ON RESUMPTION
MR MBANDAZAYO: Now my next applicant is Mzuamadoda Yengeni.
CHAIRPERSON: Mr Yengeni, what language would you prefer to use?
MR YENGENI: Xhosa.
CHAIRPERSON: Thank you.
MZUAMADODA YENGENI: (sworn states)
CHAIRPERSON: Yes?
EXAMINATION BY MR MBANDAZAYO: Thank you, Mr Chairperson.
Mr Yengeni, the affidavit which is in front of you is also before the Committee, do you confirm that this affidavit was made by yourself and you abide by its contents?
MR YENGENI: Yes, that is correct.
MR MBANDAZAYO: Thank you. Mr Chairperson, the only thing I would like to correct is the date in paragraph is 1976, not 1972.
CHAIRPERSON: ...[inaudible]
MR MBANDAZAYO: Mr Yengeni, can you tell the Committee in your own words, your role you played in the incident where Mr Franciscato was killed? What role did you play?
MR YENGENI: What happened in is, we were from Gunti township, we were from Gunti location. There were three of us. It was myself, Mabuti Biko and Winile Veveza. There was a message that we got that we were supposed to go there and I was one of the people who were there with Winile Veveza.
We waited for the person who called us. Mabuti Biko then arrived and he said that we should go with him to town. We went to town with him, with Winile Veveza. When we arrived in town we went through Alice Street. In Alice Street what happened is I stood outside next to the gate.
Mabuti and Winile Veveza went inside. When they were inside - when they were going inside Mabuti Biko said that we were there for an operation, we were there to take arms of firearms for the organisation. I was expecting such a thing.
They went inside and they kicked this white man and then they went inside. When we were inside we searched the rooms, the whole house. Whilst we were searching we heard a shot in one of the room inside the house. When we heard that sound I continued searching.
After that I went to another room and I then saw Mabuti Biko taking out firearms from that room. We finished that and then we left the place. We arrived next to the river and he asked us whether we took something from the house. He then searched us and he didn't find anything else. We went to Zukile Biko. When we arrived at Zukile Biko's place, Mabuti Biko then left. He was going to meet with Tamsanqa Duma and he left us behind. That is what I can say about the incident.
MR MBANDAZAYO: What were you armed with when you went there?
MR YENGENI: I was armed with a bayonet.
MR MBANDAZAYO: Did you use the bayonet?
MR YENGENI: No, I didn't use that bayonet.
MR MBANDAZAYO: That is all, Mr Chairman.
NO FURTHER QUESTIONS BY MR MBANDAZAYO
CHAIRPERSON: Mr Mapoma?
CROSS-EXAMINATION BY MR MAPOMA: Thank you, Mr Chairman.
So when Mr Franciscato was shot at, you did not witness that?
MR YENGENI: I heard a sound. I was in another room when the sound or when the shot was fired.
MR MAPOMA: And then you came thereafter, when he was already shot at?
MR YENGENI: Yes.
MR MAPOMA: Then you - it's only thereafter that you searched for the weapons?
MR YENGENI: After that my co-accused had left that room. He went to the room with the trunk where the weapons were. He then took out the firearms and then we left.
MR MAPOMA: So you did not first take the weapons and then thereafter shoot at him and leave him, that's not how it happened?
MR YENGENI: He told us about the weapons - Mr Franciscato told Mabuti Biko where the weapons were when they were together. We then went to that place and took the weapons and then we left.
MR MAPOMA: So when you took the weapons - what I want to get clear here, when you took the weapons he was already dead, Mr Franciscato?
MR YENGENI: Yes, he was already dead.
MR MAPOMA: So it's not correct to say that you shot at him when you were about to leave or when you were leaving?
MR YENGENI: He was shot when we were already searching on the other side, when Mabuti Biko was trying to find out where the weapons were. When he found that information he then shot him. We then took the firearms and we left.
MR MAPOMA: Okay, thank you. Thank you, Chairperson, no further questions.
NO FURTHER QUESTIONS BY MR MAPOMA
CHAIRPERSON: Any re-examination?
MR MBANDAZAYO: None at this stage, Mr Chairperson.
NO RE-EXAMINATION BY MR MBANDAZAYO
ADV DE JAGER: Wasn't he shot with one of the weapons that you found in the house?
MR YENGENI: Mabuti Biko who was with him on that side, he went there with a weapon that was with him. I can say that he used the weapon he had.
ADV DE JAGER: Because as far as I could gather he was shot with a shotgun and his brains was against the mirror and so on.
MR YENGENI: I wouldn't be able to answer that Sir, because I was not the one who shot him.
ADV DE JAGER: Did you see his brains against the mirror?
MR YENGENI: I noticed that - I heard about that when we were in court, when they showed us the photographs of the deceased.
ADV DE JAGER: Did you receive training in arms, weaponry?
MR YENGENI: Yes, I knew how to use a firearm because I was trained in Fort Beaufort under the task force.
ADV DE JAGER: In your application you say that you've benefitted, on the questions 10(c)
"Yes, I did benefit"
If so, explain the nature and extent of such benefits, and then you say:
"I got the arms, ammunition and money"
What money did you get?
MR YENGENI: The money that is referred to here is not from Mr Franciscato's home, it's another incident.
ADV DE JAGER: So you were involved in - the other incident, was that politically related?
MR YENGENI: Yes, it was related to politics.
ADV DE JAGER: Why?
MR YENGENI: The reason why I'm saying it had something to do with politics, everything that I did I did it under the organisation.
ADV DE JAGER: Now who ordered you to do the other robbery, the one at the cafe?
MR YENGENI: Nobody gave me an instruction. I went to that robbery because, and after that I reported to my commander in the township. I told him about what we did, after the robbery.
ADV DE JAGER: So you didn't have any orders to do that?
MR YENGENI: No, I didn't get an order, I reported afterwards.
ADV DE JAGER: But you knew you shouldn't take money if you act on behalf of the PAC, wasn't that so?
MR YENGENI: What I can say, I can't say it is so or not because if money was found it was going to be used, it can be used to help the organisation.
ADV DE JAGER: Now why were you searched about an hour before that to see whether you'd taken money from Mr Franciscato?
MR YENGENI: The reason for us to be searched - the person who searched us will be able to tell why he was searching us.
ADV DE JAGER: So you didn't know why he searched you?
MR YENGENI: No, but I heard it from him when he was telling us why he was searching us.
ADV DE JAGER: Did he tell you why he was searching you?
MR YENGENI: Yes, he said that he didn't want us maybe to hide something like a watch if we found it there, maybe there would be somebody who would recognise the watch and then they would find evidence and we would be arrested, and we were not doing that to be arrested.
ADV DE JAGER: And he didn't search you for money?
MR YENGENI: He didn't get money.
ADV DE JAGER: I asked, did he search you for money? Did he look for money?
MR YENGENI: I wouldn't say he was looking for money, he was searching for everything that would give evidence to the police so that we could be arrested. That's what I thought.
ADV DE JAGER: But now what about the gun, the police could arrest you on the gun. That could be recognised, it's got a number.
MR YENGENI: Please repeat your question, Sir.
ADV DE JAGER: On stealing the gun, the gun could be traced by the police because the gun had a number. Weren't you afraid of being traced by the police because you took the gun?
MR YENGENI: Yes, I do know that the guns had numbers. We knew that those weapons were not going to stay with us, they would be taken away.
ADV DE JAGER: Who instructed you to commit the robbery and the killing of Mr Francisco Cato?
MR YENGENI: It was Mr Biko.
ADV SANDI: Where did he instruct you, where were you when he told you that you should get involved in this?
MR YENGENI: He gave us an instruction when we were at Mr Franciscato's house. He told us that we were going to take firearms there. I then looked for any person who was coming. I then followed them after they entered the house.
ADV SANDI: Before he told you that, where did you think you were going?
MR YENGENI: When we were with him, that was not a strange thing because we used to go with him, he used to visit my area. We'd go with him to town.
ADV SANDI: Had you been involved in a similar operation with him before that day?
MR YENGENI: No.
ADV SANDI: You mean to say that he had not before then instructed you to do anything similar to what he was telling you to do that day?
MR YENGENI: No.
ADV SANDI: This was your first operation as a member of APLA?
MR YENGENI: Yes.
ADV SANDI: Did you get involved in any similar operation after this one?
MR YENGENI: No.
ADV SANDI: That place where you say you came from before you proceeded to the house of Mr Franciscato, did any discussion take place there between anyone who was there, concerning an attack?
MR YENGENI: No, we didn't discuss that.
ADV SANDI: What was discussed there, if anything was discussed?
MR YENGENI: We didn't discuss anything, we were waiting for the person who sent the message and we didn't know what he wanted. We couldn't assume what the person was going to say.
ADV SANDI: What were you doing before you got involved in this operation? Did you carry out any tasks as a member of APLA?
MR YENGENI: No.
ADV SANDI: You joined APLA in 1991, not so?
MR YENGENI: I joined task force in 1991.
ADV SANDI: And between 1991 and the day you got involved in the attack at the house Mr Franciscato, you had not carried out any functions as an APLA member?
MR YENGENI: No, except for this one there was nothing else I did.
CHAIRPERSON: Yes, thank you, you are excused.
ADV DE JAGER: Could I just ask one question?
The money that you referred here to you say was in a later operation, later that afternoon?
MR YENGENI: That is correct.
ADV DE JAGER: And you reported it to your leader, who was he?
MR YENGENI: I took it to Mr Tamsanqa Duma who was my commander in the community.
ADV DE JAGER: And did you give the money to him?
MR YENGENI: Yes.
ADV DE JAGER: All the money?
MR YENGENI: Yes.
ADV DE JAGER: How much was it?
MR YENGENI: I didn't count how much it was.
ADV DE JAGER: Did you give him anything else?
MR YENGENI: No, it was only the money.
ADV DE JAGER: Did you have a weapon?
MR YENGENI: No, I only had a bayonet.
ADV DE JAGER: At Mr Franciscato's place, and later on in the afternoon, the other robbery?
MR YENGENI: No, I was not armed.
ADV DE JAGER: How many weapons were used at the later robbery?
MR YENGENI: There was a bayonet and a firearm.
ADV DE JAGER: Only one firearm and one bayonet?
MR YENGENI: Yes, I had a bayonet.
ADV DE JAGER: I want to know, did other people have - because inasfar as I could see two firearms were used at the other place.
MR YENGENI: Mr Veveza was the one who had a firearm. There was only one firearm.
ADV DE JAGER: Was it only you and Mr Veveza involved there?
MR YENGENI: Together with Zukile Biko.
ADV DE JAGER: The three of you?
MR YENGENI: Yes, the three of us.
CHAIRPERSON: You are excused.
WITNESS EXCUSED
MR MBANDAZAYO: Thank you Mr Chairperson. Mr Chairperson, at this stage I'm calling Tamsanqa Duma.
CHAIRPERSON: Mr Duma, which language would you like to use?
MR DUMA: English.
CHAIRPERSON: Thank you.
TAMSANQA DUMA: (sworn states)
EXAMINATION BY MR MBANDAZAYO: Thank you, Mr Chairperson.
Mr Duma, the affidavit which is in front of you is also before this Committee ...[intervention]
ADV DE JAGER: Before you start - Mr Duma, do you realise that the evidence that you may be giving in this matter may implicate you in a criminal matter?
MR DUMA: I understand.
ADV DE JAGER: Are you notwithstanding that prepared to give evidence even if this may lead to your conviction later?
MR DUMA: Okay. Can you repeat your question, Sir?
ADV DE JAGER: I only want to make you aware of it that I don't all that you are going to say in this matter but it may be that this may implicate you in the committing of a criminal offence and that it may lead even to your prosecution at a later stage. Whether you're aware of it and whether you're, notwithstanding that you are prepared to give evidence.
MR DUMA: I'm not aware of the prosecution but what can I say is that I am prepared to give evidence as I have given the instructions.
ADV DE JAGER: Alright.
MR MBANDAZAYO: Thank you, Mr Chairperson.
The affidavit which is in front of you is also before this Committee. Do you confirm that this affidavit was made by yourself and you abide by its contents?
MR DUMA: Yes.
MR MBANDAZAYO: Mr Duma, you were here when the applicants were giving evidence. Now can you in your own words tell the Committee what role you played in this incident regarding the killing of Mr Franciscato and also the taking away of arms, ammunition at his place?
MR DUMA: In this incident I was a local commander by the time I gave the instructions to the unit commander to go and repossess arms, of which I told him that: "For the recovery of the arms your enemy could not just hand over the arms without fighting or without resistance. You will go and kill and repossess arms otherwise it will be you and your unit, the people who will die there if you cannot do as I'm telling you". So I instructed Mabuti Biko as a commander of one of the units which I had at that time at Fort Beaufort, to go and do this mission.
ADV SANDI: Where did you say he must go?
MR DUMA: I instructed them to go at Fort Beaufort town at Alice Street.
ADV SANDI: Is that the house of Mr Franciscato?
MR DUMA: That's correct.
MR MBANDAZAYO: Can you tell the Committee what your reason was for giving such instructions?
MR DUMA: My first reason for that, on my arrival from prison in 1991, I think it was after May because I was arrested for the Terrorism Act, under the Terrorism Act and then I arrived at home at Fort Beaufort. I got that the PAC structures are not there as well as the PAC membership, it was scattered because of the situation between the PAC and the ANC. As well as our children were being chased away from the schools and our houses. Most of the house were being burnt down as well as the police forces there, they were sympathising with the ANC followers or members. And then as the first person to arrive there or as the first APLA cadre to arrive at home that year, I've taken some decisions that I'm going to build, re-build the strong party structures including the task forces, especially the task forces for the defence of the party PAC structure as well as the PAC component structures so that they can operate on the ground like any other party without being threatened. Also to carry on with the struggle.
MR MBANDAZAYO: Finally, Mr Duma, what you are telling this Committee is that what was done by the applicants was an order from yourself?
MR DUMA: That's correct.
MR MBANDAZAYO: Thank you, Mr Chairperson.
NO FURTHER QUESTIONS BY MR MBANDAZAYO
ADV SANDI: Mr Duma, where were you when you gave this instruction to Mr Biko?
MR DUMA: Pardon?
MR DUMA: When you gave the instruction to Mr Biko that the house of Mr Franciscato be attacked and arms repossessed, where were you?
MR DUMA: I was at home by the time.
ADV SANDI: Who was with you?
MR DUMA: My family was with me but by the time I gave him the instructions we were together in one room.
ADV SANDI: It was just the two of you?
MR DUMA: Yes.
ADV SANDI: Did you say to him who he should involve in this?
MR DUMA: I told him that I will arrange from the pool of APLA, which are the task forces, the forces which, I will nominate the forces which they will operate with him.
ADV SANDI: Who were those going to be?
MR DUMA: I elected four forces by the time. He elected Winile Veveza, Mzuamadoda Yengeni, Mogeti - I'm sorry, I nominated Mogeti and Winile Veveza as well as Mzuamadoda Yengeni.
ADV SANDI: Did you say when and what time they should carry out this instruction?
MR DUMA: I didn't tell him specifically but what I, according to my plans I told him the right time of starting the operation, especially around the time of five up to seven because I know most of the people at that time they are inside the houses and the others are washing themselves, others are having supper. So they don't expect anything at the time.
CHAIRPERSON: Mr Mapoma?
CROSS-EXAMINATION BY MR MAPOMA: Thank you, Chairperson.
Mr Duma, you say after you instructed Mr Biko, you said you arrange the forces with whom he was going to be involved, do you remember that?
MR DUMA: Yes.
MR MAPOMA: What do you mean by that?
MR DUMA: As I know that he, Mr Biko is a trained member of APLA, a full trained member, and he arrived alone as I requested from the high command of APLA, to get one cadre for the problem I have discovered at Fort Beaufort and they also knew that I'm also a cadre of APLA but I'm under surveillance because I'm coming out of prison under amnesty of which I didn't apply for it. I told them that I can't operate by myself and things are like that. And being a local commander taking part for the survival of the PAC at Fort Beaufort, I must get one cadres, a person whom he knows clearly the terrain of Fort Beaufort.
So they gave me one APLA cadre of which I knew that I have 17 units of the task forces which I have already built from 1991. I told that I have no problem to get the upperhand, the helping hand because the task forces are already there, so I only want one cadre so that he can command them in that operation.
MR MAPOMA: So you say you nominated these applicants together with Mogeti?
MR DUMA: Yes.
MR MAPOMA: What do you mean by saying you nominated them?
MR DUMA: I choose them from amongst many, many people, many forces I had at the time. That the best people who can go and carry on this operation are this one and this one and this one and I decided to take them.
ADV SANDI: Did they agree to that?
MR DUMA: I can say yes, because what I usually told them during their training, if the call is there it is there, no-one will say no or no-one will defy the order. If I want to see you, I want to see you. If I say I want to see you in such a place you must be there at that time I say I want you to be there. So that is why they have decided to be there at that time and then Mr Biko got them at that place.
MR MAPOMA: Are you saying you are the person who instructed them to go with Mr Biko? Do I understand you to be saying that?
MR DUMA: In all it is given that it is me because it is also I who have instructed Mr Biko to go to Mr Zukile's house so that he could get the forces, the people that are going to operate with him.
ADV SANDI: I'm sorry Mr Mapoma, I don't want unduly interrupt you.
Let us get this clear now. What you mean here is that you spoke with Veveza, you spoke with Yengeni and you spoke with Mogeti and you said: "I want you to be involved in this operation with Biko. I want you to go and attack the house of Mr Franciscato", and they agreed to that, is that what you are saying?
MR DUMA: No. I gave the orders direct to Mr Biko. I ordered them, I sent one of our comrades to make a contact that, to Mr Yengeni and Mr Veveza as well as Mogeti, that I want to meet with them in Zukile's house around three in the afternoon, knowing that at that time they will expect me to be there and then at that time I knew that I will send Mr Biko, Mr Mabuti Biko so that he can meet with them. And then as they knew that he was at Fort Beaufort by the time, because it was about a week he was there, and then he just talked to them that he wants to see them, as he told the Committee what he did by the time they met there. As he was instructed by me.
MR MAPOMA: Thank you, Mr Chair.
So you say you instructed them to be available at a particular place to meet Mr Biko?
MR DUMA: Yes.
MR MAPOMA: And you were not there to tell them that: "You guys are going to go with Mr Biko and Biko is going to be commander", that's not what you did?
MR DUMA: I was not there physically.
MR MAPOMA: So in a way Mr Biko just took them and left with them?
MR DUMA: Yes.
MR MAPOMA: And they not knowing where they were going?
MR DUMA: Definitely as a commander he was supposed to tell them. I mean the situation was depending at him as a commander, when to tell them or where to tell them.
MR MAPOMA: So you instructed Mr Biko, as you said in your evidence, that: "You go and kill in order to get weapons", do I understand you correctly?
MR DUMA: Yes, I(?) understand it.
MR MAPOMA: So the purpose, the ultimate objective was to get weapons?
MR DUMA: Yes.
MR MAPOMA: So if they managed to get weapons without necessarily killing there would be no need to kill? Is that what I understand from your instructions?
MR DUMA: If they could get weapons without the presence of the enemy, because under the PAC politics we all understand who is the enemy. We distinguish between the enemy and the people who are oppressed. So in the operation and even by the time I was training the forces, there was nothing I was telling anyone without killing the Boers because I grew up knowing that the Boers are busy with their business killing the African people for their survival, of which they were supposed to kill for our survival too.
It doesn't matter he just say: "There are the weapons in the cupboard", at the back he will call the police and if they give resistance against the police the police will shoot to kill them. So they were forced to kill so that he cannot give evidence to anyone.
MR MAPOMA: Yes, but what I want to understand correctly, Mr Duma, is whether by killing Mr Franciscato when the weapons were already discovered, Mr Biko was carrying out your order still?
MR DUMA: Yes.
MR MAPOMA: Thank you, no further questions.
NO FURTHER QUESTIONS BY MR MAPOMA
ADV SANDI: When did you know Mr Winile Veveza, when did you get to know him or of him for the first time and where was that?
MR DUMA: It was after my release during 1991.
ADV SANDI: In what context did you meet him?
MR DUMA: He came to join the PAC task force at Fort Beaufort.
ADV SANDI: And Mzuamadoda Yengeni, when and where did you meet him for the fist time?
MR DUMA: Fort Beaufort too, under the task force.
ADV SANDI: Have you ever given instructions, was it the first time that you gave instructions to be carried out by, let's start by Winile Veveza, had you given an instruction to Winile Veveza before?
MR DUMA: No, the only instructions which they got from me were just the instructions of the training but not the operative instructions.
ADV SANDI: In spite of all the problems your organisation had in Fort Beaufort, you had never given any instruction to Winile Veveza to be of assistance in solving those problems?
MR DUMA: No, because he was not one of the task force commanders because we also had, I also had by the time the task force commanders locally.
ADV SANDI: Before you said they must go and attack Mr Franciscato, had you ever given an instruction to Mzuamadoda Yengeni?
MR DUMA: No.
ADV SANDI: It was the first time?
MR DUMA: It was for the first time I nominated them, elected them to be involved in an operation.
ADV SANDI: After the attack on Mr Franciscato, did you give any further instructions to Veveza Yengeni?
MR DUMA: No.
ADV SANDI: That was the first and the last instruction you gave to these two gentlemen?
MR DUMA: Yes.
ADV SANDI: What information did you have about Mr Franciscato, why did you say they must go and attack there?
MR DUMA: After the reconnaissance by their commander, Mr Biko, he told me that there is also another place which he knows that it also has arms and that place is, should be easy for him to operate there because that area is out, a little bit out of town, close to the station which is that station also close to the river so it will be easy for their way out. And then I said to him: "You can also nominate it as a first priority".
ADV SANDI: So when Veveza and Yengeni got involved in this attack on Mr Franciscato, there had not been any direct communication between yourself and any one of them?
MR DUMA: No, they knew nothing about the operation, they were just waiting to see me and instead they saw Mr Biko.
ADV SANDI: How did you make them aware that they should expect to meet you at this place, how did you communicate that to them?
MR DUMA: As I said before, I sent one of our comrades, PAC member because we used to do so if we want to meet. I just gave the place and sent someone to the comrades that I want to see them at that place and give the time then they usually too would do the same thing.
ADV SANDI: Were you aware of the long records of previous convictions in respect of Biko and Veveza?
MR DUMA: No, I was not aware because they were under the control of their task force commanders of which they didn't come and report to us that someone was not present. Because for instance, Mr Veveza is staying a little bit far in the township, in the village, so we, he'll just usually meet with me during the time we are in the bush.
ADV SANDI: In the context of those problems you say prevailed between the PAC and the ANC in that town of Fort Beaufort, would anyone have given instructions to Biko, Veveza and Yengeni to do anything by way of being part of the solution to those problems?
MR DUMA: I can't say yes, because what I know and what I did, I was busy, ordered their commanders what to do because I knew that during that time the SDU's as well as the marshals, the so-called Amabutofenci(?), were busy making their sporadic attacks so I was busy teaching them how to react against those attacks and so on. So I really don't know what was their command to their task forces but I was very close with the task force commanders by the time.
ADV SANDI: As far as you know the policy of your organisation, what is the position regarding persons with long records of criminal convictions? What is the attitude about such people?
MR DUMA: We don't recognise them as the freedom fighters although we understand that we regard them at the ...[indistinct] but we don't agree with them to do such acts of theft and rapes and so on.
ADV SANDI: Is that to say that your organisation would somehow find itself embarrassed to be associated with such people?
MR DUMA: Yes, but if someone has joined the PAC, even if the PAC who was recruiting that person was fully aware or is being aware that the person is like this but he, one thing we understand is that a person can reform if there's someone who can show him the right way and he also accepts that this is the right way which the person is busy recruiting him for.
ADV SANDI: If a member of a task force who I'm sure you'll agree, is involved in sensitive operations, if that person disappears for a number of months, is that something that would cause a raising of eyebrows as far your commanders would be concerned? Would that be a matter of concern?
MR DUMA: I think we have rules under the problem of the people who defy the rules of the APLA task forces.
ADV SANDI: I'm not - sorry, I'm not talking about defying, I'm talking about a person simply disappearing, would that be a matter of concern to you?
MR DUMA: Yes.
ADV SANDI: Thank you, Mr Duma.
ADV DE JAGER: How many weapons were you handed?
MR DUMA: There were four.
ADV DE JAGER: What kind of weapons?
MR DUMA: It was a long rifle, 2.2 with two triggers and two barrels and 3 pistols.
ADV DE JAGER: No shotgun?
MR DUMA: It was a rifle, 2.2 and three pistols.
ADV DE JAGER: Were you handed money on that day?
MR DUMA: The following day.
ADV DE JAGER: The following day. How much?
MR DUMA: It was not too much, I think round about
R1000, 3 or 4.
ADV DE JAGER: Round about R1 300,00 or R1 400,00. For what purpose was this money?
MR DUMA: They told me that they have money ...[intervention]
ADV DE JAGER: Who told you that?
MR DUMA: Mzuamadoda, the youngest one, Yengeni. Of which the money was with him and then he said he wants to hand over this money to me and I said: "No, no problem you can hand over the money".
ADV DE JAGER: Did he tell you where he got the money from?
MR DUMA: He didn't inform me.
ADV DE JAGER: Didn't you suspect that he got the money from Mr Franciscato?
MR DUMA: By the way I was thinking.
ADV DE JAGER: Did you think he got the money from Mr Franciscato?
MR DUMA: Yes.
ADV DE JAGER: Did you give any instructions about taking money from Mr Franciscato?
MR DUMA: No, but I was not against that because I knew that we didn't have money and if the fighters are in the operation and they got money, it is good for them to grab that money so that we can sustain the armed struggle.
ADV DE JAGER: And did you ask him whether he's handing over all the money that he'd taken or didn't you ask him?
MR DUMA: I didn't ask them, money.
ADV DE JAGER: So maybe he'd taken R10 000,00 and he's only handing R1 000,00 to you, you wouldn't know?
MR DUMA: Yes.
ADV DE JAGER: On going to Mr Franciscato, how did you know he had weapons?
MR DUMA: Mr Biko informed me about this house of which it was not the real main target of that day but he gave me that information that there is also a house, this place.
ADV DE JAGER: What was the real main target on that day?
MR DUMA: At that day I told them that I want them to go, I want him to do this operation in town and in town I knew that there are people who used to be in front of a museum in Durban Street at Fort Beaufort. They used to pack their cars there of which during the night they guard the museum because there are also some guns and so on there.
And from there, if those people are there, definitely the station wagon car which will be packed under the tree, that is the very car which it had a lot of weapons and in the same Durban Street there is a house next to Savoy. I know the guy is working at Ellerines and he's a soldier, he's a part-time soldier and he has a lot of weapons because someone was working there in the garden and he bring the information and he went there looking for a job deliberately so that he can collect the information I was looking for. And then he gave me this information that no, there's another house because his mother was working there.
So in his reconnaissance he has discovered that that house it will be the first easy target for him, so I gave him that house as a first priority.
ADV DE JAGER: And why didn't you give him further orders later on? You've testified that was the only mission he had been ordered to carry out.
MR DUMA: There were so many operations of course for that night but things were not well after he came back to me.
ADV DE JAGER: But the following day?
MR DUMA: The following day already the police were busy investigating, so many police and detectives cars, so I stopped them to carry on.
ADV DE JAGER: And after a few weeks?
MR DUMA: After a few weeks according to the information which I got from other forces in the township, that the people are suspicious of Mr Biko. I knew that there's something wrong concerning that operation and then I decided to take him out of the town.
ADV DE JAGER: You really needed these weapons, according to your affidavit, to protect yourself against the ANC?
MR DUMA: I needed those weapons urgently to carry our struggle forward, the armed struggle, as APLA was waging the armed struggle by the time, as well as the protection of the PAC members at Fort Beaufort because I knew that I will give the weapons to the commanders of the task forces so that they could arm themselves as well as the task forces to gain a certain portion of that township so that it can be the side of the PAC as the ANC was nearly taking the whole township under their control. So they were supposed to fight back with firearms because the ANC was shooting.
ADV DE JAGER: Did they kill any of your people?
MR DUMA: Yes, they killed.
ADV DE JAGER: Did you give any weapon to Mr Veveza that afternoon?
MR DUMA: No.
ADV DE JAGER: Did you leave any weapons with Mr Biko, Mabuti? The other one, what is his name?
MR DUMA: Yengeni.
ADV DE JAGER: Zukile Biko, did you give him any weapons?
MR DUMA: No, but I understand he should have a weapon because he was one of the task force commandos, commanders there.
ADV DE JAGER: What happened to the weapons that got from Mr Franciscato?
MR DUMA: I took the weapons to Transkei for a change so that I can get another weapons.
ADV DE JAGER: And you say you didn't have any - there wasn't any shotgun with those weapons?
MR DUMA: Yes, because they gave me three pistols and a rifle, 2.2.
ADV SANDI: How were they to launch the attack at Durban Street with bayonets?
MR DUMA: By the way their commander had explained to me about that house, I've seen that there was no use of handing over maybe two or three pistols to him. I just gave him one .38 because he told me that maybe he will get that guy alone or if they are two they are not a problem.
ADV SANDI: You say there were many places to be attacked that evening, did you say that?
MR DUMA: Yes.
ADV SANDI: Who knew about such places?
MR DUMA: It was our comrades in the township who were busy collecting the information which I trained them to go and collect in town.
ADV SANDI: Had Biko, Veveza and Yengeni been briefed about such possible targets?
MR DUMA: No, because by the time I was believing in one thing, that I can't tell you of the operation of which I don't know what would you think thereafter. I can tell about the operation and then thereafter I can't get hold of you and then the operation will carry on. After that the information will leak because the operation just carried and you was not there and then you'll talk about that operation.
ADV SANDI: Did you hear that Veveza and Yengeni say, as far as they were concerned this was just one of those walks to town with Biko?
MR DUMA: Yes.
ADV SANDI: Do you have anything to say about that, do you have any comment? Why was that if they were going to be involved in this attack at the house of Cat?
MR DUMA: It was good for them not to understand where to because their commander knew where were they going to, that is why he told them on the way that: "We are going to do this and this and this".
ADV SANDI: He actually told them at the gate in front of the house.
MR DUMA: Yes.
ADV SANDI: Not even on the way.
MR DUMA: As I've said before it depends to the commander to tell you at what time or where. They must just listen from him and execute the orders.
ADV SANDI: If you required these weapons in order to be able to defend your members against the ANC aggression, why was it necessary then to kill Mr Franciscato?
MR DUMA: For the duty of that Mr Biko as a APLA cadre, not a member of the task force, it was part and parcel of his duties because he knew that in his operations he must go direct to the enemy, not - the task force ...[intervention]
CHAIRPERSON: Then why didn't he just shoot like Barend Strydom, all the whites that he came across?
MR DUMA: Unfortunately we are not being trained the same and secondly we don't the same way. If you are fighting as a guerrilla you are fighting for the total
liberation of your country. You don't just come out, because if you are fighting with the enemy unconventionally, you are supposed to play safe all the time. You are not supposed to just sell yourself because he was supposed to be convicted or arrested by mistake or die by mistake.
So in the guerrilla warfare you can't just go out and shoot the people like what Barend Strydom did. That is not a guerrilla warfare.
CHAIRPERSON: How many whites did you order to be killed?
MR DUMA: If I shoot ...[intervention]
CHAIRPERSON: No, how many white people have you ordered to be killed?
MR DUMA: I cannot remember.
CHAIRPERSON: You see I have this problem, that the firearms were already acquired when Mr Franciscato was killed. What was the purpose of killing him when you already acquired possession of the firearms?
MR DUMA: As I've said before he was right because I told him that I don't want anything after the operation which will come or become, cause the follow-up of the forces who were operating there. He must make it a point that there is no information which will come out.
ADV SANDI: How many times have you given an order that a white person be killed, if you can remember the number of white people who were killed as the result of instructions and orders from you?
MR DUMA: I can't remember because there are so many.
ADV SANDI: 10, 20, 30, 40?
MR DUMA: I can't count because I was not concerned about that.
ADV SANDI: How many times have you given orders that other black people be killed as the result of organisational political conflicts? Due to that conflict that was taking place in Fort Beaufort between the PAC and ANC, how many times did you give instructions that some people be killed?
MR DUMA: It was for the first time at Fort Beaufort because our political struggle was not direct to the oppressed people, it doesn't matter if we differ ideologically. But it was for the first time at Fort Beaufort. And I've been given those order at last because they didn't want to speak with us or to talk to us and they went far until they burnt my house of which I think by the time you was defending them, if I'm not mistaken ...[intervention] ...[inaudible]
ADV SANDI: That was not me, that was my brother, sorry.
MR DUMA: ...[inaudible]
ADV SANDI: Sorry, I didn't follow you. How many people did you say were killed there as the result of orders issued by you?
MR DUMA: At Fort Beaufort? For that first day they burnt our houses down, my house, two of them died in front of my house.
ADV SANDI: In your affidavit you say when you released
from prison you learnt that there was this conflict between the two organisations, what was your first step to try and have this conflict resolved?
MR DUMA: I tried - in the first place, I tried to go to Nibiba(?) High School and ...[intervention]
ADV SANDI: Very briefly Mr Duma, because this is not really relevant.
MR DUMA: I tried to meet with the ANC people, and we met in another primary school. We tried to talk about this with the involvement of Nonabo Bongo(?). It was the MK cadre.
ADV SANDI: You tried peaceful means.
MR DUMA: Yes.
ADV SANDI: Thank you ...[indistinct].
MR DUMA: But from that night they, instead things were worse during the evening of that night. From there they made some petitions, went to the police requesting to drive the PAC members of the towns. They were not allowed even to go and buy in the shops. Even the shop owners, they didn't want to sell their food to the PAC members. They ask you first where do you belong and so on. Chasing the people out schools. That's where I changed my attitude. I've decided that I'm not going to talk again because they were being chased in front of the principal and instead the principal, later on we went to him, he doesn't want to listen to the PAC, instead he took the people of the ANC inside the school and took other teachers who were belonging to the PAC out of the yard of this school. And I talked to them, I said to them: "I have a solution about this".
And by the time Mr du Plessis - du Plessis was a Colonel at Fort Beaufort Police Station, he was aware of this and I also informed by the time he asked me about this and he told us that they will look after us and so on. I told him we don't want their defence, we are going to defend ourselves. That's where all things went worse.
ADV SANDI: Who is Mbulelo Dlamini, do you know?
MR DUMA: Yes, I know him. He was one of APLA cadres who was stationed in Transkei by the time.
ADV SANDI: Did he ever give any orders to the applicants?
MR DUMA: No, he just arrived to me and telling me about the request I made from the high command that he brought Mr Biko to me as the person who knows clearly the Fort Beaufort area.
ADV SANDI: Was that Bulelo Dlamini in a position to give orders to you?
MR DUMA: Yes, because he was in a higher rank than I.
ADV SANDI: Thank you.
CHAIRPERSON: ...[inaudible]
MR MBANDAZAYO: ...[indistinct] stand down.
WITNESS EXCUSED
MR MBANDAZAYO: Mr Chairman, my last person to be called, last witness for the applicants is Sipho Bulelani Xyma, the former Deputy Director of Operations and Director of Special Operations in APLA.
CHAIRPERSON: ...[inaudible]
MR MBANDAZAYO: Sipho Bulelani Xyma, the former Deputy Director of Operations in APLA and he was also a Director of Special Operations then in APLA.
CHAIRPERSON: For what purpose would he be called?
MR MBANDAZAYO: Mr Chairman, firstly the other point would be the question of Dlamini, to tell the Committee who is Dlamini and also to tell the Committee about the structure in operational capacity of APLA, how they were operating.
CHAIRPERSON: How relevant is that here?
MR MBANDAZAYO: Mr Chairman, it's relevant in the sense that to put the case of the applicants in its proper perspective as how they operated, as it was questioned here, the way they were operating and relation between task force and APLA, what were the duties of the task force and what in relation to APLA.
CHAIRPERSON: Yes, but is it going to take the case any further?
MR MBANDAZAYO: Yes, Mr Chairman.
CHAIRPERSON: ...[inaudible]
MR MBANDAZAYO: Mr Chairman, if - the Committee can rule if they see that there is no need for it.
CHAIRPERSON: I want you to tell me how is the calling of that witness and the evidence he's likely to give going to enhance the application.
MR MBANDAZAYO: Mr Chairman, as I already indicated that they have been questions, there has been questions about the way they operated and that we want to put that in its proper perspective, as to whether what they did was within the operational formwork of APLA. That's what we want to establish here, the Committee to have a clear picture of how APLA, whether what they did was outside the scope of APLA and the task forces which were formed by APLA.
CHAIRPERSON: We'll take a five minute break.
ADV DE JAGER: If that is so why isn't he here to give the evidence.
MR MBANDAZAYO: He's here Mr Chairman, that's why I'm calling him.
ADV DE JAGER: Oh, he's present here?
MR MBANDAZAYO: Yes, Mr Chairman, he has been mentioned, in many applications he has been mentioned. In almost all the applications of APLA his name has come up.
CHAIRPERSON: We'll take a five minute break.
COMMITTEE ADJOURNS
ON RESUMPTION
MR MBANDAZAYO: Thank you, Mr Chairperson.
CHAIRPERSON: What are his names?
MR MBANDAZAYO: Sipho Bulelani Xyma.
CHAIRPERSON: Mr Xyma, what language would you prefer to use?
MR XYMA: Come again.
CHAIRPERSON: Which language would you prefer to use?
MR XYMA: Okay, let's try English.
CHAIRPERSON: No, which would you be comfortable with?
MR XYMA: Ja, no, I'm saying let's try English. I will be comfortable.
SIPHO BULELANI XYMA: (sworn states)
EXAMINATION BY MR MBANDAZAYO: Mr Xyma, can you tell the Committee just for the record purposes, what was your rank in APLA before there was an integration of APLA to the South African National Defence Force?
MR XYMA: Thank you, Mr Mbandazayo. I was the Deputy Director of Operations, second in command to Leklapa Mpashlele and also the Head of Special Operations, appointed by the late comrade Sabelo Pama.
MR MBANDAZAYO: Now firstly before we come to this incident regarding this matter, can you just for the benefit of the Committee tell the Committee about the
structure of APLA, how it was composed and down to the foot soldiers?
MR XYMA: Thank you. In the first place it would be very difficult to, for other people but I'll try to explain. In APLA - APLA was established inside the country in the form of smaller units of Poko(?) task forces. There was no command structure as such by that time until we went outside where we formed APLA in 1967. We had the High Command. Behind the High Command we had regional commanders. The regional commanders consisted then of the four provinces, the Transvaal, the Free State and the Cape Province and below that we had area commanders.
When talking of area commanders I'm referring to the magisterial districts as the case with Fort Beaufort, and we've got the units on the ground. I don't know whether you are covered.
MR MBANDAZAYO: Now if we can just be specific between the area period 1990 to 1994 up until the time of the suspension of the armed struggle, if you can just for the benefit of the Committee tell how the command, how was the command, how were the instructions given, the orders regarding operations.
MR XYMA: Ja. In answering that question I'll give an example. When I infiltrated the country through Swaziland I had no gun, no direct targets inside the country as to where you are going to attack. My brief was that I'm coming inside the country. When I arrived at home I was given contacts in many different areas. So as I've said, my brief was that I am trained politically, I'm trained militarily so I knew what to do on the ground when I entered the country.
So I was not given specific targets as to, as it is the case in conventional warfare where if I'm going to attack in Port Elizabeth I'll be given a target, I'll be given a map and so on. So whatever thing I'm going to do I'll depend on the map. In our case you'll simply go inside the country, you'll decide for yourself what target to attack, where and when to attack that target.
MR MBANDAZAYO: Is it your evidence in this court that the cadres were trained to take their initiative and to be able to seek and identify the targets on their own?
MR XYMA: Yes, that is correct, Sir.
MR MBANDAZAYO: In what instances where the order will come from the top?
MR XYMA: As I've given the structure before, that we had unit commanders and we have got area commanders. At times - I mean let me put it this way, an area commander will give an order specifically to the unit commander and there were no - you know in the conventional arrangement before any attack there should be order group arrangement where the orders will be given to the entire unit, but in the case of a guerrilla unit there are not those order group arrangements. You simply deal with the commander and arrange, and give him orders. The other unit members will not know what is going to happen for just to secure and protect the information because it can leak and the entire unit get arrested before the operation could take place.
MR MBANDAZAYO: Let me put it this way. There have been instances, and if I'm not mistaken in very APLA application with the exception of this one, your name has been mentioned. In all, St James, Golf Club, Eikenhof and all this. In what instances where an order comes from the top where it has been said that you have sanctioned those operations, where it comes from the top, an order comes from the top, from the Director of Operations or from yourself as a deputy.
MR XYMA: Can you repeat your question again?
MR MBANDAZAYO: Let me put it this way. There are instances, if I may quote it: (1) Eikenhof incident.
MR XYMA: Yes.
MR MBANDAZAYO: Where it has been alleged that - it has been confirmed that you ordered the Eikenhof incident and also you were involved in Heidelberg Tavern, you ordered it and also you supplied arms. Also at St James your name has been mentioned many, in almost in every application of APLA on all the major incidents. What happens in those incidents where an order comes from the top, from yourself where you've given approval that an operation should be carried out?
CHAIRPERSON: In other words, how does it get down to the bottom, to the activist?
MR XYMA: Okay. Though it's very difficult to answer this question but I'll try to answer it to your satisfaction.
Let me take for instance the question of Eikenhof. In the Eikenhof I deployed Pila Dolo in the Vaal. Pila Dolo was a regional commander there and before he left for the Vaal I gave him orders to go to the Vaal to conduct the operations and there was no specific operation that was given to Dolo to execute in the Vaal. So he was there to look for targets and to make plans on his own without getting any further instructions from myself.
So the only thing I did there was to supply Dolo with weapons. It was to supply Dolo with weapons and everything he was going to be, anything that could be used for that operation was to be taken or to be taken from the masses on the ground. He was going to work with the masses on the ground. It don't know whether it is that clear.
CHAIRPERSON: In other words, you would give a general instruction and the operation would be determined as those people on the ground deemed it able and fit?
MR XYMA: Come again?
CHAIRPERSON: You would give a general order and it will come down and they will execute the order as they think fit and as circumstances allow.
MR XYMA: Yes, that is correct. We were just giving broad guidelines as to: "No, you go to your certain place".
MR MBANDAZAYO: Just for the sake of ...[indistinct] let me come to almost home, to this incident. Let me first ask you, do you know Mbulelo Dlamini?
MR XYMA: Yes, I know Mbulelo Dlamini. Mbulelo Dlamini we used to call him Hlogoza or Madoda. He was the National Assistant Director in training department. He died in combat in Port Elizabeth, no, no, in Port St Johns in 1994 in a skirmish between APLA fighting the TT, ja it was a TTF/MK joint operation. There was a problem between TTF and APLA, so MK joined forces with TTF.
ADV DE JAGER: Sorry, when was that? When did he die?
MR XYMA: Pardon?
ADV DE JAGER: When did he die, 19?
MR XYMA: He died in 1994.
ADV DE JAGER: '84?
MR XYMA: 1994.
ADV DE JAGER: Oh, '94, okay.
MR XYMA: Yes.
MR MBANDAZAYO: Now Mr Xyma, you listened to the applicants and what happened at Fort Beaufort at Mr Franciscato's house and you heard what they did. Can you comment whether what happened on the day was in line with your guidelines from APLA and also tell the Committee what was the relation between APLA and the task forces.
MR XYMA: Ja, the Fort Beaufort attack, as far as I'm concerned, was in line with the APLA strategy. Fist of all let me give this task force thing.
Task force as it was, it was APLA auxiliary force. Its briefing mandate was to defend the party internally and at times it was given extra duties like defending the party and we also using it in intelligence gathering. Because as you are aware there is no organisation or any institution that can function and survive without intelligence and security.
So it was very difficult at the time to use externally trained cadres to come and protect the party. Then it developed to be APLA recruitment pool and later directly involved in combat.
Another thing that I want to stress here is that the strategy of APLA was basically a liberation war. What we referred to as the PAC and APLA as people's war. And that people's war was based on the premise that ours is the struggle of the people as a whole, of the oppressed.
I can say people's war is the involvement of the people in every front to wage the struggle, to destroy the settler regime. So I want to also answer that question of using the ...[indistinct]. I think when we deal with the question of crime, whether to take these comrades as criminals or whatever, you must first of all take into account the structural causes including the socio-economic causes that can force one to become involved in those acts before.
But when we recruit them we recruit them consciously because we were quite aware that they were used to, they were used in combat or let me put it, ja, in combat, whatever and they were brave and courageous. I firmly believe they were the part and parcel of the oppressed community of this country. So they had a right to fight for the liberation of the people of South Africa.
MR MBANDAZAYO: Thank you, Mr Chairman.
NO FURTHER QUESTIONS BY MR MBANDAZAYO
CHAIRPERSON: Mr Mapoma, have you got any questions?
MR MAPOMA: No questions, Chairperson, thank you.
NO QUESTIONS BY MR MAPOMA
ADV DE JAGER: Did Mr Duma hand you any money received from these operations?
MR XYMA: Come again, Sir?
ADV DE JAGER: Did Mr Duma hand over any money to you received from these operations?
MR XYMA: Normally when a repossession operation is carried out the money was taken to our headquarters in Umtata and handed over directly to the front HQ administrator, the late comrade Mandla Djikilala(?). So I should think - I must put it on record that that money was handed over to comrade Mandla.
ADV DE JAGER: Thank you.
CHAIRPERSON: Yes, thank you, you are excused.
WITNESS EXCUSED
MR MBANDAZAYO: Thank you, Mr Chairman, that is the applicants' case.
CHAIRPERSON: Have you got anymore witnesses?
MR MBANDAZAYO: None, Mr Chairman, that's the applicants position.
CHAIRPERSON: Have you got anything to add to what you've already said?
MR MBANDAZAYO: Not at this stage, Mr Chairman.
CHAIRPERSON: Have you got any further submissions to make?
MR MBANDAZAYO: Mr Chairperson, I'm not sure about, unless Mr Chairperson can through some light as to what that entails. Maybe I'm a little bit out when it comes to that. What normally happens is that after we have closed the applicants' case if maybe the Leader of Evidence has anything.
CHAIRPERSON: You're for the applicants. We are not a court of law, we are a Commission. We are not married to certain rules and practices of court. You're not compelled to make any submissions if you don't want to, if you feel satisfied we've been given everything that you can possibly give. You can lay it rest there. If you want to make certain submissions we are prepared to listen to it.
MR MBANDAZAYO: Mr Chairperson, that is why Mr Chairperson, it's not because I have quarrels with the procedure but I was taken aback. Normally what happens, if it's the view of the Committee that I have to make a closing argument in this matter ...[intervention]
CHAIRPERSON: Like I've said you're not compelled to. We're quite comfortable with either, whether you make one or not.
MR MBANDAZAYO IN ARGUMENT: Mr Chairperson, if that's the case, the only thing left with me to make is closing argument.
Mr Chairperson, Section 20 (1) of the Act provides as follows:
"If the Committee after considering an application for amnesty is satisfied that the application complies with the requirement of this Act, the act, omission or offence with the application relates is an a act associated with political objective committed in the course of conflict in the past in accordance with provision Sub-section 2 and 3, that the applicant has made full disclosure of relevant facts, it shall grant amnesty".
Mr Chairperson, I submit that the applicants have complied with the Act, Section 20 (1) and (2). That they were quite clearly acting on behalf of APLA, a publicly known political organisation and liberation movement which was engaged in a political struggle against the State at the time.
Mr Chairperson, I won't like to waste the time of this Committee. You have heard the applicants. They have told the Committee that they were given instructions to go to Mr Franciscato's house and kill Mr Franciscato and repossess arms and this instruction came from Mr Duma. Mr Duma came and told the Committee that he indeed gave those instructions and that he got those instructions in his capacity as a commander then, of APLA.
Mr Chairperson, the applicants have told this Committee their roles, their respective roles in regard to this incident. It is my humble submission that with regard to their roles they have made full and proper disclosure before this Committee.
Mr Chairperson, there is no doubt that the first applicants, Mr Biko and Veveza have previous criminal records. There is no doubt about that. And that they were related to various incidents regarding dishonesty. Mr Chairperson, with regard, there is a difference with this one. If one looks at all the incidents that they were involved in, none of them involved the taking of human life. It was the first incident where a human life was taken. ...[intervention]
ADV DE JAGER: Sorry. Are you asking for amnesty in connection with the murder? They've been found not guilty for murder.
MR MBANDAZAYO: Mr Chairperson, through Mr Chairperson, there is no way that - Mr Chairperson, I'm going to, I know that they were not found guilty of murder but there is no way that you can separate the two. Definitely if I'm arguing for the question of robbery of the arms, I cannot separate the question of the killing of Mr Franciscato from that robbery.
ADV DE JAGER: Alright. Now as far as the robbery is concerned, at Mr Franciscato's house, they've been found guilty of robber of a 410 shotgun. I've asked questions about the shotgun. This shotgun, if it's been robbed there, wasn't handed over to the, because they're speaking about one rifle and three pistols and the rifle was a .22. So did they rob a shotgun there or didn't they?
MR MBANDAZAYO: Through you, Mr Chairperson. Mr Chairperson, as you have heard the evidence of the applicants, the weapons which they robbed from Mr Franciscato, they handed over to Mr Duma. Those were the weapons which they said was .22, which Mr Chairperson, is totally different to what they have been convicted of.
ADV DE JAGER: Well, then they're not guilty of, or they are not asking for a 410 shotgun.
MR MBANDAZAYO: Mr Chairperson, it may well be the case, Mr Chairperson, that they have mentioned weapons in this Committee which they believe that they took from Mr Franciscato. It cannot be wished away. It may happen that there was - that weapon is one of the weapons which got lost, but they are saying to the Committee that: "The weapons which we took from Mr Franciscato are these". It's as well as they have been - it's alleged that they took money.
ADV DE JAGER: The trouble is that shotgun was used that very evening ...[inaudible].
INTERPRETER: The speaker's mike is not on.
ADV DE JAGER: That shotgun was used that very evening in the other attack. So it wasn't handed over.
MR MBANDAZAYO: Mr Chairperson, I've said to this Committee when this evidence was given here, it would
have been better if this case, if we were hearing it with the other case because that was not the subject of inquiry, that matter.
ADV DE JAGER: But the other case, they testified here was not on orders, they didn't relate to any political objective. That was the evidence before us.
MR MBANDAZAYO: Mr Chairperson, I wouldn't like to argue that because I have my own interpretation with regard to that.
ADV DE JAGER: Yes, okay.
MR MBANDAZAYO: That's why I've said to this Committee, I objected when this evidence relating to that, because we now we are using, because we have information before because this case was dealt simultaneously in the High Court and yet here the subject of inquiry is not related to that incident.
ADV DE JAGER: Right, but it's related to the weapons and according, they've been found guilty of robbing a 410 shotgun.
MR MBANDAZAYO: Mr Chairperson, I want to say again that they have been found guilty of that weapon but Mr Chairperson, there is no evidence. That is why I'm saying to this Committee that incident is not related here. We don't know how it comes to their possession, that 4 whatever type of a gun.
ADV DE JAGER: That is why I ...[intervention]
MR MBANDAZAYO: Whether that gun was robbed on the same day or was taken from Mr Franciscato on the same day which was used there and we don't know who took it. That is why I've said to this Committee I have a problem when evidence is, when information is being tendered regarding the second incident because we are going to have a problem with this one. If they were being dealt simultaneously I wouldn't have problems because we would also ourselves have prepared for that matter. Because there are also other people who were involved in that who are not before this Committee.
ADV DE JAGER: You see my problem is this. Suppose we grant you amnesty for three hand guns and a .22 robbed at Mr Franciscato's place, you've been found guilty, maybe wrongly, of a 410 shotgun but we're not sitting as a court of appeal, we can't alter that. So we're granting you amnesty for the robbing of four weapons of which you've not been found guilty. So it wouldn't alter your sentence.
MR MBANDAZAYO: Thank you, Mr Chairperson.
ADV DE JAGER: And that is why I'm putting this to you and that is what my problem was.
MR MBANDAZAYO: Mr Chairperson, I fully agree with you, Mr Chairperson, but also we are here to disclose as to what happened on the day in question and tell the Committee the truth. Now I don't think it will be fair to come to the Committee just because people want to get out of jail and tell the Committee a lie.
CHAIRPERSON: Can I ask you this question? The evidence before us now is that it was a .22 rifle that was stolen. If we grant them amnesty on that, will you be satisfied?
MR MBANDAZAYO: Thank you, Mr Chairperson, definitely Mr Chairperson.
CHAIRPERSON: ...[inaudible] The question then directed at you is, how does that come to the assistance of the applicants?
MR MBANDAZAYO: Thank you, Mr Chairperson ...[intervention]
CHAIRPERSON: ...[inaudible]
MR MBANDAZAYO: Yes, Mr Chairperson, I do get your point on this aspect. That is why I'm saying, Mr Chairperson, inasmuch as we are applying for amnesty with regard to this incident but also it goes to the credibility of the applicants. If for the sake of them wanting to be released by this Committee, they tell the Committee a lie because definitely if they say that when they have not - they have nothing to lose, they have been convicted, Mr Chairperson, why would they lie and say: "Look we didn't rob that firearm"? They have nothing to lose. Though they have been convicted but ...[intervention]
...[inaudible]
MR MBANDAZAYO: Can I finish? They have come to tell the Committee the truth as to what happened.
ADV DE JAGER: Ja, unless they didn't hand over the 410 shotgun and that gun was later found in the possession after the second robbery, then they didn't disclose to us that they've handed in certain weapons but they kept one and committed a second robbery with that one.
MR MBANDAZAYO: Thank you, Mr Chairperson. It may well be the case, Mr Chairperson, but my point is what were they going to lose by telling the Committee that: "We did rob also this firearm but we didn't hand it over"? If they wanted amnesty at all costs and to mislead the Committee, they have no reason not to say that: "We did also this one but we didn't hand it over"
CHAIRPERSON: What are you going to ask us to grant amnesty for, the theft of a .22 rifle, that's the evidence?
MR MBANDAZAYO: Yes, Mr Chairperson, definitely Mr Chairperson. As we are not applying for R150,00 which they stole because they said they didn't take any money and there is no reason for them not say: "We took it", if they took it. But here if they say they took it when they didn't take it because they want amnesty, they will be misleading the Committee.
CHAIRPERSON: You are aware of the problem that - it is not our problem but really the applicants' problem and your attention has been drawn to it and you are going to ask us to grant amnesty in respect of the .22, 2.2 or whatever it is, rifle.
MR MBANDAZAYO: Mr Chairperson, I want to emphasise I've said the Leader of Evidence will bear me, last week in Johannesburg we had a similar problem where the applicant did not want to do the same thing said: "I'm prepared to stay in jail if I'm not released if I'm going to say I did this when I did not do it". I was convicted of it. That is the same case, Mr Chairperson, because he told the Committee that: "I'll be misleading the Committee if I say I did it, inasmuch as I know if I say I did it, I was going to be granted amnesty as I did with the other ones but I'm not prepared to mislead the Committee because I'm here to tell the truth, I did not do this one".
ADV DE JAGER: You haven't perhaps got a copy of the judgment in this matter so that we could see on what exactly and what the evidence was that's been dealt with as far as the type of rifle that's been stolen. You see the trouble is, we're now granting you amnesty for stealing for instance, a Mercedes Benz motorcar but you've been convicted of a BMW and then you've got the problem, you've got amnesty here but you've not got amnesty for what you've been convicted for.
CHAIRPERSON: The other prospects is that both of us may be relying on the expert knowledge of people able to identify firearms when in fact they could easily be wrong. Both the people who identified it for the purpose of the criminal case and the people who identified it in this hearing. I don't know where the answer lies but it is definitely a problem.
ADV SANDI: It's a potential problem for the prison authorities as well.
MR MBANDAZAYO: Mr Chairperson, as I indicated to this Committee, I don't have a problem with the Committee. The problem you have I also have it, Mr Chairperson, because definitely when I received this document on Monday and luckily I've consulted with them on the previous week on a Saturday, when I was given instructions on a Friday that they are going to appear, and I immediately saw that there's this difference. And they insisted that the firearms they robbed were these and that's what happened. And now it's ...[indistinct] in that problem.
Definitely Mr Chairperson, what I'm saying is that the Committee will have to do what it is enjoined by the law to do. It's not their fault, it's not also our fault but if the applicants are insisting, insist as they insisted to me, I even put to them and I told them that I have a similar problem but fortunately for the guy in Johannesburg he was released despite that he was not granted amnesty in a robbery.
But what I'm saying is that the applicants are saying: "What we did is this, if we say another thing to this Committee" - it may well have the problem, as Mr Chairperson says the problem of identifying the gun but what they are saying is this gun and ...[intervention]
CHAIRPERSON: I think you've made your point and we'll act accordingly if we grant amnesty.
MR MBANDAZAYO: Thank you, Mr Chairperson. Unless the Committee raises another point they want me address it on.
CHAIRPERSON: ...[inaudible]
MR MBANDAZAYO: Thank you.
CHAIRPERSON: I'm going to take a bit of time on this matter, consider it. As you may appreciate it's not the easiest of matters. We'll give a decision as soon as we can. We are aware that the applicants are in prison and whether we grant it or not, they have an interest in the decision and we will do our best to give it as soon as possible.
We'll adjourn until tomorrow 9 o'clock sharp.
COMMITTEE ADJOURNS
