TRUTH AND RECONCILIATION COMMISSION
AMNESTY COMMITTEE
DATE: 30-06-1999
NAME: BRIAN CLIFFORD THOBEJANE
APPLICATION NO: AM 1025
DAY: 1
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CHAIRPERSON: Today we will be hearing the applications of Messrs Thobejane, Ngobeni and Mukhawana. The proceedings will be simultaneously translated and in order to benefit from the translation, you have to be in possession of one of these devices, headphone and the device attached to it, they are available from the Sound Technician, please ensure that you have one. Before we start, I would like to introduce the panel to you. On my left is Judge Sisi Khampepe, she is a member of the Amnesty Committee of the Truth and Reconciliation Commission, she is an acting Judge, attached to the Cape High Court and on my left is Adv Francis Bosman, also a member of the Amnesty Committee. She is an Advocate by profession, from the Cape and I am Selwin Miller, also a Judge of the High Court, from the Eastern Cape, attached to the Transkei Division of that court. I would like to ask the legal representatives kindly to place themselves on record.
MR MBANDAZAYO: Thank you Chairperson and Honourable members of the Committee, my name is Lungelo Mbandazayo. I am representing the applicants in this matter. Thank you Chairperson.
CHAIRPERSON: Thank you Mr Mbandazayo. Mr Van Rensberg?
MR VAN RENSBERG: Thank you Mr Chairman, my name is Van Rensberg, S.J. from Kriek and Van Rensberg Attorneys, Tzaneen. Today I represent the victim in this investigation.
CHAIRPERSON: Thank you Mr Van Rensberg.
MS MTANGA: Thank you Chairperson, I am Lulama Mtanga, the Evidence Leader for the Commission.
CHAIRPERSON: Thank you Ms Mtanga. I think we will now proceed with the hearing, Mr Mbandazayo.
MR MBANDAZAYO: Thank you Chairperson. Chairperson, the first applicant will be Brian Clifford Thobejane. Can he be sworn in Chairperson?
BRIAN CLIFFORD THOBEJANE: (sworn states)
CHAIRPERSON: Thank you, you may be seated.
EXAMINATION BY MR MBANDAZAYO: Thank you Chairperson. Thank you Chairperson and Honourable members of the Committee. Chairperson, let me first apologise that the copies have not yet been made for the affidavits, they will be made in due course.
CHAIRPERSON: I am informed by the Logistics Officer that the photocopy machine is on its way here and as soon as it arrives, they will make copies of the affidavit which will be given to all the parties concerned, thank you Mr Mbandazayo.
MR MBANDAZAYO: Thank you Chairperson. May I proceed Chairperson? Mr Thobejane, do you confirm that this affidavit was made by yourself and you abide by its contents?
MR THOBEJANE: Yes, I agree.
MR MBANDAZAYO: Chairperson, I will proceed and read the affidavit.
"I, the undersigned Brian Clifford Thobejane, do hereby make an oath and state that I am the applicant herein. The facts to which I depose are true and correct and within my personal knowledge, unless the context indicates otherwise. I was born on the 27th of December 1974 in Garankua and I grew up in Soshanguve. We were four children at home and I am the third born child and the only son. My parents divorced whilst I was still in exile. My mother is presently working at Garankua Hospital as a cooker, my father is unemployed. I did my primary and secondary education in Soshanguve. I left school in January 1991 when I left the country to join APLA. I left the country via Botswana to Tanzania. I joined PAC in 1987 through AZANIO. I was influenced to join the PAC by the late Senior Commander of APLA, Jan Shobe. I underwent military training in Tanzania and Zimbabwe. In Tanzania I did my basic training and in Zimbabwe I did a course of Intelligence. I stayed in Zimbabwe from 1992 until March 1993, when comrade Fihla deployed myself and other comrades inside the country. Comrade Fihla is currently a General in the South African National Defence Force. The other comrades that were with me when I was briefed by comrade Fihla were Thabo and Max. We travelled from Harare to Bulowayo by train and we were in possession of various arms and ammunition, including AK47's, Tokarev pistols, Chinese stick grenades, etc. From Bulowayo to the borders of Botswana, we travelled on a bakkie. We crossed the borders on foot and from Botswana to South African borders we travelled on a bakkie and we also crossed the borders on foot. When we crossed the South African borders, there was a micro-bus already waiting for us. The micro-bus took us to Johannesburg where we met the Director of Operations, comrade Lethlapa Mpahlela. Comrade Mpahlela told me that I was to be deployed together with comrade Max in the Northern Province. He further told me that comrade Prince is already there and we will work with him. When we arrived at the Northern Province, comrade Prince had already had Task Force members at his disposal and they were trained by him. The Task Force members were comrades Thomas Ngobeni, Donald Mukhawana and Tekwani Baloyi. As an APLA operative, my general instruction from APLA High Command was to prosecute the armed struggle with all means against the then racist minority regime, which was undemocratic and oppressive. The said armed struggle was in essence a guerrilla warfare, during which we as APLA cadres had to seek and attack the bastions and minions of the aforesaid regime. The ultimate objective of PAC and APLA was not only to topple the then racist minority regime, but to eventually return the land to the majority of the people of this country. The bastions and minions of the then erstwhile regime were in terms of the APLA perspective the members of the South African Police and reservists in general, the farmers as they belonged to the Commando structures over and above the fact that they occupied the farms which we had to drive them away from, so as to widen our territorial operational base, which was aimed at eventually consolidating the liberated and repossessed land, the white homes which were garrisons of apartheid. My general instruction was to seek, identify and attack the enemy who was seen in the context of the above stated bastions and minions of the regime and also to train other cadres and command them in whatever operation that is being embarked upon. In consequence of and in pursuit of the above stated objectives, during or about 27 May ..."
Your Worship and Honourable Members, I think 27 April, though the date they are not sure, it is between the 27th/28th in the morning, they are not sure about the date, but it is around 27th/28th of April 1993.
"... I was part of the Unit of APLA cadres that launched an attack on the farm of Mr Johannes Swanepoel and as a result, his wife lost her life. Comrade Prince who was the Commander of the Unit, made reconnaissance together with Donald. After the reconnaissance was made, we called the Director of Operations and we briefed him about the potential target and he authorised the operation. He also gave us an extra AK47. According to the reconnaissance, this particular farm was a meeting place of the right-wingers who were also farmers in addition to the fact that it was regarded as a legitimate target according to APLA's mode of operation. The whole Unit met on the 26th of April 1993 and was briefed about the operation and we proceeded to the farm and due to the delays, we arrived at the farm around quarter to seven and the gates were already closed and the dogs were barking at us. We retreated and waited until the early hours of the morning, as we intended to catch them by surprise. Between five o'clock and six o'clock am, on the 27th April 1993, we jumped the fence of the farm and proceeded to the farm house. Mr Swanepoel came out, carrying a gun and something which looked like a camera. I caught him by surprise and pointed him with my gun and drove him back to the house. His wife was on the phone and I presumed she was phoning the Police. The Commander, comrade Prince, rushed to the direction of the wife, but outside. She shot at comrade Prince, but missed him. Comrade Prince entered the house and he was shot at and he shot back and Mrs Swanepoel died. At the time of the shooting, I lost Mr Swanepoel and I tried to shoot him, but my gun jammed. He locked himself in one of the rooms and I tried in vain to open it. We decided to retreat because we suspected that the Police must be on their way as Mrs Swanepoel was on the phone when she was shot at and they might have heard the shooting through the telephone. We jumped the fence of the farm and at that time, the helicopter was hovering above us. We ran through the bush to our respective places. I had spent about 30 minutes in my place, when comrade Prince and Donald arrived. Shortly thereafter Police arrived and I threw a stick grenade, but it did not explode. Comrade Prince came out of the house and there was a shoot-out and he died. We were arrested and later convicted and sentenced to 20 years imprisonment, amongst other things for murder, attempted murder, possession of arms and ammunition and explosives. The crimes for which I was convicted and sentenced, were motivated by my political beliefs and were not for self gain. The farmers were regarded by the PAC APLA as bastions and minions of the settler regime and as such, legitimate targets, seen in the political context of the time. I must also state that APLA mode of thinking and indeed operation, did not distinguish between soft and hard targets, nor indeed between military and civilian targets. We were simply fighting against criminals who sustained the apartheid system. Criminals because also apartheid was declared by the International Community represented by the United Nations Organisation as crime against humanity. Anybody who was a driver, moving apartheid forward and those that supported it, were therefore criminals. That was our thinking during the struggle. At the time of the commission of the above stated offence, the PAC APLA was still engaged in the armed struggle against the then regime. I respectfully submit that my application complies with the requirements of the Act and that I have made full and proper disclosure of my involvement in this operation", signed by the applicant.
CHAIRPERSON: Mr Mbandazayo, that affidavit will be received as Exhibit A and as I said earlier, as soon as the photocopying machine is available, copies will be made and given to all the parties.
MR MBANDAZAYO: Thank you Chairperson. Chairperson, now I would just on a few aspects, I will take the applicant on a few aspects, just for him to clarify certain things. Mr Thobejane, can you take the Committee, Honourable members of the Committee through, give us a picture of what happened on the day in question and take us through what happened when you arrived at Mr Swanepoel's place before you attacked it and after you attacked it, until the time you were arrested, in detail.
MR THOBEJANE: I think on the 27th, I met the late Prince, who was my immediate Commander. I was together with Donald Mukhawana, Thomas Ngobeni and Tekwani. All of us, we slept at the place of the late Prince and then we finalised our plans of going to Mr Swanepoel's place to attack. Each and everyone of us were given his own instructions the day. The very same day, in the afternoon, we went there but myself, I went there with Thomas Ngobeni because when we were a group of five, we were using a public transport. There were some delays because the transport which we were using was the public transport, so it was not ours, we arrived there late at Mr Swanepoel's farm. We didn't manage to get in by then, because it was late because all the gates were closed and the dogs were barking at us. Then we thought of retreating until the following day in the morning because the dogs were making a noise and the gates were closed and according to our own plan, we were supposed to have arrived in the farm house before they closed the gates. We wanted to catch them by surprise but because the dogs were barking, we didn't manage. Mr Swanepoel's place is in the bushes, we stayed there until the following day in the morning around five o'clock or passed five. We entered his farm. The dogs were still barking and we jumped the fence. We deployed each other, myself and late Prince, we hid ourselves by his garden, facing the door, the front door of Mr Swanepoel's house. The aim was to catch him by surprise when he get out of the house and the other comrades were a little bit at the back. When he came out, I pointed an AK47 at him, I was armed with it together with the late Prince, we instructed him to stand and then he stood there. I don't know what he was having, I think it was a camera or a pistol in his hand. We told him to go back to the house. While Mr Swanepoel was going back to the house, the late Prince was holding him like this at his back and then we took him back to the house. What I realised is that, I didn't know by then that she was Mrs Swanepoel. She was having a pistol and she was holding a phone as well, so they late approached her. What I can remember is that Mrs Swanepoel shot at us while I was still with Mr Swanepoel, while I was driving him back to his house. When we entered, it is when the late was no longer on the window, he was inside the house. When he arrived, he was on the passage, Mrs Swanepoel shot at him but she missed. The late Prince was having a Tokarev pistol, he fired back, he didn't fire a lot of shots, but the first bullet hit her on the chest and Mrs Swanepoel fell. I am sorry, let me put this correctly, when we started shooting Mr Swanepoel wanted to run away, so I was having an AK47 in my hand, I pointed it at him, I wanted to shoot at him, it didn't go off, it jammed. Mr Swanepoel entered in one of his rooms and locked himself in, but we didn't manage to open the door. We had realised that Mrs Swanepoel phoned and although they didn't hear what she was saying, the phone was laying down, so they could hear that there was something going on in the house. Then we called off the operation. The late Prince instructed us to withdraw, then we withdrew. We withdrew and jumped the fence to the bushes. The helicopters were around by then. We manoeuvred ourselves into the bushes, they didn't manage to catch us.
MR MBANDAZAYO: Before you proceed, tell the Committee, do you know what was the name of Prince, his actual name?
MR THOBEJANE: During that time I only knew that he was Prince. I did not know about his real name which is Fanual Modau. I learnt at a later stage, after my arrest that his name is Fanual Modau.
MR MBANDAZAYO: Then after you had jumped the fence and the helicopter was hovering above yourselves and you managed to escape, what happened thereafter?
MR THOBEJANE: We entered the bush and started running, the helicopters were too hovering over. We managed to run away from them because we were trained to hide ourselves until we reached our place. When we arrived at our place, before we reached our place, on the way, on the road, the late Prince, Donald Mukhawana and Tekwani, they went away, being three, having those ammunitions which we were using. Myself, I took the Tokarev pistol and one China stick grenade, I was together with Thomas and then we arrived then at our hiding place and Thomas went to his house, I went to where I was staying, alone. I didn't stay there for a long time. After 30 minutes, Thomas and the late Prince, I am sorry, Donald and the late Prince came back to me. They were having a bag which was having our ammunitions. While we were still there, we saw a white car, there is someone who came to tell us that there is a white car patrolling the area and we realised that this was a Police car, and there were white people inside. The white guys came out of the car - enough arms, we only had one Chinese stick grenade and one pistol. We entered, we got inside the house, all of us, I took out the Chinese stick grenade, the white guys came towards the door, I opened the door a little bit together with the late Prince and Donald. When they arrived, there were just some young girls playing outside. I took out the stick grenade and threw it to them, when I threw it to them, then they ran for cover. The late Prince got out of the house with a pistol in his hand. There was a certain white man who was coming forward, approaching us and the late Prince shot at him and then he took cover and then the late Prince ran away. Because I did not want to kill him, the grenade which I threw, I didn't pin it off, because I didn't want to kill the innocent children who were playing around. When the late Prince went out, I went to him, followed him only to find that all of them were out of the cover, they started shooting. I had to go back into the house, that is what happened in short.
MR MBANDAZAYO: How were you arrested?
MR THOBEJANE: When I went back to the house because they had realised where we were, then they started shouting at us by a loudspeaker, they said "don't attempt shooting, don't fight" and they started shooting at the house while we were inside the house. I just saw by dust that they started to shoot, because there were huts in the villages, they are made from mud and then they entered, they found me with Donald inside the house and they took us out. They didn't say anything to us, they started assaulting us, harassing us. They said we should lay down, they started searching us, they searched the house. By that time, they were very many and they put us inside a van. That is how they arrested us.
MR MBANDAZAYO: That is all Chairperson and Honourable members, at this stage, thank you.
NO FURTHER QUESTIONS BY MR MBANDAZAYO
CHAIRPERSON: Thank you Mr Mbandazayo. Mr Van Rensberg, do you have any questions to ask the applicant?
MR VAN RENSBERG: Thank you Mr Chairman. I am just experiencing a problem at this stage and this is that I have not seen the affidavit from which the applicant - used as a base to give his evidence. I think it is necessary for me to obtain that document and if I can therefore ask that we just adjourn for say 15 minutes, so that I can just get a copy thereof please.
CHAIRPERSON: I don't know if you can get a copy thereof because we haven't got the photocopying, but I am sure Mr Mbandazayo will let you have the original.
MR VAN RENSBERG: Thank you very much.
CHAIRPERSON: Yes, I think if we could adjourn let's say for 10 minutes, thank you.
COMMITTEE ADJOURNS
ON RESUMPTION:
BRIAN CLIFFORD THOBEJANE: (still under oath)
CHAIRPERSON: I see that the photocopying machine has arrived, so we should all be in possession of the affidavit. Mr Van Rensberg?
CROSS-EXAMINATION BY MR VAN RENSBERG: Thank you Mr Chairman. Mr Thobejane, can you please tell us who identified the farm of Mr Swanepoel as the target for your attack?
MR THOBEJANE: It was identified by the late Prince.
MR VAN RENSBERG: At what stage were you informed of the identity of the farm that you were going to attack?
MR THOBEJANE: I arrived in March, in April, he told me about this.
CHAIRPERSON: Could you give, Mr Thobejane, some indication of approximately how long before the actual attack was, were you informed of the target?
MR THOBEJANE: It was three weeks before.
MR VAN RENSBERG: Did you actually yourself carry out a reconnaissance of the property before the attack?
MR THOBEJANE: No, I was not in the Reconnaissance Team.
MR VAN RENSBERG: But is it not so that by the time that you went to the farm to attack the farm, you knew that it is a chicken farm, owned by a white farmer, is that correct?
MR THOBEJANE: Can you please repeat your question.
MR VAN RENSBERG: The question is, by the time that you went to the farm to attack it, you knew that it was a chicken farm, owned by a white farmer?
MR THOBEJANE: Yes, I knew that was a chicken farm and it was owned by Mr Swanepoel.
MR VAN RENSBERG: Did you also know that on a daily basis, because of the sale of chickens, there are large amounts of cash being kept on the premises?
MR THOBEJANE: As to whether there is a lot of cash which they used to put in the house, I did not know. I did not know whether he was putting money or not in the farm. It was not my responsibility to know about that.
MR VAN RENSBERG: Mr Thobejane, for exactly which counts, charges were you eventually found guilty of in a court of law?
MR THOBEJANE: It was murder, attempted murder, possession of arms and ammunition and explosives and attempted robbery.
MR VAN RENSBERG: Were all five of you found guilty, or all three of you found guilty of attempted robbery?
MR THOBEJANE: Yes, all of us.
CHAIRPERSON: Just on that point, if I may ask a question. At your trial, Mr Thobejane, did you raise the political element of your operation?
MR THOBEJANE: During the trial, no, but after we were found guilty, during the mitigation of sentence, I indicated that I was a member of APLA, I was trained as a member of APLA and I was a member of the PAC as well.
CHAIRPERSON: Thank you Mr Van Rensberg.
MR VAN RENSBERG: Thank you Mr Chairman. Mr Thobejane, when you gave evidence this morning and also in your application for amnesty and in particular paragraph 9(a)(i) thereof, it is very conspicuous that you did not mention this conviction of attempted robbery and the question is, why not?
JUDGE KHAMPEPE: Is he seeking amnesty in respect of that, that should be the question?
MR VAN RENSBERG: Thank you Mr Chairperson, I don't think from the application it seems that the applicant is seeking amnesty for that and that is part of my question and my cross-questioning, why not, if that is then omitted.
JUDGE KHAMPEPE: Which paragraph are you referring to, 9(a) "furnish sufficient particulars of the acts associated with a political objective in respect of which amnesty is sought", if he is not seeking amnesty, did you expect him to include an offence for which he is not seeking amnesty?
MR VAN RENSBERG: Yes.
JUDGE KHAMPEPE: Is that the ambit of your question?
MR VAN RENSBERG: Yes, yes, in fact I would expect them because obviously my question aims in the direction of the full disclosure of the facts, also the motivation on which the attack was based and I will try to show through my cross-examination that these facts are deliberately omitted from the application and also from the statements made by the applicant.
CHAIRPERSON: Proceed.
MR VAN RENSBERG: Thank you Mr Chairman.
ADV BOSMAN: I don't know whether I am perhaps now jumping the gun, but should you not then be referring to paragraph 12(e) where the applicant is specifically asked to state in respect of what he was found guilty and sentenced? Surely paragraph 9(a) is self-explanatory?
MR VAN RENSBERG: Yes, I agree, thank you Mr Chairperson. I have omitted to quote that specific one, I have it here on my notes, it is actually omitted to be mentioned in 12(e) as well. Thank you.
CHAIRPERSON: You may proceed.
MR VAN RENSBERG: Mr Thobejane, do you want me to repeat the question? The question is, why did you omit to bring to the attention of the hearing in your statement this morning, as well as in your application referring to paragraph 12(e), the fact that you have also been convicted of attempted robbery?
MR THOBEJANE: When I went to Mr Swanepoel's place, my intention was not to rob. I was convicted of something which I did not know and I was forced by the Security Branch, that now I went there to rob, but that was not my intention, that was not our intention.
MR VAN RENSBERG: Yes, Mr Thobejane, we may accept that, the question is why didn't you tell this Commission and why wasn't it mentioned before during your evidence this morning?
MR THOBEJANE: The reason I did not tell the Committee is because I didn't even tell them about the murder, the attempted murder, the possession of arms and the possession of - I never explained specifically, I never mentioned to them specifically what I was charged with or convicted with.
MR VAN RENSBERG: I put it to you Mr Thobejane, that that is exactly what you did say. You were exactly asked what you were convicted of and it was also requested of you to disclose that in paragraph 12(e) of your application?
CHAIRPERSON: I don't think so, sorry. Oh yes, in 12(e), sorry, I am looking at 9(a). Yes?
JUDGE KHAMPEPE: Yes, that is applicable Mr Van Rensberg, in respect of paragraph 12, but not in respect of paragraph 9(a), I think it is - that is what I was objecting to, that it is unfair to put it in that fashion, because what paragraph 9(a) merely seeks from an applicant is to indicate in respect of which acts he seeks amnesty. If it is not his intention to apply for amnesty for attempted robbery, then it is his prerogative not to include it, because then if he has not applied for that, this Committee will not grant him that. It doesn't prejudice him and it is not, it doesn't go to the question of whether he has properly disclosed or not.
MR VAN RENSBERG: Yes, thank you Mr Chairperson, as I have stated, my question aims more to the particulars contained in 12(e) than in 9.
MR MBANDAZAYO: Sorry members of the Committee, we just have a slight problem in terms of interpretations. We were asked to use only one language, but we have a problem because the applicant is a Tswana speaking, but we adopted to Sotho, but there is a problem. Now he is going to try to use English in answering the questions.
JUDGE KHAMPEPE: What is the problem?
MR MBANDAZAYO: He was answering in all the languages.
JUDGE KHAMPEPE: (Microphone not on)
MR MBANDAZAYO: The problem is that there is no Interpreter for his language, so he is trying to adopt ...
JUDGE KHAMPEPE: (Microphone not on) I don't want to sit with an applicant who is now going to say "this is not what I intended saying, if I said it in my language, I would have been understood properly", is he going to be able, is it going to be comfortable to give evidence in a language that he has previously indicated, he is not comfortable in? I have noticed that he uses English and the other Sotho languages interchangeably, but maybe he is comfortable with that. Is there any problem with the Sotho translator in understanding Tswana?
MR MBANDAZAYO: The problem I understand that he is messing up the tape when he is using all the languages simultaneously.
JUDGE KHAMPEPE: But does it present any problem in the Translator being able to translate to us?
MR MBANDAZAYO: No Chairperson.
JUDGE KHAMPEPE: Yes, that shouldn't be a major problem.
CHAIRPERSON: I think if we proceed, if you have any difficulty Mr Thobejane, with the language, please indicate immediately to Mr Mbandazayo that you've got a problem.
MR THOBEJANE: What I am asking Mr Chairperson, is that the Translator doesn't translate in Sotho, I will understand English because he is confusing me. He cannot even translate in Sotho, so I will ...
JUDGE KHAMPEPE: Is that so?
MR THOBEJANE: Yes.
JUDGE KHAMPEPE: What Translator do we have, what language is he translating in?
MR THOBEJANE: Tsonga.
JUDGE KHAMPEPE: In Tsonga?
MR THOBEJANE: He is translating in Sotho, but he is not perfect, I am sorry to say that.
JUDGE KHAMPEPE: Yes.
CHAIRPERSON: If you could translate in English for Mr Thobejane and then if you do have any difficulty Mr Thobejane, don't suffer it, please tell Mr Mbandazayo immediately.
MR THOBEJANE: Thank you.
JUDGE KHAMPEPE: The Translator is Tsonga.
MS MTANGA: Chairperson, if I may come in, the agreement was that he would listen to questions in English and then he would answer is Tswana and then the problem would be, he would be speaking is Tswana but he would be listening in English, so I don't know what exactly ...
JUDGE KHAMPEPE: Mr Mbandazayo, can he proceed in English, do you think he is going to be comfortable in having to give his evidence in English because the way in which things are being indicated to us by Ms Mtanga, I think it is merely going to create confusion with him. He can't be listening in English and then speaking in Tswana because he has a problem with the way in which the translation is Tswana comes out from the Translator.
MS MTANGA: I think the problem that has been raised is that when he changes languages ...
CHAIRPERSON: Yes, but let's find out exactly what the problem is, because we can't just debate it here, otherwise we must have an adjournment, get another translator or whatever, but let's find out from Mr Thobejane, what is the difficulty?
MR MBANDAZAYO: Okay, Chairperson, we agree that he is going to use English.
CHAIRPERSON: Thank you.
MR VAN RENSBERG: Thank you Mr Chairman. Mr Thobejane, can you now answer the question please?
CHAIRPERSON: The question Mr Thobejane is that if you take a look at paragraph 12(e) of your application that you completed for submission to the Commission, the question there is "offence in respect of which found guilty and sentenced, if applicable", and then you have put in "murder, attempted murder, possession of ammunition, possession of machine guns, possession of explosives, possession of pistol, etc", now what Mr Van Rensberg is asking is why didn't you put attempted robbery there, that is the question?
MR THOBEJANE: In my application there is an abbreviation of etc, which it etcetera.
CHAIRPERSON: It is there.
MR MBANDAZAYO: Paragraph 12(e), Chairperson, 12(e).
CHAIRPERSON: Yes, Mr Thobejane.
MR VAN RENSBERG: Pardon, I didn't follow that answer.
CHAIRPERSON: There is etc, etcetera.
MR VAN RENSBERG: Etcetera, I see. Okay, the question remains this morning when you gave evidence, you also omitted to mention that fact, why?
MR THOBEJANE: I forgot to.
MR VAN RENSBERG: What was the sentence that you received for this attempted murder conviction?
CHAIRPERSON: Attempted robbery?
MR VAN RENSBERG: Attempted robbery, thank you Mr Chairperson?
MR THOBEJANE: I don't remember, I am sorry.
MR VAN RENSBERG: Fine, let's go on. You say that when Mr Swanepoel came out of the house on that fateful morning, he was in possession of a gun, is that correct?
MR THOBEJANE: I said so, yes.
MR VAN RENSBERG: What kind of gun was it?
MR THOBEJANE: I don't know the kind.
CHAIRPERSON: Was it a rifle or a pistol or a handgun?
MR THOBEJANE: It was a pistol, I am sorry.
MR VAN RENSBERG: When you saw Mr Swanepoel first, was this pistol in his hand or in his waist or where was it?
MR THOBEJANE: On his hand.
MR VAN RENSBERG: How far were you from Mr Swanepoel at that stage, when you apprehended him with a gun as you testified?
MR THOBEJANE: Some few metres, about 10 to 15.
CHAIRPERSON: Sorry Mr Thobejane, at that stage, was it light or was it still dark?
MR THOBEJANE: It was light.
MR VAN RENSBERG: And you commanded him to stand still if I followed your evidence correctly, is that correct?
MR THOBEJANE: Yes, it is correct.
MR VAN RENSBERG: What happened to this gun Mr Swanepoel had?
MR THOBEJANE: It fell to the ground and the camera as well.
MR VAN RENSBERG: At what stage did it fall to the ground?
MR THOBEJANE: Because I took him by surprise you know, and when I instructed him to halt, I was arising from the flowers and he was terrified, it just fell to the ground.
MR VAN RENSBERG: Are you saying he let go of this gun and the camera and it fell there on the ground where he stood?
MR THOBEJANE: Yes, I think Mr Swanepoel was terrified.
MR VAN RENSBERG: The question is Mr Thobejane, did the gun and the camera fall to the ground there where he stood?
MR THOBEJANE: Yes, I said so sir.
MR VAN RENSBERG: And you immediately then proceeded to march Mr Swanepoel into the house, is that correct?
MR THOBEJANE: That is correct.
MR VAN RENSBERG: What happened to this gun and the camera afterwards?
MR THOBEJANE: I don't know what happened to them, but we just left them there.
MR VAN RENSBERG: Do you know if that gun was loaded?
MR THOBEJANE: I won't tell you about that one.
MR VAN RENSBERG: Are you expecting this hearing to believe that you left the guy's firearm there in the flowers and marched him back into the house?
MR THOBEJANE: I did not leave the firearm from the flowers, from the ground where he was standing.
MR VAN RENSBERG: Did you leave the firearm there on the ground?
MR THOBEJANE: Yes, I did.
CHAIRPERSON: I suppose we can believe it if he was only found guilty of attempted robbery.
MR VAN RENSBERG: Yes.
CHAIRPERSON: I mean if it was taken, then it would have been robbery.
MR VAN RENSBERG: Yes, I believe so Your Worship. Do you know if any of your other cadres picked up that gun?
MR THOBEJANE: I would have known if somebody from our Unit had picked it up.
MR VAN RENSBERG: I put it to you Mr Thobejane, that Mr Swanepoel actually walked out of the house early that morning with medicine for his chickens and that he had no gun and no camera?
MR THOBEJANE: I have seen that Mr Swanepoel was having a gun on his hand, but now if it happens that he was not having a gun, I have made a mistake, then I am sorry, but now it happened six years back, if I remember well, so if he says that it was not a gun, I won't argue with him.
CHAIRPERSON: I also think when Mr Thobejane was giving evidence, he didn't say a camera, he said he thought it was a camera, he wasn't sure.
MR THOBEJANE: Thank you.
MR VAN RENSBERG: Okay, let's continue when you marched Mr Swanepoel back to the house, who went into the house with you and Mr Swanepoel?
MR THOBEJANE: It is myself, I was the only one who marched him into his house, back into the house.
MR VAN RENSBERG: And the deceased, Mr Prince as you referred to him, what actions did he take when you entered the house with Mr Swanepoel?
MR THOBEJANE: Mr Prince ran to the bedroom window.
MR VAN RENSBERG: Did any of the other cadres, except yourself, at any stage enter into the house?
MR THOBEJANE: It happened very, very, very fast, I don't remember if anyone had entered the house. But I haven't seen anyone in the house, except for myself and the late Prince when he was responding to Mrs Swanepoel's shot.
MR VAN RENSBERG: The question is was the deceased in the house or outside the house when he shot Mrs Swanepoel?
MR THOBEJANE: The deceased, you are referring to the late Prince or the late Mrs Swanepoel?
MR VAN RENSBERG: Yes.
CHAIRPERSON: Referring to the late Prince, the question was when Modau shot Mrs Swanepoel, was he inside the house or outside the house?
MR THOBEJANE: Right inside the house.
MR VAN RENSBERG: So you agree with me that Modau entered into the house with yourself?
MR THOBEJANE: No, no, not with myself, I entered in the house following Mr Swanepoel, so we did not enter the house at the very same time, maybe he went first or after myself, but not at the same time.
MR VAN RENSBERG: Is this one of the instances where you can't exactly remember what happened?
MR THOBEJANE: I am sorry?
MR VAN RENSBERG: Can't you exactly remember if he did go first or if he did go last?
MR THOBEJANE: Yes, I can say so.
MR VAN RENSBERG: When you entered the house, what did you order Mr Swanepoel to do?
MR THOBEJANE: The order was "go into the house", I did not tell him anything except for that.
MR VAN RENSBERG: Yes, after you entered into the house, what did you want him to do?
MR THOBEJANE: He did not do anything in the house, because he ran away. I wanted to shoot at him, but my gun jammed, so I did not talk to him after that.
CHAIRPERSON: I think what Mr Van Rensberg is getting at Mr Thobejane is, why did you want to take Mr Swanepoel into the house at all.
MR VAN RENSBERG: Thank you Mr Chairman.
MR THOBEJANE: Oh, I am sorry to say that, I wanted to shoot at him in the house, not outside, because it would, the sound of the gun would make a lot of noise and people around would hear that there were people who were shooting and I did not, or according to the plan, we did not want to shoot anyone outside the house, but inside the house, so that there is no noise.
MR VAN RENSBERG: I put it to you Mr Thobejane, that Mr Swanepoel was ordered by yourself after you entered the house, to go to his bedroom and you followed him closely with Mr Modau.
MR THOBEJANE: It wouldn't be possible because Prince was busy with Mrs Swanepoel.
CHAIRPERSON: The question is, well it is not a question, it is being put to you, this is just for your comment that Mr Swanepoel was told by you to go to his bedroom. That was one aspect of it and that you were together with Modau, but what do you say about you saying to Mr Swanepoel "go to the bedroom"?
MR THOBEJANE: Go to the house, not to the bedroom.
MR VAN RENSBERG: This bedroom or this room according to your evidence that Mr Swanepoel jumped into when he fled from you, do you agree that is exactly the same room in which Mrs Swanepoel was shot?
MR THOBEJANE: I don't remember well if it was the same room, but what I know is that he ran into one of the rooms in the house and we tried to open, and open, but we couldn't succeed.
MR VAN RENSBERG: Did you see Mrs Swanepoel in the house?
MR THOBEJANE: Mrs Swanepoel, when I see her, it was outside, I was still outside.
MR VAN RENSBERG: Okay, let's rephrase the question, did you see Mrs Swanepoel when you were in the house?
MR THOBEJANE: In the house I did not see her, I had seen her whilst I was still outside.
MR VAN RENSBERG: How did you see her when you were outside?
MR THOBEJANE: Through the window.
MR VAN RENSBERG: Now, this window or the room that you have seen her in, is that the same room where she was eventually shot in?
MR THOBEJANE: I can say so.
MR VAN RENSBERG: You can say so?
MR THOBEJANE: Yes.
MR VAN RENSBERG: Sorry, I didn't hear. You can say so?
MR THOBEJANE: Yes.
MR VAN RENSBERG: Now, I put it to you that is exactly the same room, namely the main bedroom, where Mr Swanepoel jumped in and at that same moment when he jumped in, the deceased, Mr Modau shot Mrs Swanepoel. Can I repeat that for you? What I am putting to you is that Mr Swanepoel, when he ran away from you, he jumped into the main bedroom and in that same bedroom and simultaneously Mr Modau shot Mrs Swanepoel.
MR THOBEJANE: If it had happened that way, Mr Prince Modau who shot Mrs Swanepoel, would have also shot Mr Swanepoel, so by the time he shot Mrs Swanepoel, Mr Swanepoel was not in that room.
MR MBANDAZAYO: I also put it to you that in that very same main bedroom, that is where the safe is in which the guns and the cash are kept, or were kept?
MR THOBEJANE: I don't know about that one.
CHAIRPERSON: Mr Thobejane, the operation that night, was it purely to go and attack the farm, was there at any stage ever any talk of repossession?
MR THOBEJANE: We did not go to the farm to repossess anything, we went there for the shooting or the killing.
MR VAN RENSBERG: Mr Thobejane, it was part of APLA's policy to repossess the farms by attacking the farmers, is that not correct?
MR THOBEJANE: It is correct, yes.
MR VAN RENSBERG: So, are you now saying that in a way you were trying to repossess the farms over the long term, but you were not ready to repossess the firearms and the cash.
MR THOBEJANE: No, no, maybe there is a misunderstanding. I was not a member of the Repossession Unit or one of the Repossession Units of APLA, I was not in that Unit. It is only the Repossession Unit which was responsible for repossessing of whatever it is, but it was not my duty, that one.
JUDGE KHAMPEPE: Are you saying that you were in the Offensive Unit?
MR THOBEJANE: I was in the Offensive Unit, I can say so.
JUDGE KHAMPEPE: And that there was also a Repossession Unit?
MR THOBEJANE: Yes, that is correct.
JUDGE KHAMPEPE: And that within APLA all these Units performed different functions?
MR THOBEJANE: That is correct.
JUDGE KHAMPEPE: And that your Unit as an Operation Unit was merely to launch an attack and not to repossess?
MR THOBEJANE: Yes, that is correct, not to repossess, yes.
MR VAN RENSBERG: Thank you Mr Chairperson. The place where you hid before the attack, was that also the same place where you ran to after the attack, the safe, your hiding place?
MR THOBEJANE: Can you repeat your question?
MR VAN RENSBERG: I want to know if the place where you stayed before the attack, is that the same place where you ran to immediately after the attack?
MR THOBEJANE: Yes, the same place.
MR VAN RENSBERG: Where is that place?
MR THOBEJANE: In Runnymead, it is a village.
MR VAN RENSBERG: Who is the owner of that place?
MR THOBEJANE: The owner of that house is Mr Piet Nociri.
MR VAN RENSBERG: Do you know anything of the whereabouts of this Mr Piet Nociri?
MR THOBEJANE: All I know is that he was arrested and later discharged because the charges were withdrawn against him and then I haven't seen him after this incident.
MR VAN RENSBERG: Was he charged in the same case as you?
MR THOBEJANE: Yes.
MR VAN RENSBERG: In your statement which forms part of the Bundle of documents, you mentioned that the orders were given to you by the High Commander of the organisation of APLA in the person of Mr Lethlapa Mpahlela, is that correct?
MR THOBEJANE: Lethlapa Mpahlela is a member of the High Command, yes.
MR VAN RENSBERG: And he was at the time the Director of Operations as you have testified?
MR THOBEJANE: The National Director of Operations.
MR VAN RENSBERG: Do you know what the whereabouts of this Mr Mpahlela is at the moment?
MR THOBEJANE: Not at the moment.
MR VAN RENSBERG: Are you aware of the fact that at one stage Mr Mpahlela was a member of the Parliament of the Republic of South Africa?
MR THOBEJANE: No, I am not aware of that. I am not aware of that one.
MR VAN RENSBERG: According to your own knowledge, would you confirm that this Mr Mpahlela knew exactly which farm was going to come under attack and he in fact ordered you to attack that farm?
MR THOBEJANE: After we have stepped up the reconnaissance, we met with Mr Lethlapa Mpahlela, we briefed him about this operation and he authorised. He has never seen specifically that farm of Mr Swanepoel. What we told him was that it was Mr Swanepoel's farm and we have targeted it as one of, it was targeted by our Unit and that is all.
MR VAN RENSBERG: So we can at least deduct that he had full knowledge of the operation?
MR THOBEJANE: I can say so, yes.
MR VAN RENSBERG: Okay, in your statement, the affidavit which was handed in to evidence this morning, and in particular - pardon your Worship, let me just find the relevant paragraph - paragraph 15 thereof, you gave a definition of the word "criminals" that you used in your evidence, can you just repeat that?
MR THOBEJANE: Criminals, we are referring to the apartheid regime who were, which was a specific word used by the United Nations because apartheid was a criminal against humanity and the farmers were part and parcel of the apartheid government as we all know that they had formed the Commando Units and all those things.
MR VAN RENSBERG: Is that your definition? Let me ask you this, did you personally agree with that definition of the word criminal?
MR THOBEJANE: Can you repeat your question?
MR VAN RENSBERG: You have now given us an interpretation of what the United Nations described as criminals, what I wanted to know is did you personally agree with that strange definition of criminals?
MR THOBEJANE: Do I agree?
MR VAN RENSBERG: yes?
MR THOBEJANE: Yes, I agree of course.
MR VAN RENSBERG: And would your definition of criminals also include people that kill other people and thereby contravene the laws of the Republic of South Africa?
MR THOBEJANE: Can you repeat your question?
MR VAN RENSBERG: The question is does your definition of criminal, your personal definition, also include people that kills other people and thereby contravening the laws of the Republic of South Africa?
MR THOBEJANE: Yes, people who contravene the laws of South Africa, according to the criminal law, they are referred to as criminals.
MR VAN RENSBERG: Yes, the question is do you personally agree with that definition as well?
MR THOBEJANE: At that time, I did not know or understand the criminal law, but now that because I have learnt or went through some study materials, I know that they are referred to as criminals, but by that time I did not know, I am sorry.
MR VAN RENSBERG: In your statement, or your affidavit, paragraph 11 you also mentioned that the information you had at the time, indicated that Mr Swanepoel's farm was a meeting place of right right-wingers, is that correct?
MR THOBEJANE: It is correct yes.
MR VAN RENSBERG: Can you give us some indication where this information was coming from?
MR THOBEJANE: We had a Reconnaissance Unit or a Reconnaissance Team that was a sub-Unit from the main Unit. Its duty was to gather all the information that might be used or that we might use as the Unit so the Reconnaissance Team during their reconnaissance, they have gathered such information because they interviewed some of the workers but they were not aware that they were being investigated, but they have also confirmed that right right-wingers were coming to Mr Swanepoel or were frequenting Mr Swanepoel's place.
MR VAN RENSBERG: So as far as you were concerned, you only gathered that or someone else told you that?
MR THOBEJANE: The Reconnaissance Team had come up with that information.
MR VAN RENSBERG: Yes, who was this Reconnaissance Team?
MR THOBEJANE: The late Prince himself was part of it and Donald Mukhawana.
MR VAN RENSBERG: Donald Mukhawana, that is the third applicant in this hearing, is that correct?
MR THOBEJANE: That is correct.
JUDGE KHAMPEPE: Isn't he the second applicant, oh, in terms of the affidavit?
MR MBANDAZAYO: In terms of the affidavit Chairperson, it is the second applicant.
CHAIRPERSON: On the Bundle, he appears as the third applicant, but it is the same person, one of the applicants in this matter.
MR VAN RENSBERG: Thank you Mr chairperson. Okay, and
also in the statement that you have made, which is included -
page 9 of the Bundle before this Committee, you said that Piet
Nocir, I suppose that is Piet Nociri, is that correct - "...
gave you some information that this owner of the Ganula Chicken
Farm, obviously referring to Mr Swanepoel, is a white man who
did not like black people and also that he is an AWB member in
the Tzaneen area.
This information contained or these allegations contained in your statement, did you have first hand evidence of this yourself or is this also information that you obtained from someone else?
MR THOBEJANE: Mr Piet Nociri was not that much involved in our activities, and then I don't remember him telling me about such information.
MR VAN RENSBERG: Can you remember making this statement on the 6th of October 1989?
MR THOBEJANE: Can I remember doing what?
MR VAN RENSBERG: 1998, pardon Your Worship. Can you remember making this statement which you will find on page 9 and 10 and 11 of the Bundle?
MR THOBEJANE: This statement was not compiled by myself, I am sorry. The statement you are referring to is the one which us right here on the table. It was compiled by Fanie Molapo.
MR VAN RENSBERG: Is it not your signature there on page 11?
MR THOBEJANE: This one is not my signature.
MR VAN RENSBERG: Okay, fine, the point I am trying to make is that it looks like the Reconnaissance Unit supplied you as the assault group with information that Mr Swanepoel was frequently being visited by ring right-wingers, that he didn't like black people and that he was an AWB member in the Tzaneen area. You accepted that information as correct, you yourself, personally, is that not so?
MR THOBEJANE: No.
MR VAN RENSBERG: Did you perceive it to be incorrect?
MR THOBEJANE: Not incorrect, but what is happening the reconnaissance will go to the place where we should attack and they should step up information. They will come with the information to us and now I can not perceive it as wrong, but if a commander says this is the situation and then that is how we are going to work.
MR VAN RENSBERG: So it was accepted as correct?
MR THOBEJANE: By the Unit, yes.
MR VAN RENSBERG: And by yourself?
MR THOBEJANE: I am part of the Unit, I can say.
MR VAN RENSBERG: Yes. If I put it to you that none of these information collected by the Reconnaissance Group is correct, what would you say to that?
MR THOBEJANE: I won't agree.
MR VAN RENSBERG: Why not, do you have any other information to sustain these allegations?
MR THOBEJANE: I know we had a very brilliant Reconnaissance Team and they cannot just come with incorrect information and according to the, one of APLA qualities, we were having some qualities there, qualities of a good fighter, we don't bring information which is not correct, false reports. They cannot report falsely.
MR VAN RENSBERG: Okay, the question is suppose the day before the attack, you received information that this was all false, that Mr Swanepoel has got no affiliations towards the right and that he is not an AWB member, would you still have carried out that attack?
MR THOBEJANE: Yes, we would still carry out the attack because he was a farmer.
MR VAN RENSBERG: And he was a white? Because he was white?
MR THOBEJANE: He was a farmer.
MR VAN RENSBERG: Did you attack or plan to attack any black farmers?
MR THOBEJANE: If they had defended the interest of that government, formed Commando Units, participated in those Units.
MR VAN RENSBERG: The question is did you plan to attack any black farmers as well?
MR THOBEJANE: No, at that stage, no.
MR VAN RENSBERG: Yes. I put it to you that the sole reason why you attacked that farm was because Mr Swanepoel was white and not because he was AWB or anything of those other reasons?
MR THOBEJANE: Yes, but I did not know Mr Swanepoel personally, where I can say I have attacked him because he was a white. I did not have any personal vendetta against Mr Swanepoel, and then I carried out the operation not because Mr Swanepoel, I know him, he is a white ...
JUDGE KHAMPEPE: That is not the question, you are being very long winded, the question is didn't you carry out the attack on Mr Swanepoel because he was a white farmer? It is a very simple question.
MR THOBEJANE: Yes, we attacked Mr Swanepoel as a white farmer, as a farmer.
MR VAN RENSBERG: Yes, thank you Mr Chairperson. Okay, now if I read between the lines and also your statements contained in the affidavit, it was part of APLA's policy at the time of which you were a member, to actually force the government of the day into submitting land and to take it away from white farmers and give it to the blacks, was that part of your struggle?
MR THOBEJANE: Can you repeat your question.
MR VAN RENSBERG: Was it part of APLA's policy at the time, by carrying out these attacks, to persuade or put pressure on the government of the day, to take farms away from the white farmers and give it to the blacks?
MR THOBEJANE: Yes.
MR VAN RENSBERG: At the time, do you agree that Mr Nelson Mandela had been released already, I think three years before the attack, is that correct?
MR THOBEJANE: I am a member of PAC and I am sorry to say that I had nothing to do with ...
JUDGE KHAMPEPE: Just answer the question Mr Thobejane. Answer the question, I am sure he is still getting to something, he is laying a basis for further questions to follow. Mr Mandela had been released at that time, yes or no?
MR THOBEJANE: Yes.
JUDGE KHAMPEPE: Yes.
MR VAN RENSBERG: Yes, and at the time there was already, I am talking about April 1993, there was already talk about a full democratic election in this country, is that not so?
CHAIRPERSON: Mr Van Rensberg, we know what you are getting at here, but we also know that APLA only issued instructions to stop operations I think it was on the 16th, I might be wrong of the date of January 1994, which instructions took some time to filter through to the people on the ground. So if you take a look at the APLA submissions, the party, they were still operative in the struggle in 1993, it was only in January 1994 that they actually called a cease-fire.
MR VAN RENSBERG: Yes, thank you Mr Chairperson, that is actually where I was going. Mr Thobejane, can you confirm that at one stage the APLA High Command actually gave instructions for you cadres, to stop attacking the white farmers?
MR THOBEJANE: By that time, I was in jail, 1994, I was in jail.
MR VAN RENSBERG: Hm, so you never received those instructions?
MR THOBEJANE: I only knew about them from somebody else, not directly from a member of the High Command.
MR VAN RENSBERG: I see. The reason why I am asking these questions Mr Thobejane is the victims in this specific instance, want to have the assurance that if you are granted amnesty, this kind of thing will not happen again. What is your response to that?
MR THOBEJANE: I won't attack them again, if he is asking for me alone.
MR VAN RENSBERG: What is the instructions from APLA High Command that has reached your ears?
MR THOBEJANE: Today, PAC is part of the government of the day, so I don't think they can issue such instructions again, you know, because they are in Parliament themselves.
MR VAN RENSBERG: Mr Chairman, if I can just take instructions for one second please. Thank you Mr Chairman, there is only one question I still want to ask. Mr Thobejane, do you know a person by the name of James Baloyi?
MR THOBEJANE: I know him, yes.
MR VAN RENSBERG: Can you please tell this hearing how you know him and where his whereabouts are at the moment?
MR THOBEJANE: I don't know where he is at the moment, but what I know about him is that he is a member of the PAC and the late Prince had stayed by his house and he was part of our Unit.
MR VAN RENSBERG: Are you saying that James Baloyi was also part of your assault group?
MR THOBEJANE: Jameson Baloyi?
MR VAN RENSBERG: Yes?
MR THOBEJANE: Not part of the assault group.
CHAIRPERSON: He said that the late Prince stayed at his place.
MR VAN RENSBERG: At his place.
MR THOBEJANE: Are you referring to Tekwani Baloyi or Jameson Baloyi?
JUDGE KHAMPEPE: James Baloyi, are there many James Baloyi's you know?
MR THOBEJANE: Jameson Baloyi.
CHAIRPERSON: Jameson Baloyi.
JUDGE KHAMPEPE: Jameson Baloyi?
MR THOBEJANE: I know Jameson Baloyi, Prince had stayed at his house.
MR VAN RENSBERG: That is in the same region where you also had your hiding place, isn't that correct?
MR THOBEJANE: Yes.
MR VAN RENSBERG: And this Jameson Baloyi, in fact knew of the eminent attack?
MR THOBEJANE: No, he was not in the Attacking Unit.
MR VAN RENSBERG: Thank you Mr Chairperson, I've got no further questions.
NO FURTHER QUESTIONS BY MR VAN RENSBERG
CHAIRPERSON: Thank you Mr Van Rensberg. Ms Mtanga, do you have any questions that you would like to ask?
MS MTANGA: No questions, Chairperson.
NO CROSS-EXAMINATION BY MS MTANGA
CHAIRPERSON: Mr Mbandazayo, do you have any re-examination?
MR MBANDAZAYO: None, Chairperson.
NO RE-EXAMINATION BY MR MBANDAZAYO
CHAIRPERSON: Judge Khampepe, do you have any questions?
JUDGE KHAMPEPE: I have no questions.
CHAIRPERSON: Adv Bosman?
ADV BOSMAN: I have no questions, thank you Chairperson.
CHAIRPERSON: Thank you Mr Thobejane, that concludes your testimony, you may stand down.
MR THOBEJANE: Thank you very much, Mr Chairman.
WITNESS EXCUSED
NAME: DONALD SERANI MUKHAWANA
APPLICATION NO: AM 0720
--------------------------------------------------------------------------
ON RESUMPTION:
CHAIRPERSON: Mr Mbandazayo?
MR MBANDAZAYO: Chairperson, the next applicant is Donald Serani Mukhawana.
JUDGE KHAMPEPE: Mr Mbandazayo, in view of the fact that we really have their affidavit which you can, which has been deposed to by Mr Mukhawana, do you think there is any reason for you to lead evidence, in view of the fact that there is evidence before us?
MR MBANDAZAYO: None Chairperson, what I was going to do was just for him to confirm the affidavit, that is all.
JUDGE KHAMPEPE: Yes.
MR MBANDAZAYO: Thank you Chairperson.
CHAIRPERSON: Mr Van Rensberg, Ms Mtanga, do you have copies of the affidavit?
MS MTANGA: Yes, we both do Chairperson.
MR VAN RENSBERG: Yes, I confirm, we are in
possession of copies.
DONALD SERANI MUKHAWANA: (sworn states)
CHAIRPERSON: Mr Mbandazayo?
EXAMINATION BY MR MBANDAZAYO: Thank you Mr Chairperson and Honourable members of the Committee. Mr Mukhawana, the affidavit which is in front of you, is also before the Honourable members of the Committee, do you confirm that this affidavit was made by yourself and you abide by its contents?
MR MUKHAWANA: Yes.
MR MBANDAZAYO: Chairperson, as I have indicated, I am not intending to lead any evidence, that is the evidence of the applicant, thank you.
NO FURTHER QUESTIONS BY MR MBANDAZAYO
CHAIRPERSON: This affidavit will be handed in as Exhibit B.
MR MBANDAZAYO: Thank you Mr Chairperson.
CHAIRPERSON: Mr Van Rensberg?
CROSS-EXAMINATION BY MR VAN RENSBERG: Thank you Mr Chairperson, let me just find my way. Mr Mukhawana, on the day of the attack on the farm, can you just tell us, did you enter the house?
MR MUKHAWANA: On the day of the attack, Mr Swanepoel's farm, I never entered the house, I was standing on the door when the late ordered that we should withdraw because the dogs were barking. I never entered the house.
MR VAN RENSBERG: Did you see the deceased, Mr Modau firing shots into the house from outside?
MR MUKHAWANA: Where I was standing, I was able to see the late because it was a passage from the house.
MR VAN RENSBERG: Could you actually see down that passage?
MR MUKHAWANA: Yes, I could see from outside.
MR VAN RENSBERG: Did you see Mr Swanepoel jumping into the room, away from the previous applicant which had the AK47, could you see that?
MR MUKHAWANA: I only saw Mr Swanepoel when he ran to the right hand side, in the room at the right hand side, I don't know what happened in the house after that.
MR VAN RENSBERG: The room that he ran into, can you confirm that that was the same room in which Mrs Swanepoel was shot?
MR MUKHAWANA: Yes.
MR VAN RENSBERG: I have no further questions, thank you Mr Chairperson.
NO FURTHER QUESTIONS BY MR VAN RENSBERG
CHAIRPERSON: Thank you Mr Van Rensberg. Ms Mtanga?
MS MTANGA: No questions, Chairperson.
NO CROSS-EXAMINATION BY MS MTANGA
CHAIRPERSON: Judge Khampepe, do you have any questions?
JUDGE KHAMPEPE: No questions, thank you.
CHAIRPERSON: Adv Bosman?
ADV BOSMAN: No questions, thank you Chairperson.
CHAIRPERSON: Thank you Mr Mukhawana, that concludes your testimony, you may stand down.
MR MUKHAWANA: Thank you very much, Mr Chairperson.
WITNESS EXCUSED
NAME: THOMAS NGOBENI
APPLICATION NO: AM 0719
-------------------------------------------------------------------------
ON RESUMPTION:
MR MBANDAZAYO: The next applicant Chairperson, is Thomas Ngobeni.
THOMAS NGOBENI: (sworn states)
CHAIRPERSON: Thank you.
EXAMINATION BY MR MBANDAZAYO: Mr Ngobeni, the affidavit which is in front of you, is also before the Honourable Committee, members of the Committee, do you confirm that this affidavit was made by yourself and you abide by its contents?
MR NGOBENI: Yes.
MR MBANDAZAYO: Chairperson, that is the evidence for the applicant.
CHAIRPERSON: The affidavit, Mr Van Rensberg, you have a copy and Ms Mtanga, that will be received as Exhibit C.
MR MBANDAZAYO: Thank you Chairperson.
NO FURTHER QUESTIONS BY MR MBANDAZAYO
CHAIRPERSON: Mr Van Rensberg?
CROSS-EXAMINATION BY MR VAN RENSBERG: Thank you Mr Chairperson. Mr Ngobeni, can you just tell us for which offences you are making application for amnesty?
MR NGOBENI: Yes, I can tell you.
MR VAN RENSBERG: Please proceed.
CHAIRPERSON: If you can just tell what offences you are applying for amnesty, that is the question.
MR NGOBENI: It is murder, illegal possession of firearm and ammunition and attempted robbery.
MR VAN RENSBERG: Can you tell us what evidence was led in the criminal trial, that led to your conviction of attempted robbery?
MR NGOBENI: Can you repeat your question.
MR VAN RENSBERG: The question is can you just briefly tell this Commission what evidence were led, was led, during the criminal trial that led to your conviction on the count of attempted robbery?
MR NGOBENI: What I can remember on attempted robbery, we never gave any evidence because our aim was not to rob.
MR VAN RENSBERG: Yes, I am asking what evidence was led from the State's side?
MR NGOBENI: They only told us that we are charged with attempted robbery, but I never heard Mr Swanepoel talking about attempted robbery.
CHAIRPERSON: I think that you should just be a bit more specific Mr Van Rensberg, because I am sure that we can all accept that at the trial, there was evidence of entering the farm premises without permission, being armed, shooting, entering into the house, all of which could constitute a basis for attempted robbery. Was there any evidence led at the trial of any of you unsuccessfully actually trying to take any specific item from the premises?
MR NGOBENI: There was no one that attempted to take anything from the house, because even on our plan, it was not there to rob. I am sure there was no one who was intending to take anything or to rob anything from the house.
MR VAN RENSBERG: Thank you Mr Chairman. At the trial, at the time of the trial, did you use as a defence, the fact that you were members of APLA and that you actually attacked the farm for political motives?
MR NGOBENI: Yes, that is correct.
MR VAN RENSBERG: But I gather from your previous statement that you actually did not give evidence yourself, is that not correct?
MR NGOBENI: I don't understand which statement you are talking about.
MR VAN RENSBERG: Okay, let's be more direct. Did you give evidence on your own behalf and in your own defence, at the time of the criminal trial?
MR NGOBENI: I don't understand whether you are talking about evidence in court given by myself?
CHAIRPERSON: Yes, I think that is what Mr Van Rensberg is asking, did you during your trial in court, give evidence yourself?
MR NGOBENI: Yes, I gave evidence, but the evidence I gave after I was arrested, some of those were coerced to make such evidence.
JUDGE KHAMPEPE: May I interpose Mr Van Rensberg, maybe just to assist with regard to this. Did you give evidence in mitigation of your sentence, to the effect that the offence for which you had been convicted were politically motivated, is that the kind of evidence that you are referring to when you say you gave evidence of a political nature in your defence?
MR NGOBENI: Yes, after sentence, I gave evidence in mitigation of sentence.
JUDGE KHAMPEPE: Yes.
MR NGOBENI: And I gave it wilfully.
MR VAN RENSBERG: Apart from giving evidence in mitigation, did you actually also give evidence in defence of yourself or not, only in mitigation?
MR NGOBENI: I also gave some evidence before we were convicted, even before we went to, but the evidence that I gave is not the same evidence that I gave in mitigation of sentence, so to say.
MR VAN RENSBERG: Yes, and the difference was that when you gave evidence in your own defence, you did not mention that you were a member of APLA and that you attacked the farm for political reasons, is that not so?
MR NGOBENI: It is not correct, I explained that I was a member of APLA.
MR VAN RENSBERG: Let's not get confused, did you explain to the Court the first time when you gave evidence on your own behalf, before you were found guilty, did you give evidence then that you were a member of APLA?
MR NGOBENI: I don't know if - I forgotten because it is a long time ago, but I remember telling the Court, but I am not sure whether I didn't say, but I think I told the Court that I was a member of APLA.
MR VAN RENSBERG: Yes, I put it to you and that is also the evidence of the first applicant, the real situation is that you never during your defence of the case, informed the Court that you actually attacked the farm for political motives and you only mentioned that in mitigation. Do you agree with that?
JUDGE KHAMPEPE: Mr Van Rensberg, do you personally have instructions in relation to this point, if you put it to him, will your client also say something to that effect?
MR VAN RENSBERG: Perhaps I can just take specific instructions on that.
JUDGE KHAMPEPE: Yes, before putting it to him, yes. You know if you are not going to substantiate it ...
MR VAN RENSBERG: Yes, I just want to confirm that. Chairperson, I have in fact confirmed my instructions and I can put it to this witness specifically that the victim will come and testify to confirm my previous allegation.
JUDGE KHAMPEPE: You may proceed to do so.
MR VAN RENSBERG: Thank you, just to clear up any confusion, I want to put it to you that Mr Swanepoel will come and testify that he was present during the hearing of your case and that neither yourself or any of the other applicants in today's hearing, made any mention during the defence stage of your criminal hearing, made mention of the fact that you attacked a farm for political motives. What do you say to that?
MR NGOBENI: As I have already indicated, I can't remember very well, because it is a long time ago. Initially we never told the Police that we were members of APLA, at the end, in mitigation of sentence, there is a section where we told the Court that our actions were politically motivated, that is where we told the Court that we were members of APLA.
MR VAN RENSBERG: Yes, the question then that remains to be answered is why didn't you if you now are frank and open and put all your cards on the table to spell out exactly what your political motives were at the time, why didn't you explain that in the court of law as well?
MR NGOBENI: It was very difficult that time, because of our experience how the political people were handled by the government of the National Party, so it was very much difficult for us if they could have known that we were members of APLA, they were going to treat us very badly, just like other people who were killed by the Security Police, more especially in prison.
MR VAN RENSBERG: Thank you Mr Chairperson, I have no further questions.
NO FURTHER QUESTIONS BY MR VAN RENSBERG
CHAIRPERSON: Thank you. Ms Mtanga, do you have any questions?
MS MTANGA: No questions Chairperson.
NO CROSS-EXAMINATION BY MS MTANGA
CHAIRPERSON: Judge Khampepe, do you have any questions?
JUDGE KHAMPEPE: No questions.
CHAIRPERSON: Adv Bosman, any questions?
ADV BOSMAN: I don't have any questions, thank you Chairperson.
CHAIRPERSON: Thank you Mr Ngobeni, that concludes your testimony, you may stand down.
WITNESS EXCUSED
CHAIRPERSON: Mr Mbandazayo?
MR MBANDAZAYO: Chairperson, I will only call one witness, Gen Fihla only on two specific points to give evidence, thank you.
CHAIRPERSON: Yes. General Fihla, what are your full names please?
MR FIHLA: Mbulelo Raymond.
CHAIRPERSON: Mbulelo?
MR FIHLA: Yes, Raymond Fihla.
MBULELO RAYMOND FIHLA: (sworn states)
CHAIRPERSON: Thank you. Mr Mbandazayo?
EXAMINATION BY MR MBANDAZAYO: Thank you Chairperson. Gen Fihla, can you tell first the Committee where are you presently working, what are you doing at that one?
MR FIHLA: I am presently with Defence Intelligence, I am part of the collection team under Major General Steenkamp.
MR MBANDAZAYO: Can you tell the Committee your rank?
MR FIHLA: I am a Brigadier General by rank.
MR MBANDAZAYO: Mr Fihla, can you tell the Committee, before you became a member of the South African National Defence Force, which of the non-statutory forces did you belong to?
MR FIHLA: I belonged to the Azanian Peoples' Liberation Army and I was a member of the High Command and at that time, Director for Military Intelligence.
MR MBANDAZAYO: Can you Gen Fihla tell the Committee, whether do you know any of the applicants in this hearing?
MR FIHLA: The only applicant I know directly is Brian Thobejane. How I know him is because when he arrived, I think it was 1990 or 1991, I think I was the one who received him and when he did his basic military training and Intelligence courses, I was also in charge of them as well.
MR MBANDAZAYO: Now, Gen Fihla, briefly, the applicants have testified that they targeted the farm of Mr Swanepoel and the reason why the targeted the farm of Mr Swanepoel is because it was in terms of the PAC APLA policy to attack the farms. Can you confirm that, can you tell the Committee whether, what they did was within the scope of operations of APLA or it was outside the scope of APLA?
MR FIHLA: If I recall, I got to know about this operation in 1993 when a report on our casualties was given by the then Director of Operations, Comrade Lethlapa Mpahlela. Because we all the time had to look at the operations to look if definitely they fell within the ambit and the mandate of the Azanian Peoples' Liberation Army and I can confirm that this operation specifically fell within the mandate and the ambit of our operations.
MR MBANDAZAYO: You mention that Lethlapa Mpahlela, former Director of Operations, and you said that when you talk about casualties, can you expand on that?
MR FIHLA: What we used to do, occasionally reports were given to the High Command and specifically to me as well as the Director for Military Intelligence, to make a review of cases and casualties because part of my responsibilities was to ensure that the same mistakes don't happen again and was to ensure that operations were conducted, they were based on proper intelligence. That is why specifically also on this operation, I received a report as well. Lethlapa was given a report in his capacity as Director for Operations, because all operations fell directly under him. The cadres who were conducting operations directly, were accountable specifically to him.
MR MBANDAZAYO: It was also mentioned here, can you elaborate that it was mentioned that there were two, you also had two certain Units within APLA, a Repossession Unit and an Offensive Unit, can you briefly tell the Committee, whether the same Unit can do the same, can be involved - if the Offensive Unit can be involved in the Repossession Unit and the Repossession Unit can be involved in the offensive operations?
MR FIHLA: Basically the Units were operating separately, they were operating parallel. An Offensive Unit was not part of the Repossession Unit, but occasionally it did happen that an Operational Unit would find itself repossessing, maybe this was because of natural factors, because whenever they saw certain things, then they would take some initiative and take some of the things, but the structure was that the Operational Units were separate from Repossession Units.
MR MBANDAZAYO: Chairperson, that is the evidence I wanted to lead in this aspect from Gen Fihla, thank you.
NO FURTHER QUESTIONS BY MR MBANDAZAYO
CHAIRPERSON: Thank you Mr Mbandazayo. Mr Van Rensberg, do you have any questions?
CROSS-EXAMINATION BY MR VAN RENSBERG: Yes, thank you Mr Chairman. General, are you saying that if we make it the policy at the time applicable on these circumstances that you would have expected your Assaulting Unit, if they arrived on the farm, get the farmer into the house, get him to open the safe and there are guns and cash in the safe, you would expect them to take the guns and the cash, is that not so?
MR FIHLA: We wouldn't expect them to do that, because it was not part of their brief, but it is natural as soldiers, when you see a gun, particularly in our case, on very rare occasions would some of them leave guns idly. They would definitely maybe take them if the opportunity is there.
MR VAN RENSBERG: Yes, let's put it this way, you would definitely not expect them to leave it there, is it not?
MR FIHLA: No, I would expect them to leave it there, but if they take the initiative and they deem it fit within their circumstances and they bring them, as long as they report it, that when they conducted this operation, then they had this (indistinct), as long as that was reported and submitted, then they would fall within the mandate, but they would be found guilty if they sustained some casualties because they moved out of the way and started to do what was not within their mandate, that is the problem. So the initiative at times, would be there on the cadres.
MR VAN RENSBERG: Okay, let's narrow it down, it was definitely not against the orders of the attackers in that specific instance, to have taken guns and cash if the opportunity arose?
MR FIHLA: It would have depended on the instructions of the Commander at that time, who gave them the instructions, what he had said. If they had gone outside the instructions, then they would have been guilty. But it would depend on the instructions of the Commander, depending on the nature of the attack, that was to be attacked.
MR VAN RENSBERG: Yes, but if we talk about the general attitude of the High Command towards such a thing, it would not have been seen as totally strange if they would have taken the guns and the cash?
MR FIHLA: The policy was strict, that is why we separated the Units, because we didn't want to have confusion in this regard. But from practical experience, occasionally some of the Units did find themselves doing what they were not supposed to do.
MR VAN RENSBERG: Yes, and you as High Command did not have a serious problem with that?
MR FIHLA: We had a problem with that.
MR VAN RENSBERG: Did you ever discipline those members that took money or guns when they were supposed to kill people?
MR FIHLA: I remember an instance in the Transkei, fortunately I was there at the time when they reported him, a Unit had gone out of his way to do what he was not supposed to do and I was part of the team that disbanded that Unit because they went out of their way to do what they were not supposed to do, so I can confirm that disciplinary measures were taken when such things came up. But naturally we would also look at the circumstances under which such activities did take place and then take the necessary measures on the basis of that.
MR VAN RENSBERG: Yes, when you started giving your evidence, I got the impression that you would say and speaking on behalf of the High Command, that you would not frown on the cadres if they do take weapons and cash perhaps in those circumstances. Are you now saying that you actually totally disapproved of that, because of the split in the different disciplines?
MR FIHLA: I think the words you are using, I did not use them. Initially I said naturally, because we are dealing with human beings who would at times, take their own initiative, so I am talking from practical experience, from what happened. Some of the Units did actually do what they were not supposed to do. We dealt with those cases specifically according to the circumstances under which it happened. We were strict on this rule, that is why we separated the Units and I am making this example of the Transkei where I was part and parcel of the team that disciplined the Unit there, but naturally which is what I am saying, we looked at the circumstances. Being a soldier myself, if a weapon is laying idle there and I can carry it, I will not jump it and leave it, because I was not part of the Repossession Unit, so I would take the initiative and take it, as long as I report it back.
MR VAN RENSBERG: Yes, if I can refer you to the statement of the first applicant, Mr Thobejane.
CHAIRPERSON: Exhibit A?
MR VAN RENSBERG: Yes, that is Exhibit A, thank you Mr Chairman, and specifically paragraph 8.2 thereof, I am going to quote it for you, he says, perhaps I should start with yes, 8.2 -
"... the bastion and minions of the then erstwhile regime were in terms of the APLA perspective (a) the members of the South African Police and reservists in general, (b) members of the South African Police and reservists in general, (c) ..."
MR MBANDAZAYO: Sorry Chairperson, just a correction there, I think there it was a typographical error, it should be South African Defence Force.
MR VAN RENSBERG: Yes, (b).
MR MBANDAZAYO: It was a repetition, (b), it was a repetition of paragraph (a). (b) should be South African Defence Force before it was National Defence Force.
MR VAN RENSBERG: Yes, I don't think I will have a problem with that amendment, it clearly refers in (b) to members of the South African Defence Force and then -
"... (c), the farmers as they belonged to the Commando structures."
Let's stop the quotation there. General, if I get the impression then that APLA had it against the regime, the Police, the Defence Force and the white farmers, or the farmers then, who formed part of the Commando's, the only thing that I can think of that qualifies these three to be grouped together is because they were all armed, armed structures, is that not so?
MR FIHLA: Partly yes, but our understanding was that the farmers who formed the first line of defence through the Commando Unit system and so on.
MR VAN RENSBERG: Yes, and it was general knowledge that farmers are armed?
MR FIHLA: Yes.
MR VAN RENSBERG: So with that knowledge if I interpret your evidence correctly, you say that it was APLA's policy or instructions that in fact, in spite of the fact that they attacked armed farmers, if they come across guns, they should leave it there and not disarm the farmers because it is not part of that Unit's responsibility, is that your evidence?
CHAIRPERSON: I think Mr Van Rensberg, I understood it, and correct me if I am wrong please, was that the Offensive Unit's function was to attack, not to repossess. Repossession Unit's function essentially was to repossess, but if in an attack conducted by an Offensive Unit, they came across weapons or money and they could use their discretion and take that money, so long as they reported it to the Operations Director, etc, that was the understanding I took, so in other words and I think in the last answer that the General answered, he said if he was as a soldier doing an attack and came across a gun, he would himself have taken it and then, but report it. I think that was the understanding, if there wasn't an order "leave guns alone."
MR VAN RENSBERG: It should be totally separate.
CHAIRPERSON: Just rephrase the question.
MR VAN RENSBERG: Yes, thank you Mr Chairman. Perhaps I did misunderstand it, I thought, I also thought that was initially his view, but then that he changed later, perhaps I can put a specific statement to him.
CHAIRPERSON: Before I put that, was I incorrect in what I said?
MR FIHLA: You are correct, that is what I said.
MR VAN RENSBERG: Okay, then we should not need to take the matter further. If you then accept as correct the statement that the Chairman has made just now, then obviously you have to agree with me that the Court, the criminal Court made the correct ruling in finding them guilty on attempted robbery, do you agree with that statement?
MR FIHLA: Unfortunately I did not see the Court ruling and I am not too sure if that ruling was based on what, so I wouldn't commit myself on that one.
MR VAN RENSBERG: I see. The Chairman previously enlightened us to the fact that on the 16th of January 1994, APLA stopped its armed offensive.
CHAIRPERSON: I said I think it was the 16th, I wasn't sure of the date.
JUDGE KHAMPEPE: That is correct.
MR FIHLA: It is correct, the 16th.
MR VAN RENSBERG: Yes, I just want to confirm that, is that in fact the correct date that we are talking about, 16th of January 1994?
MR FIHLA: I am not too sure about the date, but it was in January 1994.
MR VAN RENSBERG: Have you as part, or at least former part of APLA's High Command, what steps have you taken to make sure that your cadres on the ground today, has received that orders?
MR FIHLA: This decision was taken in 1994 and I was part of the decision, the reason why the decision was taken first and foremost is because at that time, if I may give you the background of the PAC, there was some divisions in terms of whether the PAC should become part and parcel of the process that was taking place at the time. After a lengthy debate a decision eventually was taken in January that the armed struggle has got to be stopped and therefore both the PAC and APLA had to be part and parcel of the process that was taking place. Instructions were issued by the High Command, unfortunately we had a long structure in terms of the chain of command, so the instructions from the High Command were directed first and foremost to the Director of Operations, and the Director of Operations in turn had to give instructions to the Regional Commanders and the Regional Commanders in turn had to give instructions to the District Commanders, down until it reached the lowest levels, and this took a long time. Not necessarily because it was a long chain, but secondly we had to convince our cadres, like I am indicating that we had serious divisions in this regard. Even ourselves before we could take that decision as the High Command, we were seriously divided, we had to debate over the issue until finally we had the majority that was for the decision, and amongst the cadres as well, there were those initially who opposed it and this opposition was also reflected later on when we integrated into the Defence Force. Some of the members refused to integrate and we had to persuade them and the last group was only integrated last year, we are still continuing to make an effort to make sure that even those who have not yet integrated, must become part and parcel of the process. I can assure you that we have made an effort since 1994, even to date, if we can get an indication possibly that there are some APLA members that are thinking differently from what the High Command thought and the PAC thought initially, we will take it upon ourselves to make sure that they tow the line.
CHAIRPERSON: General, APLA, does it still exist?
MR FIHLA: APLA still exists in as far as integration is concerned.
CHAIRPERSON: But it doesn't have its formal structures in place, etc?
MR FIHLA: No, that structure is now part and parcel of the Defence Force.
CHAIRPERSON: Yes.
MR FIHLA: But within the Defence Force, we still remain an entity to make sure that everything that pertains to APLA is addressed.
JUDGE KHAMPEPE: You no longer have the Offensive, the Repossession and the other Units?
MR FIHLA: Not at all, we are part and parcel of the government structures now, members of the Defence Force.
JUDGE KHAMPEPE: Thank you.
MR VAN RENSBERG: Yes, you have heard the evidence of the applicants, I think it was the first applicant who said that, or at least implied that he never got that instruction because he was in jail at the time. The question is what are you, or what have you done, what are you doing to make sure that the people who are still in jail and many of them are perhaps now making application for amnesty, that they have received the orders to stop the armed struggle?
MR FIHLA: We made a lot of effort, even we went to an extent of visiting some of the members who were in prison as well including the applicants themselves, I think I have been in contact with the first applicant as well, even as late as when was it, last week, if I am not mistaken, so we have made an effort to make sure that we get into contact with all former APLA members wherever they are.
MR VAN RENSBERG: Are you saying that you, yourself, gave the order to the first applicant that the war is over now?
MR FIHLA: I didn't, because I was not directly responsible for him.
MR VAN RENSBERG: If I understand your evidence correctly, you said you never had any knowledge of this specific attack that we are talking about, until after it had already happened?
MR FIHLA: Yes.
MR VAN RENSBERG: That definitely was not the case with Mr Mpahlela, is that not so, he knew about the attack?
MR FIHLA: It was, it was the case as well, because Mr Mpahlela was not a Regional Commander, he was a Director of all Operations. Regional Commanders were reporting to him and telling him what they intended to do, and his responsibility was to ensure that those operations fell within the mandate and guidelines of APLA and the PAC.
MR VAN RENSBERG: I see, so Mr Lethlapa Mpahlela did know about this attack?
MR FIHLA: He did know about the attack yes, because he gave the authority to go ahead.
MR VAN RENSBERG: Do you know if Mr Mpahlela has made application for amnesty?
MR FIHLA: I am not too sure whether he has finally did it for this one specifically but I know that he did apply for a number of other operations were he was directly involved, but in terms of this one specifically, I am not too sure.
MR VAN RENSBERG: Do you know what position Mr Mpahlela is holding at the moment?
MR FIHLA: Mr Mpahlela has not integrated, he is in the PAC.
MR VAN RENSBERG: Is he a politician, still a politician?
MR FIHLA: Yes, but he doesn't hold any post within the PAC.
MR VAN RENSBERG: I see. Just a last question, may I ask if you yourself, has made application for amnesty?
MR FIHLA: I did make an application for amnesty and it was turned down.
MR VAN RENSBERG: I see. No further questions, thank you Mr Chairman.
NO FURTHER QUESTIONS BY MR VAN RENSBERG
CHAIRPERSON: Thank you Mr Van Rensberg. Ms Mtanga?
MS MTANGA: No questions, Chairperson.
NO CROSS-EXAMINATION BY MS MTANGA
CHAIRPERSON: Mr Mbandazayo, do you have any re-examination?
MR MBANDAZAYO: None Chairperson.
NO RE-EXAMINATION BY MR MBANDAZAYO
CHAIRPERSON: Judge Khampepe, do you have any questions?
JUDGE KHAMPEPE: No questions.
CHAIRPERSON: Adv Bosman?
ADV BOSMAN: No questions Mr Chairperson.
CHAIRPERSON: Thank you General, that concludes your testimony, you may stand down.
WITNESS EXCUSED
CHAIRPERSON: Mr Mbandazayo?
MR MBANDAZAYO: Thank you Mr Chairperson and Honourable members of the Committee, that is the evidence of the applicants. That concludes the evidence of the applicants, thank you.
CHAIRPERSON: Mr Van Rensberg?
MR VAN RENSBERG: Thank you Mr Chairman. At this stage we are ready to proceed to lead the evidence of the victim, it will only be one witness, Mr Swanepoel. I don't know if you want us to proceed?
CHAIRPERSON: We could have the evidence now if possible, thank you.
MR VAN RENSBERG: Mr Swanepoel will give evidence in ... (mechanical problem) ...
MR SWANEPOEL: ... on the Ganula smallholdings.
MR VAN RENSBERG: All right, let us start, on the 27th of April 1993, APLA launched an attack on your farm, is that correct?
MR SWANEPOEL: It was the 28th of April 1993.
MR VAN RENSBERG: 28th of April, could you please tell the Commission what happened from that morning when you got up?
MR SWANEPOEL: I got up at about five o'clock in the morning and I had a shower, I opened some of the windows in the house, I opened the back door and the front door and I made tea and took my wife some tea in the bedroom. We were sitting on the bed - may I just go back a little bit, early that morning, just before I got up, the one dog who sleeps in the bedroom with us, there are two who sleeps in the bedroom, one dog rushed to the window and barked. I got up and I went to have a look, but I didn't see anything. Then later, I got up and washed and took my wife some tea in bed and while we were drinking tea, I was sitting on her side of the bed, and I looked out in the direction of which I would leave the house, I had already put on my socks and shoes and I was weighing medicine for the chickens and I then left the house, it was about quarter past six in the morning. In each hand, I carried a little bowl of medication and approximately 15 metres from the front door, I heard a muttering. There was a cement pond surrounded by flowers and I saw man standing, jumping up from the flowers and I actually thought it was one of my own labourers and I wondered why he was up so early, what he was doing on our property so early because it wasn't yet time for work. I open up the cages first thing in the morning and only then do the labourers arrive and the man approached me and said that I should halt. As he approached me, Mr Thobejane also jumped up amongst the flower bed and when the first man was about five metres away from me, he aimed a pistol at me and when Mr Thobejane stood up, I saw that he had an AK47. I then stood still, I first wanted to run and then the person with the pistol said I should stand still. As I was still thinking what I was about to do, I took the two bowls of medicine and I bent forward and put it down on the path in front of me, he once again told me to stand still. He then told me to go back to the house and he pushed the pistol in the small of my back and we turned around and walked towards the house. Mr Thobejane walked next to us with the AK47 aimed at the dog, I have a Staffordshire Terrier dog who stays outside the house on the smallholding, and he kept this weapon aimed at the dog. At the door, the person with the pistol led me in the direction of the room, we first entered into an entrance hall, we then turned right into a passage and at the end of the passage, on the right hand side, is the main bedroom. When I got to the bedroom door, I saw my wife standing in the middle of the room and I knew I had to do something. I then jumped into the room, and as I did so, I slammed the door shut, but as I did so, I heard a shot go off and it missed me by millimetres, it missed my arm. As the door banged shut, my wife onto the floor in front of me. I knew that she was dead. I stepped over her, I stepped over her body and went to my safe because I knew that this was trouble. Whilst I was standing in front of the safe to unlock it, shots were fired at me through the window from outside. By the time I got my weapon out of the safe, I heard people shouting at each other outside and then there was quiet. I first looked out of the window to make sure if there was anybody outside, there was nobody and then I went out, I left the house and there was nobody outside.
MR VAN RENSBERG: So were shots fired from outside into the bedroom?
MR SWANEPOEL: Yes, one narrowly missed my leg by about 100 millimetres and went into the wardrobe and one missed my head by about 50 millimetres and went into the wall.
MR VAN RENSBERG: Did you then summon the Police after that?
MR SWANEPOEL: No, a minute or so afterwards my phone rang and it was the neighbour, she was outside and she said that she could hear shots and what was going on. I told her that we were attacked and that my wife was dead and I said to her "please just get the Police."
MR VAN RENSBERG: Earlier today we heard evidence that the applicants were of the opinion that your wife was actually busy summoning help by telephone, can you respond to that?
MR SWANEPOEL: There is no phone in the bedroom and I didn't also have a mobile phone.
MR VAN RENSBERG: At the time the shot was fired which hit Mrs Swanepoel, was she armed?
MR SWANEPOEL: Yes, she had her pistol in her hand, there was only one round in the chamber.
MR VAN RENSBERG: The evidence thus far has pointed out that Mrs Swanepoel shot at the attackers?
MR SWANEPOEL: No, that could not have been because I was actually between her and the attackers in the room, in the door to the bedroom.
MR VAN RENSBERG: The evidence of Mr Thobejane was that you locked yourself in the bedroom and that he couldn't open the door and that is also contained in the affidavit which was handed in as Exhibit A, could you respond to that?
MR SWANEPOEL: No, that is not true. I slammed the door shut and immediately went to my safe. If I still had to lock the door, the person who had been shooting at me, as I was standing in front of the safe, how would he have been able to shoot at me if I had locked the bedroom door. It all happened so quickly as Mr Thobejane said, it happened so very quickly.
MR VAN RENSBERG: Do you know who it was who fired the shot at your wife?
MR SWANEPOEL: I think, I am assuming it was the man with the pistol because there was a cartridge, a bullet, the cartridge of that, was found in the house.
MR VAN RENSBERG: So that must have been the deceased Modau?
MR SWANEPOEL: Yes.
MR VAN RENSBERG: You have already said that you are a chicken farmer, what was in the safe at that stage, at the stage when the attack on your house was carried out?
MR SWANEPOEL: Weapons and cash.
MR VAN RENSBERG: What kind of weapons and how much cash?
MR SWANEPOEL: I had three long rifles and about R15 000 in cash.
MR VAN RENSBERG: Did you have the impression that the attackers had forced you into the bedroom?
MR SWANEPOEL: Yes, because the person had pushed the pistol into my back and had led me to the room like that.
MR VAN RENSBERG: Please tell the Commission what is your view as to why they did this?
MR SWANEPOEL: I can only imagine that they wanted to commit a robbery because if they wanted to kill me, why didn't they do that earlier?
MR VAN RENSBERG: Were any words uttered by any of the attackers, did they say for instance that they were looking for weapons or cash?
MR SWANEPOEL: No.
MR VAN RENSBERG: Was there anything which had prevented or would have prevented the attackers from killing you if that was their intention?
MR SWANEPOEL: No, nothing. Because as I have already mentioned, if they had wanted to kill me, then they could have done so earlier that morning when they were at the window and for instance when they led me back into the house, they had opportunity to do so.
MR VAN RENSBERG: So, if I make the correct inference from your evidence, you agree with the finding of the Criminal Court that they were also guilty of an attempted robbery?
MR SWANEPOEL: Yes.
MR VAN RENSBERG: And it is largely as a result of your evidence and the surrounding circumstances on the basis of which the Criminal Court came to such a finding?
MR SWANEPOEL: Yes.
MR VAN RENSBERG: You heard and it also appears from the affidavits of specifically the first applicant and also his evidence and also the other statements forming part of the Bundle, that the attackers had certain information that your home was the regular meeting point for right wing people, people who had right wing political convictions in the first place and secondly that you were a member of the Afrikaner Weerstandsbeweging, Afrikaner Resistance Movement and also that you didn't like black people, what do you say about this?
MR SWANEPOEL: This is totally untrue. I have no links with any political bodies and my business is exclusively done with black people and I wouldn't allow my business to suffer by such things.
MR VAN RENSBERG: Let's talk about the effect that this attack had on your business, could you tell us?
MR SWANEPOEL: I had to cancel my order, the next order of chickens immediately because I was alone and I had to make all the arrangements for the funeral and everything and from then onwards, my sales just declined because black people told me that they were now scared, after what had happened and since then, my business actually plummeted by about half.
MR VAN RENSBERG: You actually suffered financial loss as a result of this?
MR SWANEPOEL: Yes.
MR VAN RENSBERG: At the time of the attack, did you still have children at school and in your care?
MR SWANEPOEL: Yes, I had a son who was in standard 9, he was at boarding school in Tzaneen.
MR VAN RENSBERG: Could you perhaps tell us what the effect was of wife's death on this son of yours?
MR SWANEPOEL: He blamed me, he blamed me for not stopping these people, he was very close to his mother, he was the youngest child still at home and that evening, he slit his wrists and two years later, also on the 28th of April, he took his own life.
MR VAN RENSBERG: Would one then be correct in inferring that your son could never actually deal with this attack?
MR SWANEPOEL: No, he never could.
CHAIRPERSON: Mr Swanepoel, would you like to have a short break?
MR SWANEPOEL: It is all right.
MR VAN RENSBERG: Mr Swanepoel, what is your feeling today about the applicants who testified here today? I would like you to tell the Commission specifically whether you have any fear for the future if they succeed in their application for amnesty?
MR SWANEPOEL: I certainly have a fear because firstly I am still continuing with the business and it is possible at any time that they can come back to finish what they had started. Whether I oppose the application for amnesty or not, I think they will definitely come back.
MR VAN RENSBERG: Do I understand you correctly if you say that you don't believe that the only motivation for the attack on yourself as a target was as the applicants had testified, that it was purely for political reasons?
MR SWANEPOEL: No, I believe that.
MR VAN RENSBERG: Is there anything that you would like to add to your evidence?
MR SWANEPOEL: I may just mention that about two weeks after the attack took place, I think it was about two weeks, two or three weeks, I was summoned by the Security Police to Tzaneen, they told me they couldn't speak to me over the phone, I had to come and see them personally and they asked me whether I couldn't perhaps stop my business activities in that area because a certain Mr Baloyi, Jameson Baloyi, had told the Security Police that if I don't cease my business operations in that area, that he would take me out of that area.
MR VAN RENSBERG: Is that information given to you by the Security Police?
MR SWANEPOEL: Yes.
MR VAN RENSBERG: Do you know this Mr Jameson Baloyi?
MR SWANEPOEL: No, not at all.
MR VAN RENSBERG: You heard the evidence before the Commission that Jameson Baloyi was one of the people who gave shelter to some of the attackers?
MR SWANEPOEL: Yes.
MR VAN RENSBERG: What is your reaction to that and what is your attitude towards Mr Baloyi's threat?
MR SWANEPOEL: One thing I can't understand is why has it never been mentioned in any case, if this man can utter such a threat and this is known the Police, I can't understand what would stop him from carrying this threat or his activities.
MR VAN RENSBERG: Just two final aspects. You have heard the evidence of the first applicant, that when you came out of the house on that morning, that you had a firearm in your hand?
MR SWANEPOEL: No, that is totally untrue. It was only my wife who had a pistol and there is no other pistol in our house, or there wasn't. They said that she had the pistol in the house, so there is no way that I could have had the pistol with me as I left the house.
MR VAN RENSBERG: You were present during the criminal trial of the applicants after you had testified, is that correct?
MR SWANEPOEL: Yes.
MR VAN RENSBERG: My question is this, today we heard that the attack was planned and executed against you purely as a result of a political motive. Did this political motivation, was this raised at all during the criminal trial before conviction?
MR SWANEPOEL: No, not once. It was only mentioned after they had been convicted and before sentence, then they said that it was politically inspired.
MR VAN RENSBERG: What is the inference that you draw from that?
MR SWANEPOEL: I say it wasn't politically inspired, it was murder and robbery.
MR VAN RENSBERG: Thank you Chair, no further questions.
NO FURTHER QUESTIONS BY MR VAN RENSBERG
CHAIRPERSON: Do you have any cross-examination Mr Mbandazayo?
CROSS-EXAMINATION BY MR MBANDAZAYO: Chairperson, I don't think I have much except I would like to say to Mr Swanepoel, accept my condolences for the loss of your wife and the pain which you went through during this incident. Mr Chairperson, I would not like to take him through all this, I can see that he is still in grief whenever (indistinct), but I would like to ask one question, it relates to the trial. Do you agree with me that at the trial they denied that they were ever involved in the incident, the applicants, they denied that they were ever involved before conviction? It was their defence that they were never involved in that incident?
ADV BOSMAN: Mr Swanepoel, Mr Mbandazayo is putting it to you that during the defence case they denied that they were ever involved in this case and he asks whether you agree with that?
MR SWANEPOEL: With the attack that was launched?
ADV BOSMAN: Let me explain to you, in a criminal case there are two sections, two parts. Firstly you have the evidence which is led, the State leads evidence and the Defence also leads evidence and after conviction then there is evidence in mitigation of sentence and Mr Mbandazayo is putting it to you that during this first phase, in other words before conviction, the applicants denied any involvement in this incident. Do you agree that this is what happened?
MR SWANEPOEL: In the first part, well that dealt with their detention and how they had been assaulted, that is what the first part dealt with.
ADV BOSMAN: So you agree that it was only during mitigation of sentence that they conceded that they had been involved?
MR SWANEPOEL: Yes.
MR MBANDAZAYO: Thank you. Thank you Adv Bosman. What you gathered is that what they wanted was to escape any conviction for that incident during the trial?
MR SWANEPOEL: Yes, I presume so.
MR MBANDAZAYO: You also mentioned that you fear that they might come back and finish what they started and you also mentioned that Jameson Baloyi made a threat. Am I correct to say that since 1993, it was two weeks after the incident, no attack was ever carried against you again despite Mr Baloyi being out, free?
MR SWANEPOEL: Yes, there was no attempt, but what I was saying once they get amnesty and they are out, won't they carry on with the act that they were busy with?
MR MBANDAZAYO: You have heard what they said before the Committee, that what they did was politically motivated and that now they are part and parcel of the new dispensation and that the organisation to which they belong, which is part of the government and also APLA has integrated, is not that enough to allay your fears?
MR SWANEPOEL: No, not for me.
MR MBANDAZAYO: I have no further questions Chairperson, thank you.
NO FURTHER QUESTIONS BY MR MBANDAZAYO
CHAIRPERSON: Ms Mtanga?
MS MTANGA: No questions Chairperson.
NO CROSS-EXAMINATION BY MS MTANGA
CHAIRPERSON: Any re-examination Mr Van Rensberg?
MR VAN RENSBERG: No questions, thank you Mr Chairman.
NO RE-EXAMINATION BY MR VAN RENSBERG
CHAIRPERSON: No questions from Judge Khampepe? Any questions? Thank you Mr Swanepoel.
WITNESS EXCUSED
MR VAN RENSBERG: No further evidence will be led, thank you Mr Chairperson.
CHAIRPERSON: Can we now take the lunch adjournment and we will have submissions after the lunch adjournment at two o'clock? We will now take the lunch adjournment and recommence at two o'clock or earlier if possible, quarter to two if possible, let's try to aim for quarter to two, thank you.
COMMITTEE ADJOURNS
ON RESUMPTION:
CHAIRPERSON: Mr Mbandazayo, have you got any submissions to make?
MR MBANDAZAYO IN ARGUMENT: Yes Chairperson. Chairperson, I wouldn't like to bore you with the requirements of the Act, going through the requirements of the Act, suffice to say that it is my submission on behalf of the applicants that they have met the requirements of Section 20(1) and (2), that they were quite clearly acting on behalf of APLA, a publicly known political organisation and a liberation movement which was engaged in a political struggle against the State at that time.
I also submit that the applicants did not act for personal gain or out of personal malice, ill-will or spite against the deceased and the victims. It is quite clear that they had no personal knowledge except to know that the farm belonged to him, and that they had merely gone there on behalf of the organisation. Chairperson, I would deal with the evidence briefly of the first applicant. The first applicant put it clearly that the Commander and the second applicant, Donald, made reconnaissance and they came with the information that the place is frequented by right right-wingers because they went there to do reconnaissance for their attack. More above the fact that they were also the farmers in terms of the APLA and PAC policies, they were the targets, but they had this additional information that also it is frequented by right right-wingers. It is clear that, it is not because they went to attack there because it was frequented by right right-wingers, they went to attack because it was within their policy to attack farmers.
CHAIRPERSON: Yes, but I think also from what I gathered although it wasn't specifically said was that that sort of information was obtained from interviewing workers, etc, so that information might merely be the opinion of a worker and as such, it could be quite incorrect. It might have been frequented by people, but whether they were right right-wingers or not, was the opinion of the person supplying the information to the Recce team, but I take your point, you are saying that even if they didn't have that information, they would have attacked.
MR MBANDAZAYO: Yes Chairperson, in any event, that was additional information which they had, which might not be correct Chairperson, but the fact is that they did not go to attack because it was frequented by right right-wingers, but it was information they gathered when they went to do, to make reconnaissance for their attack. Of course definitely they would not just go there and attack, they have to look at everything, whether it is possible for them to be able to come back safe and all those things.
CHAIRPERSON: Yes, because I think on the evidence before us, we are certainly not in a position to find that it was frequented by right right-wingers, particularly in the light of Mr Swanepoel's evidence who says he wasn't politically affiliated.
MR MBANDAZAYO: Yes Chairperson, I agree with you fully that there is no concrete evidence that it was frequented by right right-wingers, but as I put it that it was not the case that the attack was because it was frequented by right right-wingers. Chairperson, coming to the - and also Chairperson, all the people in line of command, Lethlapa Mpahlela who gave authority, I need not go to that, the Committee knows about Lethlapa Mpahlela, his role within APLA and it has been confirmed by Gen Fihla that it came to their knowledge after this incident.
Chairperson, coming to the evidence, Chairperson, I wouldn't like to put my neck on the block on what happened, but I would like the Committee to take into account the events of that day, that this incident happened almost six years ago, if my calculations are correct, 1993, and everything happened very quickly. Chairperson, I need not preach to you, all of you, you are experienced more than myself, all of us we can witness one incident here, but if we are called upon to narrate, you will doubt that other people were present when this happened. Not necessarily because they are lying, but it is always the human factor, I don't know, I wouldn't like to say what is the reason, but that is my experience.
What I am trying to say is that there might be some discrepancies as to what actually happened actually there, but the fact is the applicants, they are saying "yes, we did it, it was us, we went there. We committed this offence."
ADV BOSMAN: Mr Mbandazayo, I think the question is whether all of these discrepancies are of a material nature.
MR MBANDAZAYO: Yes Chairperson, through you Chairperson, I am just going there Chairperson, that definitely it is my submission that the discrepancies which are there, are not of material nature that the Chairperson would see that they are make or break. Those are minor discrepancies with regard for instance if I may take the evidence of Mr Swanepoel, taking into account the situation in which he was, terrified, pointed with a gun, also definitely the Committee have to take into account his observation would be at least, definitely somebody in his position won't be to be able to say that the applicant, especially the first applicant, that he was the person who was pointed, except to say that because the applicant has admitted that he is the person who was carrying an AK47. For instance if I can take to, it was not disputed though he disputed in his evidence that the shooting, the Commander went outside, on the outside window, there was a shooting and then he came back inside the house and also there was a shooting with the wife of the applicant.
If one takes that into account, it may not have been disputed because the victim was going to testify, but if one takes that into account, one would come to what I have already said that it is always the human factor, not necessary even to say, I am not saying Mr Swanepoel is lying, what I am saying it is how he recollects the events of the day and which is the same with the applicants, it is how they recollect the events of the day as to how it happened. It is therefore Chairperson, my submission that the differences in what happened on that day in question exactly in the house, as whether they shot whilst Mr Swanepoel was running inside the house and trying to close the door and whether he was shot before he went inside the house. What I am trying to say is that the fact of the matter is and it is not disputed that the deceased was shot with a pistol, she was not shot with an AK47 and the person who was carrying a pistol, was the Commander, Prince and that the first applicant was carrying an AK47. That Chairperson, I think is very important. I would understand it if the victim, it would say it was material if the applicant was saying that he was shot with a pistol, whilst he was shot with an AK47.
CHAIRPERSON: What you are saying is these discrepancies, none of them can lead one to deduce that the applicants were playing down any role that they might have played?
MR MBANDAZAYO: Exactly Chairperson, because it remains ...(intervention)
CHAIRPERSON: And you are saying if he was armed with the pistol and then said he was shot with an AK47, which was found to be incorrect, then one could arrive at the conclusion that he intentionally made that statement to protect or lessen his liability, but that is not the case with these discrepancies?
MR MBANDAZAYO: Yes.
CHAIRPERSON: On both versions it seems clear that the bullet was fired from a pistol and that Modau had the pistol?
MR MBANDAZAYO: Yes Chairperson, and also Chairperson, it would have been easy for the applicant to say look, "I did not even attempt to kill Mr Swanepoel". On his own he said "my firearm jammed, I wanted to kill him when he was running." It was easy for him because nobody knows, to say, "look, I did not even attempt to do anything" and it is my submission Chairperson, that taking into account the events and what has been said to this Committee even by Gen Fihla, it is clear that their motive was to attack Chairperson. If they went there for robbery, it is my submission that I don't see any reason for them not to shoot their way through that door, and go and take whatever they wanted to take, if that was the case.
And also Chairperson, the fact that the deceased had a firearm, it is clear though Mr Swanepoel said the safe was locked, one - unfortunately, I didn't want to take him through the events of the day because I could see that it is taking him back, but it is clear that definitely I suppose that also the firearm of the wife was kept in a safe, and it will be my submission that definitely, I don't think at that time, it was locked, the safe, as it was put here that he was trying to open the safe at that time. I am not trying to say that he is lying, but I what I am trying to say is that this all revolves around the fact that it is a human factor, because things happened a long time ago and all this happened fast. Therefore Chairperson, it is my humble submission taking into account the previous decisions of the Committee, not necessarily this Committee on some of the issues involving farm attacks, which one I would quote, the Dannyside Farm which happened on 19 November 1992, it happened when Adv Bosman was involved in East London, which somebody, Mrs - Leon Pretorius died as a result of APLA attacks on the farm which of course was spelt out it was the policy.
Chairperson without boring you, it is my submission that the applicants have made their case in respect of the requirements of the Act and that on that basis, it is therefore my humble submission that they should be granted amnesty as applied by them. Chairperson, unless the Committee wants me to address it on any specific issue?
CHAIRPERSON: Thank you Mr Mbandazayo. Mr Van Rensberg?
MR VAN RENSBERG IN ARGUMENT: Thank you Mr Chairman. Mr Chairman, from the time that the applicants completed their applications for amnesty, they have consistently stuck to the story that the attack on the farm was politically motivated. That version was repeated here today and I have to admit, in spite of cross-examination, they have stuck to their story. That however, is not the end of the story. There are a number of factors which actually point to this attack being or the motivation for the attack, being personal gain in the form of robbery. To mention a few, these persons all the applicants, were convicted of attempted robbery and they were convicted on the evidence of the victim, Mr Swanepoel who related obviously to the Court the circumstances surrounding the assault on the farm. The only one which was there, except for the applicants, was Mr Swanepoel. He himself today, has again reiterated the fact that in his personal opinion, he is of the opinion that the motivation for the attack was in fact robbery. It is strange that this political motivation was not raised during the defence of the applicants, the defence of the applicants during the criminal trial.
At this stage further, we've got to accept that ...
CHAIRPERSON: It wouldn't have been a defence, would it?
MR VAN RENSBERG: Yes, it wouldn't have been a defence, I have to concede that Mr Chairman, but we have seen the attitude of the applicants. I got the impression that they were quite, let's put it this way, that they are not ashamed of what they had done, that they did it not for themselves, but in spite of that fact, they elected not to use that beliefs or the strength of the belief ...
CHAIRPERSON: I think what is quite clear, what must have happened at the trial was they first stated, from the answer given by Mr Swanepoel, that they weren't there, they denied that they took part in the robbery?
MR VAN RENSBERG: Yes.
CHAIRPERSON: The whole first portion of the trial up to conviction was relating to what seemed probably voluntary assaults relating to confessions and so they were then endeavouring not to get convicted, it is very common in very many criminal cases, I am sure you are aware of it, then as soon as they are convicted, they raise the political motivation?
MR VAN RENSBERG: Yes, that I have to concede.
CHAIRPERSON: In mitigation of sentence.
MR VAN RENSBERG: I have to concede, except to say that it, if they did raise the defence of political motivation, that would have perhaps cleared them on the charge of attempted robbery.
JUDGE KHAMPEPE: No, but if they had admitted to having committed any of the offences at all, because once you admit on the attempted robbery, then you've got to admit on the other offences as well, so if they had made any admission, they wouldn't have been able to escape criminal liability, don't you agree?
MR VAN RENSBERG: Yes, I agree with that, yes.
JUDGE KHAMPEPE: So once they were convicted, they were left with no option but then to try in mitigation of sentence and come out with the political nature of what they had now been convicted of.
MR VAN RENSBERG: Yes, I have to concede that that is a possibility, but the other possibility is of course that that fact was only dreamt up afterwards and it was put in their heads afterwards, after they had been convicted?
JUDGE KHAMPEPE: That was generally the case Mr Van Rensberg, people will try and escape liability. I am not saying this was politically motivated, but in instances where people had been acting on behalf of these liberation movements, they wouldn't admit the fact that they had been acting on behalf of their various armed formations, on behalf of the various liberation movements, because that would have entailed having to admit to the commission of a particular offence. They always wanted to escape criminal liability.
MR VAN RENSBERG: Yes.
CHAIRPERSON: Also it gets, I suppose one could write an article on it, but not knowing what the evidence was at that trial, a group of people go into a house armed with guns, shoot people, a person gets killed, they get arrested, they get charged with murder, attempted murder, attempted robbery, they get convicted of murder and attempted murder and attempted robbery, now what - if I am robbing you and I hit you over the head and take your wallet, I don't get convicted of assaulting you and of robbery, because the hitting over the head is part of the robbery.
MR VAN RENSBERG: Yes.
CHAIRPERSON: Now wasn't the whole attack on the farmhouse, part of the robbery, in other words was that attempted robbery, is it not a type of duplication of charges?
MR VAN RENSBERG: Of conviction?
ADV BOSMAN: Mr Van Rensberg, I just want to add this to what my two colleagues have said, if you look at the totality of the evidence, surely the fact that they had Chinese stick grenades, the nature of the weapons that they had with them and the evidence of Gen Fihla, if you look at all that, surely that is certainly not inconsistent with the fact that they were political activists and if you accept that they were political activists, would you then still argue strongly that this defence or rather the facts raised in mitigation, are not consistent ...
MR VAN RENSBERG: Yes, Mr Chairperson, I am afraid I still have to argue that point on the basis that if we are to believe the applicants, then the reason why they went to the farm was to kill the occupants of the farm and as Mr Swanepoel testified, there was actually nothing that stopped them from actually killing him. From that I deduct that it was possibly not the motivation of these assailants to actually kill these people and that is why I deduct that there must have been another purpose to the attack. I am not prepared to argue this point much further and I leave it to the discretion of the Committee.
May I just add another few factors which I consider to be pointers in the support of my theory that they in fact went there to rob the place namely the fact that at this stage the Committee have to accept that there is absolutely no basis on which they identified the target being a political target. Mr Swanepoel testified that he had actually no political affiliations, that he was definitely not a member of the AWB and that it was actually his livelihood to trade with black persons. He definitely did not hate them. If that motivation is then negated, it only leaves one other possibility and that is the fact that he was a farmer, a chicken farmer and I would suggest that it was then common knowledge that he would have guns and a large amount of cash on the farm.
Secondly, Mr Swanepoel's evidence was quite direct on the point that they directed him to the bedroom where the safe was located. He did not walk in that direction voluntarily. This points to the indication that the assailants, the applicants, had prior knowledge of where the guns and the cash would be kept in that house. I want to step off from that specific point and come to my learned friend's argument that there was no material discrepancies between the versions of the applicants. Unfortunately Mr Chairman, I cannot accept that suggestion. I am of the opinion that at least for Mr Thobejane's part, I got the impression that he tried to make the case against him, or his involvement in that, in fact as little as possible. He fabricated a gun to be in the possession of the farmer when he walked out of the house. I think there can be little doubt that there was no gun at that stage. He tried to put as much distance between himself and the person who actually killed Mrs Swanepoel, he said he was preoccupied by trying to shoot Mr Swanepoel in the circumstances, but had to concede that it actually took place in the very same room, there was no different running away and shooting. The two assailants were next to each other at the entrance of that specific main bedroom, that is the evidence of Mr Swanepoel and again, Mr Swanepoel testified, there was absolutely no reason why they did not actually carry out their, or why they couldn't carry out their mission, namely to shoot the both of them.
To sum up therefore, I would suggest that there was in fact attempts from the witness, specifically Mr Thobejane, not to put the real evidence before this forum, that he in fact in that sense, failed to make a full disclosure. Also referring to the involvement of a certain Jameson Baloyi which he admitted at a very late stage, and under cross-examination to be one of the persons harbouring these assailants.
JUDGE KHAMPEPE: What has that to do with regard to the offences for which they are seeking amnesty, the harbouring by Mr Jameson Baloyi? He did not participate in the murder of Mrs Swanepoel, nor the attempted murder of Mr Swanepoel?
MR VAN RENSBERG: Well, at the time he was at least harbouring and hiding these assailants which was an offence at the time.
JUDGE KHAMPEPE: Yes, he merely gave them accommodation. To them, that was not an offence?
MR VAN RENSBERG: Yes, thank you Mr Chairperson. The last aspect I want to address you on is the point that was raised earlier during my cross-examination with Mr Thobejane and that is the fact that he consequently omitted to bring the fact that he was in fact convicted for attempted robbery, under the attention, or to the attention of this Committee. If we look at his application, and specifically paragraph 9(a) thereof, it was required of the applicant to furnish sufficient particulars of the acts, omissions or offences associated with a political objective in respect of which amnesty is sought and at (i) he then stipulated murder, attempted murder, possession of explosives, possession of arms, possession of ammunition, the attempted robbery is specifically excluded there from.
JUDGE KHAMPEPE: Isn't it included under "etc"?
CHAIRPERSON: No, it is not in 9.
JUDGE KHAMPEPE: Are you dealing with 9(a)? Yes?
MR VAN RENSBERG: Yes, from 9(a), obviously there is no mention of "etc". If we can turn to the specific paragraph that you are referring to, it is paragraph 12(e), the question is "if prosecution followed, state (e) the offence in respect of which found guilty and sentenced, if applicable". There he listed murder, attempted murder, possession of ammunition, possession of machine guns, possession of explosives, possession of pistol, etc. I am firmly of the belief Mr Chairperson, that that etc, can in no way cover him for his, or can be interpreted to include his application for amnesty for attempted robbery as well.
CHAIRPERSON: But he doesn't apply for attempted robbery?
JUDGE KHAMPEPE: He is not applying.
MR VAN RENSBERG: Yes, that is so.
CHAIRPERSON: I mean and when you questioned him on it, he said that well, there wasn't any robbery, they never had any intention etc, but my impression is well, he hasn't applied for it.
MR VAN RENSBERG: Yes, that is exactly the point I am trying to make. If I understand the member of the Committee's question correctly, it can perhaps be read, the "etc" can be interpreted to include armed robbery and it is that question that I am addressing now.
JUDGE KHAMPEPE: That has nothing to do with the acts for which amnesty is being sought for by the applicant, Mr Thobejane.
MR VAN RENSBERG: Yes. To close off then the point that I am trying to make is that at least for the count of attempted robbery, Mr Thobejane has not made application for amnesty and it is therefore not within the powers of this Committee to grant him amnesty for that specific offence. Thank you very much.
CHAIRPERSON: Thank you Mr Van Rensberg. Ms Mtanga?
MS MTANGA: Chairperson, I will leave this matter in your hands.
CHAIRPERSON: Any reply Mr Mbandazayo?
MR MBANDAZAYO IN REPLY: Yes Chairperson, just briefly. Chairperson, I think I will start with the question of the gun. I think Mr Thobejane made it clear that for instance he was not sure about what it was, because he thought, the other, that it was a camera and it is clear from what he told the Committee that the dogs were barking, so definitely though he did not put it in so many words, he expected Mr Swanepoel to come up with a gun and in fact he saw a gun. Under cross-examination he admitted that he won't dispute that it was not a gun. So definitely if he was fabricating that, he would have stuck it out and said "look, I don't care who says what, he was carrying a gun."
Coming to the question of that, Chairperson, I would not go to the question that they did not make out the question of political motivation because Mr Swanepoel was not a right-winger, he was not belonging to any political organisation, it has been stressed that irrespective of what, the farmers were the targets. Chairperson, I would like to come to this question of armed robbery. I am sure I would be seen to be monotonous to the Committee, I have been arguing this question, the application in respect of the applicants. It is always you find that most of the time these people make them in jail and they don't understand the whole procedure of the court, when they are being convicted and all that, they don't understand the whole of this thing. Most of the time you find that they always leave out what they are supposed, in fact if you can go to all of them, one has left something like explosives, the other has not applied for another thing, because the problem is that it is read to them, it is Greek to them what is being talked about in court, all this being separated, all these crimes, and now it creates problems when he is not assisted.
CHAIRPERSON: It would seem on their own version, that they wouldn't have applied for amnesty for attempted robbery because they say they never had any intention. It is not for us to - is it - let me ask, put it this way, is it for us to now rectify a conviction that shouldn't have been made on their version?
MR MBANDAZAYO: I am coming up to that point, others have put armed robbery.
CHAIRPERSON: Yes.
MR MBANDAZAYO: If I remember very well, my first amnesty application Judge Khampepe maybe will remember in East London, we had a similar case of Madenazapo, a guy who was convicted of kidnapping. It so happened that he did not know that he was convicted of kidnapping and I still remember Judge Wilson said so, it was far fetched because it was all in the process of committing the same crime, because they took away the people who were there and at the end of the day, they were blowing, if I still remember, they were blowing a petrol station in Uitenhage and they took away people at gunpoint and they were saving them from being blown up. At the end of the day they were convicted, and they did not apply and the Committee found that it was part and parcel of the whole process, that was a whole incident. It is therefore still my argument, and he was granted amnesty, despite not having applied for that, because it felt that it was part and parcel and it is still my contention even today, that in as much as they don't believe that they were, but still it was part and parcel of the whole incident. That is what I wanted to touch on Chairperson and Honourable members of the Committee, thank you.
JUDGE KHAMPEPE: Did you not in this case fail, therefore, Mr Mbandazayo to bring this particular aspect to the attention of the Committee before you commenced leading evidence in respect of in particular Mr Thobejane, because what is confusing is that in as much as Mr Thobejane has not specifically mentioned this offence even though they all did not believe that they should have been convicted in respect of this offence, because it was not their stated objective as they believed at the time, the other applicants have indicated that they wanted amnesty in respect of the offence of attempted robbery. I think Mr Mukhawana and the other applicant have done so, knowing that this is something that as a result of the incident, that in any event has been dealt with in their amnesty application, and it would not be like allowing you to apply for an act that you had not originally applied for, within the period that you are allowed to, why was it not brought to our attention? Shouldn't we blame you more than blaming the applicant?
MR MBANDAZAYO: Chairperson, I want to concede on that Chairperson, I want to concede definitely Chairperson, I did not pick it up in fact Chairperson, I did not realise that it was not amongst the - when I looked at the application, I looked, I think I looked at the others, so I thought that also it is covered on that, that one I concede Chairperson, that I also failed to pick it up Chairperson. I only picked it up, in fact I wanted to object to my learned friend when I realised that, I thought that he studied the application, now I realise that he is the only one who does not have it in the application Chairperson. That I concede Chairperson, I thought that because I saw it in the others, then it was automatically also present in his application, I concede that Chairperson, yes.
CHAIRPERSON: Thank you. We will reserve our decision in this matter and hope that it would be handed down in the very near future. That brings our role to an end, we will now be adjourning. I would just like to thank everybody who made it possible for this hearing to take place here today. We have been here before and enjoyed our stay. I would like to thank Mr Van Rensberg and Mr Mbandazayo and Ms Mtanga for their assistance in the matter and the Interpreters for the work that they have done, the Sound Technicians, the security provided for us, very efficient and the catering, the Logistics Officer, I would also like to thank very much as well, and the television crew. Thank you very much indeed and we will now adjourn and that decision will be handed down within the very near future.
HEARING ADJOURNS