ON RESUMPTION
CHAIRPERSON: Good morning everybody. Before we proceed I would just like to briefly introduce the Panel to you. On my right is Judge John Motata, a Member of the Amnesty Committee. He comes from Johannesburg. On my left is Mr Jonas Sibanyoni, also a Member of the Amnesty Committee, he is an attorney and he comes from Pretoria and I am Selwyn Miller, also a Judge and I come from Umtata. We'll now commence with the amnesty applications of Siphiwe Nyanda, Solly Zachariah Shoke, Malakole Johannes Rasegatla.
These proceedings will be simultaneously translated and if you wish to benefit from the translation you must be in possession of one of these devices. If you do not have one they Vare available from the sound technician. Channel one is Afrikaans, channel two is English, channel three is Zulu or any other language that is available. At this stage I would request the legal representatives to kindly place themselves on record?
MR BERGER: Thank you Chairperson, my name is Danny Berger, I'm appearing on behalf of General Nyanda, General Shoke and Mr Rasegatla. I'm instructed by the firm Nicols, Cambanis and Associates. My attorney is Ms Crystal Cambanis.
CHAIRPERSON: Thank you Mr Berger.
MR MOTLOUNG: Thank you Mr Chairperson. My name is Ike Motloung from the firm Motloung and Associates in Germiston. I'm appearing on behalf of some victims on instructions of the Legal Aid Board. Thank you.
CHAIRPERSON: Thank you very much.
MR WAGENER: Chairperson, good morning. I am Jan Wagener from Wagener, Muller, Pretoria. I represent one victim, Mr Dewald Jacobus Visagie. He is a victim in the incident. You will find it on page 16 of your bundle as item number 33, where General Nyanda refers to an attack at the Wonderboom Police Station in 1981. Thank you.
MS PATEL: Thank you Honourable Chairperson. Ramula Patel, Leader of Evidence.
CHAIRPERSON: Thank you Ms Patel. Mr Berger?
MR BERGER: Thank you Chairperson. Chairperson, this amnesty hearing concerns attacks which were carried out by the Transvaal Urban Machinery of Umkhonto weSizwe. The first applicant, General Nyanda, is presently the Chief of the South African National Defence Force. He will be giving evidence in relation to many of the attacks - well, in relation to the attacks that are set out in the bundle of documents at pages 14 to 16. I think before we say anything more about his evidence, perhaps General Nyanda should be - he's not going to be sworn in.
CHAIRPERSON: Well I'll ask him. Would you prefer to make an affirmation, General?
SIPHIWE NYANDA: (affirms)
EXAMINATION BY MR BERGER: Thank you Chairperson. Chairperson, you will see in the bundle that there is an amnesty application which starts at page 4, this is for General Nyanda, running through to page 10 and together with that there are further particulars which were submitted by General Nyanda. I have to go through the same exercise that I did in White River because the bundle is, as they say in Afrikaans, it's "'n bietjie deurmekaar".
Chairperson, you'll see that the further particulars start at page 13, then the second page of the further particulars appears at page 18 and then 19 and then back to 14. Also Chairperson, you'll see that in the particulars there are certain annexures referred to. At page 13 there's annexure A that is being referred to and that is the amnesty application which I referred to earlier, running from page 4 to page 10. Then annexure B is the document that you will find in today's bundle at page 141. For some reason the annexures were divorced from the particulars. Annexure C is the document in today's bundle at page 143. D is at 142, E is at 144, F is at 145, G is at 146, H is at 137, I at 138, J at 139 and K at 140. Annexure L has been left out altogether.
CHAIRPERSON: They seemed to have made it as difficult as possible for us but thank you Mr Berger.
MR BERGER: Thank you Chairperson. Annexure L, I can just tell you, is an extract from the argument in relation to the Johannesburg car bomb and there, all that is relevant, is that Mr Landman who was appearing on behalf of the applicants in that application said the following, he said
"Mr Chairperson, you'll also recall that we placed on record that General Nyanda, the person who gave the orders, does not intend to contradict any of the evidence which was given and indeed I'm instructed to inform you that he confirms that that is indeed the correct position that the orders emanated from himself."
My attorney in fact has the record from that application and she is willing to hand it up to you.
CHAIRPERSON: Thank you. Do we have photocopying facilities here, Ms Patel?
MS PATEL: Apparently, the machine has conked in, Honourable Chairperson, so we don't.
CHAIRPERSON: Thank you, but as long as we know it's available. You've told us what it is and I'm sure we'll remember that.
MR BERGER: Thank you Chairperson.
General Nyanda, is it correct that you are presently the Chief of the South African National Defence Force?
GEN NYANDA: That is correct.
MR BERGER: You've made application for amnesty and your application runs in the bundle from pages 4 through to 10, is that correct?
GEN NYANDA: It is so, yes.
MR BERGER: You confirm that that is your application?
GEN NYANDA: It is, yes.
MR BERGER: You've already given evidence in relation to this application in relation to Operation Hlatshwayo which was the landmine operation. Do you confirm the evidence that you gave at the previous hearing?
GEN NYANDA: I do confirm, yes.
MR BERGER: Also at the previous hearing you were referred to your further particulars which start at page 13. You heard what I said about the order of documents and the annexures that ought to have been attached to your further particulars. Taking that into account, do you confirm that the particulars from pages 13 through to 20, together with the annexures that I refer to, are in fact the particulars supplied by you?
GEN NYANDA: They are, yes.
MR BERGER: Could you briefly - it's in your further particulars, but just for the purposes of the victims who are here today, could you briefly sketch your involvement in Umkhonto weSizwe from approximately 1977 onwards?
GEN NYANDA: Well, in 1977 the ANC command, operational command, formed the Transvaal Urban Machinery as well as other structures to prosecute military struggle in the Transvaal urban areas, Transvaal rural areas, Natal and so on.
MR BERGER: You'll just have to speak up?
GEN NYANDA: I was appointed Commissar which was then a Deputy Commander of the Transvaal Machinery, Transvaal Urban Machinery. In the event the Commander of the Transvaal Urban Machinery died in 1978, early '79 and I assumed command of the Transvaal Urban Machinery in 1979 through to about 1983 when again the structures of the command changed and I was appointed Chief of Staff of the Transvaal Machinery, the entire Transvaal Machinery, in 1983 through to about 1985 or so.
MR BERGER: Then during the period 1984 to 1985 you were part of the political military council?
GEN NYANDA: Yes I was.
MR BERGER: And after that period 1986 to 1988?
GEN NYANDA: Period '84 to '86/'87 I was - '85 to '86 I was made Commander of the special machinery called - operational machinery called Hlatshwayo which was responsible for the landmines which you referred to earlier. After 1986/1987 I was withdrawn and preparations were made for me to infiltrate into the country in another operation.
CHAIRPERSON: Sorry, during this period that you've been speaking about, General, where were you based, where did you operate from?
GEN NYANDA: I was based mainly in Swaziland and Mozambique in the late '70's, early '80's and in the late '80's I then infiltrated into the country.
CHAIRPERSON: Thank you.
MR BERGER: Now, in your amnesty application, particularly at page 5, paragraph 9(a)(i), you were asked to furnish sufficient particulars of the acts in respect of which you seek amnesty and you say under (i), you say
"Acts unknown to me unless stated otherwise by individual amnesty applicants"
and then as far as the nature and particulars are concerned, (iv), - have I been off all this time?
GEN NYANDA: Yes.
MR BERGER: Sorry, I'll have to start again.
Page 5, paragraph 9(a)(i) under Acts and Omissions, you say:
"Acts unknown to me unless stated otherwise by individual amnesty applicants"
and then 9a(iv) under Nature and Particulars you say:
"As declared in the ANC Submissions 22 August 1996, Operational Documents, 12 May 1997, ANC - The Declaration attached hereto."
Can you confirm that the documents that you are referring to at page 5 of your amnesty application are these documents that I have with me, the first being the statement to the Truth and Reconciliation Commission dated August 1996 and the second being Further Submissions and Responses by the African National Congress to questions raised by the Commission for Truth and Reconciliation dated 12 May 1997?
GEN NYANDA: I confirm, Chairperson.
MR BERGER: Why is it that - and you say this again in your further particulars - why is it that you are not able to list each and every operation that was carried out under your command?
GEN NYANDA: Well, it's because the operatives who fell under my command received general guidelines about what they could do and what they could not do. We defined the parameters within which they could act, they were trained militarily and politically and we also briefed them about the kinds of things that - kinds of operations that they had to undertake and the kinds of operations that were taboo. Initially, of course, we knew at the initial stages who these operatives were, we helped infiltrate them into the country, we helped infiltrate the hardware or the weaponry they had to use into the country. We established some form of communication, impersonal communication with them and we also established some arrangements whereby they could come and report or we could get reports from them. So to a degree we knew what they were involved in, what operations they undertook and to some extent, initially, we were also responsible for some of the planning for the operations they undertook. But in some cases, because they had these general guidelines about what they could do, attack policemen, attack military, the military attack, administration and so on. They chose the targets themselves.
MR BERGER: So what you're saying is that within these guidelines the Commanders on the ground, the cadres on the ground, had an element of discretion?
GEN NYANDA: They did, Chairperson.
MR BERGER: I'd like to turn to the operations which were carried out, as you say in your further particulars by the Transvaal Urban Machinery. I'm referring to page 14 of the bundle. There are 37 operations mentioned there from page 14 through to page 16. Is it correct that you are applying for amnesty for these operations as well as others which might have been carried out by the cadres of the Transvaal Urban Machinery but of which you today still cannot remember or have no knowledge?
GEN NYANDA: It is correct, Mr Chairperson.
MR BERGER: Now we can see from that list of 37 operations that most of them were attacks, we can see, on police stations, on security personnel. But there also attacks on for example sub-stations, railway lines. Would those have fallen within the broad guidelines that you've referred to earlier?
GEN NYANDA: Certainly, Mr Chairperson.
CHAIRPERSON: Sorry Mr Berger, if I may just ask the General a question?
General, you've specified these 37 incidents and you've said that there may be other incidents that you are unaware of. How are you in a position to be aware of these particular ones? Were there report backs in respect of these ones or I just want to know how you know of these but not of others?
GEN NYANDA: Chairperson, in fact in some of these I may be vaguely aware of, I may not even be certain of who carried out some of these actions. Some yes, I am aware of, some of these or many of these were reported to me directly. The situation is this, in I think 1994/95 we were asked by the TRC as the ANC, following an earlier submission to - there was an enquiry as to exactly the kinds of operations that we had carried out, there was a request from the TRC for us to furnish full particulars of operations that had been carried out by the various structures of the ANC and we proceeded to sit and in some instances because we do not keep documents on operations that were carried out outside the country, to try to rake out some of the evidence and some of the operations that had been carried out and this is a result of the exercise that many people engaged in following a TRC request for the ANC to provide the list of operations that it had carried out.
CHAIRPERSON: Would I be correct in saying and say so from various other hearings I've been involved in, that there was very little in the way of written records of operations for fairly obvious reasons?
GEN NYANDA: It is correct.
CHAIRPERSON: And most of the report backs were verbal, maybe sometime, quite a long time after the carrying out of an operation when an operative left the country and went to Mozambique or Swaziland or Lusaka or whatever?
GEN NYANDA: It is correct, Mr Chairperson, in fact we deliberately did not want to keep records because otherwise it would have compromised our security and risked people.
MR BERGER: Thank you Chairperson.
In fact, General Nyanda, the reply that you are referring to, if you would have a look at this document before you, the further submissions dated 12 May 1997, the one that I'd referred you to, in appendix 4 there is a list of MK operations, it runs from page 72 of this second submission through to page 101. Is this the response that you were referring to?
GEN NYANDA: Exactly.
MR BERGER: Chairperson, if I could just read to you what it says at the start of appendix 4, it says
"Please note, information in this list was drawn from press reports and the annual surveys of the SAIRR - South African Institute of Race Relations. These are not MK records, there are probably omissions and errors due to censorship during the apartheid era and other difficulties in collecting information of this nature."
Now the incidents reflected at page 14 to 16 of the bundle are - can you confirm - are extracted from this appendix 4, pages 72 through to 101?
GEN NYANDA: It is so, Mr Chairperson.
MR BERGER: And you are saying that there may even be or there are even operations listed here in the 37 that you don't have a good recollection of or an accurate recollection of, is that correct?
GEN NYANDA: It is correct, Chair.
MR BERGER: As I pointed out to you earlier, General Nyanda, most of these attacks are attacks on railway lines, policemen's houses, police stations, police barracks, but there is one here, number 27, which is an explosion at - this is at page 16 - explosion at Tshabalala's Dry Cleaners in Soweto. Do you know why a dry cleaner was targeted?
GEN NYANDA: Well I suppose because Mr Tshabalala was the major of Soweto and at that time there was a general campaign against what we referred to as collaborators and he was certainly regarded as a collaborator as the mayor of Soweto.
MR BERGER: And collaborators clearly fell within the guidelines set down by MK?
GEN NYANDA: Certainly.
MR BERGER: Then General, in addition to the 37, also in your further particulars, there is reference to the Johannesburg Magistrate's Court bombing at page 20 of the bundle. Just for the sake completeness, do you confirm again that you authorised this operation?
GEN NYANDA: Yes I confirm, Mr Chairperson, that that operation was planned by me and I instructed Mr Kwetle to carry it out.
MR BERGER: Thank you Chairperson, I have no further questions.
NO FURTHER QUESTIONS BY MR BERGER
CHAIRPERSON: Thank you Mr Berger. Mr Motloung, do you have any questions you would like to ask?
MR MOTLOUNG: Thank you Mr Chairperson, I have no questions.
NO QUESTIONS BY MR MOTLOUNG
CHAIRPERSON: Thank you. Mr Wagner, do you have any questions that you would like to ask the applicant?
CROSS-EXAMINATION BY MR WAGENER: Thank you Chairperson.
General Nyanda, are you aware that in terms of Section 18 of, if I may refer to it as the TRC Act, the Promotion of National Unity and Reconciliation Act, any person who wished to apply for amnesty should do so in respect of a specific act, omission or offence. Are you aware of this?
GEN NYANDA: I am aware, Mr Chairperson.
MR WAGENER: So when you filed your first application for amnesty on the 10th May 1997, for which incidents did you apply for amnesty?
GEN NYANDA: As I indicated in my application, for all incidents that the ANC in its submission of 12th August and 12th May 1997 had indicated.
MR WAGENER: So were you personally involved in all - I haven't counted them, but it must be a few hundred incidents listed from page 72 to 101 of this submission. Were you personally involved in all of them?
GEN NYANDA: I was not personally involved in all of them. As I indicated in my application, many of the acts are known to me unless otherwise stated by individual amnesty applicants, but it does not detract from me taking responsibility for their actions. I was a member of the National Executive Committee of the ANC as well at the time that the submissions were made.
MR WAGENER: So General, do you therefore say that you regard yourself as legally liable for all these actions, all these 30 pages of incidents and therefore you apply for amnesty in respect of all of them?
GEN NYANDA: The ANC leadership has taken responsibility for all the actions that it's cadres carried out in pursuance of it's objectives.
MR WAGENER: Sorry, but that's not the answer to my question. Can you please answer the question?
CHAIRPERSON: Perhaps if you can repeat it Mr Wagner?
MR WAGENER: The question is, General, you applied for amnesty for a few hundred incidents, the way I understand it. Correct? Is that what you intended as ...(intervention)
GEN NYANDA: As a member of the Executive, yes. All the operations, not just a few hundred. If there were a few thousand, yes.
MR WAGENER: Well, let's stick to your written application please. Your written application seems to refer to these 30 pages of incidents so that was why I ask you, you ask for amnesty for all these incidents, correct?
GEN NYANDA: That was what the application said.
MR WAGENER: Yes. Do you agree that nobody asked for amnesty if he is not personally liable in terms of the law of our country? There's no need for amnesty or there's no need to ask for amnesty?
GEN NYANDA: I didn't say that I do not have liability for the actions of the people that I sent into the country to carry out the operations that they did.
MR WAGENER: So was this first application of yours, what we may refer to as a blanket application for amnesty?
MR BERGER: Chairperson, I must object. My learned friend knows all too well because he's been in possession of these submissions of the ANC for as long or even longer than I've been in possession of them and he knows all too well that General Nyanda's role, like the role of many other combatants in MK is set out in some detail in these submissions. In fact the position that General Nyanda held, his position in the Transvaal Urban Machinery, is set out in these submissions and all one has to do is to look at the list of operations and check where those effected the General's areas of responsibility and my learned friend could work out for himself exactly what acts General Nyanda would be liable for under the laws of the land at that particular time. So it's not correct to say that it's a blanket amnesty application, it's an MK Commander saying "I was in MK, I authorised certain operations, I don't know the detail of all of those operations. If people come forward and say that I commanded them, if that is so I will admit it. I'm applying for amnesty because there is a cut-off date and I'm referring you to the submissions which my organisation made on my behalf and with my concurrence and if you read it, you'll see precisely what acts I am liable for."
MR WAGENER: Mr Chairperson, my learned friend should also be aware of the fact that this process of amnesty does not provide for general blanket amnesty and he should also know it is not for me to work out what General Nyanda is asking amnesty for. It is for his client, Mr Chairperson, to come here and state what incidents he is applying for amnesty for and on what basis and that is why I ask him these questions. Which incidents does he apply for amnesty for and I got the response. Apparently General Nyanda is applying for amnesty for all the incidents in this book, 30 pages of them, and therefore I'm perfectly entitled to ask the General on what basis does he apply for amnesty for all these?
CHAIRPERSON: Yes, I'll allow that question, Mr Berger, because it's basically we'll get down to a question of argument at the end. The General is obviously free to tell us in respect of what he applies for amnesty. We know that this list, appendix 4, although there's no information between the period 1960 to 1976, starts from 1960 and goes through right up into the cut off-date in the 1990s. So the question is fairly straightforward and the General can answer it. I can't see any problem there.
So the question was, are you applying for amnesty in respect of all these matters that are listed in appendix 4?
GEN NYANDA: I think in the further particulars on page 14, there is states quite clearly what specific operations that to the best of my knowledge were carried out by the Transvaal Urban Machinery. They are listed there.
MR WAGENER: General, I will come to the further particulars later. At this moment I'm merely questioning you on the amnesty application that you signed on the 10th May 1997 and I'm asking you, on the 10th May 1997, for which incidents did you apply for amnesty?
MR BERGER: Chairperson, I'm sorry, I must object.
CHAIRPERSON: That's stated there, isn't it? There on the 10th, it says all the - as declared in the ANC Submissions 22 August 1996, Operational Documents 12 May 1997 and the declaration attached hereto. But that has been amplified by the further particulars.
MR WAGENER: Well General, if that is correct what the Chairperson has just said, why then did you say on page 5 under (i) you are applying for acts unknown to you unless stated otherwise by individual amnesty applicants? Why then did you say that? To me there seems to be a huge contradiction between (i) and (iv), or can you explain to this Committee and to myself, what did you mean when you signed this application?
GEN NYANDA: But I have just said that there are many operations which were carried out that I am not aware of and for which I'm also applying for amnesty.
MR WAGENER: General, with due respect, had you been advised by your legal advisers that you can't ask for amnesty in that sense for unknown incidents and that you have to specify the incidents in terms of Section 18?
GEN NYANDA: We took the position in the African National Congress that because of the way of the modus operandi, because we sent people into the country to carry out operations under certain guidelines and they would carry out those operations which we would not abnegate responsibility for, for those actions and that those people if they could come out, come out and ask for amnesty for those operations and indicate that in fact they had been sent by us, if somebody comes up and says that he was sent by me or she was sent by me to carry out a specific action of which I had no recollection, of which I have no knowledge, then of course I accept responsibility whether the Act stipulates otherwise or not.
MR WAGENER: So since signing this first application you gave a list of incidents from page 14 onwards. Did you get these incidents then from other applications by some of your colleagues or where did you come by these incidents? Sorry, if I may rephrase? How did you decide in the end to apply only for these 37 incidents?
GEN NYANDA: I was a Commander of the Transvaal Urban Machinery for some time and as indicated by my legal representative and when he led evidence, because we were asked by the TRC to provide further particulars, to provide details of the kinds of actions that Umkhonto weSizwe was involved in, we had to go through the records of newspapers and so on because we did not keep our own records. This is how some of these things come about.
MR WAGENER: But General, my question is slightly different. In your initial application you said you apply for acts unknown unless stated otherwise by individual amnesty applicants?
GEN NYANDA: Yes.
MR WAGENER: My question is, the list that we now find on page 14 onwards, did you get that from other amnesty applications?
GEN NYANDA: It was compiled by teams who worked in the ANC to try to get the activities which took place, recorded incidents in the area in which I was responsible.
MR WAGENER: As a matter of interest General, if I may go back to page 5 of the bundle, there you refer at the bottom of the page to a future document. This application is dated the 10th May. Do you state here that you were already in possession of a document of a future date when you ...(intervention).
GEN NYANDA: What document of a future date?
MR WAGENER: In your application of 10 May you refer to a document dated 12 May.
GEN NYANDA: We had already compiled this.
MR WAGENER: So this document, although it's dated the 12th May, was that already available to you on the 10th, is that what you're saying?
GEN NYANDA: Well I'm not sure about the dates, all I'm saying here is that I'm describing to you the way we compiled the incidents as far as the Transvaal Urban Machinery were concerned, was concerned and these incidents, including others, that other people were responsible for, formed part of the ANC Submission, part of that document that you refer to.
MR WAGENER: General, I want to be absolutely sure. On the 10th May 1997 were you in possession of this document dated the 12th May 1997, two days later? Were you or were you not?
GEN NYANDA: We were responsible for compilation of that document.
MR WAGENER: Were you in possession of this document on the 10th May 1997, yes or no?
GEN NYANDA: It is quite possible that we had that document.
MR WAGENER: Even though this is a later date?
GEN NYANDA: Because it was compiled by the ANC.
CHAIRPERSON: That date, do you know that date the 10th May 1997, was that the date - you don't know whether it's the date of compilation of that or the date of submission of that?
GEN NYANDA: I don't know.
MR WAGENER: General, if you were in possession of this document, why then couldn't you specify the incidents for which you applied for amnesty already at that stage? Why only wait another two years?
GEN NYANDA: What two years now are you referring to because ...(intervention)
MR WAGENER: Only apparently in 1999, Mr Chairperson, my documents are not dated but - or maybe my learned friend can help me? This document called Further Particulars, what is the date thereof? Maybe Mr Berger can just indicate to us what is the date of this document you find from page 13 onwards called Further Particulars?
MR BERGER: No, I can't assist. I don't have a date on my document either.
JUDGE MOTATA: If we look at the bottom of the pages, to me it would appear there's a date there, 1999 October. It's a faxed document.
MR WAGENER: Exactly, that is why I said two years later but I may be wrong but it was in that sense that I said you waited for another two and a half years before you specified incidents. My question to you is why, if you were already in possession of this document on the 10th May 1997, why did you take so long?
GEN NYANDA: Because I was responsible for the Transvaal ...(indistinct) still from those incidents that appeared in the ANC document, there was that pertained to me directly. But those very same incidents formed part of the compilation of that major document of 1997.
MR WAGENER: General, were you ever part of a unit you called or the ANC called Special Operations?
GEN NYANDA: I was never.
MR WAGENER: Did you work alongside them or did you work independently from Special Ops?
MR WAGENER: Special Operations worked independently.
MR WAGENER: Do you know a person called Aboobaker Ismail?
GEN NYANDA: I do.
MR WAGENER: He was with Special Ops?
GEN NYANDA: He was, yes.
MR WAGENER: Have you perhaps read his amnesty application?
GEN NYANDA: I did not.
MR WAGENER: Will you accept if I tell you that he, as a Special Ops Commander, applied for amnesty for a number of incidents for which you now apply for and I will give the particulars to your legal advisers. For the moment will you accept if I tell you that?
GEN NYANDA: I have said that the compilation of, it is quite probable when I started giving evidence that it is quite probable that some of the operations listed here were not carried out by people under my command and that in fact this was done by people taking things from the press because we had to compile a list of operations that took place and because these incidents were in the Transvaal and I was overall responsible for the Transvaal, it is quite possible that some of the incidents here, other people are responsible for.
MR WAGENER: So you regard yourself as responsible for the old Transvaal in general and that's why you apply, for in case, for maybe, just for in case it was some of your people who did this but you don't even know?
GEN NYANDA: Hence 9(i)(a) to say that some of the acts may be unknown to me because people who operated in a manner that I discussed, that I've described here, were given general guidelines and they took part in operations some of which were not reported to me. There are many who operated under me who performed acts which I am not aware of and it is quite possible that there are people who operated under other people and we make an assumption that that action was under the auspices of the Transvaal Urban Machinery when it was not.
MR WAGENER: So in that sense and I put it to you because I will probable argue this, that your application still as it stands here is a kind of a general application, for in case, you don't even know? It's like all MK operations in the Transvaal, you don't know whether you were involved or not but for in case?
GEN NYANDA: I have said, Mr Chairperson, when I described our modus operandi that initially yes, we knew some of the operatives and the actions that they carried out and some of them were actually involved in the planning and carrying out of those activities but in some instances and as the struggle developed, in many instances there was no way in which we could keep track of the activities of individual operatives and units in the country and that they carried out actions which we did not know about which they did not report and so it is quite possible yes, what you say.
MR WAGENER: My client who was injured in an incident to which reference is made on page 16 of your bundle under your listed item 33. Do you know who were responsible for that attack?
GEN NYANDA: I think if you're referring to Booysens?
CHAIRPERSON: Wonderboom Police Station, occurring 1981, number 33 on your list on page 16 of the bundle.
GEN NYANDA: Well I can't say immediately but I think there was - it was a unit under my command or under my instruction. I'll give you the names.
MR WAGENER: General, may I refer you to page 84 of your bundle, at the top under paragraph 4, you will see certain names mentioned. Page 84 at the top, paragraph 4.
CHAIRPERSON: The document, General, starts on page 83. That's "Terrorist Attack on South African Police Station, Wonderboom."
GEN NYANDA: Yes.
MR WAGENER: Yes, in fairness General, this seems to be a police document shortly after the incident and certain details are given and then on page 84 at the top it is mentioned that certain people who are named there were the suspects in this matter? Do you know these people mentioned there?
GEN NYANDA: I know Nelson Hhlongwane and also Simon Mogarane, Chindela, Bruce, Geram Soludi.
MR WAGENER: Were these people serving under your command?
GEN NYANDA: Yes they were.
MR WAGENER: Were they responsible for that operation or don't you know?
GEN NYANDA: Yes they were.
MR WAGENER: Do you say that as a fact or are you guessing?
GEN NYANDA: Well I think some of them - all of them are late and I think I did receive a report. This is a long time ago.
MR WAGENER: No, I accept that, that is what I would like to ask you. Can you remember anything specific about this incident, this attack? I realise it's going for 19 years ago but nevertheless, can you remember anything about this attack?
GEN NYANDA: No, apart from the fact that it was an attack at the police station I don't remember any particular thing.
MR WAGENER: Can you remember any prior planning sessions or can you remember any prior instructions to anyone?
GEN NYANDA: No.
MR WAGENER: Can you remember any report back?
GEN NYANDA: I think I recall a report back yes, but I can't recall the details of the report back, Mr Chairperson.
MR WAGENER: General, you've referred to General Guidelines to these operatives. What were those guidelines?
GEN NYANDA: Guidelines about what to attack, who to attack, what installations to attack. Primary targets were police, police installations, military, military installations, infrastructure, railways, electricity and so on.
MR WAGENER: How were these guidelines conveyed to the operatives?
GEN NYANDA: Verbally.
MR WAGENER: By whom was it conveyed?
GEN NYANDA: By myself, by my staff and general political guidelines that people had in their training and in briefings and the talks by the leadership.
MR WAGENER: So if you can help us here, did you have an office in Swaziland?
GEN NYANDA: No, we had safe places in Swaziland.
MR WAGENER: So would it happen at this safe house or whatever you call it, that you would meet the operatives there and you would then instruct them in terms of these general guidelines?
GEN NYANDA: We had safe houses in Swaziland and Mozambique. Some of the preparation was in Mozambique which was relatively a safer haven for us than Swaziland and most of the briefings were done in Mozambique, most of the preparations were done there. Some of the briefings were done in Swaziland.
MR WAGENER: General, what were the guidelines ... (intervention)
MR BERGER: Chairperson, with respect, my learned friend is representing a person who was injured in an attack on a police station. I don't know if my learned friend is disputing that police stations were generally targeted by MK and that they were in fact - I know the Act doesn't speak about it, but I know they were legitimate targets, police stations. I don't know why we're going on this whole discourse about guidelines?
CHAIRPERSON: Mr Wagener?
MR WAGENER: Chairperson, what I'm aiming at and I will come to that shortly if I'm allowed, is where did these guidelines come from, how were they conveyed and the obvious question in the end will be why is there only this one General here before us as an applicant?
CHAIRPERSON: I think we've got at least another General here before us today and then it's up to individuals to apply, isn't it, Mr Wagener? I mean, you know, the fact that some people apply and some don't shouldn't in any way have any effect on the application of those people who do apply?
MR WAGENER: Of course Chairperson.
What were the guidelines, General, in respect of innocent civilians?
MR BERGER: Chairperson, does my learned friend represent an innocent civilian?
MR WAGENER: Chairperson, I see on page 82 of the bundle of this very incident, these ANC people fired shots at innocent civilians and I would like to ask General Nyanda in respect of instructions given to him, apparently to his operatives, I think I'm perfectly entitled to ask these questions?
CHAIRPERSON: Yes okay, you can proceed. You can answer that General?
JUDGE MOTATA: But shouldn't we have a caution as well that the document at page 82 referred to was not necessarily compiled by the General, this was done by the South African Police and I suppose we should tread lightly whether that information is precise?
MR WAGENER: Chairperson, I have noted that comment. In lieu of any evidence to the contrary, I have in front of me an official or what seems to be an official police report regarding this incident and reference is made to shots fired at what seems to be innocent civilians?
MR BERGER: Chairperson, with respect, does my learned friend act on behalf of such a person?
CHAIRPERSON: Your client, Mr Wagener, was he a civilian or a police personnel?
MR WAGENER: At the time Chairperson, my client was a civilian doing police duties in terms of what they called like camps that military had.
CHAIRPERSON: Oh, instead of going to do military training he did police - so what you're asking now about the guidelines relating to civilians? I can't see any problem with being answered what was the situation relating to civilians and the injuring or the damaging of property owned by civilians?
GEN NYANDA: We had to avoid inflicting injury on civilians or getting civilians ...(intervention)
CHAIRPERSON: And what would be the position - sorry, General to interrupt, a civilian who was doing police duty in lieu of let's say military training, what was he regarded as by yourselves?
GEN NYANDA: A legitimate target.
MR SIBANYONI: Is it, General, perhaps the farmers which were encouraged to operate along the borders and to do reconnaissance as well as providing intelligence? Is it in the same light.
GEN NYANDA: No, he's a policeman, he's just like a soldier. The difference is that instead of doing duty the military people who were doing duty in the military were no different from the ones who were doing military service and if he was doing instead of, in lieu of military service, police service, he was a legitimate target as well.
CHAIRPERSON: Mr Wagener?
MR WAGENER: General, my next questions will have reference to December 1981 because that is ...(intervention)
CHAIRPERSON: Sorry? December 1981?
MR WAGENER: Yes, sorry, did I say something else?
CHAIRPERSON: No, go ahead.
MR WAGENER: December 1981, when this attack took place. Can you remember, what was your position in the ANC or in MK then?
GEN NYANDA: I was the Commander of the Transvaal Urban Machinery.
MR WAGENER: Now, correct me if I'm wrong, I understand that was part of what was called a senior organ in Swaziland or is that not correct?
GEN NYANDA: No, I was a Commander of this, if you ask me what I was, I was then a Commander of the Transvaal Urban Machinery.
MR WAGENER: Yes but in turn I understand that your unit or your component formed part of what is referred to as a senior organ, is that correct?
GEN NYANDA: The senior organ was the political leadership but the military organisation was something else. Senior organ gave the overall political direction in the region.
MR WAGENER: I think maybe I will rephrase. As a military Commander then, who was your Commander? To who did you report?
GEN NYANDA: To the central Commander. Joe Modise was my Commander.
MR WAGENER: And from whom did you receive the guidelines that you had to pass on to your understudies?
GEN NYANDA: The guidelines were from the military command.
MR WAGENER: How did you receive these guidelines from your military command?
GEN NYANDA: Verbally.
MR WAGENER: Was that in Lusaka?
MR BERGER: Chairperson, my learned friend, I don't know if he's trying to widen the net or if he is going on a fishing expedition but his client was someone who was eligible for military conscription serving in a police station. I don't know how any of these questions have any relevance on his client?
MR WAGENER: Chairperson, in the first place, I sat and all of you sat through days of cross-examination by people like my learned friend cross-examining my clients along these exact lines. In the second place, Mr Chairperson, my client was injured in this attack. If he was injured and there's someone that he can sue or that he can be asked to be brought before justice, it is his perfect right to do so. So therefore I'm asking General Nyanda from whom did he receive his guidelines, his instructions, to pass on to his understudies? I can't see any problem. Mr Berger himself, he cross-examined for days on end clients of mine in the same position as General Nyanda. I find it rather strange that he now objects?
MR BERGER: Chairperson, if I could just clarify, what my learned friend is referring to is when I cross-examined the Generals that he represents is because they say they acted off their own bat. General Nyanda is not saying that.
CHAIRPERSON: In any event, do we need to know how the guidelines were transmitted, Mr Wagener? I mean do you dispute that there were guidelines?
MR WAGENER: The question was, Mr Chairperson, that if you disallow the question I will abide. The question was from whom did he receive his guidelines and the next question then was, was this verbally and the General said verbally and then I asked him, in Zambia? That was where we stopped. But if you disallow these questions ...(intervention)
CHAIRPERSON: Well you can carry on but bear in mind that we don't need the finest detail as to where they were handed down or whether it was oral or written.
MR WAGENER: Except Mr Chairperson, with all respect, these are the questions that are expected from my clients for days on end.
CHAIRPERSON: You can ask, I said you can carry on.
JUDGE MOTATA: Besides, Mr Wagener, I'm not even privy to such questions and I wonder what probable value would they have because I've got to decide on what is before me, that it happened in the past would it form part of this? Wouldn't this hearing be guided by what we allow and disallow?
MR WAGENER: Chairperson, I'm merely asking General Nyanda, it could be that he was on a frolic of his own. That's why I'm asking him these questions.
JUDGE MOTATA: ...(indistinct) if General Nyanda says the legitimate target and we take this instance of your client, the victim, that he was regarded even as he did his conscription duty as a policeman, he was a legitimate target and we look at it from the background of the conflict of the past, that they targeted this. From the answer given, would it take us any further?
MR WAGENER: Of course, Mr Chairperson, your colleague is speaking from experience of what we've heard in many matters here. All I'm asking this General is, where did he get his instructions from?
CHAIRPERSON: So he said so.
MR WAGENER: The final question on this issue, General, is that must we then take it that people in your position never ever received written instructions of any sorts?
GEN NYANDA: I can't recollect but when we were briefed by people from military quarters they came to where we were mainly in Maputo and gave us verbal instructions. We had meetings periodically where we gave reports and where we got guidelines.
MR WAGENER: Coming back to this very incident of Wonderboom Police Station, was there any report back to you?
GEN NYANDA: There was a report back, yes.
MR WAGENER: By whom?
GEN NYANDA: I think by Johannes Hhlongwane ...(indistinct).
MR WAGENER: Did he do so in person to you?
GEN NYANDA: Yes he did.
MR WAGENER: Where did this happen?
GEN NYANDA: Either in Swaziland or Mozambique, one of the two.
MR WAGENER: Isn't he the person that was arrested two days after the incident? Which one is Johannes, maybe I should ask you that first? If you refer to page 84, is it one of those people at the top?
GEN NYANDA: In fact I'm even making a supposition here but I think I'm correct because he was not arrested. Nelson ...(indistinct) at the very top.
MR WAGENER: Yes, no you're correct, he wasn't arrested.
CHAIRPERSON: Tell me, while we're there, General, I see there's in brackets after his name "Commander". As far as you can recall, would he have been a Commander of the unit?
GEN NYANDA: Yes he was a Commander of the unit, Chairperson.
MR WAGENER: General, from the bundle that I have, I'm not sure of this, that's why I'm asking this question, but is your co-applicant, Mr Shoke, was involved in this incident?
GEN NYANDA: I don't think so.
MR WAGENER: Is he applying for amnesty in this or don't you know?
GEN NYANDA: I don't know.
MR WAGENER: Shall I ask him? Because I'm not sure. Perhaps you can tell us, what was his position at the time?
GEN NYANDA: Well he was an operative.
MR WAGENER: This is now again December 1981?
GEN NYANDA: Yes.
MR WAGENER: He was not a Commander?
GEN NYANDA: No.
MR WAGENER: But you were his Commander?
GEN NYANDA: Yes. He was one of the people who was in one of the units.
MR WAGENER: If you will allow me just a minute?
MR SIBANYONI: Maybe while you are still there, General, did these units have specific names?
GEN NYANDA: Some of them had, yes.
MR SIBANYONI: Thank you.
MR WAGENER: Thank you. General, lastly and I'm sorry that I go a bit back. These incidents that you referred to now on I think page 14 onwards. Are those the only ones that you could establish that you were probably involved in and that's why you mention them?
GEN NYANDA: Yes.
MR WAGENER: During the hearing of the Johannesburg Magistrate's Court bomb incident, you will remember, you were here, I was here as well, your - or Mr Landman appearing on the applicants then and I will ask the record to be given, he specifically said that you're not an applicant in that matter. Can you remember that?
GEN NYANDA: I was not an applicant in that matter on that day.
MR WAGENER: Chairperson, if you will allow me because I appeared in that matter on behalf of another victim as well and I'm not sure about this. Are you applying for amnesty for that incident now, today?
GEN NYANDA: Mr Landman or whoever again is on record as saying that I will not deny that I gave the order there.
MR WAGENER: No, that's correct. That's correct.
CHAIRPERSON: I think the question was, was that one of the incidents in which you are now applying for amnesty? I think it's referred to on page 16 of the record.
GEN NYANDA: Yes it is.
MR WAGENER: In other words - Chairperson, if I may seek your guidance, well at the end of this hearing you will also decide on that?
GEN NYANDA: The General said he is applying for it, yes.
MR WAGENER: And that incident is before you, you will also give judgment on that incident, is that what the position is? I'm not sure here.
CHAIRPERSON: If the applicant says that he is applying for it and I think it's on page 14, is it? Or is it later? Sorry, page 20, it's mentioned there. If it's in his application then we'll consider it.
MR WAGENER: Chairperson, maybe this is by way of comment but I think it's unfortunate that the applications are dealt with in this way because that was a lengthy hearing when I appeared for someone and one could have prepared properly because there's lots of disputes in that matter on certain aspects and to me this is merely by way of comment. I find it unfortunate ...(intervention)
CHAIRPERSON: We will receive submissions from both sides in relation to it but it is one of the incidents for which the General applies, so we're bound to consider it.
MR BERGER: Chairperson, I'm sure my learned friend knows that a decision has been given in relation to the Johannesburg Magistrate's Court bomb and in fact amnesty was granted to the applicants who appeared before the Committee at that stage. Including General Shoke who is on my right hand side.
CHAIRPERSON: If that is the case we will not be duplicating General Shoke's application again because it's finished.
MR WAGENER: Mr Chairperson, yes, I've got the judgment with me. All I'm saying is that we find it uncomfortable in dealing with an application in this way, we're not sure exactly which incidents are dealt with and which not. That's all I'm saying.
CHAIRPERSON: Thank you. Do you have any further questions Mr Wagener?
MR WAGENER: Thank you Chairperson, I've got no further questions.
NO FURTHER QUESTIONS BY MR WAGENER
CHAIRPERSON: Ms Patel, do you have any questions you would like to put to the General?
MS PATEL: No thank you, Honourable Chairperson, except just to follow onto the discussion. Not all General Nyanda's applications for the incidents he is applied for has been set down, only those that were ready for hearing have in fact been set down and my understanding at all stages in respect of the Johannesburg bombing, that the General hadn't applied for that incident and so it's not before us in any event in that the reference in his further particulars to that incident, is merely to confirm that he in fact authorised that operation but we certainly didn't read it as one of the incidents for which he has applied for amnesty but I guess we will deal with that later?
CHAIRPERSON: We'll deal with that later when submissions are made. Mr Berger, do you have any re-examination?
MR BERGER: I have no re-examination, thank you Chairperson.
NO RE-EXAMINATION BY MR BERGER
CHAIRPERSON: I'll just ask my colleagues if they have any questions that would like to put. Judge Motata, do you have any questions?
JUDGE MOTATA: I've got none Chairperson.
CHAIRPERSON: Mr Sibanyoni?
MR SIBANYONI: I've got no questions, Chairperson.
CHAIRPERSON: General, thank you, that's concludes your testimony.
GEN NYANDA: Thank you Chairperson.
WITNESS EXCUSED
CHAIRPERSON: Mr Berger?
MR BERGER: Chairperson, I see it's five past one. Would this be an appropriate time?
CHAIRPERSON: Thank you, I was unaware of that. We'll take a lunch adjournment until quarter to two. We'll resume at quarter to two. Thank you.
COMMITTEE ADJOURNS
