Amnesty Hearings

HUMPHREY LUYANDA GQOMFA: (s.u.o.)

JUDGE WILSON: Mr Arendse, I had an opportunity after we adjourned yesterday to read your client’s statement which was handed in and with regard to various points which I want to ask him about but in particular he refers in paragraph 9, to four operations he was involved in and which he has applied for amnesty for.

ADV ARENDSE: Yes, Mr Chairperson.

JUDGE WILSON: I asked the office here to obtain these applications for me - I did so only this morning and I have been given a file which contains as far as I can see, only one application that is in respect of an incident at the Zastron Road near the Sterkspruit bridge, I don’t know if you are aware of that application. And there’s also a letter written by the Executive Secretary of the Amnesty Committee, saying that he has made application for an incident in Lady Grey, an incident in Zastron and an incident in Umtata and various incidents in and around Cape Town.

The first three that I referred to were all in 1992 and must be three of the four that he refers to in his statement which he confirmed. He said he was involved in four incidents in 1992 as I understand the statement. Can you tell me what those incidents were and whether there have been in fact amnesty applications made in respect of all of them.

ADV ARENDSE: Thank you Mr Chairman. I think the best person to ask is perhaps Mr Gqomfa - to explain to us Mr Chairman, if he be recalled.

CHAIRPERSON: Are you not aware of them?

ADV ARENDSE: I am aware of them and I took instructions in that regard but I think it would be best if he explains that. At the time that we consulted he wasn’t comfortable with us disclosing that in his statement because as far as he was concerned this was about the Heidelberg Tavern matter, so perhaps it’s best that he be asked directly Mr Chairman.

JUDGE WILSON: Did you hear what I said to your counsel?

MR GQOMFA: Yes, I heard it.

JUDGE WILSON: Right, what were the four incidents that you were involved in 1992?

MR GQOMFA: It is the incidents that you referred to, the first one ...[intervention]

INTERPRETER: The interpreter could not hear the speaker.

CHAIRPERSON: Just talk a little loudly because the interpreter can’t hear you.

MR GQOMFA: Okay. It is the incidents that the Chair referred to, the first one was on the 18th of March 1992, it was in connection with

the Zastron bridge. The second one happened in Lady Grey, I think it occurred on the 22nd of March 1992. The third one on the 10th or the 11th of October 1992 as well.

JUDGE WILSON: What was that one?

MR GQOMFA: It was at Xhalanga in Xhlala, is that the one you’re talking about - the 11th of March 1992? The fourth one happened in Umtata at the police station, it was in 1992 but I cannot remember the date right now - that was before the October one.

JUDGE WILSON: Sorry, let me clear - the first was at Zastron on the 18th of March, the Zastron bridge one, the second one was at Lady Grey on the 22nd of March, is that correct?

MR GQOMFA: Yes, that is correct.

JUDGE WILSON: And the third one was where?

CHAIRPERSON: Umtata.

MR GQOMFA: The third one happened in Xhlala in Transkei - Xhalanga bottle store - I think that’s what it was called, on the 10th or 11th of October ...[intervention]

JUDGE WILSON: ‘92?

MR GQOMFA: 1992, yes.

JUDGE WILSON: And the fourth is the Umtata police station and is that - the date given in this letter is July 1992?

MR GQOMFA: This is the one I’m not sure about the date, however it was before the Xhlala incident.

JUDGE WILSON: And have you applied for amnesty in respect of all four of these incidents?

MR GQOMFA: Yes, I made applications for amnesty for all the incidents. There are other incidents that I gave to Mr Mbandazayo, I think three others.

JUDGE WILSON: You gave to who?

MR GQOMFA: Mr Mbandazayo.

JUDGE WILSON: Now is there one - are you also still facing trial in respect of the Zastron incident?

MR GQOMFA: Yes, I am going to court on the 3rd of March next year but those are not the cases I had referred to Mr Mbandazayo.

JUDGE WILSON: No, he said there were three other incidents he referred to him.

MR GQOMFA: Yes, there were three others that I referred to Mr Mbandazayo.

ADV SANDI: Which court is that that you must go to for the Zastron incident?

JUDGE WILSON: The Free State High Court.

MR GQOMFA: This was going to take place in Smithfield but it was postponed in Bloemfontein until next year.

JUDGE WILSON: I would ask those responsible to see whether they can find the applications in respect of these matters and I hand over the file now and refer to the ...[intervention]

CHAIRPERSON: What has happened in respect of the Lady Grey matter, was there a trial?

MR GQOMFA: I burnt a farm house.

JUDGE WILSON: Was anyone in it?

MR GQOMFA: No, according to my knowledge there was no-one inside.

CHAIRPERSON: Did that result in a prosecution?

MR GQOMFA: No, there is one person who was charged for this, I was not in jail yet at the time.

CHAIRPERSON: And what can you tell us about the Xhlala bottle store case?

MR GQOMFA: What do you mean Sir, would you like the details of the incident?

CHAIRPERSON: No, has there been a prosecution in that matter?

MR GQOMFA: No, nobody was sentenced, I was arrested - I could not hear the last words of the speaker, the previous sentence.

CHAIRPERSON: My question was, was there a prosecution, was there a file?

MR GQOMFA: Yes, I was out on bail for R500,00. I did not go back because of other commitments and this case is still in the hands of the law.

JUDGE WILSON: What were you charged with?

MR GQOMFA: Armed robbery.

JUDGE WILSON: And the Umtata police station?

MR GQOMFA: Nobody was arrested because they don’t know who committed the crime.

JUDGE WILSON: What crime?

MR GQOMFA: We raided the police station, we took the policemen’s weapons.

CHAIRPERSON: That armed robbery case, in which court was that supposed to take place - the trial?

MR GQOMFA: At a low Court in Xhlala. As I said before there are three others - other matters, the ones I discussed with Mr Mbandazayo. I don’t know why you’re not mentioning them, perhaps they did not get here.

JUDGE WILSON: Well, could you tell us what these three others are - if you want to.

MR GQOMFA: It was the killing of people, three different people. I cannot remember clearly the dates now.

CHAIRPERSON: Well, tell us who you killed and when and where.

MR GQOMFA: I cannot remember the dates, the one happened in Xhumbu between 1991 and 1992 - late ‘91, early ‘92.

CHAIRPERSON: Who did you kill?

MR GQOMFA: Mr Siqholo, I don’t know his first name.

JUDGE WILSON: How do you spell - do you know how you spell his name?

MR GQOMFA: S-i-q-h-o-l-o.

JUDGE WILSON: Where did you kill him?

MR GQOMFA: At Xhumbu in the Transkei.

JUDGE WILSON: Why did you kill him?

MR GQOMFA: There was a political conflict between the ANC and the PAC, we had to defend ourselves because they were attacking - I’ve written down all the details in my form.

JUDGE WILSON: What form?

MR GQOMFA: The application I handed over to Mr Mbandazayo.

JUDGE WILSON: An application for amnesty or what sort of application?

MR MBANDAZAYO: Mr Chairman ...[intervention]

JUDGE WILSON: I’m a little lost, are you appearing for him?

MR MBANDAZAYO: May I clarify Mr Chairman. Mr Chairman, I visited him in prison in Bloemfontein. I was visiting some of the prisoners in Bloemfontein also included. There were applications which he gave to me which I think are those that I must send them to Cape Town, which I did Mr Chairman but unfortunately now I don’t have the details because I didn’t know that they will be required here because it was - we talked about Heidelberg incident.

But I did forward them and I also wrote to the TRC and asked about these incidents, they confirmed that they have applications from him but I don’t have the details now because I was coming for the Heidelberg incident - they are all in East London where I come from.

JUDGE WILSON: Who did you write to here?

MR MBANDAZAYO: Mr Chairman, of late now I’ve communicating with Martin Coetzer - of late but before that it was difficult Mr Chairman, I must indicate that we were not having any response this incident. In fact I have to make new applications for some who have lodged applications before because they couldn’t get them so it was difficult until Martin Coetzer came into the picture and after that we were communicating and he told me some these applications were not there, so I have to - some of the applicants have to fill new application forms.

JUDGE WILSON: But in respect of this applicant you say that these three forms have been sent and are here at this office?

MR MBANDAZAYO: Mr Chairman, I can confirm that because I did send them to this office.

CHAIRPERSON: All right, let’s hear about the other two matters, you’ve mentioned the one at Xhumbu, what was the next one?

MR GQOMFA: The other one was at Inxhobo.

CHAIRPERSON: Tell us about it, what did you do?

MR GQOMFA: We killed a man for reasons that I’ve detailed in the form.

CHAIRPERSON: Yes, I want you to now tell me who you killed?

MR GQOMFA: Mr Stembele Mgcebeshe.

CHAIRPERSON: Can you spell that surname please.

MR GQOMFA: N-g-c-e-b-e-s-h-e.

CHAIRPERSON: When was that?

MR GQOMFA: I think it was 1992 but I’m not certain of the precise date.

CHAIRPERSON: And the third one?

MR GQOMFA: The third one happened along the Mount Frere main road, I cannot remember this man’s name at the moment.

CHAIRPERSON: What did he say, the interpreter hasn’t said?

MR GQOMFA: I cannot remember the man’s name at the moment, the third incident was at the main road in Mount Frere.

CHAIRPERSON: When was that?

MR GQOMFA: I think it was in 1993, I cannot remember the exact date.

JUDGE WILSON: And did you kill that man?

MR GQOMFA: Yes, we killed him.

CHAIRPERSON: When you say: "We killed him", you and somebody else or just you?

MR GQOMFA: There were other people too.

CHAIRPERSON: Now in respect of these three matters - these three people, have there been any cases that have started against you?

MR GQOMFA: No.

CHAIRPERSON: Mr Arendse, it seems that once we’ve examined his application forms and after the matter has been fully investigated by the investigative unit, it may be necessary to have a special hearing in respect of these other matters. For the time being we will proceed with the Heidelberg Tavern matter and you may now call the next applicant.

JUDGE WILSON: Sorry before that, there are one or two points I would like to clear up with this applicant, again arising from his statement.

You talk in your statement of going to the Heidelberg Tavern about three days before the incident with Maxeba, the driver of the car and Makweso.

MR GQOMFA: That is correct.

JUDGE WILSON: Did you drive to the Heidelberg Tavern on that occasion when you went to inspect it?

MR GQOMFA: Yes, we drove.

JUDGE WILSON: What car?

INTERPRETER: The interpreter could not hear properly.

JUDGE WILSON: Can you repeat the name of the type of car please?

MR GQOMFA: It was a Ford Courier bakkie.

JUDGE WILSON: Who provided it?

MR GQOMFA: It is a car that Speech used all the time.

JUDGE WILSON: Who?

MR GQOMFA: Sepiwe Makweso.

JUDGE WILSON: You’ve talked about R4 rifles and AK47 rifles, do you know what calibre they are?

MR GQOMFA: What do you mean by calibre?

JUDGE WILSON: The size of the cartridge - 9mm, 7.65?

MR GQOMFA: I will answer you as follows: I’m not well trained on the South African weapons, it is from the Eastern Block that I was well trained.

JUDGE WILSON: So you don’t know? Is that the position?

MR GQOMFA: What do you mean?

JUDGE WILSON: You don’t know what the calibre of the cartridges are - if you do, tell me, don’t tell me about training in the Eastern Block.

MR GQOMFA: As I said I cannot give you the answers because I don’t know the calibre of the R4 rifles.

JUDGE WILSON: Do you know the calibre of an AK47?

MR GQOMFA: If I remember correctly, it’s 7.62 by 59 - if I’m not mistaken.

JUDGE WILSON: I take it we can evidence about that.

ADV ARENDSE: Yes, Mr Chairman.

CHAIRPERSON: ...[inaudible]

INTERPRETER: The speaker’s mike is not on.

JUDGE WILSON: You told us that you were aware that the PAC had resolved at it’s December 1993 Congress to intensive the armed struggle, did you attend that congress?

MR GQOMFA: No, I did not go to the Congress.

JUDGE WILSON: Well who told you about the Congress?

MR GQOMFA: The other Africans who were in the same region as myself that came back from the Congress.

JUDGE WILSON: Who?

CHAIRPERSON: Other people.

MR GQOMFA: The regional executive, Mabusela and Dala.

JUDGE WILSON: So they will be able to talk of this?

MR GQOMFA: What?

JUDGE WILSON: That the PAC had resolved to intensify the armed struggle.

MR GQOMFA: Yes.

JUDGE WILSON: Prior to that the PAC had wanted to negotiate, hadn’t it?

MR GQOMFA: They were in the negotiations.

JUDGE WILSON: And you wrote about this when you applied for amnesty in respect of the Zastron application, didn’t you?

MR GQOMFA: I cannot hear the question clearly or understand the question clearly.

JUDGE WILSON: You gave a lengthy explanation in your application for amnesty in respect of the Zastron application, didn’t you?

MR GQOMFA: Which application, the one that I’m about here today?

JUDGE WILSON: The Zastron, the Zastron bridge application that we have spoken about already - that you have confirmed happened on the 18th of March 1992, you remembered the date, why are you know having difficulty remembering the application?

MR GQOMFA: The thing is, I do not understand the question clearly because of the following reasons, I don’t know whether you are still talking about the 1992 Congress or the 1993 Congress and I don’t know what the Zastron incident has to do with that so please be clear.

JUDGE WILSON: I asked you if you made a lengthy explanation when you lodged that application.

MR GQOMFA: Specifically the Zastron application?

JUDGE WILSON: Yes.

MR GQOMFA: Yes.

JUDGE WILSON: There you said

"This was also to pressurise the Government through it’s electorate, that they must take the negotiation process seriously and in good faith"

Do you remember writing that as a reason for what you did?

MR GQOMFA: Now I understand clearly. I think you will also remember that this prevailing situation at the time, the political situation - just to refresh your memory, there was Codessa 1 and Codessa 2. The PAC realised that this was not a genuine platform where we could negotiate about the country matters. First of all there were too many shortcomings in that Codessa, as a result you will remember the stand the PAC took - you could not be a player and a referee at the same time. The PAC then demanded a neutral venue under a neutral Chairman. The approach to Codessa 1 and Codessa 2 proved the stand and the reservation of the PAC ...[intervention]

INTERPRETER: Could the speaker repeat the last three sentences please.

MR GQOMFA: What I was saying is, firstly you will remember well the political situation at the time. The PAC took a stand that they needed a neutral Chairman under a neutral value where these negotiations would take place. Our position was, they could not be players and referees at the same time - this was done by the racist regime. They were negotiating and supporting third force elements at the same time and innocent African people were being killed.

There was no sincerity from the South African Government, that is why the PAC took the stand that it did. The White people - we wanted the White people to understand that we are not blood-thirsty. We realised that our liberation would end up being the liberation of the White man. We needed to remove that stigma that Azanian people had, we take them as our fellow countrymen.

The reservations and the fears of PAC were such that Codessa was not a genuine platform to negotiate about the South African situation that ended up a failure - I think history proved us right. I hope that everything is clear.

JUDGE WILSON: Thank you for the moment.

MR PRIOR: Mr Chairman, there are three matters that - with permission of the Committee I simply want to put to the applicant, that arise out of Judgement which forms part of the bundle. It relates specifically to matters raised by Judge Wilson regarding the ammunition found at the scene - with permission of the Chair.

CHAIRPERSON: Yes.

CROSS-EXAMINATION BY MR PRIOR: Mr Gqomfa, I want to refer you to the Judgement.

Unfortunately when I cross-examining, the witness had for a substantial time my copy of the bundle. I don’t know if there’s an additional bundle been prepared Mr Chairman - well, he may be shown that.

At page 51 of the bundle - that is the Court Judgement, the following appears from lines 22 to 30 and I’ll read it out for you - it is in Afrikaans:

MR GQOMFA: I do not have this document in front of me.

MR PRIOR: Do you not have the bundle?

CHAIRPERSON: Just let him have this.

MR PRIOR: Well it’s in Afrikaans. May I proceed Mr Chairman?

CHAIRPERSON: Yes.

MR PRIOR

"After the shooting incident at the Heidelberg Tavern, the official police photographer Paul van Zyl collected 92 x 5.56mm spent cartridges which was handed to Warrant Officer Compion. He is an expert with regard to the microscopic investigation of amongst others, marks which firearms leave on cartridges. He came to the conclusion that the spent cartridges were fired in three different firearms, these were R type rifles which would be R4, R5 or R6"

I want to refer you to another portion of the record, page 60 of the paginated bundle, at the bottom of the page lines 28 onwards - I quote:

"The Heidelberg Tavern cartridges all 5.56mm ...[intervention]

MR GQOMFA: Which page are you on Sir?

MR PRIOR: Page 60.

MR GQOMFA: Thank you.

CHAIRPERSON: Where on page 60?

MR PRIOR: From line 28 onwards Mr Chairman. I’ll repeat the quotation

"The Heidelberg Tavern cartridges, all 5.56mm were fired in three different firearms. One of these firearms is the same as that which was also used in a unrelated crime".

Just for you comment, according to the Judgement there were no 7,62mm or AK47 cartridges found at the scene.

MR GQOMFA: In connection with the cartridges that were found there?

MR PRIOR: According to the Judgement - you were at the trial, the evidence was unchallenged, there were only 5,6 sorry, 5,56mm - that is R type weapons, no AK47 cartridges were found on the scene. Is that correct?

MR GQOMFA: As it was written here but as I did it - I’m going to have a problem because I do not remember carrying an R6, I don’t know what an R6 looks like.

MR PRIOR: My final reference to the record - page 43 of the bundle ...[intervention]

JUDGE WILSON: One reference ...[inaudible]

INTERPRETER: The speaker’s mike is not on.

JUDGE WILSON: On further reference before you go on, at page 61, line 18

"This is with regard to the 13 x 7.62 cartridges, with regard to which Sergeant Kruger says in his - say nothing in his report, however in a later report dated 31st of October ‘94 he states that he investigated a 7.62mm cartridge under Woodstock certain number and that this was fired by the same firearm as that which was used during the attack on the Lingelethu police station attack".

JUDGE WILSON: ...[inaudible]

INTERPRETER: The speaker’s mike is not on.

JUDGE WILSON: There was an AK47 used in the attack on the police station, did you remember that evidence?

MR GQOMFA: Yes, that is correct.

JUDGE WILSON: But not at the tavern.

MR GQOMFA: AK47? There was an AK47 used at the Heidelberg Tavern.

MR PRIOR: Thank you Mr Chairman. I just want to make one final reference to the record. Page 43 of the Judgement at the last paragraph, the Judge was summarising the evidence and he says, I quote

"Ciska du Plessis, a Captain in the South African police’s section of community relations was at the Heidelberg Tavern with two doctor friends. While standing and speaking with Doctor Johan Stoffberg at one end of the bar, she saw two Black men enter at the front door. All that she can recall with regard to them is that one was shorter than the other. She could not see whether they were carrying anything in their hands. Immediately afterwards she heard sound similar to firecrackers and then there was chaos in the tavern".

Insofar as that refers to the attack, what is your comment - that two persons, Black persons entered the tavern, one shorter than the other immediately before the shooting?

MR GQOMFA: I think as my attorney read the statement, I’d already mentioned that - I saw no people entering that tavern from the position that I was standing. I dispute the fact that he said he saw two people, I saw no two people entering the tavern.

MR PRIOR: Thank you Mr Chairman.

NO FURTHER QUESTIONS BY MR PRIOR

CHAIRPERSON: Mr Arendse, are there matters which you would like to cover under re-examination at this stage?

ADV ARENDSE: None Mr Chairman, safe to say that I would prefer as far as the other applicants are concerned, that Mr Prior shouldn’t use the opportunity to get another opportunity at cross-examining the applicants when he’s already had that opportunity. Some of the questions don’t ...[intervention]

CHAIRPERSON: Mr Arendse, I don’t think you should tell me what my job is.

ADV ARENDSE: As you please Mr Chairman.