Amnesty Hearings

CHAIRPERSON: ... two documents put before us, marked B and C.

MR RICHARD: Chairperson, I have made mention of those documents as I have gone along. That is the letter from the Attorneys, Ismail Ayob and Partners or Associates to Dr Gluckmann, written I think on the 26th of January 1988 and the other is a transcript of the Day Book kept by the DPSC, relating to the 1986 detention.

I thought that on the same basis as the news-clippings, the Commission might have reference to them. They do refer to matters that have been mentioned in evidence.

CHAIRPERSON: We were told in evidence yesterday that he went to this firm of attorneys on about the 22nd of January and made a statement to them about his having become a police informer?

MR RICHARD: The statement he made and I have since spoken to Mrs Coleman, related to his activities in and about making the television documentary, not related to becoming a police informer on that occasion.

CHAIRPERSON: The woman who gave evidence yesterday, told us that.

MR RICHARD: Correct.

CHAIRPERSON: ...(microphone not on), and also that he was referred to the firm of Attorneys.

MR RICHARD: The witness Ntombi Masekeri gave evidence that she didn't take the statement, Mrs Coleman did.

CHAIRPERSON: Many detainees told us they had been treated cruelly, that they agreed to become informers because they wanted to released. These people would be referred to attorneys so that they could make a statement that they had requested to be informers. The deceased went to Mr Ayob, who referred him there?

MR RICHARD: That as I understood it, related to the 1986 period of detention and the October arrest.

ADV SANDI: No, but as I recall the evidence, she said she saw him immediately after his release from detention and that was in January and when he disclosed that he had been recruited successfully by the Security Police. There were other people around as well, but she did not mention who those people were. And then for purposes of taking the statement, this was done by this person, Mrs Coleman.

MR RICHARD: Mrs Coleman took the statement and did the debriefing. It is correct that he was ...(intervention)

ADV SANDI: That is in January 1988? That is in January 1988?

MR RICHARD: But I don't believe it is correct to say that he was successfully turned as an informer, I don't think that was the import of the evidence.

ADV SANDI: It may be incorrect to put it that way, but the import of the evidence is that he had been coerced to agree to being an informer and he was not going to do that.

MR RICHARD: That is correct, but then I add on, that as I indicated yesterday afternoon before we adjourned, I would be in contact with Mrs Coleman. Mrs Coleman cannot be in Johannesburg today, she has personal problems to do with an illness, but what she did say to me was that on that particular occasion, that is the 20th of January, the import of the police activity concerned the discrediting of the television documentary, but it is correct that on other occasions, including the 12 October 1987 arrest, efforts were made to turn him and it might well be that under pressure, he said "I would become an informer" and then promptly went back to his comrades and told them what was happening.

However, where I need Mrs Coleman at the moment is that the documents that she brought into existence on the 20th, when she did the debriefing, are now filed with the University of the Witwatersrand William Cullinan Library. They are not precisely where they should be this morning, they are still being searched for.

Once their existence or non-existence has been ascertained, what I will do is be back in contact with Mrs Coleman and as indicated yesterday, prepare an affidavit subject to the Committee's direction.

CHAIRPERSON: My notices to what was said yesterday afternoon that the witness said she saw him after his release, I think he said he had agreed to work for the police, this was on the Friday. He said it in the office that he had agreed to work for the police. He was sent to a lawyer on the day he was released and he made the other statement on that day.

MR RICHARD: Correct.

CHAIRPERSON: No mention is made in the letter marked C of a visit on the 19th or 20th.

MR RICHARD: The letter does not make mention of a visit on the 19th, 20th or 21st.

CHAIRPERSON: Carry on.

MR RICHARD: I believe that at this juncture, the best that could be done next is that Mr Zwane be called.

MR MAPOMA: Thank you Chairperson, I am calling Mr Zwane.

ADV SANDI: Mr Zwane, can you please give us your full names? In what language are you going to testify, Zulu or Xhosa or English, whatever?

MR ZWANE: Sotho.

ADV SANDI: Can you please give us your full names?

MR ZWANE: Puleng Zwane.

PULENG ZWANE: (sworn states)

ADV SANDI: Thank you, the witness has been sworn in.

EXAMINATION BY MR MAPOMA: Mr Zwane, is it correct that at some point, you have been an Investigator of the TRC?

MR ZWANE: I can't hear this.

INTERPRETER: The witness is on the wrong channel, I think.

MR ZWANE: I do hear now, can you repeat the question.

MR MAPOMA: Is it correct that at some point, you were the TRC Investigator?

MR ZWANE: Yes, that is correct.

MR MAPOMA: Where were you based?

MR ZWANE: I was based in Durban.

MR MAPOMA: From when up to when did you investigate for the TRC?

MR ZWANE: From 1996 up to 1997, April.

MR MAPOMA: We are here dealing with the applications for amnesty in relation to the murder of one Sicelo Dhlomo. Do you recall that incident?

MR ZWANE: Yes, I remember it very well.

MR MAPOMA: During your investigations as the TRC Investigator, did you have contact in relation to that matter, did you investigate that matter?

MR ZWANE: Sure.

MR MAPOMA: Would you tell this Committee, how did you happen to get in touch with that matter and investigate it?

MR ZWANE: As I was the Investigator of the TRC, I was investigating the cross-border raids with the ...(indistinct) operations. The intention of my investigation was not specifically the Dhlomo case.

When the Dhlomo case came, during the process of my investigation, when I was investigating the attack in Botswana, Lesotho and Mozambique, I came across certain Security Branch guys who confessed to me that they took part in those cross-border raids.

In addition to that, they even gave me information pertaining to a certain MK cadre who infiltrated their structures. And then they mentioned that that particular cadre was also involved in the death of Sicelo Dhlomo. And then I made a follow up on that MK cadre and then I came across him.

MR MAPOMA: Just there, who is the MK cadre you are referring to?

MR ZWANE: John Ithumaleng Dube.

MR MAPOMA: Now when you say they said he infiltrated them, what do you mean, would you explain that?

MR ZWANE: They told me that Dhlomo was working for, in fact he pretended to be working for them, while at the same time, he had links with the ANC.

What I couldn't establish was whether was Dube their informer or was Dube the ANC informer in the Security Branch, but what I have established is that Dube had links with those Security Branch guys, but though he had also links with the ANC.

The popular term one could use is infiltration.

MR MAPOMA: Did they tell you when exactly did he inform or infiltrate them?

MR ZWANE: Yes, he started infiltrating them after he was arrested somewhere in hospital, around 1991.

MR MAPOMA: After when?

MR ZWANE: Maybe after the new government came into power, but I was not interested in whether he was still an informer or not, I was only interested inasfar as when he became an informer and how was he was accountable or responsible for the death of Dhlomo.

MR MAPOMA: Now, when they told you that he was responsible for the death of Sicelo Dhlomo, what actions did you take? I mean what steps did you take?

MR ZWANE: I started establishing where is Mr Dube and then I found out that he is now a Captain in the SANDF and then I phoned him, I set up a meeting with him, and then we met.

I discussed with him the Dhlomo case and then to my surprise, he never resisted anything, he never lied to me. He never gave me any struggle whatsoever. In fact he is one of the people who gave me an absolute co-operation, insofar as my investigation was concerned. So he told me that yes, he took part in the killing of Dhlomo, he was a commander of a particular Unit in Soweto and that he issued orders for Dhlomo to be killed, because Dhlomo was an informer.

MR MAPOMA: Did he tell you who actually killed Dhlomo?

MR ZWANE: Yes, I think he told me that one of the cell commanders whom Dhlomo was a member, pulled the trigger.

MR MAPOMA: Now, so what advice did you give to him, if at all there is anything?

MR ZWANE: Yes, I told him that the best thing he can do is to start applying for amnesty, because he will understand that the Dhlomo case is one of the difficult cases. It was commonly believed that Dhlomo was killed by the Security Branch, so they could have sat back and said we don't apply and no one would ever know that they took part in the Dhlomo killing.

They had an option of killing him because I was the only one who knew by then that they killed Dhlomo. If they had killed me, no person would have known that, but they were too honest and I even felt that I owed them something, then I advised them to apply for amnesty.

MR MAPOMA: Is it your evidence that they applied for amnesty because of your persuasion to them that they so do?

MR ZWANE: Yes, I advised them to apply for amnesty. I also assisted them to draft a statement and then I took their application to Cape Town for amnesty.

CHAIRPERSON: You say that they could have killed you as you were the only person who knew, that is not quite correct is it?

MR ZWANE: Yes.

CHAIRPERSON: It is not correct, is it? The Security Police had told you that Dube was the person who killed Dhlomo?

MR ZWANE: Yes. No, the point is Dhlomo was killed in 1988 and then since then, no-one came forward and say we have information about the death of Dhlomo.

Even the Security Branch guys who knew. So what I am saying is that these guys, the Dube group could have done something to surprise me, but they did not. They were willing to cooperate with me.

MR MAPOMA: Did you put to him the information that you had received, that he was an police informer, that is Dube and what was his response?

MR ZWANE: I approached Dube about the information. I asked him, Dube, these guys are telling me that you also worked for them and the response of Dube was, I infiltrated them. I was infiltrating them as an MK cadre, so I didn't bother about whether was that true or not. I was only interested in why was Dhlomo killed.

As to whether he was an informer or not, I was not interested. I was interested in why did he kill Dhlomo. Though he gave information to me that he was infiltrating them on behalf of MK.

MR MAPOMA: Now when he said to you that they killed Dhlomo because he was a police spy, did you take any steps to investigate that claim?

MR ZWANE: Yes, I took some steps. I wanted to establish two things. One, was Sicelo Dhlomo an informer or not, and then two, was Dube a police informer before the death - let me be clear, I wanted to establish whether Dube infiltrated the police before the death of Dhlomo or after the death of Dhlomo. So those were the two things I was trying to establish.

Inasfar as the Dhlomo issue was concerned, I did some minor investigation. I was trying to link, there was a particular woman, a white woman, who worked for JODAC, Johannesburg Democratic Action Committee, and who also took part in the ECC, and End Conscription Campaign and who also had some links with the DPSC, Detainees Parents' Support Committee.

I had information that that woman was an agent of the police. Her name was Joy. I wanted to establish a relationship between Joy and Dhlomo and then when I was just about to meet Joy, I then resigned from the TRC. I could not establish the whole picture as to whether was there any relationship between Joy and Dhlomo, given the fact that Dhlomo had some working with the DPSC, so it was Joy, and Joy was a police agent.

All that happened at the same year, at the same period. Inasfar as Dhlomo issue was concerned, I could not establish fully, whether was he a police informer or not, but I had some leads to follow. The second issue ...(intervention)

CHAIRPERSON: Is there any point in us hearing evidence, naming people when the witness says he had some leads, but he didn't establish, he doesn't know the truth of these allegations?

MR MAPOMA: Yes Chairperson, I was just leading the witness for the sake of giving as broad a picture as possible, to whoever may be interested in this testimony regarding this matter.

I think to a certain extent that may be relevant, because during ...(intervention)

CHAIRPERSON: Have you notified the persons named?

MR MAPOMA: No, I have not. In fact I have not pushed the witness into naming the person, the person's name, the person concerned as such.

Chairperson, that ends the evidence I wanted to lead.

NO FURTHER QUESTIONS BY MR MAPOMA

CROSS-EXAMINATION BY MR RICHARD: Thank you Chairperson. Mr Zwane, while you were conducting your investigations for the TRC, did you keep files and documents, diaries? While you were doing investigations, did you keep records of your investigations, what you did on a day by day basis?

MR ZWANE: Yes, any normal Investigator does that.

MR RICHARD: Is there an investigation file recording verbatim what you said to this Committee this morning, yes or no?

INTERPRETER: Can you repeat your question.

MR RICHARD: Is there anywhere in existence a file which records in writing, what you have told this Committee this morning?

MR ZWANE: The only thing I remember well, was the report I gave to the TRC in October 1997, which explains clearly the progress of my investigation in the Dhlomo case and other surrounding issues pertaining to the case.

I think I still have a copy of that report which I gave to the TRC.

ADV SANDI: Sorry Mr Richard, can I just interrupt you for a minute, there is something that I just want to raise with the Chairperson.

CHAIRPERSON: Is that report available Mr Mapoma, is that information that should have been made available to us as a result of investigations?

MR MAPOMA: Chairperson, not with me at this moment. Perhaps if I consult with him, I will find out.

CHAIRPERSON: In terms of the Act when an application is made, we carry out investigations and then we decide whether to have a hearing.

If there is such information available for the Committee, obtained by Investigators, I think we should have known about it. Should we take a short adjournment, and you can discover?

COMMITTEE ADJOURNS

ON RESUMPTION

PULENG ZWANE: (still under oath)

MR MAPOMA: Chairperson, during the short adjournment, I managed to receive a copy of the report which Mr Zwane had prepared. I have made copies of this report available to all parties involved. Thank you.

I would ask your direction Chairperson, whether do we refer to it at all?

CHAIRPERSON: I think ...(microphone not on), Exhibit D.

MR MAPOMA: Thank you sir.

CHAIRPERSON: Before you continue with your questioning, there was one item which Mr Mapoma has told me, but I think it ought to be on record from the witness.

Have you got a copy of the statement? Right at the end of the statement you say John Dube and some members of his Unit, made a statement to this effect, a copy is attached.

Will you look at the statement that I am showing you, it is the statement on page 10 of the bundle, is that the statement that you referred to in your statement?

MR ZWANE: Yes, it is true.

CHAIRPERSON: Thank you. Carry on.

CROSS-EXAMINATION BY MR RICHARD: (Cont)

Thank you Chairperson. Mr Zwane, from where did you produce this document which is now identified by the letter D?

MR ZWANE: When I was called here to testify, the letter which called me specified that I must bring all the documents in my possession, in as far as this case is concerned. I had a copy of the report which I gave to the TRC, which is now classified as D.

MR RICHARD: Very well, where would any other copies of D be?

MR ZWANE: Pardon me?

MR RICHARD: This was not the only copy of this document, in whose file would another copy of this document be?

MR ZWANE: The TRC, my head in particular, Mr Wilson Magadla, should be having this copy. He is in possession of this copy and the copy which was attached to it. Wilson and I have these copies.

MR RICHARD: Where is Wilson now?

MR ZWANE: He was the Head of the TRC Investigation Unit. I don't know where is he now. The TRC should know that.

MR RICHARD: Is he still with the TRC?

MR ZWANE: I am saying the TRC should know that.

MR RICHARD: Would you know that he is now a very senior person within the National Intelligence Agency?

MR ZWANE: Not to my knowledge.

MR RICHARD: When exactly did you leave the TRC?

MR ZWANE: I left the TRC in April 1997. If you are interested in the reasons why I left, I can tell you why.

MR RICHARD: I hadn't asked.

CHAIRPERSON: April 1997, did you say?

MR ZWANE: April 1997.

MR RICHARD: The detail that you have given in evidence today, is not set out in this document.

MR ZWANE: Sure.

MR RICHARD: Why not?

MR ZWANE: Look, each and every Unit, each and every organisation has got some ethics. It is not ethical to put down the names of people in a report which you have not established the true effects surrounding their involvement, in a particular case.

It would have been a hearsay document to write the names of other people which I have not established their real effects and involvement in their case.

But other than that, we used to have meetings every week, where we would give verbal report to Wilson Magadla, so Wilson might be having a copy of our verbal report to him maybe in a document form.

MR RICHARD: In an inquiry such as this, who has the right to decide what information and evidence is placed before it, you as an Investigator or the Commission itself?

MR ZWANE: When I joined the TRC, I took an oath of confidentiality that any information I have, I won't disclose to anyone, except the TRC, so it follows that the TRC might have that information.

MR RICHARD: I am not yet saying that this is the case, but you have now admitted that this written report, omits what I submit is highly relevant information, because you have decided it should not be documented? Is that what you are saying?

MR ZWANE: What I am saying is that any information without evidence, is a propaganda. Anything which I could have put here without any evidence, it would have been a propaganda and I don't think this forum is interested in a propaganda.

MR RICHARD: Now that means that you on your own are now deciding what evidence is going to be before the Commission?

MR ZWANE: What I am saying is that the evidence which is relevant to the Commission now, is that evidence which could be used to find out the circumstances surrounding the death of Sicelo Dhlomo.

MR RICHARD: And what you are saying is that this written document, Exhibit D, is what you think the Committee should rely on?

MR ZWANE: I am not here to dictate what the Committee should take as a factual data, but I am here to help where possible. If I am not of help to the Committee, the Committee is free to kick me out.

MR RICHARD: Well, I am going to ask a very straightforward question. Two Security Police gave you information about Mr Dube, I want their full names, ranks and where they are stationed now.

MR ZWANE: I am not prepared to tell you that.

MR RICHARD: Well, I am insisting that you tell me that, you have no right to withhold that.

MR ZWANE: I can't tell you that.

MR RICHARD: I am insisting.

MR ZWANE: Look, I am not prepared to put my sources at risk here.

MR RICHARD: I don't think your opinion is relevant in the matter sir. I insist that you answer the question.

MR ZWANE: Here it is a matter of principle. My principle and the principle of the TRC which I join, does not allow me to go and expose my sources.

MR RICHARD: Please quote me some authority for your right in this regard, because I submit there is none.

CHAIRPERSON: What is the relevance of this Mr Richard?

MR RICHARD: The relevance is that this witness by his statements has indicated that he, on his own volition chose what evidence should come to the Committee.

CHAIRPERSON: It is not. The question - we have heard from Mr Dube himself that he infiltrated the Security Police, haven't we?

MR RICHARD: Correct.

CHAIRPERSON: The names of the Security Police who told him, are of no importance, are they? The fact is not in issue that he did so.

MR RICHARD: What is in issue, is from where he had contract Mr Dube with the Security Police. We have his ipse dixit as indicated by this witness, there is no corroboration on any hard evidential line of when Mr Dube first became ...(intervention)

CHAIRPERSON: Dube said 1991, this witness has said 1990/1991.

MR RICHARD: But are we required to accept that evidence without testing it?

CHAIRPERSON: Have you any reason to doubt it?

MR RICHARD: I have instructions of rumours going back to 1987, that Mr Dube was an informer.

ADV SANDI: If I recall the evidence correctly, I don't think the question was put to Mr Dube as to who were his handlers, who was he dealing with in the Security Police. Did you put that question to him?

MR RICHARD: No. However, when it comes down to what you say Mr Zwane, to proceed, what we now know is that 1990/1991 the police had knowledge that it was Mr Dube and his cell that killed the deceased?

CHAIRPERSON: Why do you say that? They told him in 1997?

MR RICHARD: About what was happening in 1990.

MR ZWANE: Your question?

MR RICHARD: My question is ...(intervention)

CHAIRPERSON: Yes, they told him, but they told him in 1997. That does not mean that they knew it in 1991. By 1997 they had learnt it, don't you see the difference? They didn't tell him in 1991.

The police, when they told him, knew about what had happened in the past. I know what happened in 1652 in this country, but I wasn't there, I didn't know it at the time.

MR RICHARD: As the Chairperson pleases, but I maintain that if cross-examined, ...(intervention)

CHAIRPERSON: You were putting something incorrect, you were saying the police knew. They didn't know then, they knew when they told him what had happened in the past.

MR RICHARD: I will proceed onwards. The Chairperson of the Committee referred you to page 10 of a document headed Statement Sworn Under Oath. Who wrote that document?

MR ZWANE: I gave Dube an opportunity to put all our conversation in writing, and in addition, I told myself and I told him that I will also put our conversation in writing, and then we arranged a meeting where we compare our information and the product of that conversation, became that document, which I finally wrote and then showed him and then he agreed.

MR RICHARD: So that means that prior to the finalisation of this document, Mr Dube saw your notes of what your discussions were?

MR ZWANE: Sure.

MR RICHARD: Now where are those notes?

MR ZWANE: Those notes were in handwriting, and then I showed him and then he gave me his own notes. Then we put the two notes together in that document. I might have lost my original manuscript.

CHAIRPERSON: Do I understand then you had a meeting, you showed him your notes, he showed you his notes, and you took all the notes away with you and you sat down and wrote out this document?

MR ZWANE: Yes, as an Investigator, I had to make sure that whatever I put down, the person who is being investigated, has an access to that and that reflects what he was telling me. That statement reflected what Dube told me.

CHAIRPERSON: Yes, but you took it away, you wrote the document, the statement out from the information you had, and you then showed it to Dube and he agreed to accept it, is that the position?

MR ZWANE: Sure.

MR RICHARD: And at that stage, were you happy that what Mr Dube was going to swear an oath to affirm, was the correct recordal of the truth of the matter?

MR ZWANE: What I was happy about was that at least to a certain extent, we would have established who have killed Dhlomo. But what we would not have established was whether was Dhlomo an informer or not, or was Dube an informer or not.

Those other hanging things were immaterial. What was material was who killed Dhlomo and the person who killed Dhlomo, then makes an application for amnesty.

CHAIRPERSON: That is what interests me. The statement doesn't say who killed Dhlomo?

MR ZWANE: The statement says Dube who led a unit in Soweto as a commander, Dube and his cell, makes a collective responsibility that as a cell they have killed Dhlomo and therefore they are making an application, but not that Dube was prepared to say to me I am prepared to take the full responsibility of the case.

CHAIRPERSON: But as I understand it, you can tell me if I am wrong here, Dube had told you who had killed Dhlomo? He told you that it was the cell commander who killed him?

MR ZWANE: Sure.

CHAIRPERSON: Why didn't you put it in the statement? You said what you were happy about was that the statement would establish who killed Dhlomo.

My difficulty is if that was what you were happy about establishing, say that he decided that Dhlomo should be killed and ordered the cell commander to do so.

MR ZWANE: Okay. Maybe the issue here is whether do you define a killer as a person who pulled the trigger or do we define a killer as all the people who have plotted for a person to be killed. I define a killer in those broad terms.

MR RICHARD: What is the responsibility of an applicant when applying for amnesty, is it not to make a full and complete disclosure of all relevant facts?

MR ZWANE: It is so.

MR RICHARD: By omitting the relevant facts as to who pulled the trigger, don't you believe you are omitting a relevant fact?

MR ZWANE: Maybe I would take you back. I did not complete my investigation in this case to my satisfaction. Had I been given the opportunity to do so, I would have been sitting here with more dignity and confidence. Believe me, it is hard for me sit here without having completed that investigation.

So, it is very unfair to ask me a question whether I have omitted some relevant facts. I would ask you who defines whether a fact is relevant or not? I would say Joy is also relevant to the case, but I also omitted her.

MR RICHARD: Right. Were your Security Branch sources able to confirm that the deceased, Mr Dhlomo was an informer?

MR ZWANE: Pardon me sir?

MR RICHARD: Were your Security Branch sources able to confirm that the deceased was an informer?

MR ZWANE: By deceased you mean Dhlomo?

MR RICHARD: Correct.

MR ZWANE: No, they could not.

ADV SANDI: Sorry, did you specifically ask them whether he in fact was an informer?

MR ZWANE: I asked them and then they told me that they are not, they don't know whether was Dhlomo an informer or not. Today our knowledge, Dhlomo was not an informer.

MR RICHARD: When did you make that enquiry, before or after this statement sworn under oath as it is styled?

MR ZWANE: You will forgive me there, I am not sure, but I can put my head on the block here by giving you a history.

Each and every person I investigated, though the TRC calls them a perpetrator, they later on became my friends, all of them, from Vlakplaas askaris and so on, and after my investigation, I still had contact with them and in our discussion and in our contact, a certain information came to me and then I am not sure whether that information came to me at the stage of writing that statement or afterwards.

MR RICHARD: So your answer is you don't remember?

MR ZWANE: Sure.

MR RICHARD: Now, if you turn to the last sentence ...(intervention)

ADV SANDI: Sorry Mr Richard, if you will be dealing with a different issue, can I just ask a question pertaining to what you have just dealt with.

Mr Zwane, are you always alive to the possibility that the police could tell a lie about someone who is not an informer to say that this person was an informer? How do you deal with that?

MR ZWANE: Sure. Thousands and thousands of people have been killed with the accusation that they are informers, and others have been surviving the killing. In terms of the police we cannot conclusively rely on them as to whether was so and so an informer or not.

The police could just label a person an informer, and then you bring that information to the TRC. For instance, Maake Skosana who was accused of being an informer, though the police labelled her an informer, but the TRC investigation established that she was not an informer, so we cannot rely on the police to determine whether was so and so an informer or not.

CHAIRPERSON: The only way you could ascertain this with any certainty, is if you can get hold of the relevant docket or other books, case books or things, and there are entries in there, reflecting information that the police had received.

MR ZWANE: Sure, but you should know that the police give their sources code names and then as long as you base your information on codes, you won't go anywhere. The only person who will know the code is the handler, who happens to be a Security Branch and who are not trusted.

CHAIRPERSON: The point is if you do it conclusively enough, you can ultimately ascertain who could have supplied that information and who could not?

MR ZWANE: Sure.

MR RICHARD: But you did not make those investigations?

CHAIRPERSON: Well, you never had sight of any of the books? As I understand you were told things by certain Security Policemen, who were not concerned with the investigation themselves, they weren't handlers themselves, they merely gave you some information?

MR ZWANE: Look, from the start I said this case was, I was not tasked to investigate this case. This case came to me in the process of me investigating other cases.

So I spent little time investigating this case. Had I had enough time and opportunity, I would have been a different person sitting here.

MR RICHARD: Thank you. Go to the last line, last paragraph of your document, now Exhibit D, there you used the words

"members of his Unit, took a ..."

and I stress the word:

"decisive decision"

Then if we compare that phrase with paragraph 4 on page 10 of the bundle, there is a paragraph which says that: "circumstances that led myself ..."

that is Mr Dube:

"Sipho Tshabalala, Clive Makhubu and Sibogiseni Zungu to take a decisive decision to eliminate Dhlomo were as follows"

It is not unnatural that both documents used the same word, decisive decision. You wrote them?

MR ZWANE: I?

MR RICHARD: You wrote both?

MR ZWANE: Sure.

MR RICHARD: From that we can understand that what you were told by Mr Dube was that he and the three persons I had named from paragraph 4, took a collective and joint decision?

MR ZWANE: Sure.

MR RICHARD: And that is what Mr Dube told you?

MR ZWANE: Sure.

MR RICHARD: Is that what you believe from what your investigations reveal, to be the case?

MR ZWANE: Sure.

MR RICHARD: Would it surprise you that during evidence this week, Mr Dube said he made the decision himself and that particularly Tshabalala and Zungu were not involved in any decision making process at all?

MR ZWANE: Look, though a collective decision is being taken, but at the end of the day, one person is accountable for that particular decision. In a war situation, a commander, I would understand and believe, is the one who is ultimately accountable for a particular decision, but in the name of the collectivity.

CHAIRPERSON: You are trying to justify it, but that is not what he said. He did not say he was taking collective responsibility or anything of that nature. He said

"I made up my mind that he should be eliminated, I told Clive to shoot him."

MR ZWANE: But what I understand from my discussion with him, is that he took a decision as a collective and then killed Dhlomo, but I am not, you know, I can't ascertain whether was he eligible to take a decision or not. What I can say is that he told me that they took a collective decision.

CHAIRPERSON: Yes, he told you that they took a collective decision.

MR ZWANE: Sure.

CHAIRPERSON: That is what he wants. He came and told us something completely different. You know nothing about that, you did not know that, you thought they took a collective decision?

MR ZWANE: Sure.

CHAIRPERSON: You did not know that two of them weren't there at all, and they never discussed it?

MR ZWANE: Sure.

MR RICHARD: So then, when further down on the first page of D, you make some statements

"Sicelo was arrested by the Security Branch police in possession"

From where did you get that information?

MR ZWANE: From Dube.

MR RICHARD: Did you investigate it in any way whatsoever?

MR ZWANE: In that paragraph, I am writing about the circumstances surrounding the death of Dhlomo as narrated by Dube.

MR RICHARD: That is all I wanted. And then here we have a statement Sicelo was often seen in a car belonging to the Security Branch police, is that also Mr Dube narration?

MR ZWANE: Sure.

MR RICHARD: Did you investigate it?

MR ZWANE: No.

MR RICHARD: Then why isn't that statement in the affidavit?

MR ZWANE: I said the affidavit is the product of the two documents put together, Dube's version of our conversation and my version of the conversation. In that process, certain information is left out, but I didn't know, I don't see what difference would that have made to the sworn statement.

MR RICHARD: Let me proceed to another point. Did you discuss the matter with the other three applicants, besides Mr Dube?

MR ZWANE: I spoke to one of them, Clive. Dube came to my meeting with Clive. I am not sure Clive, but I know it is a short one, and I want to believe that it is Clive. I discussed the matter with Dube and Clive.

MR RICHARD: What did Clive say when you confronted him with Mr Dube's statements as they then stood?

MR ZWANE: He believed in what was written down as a true and honest truth and nothing more, so he supported everything Dube told me.

MR RICHARD: Then it is obvious now why in each of the applications, apart from Mr Dube's, they say please refer to Mr Dube's statement?

MR ZWANE: Sure.

MR RICHARD: No more questions.

NO FURTHER QUESTIONS BY MR RICHARD

CROSS-EXAMINATION BY MR KOOPEDI: Thank you Chairperson. Mr Zwane, you say that you got this evidence that Dube worked for or had infiltrated the Security Branch during 1991. I am not sure whether you also said this, but I just want to ascertain as to whether in your investigations or, yes in your investigations, was there any evidence, no matter how flimsy, that he was associated with the Security Branch prior that time?

MR ZWANE: To my knowledge, the only dates and years I can put my head of the block, given the evidence I have, is from 1990 up to 1992/1993, from that period, not before then.

MR KOOPEDI: There is nothing that goes backwards, thank you?

MR ZWANE: No.

MR KOOPEDI: Now, I think I have heard you correct and correct me if I am wrong, that this statement that is on page 10, the one that was shown to you, was a product of what you and Dube had worked out.

If you look at your report, at the last paragraph, the second line, you say that apparently an order was given by Dube, who was a commander at that time. Where did you get this information that an order was given by Dube?

MR ZWANE: From Dube.

MR KOOPEDI: You got it from Dube? So Dube never hid that fact from you that he is the one that gave the order?

MR ZWANE: No, he was honest about it.

MR KOOPEDI: Okay. I see your report refers to a progress report of October to November 1996, would this be the only time where you had anything to do with this matter?

MR ZWANE: I think it was the last time. This was my last and final report to the TRC in as far as the Dhlomo case is concerned, and then I left it at that stage.

MR KOOPEDI: My question is would there then be an earlier report on this matter?

MR ZWANE: Yes, there is an earlier report, but it is not in writing, it was a verbal report to Magadla, my Head.

MR KOOPEDI: Would you know if he recorded such verbal reports?

MR ZWANE: He was always taking notes when we were reporting to him.

MR KOOPEDI: Would it be correct to assume therefore that the TRC somewhere has a record of that report?

MR ZWANE: Sure.

CHAIRPERSON: Would the earlier report have been something to the effect of that you had received information that Dhlomo had been killed by members of Umkhonto weSizwe because he was an informer and you were going to check on it?

MR ZWANE: Sure.

CHAIRPERSON: No more than that?

MR ZWANE: No.

MR KOOPEDI: I must say we don't know that now Chairperson, but I will go on.

I heard you say what was important, what was material was to find out who killed Dhlomo. Was it also not material to find out why was he killed?

MR ZWANE: Sure, it was.

MR KOOPEDI: I believe that because you did not follow or complete the investigation, you were not able to find out why was he killed?

MR ZWANE: Sure, I gave the TRC a proposal that we know who, we don't know why. I needed more resources and time to focus on the why.

It was at the stage when I had differences with my superiors and then I left, so I could not establish why.

MR KOOPEDI: In your investigative experience, would it mean that the person who succeeded you in the investigation, would have followed up that fact as to why was Dhlomo killed?

MR ZWANE: I don't think so because the reason why I had differences with my superiors, was the same reason of establishing why was he killed. They were satisfied with the who only.

MR KOOPEDI: You are saying your superiors didn't want you to investigate why Dhlomo was killed?

MR ZWANE: Sure.

MR KOOPEDI: Was there any reason given why?

MR ZWANE: They told me that there are certain priority areas which the TRC should focus on, as long as we have established who, we shouldn't bother by why.

MR KOOPEDI: Okay, so it was not a priority to find out why?

MR ZWANE: Sure.

MR KOOPEDI: Okay. Now, when you spoke to Mr Dube and any other applicant that you spoke to, did you have any doubt in your mind, that full disclosure of all the relevant facts is being given to you as a TRC Investigator?

MR ZWANE: Yes, I must place on record that I spent almost four full months with Dube. You know, interacting with him on a frequent basis.

I even went to his place, I even went to Soweto and met other sources. I was confident and sure that this is a complete picture.

MR KOOPEDI: In as far as you are concerned, full disclosure of all the relevant facts relating to the killing of Sicelo was given to you as a TRC Investigator?

MR ZWANE: Sure.

MR KOOPEDI: Okay.

CHAIRPERSON: You are quite confident that this was a complete picture, but one must bear in mind, mustn't one that the picture was being given to you in 1997, was it?

MR ZWANE: Sure.

CHAIRPERSON: Nine years after the event?

MR ZWANE: Sure.

CHAIRPERSON: And no matter how honest someone might be trying to be, they might be a little confused about dates and times and matters of that nature?

MR ZWANE: Sure, but as complete a picture as possible, given what is possible.

MR KOOPEDI: Perhaps my question should have been phrased the other way round, that nothing was withheld, no information was withheld, according to you?

MR ZWANE: No information was withheld according to me, in as far as the who part is concerned. In as far as the why part is concerned, I cannot sit here and say some information was withheld.

MR KOOPEDI: Okay. Now, this lady you spoke about, would it be correct to say her surname was ...(intervention)

CHAIRPERSON: Do we want details? He has said he did not meet this lady, he merely heard gossip about her. She has not been informed, that she is going to be partly referred to here. Is she at all relevant?

MR KOOPEDI: Chairperson, but for the reason that she has not been informed, I would concede to that. However, I think it is material and very relevant in that certain assertions have been made in this hearing.

It has been put in particular to the first applicant, that the order that he gave, was not because Sicelo Dhlomo had worked for the other side, but was for other purposes.

Here is a witness who came here on the insistence of my learned friend, who gives us some other evidence and I believe in all fairness to this application ...(intervention)

CHAIRPERSON: Well, is it evidence? He gives us something that he heard from somebody? As I understand him, the reason he didn't put it in his report was that he had not satisfied himself of the correctness of this?

I think you can ask him questions, but you needn't mention names. We know who you are referring to, he knows who you are referring to, you need not mention the name. But you could find out from him precisely the reliability of any information he had.

MR KOOPEDI: I will leave out the name Chairperson. My instructions are, and please confirm or deny this, that is if you know, that this lady is known to have initially infiltrated the PAC during 1985? Do you know anything about that?

CHAIRPERSON: ...(microphone not on)

MR ZWANE: No.

MR KOOPEDI: You have not heard about that? My further instructions are that she is employed at the moment as a Lieutenant?

MR ZWANE: Sure.

MR KOOPEDI: Do you know that?

ADV SANDI: Sorry Mr Koopedi, my problem not just in line with the problems that have been raised with the Chairperson, you see, you are dealing now with the identity of this person, where she works, which organisations did she associate with, and so forth?

The problem continues to remain that she had not been notified that she might be mentioned in these proceedings?

DR TSOTSI: Do you want to call this lady?

MR KOOPEDI: I concede the point, and I think that it would be proper to call her, not only to call her, but to get you know, whoever who came after Mr Zwane as an Investigator, to tell us if any leads were ever followed and in that sense, I believe a true picture would have been put before this Committee to enable you to get to a proper decision.

It is common cause with respect Chairperson, and fellow Committee members, that the application in my mind, and bear in mind, I am not yet addressing, but this application revolves around the fact that the late Sicelo Dhlomo was killed because somebody thought he was an informer.

I believe when I have to deal with the issue of proportionality, that matter is going to be very material, whether he was or not.

CHAIRPERSON: We heard evidence yesterday that three days before his death, he was saying he had agreed to be an informer. Didn't we?

MR KOOPEDI: We did get that evidence Chairperson, and I am not sure whether that remark is intended to say perhaps I should consider not calling this lady or the Investigator that came after Mr Zwane?

CHAIRPERSON: As I understand it, you don't know what either of them is going to say. I would consider it extremely undesirable to say you want to start calling witnesses whom you have not interviewed, you don't know what they are going to say. You don't know if they can say anything that can assist us.

MR MAPOMA: Chairperson, if I may also comment on this. The Investigator who superseded Mr Zwane, did not mention this lady spoken about now.

Secondly Chairperson, this lady, there is no evidence which has been given by this witness that this lady had links directly with Sicelo for that matter. All that we have here is that this lady they are referring to was employed at the DPSC and that in itself Chairperson, I submit sir, is not sufficient for us to call that particular witness to come here, given the inconveniences, the expenses and all so on.

It is my submission Chairperson, that that witness for this particular purpose, would not be necessary.

CHAIRPERSON: I can't say that, I certainly would not at present call her on behalf of the Committee. If the applicant's Attorney wishes to arrange to consult with her and obtain information which he considers of great relevance, then it is a different matter.

At the moment, I agree with you entirely, there is no evidence. Perhaps we could ask this witness, did you, had you got any evidence of any connection between this lady and the deceased, Sicelo?

MR ZWANE: Not at all.

CHAIRPERSON: What is the purpose of the questioning, he says he knows of no connection?

MR KOOPEDI: Well Chairperson, he did mention that there were a number of leads that he was following.

CHAIRPERSON: He mentioned that he heard that this lady was an informer, he heard Sicelo was in informer, and he wanted to meet the lady to find if there was a connection, and then he stopped. That is your evidence, isn't it?

MR KOOPEDI: I concede that is what he said and wish to stress that he used the word leads. It was more to me that he had more than one lead.

However, I will not take the point any further and perhaps I have no further questions for this witness?

NO FURTHER QUESTIONS BY MR KOOPEDI

CHAIRPERSON: Any questions?

MR MAPOMA: No questions, Chairperson, thank you.

NO RE-EXAMINATION BY MR MAPOMA

ADV SANDI: Just one thing which was not very clear. This infiltration by the lady, was it the PAC or the DPSC?

MR ZWANE: No, I am not sure whether she worked as an employee of the DPSC, but she had some links with them.

The links could be they used to have meetings together, because she was a member of JODAC and ECC and by that time, there were joint meetings held between JODAC and DPSC.

ADV SANDI: DPSC not PAC?

MR ZWANE: DPSC, Detainees Parents' Support Committee.

ADV SANDI: This question I am going to ask you, you may have mentioned it, perhaps I did not pick it up.

The Security Police you say you met and they said Dube was responsible for the killing of Sicelo, did they tell you how they got to know that?

MR ZWANE: Yes.

ADV SANDI: What did they say?

MR ZWANE: They told me that their commander who happens to be a white officer, told them that he knows who killed Dhlomo, Sicelo Dhlomo and then he mentioned to them that Dube killed Dhlomo.

That is how they told me that information.

ADV SANDI: I think I heard you saying you don't want to reveal the identity of these, the names of these Security Police, but in terms of rank, how high up were they? Are we talking about lower ranked people, higher up?

MR ZWANE: The foot-soldiers, the lower ranking.

ADV SANDI: Thank you.

DR TSOTSI: Did you have any reason to believe that Dube was lying to you when he made that statement? Are there any portions of the statement which you felt you were doubtful about and thought he might be lying?

MR ZWANE: In as far as the who part is concerned, that they killed Dhlomo, I an confident that he didn't hold anything, but as to the why part, I can't say I am confident.

It remains to the TRC to find out why was Dhlomo killed.

CHAIRPERSON: I am afraid I can't find the document at the moment, but I have an idea that I saw some document, and I say this subject to correction, that the police offered a reward, something in the nature of R2 500 for information relating to the conviction of Dhlomo's killers?

MR RICHARD: Chairperson, it is the first paragraph of D, 1.1 Background.

CHAIRPERSON: ...(microphone not on) That is in your report?

MR ZWANE: Yes, this information I took it from the Security Branch officers who gave me the identity of Dube.

I am not sure whether is it a fact or is it hearsay.

CHAIRPERSON: They gave you the identity, but didn't claim the reward of R5 000, is that the position?

MR ZWANE: No.

CHAIRPERSON: Thank you.

FURTHER CROSS-EXAMINATION BY MR RICHARD: Chairperson, may I ask one further question. Does the name Colonel Pretorius feature in your discussions with Mr Dube?

MR ZWANE: No.

MR RICHARD: No further questions.

NO FURTHER QUESTIONS BY MR RICHARD

ADV SANDI: Sorry, you have not really tempted me to ask a question. Just one question Mr Zwane, this police, how did they refer to Mr Dube, were they using his proper name or any code name?

MR ZWANE: They gave me his full names, Silva Nayisele John Etumele Langa Libalile Dube.

ADV SANDI: Sorry, you have given so many names, Silva Nayisele?

MR ZWANE: John Etumele Langa Libalile Dube.

ADV SANDI: Thank you.

CHAIRPERSON: ...(microphone not on) We will take it now.

COMMITTEE ADJOURNS

MR MAPOMA: No more witnesses Chairperson, that is the end of the evidence.

MR KOOPEDI IN ARGUMENT: Chairperson, I must confess at the outset that I am not prepared as I should be - I was saying I am not thoroughly prepared for addressing you.

I would however request that I be given an opportunity to give this brief address and leave to amplify that in writing. If the Committee so permits me.

I will start by making a request that this Honourable Committee should condone any technical deficiency on the application forms on all the four applicants.

CHAIRPERSON: I don't think anybody is making anything of that, are they? The applications before us, appear some of them on the face of it, appear to be defective, but they were accepted years ago by the TRC offices in Cape Town, and I think what we have before us, are duplicates or copies. The originals somehow got lost in the post.

MR RICHARD: As to the procedure and form of the application, I make no issue, but contents is another issue.

CHAIRPERSON: Oh, contents, yes.

MR KOOPEDI: And hence I referred to the technical deficiency. May I at this stage argue that the unfortunate killing of the late Sicelo, should be viewed by this Committee as an act associated with a political objective.

Which act was committed in the course of the conflict of the past, as it is required by the Act.

CHAIRPERSON: Do you say that you want us to find that or do you say you want us to accept that the applicants believed it? Do you understand the difference?

MR KOOPEDI: I don't understand what you are saying.

CHAIRPERSON: Are you asking us to find as a fact that the deceased as a police informer or are you asking us to find that having regard to conditions which existed at the time, that the applicants believed that he was?

MR KOOPEDI: The latter.

CHAIRPERSON: The latter? I think, and this may reduce Mr Richard a little, there does not appear to be any evidence to prove or to even indicate on any strong ground, that the deceased, was an informer in any ordinary sense of the word. It may well be that he like many other young men, who were detained by the Security Police, pretended to agree to something to ensure that he was not subject to further ill-treatment or to secure his release.

That may have happened, but certainly there is nothing before us I think, and I think we all accept that, to show that he was what could be called a police informer.

MR KOOPEDI: May I, I believe it is common cause that all four applicants that have appeared before you, were at the time of commission of this killing, members of a liberation movement. These applicants believed that their actions is in furtherance of a political struggle waged by the ANC against the former State of South Africa.

May I remind you Honourable Committee members, that this was at a time where the former regime had gone all out to stamp out all opposition and protest against its oppressive rule? The country had just undergone two states of emergencies, 1985 and 1986. There was complete chaos and turmoil in our townships and particularly amongst our youth.

There was on the other hand, an offensive launched by the liberation movement, against the regime. Cadres of the liberation movement was being infiltrated in great numbers, automatic weapons could be found in abundance in our townships and the weapons I am referring to, are not the weapons that were being carried for criminal purposes, but for the furthering of the political aims of the liberation movement, which was to overthrow the government of the day.

Chairperson, it is during this time and in that political context, and in reaction to that context that this offence was committed. Looking at all the probabilities, the motive behind this killing, was political. There was no personal gain by any of the four applicants, in terms of the evidence that has come before you.

In applying your minds Honourable Committee members, to this application, I wish to urge you to be subjective, to place yourselves in the applicant's shoes at that time. The applicants were relatively young. The first applicant was 26 years old, the second and third were 21 years old and the fourth, the last applicant was 18 years old.

CHAIRPERSON: I think it is also fair to say that we should consider the two applicants, the second and fourth, in a category by themselves. It is common cause, they took no part in any decision, they did not know what was going to happen, that any offences they may have committed, are part of the cover up after the killing?

MR KOOPEDI: You have to a very large extent, taken by address to you. I will nevertheless proceed and please bear with me where I repeat what you have said Chairperson.

The first applicant stood in a position of authority to all the other three applicants. He was their mentor and their commander and their involvement in the killing of Sicelo was merely following an order issued by their commander.

As for the last two applicants, the ones you have just referred to Chairperson, on the day in question, they were just phoned by their immediate commander who ordered them to be on standby and soon thereafter, he came and fetched them, taken them to a place which was familiar to them, a place which they had used for meetings previously.

According to the evidence before you, within a minute of their arrival at this place, Sicelo was shot. It was only after that event, that a brief explanation was given to them by their Overall commander and were further ordered to keep this matter a secret.

No action on their part, could have spared Sicelo's life. At no time, in their presence, was Sicelo's execution ever mentioned. However, in the light of the information furnished to them by their Overall commander, the order issued to keep this matter a secret and their subsequent elaborate cover up, they associate themselves with this killing. It is purely on those basis that they apply for amnesty for the killing of Sicelo Dhlomo and come before you.

The second applicant, I believe his situation is also not very different. He was also told by his commander that Sicelo was a police informer, shown some broken device and told it was a transmitter, a radio transmitter and it was on the spot decided by the commander, that is the first applicant, that Sicelo must be executed.

It was as you were told, not a joint decision. From the moment this decision was made, all the relevant disclosures before you, with regard to the second applicant, his going to fetch the other two and the pulling of the trigger, indicate that he was also merely following orders.

The first applicant, his situation is somewhat different and perhaps problematic. If there is any blame to be laid, this blame may be put at his door, and perhaps I should briefly deal with the problems.

The first thing I want to deal with his whether the applicant was empowered by his organisation, to make such a drastic decision. If one looks at the fact that he was a commander, instructed to form a Unit and arm these Units for operations against the government, this will lead us to whether he needed approval or to act on orders with regard to matters of safety of his cells or Units.

I respectfully submit that his mission into the country, carried an implied mandate that he should at his discretion act in the best interest of his Unit, in terms of protecting them, and possibly to kill if this will ensure the safety of his activities.

CHAIRPERSON: In that connection, doesn't one then have to evaluate carefully what he says and why it is necessary to kill immediately?

MR KOOPEDI: I don't follow Chairperson. He would have us believe that the deceased had disappeared completely for some three months, had not been heard of at all by them. He had had no dealings with the undercover Unit, he arrives there on the Sunday, they discover he is an informer and kill him immediately.

Not to prevent him giving any information, he couldn't have given over the previous three months.

MR KOOPEDI: If I am to proceed Chairperson, during those troubled times, any person identified as an informer, was summarily killed. This is common cause, Chairperson.

Whether that would be correct or not, it is not for me to say. However, I wish to say that there is no evidence before you that other than suspecting Sicelo to be a police informer, there could be any other reason for making that order to kill Sicelo.

I wish to hasten also to say whether it is correct that he was an informer or not, the fact that Sicelo was, there is a fact that there was a bona fide belief as the applicant said, that he was an informer.

CHAIRPERSON: Shouldn't one rather suggest, shouldn't you suggest that we don't accept the fourth applicant, Mr Dube's evidence as being factually correct? That we bear in mind that he is telling us about something that happened nine years ago?

MR KOOPEDI: Chairperson, my intentions were to come to that.

CHAIRPERSON: He may be totally confused about what he is telling us.

MR KOOPEDI: Precisely. It is as if the Chairperson was privy to my notes here. I will go to that point immediately that it is a fact that this matter happened a long time ago.

It is also a fact that the first applicant had about 20 Units in the PWV area, it is also a fact that this matter happened a long time ago. It is my submission therefore, that it is possible that there are certain mix ups in terms of remembering certain things.

In cross-examination, my learned friend said to the first applicant that Mrs Dhlomo will come and say that the applicant, that is the first applicant, known as Pat at that time, was an informer, and she, Mrs Dhlomo intervened when some people wanted to kill him, that is the applicant.

It was further put to the first applicant that this would be the reason why he would want Sicelo to be eliminated, because Sicelo could have found out about Dube.

This witness was not called, there is no other evidence before you that leads us to that assumption that the first applicant could have been an informer at that time, and I would request that this should be disregarded as a possible motive.

There is also a theory that Sicelo had money on him and could have been killed for that money. We have heard that this was about R830, the amount changed to

R1 200, it further changed to R1 500. There is however no evidence that on this evening, he had this money with him. I would also request that that suggestion or any insinuation in the fact that he may have been killed for this money, should be disregarded.

CHAIRPERSON: Again, having regard to the unfortunate circumstances that existed and still exist in our country, the mere fact that a man has money on him, and it isn't found later, is not necessarily indicative that the person who killed him, must have stolen the money.

Unfortunately a number of other people have the opportunity to search the corpse and take things from it later? All we know is that nobody ever declared the money. Where it went to, we don't know, even if we do accept he did have money.

MR KOOPEDI: And finally, finally for now Chairperson, as I will be making written representation, finally, I believe that I would urge this Committee that in applying your minds to this matter, I would ask you to refer to the decision in application 0812/96 by the Honourable Ngoepe J, de Jager SC and Ms Khampepe as she then was.

To a large extent, there are similarities between this application and that application.

ADV SANDI: Who was the applicant in that application, if you can help us?

MR KOOPEDI: Excuse me.

MR RICHARD: That was J. Nkuna.

MR KOOPEDI: I didn't hear the question.

ADV SANDI: The applicant, you have just given us the reference number of the decision?

MR KOOPEDI: It was an application by J. Nkuna, C. Nkuna and D. Skosana. That application had or still has similarities with our matter here. It concerned a matter where people within the same liberation movement, like we have in this instance, had attacked each other, the one from the one side, attacking the other side.

That application also has a number of inconsistencies in the type of evidence that was given and it is my belief that by relying on that decision, this will assist you to come to a fair and just decision. I will rest for now.

ADV SANDI: Was the central issue in that matter you have just referred to, not whether the perception of the perpetrators was justified in the given circumstances or whether it was reasonable or unreasonable?

MR KOOPEDI: Well, I am referring to that matter, for a number of issues raised in the matter. One of the issues in that matter was that someone was being called an informer, and on the basis of that assumption that someone could have been an informer, the applicant, the first applicant in that matter, ordered that these people or this person, be attacked.

I am also referring to this application in terms of saying it was not clear as to what motivated that applicant to issue the order, and one may only suspect that there were other reasons, personal reasons, but as that Honourable Committee found, a decision could not be based on suspicions. It could not be based on the fact that it is not clear as to what motivated this.

It is on those basis that I refer to that decision. Thank you.

MR RICHARD IN ARGUMENT: Thank you. As has already been done, I divide the second and fourth applicants into a category of their own.

In their case, the question in terms of Section 20(2) is whether there was any act or omission which constitutes an offence or delict, which according to the criteria set out in subsection (3) is associated with a political objective, in other words an act which constitutes an offence or delict for which they may apply for amnesty.

There is the cover up, but is that an actual offence or a delict? I would submit not. Did they make themselves guilty of being what is loosely termed accessories after the fact? We know one thing that when Mr Tshabalala went to make his reports, he was escorted by the third applicant, that is Mr Makhubu who had been the person responsible for shooting, I would submit not.

Their evidence is that they took no part in the decision and were eyewitnesses to the execution. At law, even if their evidence is accepted, no offence is revealed. In other words, there is no abdication on which they may be given an amnesty and I believe the proper finding in their case, is that they should not be given an amnesty.

They haven't made out a case. The fact that Tshabalala and Mr Zungu made application for an amnesty, evidence is that they were in their opinion, guilty of something. The Act requires that they make a full disclosure of all relevant facts.

What they feel they are guilty of, they have not yet revealed.

CHAIRPERSON: What they may have felt they were guilty of, is what their fellows were trying to involve them in.

MR RICHARD: Did they reveal their involvement? They didn't reveal I think, any involvement.

CHAIRPERSON: They didn't deny it. I can understand it clearly, there was a trial and one of their fellows became a State witness, to say yes, yes, we had a meeting, we took a decision as they say in the statement at page 10. They may well feel, they had to make an application.

MR RICHARD: If we relied on page 10, which they did not ...(intervention)

CHAIRPERSON: If we accept the present version, they might agree with you, but at the time they made their applications, a different version was being put forward by the other two, wasn't it?

MR RICHARD: Quite correct. However, when it comes to the question of whether they made a full and complete disclosure of all relevant facts, the fact that there are two inconsistent versions, can only bring severe doubts as to what disclosures have been made. Much has been made of the fact that the events to which they testified this week, happened 11 years ago, but nonetheless, there are two conflicting versions and when pushed for reconciliation or justifications of the conflicts, not one of the applicants came out with anything particularly useful.

CHAIRPERSON: I think where the time period is more important than as to the events and the evening in question, is the allegations that had been made that the deceased did something in October 1987 or he did something at some other time, which may be pure confusion that what they are in fact talking about is January 1988.

MR RICHARD: I accept in that regard, it was clear from the evidence that the events the witness has intended to allude to, was the January 1988, not the previous one. I make no particular argument on that point.

However to proceed to the other category and that is Mr Dube and Mr Makhubu, there I think we have the classic situation of where most unreliable evidence has been led. In fact, evidence which I submit, should be discredited, but does that mean that the entirety of what is said, should be disregarded and their application should be completely dismissed? There is a long line of cases, the most recent of which is the S v Steinberg (1983) (3) SALR 114 (A). I have obtained a printout which I am prepared to hand up.

The gravamen of the decision that I have referred to and those append to it, is that despite the lies, there may yet be elements of truth amongst the lies. For that reason I have prepared a number of lists.

One is what facts we can extract from the four applicants' evidence, and I would list them as follows: The deceased, Mr Dhlomo was recruited in to the MK cell. The second his joining of the cell took place some time around August and September 1987; the next third, he received the most perfunctory of trainings, the fourth, the deceased Mr Dhlomo did not participate in any mission or operation of the cell and was not a party to the planning of any mission or operation.

CHAIRPERSON: Are you handing this in?

MR RICHARD: I will. It is part of my notes. The fifth was that Mr Dhlomo no longer stayed in Soweto following his brief arrest in October and went missing, that is October 1987. The next, which I think we can accept is that Clive Makhubu, the third applicant, shot the deceased. The seventh, that Mr Dhlomo was murdered some time after dark on the night of the 24th and at or near the place where the body was found by the police.

Mr Dhlomo's murder by Messrs Dube and Makhubu was kept a secret until some time after the Ellis Park incident in July 1988. Beyond that, I don't believe that much can be extracted from the applicants' evidence.

CHAIRPERSON: Well you said he disappeared, I think.

MR RICHARD: On that version.

CHAIRPERSON: Well did he, when the second to last witness I think, when I asked him questions, agreed that he had seen the deceased on the 6th of January, he had seen the deceased in December, he had seen him in November. The disappearance does not seem on the versions of the first an third, the other two don't make nearly the same thing about the disappearance and alarm, do they?

MR RICHARD: The way I phrased the point in my typed preparation was, Sicelo Dhlomo no longer stayed in Soweto following his brief arrest in October 1987.

CHAIRPERSON: ...(microphone not on)

MR RICHARD: I am reading from my typed script. Then from there on, I proceed to extract the second list and that the list of other factors that I submit, have been established. It is a somewhat more lengthy list which goes to some 17 points. I will proceed. The first is that the deceased was a member of the Soweto Students' Congress, SOSCO, certainly in 1986 and at that time, was a well-known political activist; the second point at the age of 15 in and during the period June 1986, he was held in detention under existing legislation. I refer to page 49 and 50 of the TRC bundle, but since I hand it in, I won't go through that.

Again on the 6th of December, he was acquitted on a charge of attempted murder, alternatively public violence and arson; fourth, that Dhlomo was charged with possession of a firearm and subsequently received a five year suspended sentence; my typing is erroneous here, I say suspended statement.

Paragraph 5, the fifth point, in March 1987 and in subsequent months, Sicelo Dhlomo conducted several interviews with the foreign media regarding his political activity, his experiences in detention and other related matters. Sixth point, again in March/April 1987, Dhlomo participated in the making of the documentary Children under Apartheid.

Then the October incident is the seventh point. On 12 October Dhlomo was detained briefly by members of the Security Forces in Soweto. Eight, between October 1987 and January 1988, Sicelo Dhlomo worked as a volunteer on a continuous basis at the offices of the DPSC in Khotso House, Johannesburg.

Nine, during this period Dhlomo was staying with Joe Tsawela at his flat in Hillbrow and occasionally visiting his family in Soweto. Also during this period, to return to that point, Clive Makhubu and Sipho Humphrey Tshabalala were seen at the offices of the DPSC, visiting Dhlomo.

In December 1987, the television documentary was broadcast. On 20 January, Dhlomo was arrested at the DPSC offices in Johannesburg, in connection with his participation in the documentary and released later that day.

The purposes of the detention, was to obtain a statement, as is documented in the news clipping from Dhlomo to discredit the bona fides of the documentary Children under Apartheid, TRC bundle page 63 and the statement made by the deceased, to the South African Police at John Vorster Square, which is contained in the docket.

Fourteen, on 23 January 1988, Dhlomo left for Soweto with his firearm and on Tsawela's evidence, two handgrenades and had R1 000 to R1 500 on him.

CHAIRPERSON: He didn't leave with that, he was given that?

MR RICHARD: Was handed between R1 000 and R1 500 to pass on to Joe Tsawela by the late Sophie Masithi.

The money that was in Dhlomo's possession, was never accounted for. That is the best, the furthest we can take it. On 24 January, Dhlomo meets up with Sipho Tshabalala whilst wearing red shoes, red socks, grey black trousers and a red T-shirt and has with him money, his diary, a cassette walkman which he wears on his hip.

CHAIRPERSON: Does he have the money with him?

MR RICHARD: Well according to Tshabalala's statement which is only partially true. The last point from this category is that the cassette walkman was loaned to DPSC workers, Joe Tsawela, Ntombi Masekeri and a witness that we hadn't called.

Then the next list of matters is what cannot be accepted. The first I think we have already covered and that is that the deceased, Mr Dhlomo, was a police informer. There is no evidence.

The next, it is obvious that no honest and genuine effort as alleged by some of the witnesses, was made to communicate with Dhlomo during the period of his supposed disappearance.

The third point, Mr Dube alleges that Dhlomo confessed to the allegation, which is not typed, that he was an informer. This cannot be corroborated by anyone else. I don't agree and I submit that Mr Dube's evidence cannot be accepted in this regard.

CHAIRPERSON: But he told the woman a couple of days before that he had agreed. He might have told Dube exactly the same thing and that is maybe where the whole problem arises.

Dube took it one way, the deceased meant it another way, because we have heard that he came back, he told this woman and other people there, that he had agreed to be an informer.

MR RICHARD: It is quite correct. On Ntombi Masekeri's evidence, she accepted the addition that the purpose of making the admission was to get the police off his back, for whatever reason.

On other occasions in that list, similar statements have been made, that he had done the same. What I argue on that point is if that had been Mr Dube's case, why did he need to fabricate all sorts of other points on which to corroborate himself or to corroborate his opinion? He didn't make out that case at any stage at all.

The fourth point is that we need not ask ourselves to accept, is that there was a sufficiency or adequate evidence to justify the cell taking disciplinary steps against the deceased. We have been through the matter of what evidence did he have, how long he had been out of contact and if he was an informer, which I submit there was no substantial evidence of.

The fifth point, they had no alternative but to take immediate action to kill Mr Dhlomo. Mr Dube's and Mr Makhubu's behaviour was completely inconsistent with the bona fide belief that Mr Dhlomo was an informer and that they were in imminent danger of being trapped as a result of the alleged transmission from the so-called transmitter.

The next thing that I submit cannot be accepted, there is no basis for it, that the shooting of the deceased was a bona fide MK operation. Next point, that this assassination was or is sanctioned by the ANC or MK. I have had reference to the ANC's submission to the Truth and Reconciliation Commission, dated 12 May 1997. The written submission set out in Appendix 4, does not make any reference to this particular event.

The next point that I don't believe we need to accept is that there was any necessity at all for all four members of the cell to be present at the execution.

CHAIRPERSON: That is really one of the most difficult ones to understand, isn't it? It is common cause that the other two were summonsed and brought there merely to be spectators and then immediately they say, we won't tell anybody about this. Why bring them there at all?

MR RICHARD: It is absurd. I cannot see how this Committee can be asked. And then the next point where I criticise, Mr Dube relies on various theories to justify his decision. The first one ...(intervention)

CHAIRPERSON: How much longer are you going to be?

MR RICHARD: Another five minutes. The surveillance, this is supposedly corroborated by Mr Makhubu but not by Mr Tshabalala or Mr Zungu. In this regard I believe that the fact that somebody is seen in and around Soweto and two people see each other, hardly translates into surveillance.

The next point is the alleged arrest with a Makarov pistol and a handgrenade. This simply didn't happen and there is no evidence that Mr Dube advanced to substantiate his belief that it happened.

The transmitter radio is the third leg of his argument. Masekeri and Tsawela all confirm that Dhlomo wore a walkman portable radio on his hip as might any teenager. Tshabalala goes further to say that he was wearing this on the day of the discovery of the so-called transmitter.

Of all the applicants, only Dube saw the device before it was smashed into pieces. Makhubu claims that he saw the pieces, but confirms that he could not take it any further.

I believe that this theory is nothing more than a red herring to cover up ...(intervention)

CHAIRPERSON: Isn't another factor that must be taken into account here, that if, because I think one must accept that there are two kinds of informers. There is the student activist informer that you just want him to tell you when there are meetings and this and that and there is the informer who is going undercover.

If you fit somebody out with a transmitter strapped to his body, so that you can keep in constant contact with him, it would indicate this is an undercover informer, and that you would have known where he was going, who he was seeking to make contact with.

Mr Dube says he worried about who was listening on the transmitter, but the police would undoubtedly if he was an informer of that nature, have known who he was going to make contact with and once he was killed that night, surely the only assumption one could draw is that if he was an informer, the police would have immediately visited the houses and the people they expected him to make contact with, to look for firearms, to test their hands if they had fired, the usual investigation? There was nothing done whatsoever.

MR RICHARD: And indeed it goes further, there were a number of hours between the initial meeting, sometime around sunset and the execution. There is no evidence that the police were in contact with Mr Dhlomo at that time, at all.

CHAIRPERSON: The informer is told he must go inside, and he goes and sits quietly inside, waiting for the other two outside. He makes no attempt to escape. The same when he is walking down the road with Dube. He walks along quite peacefully. None of this rings true of a person who knows he is an informer.

It doesn't effect the fact that Dube might believe he is, but merely to strengthen your argument that there is nothing whatsoever to suggest that the deceased was an informer, none of his own behaviour was what one would expect of an informer.

MR RICHARD: And that means we must now examine Mr Dube's belief and see whether any reasonable man, taking into account the times that he was operating in and his situation, could possibly come to a belief.

CHAIRPERSON: Yes.

MR RICHARD: To be short on that point, taking the inherent absurdity of the factors that he had relied on in coming to his beliefs, I submit that there must have been some other reasons of which Mr Dube has not seen fit to take this Committee into confidence on.

CHAIRPERSON: Nobody else has suggested other reasons either.

MR RICHARD: Exactly. Whatever those reasons are, we are as much in the dark today as people were in the past.

It is trite at this stage to go through the Act and recount again the requirements of full and complete disclosure of relevant facts. I am not going to go through the numerous contradictions and inconsistencies between the evidences of the evidence given by the various applicants and the written submission, except that I have never seen a worse attempt at taking people into confidence as to what true and full relevance facts of an incident were.

ADV SANDI: Sorry Mr Richard, if I can just ask you one question, looking at the evidence as a whole, is it possible for anyone to say or even suspect that Dube or anyone of the applicants may have acted out of personal gain, having a personal motive or malice? Can one make such a suggestion on the basis of the evidence that we have before the Committee?

MR RICHARD: I simply say we cannot know. There is the question of the money which substantiates nothing. It is not consistent and beyond that, again, we can only speculate.

On the level of speculation and on that point, it is my argument that it is not for us to redevelop as a matter of probability what might have happened, what could have happened. It is for the applicants to take the Committee into their confidence and reveal what their case is.

It is not for them to argue after four days' evidence, what case they might have been able to present if they had known what the evidence was going to be. That is in conflict with anything underlying the notion of full disclosure.

I have been reminded that the Dhlomo family would like to record their position in regard to this hearing. They do oppose the granting of amnesty to the four applicants. They don't condone what the four applicants did or accept their apologies therefore.

But their opposition should not be seen in any way as an attack on the ANC, the political organisation that they have supported for many years. Their opposition is based on their clear belief that the applicants attempted to place their criminal actions within the context of a legitimate struggle and in so doing, to demean the hero of the struggle, in this case, their son.

The Dhlomos' trust that the findings of this Committee will dismiss the unsubstantiated allegations made by the applications that their son was an informer for the system that he dedicated his young life to fight, and died for. Thank you.

CHAIRPERSON: Mr Mapoma, have you anything to say?

MR MAPOMA: I have nothing to say Chairperson, thank you.

CHAIRPERSON: Do you wish to say anything further, or should we wait to get a letter from you?

MR KOOPEDI: I will still wish to make final written representations.

CHAIRPERSON: How long will they take you?

MR KOOPEDI: It depends on what terms this Honourable Committee puts me to. If this Committee lets me, I am going to ask for the record and be able to do it. It depends how long this Committee gives me.

CHAIRPERSON: A week.

MR RICHARD: Chairperson, I will make a suggestion that I hand this to my learned colleague and I will print out another corrected version, where I will take the typo's out and forward it to the Chairperson.

CHAIRPERSON: When will you do this?

MR RICHARD: This weekend.

CHAIRPERSON: I will be in Pretoria next week, at IDASA.

MR RICHARD: I will get the document to Pretoria at IDASA's office.

CHAIRPERSON: Thank you. And you have a copy of this you can work on and we expect you to let us have your written, extended submissions by Friday.

MR KOOPEDI: I will do that.

CHAIRPERSON: I will be at IDASA for two weeks, the matter has been set down for two weeks, so you can let me have them there by Friday of next week.

MR KOOPEDI: I will do that Chairperson.

MR RICHARD: As the Committee pleases.

CHAIRPERSON: I would like to thank all the members of the public who have sat here so patiently throughout this long hearing, and I can appreciate what an emotional strain it must have been for the members of the family concerned and we extend our sympathy to them for their tragic loss.

Thank you all the rest of you and thank you all those who have appeared. Thank you.

I have forgotten to say thank you to the people who do the real work here, and that is the Interpreters.

HEARING ADJOURNS