CHAIRPERSON: We are busy sitting at the Idasa Centre in Pretoria. The Panel is constituted as would be apparent from the record. The Leader of Evidence is still Mr Mapoma and the matter before us this morning is that of Embuso Enoch Tshabalala, amnesty reference AM5727/97. We have had a slight delay in starting with the proceedings this morning, which occasioned by the fact that a party with an interest in these proceedings incarcerated at a prison outside this city and there were some logistical difficulties in securing his attendance at the venue in that he had to travel from prison in the vicinity of Johannesburg to where we are sitting in Pretoria. I'll give an opportunity first to Mr Knight to place himself on record for the applicant.
MR KNIGHT: May it please the Committee, Mr Chairperson. My name is Julian Knight, I'm appearing on behalf of the applicant herein. We are ready to proceed.
CHAIRPERSON: Thank you Mr Knight. Mr Mapoma, the interested party, Mr Mbani, is he present?
MR MAPOMA: Thank you Chairperson. Yes, Chairperson, Mr Mbani is here present. Having been notified about this matter, he has indicated his intention to attend the hearing and the prison officials have brought him to this hearing.
CHAIRPERSON: There is a statement that was deposed to by Mr Mbani which was received by the Amnesty Committee. It appears on the 20 July 1997 according to the one endorsement and there's another endorsement on the front page bearing the stamp of the Truth and Reconciliation Commission which says "received 22 October 1997". That's just for purposes of identifying this document. Mr Mbani is aware that we're in possession of this document?
MR MAPOMA: Yes Chairperson, he's aware of us being in possession of this document and in fact he himself is in possession of that statement. I have consulted with him regarding that statement. He has confirmed having altered that statement and I have further, Chairperson, consulted with him regarding the contents of paragraph 38 of that statement which he has confirmed and he has also indicated that he adheres to the contents contained therein.
CHAIRPERSON: I assume otherwise he is present and simply listened to what the applicant says?
MR MAPOMA: Yes Chairperson, that is what he has indicated.
CHAIRPERSON: Very well. Yes, well under those circumstances we will proceed with the application and we'll administer the oath to your client, Mr Knight?
MR MAPOMA: May it please you, Chairperson, just before you proceed? May I for the record make the following announcement regarding the potential victims - I mean the victim and potential victim in this matter? Chairperson, we realise that the applicant seeks amnesty for attempted murder and murder. In respect of attempted murder which took place in Piet Retief. We have conducted investigations as to the whereabouts of the victims, but unfortunately in vain. Our investigators did go there but couldn't manage to get the victims, to locate the victims and we also went to the Magistrates' Court there to get the court documents. Only what we managed to get is the charge sheet which was intended for the prosecution for the applicant in this matter, nothing else we could find. We also contacted, Chairperson, attorney Mr Grey who represented the applicant in the bail application for that matter in Piet Retief. He has also indicated to us that he does not have the particulars of the person who was a potential victim in that incident. We also, Chairperson, in respect of both these matters sent a newspaper advertisement requesting these persons, the next-of-kin of Pat Mafuna who was murdered but unfortunately we have not received response. May I just point out, Chairperson, that that advert appeared in the Star Newspaper dated Monday 23rd October 2000. As I say, no response has been received. In the circumstances, Chairperson, it is my submission that all reasonable steps have been taken to locate with a view to notify the victims and interested parties in this matter, but in the circumstances I ask the Committee to proceed with this matter.
CHAIRPERSON: Very well, thank you Mr Mapoma. We have noted all of that and in the circumstances it's clear that all reasonable steps have been taken to locate and secure the possible attendance if they so wish of any victims of these incidents and that it's in the interests of justice to proceed with the application.
EMBUSO ENOCH TSHABALALA: (sworn states)
EXAMINATION BY MR KNIGHT: Thank you Mr Chairperson.
Chairperson, before I proceed with evidence if I can just place on record the annexures that I have prepared for the hearing and as a follow up to what Mr Mapoma, the Evidence Leader, has brought to your attention regarding the information relating to the documents. I have, through the Attorney General's officer, attempted to locate the docket which arose from the Piet Retief incident and apart from them doing a comprehensive search they could find no record other than what we had supplied them. I then contacted Attorneys Solomon and Nicholson who acted in the bail application and all they could give me was the charge sheet as well as the further particulars with no reply to the further particulars and then the appeal, the
notice of appeal which was lodged in respect of the bail refusal by the magistrate in Piet Retief. There's nothing further that one has been able to get from the Attorney General's office, so there's a paucity of information there.
Mr Chairperson, further to that I have also prepared as annexure B and C details relating to Mr Tshabalala's identity and his change of identity to Mvuso which I will lead in evidence, that it explains the different names and if you have regard to the witness statement of Mr Mbani at paragraph 38, he refers to Mvuso. Now that Mvuso is the other identity that Mr Tshabalala was forced to have. If I may proceed then to lead Mr Tshabalala?
CHAIRPERSON: Yes, then very well, we will mark the statement that I've referred to earlier of Mr Mbani as Exhibit D. Very well Mr Knight, you can proceed with the evidence.
MR KNIGHT: Thank you Chairperson.
Mr Tshabalala, you are the applicant in this matter, is that correct?
MR TSHABALALA: That is correct.
MR KNIGHT: Your amnesty application is before this Committee at pages 1 to 20, do you confirm that?
MR TSHABALALA: Yes.
MR KNIGHT: Mr Tshabalala, before we deal with the incidents is it correct that you joined the African National Congress in 1978 and you were with them until 1981?
MR TSHABALALA: Yes that is correct.
MR KNIGHT: When you were with the African National Congress did you receive training in the use of weapons and explosives?
MR TSHABALALA: That is correct.
MR KNIGHT: Whereabouts did you receive training?
MR TSHABALALA: In Angola and East Germany..
MR KNIGHT: Now when you returned to South Africa in - well before we get to your return, when you were with the ANC did you know Pat Mafuna?
MR TSHABALALA: Yes that is correct, I was once with him during the training.
MR KNIGHT: What was his training in or what was he trained in?
MR TSHABALALA: I found him in Angola, we were together in the training.
MR KNIGHT: Was he also trained in weapons and explosives?
MR TSHABALALA: Yes that is correct.
MR KNIGHT: Now in 1981 you handed yourself over to the South African Police at Ermelo, is that correct?
MR TSHABALALA: Yes that is correct.
MR KNIGHT: From Ermelo you were transported to where?
MR TSHABALALA: Yes that is correct.
MR KNIGHT: Well let me just - is it correct that you were transported to Pietermaritzburg?
MR TSHABALALA: That is correct.
MR KNIGHT: And from Pietermaritzburg you then worked with the Newcastle Police, is that correct?
MR TSHABALALA: Yes that is correct.
MR KNIGHT: And this was prior to you being transferred to Vlakplaas, is that correct?
MR TSHABALALA: Yes that is correct.
MR KNIGHT: Now when you were working with the Newcastle Police prior to being transferred to Vlakplaas did you see Pat Mafuna again?
MR TSHABALALA: Yes I saw him in Ermelo.
MR KNIGHT: And who was he working for at that time?
MR TSHABALALA: He was with the people from Vlakplaas.
MR KNIGHT: So at that time before you got to Vlakplaas he was an askari working with Vlakplaas?
MR TSHABALALA: Yes that is correct.
MR KNIGHT: Now is it also correct that in about 1982 you were transferred to Vlakplaas?
MR TSHABALALA: Yes that is correct, in 1982.
MR KNIGHT: Who was your commanding officer at the time?
MR TSHABALALA: I think it was Coetzee and Vermeulen.
MR KNIGHT: That would be Capt. Jan Coetzee, is that correct?
MR TSHABALALA: Yes that is correct.
MR KNIGHT: Thank you. Capt. Vermeulen was one of his officers, is that correct? Is that Snor Vermeulen?
MR TSHABALALA: No, it is not Snor, I cannot remember his name.
MR KNIGHT: But it is Capt. Vermeulen?
MR TSHABALALA: Yes that is correct.
MR KNIGHT: Now when you arrived at Vlakplaas you were then appointed as a constable, is that correct?
MR TSHABALALA: Yes but that process took some months before I got to that position.
MR KNIGHT: Can you recall when you received your appointment certificate?
MR TSHABALALA: I cannot remember.
MR KNIGHT: Was it in 1982 or later?
MR TSHABALALA: I think it was later than that, '83 perhaps, I'm not sure.
MR KNIGHT: Okay. Now during 1982 you were deployed to Piet Retief, is that correct?
MR TSHABALALA: Yes that is correct.
MR KNIGHT: What was the purpose of your visit to Piet Retief?
MR TSHABALALA: Because of the nature of the job that we were doing we were looking for weapons and hunt for the people who were in exile and get explosives and weapons.
MR KNIGHT: So is it correct that you at that time were an askari, what is referred to as an askari?
MR TSHABALALA: Yes that is correct.
MR KNIGHT: And your job was to identify members of the ANC as well as weapons?
MR TSHABALALA: Yes that is correct.
MR KNIGHT: Now who was with you that day in Piet Retief?
MR TSHABALALA: I was with Const. Mutwa, I cannot remember his first name.
MR KNIGHT: Now Const. Mutwa, did he come from Piet Retief or was he from Vlakplaas?
MR TSHABALALA: He was from Vlakplaas but I think he was from Kwa-Zulu Natal originally.
MR KNIGHT: I see. Now your purpose that day was to go into Piet Retief into the residential area to look for MK cadres, is that correct?
MR TSHABALALA: Yes that is correct.
MR KNIGHT: What happened that day?
MR TSHABALALA: On that particular day Mutwa was known by the people because a few months before that he was working there. A group of people approached him because they were suspecting him as a policeman. Those people when they approached us, they wanted to fight us but I tried to run away because we couldn't fight those people. As they approached we tried to shoot. After shooting a lot of them came closer and we were defeated and they pelted us with stones and I fell and I was unconscious and when I regained my consciousness I was in hospital.
MR KNIGHT: Who fired the initial shots at the crowd?
MR TSHABALALA: It was myself.
MR KNIGHT: Now at the time you did not know who the members of the crowd were. I want to refer you to page 22 of your amnesty application which is 22 of the bundle which refers to a name Leonard Mkhumalo. Did you know him at all, this Mr Mkhumalo?
MR TSHABALALA: No.
MR KNIGHT: And did you receive any benefit for this incident?
MR TSHABALALA: No, not at all.
MR KNIGHT: Now I want to move now from the incident - you were then, just for completeness sake, were you arrested immediately after this incident and did you appear in court or can you tell the Committee what happened with the criminal charges here?
MR TSHABALALA: That incident we went to the hospital. After that we were taken to the police station. We were put in the cells and the following morning we were released.
MR KNIGHT: Into whose custody were you released? Were you just released and were you able to just go or did somebody from Vlakplaas come and fetch you?
MR TSHABALALA: Capt. Vermeulen came to fetch us.
MR KNIGHT: And from there what happened?
MR TSHABALALA: After our release we left with him and he gave us a warning and he gave us some kind of punishment.
MR KNIGHT: Now I want to move - and you didn't appear in any criminal - when did the Police arrest you for this matter because you spent a time in Piet Retief prison?
MR TSHABALALA: After a very long time and I was no longer in the Police Force but we continued with our job. After a year, after leaving the Police Force. The Police came, they were coming to see me concerning this case.
MR KNIGHT: And is it correct that after you applied for amnesty to the Truth Commission that you were then released by the Attorney General's office?
MR TSHABALALA: Yes that is correct.
MR KNIGHT: Thank you. Moving now to the incident in respect of the murder of Mr Pat Mafuna, can you recall what date it was that it occurred, the year that the murder occurred?
MR TSHABALALA: I cannot remember.
MR KNIGHT: Is it correct to say it would be between 1982 and 1986, somewhere in that area?
MR TSHABALALA: Yes, that is possible.
MR KNIGHT: Who was your commander at that time?
MR TSHABALALA: It was Eugene de Kock.
MR KNIGHT: And can you recall what his rank was at that time?
MR TSHABALALA: I think he was a major.
MR KNIGHT: He was a major. Now regarding Pat Mafuna, is it correct that he had escaped or defected from Vlakplaas?
MR TSHABALALA: Yes that is correct.
MR KNIGHT: When you arrived at Vlakplaas at the end of 1982, was Pat Mafuna still at Vlakplaas or had he escaped by that time?
MR TSHABALALA: He had already escaped at that time.
MR KNIGHT: At the time, at this point in time, at the time of his murder, you were appointed as a policeman, is that correct? You were a constable?
MR TSHABALALA: Yes that is correct.
MR KNIGHT: Now were you people given any specific orders with regard to Pat Mafuna and by whom were you given those orders?
MR TSHABALALA: We got orders from Vermeulen and De Kock.
MR KNIGHT: Regarding what?
MR TSHABALALA: As Pat Mafuna was regarded as a highly dangerous person so we were told that if we can find him, even if we can kill him, that wouldn't be a problem because he was highly dangerous.
MR KNIGHT: Was it also danger with Pat Mafuna that he knew of the existence of Vlakplaas and the people that were working there? That was an additional danger that he posed?
MR TSHABALALA: Yes that is correct.
MR KNIGHT: Now moving to the day in question, you were as I understand it, working with Mr Mbani, is that correct?
MR TSHABALALA: Yes that is correct.
MR KNIGHT: And you were somewhere at the taxi rank at the Baragwanath Hospital which is near to Checkers the shop?
MR TSHABALALA: Yes.
MR KNIGHT: In your own words, can you tell the Committee what happened and slowly?
MR TSHABALALA: It was early in the morning when we got to Baragwanath Hospital. We were driving in a Kombi. We alighted from the Kombi. We walked around the place ...(intervention)
MR KNIGHT: Just before you continue, what was your purpose that day, what were you doing at Baragwanath?
MR TSHABALALA: We went there to identify those people and look for weapons or anything that would be regarded as dangerous.
MR KNIGHT: Now those people, are you referring to members of the liberation movements, MK cadres?
MR TSHABALALA: Yes, PAC and ANC.
MR KNIGHT: And at that time were you on duty as a constable?
MR TSHABALALA: Yes that is correct.
MR KNIGHT: Thank you, please continue?
MR TSHABALALA: I met with Pat Mafuna as I was walking with Mbani. I called him by his name. I told Jimmy that I know this person and I called him. He got a shock, he ran away. We followed him together with Jimmy. He went to the other direction of the shopping complex and when he was there Jimmy tried to reach for him. They wrestled with Jimmy and he got hold of Jimmy's firearm and it looked like he was overpowering Jimmy and Jimmy fell but I managed to get hold of Jimmy's firearm. I told Mbani to step aside ...(intervention)
MR KNIGHT: Sorry, who did you tell to step aside?
MR TSHABALALA: I told Jimmy to step aside, Jimmy Mbani.
MR KNIGHT: Now just before you proceed. When you first saw Pat Mafuna that day, was he carrying anything?
MR TSHABALALA: He had a paper bag.
MR KNIGHT: At the time that the scuffle ensued, what had become - the scuffle that ensued between Jimmy and Pat Mafuna, what had become of the packet?
MR TSHABALALA: He put it down when he realized he was coming closer. I think the paper bag fell.
MR KNIGHT: And when you had possession of Jimmy's weapon and you ordered Jimmy to move away from Pat Mafuna, what did Pat Mafuna do?
MR TSHABALALA: He wanted to reach for his paper bag but now I was in between him and the paper bag but at a distance of about four metres.
MR KNIGHT: Did you know what was in the paper bag?
MR TSHABALALA: No, I think there were some articles inside. It looked like there was something in the paper bag inside. How big was the paper bag?
MR KNIGHT: It is the biggest size of those plastic bags, the bigger size.
MR TSHABALALA: What happened then?
MR KNIGHT: When I saw that he was trying to reach for his paper bag he came to my direction and I fired three bullets and he fell.
MR KNIGHT: Where did the bullets strike Pat Mafuna?
MR TSHABALALA: The first one hit him just next to the shoulder and the two hit him on his chest.
MR KNIGHT: Now immediately after you fired those shots, can you tell the Committee what happened?
MR TSHABALALA: After firing shots the security guard from the shopping complex started firing towards our direction, we ran away towards the filling station but we couldn't fire any more. We went straight to the filling station.
MR KNIGHT: How far was the filling station away from the point that you had fired the shots? How many metres?
MR TSHABALALA: I think it was 20 to 30 metres.
MR KNIGHT: And what happened when you got to the petrol station?
MR TSHABALALA: When we arrived there we got inside the garage and we closed the doors and we asked for the manager and we produced our identity documents and we asked them to call Protea Police Station to tell them that we're in trouble.
MR KNIGHT: Now you say identity documents, do you mean appointment certificate? Police appointment certificate?
MR TSHABALALA: Yes that is correct.
MR KNIGHT: What happened after that, after the Protea Police Station was called?
MR TSHABALALA: It took a while and the police from the Protea Police Station came and the others who were in the Kombi with us came.
MR KNIGHT: Did they come in a convoy?
MR TSHABALALA: Yes I think about four cars arrived.
MR KNIGHT: What happened thereafter, were you then taken away from the scene?
MR TSHABALALA: Yes we were taken to the Protea Police Station and the senior officers were left behind.
MR KNIGHT: And from the Protea Police Station, where were you taken?
MR TSHABALALA: From the Police Station, I think we continued working late and thereafter we went back to Vlakplaas.
MR KNIGHT: When you got back to Vlakplaas did you ever hear of this matter again?
MR TSHABALALA: No, we were told that Pat had died.
MR KNIGHT: Were you ever charged departmentally or criminally with this matter?
MR TSHABALALA: No we never appeared in court, we were never charged.
MR KNIGHT: Now at the time of the murder you were acting in the course and scope of your employment with the Police, is that correct?
MR TSHABALALA: Yes that is correct.
MR KNIGHT: Did you regard your actions as actions in the defence of the Republic of South Africa and aimed at a liberation movement such as the ANC or the PAC?
MR TSHABALALA: Yes that is correct.
MR KNIGHT: And it is correct that Pat Mafuna was a member of the ANC?
MR TSHABALALA: Yes.
MR KNIGHT: Did you receive any reward for your actions?
MR TSHABALALA: No.
MR KNIGHT: Mr Chairperson, I have no further evidence to lead unless there's anything else that you wish me to lead upon?
CHAIRPERSON: Yes. So the application concerns the two incidents only?
MR KNIGHT: That is correct, Chairperson, the application would be applying for amnesty for the attempted murder at Piet Retief of Leonard Mkhumalo and the murder at Baragwanath of Pat Mafuna.
CHAIRPERSON: Yes, not the other incident that seems to be on the form?
MR KNIGHT: Mr Chairperson, that regards the incident of Ndondo and that has already been heard by Justice Miller.
CHAIRPERSON: Thank you Mr Knight. Any questions Mr Mapoma?
NO FURTHER QUESTIONS BY MR KNIGHT
CROSS-EXAMINATION BY MR MAPOMA: Thank you Chairperson.
When you had a conflict, when you were approached by those people in Piet Retief whom you say knew your colleague Mr Mutwa, where exactly were you?
MR TSHABALALA: We were in the township but I do not know the name of the place.
MR MAPOMA: I didn't hear you? Where in the township?
MR TSHABALALA: It was in the township.
MR MAPOMA: Yes, where exactly were you, in somebody's place?
MR TSHABALALA: We were on our way out of a certain house.
MR MAPOMA: What have you been doing in that house?
MR TSHABALALA: Mr Mutwa, I think he was looking for some information in that house so we met these people on our way out.
MR MAPOMA: Were you on foot?
MR TSHABALALA: Yes that is correct.
MR MAPOMA: Was it the only two of you?
MR TSHABALALA: Yes we were deployed in twos.
MR MAPOMA: So are you saying you were just dropped there to go on foot and the vehicle left you, is that what you're saying?
MR TSHABALALA: Yes, they would leave us at a certain spot and we would know where to get the car when we were about to leave.
MR MAPOMA: And I understand your evidence as that you didn't know those people, they knew Mutwa. Did Mutwa tell you who those people were?
MR TSHABALALA: No, but I heard in their conversation that these people knew each other, knew one another.
MR MAPOMA: Yes. Now when these people were attacking you can you say of any reason why they were attacking you?
MR TSHABALALA: I can say I heard that Mutwa and the others attacked a certain house therefore these people knew him.
MR MAPOMA: Now you say Vermeulen gave you a warning and a certain punishment. Why did Vermeulen give you that warning and that punishment?
MR TSHABALALA: I think there were other policemen in Piet Retief, maybe he was doing this because he was trying to prove something to the other police officers who were there.
ADV SANDI: But sorry, what kind of punishment was this anyway?
MR TSHABALALA: He took a stick.
CHAIRPERSON: Yes?
MR TSHABALALA: He hit us twice at the back.
ADV BOSMAN: Didn't he tell you why he was hitting you?
MR TSHABALALA: I think he was hitting us because of the incident that had taken place in the township.
CHAIRPERSON: Yes, Mr Mapoma?
MR MAPOMA: What warning did he give to you?
MR TSHABALALA: He made us lie on the bench and he hit us twice, each of us twice.
MR MAPOMA: Yes. What verbal warning did he give you. What did he say to you for what happened?
MR TSHABALALA: He asked Mutwa as to why, he wanted to know why I was in possession of a firearm, he asked Mutwa.
ADV SANDI: Sorry, just explain that to me, I can't understand it. Were you not supposed to be in possession of a firearm as an askari?
MR TSHABALALA: I had left my firearm in the car. Yes I was supposed to be carrying a firearm.
ADV SANDI: Why then did he have a problem with the fact that you were in possession of a firearm?
MR TSHABALALA: The problem was the fact that I had used this firearm that belonged to Mutwa. I think that was the reason.
ADV SANDI: Yes but I thought that you were defending yourselves in that situation. Were you not protecting yourselves?
MR TSHABALALA: Yes, we were defending ourselves.
ADV SANDI: Thank you.
MR MAPOMA: Had you not been attacked by those people would you have taken an action against them?
MR TSHABALALA: Please repeat the question?
MR MAPOMA: I'm saying had those persons at whom you shot not attacked you would you have shot at them or at ...(indistinct) at all?
MR TSHABALALA: No, we would not do that.
MR MAPOMA: Why? Those people were against Mutwa, that's what you have said. Why would you not shoot at them?
MR TSHABALALA: If they had not attacked us we were not going to do anything to them, we were going to continue with our work but they shot at - they attacked us and they pelted us with stones, that's why I had to shoot.
MR MAPOMA: Mr Tshabalala, I'm still not clear. I want to find out why did actually Mr Vermeulen disapprove of what you did? Because from your evidence it appears that he was not happy with what you did? He warned you, he assaulted you for that, punished you, so to speak. What did he say that which was wrong to you, what you did?
MR TSHABALALA: I can say Mr Vermeulen was against Mutwa because I was just newly recruited in the Police, Mutwa had been there for quite a long time. I was only there for a month when I was deployed with him.
MR MAPOMA: That doesn't make sense, he didn't assault Mutwa only. You yourself was punished? Is that so?
MR KNIGHT: Mr Chairperson, as I understand it both were and furthermore he's asking the witness to speak on behalf of somebody. I think it's a bit of an unfair question.
CHAIRPERSON: Let's just clear things up. You were both beaten by Vermeulen, not so?
MR TSHABALALA: Yes that is correct.
CHAIRPERSON: So he also didn't like what you were doing?
MR TSHABALALA: I think when he was assaulting us it is surely because there were other policemen from Piet Retief who were there with us when they came to fetch us from the hospital.
CHAIRPERSON: How do you know that?
MR TSHABALALA: When I regained consciousness the police from Piet Retief came to fetch me.
CHAIRPERSON: Yes but now I don't understand what you are trying to convey. You say that he had beaten you because there were other police present?
MR TSHABALALA: I can say when we got to this particular place with Mutwa, Mutwa got inside the house, I remained outside. It was not necessary for us to go in there, we were expecting to get something but Mutwa got inside the house. That's when this whole thing started.
CHAIRPERSON: What was he busy with there inside, Mutwa?
MR TSHABALALA: At the time he hadn't told me what happened inside the house and who was inside. When we got out of the house he was actually rushing and then he wanted us to rush and get out of the house. That is when we got these people on our way our of this house.
CHAIRPERSON: So it looked like he'd caused trouble there inside, Mutwa?
MR TSHABALALA: In this particular house there was a suspect and a raid was supposed to be conducted in that particular place but Mutwa decided to go in there during the day, of which we were supposed to raid the house because he knew the house, Vermeulen that is, he had the number and he knew the house. He asked us as to why did we go into that house during the day because it was not necessary for us to go during the day because we were to raid the house later and the people who were outside identified Mutwa after getting into this house. It was not necessary for us to go in there, we were supposed to just check the place and leave but Mutwa decided to go inside the house, that's how this whole thing started.
CHAIRPERSON: And Vermeulen didn't like that?
MR TSHABALALA: It meant that the raid failed because we went there, we couldn't go on with the raid.
CHAIRPERSON: What was wrong with Mutwa?
MR TSHABALALA: What the problem was, I think he's a person who led to this whole operation to be aborted because later a raid was going to take place in that particular house.
CHAIRPERSON: Was he normal, Mutwa? His condition?
MR TSHABALALA: As far as I'm concerned he was normal.
CHAIRPERSON: Was he drinking?
MR TSHABALALA: Yes.
CHAIRPERSON: So he had been drinking, Mutwa?
MR TSHABALALA: Yes he had some drinks but not that much.
CHAIRPERSON: And you?
MR TSHABALALA: I was still sober, I was not allowed to drink because I was still a newcomer.
CHAIRPERSON: And Vermeulen, was he aware that this man was drinking?
MR TSHABALALA: He knew that he was drinking.
CHAIRPERSON: And this thing that he did, to just go on his own to go into a house that he was not supposed to have gone into, that was totally wrong, not so? You were never told to do that?
MR TSHABALALA: He was very angry because of that, he was angry because of the fact that we had gone to that house.
CHAIRPERSON: Yes. Yes Mr Mapoma?
ADV SANDI: Sorry, Mr Mapoma, just on this last aspect by the Chair.
When you were leaving this house you say there was a group of people who were approaching. Was Mr Mutwa so drunk that he could not even use his firearm? That's the impression I get from your statement.
MR TSHABALALA: No, not to that extent.
ADV SANDI: But at page 13, paragraph 15, the last sentence on that paragraph, you say
"As Const. Mutwa had been drinking he handed his firearm to me and instructed me to fire a warning shot."
Why did he not fire the warning shot himself?
MR TSHABALALA: It is because his firearm was with me. We were running away at the time. We shot as we were running away.
ADV SANDI: So this thing that says here, "he handed his firearm to me" isn't correct? He never gave you his firearm?
MR TSHABALALA: He had given me his firearm.
ADV SANDI: Why? Did he not need the firearm to protect himself?
MR TSHABALALA: I think we were in a position to defend each other. We didn't think that the situation would turn out that way. We were not expecting anything to happen.
ADV SANDI: Was he very drunk?
MR TSHABALALA: No, not that bad.
ADV SANDI: You had not taken any alcohol that day, had you?
MR TSHABALALA: No, I was sober.
ADV SANDI: Where was he drinking?
MR TSHABALALA: I think he had started at the border gate, Mahamba, because he moved from the border gate but I did not notice how much drink he was taking at that particular time.
ADV SANDI: Are you sure you were not punished by Vermeulen because this incident had occurred because of you people being drunk?
MR TSHABALALA: I think it is because Mutwa had disturbed this whole mission because he went to that house just before the raid, that's what made him to be angry.
ADV SANDI: Okay. Thank you Mr Mapoma.
ADV BOSMAN: Can I just ask? When did Mutwa give his firearm to you, how long before you fired these shots?
ADV SANDI: After alighting from the vehicle he gave me his firearm.
ADV BOSMAN: Ms interpreter, I didn't get that. After I came from?
INTERPRETER: After we alighted from the vehicle he gave me his firearm.
ADV BOSMAN: Thank you.
MR MAPOMA: Thank you Chairperson.
ADV SANDI: Mr Mapoma just - yes but is that before you see this group of people coming on to you when he gives you his firearm because in your statement you say you first saw a crowd of people approaching then he gives you his firearm instructing you to shoot, to fire a warning shot?
MR TSHABALALA: Though I cannot remember, I think he gave me before we'd meet this group of people. When we met with this group of people the firearm was already in my possession. I think he gave me before getting into this house. When he got into this house the firearm was already with me, that's what I think.
ADV SANDI: And I understood you to say that your own firearm you were leaving it in the vehicle, not so?
MR TSHABALALA: Yes that is correct.
ADV SANDI: But that sounds very strange to me, you leave you own firearm in the vehicle, you are in the company of Mutwa, he gives you his own firearm. Just explain that? Why would you have to leave your firearm in the vehicle, your own firearm.
MR TSHABALALA: We were not going to that particular house, we were going to walk past the house and then we would meet the Kombi and the driver somewhere else. We were just going to quickly inspect who is inside the house and walk past. It was not intended that we should get inside the house.
ADV SANDI: Okay. Thank you Mr Mapoma.
MR MAPOMA: Thank you, Chair.
When you approached Pat Mafuna, what was your intention? What did you intend to do to him or of him?
MR TSHABALALA: We wanted to capture him and take him to the car, that's what we wanted.
MR MAPOMA: And then, if you got him to the car what would you do?
MR TSHABALALA: We would take him to Protea Police Station.
MR MAPOMA: Did you have any intention at all the kill him on site?
MR TSHABALALA: No, we did not intend to kill him but because of the situation we had to kill him because we did not know what he had as a trained person but our intention was to take him to the Protea Police Station.
MR MAPOMA: Were you ever instructed by your commander to kill him wherever you find him?
MR TSHABALALA: The way Vermeulen put it when I arrived there, he told us that this person had escaped. If we happened to get hold of him we can arrest him but if we cannot find him still it's not a problem but this person was dangerous because he had all the information from Vlakplaas. We had tried to chase him but it became difficult because he managed to get hold of Mbani's firearm and we didn't even know what was in his paper bag.
MR MAPOMA: So from this long winded answer you give to me, is it correct that you never received orders to kill Pat Mafuna wherever you find him?
MR TSHABALALA: Please repeat the question?
MR MAPOMA: What I want to find out is, did you ever receive orders to kill Pat Mafuna wherever you find him?
MR TSHABALALA: Yes I did receive that order that we should get him dead or alive but we should try and get him, that was the order from Capt. Vermeulen.
MR MAPOMA: When you opened fire on him, what was your aim? The first shot, what was the aim?
MR TSHABALALA: The first shot was trying to stop him from reaching for his paper bag because I did not know what was in his paper bag and I knew very well that this person was a trained person so he cannot go around without nothing. I shot him on his shoulder because he was going to get hold of his paper bag and then he fell and I shot him for the third time.
ADV SANDI: Okay, when you shot him for the first time on the shoulder, you say he fell onto the ground, fell down?
MR TSHABALALA: No.
ADV SANDI: Okay let us take this step by step. You fired the first shot, what happened to him?
MR TSHABALALA: He came trying to get hold of his paper bag.
ADV SANDI: Then you fired the second shot?
MR TSHABALALA: When I shot the second time he was picking his paper bag and I shot him for the third time.
ADV SANDI: Were you not between him and the paper bag?
MR TSHABALALA: I was just in the middle but the distance was at a distance therefore in order for him to get to his paper bag he would go via me, he would come towards me before he could get his paper bag because Jimmy was standing next to me.
ADV SANDI: Just give us a picture of this. While still there was this scuffle between him and Mbani you were still standing between him and the paper bag?
MR TSHABALALA: As there was this scuffle between him and Jimmy I was coming running, they left me behind so I was coming running behind them. When I arrived there, Jimmy was underneath and they were wrestling. I tried to get hold of the firearm. I held his hand and I got the firearm and Jimmy was already tired by the time and he tried to reach for his paper bag, that's when I shot him.
ADV SANDI: Do you say you were concerned that there was something in this paper bag which he could grab and try and attack you with it?
MR TSHABALALA: Yes that's what came to our mind, that's what came to my mind, because he didn't want to run away, he wanted to get his paper bag. I thought he was going to run taking another direction but he wanted to get the paper bag.
ADV SANDI: Why did you not take this paper bag away from him to prevent him from gripping whatever is contained in the bag and attack you with? Why not just simply remove it away from him? He's busy having a scuffle with Mbani, your colleague?
MR TSHABALALA: The situation wouldn't allow me because I was already tired. I was tired of running.
ADV SANDI: Was the paper bag too far away from you? How far was it, I thought it was four to five metres away from you?
MR TSHABALALA: Yes it was at a distance at about four metres.
ADV SANDI: So you were so tired that you could not even walk four to five metres and take this potentially dangerous paper bag away from him?
MR TSHABALALA: I couldn't go and get the paper bag.
ADV SANDI: Sorry, Mr Mapoma.
MR MAPOMA: Thank you.
Now from your evidence, Mr Tshabalala, it appears that what caused Pat Mafuna's life is his running for that paper bag, is that correct?
MR TSHABALALA: It is because we lost hope because I knew him as a well trained person and there was this paper bag that he was trying to get.
MR MAPOMA: Yes, what I'm saying, had he not rushed for that paper bag you would not have shot him, isn't that so?
MR TSHABALALA: He was supposed to be arrested, we were supposed to take him to Protea Police Station if he had allowed us to do that as we had tried.
MR MAPOMA: You are not answering my question. My question is very clear. Had he not rushed for the paper you would not have shot him, is that correct?
MR TSHABALALA: I cannot say yes or no.
MR MAPOMA: Why can't you? Because your evidence is that you wanted to apprehend this man, that's what your intention was? You never intended to shoot him on sight, yours was to arrest him, that's what you intended to do and he rushed for that bag, that's how you shot him, isn't that so?
MR TSHABALALA: He was a wanted person that's what made me to shoot him is because he was a highly dangerous person, that's what made me to shoot him. We were told about him that this person was dangerous. That is the reason that made me to shoot him and we did not even know what was in his paper bag. I can say there was quite a number of reasons.
MR MAPOMA: Oh, the reason why you shot him now is no longer because he was rushing for that paper bag but because he was a dangerous person, he had to be killed. Is that what you're saying now?
MR TSHABALALA: Yes because the instruction, I tried to do as instructed and they did not want us to lose him because I was also going to be in trouble if I had to let him go.
ADV SANDI: Were you able to find out in the end as to what exactly was contained in this bag which you were so concerned about?
MR TSHABALALA: The senior officers from Protea and my other colleagues want that paper bag and we went to Protea. They took him to the hospital and they took everything that was in that paper bag.
ADV SANDI: Yes but before the senior officers came to the scene didn't you personally inspect this bag to find out what was contained in it?
MR TSHABALALA: We were told to get into the cars and go to Protea Police Station and continue the work. We were not given the chance of going back to the scene. The senior officers went there.
ADV SANDI: Didn't you say there were a lot of people around there? Members of the public?
MR TSHABALALA: After the shooting there were people who were coming from the shopping complex after hearing the gunshots.
ADV SANDI: Can you just give the reason again? Why didn't you go to this place and inspect it before you went to the filling station where you ask the police to come and help y you?
MR TSHABALALA: It was difficult for us to go back to the scene because there were security guards who were firing. We couldn't go back because the shots were directed at us, that's why we had to run to the filling station. We had to phone the police station, Protea Police Station to come and rescue us because the security guard did not know that we were Police. It's only when the manager of the filling station realised that we were working with the police therefore it became difficult for the two of us to go back to the scene.
ADV SANDI: Did you ever ask Vermeulen what he found in that bag?
MR TSHABALALA: I don't think it was Vermeulen who went there. I cannot remember but Vermeulen was not present. The White man that we were working with was a different person under Mr de Kock's command. They couldn't explain to us, they told us that Pat had died, that's all we were told.
ADV SANDI: Sorry, Mr Mapoma about that.
MR MAPOMA: How many shots did you fire at Pat Mafuna?
MR TSHABALALA: If I'm not mistaken I only shot three times.
MR MAPOMA: After you shot him why did you not take the bag?
MR TSHABALALA: The security guards who were guarding the shopping complex starting shooting therefore we had to run away towards the filling station. We couldn't get the paper bag because the security guards were shooting at us.
MR MAPOMA: And prior to you shooting him you couldn't take the bag back because you were tired?
MR KNIGHT: Mr Chairperson, I think the evidence was clearly that prior to shooting there was a scuffle and that he was wrestling the weapon and I think it's an unfair question to ask.
CHAIRPERSON: Well, let's just clarify this. When were you tired? When my colleague, Adv. Sandi, was asking questions you spoke about being tired? When was that?
MR TSHABALALA: I felt tired when we arrived there when I got hold of Jimmy's firearm. I was already tired at the time. I managed to get the firearm.
CHAIRPERSON: Yes, Mr Mapoma? Perhaps you want to clarify this?
ADV SANDI: Sorry, just on this aspect of being tired, were you able to run to the petrol station as a tired man or were you still tired when you had to run towards the petrol station to solicit assistance?
MR MAPOMA: As we were running towards the filling station I was just running but I was tired. I just wanted to get out of sight. The filling station was not far from the shopping complex.
MR MAPOMA: Now in precise terms, when there was a scuffle between Jimmy Mbani and Pat Mafuna, Pat Mafuna trying to rush for the bag, why did you not take that bag?
MR TSHABALALA: I saw that the firearm was already in Pat's possession. I decided to rush to get that firearm instead of rushing for the paper bag because he already had a firearm and he was overpowered. I decided to get hold of the firearm instead of the paper bag.
MR MAPOMA: Which firearm now was in Pat Mafuna's hands?
MR TSHABALALA: It was Jimmy's firearm. Pat managed to get hold of Jimmy's firearm and Jimmy was lying underneath and he was overpowered but he was still holding him. I reached for Pat's hand and I managed to get the firearm.
MR MAPOMA: So Pat didn't shoot with that firearm?
MR TSHABALALA: He couldn't, he failed. He failed to shoot because Jimmy was still holding him and there was no time, they were wrestling with this firearm. That's when I came and got this firearm.
MR MAPOMA: Thank you Chairperson, I have no further questions.
NO FURTHER QUESTIONS BY MR MAPOMA
CHAIRPERSON: Thank you. Can I just try to complete this picture? Mbani holds onto this man, you take the gun out of his hand. Is that what happened?
MR TSHABALALA: I stepped backwards. I told Jimmy also to step aside and he reached for his paper bag, that's when I shot him.
CHAIRPERSON: Why didn't you go for the paper bag?
MR TSHABALALA: It was very difficult for me to get that paper bag because I thought if I shoot him he would fall but I realised that he was continuing, that's when I shot him for the second and third time.
CHAIRPERSON: No, but why was it difficult for you to go for the paper bag?
MR TSHABALALA: It was difficult for me to get that paper bag. I decided to shoot him because I wanted him to stop.
CHAIRPERSON: Yes, I know that.
MR TSHABALALA: But he refused, he continued walking.
CHAIRPERSON: Yes, yes, yes, we've heard that. But now I'm asking you why was it difficult for you to go for the bag?
MR TSHABALALA: I think it was another distance for me and for me to get that paper bag and I didn't even know what was in the paper bag, that's why I decided to shoot him because I did not want him to get there.
CHAIRPERSON: Was there anything that stopped you from getting hold of the paper bag?
MR TSHABALALA: I had no way of preventing him to getting that paper bag.
CHAIRPERSON: Sorry, sorry, Ms Interpreter, I'm asking was there anything that prevented you from getting the paper bag?
MR TSHABALALA: The security guards shot at us and if the security guards did not shoot maybe I could have been able to get the paper bag.
CHAIRPERSON: Well that is precisely the question. You took the firearm out of Pat Mafuna's hand, no shots were yet fired. Mbani and he - Mbani is holding onto him where they're lying on the ground there, no shots are fired, you're standing with a gun. Was there anything that stopped you from getting the paper bag?
MR TSHABALALA: I told Mbani to step aside ...(intervention)
CHAIRPERSON: Yes I know that, I'm sorry to interrupt you but I don't want you to repeat the evidence you've given, I want you to respond to the question that has been asked of you. Was there anything that stopped you from reaching, from getting hold of the paper bag?
MR TSHABALALA: I can say the other reason for me not to get the paper bag, there were people around, there was a crowd therefore I was reluctant to go there. The crowd was following us as we were chasing him from the vicinity of Bara therefore I couldn't get inside that crowd and get the paper bag, I was reluctant to do so. As Mbani was chasing him, holding a firearm, people came following and they were also running. I was reluctant to go there and get that paper bag.
CHAIRPERSON: So you had to go through the crowd to get to the paper bag?
MR TSHABALALA: Yes, people were coming closer to us and Mbani was at a distance and the people were already there.
CHAIRPERSON: Yes, but I'm trying to understand what you're saying. In order for you to have gone for the paper bag you had to go through the crowd that was gathering there or do I misunderstand you now?
MR TSHABALALA: Some of the people were running, some of them had run past the paper bag from the taxi rank before the security guards come to the place and it was also dangerous for me to go and get the paper bag at that time.
CHAIRPERSON: For you to get to the paper bag you had to go past these people, these onlookers on the scene?
MR TSHABALALA: Yes that is correct, I had to get it where the spectators were.
CHAIRPERSON: So Mafuna would have had to do the same thing if he wanted to reach the paper bag he would have gone through these people or past these people?
MR TSHABALALA: Here now from the position where he was he also had to go through the people but the bigger crowd was still coming but he had also to go through those few people who were there in order to get his paper bag. I shot him whilst he was walking towards the paper bag and then he continued and then I shot him for the second and third time and after that the security guards appeared and they started shooting at us and we ran away.
CHAIRPERSON: You now had the gun, he was disarmed and Mbani was also present on the scene, Mafuna starts walking, you say it's towards the paper bag, you had no other way of stopping him, are you saying that? There was no other way of stopping him to get to this bag except to kill him?
MR TSHABALALA: Because he was so aggressive I couldn't touch him and we could see that this person he won't be able to - I couldn't touch that person and he was very aggressive.
CHAIRPERSON: You had to kill him, to shoot him dead. The only way that you could do - you had to shoot him dead?
MR TSHABALALA: Yes, because of the situation I couldn't do anything else.
CHAIRPERSON: Yes. Have you got any questions?
ADV SANDI: Yes. Did anything prevent you from asking Mbani to take this bag away from the deceased as he was trying to get hold of it?
MR TSHABALALA: It was very difficult even for Mbani to go and get the paper bag because the security guards were shooting at the time and Mbani ran away leaving me behind and I followed. He was also not in a position to take that paper bag.
ADV SANDI: But I understood you to say that you had instructed Mbani to stand aside because you wanted to deal with the deceased, that is before you opened the first shot on him?
MR TSHABALALA: I realised that the only option for me was to shoot this person because he was already aggressive at that time so I couldn't touch him.
ADV SANDI: You didn't try to grab the bag yourself because amongst the other reasons you've given you were tired, but why didn't you ask Mbani to quickly take this bag away from the deceased so that he couldn't try and attack you with whatever was contained in the bag?
MR TSHABALALA: Everything happened within a blink of an eye, there was no time to issue further instructions.
ADV SANDI: Members of the crowd, were they friendly or hostile towards you? How would you describe their attitude?
MR TSHABALALA: Even the people themselves, I cannot say they were friendly because they are the people who called the security guards after the shooting and they were also alerted by the gunshots.
ADV SANDI: I take it that in that kind of situation you would be concerned that one of the members of the crowd would try to do something to hurt you? Would I be correct?
MR TSHABALALA: That was not going to be easy but there was no hope at all.
ADV SANDI: But what about the possibility of a friend of comrade of Pat Mafuna taking that bag, he takes whatever is inside there and he launches an attack on you? Didn't that possibility dawn on you here? Didn't that occur to your mind?
MR TSHABALALA: Yes that did occur to my mind but there was actually no time, things were happening fast and we were wondering what was in the paper bag but it was not easy to go and get that paper bag but we had to stop the owner of the paper bag from reaching the paper bag.
ADV SANDI: Are you seriously suggesting that you shot and killed this person because you were concerned that he might get something out of the bag and attack you with? Are you sure about that?
MR TSHABALALA: Yes I can say so.
ADV SANDI: I understood you, your comments to your evidence-in-chief that Mr Vermeulen and De Kock had asked you to try and apprehend the deceased and even kill him wherever he may be found, not so?
MR TSHABALALA: Yes that is correct.
ADV SANDI: Did you go back to give a report for example to say look, I have found the person who is giving us so many problems and I've killed him? What's your answer? Yes?
MR TSHABALALA: Yes we did that.
ADV SANDI: Sorry, Mr Mapoma, just for the sake of clarity, has Mr de Kock applied for amnesty for this incident if he gave the applicant an order that he should kill the deceased if he finds him?
MR MAPOMA: Chairperson, I'm not sure at this point but generally all the incidents for which De Kock applies for amnesty are enrolled together with his operatives. For instance in the Ndondo matter Mr de Kock was an applicant there for defeating the ends of justice and he was enrolled together with this applicant in Umtata. I'm not sure now of this, I may have to find out.
ADV SANDI: Thank you.
ADV BOSMAN: Just one question Chairperson.
Mr Tshabalala, I just want to ask you one question. Let's just go back to the first incident. Why do you say that was political, that first incident, why do you say it was political the fact that you shot at those ten people whom you didn't know?
MR TSHABALALA: Are you talking about the incident of Piet Retief?
ADV BOSMAN: Yes, yes when Mr Mutwa gave you his firearm.
MR TSHABALALA: I can say I was on duty when this happened. I was doing what was expected from me by my superiors.
ADV BOSMAN: No, no I understand that but why do you say it was political? You were on duty, your task was to look for firearms and to identify people but now you shoot at people you don't know who they are. Why did you think they were political opponents? Did you think they were political opponents, let me first ask you that? These people, this group, did you think they were politically opposed to you?
MR TSHABALALA: Mutwa had told me that these people were their opponents, Police opponents. Mutwa told me so when we ran away.
ADV BOSMAN: Then when you fired did you fire into the air or did you fire at them? That was not clear to me.
MR TSHABALALA: The first shot was a warning shot, I fired in the air, I thought there was going to take another direction but even the second one was also a warning shot but I think the third one I shot on the ground and I was also hit during that process.
CHAIRPERSON: Re-examination?
RE-EXAMINATION BY MR KNIGHT: Thank you Mr Chairperson.
Mr Tshabalala, if I can return to the Piet Retief incident? What is the attitude or what was the attitude of Black people in a place such as Piet Retief towards an impimpi?
MR TSHABALALA: This group they did not like them, they did not like the impimpi.
MR KNIGHT: If we can get more specific? Isn't it true that people who cooperated with the Police that were working against the liberation movements would have been in a life threatening situation in a township, they would have been necklaced and killed in your experience? Is that a fair reflection?
MR TSHABALALA: Yes the situation was very tense. I wouldn't walk there alone as a policeman.
MR KNIGHT: In fact is not the reason why the crowd attacked you is because they realised that you and a chap that you were with were Police informers and that you were working with the Police?
MR TSHABALALA: Yes that was the reason that caused the conflict because they did not want us in the area.
MR KNIGHT: Now with regard to the police officer that beat you, is it true to say that possibly the reason why he took the attitude he did was because Mutwa had in fact messed up the operation he had planned for later that night?
MR TSHABALALA: Yes that is correct because the raid was to take place during the night therefore this whole thing was messed up. He got very angry.
MR KNIGHT: And you also agree with me that we are talking about an incident that occurred 18 years ago, is that correct? We're now in the year 2000, at the end of it and this happened at the end of 1982?
MR TSHABALALA: Yes that is correct.
MR KNIGHT: Now with regard to the incident in respect of Mr Mafuna, where an how far from you was the paper bag at the time that you ordered Jimmy Mbani away from Pat Mafuna before you fired the first shot?
MR TSHABALALA: It was just a short distance but ...(intervention)
MR KNIGHT: When you say a short distance can you be more specific?
MR TSHABALALA: I can say it was plus minus ten metres.
MR KNIGHT: Was it in front of you, behind you, at your side? Where was it in relation to you facing the deceased and Mbani?
MR TSHABALALA: It was an angle but not 45 degrees but I was coming in an angle and it was on my left hand side and if he was trying to reach for his paper bag he would have to go past me.
MR KNIGHT: Now before the struggle ensued, how far had you run which caused you to be tired. What distance had you run chasing Mr Pat Mafuna?
MR TSHABALALA: Plus minus 500 metres from the taxi rank to the shopping complex.
MR KNIGHT: During this 500 metres were you walking or were you running or were you sprinting?
MR TSHABALALA: We were running. I can say it was 500 to 700 metres from Baragwanath Hospital to the shopping complex.
MR KNIGHT: Now when you shot Mr Mafuna, when you pulled that trigger is it correct that you intended to kill him?
MR TSHABALALA: I cannot say that I did not want him to die because anything can happen when you shoot a person.
MR KNIGHT: Well you do know that if you - a natural consequence of being wounded will be that a person can die from those injuries?
MR TSHABALALA: Yes I knew that that was a possibility.
MR KNIGHT: Now when you returned to Vlakplaas, were your superior officers advised of this incident? Mr de Kock for example? Colonel de Kock?
MR TSHABALALA: Yes he was told.
MR KNIGHT: And were you charged or disciplined or did you face a disciplinary hearing within the Police for unprofessional conduct?
MR TSHABALALA: No.
MR KNIGHT: And in fact you never heard of this matter since or from that date it was never brought up until when you left the Police?
MR TSHABALALA: No, that was just the end, I never heard anything thereafter.
MR KNIGHT: And you confirm that there was a standing order -well, an order was given by Col. de Kock that if the man could not be apprehended he was to be killed, is that your recollection?
MR TSHABALALA: I can say that order, I got it from Vermeulen whom I found in Vlakplaas. He's the one who issued the order. De Kock was also not against that but Vermeulen is the one who issued the order. He told me and I was not alone when he was telling us.
MR KNIGHT: In your experience were there many other askaris that defected murdered?
MR TSHABALALA: Yes. You wouldn't survive after escaping as an askari. That was what one would be told.
MR KNIGHT: I've no further re-examination.
NO FURTHER QUESTIONS BY MR KNIGHT
CHAIRPERSON: Thank you Mr Knight. Mr Tshabalala you are excused, thank you. Any other evidence or is that the case for the applicant?
WITNESS EXCUSED
MR KNIGHT: Mr Chairperson, that is true, that is the - I would move for amnesty to be granted for the attempted murder of Leonard Mkhumalo.
CHAIRPERSON: Yes, just before we get there. I assume you're not tendering any evidence Mr Mapoma?
MR MAPOMA: No, there's no other evidence, Chairperson.
CHAIRPERSON: Alright Mr Knight, then you can make whatever submissions you want to make.
MR KNIGHT IN ARGUMENT: Mr Chairperson, I would move for amnesty being granted to the applicant for the attempted murder of Leonard Mkhumalo which took place on or about the 23rd October 1982 at Zondo Street and if you have a look on page 22, I don't know the correct pronunciation, it would have been in the District of Piet Retief, Mr Chairperson and then it would be the granting of amnesty in respect of the murder of Pat Mafuna at Baragwanath.
CHAIRPERSON: Baragwanath?
MR KNIGHT: Baragwanath. Unfortunately, the year that it occurred, Mr Chairperson, is not clear. It is between 1982 and 1986 and I don't have any greater clarity than that.
Mr Chairperson, do you wish me to submit further argument?
CHAIRPERSON: Yes please.
MR KNIGHT: At this point? Yes, Mr Chairperson.
Chairperson, the applicant herein seeks amnesty for, as you know, the two matters. The attempted murder as well as the murder. The incidents are reflected in the amnesty bundle in volume 1 from pages 1 to 20 and as are further amplified by the annexures.
Chairperson, the applicant satisfies the Honourable Committee that his application and form and content meets the requirements of Section 20(1) a, b and c of the Promotion of National Unity and Reconciliation Act 34 of 1995. The requirements of Section 20(1)a should with respect not be in contention and I don't believe that there's any further argument that needs to be addressed in that regard.
Chairperson, it is submitted that the requirements laid down by the introduction of sub-section 2 of Section 20 need no further discussion that the present applicant meets these requirements. The Act clearly constitutes both an offence and a delict and were also committed by the applicant inside the Republic of South Africa during the period March 1960 to 10 May 1994 and it is submitted that the Committee enjoys jurisdiction to grant amnesty herein.
Chairperson, furthermore the requirements of Section 2(1)b and c are quite clear. I think the applicant has shown that he was on duty, he was a member of the armed forces. In respect of Mafuna's matter he was acting in the course and scope of his employment with the State. In fact I would submit further that he would fall within the category of further of 20(2)a to g. My submission is that he would fall in there and also with regard to the - I think it's (f) that where you subjectively believe - yes, at (f) "any person referred to in paragraph (b) (c) and (d) who on reasonable ground believes that he or she was acting in the course and scope of his or her duties and within the scope of his or her express or implied authority.
Chairperson, my submission is the evidence before the Committee is that the deceased, Mafuna, was a member of the African National Congress, there was a standing order at Vlakplaas for him to be killed and even if one were to look at it from a point of view of saying well, the evidence could tend to suggest that the applicant acting out of necessity in an attempt to arrest the person and that there was no intention to kill, Chairperson, my respectful submission is in that regard, is that we do have a principle of dolus eventualis in this country. There could have been, if one wants to play devil's advocate, other ways of apprehending him and the manner in which he was apprehended would entitle a court to convict on a charge of murder and it is for murder that he seeks amnesty in respect of that incident.
Chairperson, in respect of the Piet Retief incident and the political motive there, clearly one is faced with the difficulty in that we have, as we know our country was liberated as a result of the forces of public disturbance, the UDF, the riots that took place. It is a matter of public record and I think one can take judicial notice of the fact that people that fell within the category of opponent to the struggle were dealt with. A person such as the applicant being deployed in a township in Piet Retief would have been there with a political motive. The political objective would be that he, as an askari, tasked by the South African Police, working with them, acting in the course and scope of his employment with them, is there on the lookout for insurgence. He is placed in a position where the people living in the township are not stupid and identify these two strangers as being individuals that they immediately identify as being Police informants and then proceed to throw stones at them. In the ensuing battle one has the applicant discharging the firearm three times at, I would presume, Mr Leonard Mkhumalo, who I don't know but was possibly wounded as a result, that hence the charges having been laid specifically by him.
Chairperson, my submission is that clearly one cannot say well, what political motive did you have for shooting at those people, you were acting in self defence? It is my submission that one cannot take a tunnelled vision approach, one is here before this Committee to grant amnesty, that is the purpose of the Committee and once amnesty - to grant amnesty provided that the person makes a full disclosure and provided that he meets the other requirements of the Act. My submission is that he does, in both instances.
Chairperson, furthermore with regard to the inconsistencies with regard to the evidence relating to what the other person at Piet Retief, Mutwa, what was going through his mind, whether he had been drinking, I think 18 years later it is very difficult to cast one's mind back 18 years and to be expected to testify with great coherence with regard to the circumstances of each and every matter that happened. I think if one looks at the applicant's evidence as a whole, he has been open and honest and has made a full disclosure.
ADV SANDI: Sorry Mr Knight, if I can just ask and just sort of try to think aloud about the whole matter? Do you have any evidence as to what was going on in the mind of members of this crowd? Did he declare the reason as to why they were attacking the two gentlemen? That is the applicant and Mutwa?
MR KNIGHT: Chairperson, I think one can only infer retrospectively but it would seem to me that if one looks at 1982 and one takes notice of the political turmoil that was in engulfed areas and Piet Retief was an extremely volatile area, we've had applications before other Committees with regard to the Black Cats and people from the Natal Security Branches that operated in Piet Retief which is, as you know, in the northern part of Kwa-Zulu Natal. There was a lot of political turmoil going on. I think it becomes on a balance of probabilities, I think that the people obviously identified the two people as being members of the Police, impimpis, informers, call them what you want, but unwelcome people.
ADV SANDI: Here you're talking about the Black Cats, I thought that was much later, much later than 1982? The Black Cats versus UDF affiliates. I thought ...(indistinct) about '84, '85, '86?
MR KNIGHT: Mr Chairperson, you might well be correct there. I'm not expert, I don't know the precise dates with regard to the Black Cats but what one knows that in 1982 it was particularly turbulent time in this country and I think throughout the country.
ADV SANDI: Is it not also - you're talking about drawing inferences, is it not also possible that this is just personal enemies of Mutwa who did not want to see him in the area for some personal reasons? They don't declare the reason why they are attacking them, did they? Mutwa ...(intervention)
MR KNIGHT: Other than that they were not welcome there. I think if one looks back one is speculating because one doesn't know. From the applicant's point of view my submission is that he subjectively was at Vlakplaas and he was deployed with Mutwa, that was not within his control. It was the first time that he had worked with the individual so he - to infer that there might have been any personal animosity between Mutwa and the local community, it might well have been that there is that possibility that even if that eventuality is true, it is my submission that it cannot negatively effect the bona fides of the applicant because the applicant would subjectively - you must look at his view from a subjective point of view. The first time that he is in that area he is deployed with Mutwa to look for insurgents. One must also have regard to the fact that Piet Retief being so near to the Swaziland Border was a known infiltration route for the ANC so it wasn't as if they were deployed without that purpose. They would have been deployed and the community again would not have been stupid. They would have known who would - you know, if a strange person is in town, I think in retrospect I think our own Security Police were a little bit silly in the manner in which they conducted a lot of their previous investigations because with the balance of hindsight or the benefit of hindsight it seems that a lot of what they did by deploying people were foolish things because the people stuck out, they weren't members of the community and immediately you go into a relatively close knit community as a stranger people are going to automatically be on their guard. Chairperson, I can't really take the matter any further but all I can, my submission on that point would be, that in the event of there having been animosity, which we do not know, between Mutwa and the community, it cannot have any effect on the bona fides of the applicant.
ADV BOSMAN: Mr Knight, the question I should have put to your client in examination but do you have any instructions as to his level of education?
MR KNIGHT: May I take instructions, Chairperson?
ADV BOSMAN: Chairperson, through you would that be in order?
MR KNIGHT: As to the applicant's level of education?
CHAIRPERSON: Yes, ask him?
MR KNIGHT: Mr Tshabalala, can you please tell the Committee what your highest level of education is?
MR TSHABALALA: Up until Standard 8.
MR KNIGHT: Chairperson, if I may continue?
CHAIRPERSON: Yes.
MR KNIGHT: In respect of the matter of Pat Mafuna, Tshabalala's evidence stands largely uncontroverted. In view of the fact that Mafuna was known to Tshabalala from his days in exile with the ANC it is submitted that there is evidence before this Committee to suggest that Mafuna was a member of the ANC. He was known to the applicant and he also worked with Vlakplaas having escaped from there, he wouldn't have worked for Vlakplaas had he not been a member of the ANC at that time. It is respectfully submitted that the shooting of Mafuna and his murder was committed bona fide with the objective countering or otherwise resisting the struggle of the ANC and was directed against a publicly known organisation or liberation movement engaged in the political struggle against the State.
Chairperson, I don't know if you wish me to address you on any other aspects with regard to previous judgements of the Amnesty Committee, I think they are well known?
CHAIRPERSON: No.
MR KNIGHT: Chairperson, I would then move further to the fact that the applicant has made a full disclosure. He received no benefit, personal benefit in his action. It was not out of any maliciousness or advice and on that basis I would move that he be granted amnesty in the two matters, thank you.
CHAIRPERSON: Thank you Mr Knight. Mr Mapoma?
MR MAPOMA IN ARGUMENT: Chairperson, I have got just two issues regarding the incident in Piet Retief. Chairperson, as it stands, as the matter stands now, one cannot escape a question as to whether an offence was committed by this applicant, we should necessitate that he be granted amnesty and number two, Chairperson, whether this action was indeed an act associated with a political objective. These are two troubling areas, Chairperson, I would want to address the Committee on.
Chairperson, we are dealing here with a situation where somebody says that a group of persons approached us, pelted us with stones and as a result was left with no option but to fire at those persons.
CHAIRPERSON: Yes but is that what he says, he says he fired in the air and into the ground. I'm not sure whether if he ever fired at the people. It looks to me like after he lost his consciousness this other one, Mutwa, the one who had been drinking, he was the one that was firing. He says as he was passing out he heard this chap shooting and afterwards the Police authorities were trying to prevail upon him to take the wrap for this thing because Mutwa was a policeman. He would say "look, it's not going to be good if a policeman has been charged for this thing, you take the wrap because you know you're not a policeman." So I'm not sure whether there's any evidence that he ever shot at these people.
MR MAPOMA: Oh yes, yes Chairperson, I take your point. I take your point and I agree entirely with that point, Chairperson. There's no evidence indeed that he shot at them because even in this statement that was prepared on his behalf, what he says, he says that he fired about three shots. CHAIRPERSON: Yes.
MR MAPOMA: Warning shots, so to speak. Without taking it any further, Chairperson, that one I will leave it as it is. And then about this political motivation of this act. Chairperson, this is a scenario where Mutwa is attacked or charges is advanced at persons in the company of Mutwa by a group of persons. Chairperson, I submit that it cannot be said that these persons who had a problem, this Mutwa had a problem with the community. We are talking about individuals here. A group of persons and not the community. We do not have evidence as to why they were not wanted there. It cannot be assumed, Chairperson, that they were not wanted for political reasons.
CHAIRPERSON: Yes, I mean it's also clear what he has been up to in the house because he just goes in there and the next thing he comes running out of there and he tells us, the applicant, look let's just get out of this place. We don't know what he's been up to inside there and the next thing they're been chased and they're being pelted with stones. So there's very little to indicate except these surrounding circumstances what has been the cause of this attack on them. We don't know what he's been doing inside the house there. This applicant can't say he says look he was outside. They were not supposed to go inside there, this man went in there and then he comes running out of there. Next thing they're being attacked. We don't know what's the situation.
MR MAPOMA: Yes Chairperson and also some of the factors like after this, the whole saga took place. They stand to be punished by their superiors for what happened and Chairperson amongst other factors where there's an element of drunkenness on the part of the applicant's companion in that incident and further than that there's no evidence whatsoever that those persons who were chasing the applicant and Mutwa were perceived by them at the time as political opponents. That is all Chairperson, unless there's anything?
CHAIRPERSON: Thank you Mr Mapoma. Is there any reply Mr Knight?
MR KNIGHT IN REPLY: Yes Mr Chairperson. I think if one is in a position where we just don't know at this point in time, these years later, what the situation was with regard to Mutwa but if one looks at it from the point of view that there was a raid planned for that house that evening by Vermeulen and the other Security policemen, that both the applicant and Mutwa are working with Vlakplaas, are deployed into Piet Retief with the purpose of identifying people. My submission is that the political motive becomes irrefutable on the basis that Mutwa, for reasons known only to himself, made the fatal mistake of going to that house for whatever reason it might have been, he might have - but he obviously, if one has regard to the fact that there was a raid planned for that house, that they were askaris. He obviously walked into a situation where the people whom they had hoped would be there to be arrested by the raid or interrogated or whatever the purpose was, recognised him and they get chased as a result of that.
Chairperson, furthermore the ...(inaudible) for motive, that they were actually removed from the scene, quite forcibly. Chairperson, with regard to the question of Mutwa's alleged drunkenness or having had imbibed, Chairperson, my respectful submission that that cannot impact negatively upon the applicant as the applicant on his own version has said that he was sober.
The other aspect just in closing that I would like to deal with, is the question of dolus eventualis whether a crime was actually committed. It is my submission that firing shots, irrespective of whether you fire it up in the air or in the ground, it has the eventual effect that it could actually injure somebody. A bullet has to land somewhere, if you fire it up in the air, it has to land somewhere and it is my submission that a crime has been committed on the basis of dolus eventualis. That is all that I wanted to submit, Chairperson.
CHAIRPERSON: Thank you Mr Knight. That concludes the hearing. We will consider the matter and we will formulate a decision in that matter as soon as the circumstances permit us but as for now the decision in this matter is reserved. We will notify all of the interested parties as soon as the decision in the matter is available. We thank you, Mr Knight, for your assistance, also in trying to get this matter to be finalised this week. Thank you for that. And Mr Mapoma as well, appreciate your assistance.
I assume that that takes care of the roll that we have here?
MR MAPOMA: Indeed Chairperson, that's the roll.
CHAIRPERSON: Before we then adjourn we just express the conventional thanks to everyone for your assistance in enabling us to have this hearing, would in all probability be the last public hearing of some of the members on this panel. We appreciate your assistance and also to the proprietors of this venue for their preparedness to accommodate us in ...(indistinct) convenience and for staff, everybody else, interpreters and security people for their assistance. We thank you and we will now adjourn.
HEARING ADJOURNS
