CHAIRPERSON: Good morning everybody. Today we are going to hear about three applications but we will start with the amnesty application of Choane. My name is Motata, Chairperson of these Hearings. I'll ask my colleagues to introduce themselves, I'll start on my right.
ADV BOSMAN: Adv Francis Bosman.
AVD SIGODI: Adv Sibongile Sigodi.
CHAIRPERSON: I will press the legal representatives who would be participating in this hearing, to place themselves on record.
MR NYAWUZA: My name is Oupa Nyawuza. I am for the applicant.
MS VILAKAZI: I'm Adv Linda Vilakazi from the Pretoria Bar, I'm representing the family of the deceased, Thabo Mkudubethe.
MS COLERIDGE: I'm Lyn Coleridge appearing on behalf of the Truth and Reconciliation Commission.
CHAIRPERSON: Thank you very much. We have some devices, if you want to benefit from the translations on the various channels, please make use of them.
Mr Nyawuza, in what language is the applicant going to testify?
MR NYAWUZA: In English Chairperson.
ABEL RAMAKOSI CHOANE: (sworn states)
CHAIRPERSON: You may proceed Mr Nyawuza.
MR NYAWUZA: Thank you Mr Chair and Honourable Committee Members. The ...(intervention)
CHAIRPERSON: May I interrupt you there? There's a funny noise coming through here. Oh, it's outside. Thank you, you may proceed, I'm sorry about that.
MR NYAWUZA: The applicant making an application for amnesty on two incidents. The first incident, the one in Batho, for resisting arrest and the second one is an incident at an ANC camp in Angola, Vienna, so I would wish, if allowed by the Committee Members, that we start with the resisting arrest matter in that apparently we have affidavits from people who were involved in that incident, where there's apparently no position to this amnesty and then, at a later stage after we've
dealt with the facts relating to this one, we can address now the Vienna issue.
CHAIRPERSON: You are in the driving seat and we are in your hands.
MR NYAWUZA: Thank you Mr Chair.
EXAMINATION BY MR NYAWUZA: Mr Abel Choane, is it correct that you are making an application for amnesty regarding an incident in Bloemfontein in 1990 where you were resisting arrest by the SAP members?
MR CHOANE: Yes, it is true.
MR NYAWUZA: Briefly tell us about yourself, your political self, before we can address the issues that relate thereto. Who are you and how did you get involved in politics?
MR CHOANE
"Abel Ramakosi Choane, I was born and brought up in Bloemfontein in ...(indistinct) location. At an early stage of my schooling when I was doing our Standard Four, I got involved in student politics, as a member of a class that was very active at our school. So in 1980, early 1980 I was involved in organising the boycotts which led to the violent riots in Bloemfontein. As a result of my political involvement and my commitment to student political activities and to the struggle as such, I finally made a decision to leave South Africa and join the African National Congress."
CHAIRPERSON: If I may interrupt you there, Mr Choane, what boycott were you organising?
MR CHOANE: One of my class teachers, the Afrikaans teacher, was a member of ANC underground structures and he was arrested in 1980 by the South African Special Branch and then in demand for his release, we then organised class boycotts as a way of demanding his release and that led to violence at the end in Bloemfontein.
CHAIRPERSON: So this involvement in politics, which side were you choosing because we know that the arrested teacher was an underground ANC member, where were you guys falling in, students' organisation and if so, what students' organisation?
MR CHOANE: I align myself with COSAS and I was inclined to the ANC politics.
CHAIRPERSON: Thank you, you may proceed.
MR CHOANE
"It was in 1980, around September, when I decided to leave South Africa for joining of the African National Congress and by then I was about 14 years of age. I went to - I escaped South Africa while going to Lesotho. I stayed in Lesotho for some time and I was frequenting the Free State area, bringing in pamphlets and so on of the ANC and of MK and then in 1981, I went to Mozambique and then Angola for military training. I then received my basic course in 1981 in Ojaenda and then in Kokulama."
CHAIRPERSON: Did you go to both in the same year, that is to Mozambique and thereafter in the same year?
MR CHOANE
"Yes, in 1981 I went to Mozambique. I was in transit in Madola for about a few weeks and then from there I proceeded to Angola.
So in Angola I started in Vienna and then from Vienna I went to a training centre in Ojaenda and from Ojaenda went to open a new camp elsewhere ...(indistinct - no microphone) We opened a new camp in Kokulama, which was previously used by Zimbabwean Liberation Movement, ZAPO. Then I completed my training there in Kokulama. From there I was recruited into the Security Department of the African National Congress, known as Umbagotho Onet. I underwent VIP protection training and then I started my duties as a body guard, guarding the leadership of the African National Congress, including the present Oliver Tambo, Chris Hani and other leaders of the ANC and of MK.
I participated in the Eastern Front, in the campaign against UNITA from 1983 to 1984 when the meeting began in Angola which brought the campaign to an end.
In 1984 I proceeded to Cuba for advanced training as a Special Force and also as a Counter-Intelligence and an Intelligence officer. 1986 I came back. I went back to Angola. From Angola, I stayed for about a month and I went to Zambia. In Zambia I stayed a few months and then in 1987 I proceeded to Zimbabwe for infiltration in the Far Northern Transvaal, where we were operating as rural guerillas ...(indistinct) but then I stayed for a long time there, due to the operational problems that we encountered. I was then sent back to Zambia. From Zambia I went back to Angola where I served as an Instructor, instructing two ...(indistinct) of Commanders on survival techniques and then after the completion of my assignment as an instructor, I came back to Zambia. From Zambia, I then went to Botswana for infiltration to South Africa."
MR NYAWUZA: When was that when you went to Botswana for infiltration?
MR CHOANE: I went to Botswana early in 1988, around April, after the raid on the house of the frontal Commander of MK in Botswana, ...(indistinct) into Botswana via Zimbabwe.
MR NYAWUZA: Yes, proceed.
MR CHOANE
"I made few infiltrations into South Africa on various non-violent military missions in the Republic of South Africa, more especially in the East Rand and then in 1988 late, me with my unit, as I was a Commander, we encountered operational problems and then we again went back to Botswana and then in Botswana I parted with my unit.
They proceeded back to Zambia via Zimbabwe and then I was brought in here and then they apparently died at Zambezi, it is said that they were attacked by Hippopotami on the river, so seven of them died and then I didn't know about it by then and then on the 27th of September, I went down to Itlarapeng in a house next to the border of South Africa where I waited for another infiltration with the objective of going to organise safe houses for my unit and then ultimately on the 26th of September I infiltrated South Africa."
MR NYAWUZA: What year was that?
MR CHOANE: 1988.
MR NYAWUZA: Okay.
MR CHOANE: I mean 1988, 26th of September.
"I infiltrated and then I was with my cousin ...(indistinct), who did not belong to my unit, but I was told that I'd be leaving with them because our weapon concern is at the same place, with the same person, so myself and Computer and Vogile, we then proceeded to the Free State via Vryburg, Taung, Kimberley and then Bloemfontein.
Vogile, before we could go to Bloemfontein, he went back to Jo'burg, he said he was not trusting the people we were given, he will like to approach Free State from the other direction and that will be Jo'burg, so we then proceeded with Computer and then when we arrived in Bloemfontein, I went to check ...(indistinct) that were organised for me in Thaba Nchu and in Thaba Nchu I got a house, so I phoned back. I phoned to Botswana. It's only then that I learned about the death of the members of my unit.
I was devastated. I went back to Bloemfontein, though it wasn't my intention by then to go back on the same day. I went back and then I notified Computer about what has happened at Zambezi and the fact that I wasn't told, by so doing I was trying to say to Computer: "Let's review the road that we have been given and the instructions", but he could not listen to me, so as a self-sacrifice, I then went with him to the contact person because I didn't want to come and account at the end as to what has happened to him.
We went there and then on our arrival we tried to make contact. We finally made contact by means of telephone and then we proceeded to the taxi with the contact person. In the taxi I realised that there were some Askaris whom I knew, but didn't know me, because last time when we met I was very young. I informed Computer again that we are likely to be arrested here but he didn't know the Askaris and there was no way we could get out of the taxi, so before the taxi could travel for five minutes, we then were surrounded by the police and then we got arrested."
MR NYAWUZA: Where were you at the time?
MR CHOANE: It was in Welkom, in the Free State where we made a contact with the contact person, that's where we were supposed to get the weapons. So we got arrested and then I was very much upset, very much annoyed and I was not really shocked, but I was very emotional at the time, because things were happening so rapidly and were inexplicable, but I then tried to maintain myself so I then decided on giving priorities to what I'm going to say to the police because I knew a lot of things and a lot of people, so I wouldn't want to end up saying things involuntarily, so I then decided what is it that I'm going to withhold and what is it that I'm going to tell the police.
MR NYAWUZA: So were you charged or released after some time?
MR CHOANE: I was kept under Section 29 for a period of six months. The police wanted to make me a ten code. I said I will think about it, they said they give me two days, I must go home and come back to them.
MR NYAWUZA: What's a ten code?
MR CHOANE: The ten code is an askari, he's a person who betrayed the movement, it's a person who betrays his own comrades, so I never wanted to indulge myself in such activities.
MR NYAWUZA: So you were detained for six months and what happened after six months? Were you released?
MR CHOANE: I was released with the sole aim of either making a ten code or re-arresting me and charging me for skipping the country and being a member of a banned organisation.
MR NYAWUZA: And what year and month was that when you were released?
MR CHOANE: I was released on the - around the 20 something of March and then I immediately organised with my brother, we got a safe ...(intervention)
CHAIRPERSON: Which year?
MR CHOANE: The very same 1989, we got a safe house in Bloemfontein where I hid myself until we organised enough resources and then I was driven back to Botswana.
MR NYAWUZA: Can you proceed as to, you went to Botswana and then let's now come to the incident in 1990, how did you get back into the country from Botswana?
MR CHOANE
"I proceeded to Zambia anyway via Zimbabwe and then by 1990, in July, I was called to the military Head Quarters by Comrade Chris Hani and Comrade Lombard Moloi. They said I'll be leaving for another infiltration into the Free State, so I must prepare myself and imparted me with Lombard, Lombard Sefako as member of my unit. On the 3rd of August 1990, we left Zambia with false Swaziland passports to Botswana. From Botswana we proceeded to Lesotho and then in Lesotho we illegally crossed into South Africa. Our mission at this point in time was to form self-defence units in the Vaal, but we would be based in the Free State so ...(indistinct, at our own discretion we'd go to the East Rand, continue organising self-defence units because at the time the ANC was preparing for the negotiations and it was appreciated that it's most likely that the South African Government will embark on violent actions against members of MK and against the general membership of the African National Congress, so it is for that reason that self-defence units were very essential at that period. So we went into the Free State and then we secured a safe house, myself and Lombard, with the help of my brother who was a teacher and a political activist, the very same person who took me back to Botswana.
We then went to Transkei to go and organise weapons because there was no way we were going to train people without weapons, so we went to Transkei. Weapons were finished in Transkei, the weapons that were there were being used for the protection of the ANC personnel.
I then went to Botswana and in Botswana I knew I had a trunk of weapons full. I went to Botswana but unfortunately when I come there, someone who knew that I had a trunk, had already taken it and that very same person, together with his other comrade, were killed around the borders in Mafikeng with the same weapons.
I proceeded to Zambia. I reported the situation that the people were being massacred but many members of the military head quarters were not accessible at the time, so I reported at the Regional Officer of the military head quarters and then I told him that I'll be flying back to Botswana and then we'll go to South Africa.
So I then went to Botswana and then in Botswana on the borders, I went for my weapon, for my AK47 and then we proceeded into South Africa. I entered the Republic by jumping the fence. I didn't use my passport which I've been using all the way and I proceeded to Bloemfontein to go and report back to Lombard that I tried, but I did not succeed. People who have got authority of issuing weapons are not accessible.
So on my way to Bloemfontein I used lifts and then from Kimberley I got a truck that was going to Bloemfontein. I got into the truck. I paid the ...(indistinct) and then after disembarking from the truck, I met the police minibus that I knew to be a police minibus, but I could not distinguish whether it was Special Branch or it was Criminal Detectives. So they stopped and I recognised the driver who was Booysen."
MR NYAWUZA: How did you recognise him? How did you know him?
MR CHOANE
"I grew up next to Booysen. Booysen had a girlfriend in my street, he was a motor cyclist. The way he road his motor bike was very inspiring to me, as a person without danger, so I did not forget his face, so I knew that he was Booysen and he was a policeman.
So they then called me. I said: "No ways." They said: "Come here". I said: "Voetsak". Then one of them cocked a weapon. I had a hand grenade in my pocket, F1, defensive hand grenade that can fragment up to seventy-two splinters when it explodes. I then took it out of my pocket with a safety pin still in it. I threw it on the floor, on the ground and when they realised it was grenade, one of them screamed. He said: "Booysen, hand grenade". And then they ran away. I took my hand grenade and then gave them a chance. They were actually running to the direction where I was going, so I went the same direction. One of them deviated, used a very small path into the railway station and then Booysen went down. I followed him, he used another part. He turned right and then I proceeded, but apparently the man I left behind went back to the minibus and radioed for reinforcement and then before I could go to the subway that joins the township and the industrial area, they were already on my back, so I just, I stopped and I took out the hand grenade, I took out the pin, I advanced a few metres to them and then I threw it under the car. My aim was not really to killed them, but to immobilise them by means of destruction of that vehicle. Unfortunately the grenade did not go into the middle underneath the vehicle, but it went to the side underneath the vehicle still, so it exploded and damaged the vehicle and I understood later that Booysen was also injured in that process. So I had an AK47 in my bag."
MR NYAWUZA: Is this the same AK47 that you went out to collect at Zambia or Botswana?
MR CHOANE: There by the Botswana borders, yes.
MR NYAWUZA: Okay. Proceed.
MR CHOANE
"So there was a very violent shoot-out. The police was shooting at me. By then I was not firing because my AK was not ready for combat, so I kept on diving and ducking and rolling until such time that I realised that I'm now being encircled because on my back there were other policemen running on top of the railway, coming to my back and there were from a distance, helicopters coming to my direction."
MR NYAWUZA: As you're saying that there were guys running up at the railway, are you in essence saying the place where you were at, is there a path that goes underneath the railway?
MR CHOANE: It's a subway, so at the top is the railway, underneath is where pedestrians cross, so I was at a very low position, they were at a higher position. They were trying to encircle me with the help of helicopters that were approaching. I then felt that there's no way for me to be in this place for any longer, so I quickly withdrew and then got under the subway or under the bridge and then before I could go through the other end of the subway, there were other two policemen who were coming behind me. I ducked and then I took a stone. I threw them with a stone. They thought it was a hand grenade. They ran away and then I proceeded next to the stadium and took cover there, so they were very much scared of getting nearer and then I crawled into the furrow and then I went past the police station, got into the stadium and then I took off my jersey. By then my bag had remained behind because I was separated from my bag by the fire, so there was no way I could sacrifice myself for that small piece of weapons, after all there are a lot of weapons, so I got into the stadium, took off my jersey and then I proceeded to the township, but when the helicopters came, I decided to go back to the scene because I was the only person moving to the direction of the township, so I felt that they will discover me, so I went back to the scene and then I turned around again after the helicopters had passed.
MR NYAWUZA: What time of the day was it during this incident?
MR CHOANE: It was during the day, it was around past eleven to twelve.
MR NYAWUZA: Okay. Proceed.
MR CHOANE
"So I went to the township and then I secured a place there from someone I knew many years back an old lady, she knew that I had a problem with the police. She asked me ...(indistinct) of my problem with the police, I said yes, I'm currently from school in Jo'burg, I'm doing some computer courses. But now the sudden presence of police in the township was unusual to the people in the township and then to the old lady herself, she asked whether are they not looking for me and I said no, they are not looking for me, but now the pressure was mounting because there were helicopters hovering just above the electrical poles. I could see the police with binoculars and so on, so I decided to get into the house and then I confessed to the old lady that yes, they are looking for me. I did have an encounter with them. I threw them with the hand grenades, so she asked the grandson to go and listen to what the police are saying, because the police by then were moving around with the van and loudspeakers with my photos, warning the people of the terrorist in the area and that they should report that terrorist. So apparently the grandson of the old lady went to the police and reported that I was hiding at his home."
MR NYAWUZA: And then you got arrested?
MR CHOANE: Yes.
"I got arrested a little later, around half-past seven in the evening. The police raided our house, they stormed the house and then they could not find me because they started by throwing the stun grenades, four of them. With my knowledge of Special Operations, I knew that they will follow with a short burst and then they will enter to clear the house, so by the time when they were throwing - shooting the stun grenades into the house, which produces very small fragments.
I took the bed, because it's one room, I took the bed and made a parapet with it and then I lied low, with my body above the floor, not on the floor, so as to avoid the shocks from having effects on my heartbeat. I then waited until they fired shots from their submachine guns. They fired about four shots and then I replaced the bed and hid under the bed. So they knew that I was lying on the bed, according to the information that they had from that guy apparently, and then they sprang onto the bed, two of them and they went out, they said: "No he's not here", so they went to consult outside and then they came back again. They turned the inside of the house upside down and then they got me under the bed. I was subjected to severe beatings with the butts of pistols and the butts of submachine guns. I was kicked in the face and trampled in the face, but to me that was just one of those preliminary things before the interrogation."
MR NYAWUZA: So is it correct that you were arrested and charged with attempted murder?
MR CHOANE: Yes, I was arrested and then later charged with attempted murder, illegal possession of firearms, explosives and causing of explosion.
MR NYAWUZA: What subsequently happened with the matter? Were you convicted and if convicted, what term of imprisonment were you serving?
MR CHOANE: In totality I was convicted and sentenced to fifteen years, but some of the charges run concurrently, so as a result of that I ended up having eleven years to stay in prison.
MR NYAWUZA: And for how long did you stay in prison?
MR CHOANE: I stayed for about five years in prison. I got some minor amnesty sentence reductions and then at the end I got a parole of three years, which I served when I was outside.
MR NYAWUZA: So all in total you were in prison for five years and on parole for three years?
MR CHOANE: Yes, I was in for five years and then on parole for about three years.
MR NYAWUZA: Do you regard the incident that happened on this particular day in 1990, as having any political attachment?
MR CHOANE: From the mere fact that I was instructed to come and form the self-defence units in South Africa, given a passport, given money and given the mandate to use my discretion as a Commander, I strongly believe that my activities fell within the ambit of the political aims of the African National Congress.
MR NYAWUZA: Would I be correct if I say you're asking amnesty regarding that incident today before this Committee?
MR CHOANE: Yes, I'm asking amnesty for that.
MR NYAWUZA: Thank you Mr Chairman, that's as far as the incident in Bloemfontein goes. If my Learned Colleague would want to ask questions relating there to this incident, she can do so.
CHAIRPERSON: It would be difficult to conduct this in piecemeal. You rather give evidence about the second incident as well, so that the cross-examination, if any, should be complete, because it's going to make our records messy, the transcript.
MR NYAWUZA: As it pleases the Committee. We then proceed to the incident in Angola, January 1984. Mr Choane, you're also applying for amnesty relating to an incident that happened in an ANC camp in Angola. Briefly tell the Committee what happened on that particular day.
MR CHOANE
"It was on the 11th of January 1984, I was few days from the Eastern Front where we had a campaign against UNITA rebels and then I escorted Comrade Chris Hani from Malange Province in Kakhuso, or Kakhuso in Malange Province. We went up to Vienna. Comrade Chris Hani was on his way to Zambia to report about the occurrence of mutiny in the ranks of MK in the Front, so while I was in Vienna, January 8th is a day that gets celebrated in all ANC centres and in all MK centres, so January 8th was during the week and then it was decided that the celebration would be done at the weekend.
So from Friday, Saturday, Sunday of that week, the entire camp of Vienna was celebrating the birthday of the African National Congress. Everyone was drinking wine and beer, not everyone but most people were drinking there, so I was not drinking, by then I was still young. On the Sunday I think, after we celebrated, we were then instructed that the members of the Defence Unit, or the staff members of the camp, of which I was part of, should not carry weapons because everyone is drinking, except the chosen few who will sleep with their weapons. So I did not sleep with my weapon. At around past eleven to twelve I went to sleep on that day and then on my way to my tent, my tent was situated about hundred and fifty metres outside the walls of the camp.
At the back we only had three tents, which were Rufus's tent and then it was my tent immediately after his tent and then some distance away it was Simon's tent. So on my way to my tent I realised that there were people in Rufus's tent, then I got into that tent and then, well people were having conversation there, so when I got in there was a sudden silence by the people who were in the tent. I don't know what is it that they were having conversation about. Inside there was Mompati, there was Papa, there was Christina, there was Bruce and then the people who were staying in that tent, it was Rufus and then later he was joined there by Papa and Mompati, who were members of the staff. Rufus was not a member of the staff."
MR NYAWUZA: What was he?
MR CHOANE: He was working in the kitchen, he was responsible for the food of the administration of the camp. He was dishing and he was cleaning the dining hall.
MR NYAWUZA: Why had he been given this job?
MR CHOANE: Rufus was attending a medical treatment in Vienna. His training session was terminated due to his illness of which he was attending a treatment.
MR NYAWUZA: What illness was that?
MR CHOANE: As far as I can remember he had T.B. but he was curing, it was very light around that time of 1984. MR NYAWUZA: So Rufus, was he in any way allowed to carry a weapon, since he was working in the kitchen?
MR CHOANE: The only people allowed to carry weapons were members of the staff who formed part of the Defence Unit of the camp, so Rufus was never a member of the staff, nor a member of the Defence Unit of the Camp.
MR NYAWUZA: Now when you say members of the staff and members of the Defence Unit, what in essence, are you saying? Members of the staff, what are they?
MR CHOANE: Members of the staff are the middle management of the camp, those include Commanders and Commissars of platoons and companies and people who belonged to my unit of the Security, the VIP protectors, members who served in the signal unit, they were all members of the staff. They performed their duties as officers on duty, whereas the companies were performing other duties, as going to the stores, off-loading the sheep and so on.
MR NYAWUZA: Okay, you can proceed.
MR CHOANE: I then went into the tent and then there was this sudden silence with all the people in there. The people were sitting with - they were sitting around a pot, they were sitting on stretchers and beds around a pot of wine, the pot that belonged to the Administration Block, it's a small aluminium pot, it belonged to the Admin. So they were sitting there having drinks and having conversations. I understood from the general perception of the members in the camp why the members kept quiet when I came in, it was particularly because I belonged to the Security Department and then by then there was tension as the mutiny was in progress in the Eastern part of Angola.
MR NYAWUZA: What was the mutiny all about?
MR CHOANE: The mutiny was about the members of MK who were in the campaign, no longer willing, not all of them of course some of them, no longer willing to proceed with the campaign against UNITA. ...(indistinct) says that the war must be brought to South Africa and not in Angola so they don't see their role there, so they ended up shooting up in the air, shooting one another, shooting rocket launchers into the air scaring people and so on. A very terrible situation.
MR NYAWUZA: Okay, you can proceed.
MR CHOANE: I then left the tent immediately and went into my tent. I slept. I was not armed. I slept and then just a few hours later around past two to three, I heard a horn, a horn, it was a combat alarm for staff members only, whereas the bell was for the entire camp to respond to the combat situation, either by means of going to the armoury or by means of going for shelter in the dugouts. So the horn was blown by Moffat, who was the officer on duty on that day and then I responded to the horn. I went to the assembly area where we normally fall in when there's a call and then Moffat was trying to explain but I could hear and everyone could hear the shots from automatic rifle not a very long distance away from the camp.
MR NYAWUZA: From what you could hear, were these shots being fired by a number of people, or were they fired by few people or a single person?
MR CHOANE: The shots were from one weapon, the way they were - the way I heard them, they came from an automatic rifle and only one rifle. I can distinguish between the fire of several people and the fire of one person.
MR NYAWUZA: Okay, you can proceed.
MR CHOANE: He then - we were only seven, I found six people there, so we were seven all in all, people who had responded to this combat alarm and then he instructed us, coincidentally he was also responsible for armoury, it's where he slept, so he instructed us to take our weapons. We went to take our weapons. I took my AK ...(indistinct) and then we reassembled and then we divided ourselves into two groups. One group moved behind the camp and then the other group moved in front of the camp. My group consisted of myself, Santana, Moffat and Gibson. The other group consisted of Potsotso, Julinda and I don't remember the other person.
MR NYAWUZA: I see on page eleven of the bundle, there you said your group consisted of Moffat and then there a comma, there's Taylorman and I heard now you did not say anything about Taylorman. Who was Taylorman?
MR CHOANE: Taylorman is the man who was responsible for sewing our trousers and jackets and everything. He was also part of the staff in the camp.
MR NYAWUZA: Okay, you can proceed.
MR CHOANE
"And then we proceeded towards the Eastern Direction from the back of the camp. We could still hear shots being fired and they were not far away. They were being fired from a plot. It's about third plot from our camp. We went there. Moffat decided to go into the plot while we were moving in the terrain, so he moved by bounds to the plot and then he went to a small house because the plot has got a big house and a small house, shanty-like.
He went there and then he went around that small shack and then he fired shots into the air. Upon firing the shots into the air, I could see his bullets, because he had some tracer bullets. He fired the shots into the air. So as I was advancing in the skirmish, which consisted of myself, Santana and Gibson and Taylor, I could see a figure in the dark. By then it was already in the morning, it was still dark, but one could see a figure that, on his back had a knapsack. So what came to my mind was that this should be a UNITA bandit, so I used three languages. I used Russian, I said: "...(Russian)" and then I said: "Halt", I said: "Alto" meaning that this person must stop. I fired shots into the air, but he didn't, instead he went down and fired at me. By then my magazine was nearly finished. I shifted the position of my weapon from elevated position to the hip level. I fired a few shots and then my rounds were finished. I changed my magazine and then fired on this person whom, by then, I didn't recognise as to who he was or who she was."
MR NYAWUZA: Tell us is the area well lit? Are there lights at the camp or at the area where shots were fired?
MR CHOANE: The lights, electricity is only provided for in the camp and at the camp of SWAPO which was about six hundred metres away from our camp, so at the back there was no electricity, it's a bush.
MR NYAWUZA: Okay, so it was dark?
MR CHOANE: It was dark, you only see the figure because we were facing towards the eastern direction and the sun somewhere was trying to come up, so you could only see the figure and not ...(intervention)
MR NYAWUZA: Could you tell what type of clothing he was dressed in, or you couldn't?
MR CHOANE: Not at the time when I was firing, I could not determine whether he is wearing uniform or he's wearing civilian clothing, I only saw that later.
MR NYAWUZA: Okay, you can proceed then.
MR CHOANE
"So I then fired at this person. I - after several shots I heard the person screaming at agony, I heard him screaming and then I withdrew. We retreated back to the skirmish. By the time when I went to the skirmish, because by then I was the only one standing and firing, the other people remained behind, I don't know for what reason, so I went back to the skirmish and then I lay down, I consulted with Moffat who was already back into the skirmish and then I told him that apparently I have shot that person. So Moffat went there. I covered him. I pointed the weapon at the vicinity where this person was lying. He was no longer firing at that time, so I thought to myself that he's immobilised, but nevertheless I covered Moffat and then Moffat went close to him. Moffat recovered two weapons. So Moffat had a knowledge of the weapons that are in our camp."
MR NYAWUZA: Why him?
MR CHOANE: Because he was an armoury man, he sleep with those weapons, he know those weapons, he's the one who cleans them, so he immediately remarked that these are our weapons.
"So he removed the weapons from the scene and then I kept on pointing the gun at the person who was lying there and then Moffat came and then we tried to inspect the un, but it was still dark. So all of a sudden we heard another volley of shots from the direction of the SWAPO camp. We went back and then I took cover.
I ran back to that camp with the aim of going to report that there's this problem, we've discovered these weapons, because by then, including the camp Commanders did not respond to the situation in time, so only seven of us responded. So on my way there, there was still volley fire from the direction of SWAPO, so as I was approaching our camp, I met with a second skirmish which was from our camp. The Camp Commander was there. I remember amongst other people it was Jerry and other members of the staff. So we could see the tracers at a very low level and then tracer bullets and then Jerry fired into the air and then after firing into the air with these tracer bullets, there was a cease of fire from the other direction, for the direction of SWAPO.
I then reported to the Camp Commander that this has happened. I don't know who that person is. We then went back to the scene. On the scene we met with the SWAPO Commanders and some members of their reaction force. There the matter was discussed. The reason why they responded with fire is because their camp is little bit extended at the back, so it's more bigger than our camp, so as I was firing, some of the bullets were going to their tents, so it's for that reason that they responded with fire, but then that was tackled by the Commander and the SWAPO Commanders. I went to the person who was lying there. By then it was now becoming clearer. I discovered that it was Rufus, Rufus who was my neighbour and my friend. The person, we used to cook a black pot together, tea and tomatoes we used to cook together and I realised that it was him.
The Commander immediately instructed one of the staff members to go and fetch the ambulance. The ambulance came to the scene. I and Gift, we lifted Rufus and put him into the back of the ambulance, a Land Rover and then I was holding his hand because I realised in the ambulance that I have shot him on one of the arms. The arm was totally broken and I shot him through the thorax up to the testicles. The bullet went straight from the solar plexus up to the testicles.
I held his hand and then tried to ask him what is it, what is it that he was doing, but he could not talk. Apparently he was still drunk by then. I held his hand, which was falling, I think it was the left hand, because the head was facing to the driver's seat and the hand that was falling was on next to the stretcher. So I held his hand. We drove to the hospital.
At the hospital - we arrived at the hospital at around ten past eight in the morning at Angola Military Hospital. At the hospital we took Rufus to intensive care unit, but there were no doctors at the time to attend to him, they were still busy with other people. It wasn't long when Rufus was coughing the - there was a white stuff coming out of his mouth, the foam and then he was moved to the theatre. Then we waited, there with the Commander and Comrade Bangwe and Gift to get the results, but Rufus did not survive long, particularly maybe because there were too many casualties in the hospital with bullet wounds as Angola is at war and was at war by then.
So we then went back to the camp, but on our way to the camp, before we could leave the hospital, there was another car from the camp bringing the old man, so I understood from the comrades that Rufus had shot the old man in the hand and had shot his wife on the neck and has killed his son, he shot him through the head. I cannot explain the motives why Rufus did that to those poor peasants. So we then moved back to the camp."
MR NYAWUZA: Are you saying now, since in your testimony-in-chief, you said you could hear that the shots that were fired, were fired from a single automatic rifle. My question is now, are you saying the shots that you heard might have been from the firearm that shot the old man?
MR CHOANE: Yes, there was only, out of the two weapons that Rufus had, there was only one weapon with a safety open which I believe is the one that had probably shot the old man.
CHAIRPERSON: Could I make a request? I received an urgent message to attend to something. Could we in the meantime take the tea adjournment as well?
MS COLERIDGE: All rise.
COMMITTEE ADJOURNS
ON RESUMPTION
ABEL RAMAKOSI CHOANE: (s.u.o.)
CHAIRPERSON: You may proceed.
EXAMINATION BY MR NYAWUZA: (cont.)
Mr Choane, we finished off where you said this guy passed away and then did you subsequently bury him?
MR CHOANE
"Yes, I myself together with Gift and one of the drivers of the truck, I just don't remember the name and Bangwe, we buried Rufus in Luanda, in the outskirts of Luanda at the cemetery, together with some other five soldiers of the Angolan Government and one of our comrades who was shot by mutineers, so on that we buried about seven people."
MR NYAWUZA: So is that as far as your evidence-in-chief goes?
MR CHOANE: Yes, I think I've done my best to recall everything regarding the incident.
MR NYAWUZA: Thank you.
NO FURTHER QUESTIONS BY MR NYAWUZA
CHAIRPERSON: Ms Vilakazi, any cross-examination?
MS VILAKAZI: Thank you, Honourable Chairperson. May I indicate that the family of Mkudubethe, which I'm representing, is not opposed to the application, but they are here because they've always wanted to know what happened to their son and the questions that I will be asking will be directed at giving clarity to the circumstances.
CHAIRPERSON: Who in particular from the family gave you instructions? Why I'm asking this is that should we, at the end of the day, come up with our decision, we want to know the victims.
MS VILAKAZI: The instructions are from the brother Tsidiso.
CHAIRPERSON: Is he the only survivor of the deceased?
MS VILAKAZI: No he's here together with his father and the other brother.
CHAIRPERSON: Could you for just clarity of the record, furnish us with the names? The father, who's he?
MS VILAKAZI: The father is Solomon Mkudubethe.
CHAIRPERSON: And the other brother?
MS VILAKAZI: I beg your pardon. It's Azariel Makudubethe.
CHAIRPERSON: Thank you. You may proceed.
MS VILAKAZI: Thank you Honourable Chairperson.
ADV SIGODI: Sorry, whilst we're still on that aspect, is the mother still alive?
MS VILAKAZI: The mother is deceased.
ADV SIGODI: Okay.
CROSS-EXAMINATION BY MS VILAKAZI: Mr Choane in your evidence-in-chief, you have testified about the circumstances around which the person that you knew as Rufus was killed, who turned out to be Thabo Mkudubethe. now for the sake of clarity, you spoke about being woken up by a horn and that seven people responded. How many people were in the camp at that particular time?
MR CHOANE: We had up to one company of trained personnel and about a platoon or so of untrained personnel and then in the Defence Unit or the Staff, we were thirty-two in total and that thirty-two is the one that's supposed to have responded to the horn.
MS VILAKAZI: So only seven responded out of the thirty-two?
MR CHOANE: Exactly.
MS VILAKAZI: Right and then you also spoke about - can you just give us clarity as to, you spoke about hearing gunfire when you went out. From which direction was the gunfire in relation to the camp where you were?
MR CHOANE: Our camp was faced south to the capital Luanda and the back part, which is facing north, is where myself and Rufus's tents were situated and then in the eastern direction, it's where you find the SWAPO camp, about six to seven hundred metres away and it is from that direction a very short distance from our camp, about three plots away and one plot, it's about one hundred and twenty metres, so third plot from our plot is where the gunfire was heard, so you can hear gunfire from a distance and a short distance you can distinguish if you are a trained person.
MS VILAKAZI: So are you saying the sound was from the eastern side, from the side of the SWAPO camp?
MR CHOANE: From the eastern direction yes, but not as far as at the SWAPO base. There I could distinguish that the fire is just nearer our camp.
MS VILAKAZI: And then you spoke about seven of you responding and did all of the seven who responded, fire shots?
MR CHOANE: It's only Moffat and myself. Moffat fired shots when he was trying to stop the person from firing. That was now at the plot where the incident of killing of people happened and then Rufus shot shots. I also fired some shots, so we were the only three people who fired shots, the rest of the people never fired even a single weapon until when the second skirmish advanced to the vicinity where the incident took place, then people from our second skirmish were also firing as well as the SWAPO people were firing, but that was long after the encounter with Rufus was taking place.
MS VILAKAZI: Ja, let us just concentrate on the encounter involving Rufus. So you're saying in that encounter, three people were firing?
MR CHOANE: Yes, I do.
MS VILAKAZI: How does it come about that only two, yourself and Moffat, out of the seven were the ones who were firing? Can you clarify that?
MR CHOANE: The rules of weapon applications are that you do not fire from the back of your own comrade, so what happened here, Moffat went to the house and tried to scare the person who was firing at that house and then that person came out. I stopped that person. I fired in the air. The rest of the people were not firing. I fired in the air. I said the person must stop. I said that in Russian, I said that in Portuguese and I said that in English, so the person did not stop, he decided to fire at me, so that's why I fired at him. My first shots were aimed at stopping the person and then my second shots were aimed at the person who was shooting at me.
MS VILAKAZI: So how far was this person from you?
MR CHOANE: He was about fifty metres away from me, if not seventy metres away from me.
MS VILAKAZI: Now is this person that was shooting at you and you were shooting back at, the same person that had a back pack?
MR CHOANE: Yes. The bag was found later and it belonged to Cynthia, after the investigation was done it was found that it belonged to Cynthia, it contained her panties, her pads and tracksuits and the perfumes.
MS VILAKAZI: And you were able to see that back pack? You said so.
MR CHOANE: I saw the back pack, but I could not identify it in terms of colour and as to what type of bag it is. That is now before I fired shots and in as far as the identity of that bag is concerned, I only saw that the bag was brown and it contained what it contained a little later.
MS VILAKAZI: But at the time when this person had the bag, you could see that it's a back pack?
MR CHOANE: It appeared like a knapsack, or rucksack, soldiers' bag which is carried at the back.
MS VILAKAZI: At some stage you were asked if there was light around the area where you were and you said that there was no light because there's no electricity in the camp, but then you also mentioned that you could see a figure because the sun was coming up.
MS VILAKAZI: I said in the vicinity where we were fighting, there's no electricity. Electricity is only provided for inside the camp and the figure that I saw, I could see it from the natural light in the dark. I could not see whether that person is a male or female, but I could see the figure moving.
MS VILAKAZI: But you could see that the figure is carrying a back pack?
MR CHOANE: Yes, from the horizon there was a bit of natural light because it's during dawn.
MS VILAKAZI: Around what time was that?
MR CHOANE: The time by then was around past four if not four.
MS VILAKAZI: Now it's a bit strange that you were able to see that figure and you could see that the figure was carrying that back pack, but you could not see - identify the figure as a familiar figure because you said that you were very close to ...
MR CHOANE: Ma'am it was in the dark. I'm trained to see stationary figures and mobile figures. I could distinguish between animal and a human being, so I cannot identify the person by face in the darkness, but I can identify that the figure, it's a human being.
MS VILAKAZI: Okay. Going back to the shooting itself, what makes you so sure that this Rufus died from the shots that you were firing and not those that were fired by Moffat?
MR CHOANE: Ma'am when the figure ran towards my direction and to the northern direction at the end, it was - it seemed normal and fit as it was running. It's only after he fired shots and me responding with my fire, that he cried in agony and then he stopped firing and from the position or from the analysis of the bullet wounds that went through solar plexus up to the testicles and on the left arm, it's definitely a sure case that I'm the one who shot him.
MS VILAKAZI: I have no further questions thank you Chairperson.
NO FURTHER QUESTIONS BY MS VILAKAZI
CHAIRPERSON: Thank you Ma'am. Ms Coleridge, any questions?
MS COLERIDGE: No Chairperson.
NO QUESTIONS BY MS COLERIDGE
MS COLERIDGE: I just want to - can we just call this Exhibits A and B Chairperson, that is the statement by American Petrus Booysen, can we call that Exhibit A and then Letshaba Sekilele as Exhibit B? Thank you Chairperson.
CHAIRPERSON: These would be in respect of the Bloemfontein incident?
MS COLERIDGE: That is correct, Chairperson, the two victims involved there.
CHAIRPERSON: Thank you Ms Coleridge. Any re-examination Mr Nyawuza?
MR NYAWUZA: No re-examination, Chair, thank you.
NO RE-EXAMINATION BY MR NYAWUZA
CHAIRPERSON: Adv Sigodi, any questions?
ADV SIGODI: Yes Chairperson. Was there any inquiry made by the ANC after this death of Rufus?
MR CHOANE: Ma'am in as far as I can remember, there was an investigation by the Security Department of the ANC into the matter itself, because the belief was that Rufus might have been influenced by other people who were participants in the mutiny, because Rufus, as far as everyone knew him including myself, was a very good person, a sweet person, had no troubles, but the fact that he carried with him, at the time of his death, the weapon of one of the leaders of mutiny, the man who had grudges against the ANC for having been locked up due to the history of his father and himself, it was a belief of the ANC Security Department that he might have been influenced, so there was an investigation but then in my absence I had a book that contained a report of the Mutsweyane Commission and I see there in that book it said that Rufus was put on the firing squad. That is not true and it's particularly for this reason that I, I think it's page 28 number 20, it is for this reason that I personally felt that I should come and put the record straight that Rufus was never killed by means of firing squad, he died in an accident as I've explained.
ADV SIGODI: And who were the people who were chairing that investigation?
MR CHOANE: Ma'am I was already in prison - oh, the Security investigation?
ADV SIGODI: Yes.
MR CHOANE: I don't remember exactly who chaired the investigation but I only knew that there was an investigation being carried out by the Security Department in Angola.
ADV SIGODI: So were you not informed of the investigation or were you not asked by the Investigative Unit of the ANC?
MR CHOANE: Ma'am throughout 1984 it was a very terrible era for the African National Congress and MK as there were a lot of eruptions of violent activities by members of the MK in the form of mutinies, so the investigations that were done, were part of the entire investigation into the causes of mutiny, so Rufus's case, according to my opinion, apparently it was not treated as a separate case, but it was treated as part of the whole investigation of the mutiny, which saw many people dying in our camps.
ADV SIGODI: Thank you Chairperson.
CHAIRPERSON: Adv Bosman?
ADV BOSMAN: Thank you Chairperson. Mr Choane in regard to the first incident, I think you gave the evidence but it is stated here that you were convicted of attempted murder, possession of an AK47 machine gun, possession of AK47 ammunition and possession of a hand grenade. Now your application for amnesty is for resisting arrest. I don't get that clearly. The reference to the convictions are on page 33. Are you applying for amnesty in regard to attempted murder, or is it your case that you did not attempt to murder, that you were incorrectly convicted?
MR CHOANE: Ma'am I don't know who phrased the application itself because when I wrote the application, I stated exactly what happened and I'm applying that amnesty so that my name can be cleared in as far as criminal records in South Africa are concerned. I applied amnesty for the whole activities of that day, which included the resisting of arrest that led to the shoot-out between myself and the police, so I was rightly convicted, I was convicted for attempted murder and for the illegal possession of AK47, hand grenades and AK47 ammunition is what I was convicted for.
ADV BOSMAN: So in addition to those convictions you are also applying for resisting arrest?
MR CHOANE: Ma'am, if that's an offence, yes I do apply for it.
ADV BOSMAN: Thank you. Thank you Chairperson.
CHAIRPERSON: Mr Nyawuza anything arising from what the Panel asked?
MR NYAWUZA: No, nothing, thank you.
NO RE-EXAMINATION BY MR NYAWUZA
CHAIRPERSON: Ms Vilakazi, anything arising from what the Panel asked?
MS VILAKAZI: Nothing, thank you Chairperson.
NO FURTHER QUESTIONS BY MS VILAKAZI
CHAIRPERSON: Ms Coleridge?
MS COLERIDGE: No questions, thank you Chairperson.
NO QUESTIONS BY MS COLERIDGE
CHAIRPERSON: Thank you Mr Choane, you are excused. Are you calling any further witnesses Mr Nyawuza?
WITNESS EXCUSED
MR NYAWUZA: No, Chairperson, that's the case for the applicant.
CHAIRPERSON: Any submissions?
MR NYAWUZA IN ARGUMENT: Chairperson, we're dealing with two applications in this matter, the first application being that of the arrest, the conviction that followed and the charges relating thereto, it's a Bloemfontein matter. The matter is not opposed. It's quite clear to everybody who has been sitting here that it was a politically motivated issue.
CHAIRPERSON: I don't know if you say it's clear to everybody, are you also referring to my Panel that it is clear?
MR NYAWUZA: Chairperson let me withdraw that. I withdraw it and I take it the other way. The application is for amnesty relating to this incident. My client, the applicant has stated that he was an MK member, he had instructions from a certain Lombard to infiltrate the country, to come and train self-defence units, both in the Vaal Triangle and they were given discretion as relates to the East Rand and unfortunately he met with the police officers on this first day of his coming into the country and was subsequently arrested after the skirmish that preceded his arrest. So we submit that the incident relates to a political objective and as relates to the gravity that followed, his testimony is that he threw this thing, he threw the hand grenade only to scare the people who wanted to arrest him and not to kill them and for the first incident, he threw the hand grenade on the ground, picked it up and they started running around and upon them following him, it's only then that he threw it and at the motor vehicle and not at the persons that were there. So the applicant didn't have any reason in killing the said guys who wanted to arrest him as he testified that he knew Mr Booysen and at some stage Mr Booysen used to aspire him as a cyclist.
CHAIRPERSON: But he says he threw the grenade at the car to immobilise them. Is this not a lethal weapon that you can say you are immobilising somebody when you threw a hand grenade?
MR CHOANE: He wanted to immobilise them regarding the motor vehicle and not them, I think that's how far his testimony goes, that is why in his testimony he said he wanted the hand grenade to go in the middle of the car, but unfortunately it went towards the back, so he did not want to immobilise them as persons as getting - but the motor vehicle so that they can start chasing him on foot.
ADV BOSMAN: Mr Nyawuza, how then can you argue that your client, on your argument, would be entitled to amnesty for attempted murder? Is that not a denial of guilt on the attempted murder, your argument?
MR CHOANE: Madam, It's not necessarily a denial on the attempted murder matter. We're just saying - we're going to cover, we'll say it in totality, he's definitely going to concede to the guys having been injured and subsequently being charged with ...(intervention)
CHAIRPERSON: He can't do that, he has finished testifying. He can't concede at this stage. The question is directed at your argument.
MR NYAWUZA: Yes, I'm going to come to that in my argument, I'm still at the beginning stages of my argument. Thank you Chairperson.
So as regards the incident, he threw this thing, he threw the hand grenade at these people, at the motor vehicle and subsequently they got injured. As regards the political objective thereof, I think it's clear that he wanted to resist arrest, he didn't want to be arrested and the unfortunate part is that people got injured and he was subsequently convicted for that.
He doesn't deny that he did it and in actual fact he came forward to state everything that happened on that particular day and would wish to be granted amnesty in relation to the injury that subsequently followed, the people involved being a certain Booysen and a certain Sekilele and further believes that both parties had their own political objectives. The arresting officers, the people who purported to arrest him wanted to further the aim of the people they were employed by and he wanted to further the aim of the organisation that he belonged to and unfortunately there was this altercation between him and them, so in totality we're saying the application should include even the charges that he was convicted for and then as regards the incident that happened at Vienna in Angola, the applicant came forward to testify that he is the one that shot and killed the deceased Rufus, who we are told today is Thabo Mkudubethe. It was upon him to come forward and state that - it's actually dawned to him that I have to set the record straight. The ANC on page 28 of the bundle states that he was executed by order of the military tribunal and he wanted to set the record straight and dispute that and put the family in the know-how as to how did Rufus die.
In his testimony he has testified that Rufus's tent was next to his. There was absolutely no animosity between the two of them. This matter, this incident took place, the killing in actual fact took place as a result of a prior shooting upon which where they were called to go and see as to what happened and he accidentally, as he has stated, shot at a figure that he could not see, a figure, according to his testimony, that was about between fifty and seventy metres from where he was and there was no proper lighting, he could only see a figure with a bag at the back and when he asked that figure to stop in three languages, the figure didn't stop but instead fired back at him and he subsequently returned fire, fatally wounding the deceased in this matter and then he also took part in taking the deceased to hospital, showing further that there was absolutely no animosity between them, if he was doing it out of hate, he couldn't have taken the deceased to hospital.
So we submit Chairperson that there was full disclosure on the part of the applicant as regards that incident in Vienna in Angola and further that at least now the record has been set straight, the family knows what happened and who did it and how it happened. That's as far as our submission goes. Thank you.
NO RECORDING ON THIS SECTION OF TAPE
ADV BOSMAN: ... problem with your argument, you argued that your client did not intend killing and for attempted murder, surely intent is a requirement. Could you advance any other submissions why his actions should be seen as attempted murder? If you ...(indistinct - no microphone?
MR NYAWUZA: Can I take instructions from my client?
ADV BOSMAN: It's really a legal argument. There are three forms of intent, there's dolus directus, there's dolus indirectus, there's dolus eventualis. Could you perhaps make another submission as to the requirement of dolus for the offence of a murder or an attempted murder, because on the argument which you presented to us, you have not made out a case for attempted murder.
MR NYAWUZA: As regards the - I don't know as to which incident we're referring to here, maybe we're referring to the Bloemfontein incident?
ADV BOSMAN: The Bloemfontein incident, yes.
MR NYAWUZA: Thank you. As regards the legal argument and the dolus involved in this matter, I would kindly submit to the Committee that it's dolus eventualis. In actual fact he didn't in any way attempt to, but eventually by him throwing the bomb, the hand grenade at the guys that he had a skirmish with, they subsequently got injured, but as he has stated, he did not in any way intend to injure them, but subsequent to that, subsequent to him having thrown the hand grenade at him, they were injured.
ADV BOSMAN: Are you arguing that he should have foreseen that he could possibly have killed him, is that your argument?
MR NYAWUZA: That is my argument.
ADV BOSMAN: Thank you.
CHAIRPERSON: Ms Vilakazi.
MS VILAKAZI IN ARGUMENT: Thank you Honourable Chairperson. My submission in as far as the incident of the killing of Thabo Makudubethe is concerned, firstly the concern
is a legal one relating to the question of jurisdiction. The incident occurred in Angola. Now the question here is, does the Amnesty Committee in South Africa have jurisdiction to grant amnesty for incidents which occurred outside the territorial area of the Republic of South Africa?
CHAIRPERSON: Have you read the Act in that respect, because we want to hear your submissions.
MS VILAKAZI: I might have missed that particular part in the Act. I looked for it.
ADV BOSMAN: Isn't there a case law on this very issue, Ms Vilakazi, that you're aware of?
MS VILAKAZI: Not that I'm aware of. It was - there was just a question, I would not really take the argument further.
CHAIRPERSON: As you know, we don't answer questions, we give Judgments, but we want to hear you, whether you say we should or should not in respect of the incident in Vienna, in Angola, grant amnesty or not, but whilst you do your submissions, you must remember what you said to the Committee at the outset that the family does not oppose.
MS VILAKAZI: Indeed Honourable Chairperson, the family is not opposed to the granting of amnesty, but I should submit that the question of whether or not the victims are opposed to the granting of amnesty, is not part of the requirements for the granting of amnesty. So therefore, it's a neutral fact as to whether the family is opposed to it.
CHAIRPERSON: Have you heard of hearings that are conducted that some are cross-border attacks and normally those are applications by the Security Forces?
MS VILAKAZI: I have heard of those, Chair.
CHAIRPERSON: In that respect, also referred to offences outside the country.
MS VILAKAZI: On that note, they do refer to offences outside the country, on that note I would withdraw the submission, Honourable Chairperson.
ADV BOSMAN: Ms Vilakazi shouldn't those matters be distinguished in that those offences were planned in South Africa and carried out across the border whilst in this other matter, the whole planning or rather not planning everything took place outside the borders of South Africa. On what basis would you argue? I think it's an important point which you've raised perhaps which the Committee will have to consider. On what basis would you argue that the South African Courts or the Amnesty Committee in this case would have jurisdiction in regard to such an offence?
MS VILAKAZI: The question that I raised concerning jurisdiction was based on the fact that the whole incident in respect of which this application is made took place outside the borders of the Republic. Now as I have alluded to the fact that I have not really scrutinised the Act in that particular - with regard to the question of cross-border activities, I am not in a position to take the argument any further, save to have ...(intervention)
CHAIRPERSON: Let me assist you. Could Mr Choane be sued for the death of ... Could he be civilly liable inside the country?
MS VILAKAZI: Inside the country, he would not be civilly liable because the incident in respect of which the matter occurred, was - in regard to a civil matter, a case could be made against him because the incident does not have to have happened within the country, in a civil matter, so in that regard a civil suite could be made against him, could be brought.
CHAIRPERSON: So the Act doesn't not specifically refer to criminal matters, also civil matters would arise from offences, so upon that, are you saying to us we should take that into consideration in adjudicating on this matter of Mr Choane in respect of the Angola incident?
MS VILAKAZI: The - my submission in that regard would be that the application is made in relation, it is not clear whether it is for purposes of a criminal record that this application is brought.
CHAIRPERSON: The Act actually says we, the Committee or the Panel hearing the matter, would decide after hearing evidence, which offences one would be pardoned with by giving amnesty. Shouldn't we in so doing also look at that because if you look at the application form, it's an indication of the offences which he had when he says killing of Rufus in 1984. Is it not an indication to us which matter we should look at, or how we should look at that matter when adjudicating?
MS VILAKAZI: Honourable Chairperson, indeed, those are the issues which the Committee has to look at in taking it's decision.
CHAIRPERSON: Thank you Ms Vilakazi. Ms Coleridge, anything that would assist us in coming to a fair and just decision in respect of Choane?
MS COLERIDGE: Thank you Chairperson.
MS COLERIDGE IN ARGUMENT: I just want to refer to the High Court decision, that's in the Stopforth and Trenedal case, Chairperson, in relation to the applicant. It is clear, Chairperson, that the Amnesty Committee does not have jurisdiction in terms of criminal suites in relation to other countries and beyond our borders, but in that Judgment there's obviously the loophole and the flaw in that the applicant can be sued civilly in South Africa due to the fact that he resides here and obviously the application will therefore have to be lodged in
South Africa so in relation to the applicant, whether the Committee decides to grant him amnesty, it would be obviously in relation to any civil suites and that is basically my submission in relation to the jurisdiction factor, Chairperson.
CHAIRPERSON: If we couched it in this fashion that any action flowing from the killing of Thabo, supposing we say that, would it cover the civil suite as well?
MS COLERIDGE: Definitely it would cover because any action, whether in relation to the murder and possession - well then it would extend to the possession of firearms and all of that as well, which he possessed at that time, but that would also relate to the criminal aspect of the case, so probably to limit it to the murder, well that depends on the Committee obviously. Thank you.
CHAIRPERSON: Thank you very much Ms Coleridge. Any reply?
MR NYAWUZA: No reply, thank you.
CHAIRPERSON: This concludes the application of Mr Choane. We will - we reserve our decision as it's customary that the same should be in writing and we hope to do that shortly and the parties involved will be advised of our decision. We wish to thank the legal representatives in their assistance in this matter and we lay the matter of Choane to rest until the decision given. Where do we move from here?
MS COLERIDGE: Thank you Chairperson. The next amnesty applicant would be Mr Bongani Dlamini, Chairperson and Mr Nyawuza is representing him.
CHAIRPERSON: Would you grant us a short adjournment to rearrange our papers. I see that we only have Choane's in front of us.
MS COLERIDGE: That's in order, Chairperson.
CHAIRPERSON: We'll take a five minute break.
MS COLERIDGE: All rise.
COMMITTEE ADJOURNS
