CHAIRPERSON: Mr Mbandazayo?
MR MBANDAZAYO: Thank you, Mr Chairperson. Mr Chairperson, I don't know at this stage, I'm subject to the Committee as we were waiting for the other applicant. I've managed to talk to him telephonically. He said earlier on that he was on his way.
CHAIRPERSON: Should we stand this matter down to be called later in the day? I see there is somebody approaching you, Mr Mbandazayo? I don't know if you want to have a quick word?
MR MBANDAZAYO: Yes, Mr Chairperson, if I can be given a short adjournment and if I cannot fit him immediately after this one so that we can complete this matter?
CHAIRPERSON: Yes, we'll take a short adjournment for Mr Mbandazayo to find out what the situation is relating to Mr Sapele's co-applicant. If you could just let us know as soon as possible. We'll take a short adjournment now.
COMMITTEE ADJOURNS
ON RESUMPTION
MR MBANDAZAYO: Thank you, Mr Chairperson. Just for the record, Mr Chairperson, we have managed to get Mr Masilela but Chairperson for the record I wanted to put it for record purposes, Mr Masilela is withdrawing his application for amnesty.
CHAIRPERSON: Thank you, Mr Mbandazayo.
MR MBANDAZAYO: And Mr Chairperson, what is going to happen is that he is going to give evidence on behalf of the first applicant, George Sapele, in relation to the incident of escaping and inasfar as his role regarding Mr Sapele.
CHAIRPERSON: Yes, thank you. So he is withdrawing the application in relation to this incident, the escape?
MR MBANDAZAYO: Yes, Mr Chairperson, he has applied for two incidents. Yes, he's withdrawing his application in regard to all those applications.
CHAIRPERSON: Oh, with regard to all of them?
MR MBANDAZAYO: Yes, Mr Chairperson.
CHAIRPERSON: Thank you.
CHAIRPERSON: Mr Masilela, do you wish to take the oath or do you wish to make an affirmation of the truth?
BOROWSKY MASILELA: (affirms and states)
CHAIRPERSON: Mr Mbandazayo?
EXAMINATION BY MR MBANDAZAYO: Thank you, Mr Chairperson.
Mr Masilela, is it correct that you were a former member of APLA?
MR MASILELA: That is correct.
MR MBANDAZAYO: And during 1990 you were in prison in Krugersdorp as a result of your activities as a member of APLA?
MR MASILELA: That is correct.
MR MBANDAZAYO: Mr Masilela, Mr Sapele testified before this Committee that he met you in Krugersdorp Prison in January 1990, and you recruited him to PAC, in fact to join APLA outside the country to undergo training. Can you tell the Committee in your own words what happened?
MR MASILELA: When I was in Krugersdorp Prison I met several people who were arrested, what you would call criminal offences and I kept discussing APLA activities with them and informing them about what APLA was doing, indicating to them what the principles of APLA and what it is that we were fighting for.
I indicated to them that they had to rid themselves of their patterns of thinking, they should come together with us so that we could work hand-in-hand to return the country to its rightful owners.
I then also spoke among others, to Sapele who showed interest so that this ultimately led to us planning as to how we were going to escape from prison. And there were also other members of the "Airforce" who were interested. We discussed and planned our escape from prison. Yes, indeed others were successful in fleeing but myself and Sapele were unfortunately arrested ...[end of tape]
MR MBANDAZAYO: Mr Sapele participated in escaping from prison because you recruited him and also at your instance?
MR MASILELA: Yes, that is correct, he took the decision to flee from prison because I had spoken to him about APLA, briefing him and indicating to him that I am not prepared to serve the sentence because the sentence was passed on me by the then South African Government and my intention was to flee from the prison and go back to Zimbabwe.
MR MBANDAZAYO: Can you tell the Committee - he also told the Committee that as a result of your escape, one prison warder was killed and also that a certain amount of money was robbed in the reception, also at your instance, can you tell the Committee, enlighten the Committee as to what happened during the, how the prison warder died and also how the money was robbed in the reception.
MR MASILELA: The warder had opened the gates for visitors. Our plan was to apprehend the police, rob him of the keys so that we could gain access to the outside. It so happened that when we were apprehending him he was fighting back and ended up being beaten.
It was only after we were arrested that we learnt that he had died. It was not our intention to kill him. You can also see from the Court records that it was discovered that the warder could not be said to have been killed by a particular person, but he just happened to die during the process.
It was not necessarily our plan to rob them of the money at the reception but if it so happened that the money was available, we would obviously lay our hands on it so that it could be of use to us during our travel. That's how it happened.
MR MBANDAZAYO: And also you confirmed that the taking of the money from, the robbing of the money from - I use that word, at the reception, was also at your instance?
MR MASILELA: Yes, I did say that if we get to the reception area and we realise that there is money we should take the money to make use of it for travelling because our plans were that, we had planned that some people should come and abduct us from the prison but those plans had failed, that is why we had to get hold of the money.
MR MBANDAZAYO: Thank you, Mr Chairperson, that is all at this stage.
NO FURTHER QUESTIONS BY MR MBANDAZAYO
CHAIRPERSON: Thank you, Mr Mbandazayo. Mr Mpshe, do you have any questions to ask the witness?
ADV MPSHE: Mr Chair, I don't have questions, thank you.
NO QUESTIONS BY ADV MPSHE
CHAIRPERSON: Advocate Bosman, do you have any questions to ask the witness?
ADV BOSMAN: At what stage did you talk about the money for the first time, Mr Masilela?
MR MASILELA: It was on the very same day that we fled.
ADV BOSMAN: Was this before you reached the reception?
MR MASILELA: That is correct.
ADV BOSMAN: Did you instruct any particular person to take the money?
MR MASILELA: I instructed George because he was the one person with whom I was to flee. He is the one who showed enthusiasm in fleeing.
ADV BOSMAN: If you say he was the one that showed enthusiasm to flee'd, do you mean the one who was eager to get out of prison or do you mean more than that?
MR MASILELA: As I have indicated before, he was enthusiastic about joining APLA.
ADV BOSMAN: And the other people, why did they escape? Were they not enthusiastic in joining APLA?
MR MASILELA: I had already conscientised a large number of them about the PAC and APLA. Yes, it is true, some of them were fleeing for their own personal reasons but George was one person who stood out among them.
ADV BOSMAN: Had you briefed him fully about APLA before the escape?
MR MASILELA: Yes, I had briefed him broadly that we were instructed to form APLA cells in South Africa.
ADV BOSMAN: Did you brief him fully on what APLA stood for?
MR MASILELA: Yes, I did.
ADV BOSMAN: The money that was taken, was any of the money ever handed to you?
MR MASILELA: No.
ADV BOSMAN: Why not, Mr Masilela, you were the commander, you had instructed him to take the money, certainly not for himself?
MR MASILELA: It should be remembered that when we escaped from prison we did not on arriving outside the prison relax, we instead struggled to try and evade being re-arrested and surely there was no time for me to say at that moment that they should give me the money there and then.
ADV BOSMAN: Thank you, Chairman.
CHAIRPERSON: Thank you. Advocate Motata, do you have any questions to ask the witness?
ADV MOTATA: I've got none, Chairperson.
CHAIRPERSON: Thank you. Mr Mbandazayo, do you have any questions arising out of questions that have been put by the Panel?
MR MBANDAZAYO: None, Mr Chairperson.
CHAIRPERSON: Mr Mpshe?
ADV MPSHE: No, Mr Chairman, nothing, thank you.
CHAIRPERSON: Thank you, Mr Masilela, that concludes your testimony, you may stand down.
WITNESS EXCUSED
CHAIRPERSON: Mr Mbandazayo?
MR MBANDAZAYO: That concludes, Mr Chairperson, the evidence for the applicant.
CHAIRPERSON: Mr Mpshe?
ADV MPSHE: No witness to lead, Mr Chairman, that concludes the evidence as well.
CHAIRPERSON: Thank you. Mr Mbandazayo, are you in a position to argue now or do you wish ...?
MR MBANDAZAYO: Mr Chairperson, I think I'm in a position now. I will do my best so that we conclude this.
CHAIRPERSON: Thank you, Mr Mbandazayo. Mr Mpshe, are you in a position to argue?
ADV MPSHE: I am, Mr Chairman, thank you.
CHAIRPERSON: Thank you.
MR MBANDAZAYO IN ARGUMENT: Thank you, Mr Chairperson. Mr Chairperson, I would not go through the provisions of Section 20(1) and (2), as it is well-known to this Committee.
Mr Chairperson, the applicant in this matter has testified before this Committee and told the Committee that he was a supporter of the Pan Africanist Congress, he was recruited by Mr Masilela and that he committed the offence, that is that of escaping from prison and that of robbery in prison at the instance of Mr Masilela who was a member of APLA and as such a member of the Pan Africanist Congress of Azania, which is a known political organisation in this country, who at the time was fighting for the liberation of the African people.
As such, Mr Sapele acted on the instruction of Mr Masilela who also testified and confirmed that, that he recruited many people in prison, he was conscientising them, trying to convince them to dissuade from what he termed as criminal activities and join them in the liberation of the African people, and that Mr Sapele was the person who was so enthusiastic about joining APLA. And as a result thereof they arranged that they escape from prison to go to Zimbabwe and that also Mr Sapele to undergo training.
Mr Chairperson, it is therefore my submission that the applicant has complied with the requirements of Section 20(1) and also (2), that at the time he was quite acting on behalf of APLA at the time, which as I indicated was a publicly known political organisation which was engaged in the political struggle. And that when he acted he did not act for personal gain nor out of malice but he bona fide acted on behalf of his organisation, which was PAC.
Mr Chairperson, Mr Sapele, one would argue that at the time he joined APLA and that is was only Mr Masilela who was a fully fledged member of APLA at the time, and Mr Masilela was in prison for that reason, being a member of APLA a what Mr Masilela did in prison was in continuation of his struggle to fight against the regime at the time.
Mr Chairperson, my argument is that Mr Sapele was in prison for criminal activities and he does not deny that and he does not deny that at the instance of Mr Masilela as he was serving his prison sentence, he was recruited by him. At the time he acted and tried to escape from prison and committed robbery, he no longer involved in criminal activities. At that time he acted as a member, as a supporter of PAC and an aspirant member of APLA, as what he did was trying to join APLA outside.
And as such what he did in that particular time, trying to escape from prison and the robbing of the money, the money which was going to be used as a mode of transport to their destination, which is they were going to Zimbabwe, they wanted to leave the country so they wanted money and that money was to be used in pursuance of that objective, that one of being part of the liberation struggle.
And it is therefore my humble submission, Mr Chairperson, that the applicant has fulfilled the requirements of the Act and that he has made full disclosure with regard to his activities on the day in question and as he has been conferred to by Mr Masilela. As such it is my humble request that this Committee should grant amnesty to Mr Sapele as applied unless the Committee wants me to address it on a specific point, Mr Chairperson.
CHAIRPERSON: Thank you, Mr Mbandazayo. Mr Mpshe?
ADV MPSHE IN ARGUMENT: Thank you, Mr Chairman, Members of the Committee.
Mr Chairman, it is so interesting that my learned friend is trying to cloth the applicant, Mr Sapele, with clothes that he never had, the clothing of a political organisation. Mr Chairman, I will just respond to what my learned friend has said, that will be my argument.
My learned friend has correctly used the word "aspirant member", that is a very important word. In other words, if we have analyse the word "aspirant member", it means he was aspiring to become one, he was not one at that time when this robbery was committed.
Mr Chairman, even if it can be said that what Mr Sapele did he did under the instruction, as it was said he acted at the instance of Mr Masilela, Mr Chairman, the TRC Act knows no general amnesty or amnesty for a group of persons, it makes mention of individuals for specific offences. It cannot be said that if Mr Masilela was an activist, which I do not dispute, and whatever he did can also be imputed onto Mr Sapele, that is untenable, completely untenable.
Mr Chairman, it has been stated to you and the Honourable Members of the Committee, that the offence committed by Mr Sapele whilst in prison, was in the interest of PAC. One wonders as to what would PAC stand to gain by a person escaping out of jail. That really brings a very big question mark.
Inasfar as the money is concerned, I don't see how it can be clothed with any political motive or motivation. The evidence is very clear from both Mr Masilela as well as Mr Sapele that the money was for personal use and thus it cannot be said that it was intended to be in the interest of the PAC.
Mr Chairman, with the greatest of respect, I fail to understand how my learned friend could be so ambitious to cloth Mr Sapele with the provisions of the ACT. And I want to move that no amnesty has been - no successful application for amnesty in this regard has been done. Thank you.
CHAIRPERSON: Thank you. Mr Mbandazayo, do you have a reply?
MR MBANDAZAYO IN FURTHER ARGUMENT: Thank you, Mr Chairperson, just briefly.
Mr Chairperson, I don't think it is denied, as I indicated I use the word "aspirant member of APLA", it's not denied that he was a supporter of PAC, which is also one of the requirements of the Act. He was a supporter, there's no dispute about that. A supporter in terms of the Act can apply for amnesty and that is what we are saying, that he was a supporter of PAC at the time and that was also his evidence, but an aspirant member of APLA ...(intervention)
CHAIRPERSON: But didn't he also say that he didn't have any idea as to what PAC stood for? So he was a supporter of a movement that he didn't know anything about.
MR MBANDAZAYO: Yes, Mr Chairperson. Mr Chairperson, I agree with you that he has said that he did not know but he indicated that he was told that he is going to fight for the liberation of the African people. That is what he knew broadly, but not detailed what PAC stood for ...(intervention)
CHAIRPERSON: No, I'm not talking about after he spoke to Mr Masilela, but he also said that he was for a long time a supporter of the PAC, while he was in prison. Because if one takes a look at his record, most of his recent past in prison, but he said he was a long time supporter of PAC, even before he met Mr Masilela. He also said he didn't know what it stands for.
MR MBANDAZAYO: Yes, Mr Chairperson, I agree with you, Mr Chairperson, he has said that. One, Mr Chairperson, I wouldn't like to go to that argument as to what supporters should know and what they should not know. I will leave it to the Committee. But my position is that he has indicated that he was a supporter of the PAC at the time.
Also Mr Chairperson, one other aspect which has been raised by my learned friend, the question of that if the Committee accepts that he was a supporter then automatically what he did there was part and parcel of his conviction that he wanted to be a member of APLA.
Now my point comes to the question of money, how the money was going to used, Mr Chairperson. Mr Chairperson, I find a difficulty how he would isolate the question of taking of money and being a member of APLA, which is in regard to Mr Masilela and also supporter. People were in jail, Mr Chairperson, and they wanted money to be used as a means of transport to get to their destination, which is going back to the liberation struggle.
CHAIRPERSON: You are saying that the taking of money was integral part of the escape plan? To escape physically out of the walls might be futile unless you had cash to hop into a taxi or onto a train and get out of the place?
MR MBANDAZAYO: Exactly, Mr Chairperson. It's just as if you were saying, let's put the money aside, if they have highjacked a car there as a mode of escaping would you say that it was not part of the struggle to go and fight?
I might use the words of one of the prominent members, the Vice-Chairman of the Amnesty Committee, Judge Wilson, he once said that when argument came when somebody shot at the policeman and he was running away from being arrested and it was argued that it cannot be said that running away from the policemen and shooting at them, you cannot say that that is politically motivated. And he asked a question: A person who is involved in the armed struggle, police are trying to arrest him so that they keep him in jail not to continue with the armed struggle, are you saying that it's not politically motivated to shoot at them so that they cannot arrest him?
Now my point is, if somebody escapes from prison, he wants money so that he successfully escapes from prison, would you say that it was not part of the struggle? That is my argument, Mr Chairperson. Thank you.
CHAIRPERSON: Yes, thank you, Mr Mbandazayo. Thank you, we'll reserve judgment in this matter.
ADV MPSHE: Mr Chairperson, if I may, inasfar as the victims are concerned ...(intervention)
CHAIRPERSON: Victims, yes.
ADV MPSHE: Mr Chairperson, I have one person by the name of Anuel: A-N-U-E-L Daniel Mogale: M-O-G-A-L-E. His address is: No 4 Bunting Road.
CHAIRPERSON: Bunting?
ADV MPSHE: Yes.
CHAIRPERSON: Bunting: B-U-N-T-I-N-G?
ADV MPSHE: That's correct, Mr Chairman, thank you. No 4 Bunting Road, Baketon, Springs.
CHAIRPERSON: Bakerton?
ADV MPSHE: Baketon in Springs.
CHAIRPERSON: Springs? And who was he?
ADV MPSHE: This is the policeman who was shot in the robbery in Springs wherein Masilela withdrew but he still remains a victim.
CHAIRPERSON: Oh, so he's not part of this incident?
ADV MPSHE: He's not part of this one.
CHAIRPERSON: So he's a Springs victim in the withdrawal matter?
ADV MPSHE: The policeman who was shot in the exchange of fire. And another one, Mr Chairman
Simon Buthelezi, still in the same matter, in the robbery in Springs. Simon Buthelezi of No 29 Mashiyane Street, Qwatema, Springs.
CHAIRPERSON: Mashiyane?
ADV MPSHE: Mashiyane: M-A-S-H-I-Y-A-N-E in Qwatema, Springs.
CHAIRPERSON: Qwatema.
ADV MPSHE: Qwatema, Springs. I won't belabour the record by putting the name of the shop owner because he has since left the country.
CHAIRPERSON: Yes, thank you, Mr Mpshe, for that. I see now it's five to one and we've come to the end of this application. Would this be a convenient time now to take the lunch adjournment and then we'll resume with the other matter after lunch? Thank you. We will now take the lunch adjournment and we'll resume after lunch with the next matter that is on the roll, that is the matter of Bhani Mangalisekile and another.
COMMITTEE ADJOURNS
