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Type AMNESTY HEARINGS
Starting Date 05 August 1999
CHAIRPERSON: Good morning everybody. When we adjourned yesterday, Mr Hattingh had just concluded his cross-examination of Mr Nkala. I see Mr Nkala's legal representative isn't here, perhaps we will just wait a minute or two. TONJELWA DANIEL NKALA: (s.u.o.)
CROSS-EXAMINATION BY MR VISSER: But a few with your permission, Mr Chairman. Mr Nkala, if I understand the position correctly, you people at Vlakplaas would be called out to areas all over the country where there were problems, is that basically correct?
CHAIRPERSON: No, I think it was put to him that it was ungovernable and the witness said well, you know, he didn't know whether it was ungovernable or not, but there wasn't a police station there, I think.
MR NKALA: Very well. There were problems that I discovered or I learnt about when I got to the East Rand related to the violence that was rife at the time, even the policemen themselves were no longer safe to get into the location or into the black residential areas to investigate criminal matters. Some of the East Rand police used to tell us that and I never got to know their identity as such, but I will ask them about the situation that prevailed there, and they will respond to that.
MR NKALA: At the time when I met with the leaders of COSAS, I did discover that there was a problem there because even the policemen were no longer seen around in the location or in the black, in that area. Even the State properties were no longer seen around.
MR NKALA: To my understanding, if there is something that the elderly folks would like to do and would instruct that to the youth and they will get to do something, not that on their own initiative they would do something, the youth that is.
MR VISSER: All right, well, be that as it may, what I really want to know from you please is was the violence and the unrest, did it remain the same for the whole period that you were in Springs, can you remember?
MR VISSER: No, the question is really this, did you find that the violence remained the same, at the same level and the unrest, or did you find that at a certain point, there was no more violence or unrest while you were in Springs? Did the violence stop at some stage?
MR NKALA: The people that they were fighting with, were no longer there, the police had already left the area so that the people who were there, will not fight with themselves, in other words the people they were fighting with, had already left the area, so there would not be violence logically.
MR VISSER: You see, because would I then be correct to say that it wasn't as if he would have had to recruit people, it was more like he was going to tell you who the other people were of whom he was the leader, not so?
MR NKALA: Let me expansiate or elaborate on that fact. He had been in Potchefstroom in hiding for quite some time. You may find that at the time, he was no longer in contact with the people he had left behind, not knowing who to get in touch with, he still had now to re-establish the people.
MR VISSER: Yes. While you are referring to Potchefstroom and if you don't know, please say so, would it be correct that Congress had gone to the Vaal Triangle to mobilise people there for COSAS? If you don't know, please say so?
MR VISSER: We will ask Mr Mazibuko about that. The car that you drove around with, there is reference made in the evidence before us, of a black Jetta, Volkswagen Jetta, with tinted windows, would that have been the car that you drove around with?
MR NKALA: When we were going to the area in the black residential area, that is the location, it was myself and Joe and the people with whom we worked, I don't quite remember any of them getting into this car, or in our car rather. I don't even know Maaki.
MR NKALA: I heard or I learnt from the newspapers and from the media as well immediately after the grenade incident that there was a girl who had been suspected that she had brought the police into Duduza and has been brutally killed.
MR VISSER: All right, and the last question I want to ask you is, you seem to have handled the handgrenades in the box yourself, did I understand you correctly? You put in the detonation pins into each of those handgrenades before they were handed over, is that correct?
MR VISSER: Well, perhaps I should just ask the question, can you remember in that box of handgrenades, were all those handgrenades the same or were they different types of handgrenades? You told us about green handgrenades I think, were they all the same or were they different types? If you can't remember, then just say so.
MR MAFORA: It was - did he expressly say to you these people have requested weapons and this is how we were going to supply them, I mean this is how we are going to carry out the plot, what was the discussion that went between the two of you? How did you come to that understanding?
MR NKALA: At the time when he said he had an operation that he, that we were supposed to embark upon, I thought that he would be getting into the area or the location and pretend as if he is part of the MK or a fake MK member so that he gets, establishes where the people who had interest, are, and those would have been the people to be used in the operation.
MR MAFORA: But I mean did he say to you that these people came with that initiative, they approached him and said Mr Mamasela, if you are going to help us, please supply us with weapons, is that what he said to you?
MR NKALA: The reason why I say this, it is because yesterday there was a mention of a word, of a statement that when we handed out the handgrenades to them, one of them said how would it be if other grenades are kept for future usage so that they are able to defend or protect themselves in other words, how if they don't use all of the handgrenades and keep some.
MR MAFORA: Thank you. And you had earlier indicated that when you requested the members to target certain targets within their area, they had actually told you that there were no longer any targets, because they had cleaned up the township?
MR MAFORA: And you were told then that you should go back to them and insist that they should proceed and they should just go and get each and every target that they can get in the township, is that correct?
MR NKALA: I won't be certain in as far as that, because the target was the question of the day at the time, because when they would ask me if I had any idea of targets around, I think I would have responded to such, but I don't quite remember if I did any contribution in as far as the issue of targets is concerned.
ADV GCABASHE: And the nature of the discussion was exactly what, what do you recall? For instance were policemen discussed specifically, were black councillors discussed specifically and if so, by whom? Can you recall any of that detail?
MR MAFORA: Now let's just go back to the issue of Col de Kock's involvement in this whole thing. How long had you known Col de Kock prior to this incident, how long had you known him for prior to this incident?
MR MAFORA: And can you, earlier on in your evidence you had indicated that Mamasela had approached two other people who actually let him down, can you just recap on that and just explain to me what you meant by saying that they let him down?
MR NKALA: I would tell you about what he said to me, I don't think I must speak on his behalf though. He said to me Tobogo Mtinca has been withdrawn from this operation because he is the person who was brought up in that area, in other words he was quite known in that area, so he may be easily identified, that he is collaborating or working with the boers, so to speak. The second one, the deceased that is, said to him if he goes together with him to the area or to the location, and interact with the people, he would not be able to because he was not a good speaker, he cannot express himself in a good way and he may be therefore suspected.
MR MAFORA: And when you accompanied Mamasela, when you went to look for Congress in one of your visits, what was your impression, do you think that Mamasela had already you know, infiltrated the COSAS structures and that he knew, he had already you know put together all the information, all the details about the leadership structure of COSAS in the area, or do you think he was still trying to investigate this aspect?
MR MAFORA: You had their names because - let me put it to you this way that Veli will testify that in one of the visits with Congress, you asked that Congress should take you to Veli and John and what would your comment be on that?
MR NKALA: With regards to names, we would receive them and forward them to the Branch, that is how I thought or that is how I thought that was the case, to ensure the people at the Branch to go through the list so that they are sure that these are the people that they were looking for.
CHAIRPERSON: Yes, no but I think what Mr Mapoma is putting to you is that on one of the occasions that you spoke with Congress, you asked to be taken to Veli and John, what do you say about that? You asked Congress, you or Joe asked Congress that he takes you to see Veli and John, that is Mazibuko.
MR NKALA: No, Your Honour, for us to go to Veli's place and for us to even know about Veli, it was when Congress had been requested to recruit others, not that we already knew that there was Veli and John.
MR NKALA: Well, as for me, at the beginning of this whole thing, I took it as a way of wanting to get details about the people who had been trained. That there would be an operation of eliminating the armed propaganda, I had no idea of that.
CROSS-EXAMINATION BY MS LOCKHAT: Thank you, yes Chairperson. Tell me Mr Nkala, if Gen van der Merwe basically said that his intention for this operation was not to solicit or entice these COSAS members, why did you offer them R10 000 on this operation, the COSAS members that is, can you explain that?
MR VISSER: Chairperson, I don't want to interfere with Ms Lockhat, but really the question is not fair. Perhaps one should understand that Brig Cronje seems to have given that evidence, but that wasn't the evidence of van der Merwe. He said he accepted that there would be some training sir, I think it is a confusing way to put the question to the witness.
MS LOCKHAT: The COSAS members said that you also took them to a police station to actually go and train them there, to show them how to use the handgrenades there and then they suggested no, it was too dangerous, they cannot do it there, and then they suggested the mines, can you remember that?
MR NKALA: You see you are putting me in a very tricky spot here, because I will have now to talk or say something on somebody's behalf who is not even able to present himself here, especially that he is late. Is it fair or is it called for, for me to speak on his behalf? It is a bit tricky for me, I am not sure if I must give a response to this.
ADV GCABASHE: Yes, Mr Nkala, we understand that you were with him, but the question really relates to the planning of the operation, because his evidence and yours, conflicts. The planning took place before the 25th, possibly before the 24th, the question is really about the period before the 24th, as I understand it, would he have been part of that planning, is that your evidence?
MR NKALA: Well in as far as that is concerned, you are putting me again in another tricky spot because you see as far as the planning was concerned, only the seniors will participate in that, so I won't be able to know. I won't be able to know that much.
MS LOCKHAT: You also said that you thought because you didn't know that these handgrenades were booby-trapped, etc, you thought that these COSAS members, that de Kock actually wanted to ambush them, can you remember that?
MR NKALA: Well, that is the procedure in a war, that your enemy would be ambushed. As the handing over of handgrenades, I thought they would be taken to the police station so that the police would shoot them at the time when they intended to launch the handgrenades on the police station.
MR CORNELIUS: I think where the confusion arises is that you, every time you use it in four occasions in your statement, you say that you reported to Venter and de Kock, you meant that you reported to the command structure?
ADV GCABASHE: I want to come back to the issue of the targets, I still am not too clear as to the discussion around councillors and black policemen. Were these targets black policemen, black councillors, specifically discussed by the group in your presence?
ADV GCABASHE: Now, who said what? I am really interested in whether the suggestion that black policemen and black councillors be targeted, came from your side and by your I mean Mamasela and yourself, or whether this came from the victims?
ADV GCABASHE: Now when this discussion took place, you had already discussed the fact that there were no other State installations or State buildings left in these areas that they could target, is this right, that they could target?
MR NKALA: Well, it was towards the hall where they were going for a meeting, but others were not able to come and form part of this meeting because they were already in the hall and they would not be able to identify them since the hall was packed.
MR VISSER: Perhaps Chairperson, for what it might be worth, it might be of assistance to know how the days and the dates ran at the time, I've got it in front of me. The 1st of June commenced on a Saturday, the Friday prior to this event, was the 21st and that was the Friday, Saturday 22nd, Sunday 23rd, Monday was the 24th and the 25th/26th was the night of the Tuesday to the Wednesday.
ADV GCABASHE: Mr Nkala, having a better idea as to the dates and the days, I am trying to work backwards from the 25th which we now know was the Tuesday. If you can use that as your point of reference, it would help me as well.
ADV GCABASHE: Let's again work backwards and come to the matter of Mr de Kock and Mr Nzimande arriving at the place where you were staying. If you use that week as your point of reference again, when would Mr de Kock have arrived, before you joined this operation or after you joined this operation, using that week as your point of reference?
ADV GCABASHE: And one of the reasons you say that, if I understood you correctly, was because Nzimande had been asked by Mamasela to assist and he could not assist and that is why you say they must have come before you joined this operation?
MR NKALA: Yes, because Nzimande, the way I have the recollection of this incident, he was in Durban together with de Kock and arrived in de Kock's company and one other by the name of Eric Maluleka. At the time Joe had already used Nzimande.
ADV GCABASHE: Can I just go to one or two general aspects? The two handgrenades that you used in the training before the bigger amount came, before the 20 came, where did you get those from? I missed that?
ADV GCABASHE: And you mentioned this in the context of meetings you were having with these COSAS members and discussions around what they could do with these grenades, am I right, or have I recorded that incorrectly?
ADV GCABASHE: Then one other aspect, you talked about suspecting what the real purpose was behind this operation, and mentioned that you started suspecting that there was something else going on when the trained person whom you mentioned to your superiors, was not followed up, you didn't have to follow up his presence in any way. You know what I have recorded here was you had to get him to a certain street, but you had this discussion with your superiors and they ignored this trained person. Just take me through that again.
MR NKALA: I remember when we discussed with the COSAS members, they said there was one who had been trained. I think they also said at some certain street, that is where he resided, in Gingagina Street, something like that, that is where he would be found, and we reported that to our seniors that there was one person who had been trained, residing there. I remember Joe particularly saying he would fit well in this whole operation, so he shall be called to come along. Then I objected to that and said you may find that if he comes and join, he will not be located, maybe he has gone for further training and I expressed my wishes so we may dismiss this matter so that at first we go and report the matter to the seniors before we proceed.
MR NKALA: Well, let me first find this one out, maybe I did not quite understand your question. You are referring to an operation where there was handgrenades involved, or what operation exactly are you, can you please shed more light?
ADV GCABASHE: I actually just asked generally, was this your first operation, because I know that you arrived and you had to be debriefed and trained, I actually wanted to know if this was your first operation as a member of Vlakplaas, just generally?
ADV GCABASHE: All right, if you cannot recall what else you might have done, I was just interested in knowing whether this was your first operation that involved a gross human rights violation such as this, but if you cannot think of what else you may have been doing between July 1984 and June 1985, it really doesn't matter.
MR MALAN: Mr Nkala, may I just enquire about the night of the incident itself, when you accompanied Congress to the installation where you would have had to set off the limpet mine, you were going with him, you and Mamasela, taking him there?
MR NKALA: The one thing that would have transpired or happened there was going to be in such a way that I would also have been powerless that when it happens and Congress takes out the pin, in the car or even when we were walking together accompanying him down to the power station, I had, I was just powerless, I could see that one is in trouble.
MR NKALA: The one thing that crossed my mind, that I knew very well about safety pins of the limpet mines, is that there is one white safety pin or safe pin, the white safety pin, as soon as you have removed it, before long, it will explode, but sometimes, when you quickly put it down and run to as far as where you are seated right now, you will be able to be safe or save yourself. As to what happened there or how it was adjusted, I had no knowledge, I did not know.
MR NKALA: That I found that out at the time, that they will not be given grenades and throw them around. I think something has been done to them, because the colour I saw on the detonators, the red colour that is on the top, was not the usual colour of the detonators.
MR NKALA: No, they would not have been able to get there, or come to the power station, that particular power station because it was not learnt by the seniors that Congress will show us the power station and say this is where he will set the limpet mine.
CHAIRPERSON: Just one question, Mr Nkala, during your dealings with the members of COSAS, did it come to your knowledge at all that they had a hitlist which contained specific names and addresses of people that they wanted to attack?
CHAIRPERSON: I am asking whether it came to your knowledge, in your dealings with these members of COSAS, whether they themselves had a hitlist of people, a list containing the names and addresses of people that they wished to attack? I don't know if you were present, but we heard evidence earlier in this hearing that it came to the knowledge of the police, the Security Branch in Springs there, that COSAS had a hitlist, a page of names containing a number of names and addresses of people that were to be attacked. Did anything of that sort come to your knowledge in your dealings with these students, these members of COSAS?
FURTHER CROSS-EXAMINATION BY MR HATTINGH: Mr Chairman, I would just like to put to the witness formally, that his evidence relating to the handing over of the grenades that were used in the training, is mistaken. Mr Nkala, I put it to you that you are wrong when you are saying that Mr de Kock handed you the grenades that were used to train these people.
MR MAFORA: We seem to be having a problem with these microphones going off. Thank you Mr Chair. Can you then briefly outline your involvement in COSAS during this period and the involvement of your other colleagues?
MR MAZIBUKO: Okay, thank you. Maybe I would first start with, I would actually want to give a brief history pertaining the area where I come from which is Duduza, just before the formation of COSAS. Maybe also within that particular light, also be in a position to sort of try and establish a link of the reasons why COSAS was formed, leading up to this particular incident.
MR MAZIBUKO: Okay, the history of the area where I come from, which is Duduza, which is part of the far East Rand, it has been a history of people who were actually moved from the area called Chaterston. Those people, much has normally been said that these people were moved off their own free volition to come to this particular area.
MR MAZIBUKO: It was called Chaterston. It was in essence one of the, well, I will sort of put it in brackets, a forced removal in a way where all the inhabitants of the area of Chaterston were moved over to Duduza and when they actually moved over to Duduza, it was on the basis that promises were made that they would lead a better life in that particular area and that some of the basic services which they never enjoyed in this particular area, they were going to enjoy in Duduza. It was some kind of looking up to a land of milk and honey somehow. The people were then moved from Chaterston to Duduza, on their arrival in Duduza, still it took quite a number of years for some of these basic services to be provided which sort of in a way, tried to allude to the fact that when all these events which sort of catalysed to this incident, they sort of catalysed in one particular incident which took place at the beginning of February of that particular year which was a bucket system protest march. Obviously subsequently leading to all other events which finally culminated into this particular case, which obviously I would deal with then in details at a later stage. Then I would also like to take this opportunity to give a brief background about COSAS in particular. COSAS was a student movement, it dealt particularly with student interests at secondary level particularly, because there were also other formations which were looking up to the interest of students at a tertiary level. COSAS was a non-violent organisation, it subscribed to the policy which was sort of properly strengthened and channelled properly by the United Democratic Front in its inception in 1983. In terms of its foundation and dealing with issues at school level, our central focus was more on things like bringing a better education in a free democratic and non-racial country. It was thus in this light that in the conference of COSAS in 1984, as central focus could no longer be put specifically on issues pertaining to education, because if I may put it properly, there were a number of peripheral issues emanating from the community which were making this education a better education to be sort of in a distant future, based on the fact that there were a number of challenges emanating from the community. In our area, Duduza, particularly when we formed COSAS, I was one of the founder members in the area.
MR MAZIBUKO: Yes, at that particular time, I was doing standard 9 at MOM Sibone Secondary School. The reason why we formed this organisation, by then I belonged to a debating society, I was actually the Chairman of the debating society in the school, there were a number of challenges that we were facing, specifically pertaining to the fact that students in the schools were, that is in surrounding schools and particularly our school, there was no direction pertaining to sort of co-ordinating their activities. To an extent that I still remember at one point in time, in that particular year there was a trip undertaken by the school and somewhere some things went wrong out of that particular trip and student forcibly called teachers to the assembly where students felt they have all the powers to discipline the teachers. In a way, this was the kind of attitude that we could not be in a position to deal with. It was thus in this light to bring proper co-ordination, to bring a proper line of communication, to bring a proper way of doing things particularly pertaining to schooling matters, that we sort of formed COSAS in the area. Indeed it is true that when we formed COSAS in 1984, Congress Mtweni played a pivotal role in this instance because by then he was from the University of Zululand and having been exposed to democratic politics by his virtue of involvement within the ranks of AZASO, which is the Azanian Student Organisation, also United Democratic Front linked or aligned, within this process of the formulation of COSAS, maybe if I may also take the opportunity to indicate who were the initial members of COSAS so that at least leading up to the events where in a way which sort of were linking up to mowing down of the leadership in the area. In the founder members we had the deceased, Gungunyani Mashibane who then became the Chairperson of COSAS in that year, and I became his Deputy. We had Osborn Dlamini, he is also deceased, who was also an Executive member. We had Lincoln Lucky Mogodi. Roughly those - we also had John Mlangeni who was also one of the victims here, we also had Humphrey Shabalala, Samuel Lekatsa who were also serving in the Disciplinary Committee of that organisation. Most important of them all, we had the two Thobela sisters who are also now deceased. That is Sonto Thobela and Zanele Thobela. Roughly in a nutshell pertaining to the formation of this organisation, these were the core members of this organisation. In 1985 when issues surrounding this bucket system march, arose in the township, it is true ...
MR MAZIBUKO: Yes. COSAS formed part of that particular march, but not necessarily as COSAS, for one simple reason of the fact that COSAS members they happened to be community members in that particular area. For issues that affect them on a day to day basis in that particular community in a way, they had to live up to those challenges. That was the sole reason why, not necessarily under the banner of COSAS, but as ordinary members of the community, our members participated in this.
MR MAZIBUKO: Out of this bucket system protest march, obviously the way the people were so angry, it is even worse because I particularly did not even attend that meeting, events leading up to that event were to the effect that a child was shot and killed out of this incident by the name of Lucky Mkhwanazi. When people took buckets, that is they took those buckets and took to the streets, going to the administration offices to go and dump these buckets because they were sick and tired of them. A child was killed out of that incident and subsequent to that, indeed it is true because people were angry, they started marching to that policeman's house who shot and killed that child and on arrival there, I was told later on that the house in a way was subsequently burnt down and then this led to a situation where a day after that, even if I did not attend to this meeting, I was subsequently arrested and placed under Section 50 of the Internal Security Act together with quite a number of comrades belonging from the Duduza Civic Association and some within our ranks from the Congress of South African Students. That was basically the situation and a number of our members were to face criminal charges on this, where they appeared in a court and after having appeared in a court, this led to more arrests and this was to lead to one incident which happened, I am not sure whether was it April or May when finally again, as organisations that are struggling for democracy, we were also struck again. Struck in the sense of the fact that we lost Sonto Thobela out of that particular incident when the Thobela house was fire-bombed. Even up to date it is still a belief of the community that maybe light would also be shed pertaining to that because there are still a number of answers which we haven't found, pertaining to that. The community still believes it was a complicit in a way of police involvement, based on the fact that leading up to this incident, there were a number of skirmishes, that is true between the community and the police, where the community felt they were not getting a better service from the police because the police had sort of asserted themselves in an area and as an opposition to the demands of a better life for the community in that area.
MR MAZIBUKO: Even up to date, it is still the perception which we also hope and we also maybe thought in a way, because when we heard the testimony of Brig Delport, I am not sure whether was it Brig Delport, Brig Delport, he was in charge of the area, but he just glossed over this issue as if it was an un-issue, you see, which obviously this was one of the incidents that sort of led to quite a number of events in the area. Out of ...
MR MAFORA: Let us maybe, I think we have given a bit of sufficient background, let us now move to the incidents now that led to the injuries that you sustained and the death of the other people, the explosions that we are here about, thank you.
MR MAZIBUKO: The incident that we are here about, as I have already given a brief background pertaining to the area where I come from and some of the incidents which sort of led to events in the area, indeed, I would actually like to confirm before this Commission that the area subsequent to the fact that there was this fire-bombing of the Thobela home, we could no longer be in a position to control our members, we could be in a position during the day, to restrain them, but you would find that during the night, they would re-converge somewhere and somehow finally the area ended up with no police presence.
CHAIRPERSON: Sorry, just before you proceed onto this incidents, do you have any knowledge as to when COSAS was formed or whether it was the same Committee of COSAS that was involved in kwaThema and Tsakane?
MR MAZIBUKO: Yes, in kwaThema it was also similarly formed in 1984, indeed it is also true that Congress as I have indicated that he was in a way, someone who had a much more better knowledge you see, pertaining to the formation of structures and all that, he sort of initiated it in kwaThema with the assistance of people like Philip Lukele, Mudesane and Vincent Noqwindla. Those were some of the people in terms of our interactions at branch and organisational level, we sort of used to have that contact. May I also take the opportunity to indicate that all three of those that I have actually counted, are deceased, it is only one that has actually survived out of that. Similarly with kwaThema ...
MR MAZIBUKO: Like I have indicated that in a way, in terms of the situation, we could no longer be in a position to control our members, but we were as leadership in a position to restrain them from certain activities. Finally our area was left without police, but I would also like to take this opportunity to indicate before this Commission that in terms of local authorities by then, they had completely collapsed. They collapsed some time around February when there was this bucket system. There were no councillors in the area through out this whole era, and somehow as I am indicating now that later on obviously the are was without police, but it was always the assertion of the community through out because there were rumours pertaining to the fact that the police are not happy with the fact that they were chased out of the township. They are going to come, similarly using the same modus operandi that they used with the Thobelas, to try and wipe out quite a number of families in the area, particularly those families of activists who were involved particularly with COSAS. There was always that expectation, you know, we were always expecting something bad to happen in the area. Obviously this was to be catalysed by the fact that immediately after the funeral of Sonto Thobela, then the way the people were so angry, a day after that, they went to Sonestraal Road where earlier on, they waited and waited there for one particular bus to pass through and it never passed and finally it was the incident of Mrs de Lange which sort of happened there, where because of the anger, she was also subsequently killed there. Then a raid was conducted, a number of activists ran away from the place. We all sort of went underground in a way. I left the township, I went to Katlehong, subsequent to that I moved over to Soweto, but later on when we were informed that something bad was going to happen in our area, I think we came back around the 15th of June and on the 16th of June, everybody was back in the township, we commemorated June 16 and then we received a message that one of the members of the Duduza Youth Congress had passed away, beaten up by vigilantes. That was Alexander Pylani, and on that very same day, I am not sure whether was it that very same day, or whether was it the 18th, when we received a message to the effect that Zanele Thobela which was an additional or Executive member of COSAS had also passed away due to severe burns that she sustained when her sister was killed in that fire-bombing incident. Out of this, a night vigil was planned for the 21st of June and then on that very same week, I am not sure whether was it on Monday or Tuesday of that week of the 21st, a special team was deployed in the area, a police team. These people, they ended up earning a nickname in the area of being called Balaclava Men. These people on two occasions, when we were in the area, I still remember I was actually with John because we were busy facilitating processes which could sort of, trying to get donations and all that, to sort of have a decent funeral and somewhere in the process of trying to do that, there was a certain time when they tried to close us into the circle where they would be in a position, I am not sure whether were they going to arrest or do what, but we managed to get out of that particular circle. Finally, on the 21st, there was this night vigil, a joint vigil of the Thobela families and the Pylani families. I went a bit late into that night vigil, it started around eight o'clock, but I went there at about half past nine. I was actually wearing a woman's jacket, my mother's jacket particularly and her hat as well. I went into the night vigil. As I entered the door, I met Congress. Congress called me outside, we had a chat and he indicated that he was looking for me, he was with two guys, Mike and James. These comrades had approached him to say they would want to get in touch with me and John.
MR MAZIBUKO: Yes. I started wondering a little bit where maybe they could have picked up my name, but on that particular day which was the 21st, that is Thursday, Thursday before that particular Friday, we had received information as members of COSAS and leaders of Duduza Civic Association to the effect that there was a hitlist circulating in Nonqai's place, which was the Security Officers' Headquarters around the district to the effect that those people were going to be eliminated. This list, may I also put it on record, that we released it to City Press newspaper, it was published on the 21st of that particular day of June, where our names, all the names of people who were going to be eliminated, were put. The reason why we approached City Press ...(intervention)
MR MAZIBUKO: My name was on top of the list, John Mlangeni's name was part of that list, Gungunyani Mashibane's name was part of the list, there was also my Deputy by then, Akim Mbatha, was part of the list, there was the Chairman of Civic Association, Alexander Bibi Mtweni, it was part of the list, those are some of the names that I can be in a position to recall at the moment.
MR MAZIBUKO: So the reason why we approached City Press with this information, we were a community waiting in anticipation, anticipation for a reaction, obviously a reaction which would determine our fate whether we were going to be killed, arrested or whatever event which was going to take place. We had no defence in the area, we had no recourse to anything, we were just a community in waiting. It was thus in this light that we approached City Press with a view that City Press would be in a position to put it publicly that it is known that obviously we are supposed to be mowed down. It was thus in this light that we approached City Press. Obviously as I have indicated then, that thereafter I went to the night vigil, from the vigil I met Congress who indicated that he was with Mike and James who expressed a wish of being put through to me and John. Then he further indicated that their sole purpose of being in the area was that we need to assemble Units, Units which would be in a position to act as the defence of the community, in terms of the threats that we currently were encountering in the area. I will also take this opportunity to indicate the fact that particularly in Duduza, I have actually heard other testimony to the effect that the area the recruitment drive was supposed to be five people per area, in Duduza they strictly wanted 15, not five. That was the request from their side. With John, we went out on Saturday during the process of the funeral and we organised and mobilised quite a number of members to actually form part of this process, but there is just one small incident which I just forgot. Immediately after the discussion with Congress Mtweni, I went into the hall, after having entered the hall, I am not sure was there any indication fed outside, because later on, just hardly two minutes after entering the hall, rubber bullets, teargas was fired into the hall. I am also told that live ammunition was also fired at the door at the hall. A number of people came out, streaming, rushing in all directions. Around the area, there were quite a number of casspirs in the dark, waiting and somehow out of that, one managed to go through, because as I have indicated that I was dressed in my mother's jacket and hat, that is how I managed to get through out of there. On Saturday then we mobilised the people to form part of this process of the recruitment drive, but Congress had also indicated on Friday that because they could not find me on that particular Friday, then we had to have an appointment for Sunday at five o'clock at my place. Around four o'clock I met John, we waited somewhere because I was no longer staying at my place. Around five o'clock, we went to my place and there was a car waiting outside. I cannot recall, but I think it was a green 323 Mazda. We went into the car, we saw Congress, we just went into the car because we knew it was a pre-arranged appointment, then we drove around the township and then discussions ensued in the car in the process of driving around.
MR MAZIBUKO: The people in the car were Mike and James, that is how I knew them, and obviously I realise now that the other person is obviously the applicant, Nkala. Those were the people, we knew them by Mike and James. Firstly it is normal tendency within the ranks of comrades, you know, to sort of try and have smaller discussions around political happenings and all that here and there you see, indeed it is true, we had quite a number of discussions where I am not sure whether was it Nkala or Mamasela who indicated to incidents in Maputo and Lesotho, we glossed around a number of issues. Obviously this brought a situation where indeed, we developed confidence that no, these were people coming in to help. I would also take this opportunity to indicate that there was never any list availed on that particular day which was Sunday, there was never any list availed on Friday, which was the 21st. The only time when a list was availed, it was on Monday, on the 24th, when we went into the kombi together with a contingent of the people that we had recruited to go for training, that was when we started attaching our names on that list so as to the (indistinct) of the fact that a list was taken over, to be communicated that these are the names, I don't know how could that have possibly happened, because a list was only availed on Monday. It was never availed in advance. On Monday we were picked up at a hall called Duduza Church Hall, we were picked up from that particular spot, we were a group of ten, we moved into the kombi. In the kombi we found people from Tsakane and people from kwaThema, that is when the list was presented to us, we attached our names. We left all the way to Tsakane. We entered Tsakane through a road, that road is called Black Road, I don't know for what reason, maybe it is because it does not have lights. We went through that particular road, the Black Road, and from the Black Road, we just parked somewhere at the back of a building. Well, because I stay in Duduza, I did not know what this building was, but the people from Tsakane said "no, no, wait, wait, are we going to receive training at the back of this building" and obviously Mike and James responded and said "yes". The people said "but this is a police station, how do we receive training at the back of the police station". It was realised that they did not master their environment by then. The people suggested that because they know the environment, they will take us to a better spot. The people from Tsakane took us to a mining dump at the back of the area, closer to Duduza. When we arrived there, we were almost 18 I think. Of the 18, we were divided into various groups, one group for Tsakane, the other group for kwaThema, in Duduza we divided, we managed to get only 10 people instead of 15 that they requested, so we divided into groups of 5/5 and then we were briefed to the fact that we are going to be shown the demonstration of a handgrenade and how does it work. That after the demonstration of the grenade, a consignment of grenades was to be brought to us on Tuesday, which those grenades we are to ensure that we identify targets. Our own targets which would demonstrate the usage of those particular grenades. What actually happened there, we were shown how a grenade works and all that and we were given strict instructions that those grenades, they should not go off earlier than 12 o'clock, they should all go off at 12 o'clock midnight. We sort of you know, we visualised thinking maybe one of ...
MR MAZIBUKO: You know, the funny part here is we did not request to see James and Mike, James and Mike requested from Comrade to see us. You see, through that request of seeing us, they suggested to us on that particular day, that as per arrangement an indication to Congress on Friday when they could not get hold of us from the night vigil, that we formulate structures of defence in the area, and we understood these were structures of defence because we had a threat lingering around, you know, which was keeping us occupied in the area, which obviously we had released a hitlist to the effect of that particular threat on that particular Friday, with City Press. That was basically the understanding that we had.
MR MAZIBUKO: We were not expecting any weapons in the area, that was, because if we were expecting weapons, we wouldn't have taken all the pains to go to City Press to announce "help please, we are in dire straits in this area", because we were in dire straits by virtue of the fact that we were defenceless people in an area, we found ourselves waiting, waiting for something bad to happen which we never knew, we were seeking for help, somewhere. We were looking for a soul saviour somewhere.
MR MAZIBUKO: I am actually surprised by the fact that, you know, through out the testimony which has actually been led here, it is to the effect that some of us were trained personnel, some of us indeed, I would actually attest to the fact that by then, we were heavily and highly politicised, we understood issues. It was on that basis that we could sort of enjoy the respect of the people within our ranks, that was the sole reason why we were in a position, in events when we felt that people were not sort of in line with the policy, we would be in a position to call them to tow the line, but pertaining to issues of the fact that we had sort of links with the ANC outside, that some of us were trained personnel, we had never received any training, we were just still following and pursuing the same objective of the United Democratic Front which was a non-violent struggle within the country to realise the objective of the democracy.
MR MAFORA: What was your response when James and Mike indicated to you that they have these weapons, the handgrenades, that you should identify targets that you could use the handgrenades to attack those targets with and what was your response to their proposal?
MR MAZIBUKO: I still remember, I was the one who indicated that in Duduza we have no targets. Where do we hit? There is virtually nothing existing in the area that could be ascribed or given a description of a target in that particular area. That is when we sort of also indicated that if these things have to be used, why don't they bring them in and at a later stage when we feel we have a need to use them, because we understood this to be sort of a defensive exercise rather than an offensive exercise, you see. We thought if these could be brought to us and we use them at a later stage, it would be more appreciable. It was in that light that I suggested that these things, fine, bring them, but we will use them when we feel that there is a need, when we are being attacked in the area. It was never out intention to use them on the 25th, on the night of the 25th/26th.
MR MAZIBUKO: The way we were convinced in this, you know, it was actually based on the fact that the night of the 25th/26th in a way has got a resemblance somehow to a struggle in the country which was obviously the days, particularly the 26th, the day in which a Freedom Charter was actually compiled in Cape Town in 1955. We were convinced that if we used these on the 25th, it would be more directly linked to the commemoration of that particular day, which was the Freedom Charter day. Like to be honest, the way we sort of thought of this process, it was not even more offensive per se, it was some kind of a symbolic attack you see, where we would indicate to a community or whoever that is threatening our lives and the lives of the community that "watch, we are also ready now", that would have been the symbolic gesture basically in terms of the way we sort of visualised events unfolding in front of us on that particular day.
MR MAZIBUKO: The 24th, yes, pardon me on that. On that particular day, we were divided into those Units and as I have indicated that we were given strict instructions and I had already indicated that we had no targets, but there was still this insistence that because we had to commemorate this you know, day, we had to do something, we had to use them, and we had to use them all at the same time. You know out training entailed the fact that each individual was not supposed to open his grenade independently of the order of the Commander of that particular Unit, the Commander had to count, one, you press the lever, two, you pull out a pin, the lever normally works the task of a pin in an event the pin is out and you have pressed the lever, you pull out the pin, when you throw, that is on three, you throw. This was how it was put to us, and on the night of the 25th/26th, that is exactly what we did. Then immediately, immediately after having this demonstration, and the insistence of the fact that we had to hit targets on that particular day, to be honest from our part, we still did not have a clue what we were going to do with these. We left the scene with people from kwaThema, they were given money to board taxi's, Tsakane people obviously were in Tsakane, they left by foot, the people from Duduza, they were a bit remote from our area, we climbed into the kombi, we were taken, we were just delivered next to my home. Then we were to discuss what do we hit with these grenades. The decision that we took on that particular day, we took a decision to hit two burnt out shells of houses, they were already burnt, some time long ago, which obviously that attack was also going to be a symbolic attack of the Namane's. I also take note of what the other council indicated earlier on, that is Mr Lockhat, to the effect that the Namane brothers would like to exonerate themselves from the rumours which existed in the community, but I think this has got to be understood within the ambit of the fact that that was the belief of the community at that particular time, to the effect that they had formed vigilantes which were sort of waging a struggle against the community. It was in this light that we sort of used this as a defensive attack which would be symbolic in those particular homes. Then after that, we agreed with the people that because we were supposed to meet Mike and James at eight o'clock at the hall where they picked us up, which was the Duduza Church Hall, so we just behaved normal because most of us, I think it was me, John Mlangeni, Lucky Mogodi, I am not sure who else, we as I have indicated that by then it was unsafe for us to stay at our places, because we were waiting in anticipation of an attack, so we preferred rather this attack to find us in motion, to avoid more damages on our families, because if we were the targets, we did not want a situation where our families could also in that event, become targets. That is why we sort of chose a life where we slept from one house to another you see, to sort of make ourselves to become mobile targets rather than stationary where it could be known that we are to be found there. We went to one house where we were staying, which was our hide-out by then, we stayed there. They were a bit puzzled, we were so happy on that night. I still remember we had a little bit of money, we even bought them some things you know, to show the appreciation of the fact that they were looking after us and all that. On the night of the 25th, around eight o'clock we waited by the Church Hall. I was driving a bakkie on that day, I managed to borrow a bakkie, so I waited in the bakkie. Some other people were just in front of the hall and then somewhere out of the blue, there were shining lights around the hall, people wearing balaclavas were sort of closing in and everybody ran away after that. By then we were ten, which was the sole reason why at a later stage when we reassembled again, at ten o'clock in our hide-out now, we had one member missing, because now he became so scared to an extent that he felt he could not longer take it. That was (indistinct) Nicholas Chata, he ran away completely. We reassembled at a house, so we just discussed exactly what happened and all that, and then later on, I took the bakkie and try and look out for James and Mike and I found them as they were approaching my home. I stopped them there, I took them to this hide-out which was in Mtsweni Street in Duduza. That is the one that Mr Nkala described and said it had a high wall. When we arrived there, I was liaising between the comrades and Mike and James and Congress was there in the car as well. When I went to the car, I fetched one comrade from the house, came out with him and indeed it is true what Mr Nkala testified onto the fact that he was the one that held the grenade and the fuse and he was sort of screwing the fuse into the grenade. He gave it to me, I gave it to each person, he gave it to me, I gave it to each person, that was the procedure, and finally we ended up with 10 grenades and we were nine. The other tenth one, I said "no, Samuel Lekatsa, he must handle it for me for in case along the way, we get a problem, then we would be in a position to deal with that particular problem." That was the situation and whilst in the car, that is being given this consignment of grenades and handing them over, that is when I was told that Congress will be going for an electrical sub-station. You know, in a way it amazed me, because as part of the plan, that was never part of the original plan in terms of discussions that I normally had with him. But then I just took it that maybe that is what these people wanted in celebration of the Freedom Charter Day. At quarter to twelve, John took his group and went all the way down to Steve Namane's house, I took my group and went down to David Namane's house, we arrived there, we surrounded the house, we were four, it was me, Samuel Lekatsa, Humphrey Shabalala and Osborn Dlamini. We were a little bit distant, apart and then I was at the centre, I counted one, everybody I assumed held their lever, I counted two, every pulled the pin, I counted three, everybody was supposed to throw their grenades, but before that could happen, I saw myself being flung into the air, I fell down, I slept there for quite a few moments, I saw a red light, I could not understand what was happening, it was as if my ribs were broken this side. I started imagining whether something had happened. I looked around, it was dark. I just ran out of the darkness and tried to find my way. Somewhere the only pain that I could feel at that particular time, was the pain which was coming from my ribs because I had big gushes where blood was oozing out, every time I breathed in, the blood was coming in full force. Around, that is along the way, that is when I realised because I did not realise that my fingers were injured. Around the way, that is along the way as I was running, I was just becoming a little bit weak with each time as I was running, I sort of felt you know that there was water on my arm. I wanted to look, when I looked I found that the fingers were gone. All along I thought I had made a mistake, that was the reason why I wanted to take myself out of the scene, I thought the other people were safe, but then when I realised that my fingers were not there, that is when I realised that there was something wrong here. I went to my neighbour, I tried to solicit assistance there to indicate to my parents that I sustained serious injuries, that is when they made arrangements. Earlier on I thought I wouldn't even go to a hospital but the nature of the fact that there was blood oozing out in full force, I realised that I was going to bleed to death somehow. That is when I solicited help to go to hospital. Earlier on I asked to be taken to hospital far away from the East Rand, but the people realised that I was not going to make it. Instead they decided because I just, in the car in a way, I sort of collapsed a little bit, they just took me to Phola Park hospital which is I am told it is (indistinct) hospital. They took me there to Phola Park hospital, entered Phola Park hospital, just as I was at the Casualty, I saw Samuel Lekatsa and Humphrey Shabalala. Humphrey was bleeding heavily, he could not even talk. That is when I realised that something wrong had happened. Then we were asked questions by the doctor, what happened, you know we were still hiding, we said we were travelling on a car, we just saw an explosion, we went sky high, that is what happened. Then before I could finish that story with the doctor, the police were at the door. That is when we were detained under Section 29 of the Internal Security Act. That is just in brief what happened from our side, and then the following day, we started asking questions because we were many, we wanted to know where were the others. That is when we received information that others have been killed in the process, other are at Natalspruit hospital and we only stayed two days at the hospital. I am not sure whether was it because the police had a threat of the fact that we were going to be stolen out of the hospital or what, they took me out of the hospital, they took Humphrey and Samuel to Johannesburg Hospital, they took me to Benoni police station, that is where I was actually effectively locked up.
MR MAZIBUKO: I think from the brief history that I have actually outlined, it becomes clear because as I have indicated that we had received threats to the effect that we were going to be eliminated, we were a community in waiting, waiting definitely either to be eliminated or arrested, there could be quite a number of reasons which obviously one of them was the fact that with the advent of events in the area, a number of them went out of the township, you see. In a way, that created a situation where there was bad blood between the community and the police. I would also like to take this opportunity to indicate that even up to date the situation in the area, you see, much as we are seated here trying to heal the wounds and all that, but in that community, that situation hasn't as yet healed. That is still the norm even up to today.
MR MAZIBUKO: Well, in a way I would sort of concur with that, I would definitely concur with that, and also after intensive discussion because you know, after such events you normally review and check some of the events that had actually happened, the overall view, the perception that I would also want to put on record that this is a perception, the perception that one would draw out of this, is actually the fact that to be honest, looking at an area like Duduza which by then had experienced an element of ungovernability, you see, and also looking at some of the statements that the Ministers used to make, for instance I still remember there was a newspaper statement that Min le Grange made at one stage where he indicated that COSAS are terrorists in school uniforms, but this could not be proved that COSAS are definitely terrorists in school uniforms. This in a way was a ploy designed to be in a position to effectively come up with mechanisms which would either, I would say it is a set-up linked to the fact that COSAS had to be banned, and obviously that objective was achieved at a later stage where COSAS was banned, you see, and which also pushes me to another incident obviously because I saw it when it was being played here earlier on to sort of try and depict the situation of the area, which is an unfortunate incident. I would also stress this, an unfortunate incident of Maaki Skosana, you see. Based on the fact that, you know, that is one thing that commonly happens in each and every community, you wipe out the leadership, somehow you breed a situation for chaos. That is what exactly happened in Duduza. The leadership was wiped out, chaos existed in the area and then somehow, in a way, I am not saying this is how it happened, but it could have been the modus operandi where someone is planted amongst the people, an agent provocateur for that matter, who is attached to police, would come out and say so and so is an informer and what happens at the end of the day, we experience a brutal murder which obviously would be screened on television and all that, and finally it warrants the declaration of State of Emergency. You see, those were some of the things which we sort of after a proper and constant review, we sort of looked at.
MR MAZIBUKO: When I talk about a state of ungovernability, I mean structures of governments in that particular area have collapsed, meaning there is no Police Force to monitor the area, meaning there is no Council to run the administrative affairs of that particular area, that is basically in a nutshell.
MR MAZIBUKO: Duduza became ungovernable by virtue of the fact that police in terms of the methods of trying to sort of deal with the resistance pertaining to bucket system, the method which they used, became a wrong method and somehow some of them in a way, when obviously there was a massive resistance and uprising against them, obviously it is true that some of their houses by the community, I would also want to point this out, you see, by the community, indeed it is true that the youth actively took an active role in this, but by the community, they felt they no longer needed them, because they themselves were lawless and were bringing more lawlessness into the area. That on its own was one part of ungovernability from the side of the police which later on was translated into an ungovernability of a community in an area.
MR MAZIBUKO: In this instance, you know, I would always want not necessarily to single COSAS out of this and maybe behave as if we are clean or maybe we are holier than thou, you see, indeed it is true, I would fully attest to the fact that member of COSAS participated as members of the community, not as COSAS per se. You see, because like in a way, I would sort of say it is a very thin line you know of differentiation between events where a person is a student and events where a person is a member of the community, you see. In this instance, when they looked at broader issues, they were looking as broader issues as members of the community.
MR BOOYENS: You see the reason why I ask you this question - right at the conclusion of your evidence-in-chief when you were referring to the Maaki Skosana incident, you say that is typically the type of thing that happens when you take the leadership element out of a place. At that stage, the leadership element that was taken out, seems to me, you people that were taken out. How do you reconcile those two statements?
MR MAZIBUKO: I reconcile it based on the fact that you know, much as we lead a certain sector of the community or a certain section of the community, we are not necessarily confined or we cannot draw a line and say our mandate only ends in as far as this is concerned. You see, like as leadership of COSAS, within the confines of the organisational ambit of COSAS, we are in a position to restrain and control our members within that particular area, you see, but also looking at the broader community, we could also have been in a position to exert that influence as ordinary members of the community because we would still enjoy the same status as we would have enjoyed if we were within our organisation. That was the sole reason why if I may indicate, that was the sole reason why I served also in a capacity of being an Executive member of the Parents and Student Committee, you see, which sort of would liaise and link up with parents to be in a position to deal with crisis issues pertaining to education.
MR BOOYENS: The whole issue of you people acting non-violently and so on, are you saying that it was because you wanted to defend yourselves that you accepted this instruction with the handgrenades? Is that the only reason?
MR BOOYENS: Now, once we - this picking of the targets, I know you tell us that you people have picked two empty houses and the other members that were involved in the attacks, sorry, I am not from this area, it is kwaThema and ...
MR BOOYENS: But so those two groups targeted policemen's houses? Your group didn't, you targeted empty, just ruins basically, is that right? Those two groups targeted policemen's houses? If we talk about policemen's houses, were the police still living in kwaThema and the other place?
MR BOOYENS: That is slightly, going slightly further not so than just a demonstration of explosive power, like in your instance there was, because that is an offensive attack endangering other people's lives, is that correct?
MR BOOYENS: Now, how do you reconcile the fact that you people were in fact non-violent with the fact that at least two of the three groups, there were actually I think we can call it four groups, because we know Congress was on his own, that one group attacked a symbolic target, but three of the groups attacked what clearly is dangerous to other people lives, how do you reconcile that with your belief in peace and non-violence?
MR MAZIBUKO: Maybe, well we seem to have missed a point you know, it is in questions that deal with set-ups, you know in a set-up situation, you set events in motion ... (tape ends) ... events set in motion which never existed in our minds, this was an avenue opened to us, which never existed before in our minds you see, this on its own was a situation where we were pushed into something, to do it, and that is exactly what we did. It is not something that you would sort of say we sat somewhere in a corner, we closed ourselves there and ended up with discussions where we said we would do one, two and three, you see. Our policy, our policy in terms of COSAS would still and it was, revolving around the fact that we were a non-violent organisation. Being a non-violent organisation, what does that tell you in terms of situations where you are waiting, waiting for a threat which is coming you way, waiting for a threat where you would be mowed down. How would you respond to that as an individual.
MR BOOYENS: Yes, I can quite understand that. The principle of self-defence is well known to all of us, but what I want to know is how do you reconcile the non-violence with the attack on policemen's houses where they just live? That is what I would like you to explain to me. I mean, those policemen, are you seriously suggesting that they were going to be part of that hitsquad or anything of that nature, that it was a pre-emptive strike?
MR MAZIBUKO: Yes, you seem to have got it correctly now. In a way some of them, I wouldn't even say some of them, you see, most of the people because in terms of discussions that we had later on, you see, each target in each area, manifested itself in a different format you see, and that target on its own, to a certain degree, posed a particular threat to a group in that particular area, so whatever that could have happened, would have been in a way, a pre-emptive strike rather than a situation where we look at it as if it was planned elsewhere, but I would also like to indicate again, categorically clear that when this was embarked upon, it was embarked upon within an ambit of a situation where events are set in motion, rather than events already occurring at that particular moment.
MR MAZIBUKO: To that I cannot attest fully, because on that particular day you know, when there was a night vigil on Sunday, a Monday leading up to that, it was a stay-away in the area, everybody in the area was present.
MR BOOYENS: You know Mr Mazibuko, I sometimes wonder if we are not really talking about a slightly different situation by the time this incident happened, that violence escalated from both sides, and the people, anybody who tried to still do things in a peaceful way, wasn't going to have much success? This was really a sort of a war going on, isn't that the true position?
MR MAZIBUKO: To be honest, I wouldn't like to look at it that way, you see, because if it was a war, it was a war declared by the State against defenceless people, who had not as yet declared this war from their part.
MR BOOYENS: No, I am using war more in a philosophical sense of the word. You don't have to need a declaration of the war, but in your perception, the State was busy attacking you people, from the State's perception, you were attacking the State, were we not really in a sort of a, well let's use the word war, not use the word war if you've got objections against that, armed conflict situation from both sides, wasn't that really what was going on?
MR MAZIBUKO: I am not sure, I am not sure like if you sort of talk about an armed conflict - within what context, because you know like if you look at situations of armed conflict, one would sort of expect a situation where both sides are armed. Here we are, there is an undeclared war which is being fought in this area, there is one side which has got armourmements, having all the fire power, having all the devices at their disposal to detain, arrest and do whatever with people and they are not using all these devices.
MR BOOYENS: Well, despite all their devices, you succeeded in kicking them out of Duduza, not so, it was ungovernable, it was, what you described, I think I heard the term somewhere, would you describe Duduza as a liberated area at that stage?
MR MAZIBUKO: Indeed, it is true, Duduza was a liberated area, but the fact that these people were out of the area, I would also want to put this on record, it is because intentionally so, they were not even interested in questions of arrest and all that, they had other sinister motives which they wanted to perpetuate at a later stage, which obviously this incident that happened to us, epitomises to that particular event. It is because there was an intention that at a later stage, we would get you somewhere and we would do one, two and three, that is exactly what happened here.
MR BOOYENS: But the point is, notwithstanding the fact that they were supposed to be so heavily armed and so on, you succeeded in liberating this area? That is a fact, they may be coming back, true enough, but you succeeded in liberating this area, is that correct?
MR BOOYENS: And the liberation of the area was certainly not through peaceful means because the houses were burnt down, there must have been threats, there must have been attacks and so on. I mean they didn't just go because they were told to go, I presume?
MR MAZIBUKO: What I sort of meant was actually the fact that when this whole incident unfolded in the area, you see, when it was a stand-off between the police and the community during the shooting of this child, Lucky Mkhwanazi, that spiralled a situation between that particular police and the community. And then subsequent to that, in the process, many members of COSAS were detained after having experienced detention, some of them had faced criminal charges pertaining to the fact that they had attacked other policemen's houses and obviously at a later stage, some of them, of the police felt it was no longer safe for them to stay in the area, and they left the area.
MR MAZIBUKO: You know in incidents of this nature, you see, because technically I was not there on the scene, I think I need to point that out, you see, but according to information that I received, people were peacefully protesting, going to dump buckets at the administration offices and on their way to the offices of the administration, the police fired randomly at the approaching crowd, that is when this child was killed.
MR VISSER: When you tried to change things for the betterment of your community, and you met with the resistance of the police, didn't you feel that if peaceful resistance doesn't help, we should go over to violent resistance?
MR VISSER: Whose evidence Mr Chairman, you will find from page 210 onwards of Bundle 2(a). He said, he told the Amnesty Committee that, at page 232 that he was a comrade as well as an activist of the Students' Congress in kwaThema, would you agree with that?
MR VISSER: All right, and he also told the Committee that he was involved in peaceful demonstrations and he was, he says they were also members of the SRC, the Release Mandela Campaign, would you dispute that?
MR MAZIBUKO: If you have to understand that within a proper context, you see, freedom fighter means someone in quest for liberation of the people. Not unless you would like to look at it the other way round and say it means armed struggle, then it is a different conceptualisation.
MR MAZIBUKO: It depends within what context each individual would put that. If you are in the frame of mind of saying it is within the armed struggle, you see, it would befit you, but in this instance, freedom fighters are people who are here in quest for liberation, be it violent or non-violent.
MR VISSER: Yes, well, I am going to suggest to you that that is a distinction without a difference because the people who were fighting for the freedom of black people in this country, were necessarily involved in the conflict in some way or other, weren't they? Either by way of protest, mass action or whatever, armed combat by MK, that was all part of the strategy of the ANC, wasn't it?
MR MAZIBUKO: I would agree with the conflict part which obviously indicates that depending on the severity as well as the nature of that particular conflict, you see, which differs from situation to situation.
MR VISSER: Yes, while you are on that point, did you hear the evidence of the applicants here to say how violent those times were and how serious the violence was on the East Rand, did you hear that evidence?
MR MAZIBUKO: Yes, I heard that evidence, but the surprising part of that evidence, they do not talk about the superior powers bestowed upon them, which they could have used to sort of stamp out this violence.
MR MAZIBUKO: Well, I am not necessarily sure whether to sort of put it whether we were fighting the Nationalist Party, but you know anything that embodies the concept of apartheid, you see, we were fighting that.
MR MAZIBUKO: I am actually not sure you know, why is there so much interest in the ANC part, you see, because we need to draw a distinction here you see, ANC was pursuing a different form of a struggle, which in this instance, they were pursuing the armed struggle. We were pursuing a non-violent form of struggle in the country, which obviously in this instance, we were under the umbrella body of the United Democratic Front, so we need to draw that distinction from the word go.
MR VISSER: Well, are you really, do you really want to tell us you don't know? There was a policy of the ANC to mobilise the masses, to create underground structures and free zones, to use MK in their armed combat and to isolate the Republic internationally, didn't you know that?
MR MAZIBUKO: It was actually rumoured around the area that they kept on bragging even to the Thobela family when they were supposed to come in assistance of them, to extinguish the fire, it took hours and hours for them before they could arrive on that scene.
MR VISSER: Thank you Mr Chairman. The point that I am making is that you were prepared to believe rumours that you wanted to believe, isn't that so? You wanted to believe that the police were the villains?
MR MAZIBUKO: You know, like, let me just give a brief background to this, like you look at a situation of a place like Duduza where obviously the community has got a confidence on the police in terms of the oath that they normally take, to uphold the law, to protect and serve. In this instance, here they are, a small child is shot by the police, in this instance, here is a house of a person obviously this person who stood against apartheid, this house is fire-bombed and in a way to a certain degree, police complicity is sort of suspected in this incident.
MR MAZIBUKO: Not necessarily based on that, you see. The fact that, like sometimes I would personally give you something that sort of directly link to me, I was not part of the protest, when it took place but I ended up in jail. How does that happen? In detention for almost 14 days, how do you develop confidence in a police that serve and protect when it necessarily has got, when you are not even involved in certain instances, here you are, you are napped, you are put behind bars, without even having a clear clue of what took place out of that particular event?
MR VISSER: All right, would you agree that if I put it to you that at the time, I am talking about 1984, 1985, that the Civic Organisations were really not the prominent organisation in Duduza? I will restrict myself to Duduza, but that the Civic Association of Duduza was really being pushed by COSAS, as a general statement, would you agree with that?
MR MAZIBUKO: To be honest, I am not sure, I would sort of put it within the same context of the fact that COSAS members within the context of being community members, they would participate in Civic matters of those Civic Organisations.
MR VISSER: That is exactly the reason why I am asking you the question, you see, it is because of that evidence you gave. I am asking you, do you agree or do you disagree with my statement that the Civic Association in Duduza was being pushed by COSAS?
MR VISSER: I am sorry, that is not an answer. Was or was not the Civic Association of Duduza being pushed by COSAS and this resulted in the fact that most of the Civic leaders in Duduza were aligning themselves more and more with COSAS? Do you agree with my statement, or don't you?
MR VISSER: Yes, because that is your evidence at page 282 before the Amnesty Committee. As I understand it, comrade Congress Mtweni, he was involved in kwaThema and Duduza and Tsakane, apparently in the Vaal Triangle, would that be correct?
MR MAZIBUKO: Yes, what I could sort of attest to is the fact that we had some form of a political unit you see, which would be in a position to constantly review and check structures whether in other areas, where they in existence, because in terms of the slogan of COSAS, it alluded to the fact that each one teach one, you see. From each individual branch, would grow stronger and stronger to other branches, which would sort be in a position to go overall encompassing within the whole country.
MR VISSER: Yes, but the question is really about the leadership of Congress Mtweni. He seems to have been quite an important leader. Let's restrict ourselves to COSAS, he appears to have been quite an influential leader in COSAS at the time on the East Rand?
MR VISSER: Right. Now, you see I am trying to find out what motivated you, a peace loving man as you are, to take up a handgrenade in your hand and throw it at a house and what you have told this Committee this morning, seems to me is that there was an incident of a child being killed during February 1985, during that march, the bucket march, and apparently there was a house set on fire which belonged to Mr Thobela, where the two sisters, the one sister was killed and the other one was injured and she later died? Was there any other incident which sparked off?
MR MAZIBUKO: You see like, subsequent, subsequent to this bucket system march, the situation which also later developed out of that, there was some form of an influence from the police where because there was a hostel around, when people were marching all the way to the administration offices, the hostel dwellers were normally the people that would go out to the township, take out these buckets you see, to put them into the truck and take them to the disposal site, so there was some form of an influence which was sort of put upon these people that because the people were marching over to these offices, they were thus in essence signalling a termination of the jobs of these people which later on culminated into another situation, where people from the hostel moved against the community now. They were turned to move against the community, where they started attacking quite a number of community members. This was in essence again from the State, another situation where they wanted to sort of establish a black on black violence from which they would be in a position to sort of absolve themselves and stand aside and look at the situation where people would sort of breed anarchy into the area. That was also another incident, but later on it came under control, that situation.
MR VISSER: Just on that score, let me try and find out from you how this works, because you see the issues which you told this Committee you were addressing were educational issues, community issues, social issues, have I got that right?
MR MAZIBUKO: I am not necessarily putting that, you see. The situation which I am sort of trying to indicate here is a situation where not only do we necessarily see these police sort of monitoring and sort of looking through this march, but they also even take action where they would be in a position to harm members of the community, that is why time and again, I will always keep on referring to police.
"... when we realised that our members (that is two-thirds down the page, Chairperson), when we realised that our members were now being killed (you say by the police) we started getting scared and we wanted to devise some mechanisms to fend off the attacks."
MR MAZIBUKO: The mechanisms which obviously by then we sort of devised, were mechanisms where in a way, partly were on the run, partly to a certain degree, we also needed something which we could be in a position to sort of defend ourselves.
MR MAZIBUKO: Obviously the mechanisms which we were to devise in terms of defending ourselves, were mechanisms where we would form groups, but we had not as yet started forming groups around this, where we would be in a position to say definitely we are defending ourselves.
MR VISSER: I want to suggest to you that perhaps you should be honest about it, and admit to us that obviously you wanted arms with which to defend yourselves? Isn't that the simple truth of the matter? Everybody over the country wanted arms to defend themselves, why would you be different? Do you agree with that?
"... later on (at the same page, 284) you got to know that we were in the hitlist and we were supposed to be eliminated as the targets of the system."
MR MAZIBUKO: No, it was not a hitlist written down. That particular person who informed us, informed us in a sense of the fact that he was a policeman, he was sort of tipping us that we were on a hitlist.
MR VISSER: Let's look at what the City Press published. Mr Chairman, I refer you to page -, unfortunately the page markings disappears, it is marked at the bottom of the pages, but if you start at page 219 of Bundle 2(b) you will see on the right hand, 3(b), I am sorry, 3(b), I am terribly sorry, page 219, you will see for some reason they have been marked at the foot of the page, 219, and if you then perhaps paginate the rest of the pages, the next one will be page 220, the next one will be 221, then 222 and then you will come to 223 Chairperson, and that is the one that I wish to refer you to. Unfortunately ...
MR VISSER: Yes. Now having referred you to it Chairperson, I must inform you that you are not going to be able to read anything from it, and what I am going to do is, I am going to hand up to you a copy which is slightly more legible of that same document and perhaps if yours, yours might be more legible than mind, Mr Mazibuko, if you will look at that page which has the heading "Vigilante Attack" and you look at the second column, can you see, can you read anything from what you've got there? Chairperson, perhaps we should just hand up this, but I just want to find out whether Mr Mazibuko can read it, if he cannot, then I will have to show him this one.
"... our information is that the vigilantes are armed with a list of activists from COSAS, Duduza Youth Congress and the Duduza Civic"
MR VISSER: Thank you Chairperson. And Sai Makhari, well, it doesn't help me asking you because there isn't reference to a list there. All right, the fact of the matter is the Sowetan didn't think that you were supposed to be on the hitlist, or that you were on the hitlist?
MR MAZIBUKO: You know the question of meeting Mike and James does not necessarily mean weapons, you see. Weapons are just a part of meeting Mike and James. The crux and crucial matter of this meeting Mike and James was to obtain training and to be in a position to uphold defence, obviously with weapons included in that.
MR VISSER: Yes, well I was just coming to that and you have now just given the answer. Because they were said to be members of MK, of Umkhonto weSizwe, isn't that really what it was all about? That is why you were keen to meet them, they could provide training, they could provide weapons and that was what you were waiting for, not so?
"... we welcomed these people as comrades in Duduza and we said to them we were prepared that we should be trained in order to fend off the attacks from the vigilantes in order to protect the community"
"... Duduza was among the first, there were no police around. There was no one representing the situation, police or security officers within Duduza."
"... probably that is what actually caused Duduza to be rendered ungovernable because there were no government officers within the area itself."
MR VISSER: You were not involved in chasing the police out of the township? Did you know that in 1985, in May, at the Kabwe Conference, June 1985, my Attorney tells me it is June, but I think this is the one time where he might be mistaken, I believe it is May, the Kabwe Conference.
MR VISSER: Yes, of course it was. Just for the sake of interest and I don't want to interrupt myself and go off the beaten track, but I just want to put it to you that as a fact, that you couldn't listen to Radio Freedom in South Africa, because that station was blocked by the South African Defence Force and obviously, some people thought they got around that, Mr Chairman.
MR VISSER: Now, perhaps Mr Mazibuko with your help, we are going very quickly, thank you for your assistance so far, can we just go through your evidence? I am not quite sure what you mean by "it was sort of a forced removal of the people from Chaterston to Duduza", was it a forced removal or wasn't it?
MR MAZIBUKO: But what happened, promises were made to people that they would lead a better life when they arrived in Duduza, that they would have all the basic services which still when they arrived in Duduza, they were still denied those services. The situation instead became worse off from what it was when they were in Chaterston.
MR VISSER: They were lured? All right. Mr Chairman, if you will bear with me a moment, it seems to me that I have already covered most of the issues which I wanted to raise. Perhaps one matter which has been left unanswered, you were asked, you told us about a meeting and which was to be held at your house, which you had left in the meantime and that you went there the next day and there was a green Mazda 323 there, do you remember that evidence?
MR VISSER: As an activist? Was there any stage, at any time, where you saw her in the car, in a motor car, and I am including kombi's for the purpose of this question, in any motor vehicle with, together with Mike and James and Congress?
MR MAZIBUKO: Based on the fact that, and I think that in my evidence-in-chief, I have also to a certain degree touched on that, when I was wrapping up my evidence, to the effect that our incident subsequent to the incident of Maaki Skosana, it was solely designed to mow down the leadership which would be in a position to give direction to the community that sow seeds in the community of chaos, which obviously that chaos agent provocateurs could be planted amongst the community which would thus lead to false accusations of individuals in the community to say so and so is an informer and ultimately lead to proper grounds which as has happened in this case, where a state of emergency could be declared.
MR VISSER: Yes, Mr Mazibuko, the fact that you were not on the scene when the child was killed and when the house of Thobela was attacked, didn't stop you this morning of giving evidence. I am asking you what did you hear, by whom was she killed?
MR VISSER: Yes, I forgot because you are a peace-loving man, I am sorry, I forgot about that. Now you see, the other thing that I want to ask you about - what is the note that you have just got? You were just handed a note, I am not joking Mr Mazibuko, you are in cross-examination, you are now being handed a note, what does the note say?
MR VISSER: All right, we will accept that. What I want to ask you now is this, you were told by Congress as I understand you correctly, that James and Mike wanted to see you and John, is John your brother?
MR VISSER: Yes, all right, you see nothing turns on it really, I just wanted to ask you that. I just want to come to another issue with you and that is the choosing of targets. I want to put to you for your comment the following statement, the statement is that the comrades, let's refer to them as the comrades, the members of COSAS, were the ones who chose the targets, would you agree with that statement?
MR VISSER: Well, then we have now made doubly sure Chairperson, but I am just about finished Chairperson. Did I understand you correctly to say that the attack where you were involved in, was an attack on an empty house?
MR VISSER: Just one thing, you were given ten handgrenades by Mr Nkala as I understand you, but one of the comrades had already run away and you then asked him for the tenth handgrenade for yourself, did I understand that correctly?
MR MAZIBUKO: After my release on June 26, 1988, in September 1988 I finally joined the MK inside the country. That is when I received proper training and then thereafter I was definitely involved in quite a number of activities for which later on I was arrested, I stayed for another 20 months again in Pretoria Security prison, finally that trial, we received indemnity on that.
MR VISSER: Let me tell you something about the history of the ANC, which you obviously don't know about. I refer to the statement of the ANC to the TRC Chairperson, page 46, it is the statement, the one of August 1996 Chairperson.
MS LOCKHAT: No questions Chairperson, I just want to put a statement across to Mr Mazibuko, regarding the Namane family and I just want to also say that they moved out of the area, they say that there is still a lot of tension in the Duduza area, and they just feel that they want to get it off their chest and just deny all this allegations and that they just want to just live, you know, in peace and that is all, that is the statement that I would like to make Chairperson.
ADV GCABASHE: COSAS' involvement in protest marches and the rest, would they go in as COSAS under the banner of COSAS or would they participate as ordinary community members under whichever flag the community happen to be holding up?
ADV GCABASHE: In June of 1985, leadership of the Civic Association, did you still have your core leadership in place or had quite a few of them been arrested and were some of them on the run, as happened with the COSAS leadership, just help me there?
MR MAZIBUKO: Yes, a number of them were on the run, they were not around the township. Like with us, we only came back to the township when we received news that something bad was going to happen, that is when we felt that we had to be part of this process, if it happened, so be it.
MR MAZIBUKO: Yes, the first time that he indicated to me because it must have been when, I think I am not sure whether Saturday, Saturday I might have met him at the funeral, that is when I sort of wanted to get the gist of this whole thing exactly as to what was happening, because the previous night, which was the 21st, when he indicated to me that certain people had approached him wanting to be put through to me, you see, and we were interrupted by the firing of teargas and all that, we could not finish our discussion that day. On Saturday when I had those discussions with him during the funeral procession, he indicated that there was a certain stage where he was actually taken through to Potchefstroom, because like, to be honest, to clear something of this issue of Potchefstroom, it is as if Congress went to Potchefstroom. No, he did not go to Potchefstroom, he was taken out of kwaThema to Potchefstroom, by someone from between Mike and James. I don't know who exactly, but on their way to Potchefstroom, he was taken there to be shown a safehouse, that is what he told me, a safehouse where these people were hiding or holding weapons and all that. Somewhere along the way, apparently they were stopped by a roadblock, on that roadblock he says one of them went to the boot, he tried and already himself, Congress, he had seen an AK, that they were carrying an AK, but the boot could not open. He ascribed that, you know, to a magic of some kind, that some of these guys are bad news you know, so then later on, they went to that place and apparently he was taken back again to kwaThema.
MR MAZIBUKO: I am actually not sure exactly, but one would have assumed that under the assumed role that Mike and James had taken, it would obviously have come from an upper structure within the ranks of MK, you see.
ADV GCABASHE: Did you during your discussions either with them or with the bigger group, discuss going into exile at all? You know, them facilitating something like that, or were all of you focused on training in the country for defence purposes in the country?
ADV GCABASHE: One final point, you were all given handgrenades by Mr Nkala, were you, just the Duduza group, when you were given your handgrenades, or were all the groups together, these are the actual lethal handgrenades that you were going to use?
CHAIRPERSON: And can you recall when you were handing out the grenades, because you said Mr Nkala was screwing in the fuses and giving them to you and you were passing them on to your colleagues, were they mixed or were they all the same type of handgrenades?
MR MAZIBUKO: Yes. In my immediate group Osborn Dlamini was killed. In the other group which was also part of my group as well, three were killed, it was Solomon Gungunyani Mashibane, Lincoln Lucky Mogodi and Mboa Mashiane.
CHAIRPERSON: Thank you Mr Mafora, is that then the end of all the evidence in this matter? I wonder if we should just take a short adjournment now and if we could have a discussion with the legal representatives about argument, when and or how, etc. We will just take a short adjournment now and we will reconvene later. I would like to see the legal representatives on the question of that argument.
CHAIRPERSON: Thank you. We have now reached the stage of the hearing where we are to receive submissions. The matter has been discussed with the legal representatives and it has been jointly decided that we will start with the making of submissions right now, with a view of hopefully finishing the matter today, but we will have to see how that goes. Has it been decided who is going to be starting?
MR VISSER IN ARGUMENT: It seems that I will start, Mr Chairman. Mr Chairman, in this application, I represent van der Merwe, Schoon - well, I should say first of all for purposes of the record, Mr van der Merwe, whose evidence is in Exhibit B, Schoon, who is Exhibit E, Delport Exhibit F, Prins, Exhibit G, Steenkamp Exhibit H, and Roos, Exhibit J. Chairperson, all the applicants for whom I appear, confirmed in their evidence under oath before you the contents of Exhibit A which had been handed in at a prior hearing before you, in the Maponya case and again in this hearing. Chairperson, you will also recall that in the Maponya incident, when we argued, I handed up to you part of - a written argument.
MR VISSER: Which in fact incorporated that which we believed were necessary from Exhibit A and with your permission Chairperson, I know that there are some of my colleagues here, that haven't heard that argument, but with your permission, I don't intend traversing that field again, unless there is a specific point which might arise.
Chairperson, in regard to the general background, we then refer to Exhibit A and my previous argument which dealt with the background, the position of policemen and some legal issues, as far as the legal issues are concerned Chairperson, please allow me to add one matter which has now come to hand, I was given this morning a decision of the Truth and Reconciliation Commission's Amnesty Committee by Justice Wilson, Mr de Jager, Adv Gcabashe and I am just trying to find the names, and Mr Sibanyoni in the case of the Khotso House incident, Chairperson. I must confess to you that I have not had time to properly study this document. The reason why however, I wish to refer to this document is because on my brief reading of the document, it appears Mr Chairman, that the ghosts surrounding Section 20(2)(b) has now been laid to rest. The argument there or the problem there was one of interpretation. Interpretation of the words "in his duties, in execution of his duties, and within his express or implied authority", and Chairperson, at page 5 of the Khotso House judgement, that Amnesty Committee really refers to an argument which we presented before Mr Denzil Potgieter and Adv Gcabashe and Mr de Jager in Johannesburg in another matter, but it deals with those authorities and then relying on the judgements of MKHIZE V MARTINS 1914 (AD), ESTATE VAN DER BIJL V SWANEPOEL, 1927 (AD), VELTMAN'S CASE 1945 (AD), I am going over to page 7 now already, and quoting from there judgements Chairperson. At page 8 that Committee, which I am referring to, comes to the conclusion that the Committee in the result concludes that all the applicants fall within the ambit of Section 20(2), it has not specified 20(2)(b), but that is clearly what is intended here, because that is what has been dealt with. In that sense, Chairperson, that is something which we wish to draw your attention to, so that we can now look forward to arguments without the same argument about Section 20(2)(b).
MR VISSER: Yes, my Attorney has given Commissioner Malan a copy this morning, so you will have one immediately available, unfortunately I haven't had the opportunity of studying it properly Chairperson, but that in my submission is, there may be other important points arising from that judgement, but that is the important one that immediately strikes one. Chairperson, as far as the general background is concerned, what is stated in Exhibit A has been amplified by Gen van der Merwe here, before you, also with reference to Bundle 2(a) from pages 82 to 91 which were read into the record and Chairperson, with great respect, we wish to state that in spite of in so far as the evidence of Mazibuko after cross-examination, may still be taken to cast a doubt on whether there was the violence and the conflict which the applicants testified to, that you will accept the evidence of the applicants and also as was confirmed by the amnesty decision in Cronje's case.
We have shown you some video's Chairperson, which gives the overwhelming impression of how that violence took form. We submit that from the video's it is clear that the activists in those video's are people as Gen van der Merwe testified, between 16 and 20, it shows the helplessness of the police Chairperson, to deal with matters of mass action, it also shows in our submission, the ineffectiveness of the existing prevailing security legislation to deal with the problems around mass action and we also submit Chairperson, it shows the brutality in which informers or suspected informers, were dealt with in those days.
You heard the evidence of van der Merwe, Delport and Prins particularly that since 1984, the upsurge on the East Rand began, the upsurge in violence and Chairperson, we can also refer in general to the Further Submissions and the Submissions of the ANC which support that evidence. Brig Delport told you him being the District Commander of the Security Branch at the time, what the problems were which they had to protect the lives and property of not only policemen, but of other government agents, such as black councillors, how money was spent in attempts to make their houses safe from petrol bomb attacks, etc, and how personal protection was just not feasible or practical. Prins actually gave lucid evidence in this regard and perhaps one doesn't always realise this Chairperson, but what he says must be true, in order to protect a policeman, it doesn't mean that you can just send one policeman to protect him. It means that you've got to sent sufficient numbers to protect that policeman, to ward off an attack by a group of people, because one doesn't know, and then of course, one never knows where the assaults may take place and what form the assault may take. You, Mr Chairman, put to one of the witnesses in fact it was to Delport, that if these houses were now protected to the extent that they could not be penetrated by petrol bombs or handgrenades for that matter, then what was the problem? Well, Mr Chairman, with respect to you, we submit that one cannot adopt that attitude.
CHAIRPERSON: I don't think I said "well, what was the problem", my difficulty was on that little point was, if the houses were protected to make them safe from petrol bombs, they would also be safe from handgrenades.
MR VISSER: That point we take Chairperson, our reply to that in submission to you is that a handgrenade is a somewhat different kettle of fish from a petrol bomb. A handgrenade placed in front of a door, will probably blow the door away and will give the attackers access. Then there was evidence on the record Chairperson, it just struck me, I am not quite sure where it was, but I will look for it, where somebody was questioned, I believe it must have been Mr Lukele, was questioned as to what the purpose was and he said the purpose was to throw the first handgrenade and when the person came out of the house, the second handgrenade would be lobbed to kill him. So, Chairperson, yes, obviously making a house safe, does make the situation safer, there is no doubt about that, but still we submit that the danger would not have been removed, because it was not clear that the attacks would only be on houses. The attacks were supposed to be on policemen themselves, so that attack could take place anywhere or for that matter on black councillors.
And of course then there is the pragmatic approach by Gen van der Merwe, he says that the day you reach the point where policemen have to protect policemen, then you have lost the situation, the situation is then out of control. The other proposition which was muted Chairperson was "well, why don't you just remove them, all the policemen and all the councillors from the area?" Chairperson, that would of course be succumbing to the very purpose which the ANC was about, removing policemen and army personnel as well as councillors from the areas, that was part of their strategy of making the area a no-go area, ungovernable where the structures which the ANC had in mind and envisaged, could then be established. That wasn't the answer either Chairperson.
What we know of the facts here is that an informer who was handled by Lt Oberholzer, who is now deceased, came to hand and from approximately as far as we can establish from the evidence, May 1985, there were clear indications that something was brewing, that people were waiting for arms and I wish to stress Chairperson, that they were waiting for arms, not specifically for handgrenades. That was, that piece of evidence was confirmed by Mr Mazibuko this afternoon. They wanted arms with which to as he puts it, protect themselves, but protect themselves, or go over to the attack, there is a very thin line between the two because if you lob a handgrenade in defence, it is going to have exactly the same effect as when you lobbed it with a view of attacking. That is a distinction without a difference, as I also put to Mr Mazibuko.
What happened then was names started coming to the fore, which names were promoted to Headquarters, and then at one stage an urgency came into the whole affair when the informer informed that these people were now anxious to go over to the attack. This was also forwarded to Headquarters by way of a written report and this prompted Gen van der Merwe to say that "well, if we have the situation where people have now decided to go over to a violent attack on policemen and black councillors, we don't know where and when it is going to take place, we only know it is going to take place vaguely in the townships on the East Rand and there were three of them, then we've got to do something to protect the people." He then drafted a memorandum which is not available any longer, which through the office of the Commissioner of Police, Gen Johan Coetzee, was passed onto the Minister and Mr van der Merwe was then told that the Minister had sanctioned the action which was proposed. What was that action? What was proposed by Gen van der Merwe was that the COSAS members be penetrated and that certainty be obtained as to who the people were who intended launching the attack and that instead of running the risk of them obtaining weapons from the ANC or from wherever, which was in circulation at the time, and you have heard that evidence too, that they be provided with the booby-trapped handgrenades. It is of some importance Chairperson, we submit that at the time, it was not even clear whether the fuses, the timing mechanisms of the handgrenades, could be delayed as was intended or envisaged with the plan or in the plan, and that Mr Paul Hattingh was called to the office of Mr van der Merwe, who was then second in charge of Security, and asked whether this could be done. Now, as I understand it, he wasn't altogether certain that it could be done, he told you that they were in one division and Technical Division was another division and he thought that he had better speak to Technical Division to find out whether this was a feasible plan to put into operation in order to shorten the time fuse. He then leaves, he goes and he speaks to Wal du Toit as they can remember, and Wal du Toit said yes. Brig Schoon told you Chairperson, that as far as he can remember, he gave must the same evidence. His recollection was also that when this was put to what he accepts must have been Mr Hattingh because he couldn't remember who it was, he was told "it is possible, but we will have to see, it is not a fait accompli. He was, because of the doubt that was expressed, he took it up with whoever was the Chief of Special forces of the army at the time. They gave him a straight answer, "yes, we can do it", so not that much turns on it, but it seems Chairperson, that piecing the pieces together now, it seems that some of the handgrenades were prepared by Special Forces and some of the handgrenades, I am talking about handgrenades, I mean the fuses, and some of the fuses were prepared by Technical Division, by Mr Wal du Toit, Mr Kok, the other Mr Kok and or Mr Louw. The only possibly relevance about this might be the evidence of Mr de Kock who told you that when Venter and he came to Pretoria to fetch the handgrenades, he realised, he observed that some of them were offensive handgrenades and some of were defensive, and he gave us the benefit of his knowledge as to what the possible effects were, but at the end of the day, it really doesn't take the matter any further, because he said that an offensive handgrenade can kill just as well as does a defensive handgrenade.
Taking that line through Chairperson, Nkala says they all seemed according to his recollection, which seems very faint, all were the same, but we have Mr Mazibuko who said that there were handgrenades which were shiny, which apparently coincides with what Mr de Kock says and I take the matter no further than to say that that is just for the sake of completeness of the evidence.
Apparently in the meantime when Gen van der Merwe received the go-ahead from Min le Grange and perhaps I should just address that issue while I am at it, Chairperson, I am sure it was not intended to be suggested to Gen van der Merwe that because Gen le Grange, Min le Grange has subsequently died, that he has decided because he is not here to defend himself, to use him as a scapegoat, but if there is such an inkling of an idea Chairperson, may I be allowed to dispel it, because the fact is that Gen van der Merwe already in Springs at the meeting directly after receiving the go-ahead, told at least Delport and Cronje and his evidence is on record, that the instructions came from Mr Louis le Grange. If he had decided to implicate Mr le Grange, he certainly did it while Mr le Grange was still very much alive at the time. The fact that the amnesty process is underway at a time when Mr le Grange had died, is coincidental Chairperson. Also the fact that we say the probability shows that the instructions did come from Mr le Grange as was testified to by Mr van der Merwe, is the evidence of Brig Delport and Dir Roos, who say that shortly after the event, Mr le Grange arrived by helicopter and they were supposed to take him around to municipalities and he congratulated them on an operation well done, and both of them told you that that is the only operation that reference could have been made to.
Apart from that Chairperson, not to put too fine a point on it with respect, Gen van der Merwe has shown himself to be a person where if he had taken a decision and given an order, as was shown by his amnesty applications, he has admitted it. There are three or four occasions Chairperson, I don't want to get into the detail of it, but we submit with great respect that when van der Merwe says that le Grange was the one that gave the order, there is nothing that points to any doubt in that regard on the evidence before you.
Chairperson, there then follows a meeting at Springs. As far as the meeting is concerned Chairperson, I am not going to deal with it in detail, might I just for your benefit, give you the references. It is in Bundle 2(a), page 36, that is the application of Brig Cronje, page 58 is the application of Mr Roelf Venter, page 183 is the evidence of Brig Cronje, also at page 185. Chairperson, the Amnesty Committee dealing with the amnesty application of Brig Cronje made the following finding at page 10 in Bundle 2(a) in regard to this meeting, the third paragraph reads -
"... the applicant (and that is now Cronje) was the Commander at Vlakplaas during 1985. Gen van der Merwe was at that stage second in command of the Security Police in the RSA. The applicant met Gen van der Merwe at Springs and they discussed the attacks on police and the bombings of their houses which were particularly intense on the East Rand. Gen van der Merwe then asked the applicant if he could arrange for the infiltration of the liberation organisations active on the East Rand. According to applicant, and Gen van der Merwe, they already had information that these forces were awaiting weapons to enable them to again attack the residences of policemen. Gen van der Merwe then informed the applicant that he had a plan to counter these attacks and that he had already cleared it out with Gen Coetzee and the Minister of Law and Order (it should read the Minister of Police in those years), Mr le Grange. He was thus satisfied that it had been approved by his superiors and the government. At that stage they also had information that handgrenades destined for the ANC cadres had been intercepted and stored at Leeuwenskop."
Chairperson, I am not sure where that evidence comes from, in fact it didn't appear to be evidence on the record, but be that as it may, they had weapons, that is clear with Technical and with Explosives Department.
"... the plan was to contact ANC cadres and supply them with handgrenades having a zero setting, the result would be that such a handgrenade would explode when it was activated and thrown. The result would be an explosion in the hands of a person trying to throw it, instead of an explosion a few seconds it had been thrown, obviously at the target."
Mr Chairman, it then transpired that thereafter Mr Joe Mamasela and as we now know, Mr Nkala with him, infiltrated this group. There is a suggestion by Mr Mamasela that he was taken and shown the house of Congress Mtweni who was clearly the leader, that also appears from the evidence of Mr Mazibuko and that from there onwards, they met other members of COSAS who had apparently decided to participate in these attacks. Mr Chairman, I see it is going on to twenty to, and I am just wondering because my learned friend Mr Mafora indicated to you in chambers ...
MR VISSER: Yes. Mr Chairman, the - as far as what the orders were, it was made quite clear by Brig Cronje that the instructions of Gen Coetzee, Gen van der Merwe, were that there had to be no enticement of anyone, and that the handgrenades had only to be given to such people as had themselves chosen to participate in this attack and thirdly Chairperson, is that under no circumstances, should their targets be chosen on their behalf. We submit that it is common cause before you, that the targets were in fact chosen by the COSAS members, and we say ...
MR VISSER: Yes, it is quite clear, and from that Chairperson, it follows that in all probability the other instructions as Gen van der Merwe testified to here, should also be accepted as being established. Of course Gen van der Merwe and all the other applicants for whom I appear, can have no way of knowing what Mr Mamasela went and did, and especially in view of the cross-examination by Mr Mafora of Mr de Kock, one is left with the impression that Mr Mamasela was a bit of a loose canon and he could have done anything. Where he gives evidence on his affidavit to say that he went to set a trap for them, etc, etc, well, maybe that is so, but if it is Chairperson, it is not something which we submit, that can be taken into account against the applicants for whom we appear.
"... the applicant instructed Joe Mamasela, an askari member of the Security Police, to infiltrate the ANC and to find out whether they were awaiting weaponry to be used against the police. He was also instructed not to influence them to ask for weapons, but those asking for weapons, would be supplied with zero handgrenades. Col Eugene de Kock was ordered to fetch the specially prepared handgrenades from Pretoria. Mamasela a few days later, reported that he had infiltrated a cell and that they wanted handgrenades. One of them also requested a limpet mine to blow up a power station near kwaThema."
Chairperson, I don't believe it is part of my case to argue to you exactly how it came about that the limpet mine was mentioned, either on the version of Mr de Kock or on the version of Mr Cronje. The fact of the matter is, a limpet mine was mentioned at one stage and that was also adapted to explode immediately when activated.
Chairperson, just bear with me, now, both Cronje and Venter on their evidence before the Amnesty Committee obtained amnesty and it is our submission that although during this hearing, the case was gone into in far greater detail than was the case before the original Amnesty Committee with Mr Cronje and Mr Venter, that there are no material disputes of fact between the evidence given by those two gentlemen on the basis of which they obtained amnesty and the evidence which was presented to you here. The only issue if it is an issue, is that Cronje said that there was an instruction that they, that is the activists, were not to be trained. Chairperson, I read that passage to you during the evidence, I am not sure whether the problem is not one of interpretation there.
CHAIRPERSON: Because I think you know, from what we have heard, the giving of handgrenades to people, to young people who had no idea about the use of them, it is implicit that there must have been some form of demonstration that would have to be given.
MR VISSER: Yes. And we agree with you Chairperson, and we say for that reason, we ask you to accept the evidence of Gen Coetzee that if anyone had stopped and asked or thought about it, that would have been exactly the conclusion to which they would have come, Gen van der Merwe.
Chairperson, the matter of the attacks must be placed against the background of the policy of the ANC regarding policemen and black councillors and informers as legitimate targets to be killed. Once one does that, this whole operation is placed in its proper perspective, there is no way in which the police would have laughed off the situation, the information which they got, as a prank or as something which was not in all probability not going to come about. They would have had to take this information very seriously, which they did.
Chairperson, the question then is a question of proportionality. There are possibly two answers, or two approaches to be adopted. The first approach is that we submit that if ever there was a case where there is a direct proportionality, it is this one from a point of view of lives for lives because the potential was that the person who was lobbing the handgrenade could have killed the person at whom he lobbed it, so there was a direct counter-relationship between the act of Gen van der Merwe and the other applicants and the acts which were intended by the activists. The second part of that Chairperson, is in the broader view of the conflict of the past, where innocent lives were lost, Maaki Skosana is but one example, where damage to property was in the order of the day, you saw what happened during the march where windows were smashed and cars were burnt, etc, all with a view of attaining a political objective, we say Chairperson, that the actions of the police in this particular case, were imminently proportional to the objective which they sought to attain, and they gave evidence that that objective was to a certain extent attained, because there was a markable, a marked decline in violence Chairperson, in the violence, in that particular area. We submit Chairperson, that all of the applicants complied with the provisions of the Act as far as their locus standi is concerned and as far as the requirements of the Act are concerned, in order to obtain amnesty before you. There were no fundamental disparities in their evidence, either between them themselves and them and the other applicants Chairperson, and there is no reason which we can advance, why there should be doubt as to whether you should accept their evidence.
Just bear with me a moment Chairperson, I am not going to deal with the linguistic differences between looking for weapons or waiting for weapons or wanting weapons, the broad intention is in our submission what is important here. They wanted weapons and that is what Mr Mazibuko said. This is what they wanted and it just makes sense Chairperson, within that time, that time frame.
MR VISSER: Yes Chairperson, I am not drawing that distinction at all with great respect. The police received information that people are waiting for weapons, how would they act differently if they were told people were looking for weapons or whatever different way one puts it? The fact is the problem is now that people want weapons, that is the point. And whether you call it looking for weapons, waiting for weapons, wanting weapons, alters nothing Chairperson, to the seriousness of the situation. The seriousness of the situation has to do with what they want to do with the weapons, they want to attack people and possibly kill them, and that is my submission. Taking a linguistic view of the words Chairperson, with great respect, doesn't take away what the police must have realised was going to happen at the time, and that was the evidence which these people gave. They regarded it as extremely serious.
Chairperson, very briefly as far as the instructions are concerned, I don't know whether you want the references, it is 2(a), page 91, also 2(a), Cronje, pages 37 to 39, Venter page 58 to 59, of course van der Merwe and Delport's evidence here as well Chairperson. Chairperson, there was opposition by Mr Mafora who told you that he opposes the applications on behalf of some of the victims or their families on the basis that first of all, these were purely criminal actions and that they were not motivated by a political objective, well Chairperson, with great respect, I am not going to detain you with an argument about that, it is quite clear that this was out and out a political objective, as well as the immediate objective of protecting people's lives, which the police were obliged to do. Then Mr Mafora says that there was a failure to make full disclosure. Now Mr Chairman, it is all very well just to make this statement in vacuo, but Mr Mafora has not presented you with any evidence to show where the applicants have not made a full disclosure, in fact, we submit to you that they have made an extremely full disclosure, they have told you everything that they can remember and they have made such concessions as we believe were reasonable and expected of them to make on questions and with great respect, they did certainly not create the impression of people who had come here in order to conceal evidence from you.
Chairperson, I am dealing with a few loose aspects - my learned friend Mr Mafora, challenged the evidence by Gen van der Merwe that what plans a Commander makes, he leaves to the Commander on the ground, to execute, he is not prescriptive. Chairperson, with great respect, all over the world in any battle situation, that is clearly the situation, you cannot sit in your office and plan the execution on the ground, those people on the ground are the ones who have to meet the (indistinct) of the situation from moment to moment and we submit that there is absolutely nothing strange about that, it would have been strange if it were otherwise.
Then it was put by my learned friend, Mr Mafora, that the whole operation was planned by Mr Mamasela. Well, again Mr Chairman, there is no evidence to support that. I don't know why on what basis, he puts that, because Mr Mazibuko himself did not even give evidence to that affect. As far as the issue of the age of the victims, the activists were concerned, Chairperson, with respect these people were 17 years and older, it is not as if they are children who cannot think for themselves. Some of these activists were as old as 23 according to Justice Stafford and that is in your Bundle 2(b), and you will find that from page 328 onwards where His Lordship deals with his judgement on sentence. He deals with the ages Chairperson. It is not a case where we are dealing with young children here, we are dealing with adolescents, we are dealing with people who can think for themselves and if you listen to Mr Mazibuko, it is quite clear that he is a very intelligent person, and that he - some people might not agree with that - but, we thought that he was a very intelligent person and that clearly he thought about things and discussed political issues as he put to you here.
Chairperson, there were some suggestion made that perhaps the police should not have accepted the report or the information from the informer when it came, on face value. Well, Chairperson, in a perfect society, where there is no life and death situation going on on a daily basis, where within two years you don't have 48 000 incidents of violence, perhaps, but in a situation of conflict which we heard here was raging on the East Rand, it would be highly highly irresponsible if the police were to have ignored it. In point of fact Chairperson, and I don't want to speculate, but one can speculate about what might have happened if they hadn't taken this information seriously and hadn't acted the way they did.
Well, the question put by my learned friend, Mr Mafora, that the police used criminal tactics in order to counter the supposed or the expected attack, well, that of course is so, we know that that is so. That is why we are asking for amnesty Chairperson, that is the complete answer to that statement or argument.
Chairperson, a difficult question is the one about whether there were not other alternatives which the police should rather have considered, rather than what they did. Well, as far as that is concerned Chairperson, there is always the first point about that, that one looks at a situation in retrospection with the benefit of hindsight, which is as they say an exact science. Chairperson, the problem is that today as we sit here, we can never look and we can never see the situation as it was seen through the eyes of the operatives at the time, not from either side. Certainly in an armchair approach, one can say "well, look, you should have arrested these people and detained them, that would have defused the situation", well, we know from the record that some 20 of them were in fact arrested and Mr Mazibuko in fact gave the same evidence. The inference is clear from that, that didn't help. That didn't help. In point of fact, one can even say Chairperson, as far as Mr Mazibuko is concerned, that this operation of the police did not even help, because later he went and he planted another limpet mine. They did the best they could, the way they saw it Chairperson, in the circumstances. We submit that if one is practical and not over-critical about it, one must find that what they did, they saw as the best under the circumstances and let me emphasise this, even if it turns out later that they made the wrong decision, that Chairperson, with great respect, matters not and it cannot affect the merits of their decision because they wouldn't have known that it wouldn't work. As it turned out, fortunately there was a measure of violence, a reduction in violence Chairperson, but again even that, cannot be thrown into the scale when consideration is given to their decision at the time, with the information at their disposal, when they made that decision.
Mr Chairman, I must just - I am virtually through, I must just perhaps address a point which Commissioner Malan raised and I must tell you Mr Chairman, I went to university with Mr Malan, and he was always much more clever than I was and frankly I am not sure whether I understand the point.
MR VISSER: I have just placed it on record for the world to hear. Chairperson, the point is this, it deals with the political objective and Mr Malan put I think it was to Gen van der Merwe, no, I think it was Brig Delport, that didn't you want to send a broader message into the world, the message being "if you are going to instigate violence, we are going to clamp down on you, we are going to be able to reach you, so don't do it." Chairperson, if one has to interpret that to mean that the police wanted to reduce the violence by acting pro-actively pre-emptively, showing a strong arm, then we agree with that Chairperson. I am not sure whether there is any other meaning that I have to read into that and with which I have to deal. It seems that Mr Malan is satisfied.
Mr Chairman, third lastly, Ms Gcabashe suggested or asked I should rather say "did the police know to whom, to what person, the weapons were to be delivered", now first of all I have already dealt with my submission that one mustn't follow a semantic approach too closely and it is part of that, I think it was probably as part of that, that issue that the question was put, but we also say this Chairperson, that one must bear in mind the position of an informer in the position of this informer in COSAS. We know he wasn't the leader, that we know, because that was Congress Mtweni, so he was somewhere down the order. He must be very careful about asking questions. If he hears, this is on the supposition that they were waiting for weapons which had already been promised, if that is mentioned, it would be foolhardy of him to start asking for further particulars as it were "who did you get it from, to whom is it going to be delivered".
MR VISSER: Chairperson, I am not, as I said before, I am not asking you to find that they were waiting for it, I am asking you merely to find that they wanted, that is all I am asking you to find. Chairperson, I am not going to address you on the SDU's and whether they existed and whether they didn't exist.
MR VISSER: Just as one thought it was safe to go into the water - Mr Chairman, there is one last submission I have to make and that is this, during the conflict of the past, much of what happened resulted from rumours, from perceptions, etc. You heard Mr Mazibuko and the perceptions he had, probably quite bona fide. The police from their side, had perceptions. The terrible thing about the situation particularly in this particular case is where the people of these townships were trying to better their lives socially, the police got caught in the middle and that was graphically illustrated by the evidence of Mr Mazibuko. They had to act in certain circumstances and then they became seen as the obstructive persons in their quest for a better social deal, the bucket system and so, with which the police had nothing to do. It is a pity and one has sympathy, one has sympathy for that situation, but it doesn't solve the problem. We sit with the result Chairperson.
Mr Chairman, I would ask you to consider granting amnesty to all the applicants, except Mr Steenkamp and Mr Roos, is it, Mr Steenkamp and Roos, as prayed for in their evidence, for murder at page 2 of each of their statements Mr Chairperson, for murder, for attempted murder or such lesser offence as the facts may show, for as far as it is applicable to the facts of this particular case, the unlawful possession of explosives and any other offence or delict which may be supported by the facts. In the case of Mr Steenkamp and Mr Roos, they told you that they didn't know beforehand of the plan, it would appear to us Chairperson, that they would then not be able to ask for amnesty for anything more or other than accessory after the fact, defeating the ends of justice Chairperson, and then in the case of Mr Steenkamp, perjury.
MR MAFORA IN ARGUMENT: It is me Mr Chairperson, thank you very much. May I just indicate Mr Chairperson, that my instructions are not to concede anything, ie in respect of all the applicants, we still oppose the granting of amnesty in spite of the evidence that has been presented. I have discussed the issue, ie the technical stuff you know, I have advised my clients on some of those things, but my clear instructions are that amnesty should be opposed on all applicants.
Mr Chairperson, the issue that I raised first, the basis on which this amnesty is being opposed was this that it was a criminal act and it was not motivated by any political objective. The instructions that I have on that Mr Chairperson, still stands but it stands to the lesser degree. My instructions are that the issue that I should bring to the Committee's fore is the issue of total disclosure. The applicants are of the opinion that there hasn't been total disclosure as required by Section 20 of the Act and that most of the evidence that has been led, deliberately left out material issues and was tailored to justify the version that was put by the applicants before the Committee. These material issues have actually been lead in the evidence which was led by Mr Mazibuko. Mr Mazibuko indicated that they were members of COSAS which was an organisation affiliated to the UDF at the time. They were a peaceful organisation and they were still students at the time. They admit that there was the situation that existed in the township where members of the Tokoza community had various difficulties which they had with the powers that be at the time, particularly the South African Police and the local structures for their failure to deliver on the promises which they had undertaken to deliver to the community when they moved to Duduza.
Mr Mazibuko's evidence was that they were actually approached by Mamasela and Nkala. They never solicited or did they have any plans to acquire weapons. The whole, I mean the community at the time, he conceded that they could have considered you know, it was an option which they considered, but they never at any point, or at any stage, sat as a committee of COSAS and say "these are the plans that we are going to put in place to acquire weapons." He never, his evidence was that they never had any contact with the ANC in exile, nor were they expecting to receive any consignment of weapons from the ANC. The version put by the applicants that they had been informed that these people were waiting for weapons, and that they were ready to attack members of the police and the members of the local councillors, cannot stand. Besides, to show that, to further indicate the veracity of the evidence led by Mazibuko is this that in their area in Duduza, the police were no longer there, you know so there was no need for them in that area, to look forward to obtaining weapons and to use them in Duduza specifically against members of the police.
Now, they were persuaded by Mamasela and Nkala to use those weapons because they didn't have any targets, they simply then had to use them on burnt out houses. The members of the South African Police in our version, they were not necessarily trying to quell the violence when they hatched this plan or they put this plan together. They simply wanted to eliminate members of COSAS and the leadership structure of COSAS because they had already infiltrated through Mamasela. That is what the community actually wanted to hear from the applicants, and not a far-fetched story of saying that there was this violence, there was no other way of dealing with it, other than to hand these booby-trapped handgrenades to members of COSAS.
If the police were not specifically targeting the leadership of COSAS, they could have simply, I mean they had very wide-ranging powers, they could have used those powers to arrest them, but because they specifically knew who they wanted, hence this plan was devised. COSAS leadership was infiltrated and they fell into the police trap. Why do I say this? The police at that time, could arrest anyone at will, lock him up, there was legislation which provided them with adequate powers to arrest and lock up people indiscriminately. They actually knew who their targets were and this had nothing to do with the protection of, necessary protection of the police and the members of the local councils as I have stated earlier on.
Let's look at the different versions put by Nkala and de Kock, the various disputes, the extent and participation of de Kock in the whole proceedings. There is no reasonable explanation why Nkala would have been mistaken about the existence and the participation of de Kock, because he had indicated that he had known de Kock, you know, prior to this incident. The parties knew each other, so Nkala couldn't have said de Kock was present at such and such a meeting if de Kock wasn't present. My submission is that there has been a well-oiled machine, a story had been put together and the applicants have submitted a story which they all basically agreed that it would fly as far as the Committee is concerned.
Let us look at the one aspect that was raised by my learned colleague on the question of the proportionality of their actions. They were the government of the day, the applicants were agents of the government of the day, they had powers of arrest. I mean the police were feared during those days, I mean every average black person stood in awe of the police. My learned colleague argues that the people were prepared to go and kill and hence you know, there is an element of proportionality. Certainly not. The whole thing was instigated by the police, the things were booby-trapped and the police knew that those people after being enticed, they were going to be killed and none of the targets, that possible targets, would sustain any harm. There is no question of proportionality there. The police always had the upper hand.
CHAIRPERSON: I don't think it is a question of us having to find whether the actions were justified or not, they have come and they have said look, they have committed criminal acts and I don't think it is for us to find whether they were justified.
MR MAFORA: Justified in the sense Mr Chairperson, or under the circumstances under which they were committed. You know, whether they didn't have any other you know, alternative to this action. My learned colleague indicated that, you know, I mean with hindsight the action may appear to have been slightly high-handed. My submission to you Mr Chairperson is that the police action even under those circumstances, were purely you know, unacceptable. They could have used all other avenues that I had indicated earlier on. Maybe then they are embarrassed by the true facts you know, to come forward to the Commission to say these are the true facts, hence they have created this facade of violence and attacks on the police, but if one takes this whole incident into its correct perspective, they shouldn't have gone that route. They could have simply arrested the people, charged them and maintained I mean, obtained the objectives which they had set out to achieve. Thank you Mr Chairperson.
MR HATTINGH IN ARGUMENT: Thank you Mr Chairman. In as much as Mr Visser's submissions apply to Mr de Kock, we associate ourselves with those submissions made Mr Chairman. Mr de Kock in this particular instance Mr Chairman, and members, was in a position of the so-called footsoldier. He wasn't in charge of the operation, he was a Captain acting under the command of Col Cronje as he then was, and acting on his instructions.
That is clear from his own evidence, it is clear from the evidence of Brig Cronje which he gave at his amnesty application and he is also supported in this regard by the evidence of Roelf Venter in his amnesty application, which you would find in Bundle 2(a) at pages 59 to 60. We submit that it is clear from the evidence Mr Chairman, that Mr de Kock was called from Durban shortly before the incident occurred, on Mr de Kock's version, it must have been on the 24th. There is no real evidence to contradict that, I will deal with the ...
MR HATTINGH: Yes, although the evidence is not quite clear how long it took to fix the, or to adapt the landmine, Mr Chairman. Sorry, not landmine, limpet mine. Mr Chairman, I would deal with the evidence of Mr Nkala later on. We submit that it is clear from the evidence and particularly from Mr de Kock's evidence that he was told that these handgrenades were adapted, he knew what was going to happen and the only information that he had, apart from that, was that these handgrenades were going to be handed to activists who were involved in attacks on policemen.
He doesn't know about the instructions that they shouldn't be solicited to attack the policemen, that they should only be handed to activists who wanted to attack the homes of policemen, he was simply informed these handgrenades were going to be handed to activists who were responsible for attacking policemen. That was his subjective state of mind when he received these handgrenades. He also told you that he was aware of the situation on the East Rand, he was aware that there was severe unrest and therefore he was convinced that the proposed action was directed against people who, activists who were bent on overthrowing the government of the day. I think if I remember correctly he said something to the effect that "activists don't throw handgrenades, terrorists do." That was his state of mind at the time, Mr Chairman. We submit therefore that the political objective that he had, was clearly, has clearly been established.
Coming to the question as to whether you should believe Mr de Kock's version as opposed to Mr Nkala's version, we submit Mr Chairman, that the simple answer to that should be why would Mr de Kock lie about this? He had a perfect version in this particular instance, he could have said yes, I was there right from the outset, I did carry out the planning, I did everything which Mr Nkala said I did, but I did that under the instruction of Brig Cronje, those were my instructions and I believed that these steps were necessary, but he doesn't say that Mr Chairman. He is supported by as I said two other witnesses, we submit that his evidence should be accepted in this regard for various reasons Mr Chairman, Mr de Kock went further, he says it was my idea to adapt the limpet mine, to make sure that the leader who he was told, would be able to identify Mr Mamasela, is killed. A person doesn't say that sort of thing if he is not being open with the Commission, Mr Chairman. Furthermore, he didn't avail himself of the opportunity to say that not only did he act under the instructions of Brig Cronje, but he had information that those instructions came from Gen van der Merwe and that they were authorised by the Minister of Law and Order at the time, he doesn't say that. He quite frankly tells you as far as I know, my instructions came from Brig Cronje and possibly from Brig Schoon, but I don't want to drag anybody in if I am not certain, I cannot say whether I was told that they came from Gen van der Merwe and from the Minister. This is the person who is being frank with the Committee, Mr Chairman.
On the other hand Mr Chairman, you have the evidence of Mr Nkala, we submit that his evidence was particularly on the question as to whether Mr de Kock was present on the various occasions that he testified to, was most unsatisfactory. He started off by saying in evidence-in-chief that he wasn't certain as to whether Mr de Kock was present on a certain occasion, I think that was the occasion when Mamasela took him to Roelf Venter and de Kock and he said he wasn't certain and he conceded that he couldn't have been there, and then when I asked him whether he therefore made a mistake in his statement where he said that de Kock and Venter were there, then he reverted to the version in the statement.
When he testified about the occasion on which the handgrenades were handed over, he said that he was certain that Mr de Kock was there, because he remembered, he remembers that Mr de Kock told him that these people should just throw the handgrenades at any target, as long as they did it at twelve o'clock at midnight. When I then put it to him that that was his version, which he testified to, that he, that according to him Mr de Kock said that, at the time when he reported back that these people said that there were not targets to attack any more, he conceded yes, he did say it at that time, and he conceded that he didn't say that Mr de Kock did not say it on the occasion when the handgrenades were handed over, and therefore on that concession, how could he remember whether Mr de Kock was there or not, if Mr de Kock didn't say it on the occasion when the handgrenades were handed over, how could he remember, because that is what he tied his recollection to Mr Chairman. He also under re-examination by his Attorney, said that he report that he generally referred to, I think he said the command structure or something to that, referring to de Kock and Venter and that he was therefore not certain whether they were both present on every occasion, on some occasions the one could have been there and the other one not there and on both occasions, both could have been there. Generally with respect Mr Chairperson, his evidence on this aspect is so unsatisfactory that it cannot be preferred to that of Mr de Kock. He also ties his recollection to the fact that Mr Nzimande was there and that Mr Mamasela had requested Mr Nzimande to be of assistance. Now, he did say that he saw Mr Nzimande there at the time, but he wasn't present on his own version, when Mr Nzimande, when Mr Mamasela asked these people to assist him because he says Mr Mamasela told him that the had asked others to assist him. He doesn't say he was present when that happened, firstly, and secondly, he said at the beginning that Mr Nzimande came with Mr Maluleka, they accompanied Mr de Kock from Durban. When it was put to him that it wasn't Mr Maluleka but Mr Ngqulunga, he conceded that possibility, so if he was wrong as to who accompanied him, why cannot he be wrong as to whether Mr Nzimande was there at all at the time.
We submit that generally speaking, his evidence was most contradictory in this respect, not only did he contradict his statement, but he contradicted himself. You will recall that at one stage I put his version to him and the version that he gave in his evidence-in-chief where he said de Kock and Venter were there, whereas in cross-examination he said "I can't remember whether de Kock was there." If that is the sort of evidence on which you have to rely on Mr Chairman, then we submit that the evidence of Mr de Kock should be preferred to his.
MR HATTINGH: It is quite clear from all the evidence Mr Chairman, that this operation was planned quite some time before the 25th. It is quite clear in our submission therefore Mr Chairman, that Mr de Kock was not there and that he only came about two, three, four maybe four days before the operation actually was carried out. We also associate ourselves with our learned friend, Mr Visser's submissions on the question of proportionality, we are not going to address you on that any further, Mr Chairman.
It is submitted by our learned friend, Mr Mafora that these members of COSAS could have been arrested and detained and charged and so on, Mr Chairman, but bear in mind the evidence of Mr Mazibuko himself where he says that all the activists at the time, not only belonging to COSAS, but also to the Civic organisation, were on the run at the time, they were changing houses, sleeping at different places. They were even sleeping in different towns at the time. Also bear in mind Mr Chairman, the difficulty that the police had to enter the township. It is clear from Mr Mazibuko's evidence that there were no police inside the place, that it had become ungovernable, you also heard evidence how difficult it was for the police and how dangerous it was for them to enter in ordinary vehicles. For them to enter in armoured vehicles to go and affect an arrest, would have served absolutely no purpose Mr Chairman, the warning system would have come into operation and these people would have had ample time to run away and hide to make it impossible for them to be arrested. All these factors should be taken into consideration Mr Chairman.
In any event, as far as Mr de Kock is concerned, Mr Chairman, he only carried out instructions for the handing over of the handgrenades and we submit therefore that he has complied with all the requirements of the TRC Act and we request you to consider granting him amnesty for eight counts of murder, seven counts of attempted murder alternatively, assault with intent to do grievous bodily harm.
MR BOOYENS IN ARGUMENT: Thank you Mr Chairman. Mr Chairman, my learned friend says that his instructions are to oppose all the applications including the applications for the Technical Section. I think I can understand my learned friend's embarrassment because he couldn't really address the Commission on that, he addressed nothing to you.
The evidence of all five the members of the Technical Section stands completely unchallenged under cross-examination, no gain-say evidence whatsoever has been produced against their evidence. It is clear that they are not directly involved in the field Mr Chairman, they receive instructions, they act on instructions and although they do have a little bit of background, they were aware that there was unrest in the situation and so on, and their understanding was that this is a sabotage of enemy weapons which under, in the situation in 1985, was a type of "legitimate" way of fighting the battles of the past, so in the circumstances, it is my respectful submission Mr Chairman, that there can be no doubt that all these members should be granted amnesty. I would submit that they should be granted amnesty, it seems to me that although you heard that they drafted the papers themselves, I think they underread the law a little bit. In fact the Committee is capable of granting them amnesty for any offences arising from what they did, but I would say that due to their adaption and involvement with this adapted weapons, they are probably socius to both murder and attempted murder, and not only guilty of the conspiracy. I would accordingly ask the Committee to grant them amnesty as far as that is concerned.
CHAIRPERSON: Because if that is so, I am going to ask the question are they guilty of any gross human rights violation? In other words when I am sitting in my laboratory and I modify a handgrenade, with the knowledge, I don't know where it is going to be used or when, but I know that it is going to be used in some operation and that if it is used, it is going to kill the guy who uses it, but I don't know who it is or I've got no detail, am I guilty of a gross human rights violation in which event, could these applications have been dealt with in chambers or do they require a hearing if they are asking for amnesty up to all the work they did up to 1991, then how can we grant it.
MR BOOYENS: Mr Chairman, you must remember that the applications were drawn by them themselves, and obviously to include everything. Unfortunately it seems to me that the Committee will now have to, in this one, adapt it to the evidence and say because as far as the evidence is concerned ...
MR BOOYENS: Mr Chairman, it will be an interesting and a tricky situation, I think ultimately. Perhaps once we have dealt with all the gross human rights violations, and if there are no modified weapons still coming up, then perhaps the balance, the Committee can deal with because then at most it could have been a conspiracy. In other words if we do not have an act at the end of the day which was caused ...
MR BOOYENS: Yes. Mr Chairman, they were aware, I am talking about this one, they were to some extent aware that it was going to be used in an operation and especially if one takes into account Mr Hattingh's evidence that he said to them that they needed it for an operation, etc, etc.
MR BOOYENS: I say they should be granted amnesty, I think it will correctly spoken, they may be accomplices in so far as murder and attempted murder is concerned. Otherwise if the Committee is not satisfied that it goes that far, but the Attorney General nowadays goes quite far, they are at least it seems to me, guilty of a conspiracy here, which may not necessarily be a gross human rights violation of course.
MR VISSER: Mr Chairman, my learned friend, if I may help him Mr Chairman, the interpretation definitions 9 says clearly in (b), it talks of the killing, abduction, torture, severe ill-treatment of any person in (a) and then (b) says
CHAIRPERSON: You know, but it goes the same, it is still open to argument. I mean, now Mr Makarov who makes all the pistols in Russia, he knows these are going to be used to kill people and they are going to be supplied and criminals are going to - is he part of a conspiracy, he doesn't know?
MR BOOYENS: I think one will have to draw a distinction between legitimate normal manufacturer of I mean, the person who manufactures a hunting rifle, that can be used to kill somebody, but hopefully never will be. The Makarov may one day kill somebody, but maybe won't be, if there is not a war or something like that. But I think if you go further and you deliberately, the moment you modify something which I, if I see it from the outside, will think it will happen this way, I think it is not really completely incomparable with a car-bomb, so ...
MR MALAN: Mr Booyens, may I just ask you, before us at the moment is the total application as they did put it to us, and they did broadly give evidence that they did adapt weapons over the period. We focused a little more about the nature of these and we didn't ask particulars about the others, so if we should give any further attention to the whole of the application, shouldn't one argue that a hearing had been held?
MR BOOYENS: ... problem before and it seems to me to now, if six months down the line we hear about a handgrenade, booby-trapped handgrenade that has gone off in Soweto where somebody was killed, then these people have to come back and give the identical evidence that they had given here, there is not going to be any change. In the circumstances, if the Committee is that way inclined, I would respectfully submit that the Committee can and in light of what my learned friend, Mr Visser, has pointed out, I would submit that in at least in so far as the conspiracy part of it is then concerned, that apart from this one where we have got a link, the other one the Committee can also grant amnesty for, their other involvements.
CHAIRPERSON: It is just that, you see we are in a sense caught between a rock and a hard place with regard to future incidents, let's say 1990. Let's say that an incident comes up, further amnesty hearing in which there are booby-traps and modified weapons, etc, and the activities of the Technical Division come into effect and they have been granted a sort of blanket type amnesty, it might have an affect on that.
MR CORNELIUS IN ARGUMENT: Thank you Mr Chairman. Mr Chairman, I took the liberty when I amplified the application, the documents I put before the Committee, to include some Heads of Argument in that as far as the statutes are concerned, so you would note if you look at the document, I have included all argument on Section 20(3)(a) - (f) in the back. I just want to amplify and address a few points raised by my colleague, Mr Hattingh.
Mr Nkala testified and gave quite an elaborate I think sometimes comical answers, to succeed with his amnesty application, he must comply with the requirements of the Act which he did, he supplied a proper application although he drew it himself without legal representation on Form 1 within the prescribed period and it was properly filed. He also gave his full co-operation to the National Investigation Team of the Attorney General and he made a full statement which is included in Bundle 2(a), section 155 to 158.
Then secondly, did he have a political objective and motive and thirdly, did he make a full disclosure? If you look at the political objective, if you look at the document I tabled, you would notice on page 2, paragraph 4 and I quote -
"... the Security Forces then seemed reluctant to charge the applicant and the applicant was given a choice either to work with the Vlakplaas division of the South African Police as they put it to him or they will make a plan with him. The applicant understood that he would be killed."
MR CORNELIUS: I've covered that ... (microphone not on) ... but the fact is that he then obviously in a way accepted the political objectives of Vlakplaas and he was also strictly under the need to know basis and he had to carry out the instructions given to him.
CHAIRPERSON: We had that description, you were here a couple of weeks ago when an askari said before his arrest and turn, he was a soldier with a conscience and then afterwards, he was a soldier without a conscience.
MR CORNELIUS: Yes, that was well put Mr Chairman, and we also remember the incident of Johannes Mabotha on Penge Mine. It was very, very clearly impressed on his mind what his orders were and that he had to carry them out, but if we come to full disclosure, we find an interesting picture in this case. If you look at the statement he made in folio's 155 to 158, he gives us a complete picture. He paints a picture that he was instructed by Mamasela whom he considered as his senior to recruit people, he then furthermore went and trained them, which is supported by most of the statements and which is also supported by the victims. If we listen to Mr Mazibuko's evidence, this is exactly what happened. He was approached, requested and then they all 15 or 17 went in a mini-bus and they were trained, which is I think supports the observation made by yourself that they were young men that had to be trained in the use of firearms or handgrenades, and this is exactly what happened. So what I am stating although his evidence and his testimony might be elaborate and sometimes it looked like his answers were evasive, but I don't know what exactly the cause of that was, and then comical answers, it still gives us the full, full picture of exactly what happened. That is supported by Mr Mazibuko and the other statements and exhibits and that is what full disclosure is all about, Mr Chairman. I think there can be no doubt whatsoever that Mr Nkala although unsatisfactory in certain respects, made a full disclosure. I think we are more than entitled to ask to be granted amnesty as was prayed.
ADV GCABASHE: May I just ask you Mr Cornelius, do you think that he could be mixing up de Kock and Cronje where he is so certain that it was definitely de Kock who gave him particular instructions, but he hardly ever mentions Cronje? Do you think that that is possible?
MR CORNELIUS: Thank you Ms Gcabashe. I did not attack Mr de Kock, in re-examination I put it clearly to my client could you when you refer to Roelf Venter and de Kock, are you referring to the command structure, the way I perceived his answers was that he was referring to the command structure, he reported back to the command structure and he clearly said in his elaborate way, that there might have been times when de Kock wasn't there. I think the attack by my learned colleague is a little bit unwarranted on him, I think he made a full disclosure to his best ability. Thank you.
MR VISSER IN FURTHER ARGUMENT: Yes please Mr Chairperson, there are two points which have arisen. The one point, you put to me during my argument that Mr Mazibuko did not concede that they were waiting for arms, but if you check your notes Chairperson, you will find that he made exactly that concession. I put it to him referring to the arms, I said to him Mike and James could provide weapons and training and that is what you were waiting for and he said yes.
MR VISSER: No absolutely Chairperson. Again, it is not my case that it rests only on that they were waiting for it, it was the information that arms were involved. And then Chairperson, just one aspect, yes, please bear in mind that the evidence of Mazibuko, Veli Mazibuko, was also before the other Amnesty Committee who gave amnesty to Cronje and Venter. There is nothing before this Committee that wasn't before the other Amnesty Committee Chairperson, with respect. Thank you Chairperson.
CHAIRPERSON: Thank you. That then brings us to the conclusion of this hearing. We will reserve our decision in this matter. It also brings us to the end of our roll and I would like to thank everybody for making this hearing possible, we do it every time, but I would like to thank the legal representatives for their assistance in this matter, for the interpreters for working so hard and long each day and particularly today, where they have worked overtime, but at least they get tomorrow off, the security people from Correctional Services, the caterers, the sound