistinct) it contains the view of the Pan Africanist Congress that those offences were committed with a political intention. Forget about how the names came about or who said what, before us now the Pan Africanist Congress says these were committed with a political intention. Now are you suggesting that we just disregard this, say look this is rubbish, this is just hearsay that the PAC is presenting to us, it's lies? How can we do that? It's ridiculous.
JUDGE MOTATA: No, and over and above, under cross-examination Gen Fihla said there is a list that has been compiled and at your instance said could you make it at your earliest opportunity available to the Panel and then now this has been made available to us and now we hear questions that we cannot question this person who compiled this because the impression is clearly created that if you can have a list of that nature and give it to the Panel and see what they can do with the list. That's the impression I have, unless you tell me otherwise.
MR MOOIJ: One would certainly Chairperson have to - whatever is presented, one would have to scrutinise it and then take it from there. Again I can only point out that there was mention made of two lists. I'm not saying that the list should be disregarded or thrown out as rubbish, one should also bear in mind that the list merely says that they were armed robbers, it doesn't say for which armed robberies, it's not specific in respect of which incidents, so I don't know, and it really goes, Chairperson you quite correctly refer to it, my submission earlier, that it's there and one should perhaps consider the weight thereof and even from that perspective, my submission would be that in the absence of greater particularity and in the absence of having the person who put that list together, in the absence of being able to ask him various questions about it, there cannot be great weight attached to it.
CHAIRPERSON: Well, that's a different point of course. I thought that the previous point that we were debating was whether or not that would be relevant information. Of course the weight is a different thing. It is a list that's produced, we have to throw it into the pan with everything else that was given to us and it's not holy script, it's just something that's presented to us, on the fact of it indicating that this applicant might very well have a link to the PAC, that's what it means.
CHAIRPERSON: Yes. Mr Mbandazayo will correct us there in terms of the administrative infrastructure. My colleagues can correct me, I don't know if I've ever seen an APLA letter or letterhead. I haven't come across that. I think the administrative side of things is being dealt with by the political organ.
CHAIRPERSON: Yes. Yes, no, no, I've got your submissions on the weight of it but you seem to say it's not something that we can disregard, but you're saying that we can't attach, if we can attach any weight, it has to be at best for the applicant very little?
MR MOOIJ: Just one further point Chairperson. The General was called to give evidence on behalf of another applicant, Mr Maseko and obviously that applicant attached great weight to getting somebody, especially in the capacity of the General, to come and give evidence on his behalf in support of his application. The General was very adamant that he was not giving evidence on behalf of this applicant and the question that remains in the air is why not.
ADV SANDI: I thought he also did not say that his evidence which he had given on behalf of Mr Maseko, could not be looked into for purposes of scrutinising the evidence of the second applicant, Mr Moti.
MR MOOIJ: That is so, that is so, Chairperson. Although he made himself very clear, it was not in support of this applicant per se. He did say he was prepared to answer questions of a general nature regarding affairs of APLA in general.
ADV SANDI: Just whilst we are talking about the General and the list we have before us, you've just said something about things we should bear in mind about the General's evidence and I recall him saying concerning the list of names, if the list we have is the one he was talking about, he said it would be 95% correct and I had specifically asked him to what extent would this list be reliable and he said it would be 95% reliable and we do not know in what respect it would be 5% unreliable?
MR MOOIJ: Yes, certainly Chairperson, he did not say that the list was 100% reliable or that it was accurate in every respect. I can't - again I can't speak on her behalf, but I'm sure that my learned colleague to my right will also address the Committee on her submissions regarding that list.
ADV SANDI: Yes, and I also asked him specifically if he could exclude the possibility of names getting into this list which should not be in this list and he said he could not exclude that possibility.
MS MTANGA IN ARGUMENT: Chairperson in respect of the application of Maseko, I will leave that matter in your hands. In respect of the application of Vontjie Moti, I have two points to put before the Committee. The first one is my learned friend Mr Mbandazayo, argued that the Committee should consider all the operations carried out by Mr Moti to be legitimate operations carried for the furtherance of the PAC struggle and the basis for this was that he said that it could be inferred by the fact that the Commander in the operations that Mr Moti carried out also acted in two other operations, the first one, the Nedbank incident with Stembele Kala, an APLA member who has been confirmed to be so, was involved. Secondly, the fact that he was introduced to Mr Maseko by Vincent Mama and the fact that it was also later confirmed that this Diseko was an APLA member at the time of his death.
The point that I would like the Committee to ponder on, is Mr Maseko was the Head of Repossession. You've heard that evidence before this Committee. He had been in the country since 1990 and he had carried out operations since 1990. That's one. Secondly, Mr Diseko Mogwate had been in the country since 1987 and he had also carried out operations since 1987 and the operations that we know of now that he had carried out are the ones where Mr Moti is involved, which started in 1990 and then what happens, in 1991, Mr Maseko is brought into the unit in which Peter Mokoena had been a Commander for more than a year. My question is, if Vincent Mama knew that Diseko Mogwate's unit was carrying out robberies for the benefit of the PAC and APLA, what was the need for him to bring in Maseko? Why was he introduced to the unit that was doing very well, and far better than his unit was doing? The fact that Maseko was brought into that unit raises questions as to if Diseko was taking the money, or was the person operating as a Commander and taking the money to APLA, why was Maseko needed to come and take that money to APLA and it is not said by Maseko that when he consulted with Vincent Mama, it was agreed that he, together with Peter Mokoena, would work together as APLA operatives and take the money to APLA, it was Maseko who was going to see to it that that money reaches APLA coffers.
ADV SANDI: He has an APLA unit already in progress doing the job that is supposed to be done, then you have Maseko coming into the picture and he does not know that this is an APLA unit, and Vincent knows that he's involved, why does he not tell him about this?
MS MTANGA: Diseko and Maseko didn't know each other at that time. Maseko and Diseko were introduced to each other by Vincent Mama and my question is, if Diseko had already been operating for more than a year and bringing in so much money and far more money compared to what Maseko's unit had been doing, what was the need for Vincent Mama, who knew Diseko very well, who also knew Maseko, what was the need for him to bring in Maseko to bring that money to APLA, if that money had been going to APLA?
CHAIRPERSON: Wasn't the idea to let Maseko cut his teeth on this sort of work? Wasn't that the whole purpose? To now introduce, to initiate Maseko to this sort of thing because APLA's attitude was that you can't send people to do this job who haven't even stolen a peach, so now they're sending him there to go and cut his teeth and Maseko is on the - although in the hierarchy of APLA, Maseko is relatively higher up than everybody else there, he plays a low profile, he's learning here, learning on the job, not so much - so Vincent Mama was more fulfilling that role of introducing Maseko to this kind of work, instead of just making sure that the money goes to APLA.
MS MTANGA: Chairperson, in my understanding of Maseko's evidence, that was not the position, he was not introduced to learn skills of committing robberies, he was brought into that unit to ensure that the money that is obtained by this group of people that he perceived not to be PAC, he perceived not to be APLA and he also perceived to be very skilled at robbing, so he was put in there to bring that money to APLA.
JUDGE MOTATA: Wasn't it that for instance, when he said the repossession we did yielded very little, he quoted amounts of R50 and there was this skilful group which the second applicant or Mr Moti was involved in, was really raking it in, not even picking it in, raking it in and he was again impressed by the agility of Moti, that he even had skills of leadership in this kind of operations. I thought that's what he said, not necessarily to get into that group to take the money away ...(indistinct - mike not on)
MS MTANGA: Chairperson, my understanding of what Mr Maseko said was that while the operation was going on, he made an observation, he wasn't there to observe, he made that observation that Mr Moti stuck as very skilled.
CHAIRPERSON: In other words what I thought Mr Maseko was saying is that, look these people had good ideas and he thought well, you know, this was their idea to hit this place but he somehow persuaded to part with the proceeds, so he was really after what these people knew about this sort of work. They had good ideas and then on top of it he was impressed when he saw the actual execution and he saw the practical skills of Mr Moti on the job.
JUDGE MOTATA: No, no, the question is that we may have certain impressions from the evidence of Maseko, we are putting our impressions to you. It's for you to say no, no, no, don't look at it like that. We are not saying that is the position, we are saying these are the impressions we have and you say you differ with us, but tell us how we should look at that kind of evidence presented to us and the impressions probably in our minds, that we could be persuaded by you.
MS MTANGA: Chairperson, if the Committee would consider the fact, if the Committee would accept my argument that Maseko was brought in solely to ensure that the money that the group got would end up with the APLA, that's one. Secondly if it would also consider the fact that the unit, by 1991, that unit, the unit of Peter Mokoena had committed so many robberies and they had earned so much money for APLA, it is quite strange that here today, General Fihla, who comes from the APLA High Command and who seemed to have firsthand knowledge of some of the repossession units and their works, wouldn't know anything about such a successful unit in South Africa.
CHAIRPERSON: No, that's true, although he said that he was really an Intelligence man. But just coming back to your point. I mean obviously if Maseko went in there for the sole purpose of ensuring that the money goes to APLA, then of course your point is valid, why should Mama introduce him to that unit when that unit was already doing that very thing that he wants to have done, there's clear merit in that, but as I've said, look, we have these other impressions about what prompted his sort of liaison with this group. Of course, apropos the last point that you make and we've raised that with Mr Mooij as well, about the ultimate destination of the money, is it something that should burden the applicant, if there is no clear indication where the money landed? Does that impact on his bona fide belief, if such was his belief, that he was acting in furtherance of APLA's objectives?
MS MTANGA: Chairperson, if one considers the evidence of Gen Fihla about who Vincent Mama was, he said Vincent Mama acted as a courier for APLA, even though he was not a genuine APLA member, he sat in their meetings and he had a lot of information, or he was privy to a lot of information that was going on within APLA. I understand their procedure as to how to report the operations that were carrying on at that time. I find it quite strange that a person from the APLA High Command wouldn't know that Vincent Mama, who was so important in exchanging information within APLA, would have never brought it to their knowledge that there's this unit that works so hard, that he's in touch with. There were instances where this information could have reached APLA, if indeed there were such robberies taking place for APLA, as it was alleged. Vincent Mama was privy to that information.
CHAIRPERSON: I'm sorry. Ms Mtanga, according to the evidence before us, what was the link between Mama and Diseko? Is there evidence that Mama was aware of Diseko's political credentials, his APLA background and the fact that he was in exile and so on and so on?
MS MTANGA: Chairperson, we don't have direct evidence on that. What we do know is that Vincent Mama introduced Stembele Kala, who was an APLA member, to Diseko for the Nedbank operation. The same Vincent Mama introduced Thapelo Maseko to Diseko and Thapelo Maseko was an APLA member, but there is no evidence to the effect that at that point in time Mama was aware that Diseko was an APLA Commander and running this operation - well he was an APLA Commander, but he surely was aware that Diseko had this skill in robberies and he had this group that he was working with, hence he introduced Maseko to Diseko and his group.
CHAIRPERSON: So, assuming that Mama didn't know about Diseko's background, he was exactly in the same position as Maseko vis a vis Diseko, if ...(indistinct - mike not on) was in exile and came back and was in APLA and all sorts of things, then he would have been in the same position as Maseko too. Maseko was unaware of all these things?
MS MTANGA: Yes, Chairperson, I would agree with that and well another point that strikes me about the confirmation of the fact that Diseko is confirmed to be an APLA member and that he was deployed in the country 1987, we have not been referred to any operation that he carried out between 1987 up to the time of his death, to sort of corroborate his activities within APLA, except for the fact that he was brought into the country and he was in the country and he only comes into robberies, and only in one robbery, in two robberies of APLA, that can only be confirmed by people other than Diseko, that is Stembele Kala and Maseko could confirm that they were involved in such robberies. There's no other APLA member according to the information we have, who can confirm the existence of the operations and Gen Fihla could not do that either when he was here, he only learned at the time of his death that Diseko was an APLA member.
MS MTANGA: Chairperson, I find it very difficult to accept that Mr Moti was a genuine APLA members and also a PAC member. What strikes me strongly in his evidence is the fact that he joined PAC in 1983 and soon after he joined APLA and when I put a question to his as to was he ever involved in any PAC activities, he said he was never, because he was always wanted by the police and if one looks at that against his criminal background that he had been stealing cars, one wonders at which point was he being hunted? Was it from 1983 up until he was arrested in 1993?
JUDGE MOTATA: No, no, to put it in perspective. He said that he joined in 1983 and fortuitously landed in jail and he was somewhat a social leper within the ranks of the PAC when he got out and then he involved himself in criminal activities and in 1988 he was then in the group of Diseko and between the periods 1983 to 1990 the PAC was banned so he was not active in any branch and because he started in this spate of robberies in 1988 with his group, he was always on the run, the police being in hot pursuit.
MS MTANGA: Chairperson, what is also strange there is that if, well it's not evidence but it's been practised with most political activists, once the police would be hunting you in that way, most activists left the country and went into exile. Mr Moti carried on with his robberies and we've heard from him that people thought he had money because he drove flashy cars, so he was seen driving flashy cars inside the country while he was being hunted by the police.
MS MTANGA: ; Yes, Chairperson, there's no such reference in his evidence, nor in the application, that he even considered leaving the country, which is something that most activists in his position would have considered, especially at that time. Further to that, we've heard evidence from Mr Moti that he escaped in jail in 1998.
I would like to argue - first of all I would like to put before the Committee that Mr Moti, at the time he escaped, he was in the Johannesburg prison and he was serving his prison term with APLA cadres and the following people, Thema Seshange, Phila Dolo at some point was there, Thapelo Maseko, we had Brian Kobo, I can't recall the list but these are APLA cadres, including Moti, people who claimed to be APLA, who were in Johannesburg prison. In the same year it was arranged for them to go and consult with their lawyer Mr Mbandazayo in the Eastern Cape. Hence we have the affidavits that we have on Maseko and him and Dolo. That was in 1998. We had Maseko, we had Dolo, they were given amnesty in the same year that they were heard. Mr Moti wasn't heard. Seshange, Kobo, Dolo, Maseko were heard and given amnesty and he was with that group. His application, he was told that it's pending investigation. In 1998 in December he decides to escape prison.
ADV SANDI: Yes, but is this not a different matter altogether? The question of an applicant for amnesty escaping from custody. I mean in this case he's not even applied for amnesty in respect of that offence, maybe it's a different matter altogether, that one.
MS MTANGA: ; Chairperson what I want to - I'm using that to argue about whether - to argue the fact that if Mr Moti saw himself, or knew for a fact that he was a genuine APLA member, genuine PAC member, he would have known that his prospects in succeeding in his amnesty application are very, very high, especially if he knew that the group that he had been with and in consultation with his lawyer Mr Mbandazayo, had received amnesty, he must have known that his prospects were very high and therefore that would have persuaded him not to escape from jail.
MS MTANGA: That's a difficult question, Chairperson. Maybe that's what Mr Moti decided not to do. But it would have made it difficult for him to come forward and deal with his application in any event. If he knew his prospects of getting amnesty were very high, getting out of jail would have made it very impossible for him to come forward again before the Committee.
CHAIRPERSON: Ja, I'm just raising that other possibility just simply to show that it's something that just cuts both ways. What is your submission in regard to - your attitude in regard to Mr Mooij's submission, coming to this list, that although the list might not be totally irrelevant and although it's something that could be taken into account that in so far as the weight is concerned, there is very little if any weight that could be attached to that in support of the application?
MS MTANGA: Chairperson, I would like to agree with that, that the Committee should attach very little weight to this list. The first reason being that we don't know the source of the names that are put in here, how they came to be in this document.
MR MTANGA: Chairperson, to rephrase what I just said, we do not know what system of verifying these people's APLA membership or PAC membership was used. That's the first point. and secondly, I'll also go back to the point that was raised by my learned friend, Adv Mooij, that when Gen Fihla spoke here, he referred to a list that was drawn in 1994 and what we have in front of us is something that was being presented to the Parliamentarians in 199...
JUDGE MOTATA: No, but you must also bear in mind the evidence before us was that the police impounded all documentation belonging to the Pan Africanist Congress, so they had to go back and "recompile", that's what Gen Fihla said.
MS MTANGA: But my understanding of his evidence on that point, Chairperson, was that they had to go back and recompile which meant somebody had to go around to each prison and get names of APLA cadres and that was compiled in 1994, the list we have in front of us refers to 1995.
MS MTANGA: Chairperson, if I may answer that question. Yesterday I did put a question to Gen Fihla as to whether the list that they're going to give us, is it going to give the name of a cadre, the incidents that he's applying for, which means that when the PAC or APLA accept that this person is a cadre, do they know exactly what he did? Is it something that they think they can account for, when they look at his application? He said he wasn't sure about that and the application we have especially in respect of Mr Moti, they just say robberies, attempted murders, but they don't say which robberies whereas in other instances they did and if one considers the fact that Mr Moti was in a way implicated in the Nedbank robbery for one and secondly he was implicated in a report that would have been made by Maseko, or the fact that Maseko had applied for Fidelity Guard and Mr Moti was involved in that, his name would have been included there, so we don't know what the source of the incidents that they're referring to and which incidents are in respect of Mr Maseko that they're referring to.
JUDGE MOTATA: Well he said he was not even privy to the list because he didn't even know Mr Moti, he met him here for the first time, the person he knew was Maseko, which is understandable. I think you are quite right there and I believe he was genuine. He said: "I wouldn't, I would look for it, I don't even know whether his name, despite me not knowing him, I don't even know where his name is on the list either, but I would make such a list, if I could lay my hands on it, available at my earliest opportunity."
MS MTANGA: Yes, Chairperson, I agree with that, but I also think it would have been very important if he had in that list, where PAC sent us a list of what Mr Moti did and the amounts of money that they got and they say he did this intentionally, I mean to benefit our operation. Here we've got something that carries no weight, except that ...
JUDGE MOTATA: What is of interest to me is that this list which has been subsequently made available to us, was not at the instance of the applicant, it emanated under cross-examination and you look at the person who was really genuine, and I must say speaking for myself this time, that he made a good impression to me, Gen Fihla, and said: "I know that there is compilation of a list and I'm not involved in that but I would approach our offices and if a list exists, because I know that it is being compiled, I will send it through."
MS MTANGA: Chairperson the fact that any person would have asked Gen Fihla to provide the list, does not bind any of the parties to accept the list when it arrives in any form. If there's something questionable about the list I should think it is the legal right of any party to raise it.
JUDGE MOTATA: Because there was no time frame when this list would reach us, that at some stage before, the impression I have making our decision, we should be provided with that list. Had we walked away here without this list, everybody having seen it, what would you think we should, or what weight would be put into this list, because now what I'm hearing is that: "But we should have gone into all the chains that made this list exist and without proper chains being established, you cannot attach much weight to the list". No had it landed on our laps without anybody arguing this, what would have been the evidential value of this list?
MS MTANGA: Chairperson, my understanding of my learned friend's request, it was at that time he had hoped it would arrive while Gen Fihla was here, to probably answer some of the questions that are being raised now in argument, but that was not the case and in the light of the fact that there are some issues that remain unanswered in respect of this list, then I will say the Committee must attach very little weight to it.
JUDGE MOTATA: Yes, again what is worrying to me, the questions asked of Gen Fihla, was not ...(indistinct) this list and in whose possession it would be. It's just that if the list exists, please make it available to the Committee", not to anyone who is involved in these proceedings. Make it available to the Committee, to the Panel, or would I have misunderstood it?
MS MTANGA: Chairperson, that is the position, but it doesn't mean because it was a request that it must be made available before you, then you must accept it as it is, that you must accept that the content in this document is acceptable to all the parties or it cannot be questioned because we said it must be brought in. A request was made to have a look at a list of names and no one - we had no clue what would be in the list and how the list was drawn, because Gen Fihla himself couldn't say for a fact that it would have incidents, which I think would have been most important.
CHAIRPERSON: You see when it comes to the question of weight, I was under the impression initially, and perhaps that is why one must consider which issue one is speaking about, I was originally under the impression that what the General was speaking about, of course, is something that would somehow confirm the political affiliation possibly of the applicant so that's the sense in which I understood this list initially. Now this list comes and it contains the name of the applicant, and then it contains a summary of possible incidents he was involved in. Now I follow your submission on the incidents. You're saying that it just says armed robbery, there's no specificity, there are no particulars, they don't tell us the Lance Field, whatever it is, was our job and we got the money and so forth and so on, that's one point in respect of which weight must be considered, but in respect of the other point which was the point of political affiliation, now it appears that the applicant's name appears on an official list compiled by the Pan Africanist Congress. Now forgetting about the incidents, let's look at the weight of the list in regard to the political affiliation of the applicant, isn't that of a totally different nature from the weight that could be attached to this bold reference to armed robberies without particulars? Doesn't the fact that his name appears on this list of the PAC, is that not indicative of his political affiliation? Isn't the weight much more on that element than on the question of the incidents that the list refers to?
CHAIRPERSON: I'm sorry to interrupt you, the question is, I mean, did the Pan Africanist Congress and the member of Parliament, Mr Sezane, did he just include the names of common criminals under the name of their organisation and vouch for them in a way, to say look - isn't what this list's saying that look these are our people and what they have been involved in is political? But the first point is: "These are our people" it says, "what they were involved in was political", they use the term political intention. So with the first point, are you submitting that PAC put just common criminals on this list? They just grabbed names of robbers, they took anybody and just put it on there?
MS MTANGA: Chairperson by 1995, if this list was compiled in 1995, there were many things that were happening at that time. There was a discussion and the formation of the Truth and Reconciliation Commission at that time. In 1995 most political prisoners knew that there was this opportunity coming and they would be considered for amnesty if you had committed a political offence and people who were interested at that time did apply and if at that time the PAC went around in prisons and Mr Moti was aware that at some point there were some things that - there's one thing that he had done for PAC, maybe the incident where he was involved with Mr Maseko, maybe it would have been easy for any opportunist prisoner or criminal, to take that opportunity and also put his name there.
CHAIRPERSON: I understand that, but perhaps the answer lies in the point you're making yourself. He has to be somebody who had something to do with the organisation. I mean how could you possibly have a situation where a prison gangster, 28 or 26, whatever they call it, when the member of Parliament came to the prison, they just got up and said: "Look, I'm PAC, I'm APLA." Mr Sezane just puts it on his list. I mean it couldn't have been so facile a process. There has to be some weight to that element of this list to say look, these are our people and as I say, I'm just focusing on that aspect. The other aspect I understand you very well on the particular incidents, but just on the membership question, because this arose in Mr Mooij's submission about how much meat there is around the applicant's apparent or alleged political affiliation. So I'm just concerned about that weight or do we also have to attach very little, if any, weight to that aspect?
MS MTANGA: Chairperson, that is important but in this case and in regard to this list, we don't know exactly how these names were verified. To me I still find that to be very important. For one, if people did things and they claimed that they belonged to a political organisation, I think at that time the organisations were very, it was at a time when they were trying to canvass for more support and if people who were even in prison claimed that they were PAC, you wouldn't turn them down, because you want more people to support you.
JUDGE MOTATA: Let's come back to this unit. We have evidence that Vincent Mama belonged to APLA. We have Diseko Mogwate, he's a member of APLA, we have Stembele Kala, he's a member of APLA and those happened to be members who were executing these robberies with Mr Moti and a list is provided. We find that there is Stembele Kala. They say yes, this is our member, Mr Moti is our member and we get evidence from Capt Diedericks, he says: "No, about Diseko I knew after he was killed that he was a member of APLA", so we cannot debate that very much. We say when that is brought up, would we now say: "Hey Moti, we've got to look at you with a finer comb, whether you were a member of APLA or not", whereas the unit he belonged to is having not less than three members of APLA. And you go further, you get the evidence that look, you couldn't steal a peach if you were not involved in it before, so we came into the country and robbed some of the known criminals, which Mr Moti agrees that: "Before I met this group, I was on a frolic on my own, but I want no amnesty in respect of that. I want amnesty for what I did with these other members." would I be paraphrasing the evidence of Mr Moti correctly at this point?
MS MTANGA: Chairperson for one I would argue that their people were very intelligent and they know how to survive. For one, we're talking about Mr Moti who, when he filed his application, he didn't miss the opportunity of including the Nedbank robbery where Stembele Kala was involved and he knew Stembele Kala was an APLA operative, so he knew that his application would have a political picture if he had that operation in his application. So I would say, if - we don't know how this incident - the fact, for one I had raised my questions about what Diseko was up to, the robberies he was involved in were carried out for the benefit of the PAC, I've raised my concerns about that.
JUDGE MOTATA: Yes, what I understood you to say is that even if you look at Diseko, that he was an APLA member, but to look at his actions, they bear no bearing at all to the objectives of the Pan Africanist congress, he was on a frolic of his own, furthering his own nest. Are you saying we should even look at Moti in that light?
MS MTANGA: Chairperson, when I first brought up my points, I argued that the fact - if one looks at how Maseko was brought into the group, it was questionable. Why would they bring Maseko into a group that is being commanded by a genuine APLA cadre, Diseko Mogwate, if there was such a legitimacy in what they were doing, why did they have to bring in Maseko? I questioned that.
JUDGE MOTATA: I don't want us to steer into the realm of speculation? We have evidence from Gen Fihla that there was no way for Maseko to know Diseko because Diseko came into the country in 1987 and look at it in a holistic picture, that the PAC had all along this idea of repossession but it was not well structured. Some cadres came and he even made an example that what you make with an offensive unit that attacks and during that they see money, are you saying they must leave the money and say: "We are not charged with this"? He says that was untidy, hence they restructured the whole thing and then it was Maseko now who was in charge of this repossession unit, but it was happening on the ground all along. I think I understood him that way and that they could not know each other and to come back and say now why didn't they know each other, I think we are now you know running away from what we are looking at.
MS MTANGA: Chairperson, I understand what you're saying, but I would still argue that no matter how unstructured they were in regard to how repossessions were being carried out and how their offensive attacks were being carried out, at this point the APLA High Command should be able to look back and know what was going on then. Socially in regard to the application that Mr Moti is bringing, even if they didn't know Mr Moti was involved, I would expect them by now to know that there was this very successful unit that brought in so much money and the fact that they don't know that and the fact that Mr Moti himself admitted to this Committee that he was staying in the township, driving flashy cars, to me ...(intervention)
JUDGE MOTATA: What about the flashy cars in Zimbabwe, Harare, which at least they even knew that at least two, when they followed up, that these were cars which were supposed to belong to the Pan Africanist Congress, but some individuals in Harare took them to themselves. ...(indistinct mike not on) that we've got to answer in coming to a decision. I'm not saying it is so, but I cannot ignore that kind of evidence before us, that if you look at the members of the Pan Africanist Congress of Azania, who lived in Harare, who were supposed to be looking after the assets of the organisation, they were feathering their own nests and ...(indistinct) besides that they traced two cars which were supposed to have come to the PAC, but they were using it for their own benefit.
JUDGE MOTATA: Let me tell you what is bothering me and it would appear it bothers my colleagues is that the question uppermost in their minds that the bona fides, that if I have given everything to my Commander, I was acting in terms of the political beliefs of my organisation. You see what I mean?
CHAIRPERSON: Just throw into that pan your Commander is recognised, he's an accepted, he's an established member of the organisation, so the question then is whether you can blame the applicant for what happened beyond his Commander, must we look beyond that point? That's the ...
MS MTANGA: Chairperson, understand that, but it's also something to consider if you look at who that person is, who that operative is. If it's someone who joined the PAC in 1983, he has never been politically active in the PAC, all he has done is to rob and he drove flashy cars and the operations that he claims, no one can account for within the APLA, the it sheds a negative light on him as well, because he could have - there is - an inference can be drawn that he was also benefiting from these operations.
CHAIRPERSON: Even if he incorrectly believed that he was an APLA member and that Adam Addi had introduced him somehow, given him APLA membership and officially in terms of the APLA register he was not a member because he hadn't paid membership fees, or whatever it might be, that doesn't, that's not fatal to his application, provided, as I've said earlier of course, the law is clear, provided he supports the objectives of the organisation.
MS MTANGA: Chairperson, I think I cannot take this point any further. I would like to still maintain that perhaps if he had information from APLA as to what operations - or when last was Diseko involved in operations or who was he involved with, who was he reporting to, that kind of information, maybe we would be in a better position to understand the applicant's predica-ment.
JUDGE MOTATA: Should we visit the deficiencies, if I may ... (indistinct) of the information not obtained from him, because if you would have regard again, I think it's page - from 25 of his written responses, that is Mr Moti, he refers to Phasika Mtotsisa at cell number 08273434480 fax 0475313559, Post Net Suite Box 113, ...(indistinct) for further contact in regard to his membership of the Pan Africanist Congress. He mentioned it about thrice up to page 27 and there was no verification. He provided such information at an early stage before his hearing. Because I'm asking you this, that you bear in mind that we mustn't talk deeply about this, we are even speaking of man who is sitting in C Max, that he does not have the freedom you and I have, accessibility of information.
ADV SANDI: I was just going to say, it would seem to me Ms Mtanga, that you are worried that this list coming from the PAC where they say the following persons whose names appear on the list, committed acts which were politically motivated, you seem to be worried that we will simply accept that as it is, and that is not the case at all. We have to apply the criteria of the Act as we understand it. We have to look into the merits and demerits of the case, evidence, facts, the information we have at our disposal before we come to such conclusion. We are not bound by what they say in this list.
MS MTANGA: Chairperson, if I may go on with my submissions? Based on all the points that I've raised with the Committee, I therefore argue that, or submit that Mr Moti carried out all the operations that he's applying for, for his own benefit and they were not for the benefit of APLA or PAC as he has claimed before this Committee.
ADV SANDI: That's a point that was made by Mr Mooij earlier on concerning the question of onus, would you go along with the submission he made that the applicant bears an onus to prove this and that, to call corroborative testimonies?
MS MTANGA: Chairperson yes, in as far as it would build, or it would build his case yes, in this case Mr Moti knew that his Commander Peter Mokoena died, so he had no one to support his application, so maybe he should have considered bringing someone to paint a clearer picture to the Committee as to what really happened, was he an APLA member or not?
JUDGE MOTATA: if I have, at the end of the day, merely to satisfy myself that I would say in my decision, I wouldn't speak of any onus, I would say I'm satisfied that he has discharged, that he falls within the three legs which we all know, to get amnesty, would the onus you are talking of go beyond that if I were to say only I'm satisfied?
MS MTANGA: Chairperson definitely no, the onus that lies on Mr Moti, it's the onus to prove that he meets the requirements of the Act, so if the Committee would decide that it is satisfied that he meets the three legs of the Act, then there's nothing beyond that, that he needs to prove.
CHAIRPERSON: Ja, on the fact of it, we're not dealing with the criminal onus as we know it, or the civil onus as we know it, we are dealing with something that is unique to this process. It simply requires us to be satisfied on the information before us.
brief here, though there are quite a number of issues. But let me first say that Chairperson I am disappointed with my learned colleagues, especially with the question of list. You know Chairperson, when Gen Fihla was asked about this list, it was clear and he was asked whether, if the name of the applicant is not there, that will indicate probably that he is not a member. The question was a question of member - it was not a question of whether the offences he committed an all such, whether if he appears on that list, that was clear by my learned colleague Adv Mooij, that's what he was asked.
MR MBANDAZAYO: Chairperson, we did not mind about the list, because we knew that he is in the list, therefore we didn't have a problem about the list, so we didn't have any problem about the list, whether the list is there or not. It did not matter to us, the question of the list and there was never those questions raised if then Gen Fihla, it was said it must be submitted to the Committee. These questions which are coming up on the ...(indistinct) of the list, he was here, he should have been asked. The only thing he was asked, how reliable it is. He said 95%.
The other issues now which are being raised are new now, it seems to me that they were expecting that the name of the applicant will not be there, that's why now the questions are coming up, whether the person who is submitting is coming up and all those things and he said to me - and I did my best and he said: "I'll make sure, because I'm in the meeting, I'll call somebody to make sure that this list is there from Pretoria in the office of the PAC" and as soon as they came, they submitted, they came up with the list. ...(indistinct) But in any event Chairperson, we did not - to have no interest in the list in any event. But what I want to stress Chairperson is that, as you raise it, in terms of Section 20(2)(g) it's clear there that any person associated himself/herself with an act or omission committed for the purposes referred to paragraph (a),(b),(c),(d),(e),(f), which referred to political organisation supporters, employees of the State, now it's clear there, even if somebody is not a member, even a supporter who associated himself with those people, qualifies in terms of the Act. You need not be a member, you need not be a supporter, if you associate yourself with what they are doing, then you qualify in terms of the Act. It's clear.
ADV SANDI: The persons with whom you associate yourself, only just on that sub-section of the provision you have referred to, aren't these supposed to be people who are involved in activities that could be classified with acts associated with a political objective?
MR MBANDAZAYO: Exactly Chairperson, they must be associated, all of them, they must be supporters or members of those organisations, that's what I'm saying, that our argument is that the applicant, even if you say he was not a member of APLA, those people he was with, there's no doubt about their membership.
Now it brings me to another point, Chairperson, which I wanted to clarify once and for all, this question of Vincent Mama and Diseko Mogwate and also Thapelo Maseko. Chairperson, the first incident is the Nedbank incident. Vincent Mama was involved with Diseko in Nedbank incident and Stembele Kala and all - in the affidavit of Stembele Kala, which was accepted by this Committee, it's there in his application that he was involved with the APLA cadres, six APLA cadres and that was not disputed. Diseko was there and now again, 1991 July, after the Nedbank incident, Vincent Mama has been involved with Diseko, now he brings in Thapelo Maseko with Diseko, introduced Thapelo Maseko to Diseko, the same Vincent Mama, now Chairperson, what more is wanted? Now what you are going to do now is to speculate as to why Vincent Mama ...(indistinct) why he did this, why he did not tell Thapelo that Diseko is an APLA cadre. It has been accepted by this Committee. If for the sake of uniformity and consistency, this Committee accepted the application of Stembele Kala and granted him amnesty, that Diseko was an APLA cadre who was involved with all of these people, Vincent Mama, he was - that group belonged and Vusi, all of them belonged to APLA and now when they are introduced to Thapelo Maseko they are no longer APLA cadres, they are criminals. A year later, it happened in March, a year later they are no longer APLA cadres.
Now Chairperson are we going to apply certain rules because Stembele Kala has a high profile? He was an ex-Robben Islander and Sgt Diseko was trained because Vontjie Moti, he has admitted that he was a criminal, so therefore we have to treat him differently when he is involved with people who were involved with other people and it was accepted that they are political, their acts were political, because now himself, he has a questionable background of criminality, so we have to treat him differently? I don't think so, Chairperson. That's my submission.
ADV SANDI: Just one last thing from me. Concerning this list, I do not really wish to express any view on evidential issues pertaining to the list, but I note that at page 16, one of the persons whose name appears, had appeared before one of our Panel of which I was a member and he testified under oath and he said that he's never had anything to do with politics in his life. I'm not saying you must respond to that, but I'm just commenting here on that.
MR MBANDAZAYO: Chairperson, I concede on that aspect. As Gen Fihla consented that it's not perfect, there's no doubt it's not perfect that list, hence ourselves we did not want to emphasise anything, or wanted the list and all those things because everybody will come up and say: "Look this one was not an APLA, it transpired this, that he was not an APLA", that's why we knew that at the end of the day, the list will not take us anywhere.
ADV SANDI: It was only when I looked further into the list, I don't want to go into the list Mr Chairman, sorry, when I look further into the list whose name appears and he had also appeared before a Panel of which I was a member and he said he had nothing to do with politics. That person was reported in the media to have subsequently joined the National Party, sorry the New National Party. You don't have to respond to that.
MR MBANDAZAYO: Chairperson, myself, our application is not based on a list, whether he is included in a certain list, the applicant. It has nothing to do with the list. The list was wanted by my learned colleagues and we supplied the list, that is all and in any event as one of the members of the Committee said, it was said it was submitted to the Committee, I have also the impression that it can be submitted at any stage before the decision is made, now I wonder where this argument will be coming now if that had happened. But in any even, our application is not based, I wanted just to comment on the list, our application is not based on the list as to whether the applicant is included in a certain list or not.
MR MBANDAZAYO: Chairperson, I wanted also to - I just wanted to - I know that a lot of time has been taken. The question of escape from prison, Chairperson, I know that it has been dealt with. Chairperson it reminds me, the same members, yourself and Adv Sandi, were involved in the Msongela case, where he also escaped and he was not involved in repossession unit, he killed police and members of the South African Defence Force, he was a member of APLA and he escaped from prison and it was after, it was, if I'm not mistaken, 97 or 96 and he had already applied for amnesty.
ADV SANDI: Yes, there are many reasons why some people escape from prison, one of them, we were told, he had escaped from prison because he wanted to go and sort out his family matters and when he was arrested he said he was in fact on the way back to prison.
MR MBANDAZAYO: Chairperson yes, luckily I also know about that case, I was involved, so there are many reasons for escaping from prison, but at the end of the day that person was granted amnesty, but not in respect of his escape, which has nothing to do, so Chairperson, I don't see whether ...(indistinct) on that aspect. Chairperson, I would like to skip some of the incidents, but it was raised, the question of Themba Radebe, why he could not be called and confirm and say that. Chairperson Themba Radebe was called, he came here because he was an implicated person and the applicant did not even have a chance, he said in his evidence, to speak to him because he was prevented from speaking to him. Chairperson, I did not want to raise this thing because at the end of the day you will say that there is no need for us to ...
MR MBANDAZAYO: Yes, Chairperson, I know that, he had the choice, but I wanted, just because it has been raised Chairperson, I had an opportunity of speaking to him and in fact we wanted to use him and he made it clear to me that the reason why he did not apply, then he can't see himself giving evidence.
ADV SANDI: Isn't the - well I must say I'm thinking aloud now, isn't the problem there perhaps that there is no evidence before the Committee that the applicant, at that stage, had attempted to speak with Themba Radebe, with the view to secure his testimony before this Committee in support of his application?
MR MBANDAZAYO: Chairperson I don't think at that stage when he met him here that he wanted that because he met him in prison previously and he expressed his reservations about the whole process, so to him he was of no use to him because he has already expressed his views to him.
MR MBANDAZAYO: Of course, Chairperson, because he knew his views, that it's not going to take his case any further. That's the reason, that's why I'm saying because it has been raised, luckily I had the liberty of speaking to him myself, also to get the views of Mr Radebe and definitely also myself, I said that there's nothing because there's nothing he's going to say here.
ADV SANDI: My understanding at this stage is also that we were not informed as to what views exactly, what reservations the said Mr Radebe has about this process, but we were simply told that he is entertaining certain views about this process, hence he would not be able to come and testify before us.
MR MBANDAZAYO: Yes, Chairperson. It ended there, nobody wanted to know what was his views, maybe now this would not have cropped up, so that's why we did not come up with the whole thing, because in fact if I express those views now, I'd be testifying myself which is not the case, he was never asked but he had said he holds certain views about the whole process.
CHAIRPERSON: I think my colleague, Judge Motata, has raised the issue that is really determinative of this question. You see if he's given notice in terms of Section 19 as an interested party, he's got a free choice, he's not compellable, the section is quite clear, so if he doesn't want to participate there's nothing that anybody can do, so it's really an academic question.
MR MBANDAZAYO: Thank you Chairperson. Chairperson, just to go to all the points I've dotted. The other aspect which was raised was the question of Mama being that Diseko was involved, was supposed to go to offensive unit, Chairperson, Gen Fihla has also indicated that as far as he was concerned, Mama was supposed to deal with logistics but he ended up being in repossession unit and those, he admitted that's where the things were happening.
MR MBANDAZAYO: Yes, Chairperson, so it cannot be said because Diseko was involved in this repossession, therefore Diseko did not, at the end of the day, was not acting on behalf of APLA. We don't know what actually happened and as he indicated, Gen Fihla, that he does not know whether he was reporting to Junior and these things continued, though Maseko was here and he admitted that it was one of the mistakes they made, that they did not tell Maseko about the people who were operating inside and also even those individuals, they gave them tasks. They did not tell him about those people, so definitely you'll get the problems like this, that people continued to operate in this fashion.
ADV SANDI: Mr Mbandazayo, Mr Fihla, the General, I understood him to say that he was the head of Intelligence for the organisation and I must say I've never been involved in military organisations. I would understand such a person to be better placed than anyone, to know what sort of activities are being carried out on behalf of the organisation. He didn't - he was not aware of any monies that were being forwarded by this particular unit to Junior in Botswana, neither did Maseko.
MR MBANDAZAYO: Chairperson, I don't think I would agree with the member on that aspect. Definitely he said it was not his field, he did not know about that. Definitely he was not involved in the question of money. The question of Intelligence involves the security of the organisation and gathering ...(indistinct) on certain aspects, but he did not know whether they were reporting to Junior or what. As he also indicated, at a later stage when he met Mama, he investigated, he was told about certain cars and then investigated and he discovered, that is why there were people who were driving flashy cars and who were richer than the organisation itself. It was because of those things and he was not aware of those things, because it was not his field and they were accepting these monies on behalf of the organisation. People were sending things for the organisation and they were using for their own benefit and they were not aware. They were aware at a later stage because they were seeing that these people are living in luxury, that there's something wrong.
MR MBANDAZAYO: Yes, thank you Chairperson. So it does not mean that the money never went there to the organisation. I'm not saying it went to the organisation, the money, but it does not mean that it did not go there. It may have gone there but people used it for their own benefit.
MR MBANDAZAYO: Chairperson if I may talk to the Member of the Committee. Also themselves, in the case of Maseko in UNITRA, in one time they wanted to say: "Look we want to see the bank accounts where this money went to". So definitely because of this problems they say: "Look, we'll be interested to see the bank account and it was really a problem because it was a liberation movement, you couldn't get you know people who were operating on the underground and go and open an account there.
MR MBANDAZAYO: So what I'm saying Chairperson, at the end of the day we'll only be sitting here and speculate and speculate as to what happened. Now Chairperson, I wouldn't touch other like for instance the question of ...(indistinct), my understand is that the questions that were submitted to the applicant were for the investigating unit of the TRC to verify some these, not for the applicant to bring those people here, or to verify whether what he is saying is true. He bears no onus to bring those people here. So the question whether he mentioned, luckily they have the benefit that this person was mentioned. I would understand now if you would say: "Look we ...(indistinct) not just our ...(indistinct) affidavit from him, he knows nothing about this whole thing." Now the only thing I'm left, I will speculate that they contacted him and he confirmed everything, that's why everybody is quiet about it.
Chairperson, the other point was, these 15 points of attention, it was said that I tried to explain from the bar, unfortunately the applicant mentioned them and nobody - my colleagues never questioned him or asked him what these 15 points of attention are.
MR MBANDAZAYO: Chairperson, I wanted to clarify that I did not - what I was trying to stress was the question that we cannot rely on the information from the police, that's what I was trying. I was not arguing about the question of Nedbank because I knew that we have withdrawn it, but I was trying to stress a point that at the end of the day, you cannot rely on the information of the police, because here a person admits that I was involved in this, yet he was not there. That's what I was trying to say, that it's unreliable and there will never police come here and say somebody did not volunteer information. I've never, in my life I've been involved with ...(indistinct) but you will never get policemen coming saying he did not and somebody, a suspect, did not volunteer information, it's always freely and voluntarily every time. So that was the point I was trying to stress.
Chairperson I don't want to bore your ear about this suspect. It's still my contention that if it's accepted that the members that the applicant was with, were members of APLA and that they were known, it cannot, if there is suspicions that they did not hand the money to the organisation, therefore he must bear the brunt for that and also, Chairperson, it's my submission that the fact that the applicant has admitted or he has records of being involved in criminal activities, that does not disqualify him that he be granted amnesty in respect of incidents which he bona fide believed that what he was doing, he was doing for the benefit of the organisation, which is the requirement in terms of the Act, that a person must bona fide believe that he was involved in furtherance of the political struggle. That was his bona fide belief.
ADV SANDI: Yes, but clearly it is not enough for an applicant to simply make an assertion that: "I bona fide believed that we were acting in furtherance of the objectives of this particular organisation". Surely the applicant has to lay a foundation by way of evidence.
ADV SANDI: Yes, otherwise we would end up granting - I'm not suggesting that we are not going to grant amnesty here, or what's going to happen, but otherwise we would end up granting amnesty to thousands of applicants, in fact just about everyone, simply because he says: "I sincerely believed that blah, blah, blah, blah."
MR MBANDAZAYO: Chairperson, that's correct and it's my submission as well that I was just responding on the issues that were coming from my learned colleagues, but we have laid the basis that the applicant has laid the basis that he was - there's no dispute about his involvement on this aspect, there's nothing to gainsay that he was not, except that what is being clung to is the question that he had a political, he has a criminal background. It seems as if that's the case which is being clung to, just because he was a criminal, so therefore he has nothing to do with politics. That seems the only thing that comes up, nothing else. There is no evidence, other evidence to rebut whatever has been put here by the applicant, except that he had a criminal background.
ADV SANDI: That may be so. One may find himself in a situation where there's only evidence from one side and that is the applicant's side, but surely that doesn't mean that you have to willy-nilly accept what's being tendered by the applicant. I have to consider the pros and cons of the evidence.
MR MBANDAZAYO: I agree with you Chairperson, 100% on that. I'm not suggesting that because there's nothing to gainsay what has been said by the applicant, therefore there's no need for the Committee even to consider all the factors and everything, so it must just grant amnesty.
MR MBANDAZAYO: Chairperson, I'm not trying to suggest that in any way, Chairperson, but what I'm saying is that in order - somebody has to - the evidence has to be presented to rebut whatever the applicant is saying, there must be evidence, not somebody just saying that because you have a political background, therefore you do not qualify for amnesty.
ADV SANDI: One may be a member of a political organisation, but it does not mean to say that each and every act this person gets involved in, is necessarily an act associated with a political objective in terms of the Act.
MR MBANDAZAYO: Chairperson, exactly. I've been involved in many, some I had withdrawn applications because of that. The applicants, I would advise them that there's no way all of them - they were genuine applicants, but when you look at their application, that look, this has nothing to do with your political organisation and they have accepted that. It does not necessarily mean that because somebody is a member of a political organisation, so therefore everything - there are many APLA cadres who are inside, who have not even applied because what they did had nothing to do with PAC.
ADV SANDI: Gen Fihla made it very clear that some people went about doing their own things in the name of the organisation. I'm not saying that is necessarily the case in the present matter here, but we have that evidence before the Committee.
MR MBANDAZAYO: Chairperson, I think the evidence of Gen Fihla, he conceded in some of the things and the mistake they have and that's the reason why I'm relying on that evidence. One other aspect, I wanted to say was that - to respond to Adv Mooij, was that he was saying that Gen Fihla came to testify for Maseko, but at the end of the day they cross-examine on the applicant and now I don't think, I don't see why now his evidence cannot be used for the benefit of the applicant, the testimony of Gen Fihla, yet they cross-examined him on that aspect.
JUDGE MOTATA: That we accept, hence we made it possible that the General should come back, that both applicants testify and the cross-examination is just taken as one. We accept that. I don't think you have to address us on that.
It should be quite evident from the discussions that ensued on this matter that there are a number of issues that need to be considered and has been stressed by one of my colleagues, if matters are debated it's not because they are clear cut and that the Panel has made up its mind one way or the other. It's precisely those matters which require a great deal of consideration and thought that engenders the sort-of debate that is necessary in order to try and understand all of the issues and to gauge the case of each one of the interested parties on these problematic issues that we have to deal with. This is one of those cases. We will have to consider the matter. We'll consider all of the material that has been placed before us, the evidence, the documentary material as well as the submissions on behalf of all of the parties and only after that exercise will we be in a position to formulate a decision in the matter. As we try to do with all of the other matters, we will endeavour to do that as soon as the circumstances permit, after the Committee has to literally move from the one difficult matter to the next one, and so they pile up and often things, in terms of formulating decisions, don't work out the way you want in terms of time and schedules, but we still endeavour to produce them as soon as the circumstances permit.
CHAIRPERSON: Then we will thank you for your assistance in these matters which you have appeared in before us. We appreciate your assistance. Mr Mooij and your instructing attorney, we appreciate your effort as well in being of assistance to us in trying to deal with this matter which, as I've indicated, is clearly not a cut and dried matter. We'll have to consider the matter very thoroughly, but we thank you for your submissions and for your participation in the matter.
We have some other matters on the roll. We're just going to stand down for a moment or two, just to allow you to reorganise things and then we'll hopefully dispose of the other matters on the roll. We'll adjourn briefly.