CHAIRPERSON: ...(inaudible) with argument in the matter we heard yesterday. At the present time we have decided to deal with the application of Elgien Z Ngema, which from the papers before us does not look as if it will take a great deal of time. Will you please put yourself on record?
MR MTHIYANE: Chairperson, Members of the Committee, I appear for Mr Elgien Zamini Ngema. My name is Mthiyane, initials M B S. Mr Chairperson, Members of the Honourable Committee, the applicant in this application seeks amnesty in respect of the incidents mentioned in page 3 of his application papers and that is coincidentally also page 3 of the bundle.
CHAIRPERSON: That is he's asking amnesty in respect of five different attacks on post offices or power stations?
MR MTHIYANE: That is correct, Chairperson.
CHAIRPERSON: Which took place between the 12th August and the 3rd October in the Durban area?
MR MTHIYANE: In 1988, that is correct.
CHAIRPERSON: 1988.
MR MTHIYANE: A list was furnished to us of incidents that the applicant will be making, for which the applicant will be making application. In that list which is provided in the bundle at page proceeding page 1 of the bundle, one incident was left out. That is the incident that occurred on 15 August 1988. That incident was left out. However, the applicant will be making application for amnesty in respect of that incident as well.
MR LAX: The summary is just for our convenience. Don't worry about it. Your client's application paper is much more relevant.
MR MTHIYANE: Thank you.
MS MOHAMED: Sorry, Mr Chairperson, Ms Mohammed from Dehal Incorporated. If I may at this stage, my learned colleague has indicated to me that my client in the previous matter, Mr Msibi, is one of the implicated parties in this matter. However, for your purposes my client hasn't instructed me. Just to clarify that with you so that I may be excused from this hearing on that basis.
MR MTHIYANE: If I may be of assistance in that regard, Mr Chairperson, that will appear on page 14, paragraph 7 of the supplementary affidavit by the applicant.
CHAIRPERSON: Well reading that it's by no means clear that your client is implicated in any offence in this country. It may have been rather the contrary that after the applicant had performed these various acts your client thought he should be ordered out to stop him. It doesn't implicate your client in the performance of any act, does it?
MS MOHAMED: Actually Mr Chairperson, I have no knowledge of this matter. It's just that my learned colleague, Mr Mapoma, indicated just before we entered that my client was implicated. Purely on that basis that I addressed you. Thank you.
MR LAX: But you'll agree that ordering someone to leave a country is not exactly an offence?
MS MOHAMED: Yes, I do agree. Thank you.
CHAIRPERSON: Right.
MR MTHIYANE: Thank you Mr Chairperson. At this stage I propose to call Mr Elgien Ngema to give evidence with the leave of the Committee.
ZAMANYA ELGIEN NGEMA: (sworn states)
EXAMINATION BY MR MTHIYANE: Mr Ngema, how old are you?
MR NGEMA: I am 35 old years old.
MR MTHIYANE: Where do you reside?
MR NGEMA: KwaMashu B789 but at the moment I'm staying at Arcadia in Pretoria.
MR MTHIYANE: At the time of the lodgement of your application for amnesty you were an officer in the South African National Defence Force, is that correct?
MR NGEMA: That is true.
CHAIRPERSON: Are you a doctor?
MR NGEMA: No.
CHAIRPERSON: Oh, so you were in the medical services?
MR NGEMA: Yes I was there.
MR MTHIYANE: Are you still in that position?
MR NGEMA: No.
MR MTHIYANE: What is your occupation at the moment?
MR NGEMA: I am Deputy Director in the Human Resource Policy and Planning.
MR MTHIYANE: Are you a member of any organisation?
MR NGEMA: Yes.
MR MTHIYANE: Which organisation are you a member of?
MR NGEMA: The African National Congress.
MR MTHIYANE: Mr Ngema, you are applying for amnesty in respect of several incidents that occurred during the last half of 1988, is that correct?
MR NGEMA: That is correct.
MR MTHIYANE: Can you please inform the Honourable Committee which organisation if any you were a member of at that stage?
MR NGEMA: At that time I was a member of COSAS and also I was a member of African National Congress and Umkhonto weSizwe as well.
MR MTHIYANE: When did you become a member of Umkhonto weSizwe?
MR NGEMA: In 1985.
MR MTHIYANE: And what was your role in that organisation as at 1988?
MR NGEMA: After I was recruited in 1985 by Mr Vusi Mashlobo I began to have lectures on politics. After he was arrested it stopped for a while.
MR LAX: We don't need your whole history. If you could move to 1988? What were you doing in 1988 and how did you come to be involved in these incidents?
MR NGEMA: Okay.
MR LAX: And you can lead him Mr Mthiyane, it's pretty common cause.
MR MTHIYANE: Thank you Mr Chairperson.
What was your role in 1988?
MR NGEMA: In 1988 I was a member of the unit which was under the command of Swingers, or rather the unit was called Swingers and the commander was Fila Portia Ndwandwe. We held various meetings and these meetings were usually held in Swaziland together with other unit members and all of them are now late and the unit members are Vusimusi Mjali, Maswe Vilakazi and Sibosiso Nglovu. Portia Ndwandwe was the overall commander of this unit and she was in Swaziland, that's where she was residing.
CHAIRPERSON: You swore to an affidavit?
MR NGEMA: Yes.
CHAIRPERSON: On the 23rd May. Do you remember the affidavit, page 12 of the papers before you?
MR NGEMA: If I may ask, what about the affidavit?
CHAIRPERSON: You confirm the correctness of what's in it because that affidavit sets out the names of all these people?
MR NGEMA: Yes. We were based internally inside the country. The one who was our commander inside the country was Vusi Mjali. We used to go to Swaziland to see our overall commander and various meetings which were held at that time, it was said that we were supposed to start bombing the targets which we had already identified.
MR MTHIYANE: Sorry, if I may disturb you there, Mr Ngema? Who said that to you?
MR NGEMA: Portia Ndwandwe said so.
MR MTHIYANE: Yes, you may proceed?
MR NGEMA: We were in Swaziland together with the unit members. We were also told about the ANC policies. We were told that we were supposed to take the struggle into the white areas and into the cities and the emphasis which was emphasised to us was that we should by all time avoid casualties. This was a major problem to us because we were fighting an urban guerrilla warfare. When we came back from Swaziland after we had our meeting with Portia we had all our material and weapons which we were going to use.
MR MTHIYANE: Did you get your material from Swaziland?
MR NGEMA: Yes, we got them from Portia Ndwandwe.
MR LAX: By material you mean limpet mines?
MR NGEMA: Yes, I'm referring to limpet mines.
MR LAX: Is it correct that you then chose the various targets listed on page 3 of your application?
MR NGEMA: Yes that is correct.
MR LAX: It was also mentioned that our commander was to take a job as a garden boy so that other operations would be successful because we were going to launch them around the cities in Durban.
MR MTHIYANE: Mr Ngema, did you then carry out the operations that are mentioned in page 3 of your affidavit, of your founding affidavit?
MR NGEMA: Which one?
CHAIRPERSON: Well on the top of page 3, not the operation on the bottom of page 3.
MR MTHIYANE: That is correct, Chairperson. I mean ...(intervention)
MR LAX: Just for convenience sake, 12th August 1988, Pinetown Post Office?
MR NGEMA: Yes. Yes.
MR LAX: You confirm the 15th August 1988, a power station near Glen Ashley Shopping Centre?
MR NGEMA: Yes.
MR LAX: Was that a power station or was it a sub-station?
MR NGEMA: I would like to clarify something in that one. As I've already mentioned that we had first made our reconnaissance of the targets which we've already identified. I knew about this but I wasn't present on that day of the attack and the others I was actually personally involved in them.
MR LAX: Yes, you say that very clearly in the following paragraph after the list?
MR NGEMA: Yes. We did all our reconnaissance because we had already been there before. On the day I was one of the three who were involved in the attack. It was in the evening. We placed the limpet mine in the post office and then we left. At that moment we had already taken some other precautions. The fact that in post office's there are public telephones, we had already disconnected those telephones so that people cannot come to use them.
CHAIRPERSON: Is this Pinetown Post Office?
MR NGEMA: Yes. It exploded exactly at the time which we had planned it to explode. We left for our respective areas or residences. The following day ...(intervention)
MR MTHIYANE: Sorry, if I may interpose Mr Ngema? Why did you choose that target?
MR NGEMA: When?
MR MTHIYANE: Why did you select that target, Pinetown Post Office?
MR NGEMA: It was one of the apartheid structures.
MR MTHIYANE: Yes, you can proceed?
MR NGEMA: The following day we went there to make surveillance as to what damage had occurred and also we read on the newspapers and radios. We reported this to our commander who was outside the country.
MR LAX: Mr Ngema, did the same consideration apply to each of the targets? You reconnoitred each one?
MR NGEMA: Yes.
MR LAX: You made efforts to minimise injuries?
MR NGEMA: Yes.
MR LAX: You each one represented some form of State institution?
MR NGEMA: Yes.
MR LAX: And each case you reported back?
MR NGEMA: Yes.
MR LAX: And it's clear from the following paragraph that you were not present at the second explosion?
MR NGEMA: Yes, it is like that but I knew about it.
CHAIRPERSON: You had been part of the planning, it was your unit who did it and they told you about it afterwards. You accept responsibility?
MR NGEMA: Yes.
MR LAX: Is it also true that in the Pinetown explosion unfortunately somebody sustained some injuries?
MR NGEMA: Yes that is so.
MR LAX: And then further down on the page you make it clear that there was an attack at KwaMashu in D Section on the 22nd September which you heard about but which was not part of your contemplated actions?
MR NGEMA: Yes and I would like to explain about the situation at that time. I understood why it happened. We knew many people as targets because they were part of the apartheid government and at that time there was violence and there were many warlords but since I've explained that our commander had instructed us to take the violence to the white areas and also we were working together with students and the community at large. It was difficult for us to know everything which was happening in the area. Vusi Mjali, my commander, told me about this incident.
MR LAX: That particular incident was obviously an own initiative?
MR NGEMA: Yes.
MR LAX: And not necessarily in line with your specific instructions?
MR NGEMA: Yes.
MR LAX: The person, Khumalo, whose home that was, was he regarded as a warlord in that section of KwaMashu?
MR NGEMA: No, he was working for Security Branch, South African Security Branch.
MR LAX: Was he an informer or a policeman?
MR NGEMA: I'm not certain but I do know that he was part of the SBs.
MR LAX: But in any event you had nothing to do with that, you weren't involved in the planning of it or you simply heard about it after the event?
MR NGEMA: Yes.
MR LAX: And you're not applying for amnesty for that?
MR NGEMA: No.
MR LAX: Okay. Did you do any of these acts out of any form of personal motive?
MR NGEMA: No.
MR LAX: And did you receive any payment for these acts, did you receive any payment or financial benefit?
MR NGEMA: No.
MR LAX: Thank you.
MR MTHIYANE: Thank you Mr Chairperson, that will be the evidence.
NO FURTHER QUESTIONS BY MR MTHIYANE
CHAIRPERSON: Just to clarify one point which you have clarified in your affidavit. I'm relying on your - or your application here, that the Durban North blast, that was the attack on the power station near the shopping centre?
MR NGEMA: Yes.
CHAIRPERSON: That apparently damaged the shopping centre but you don't know who suffered damage as a result of that?
MR NGEMA: Yes that is correct.
CHAIRPERSON: That is they suffered financial damage to their property?
MR NGEMA: Yes I think so.
CHAIRPERSON: Thank you. Any questions?
MR MAPOMA: No questions Chairperson, thank you.
NO QUESTIONS BY MR MAPOMA
MR MTHIYANE: Thank you Mr Chairperson, may the witness be excused.
CHAIRPERSON: The applicant may be excused.
WITNESS EXCUSED
MR LAX: Any other witnesses?
MR MTHIYANE: No witnesses.
MR LAX: Is that your client's case?
MR MTHIYANE: That is correct.
MR LAX: Thank you.
CHAIRPERSON: I don't think it's necessary to hear you. Do you intend to address us, Mr Mapoma?
MR MAPOMA: No.
CHAIRPERSON: It appears fairly clear that this was done by a member of a well known liberation organisation on instructions and although the applicant did not mention in his evidence, the fact we do know that what he states in his application is correct and that is - I'm not sure if it's his application or his affidavit?
MR LAX: Affidavit.
CHAIRPERSON: His affidavit that the fellow members of his unit did die as described and also Portia Ndwandwe was removed from Swaziland as he says. So it is a case where all the facts set out in his application and affidavit appear correct and are supported by other evidence which has been led before us on previous occasions. In those circumstances we needn't hear you. The Committee will consider its decision and notify you in due course.
MR MAPOMA: Thank you Mr Chairperson.
CHAIRPERSON: So we'll now take another short adjournment. We hope a short adjournment.
MR MAPOMA: Yes, Chairperson, a short adjournment.
COMMITTEE ADJOURNS
ON RESUMPTION
CHAIRPERSON: We'll now hear argument on the first applications we heard. I would remind all the interested parties that the argument must be confined to the evidence or information placed before us and whether on that evidence or that information the applicants are entitled to amnesty in terms of the Act. I think that we said yesterday, well not quite as I said yesterday, we are extremely obliged and grateful to Mr Moerane for the detailed and extremely helpful submissions he has placed before us and having had an opportunity to read them, we now say if you wish to add anything to them you may do so.
MR MOERANE: Chairperson, if you place temptation before a lawyer he is bound to succumb.
MR LAX: Perhaps you might remember the res ipsa loquitur cautionary expression?
MR MOERANE IN ARGUMENT: Yes, the only slight problem I have is that these submissions are only available to the learned Members of the Committee and legal representatives and not to the members of the public. So I'll just say a few words. I obviously will not read the submissions.
Chairperson and learned Members of the Committee, it is our submission that all nine applicants involved in Operation Butterfly have made out a case for the grant of amnesty for the reasons that have been given in the submissions. Just for the benefit of the applicants themselves, I shall just read the summary, paragraph 17, on page 9, that we sum up that Vejanand Ramlakan qualifies for amnesty in respect of the following acts:
(a) The recruiting by him of Jude Francis, one Rev and Dhanpal Naidoo and the training by him of Francis and Rev in the use of explosives and the establishing of arms caches in contravention of certain provisions of the Internal Security Act, the Terrorism provision. Also the training by him of one Mutu and Mapegi Aaron Ndlomo in the use of ...(intervention)
CHAIRPERSON: Before you go on, can I ask you a general question which applies to the other applicants as well? In our country as it stands today, is recruiting people to the ANC in the pre-1990's an offence?
MR MOERANE: No.
CHAIRPERSON: It's not something for which people could be charged today?
MR NGEMA: No. So is membership of the ANC, it's no ...(intervention)
CHAIRPERSON: No, so recruiting was not because you say there the recruiting of three people?
MR MOERANE: Yes, it's not only the recruiting it's the training and ...(intervention)
CHAIRPERSON: Yes, the training by him of Francis and Rev in the use of explosives?
MR MOERANE: Yes.
CHAIRPERSON: Is a different matter?
MR MOERANE: Yes.
CHAIRPERSON: That the recruiting falls away, doesn't it?
MR LAX: Except to the extent that they may have been convicted and have a record for that?
MR MOERANE: Yes, our main submission, Chairperson, as you'll have seen from our submission is that we deal with the consequences of a conviction that in the global village in which we live, it might cause problems for a person going to certain and having to disclose that he has been convicted under the Terrorism Act.
CHAIRPERSON: Yes so from that point of view, I think my colleague has raised a valid point although it is no longer an offence?
MR MOERANE: Yes.
CHAIRPERSON: If you haven't been convicted there is no point in asking for amnesty for it because you cannot be convicted?
MR MOERANE: Yes.
CHAIRPERSON: But if you have been convicted you can ask for amnesty on the basis that as you have said that certain of the country that one visits asks you to declare have you any previous convictions?
MR MOERANE: That is so.
CHAIRPERSON: And once you say yes I have, you may find yourself in problems getting a visa or what have you. So from that point of view there might be clearly some reason for granting an order, that that would be where the applicant has been convicted of that offence?
MR MOERANE: Yes, the problem Chairperson is that in the past terrorism was defined so widely that some acts which in a normal democratic country wouldn't qualify as terrorism fell under the rubric and I know if you had to go to the United States today and tell them that you have been convicted of terrorism it would cause lots of problems. You'd have to explain and in order to get rid of the necessity to have to explain at every turn that in fact that that terrorism in America or in any other democratic country would not be terrorism, the applicants would require that those convictions be expunged and that is the only reason why we have mentioned some things which today would not be terrorism but part of the conviction.
CHAIRPERSON: Thank you.
MR MOERANE: Thank you Chairperson. Another act in respect of which we submit Dr Ramlakan qualifies for amnesty is the supplying of an explosive device to others and the planning with them an explosion at the Magistrate's Court, Chatsworth, on the 13th December 1995. Supplying to others of an explosive device and planning with them an explosion at Mr Rajbansi’s house the 4th August. With regard to - before I proceed, Chairperson, in terms of Section 20.10 of the TRC Act, where any person has been convicted of any offence constituted by an act or omission associated with a political objective in respect of amnesty as been granted in terms of this Act, any entry or record of the convictions shall be deemed to be expunged from all official documents or records and the conviction shall for all purposes including the application of any Act of Parliament or any other law, it deemed not to have taken place, provided that the Committee may recommend to the authority concerned, the taking of such measures as it may deem necessary for the protection of the safety of the public, we have submitted Chairperson, in respect of all the applicants who have been convicted, no measures are necessary for the safety of the public. They are no danger to the public and it's for that reason that the ...(intervention)
CHAIRPERSON: Oh, so what you're asking for us there is simply to say we do not recommend the taking of any measures?
MR MOERANE: Precisely, yes. The applicants Derek Naidoo, Dhanpal Naidoo, Jude Francis, David Madurai, are all applying for amnesty in respect of the two explosions, the one at the Magistrate's Court, Chatsworth and the other at the house of Mr Rajbansi. Mr Richard Vallihu is applying for amnesty with regard to only one explosion, the one that occurred at Mr Rajbansi’s house.
Chairperson, it is our submission that the applicants who are implicated in that event, those who have been convicted and those that have not been convicted should be granted amnesty because clearly the targets in question in the context of the policy, aims and objectives of the African National Congress and Umkhonto weSizwe, all the things that are mentioned in Section 20.2 and 20.3 of the Act clearly apply to them and one, in our submission, does not need to persuade the learned Committee that that is a deserving case and the applicants themselves as we have said in the papers have been very frank and candid with the Committee. They have fully disclosed their participation and the role that each one played up to the extent, Chairperson, of confessing, if I may put it that way to events in respect of which they were acquitted in the State vs Buthelezi matter. Not only that but in respect of two incidents, I'm referring now to one particular applicant, two incidents with which they were not charged in the Buthelezi matter. I'm referring, Chairperson, to page 114 of bundle 2, which after detailing each of the explosions with which they were charged - at the top of the page, then it says the following:
"The State led evidence about these explosions, the State also led evidence without objection about explosions which occurred on the 27th September 1985 at Game Discount World, West Street, Durban, that is incident 9 and at Checkers Supermarket, West Street, Durban, that's incident 11. However, there is no allegation in the indictment alleging that these explosions are caused by the accused or by anyone acting with a common purpose or in concert with the accused or even that the explosions were caused by members of the ANC."
It is therefore not necessary to deal any further with these two explosions. They were not charged with them, they were not considered for purposes of conviction or sentence but the accused - I'm sorry, the applicants, that some of them had decided to disclose them. In other words come forward, disclose them that they were involved in them, apply for amnesty which is an indication of their frankness. They are not shielding behind the fact that they were not convicted of these particular offences.
I wish to highlight, Chairperson, certain matters which although some of them were not pertinently dealt with in this Committee that they appear in the documents which are before this Honourable Committee. I refer in particular to paragraph 11 at page 7 of our submissions where we say in the Buthelezi matter the court accepted or found to have been proved the following:
(a) That the accused were greatly influenced by a sense of injustice resulting from the disparity between the opposition in our society and that of whites particularly in the social constitutional labour and educational fields.
(b) The ANC's motives in forming Umkhonto weSizwe and
we say that this may be gleaned from the first and second submissions of the ANC to the TRC and the evidence presented in the Buthelezi case.
(c) That the accused were motivated not by the hope of personal gain but by what they generally believed were the interests of their people.
(d) That no avenue was left open to them other than violence in order to put their view across.
(e) That nobody was injured in the explosions at Rajbansi’s house and at the court house.
(f) That care had been taken to prevent injury to people; and although this evidence was not led before the Committee but it was obviously led in the trial and it was accepted that accused no
(g) (although this evidence was not led before the Committee but it was obviously led in the trial and it was accepted)
That accused number 3, that's applicant Ramlakan herein, during training sessions warned trainees against causing injuries to people.
And what I wish to add, Chairperson, is that some of these matters were reiterated by the applicants before the Honourable Committee.
And furthermore, at paragraph 13, we submit that each of the applicants stated under oath that within the context of the policy, aims and objectives of the ANC and in the execution thereof, he was actuated by the motive to bring about the overthrow of the apartheid State by means which included violence and to establish in its place a non-racial democratic State, that each of them said he did not perform any act for personal gain, nor did he receive any financial or other benefit therefore. Neither did he perform any act against any of the victims out of malice, ill will or personal spite.
We submit, Chairperson, that the applicants, each on of them, have complied with the provisions of Section 20.1(a), (b) and (c) which are the prerequisites for the grant of amnesty and that each one of them is entitled to be granted amnesty in respect of the acts for which each has applied. Thank you Chairperson.
CHAIRPERSON: Thank you.
MS MOHAMED IN ARGUMENT: Mr Chairperson, I going to be very brief. I submit that the applicants that I represent, Mr Tshika and Mr Msibi have in fact complied with the requirements of the Act and on that basis, amnesty should be granted to them.
I am not going to deal in great detail with the Durban incidents because I think my learned colleague has already dealt with that sufficiently. Just to address you very briefly on the Newcastle incident. If I may point the learned Committee to a reference in the ANC's second submissions on page 89. This is the submission dated 12th May 1997, actually lists the Newcastle Magistrate's Court as a target in MK operations, so I just thought I would bring that citation to your attention. I know at some stage my learned colleague, the Evidence Leader, had some difficulties with that choice and actually the time of the bomb and things like that.
MR LAX: Could we have another headset please? How is that?
MS MOHAMED: I'm just referring the Committee now to ...(intervention)
MR LAX: Please continue now?
MS MOHAMED: Thank you. In the ANC's second submissions that stated the 12th May 1997, on page 89, the attack on the Newcastle Magistrate's Court is listed as an MK operation that was carried out and apart from that, Chairperson, I have ...(intervention)
CHAIRPERSON: ...(inaudible) page?
MS MOHAMED: 89. On the date the 10th November 1986, that's about three quarters down the page. Thank you Mr Chairperson. If there's anything else I'd be happy to address that. Suffice to say that Mr Tshika's application is for the Newcastle and the Durban incidents. Thank you Mr Chairperson, I have ...(intervention)
CHAIRPERSON: Msibi, wasn't he present? I haven't had a - I've got your notes and I haven't had a chance to check my notes because they were in court, the bombing of the Kombi?
MS MOHAMED: No, Mr Chairperson. Mr Msibi was only involved in the Newcastle incident.
CHAIRPERSON: And who was present at the bombing of the Kombi?
MS MOHAMED: That was Mr Nsomi.
CHAIRPERSON: Nsomi. Thank you.
MS MOHAMED: Thank you Mr Chairperson, I have nothing further, thank you.
MS CAMBANIS: Thank you Chairperson. In respect of the applicant, Raymond Lalla, he applies for amnesty in respect of the following acts, namely the incidents listed as
Number 1, the Victoria Embankment car bomb on the 3rd April 1984.
Incident number 2, the car bomb in Jacobs on the 12th July 1984.
Chairperson, in his evidence he was led and he applied for all the incidents listed in respect of Operation Butterfly as had been set out in the summary. In fact no evidence has been led in respect of incident 3, 4, 5, 6 or 7 and in the result Mr Lalla abandons his application in respect of those incidents.
CHAIRPERSON: Well should he? As I understand his application, it is based on the fact that he was in the main charge of intelligence outside the country, that he was one of those who participated in the concept of operation butterfly, that he discussed it with other leaders and that they then gave instructions to units who were to go back into the country, into Natal and set up organisations to carry out all the aims of Operation Butterfly, all the objects which included, as I understood his evidence, that they had a certain discretion as to selection targets provided they fell within the general picture of the targets given and complied with the ANC concept of targets. So shouldn't he ask for, rather than asking for specific incidents, because he did not participate in any specific incident, shouldn't he be asking for amnesty for the planning, ...(intervention)
MR LAX: Facilitation and implementation.
CHAIRPERSON: Planning, facilitation and implementation of Operation Butterfly and all incidents carried out in furtherance of that operation and all offences committed as part of that operation. It is not a general amnesty, it is limited to one operation?
MS CAMBANIS: Thank you Chairperson, I will set aside the next four pages in relation, that is what Mr Lalla will apply for, thank you Chairperson. Chairperson, if I can turn back to the car bomb?
CHAIRPERSON: Sorry, you can either let us have it in writing or we, if we decide we're going to make such a decision, come to such a decision, we will let you have sight of the wording and you can then agree or disagree with the wording whether it covers the incident.
MS CAMBANIS: Thank you Chairperson. If I can then turn to the incidents of the car bombs at Victoria Embankment and Jacob Street? Mr Lalla has given evidence that by 1984 the decision for special operations in respect of car bombs to be exploded in the Durban area against military targets had already been taken by one Zwelie Nyanda. Mr Nyanda died during - after his death, this operation was revived by one Tami Zulu who took over this operation. Mr Lalla was part of a discussion regarding this operation. The persons involved he has disclosed in these discussions was Mr Tami Zulu, the applicant himself, Mr Cyril Raymond who was the Chief of Operations at the time and he is also referred to as the code name Fear and the fourth person was Chappie Morabi, also known as Rabbit. His evidence was that he discussed possible military targets with the operative Rabbit. He gave this Committee examples of the type of targets that was discussed with the operative Rabbit, except that he added that the targets discussed were fixed targets, buildings and installations, and he did not discuss, canvas the possibility of convoys or moving military targets with the operative.
He has confirmed to this Committee and disclosed that the operative for the actual car bomb was Rabbit and that the choice of the final specific target or targets would be decided by Rabbit, Cyril Raymond also known as Fear, together with Tami Zulu.
Unfortunately, Mr Chappie Morabi has not applied for amnesty in these incidents and Mr Lalla is consequently not in a position and has no further information that he can disclose to this Committee relating to the choice of targets or further planning or surveillance or any of the associated activities relating to the specific target. All that Mr Lalla is able to say is he admits that he participated in the discussions about the special operations, he knew that the operation would take place, he knew the name, he has disclosed the name of the operative. He discussed possible military targets and he also supplied the explosives which would be used in the car bombs. Chairperson, it's my submission that ...(intervention)
CHAIRPERSON: It's possible, isn't it, that another decision was taken by others that he had no party to deciding on moving targets?
MS CAMBANIS: That is a possibility that ...(intervention)
CHAIRPERSON: And in that case he would not be liable for such attacks?
MS CAMBANIS: Yes. Chairperson, but I submit that that is possible but he has come forward and he has admitted before this Committee that he knew of a special operation to plant car bombs. He knew that it would be launched against military targets although to the best of his knowledge he thought it would be against a fixed target and it is true that the plan may have changed but he did have knowledge that a military target was to be hit in the Durban area and he did supply explosives for the making of the car bomb.
CHAIRPERSON: Is there any evidence before us that the target in the Victoria Embankment was a military target? There is some suggestion that the one in Jacobs may have been in the vicinity of one of the targets selected by him. But was there any evidence at all about the Victoria Embankment one?
MS CAMBANIS: The only evidence, in fact, was from one of the victims who said that it was placed I think 150 metres near the police station. Mr Chetty, I forgot his rank, I'm sorry, in addressing yesterday, located the car bomb. I think he said 150 metres from the Police Station and that is the only evidence.
CHAIRPERSON: 150 metres is an awful lot.
MS CAMBANIS: Yes, I can't take it further than that. And relating to the Jacobs Street there is the comments on page 1 that Oliver Tambo confirmed that it was intended for a military target.
Chairperson, it is still my submission that in terms of the information given by this applicant to the Committee that those actions are sufficient to constitute an act or an offence as referred to in Section 18.1 of the Act and he therefore applies for amnesty for his role in target selection and supply of explosives in relation to these two car bombs.
MR LAX: It may also constitute a delict, that's the other leg of the amnesty process.
MS CAMBANIS: Yes and he would apply - sorry, Mr Lax, I always assume that the two follow, that once amnesty - he would also ask for amnesty from all delictual liability arising from the deaths and injuries in both car bombs.
Chairperson, in relation to Operation Butterfly, the Committee has already dealt with it and I do not think that I need to add anything further to that except to say that the specific Operation Butterfly is not referred to in the submissions and this is not unusual unfortunately that we've had in other, the land mine referred to, Operation Hlatswayo, that's not referred to. There's numerous operations. At page 71 of the ANC submissions, the second submission under appendix "MK Operations and other Armed Actions", I think the Committee is aware that they have given the disclaimer that it is not possible to give a detailed account of every MK operation as requested by the ANC. We did not keep records of this nature mainly for security reasons. More detail will be forthcoming in applications for amnesty by various commanders and combatants and then in the second column they refer to possible omissions, mistakes that may have occurred and I submit that this is one occasion where the actual applicants have been able to supplement the submissions to the extent of naming the operations and disclosing further incidents.
CHAIRPERSON: The impression one gets, or I have got certainly, is that somebody thought up Operation Butterfly and then decided they should try to keep it, the knowledge of it, as limited as possible, so if anybody was captured they couldn't let the cat out of the bag and it may be for that reason we have heard now from most of the - a number of the operatives in Butterfly who have come forward, that it's also clear from the evidence that a number of them were senior people, died during the course of the conflict or were killed and that may explain the gap in the information that the people you would have expected to pass it on are no longer available to do so.
MS CAMBANIS: Yes, thank you Chairperson. Chairperson, in relation to the specific requirements, Section 21(a) of the Act, I don't know, the affidavit wasn't properly attested to. I don't know if I have to deal with the technicalities, I submit that Mr Lalla has explained and confirmed that under oath and that he shouldn't be excluded on a technicality of 21(a) of the Act that he has in fact submitted a proper application in the prescribed form.
CHAIRPERSON: It seems to me and I don't know if I speak on behalf of all the members of my Committee, that if there was a technical difficulty of that nature, it should have been seen by our office as soon as the application was received and steps should have been taken then to remedy that, by getting the document signed and the fact that they weren't - that no such steps were taken, perhaps indicates that a copy of the document that did arrive at our office had been signed?
MR LAX: And also, if I could just add, you're also alive to the numerous instances in other matters where we've given ruling that the Committee doesn't strictly require compliance in that regard. We're quite satisfied that the confirmation under oath is sufficient compliance.
MS CAMBANIS: Thank you Mr Lax.
Chairperson, in relation to Section 20(b), the client qualifies in terms of Section (a), (d), (f) and (g), inasmuch as these acts were clearly associated with a political objective. My learned friends have dealt with this but I nonetheless want to just refer the Committee again to page 48 of the ANC statement, where as far back as Operation Mayavuya, the legitimate target were set out. It included police stations, camps and military forces and at page 51 of the same submission, the second column, the second paragraph:
"Conference reaffirmed ANC policy with regard to targets considered legitimate, SADF and SAP personnel and installations and selected economic installations and infrastructure. But the risk of civilians being caught in the cross-fire when such operations took place could not no longer be allowed to prevent the urgently needed, all rounded intensification of the armed struggle."
CHAIRPERSON: Where are you reading from?
MS CAMBANIS: Page 51 of the ANC submission.
CHAIRPERSON: The second submissions?
MS CAMBANIS: No, sorry Chairperson, the original statement to the TRC. The first reference was at 48, the first column, the third paragraph under the draft document "Operation Mayavuya" and I'm not going to repeat all the targets, I just referred to military forces, right from the beginning and then to the page 51 to which I've just referred. It was the evidence of Mr Lalla that all attacks - that the car bomb attacks were always envisaged to be against military targets.
Regarding the final requirement of full disclosure, Mr Lalla has not been charged in respect of any of the incidents or acts for which he today seeks amnesty. The car bombs are not even referred to in the submissions. The only one is the Victoria Embankment to which we referred at page 102 of the second submission was cited by the ANC as uncertain. Second submission in the second column.
MR LAX: It's in the papers isn't it? Annexure B to his affidavit.
MS CAMBANIS: Yes Mr Lax, thank you. And the car bomb at Jacob Street is not even mentioned at all in the ANC papers.
Chairperson, this is perhaps to address the family more. But for Mr Lalla coming forward and disclosing to this Committee the extent of his knowledge relating to the car bomb, the perpetrators involved in this incident would have remained unknown. Mr Lalla was painfully aware of the amount of deaths and injuries which had been caused by both these incidents. He surely anticipated the level of anger which was directed at him yesterday by the family and friends of the deceased and injured and he has stated that regrets and sympathises. Notwithstanding that, in the spirit of this process, as a commander he has come forward to say what wasn't known before and to give some relief to the family and friends of the deceased and injured, of explaining who the operative was and what his participation was. It's my submission that he has disclosed everything that is within his own personal knowledge and he has made the fullest possible disclosure in relation to these incidents that he is possible to make and in that respect I therefore submit that he has made full disclosure in relation to those. There's no suggestion that he acted for personal gain. There's no suggestion that he was motivated by personal agendas or malice and in those circumstances I submit that he qualifies for amnesty in terms of Section 21 (a), (b) and (c) and ask that this Committee grant him amnesty in respect of those acts. Thank you Chairperson.
MR MAPOMA: Chairperson, there are victims here in the incident of bombing at Victoria Embankment. I have discussed the matter with them, they have got a feeling that they want to oppose the application and make submissions in argument in opposition of the application relating to that incident. I have discussed the matter with them. I have also advised them that they have for purposes at this stage to confine themselves into the issues relating to the granting of amnesty, that is political motivation and full disclosure and they understand that. Thank you Chairperson.
CHAIRPERSON: These are victims who didn't give evidence, who made statements yesterday and made their submissions yesterday. They now want to address argument?
MR MAPOMA: Yes.
CHAIRPERSON: Because they have had an opportunity to make submissions and the time for that is past. We're now listening to argument on the applications?
MR MAPOMA: Yes Chairperson.
CHAIRPERSON: Who will be speaking on their behalf?
MR CHETTY: I will Mr Chairperson.
CHAIRPERSON: Put yourself on record?
MR CHETTY IN ARGUMENT: Ramsamy Stanley Chetty.
Chairperson, firstly the car bomb that took place at the Victoria Embankment was not politically motivated as the bomb was placed in a very busy area. At that stage the policy of the ANC was to attack military targets but instead on that particular occasion they attack civilians using the street.
CHAIRPERSON: There's been no evidence as to who was attacked or how they were attacked.
MR CHETTY: Mr Chairperson, that car bomb as Mr Lalla has said, was to be placed at military targets but on that particular occasion it wasn't placed at any military building or target but at a soft target. The bomb was placed and was activated by means of a remote control device. It is the negligence of Mr Lalla's people that that bomb had gone off at that particular date and time because only due to the placing of the device, that is the remote control, that the bomb had gone off. If that remote control was not activated, the perpetrators would have avoided the loss of lives and damage to property at that particular place.
Mr Lalla, who was head of intelligence, situated in Swaziland, gave instructions to his men at grassroots level to go out to specific targets. After the explosions had taken place, Mr Lalla says he was put into exile or arrested in Swaziland and put into Tanzania in 1986.
MR LAX: What is the relevance of that in relation to the application for amnesty?
MR CHETTY: Mr Chairperson, what I'm saying is, as head of any organisation one needs feedback from ...(intervention)
MR LAX: He wasn't head, he was chief of intelligence. The head was someone else and we've heard evidence to that effect.
MR CHETTY: But Mr Chairperson, what I'm saying is, he was head of intelligence, he had given instructions, he had given strategic points where the explosives needed to be placed. He had to get feedback from his men on grassroots level.
MR LAX: He testified, Mr Chetty, you will recall that the feedback wasn't to him directly and now do you have any other evidence to contradict that? Are you saying that he is lying in that respect?
MR CHETTY: That is correct.
MR LAX: On what foundation do you say that?
MR CHETTY: He should have got feedback ...(intervention)
MR LAX: No, no. No, no ...(intervention)
CHAIRPERSON: You can't go on saying he should have, have you any evidence to that effect Mr Chetty? He was not in charge, he in charge of intelligence who was called in to become a member of a committee that discussed this. We've heard there were several people there. There was somebody else in charge of the operations. Why do you keep saying he should get a feedback? You have no evidence to support that.
MR LAX: You see Mr Chetty, just so you understand something, you're assuming a very organised structure, similar to the one you work at present and what you must understand is that the ANC didn't work in that way. They didn't have the kinds of communication commands that you might have in the South African Police Service, even previously or at present. Simply didn't have those kinds of networks and their reporting system, as he said, didn't work like that and I can tell you we have heard countless cases. If you'll just listen to me. We've heard countless cases where it took months and months and sometimes years for information to filter back to the command structures as to who was responsible for what. So I'd like you to understand that because if one understand that then what he says is not as improbable as you might think it is, coming from the kind of structures that you were in. Do you understand? So please continue.
MR CHETTY: Mr Chairperson, furthermore it was said that the explosions to take place was not to be used for their moving targets but ...(intervention)
MR LAX: Sorry, if I could? It wasn't said, that. It wasn't said that at all. What was said was that the kinds of targets he discussed with the people who were going to be the operatives were fixed targets. The corollary of that is not, in other words, it's not logical to therefore assume that because they only discussed fixed targets therefore moving targets were not to be used. All he said was they didn't talk about moving targets, they only spoke about fixed targets. However, the discretion for the choice of the target was left to the operative.
MR CHETTY: With regard to information that he gave or instructions that he gave to the people on ground root level was to train people and bring them over to South Africa. At one stage he said no firearms or no ammunition was sent into South Africa. Thereafter ...(intervention)
MS CAMBANIS: Chairperson, he did not say that, he said - I think he's referring to Operation Butterfly in the initial stages when Charles Ndaba - he did not say that.
MR CHETTY: Can I complete my statement, Sir?
MR LAX: You see, which time are you referring to now?
MR CHETTY: Before the car bombs took place.
MR LAX: And what is your specific point that you're trying to make?
MR CHETTY: He firstly stated that at no stage ammunition came into the country. Thereafter, ...(intervention)
MR LAX: Sorry, when did he say that because I have no recollection of him saying that at all but ...(intervention)
CHAIRPERSON: What I have a note of is that he said that at the beginning, in 1982, 1983, they sent in Mdisi Sithole, also known as Belgian, I think it was, and that he did not know of any explosives being sent in at that time. Not that they weren't sent in, he didn't know at that time.
MR CHETTY: And thereafter he said, Chairperson, that he then recalled ammunition being sent in, it was of training purposes.
MR LAX: Carry on?
MR CHETTY: With regard to disclosing of all the truth, what he understands to be the truth, Mr Lalla was a member of the MK from 1981 up to 1990, giving command. In 1984 the explosion took place in the Victoria Embankment. He then says he only came to realise that people were killed and injured years later which means the people that he worked with, like Mr Lax said, did not give feedback because of a problem with communications. But Sir, in a matter of 9 years or more - I beg your pardon, 6 years, he would have got some information from the people that he worked with. He could have seen all this on world television and in the press.
MR LAX: So you are basically saying that, if I understand you correctly, that his statement that he didn't know that, is not probable?
MR CHETTY: That is correct.
CHAIRPERSON: But in 1985 he was transferred to Lusaka, wasn't he and would no longer have people reporting back to him in Swaziland?
MR CHETTY: I think it was in 1986, Mr Chairperson.
MR LAX: Yes, whenever it was. The point is, what is his subsequent knowledge of these events have to do with this application for amnesty which is for the commands rather than the subsequent knowledge because it was within the context of not coming back to the families that that was raised which is a separate issue from the amnesty application?
MR CHETTY: Mr Chairperson, Dayto Lalla said he was forced by his superiors in the ANC to apply for amnesty.
MR LAX: No, he didn't say that at all. He said there were instructions that they should apply for amnesty, not that he was forced to apply. But even if he was forced to apply, what difference does it make?
MR CHETTY: If he had not come out or had not been forced to apply, we would have not known the truth at this stage.
MR LAX: But even so he did apply and you do know the truth?
MR CHETTY: Mr Chairperson, to close up, I think that Dayto Lalla had not given us a full disclosure of what had happened at that stage and I object to him being given amnesty.
CHAIRPERSON: Thank you. Mr Mapoma, do you have anything to say?
MR MAPOMA IN ARGUMENT: Chairperson I will not be able to say or to argue anything against the granting of amnesty to the applicants. At this stage, Chairperson, I must say I have been requested by Mrs Pillay, who is a mother to Joshua Pillay, to make the following statements to the Committee. That she says she has heard the applicant applying for amnesty and she wants to make peace with herself. She says that she is a child of God and that she believes that the applicant himself is a child of God and as children of God she believes that they must forgive each other and on that basis she is forgiving the applicant for what he did. But having said so, she says as well that the Committee must take into account that as a result of what happened, she is suffering for what happened, that her son was killed and whatever decision is given, that must taken into account.
I must Chairperson, at this stage for the record mention, that I have advised Mrs Pillay that she's a victim of what happened and she as well as other victims in this hearing will be taken and their names will be referred to the Reparations and Rehabilitation Committee for the purposes of reparation.
MR LAX: Can I just add one word of caution?
MR MAPOMA: Yes.
MR LAX: That advice you gave her was subject to us making a finding that amnesty is granted and that the acts referred to are acts associated with a political objective?
MR MAPOMA: Yes, I may not as accurately put it to the Committee but the explanation was along those lines.
MR LAX: I would just hate you to create an unreasonable expectation.
MR MAPOMA: Yes, I appreciate that, Chairperson, thank you for that.
CHAIRPERSON: I think she should also be told, you may have done so, that even if we do do that and if her name does go forward, there is no guarantee that anything will happen in the immediate future. There may be a great delay.
MR MAPOMA: Yes, in fact I have explained that, Chairperson, that the Reparations Committee will make a policy and report to the Government. It is the Government then who will decide what kind of reparation to be made to the victims for gross violation of human rights. Chairperson, that is all. Thank you.
MR GOVANSAMY: Chairperson, may I just add one thing? My name is Gary Govansamy. I was part of the team for my family, taking up the cudgels for them in this instance. I want to say that I understand the political process. I understand the whole question of reconciliation and truth. It has been my families overall intention to oppose this application and I think they're justified in doing that. Having said that and having understood the political situation where we come from and where we're going to, I had no intention of opposing the application per se but I feel for my family and I feel what has happened is wrong and I want to place that on record. After having given Mr Lalla a hard time yesterday I feel differently but that doesn't mean that he should get amnesty, it doesn't mean that he shouldn't get amnesty and the Committee must decide for itself in its wisdom and after hearing all that went on here, the evidence and the cross-examination to make a best decision that matter.
MR LAX: Can I just ask you to clarify one thing? When you say what has happened here was wrong, what exactly is that?
MR GOVANSAMY: What I'm saying is what has happened in terms of the perpetrations of these acts.
MR LAX: You're talking about the horrible armed conflict we had to all live through?
MR GOVANSAMY: Yes, basically that and the fact that people were killed and some people were not cared for.
MR LAX: Yes, I was just concerned that there may have been some experience here at this hearing and that is what you may have been talking about.
CHAIRPERSON: We'll give our decision later.
MS MOHAMED: As the Committee pleases, thank you.
MS CAMBANIS: Thank you Chairperson.
MR LAX: Do you want to take a short adjournment before we start the next matter, Mr Mapoma?
MR MAPOMA: Yes please, Chairperson.
COMMITTEE ADJOURNS
