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Amnesty Hearings

Type AMNESTY HEARINGS

Starting Date 05 July 2000

Location MESSINA

Day 3

Names ASHLEY MURPHY MASIL

Matter MURDER OF MR PYPERS AND THEFT OF HIS MOTOR VEHICLE AND MURDER OF MR AND MRS BOUWER AND INJURY OF MR BOUWER (JNR)

CHAIRPERSON: Mr Mbandazayo, could you help me, how do you pronounce the name?

MR MBANDAZAYO: Masil.

CHAIRPERSON: Thank you.

ASHLEY MURPHY MASIL: (sworn states)

CHAIRPERSON: Mr Mbandazayo.

MR MBANDAZAYO: Thank you Chairperson and Honourable Members of the Committee.

EXAMINATION BY MR MBANDAZAYO: Mr Masil, is it correct that you were born on the 28th of June 1971?

MR MASIL: That is correct.

MR MBANDAZAYO: Were you - is it correct that you were born in the Gauteng Province?

MR MASIL: Correct, Chairperson.

MR MBANDAZAYO: Can you tell the Committee how far you went to school?

MR MASIL: Standard 10, Chairperson.

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

MR MASIL: I joined PASO whilst I was at school.

MR MBANDAZAYO: So PASO is the Pan Africanist Youth Organisation which was the Student Wing of the PAC?

MR MASIL: Correct, Chairperson.

MR MBANDAZAYO: Now Mr Masil, you - when did you join PASO, when did you join PAC proper, or you remained a member of PAC through PASO?

MR MASIL: I joined PAC in 1981. Apologies Chairperson 1991.

CHAIRPERSON: Yes, I was going to say otherwise you would have been ten years old. 1991.

MR MBANDAZAYO: Now Mr Masil, you have heard the testimony of the first applicant, do you confirm the evidence of the first applicant in as far as it relates to you?

MR MASIL: That is correct, Chairperson.

MR MBANDAZAYO: Do you abide by that evidence of the first applicant?

MR MASIL: Correct, Chairperson.

MR MBANDAZAYO: And do you also want it to be incorporated as part of your evidence?

MR MASIL: That is correct.

MR MBANDAZAYO: Chairperson, I have no further evidence to lead for the applicant.

NO FURTHER QUESTIONS BY MR MBANDAZAYO

CHAIRPERSON: Just before I ask Mr van der Heever, if I could just ask a few questions. Did you ever join APLA?

MR MASIL: I never joined APLA outside, I joined APLA internally when I was involved in APLA operations.

CHAIRPERSON: When was that?

MR MASIL: 1994, Chairperson.

CHAIRPERSON: When in 1994?

MR MASIL: January 1994.

CHAIRPERSON: And did you ever receive any military training?

MR MASIL: No, Chairperson.

CHAIRPERSON: So how could you become a member of APLA then if you've got no military training? I thought APLA was the army.

MR MASIL: That is correct Chairperson. I joined APLA because I was involved in the APLA operations.

CHAIRPERSON: And did they use your motor vehicle? I mean we heard they used yours.

MR MASIL: Correct.

CHAIRPERSON: Was it your own vehicle?

MR MASIL: Correct Chairperson.

CHAIRPERSON: Registered in your name?

MR MASIL: Correct.

CHAIRPERSON: Mr van der Heever, I've been requested to take a short adjournment, but I see that it is nearly ten to eleven so perhaps we could, instead of taking a short adjournment and coming back for a couple of minutes, we'll take the short tea adjournment now. We'll have a twenty minute tea adjournment thank you and we'll resume.

COMMITTEE ADJOURNS

ON RESUMPTION

ASHLEY MURPHY MASIL: (s.u.o.)

CHAIRPERSON: Yes, thank you. Mr van der Heever, do you have any questions to put to the applicant?

MR VAN DER HEEVER: Thank you Mr Chair.

CROSS-EXAMINATION BY MR VAN DER HEEVER: Mr Masil, the BMW was bought by your mother, is that correct? I'm referring to page 138 of the minutes of a document I've got.

"So you bought him a car?

We bought him this very same BMW for about R3000"

Is that correct?

MR MASIL: That is correct.

MR VAN DER HEEVER: Now Mr Masil, you were represented by a certain Mr Botha during the criminal trial, is that correct?

MR MASIL: That is correct.

MR VAN DER HEEVER: Now I'm referring to page 142 of the minutes and page 494 of the criminal trial and your counsel made the following submission.

CHAIRPERSON: More or less whereabout in the page?

MR VAN DER HEEVER: Line 17.

CHAIRPERSON: Thank you.

MR VAN DER HEEVER

"According to him, the accused no 2 was not politically motivated."

So according to your counsel you had no political motive.

MR MASIL: That is correct.

MR VAN DER HEEVER: But was the submission made by your counsel correct? Is that the instruction you gave him?

MR MASIL: That is correct, Chairperson, I instructed him that way.

MR VAN DER HEEVER: Mr Masil, you made a very lengthy statement from page 71 to page 78, if I remember correctly, of the minutes and I want just to refer you to certain paragraphs. On page 72, paragraph 6, the last two lines

"I did not think that the other two were also members of APLA, because I did not know them very well."

Is that correct?

MR MASIL: I instructed him that I did not know, because I wanted to be acquitted and that's how the police promised me, but I knew that they were members of APLA.

MR VAN DER HEEVER: So you made a false statement?

MR MASIL: That is correct, Chairperson, that's the way the SAP promised me, that I should try to be against my co-accused and then the Court would reduce my sentence.

MR VAN DER HEEVER: Paragraph 7. According to your statement Silo requested you to take him to an engagement party in Pietersburg. Is that correct?

MR MASIL: That is correct, Chairperson, that is the statement I gave the police. That is the statement I gave to the Court, but the truth is when we left Alexandra we were coming to Northern Province to do APLA operations.

MR VAN DER HEEVER: Paragraph 10 of page 73

"On the 5th of February 1994, I was the last one to get up. Everybody was already awake. Moss then came to me, he informed me that we were not there for the engagement party, we were there to look for the Kruger millions."

Is that correct?

MR MASIL: That is correct, Chairperson, that is the statement I gave to the police and my legal counsel.

MR VAN DER HEEVER: You did not instruct your counsel properly, is that correct? Is that what you're saying?

MR MASIL: That is correct.

MR VAN DER HEEVER: So you lied to your counsel as well?

MR MASIL: Correct, Chairperson.

MR VAN DER HEEVER

"He then asked me if I knew the place and where we could get some money to rob"

Is that correct?

MR MASIL: Correct Chairperson, that's what I told the police and my legal counsel.

MR VAN DER HEEVER: And the Court?

MR MASIL: That is correct, Chairperson.

MR VAN DER HEEVER: During the criminal trial?

MR MASIL: Correct Chairperson.

MR VAN DER HEEVER: So did you go to a garage in Mooketsi to rob the garage?

MR MASIL: When we went to Mooketsi we did not go there to rob the garage, but we were going to do some observations and then to show them Northern Province, according to my knowledge.

MR VAN DER HEEVER: But did you go to the garage at Mooketsi?

MR MASIL: That is correct, Chairperson, we entered that garage at Mooketsi.

MR VAN DER HEEVER: ; And I'm referring to paragraph 11 on page 73

"After we had dinner, we went to the garage in Mooketsi, where we wanted to rob it."

Did you say so to the Court, in your statement and to your counsel?

MR MASIL: Correct, Chairperson.

MR VAN DER HEEVER: Why didn't you rob the garage?

MR MASIL: Because we did not go there with the intention to rob that garage, we went there with the intention to observe the area as Morapapa has asked me to show them the area.

MR VAN DER HEEVER: And why did you say to your counsel, to Court and in your statement you did not rob the garage because there were quite a number of taxis busy off-loading people?

MR MASIL: All those area we went to, the members of Murder and Robbery Unit gave me an advice to formulate my statement in such a way that we were supposed to rob all these areas, because the police were aware that I was not military trained, so they promised me much, that even in Court my sentence is not going to be the same as my co-applicant, because they were trained and I was not.

MR VAN DER HEEVER: Why didn't you tell your counsel the truth, Mr Masil?

MR MASIL: I did not tell my legal counsel the truth, because I did not have opportunity to consult with him and then again I was using that advantage that I'm going to have a lighter sentence, as I was promised.

MR VAN DER HEEVER: Did you go to Magoebaskloof Hotel?

MR MASIL: Correct, Chairperson.

MR VAN DER HEEVER: And why did you go to Magoebaskloof Hotel?

MR MASIL: That is one of the reasons for us to show - that is the places where we went where we knew we will have an opportunity to meet white people there.

MR VAN DER HEEVER: But there were obviously white people at the Magoebaskloof Hotel. There are always white people at Magoebaskloof Hotel, why didn't you do anything?

MR MASIL: All things we did, we did because we were instructed by Morapapa, so for us not to enter at Magoebaskloof Hotel and shoot people, it's because Morapapa instructed us to go and rob the area and leave.

MR VAN DER HEEVER: Mr Masil so according to you, you didn't go anywhere to rob anybody, is that correct?

MR MASIL: May you please rephrase your question?

MR VAN DER HEEVER: The question is, did you go to any place to rob anybody?

MR MASIL: No, Chairperson, we did not go to any particular place with the intention to rob, according to my knowledge.

MR VAN DER HEEVER: Your co-applicant said that you needed petrol money and that's why you wanted to rob some of these places.

MR MASIL: It is true that we were ...(indistinct) money for petrol, so Morapapa instructed me that I should leave everything to his shoulders, he will see what to do.

MR VAN DER HEEVER: So to which places did you go to rob for petrol money? Magoebaskloof Hotel, inter alia?

MR MASIL: We did not do anything at Magoebaskloof, we did not rob any person there.

MR VAN DER HEEVER: But did you go there to look for an opportunity to rob for petrol money?

MR MASIL: Not in Magoebaskloof Chairperson.

CHAIRPERSON: So where did you go to rob for petrol money, in the hope of getting money for petrol.

MR MASIL: If I remember well it is at Roedtan, the Sunshine cafe.

MR VAN DER HEEVER: ...(indistinct - mike not on)

INTERPRETER: The speaker's mike is not on.

MR VAN DER HEEVER: So you went to the Bouwer's place to rob the cafe for petrol money? Is that what you're saying?

MR MASIL: That is what Morapapa explained, that we are supposed to find money for petrol at that particular place.

MR VAN DER HEEVER: So you went there with the sole purpose to look for money?

MR MASIL: Truly speaking, I did not know the entire intention as to whether are we going there only to rob for money for petrol or to kill whoever is in the shop.

MR VAN DER HEEVER: The following is also false and you gave false evidence before the Court, you gave false instruction to your counsel and your statement is wrong.

"I then said that I knew the area. At approximately 11 o'clock in the morning we went to the Magoebaskloof Hotel to see if we cannot rob this place."

CHAIRPERSON: From which paragraph is that Mr van der Heever?

MR VAN DER HEEVER: Page 74 paragraph 13, Mr Chairperson.

CHAIRPERSON: Thank you.

MR VAN DER HEEVER: Yes, that's true. The members of Murder and Robbery Unit in Pietersburg told me that in many instances I should say that to all these places we went with the intention to rob, not with the intention to kill white people, because they wanted me to be against, or to contradict my co-accused so that in Court I'll be acquitted, or my sentence would be lighter.

MR VAN DER HEEVER: This is also false and you gave false evidence and you gave your counsel false instructions.

MR MASIL: That is correct.

CHAIRPERSON: Did you go at any stage to reconnoitre a Standard Bank?

MR MASIL: That is correct, Chairperson on two occasions, in Mankweng and in Lebowakgomo.

CHAIRPERSON: Why did you do that?

MR MASIL: I'm not able to explain because the instruction was from Mr Morapapa that we should go there and reconnoitre the area about the security arrangements and then we returned.

MR VAN DER HEEVER: Mr Masil, but there are no whites employed by either the Standard bank at Mankweng and the Standard Bank at Lebowakgomo, nowhere.

MR MASIL: I don't know, but when we went to Mankweng, I saw three whites, two white males and one female. In Lebowakgomo I was not able to see any white person there.

MR VAN DER HEEVER: But according to, on page 77 from your statement, paragraph 25, you kept the Standard Bank under observation with the purpose of robbing it. Is that correct?

MR MASIL: The intention to reconnoitre that Standard Bank was not to rob at that particular time, but we went there to reconnoitre to see the security arrangements.

CHAIRPERSON: Because the intention was to come back later and rob, otherwise why do it?

MR MASIL: That is correct, Chairperson.

MR VAN DER HEEVER: And you did the same thing, according to your statement paragraph 26 at Lebowakgomo.

MR MASIL: That is correct, Chairperson. We arrived at Lebowakgomo. I was together with Silo Motapo. We entered the complex and we observed.

CHAIRPERSON: The bank?

MR MASIL: Not only the bank Chairperson, but we reconnoitred the whole complex.

MR VAN DER HEEVER: Standard Bank Mankweng is on the campus of the University of the North, is that correct?

MR MASIL: No, Chairperson, it is outside the campus.

MR VAN DER HEEVER: Adjacent to the campus?

MR MASIL: That is correct.

MR VAN DER HEEVER: And according to your statement, page 78, paragraph 26.

INTERPRETER: May you please repeat?

CHAIRPERSON: You can just repeat, the translator didn't catch what you said.

MR VAN DER HEEVER: Page 78, paragraph 26. According to your statement

"Moss then said"

the last sentence of that paragraph,

"Moss then said that we will return later that evening to rob the place."

MR MASIL: Not in Lebowakgomo, but he said that on the way. There is a shop where we entered, where Moss and Zweli bought newspapers there, that is where Moss said when we return in the evening, we would pass there.

MR VAN DER HEEVER: And you would rob it, or you must rob it?

MR MASIL: He said we should kill whites who were selling at that shop and then it should be robbed.

MR VAN DER HEEVER: This shop, how far out of Pietersburg is it? How far is it from Pietersburg?

MR MASIL: If I remember well, it is approximately 15 kilometres from Pietersburg.

MR VAN DER HEEVER: And according to paragraph 27 on page 78 the plan was to rob the shop that evening. Is that correct?

MR MASIL: That is correct.

MR VAN DER HEEVER: But there are no people in the shop during the evening, Mr Masil.

MR MASIL: The truth is, we did not know when do they close that shop and then again we would not enter the shop if there were no people. We were supposed to enter there whilst people were still inside, as it happened at Roedtan at Sunshine Cafe.

MR VAN DER HEEVER: So this is - according to paragraph 28 page 78, the suggestion - it was your suggestion to go to Roedtan, is that correct, with the aim or robbing a cafe, is that correct?

MR MASIL: No, that was not my suggestion, it was the suggestion of Moss Motapo. He informed me as to whether is there a town between Zebediela and Marble Hall which I know, then I explained to him that I know Roedtan.

MR VAN DER HEEVER: So you - according and I quote the first sentence

"I then said that we will try to rob a cafe in Roedtan."

Did you say that or didn't you, in Court, to your counsel and to the police?

MR MASIL: I said so to my legal counsel and in Court and to the police because the police promised me that if I say so, then again if I tell the Magistrate to whom I made my confession to, my sentence would not be the same as my co-accused.

CHAIRPERSON: Sorry. I was under the impression, maybe incorrectly so, that were you not when you attacked the shop at Roedtan, were you not on your way to Alexandra?

MR MASIL: We were on our way to Alexandra, towards Marble Hall.

CHAIRPERSON: Is Alexandra not in Johannesburg?

MR MASIL: It is in Johannesburg.

CHAIRPERSON: Yes, now you said that you went to a shop 15 kilometres from Pietersburg to rob, but that shop was closed and then you went to Roedtan. Now isn't Roedtan, you must help me because I don't know this part of the world too well, but isn't Roedtan far out of the way to Alexandra and you're now running short of petrol? Why take a long detour like that towards Marble Hall?

MR MASIL: The route we used, initially we used N1 because it's the national freeway from Johannesburg to Messina, it passes Pietersburg, but when we returned, Moss told me that we should use another route which I know, then I chose Pietersburg/Marble Hall road, where it - and it goes to Johannesburg from Pietersburg.

CHAIRPERSON: Mr van der Heever.

MR VAN DER HEEVER: Mr Masil, according to your statement page 77 paragraph 22, Mr Pypers' vehicle was stripped and some of the parts were sold, is that correct? Were taken by Silo's father, is that correct?

MR MASIL: Like the first applicant said, I don't know what happened to that car, but the following morning when we arrived in Johannesburg, I woke up and I went to visit my girlfriend in Soweto overnight, but when we were arrested we said that the car was stripped because we didn't want them to know where we have taken the car to or where we have sold the car to?

MR VAN DER HEEVER: So that's also false, that the car was stripped? You don't know it for a fact?

MR MASIL: No, that is not true.

MR VAN DER HEEVER: What happened to the car, was it stripped or not?

MR MASIL: I was the driver and I have a mechanical knowledge, but like I said I went to Soweto to visit my girlfriend. When I came back I was just told that the car has been sold and they said if we are arrested we should say to the police that the car has been stripped, but from my side, I don't have any knowledge about the car.

MR VAN DER HEEVER: You got money for petrol from some of your friends, is that correct?

MR MASIL: I do not understand. When?

CHAIRPERSON: After Roedtan, what happened with your vehicle?

MR MASIL: After we had arrived at Sunshine Cafe and shot people, Zweli and Morapapa went back. I tried to drive the car for half a kilometre, it can be 500 metres or so and the car stopped, we could not proceed, so we left the car there and took everything that was in the car and we went into the bush. We stayed in the bush until the following morning.

CHAIRPERSON: Do you know why it stopped?

MR MASIL: Well I don't know, even today I can't explain, but I know the engine of the car fully.

CHAIRPERSON: Thank you. Mr van der Heever.

MR VAN DER HEEVER: Mr Masil, the young man 14 years of age, it was a child in the cafe, a young boy, is that correct?

MR MASIL: That is correct.

MR VAN DER HEEVER: Why didn't you take any money from the shop at Roedtan?

MR MASIL: Like I have said, my job was to drive the car. The people who entered the shop were Zweli and Morapapa. Those are the people who can explain why they did not take money, because they knew that we did not have money for petrol.

MR VAN DER HEEVER: But you had money to buy cigarettes and bread etc., is that correct?

MR MASIL: Yes, the money that we had, it's not the money that could buy two litres of petrol, because I remember I did not buy a full pack of cigarettes, I bought loose cigarettes and this young man we found in the shop, because I did not have money to buy a box of matches, he gave me some few cents to buy a box of matches in the shop and then I left, so the money that I had could not even buy two litres of petrol.

MR VAN DER HEEVER: Mr Masil, are you saying to the Honourable Commission that certain parts of your statement, your statement from page 71 to 78 are true and certain parts are false, certain sections of this statement, is that correct?

MR MASIL: That is correct.

MR VAN DER HEEVER: Certain parts, or certain things you've said to your counsel which was placed before the Court during the criminal trial are correct and some are false, is that correct?

MR MASIL: That is correct.

MR VAN DER HEEVER: ; Does the same apply as far as your counsel is concerned? You didn't tell your counsel the whole truth, is that correct?

MR MASIL: That is correct.

MR VAN DER HEEVER: So - and as far as the engagement party is concerned, you say that's false?

MR MASIL: That is not true.

MR VAN DER HEEVER: Kruger Rands, looking for Kruger Rands?

MR MASIL: It is also not true.

MR VAN DER HEEVER: And you also said that in Court, is that correct?

MR MASIL: Yes, that's what I said.

MR VAN DER HEEVER: Mr Masil, this incident took place two months before the 1994 election, is that correct?

MR MASIL: That is correct.

MR VAN DER HEEVER: There was already an Interim Constitution in place, is that correct?

MR MASIL: That is correct.

MR VAN DER HEEVER: ; And there was also - the date of the election had already been announced at that time?

MR MASIL: Well I'm not sure whether in February of that year we already knew the date of the elections.

MR VAN DER HEEVER: And you said on a question - your counsel put it to the Court on that particular day that you had no political motive because you were promised a more lenient sentence if it wasn't politically motivated, is that correct?

MR MASIL: Yes. The Murder and Robbery Unit in Pietersburg realised that amongst ourselves I was the only person who was not trained, because these other people also confessed that they were trained, so they wanted me to blame my friends so that it could appear in Court that I was actually forced to participate in all these activities.

CHAIRPERSON: Were you given the opportunity to turn State Witness?

MR MASIL: They promised me that I will be removed from the accused box and put into the State Witness box, that's what they said to me.

MR VAN DER HEEVER: And that is why you've made a false statement?

MR MASIL: That is correct.

MR VAN DER HEEVER: I've got no further questions, thank you Mr Chairman.

NO FURTHER QUESTIONS BY MR VAN DER HEEVER

CHAIRPERSON: Thank you Mr van der Heever. Ms Mtanga, do you have any questions you'd like to put to Mr Masil?

MS MTANGA: I have no questions, Chairperson.

NO QUESTIONS BY MS MTANGA

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

MR MBANDAZAYO: None Chairperson.

NO RE-EXAMINATION BY MR MBANDAZAYO

CHAIRPERSON: Adv Bosman, do you have any questions that you would like to put to the applicant?

ADV BOSMAN: I have no questions, thank you Chairperson.

CHAIRPERSON: Mr Sibanyoni?

MR SIBANYONI: Mr Masil, when you were in Roedtan, from there how would you proceed to go to Alexandra?

MR MASIL: We were going to use the road from Roedtan to Marble Hall and then through Settlers to Johannesburg.

CHAIRPERSON: With petrol, what were you going to do?

MR MASIL: Because Morapapa said that I should leave everything in his hands concerning the petrol and the transport, so I looked up to him to make arrangements for petrol.

MR SIBANYONI: And at that stage you were just taking them back to Alexandra?

MR MASIL: That is correct.

MR SIBANYONI: You were no longer busy with PAC activities, or APLA activities?

MR MASIL: We were still in the APLA activities because we were going to Johannesburg and return to Pietersburg from time to time, so we were actually in APLA activities.

MR SIBANYONI: But on that day, were you not on the way to drop them in Alexandra?

MR MASIL: Like the first applicant said, Morapapa was from the Northern Province, but the three of us were from Alexandra, so all of us, including Morapapa, we were going to Alexandra.

MR SIBANYONI: No further questions, Mr Chairperson.

CHAIRPERSON: You heard Mr Mhlongo when he testified say that the intention of the unit was to conquer the Northern Province, take it over, did you hear that?

MR MASIL: Yes, I did.

CHAIRPERSON: Was that also of you - that was your intention as well, you identified with that aim and objective to take over the Northern Province?

MR MASIL: Yes, I do.

CHAIRPERSON: Mr Mhlongo said well it was just the unit that was going to do that and it was going to be a long process, bit by bit, slowly, one step after the other gradually recruiting people, doing operations one after the other, did you hear that?

MR MASIL: Yes, I did.

CHAIRPERSON: Did you agree with that?

MR MASIL: Yes, I do agree with that and I would also play a very important part in those activities because I schooled in Northern Province and I understand the language there, so most of the people I know in that Province, so I would be very helpful to them.

CHAIRPERSON: You also said that you knew that the date for the new elections were the 27th of April 1994. Now were the four of you intent on conquering the Northern Province between February and the 27th of April 1994? Did you intend following the objective as laid out by Mr Mhlongo, to carry on after the elections with your endeavour to take over the Northern Province?

MR MASIL: Like the first applicant has said, even Morapapa was not doing things that he himself thought about, he was in contact with the leadership. I did not know some of our leaders, so we would get information from him and instructions from Morapapa.

CHAIRPERSON: He couldn't have been too well in contact because at that stage the struggle had been called off.

MR MASIL: He was able to meet with the leadership because I remember one day I took him to Turfloop because he said to me he was going to phone the leadership. Those are some of the people that I've never met.

CHAIRPERSON: Any questions arising, Mr Mbandazayo?

MR MBANDAZAYO: None Chairperson.

NO RE-EXAMINATION BY MR MBANDAZAYO

CHAIRPERSON: Mr van der Heever, any questions arising?

MR VAN DER HEEVER: No thank you, Mr Chair, no thank you.

NO QUESTIONS BY MR VAN DER HEEVER

CHAIRPERSON: Ms Mtanga?

MS MTANGA: No questions, Chairperson.

NO QUESTIONS BY MS MTANGA

CHAIRPERSON: Thank you Mr Masil, that concludes your testimony, you may stand down.

WITNESS EXCUSED

CHAIRPERSON: Mr Mbandazayo.

MR MBANDAZAYO: Thank you Chairperson. Chairperson at this stage I'll call Col Poni to the witness stand.

CHAIRPERSON: Thank you.

XOLISWA CLIFFORD PONI: (sworn states)

CHAIRPERSON: Mr Mbandazayo.

MR MBANDAZAYO: Thank you Chairperson.

EXAMINATION BY MR MBANDAZAYO: Col Poni, can you - am I correct to say that at the present moment you are Officer Commanding in the Thohoyandou Military Base?

MR PONI: Positive.

MR MBANDAZAYO: Now, Col Poni, am I correct that you are a former APLA cadre?

MR PONI: Yes.

MR MBANDAZAYO: Col Poni, do you know the applicants who have just testified before the Committee?

MR PONI: ; I know Zweli Mhlongo because I was his Political Commissar in Tanzania.

MR MBANDAZAYO: Now do you know the person who is known as Moses Motapo or Morapapa?

MR PONI: I know him very well.

MR MBANDAZAYO: How do you know him?

MR PONI: ; He was an instructor in the camps when I was still a Political Commissar and when I became a military attaché in Harare in 1993, he was already inside the country, so he was - time and again he would come to us in Zimbabwe and we'd consult.

MR MBANDAZAYO: Now, Col Poni, you have heard what the applicant, can you tell - you have already indicated, I wanted to ask that question what office were you holding within APLA at the time in 1994.

NR PONI: 1993/94 I was a member of APLA High Command and also a Military Attaché in Harare until October - sorry until July 1994 because I was there, I never came until July.

MR MBANDAZAYO: Now, can you tell the Committee about whether you knew what was the mission which - whether Morapapa or Moses Motapo was given any specific instruction inside the country?

MR PONI: In his specific case, mostly he was deployed within the Transvaal machinery, operating in the Johannesburg, Gauteng, Alexandra area. In this area we had a guy who passed away in an operation by the name of Moss, I have just forgotten his surname but he was Moss. He passed away in one of the operations here and then there was a gap here, there was no Commander in the specific area in the Northern Province per se. Then he was identified through also with interaction with the Transkei internal APLA Command that he be removed wherever he was, so that he should come this side in the Northern Province to establish APLA structures in terms of training, resources, that was in 1993.

MR MBANDAZAYO: Now you have heard the applicants, they told the Committee that part of their mission was to rob, if I may use your word - you were not using that word, you were using the word repossession, yes - was to repossess and what you have heard the applicant telling the Committee and what was done by, under the command of Morapapa or Moses Motapo, was it in line with your instructions, or in line with APLA and PAC at the time?

MR PONI: Well we can go into ...(indistinct) in terms of robbing and repossession, what I believed in and I still believe what we have done was correct, was the repossession in terms of the political understanding I have. He was not out of line in terms of what he was doing because his specific instructions were to establish the command, APLA's Command Structure in this part of the world and also it is a fact we believed in terms of being self-sufficient, so where he could also organise resources, which we normally refer to as repossession, so he was not out of line.

MR MBANDAZAYO: Now the Committee knows that there was a specialised unit, repossession unit, which was headed by Tabelo Maseko.

CHAIRPERSON: Ms Beauty Salon.

MR MBANDAZAYO: Code name Beauty Salon. Now, why was this unit not used in this case? Why was Mr Motapo used to ...(indistinct) both the offensive and in the repossessing side?

MR PONI: In this specific area, particularly in the Northern Province, we honestly speaking, we never had a very strong structure here APLA-wise, that is why he had sort-of a double type of an agenda, not having to be specific, so he had to establish a unit and also to make the machinery to be self-sufficient, hence he was also in a way sort-of autonomous in terms of fund-raising, if I may say so.

MR MBANDAZAYO: Okay. Now let's go now to the specific. At the time these two incidents happened, I understand that there was an announcement on the 16th of January that the arms struggle is suspended and this operation happened in February. Can you explain that, whether that what they did was still in line with APLA and PAC?

MR PONI: There were numerous problems to be very specific here, so in that sense that when, in the January the 16th when the PAC leadership announced the moratorium on arms struggle, that in the honest true sense, it was not done in a manner of consultation with the Commanders also on the ground, so also we had to battle and try to pass the message through so it would have been very difficult within a week of that specific period, it needed time to consult all forces and also to make them to agree, because even the party itself took a very hasty decision in agreeing into participation into negotiation at the time.

MR MBANDAZAYO: Can you be able to just tell the Committee your Command structure, where the members of APLA, that is the Commanders or members on the ground, if there is an announcement, they hear on the radio, or TV or in the paper they read that the arms struggle is suspended, so they have to stop everything?

MR PONI: No, it does not go like that and it never go like that. We were a military - I'm not going to lecture, we all know what the military command structure was. It's a fact yes, the politicians did take a decision, but it needed also us as Commanders at various levels of command also to communicate that and unfortunately at that specific time there was not a single military Commander that talked, other than what was read in the newspapers, because we had to make that into reality.

MR MBANDAZAYO: Would I be correct to say that though you were also members of the High Command, you were also taken by surprise by this, by the decision?

MR PONI: Positively yes, I was in Harare when this thing - I read it on the Zimbabwe Herald, this thing happened, we never set a single day discuss this.

MR MBANDAZAYO: And it was subsequent to that and you have to do the damage control thereafter.

MR PONI: That was it, it was crisis management.

MR MBANDAZAYO: Chairperson I think that's all I wanted to come with.

NO FURTHER QUESTIONS BY MR MBANDAZAYO

CHAIRPERSON: Thank you Mr Mbandazayo. Mr van der Heever, do you have any questions you'd like to put to Col Poni?

MR VAN DER HEEVER: Thank you Mr Chair.

CROSS-EXAMINATION BY MR VAN DER HEEVER: Colonel, a Political Commissioner, is he supposed to be involved in military activities?

MR PONI: Okay, not - Commissar?

MR VAN DER HEEVER: Ja.

MR PONI: My role, one ...(intervention)

MR VAN DER HEEVER: No, no, I'm not referring to you as a person, I'm referring to a ...

MR PONI: A Political Commissar?

MR VAN DER HEEVER: Yes.

MR PONI: Definitely yes, because he has to see to it that all the operations that are carried out have a political connotation ...(indistinct)

MR VAN DER HEEVER: ; And applicant number two, do you know whether he was indeed an APLA member?

MR PONI: Initially when I started I said I only know Zweli, but I would accept that in terms of expanding from their structure, then yes, he is an APLA member in that regard.

MR VAN DER HEEVER: ; And what were the instructions, or what were - what happened if an APLA member for example was arrested and tried? Was he supposed to reveal his membership as an APLA member or was he supposed to refrain from informing his counsel that he was an APLA member?

MR PONI: In the specific case, I would not know the actual ...(indistinct) of it, but what I know is that once you are arrested, it's a fact that there is no way you could hide per se your identity per se. You might withhold certain information yes, which you know will compromise those that were in existence in your specific units, but to say: "I am an APLA member" then, I don't see any problem in it, but the holding of information thereof, yes.

MR VAN DER HEEVER: Thank you Mr Chair.

NO FURTHER QUESTIONS BY MR VAN DER HEEVER

CHAIRPERSON: Thank you Mr van der Heever. Ms Mtanga, any questions?

MS MTANGA: I have no questions, Chairperson.

NO QUESTIONS BY MS MTANGA

CHAIRPERSON: Any re-examination Mr Mbandazayo?

MR MBANDAZAYO: None, Chairperson.

NO RE-EXAMINATION BY MR MBANDAZAYO

CHAIRPERSON: Adv Bosman, any questions?

ADV BOSMAN: Mr Poni, Colonel, applicant number 1 stated that he did not agree with the cessation of the struggle. Do you have any comment on that? He seemed to have known that the decision was taken.

MR PONI: What I would say, I would maybe consider also his level of academic qualification, but - in terms of understanding certain - but what I can say, it is a fact that when the then leadership of Makwetu took a decision that they are suspending the arms struggle, even my personal self, I was not agreeing at that specific time that the arms struggle should stop but of course, knowing that I'm a political cadres we immediately tried to rally, but not all of us could do that because we still thought that the road to - the arms struggle is still on, but I will also understand that they were not in the picture of what was - I also understand the political pressure. Fortunately I had an opportunity of being an attaché, I knew what was the position of Africa vis a vis the present dispensation, there were numerous meetings forcing us to an extent that even in Harare, I know it for a fact because I was a military attaché, arms were taken away which were under my command in the stores at the time, were taken away, so I would understand the feelings of underground people not wanting to agree with that. I clearly do understand.

ADV BOSMAN: If a person did not agree and there was publication which had come to their notice that the arms struggle had been suspended, then in the absence of any order to the contrary, would that not be stepping out of line?

MR PONI: He, or the units on the ground, they should have waited for a military Commander to tell them that. We were not just a political part of it, we were not just members of the PAC, we belonged to an armed wing of which each had its own rigid structures and at that time when these things happened, we were still also battling amongst ourselves so as to say, we agree, we don't agree, do we continue, we don't continue, those were some of the things, so hence we had to go into a crisis management, trying to battle, force some of these things, so I accept that this type of thing did happen.

ADV BOSMAN: Thank you Chairperson.

CHAIRPERSON: Mr Sibanyoni, do you have any questions you'd like to ask?

MR SIBANYONI: Yes, Mr Chairperson. Colonel, what was the APLA'S policy in terms of, or in so far as the expansion of the cadreship? In other words, what was it expected for Moses to do in establishing structures in the Northern Province?

MR PONI: Okay. He had - there were two programmes. First as I've said that there was someone who was operating here, earmarked to be the Commander here, Moss, but unfortunately he died within the process and in that he did have some units that were not in control of anybody, that was another problem, so his task was also to re-establish the links with the units that were already in existence that were established by Moss and also to establish new units in terms of having more people, in terms of expansion, in that regard.

MR SIBANYONI: Right, was there never any people who were trained internally, in other words if he receives a new recruit? Was he not supposed to train that person internally?

MR PONI: Who?

MR SIBANYONI: Moses.

MR PONI: Was he not supposed to train the person internally?

MR SIBANYONI: Yes.

MR PONI: Okay, fine. What he would do, there were different programmes. There were those he could, let's say train them on a short-term, there were those he could identify and then take them to Transkei where we had established military bases, so it would depend also on his discretion because he was the Commander of the area and he was given quite, if I may say, a bigger mandate to operate on, so he could identify those, either if he had people for short-term or for long-term, then those he identified - I'm not in his shoes now- - or the criteria he has, I will be unable to say, but he could train people here in any part of the Northern Province, or some, he may take them to Transkei for further training and further utilisation in some other part of the country.

MR SIBANYONI: According to the evidence before this Committee, he was using applicant number 2, a person who had never undergone military training, is it not something which was out of line?

MR PONI: Not necessarily. No, not necessarily.

MR SIBANYONI: May you explain why you say so?

MR PONI: As I have seen his role, he was just a driver. As I have listened here, he was just a driver, he never got into any combat type of a situation, so sometimes - which means we had a very vast programme, maybe it might not, at his level Morapapa might have know, because he was more or less a Senior Commander to them, we had the actual combatants themselves, we had the sympathisers and we also had quite a number of people, not necessarily - those who were in the underground structure, but okay, as I hear him now, he was a driver, so he was - if I would utilise him in that manner, then he was one of those sympathisers who could risk their lives for the cause of the party and they were utilised as such and if I've seen, he never participated in the actually shooting of anything, as I hear now here, so he was one of the people, if I may use the correct terms, a sympathiser but under the banner of APLA per se.

MR SIBANYONI: Now coming to repossession. Were they entitled to repossess and consume or were they supposed to repossess and report to some upper structures?

MR PONI: It depends also on the volume of what you had repossessed really because also you have to be able to sustain yourself, you should be able to sustain your structure, so there's no way, if you took let's say R700 then you would phone Letlapa or ...(indistinct), and tell him: "I've got R700", that would have been - I would regard that specific Commander as having no initiative, but I would agree, if it would have been quite a volume of whatever he has repossessed, definitely mechanisms were in place that he should declare. unfortunately I was not in that part of that specialised unit, I don't know what mechanisms they had in place, but I would just out of the general knowledge, I would definitely - they would have declared that if it was quite a big amount of money in a channel that they knew how they would.

MR SIBANYONI: You have listened to the evidence here, it would appear, you may differ with me, it would appear that the focus was on reconnoitring places for possible attack and one will say it would appear Moses was not concentrating on establishing structures and doing other activities of APLA, but he was just focusing on identifying places or possible targets, what is your comment on that?

MR PONI: What I can say, this is a narrow, it might be just a narrow version of whatever, because I don't think in the throughout of Moses' period here he has been with them throughout, but in the narrow perspective and also I don't know in what role Moses utilised them. He might have identified them or earmarked them since he had the other mandate of trying to make the system to work, maybe these were his nucleus in the repossession wing, it might be possible, but I don't know. I'm definitely sure that this is a narrow version of the wider mandate that he had so I cannot really dwell on that specific ...

CHAIRPERSON: Thank you. Colonel, we've heard evidence from Mr Mhlongo that Motapo, Moses, communicated with the Director of Operations, Mr Mphahlele and one would have expected him, as you say that he was now the Commander of the whole of the Northern Province, that he would be in regular contact with the leadership.

MR PONI: He would have?

CHAIRPERSON: Been in regular contact with his superiors. You said yourself that there wasn't much of a structure here, he was coming in, he was trying to build it up, so one would expect regular communication.

MR PONI: Okay, I would agree with you there.

CHAIRPERSON: So, one would have expected that he would have communicated with leadership people, people his superiors, after January the 16th and before February the 11th. Well that's what Mhlongo said, that he in fact - now if let's say somebody like Mr Mphahlele, I don't know whether he did, but let's communicate with him personally, but let's say somebody like that, he probably would have said to him: "Look, there's been a cessation, a moratorium in the armed conflict." One would expect if he's got discipline, to obey that. Would you agree with that?

MR PONI: Ja.

CHAIRPERSON: I mean he's a Commander, he's a senior person. Now, if he didn't obey it, what did he hope to achieve? What could he achieve? You've heard Mr Mhlongo saying that they were out to conquer the Northern Province, four people, seems - I'm not a military man, never have been, but it seems absurd to me, that intention that at that time, in those circumstances.

MR PONI: Sir, I share your sentiment, but if you were in the, particularly in the APLA and in the PAC in general when the announcement, in fact even before the announcement if I may just draw you back because this is quite a political issue, Mr Johnson Mlambo flew from Dar Es Salaam to a Cape Town congress to convince only the membership so as to accept the change that was there. He was nearly beaten in that only the membership, not APLA itself that time, I was in Dar Es Salaam at that time, just to tell the membership internally that no, the situation - Africa thinks we must participate in the negotiations and we must participate in the negotiations in Cape Town, I think it was well read in the newspapers then, those who were in South Africa at the time. He was booed in that meeting, he could not finish what he was saying and at that time he was the most respected person because he was the Chairperson of the PAC and also the Commander in Chief of APLA at the time but his credibility was lost because of the militancy within the PAC at that time and this was a very short space of time for anybody really. I agree with the sentiments of also of the gentleman here when they continued because also ourselves at that time, we could not take a very serious decision. We had senior internal members of the High Command who could not see things, also the other people do see things. We had to iron out those differences and they continued, despite the fact that that was done, but they continued and they are still continuing. When we are meeting we are still labelling each other, sell-outs and the rest, amongst our own selves, so this is the depth of the problem.

CHAIRPERSON: Yes, because when was that conference in Cape Town? Was that before the negotiations?

MR PONI: Before, I think a year or so, or two years before.

CHAIRPERSON: Yes, that was before the negotiations yes, but at this stage there had bee negotiations which were concluded. The Interim Constitution was in place, it had been agreed upon. PAC played an active role in the negotiations.

MR PONI: No.

CHAIRPERSON: Yes they did because a friend of mine was there. I know.

MR MBANDAZAYO: Chairperson, just may I chip in, just to put some of these things in perspective, the congress. I agree with him there was a year before the negotiations, Johnson Mlambo flew in, there was that problem. Now in December before the suspension, there was a conference, where a decision was taken Chairperson by the PAC that the leadership is given mandate to suspend the arms struggle when it's opportune to do so and Chairperson, I think I've done in many of these hearings, that it was specific that before the announcement is made, the leadership had to consult all the Commanders and come to an agreement.

CHAIRPERSON: No, no, but let me just finish putting what I'm putting there.

MR MBANDAZAYO: Chairperson I want to, when you are putting, so that you may cover, just for the sake of time. Chairperson, I want also to put into perspective that definitely as he put it, there were members of the High Command inside and they were outside and they have to do damage control and in terms of their system, they have to contact the inter High Command which was responsible to tell the cadres to stop.

CHAIRPERSON: Yes. No but what I was getting at, I was just saying that negotiations had been concluded, Interim Constitution was in place, elections were around the corner, everybody knew that those elections would result in a new dispensation, it was quite obvious to everyone, there was no question about that, so January the 16th, the announcement that APLA was to cease operations really you know, that far advanced in the political developments of the day, didn't I'm sure to most people, come as a surprise because things were in place now waiting for the election. What's the big surprise? Did they expect to carry on war after the elections, or what?

MR PONI: Fortunately in front of me here I have a picture of - he was in the camp on that specific day and that was 1993 and here he said and he told our soldiers specifically here that PAC can only consider abandoning the bullet in overthrowing the regime when the ballot is secured. Those are politics now. When do you consider the ballot is secured or when not do you consider the ballot is secured? So then to - maybe myself I would understand the political terms and all, but a soldier, a foot soldier down there, he took this very literally without the necessary political space to accommodate.

CHAIRPERSON: Yes, thank you. Any questions arising Mr Mbandazayo?

MR MBANDAZAYO: None Chairperson.

NO RE-EXAMINATION BY MR MBANDAZAYO

CHAIRPERSON: Mr van der Heever?

MR VAN DER HEEVER: No questions, thank you Mr Chairman.

NO QUESTIONS BY MR VAN DER HEEVER

CHAIRPERSON: Ms Mtanga?

MS MTANGA: No questions Chairperson.

NO QUESTIONS BY MS MTANGA

CHAIRPERSON: Colonel, thank you very much. That concludes your testimony.

WITNESS EXCUSED

CHAIRPERSON: Mr Mbandazayo?

MR MBANDAZAYO: Chairperson that's the evidence of the applicants. Thank you.

CHAIRPERSON: Mr van der Heever.

MR VAN DER HEEVER: I do not intend calling any witnesses, thank you Mr Chair.

CHAIRPERSON: Thank you Mr van der Heever. Ms Mtanga?

MS MTANGA: No witnesses Chairperson.

CHAIRPERSON: Thank you. That then brings the evidence in this matter to a conclusion and all that remains now is to receive submissions from the legal representatives. Mr Mbandazayo.

MR MBANDAZAYO IN ARGUMENT: Thank you Chairperson.

Chairperson, I ...(intervention)

CHAIRPERSON: Sorry. Before you proceed, sorry. We did, as a Committee, receive a letter from Mr and Mrs Pypers who are the parents of the victim who was shot or captured at Ebenezer and shot near Moria. In this letter they basically express the view that they believe that it was robbery etc, but they do conclude by saying that they will leave the decision as to whether amnesty be granted or not in our hands. Mr Mbandazayo.

MR MBANDAZAYO: Thank you Chairperson.

Chairperson, definitely this time I won't take - I know I usually say I'll be short - at least Col Poni has canvassed most of the points I would have to canvass in my argument.

Chairperson the requirements of the Act, I need not go through them.

CHAIRPERSON: Yes, we know the provisions of the Act inside out, I can assure you.

MR MBANDAZAYO: Chairperson, there is no dispute that the applicants were members of the PAC and the first applicant, that he was a member of the Azanian People's Liberation Army, APLA. There is no dispute there, Chairperson. It's common cause.

ADV BOSMAN: Mr Mbandazayo, can that really be said about applicant number two?

MR MBANDAZAYO: Chairperson, what I'm saying is that he was a member of PAC and that, Chairperson, because he was a member of PAC, definitely Chairperson he falls under that ...(indistinct) before he can be a member of APLA, he has to be a member of PAC, so definitely he would not have been involved in the activities of APLA without being a member of PAC.

Now, Chairperson, as you have heard from Col Poni, that because he was used as part of APLA operatives of that unit, so definitely in that technically he was a member of APLA though he was not trained because he was used as a driver in that, so he participated in the structures of APLA but he was not a fully trained member of APLA, but of course as a member of PAC, he was involved.

Now, Chairperson, since there's no dispute about that, Chairperson another requirement that - one of the requirements that he belonged to a bona fide..., and there's no doubt about that.

CHAIRPERSON: You don't have to be a member, you can be a supporter.

MR MBANDAZAYO: Yes, Chairperson.

The second point, Chairperson, is the full disclosure, whether they have disclosed their involvement. Chairperson, from what I've gathered even under cross-examination, there's no dispute as to how they did what - how they did the act they did, that is how they killed the Bouwer family and the Pypers family. It seems as if there's no dispute about that as to how they did it. It seems as if there's an agreement that the way they put it before the Committee as to how they did it, now it seems to me that, Chairperson, that they have made a full disclosure with regard to their participation with regard to this incident.

Now, the other aspect is whether what they did was politically motivated. Chairperson, it's my submission that there is no dispute that Moses Motapo, Chairperson, Morapapa as he is commonly known, was a member of APLA and he was a Senior Commander of APLA.

Chairperson, I don't want to go much about Moses Motapo Chairperson, I know that this name has come in many of the hearings, the operation in which it was ...(indistinct), where he was given orders. Even Chairperson last week, his name cropped up in the hearing in Johannesburg where he was mentioned as Morapapa, they did not know and I informed the Committee that it is Moses Motapo. Chairperson there is no dispute that he was a Senior Commander of APLA and as Col Poni put it, he was tasked to perform certain duties. Chairperson and those duties he was tasked to perform, he had to perform them in the Northern Province. He is saying that he was given a very much bigger mandate Chairperson, as everybody knows in this Committee and that's the reason ...(intervention)

CHAIRPERSON: Sorry, sorry to interrupt you Mr Mbandazayo, but about that, just on that point, the first applicant, Mr Mhlongo said that they were told to operate in East Rand. He said they were very upset and they didn't want to do it and they didn't agree and then they basically like took it upon themselves to go to Northern Province to get out of the people in the East Rand, that's what he said.

MR MBANDAZAYO: Chairperson I think that came out when there was this question that they were not happy, but initially he said that he was at home when Morapapa came. It may well be, Chairperson that he did not want to operate at the East Rand when Morapapa came, because that was his testimony that he was at home when Morapapa, Moses Motapo came, but I think he was trying to, when he was asked by a Member of the Committee, Adv Bosman, that can you tell us about this disgruntlement and then is the time when he said look, they were supposed to operate in the East Rand and there was this problem. So I think when Morapapa came, Chairperson, not all of us, Chairperson will articulate the proceeding in the same way, put it in same way, in a proper perspective, but when Morapapa came he was disgruntled with what was happening in the East Rand and the problem that I was referring to was happening in the East Rand where there was this problem, so definitely he was not doing anything, he was sitting. When the Senior Commander came to him to come to the Northern Transvaal, then he gladly accepted to come in the Northern Transvaal because there was this problem in the East Rand where he could not operate.

ADV BOSMAN: In his statement to the Magistrate, he proceeded to say and he was disillusioned or disgruntled and that is why he turned to robbery.

MR MBANDAZAYO: True Chairperson. Chairperson we know what was happening Chairperson and we have said many a times that, you know most of the time the statements which are made to the police and to the Court are not necessarily correct too because everybody wants to get out from trial, that's what is uppermost when you are arrested, you want anything that will free you. Definitely Chairperson, everybody knows what was happening there.

CHAIRPERSON: But you're not going to get freed really if you say to the Courts: "Well I was frustrated, so I turned to robber", I mean that's digging your hole deeper rather than trying to ...

MR MBANDAZAYO: Chairperson I'm just coming to that point. Chairperson definitely there was no running away that they were members of APLA. They could not run away because the police have all the data about the members of APLA, so that one they could not run away, but they can run away from the fact that what they did, they did it on behalf of APLA or PAC, that they can hide, Chairperson. As Col Poni put it, in order - it depends on the circumstances whether, if you divulge us, you won't sacrifice some of the operatives, so it depends on the circumstances.

CHAIRPERSON: I can understand and we've dealt with many of these matters. During the apartheid regime it was very politic to cover up the fact that you, that the offence that you were charged with was done with a political motive, that you were acting for APLA or for MK because that, at that time, would have been an aggravating factor, it would have made things much worse for the accused person in those Courts, but at the time of this trial, political activity, there was no reason tactical reason in a trial to hide the fact that you were acting politically. In fact at this stage it would probably have been to your benefit to say: "Well look, I did this in the fight for the struggle and on behalf of APLA and it wasn't my own." It would have been changed - because of the change in dispensation from an aggravating factor, to a mitigating factor.

MR MBANDAZAYO: Chairperson, I may not agree with you, Chairperson, it depends on the individuals, even to persons who are presiding, some of them, to others it was a ...(indistinct) factor because there was the political dispensation at that time, so it depends Chairperson on who was presiding, so one may not say if you divulge it then you'll say: "Look, what you have been fighting for, it was just on the door, you were going to have election", so it's an aggravating factor to others, it depends on who is presiding Chairperson. I wouldn't agree with you that it was a mitigating factor, Chairperson, but I want to dwell more, Chairperson that, you know we had - I don't want to, because there are still going to be hearings on other matters, we know what had happened, most of the people have made confessions on something they have never done and it has come up to this TRC where people come up and say: "Look, it was me who did that", they never did it and they were convicted on the confessions. I'm not saying everybody, Chairperson, no I'm not generalising, but that should be taken into account.

CHAIRPERSON: ...(indistinct - mike not on)

MR MBANDAZAYO: Yes Chairperson because some - you know those people who were arrested are not sophisticated people, they would buy any story that: "If you say this look you'll be free and you'll not be sentences heavily".

ADV BOSMAN: Mr Mbandazayo, I accept that and I know from my experience on the Panel that that indeed happened, but it's just within this particular context that I put the question to you.

MR MBANDAZAYO: Yes, no, no, I do understand but I wanted to elaborate more that it cannot be put on the applicant to say: "Look if you have said this" because definitely my understanding, even myself Chairperson, if I can put myself in the shoes of the Judge, anybody who's doing anything political at that time when the elections were at the door, it would have been an aggravating factor because the party which he belonged to was participating and they were coming for election, so definitely one would hide that because definitely it would put him into problems.

So it's my submission that, Chairperson, definitely the point that they were hiding definitely may have helped them in getting very harsher sentence then, but it is subject - it's a debatable issue Chairperson, but it's my submission that, Chairperson, definitely one understands why - I do understand why they ran away from that fact that what they did at that time, they were doing it for political purposes.

Now coming to the other aspect, Chairperson, which has been fully canvassed and what I'm trying to say is that the statement which has been made by the applicant to the police, definitely Chairperson, one would ...(intervention)

CHAIRPERSON: You're talking about both?

MR MBANDAZAYO: Both applicants, Chairperson, I'm talking about both applicants. Definitely Chairperson, when he's arrested, Chairperson, he will say anything which will save his skin, which he thinks and at the end of the day, if one, we are representing these people, you find sometimes that look this was stupid, if he had done this, he would not have been in this mess in which he is, but at the time he did this, he believed that this will help him because he had no other option but to pursue that particular line. So it's my submission that, Chairperson, the statements which were made with the intention of going to Court, definitely I know that though it's taken into regard in some other aspect, but it's not the thing that the Commission will decide on the amnesty because most of the people lie in Court, they lie deliberately in Court because the first thing that comes to mind is the way of getting out of this whole thing. "If I put it this way I may get out with the whole thing." So definitely Chairperson, if one admits that: "What I did, I did this and I did with the purpose of political objective", you are sunk, there's no doubt about that.

Now, therefore Chairperson, it's my submission that the applicants have met all the requirements of the Act and that they belonged to a bona fide political organisation and what they did, they did in pursuance of the struggle of the PAC at the time. Chairperson I want to emphasise that because I know in most of the hearings that some of the applicants, even if you can take that to - it counts in their favour to say because it was - some of the applicants were saying: "Look we never heard about it, we are in the rural areas, it took some time before it came in", but they were honest to the Committee and said: "Look we never - we heard about that", but definitely there was a disagreement which Col Poni has indicated and of course he put it bluntly, the first applicant, that: "I did not accept, me personally" but it was not depending on him, it was depending on the Commander as correctly put by Col Poni, they have to wait until they are told that: "Look, you suspend now, we have decided to suspend the arms struggle", from their Commanders and if they have done that after that Chairperson, definitely I would agree, I wouldn't be arguing now to you. I would say: "Look, they did that in defiance, so what they did, they did for their own benefit, it had nothing to do with the struggle at the time", but as Col Poni correctly put it and of course he put it in a very diplomatic manner, but I must say that Letlapa Mphahlele was a Director of Operations and everybody was looking at him and as he said that they have to do damage control, the first thing they have to get hold of the Director of Operations who was in the Transkei in the rural areas. I must say ...(intervention)

CHAIRPERSON: You don't have to tell me about the telephone system in Transkei, Mr Mbandazayo, I come from there. You know it. Also myself Chairperson, I'm from that area so Chairperson you know it and everybody, as he indicated that not everybody was happy and it's clear that he would run away also himself and Chairperson, if I may put you into perspective, you know Chairperson that the Commander of APLA, Sabelo Pama was here on the New Year's Eve of January 1984, 1994 and what was his message? The struggle continues. That was his message and that the forces should hit hard and it was broadcast on television and he left the country and everybody - definitely, it's clear that by the time he left the country he knew that the arms struggle is going to be suspended but he could not face these forces because he knew what is going to happen.

It was on 1st January, this New Year's message of January 1994. He broadcast it, he was in Transkei at that time, but it was broadcast after he had left the country and it was clear he could not force, it was clear when he left that message, he had already made up the decision with the leadership but without his forces, because he knew what was going to happen, he had to go outside before and as Col Poni put it, by the time it was announced he was in Namibia and they were in Harare, they did not know what would happen, what he's going to do, they have to do damage control. He was nowhere to be found himself. So Chairperson now they have to contact Letlapa Mphahlele in Transkei. They couldn't find him and it took some time before they got hold of him and by the ...

CHAIRPERSON: But didn't Mr Mhlongo say that Moses communicated with Mphahlele?

MR MBANDAZAYO: Yes of course Moses was communicating with him because they were in agreement that the struggle must continue. Now the High Command outside has to contact him to say: "Look, a decision has been taken, the arms struggle has to be suspended, he has to stop everything now" but they could - of course Moses has to contact him but at that time Letlapa had not been ordered by Sabelo Pama to stop everything and by the time everything was ordered, where was Letlapa? He was in Lesotho. He has run away because everybody was after him. He was hiding in Lesotho because also himself, he could not face the forces because everybody did not understand. Chairperson I know that's not the platform for that because it has a lot to involve in it and of course at the end of the day who is suffering? The ordinary foot soldiers.

CHAIRPERSON: And the victims.

MR MBANDAZAYO: Yes, Chairperson and the victims. The victims and the ordinary foot soldiers because of the politicians and the politicians now are nowhere to be - they are alone in jail and the victims are here, they are nowhere who are responsible for the whole thing. Must they, Chairperson, be punished because of the decisions of the politicians? Must they suffer because of the decision of the politicians because they take hasty decisions, they could not face them to tell them and explain to them that look, this is the decision and they decided that they'll hear it over the radio or on the papers and they knew that APLA has to follow certain procedures before it has come to ... Chairperson I know that I've been involved in many hearings with the Chairperson and one of the incidents happened in March, if Chairperson would remember, it was a repossession here, it was an APLA - and they came from Lesotho. At that time the arms struggle was suspended and Letlapa was there and it was under his command and Tabelo Maseko was there, who's the head of repossession and he testified in that hearing that: "I ordered them because at that time there was nothing as APLA - we have not taken that decision to suspend the arms struggle and those people were granted amnesty, if I still remember ...(indistinct) the other applicant they could not get him because he was at Lesotho, he did not receive the notice so it's still going to be heard.

So Chairperson it's my submission that the applicants should not - the responsibility of the politicians should not be put on their shoulders and therefore Chairperson they should be granted amnesty as they applied for as they have met all the requirements of the Act.

Chairperson, unless there is any aspect you want me to address you on.

CHAIRPERSON: No, no thank you Mr Mbandazayo. Mr van der Heever.

MR VAN DER HEEVER IN ARGUMENT: Mr Chair I know the rules differ before the Commission, but with the greatest respect, I have a problem with the credibility of the two applicants. Applicant number one conceded under cross-examination that it was their intention to rob the bank at Mankweng, Standard Bank, it was their intention to rob the bank at Lebowakgomo, it also was their intention to go back to two shops to rob those shops. Applicant number two under cross-examination and despite his statement said no, it was never their intention to rob the two Standard Banks and the two respective shops. That's number one. Number two, as far as applicant number two is concerned Mr Chair, he now avers that his statement to the police, which was never used in Court, is false. His evidence before the Court was false and even his instructions to his counsel were false. So Mr Chair, firstly and I know the rules therefore I have a problem with the credibility of the two applicants.

CHAIRPERSON: Well the credibility goes to disclosure.

MR VAN DER HEEVER: That's correct, Mr Chair.

CHAIRPERSON: I mean we've got to be satisfied that there's been a full disclosure and we can only be satisfied that that disclosure not only has been full but has been truthful.

MR VAN DER HEEVER: Mr Chair, I will be very brief. The second problem, or my second submission I would like to make Mr Chair, it was asked to the applicant

"Why did you rob, or why did you attack the shop or cafe or restaurant in Roedtan?"

and the answer was:

"To get petrol money"

not to achieve a political gain. To get petrol money. Why did they want petrol money? To go back to Alexandra, not to go and attend the political meeting or anything like that. They conceded under cross examination that the reason why they've robbed the Bouwer family or the restaurant and killed the two Bouwer husband and wife and wounded the young Mr Bouwer was to get petrol money, it wasn't for any political gain. It was solely and they conceded that under cross-examination, to get petrol money. Why did they want petrol money? To go back to Alexandra. Therefore Mr Chair it is my submission that from the statement and from the cross-examination, it's my submission that the applicants were busy with criminal activity and not with, as far as the Bouwer family are concerned, I'm not appearing on behalf of the Pyper family Mr Chair, was there was no political aim or political gain to be obtained by killing the Bouwer family. The reason was to get petrol money to go back to Alexandra. Thank you Mr Chair.

CHAIRPERSON: Thank you Mr van der Heever. Ms Mtanga, do you wish to make any submissions?

MS MTANGA: I have no submissions to make Chairperson. I leave this matter in your hands.

NO ARGUMENT BY MS MTANGA

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

MR MBANDAZAYO: Just briefly, Chairperson.

MR MBANDAZAYO IN REPLY: Chairperson firstly on the question that the applicants, the other applicant indicated that the intention was to rob and the other one said it was not the intention to rob this place, Chairperson it's my submission that both applicants agree that they went to this with the purpose of

reconnoitring the place for purposes of attack, so they are not denying that. It was reconnoitred for purposes of that, so it's not in dispute that the purpose was, at the end of the day, for going there to rob, though they did not do it that time because the others were saying it was for reconnaissance first, which is understandable Chairperson.

Now coming to this point, the other point is that, Chairperson, it must be borne in mind by the Committee that there was a Commander. They were always acting on the instruction of the Commander, Morapapa, who they were depending on. They did not take the decision on their own and coming to this point, the decision was that they need petrol and it's agreeable, the petrol for what? They were busy reconnoitring the places and for whose benefit were they reconnoitring these places when they ran out of petrol? Was the purpose of pursuing the struggle. And then they ran out of petrol and the petrol, they were going to use it, was in furtherance of that and according to them, but at the end of the day, who was commanding? The Commander decided at that time, as the first applicant indicated, he never said anything and he attacked.

Now Chairperson, should they be now at the end of the day - unfortunately he cannot come and answer for what as to when did he decide to change his mind. We don't know whether, Chairperson, at the end of the day he was going to take the money and also kill the people, but what they were told was that they wanted - they have to have the money for petrol because they cannot continue with their activities without the money for petrol. So definitely Chairperson, if one reads that in all in perspective as to what the activity was, but if you take incident by incident as to what was happening, definitely Chairperson we will punch all the holes, definitely, you won't get the gist of the whole thing as to what was the purpose and we'll remain with many questions, but unfortunately the person who's supposed to answer the question, is the person who was tasked with the duties to establish APLA.

CHAIRPERSON: Yes, he didn't seem to have been very efficient. I mean they get a vehicle, they rob it, they sell it for R7 000, they run out of petrol money five days later. That doesn't sound like good planning, it doesn't sound like a thing a reasonable person would do.

MR MBANDAZAYO: I agree with you Chairperson. Who knows that when they were going to Alexandra he wanted to go and collect the money for which they sold the vehicle. Nobody knows about that because he cannot answer, he's the person, but Chairperson if one, in all the operations he has been involved in, unfortunately the one which he did not look like he did not plan properly is the one at the end of the day he died in because in all the operations he was involved in, he was regarded as an efficient person ...(indistinct - speaking simultaneously)

CHAIRPERSON: Yes, because normally with these sort of operations you'd have reconnaissance work done, check it out. I mean what happened in Roedtan, they send in the second applicant, a chap who's had no training at all. It just seemed sloppy and unprofessional.

MR MBANDAZAYO: Yes, I agree with you Chairperson, 100% on that aspect and that's why he met his fate exactly in the operation in which he has been doing, in all the operations in which he was involved in, all the others where he has been mentioned, he was involved in, was everybody - they were done efficiently and everything. He was doing reconnaissance and everything, but on this one where he met his fate and it's where he was ...(indistinct) in all his preparations for this, he died.

So Chairperson it's my submission that at the end of the day, the applicants themselves they bona fide believed that what they were doing was in pursuance of the struggle. It may well be that the Commander has his own ideas but they won't know that, but themselves, they bona fide believed this is a Senior Commander of APLA and what we are doing, we are doing in pursuance of the struggle and I think that's the test, Chairperson, what they believed in when they did that.

Thank you Chairperson.

CHAIRPERSON: Thank you Mr Mbandazayo. That then brings us to the conclusion of this hearing. We'll reserve our judgment. We are obliged to hand down written judgments and in any event we would require to deliberate with each other on the submissions made and on the evidence presented and we'll endeavour to hand down the decision as soon as possible. I would like to thank the legal representatives, Mr Mbandazayo and Mr van der Heever and Ms Mtanga for their assistance in this matter. And this, Ms Mtanga, brings us to the end of our roll.

MS MTANGA: Yes, that is so Chairperson.

CHAIRPERSON: Thank you. I would, before we adjourn then, just like to thank all the people concerned who made our hearings here in Messina possible. I'd also like to say that for some of us it was the first time in Messina and we found it to be a very pleasant place. I'd like to thank the owners of this magnificent hall for allowing us to use it as a venue. It's a very nice venue. I'd like to thank the interpreters for their long and hard task of keeping up with everything that is said. Thank you very much. With the media people, with the caterers who have spoiled us and with the witness protection people and the security people and the Correctional Services people who had to travel a long way to get here, although there was some mix up about that, but thank you everybody for making our hearings possible. If I've omitted a name, it's without intention, but I won't intentionally omit to mention the names of Mr Japhta our Logistics Officer and Mrs Pollock our Secretary, for assisting us as well. Thank you and also Mr Bouwer, we appreciate the fact that you have come here today and you obviously have our deepest sympathies about this tragic incident, the loss of your parents and also your own personal loss and I'm sure it must have taken a lot of courage to come here and that is appreciated. Thank you.

Thank you very much. We will then adjourn now.

HEARING ADJOURNS

 
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