--------------------------------------------------------------------------ADV PRIOR: Thank you, Mr Chairman. Mr Chairman, today is the 23rd of March 1999 and we continue from today onwards till Friday with the completion of all the part-heard matters from last year, dealing with the APLA contingency in the Eastern Cape. Today we will start with the killing of Donne and Mike Meyers. I understand that there's no further evidence to be led by either the applicants or the victims, nor myself as Evidence Leader, and the matter is simply to proceed on argument only. Thank you, Mr Chairman.

CHAIRPERSON: Mr Prior, we have on occasions been asked to put our voices on record for the sake of the transcribers, should we still do that? You have just done that. I am Andrew Wilson, the Chairman.

ADV GCABASHE: Advocate Leah Gcabashe.

ADV SANDI: I am Nsikelelo Sandi.

MR LAX: I am Ilan Lax.

MR BOTMA: I am D C Botma.

MR MBANDAZAYO: I'm Lungile Mbandazayo, I am appearing for the applicants, thank you.

CHAIRPERSON: Right, we can carry on.

ADV PRIOR: Thank you, Mr Chairman. Mr Chairman, I don't know the order in which argument should take place, normally the applicants argue and summarise.

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

Chairperson, I will start by quoting Section 20(1) of the Act which provides as follows: that if the Committee after considering an application for amnesty, is satisfied that the applicant complies with the requirements of the Act, the act or offence to which the application relates is an act associated with a political objective committed in the course of the conflicts of the past in accordance with the provision of (2) and (3), and the applicant has made full disclosure of all relevant facts, it shall grant amnesty in respect of that omission or offence.

Section 20(2) provides as follows: If this act, unless the context indicates otherwise, act associated with a political objective means any act or omission which constitutes an offence or delict which according to the criteria in (3) is associated with a political objective and which was advised, planned, directed, commanded and ordered or committed within or outside the Republic during the 1st March to the cutoff date by any member or supporter of a publicly known organisation or liberation movement, on behalf of or in support of such organisation in furtherance of a political struggle waged by such organisation against the State, any member of a publicly known political organisation in the course and scope of his duties and within the scope of his express or implied authority, any person referred in (d) above who on reasonable grounds believed that he was acting in the course and scope of his duties and within the scope of his express or implied authority.

Chairperson and Honourable Members of the Committee, it's my submission that the applicants have complied with the requirements of Section 20(1) and also (2) and that they were clearly acting on behalf of APLA, a publicly known organisation, a liberation movement which was engaged in a political struggle against the State at that time.

Chairperson, it is in dispute the membership of these two applicants, that they were members of APLA at the time of the incident and that at the time of the incident PAC was still engaged in the liberation struggle and as such its political wing, APLA, was waging the struggle on its behalf.

The question which I think is important, Chairperson, is whether what they did on the day in question was politicly motivate or what they did they did on behalf of PAC or APLA, or they believed what they did was acting, or they have any instruction to do that. And the second point which I think will be important is whether they have made a full disclosure about the incident.

Chairperson and Honourable Members of the Committee, it is my submission that what they did on the day in question was associated with a political objective and that they acted on behalf of APLA and what they believe they did was in furtherance of the political struggle at the time.

Chairperson, if one looks at the submission, I would just on that aspect, at the submission of the PAC regarding whether their struggle regarding the whites in general, in their submission, Chairperson, they made an analogy of a sjambock with regard to the incident of whites, regarding whites as a target.

Chairperson, it is my - I suppose that the Members of the Committee do have that submission, but myself I would not quote from that submission, I will quote from the book from which this submission was extracted, thus to have a very wide view of that submission of the PAC with regard to that. This book I once photostatted it, I don't know whether the members still have it, I once photostatted this book "Pan Africanist Congress of AZANIA, Mangaliso Robert Sobukwe". This is most of his speeches and he his trial and some of the questions he answered regarding the PAC. Chairperson, I would start, with the permission of the Committee, with regard to them as whites as targets.

The question from the journalist was this:

Sobukwe's reply was as follows:

Question:

Sobukwe:

Question:

Sobukwe:

Thus the submission of the PAC with regard to their position was extracted from the speech of Sobukwe and what I have read, and they concretise that and put the submission to the ...

Now my argument ...(intervention)

ADV SANDI: Sorry, Mr Mbandazayo, I don't want to interrupt you. I just want to ensure that I follow the context in which this quotation is being made. Should we understand you to say then that the applicants were acting our of hatred when they carried out these attacks?

MR MBANDAZAYO: Chairperson, if what I've read is - let me put it this way, it is clear from what I've read that what they did was not because they did it out of hatred, what they did they did because of their policy, the policy of the organisation to which they belonged.

ADV GCABASHE: Mr Mbandazayo, are you going to go on further to relate all of what you've said, to the killing one, of Mike Meyers and the killing of Donne? I mean in more specific terms. I won't ask any questions if you are going to do that.

MR MBANDAZAYO: Yes, Honourable Member, I was going to do that. When I was reading this I wanted to relate it actually to the killing of the two.

Thank you, Chairperson. I've read this extract with the specific purpose to, questions have been raised as to why the whites, not all whites, some people were innocent. As I've read it here, Sobukwe puts it that he regards that all of them are shareholders in the oppressors company, inasmuch as there are those who would like to be identified with the struggle, but because of the material conditions and the position in which they are, it's very difficult for them to be on that.

Hence they regarded them as part because they also in ...(indistinct) term, they were benefitting from the oppression of the black people. Irrespective of whether they participated or not, directly or indirectly they benefitted from that oppression, and as such they were part and parcel of the oppressive system.

ADV SANDI: So your point then should be understood as follows: the attack of Mr Meyers and his daughter took place in the context of a wider racial conflict in the country, is that what you are saying?

MR MBANDAZAYO: Yes, Honourable Member.

ADV SANDI: Thanks.

MR MBANDAZAYO: That's what I'm trying to get at, that it was committed in that context, what happened on the day in question.

Chairperson, if I can move from that point to the second point I referred to as full disclosure, which I think is the one with regard to this incident, it's the most crucial point. When I was going through the record and checking everything, that it's the one most important part of the hearing.

ADV SANDI: Sorry, Mr Mbandazayo, I keep on coming back to you. I thought the applicants had said the idea was to confiscate the vehicle and some money as well as some arms, if Mr Meyers had any.

MR MBANDAZAYO: Thank you. Through you, Mr Chairperson. I think the point, what they said was that the idea was to kidnap Mr Meyers, that was their main purpose, to kidnap Mr Meyers.

ADV SANDI: And it was not part of the idea to kill him.

MR MBANDAZAYO: It was not part to kill him but they were told to kill him if they are in danger. I think that was the evidence which was led in this hearing, that was the purpose, and that they killed Mr Meyers and they decided to take Donne along because they could no longer take Mr Meyers along. That's the evidence.

MR LAX: Mr Mbandazayo, I have a number of questions, I'd rather from my point of view let you finish your address so I can hear the whole context instead of bits and pieces, because I don't think it's fair to you to keep interrupting your thought processes and so on. I have a number of issues I'd like to ask you about later, but I'd much prefer it if you could get on with your argument. You were going to move on to the issue of full disclosure. I'll come back to the questions I may have dealing with political, the political association of these acts. I'd rather not interfere with your train of thought and let you express yourself fully.

MR MBANDAZAYO: Thank you. Let me then go to this question of disclosure.

Chairperson, the evidence, the first applicant who was Luvuyo Kenneth Kulman gave evidence before this Committee and told the Committee what happened on the day in question, that the purpose was to kidnap Mr Mike Meyers but unfortunately they couldn't do that, they ended up killing him and also in the process they shot his daughter and they left with his daughter and dumped her 60 kilometres away.

And the second - and according to his evidence it was that ...(intervention)

CHAIRPERSON: Who killed the daughter?

MR MBANDAZAYO: Chairperson, I would say that they killed the daughter because, the reason why I'm saying that, in a question which was put to the applicant during the cross-examination when Kulman said that he shot the daughter and when it was pointed out to him that the shot which he alleged to have fired struck him on the head is the one which possibly, according to the medical evidence, that killed him. He said that's a possibility that he is the person because it was said that was a shot which was fired on her head. That is why, Chairperson, I'm saying according to the evidence, inasmuch as they said themselves that at the time when they left with him he was not dead, she was not dead at the time.

CHAIRPERSON:

MR MBANDAZAYO: Yes, Chairperson, exactly. That is what I'm trying to get at, but at the end he was asked about the medical evidence which points that according to him he shot her when he was trying, he missed her father, Mike Meyers. And when it was pointed out to him that the way he is describing it before the Committee, the possibility is that it was his bullet which was fatal to her and he said he cannot dispute that. That is why I'm saying, Chairperson, of course subject to whatever the Members, everybody who was here interpretation, that at the time themselves when they left with her she was not dead, which of course put it into dispute whether they would have travelled such a long distance with her, they would have travelled such a long distance without her being dead.

CHAIRPERSON: You will deal with the post-mortem report I take it?

MR MBANDAZAYO: Yes.

CHAIRPERSON: Which gave the cause of death as a completely crushed skull, not one shot.

MR MBANDAZAYO: Thank you, Chairperson.

And the evidence - I was still on the part that they travelled, after she was also shot and the evidence of Kulman was that she was slumping on the seat when they were travelling together until that particular spot where they dropped her off and they took her over the fence and they allege that they left her with Thandukolo, who I suppose that he's the person who did the final damage.

But Chairperson, the second applicant, Zama Thutha also gave evidence and his evidence was slightly different from that of Kulman. He did not know whether, what position she was at the time they were travelling to that particular spot, which raises some question if somebody was shot and it was, she was sitting between the two of them he would not have noticed in what position she was at the time because the other applicant says she was slumping whilst the second applicant did not know what was the position of Donne Meyers at the time, until they reached the spot.

And I think according to the second applicant was that she was walking on her own when they took her out of the truck and they were trying to assist her in crossing the fence to putting her on the other side of the fence, which of course the question was raised that that must be the reason why it was said that there were some evidence that there was some scuffles somewhere somehow in that particular spot, that there must have been some resistance.

Now I'm raising these things because it raises some questions definitely, that there were two people and these were the two applicants with the deceased, especially Donne Meyers. And both of them are not able to tell the Committee exactly what actually took place. And all of us were not there, we were relying on them to tell us exactly what actually took place there.

Now that raises some questions, but my argument would be that inasmuch as it raises some questions, it's not an incident first of its kind and it's always the case with the people that all of us we witness one incident and at the end of the day when we have to narrate you doubt whether the other person was present when that actually happened. And it's in the human nature, not necessarily that he's telling a lie, but it's in the human nature that most of the time you find that people are not able to tell the story the same way, as to what actually happened, and even to the extent of coming with a version which you come to doubt whether this thing actually happened the way.

It is therefore my argument that when the Committee is considering the evidence it should take those things into account, that the circumstances under which they are, they were. And inasmuch as it is a process where everybody, we are all not, not a single person is on the other side, all of this is the same inquiry, one is searching for truth as to what actually happened. But at the same time, when it comes to the applicants there's still that apprehensiveness, that fear that I'm still facing people who are going to decide on my fate, so it's difficult to sometimes express themselves in most of the issues the way a person who is not under pressure of anything would express himself. And as such I would like that the Committee to take that into totality.

Of course the question also which arises is the manner in which Donne Meyers was killed, which of course I will be the first one to concede that it was not consistent with APLA operations as what happened on the day in question. I will be the first one to concede. But the question as they put it themselves is that they don't what actually took place after they have left Donne with Thandukolo. Though the incident, the way it happened, is not consistent, the way she was killed as the post-mortem reflects it, how she was killed. Normally in all the incidences which involve APLA be they repossession and somebody ends up being killed, it's only people are shot.

You get sometimes one or two bullets in somebody, it's not a situation where you find in Donne Meyers where even an attempt was made even to take out, if I may, to cut her throat, which of course in all the hearings in all, as I indicated that his not consistent with APLA operations.

And now it reflects back to my earlier point, the political motivation which now brings it into question, whether the incident, if the Committee takes into account and the evidence as a whole and that incident, the manner in which the deceased was killed, whether that has anything to do with political motive or it was associated with a political objective, the manner of the killing of Donne Meyers.

Chairperson, I will leave it to the Committee, I wouldn't be able to argue except to say that as the applicants have put it that their role ended when they killed Mike Meyers and they also shot Donne Meyers and thereafter they handed her over to Thandukolo and they don't what actually happened thereafter.

Chairperson, at the present moment I would like to pause there and wait for any questions that will come up.

CHAIRPERSON: I take it from what you have just said that you concede that having regard to the injuries she sustained, it was grossly disproportionate in any political objective.

MR MBANDAZAYO: Chairperson, exactly, that's what I'm trying to get at. That is why I'm saying that it reflects now on the political objective or the association with a political objective, the manner in which she was killed.

MR LAX: Mr Mbandazayo, you've raised the general aspect of the PAC's policy in relation to the killing of white people, and I understand that, white people as beneficiaries and agents of oppression were legitimate targets but that wasn't the intention of your clients in this particular instance and it wasn't their instructions, they weren't relying on a general, for want of a better word, a general policy view of the matter, they were acting on specific orders.

Now on the probabilities those orders, on the evidence before us, you haven't dealt with any of that evidence, the rest of the evidence, the counter-evidence for example, you've only dealt with the applicants' case. Would you mind looking at addressing us on the evidence to the contrary? For example, that Mr Meyers had nothing to do with the AWB, he was never a member of the AWB, there was never any inkling of him being involved with such a reactionary organisation. Add to that the evidence that Donne was highly respected in her local community, her interaction with people was on the face of it, hardly one in which she might be regarded as a reactionary. So if you can just help us in that regard because you haven't dealt with any of that evidence at all.

CHAIRPERSON: Another aspect I would like you to deal with is as to whether there was any urgency in stealing this truck and possible firearms, if it had to be done that day, because as I recollect the evidence, Mr Meyers resided there, he was a regular seller of milk to the community and Donne was only with him on this day because he had injured his foot by dropping a spanner on it and he needed somebody to help him. If they had waited another day or two, he would have again been by himself. She wouldn't have been there, would she?

MR MBANDAZAYO: Thank you, Chairperson and Honourable Members of the Committee. I would like to start to answer the last one which has been raised by the Chairperson, Judge Wilson.

Chairperson, definitely it's clear that Donne Meyers, the evidence was adduced that had it not, what happened to her father she would not have been there, there's no doubt about that issue. But Chairperson, the issue which has been read, the evidence is such that after the reconnaissance, they have done reconnaissance definitely they did not know that Donne Meyers would be there and it was the day which was selected as the day that they will conduct this operation and unfortunately Donne Meyers was there. And on the instruction they had to do it on that day and unfortunately Donne Meyers was also there. So on that score definitely because they have already set out and they have already arranged that on that day they would carry out and they expected that Mike Meyers will be the only person who is there, and unfortunately Donne Meyers was there. So on that score they had to carry out the operation as per instructions.

CHAIRPERSON: Why did they have to? Why could they have not gone back and said, when we came up to the truck we saw there were two people in it?

MR MBANDAZAYO: Chairperson, definitely if you have been given an order, I don't think Chairperson they expected that, as the evidence according to them was given that they would harm Donne Meyers, but because as the first applicant put it, Kulman, that it's because he missed when he was shooting. The first applicant, Kulman put it that it's because he missed when he was shooting the father and they ended up fatally wounding her on that score.

CHAIRPERSON: So it wasn't an act they intended to do?

MR MBANDAZAYO: Definitely.

CHAIRPERSON: And they can't ask for amnesty for it?

MR MBANDAZAYO: Chairperson, definitely if there was not an act they intended to do, but that the act was committed in the process of what they have been instructed to do, definitely Chairperson, if ...(intervention)

CHAIRPERSON: If one is reckless as to the consequences, yes.

MR MBANDAZAYO: Chairperson, I agree with you if somebody is reckless, but let's look at it this way. If somebody is not necessarily reckless in doing that, if one is going to ambush your vehicle, if I may make that example, and it so happens that there was one person which they did not foresee that he might be there in the vehicle, would one say, Chairperson, that what they did, if you find that it was politically motivated, it was done within the scope and operation of that organisation, then because there was one person who had nothing to do with that operation, then would you say that because of that then what they did had nothing to do.

CHAIRPERSON: What was the political objective in killing her? You said it had nothing to do with that operation, but they nevertheless continued to open fire knowing another person was sitting there.

MR MBANDAZAYO: Chairperson, definitely if one, when I started and put it, the whole in context, the whole context of this operation, PAC policy as a whole, I was trying to put it that definitely if you look at the policy it is clear that even if they were not under any instructions they acted on their own as members of the PAC in furthering of the political objectives of the PAC, they would have been covered because it was still within the PAC policy to do that.

CHAIRPERSON: But they didn't say so.

MR LAX: You see, Mr Mbandazayo, my problem is this, and to this extent they haven't come here on the basis that the act that they committed was within the general context of the PAC's policy, they've come here on a different basis, they've come here on the basis that they had specific instructions to carry out a particular operation. You've gone further than that, you've said their instructions were so specific that they had to do it on that day. You follow? Now that being the case you can't rely on the general context, the general policy context to then provide the mantle of authority for them doing things outside the context of their orders. Do you understand my concern? But if you'd come back to the second issue, the first question that I raised. You've attempted to deal with the second aspect.

MR MBANDAZAYO: Thank you, Chairperson. Let me go to your question which of course you raised and also that Mike Meyers had nothing to do with the AWB. Chairperson and Honourable Members of the Committee, I think my answer to that, my argument to that would be that it's one of those cases where wrong information has been supplied with regard to the target, and that themselves they were not party to that, they have to carry out the orders which they have been given to carry out. As it is clear that he was not a member of the AWB and he has nothing to do with the AWB, according to evidence. It's clear that it is one of those orders and that information which was incorrect which they were supplied with and they carried out on the basis of that information which was not correct.

Coming to this question of the instructions. I agree with you hundred percent that the instructions were specifically that they have to get Mike Meyers, they have to get Mike Meyers and that unless they are in danger it's then that they will have to kill. And they said that they thought that he was shooting at them and that's how they shot him and that also that's how Donne Meyers was shot.

But coming to this question of Donne Meyers, that she had nothing to do and it was not the instructions to do what they did to her. Chairperson, it's just that it's so unfortunate that of course there was no evidence led from any other quarter to cover some of the aspect which an ordinary foot-soldier, when he's given an instructions what he is expected to do under certain circumstances, whether they cannot on their own, taking into account the policies, the principles and the policies of the organisation, whether on their own they cannot take initiative and do certain things out of their own. But definitely I agree with you a hundred percent that on the day in question the instructions were specific.

CHAIRPERSON: But those instructions were based on the fact that they were told to reconnoitre Mike Meyers, that they spent two weeks doing this and supplied the information to their commander, and they were then told to carry out the operation on this day. When they got there on this day they must have known that the truck was now being driven by somebody else, because he went round to the passenger side to point his gun at Mike Meyers. There was nothing to stop them going back to tell their commander; the position has changed, it is no longer as we reported to you, there is somebody else driving the vehicle. There was no urgency, you conceded that. They were the people who reconnoitred the vehicle, they were the people who reported what happened, that is that he drove it on his own on all the other occasions and now things had changed. It's not disobeying an order, it's going back to tell your commander; things have changed, we'll have to alter the plan, isn't it?

MR MBANDAZAYO: Thank you, Chairperson. Chairperson, the way you put it one would say I concede that's a point, but one would ask whether that would have been the case when it comes to them. We don't know what would have happened, what - as I indicated that unfortunately there's no other evidence led on that aspect, as to what actually happened when somebody, if anything is not - when you were given an order and you have reconnoitred the place and you find out that it's not what you thought it is, can you despite that carry out those instructions? Of course I may of course concede that in one of the, in some of the cases that has happened, where they have been reconnoitred and find that these people who were supposed to be targets are not the people and some have not carried out the instructions, taking into account that many people who were not supposed to be injured will be injured in the process.

CHAIRPERSON: I'm sorry, I must correct what I said to you, Donne was not driving on that day, she was sitting in the passenger's seat which was the seat nearest to your client when he went, Mike Meyers was in the driver's seat and yet he says he in trying to shoot Mike Meyers he shot Donne.

MR MBANDAZAYO: Yes, Chairperson, exactly, that's what he told the Committee, that at the time they saw that there was somebody on the passenger's seat and he went there to take care of that particular person and Mike Meyers was on the passenger seat and it's that time ...(intervention)

MR LAX: Sorry, driver's seat.

MR MBANDAZAYO: Thank you, Member. ... was on the driver's seat. It's that time when he saw him going for something which he thought that he was going for a gun and he shot. It's then he fired and unfortunately he shot Donne Meyers. And Mike Meyers went on the other side running and Zama Thutha, the second applicant, it's then that he shot Mike Meyers, thinking that he is the person who fired the shot on his comrade and it's how he shot him. That's the evidence they gave before this Committee.

MR LAX: Can I move onto a different issue, it's around the issue of full disclosure. I accept what you say with regard to the way witnesses vary in their testimony, we've seen that on numerous occasions, but that's usually in the context where something happens very quickly and it's a traumatic event, that people then see the same thing differently and they see different people in different places and so on.

With regard to what happened in the vehicle, both applicants were in the vehicle, driving the vehicle, one was a passenger, for a long period of time from the scene of this attack to where it happened, they would have had plenty of time to see what was happening. You would expect there would be some consistency in their perception as to what had happened to Donne.

Just to refer you for example, to the evidence or the application of Mr Kulman where for example at page 10 of the papers, if one read that paragraph, that's paragraph 9(a).4 but over the page on page 10 of the papers, he says:

I think he's trying to say:

Okay? Now on that version alone Donne Meyers wasn't shot there at all. That would explain why she was purportedly still alive at that point in time, forced to kneel down below the dashboard, as the testimony went, and why she was then shot later or killed later. Now that version raises a whole set of probabilities diametrically opposed to the other version, how do we deal with those inconsistencies? That is the one thing.

The other thing is this, that on your issue around the orders, they would carry much more weight for me as someone listening to this whole matter, if the commander wasn't present at all, but the commander was present in the most bizarre way, he keeps coming backwards and forwards into this matter.

Now what I find highly improbable is that the commander arrived at them long after this thing and then despatched Donne Meyers. How on earth could they have connected in that way? The probabilities make it so absolutely unlikely, to me anyway, that that could have happened. That would be the only way to explain their conduct. The commander wasn't there, they couldn't refer to anybody. Maybe they didn't even have instructions, then their course of conduct seems explainable. So can you just address those two issues?

MR MBANDAZAYO: Thank you. Through you Chairperson. Chairperson, with the question that they travelled such a long distance, Kulman I think when he was testifying before this Committee he told the Committee that he had a problem with remembering some of these issues, he's suffering from memory loss, whatever the reason may be for that. But of course my argument is based on the fact that, what would have been the reason for him to say that he shot Donne Meyers, complicating issues for him, that he shot Donne Meyers where they shot Mike Meyers? What would be the reason to say that they shot her there, not on the second spot when they gave evidence here. One would be left with many questions. Chairperson, through you, I'm not going to attempt to say that I know the answer from there, the answer for that.

I wouldn't like to dwell much again on the question of what happened in the truck from that spot to the second spot. I think I wouldn't like to put it in so many words that I've highlighted that, that it raises some problems, some questions as to what actually happened. That is why I ended up explaining that maybe it's because people don't have the same capacity to remember things as the others. Some remember like if you were watching a football some would say the goal was scored in the first half, some would say in the second half, not knowing, yet all of them were watching the same game, they were there in the field.

In any event, one would have to take this matter in its context, that's why I'm saying I don't want to dwell much on that because definitely I don't even myself have some answers on some other issues which have been raised, and I considered from the beginning that some of these issues are difficult to deal with, except that you can deal with them in a very broad way instead of being specific on certain issues because definitely you encounter problems immediately you deal with specific issues, you remain with many unanswered questions.

Of course also the question of the commander which of course also in itself as you raised it, I had hoped that I would raise it, which also raises some questions that he was so near one would have expected that he had dropped them and left for good, but it so happened that he was in the vicinity which of course also itself was very unusual, the way it happened.

But Chairperson, through you, as I indicated that I wouldn't like to dwell much because definitely I wouldn't have many answers for that because the more I answered, the more I tried to answer the more it raises more questions.

MR LAX: One last question from me. I understand, and you can just correct me if I'm wrong because I just can't find it my notes, they were convicted of robbery as well.

MR MBANDAZAYO: Yes, through you, Chairperson, that's correct.

MR LAX: Now on their version they haven't committed any robbery, how do we deal with that as a Committee? What submissions would you make in that regard? Well of the vehicle, they robbed the vehicle, but the rest of the items, there were firearms, there was money, there was a whole range of other things. How do we deal with those aspects? The vehicle, that's cut and dried, don't worry about the vehicle, but it's the other items they deny having taken.

MR MBANDAZAYO: Chairperson, through you. Definitely if an applicant denies involvement in a certain issue, definitely there is no way that you can, even if you were in a position to, grant it. I think we had a similar problem in Kibler Park where the applicant was saying I'm prepared to rot in jail rather than to admit that I did that. So I think when it comes to that it says it all. If somebody denies that he did that, definitely there is no way that we can say that, force him to say that he did what he's saying that he did not do.

ADV SANDI: Does it not mean that there is clearly no application in respect of that particular offence?

MR MBANDAZAYO: That's what I'm trying to get at because definitely the reason why they did not apply for that is that they believe they did not commit that particular offence, so it means there is no application for that because they believe that they never committed that. It's clear that you cannot apply for amnesty for something you believe that you did not do. That is the reason that it is not there.

ADV SANDI: Sorry Mr Mbandazayo, there was some evidence I'm trying to recall, you say - when we convened here last time several months ago, there was evidence from one of the applicants in response to a question as to why they did what they did to Donne Meyers, I'm not sure if it was Mr Thutha or Kulman, where he said it was because she was the daughter of a person (that is Mr Mike Meyers) whom they believed was an AWB member. Do you recall such evidence?

MR MBANDAZAYO: Through you, Chairperson, I recall that evidence. When they were asked:

That was in response to that, and the response was that the reason was that Mike Meyers was dead and they believed that she might be of help because she is the daughter to Mike Meyers and that's when they, their evidence says that when they arrived, when they met Thandukolo, Thandukolo said she is useless, there is nothing we can get from her.

MR LAX: Sorry, there's no way they could have known she was his daughter, they'd never seen her before, but anyway ...

ADV GCABASHE: In fact my recollection, Mr Mbandazayo, is what Mr Kulman said was that they hadn't intended to take her, she wasn't part of the plan, she happened to be in the vehicle, they had hoped they would be able to let her out later or something like that but essentially the plan just went wrong. There had been no intention at the time because they had no knowledge of her presence until they actually saw her, that she was there. Again, the evidence was different between Mr Kulman and Mr Thutha I must say, which is part of the difficulty.

MR MBANDAZAYO: Thank you, Chairperson. That is why I'm saying the more you go to finer details, to specific issues, the more you come up with many questions, it raises many questions. That is why I said the best way was to deal within a ...(indistinct) broadly because it has many questions, it will leave you with unanswered questions.

ADV GCABASHE: Mr Mbandazayo, you see my difficulty is with some of this detail where the versions are not quite the same, but if I look at it in a very broad, from a broad position, my difficulty is really with the probabilities, one: that Thandukolo was involved at all, just on the evidence that was led - I'll set this out for you - that he was involved at all in this particular mission and that in fact that they had been given an order in the first place to carry out this mission on behalf of APLA. But assuming that they were given this particular order, we have heard other applicants tell us; we got to a particular place, things didn't look right, we aborted - that's one of the applications that has been before us - and we went back and carried out our mission at a different time because the conditions were not right. Here the conditions were not right from the word go.

There are APLA operatives in other missions who abort when they see the conditions are not right, these two particular operatives continue with a mission even though everything that they, every step they take turns out to be the wrong thing that happens, they don't think of aborting at any stage at all and fleeing or going back to their commander to say we'll have to try something else at a different time.

A related aspect - again just talking about probabilities, you know my recollection was there had been this general reconnoitring but if I remember well, and it's in this volume 1 of the transcript, Mr Kulman did say - and I'd asked him this - they didn't know specifically that on that particular Friday afternoon at that particular time, Mr Meyers would be there selling milk. So the impression I was left with then and that I double-checked on now, it was in terms of the record, was it was really just by pure chance that on that afternoon at that specific time he was there.

Now as I understand APLA as an organisation, if they set off on a mission, missions were important, the objectives were very important, they won't send chaps who do not know what they are doing or do not know how to go about doing what they are doing. And it takes me back to the whole probability that this was in fact an APLA mission carried out on behalf of APLA. It was so uncoordinated, it was generally just so disorganised. I have difficulty in associating it with my perception and understanding, having heard other APLA matters of the way APLA operatives were disciplined and they way in which they operated. I don't know if you are understanding me. It's a very broad general question really, and I don't know if you are able to assist me at this very broad level, thank you.

MR MBANDAZAYO: Thank you. Through you, Chairperson, my answer will be simple. I've avoided it deliberately, all these aspects because I knew that they will come up. I know, I'm clear about that, I knew that they will come up, I avoided them deliberately.

My answer to you is that, I will put it in a mild way to say that I think I've put enough evidence before this Committee and the other side has put enough evidence before this Committee to reach a fair and a just decision on this matter, thank you.

ADV GCABASHE: Thank you.

MR BOTMA IN ARGUMENT: Thank you, Mr Chairman.

Mr Chairman, the main question here is to decide whether the applicants have discharged onus upon them. That is, did they show cause or did they show to this Committee that they are entitled to relief they sought, and that is total amnesty in the charges of:

Now the applicants claim that they were in fact members of the PAC and they had this political motive and that they were acting in an operation of APLA on specific instructions.

Now my submission to this Committee is that this allegation has unsubstantiated so far. There has been no confirmation that they were in fact members of APLA, there is up to this date no evidence before this Committee in regard to this specific operation, whether it has been confirmed or approved by APLA before it started, we just have these general allegations being made or a general viewpoint of APLA and the PAC, but it's not been brought to the specific case and the specific circumstances of this case.

The Committee might have heard that Kulman, the first applicant, was a member of APLA because he was involved in other operations, but the same is not applicable in regard to the second applicant, this was his first operation. We still don't know to date whether he was in fact a member of the PAC and whether he was supposed to form part of this operation.

Now much has been said about the question of the PAC, what their attitude was, but one will come to the question and ask yourself, is this a blanket authority for them to kill a person just because of him being white? And that question has also to be answered and it's never been answered up till now.

Now according to the first applicant his instruction was to capture Mike Meyers for interrogation as he was a member of the AWB and then also to take the truck for the use of APLA. Now the main reason therefore for the capture of Mike Meyers was because he was a member of the AWB and APLA wanted to question him about the AWB activities in the Elliot area. Now my submission once again to this Committee is that the allegation that Meyers was a member of the AWB is totally unfounded and I don't there's any problem for the Committee to come to that finding.

But furthermore, the main question here is to decide whether this wrong information was submitted to the applicants or not, and I am submitting once again to this Committee that this information was not passed on to the two applicants. The reason why I'm saying that is that this fact was never mentioned during the trial itself - we cannot ignore the trial, we must look at the trial as well as the application - and secondly, it was never mentioned in the application that Meyers was in fact a member of the AWB. This Committee will remember that this only came up during the affidavit that was submitted to this Committee just a day, or on the day before the application itself started.

Now I'm going back to the question of the trial. We have a situation that the two applicants appeared as accused during the trial and first of all their defence was an absolute denial of any knowledge of the incident, that they were just walking alongside the road and they were then arrested by the police in connection with this case. And then after some time after the political situation had changed, actually as far as in August 1994, that was after the elections and after Transkei had become a total part of South Africa etc., etc., then they came and told the Court that they have decided to change their plea after they had consulted with higher authorities on this issue and this is their defence now, and that is on that basis that they carried on.

Now the question remains, at that stage they were aware of the fact that there is going to be amnesty, why didn't they mention all these facts at that stage already to the Court? If Meyers was in fact a member of the AWB or if they had reason to believe that he was a member, then that would have been a very important issue to mention and it was never mentioned. And the reason advanced by the first applicant why it was not mentioned, with due respect, doesn't make any sense. This Honourable Committee will remember that he said something about "we still had some APLA bases to protect in the Transkei area and if we revealed that information at that stage there might have been an attack from the South African Government on these bases." But once again this Committee will remember that this was now done after Transkei became part of South Africa and after APLA members or APLA cadres already formed part of, or in the process of forming part of the then Defence Force.

So therefore, my submission to the Committee is that the Committee can totally reject this allegation of the applicants that the reason why they wanted to capture Mike Meyers was because he was a member of the AWB. Now if that reason for his capturing falls away, then this Committee must have doubt whether he had in fact those instructions to got an capture him or not. And my submission is that because the basis of the reason for the capturing falls away the whole capturing itself falls away, and it will bring me to a question later on which I will argue that, as my learned friend has correctly pointed out, there are so many uncertainties and the uncertainties were brought about by the fact that they have failed to make full disclosure and they failed to take the Committee or bring the Committee in and give the Committee everything that has happened on that day.

Now my submission is that one can accept at the most, or on their behalf is that they went there maybe to steal the truck on instructions of Thandukolo or - rather let me rephrase myself, on instructions of higher command, and one can accept maybe at the most that their instructions were to use force only in the question of where there was resistance from the side of the owner of the truck, that is the deceased in this matter.

Now this case then is a typical example of how robberies are being committed in South Africa today, you first shoot to kill and after the person is dead then you take whatever you'd like to take. It is not the old classical example of a robbery that you first ask the person; put up your hands and make sure there's no resistance and then you take whatever you want to take. This is a typical example of where they went there, shot to kill and after they've killed then they decided to carry on further.

Now then we come to the subsequent events thereafter, that's the kidnapping of Donne and her killing itself. Now the killing of Donne must also be seen if we look at what happened at the beginning on their arrival there. Now at this stage it might be worthwhile to pause for a moment and ask ourselves, or reconsider the truthfulness of these two applicants when they testified before this Committee. Now I've already mentioned the fact that one of the requirements is that they must make a full disclosure before they will qualify for amnesty.

Now the Committee has heard the evidence of both the applicants in this matter, and it is submitted that there will be no difficulty for this Committee to reject their evidence. Their evidence is full of contradictions, as has been correctly pointed out and conceded so far. There are so many improbabilities in their evidence. All these unanswered questions remain and they couldn't give reasonable explanations for some of these issues. And what was, as has been correctly pointed out by one of the Members here, is the question of the presence or even the existence of Thandukolo. Did he exist, was there a person like Thandukolo or not? Was he ever there or not? I mean, because of all these unanswerable questions, how can this Committee come to a finding that he did exist or that he was at the scene at all?

During the trial once again the second applicant testified that Thandukolo was responsible for the killing of Meyers and then he comes back and says no, Thandukolo wasn't there and he was the one who killed him and the reason why he killed him was because he thought he was reaching for a gun inside the truck or not.

There must also be doubt in this Committee when dealing with the questions of Thandukolo, whether he was in fact on the second scene or not. I unfortunately didn't have the benefit of the whole part of the record, but my submission is that there was evidence of the person who was in charge of the tanks or busy putting up the tanks stand - I'm not so sure whether he did in fact testify or not - that there was no other vehicle, he didn't see any other vehicle thereafter, so there must be that question as well regarding him.

Also a point I'd like to stress is the second applicant who was asked about his evidence he gave in the Court, and he said that day he deliberately gave evidence, false evidence under oath in the Court in order to try and fit in his case to the best of his ability. The question here is, is he not still doing it or wasn't he still doing it when he was testifying before this Committee, that's he's prepared to turn his evidence or to present his evidence in the way that he believes might be the best in the circumstances. Once again, how can the Committee then take any cognisance of his evidence in the circumstances?

I'm then dealing with the question of, the most important question, of how Donne was injured, where was she injured and what injury caused her death at the end. Now there is no doubt as to what injury caused her death, and that was the total destruction of the brain, or let me rather try to use a term used by the doctor, a complete crushed skull, and was caused by a gunshot wound to the head.

Now unfortunately up till today we are still in the position that we do not have the medical diagram showing the injury to the brain, but we do have the diagram showing that there was - and we of course have the photographs as well, C1 etc., showing some of the damage to the head, but it's common cause that there was in face a gunshot wound under the left eye and that penetrated the skull and caused all the damage to the brain. Now once again, without the benefit of once again reading the evidence of the doctor who testified here, but my recollection, I might be wrong so that's subject to correct, is that Donne wouldn't have survived for long after that injury.

Now if once accepts for one moment the version of the first applicant, that's Kulman, that he was the one who shot her there - I think he went as far to testify that she turned at him and the gunshot was in fact the gunshot wound under the left eye, and that was the one that caused all the damage, now if that was done at the time of the first or when they were at the first scene and they drove thereafter for 40 to 50 kilometres and then took her out of the vehicle and took her over the fence, my submission is that the Committee can come to the finding that she would have been dead by long by that time.

It's couples also once again with the evidence or the contradiction between the two applicants. The first applicant said:

The second applicant testified that:

Trying to explain the evidence of the police official that there were scenes of drag marks:

Later he changed his evidence to say that he was not dragging her, he denied that he said that, and then it came out that he was just pulling her or taking her by her hand. But once again one can accept that she was, he went as far as to say that she was resisting. Now a person with a gunshot wound like that wouldn't have been able to resist. She would have been unconscious and it might have fitted in more with the evidence of the first applicant, but then once again ...(intervention)

CHAIRPERSON: The injury to the brain wasn't only gunshot, was it? If you look at the post-mortem report, she had a completely crushed skull. And on the next page, page 2, the post-mortem report:

CHAIRPERSON: ... My understanding of the doctor's evidence was that there had been blunt force applied to the brain.

MR BOTMA: Well once again, Mr Chairman, unfortunately I don't have the evidence of, I wasn't made available of the evidence of the doctor when I prepared my argument to this Committee, but what my recollection of that is that the fracture of the skull was in fact caused by the exit wound.

MR LAX: Sorry, that was my understanding as well.

CHAIRPERSON: The exist wound was right down at the back of the neck.

MR LAX: No, that's a stab wound.

CHAIRPERSON: There was an entrance wound under the left eye.

MR LAX: Yes. If one looks at the pictures you can see that that bullet wound that went in there came out the top of the head and caused the damage that one sees in the actual photographs. The other wounds are stab marks - if one reads the report.

CHAIRPERSON: ... the doctor's evidence yet, I think we'll have to get it.

MR BOTMA: Thank you, Mr Chairman. But then I'm coming back to the point, and my submissions to this Committee are based on my recollection at this point in time and if need be we can submit further argument once it has become available, but I think I can complete my argument on this point and that is she wouldn't have been alive, if she was shot at the first scene when they arrived there she would have been long dead.

Then we must have a look once again at the submissions made or the evidence given by the first applicant as to how she was shot at the first scene. And I would like to refer the Committee to pages 1167 to 1169 of the record, without reading the record. He also gave on other pages also some indication of how she sustained the injuries, but he will testify that he was, or he did testify that he was standing on the side of this truck looking towards Meyers, he asked him "give me your gun", Meyers lent forward and as he was about to reach for the cubbyhole he fired a shot because he thought that Meyers was going to grab his gun from the cubbyhole.

Now I asked him specifically on that point and he said that at that point his head was far down below the head of Donne and he was aiming for the head and the body downwards. He also conceded that he was a skilled or gunshot, or a shootist, that he received training in the handling. We're talking of about a distance of two to three metres at the most he was standing away from her, and he was trying to explain that she came in his arc of fire. With due respect, arc of fire is not applicable on such short distance, we're talking about maybe the line of fire. But in that short of distance of two to three metres, it would have been, if he aimed for the head and downwards, how did it come about Donne through the face?

And my submission is once again, this Committee can safely come to the finding that Donne was not shot at all at the first scene, that she was conveyed from there on and that she was executed the way she was at the second scene. And therefore my submission is mainly on the basis that there could have been no political motivation at all for the killing of Donne at the second scene. As correctly conceded by my learned friend, the way she was killed is not in line with other normal killings of this kind, the fact that she was taken away from the side of the road to a point where her body would have been concealed and the way in which she was killed, not only this gunshot wound, there might have been more than one gunshot wound to the head as well, there's also the possibility, but also all these several stabbings that took place or the incise wounds of the body.

And my main argument is that the two applicants were involved in the killing of Donne. Alternatively, even if this Committee comes to a finding and gives them all the benefit of the doubt that Thandukolo was present, my submission is that there's still on the basis of common purpose that they were also there, they formed part of this and if Thandukolo killed them they were part of that, Thandukolo's killing would not have been politically motivated and therefore their actions could also not have been politically motivated in the circumstances, and therefore on that basis it can also be refused.

In order then to conclude my argument, my submission to this Committee is that none of the applicants do qualify for amnesty on any of the cases on which they are convicted of, that is:

And even if the Committee lent backwards as far as it can, it can come to the finding that there might have been political motivation with regard to the first killing and maybe the robbery, but my submission is the Committee can never come and safely come to the conclusion with regard to the killing of Donne, and therefore I urge this Committee to refuse the application. That is all my argument is based on and I'm prepared to answer questions from the Committee if I'm in the position to so.

CHAIRPERSON: Thank you.

MR BOTMA: Thank you, Mr Chairman.

ADV PRIOR IN ARGUMENT: Thank you, Mr Chairman, just a few points. Both Mr Mbandazayo and Mr Botma have argued virtually everything.

Mr Chairman, an area that does concern one is the whole motive behind the attack. The difficulty that I have as Evidence Leader is obviously the motivation for the attack, and obviously the applicants have been at pains to attempt to convince the Committee that they were acting on orders from a commander by the name of Thandukolo.

Mr Chairman, at page 1224 of the record, Mr Kulman under cross-examination was asked, if he was acting under orders and if the operation was part of the general type of operations performed by APLA, that is to obtain material support and funding. He could not explain why the money had not been handed over to Mr Thandukolo at least at the stage near the Bashe River. In fact the money was recovered from Mr Thutha's person when they were arrested by the police. It seems to my mind at least that they had ample opportunity when they met up with Mr Thandukolo at Bashe, that is the place where Donne was murdered, to simply hand over the funds or the money that they had obtained in this operation. This wasn't the case. We know Thandukolo was not seen at all by any of the other players. His bakkie, or a white bakkie in which he supposedly was driving on the day had not been noticed by the, I forget his name for the moment, he was working at the timber station, Mr Makasi. But be that as it may, it would seem to my mind that that would have been the golden opportunity, if they were acting under orders and Mr Thandukolo was going to leave the scene, to simply hand over to him the money.

According to the post-mortem report, Donne sustained, on my count Mr Chairman, nine incised or stab injuries to her body in addition to the gunshot wound. My submission is that this would be totally disproportionate. The manner in which she met her death is totally disproportionate to any political objective sought to be gained from her death.

If I may refer the Committee to a portion of the record, that is volume 1 that is before you, at page 1210. This was a question put to Mr Kulman by the learned Member, Advocate Gcabashe. She asked him:

His answer was:

He then confirmed later on that that was in line with APLA policy. However at the outset of his evidence, when he was asked by the learned Member, Mr Lax, and this appears at page 1089 of volume 1 of the record, it was pointed out to him that his amnesty application or the information contained therein differed substantially from the information supplied in the supplementary affidavit. And it was pointed out that the object initially was to capture Mr Meyers and that would happen to his vehicle was totally ancillary, it was not the object at all.

And then at the next page he then went on, there was a discourse between Mr Kulman who said Mr Lax shouldn't become impatient with him. He didn't really answer the question. He then said he did not divulge these facts because he was protecting the army, meaning that APLA had been accommodated in the Transkei and at that time he could not divulge that information. That appears at the bottom of page 1090.

Again at page 1093 of the record the learned Member, Advocate Gcabashe at the bottom of the page again poses the question concerning his original application, dealing with political objective.

The question was:

Now this goes on at page 1094 of the record. Mr Kulman then replied:

Mr Chairman, if one reads this evidence of Mr Kulman in particular as to particularly what was the reason to continue with this operation, it was certainly not to injure or harm Mr Meyers and certainly they were unaware of the presence of Donne, but we can possibly also accept that it wasn't the intention to injure anyone at that time.

Now the reason that Mr Kulman gives for shooting at Mr Meyers, was that he believed he had made a movement towards the cubbyhole. He believed that the weapon, he was going for a weapon with which to possibly shoot at them. Yet, one will recall that despite the fact that he drove in the vehicle after dispatching of Mr Meyers, that he never looked into the cubbyhole. And one would have expected that if he believed Mr Meyers was reaching for a firearm that was in the cubbyhole, he would at least have looked there. The pattern in which the operation was carried out seems to, as Mr Botma has pointed out, seems to have all the trappings of a robbery in which persons are simply shot and then the property is then thereafter taken.

Mr Chairman, I don't have any other aspects to bring your attention to, I think they have all been canvassed by both parties, thank you.

CHAIRPERSON: Did Mr Kulman say something about the money, did he say ...

ADV PRIOR: Sorry, Mr Chairman, I've referred to page ...

CHAIRPERSON: 1224?

ADV PRIOR: Yes.

CHAIRPERSON: Where he said he didn't see it?

ADV PRIOR: Yes.

CHAIRPERSON: And Mr Thutha denied that he had it?

ADV PRIOR: Yes. But at ...

CHAIRPERSON: 1303?

ADV PRIOR: Yes. But certainly the evidence was that money was recovered and the indictment indicated Mr Thutha, but between both of them there was a denial of that aspect, but the evidence from the police was that they recovered money, I think from Mr Thutha. The point that I simply make is that they had enough time or sufficient time to give the funding, if funding was what one of the objectives was, to Thandukolo, if in fact he was there. And I think that also may strengthen the probability that he was not there or not at the scene.

CHAIRPERSON: But if it was found on them by the police, there hasn't been full disclosure, has there?

ADV PRIOR: Yes. Thank you, Mr Chairman.

CHAIRPERSON: Do you wish to say anything further?

MR MBANDAZAYO IN REPLY: Just two aspects, Chairperson. The first one will be the evidence in the Court of law. Chairperson, my comment will be only that we know all of us, when we go to the Court of law everybody wants to be acquitted,

he uses any evidence in a Court of law in order to be acquitted. That is why the Committee does not make much emphasis on what has been said in Court, because everybody, people always come up with a bad denial that they know anything about the offence, yet they know about it. So that is my comment I wanted to make regarding the question of what happened in a Court of law, everybody wants to be acquitted, he would say anything.

The second one, Chairperson, will be the one raised by Mr Prior about Thandukolo, handing over of the money. Inasmuch as I have considered the question of Thandukolo, that there are many possibilities, it raises many questions, but I think they gave evidence that they have to hand it over in a proper way after they have arrived, because the money, because even if the money was there - in any event they have denied it, even if the money was there they have to count the money, they did not know it. So they have to make a report after that, that how much money was handed over to him. So definitely the probabilities are that the operation was not yet over because they have not yet arrived at their destination where they can hand over everything, if the money was there. Which of course the police indicate that the money was found in their possession, which of course they deny. Thank you, Chairperson.

CHAIRPERSON: Thank you.

MR BOTMA: Mr Chairman, if I can just be of assistance to the Committee and refer the Committee to page 1202 of the record. On a question:

And in an answer given by Kulman, the first applicant:

But at the end he says:

And then on the next page 1203:

In other words, on page 1203, line 10:

MR MBANDAZAYO: Chairperson, I don't think there is a dispute that there was money, I think the dispute was that it was in the possession of Zama Thutha. That is what they disputed, that he was in possession of the money at the time. There was no dispute that there was money in the truck when they took over, but he denied that it was found in his possession.

ADV PRIOR: ... in the hall. It is clear that the Committee will consider its decision. That means that the matter will simply stand adjourned until that time. May then the interested parties, the family members and that, can they be excused?

CHAIRPERSON: Certainly.

ADV PRIOR: Yes. Mrs Meyers and her daughter are present.

CHAIRPERSON: Do you want us to make any finding in that regard?

ADV PRIOR: Yes, possibly at this stage before the ...

CHAIRPERSON: You don't have any objection to that, do you? I think it is very clear that his widow and his daughter were injured parties in this.

MR MBANDAZAYO: Yes, Chairperson, they were definitely, there is no doubt about that.

CHAIRPERSON: How old is the ... We are of the opinion that they are victims and have suffered injury and we refer them to the Reparation Committee, that is the widow and daughter of the deceased Mike Meyers.

ADV PRIOR: Thank you, Mr Chairman. Mr Chairman, may we adjourn for a short while before we ...(intervention)

CHAIRPERSON: Well do you want to adjourn for a short while?

ADV PRIOR: Or is it lunch? Well can we take the adjournment now and then continue with the next matter on resumption?

CHAIRPERSON: What time?

ADV PRIOR: At two, Mr Chairman.

CHAIRPERSON: Two.

ADV PRIOR: Thank you.

ADV PRIOR: ... after the luncheon adjournment. We proceed with the amnesty applications of Moalusi Morrison and three others, under the theme; King William's Town Golf Club Attack. The matter is ready to be argued. I'm Advocate P C Prior on behalf of the Amnesty Committee, as Evidence Leader.

MR MBANDAZAYO: My name is Lungelo Mbandazayo on behalf of the applicants, thank you.

CHAIRPERSON: The Committee remains the same.

MR MBANDAZAYO IN ARGUMENT: Chairperson, I wouldn't this time read the provisions, they are well-known to the Committee more than myself, the provisions of this section, suffice to say that, first to submit that it is my submission that the four applicants have complied with the requirements of Section 20(1) and (2) as they were on the day acting on behalf of APLA, a known political organisation and liberation movement which was engaged in political struggle against the State at that time.

Chairperson I will start with the, my focus will be on the political objective sought to be achieved by the incident, and also on the full disclosure, especially the question of full disclosure.

Chairperson, I will start with the first applicant, Thembelani Xundu. Chairperson, I think the Committee will agree with me on this aspect that also myself I want to concede in all the applicants, in all the incidents that I've represented the applicants on behalf of APLA, is one where I had one of the articulate applicants who were able to put the events across as clearly as they can.

Chairperson, everything that was asked by the Committee from the applicant, he answered it as clearly as he could and he took the Committee in each and ever detail regarding this incident. He told the Committee that there was an order and that after that he was given a task to do reconnaissance, and he was the person who did the reconnaissance. And took the Committee in all the details as to what he did, how he pretended to be a caddy in the golf club in trying to collect the information. Every aspect, everything that was involved in the operation at the golf club he told the Committee every detail.

Chairperson, the only thing that I think cropped up when Mr Stanford's former attorney questioned him it's then that there was some hitches, was the question of the report about the incident where it was that it was postponed. That was the only hitch that was there. And he said that it was never postponed, the only operation that was postponed was one which was to be carried out at the sports fields where the South African Defence Force was going to have activities, and because of raid they couldn't and the report read that the enemy, because the enemy could not avail itself. And he said that he believed that the report was doctored.

Fortunately, Mr Radie who was the organiser, who was involved in the whole thing, came and testified and told the Committee that there was not any stage that date was secured at no stage was this postponed, this event was postponed. So in that aspect his version was confirmed by Mr Radie, that there was no way. And it leaves only one thing that that report was doctored, that it included the other incident together with the golf club and it reflected as if the golf club incident was once postponed.

And as such, Chairperson, that is the reason I first quoted that the applicant has met, when it comes to disclosure, Chairperson, there was nothing which came across to contradict all the evidence that he gave before this Committee.

As well with the second applicant. The second applicant came on to confirm and also his role with regard to that. Thobela Mlambisa who was a driver, he told the Committee what was he doing before they carried out the operation, that they were involved in classes and they were waiting for the day that they have to, they knew that when they came, he came from Transkei, that he came here for an operation and that he knew that he was waiting for that.

All of them they were only doing political classes in order to get themselves ready for that, and that they were informed about that operation on the day of it and they were taken there by Thembelani Xundu and they were shown the place.

It's the same with the third applicant, Chairperson. The only role that he played, the only role that he played was to supply weapons. Before I go to the third applicant, Chairperson, one would remember that Mlambisa was also involved in the St James incident. So Chairperson, there is no doubt about his, the same with this operation, though it was the first one Chairperson, in these operations of APLA which are almost similar with the St James, Heidelberg and others. It was heard first the St James. Thubela Mlambisa was also involved in the St James incident which was after the golf club incident. And also that on its own shows that the same modus operandi was the same at the golf club, which was the same also at the St James incident and the Heidelberg incident, Chairperson, though none of them were involved in the Heidelberg incident, these applicants.

What I'm trying to get across, Chairperson, it's clear that if you look at the St James where he was involved and he was granted amnesty and also look at the golf club, these incidents the same modus operandi is the same and all of them were carried out in the same manner. And as such, Chairperson, it's clear that all of them were politically motivated and that all of them were clearly operations of APLA, as all of them like St James were claimed by APLA, and also PAC has taken upon it also that of course APLA was responsible for this operation.

Also coming to the third applicant, Moalusi Morrison. Chairperson, the role that was played by Moalusi Morrison was to supply weapons and that he told the Committee how he ferried weapons from Transkei to King William's Town which he carried them to Dimbaza to be handed over to Thembelani Xundu.

Chairperson, he told the Committee that he was given these weapons by Sipho Xuma. Chairperson, this Committee knows about Sipho Xuma, that he was a Deputy Director of Operations in APLA, second in command to Letklapa Mpahlele and that he was also a Director of Special Operations and he was the man. His name is always mentioned as it was also mentioned at Heidelberg Tavern and some also limitedly in St James, that he was the person who has been supplying arms, also in Johannesburg, that he's always involved when it comes to the supplying of weapons in all these operations.

And as such he told the Committee everything and how the route he has taken and how everything was done, the car that was used up until they were handed over, until Major Xundu took them to Xnesha and put them in a DLB in Xnesha until the operation at the golf club.

The fourth applicant, Lungisa Ntintili. Chairperson, also the role he played was after the incident itself was to assist the applicant when they could not get back to Transkei and they required his assistance, that they have to dispose of the vehicle which they used in the operation because there were roadblocks all over and that police were after them. So they had to take his car and drove in his car and they asked him to drive the car which they used in the operation, until they burnt it between Fort Beaufort and Grahamstown, on the road to Grahamstown.

So that was the role that was played, and also that he was asked to keep weapons which of course were used in a later incident at Yellowwoods. He was asked to keep weapons.

Chairperson, if one followed it, the whole incident and the whole evidence which has been adduced in the hearing, it's clear that the applicants that what they did was they acted on the instructions and they carried out the instructions. They did not carry out the instructions for their own benefit, they carried them out on behalf and they believed that what they were doing was for the benefit of the struggle which they were waging.

Chairperson, I would like to mention that also another applicant who was involved unfortunately passed away was Xhomiso Nonxuba who was the main man, Regional Commander who the applicants were reporting to. Xhomiso Nonxuba was also involved in this operation and Mr Xundu was reporting to him directly as his immediate senior. And to remind the Committee that Xhomiso Nonxuba was also involved in the St James incident, he actively participated in St James with Thubela Mlambisa and others.

One would also remember that also in Heidelberg, Xhomiso Nonxuba's name was mentioned as the person who instructed them to go to Cape Town, Gqomfa and others and he gave them money for transport and everything so that they will get weapons in Cape Town.

So if one looks at all these incidents, one would get a clear connection in all these incidents, that they emanate from one point which of course from the PAC, from APLA, because all of them they, it's an undisputed evidence in all these applications that they were indeed in the hierarchy of APLA and they were senior members of APLA and their Director of Operations was Letklapa Mpahlele, who they were eventually reporting to.

Chairperson, having said that it is therefore my humble submission, without wasting the time of the Committee, that the applicants in this matter have met all the requirements of the Act in order for them to be granted amnesty. And it is therefore my humble submission and my request that these four applicants should therefore be granted amnesty as they have complied with all the requirements of the Act. Thank you Chairperson. Unless the Committee - I will wait for the questions from the Committee if there are any.

ADV PRIOR IN ARGUMENT: Thank you. Mr Chairman, a lot of what Mr Mbandazayo has said is common cause. Certainly the King William's Town Golf Club matter before was a matter where we heard more detail than in any other APLA related matter, to which I've been connected. It certainly had all the trappings of a military style operation very similar to, if not on all fours, with the St James Church operation where the modus operandi was to get a bunch of, or identify targets where innocent and defenceless people were gathered and to first of all throw in handgrenades, M26 grenades and/or firebombs and then machine-gun the people in the confusion that ensued during the explosions. That was alleged to have occurred with a political objective, it was to bring home to the white people that they weren't safe in their areas. And that, we've heard evidence, is that that was purely unrelated to any racist feeling or feeling of hatred towards whites per se.

Now having said that, the Committee has got to be alive to the other ingredients required for amnesty, it's not just an argument that they were carrying out orders because those orders must also be seen against the background proportionality. I think it was said on behalf of the victims, Ackerman and Smith in the St James massacre, in their Heads of Argument that was put up by Mr Brembridge, that it must be made clear that not every act committed in a political context is an act of a political nature or one associated with a political objective, nor is every politically motivated act or every act committed in the name of a political party such an act.

Now one has understanding to the evidence of Mr Xundu who was very articulate and I think to that end one must accept that he is a man of above average intelligence, apparently he serves in the new South African National Defence Force in a very high position, he is a man who is clear in his thinking and clear in his actions.

Now having referred the Committee to the nature of the operation and the result of the operation which led to four deaths and seventeen persons severely injured and other people shocked and what have you, the situation that concerns one is the motive of the attack, what was the political motive? Now it may be completely fortuitous that Mr Radie had decided to sponsor a golf day on the 28th of November, yet that was the very reason that the applicants put up as being the driving force, it was to make more than just, it was more than an attack, it was a statement, a symbolical statement, an attack against, a day where political people, for example members of the National Party, high-ranking officials of the Defence Force and the police would be present. And that was the intelligence, that was the information that the Lembede Unit had gained. And seen in that context then one has a better understanding of why Mr Xundu and his comrades then attacked the golf club as they did. Yet it would seem that when the information note or the operational record, at page 65 of the original bundle which is bundle B, was referred to by, was it Mr StClair, I'm not too sure, Mr Stanford, it almost as if Mr Xundu, and this is just an observation that I made when I recorded it, Mr Xundu started to falter in his stride, the confidence that he had exuded earlier on seemed to fade. And Mr Chairman, he had grave difficulty in explaining the rather innocuous statement in his note which he conceded in evidence that it was in his hand, was that the operation had had to be postponed due to the weather.

Now Mr Radie's evidence, as correctly conceded or stated by my learned friend, Mr Mbandazayo, was that the golf day was scheduled for the 28th of November. So in other words, if the attack had to have been postponed, the original attack must have been intended for some earlier day, some earlier time before the Ray Radie Golf Day. Then if that is the case, with respect, Mr Chairman, then the golf day as such per se could not have been the target of the Lembede Regiment's attack. In other words, the political motivation falls away, then it is purely in the realm of an attack on a soft target or a civilian target. It was maybe fortuitous that on the very day that they attacked, that Mr Radie happened to have sponsored the golf day and he happened to have been a member of the Nationalist Party.

Mr Radie's evidence was also unchallenged when he told the Committee that it wasn't a political event, it was not an event at which a political party, for example the Nationalist Party, was to make any mileage, it wasn't such an event. And in any event when the attack occurred the golf day had ended, the majority of the members playing golf had left, there were one or two left behind in the bar and the function that was affected by this attack was the King William's Town Wine Tasters function Xmas party at which senior members of the community were present.

My submission is that simply to argue it away as being doctored or a falsified report, I submit cannot carry the day and must raise in the Committee's mind some doubt as to the credibility of Mr Xundu and whether in fact he has made a proper and full disclosure as required of him in terms of the Act.

Mr Chairman, may I just make mention of certain other aspects before I conclude. Mr Xundu was at pains to describe to you and to your fellow Committee Members the pain and the degradation that he felt at being treated as a caddy. Now with respect, there was evidence regarding the caddy system, the manner in which caddies were engaged and to my view appeared to be a democratic way, there was a caddy leader, and the question of caddy fees would be discussed and there was a proper tariff. And in fact the evidence from Mr Stanford was that if the fees were not paid there was a complaints procedure which could be introduced.

CHAIRPERSON: The tariff was hardly one that was recognised in golf clubs elsewhere, was it, Mr Prior?

ADV PRIOR: Yes.

ADV PRIOR: And the evidence went further, was that the King William's Town Golf Club was certainly different in that they had opened their doors to all races far before any other club had done so. And in fact the club secretary put up a list to the Committee of the members of the King William's Town Golf Club. And on a count that I have made there seems to be 19 black members that belonged to the King William's Town Golf Club at the time.

With respect, if Mr Xundu was attempting to also suggest that the attack was justified on that basis, that notwithstanding the political significance of Mr Radie's golf day, but also that the club was also seen as a symbol of racism at the time, then I submit that is not a correct perception and it is not true, on the objective evidence that was presented to you.

Finally, Mr Chairman, just on the aspect of proportionality. Mr Xundu in his application Form 1, at paragraph 10(b) in response to the question: Your justification for regarding such acts omissions or offences as acts omissions or offences associated with a political objective, he stated:

Now inasmuch as that may be interpreted as an act of revenge or an act to make people suffer for consequences of their forefathers, then I submit that that is not sufficient political objective or an act sufficiently associated with a political objective to justify the operation that was carried out.

Lastly, Mr Chairman, a lot of stock has been put in respect of the role played by Mr Letklapa Mpahlele. It is indeed significant that nowhere in this application nor the other applications that served before this Committee in East London, and despite the several and many repeated attempts to encourage Mr Mpahlele to come before this Committee to support these applications, he has not chosen to accept that invitation. One wonders why, and one can only speculate possibly why he does not wish to associate himself with these particular applications or these particular applicants, yet we are told at regular intervals that he was the person that gave the order, he was the person who identified the target, he is the person that provided the logistics. It's inexplicable that in an application of such a serious nature, where the support or the corroboration seems to be so close at hand, that that support and corroboration is not provided.

CHAIRPERSON: But it's not been provided in any of the others, has it, Mr Prior?

ADV PRIOR: Equally so, yes, Mr Chairman.

CHAIRPERSON: Equally serious, consider for example the attack on the Heidelberg Tavern.

ADV PRIOR: Yes.

CHAIRPERSON: Where he was supposed to have played a very senior role in the attack.

ADV PRIOR: Yes, that is so.

CHAIRPERSON: As was Xhomiso Nonxuba.

ADV PRIOR: Yes Xhomiso Nonxuba was at the hearing but we don't know why he never testified but ...(intervention)

MR MBANDAZAYO: Chairperson, just to correct, Xhomiso Nonxuba passed away. He was never in the hearing, he passed away before the hearings. It was Sipho Xuma. I went there with him to the hearing, he was there.

ADV PRIOR: I beg your pardon.

MR MBANDAZAYO: He attended the hearing to testify, but of course he was not required to testify.

ADV PRIOR: Mr Chairman, that is the position, I was mistaken as to the name, it was Mr Xuma.

MR MBANDAZAYO: He also submitted a statement to that effect regarding the incident.

ADV PRIOR: Just finally, Mr Chairman, it is so that the Committee has decided other applications similar in nature, for example the St James and the Heidelberg Tavern and obviously this Committee of necessity would have to take cognisance of those decisions for purposes of consistency. I can't take the matter any further than that.

MR MBANDAZAYO IN REPLY: Chairperson, I wouldn't like to respond to some of these things but it's just on the question of the caddy issue. I think that Mr Xundu told the Committee, and also that it was also conceded, that if there is any complaint about the money you are paid there was a committee. Of course it was clear that Mr Xundu would not be, he was not interested in being a caddy so he wouldn't complain, whatever amount was paid to him because he was there for a specific purpose. Nobody disputes that there was a certain amount. Also it was not disputed that sometimes people were paid low amounts but there was a body of the caddies to complain to so that that can be rectified. In his case definitely there was nothing of that effect because he was not interested in that. So it cannot be said that definitely it's disputed that he was paid that amount, because he also himself didn't care about the amount he was paid.

Now coming to the question of the report itself. I think, Chairperson, he made it clear that he believed that it was doctored. I concede that he floundered because he was amazed in fact to see that this report does not contain what he had written too, it contained totally different incidents and it happened now to be only in one report. And unfortunately nobody has an original report to be able to confirm that exactly that's what was written. It's only a copy of the report, nobody has the original to confirm that exactly it was the way it was. So there is no evidence contrary to that, that this report was not doctored because there is not original of this report.

Coming to the question of proportionality, Chairperson. Chairperson, I submit that there's that clause in the Act, but it's always my submission of course subject to whatever criticism that, proportionality should be applied on the people who are making the decisions because the foot-soldiers have to carry the instructions at the end of the day, they don't make the decisions, theirs is to carry the instructions.

Now if now they are the people who are going to suffer because sometimes the leaders don't come forward and take responsibility and that the proportionality would apply to them when they have to carry the instructions, Chairperson I submit that it would also defeat the purpose of the very existence of the Committee. Thank you, Chairperson.

CHAIRPERSON: We will take time in this matter as well, that is we will not give a decision this afternoon, we will consider it and give it later.

There's one matter I would like to raise with the interested parties, and that is the question of victims in this case. The victims undoubtedly would be the surviving dependants of those persons killed, but we also have a list at page 90 of the original bundle setting out the names of some 23 people who were seriously injured in the attack. Now we I don't think have any information before us as to the conditions of these persons at the present time. It seems to me it's a matter that would have to be investigated further before we could submit or make any finding as to victims in this regard. Obviously all of them would have been, if they were seriously injured in the attack, would have been victims for a limited period as mental shock as is provided for in the Act, but some of them may have suffered long standing loss and injury, and I think it is a matter that ... Mr Prior, could you make arrangements perhaps for enquiries to be made?

ADV PRIOR: Mr Chairman, what I will do, because I noticed this list doesn't have for example, Mr Davis' name on it and he was one of the deceased.

CHAIRPERSON: This is not the deaths.

MR MBANDAZAYO: Yes. But certainly this list will be brought to the attention of the Reparations Committee. If the Committee could simply say all those persons ...(intervention)

CHAIRPERSON: We make a finding that in our opinion the dependants of the persons who were killed in the attack and the persons who suffered injury to the extent set out in the description of victims in the Act, we consider are probably victims and we refer them all to the Reparations Committee.

ADV PRIOR: Yes, Mr Chairman, that would be appropriate. And then the sifting process or the identification process can take place at that level.

CHAIRPERSON: Very well. I think we should not confine it, subject to the other Members of the Committee. It may also in certain instances, depending on the nature of the injuries suffered, include the dependants of persons injured in the attack as well as the persons killed. If as a result of the attack those persons have no longer been able to maintain their dependants they would certainly be victims. They may well have suffered mental injury and emotional suffering in consequence of some relative, or being injured.

ADV PRIOR: Thank you, Mr Chairman. Mr Chairman, that is the end of business for today. The matters that will proceed tomorrow are the Unitra and the Fort Beaufort incident which will be argued. Thank you, Mr Chairman.

COMMITTEE ADJOURNS