ON RESUMPTION
CHAIRPERSON: Yes, thank you. As mentioned just prior to the lunch adjournment, we will be commencing with the hearing of another application now, Mr Motepe indicated that that will be the application of Mr Madonsela. Mr Motepe?
MR MOTEPE: Chairperson and members of the Committee, as with the similar application, there is a supplementary affidavit. Should I continue confirming it with the applicant?
CHAIRPERSON: Yes, I think the applicant should be sworn in or make an affirmation to tell the truth.
MR MADONSELA: I am sorry, I've got a hearing problem. The volume is too low.
CHAIRPERSON: Perhaps if you can just wait for the Sound Technician. Can you hear now, is that better?
MR MADONSELA: Yes.
ABSOLOM MADONSELA: (sworn states)
CHAIRPERSON: Thank you. Mr Motepe?
EXAMINATION BY MR MOTEPE: Mr Madonsela, you have instructed me to file an affidavit that was prepared by your full understanding, is that correct?
MR MADONSELA: Yes, that is correct.
MR MOTEPE: The contents contained in the affidavit, do you confirm the truthfulness and the correctness thereof?
MR MADONSELA: That is correct.
MR MOTEPE: I don't know if I should take it any further than that, Chairperson.
CHAIRPERSON: Are there victims present there?
MS LOCKHAT: Chairperson, the victims have been informed, but no one, none of the victims are present. One of the victims has also made a statement that is included in the Bundle, Chairperson.
CHAIRPERSON: Yes. Mr Motepe, this supplementary affidavit will be received as Exhibit A.
MR MOTEPE: Thank you Chairperson.
CHAIRPERSON: Mr Madonsela, you have also completed an application form for your amnesty, is that correct?
MR MADONSELA: That is correct.
CHAIRPERSON: And you have also subsequent to filling in the form, made certain statements relating to your application, is that correct?
MR MADONSELA: Yes, that is correct.
CHAIRPERSON: Do you confirm the contents of your application and your subsequent statements, which are contained in the Bundle before us, as being correct and what you have completed and submitted?
MR MADONSELA: Yes I do.
CHAIRPERSON: Mr Motepe, is there anything further?
MR MOTEPE: There is nothing to add further at this stage. The applicant is ready for questioning.
NO FURTHER QUESTIONS BY MR MOTEPE
CHAIRPERSON: Ms Lockhat?
CROSS-EXAMINATION BY MS LOCKHAT: Thank you Chairperson. I want to start with the first incident, that is on the 30th of May 1987, where the two Municipal police officers were assaulted. Can you just tell us, you said that Dingaan gave the orders. Did he just give you the order, or was it for Finnias and your brother as well?
MR MADONSELA: He issued the instruction out to us as the unit.
MS LOCKHAT: And, so you were all in the same unit and how many of you comprised of that unit basically?
MR MADONSELA: There were more than three people in that unit, but on that particular day when we went to carry out the act, there were only three of us.
CHAIRPERSON: Sorry, before you proceed, Ms Lockhat, Mr Madonsela, did you receive training, military training?
MR MADONSELA: Yes.
CHAIRPERSON: Whereabout?
MR MADONSELA: Inside the country.
CHAIRPERSON: From whom?
MR MADONSELA: Dingaan Sibusiso Mdlalosi and the late comrade Vusile Tshabalala.
CHAIRPERSON: And when did you join the ANC?
MR MADONSELA: I joined in 1984 or 1986, I am not sure exactly.
CHAIRPERSON: And when did you receive your military training?
MR MADONSELA: In 1986.
CHAIRPERSON: And in what did you receive training? What sort of training did you get?
MR MADONSELA: I was trained in the use of firearms, explosives, tactics, typography, military and combat work.
CHAIRPERSON: Ms Lockhat?
MS LOCKHAT: Tell me, for this incident at the sub-station, where did you get your ammunition from, your arms and ammunition, who gave it to you?
MR MADONSELA: We had weapons in our possession.
CHAIRPERSON: I think the question was where did you get your weapons from?
MR MADONSELA: From the Commander.
CHAIRPERSON: Is that Dingaan?
MR MADONSELA: Dingaan and Veyi. I would just like to explain about Dingaan and Veyi. Dingaan was the senior Commander and Veyi was second in command. On the day of the operation, Dingaan is not the person who issued the order, but it was Veyi. In my application I said it was Dingaan for the reason that Veyi is now late. He passed away in 1988. When I followed the TRC hearings, I heard that many comrades implicated Chris Hani as the person who issued orders. I thought it would be wise for me to name someone who is still alive, who can confirm about the operation because at that time, Dingaan was outside the country, but when he returned, Veyi did report to him about the operation, that he had issued such and such an order and it had been fulfilled. He also showed him the firearms that were obtained from that operation.
CHAIRPERSON: Sorry Veyi, is that Tshabalala?
MR MADONSELA: That is correct.
CHAIRPERSON: So when you say in paragraph 3 of your statement that an order was issued by Mr Dingaan Mdlalosi to disarm the guards and drive you, you are basically saying that he only ratified the operation after it had been finished, but Veyi Tshabalala in fact gave the order prior to the operation?
MR MADONSELA: That is correct.
MS LOCKHAT: And was Vincent Tshabalala as your Commander, was he happy with that incident, was he - did he authorise the shooting of the policemen and so forth? Did you inform him that you did in fact shoot the policemen?
MR MADONSELA: The order as such did not specifically mention that we must shoot at them, but that we should disarm them and then drive them out of that area, after which we would turn on the lights, that they switched off.
MS LOCKHAT: And when you informed Tshabalala that you did in fact shoot these policemen, what was his opinion on it? What did he inform you?
MR MADONSELA: When we explained how the operation went, he questioned as to why we had to shoot and I responded that as a trained person, if I point my firearm at somebody who is also trained, and someone who is also armed, you should try and act before that person does. When we approached them and pointed our firearm at them, one of them went for his firearm and that is how it came about that I also fired a shot at him. Thereafter that explanation, he was satisfied.
MS LOCKHAT: So tell me, and then was your mission accomplished, did you quickly switch on the electricity again, was it normalised after that? Did you have any problems in relation to the switching off of the electricity again?
MR MADONSELA: After we attacked them, we had to flee, because the area was busy. But after they had left, we returned and we switched on the lights and left again.
MS LOCKHAT: I want to come to the incident at paragraph 4, where you were found in possession, where you were carting the guerrillas around and you were found in possession of a stolen vehicle. Can you tell us whose vehicle that was, where did you obtain that vehicle from?
MR MADONSELA: My elder brother was involved in stolen vehicles. When I got involved with MK, I realised that the comrades required transport to move around the country. Most of them were from the 76 detachment. My brother who used to be involved in stealing cars, was informed by me of the operations and eventually he also got involved in the ferrying of comrades from areas like Rustenburg in the North West Area. I would pick them up from there and transport them to Soweto. Those were the cars I used and they were stolen by my brother. I used them for security reasons.
CHAIRPERSON: Mr Madonsela, why didn't you mention this car - being in possession of stolen cars? I see in your affidavit you apply for your arrest and conviction in respect of being in possession of a stolen car, after your arrest in 1987 and then again during 1993, you were again found in possession of a stolen car. Why didn't you mention any of that in your application form?
MR MADONSELA: The 1986 incident, I regarded it as a past incident and I was convicted for it.
CHAIRPERSON: It is a passed incident? So is the shooting of the two policemen at the sub-station a passed incident? But you included that in it?
MR MADONSELA: The shooting of the policemen resulted from an order that was issued by the Commander. The stealing of a vehicle, was not from an order issued by a Commander, but it was stolen by my brother.
CHAIRPERSON: Ms Lockhat?
MS LOCKHAT: So you did not participate in the stealing of the car, is that correct?
MR MADONSELA: That is correct. The Commanders insisted that I remain with them, so that my whereabouts would be always known.
JUDGE DE JAGER: Do I understand you correctly that you were never ordered to steal anything by your Commander? He did not order you to steal a car or money or anything, except the guns?
MR MADONSELA: That is correct.
MS LOCKHAT: Did your Commanders know that you were transporting your comrades in stolen vehicles?
MR MADONSELA: As I mentioned before, I already explained why we used stolen vehicles. For instance, if we were involved in a chase, we should be able to leave and desert the vehicle to flee.
CHAIRPERSON: Mr Madonsela, did your Commanders know that you transported comrades in stolen vehicles, that was the question? Did your Commanders know that you used stolen vehicles?
MR MADONSELA: Yes.
MS LOCKHAT: Did you inform them of this, did you actually tell them "look, we are transporting these comrades in these illegal, stolen vehicles", how did they come to know about it?
MR MADONSELA: As mentioned earlier, there was a need for transport that would ferry them and we decided upon using stolen vehicles and I would inform them as to where the vehicles came from, because they also enquired as to whose vehicles those were.
MS LOCKHAT: And let me just clarify, and what were you charged and sentenced for in this specific instance? Were you charged for ...
CHAIRPERSON: That is the one mentioned in paragraph 4 of your statement, the one in 1986, for which he skipped bail. What was the charge against you?
MS LOCKHAT: Thank you Chairperson.
MR MADONSELA: I was arrested in connection with a stolen vehicle.
CHAIRPERSON: What was the charge, can you remember? If you cannot remember, tell us? Was the charge theft of a vehicle, or was the charge using a vehicle without the owner's consent or do you know what the actual charge was? Was it theft?
MR MADONSELA: It was car theft.
JUDGE DE JAGER: And the sentence?
MR MADONSELA: I was under age, so I received corporal punishment.
MS LOCKHAT: When did you escape from Leeukop Medium A prison, which year was that?
MR MADONSELA: September 1991.
MS LOCKHAT: And then you were also found and charged again with the possession of a stolen vehicle or theft of a vehicle, that was in 1993? Is that correct?
MR MADONSELA: That is correct.
MS LOCKHAT: So for those three years, where were you situated? Where were you living?
MR MADONSELA: At home.
CHAIRPERSON: Where were you going to go to in Zambia?
MR MADONSELA: To Ndola which was one of the ANC camps.
MS LOCKHAT: So when did you decide to skip the country, when did you decide to go into exile?
MR MADONSELA: After I had applied for indemnity, after a long while, I decided that it will be better to skip the country for Zambia, whereupon I would then make another application for indemnity.
MS LOCKHAT: So basically you received no response from the people whom you applied for indemnity for, is that right or were you refused indemnity?
MR MADONSELA: I wrote and made many applications whilst I was in prison, for which I got no response, and even after I had escaped from prison, I had still not received any response.
MS LOCKHAT: And Finnias, when did he receive his response that he actually got indemnity, were you still in prison at that time, with him?
MR MADONSELA: Are you referring to my brother, my brother is late.
MS LOCKHAT: Sorry, Finnias, he visited, he was not in prison with you, sorry, my apology. But he informed you that he got indemnity? Was that whilst you were in prison?
MR MADONSELA: He returned from Angola in 1991 and he visited me in prison to inform me that he had received indemnity and he was also surprised as to why I had not received the same, that is also the reason why I decided to escape from prison, and apply for indemnity when I am already outside the country. I did not receive any response as to whether my application had been turned down or what.
MS LOCKHAT: And then you said that a friend of your brother's, gave you this Nissan bakkie and you were going to use this bakkie to go to Zambia and to leave the country. Did you know it was a stolen vehicle?
MR MADONSELA: That is correct.
JUDGE DE JAGER: Must we entertain that application at all, was it timeously made, was it connected as a - can you apply for amnesty after the cut-off date? There was no indication of this offence before?
MS LOCKHAT: The applicant was very vague in his application, he just said robbery and then he mentioned the attempted murders.
CHAIRPERSON: My reading of it and I have just read it again now, is that the application is really just about the electrical sub-station, switching the lights on, shooting the two policemen, taking the guns. There is no hint of anything else.
JUDGE DE JAGER: Of stolen cars, at least.
MS LOCKHAT: The point is taken, thank you Chairperson.
CHAIRPERSON: Sorry, there is just one thing I cannot understand, I think this must be a typing mistake, because you say Vusi stole a motor car and he then gave it to you to use to get out of the country, and then you say
"... I told the truth to the police. I informed them that Vusi knew nothing about the stolen car."
I mean that is a contradiction, first of all you say Vusi stole the car, then you say you told the truth to the police and informed them that Vusi knew nothing about the car, what is the situation? Do you see that Mr Motepe, it is paragraph 5, just above conclusion?
"I then approached a friend of my brother for assistance in terms of transport. He gave me a Nissan bakkie and informed me that it had been stolen two weeks before."
So it wasn't Vusi, you didn't get the car from Vusi?
MR MADONSELA: No, it is not Vusi Chairperson, Vusi and the friend of my brother is not the same person.
CHAIRPERSON: Okay, no that is fine, that explains it. Thank you. Ms Lockhat?
MS LOCKHAT: No further questions to the applicant, thank you Chairperson.
NO FURTHER QUESTIONS BY MS LOCKHAT
CHAIRPERSON: Mr Motepe, do you have any re-examination?
RE-EXAMINATION BY MR MOTEPE: I do have one, Chairperson. Mr Madonsela, you testified that you - perhaps before I should continue on this, what is the status on this applications?
CHAIRPERSON: We will have to hear you in argument on that one, I think Mr Motepe.
MR MOTEPE: All right. Mr Madonsela, you testified that at some stage, some stages, you used stolen vehicles. Can you explain to us what the motivation was of using stolen vehicles as opposed to borrowing a car that was being owned by someone legitimately, so that you can go and carry your mission, why did you opt for these stolen cars?
MR MADONSELA: We used stolen vehicles, so that they could not trace us after for instance carrying out an attack. For example if they could identify or if somebody identified the registration number at the scene of the incident, then they would not be in a position to trace it back to us.
JUDGE DE JAGER: Sorry, you are saying so that they could not identify you when you were carrying out an attack, but you only carried out one attack and that was on the electrical sub-station and you went there by foot?
MR MOTEPE: Perhaps if I can assist, my understanding was that he was saying that was the motivation behind using stolen vehicles, not that at the particular stage they were arrested using them. It is true that they went on foot to the sub-station, but the motivation behind using the vehicles, was for an eventuality that they were arrested or something of that sort, so that there won't be trace of the owner of the vehicle. Mr Madonsela, but after using these cars, what happened to them? What happened to the stolen cars?
MR MADONSELA: After an operation, we would normally dump them at freeways because if you carry out an operation and you are found in possession of a stolen vehicle, that will link you to that operation. So we will take those vehicles and leave them in a busy road, say a freeway so that they be found.
MR MOTEPE: I've got no further questions.
NO FURTHER QUESTIONS BY MR MOTEPE
CHAIRPERSON: Thank you. Judge de Jager, do you have any further questions you would like to ask?
JUDGE DE JAGER: I still don't understand this last answer of yours, because if you didn't take part in any operation, then there was no need to leave the car on the freeway. Now you used a few cars, were there then in fact other operations you took part in, and you left the cars after the operations, or what is the position?
MR MADONSELA: By this word operation, I am also referring to the collection of cadres from Rustenburg to Soweto. Those are the sort of operations I was mainly involved in because I was in the Transport Department. Therefore after collecting those comrades, I would leave the vehicles on the freeway.
JUDGE DE JAGER: How many vehicles did you use, one or two or twenty or thirty?
MR MADONSELA: I may have infiltrated three units into the country, so it is possible that it was three cars that I used.
CHAIRPERSON: Adv Sigodi, would you like to ask any questions?
ADV SIGODI: Just on the incident at the, to the two people who were shot. There is a statement here by Mr Skweni on page 15 of the Bundle, paragraph 2, he says that, I think this is the statement that he made to the police for the trial
"I just heard the voice "staan vas" and the person shoot at me. I fell down and when I woke up, I found that my firearm was taken away. I managed to run until I fell down again, the person shot me at the stomach."
How many times was this person shot?
MR MADONSELA: I recall firing one shot.
ADV SIGODI: Where did you shoot this person?
MR MADONSELA: It was somewhere on his body as the applicant is indicating, because when I told him to stand still, and he tried to reach for his firearm, I shot immediately. So I am not sure just exactly where I hit him.
CHAIRPERSON: What sort of firearm did you have?
MR MADONSELA: A 45 pistol.
ADV SIGODI: The second person who was being shot at, the intention was to kill this person, is that correct?
MR MADONSELA: The second person lay flat on the ground and after Finnias had removed the weapons, he said "you did not shoot this person", and I told him that we must leave and on saying this, he shot at this person with the same firearm that he had removed from them. I learnt in court that that person was shot on the thigh.
ADV SIGODI: In other words did you associate yourself with what Finnias did to the other guard or did you not associate yourself?
MR MADONSELA: As I mentioned before, the order was not that we should shoot, but - because Finnias had already carried out the act, there was nothing I could do. I could not dissociate myself from the act.
ADV SIGODI: Yes, but I just want to get clarity on this point, because you are also applying for amnesty in respect of both guards, is that correct?
MR MADONSELA: That is correct.
ADV SIGODI: I just want to clarify this aspect with you, you say that you shot the first guard and you accept full responsibility for that, is that correct?
MR MADONSELA: That is correct.
ADV SIGODI: Right, and then the second guard lay on the ground and then you took his gun, he was of no danger to you at that time, is that correct?
MR MADONSELA: I would not say so. He could not shoot at us, but we were on a busy road, so he could have received assistance even before we turned the corner.
ADV SIGODI: Yes, but then you said that if I heard you correctly just now that you said that you told Finnias not to shoot at the second guard, didn't you say that?
MR MADONSELA: That is true, but as a soldier, he also took the initiative. It must have been, it might have been that he thought for security reasons, it was better to shoot at this person, and there was nothing I could do after he had carried out the act.
ADV SIGODI: But by saying to him that he must not shoot, wasn't that an act of disassociating yourself with Finnias' action?
MR MADONSELA: At that time I was trying to fulfil the order, but I could not reverse the situation after he had shot at him.
ADV SIGODI: In other words when Finnias shot him, he was acting outside the ambit of the order?
MR MADONSELA: Yes, I would accept that because we did not receive such an order, but I also had to shoot because the other person was reaching for his firearm. The second person lay flat on the ground.
ADV SIGODI: So you shot the first person because he was reaching for his firearm, his rifle?
MR MADONSELA: That is correct.
ADV SIGODI: Do I hear you correctly or do I understand you correctly if you say you shot because you thought he was going to shoot you?
MR MADONSELA: Without any doubt, if I had given him a chance to remove his firearm and point it at me, he would have shot me.
ADV SIGODI: So were you not shooting him in self defence?
MR MADONSELA: That is so.
ADV SIGODI: In other words it was not necessary for you to shoot at the two guards, you only shot just to defend yourselves, is that correct?
MR MADONSELA: That is correct.
ADV SIGODI: You could have removed them from the scene without shooting at them? You could have chased them away from the place where they were guarding without having to shoot at them.
MR MADONSELA: Yes, the order issued was to disarm them and drive them out of that place.
ADV SIGODI: Thank you Chairperson.
CHAIRPERSON: Were you, did you know that there were still camps in Angola in 1993?
MR MADONSELA: I did not have that information, but I was aware that there were some comrades who went outside the country.
CHAIRPERSON: So had you made plans about where you were going to in Zambia or what, or were you just going to go there and look for people?
MR MADONSELA: On my arrival in Zambia, I would look for MK contacts, but I knew the place where I was headed.
CHAIRPERSON: Had you been there before, to Ndola?
MR MADONSELA: Yes.
CHAIRPERSON: When did you go to Ndola?
MR MADONSELA: In 1984.
CHAIRPERSON: Why did you go to Ndola in 1984? Was that when you were 16 years of age?
MR MADONSELA: Yes.
CHAIRPERSON: Why did you go to Ndola in 1984?
MR MADONSELA: As mentioned before, I was in the Transport Department. We did not cross the border legally when we went there, but we would go collect firearms and other comrades to infiltrate.
CHAIRPERSON: What were you doing in the Transport Department when you were 16 years of age? Wouldn't it be ridiculous to place you in the Transport Section because if any Traffic cop stops you and ask you for your driver's licence, you won't have one? And now you are saying you are driving all the way up to Ndola, carrying guns and comrades and things and you are 16? Who put you in the Transport Section when you were 16?
MR MADONSELA: I did not drive from Ndola, but I only drove inside the country. With regards to the police, the order that was issued to me was that I should not stop. So even if I met one, I would not stop, I would just drive passed and find a place where we can desert the car and flee.
CHAIRPERSON: When did you learn to drive? When did you learn to drive?
MR MADONSELA: While I was still very young, I think I was 12 years old when I was arrested, when I was arrested for driving without a licence. I was driving my father's car at the time. My brother was a mechanic.
CHAIRPERSON: Where is Ndola in relation to Lusaka?
MR MADONSELA: It is in Lusaka, it is not very far.
CHAIRPERSON: Did you say Ndola is in Lusaka?
MR MADONSELA: I would ...
CHAIRPERSON: Do you think it is like Johannesburg and Soweto, Ndola and Lusaka?
MR MADONSELA: Yes, that is how I would put it.
CHAIRPERSON: Well, I will check it up on the map, but as far as my knowledge goes, Ndola is way up north in the Copper Belt, hundreds and hundreds, if not thousands of kilometres from Lusaka. I have been to Ndola, but many years ago, but I remember it wasn't next to Lusaka. What do you say to that?
MR MADONSELA: I would not dispute what you say, but it is just my estimation.
ADV SIGODI: Just one more question. Was your brother also an MK member, Siffania?
MR MADONSELA: Siffania was not an MK member.
ADV SIGODI: So what was he doing with you when you went to attack the two guards?
MR MADONSELA: As I mentioned before, he used to assist us with transport, so even on that day, I had to collect him because the guards had big firearms in their possession. We did have a vehicle that we had parked a distance away from the spot.
ADV SIGODI: Thank you.
CHAIRPERSON: Thank you. Mr Motepe, do you have any questions arising?
MR MOTEPE: I've got no questions.
NO FURTHER QUESTIONS BY MR MOTEPE
CHAIRPERSON: Ms Lockhat?
MS LOCKHAT: No questions, thank you Chairperson.
NO FURTHER QUESTIONS BY MS LOCKHAT
CHAIRPERSON: Thank you Mr Madonsela, that concludes your evidence.
WITNESS EXCUSED
CHAIRPERSON: Mr Motepe, are you leading any further evidence?
MR MOTEPE: There is no further evidence to be led.
CHAIRPERSON: Ms Lockhat?
MS LOCKHAT: No, thank you Chairperson.
CHAIRPERSON: Thank you. Mr Motepe?
MR MOTEPE IN ARGUMENT: Chairperson and members of the Committee, as far as the offences relating to the vehicles, I can find nothing in the Act that will allow us to launch an application at this late stage and without in fact, having filled Annexure A ...
CHAIRPERSON: Yes, it seems, I think one of the difficulties Mr Motepe is, if an offence is omitted from the form, which is linked up to the offence above, or it is not really a problem, like for instance, if the applicant applies for amnesty in respect of murder and it turns out that in the evidence, that the victim was shot during the course of a political operation with a gun that wasn't licensed, you know, having that licensed gun, that is sort of intricately linked with the act, but if somebody applies for some other offence that has got nothing to do with the incident applied for, then there is a difficulty.
MR MOTEPE: I do consider we do have a difficulty at hand, so perhaps one should just limit himself to - that is correct - 1987. It is the evidence of the applicant that on this particular day, he had specific orders, he was acting under orders and we would know that around that area, we had a situation where they ran boycotts around the country, and as he explained in his supplementary affidavit, there were dangers for them to be caught in such dark situations where electricity was not activated. They were easy targets for the Security Branch and one would even add that even criminal elements would roam easily, and they ...
JUDGE DE JAGER: Sorry, I think you could accept we wouldn't have problems with going there in order to switch on the lights, even if it meant assaulting the people there. I think that we would, or speaking for myself, I would consider that to be associated with a political objective. My problem would be if they had been ordered to disarm the people, was it necessary to kill them after he had been disarmed?
CHAIRPERSON: I don't think they died, they went ...
JUDGE DE JAGER: Oh yes, yes.
MR MOTEPE: Yes, it was just attempted murders. The situation was that when they arrived there, the guards were obviously armed and there was a rifle at view, and when the guards were ordered to "staan vas" as they were ordered, one of them attempted to grab the rifle. Logic would tell us that a security guard in that situation, realising that he is in danger, he was going to shoot.
CHAIRPERSON: Yes, you've got a situation now?
MR MOTEPE: Yes. It is a situation that did not require a Commander to come and say "now shoot", he was far remote at that particular time. It was an emergency, if one can say so, he was faced with a situation and he had to, in my submission, he had to do it. Had he not done it, he wouldn't have accomplished his task of firstly complying with the command of reactivating the sub-station. So yes, the shooting at that particular time, although there was no specific command on the shooting, in fact there was a command to an effect "do not shoot", just disarm and drive them out, but they were faced with a situation, they had to shoot and that is what they did. In my submission ...
CHAIRPERSON: I think what does the command "disarm" embrace? I mean, when I give you an order "go and disarm those armed guards", does that necessarily exclude the use of violence?
MR MOTEPE: Not at all. In fact it has been part of our history that people in the communities were ordered, comrades were ordered or told to go and disarm policemen and they used to kill those policemen in order to get those arms. It was almost a similar situation, the Commander couldn't have, he never perhaps foresaw the situation, but couldn't have wished away the fact that there might be a shooting. Once you talk of disarming a person who is trained and armed to guard a particular place, you want to remove him from the place and you want to take his arm, obviously he has to comply with his orders himself.
JUDGE DE JAGER: I think it is sort of by implication that you should foresee there could be violence and there could be shooting?
MR MOTEPE: That is correct. And all the incidents emanating from this particular occurrence, in my submission they do qualify as politically motivated. What other motivation would they go and want to switch on the power station, was it only for their homes? No, but for the community at large, with a clear command from their Commander. In my submission, on this particular occurrence, the applicant does qualify for amnesty.
JUDGE DE JAGER: I am only, I've got still problems with the second shooting, after he had been disarmed, isn't that disproportionate to his objective then?
MR MOTEPE: In a sense it is, but if one looks at the supplementary affidavit, they reached a stage where they both thought that the one who was shot, was dead. The other one who was alive, obviously had a chance of looking them in their faces, and he was going to be a danger, after this, and one would accept that ...
CHAIRPERSON: A danger in the sense that he might identify them?
MR MOTEPE: Precisely. He might identify them and lead to their subsequent arrest and convictions. For that particular reason, although one is sitting here looking at it, it looks as though it was disproportionate, but it is very clear that it arose from that particular incident, and in order to quell whatever leads that might be endangering them. It is my submission that it is in that context that that particular shooting happened. In my submission therefore, the applicant at least as far as this occurrence, has made a full disclosure and he does qualify in terms of the Act. Thank you Chairperson.
MS LOCKHAT IN ARGUMENT: Chairperson, I concur on almost everything my learned colleague had stated in this application. It is an issue which Adv Sigodi did raise, that once these two policemen were disarmed, one was laying flat on the ground, the other one was already shot. They could have left at that stage, and just left and hoping that they would not be recognised, but it seems that it was an issue for the applicants, at that stage, that they might be identified by the policemen. The fact that, it doesn't seem as if they were good shots either, if they even wanted to kill both the policemen, because the one was shot in the stomach and the other one in the leg. I mean it just so happen that they also did identify the applicants. The fact that this applicant also associates himself with that act by Finnias, is important. He associated himself with the continuous act, by Finnias, and his reason for shooting the policemen was because he was afraid he was going to be attacked and shot in return, where Finnias had another objective, maybe this applicant didn't go that far to think that "look, we might be identified" and Finnias then took it a bit further, and asked him "did you shoot the person", that is what the applicant stated, that Finnias actually asked him whether he had shot the person and he said no, and then Finnias just continued the act.
CHAIRPERSON: And do you agree with Mr Motepe with regard to the other incidents, the driving, the vehicles?
MS LOCKHAT: In respect of that particular ...
CHAIRPERSON: In respect that they are not before us?
MS LOCKHAT: I, that is my submission as well Chairperson, thank you.
CHAIRPERSON: Thank you, do you have any reply Mr Motepe?
MR MOTEPE: I've got no reply Chairperson, thank you.
CHAIRPERSON: Yes, thank you Mr Madonsela, Mr Motepe, Ms Lockhat. That brings this hearing to a conclusion, we will reserve our decision in this matter and it will be handed down as soon as possible.
MR MOTEPE: Chairperson, concerning other matters, one of the applicants, I was only able to consult with him this morning, and even then it was not a full consultation. The other applicant as I have indicated in the chambers, there is some difficulty with his evidence, I was still trying to sort it out, and find out exactly what the real story is. I would perhaps ask the Commission to, I have already discussed that with Lynn that perhaps we should continue tomorrow. We will be able to finalise all these matters tomorrow, if that will please the Committee?
MS LOCKHAT: That is in order with me, Chairperson.
MR MOTEPE: I am indebted to the Committee.
CHAIRPERSON: Yes, thank you. Mr Motepe has indicated that he would like a bit of time to take further instructions from his clients in these two remaining matters in which he appears. It is now after three o'clock, he has asked whether we could then commence tomorrow morning. His request does not seem to be unreasonable and we will accordingly adjourn until tomorrow morning, at this venue, I think at half past nine? At half past nine tomorrow morning. The people from Correctional Services, is half past nine tomorrow morning, will that be all right? Thank you, thank you very much.
MS LOCKHAT: Thank you Chairperson.
MR MOTEPE: Thank you Chairperson
CHAIRPERSON: So we will then adjourn until half past nine tomorrow morning.
MR MOTEPE: Thank you Chairperson.
COMMITTEE ADJOURNS
