ON RESUMPTION
CHAIRPERSON: Yes, thank you, we'll now be commencing with the next application. We'd appreciate it if the legal representatives will just place themselves on record.
MR MBANDAZAYO: Thank you, Mr Chairperson. My name is Lungelo Mbandazayo, I'm representing the applicants in this matter, thank you.
CHAIRPERSON: Thank you, Mr Mbandazayo.
ADV MPSHE: Thank you, Mr Chairperson, Members of the Committee. I am J M Mpshe for the TRC, specifically amnesty, thanks.
CHAIRPERSON: Thank you, Mr Mpshe. The Panel which I introduced before the last hearing is the same. For those persons who weren't here, on my right is Advocate Johnny Motata from Johannesburg, on my left is Advocate Bosman from Cape Town, and I am Selwyn Miller, a Judge of the High Court in the Eastern Cape attached to the Transkei Division of the High Court.
Mr Mbandazayo?
MR MBANDAZAYO: Thank you, Mr Chairperson. Mr Chairperson, my first applicant in this matter is Mangalisekile Bhani.
MANGALISEKILE BHANI: (sworn states)
CHAIRPERSON: Mr Mbandazayo?
MR MBANDAZAYO: Thank you, Mr Chairperson. Mr Chairperson, I hope the Committee is in possession of the affidavit made by Mr Bhani.
CHAIRPERSON: Yes, thank you, Mr Mbandazayo. I think in fact we have two copies of it, we've got one in the bundle and then we were sent a further one during the lunch adjournment.
MR MBANDAZAYO: Yes, the signed one, the commissioned one, Mr Chairperson, is the latest one. It's unsigned, the one in the bundle.
CHAIRPERSON: We are in possession of that.
MR MBANDAZAYO: Thank you.
CHAIRPERSON: Are you going to make reference to it now, Mr Mbandazayo?
MR MBANDAZAYO: Yes, Mr Chairperson, to facilitate the proceedings I will use the affidavit.
CHAIRPERSON: Yes. If we can call it Exhibit A.
MR MBANDAZAYO: Thank you, Mr Chairperson.
CHAIRPERSON: That is the affidavit of Mr Bhani which was attested to today.
EXAMINATION BY MR MBANDAZAYO: Yes, Mr Chairperson.
Mr Bhani, 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 BHANI: Yes.
CHAIRPERSON: I think, Mr Mbandazayo, it's not a very long affidavit, I think for the purposes of the record perhaps if it could be read into the record and then the people present will know what the contents are.
MR MBANDAZAYO: I will do that, Mr Chairperson. The affidavit reads thus
"I, the undersigned, Mangalisekile Bhani, do hereby make an oath and say that I am the applicant in the Randfontein ...(indistinct) operation. The facts to which I depose are true and correct and within my personal knowledge unless the context states otherwise.
I was born in Uitenhage in Rocklands Plot on the 1st January 1970. I grew up in the Eastern Cape. We were eight children at home and I was the last born. We were supported by a person who was living on an old age pension.
I left school doing standard seven in 1986, due to financial reasons. My mother died in 1985 and my father in 1987.
I joined the PAC through Azania in 1986 when I was 16 years, and joined APLA in April the same year in exile. I received my military training in Tanzania and Guinea. I became a platoon commander and instructor. I came back into the country in 1992 and I went to Transkei.
I was arrested in September 1994 when I was already a member of the South African National Defence Force. I am currently serving 58 years for the Wesselsbron operation, having been sentenced by the Bloemfontein High Court on the 25th of October 1995 under case number 23/94.
I was part of the APLA unit that attacked a fruit and vegetable shop in Randfontein. We received instructions for this operation from comrade Ntjebe. We were a unit of three and I was the commander of the unit. It was myself, Nkopane and Tando. Myself and Nkopane were armed with R4 and Tando with handgrenade.
We went to this target by car which belonged to one of the Africans named, Hlakene and I do not remember his name as I was not well versed with the area as I was not from there. When we arrived the owner was on the telephone and I demanded money from him. He said he has no money. When I was trying to look for money on my own he tried to grab my firearm and I shot him. The time I think was around 19 hours and 20 hours. We found an amount of R3 000,00.
One would raise a question that at the time of this incident all the political parties were preparing for elections and that the PAC which was leading APLA was alleged to have suspended the armed struggle.
I want to state that I raised this point with comrade Ntjebe when he was giving the order and was a member of High Command. He told me that PAC has not yet informed them that the armed struggle is suspended. He told me that the PAC Congress resolved in December 1993, that the time when it is ripe, it is opportune for the suspension of the armed struggle. The President, members of the High Command and commanders will discuss this matter and decide about the date of the suspension of the armed struggle, and none of this has been done. Neither the PAC nor the Director of Operations has told him about the suspension of the armed struggle.
He further told us that maybe the reason the PAC has not ordered APLA to suspend the armed struggle has been sceptical of negotiation process and anticipated what was being done by AWB at the time. He further advised us that the PAC President has told them many times that the PAC will not abandon the bullet until the ballot is secured and the ballot was not yet secured. It was therefore my duty as a disciplined cadre of the PAC to carry out the order given to me by my superior. We were arrested for this incident but we were released because of lack of evidence.
I respectfully submit that my application complies with the requirements of the Act and that I have made full and proper disclosure of my involvement in the Randfontein ...(indistinct) Shop operation. I therefore humbly request that my application for amnesty be granted.
Signed by the applicant.
Thank you, Mr Chairman.
CHAIRPERSON: Thank you, Mr Mbandazayo.
MR MBANDAZAYO: Mr Chairperson, having read the affidavit, I would go to certain paragraphs just for clarity, to ask the applicant to clarify for the Committee.
Mr Bhani, paragraph 8 of your affidavit, you mention there that:
"I was part of APLA unit in that attack, fruit and vegetable shop, Randfontein. We received the instruction from for this operation from comrade Ntjebe."
Can you tell the Committee who is comrade Ntjebe and where did he give you these instructions for this operation?
MR BHANI: Comrade Ntjebe is Tabelo Patrick Maseko. He gave me this order when we met in the park at Randfontein, after I gave him a report about the place we just reconnoitred.
MR MBANDAZAYO: And then what was his specific order?
MR BHANI: He told us to continue to go on with the operation, with the attack.
MR MBANDAZAYO: Can you tell the Committee specifically what your purpose was of the operation, was it to attack or was it to repossess, what was it?
MR BHANI: The aim of this operation was to repossess but murder was involved because the owner of the shop made a mistake, he wanted to grab my firearm, I then shot him but our aim was to repossess.
MR MBANDAZAYO: Thank you. Now you told the Committee at paragraph 9 that it was yourself, Nkopani. If I take it, Nkopani was Mr Diahomonaheng, the second applicant in this matter, am I correct?
MR BHANI: Yes.
MR MBANDAZAYO: Now can you tell the Committee about Tando, who is Tando?
MR BHANI: I only knew him as Tando.
CHAIRPERSON: Was that a code name?
MR BHANI: Maybe it was a code name or it was a real name, I don't know because at that time we were not supposed to know other people's details because we did not know what would happen tomorrow.
MR MBANDAZAYO: Now as a follow-up to Mr Chairperson's question, did you know that Mr Diahomonaheng was Nkopani at the time? How did you know that is Mr Diahomonaheng, Nkopani was Diahomonaheng, was he using the same name?
MR BHANI: I knew him as Nkopani. I then met him in prison and he then told me his real names.
MR MBANDAZAYO: Now, can you take the Committee - now when you arrived at the shop, at the vegetable shop, can you take the Committee through what happened, what was your plan? Who was going to get inside the shop and demand money, where was the other placed? Can you take the Committee through those steps?
MR BHANI: We planned that I was going to be the first one to enter the shop and then one would stand at the door and one would be inside, the one who was not armed, that is Tando. I was going to be the one who would demand money from the owner. That was our plan.
MR MBANDAZAYO: Did you go according to the plan?
MR BHANI: Yes. When we got there we continued according to our plan.
MR MBANDAZAYO: Can you in details tell the Committee how did you shoot the owner of the shop?
MR BHANI: Then I told him to hold up, we were next to the door, the phone was next to the door. I went inside and one was outside and Tando was inside. When he said that he did not have money I decided to look for the money. When I was looking for the money he tried to grab my firearm, I then shot him.
MR MBANDAZAYO: How many people were in the shop when you entered the shop?
MR BHANI: There was the owner and other black people but I don't remember how many they were.
MR MBANDAZAYO: What happened to those people who were inside the shop when you entered?
MR BHANI: These people were standing, they were not moving. After this operation we left them there, standing there. They were not injured, nothing happened to them.
MR MBANDAZAYO: What did you do after leaving the premises, what mode of transport, did you use the same transport you came with?
MR BHANI: Yes, we used the same transport.
MR MBANDAZAYO: Did you meet Mr Maseko and Ntjebe after this operation?
MR BHANI: Yes, that is correct. We gave him the money, the money we took there.
CHAIRPERSON: Sorry, Mr Bhani, are you saying that there was just the one shot fired in the operation, namely the shot that you fired at the owner?
MR BHANI: Yes, I only shot him.
CHAIRPERSON: Was that the only shot fired by any of the operatives?
MR BHANI: Nkopani shot but he was facing the station.
MR MBANDAZAYO: Are you saying that the only shot that was fired inside the shop was the only one which was fired from your gun?
MR BHANI: Yes.
MR MBANDAZAYO: Did you shoot again at any stage, after you left or before you came inside the vegetable shop?
MR BHANI: No, we didn't do random shooting before we went inside the shop. I just shot the owner of the shop.
MR MBANDAZAYO: Can you tell the Committee, do you know the reason why Nkopane fired a shot in the direction of the station, as you put it?
MR BHANI: Yes. He shot because he saw the security guards next to the station. He thought they would try to protect or to shoot. We then ran away after that shot.
MR MBANDAZAYO: You mentioned in your affidavit that you were arrested, how long after the incident were you arrested?
MR BHANI: I was arrested on the 26th of September.
CHAIRPERSON: '94?
MR BHANI: Yes.
MR MBANDAZAYO: So it was a long time after the incident?
MR BHANI: That is correct.
MR MBANDAZAYO: After how long were you released?
MR BHANI: For this operation?
MR MBANDAZAYO: Yes, for this operation.
MR BHANI: I was released after a year because I was involved in the Wesselsbron case. They would fetch me and try to investigate about this matter. They then realised or found out that there is not enough evidence. We were then released in 1995, before I was sentenced for the Wesselsbron Supermarket case.
MR MBANDAZAYO: That is all at this stage, Mr Chairperson.
NO FURTHER QUESTIONS BY MR MBANDAZAYO
CHAIRPERSON: Thank you, Mr Mbandazayo. Mr Mpshe, do you have any questions to ask the witness?
CROSS-EXAMINATION BY ADV MPSHE: Yes, Mr Chairman, thank you.
Were you given instructions to carry out the operation by two separate commanders?
MR BHANI: I was the unit commander. I got an instruction from one commander, Mr Ntjebe, Tabelo Patrick Maseko.
ADV MPSHE: So he is the - Mr Maseko is the one, the only one who gave you the instructions for this operation, am I correct?
MR BHANI: Yes, that is correct.
ADV MPSHE: Now if you have a look at your application, page 3 of the bundle under question 11(b). I will read for convenience - that is where it says you must state the name and address of the persons who gave such order or approval and you say
"We were ordered to go and keep the struggle forward and the order came from Director of Operations, comrade Raymond Letklapa Mphahlele."
Surely Letklapa is not Maseko?
MR BHANI: I mentioned his name because he was the Director of Operations of the overall armed struggle, of the operations of the armed struggle. In other words I mentioned him because he was the overall commander of the operations.
ADV MPSHE: Did Mr Letklapa Mphahlele physically give an order inasfar as this operation is concerned?
MR BHANI: The person I gave a report to was Mr Ntjebe. Maybe he was given an instruction to give it to me but I was given instructions by him, Mr Ntjebe.
ADV MPSHE: Now you said you reconnoitred the place before you could launch the attack, for how long was it reconnoitred?
MR BHANI: Yes, we reconnoitred the place for about two weeks.
ADV MPSHE: Who was doing the reconnoitring?
MR BHANI: It was myself.
ADV MPSHE: Will I be correct to state that the killing of the shop owner, the fruit shop owner, was an unfortunate mistake?
MR BHANI: Yes, the killing of the owner was his mistake because he wanted to grab my firearm, I then shot him by mistake.
ADV MPSHE: By trying to protect himself he was making a mistake, he was causing his death, is that what you are saying?
MR BHANI: He couldn't just throw himself in a firearm, it was obvious that I was going to retaliate when he was doing that, so he made a mistake for trying to grab my firearm.
ADV MPSHE: I'll repeat what I said initially. His death was a mistake by yourself, is that correct?
MR BHANI: Yes, because the aim was not to kill him but it was to get money.
ADV MPSHE: Now where on the body did you shoot him?
MR BHANI: At the front.
ADV MPSHE: In front where, in front where, Mr Bhani? In the forehead, the neck, below? All this portion is the front.
MR BHANI: In his body.
ADV MPSHE: On the chest, as you indicate. And how many times did you shoot there?
MR BHANI: I didn't count but I was using an automatic.
ADV MPSHE: I see. How many bullets does that automatic load?
MR BHANI: 30.
ADV MPSHE: 30?
MR BHANI: Yes.
ADV MPSHE: And you pulled and the bullets went off, you cannot tell how many?
MR BHANI: No, I cannot tell, I didn't count, I just shot. They went one after the other.
ADV MPSHE: The possibility of having released four or five cannot be excluded?
MR BHANI: Maybe.
ADV MPSHE: Now you say when you entered there he was busy on the telephone, you asked for money and then you say he tried to grab the firearm, where was the phone at that time because he was busy on the line? Or to be direct, how could he grapple with the firearm when he was busy holding the phone and talking?
MR BHANI: At that time when he was trying to grab my firearm the phone was already down because when we entered the shop he put the phone down.
ADV MPSHE: That will be all, Mr Chairman.
NO FURTHER QUESTIONS BY ADV MPSHE
CHAIRPERSON: Thank you, Mr Mpshe. Mr Mbandazayo, do you have any re-examination?
MR MBANDAZAYO: None, Mr Chairperson.
NO RE-EXAMINATION BY MR MBANDAZAYO
CHAIRPERSON: Advocate Motata, do you have any questions to ask?
ADV MOTATA: Just one, Mr Chairperson.
Mr Bhani, you say you were supported by a person, paragraph 3, who was living on an old age pension, who is this person you are referring to here?
MR BHANI: My mother and my father.
ADV MOTATA: And with your permission, Chairperson, I had another question.
Now you say this person, the owner of the shop, was mistakenly killed because he attempted to grapple with your gun, in this repossession, other than the grappling of the gun, was it within your plan that if any resistance comes forth, what methods were you to take to fight that resistance?
MR BHANI: Yes, if a person is resisting we would fight back as we have done with this victim. He wanted to grab my firearm, that showed that he was trying something, he was trying to do something and then he died.
ADV MOTATA: Would we be understanding that this repossession, taking away somebody's money, that you are repossessing something which belongs to that person, probably hard-earned like the fruit shop owner? He worked for this money, how could you say you were repossessing?
MR BHANI: These people, the Boers, when they came to this country they had nothing, they took these things from our ancestors. That is why we are saying that we are getting or trying to get back what they took from our grandfathers. That is why we are saying we are repossessing. Our grandfathers were killed by the Boers. I'm sure that you understand what I'm trying to say.
ADV MOTATA: Thank you, Chairperson, I've got no further questions.
CHAIRPERSON: Thank you. Advocate Bosman, do you have any questions to ask?
ADV BOSMAN: Thank you, Chairperson.
Mr Bhani, on what date did this incident take place exactly? Do you remember?
MR BHANI: Yes, I do remember, it happened on the 16th of April 1994. It was on a Saturday.
ADV BOSMAN: This was just shortly before the elections?
MR BHANI: Yes, it was before the elections.
ADV BOSMAN: And on what date did you join the SANDF?
MR BHANI: On the 18th of July when APLA was integrated at "Die Brug".
ADV BOSMAN: Was this also in 1994?
MR BHANI: Yes, in 1994.
ADV BOSMAN: At what time did you - on what date did you apply to joining the SANDF?
MR BHANI: We were integrated as APLA forces, not as individuals.
ADV BOSMAN: When did you hear that this integration was going to take place?
MR BHANI: I heard this in June 1994.
ADV BOSMAN: At the time of the incident, did you know that the election was going to take place on the 26th and 27th, 10 days later?
MR BHANI: Yes, I knew.
ADV BOSMAN: Why was it then necessary to carry out this operation so shortly before the elections?
MR BHANI: As I've already stated in my affidavit, I informed comrade Ntjebe about this. He told me that they did not get a command to suspend armed struggle. I just took an order, I was following an order.
ADV BOSMAN: But did he say what the urgency of this operation was, what was the urgency of the operation, it was more than a week before the election?
MR BHANI: I just asked him about this, I didn't ask him any other details because my job was to follow an order, to do what I was supposed to do as a soldier. A soldier follows an order because if you defy they would deal with you in a brutal way.
ADV BOSMAN: And you said that you - if I understand you correctly, you identified the target?
MR BHANI: Yes.
ADV BOSMAN: And you referred to the white people, the Boers who had taken the positions of your grandfathers, on what grounds did you identify this man? How did you identify him as a target?
MR BHANI: I identified him because he was one of the white people who were benefitting from the white government.
ADV BOSMAN: Did you know what nationality he was?
MR BHANI: I knew that he was a Boer.
ADV BOSMAN: Did you know what language he spoke?
MR BHANI: I knew that he was speaking Afrikaans.
ADV BOSMAN: I have no further questions, thank you Chairperson.
CHAIRPERSON: Thank you.
Mr Bhani, I just want to read you something from the papers before me here for your comment and I read it in respect of your statement that you said in the shop the only shots fired were those shots that you fired at the owner and you couldn't count them but it was a few. This is a statement made by a person who was employed as a cleaner at that restaurant which you attacked in Randfontein. He says:
"They then ..."
I'm just reading a portion of it. This is page 16 of. the bundle, midway through paragraph 3 and I just read. He says:
"They then entered the restaurant shooting up the ceiling. I did not count the shots fired or see the kinds of weapons they used. They ordered us to lie down and shot the television set, entered the toilets and shot the geyser. I saw one of the robbers remove money from the till. They then shot a male on the shoulder when they ran away."
Now that is a statement made by an employee at that place, and from that it sounds like there was random indiscriminate shooting, shooting at the ceiling, shooting geysers in the toilet, shooting television sets, what do you say to that?
MR BHANI: We couldn't do that, we couldn't waste bullets and shoot everywhere for no reason, we couldn't do that. So in other words, the person who wrote this statement is lying.
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.
NO QUESTIONS BY MR MBANDAZAYO
CHAIRPERSON: Mr Mpshe?
ADV MPSHE: I have none, Mr Chairperson, thank you.
NO QUESTIONS BY ADV MPSHE
CHAIRPERSON: Thank you, Mr Bhani, that is the end of your testimony, you may stand down.
WITNESS EXCUSED
MR MBANDAZAYO: Thank you. Mr Chairperson, I'm calling Tapelo Maseko. Mr Chairperson, he is not an applicant, he is a witness. He is the person who gave the orders, they call him Ntjebe. Thank you. Mr Chairperson, Mr Maseko will be using Sesotho to testify.
CHAIRPERSON: Thank you. Are the interpreters ready for Sesotho? Thank you.
TAPELO MASEKO: (sworn states)
CHAIRPERSON: Mr Mbandazayo?
EXAMINATION BY MR MBANDAZAYO: Thank you, Mr Chairperson.
Mr Maseko, the affidavit which is in front of you is before the Honourable Committee, do you confirm that this affidavit was made by yourself and you abide by its contents?
MR MASEKO: That's correct.
CHAIRPERSON: Mr Mbandazayo, could we then refer to this affidavit of Mr Maseko as Exhibit B.
MR MBANDAZAYO: Thank you, Mr Chairperson. Mr Chairperson, I don't know whether you would like me also to ...(intervention)
CHAIRPERSON: I think for the benefit of the people in the audience, they haven't seen the affidavit and if his evidence is merely to confirm it it doesn't really mean much and it's not that long.
MR MBANDAZAYO: Thank you, Mr Chairperson. The affidavit reads as follows
"I, the undersigned, Tapelo Patrick Maseko, do hereby make an oath and say that the facts to which I depose are true and correct and within my personal knowledge, unless the context states otherwise.
I was born on the 3rd day of May 1956 in Westonaria. I started school at Nibanong Gold Mine and went to Mapute Community School in Bekkersdal until standard six.
I then worked at Kloof Gold Mine until I left the country in 1986. I joined the PAC through Azanyo in 1983.
On the 18th day of June 1986 I left the country to Botswana where I stayed until December 1986. I left Botswana for Tanzania where I stayed for a week before moving to Guinea Canary for military training. I did infantry training for three months and returned to Morogoro Camp at Iringa, Tanzania. I stayed there for more than three years undergoing intensive political and ideological remoulding.
I was thereafter deployed inside the country at the end of December 1989.
When I returned to the country through Harare, we were a unit of four called "Makana Detachment", comprising of myself, Lumumba, Telo and Small Baby. We met our contacts, Junior and Siki in Bulawayo, who arranged for us to enter the country.
The two contacts arranged for us to meet a person at Mmbatho Sun. It was arranged that we should enter the country in pairs. Myself and Telo went first. We met our contact at the pre-arranged place and time. He took us to a taxi rank and we boarded a taxi to Johannesburg.
In Johannesburg we met our contact, Mr Tepani Moswade. He took us to a safe place in Orlando West, Pefini, where we stayed until the other two comrades we left at Bulawayo arrived with arms.
I was deployed inside the country with specific instructions to advance the struggle for the liberation of the African people in all fronts. We were told that the PAC and APLA have no funds and therefore the cadres should be self reliant. We were told that the targets will be chosen by us.
This unit therefore was called "Repossession Unit". The was the first unit to be sent in the country for this specific purpose, although we were to conduct other operations.
I was involved in 28 other operations. I'm still waiting for the outcome of the application in respect of 11 others.
The affidavit of comrade Bhani has been read to me. I confirm it insofar as it relates to me. I confirm that I gave an order for the operation at Randfontein vegetable shop. I further confirm that at the time of the operation I was a member of APLA High Command and head of APLA Repossession Unit, codenamed "Beauty Salon".
The unit was duly established by APLA High Command, with the full knowledge and unequivocal approval of the PAC political leadership. The task of the unit was to repossess from the enemy items such as weapons, money, jewellery and vehicles and other necessities which were necessary for the APLA operations.
I was reporting directly to the Director of Operations, who was reporting directly to the Defence Secretary.
At no stage did I use my position to enrich myself or my poverty stricken family. I am aware that at the time of this operation it was being rumoured that PAC/APLA has suspended the armed struggle. I want to make it clear that the members of APLA who represented APLA members at the PAC conference in Umtata, reported that the PAC leadership has been given a mandate to suspend the armed struggle when the time is opportune. And before doing that they will discuss this matter with the APLA High Command and commanders on the ground and thereafter announce the suspension of armed struggle. This never happened until at the time of this operation.
We as commander of APLA thought that PAC political leadership decided to take a tactical position to announce the suspension of the armed struggle in the manner they did, as the did, in the manners they did not comply with the resolution of the PAC comrades.
We thought that they were aware that the right-wingers were arming themselves with the purpose of disrupting the election, hence they did not bide by the decision of the congress. The PAC President then, is on record saying that the PAC will never abandon the bullet until the ballot is secured.
It is in that spirit that I ordered the operation because the ballot was not yet secured and PAC has not yet suspended the armed struggle according to the congress resolutions.
At no stage did the comrades use their position to enrich themselves or their poverty stricken families. I hope this will go a long way in decriminalising the bravest, selfless and dedicated heroes of our anti-colonial struggle.
The money was handed to myself after the operation and I also handed it over to the Director of Operations. I therefore humbly request that their application for amnesty be granted as they did not act for personal gain, nor out of malice, ill will or spite against the victims, they acted on my orders.
Signed by the applicant."
Thank you, Mr Chairperson.
CHAIRPERSON: Thank you, Mr Mbandazayo.
MR MBANDAZAYO: Mr Chairperson, in view of the fact that I have read the affidavit on behalf of Mr Maseko, I will say that's his evidence, I have nothing more. I will leave it to the Committee and the Leader of Evidence to ask him questions on his affidavit.
CHAIRPERSON: Just one thing, Mr Maseko. Mr Bhani has referred you to as Ntjebe, do you confirm that you are also known as Ntjebe?
MR MASEKO: Yes, that's true.
CHAIRPERSON: Mr Mpshe, do you have any questions to ask the witness?
CROSS-EXAMINATION BY ADV MPSHE: I have, Mr Chairman.
Mr Maseko, have a look at your affidavit, paragraph 9. That is where you state that you were involved in 28 operations, do you see that?
MR MASEKO: Yes, I do.
ADV MPSHE: How many of these operations were carried out during the year 1994?
MR MASEKO: Do you mean in 1994, that was after the elections, I don't remember us carrying out any operations.
CHAIRPERSON: I think what he is asking you is, during 1994, we know that this operation was in 1994, how many of those operations, if any, were carried out in 1994, particularly prior to the elections, do you know? That is what I think the question is.
MR MASEKO: I don't remember them.
ADV MPSHE: Would you say this is the only operation carried out in 1994, just prior to the elections?
MR MASEKO: That's the only one that I remember, yes.
ADV MPSHE: Were there no other operations planned by your commanders throughout the country in the year 1994?
MR MASEKO: There were other operations that were planned but they never took place, this is the only operation that took place.
ADV MPSHE: Okay. What made the other operations not to be carried out in 1994, or what stopped them?
MR MASEKO: Operations were never cancelled but because we didn't have enough weapons, those operations never took place.
ADV MPSHE: Just the last question. If you look at paragraph 11, do you see that, where you mentioned items that you were to repossess in terms of the Beauty Salon operations. The jewellery you mention there, how would this help the struggle, taking a necklace and the like, how would this serve the struggle?
MR MASEKO: We would sell them so that we can get money because the only thing that we wanted was money.
ADV MPSHE: That will be all, Mr Chairman.
NO FURTHER QUESTIONS BY ADV MPSHE
CHAIRPERSON: Thank you, Mr Mpshe. Advocate Motata, do you have any questions to ask the witness?
ADV MOTATA: I've got none, Mr Chairperson.
CHAIRPERSON: Advocate Bosman?
ADV BOSMAN: Mr Maseko, I just want to ask you the same question I asked the previous witness. What was the urgency of this operation so shortly before the elections, couldn't it have waited?
MR MASEKO: We received the orders from the High Command. We never took our decisions, so we were just carrying out the orders that we received from the High Command.
ADV BOSMAN: Didn't I understand that you had a sort of general order, but that you had a discretion in regard to the particular targets and the particular operations?
MR MASEKO: The commanders were in charge of the units on the ground where the people were choosing the targets.
ADV BOSMAN: I'm afraid I don't really follow. I understood your evidence to mean that you gave the order for this operation to the first applicant, is that correct?
MR MASEKO: That is correct.
ADV BOSMAN: But you did not get an order for the particular operation from higher up, this was in your discretion was it not, the time and the date?
MR MASEKO: The commanders of the unit on the ground were the people who identified the targets. So because he was the commander of that unit I gave him a go-ahead and then I said to him: "Since you have already identified the target, you can go ahead with the operation."
ADV BOSMAN: Thank you. Thank you, Chairperson.
CHAIRPERSON: Mr Mbandazayo, any questions arising?
MR MBANDAZAYO: Chairperson, it's what was arising out of what was asked by the Leader of Evidence, Advocate Mpshe. It's only one question in relation to that.
CHAIRPERSON: Sorry, I should have asked for re-examination, I'm sorry, but you can do it now.
RE-EXAMINATION BY MR MBANDAZAYO: Thank you, Mr Chairperson.
Mr Maseko, you were asked by the Leader of Evidence, was it the only operation which was carried out in 1994 and you said yes. What I wanted from that question is, are you saying that no other operation of APLA, or are you saying that no operation which was sanctioned by yourself specifically, you gave order to be carried out at that time?
MR MASEKO: The only operation I was involved in is this one and this is the only operation in which I participated and gave an order.
MR MBANDAZAYO: Thank you, Mr Chairperson.
CHAIRPERSON: Thank you. Any questions arising, Mr Mpshe?
ADV MPSHE: No questions, Mr Chairman, thank you.
CHAIRPERSON: Yes, thank you, Mr Maseko, that concludes your testimony, you may stand down, thank you.
WITNESS EXCUSED
MR MBANDAZAYO: Mr Chairperson, with your permission, Mr Chairperson, I have a third affidavit which I intended to submit after it had been signed by the ...(intervention)
CHAIRPERSON: We were given a copy of a document purporting to be an affidavit but not having been signed by any person.
MR MBANDAZAYO: Yes, Mr Chairperson, that is why I'm addressing the Committee. I had hoped that Mr Letklapa would sign here in Johannesburg, according to our arrangements. He made the affidavit whilst we were in Durban the other week. I met with him in Durban so I typed it and so we arranged that he will sign it here, though he was not going to give oral testimony to that. Unfortunately, Mr Chairperson, he is in Umtata so I'm in the hands of the Committee, whether it can ...(intervention)
CHAIRPERSON: Yes, we can receive it, we obviously can't treat it as an affidavit because it isn't an affidavit, but we can take note of the contents. We note also that it is essentially much the same as what Mr Maseko has said but obviously with less detail relating to this specific incident.
MR MBANDAZAYO: Yes, Mr Chairman. Thank you, Mr Chairperson. Mr Chairperson, with that this document which I've regarded as a statement, be made Exhibit C. That concludes the evidence of the applicant, Mr Chairperson.
CHAIRPERSON: Thank you. What is the position regarding the second applicant, Mr Diahomonaheng?
MR MBANDAZAYO: Mr Chairperson, I was phoned when I was in Durban in the office of the TRC regarding that they could not locate him and I asked them to send the notice to my office. I tried to locate him with the telephone I had from him with regard to his previous application which was in Bloemfontein, and I managed to get a person who promised to relay the message to him though he was not there, he was in Umtata.
Mr Chairperson, we did everything reasonable to contact him and I think he was contacted although I cannot vouch to that because I had another person who was going to be an applicant during the week, Khotle. I sent the message through the same person and he's here in the hearing, he managed to get it but yet the person I use as a contact did not know him, he said he's going to locate him, he knew only Diahomonaheng.
So Mr Chairperson, I've also tried Umtata. I phoned Umtata, I left messages where I was given a telephone number but unfortunately I could not get hold of him. I don't know whether somebody managed to contact him and talk to him about it.
But Mr Chairperson, I must indicate that I consulted with him, maybe the affidavit, I'm not sure whether it's there in the index here in the bundle because he made an affidavit. He was not - he has got an unsigned affidavit when I contacted him. Though he made the affidavit, Mr Chairperson, I must say that he was reluctant in pursuing his application. Well I don't know whether that may also be the reason but as of now, I can't say what the position is.
CHAIRPERSON: So the practical course to follow then, Mr Mbandazayo, would then be to just remove his application from the roll, not refuse it or anything like that but just remove it from the roll and then it would be possible then sometime in the future to have it set down if Mr Diahomonaheng expresses an interest in that or communicates. We would appreciate it that if he does communicate with you sometime in the future, if you would advise him as a matter of urgency then if he wishes to pursue his application, to get in touch with the Amnesty Committee, perhaps in the form of Mr Mpshe who is fully aware of the matter.
MR MBANDAZAYO: Mr Chairperson, I will definitely do that immediately I have contact with him. If he has an interest I will communicate with Advocate Mpshe immediately.
CHAIRPERSON: Yes, thank you very much.
MR MBANDAZAYO: Thank you.
CHAIRPERSON: Are you leading any further evidence in regard to Mr Bhani's application?
MR MBANDAZAYO: None, Mr Chairperson, that concludes the evidence on behalf of the applicant.
CHAIRPERSON: Mr Mbandazayo, are you in a position to make submissions?
MR MBANDAZAYO IN ARGUMENT: Yes, Mr Chairperson.
It is my submission that the applicant has complied with the requirements of the Act, which is Section 20(1) and (2). That at the time he acted he was acting on behalf of APLA, which is a publicly known political organisation and liberation movement which was involved in the political struggle at the time. Also, that the applicant did not act for personal gain nor out of personal ...(intervention)
CHAIRPERSON: I think it's quite clear from the evidence of the applicant and Mr Maseko, that he was acting under a direct order to conduct an operation in furtherance of the objectives of the movement.
MR MBANDAZAYO: Yes, Mr Chairperson.
And therefore, Mr Chairperson, taking into account, I wanted to address the question of the timing of the operation. Mr Chairperson, as Mr Maseko put it clearly, unfortunately I had hoped that I would have something to give the Committee, the resolution of the congress, that at the time, though Mr Chairperson, I know that the deadline for the application for amnesty is still within the confines but definitely because ...(intervention)
CHAIRPERSON: The deadline extends up to the 10th of May 1994.
MR MBANDAZAYO: Yes. But because, Mr Chairperson, the organisation to which they belonged at the time, which was leading APLA, was part of the PAC, was going to participate in the election. So definitely it was at the time alleged that it has already suspended the armed struggle, but they were keeping on carrying the armed struggle.
Mr Chairperson, it is my submission that if one takes the evidence of Mr Maseko, it is clear that as commanders they were not yet formally informed that the armed struggle has been suspended.
Now if you go with his quote in his affidavit that the PAC President has gone on record saying: "We will abandon the bullet until the ballot is secured." Not everybody will be in a position to interpret that, Mr Chairperson. I didn't manage to make ...(intervention)
CHAIRPERSON: I think this is all linked up with this whole - you know if one takes a look at the events that occurred, initially the cutoff date was even before the 16th of April and the cutoff date for incidents was extended I think, on various occasions as a result of political pressure being applied, probably for exactly the same reasons why you are arguing now, until it was ultimately extended to the 10th of May.
MR MBANDAZAYO: Yes, Mr Chairperson, because it was alleged that some of the cadres were in the battlefield, they could not be contacted and be informed properly and be advised properly that the armed struggle has been suspended. It was on that basis that negotiations were carried to cater for some incidents which occurred, because definitely if you go according to their operation is that they have to listen to their commanders before they can stop. They had been given a mandate to carry on. As I ...(intervention)
CHAIRPERSON: Because most regrettably also at that time, immediately before the elections, it wasn't the question of there being peace reigning. We know from our own bitter experiences that there were many incidents that took place around that period of time, even later.
MR MBANDAZAYO: Yes, Mr Chairperson.
Mr Chairperson, I don't want to belabour this point. I know that some of the Members of the Committee may not have, Advocate Motata, I've never supplied him with some of the documents but I made copies of the submission of the PAC with regard even to targets, so-called, one would argue that is a soft target and civilians. Document PAC where it put its submission to the TRC at a later stage when they were required to spell out their policy with regard to attack to so-called civilians, they put it clearly that they did not differentiate in their submission. That's one point I wanted to cover. I know that maybe Advocate Motata does not have it. I know the two Members, yourself and Advocate Bosman, I made photostats of some of the documents relating to that and also one of ...(indistinct) of APLA where President Makweto - it is quoted here:
"PAC can only consider abandoning the bullet in overthrowing the regime when the ballot is secure."
Well no-one knows when the ballot will secured, whether after the elections or what but it so happened that it was done before the elections.
Having said that, Mr Chairperson, my argument is that the applicant himself attacked within the ambit and scope and orders of his party, and what he did was on behalf of his organisation and he reasonably believed at that particular point in time that what he was carrying out was carrying out the objective of his organisation. And therefore, Mr Chairperson, it is my submission and my application that the applicant should be granted amnesty, thank you.
CHAIRPERSON: Thank you, Mr Mbandazayo. Mr Mpshe?
ADV MPSHE: Thank you, Mr Chairman. Mr Chairman, I have no submission to make, save to say that the proportionality criteria should be looked into. That is all.
CHAIRPERSON: Thank you, Mr Mpshe. Are you responding to that, Mr Mbandazayo?
MR MBANDAZAYO: Mr Chairperson, I know this is one point - the question of proportionality always comes up but my argument will always be that, and it's my submission, Mr Chairperson, that proportionality should be applied to the decision makers. The foot soldiers should not bear the brunt of question of proportionality because they are not police makers, they are not decision makers, who are the people, who are the targets. They have been given a framework to operate, that here are the legitimate targets, so you have to carry out, foot soldiers.
And as such, Mr Chairperson, it's my submission that the proportionality should be carried, should be applied only to the decision makers. That is the people who give orders that these things should happen.
CHAIRPERSON: Unless of course the foot soldier exceeds the bounds of the order.
MR MBANDAZAYO: Exactly, Mr Chairperson. Mr Chairperson, my ...(intervention)
CHAIRPERSON: If the order is to go and steal a car and they go and shoot 45 people instead.
MR MBANDAZAYO: Definitely, Mr Chairperson ...[end of tape] ... they wanted money. It's a ...(indistinct) Mr Chairperson, if they were met with resistance there is no doubt that they were going to use, they were not going to. So it was one of those few things ...(indistinct) where it is known that it will be part of the whole thing if it did happen as it happened in this case. Thank you, Mr Chairperson.
CHAIRPERSON: Thank you, Mr Mbandazayo. We will deliver judgment in this as soon as possible, hopefully even this week but we'll have to discuss it. I always prefer to hand down a written decision.
ADV MPSHE: Mr Chairperson, if I may once more with your indulgence inasfar as the victims are concerned, Mr Chairman.
Mr Chairman, the wife to the deceased has since left, she has gone abroad but we have in our midst the brother to the deceased who is sitting in the hall right now, Mr Jose Gil and the surname is that of the deceased: J-A-R-D-I-M. His address, Mr Chairman, is:
109 Hans Strijdom Street, Pongola. That is all, Mr Chairman. He is present. I consulted with him, he knows about everything.
CHAIRPERSON: Thank you, and his name will be referred to the Reparations Committee as a victim?
ADV MPSHE: That is so, thank you. And that sums up the roll for the day, Mr Chairman.
CHAIRPERSON: Yes, thank you. That brings us to the end of today's proceedings. We will be continuing these hearings in this hall tomorrow where we'll start with a fresh application. Would half past nine be convenient?
ADV MPSHE: Mr Chairman, seeing that it's only one matter, even 10 o'clock would be convenient. It's only one matter, that is incident number 3, Malefane, the one that was to be heard on the 4th of November. That is the only one for tomorrow.
CHAIRPERSON: And you expect that that one will be handled in ...(intervention)
ADV MPSHE: In less than ...(indistinct)
CHAIRPERSON: Would 10 o'clock be convenient?
MR MBANDAZAYO: Yes, Mr Chairperson, it will be suitable.
CHAIRPERSON: We'll therefore adjourn now until 10 o'clock to-morrow morning, that is the 3rd of November 1998, at the same venue for the hearing, thank you.
COMMITTEE ADJOURNS
