Amnesty Hearings

CHAIRPERSON: Are we now proceeding with the Mthembu matter?

ADV PRIOR: Yes, Mr Chairman.

CHAIRPERSON: There have been no changes have there, since the first hearing?

ADV PRIOR: There's no changes in representation. I don't know if Mr Nel is on record for Mr van Schalkwyk, the victim.

CHAIRPERSON: No, I think we adjourned to enable Mr van Schalkwyk to consul the Deputy State Attorney so I'm quite sure that Mr Nel hasn't placed himself on record yet.

MR NEL: Thank you, Mr Chairperson. On the last occasion we were in Pietermaritzburg when the matter was adjourned, I think due to your ill health, Sir, if I recall correctly, so I did not go on record. I am acting for Sergeant W van Schalkwyk who was injured in the incident that Mr Mthembu is asking amnesty for and my name is Christo Nel from my own practice here in Durban.

CHAIRPERSON: Right, we can proceed. I take it a transcript of the evidence has been made available to you?

MR NEL: That's correct, Mr Chairman.

ADV PRIOR: Mr Chairman, may the applicant then be sworn? I believe he is in position.

ADV POTGIETER: Mr Mthembu, are you full names Dumisani Mthembu?

MR MTHEMBU: That is correct.

DUMISANI MTHEMBU: (sworn states)

ADV POTGIETER: I assume that there might some cross-examination by Mr Nel?

CROSS-EXAMINATION BY MR NEL: Mr Mthembu, from the proceedings previously held it became apparent to me that you stated that you were guarding a one, Mr Shandu, am I correct?

MR MTHEMBU: Yes, that is correct, I was guarding Mr Shandu.

MR NEL: And Mr Shandu was a prominent figure of Cosatu at the time?

MR MTHEMBU: Yes, that is correct.

MR NEL: You did also state that you received the firearm from an ANC commander, Mr Nkunu, Mr Mzizi Nkunu?

MR MTHEMBU: Yes, that is correct.

MR NEL: When exactly did you receive your instructions from Mr Nkunu, as well as the firearm to specifically guard Mr Vincent Shandu?

MR MTHEMBU: I received the instruction after the death of Vincent Shandu's brother, Kelani Shandu and after that I got in contact with Mr Nkunu.

MR NEL: Mr Chairman, sorry I seem to have a problem with receiving the applicant and I did not hear that answer at all, may I just ask for ...

MR MTHEMBU: Can you hear me now?

MR NEL: Yes, I can, thank you. Thank you, Mr Chairperson.

Mr Mthembu, sorry I didn't get your reply. The question was, if I may repeat it, when exactly did you receive your instructions and also the firearm from Mr Nkunu?

MR MTHEMBU: I received the instruction and the firearm after the death of Kelani Shandu and by this time we had already received the instruction to the effect that Vincent Shandu is going to be killed. That is when I received the firearm at the same time.

MR NEL: The person that you had been mentioned who had been killed, Shandu, am I correct in saying that was the brother of Mr Vincent Shandu?

MR MTHEMBU: Yes, that is correct.

MR NEL: Now for how long prior to this incident, the one that you are here for today, had you been guarding Mr Vincent Shandu?

MR MTHEMBU: Since 1991 right up to 1992 when I got injured.

MR NEL: Had you been staying with Mr Vincent Shandu at his house, if I recall correctly No 1658, since 1991 then?

MR MTHEMBU: Yes, that is correct.

MR NEL: But Mr Mthembu, if I recall correctly from reading the previous proceedings, Mr Shandu the deceased was killed in 1989.

MR MTHEMBU: Even though I may not be sure as to whether he was killed in 1989 but I think that after his death, that is the time when it became necessary that I guard Vincent his brother.

MR NEL: I read from page 6 of a transcript of the previous proceedings where your attorney asked you the following question

"Now can you remember anybody who was killed in the area around the time you were guarding Mr Shandu"?

And your reply was:

"The person who got killed was Ken Shandu."

Now this question says:

"Around the time that you were guarding Mr Shandu"

Now before I ask my question, on page 18 of the same transcript you replied to a question from the Panel here that Mr Ken Shandu was killed during November 1989. Now my question is, how could you have been guarding Mr Shandu around about the time that his brother was killed because this incident happened in 1992 and Ken Shandu died in 1989?

MR MTHEMBU: After the death of Ken Shandu it therefore became necessary for me to guard Vincent. That was the instruction that I received from Msizi. I don't know how long it took for them to plan this, that Shandu be guarded.

I really cannot say how much it took for them to plan for the guarding of Shandu but I am talking here about the time during which I received the instruction to go and guard him.

MR NEL: I accept what you are saying, Mr Mthembu, but it seems to me that you only received an instruction to guard Mr Vincent Shandu in 1991, yet in the same breath you say that it became important for you to guard him after his brother's death, but his brother died some four years prior to ...[intervention]

CHAIRPERSON: Two years.

MR NEL: Pardon, two years prior to you starting to guard Mr Shandu.

Thank you, Mr Chairperson.

MR MTHEMBU: Would you please repeat the question?

MR NEL: Yes, I will. What I'm putting to you, Mr Mthembu is that Mr Shandu's brother died in 1989 and you had said that it became important for you to guard his brother, Vincent, after the death of Ken Shandu, but what had happened between 1989 and 1981, sorry, 1991?

MR MTHEMBU: What I can say here is that I was not at Mandeni in 1989, I only arrived there in 1990 and I don't know what happened before that.

ADV POTGIETER: So Mr Mthembu, you can't say whether Mr Ken Shandu was guarded before you came to Mandeni?

MR MTHEMBU: Are you talking about Ken Shandu or Vincent?

ADV POTGIETER: No, sorry, Vincent, the one that you guarded.

MR MTHEMBU: Apparently he was not guarded, that is why it became necessary that I be the one who should guard him. He was not guarded prior to my arrival.

ADV POTGIETER: Thank you. Mr Nel?

MR NEL: Thank you, Mr Chairperson.

Why did it become necessary suddenly in 1991 to guard him if the whole purpose of him being guarded was the fact that his brother had been killed two years prior?

MR MTHEMBU: Vincent and his companions received a message to the effect that he was the one to follow his brother, he was the one that was to be killed next.

MR NEL: Did you or do you know that Mr Vincent Shandu had a number of meetings with the Security Branch around about this period of time that you were supposed to guard him?

MR MTHEMBU: I do not remember any meeting that he held with the Security Branch before, during or after I guarded him.

MR NEL: There is a policeman present at these proceedings here today in the flesh of the then Sergeant Botes and who will testify later that he knew Vincent Shandu very well, and him being involved in the Cosatu Desk had various meetings with Mr Shandu in relation to marches etc., in a certain township during the time. Now if you were his bodyguard are you saying that you didn't know of these meetings?

MR MTHEMBU: When are you saying these meetings were held, from 1991 to 1992 or are you saying these meetings were held around '89/1990? I do not understand.

MR NEL: Well the meetings started as early as 1988/1989 but you obviously wouldn't know about that but it was on a daily, not a daily basis but these meetings were held by Mr Botes even in the time that you would have been around.

MR MTHEMBU: It is a mistake that I was present in 1988 right up to 1989, I only arrived in Mandeni in 1990, not in 1988, not in 1989.

CHAIRPERSON: You don't seem to have understood the question. What the questioner said to you was that the meetings were held before you arrived from 1988 to 1989, but that they continued holding meetings while you were there, that is during 1991/1992.

MR MTHEMBU: I do not remember any meetings that were held with the police except for the meetings that pertained to marches at the area of Mandeni, that was around 1991 to 1992. Those are the marches that I remember as having taken place.

MR NEL: Very well, Mr Mthembu, I accept that you might not have been present at these meetings. If I may turn to the night or the morning of the 1st of September 1992 or the 2nd. My instructions are that the police had information that there were certain weapons at the house where this incident took place, namely Number 1658. Now this is the house that was well-known to Sergeant Botes and as I've already stated he was well-known to Mr Vincent Shandu. Now it has been your evidence that the house on that particular day was attacked by police, am I correct?

MR MTHEMBU: Yes, that is correct, the house was attacked.

MR NEL: And that had taken place - the attack that was launched on the house had taken place without any prior warning to yourself or the occupants in the house?

MR MTHEMBU: Yes, we were not informed about the possibility of Vincent being attacked.

MR NEL: Now I would like to point out to you the improbability of what you are saying because evidence will be led that Sergeant Botes obtained a search warrant from a Magistrate in Umtumzini on certain information and on a statement which he'd taken from a registered informer, and that they were in possession of a valid search warrant to search the house that you were occupying. It is that regard that I cannot understand that with a search warrant they would attack the house that you were occupying, can you comment on that?

MR MTHEMBU: I am saying I knew nothing, we knew nothing because nobody was expecting the police to arrive on that evening.

MR NEL: What I'm trying to put forward to you, Mr Mthembu is, do you see that it would most probably be highly unlikely for policemen in a number - they were quite a number of policemen on that night with a search warrant issued by a Magistrate, to go against such a search warrant and to attack the house that they were looking, the house that supposedly had firearms in it. Do you see my way of reasoning?

MR MTHEMBU: I do not remember seeing any warrant of search. Yes, I do understand what you are saying but I don't recall seeing any such warrant.

MR NEL: My instructions are, Mr Mthembu, that the victims who I am representing here, Sergeant van Schalkwyk and Mr Botes were standing on either side of the front door of this home and had knocked and announced their presence quite loudly for anybody inside to open the door. You do not know whether that happened, you say that did not happen?

MR MTHEMBU: No, such a thing did not happen.

MR NEL: And eventually when there was no response from inside Sergeant van Schalkwyk prepared himself to open the door with force and he was then shot from inside the house.

MR MTHEMBU: Is that a question?

MR NEL: You may reply to the statement that I'm putting to you, Mr Mthembu. I'm saying that it did not happen, on my instructions, as you stated previously, that I'm saying that the police announced their presence, had no response, prepared to enter the house by force and before they could do so somebody from within, and from your evidence you shot Mr van Schalkwyk.

MR MTHEMBU: I do not remember any incidents or instance where the door was forcefully shot(?), I only remember a gunshot being fired. I do not remember. The only thing that I heard was the gunfire which actually woke me up.

MR NEL: No, you might have misunderstood me, I did not say that they forced the door open. They were preparing to do so but before they could do that they were fired upon from within the house and in that fire Mr van Schalkwyk was injured in the head.

MR MTHEMBU: I never heard of that. I don't even know that he was preparing to open the door forcefully. I only heard gunshots and that woke me up.

MR NEL: And you thought you were under attack?

MR MTHEMBU: Yes, I thought that we were now under attack.

MR NEL: Were you the only person assigned to protect Mr Shandu?

MR MTHEMBU: It was myself, only myself.

MR NEL: How did it happen that all the occupants of the house then exited the house and came out into the open?

MR MTHEMBU: After the police had fired shots into the house they stopped shooting and they then instructed that the door to the house should be opened, that is when Mr Shandu opened the door.

MR NEL: How did it happen that you pointed out a firearm inside the house?

MR MTHEMBU: That was at the time when I woke up from my sleep, resulting from the gunfire. When I woke up it is clear that the people were shooting into the house from outside, shooting through the windows. All the windows were shot through

MR NEL: Maybe you didn't get the question properly. I said, how did it happen that everybody came out of the house and you then pointed, or did you point out a firearm inside the house? Or shall I say, what happened to the firearm that you shot with?

MR MTHEMBU: I do not quite understand your question.

MR NEL: After all the gunfire had stopped, both yours and the retaliation from the police, the gunfire had now ceased, what happened to the firearm that you had used to shoot from within the house?

MR MTHEMBU: The gun that I used to fire was inside the house. I threw it to the kitchen. After that the door opened and we all went out, starting with Vincent and I followed. They then took me back into the house and insisted that I produce the firearm.

MR NEL: Did they not rather ask who was the person who was firing from within?

MR MTHEMBU: I do not remember.

MR NEL: Mr Mthembu, you said that the police insisted that you produced the firearm that was shot with, how did they know you were the person that was shooting? I'm suggesting to you that the police asked from your group who had the firearm and who was shooting, did it not happen that way?

MR MTHEMBU: They came and said that we should produce the firearms, open the door and after the door was opened the owner of the house was made to lie down and another person also came out and he was too made to lie down and I became the third person to come out and I too was made to lie down, but shortly thereafter they took me back to the house and they said I should show them the firearm.

After that they pushed me and insisted that I personally take the gun and give it to them. I didn't want to do as they told me, instead I kicked or pushed the gun with my feet towards them.

MR NEL: Are you saying that it was a coincidence that they picked on you to produce the firearm?

MR MTHEMBU: I cannot say why they chose that it be myself who showed them the firearm, I really cannot say.

MR NEL: Mr Mthembu, my instructions are and it will also be testified to the fact that some of the members had asked you people who was the one that was using a firearm and you volunteered and you then pointed out the firearm that you used, or are you maintaining that that is not the way that it happened?

MR MTHEMBU: No, they did not ask who was using the firearm, instead when I got out of the house they asked me my name, I gave them my name, they made me lie down and after that they took me back into the house where they insisted I shown them the firearm.

MR NEL: Mr Chairman, if you'll just bear with me for one second, I'm just trying to find a certain page.

Mr Mthembu, in conclusion I would like to put it to you that this incident did not happen the way you described it happened, and why I'm saying that is as I've stated before the police were in possession of a search warrant after information had been substantiated. Mr Botes who was one of the policemen on the foreground knew Mr Vincent Shandu personally and it would have been highly unlikely that him and his group with a search warrant would without any reason attack the occupants of that particular house.

MR MTHEMBU: Maybe they gave the warrant of search to Mr Shandu, it's Mr Shandu who can answer to this. I cannot say a thing because I did not even see the warrant of search.

MR NEL: Where did you point the firearm out to the police?

MR MTHEMBU: The firearm was in the kitchen near a cupboard, a kitchen cupboard.

MR NEL: How far was the kitchen from where you had fired with the firearm?

MR MTHEMBU: There is a passage, a short passage from the dining-room to the kitchen, it is just a short distance.

CHAIRPERSON: From the dining-room did you say?

MR MTHEMBU: Yes, that is correct.

CHAIRPERSON: Where is the dining-room?

MR MTHEMBU: I would say the dining-room was facing the north.

CHAIRPERSON: Was the dining-room also referred to as the lounge?

MR MTHEMBU: Yes, we can also refer to it as the lounge.

MR WILLS: Sorry, Mr Chairperson, if it's of any value I have a scale sketch of the house if it will help with this cross-examination.

CHAIRPERSON: ...[inaudible] handed in as Exhibit C wasn't it?

MR NEL: Sorry, Mr Chairperson, there's Exhibit C in this bundle.

CHAIRPERSON: ...[inaudible]

INTERPRETER: The speaker's mike is off.

MR NEL: ...[inaudible] in a psychiatric report, a sketch plan of the area and a plan of the house as Exhibits A, B and C.

MR WILLS: Sorry, Mr Chairperson, it doesn't appear as if my learned friend has been provided with a copy of those exhibits and they're not in the bundle.

MR NEL: Sorry, Mr Chairperson, is the sketch that I'm showing you now, is that part of the exhibit?

CHAIRPERSON: It seems that the room that he's referring to is the one marked A which is to the north of the house and there's that short passage which goes to the kitchen.

MR NEL: When you had fired with the firearm, Mr Mthembu, in which room of the house were you?

MR MTHEMBU: I was standing at the door, the door that is facing the windows to the dining-room or the window to the dining-room.

MR NEL: And did you then throw the gun into the kitchen, the firearm?

MR MTHEMBU: Yes.

MR NEL: Mr Chairperson, thank you, I've got no further questions.

NO FURTHER QUESTIONS BY MR NEL

CHAIRPERSON: Are you not challenging his version as to how he came to be shot?

MR NEL: Sir, I'm only acting for Mr van Schalkwyk and he did not take part in the shooting and he does not know how that happened.

CROSS-EXAMINATION BY ADV PRIOR: Thank you, Mr Chairman.

Mr Mthembu, at what stage on that morning did you become aware that the people outside the house were members of the South African Police?

MR MTHEMBU: I only knew about that after they had stopped shooting and started shouting, telling us that they were police.

ADV PRIOR: Is that when you threw the firearm into the kitchen or got rid of the firearm?

MR MTHEMBU: Yes, that was the time when I threw the gun to the kitchen.

ADV PRIOR: You didn't want to be found in possession of this firearm, is that correct?

MR MTHEMBU: Because yes, the police had already identified themselves as police.

ADV PRIOR: And you knew that you never had a licence for this firearm, it was an unlawful, you were unlawful possession of the firearm?

MR MTHEMBU: Yes, I did not have a lawful licence for the firearm.

ADV PRIOR: Tell me, when you fired this firearm did you, my understanding is that you shot through the door of the premises, is that correct?

MR MTHEMBU: I shot through the window.

ADV PRIOR: Could you see who you were shooting at or were you simply just firing blindly?

MR MTHEMBU: I shot towards the direction from which the shots from outside were being fired. I was actually shooting through the window that I was facing, the dining-room window.

ADV PRIOR: Were there curtains on the window or any covering on the window?

MR MTHEMBU: Yes, there were curtains.

ADV PRIOR: My question is, were you taking aim at a specific target or were you just simply firing through the window in order maybe to frighten people off?

MR MTHEMBU: I was shooting randomly through the window hoping that after the attackers had realised that there was a retaliation they would flee.

MS KHAMPEPE: Mr Prior, you are obviously aware that this happened at night?

ADV PRIOR: ...[inaudible]

MS KHAMPEPE: Yes, which was still dark.

ADV PRIOR: Thank you, I've no further questions.

NO FURTHER QUESTIONS BY ADV PRIOR

CHAIRPERSON: Which room did you sleep in?

MR MTHEMBU: I was using the dining-room for my bedroom.

CHAIRPERSON: That is the front room with a door leading outside?

MR MTHEMBU: That is correct.

CHAIRPERSON: And you say you heard no knocking on that door?

MR MTHEMBU: No.

CHAIRPERSON: And when you got up in what direction did you move?

MR MTHEMBU: I woke up and ran into the passage.

CHAIRPERSON: And there's a wall along the side of the passage, between the passage and the dining-room?

MR MTHEMBU: Yes, that is correct.

CHAIRPERSON: And you fired how many shots out of the window from around this wall?

MR MTHEMBU: I fired three times.

CHAIRPERSON: And then what happened?

MR MTHEMBU: After that I would say the shooting was continuing from outside and when the shooting stopped that is when they identified themselves as the police and they indicated that we should also show them the firearm that we were using to shoot them with from inside.

CHAIRPERSON: So they started shooting while you were still asleep, went on shooting while you got up and went behind the wall and fired at them and then went on shooting some more and only after that told you: "We are the police"?

MR MTHEMBU: Yes, that was after the shooting stopped, that is when they identified themselves as the police and instructed that the door be opened.

CHAIRPERSON: How many people were there in the house?

MR MTHEMBU: I would like to refer to them one after another so that we can establish as to how many they were.

CHAIRPERSON: Right.

MR MTHEMBU: There were eight of us in the house.

CHAIRPERSON: Who were they?

MR MTHEMBU: It was Mr Shandu and his wife and three of their children, Vuzi, Vuvu and myself.

CHAIRPERSON: Do you remember you gave evidence before us before?

MR MTHEMBU: Yes.

CHAIRPERSON: And you said there, it's recorded at page 15

"The gunshots we heard in the beginning when they started to shoot at and also when I shot back at them, the gunshots continued until the owner of the house started calling out, Mr Shandu."

MR MTHEMBU: Yes, the owner of the house started calling out, that was after the gunshots had come to an end and that is the time when the police ordered that the door be opened.

CHAIRPERSON: You see that is not what you said last time, last time you said

"The gunshots continued until the owner of the house started calling out."

MR MTHEMBU: No. It is true that the owner of the house started calling out but he only did that after the gunshots had stopped. He did not call out at the time when the gunshots were being fired.

CHAIRPERSON: Thank you.

FURTHER CROSS-EXAMINATION BY MR NEL: Mr Chairperson, sorry, there is one question I forgot to ask Mr Mthembu, may I have your leave just to put the one question to him?

You did say that everybody and yourself believed that Mr Shandu's life was so to speak in danger and that is why you had to guard him?

MR MTHEMBU: Yes.

MR NEL: Don't you find it strange that after the house had been searched by the police, Mr Shandu didn't even have a firearm, not even a legal one, a licensed firearm? Do you understand the question?

MR MTHEMBU: Would you please repeat he question?

MR NEL: You have to guard Mr Shandu's life because his life is in danger, yet the police on this night in question after the incident searched the house thoroughly and no other firearm except the one that you had shot with was found in the house, don't you find it strange that not even, or Mr Shandu did not even carry a licensed firearm? Yet his life was in danger and he does not even carry a gun.

MR MTHEMBU: Yes, he did not have a firearm.

MR NEL: Thank you, Mr Chairman.

NO FURTHER QUESTIONS BY MR NEL

MS KHAMPEPE: What is so strange about that Sir, he's got a bodyguard who is armed to protect him?

MR NEL: Thank you, Judge, I just thought that a person whose life is in danger would also carry a licensed firearm himself.

CHAIRPERSON: As a member of Cosatu would he have been issued with a licence in 1992?

MR NEL: Mr Chairman, sorry, I would not like to debate on that matter.

MR WILLS: Mr Chairperson, no re-examination.

NO RE-EXAMINATION BY MR WILLS

CHAIRPERSON: Is the witness, Ntuli being recalled for further cross-examination?

MR NEL: Mr Chairperson, may I ask for a short indulgence, two/five minutes. I would just like to take an instruction and consider that issue, thank you Sir.

MR WILLS: Mr Chairperson, Mr Ntuli is here for the benefit of the Committee and he is available is he is needed to be called.

MR NEL: I have decided on the instructions of my client not to cross-examine the witness, Mr Ntuli and I will also not be leading any evidence.

MR WILLS: Yes, thank you, Mr Chairperson, I had closed my case in the last occasion, is it required of me that I argue the matter at this point in time? I am prepared to do so.

CHAIRPERSON: ...[inaudible]

MR WILLS IN ARGUMENT: Thank you, Mr Chairperson. Mr Chairperson, I submit that the applicant has made a case for amnesty. I submit with respect that the political motivation of the applicant's action has been established, and further that he has to the best of his ability fully disclosed all the relevant facts.

As regards the ...[intervention]

CHAIRPERSON: It appears to me, and I'm not pre-judging here, that it would perhaps be more correct to say he's disclosed all the facts as he understands them. It appears possible that there may have been a misunderstanding that when he woke he thought he had been woken by something but he'd been woken by some other noise and he reacted to the fact that there was noise and a possible attack. Does it really matter precisely what woke him?

MR WILLS: No, indeed Mr Chairperson, it doesn't really matter. The fact, with respect, to mind is that he executed his orders in that he thought that ...[intervention]

CHAIRPERSON: He thought that he was being attacked and he reacted to a possible attack.

MR WILLS: That is yes, indeed so. I don't know if you want to hear me further on this, Mr Chairperson.

CHAIRPERSON: ...[inaudible] it does appear - I'm not speaking for the whole Panel but we have the affidavits of all the policemen who talk of knocking on the door. It seems unlikely that they would have all invented this but equally well some man who is fast asleep may not realise when he wakes that is was a knocking that he heard and not some other loud noise. The question isn't really of great relevance, it's why he behaved as he did that is of importance. And as you say there it seems that he was convinced they were being attacked and reacted as he thought a bodyguard should.

MR WILLS: Yes, that is indeed so.

CHAIRPERSON: Have you anything to say, Mr Nel?

MR NEL: Mr Chairperson, no thank you. My client will abide by the decision of the Committee, thank you.

ADV PRIOR: Mr Chairman, yes, to my mind it would seem from the questions that I put to Mr Mthembu, that he had acted almost instinctively, firing randomly through a curtained window at a perceived threat on the outside and as the Chair has correctly pointed out it doesn't really at the end of the day matter whether it was gunshots or possibly a very loud banging on a door ...[intervention]

CHAIRPERSON: Well what is possible is that he didn't really know what woke him up, that he woke up conscious of the fact that some noise, some loud noise had woken him up and that his brother or one of the other people said there are people outside and he leapt to the assumption that this was an attack. Because improbable as it seems that the police would bother to go and get a search warrant when they intended to go and shoot up a house, equally well it seems improbable that someone guarding a man who had frequent contact with the police as we have heard, would have opened fire as soon as he was told there were police there. Both versions seem that it's more probable that there was a gross misunderstanding.

ADV PRIOR: I go along with that, Mr Chairman. Thank you, that is all.

CHAIRPERSON: Mr Prior, you indicated you wanted some time now.

ADV PRIOR: Yes, to confer with victims in another matter.

CHAIRPERSON: Whilst we will take time to confer amongst ourselves on this matter. We'll adjourn for a short while.

ADV PRIOR: Thank you, Mr Chairman.

WITNESS EXCUSED

COMMITTEE ADJOURNS

ON RESUMPTION

F I N D I N G: 22.10.1998

CHAIRPERSON: The applicant in this matter was a member of the ANC at all relevant times and was appointed as a bodyguard to the Cosatu Northern Natal Chairperson, Mr Vincent Shandu in 1991. The incident in respect of which he claims amnesty took place on the 2nd of September 1992.

He gave evidence that Mr Shandu's brother had been killed two years earlier and that threats had been made against Mr Shandu, and it was for this reason that the ANC had appointed a bodyguard to reside in his house and had armed him with a machine pistol.

On the night in question there was a raid on Mr Shandu's house by members of the South African Police Force. It was put to the applicant that Mr Shandu had a close relationship with members of the Security Police, that he saw them frequently to discuss matters like holding marches and matters of the nature but it is quite clear that he was given no notice of this raid. The raid was as a result of an informer having said that there were firearms in Mr Shandu's house and the police obtained very properly, a search warrant from the relevant Magistrate and came to the house looking for these firearms.

Although it is not of any direct relevance to the application, it is quite clear that no firearms were found in the house and that the information given by the informer had been incorrect.

The applicant in his application avers that he was woken up by the sound of shots being fired and that he fired shots through he window in his capacity as a bodyguard, in an endeavour to drive the attackers away.

The evidence led at the trial and contained in the affidavits which have been filed was to the effect that the police when they arrived at the house, surrounded the house and then knocked on the door loudly stating in English that they were the police and that they should open up.

There appears to be a dispute between the two versions but it may well be more a mistake than a dispute. It appears to us that it is improbable that the police would have gone to the house legitimately to search it and just open fire for no reason whatsoever.

It appears equally improbable that the applicant had he known that it was the police who were knocking on the door of the house, would have opened fire on them. He was after all the bodyguard of a responsible person who was well-known in the vicinity and who, as far as we know, had committed no wrongdoing. There were no guns there to hide. The only gun in the place was the gun he had been issued with to safeguard the life of Mr Shandu.

Having regard to the evidence as set out in the affidavits and with reference to the Judgment given, it appears to us extremely probable that the applicant was woken by noise and that when he awoke he was told or gained the impression that there were people outside, which was quite correct, that there were people who were trying to get into the house, which was quite correct, and he leapt to the assumption that these were attackers who had come to attack Mr Shandu. This of course was incorrect but in the light of that he opened fire and fired two shots through the window, one of which very unluckily struck one of the policemen who was standing outside the house.

It wasn't suggested that he had aimed deliberately at him, and in view of the fact that it was 4 o'clock in the morning and that the only light that may have been there was from street lamps some distance away, it seems improbable that he could have seen a target. The most he may have seen was shadows on the curtains.

Be that as it may, it appears to us that when he acted as he did he was not intending to attack the police force, he was acting in the defence of Mr Shandu and that this amounted to an act with a political objective in terms the Amnesty Act.

It is not necessary to refer to all the documentation that was put up before us. It appears that the matter was fully investigated and it is quite clear from the evidence led at the previous hearing, that there were numerous shots fired at the house, but it seems to us probable that these shots were fired after the Sergeant had been injured and were in retaliation for what was seen as an unprovoked attack on the Sergeant. As I've said earlier there appears to have been misunderstandings and mistakes on both sides. However we are satisfied that the applicant has made out a case for amnesty in respect of the attempted murder of the police who were outside the house. He has applied for amnesty in respect of two counts of attempted murder. It would appear that they were in respect of the two policemen, one of which is standing on each side of the door and these are charges which are presently pending against him. He has also claimed amnesty in respect of the illegal possession of a firearm and of ammunition. As I understand it, and Mr Wills can correct this if I am wrong, the firearm is the Stechkin machine pistol and the ammunition was the ammunition found for this pistol, 19 rounds.

Accordingly the applicant is GRANTED AMNESTY IN RESPECT OF THE ATTEMPTED MURDER OF TWO POLICEMEN OUTSIDE HOUSE NUMBER 1658, SANDUMBILE ON THE 2ND OF SEPTEMBER 1991 AND FOR THE ILLEGAL POSSESSION OF A STECHKIN: S-T-E-C-H-K-I-N MACHINE PISTOL AND 19 ROUNDS OF AMMUNITION FOR THAT PISTOL IN CONTRAVENTION OF THE PROVISIONS OF THE ARMS AND AMMUNITION ACT.

The Committee is also of the opinion that INSPECTOR W J VAN SCHALKWYK IS A VICTIM IN RESPECT OF THE SHOOTING ON THAT OCCASION, and he is referred to the Committee on Reparation and Rehabilitation for its consideration in terms of Section 26 of the Act.

MR WILLS: As the Court pleases.

CHAIRPERSON: ...[inaudible] Inspector Botes.

MR NEL: Mr Chairperson, that must be a mistake, he was not injured in the incident.

CHAIRPERSON: ...[inaudible]

MR NEL: No.

MR WILLS: Sorry, Mr Chairperson, nobody else was injured. The charges were in respect of two persons, a Andre Potgieter and Willem van Schalkwyk but only the one was injured and that was van Schalkwyk.

CHAIRPERSON: ...[inaudible] insert into the order that I have just made, the names INSPECTOR VAN SCHALKWYK AND INSPECTOR ANDRE POTGIETER.