ON RESUMPTION
CHAIRPERSON: Ms Coleridge would I be right that we are about to hear Mohlala?
MS COLERIDGE: That is correct, Chairperson.
CHAIRPERSON: For the record the Panel is as announced in the first matter and from the look of things it would appear the legal representatives remain the same. Mr Nyawuza, what language would client testify in?
MR NYAWUZA: My advice is that he's comfortable in English.
FRANS MUFAPA MOHLALA: (affirmed states)
CHAIRPERSON: You may proceed Mr Nyawuza.
EXAMINATION BY MR NYAWUZA: Thank you Mr Chair and the Honourable Committee Members. Mr Mohlala we're here today for your application. Is it correct that you're applying for amnesty for an assault, skipping bail, breaking restrictions imposed in terms of the state of emergency and leaving the country without a passport?
MR MOHLALA: Yes.
MR NYAWUZA: Mr Mohlala from what I read through the bundle, it appears that at the time of the commission of these offences, you were incarcerated. What were you incarcerated for?
MR MOHLALA: I was detained under the state of emergency.
MR NYAWUZA: What for?
MR MOHLALA: Basically I was part of the leadership of the UDF in the Northern Province and also an underground activist of the ANC.
MR NYAWUZA: What was your position in the leadership? You know there's the General Secretary, there's the President, there's the Treasurer, what was your position?
MR MOHLALA: I was the UDF organiser.
MR NYAWUZA: You were an organiser. So you were arrested for organising for the UDF, is that so?
MR MOHLALA: Yes.
MR NYAWUZA: And on a particular day a certain incident occurred whilst you were arrested for your activities as an organiser of the UDF. Briefly tell this Committee what happened.
MR MOHLALA: I was detained in Nylstroom prison. I had been there for almost one year eight months approximately, I'm not sure exactly of the exact date. I was arrested on the 1st of December 1986 and the incident happened towards the end of 1988.
MR NYAWUZA: What were the charges against you?
MR MOHLALA: It was an assault basically on Sergeant Botha.
MR NYAWUZA: How did the assault occur?
MR MOHLALA: The assault occurred after one of my comrades died while he was with me in detention.
MR NYAWUZA: Had your comrade been with you ever since the day of your arrest or you found him there?
MR MOHLALA: He found me in detention.
MR NYAWUZA: Okay and what led to his death? Perhaps if you know you can tell us, if you don't know you just say you don't know.
MR MOHLALA: I don't know the cause of the death, but what I'm sure of is that the prison authorities contributed to his death by refusing to take him to hospital. For the whole night he had been screaming for help and we had been kicking doors and asking for help and no help came, until in the morning.
MR NYAWUZA: Do you think their intervention was politically motivated?
MR MOHLALA: Yes.
MR NYAWUZA: Why do you say so?
MR MOHLALA: Basically because they were part of the system and by refusing to give him medical attention, they were further the cause of that apartheid system.
ADV BOSMAN: May I just come in here before we proceed? Could you tell us what your comrade was detained for? Was he detained for political reasons?
MR MOHLALA: He was also detained under the state of emergency.
MR NYAWUZA: And do you feel that had they intervened and taken your comrade to hospital timeously, the - what happened ultimately could have been avoided, the death of your comrade?
MR MOHLALA: Ja, he had been asking to be taken to hospital to specialists for almost two weeks before that incident happened and on that particular evening from around 9 o'clock, up until 7 o'clock in the morning the following morning, we couldn't sleep, he was screaming and in the morning he couldn't even scream any longer, he was like opening his mouth and no voice could come out and then they only took him after 7 o'clock the following morning out of the cell and took him to their reception where they put him there until 2 o'clock in the afternoon, when he was already brain dead, then they flew him to Pretoria with a helicopter.
MR NYAWUZA: You've stated in your evidence-in-chief that you felt the prison authorities at the time, people that you worked with, were part of the system. Can you briefly tell us why you say so?
MR MOHLALA: The prison officials were the ones who were keeping us in prison for the system and they acted also as part of the security forces of South Africa.
MR NYAWUZA: So that's your reason for saying they were part of the system?
MR MOHLALA: Yes.
MR NYAWUZA: Let's now come to the incident that you're applying amnesty for, the assault. Briefly tell us what happened.
MR MOHLALA: Our lawyer came to inform us that Alf had passed away and we already had heard that information from one of the prison warders, I've forgotten his name. He told us that by the time Alf was removed from the reception, he was already brain dead. So they put him there the whole day and then took him only when he was brain dead. So Sergeant Botha is the one who brought, he was one of the first prison officials to come into the section at that time when emotions were still high and he was bringing food to us and the food that he brought was one of the food on the menu that we never liked in prison, so it also added to the emotions and that is - what happened is I took the soup that he had brought which was hot and poured it over his head with a bowl and also assaulted him with the bowl.
MR NYAWUZA: On a lighter note, had they brought you Chicken Licken you wouldn't have thrown it at him because I hear you saying that was one of the meals you hated.
MR MOHLALA: I can't say.
MR NYAWUZA: You can't say.
MR MOHLALA: Ja, I don't know.
MR NYAWUZA: So are you saying your emotions, whether it were Nando's or Chicken Licken, you would have thrown it at him.
MR MOHLALA: I was emotional at that time so the food and the Sergeant were just part of those things that added, just seeing his face and seeing the food that he was bringing to us, it was also a factor that added to rise in the emotions.
MR NYAWUZA: Was it a first encounter, were you seeing Sgt Botha for the first time or since you had been there for about twenty months, as you said, he's been working there? Just put us...
MR MOHALA: Ja, he had been working there.
MR NYAWUZA: So you had known him from long ago?
MR MOHALA: Ja.
MR NYAWUZA: It was not an impulsive thing. Did you hate him even before this era, the incident?
MR MOHLALA: I didn't like him but I can't say it's hate, hate and not liking is not necessarily the same thing.
MR NYAWUZA: Okay. You poured soup over him and when I went through this thing, subsequently you were granted bail. What happened to your lengthy detention because apparently you were granted bail on the assault case?
MR MOHLALA: I was released in March 1989, I was only charged when I was released. The assault happened in 1988 and I was only charged in 1989 when I was released from detention.
MR NYAWUZA: So what subsequently happened? You were granted bail and what happened?
MR MOHLALA: Ja I was granted bail and I skipped the bail.
MR NYAWUZA: You skipped the bail. Am I correct in saying you even left the country?
MR MOHLALA: Ja, I even left the country.
MR NYAWUZA: Prior to you leaving the country on this bail, initially you had been detained, had you, prior to your detention regarding the state of emergency, been out of the country?
MR MOHLALA: Ja, I had been out of the country.
MR NYAWUZA: And when was that?
MR MOHLALA: That was 1984, that was just underground movement to Botswana and back into the country.
MR NYAWUZA: For how long were you out of the country?
MR MOHLALA: For about a week.
MR NYAWUZA: And then when you came back, you had these orders to come and continue the struggle, as was wanted by the ANC, is that so?
MR MOHLALA: My activities in the UDF and the ANC underground was part of my orders and instructions.
MR NYAWUZA: And do you think your action, the assault on Sgt Botha was politically motivated?
MR MOHLALA: Yes.
MR NYAWUZA: And what was the one - amongst the issues that the ANC wanted you people to do, the followers, was it to throw soup on people, or was it to fight?
MR MOHLALA: There was no instruction from the ANC to pour soup on anybody.
MR NYAWUZA: Ja.
MR MOHLALA: But defiance was part of our activities, so in that process things like throwing stones and throwing soup might be part of...
MR NYAWUZA: So you are saying, by refusing, look on this particular day, here is Sgt Botha, he's bringing food that you are supposed to eat. By refusing to eat the food that he's bringing and instead throwing it at him, you were defying?
MR MOHLALA: Yes.
MR NYAWUZA: So you regard that as a political objective?
MR MOHLALA: Yes.
MR NYAWUZA: And that is why you're here today to ask for amnesty, is that so?
MR MOHLALA: Yes.
MR NYAWUZA: Okay. That's the case for the applicant.
NO FURTHER QUESTIONS BY MR NYAWUZA
CHAIRPERSON: Ms Coleridge.
MS COLERIDGE: Thank you Chairperson. I just want to place on record that Sgt Botha, the victim in this matter, was located, he has informed our investigator Johannes Mohema that he will not be attending the hearing and that he's not opposing the applicant's application, Chairperson. I just would like to ask the applicant a few question.
CROSS-EXAMINATION BY MS COLERIDGE: Who was your Commander in the UDF structure?
MR MOHLALA: UDF chairperson was Louis Mgune, he's presently the ambassador to Mauritius.
MS COLERIDGE: And how long before you were detained under the state of emergency, how long did you belong to the UDF before that when you were arrested?
MR MOHLALA: I belonged to the UDF, I was actually part of those people who formed the UDF in 1983.
MS COLERIDGE: And your underground movement, or the ANC, how long did you belong to the ANC?
MR MOHLALA: That started in 1982.
MS COLERIDGE: And who was your Chairperson or Commander at the branch where you were part of, of the ANC? No you said he was part of the ANC as well, the underground structure, now I just want to know who the Chairperson of your branch was.
MR MOHLALA: The ANC did not work with branches, it worked with underground units. Louis Mgune who was the Chairperson of the UDF, was also part of the - the leader of that unit.
MS COLERIDGE: I am aware that Ms Patience Molekane from the ANC is here today, Chairperson, in relation to the applicant's application, just confirming his membership as well.
Just one last question, the assault, you said you also, did you hit Mr Botha with the soup bowl? Can you just, or did you beat him with your hands or whatever? Can you just elaborate on that particular aspect?
MR MOHLALA: Ja, I hit him with the bowl, I emptied the bowl of soup on his head and then hit him on the mouth with that bowl.
MS COLERIDGE: Thank you Chairperson, I have no further questions.
NO FURTHER QUESTIONS BY MS COLERIDGE
CHAIRPERSON: Thank you Ms Coleridge. Any re-examination Mr Nyawuza?
MR NYAWUZA: No re-examination thank you. That's the case for the applicant.
NO RE-EXAMINATION BY MR NYAWUZA
CHAIRPERSON: Adv Sigodi?
ADV SIGODI: No questions, Chairperson.
CHAIRPERSON: Adv Bosman?
ADV BOSMAN: Thank you Chairperson. Mr Mohlala, you are applying for amnesty for leaving the country without travel documents. Can we just get that formally on record? You never had any travel documents whenever you left the country across the border?
MR MOHLALA: Ja, I never had papers.
ADV BOSMAN: And then you're also applying for amnesty for breaking restrictions that were imposed on you in terms of the security regulations. What restrictions were imposed on you and when?
MR MOHLALA: I was - on my release from detention, I was placed, restricted to the Mankweng Magisterial area and I was supposed to report to the police station twice a day.
ADV BOSMAN: Which Magisterial area?
MR MOHLALA: Mankweng Magisterial area.
ADV BOSMAN: And then just one more question, when you defied, when you showed this defiance when you poured the food over Sgt Botha, what did you hope to achieve by this?
MR MOHLALA: It was a protest, to make a statement, also regarding the way they treated Alf Magadeng, that his death was also caused by them, they contributed to his death by not giving him medical attention.
ADV BOSMAN: Thank you. Thank you Chairperson.
CHAIRPERSON: Just for clarity, Mr Mohlala, like your counsel said that you were released and thereafter charged, am I understanding correctly, that you were firstly released and thereafter they brought the assault charges against you?
MR MOHLALA: Yes.
CHAIRPERSON: Now when were the restrictions imposed on you, let's get the two scenarios very clear, say when you were detained under the state of emergency, you were released, were there any restrictions upon you?
MR MOHLALA: Ja, when I was part of - when they came to inform me of my release from prison, they also had this restrictions, I don't know what I did do with the papers, but that was a long time ago. They gave me the restrictions there in the prison reception when they were releasing me and the police were also there to re-arrest me and charge me with the assault on the same day.
CHAIRPERSON: So you did not leave ?
MR MOHLALA: I did not leave prison.
CHAIRPERSON: And with the bail, were there bail conditions when you were released on R400-00 bail?
MR MOHLALA: No the conditions that were applying tot he state of emergency, I was told they also covered the bail ...
CHAIRPERSON: Now when you say your comrade, Alf Magadeng was brain dead,you are merely surmising, you cannot say clinically he was.
MR MOHLALA: Ja, I cannot say he was, but that was also confirmed, I'm told, with the inquest that by the time - and the lawyer when he came to tell us, ...(indistinct) he told us that by the time he was moved from the prison to hospital, he was already brain dead, so I cannot say clinically like a doctor would say, but with that information, I can say he was.
CHAIRPERSON: It would appear from your application that you had dual membership, that is with the UDF and the ANC. Now in respect of the UDF, who was your Chairperson in the Northern Province?
MR MOHLALA: I mentioned Louis Mgune was the Chairperson and at some stage, Peter Ntshaleng who was killed by the police later on, was also a Chairperson.
CHAIRPERSON: What did you do when a state of emergency was declared that led to your incarceration?
MR MOHLALA: The state of emergency was an imposition by the government then, which gave them powers to detain anybody they thought is involved in anti-apartheid struggle, that is why there were more than thirty people who were detained country-wide under the state of emergency there, so anybody who was an activist, was regarded by the government then as opposed to the government, could be detained under the state of emergency.
CHAIRPERSON: Thank you Mr Mohlala. Mr Nyawuza, anything arising from what the Panel asked?
MR NYAWUZA: No questions, thank you.
CHAIRPERSON: Ms Coleridge?
MS COLERIDGE: I'm not calling any witnesses, Chairperson, thank you.
CHAIRPERSON: Is that your case, Mr Nyawuza?
MR NYAWUZA: That's the case for the applicant, thank you.
CHAIRPERSON: You're not calling any witnesses. I was apprised of somebody from the ANC that that person is present, you're not calling that person either?
MR NYAWUZA: No, we're not going to call any witnesses.
CHAIRPERSON: Thank you Mr Mohlala, you are excused.
WITNESS EXCUSED
CHAIRPERSON: Any submissions, Mr Nyawuza?
MR NYAWUZA IN ARGUMENT: As it pleases the Committee. Mr Chairperson, the applicant is asking for amnesty relating to his being a member - the assaulting a certain Sgt Botha, skipping bail, breaking restrictions imposed in terms of the state of emergency and leaving the country without a passport. His testimony regarding the assault on the sergeant is that the sergeant was perpetuating the existing status quo at the time and moreover the death of his comrade Alf Magadeng ...(intervention)
CHAIRPERSON: Was he perpetuating the status quo by bringing soup?
MR NYAWUZA: Not necessarily by bringing soup, by the treatment that was meted out to them and he, and the applicant goes on further to state that on that particular day after the death of Alfred Magadeng, the emotions were high at the prison and they wanted to show the system that comrade Alf's death did not go in vein, they had to send a message to the authorities at the time that we are not going to take this lying down, which was one of the measure that were mostly done, were taken by ANC supporters at the time, that we are going to defy and send a message that we are not going to take our treatment lying down, so his attacking the said Sgt Botha was to say to the State authorities: "Even if we are incarcerated, we are not going to submit to you, we will fight you from inside your own institutions and send a message out that we are not going to bow down." When we go to the issue of skipping bail, he has testified that the same bail conditions that were imposed on him, no the same conditions that were imposed on him when he was released after his detention under the state of emergency, were imposed as well on the assault matter and having shown defiance within the institution of the apartheid regime at the time, he wanted to show them that: "You couldn't hold me when I was inside, so how possible is it for you to hold me when I'm out?" and by leaving the country without a passport, he was further showing them that: "The gates that you have of going in and out of the Republic, would not hold me within the Republic. If I want to go out of the Republic, I will, with or without your permission." So in essence this goes on to show that he, prior to his arrest - sorry if I take it, prior to his arrest, he had been a member of the UDF and as the Chairperson has indicated that he had dual membership, he was also a member of the African National Congress and his incarceration that led to the assault of Sgt Botha, emanated from his political beliefs that the country has got to be set free and he did all of this with the knowledge that whatever he does, sends a particular message to a certain quarter of the community that: "We can't be held hostage in our own country", so I believe this fell within the political objectives of the African National Congress at the time, because defiance was the main thing. We did not ... (intervention)
CHAIRPERSON: When you say ...(indistinct - no microphone) submitting.
MR NYAWUZA: Yes, I submit. I submit that since defiance was the main purport of the ANC at the time, you know, the defying to pay rent, defying to buy in white owned shops, this was part of defiance.
ADV BOSMAN: I just want to ascertain whether my notes are wrong. You have just argued that prior to his arrest, the applicant was a member of the UDF. According to my notes the evidence was that the applicant became a member of the UDF in 1993.
MR NYAWUZA: No in actual fact in his - during questions by the Committee, I think it's the Committee or my learned colleague, the applicant stated that he was part of the people that formed the UDF in 1983.
ADV BOSMAN: ...(indistinct - no microphone)
MR NYAWUZA: I think my submission goes as far as that, Honourable Committee, that I believe this falls within the ambit of the Act and what the ANC stood for at the time. Thank you.
CHAIRPERSON: Ms Coleridge, any submissions?
MS COLERIDGE: Just a few, Chairperson, thank you.
MS COLERIDGE IN ARGUMENT: I concur with the submissions that my learned colleague, Mr Nyawuza has made, Chairperson. I'd like to add that we should not look at the fact that this incident and that is the death of his comrade, precipitated his actions, that is the assault on Mr Botha, but we should look at the environment and the context in terms of which the applicant was faced, the fact that he was a political prisoner and arrested under the state of emergency regulations as well as being detained without trial for almost close to two years, Chairperson, so my submissions are that we shouldn't look at the assault for instance, in a closed set of facts but looking at the context in which the applicant was in and that it was just, that the actions weren't just precipitated just by his anger towards the death of his friend and therefore he committed the act or the assault and that is basically just my further submissions which I'd like to add.
CHAIRPERSON: Thank you.
ADV SIGODI: If we have to declare Sgt Botha a victim, do we have his full names because we've got the address here, is he still staying at 115 Steyn Street, do you have his full names?
MS COLERIDGE: According to my records, I don't have his full names, I've only got him as Sgt Botha and that is at Nylstroom Prison, he's still there. I've got his address as well.
ADV SIGODI: ...(indistinct - no microphone)
MS COLERIDGE: That is correct.
ADV SIGODI: Do you think it's possible to get us his full names?
MS COLERIDGE: I'm sure that would be very easy for me to do, to obtain that information.
CHAIRPERSON: I suppose as well, if you look at page 8, if we could include the address 115 Steyn Street, Nylstroom, would suffice that we wouldn't be throwing the net wide if we declare him a victim.
MS COLERIDGE: That is correct Chairperson.
CHAIRPERSON: Thank you Ms Coleridge. Thank you Mr Nyawuza. As we indicated with the first matter, we shall reserve our decision and give it in writing as soon as possible. I hope it won't take us two months to do so.
MR NYAWUZA: I hope so as well.
CHAIRPERSON: But you will be furnished with a copy as well as Mr Mohlala of our decision. Thank you very much Mr Mohlala, you are excused.
CHAIRPERSON: Where do we move from here?
MS COLERIDGE: Chairperson, we're moving very quickly and I'd like to ask the Amnesty Committee if you can just indulge us for a brief five minutes so that we can get all the victims here in the other incident, Chairperson.
CHAIRPERSON: Thank you. We'll take a short adjournment.
MS COLERIDGE: All rise.
COMMITTEE ADJOURNS
