CHAIRPERSON: Mr Mbandazayo?
MR MBANDAZAYO: Thank you Chairperson, the last witness I'll call is Jabulani Khumalo, Chairperson.
JABULANI KHUMALO: (sworn states)
EXAMINATION BY MR MBANDAZAYO: Thank you Chairperson.
Mr Khumalo, can you tell the Committee who you are?
MR KHUMALO: My name is Jabulani Khumalo as stated.
CHAIRPERSON: If you ask a question you get an answer Mr Mbandazayo.
MR MBANDAZAYO: Mr Khumalo, is it correct that you are a member of PAC?
MR KHUMALO: That is correct.
MR MBANDAZAYO: Can you tell the Committee what position you hold in the PAC.
MR KHUMALO: I'm the national member, executive of the PAC, holding the portfolio of the local government.
MR MBANDAZAYO: Can you tell the Committee were you holding any position during the era of 1993 and if you had any position what position were you holding within the PAC?
MR KHUMALO: At that time politically I was the chairperson of the East Rand. I was not a national leader at the time.
MR MBANDAZAYO: Was it a region or a branch?
MR KHUMALO: A region.
MR MBANDAZAYO: Now Mr Khumalo, do you know the applicants who have just testified here before the Committee?
MR KHUMALO: Yes I do.
MR MBANDAZAYO: Can you tell the Committee how do you know them?
MR KHUMALO: I just get the name that they are really named today. The one called Tshabalala, I know him to be Solly. The other one with a brown jersey ...(intervention)
CHAIRPERSON: Mr Ntantiso.
MR KHUMALO: Ntantiso, he was David. Though those were the code names. I knew them when they arrived in the East Rand in the time when the East Rand had a problem with the ANC who were under attack and they were sent to Kathlehong to rescue and protect members of the PAC from the attack. So at the time they were introduced by their commander. They were Solly and David so they were the members of the Task Force.
MR MBANDAZAYO: Now can I be specific to you? Do you anything about the incident they are applying for amnesty for?
MR KHUMALO: Yes I do know about it.
MR MBANDAZAYO: Can you tell the Committee what do you know about it?
MR KHUMALO: It happened in the time when the instruction was given to all PAC inside the country. It was the time when the commanding chief, Sabelo Pama, declared the Year of the Great Storm. He activated that again when the office of the PAC in the national office at Bree Street was under attack by the members of the SAPS, SAP at the time, documents were confiscated, equipment of computers and other things were also confiscated. It was worse when the Mbendalosa family were under attack and killed. Then a clear statement was made that from the time the targets, the victims, that will be the victims of the barrel through the Azanian People's Liberation Army, will be any settler, anyone, irrespective. More specially it was also in the time when our people were under attack in the trains and the taxi ranks, that it was interpreted that they were the third force which has also been invaded by the white settlers.
So at the time, the interpretation of the target by the Azanian People's Liberation Army changes from the State's machinery to all white settlers. At the time there was a trembling in Azania. You will recall the Eikenhof in 1993, you will recall the St James, Helderberg Tavern. There was a lot of the so-called civilians but in the vocabulary of the
PAC at the time, there was no soft and hard targets.
MR MBANDAZAYO: Are you trying to tell the Committee what was done by the applicants was in line with PAC policy?
MR KHUMALO: It was, without any ambiguity. It was a justified cause.
MR MBANDAZAYO: That is all, Chairperson.
NO FURTHER QUESTIONS BY MR MBANDAZAYO
CHAIRPERSON: Thank you. Mr Richard any questions you would like to put to Mr Khumalo?
CROSS-EXAMINATION BY MR RICHARD: Yes Chairperson.
Mr Khumalo, have you ever heard of the Geneva Convention?
MR KHUMALO: I beg your pardon?
MR RICHARD: Mr Khumalo, have you ever heard of the Geneva Convention?
MR KHUMALO: Yes I did.
MR RICHARD: Now I would say that it's apparent that as at 1993 you were aware that the Geneva Convention prohibited gratuitous random attacks against civilians?
MR KHUMALO: That was not applicable in occupied Azania as is the U.N. Charter which also was supposed to be ...(intervention)
MR RICHARD: That is not an answer to my question.
MR KHUMALO: I did answer you but I'm giving you the broader perspective.
MR RICHARD: Sir, answer my question.
CHAIRPERSON: Please let's just - no shouting here.
MR KHUMALO: I want to give you a lecture.
MR RICHARD: I don't want a lecture.
MR KHUMALO: It's in line of the Geneva Convention. Maybe you know just that. I want to take you further.
MR RICHARD: Sir, I have the right to ask you questions. You have no right to ask me questions or to give me lectures.
CHAIRPERSON: Just ask questions and let's just keep it calm.
MR RICHARD: Calm, okay. So my question was, as of 1993 am I not correct that you were aware that the Geneva Convention prohibited random gratuitous attacks on civilians? Yes or no, that's the answer?
MR KHUMALO: I'm saying to you it was not applicable in occupied Azania. It was not applicable here in occupied Azania because ...(intervention)
MR RICHARD: Sir, that was not an answer to my question. My question is yes or no.
MR KHUMALO: I can't answer you with yes or no, I'm not a cabbage.
MR RICHARD: The question can only be answered in the yes or the no form, anything else is not an answer.
MR KHUMALO: That's your interpretation.
MR RICHARD: It's not my interpretation.
MR KHUMALO: It is.
MR RICHARD: I put it to you that you're refusing to answer the question.
MR KHUMALO: If you want me to answer you, I'm answering you but with explanation.
MR RICHARD: My question does not need an explanation, it's yes or no.
MR KHUMALO: It does ...(intervention)
MR RICHARD: If I want an explanation, I'll ask ...(intervention)
CHAIRPERSON: We're not going to let this deteriorate into a pollutable argument here.
MR MBANDAZAYO: Chairperson, I don't know even where the question takes us because at the present moment we are dealing with a unique situation. The political situation at the time, what was the aims and objective of that particular organisation at the time. That's why the TRC is involved, Amnesty Committee is involved as whether Geneva Convention or whatever convention, that's not the purpose of the hearing. The hearing is whether what the applicants did was in line with their political organisation and it was done with a political objective or not or they made a full disclosure.
CHAIRPERSON: Mr Richard, we are aware of what the contents of the Geneva Convention are, you can make any argument. It's there in black and white, whether the witness is aware of its contents or not is not of any great significance.
MR RICHARD: Chairperson, I really believe that I should have the opportunity of allowing the witness some comment on the fact that his evidence is to the effect that the PAC at the time countenanced crimes against humanity of the worst and most atrocious manner, prohibited by all known normal standards and that ...(intervention)
: Mr Richard, we can't go into that, really, because if you come with that kind of question, would we ask this question that the South African Government, did they go along with that kind of convention from the Geneva? It's not relevant because if you want to put that then you must come back and say the South African Government was adhering to the Geneva Convention and we all know, we have heard much of these things and it wouldn't take us anywhere, really.
MR RICHARD: Chairperson, I'll leave the line. No questions, the point is made. Thank you.
CHAIRPERSON: Do you have any further questions?
MR RICHARD: No further questions.
NO FURTHER QUESTIONS BY MR RICHARD
CHAIRPERSON: Mr Mapoma?
MR MAPOMA: I have no questions, thank you.
NO QUESTIONS BY MR MAPOMA
CHAIRPERSON: Any re-examination, Mr Mbandazayo?
MR MBANDAZAYO: None Chairperson.
NO RE-EXAMINATION BY MR MBANDAZAYO
CHAIRPERSON: Judge Motata, any questions?
JUDGE MOTATA: I've got none, Chairperson.
CHAIRPERSON: Mr Sandi, any questions?
ADV SANDI: No questions thank you.
CHAIRPERSON: Yes, thank you Mr Khumalo, that concludes your testimony.
MR KHUMALO: Thanks very much, Chairperson.
WITNESS EXCUSED
CHAIRPERSON: Mr Mbandazayo?
MR MBANDAZAYO: That's the evidence of the applicants Chairperson. Thank you.
MR RICHARD: Mr Richard?
MR RICHARD: My first witness is Mr van Wyk.
CHAIRPERSON: I'm just wondering, I see the time. We've got the department of correctional services to take into account. I wonder how long it will be and if we shouldn't just consult with them to find out whether we can finish today or carry on tomorrow?
MR RICHARD: Chairperson, I cannot really ask for the Committee for advice but there is Mr Mapeka who was an eyewitness to the events on the day. He works for Frankipile who operate the drilling machines and he won't be available until Thursday morning.
CHAIRPERSON: Is that when you intend to call him?
MR RICHARD: I don't ...(intervention)
CHAIRPERSON: Well then we should do him now. I mean we don't want to make this a part heard until Thursday.
MR RICHARD: Mr Mapeka is not going to be in Johannesburg until Thursday.
CHAIRPERSON: Oh, until Thursday.
MR RICHARD: His evidence is only that of an eyewitness. I believe that in view of the answers that I got from the applicants, he is not really necessary.
CHAIRPERSON: Yes because they didn't dispute much, what was being put to them, yes.
MR RICHARD: They didn't dispute anything. And then other than that I intend to call Mr van Wyk who identified his father's body and reclaimed the car after the incident.
CHAIRPERSON: Yes. I'm just wondering, the people from correctional services, approximately how long?
MR RICHARD: I really do not believe that it will be not more than ten minutes subject to my learned colleagues.
CHAIRPERSON: Is that okay? Thank you very much.
HERMANUS STEYN VAN WYK: (sworn states)
EXAMINATION BY MR RICHARD: Thank you Chairperson.
Mr van Wyk, when did you first hear of what happened on the 12 October 1993?
MR VAN WYK: I was at one of my suppliers, supplying me with equipment when I received a pager which said my father was shot and we need to urgently go through to Vereeniging to find out what's going on.
MR RICHARD: What did you find out had happened?
MR VAN WYK: I found out that he was shot in Sebokeng and that they took all his possessions and that basically he was killed. Well we didn't know at the time he was killed because they weren't sure if he was dead at that stage. So we just heard that he got shot and we didn't get confirmation that he was killed but we knew they took his possessions.
MR RICHARD: And when did you discover that he had died?
MR VAN WYK: On arriving there at the police station in Vereeniging they said that it's probably the deceased that's lying in the mortuary.
MR RICHARD: Did you identify his body in the mortuary?
MR VAN WYK: Yes I went inside and I identified his body.
MR RICHARD: When did you identify his body?
MR VAN WYK: Well that was the same day as what the crime was committed, just the evening.
MR RICHARD: At what time?
MR VAN WYK: It must have been about 8 o'clock.
MR RICHARD: Now when you observed his body, did you observe anything about the position of injuries or condition of injuries?
MR VAN WYK: Yes, I noted that the injuries at least at the lower part of the thigh and downwards, since there was a belt on his thigh that someone tried to stop bleeding.
MR RICHARD: Where was the belt?
MR VAN WYK: The belt was about the middle of the thigh.
MR RICHARD: Were there any injuries above the belt?
MR VAN WYK: None, I couldn't see any.
MR RICHARD: Very well, now what sort of car did your father drive?
MR VAN WYK: He drove a similar Mercedes as what I'm currently driving. He drove the 230 Mercedes.
MR RICHARD: Now when did you see that Mercedes after the incident?
MR VAN WYK: I only saw the Mercedes once it came back from the insurance.
MR RICHARD: When was that?
MR VAN WYK: That was probably about a month or so ago, after the incident I mean.
MR RICHARD: In what condition was it?
MR VAN WYK: It was in a very good condition except on the side there were some marks and apparently which I didn't see was that the dashboard was opened up and there were a lot of wires that were hanging out etc. Well I didn't see it but I heard that from the insurance.
MR RICHARD: What had been repaired on the motor car?
MR VAN WYK: The immobiliser was prepared on the car since they couldn't start the car on the scene?
MR RICHARD: Were any windows repaired?
MR VAN WYK: No windows were repaired, there was no indication of any windows that would have been repaired or had been prepared.
CHAIRPERSON: If an immobiliser had been repaired and if there was a broken window, wouldn't it make sense to repair the broken window at the same time?
MR VAN WYK: Yes they would have repaired the broken window and immobiliser probably at the same time.
MR RICHARD: Would you have been aware of what they repaired?
MR VAN WYK: Yes we were all aware of what was repaired. My other brother who went back to receive the goods, he saw the car and he said apparently, according to him, there was no window broken.
MR RICHARD: Where is that brother?
MR VAN WYK: He is currently on a project in Nelspruit.
MR RICHARD: Now who installed the immobiliser?
MR VAN WYK: I installed it myself.
MR RICHARD: Would you please describe how it works?
MR VAN WYK: The immobiliser has got two relays and it is unique in the sense that it's extremely difficult to immobilise the vehicle once immobilised by that immobiliser. It's installed in such a way that it's hidden more than what the current systems are hidden.
MR RICHARD: How do you deactivate the immobiliser?
MR VAN WYK: There are two hidden touch spots which are unobvious in the vehicle. There's no jack plug or button or anything like that, it's just two touch spots which you have to touch simultaneously to get the car going.
MR RICHARD: Would an ordinary person unaware of this design of immobiliser be able to locate it?
MR VAN WYK: People that know their own cars sometimes struggle to get their cars going.
MR RICHARD: Now you say you drive a car very similar to that which your late father drove?
MR VAN WYK: That's right, it's the same model type Mercedes.
MR RICHARD: Do you have any comment about the version propounded by the applicants concerning the keys being locked in the car?
MR VAN WYK: Yes, the Mercedes Benz vehicle, you can't lock without using the keys. In other words if the ignition keys, if the car would have been idling, the ignition keys would have been inside the ignition. You can't lock the car unless you go through extensive exercise of closing your front door then unlocking a back door, opening up one of the back doors and then stretch inside the car, deep inside the car to lock the front door. Then only you can start locking the back door and then slam it closed. In other words, you can only lock a Mercedes Benz from a back door without the keys so according to me there's no ways that a car can idle and the car's totally locked.
MR RICHARD: Now if you broke the back quarter window, would you be able to reach to the front to unlock the front door?
MR VAN WYK: Not at all. The Mercedes Benz locking pins are sunken into the sockets so there's no way that you can grip them at all so you have to literally - I don't know how you're going to do it but it's a very difficult exercise.
CHAIRPERSON: But we've heard the evidence that the car was in fact moved twice?
MR VAN WYK: Yes you ...(intervention)
CHAIRPERSON: I mean there's no reason for any sort of falsehood in this respect that they went to Zone 11 and parked it - to Zone 12, parked it and then later moved it from Zone 12 to Everton?
MR VAN WYK: I would have a bit of a problem with that. If they were extreme experts in how to immobilise a car with those type immobilisers, they could have probably done it but it's very, very difficult because the whole system is submerged into the current wiring system. Even if you hot wire it, it doesn't work.
CHAIRPERSON: Where did you hear that the car was recovered from?
MR VAN WYK: I - where, when? Sorry?
CHAIRPERSON: Where?
MR VAN WYK: I heard it was recovered from a cemetery.
CHAIRPERSON: In Everton?
MR VAN WYK: Yes, apparently they couldn't get the car going there and then they left it there.
CHAIRPERSON: Yes, because can you see any reason why somebody should come and lie about going to Zone 12 and leaving it there and then going to Everton? It's not part of the plot, it's a minor detail to lie about?
MR VAN WYK: Yes, I don't know why they would lie about things like that but I know ...(intervention)
CHAIRPERSON: They must have then been expert to have got it started?
MR VAN WYK: You must be an expert to get the car started unless you are expert in wiring cars you won't start that car. It's very, very, difficult to start the car even if you know immobilisers.
MR RICHARD: My last question. Is vis-a-vis the applicant's application for amnesty, do you have a point of view? If so, what is the view?
MR VAN WYK: My point of view on the amnesty is that I believe in reconciliation, I believe in forgiveness and I believe in truth. I believe in everything that is better for society and for the people of the society, whoever and whatever they might be. I, although, have a serious problem with when criminal acts are being covered up by political motives. That for me is like committing the crime all over again.
MR RICHARD: What do you believe about the applicants?
MR VAN WYK: Sorry?
MR RICHARD: What do you believe about the applicant's application?
MR VAN WYK: I think that they are trying to cover up. I think that that was just an incident which they took to their favour. There was goods and gain opportunity for themselves and I think they took that. I also think that for them to plan - to protect their head office is a little bit far fetched because right through the whole testimony, they obviously didn't really guard. If I'm under attack I am close - I wouldn't even go to the cafe, I would know exactly who is drilling, their movements, tactical movements of the threat at all times.
And also, the other thing I felt was, there are so many other opportunities of killing people. Why didn't that happen at that time, why did they wait when there was gain involved, then kill someone? I mean there was other people also all the time that they could have killed and not an isolated incident. So that's a concern of mine.
MR RICHARD: No further questions. Thank you Chairperson, that concludes my case.
NO FURTHER QUESTIONS BY MR RICHARD
CHAIRPERSON: Thank you. Mr Mbandazayo, do you have any questions you'd like to put to Mr van Wyk?
CROSS-EXAMINATION BY MR MBANDAZAYO: Just two questions, Chairperson.
Mr van Wyk, you told the Committee that one of your brothers told you that there was no broken window?
MR VAN WYK: That is correct.
MR MBANDAZAYO: When he went there was there any indication that there was a broken window?
MR VAN WYK: When I went where?
MR MBANDAZAYO: When he went to check the car.
MR VAN WYK: I only saw the car sometime later. In other words I didn't go and recognise the car. My brother did. I saw the car after the incident, after it was repaired. I didn't find any glass pieces, small glass pieces anywhere in the car.
MR MBANDAZAYO: My question is, is that you confirm that your brother said that there was no broken window. My question is, when he went there was there any indication that there was a window broken?
MR VAN WYK: No, there was no indication that there was a broken window.
MR MBANDAZAYO: So why did he mention that there was no broken window?
MR VAN WYK: Because it was mentioned in the statement that the window was broken.
MR MBANDAZAYO: When?
MR VAN WYK: Well they say here they were trying to open up the car and the testimony said that they broke the window.
MR MBANDAZAYO: So the statement you are talking about is the TRC statements?
MR VAN WYK: Yes, there's a statement that says that they were going inside the car.
MR MBANDAZAYO: So that's why you are saying your brother said there was no broken window?
MR VAN WYK: Yes, there was no broken window.
MR MBANDAZAYO: I have no further questions, Chairperson.
NO FURTHER QUESTIONS BY MR MBANDAZAYO
CHAIRPERSON: Mr Mapoma, any questions that you would like to put?
MR MAPOMA: I have no questions, Chairperson.
NO QUESTIONS BY MR MAPOMA
CHAIRPERSON: Any re-examination, Mr Richard?
NO RE-EXAMINATION BY MR RICHARD
MR RICHARD: None Chairperson.
CHAIRPERSON: Judge Motata, any questions you would like to put?
JUDGE MOTATA: I've got none, Chairperson.
CHAIRPERSON: Advocate Sandi, any questions?
ADV SANDI: Just one minor detail, Chairperson.
Mr van Wyk, approximately how old was your father?
MR VAN WYK: My father was about 60 - 62. 62.
ADV SANDI: Thank you.
CHAIRPERSON: Thank you. I'm sure there's no questions arising out of that last question. Thank you Mr van Wyk, that concludes your testimony.
MR VAN WYK: It's a pleasure.
WITNESS EXCUSED
CHAIRPERSON: Mr Richard?
MR RICHARD: I close the case.
CHAIRPERSON: Thank you.
MR RICHARD: I don't believe that calling Mr Mapeka really takes the matter any further.
CHAIRPERSON: Yes I don't think it will take it any further.
Mr Mbandazayo?
MR MBANDAZAYO IN ARGUMENT: Thank you Chairperson.
Chairperson, first I want to deal with the question of the attack itself, why Mr van Wyk was the target. Chairperson, I wouldn't like to bore you much about ...(intervention)
CHAIRPERSON: I wouldn't like you to bore me at all. I'm sure you're stimulate me, yes.
MR MBANDAZAYO: I'll refer you, Chairperson, to the submission made by PAC which was made on the 27 May 1998 which was when the TRC wanted a policy of PAC on non-racialism and the targeting of whites in the prosecution of the struggle for national liberation and democracy.
Chairperson, unfortunately I don't have the document but I know that the members of amnesty were using that document most of the time. Mine faded away because of the ink in which it was - I've requested another copy of it but I haven't yet received it. But Chairperson, there the submission was made by the then General Secretary of Peace, Singila Mondwane, who was an MP then, exactly on the target of why the whites were targeted. The question of soft targets and hard targets, whites in general.
Chairperson, this submission was taken from this book, Pan Africanist Congress of Azania. I've made many copies about this book on all my hearing where I've been dealing with this matter, Mangaliso Robert Sobukwe. Gila Mondwane took - the submission was based on the last chapter which says:
"Sobukwe answers burning political questions"
and the question which was asked:
"What is your answer to the accusation that you are anti-white?"
The first founding president of PAC, Sobukwe has replied:
"Our reply has been officially given to statements appearing in the Golden Cities of Sunday, 7th November 1958. On the material level we just cannot see any possibility of co-operation. To say that we are prepared to accept anybody who subscribes to our programme is but to state a condition that one knows cannot be fulfilled. From past history, not only of this country but of other countries as well, we know that a group in privileged position never voluntarily relinquishes that position."
Then the question persisted:
"But are you anti-white or not?"
Sobukwe says:
"What is meant by anti-Whitism? It is not merely an emotional term without precise signification. Let me put it this way, in every struggle, whether national or class, the masses do not fight in abstraction. They do not hate oppression or capitalism, they concretise this and hate the oppressor be it the Governor General or colonial power, the landlord or the factory owner or in South Africa, the white man. But they hate these groups because they associate them with their oppression. Remove their association and you remove the hatred. In South Africa then, once white domination has been overthrown and the white man is no longer a white man's boss, but is an individual member of society, there will be no reason to hate him and he will not be hated even by the masses. We are not anti-white therefore. We do not hate Europeans because he is white, we hate him because he is an oppressor and it is a plain dishonesty to say "I hate the sjambok and not the person who wields it".
Now that submission was based on this, it was quoted in that submission and Gila Mondwane went on to say:
"If you go to the post office in those times, who tells you that you are in the wrong queue, is the Police, the South African Defence Force, is the members of the parliament? It's the ordinary white person who tells you that you are in the wrong queue, here is the queue for the kaffirs."
So they were implementing the policies of the then government. They were beneficiaries of the then white government. So that's why they made the submission that therefore in PAC terms there were no hard and soft targets. So that's why it seems as if the PAC were targeting white people.
ADV SANDI: Sorry Mr Mbandazayo, you'll have to assist me, maybe my memory is failing me. It's been a long time I read that submission by the PAC but my recollection is that when this specific question came up, that is the question as to whether the PAC had a general policy of indiscriminately attacking whites simply on the basis that they were white? I think they denied that?
MR MBANDAZAYO: Yes, that's true, that's true ...(intervention)
ADV SANDI: They said they had no such policy?
MR MBANDAZAYO: That's true Chairperson, that's true. They denied that. Definitely, Chairperson. If they were attacking indiscriminately, definitely if they met any white person in the street they will attack him. So it's clear, Chairperson, they were not attacking indiscriminately. But of course for obvious reasons, if you attack somebody, if you are involved in the struggle, the purpose was not to put yourself in danger. You have to choose your targets.
ADV SANDI: I think what you've just read to the Committee revolves basically around the question of racial attitudes and the why of such attitudes?
MR MBANDAZAYO: Exactly, Chairperson, that's what I'm trying to elaborate and to take it further, Chairperson, in that year as the applicant correctly put it, Sabelo Pama declared as the Year of the Great Storm and I need not preach to this Committee, knows what that means, it has been mentioned many times because it was involved in the community and everybody was involved in that struggle and Chairperson, it was - his speech was on television, the Year of the Great Storm, because it was the year in which he came into South Africa and was recorded and after he left and it was broadcast that the Year of the Great Storm when he was given ...(intervention)
CHAIRPERSON: I think it was fairly well known at the time, it was that year.
MR MBANDAZAYO: Yes Chairperson and exactly, Chairperson, he answers all those questions in the Year of the Great Storm about the question of the whites and exactly he was asked about those, the white and the soft targets and he answers then that in South Africa the white kids are taught as young how to handle a firearm. Now he says that in South Africa you are not dealing with a purely civilian situation. We are dealing with a semi-militarised people so there's no way that you can say then that they are soft targets. That's how he puts it and Chairperson, he puts it in various terms and he was grilled on this aspect and he put it in various ways and lastly, Chairperson, you know, Gary van Staden, an academic from South Africa, a white academic, in that article in 1992 on the 5th November, Saturday Star. You know, the article
"Prominent South African white academic backs war in South Africa white areas and it reached us. While he could have articulated his position a little better, PAC Secretary General, Bennie Alexander was quite right to suggest that it was necessary for more white South Africans to die if the problem of political violence is to receive the attention it demands. While I remain aware that the next victim could be me or worst, my wife or child, we need to be logical and not be emotional in addressing the issue of political violence. Despite their protestations, most white South Africans and certainly the Security Forces and the government do not respond to the deaths of black victims with nearly as much passion as followed the King William's Town killings. To dismiss the thousands this year alone of township deaths as mere black on black violence is callous in the extreme and morally reprehensible. Only when all South Africans' responds with a deeply felt outrage and anger at each and every death, only when the media begin to print details of each and every death with the same that as according to King William's Town victims, will the message begin to penetrate that we ordinary South Africans of all races gave no one the right to murder in our name."
Chairperson, as I indicated, I wouldn't like to bore you. I wanted to explain the question of whether the person was targeted because he is white or not. I wanted to put it in the context why it seems as if the PAC was having a policy on the whites. Chairperson, it's my submission that the applicants, when they came before this Committee have nothing to lose. The worst that they will lose was this Committee to refuse them amnesty, that's all, not to grant them amnesty, that's the worst they can get from this Committee.
CHAIRPERSON: But that's - a whole lot hangs on it because haven't they got long jail terms?
MR MBANDAZAYO: Yes Chairperson, I'm saying that - what I'm trying to get at is that they are serving their - they've already been convicted for this crime.
CHAIRPERSON: Yes.
MR MBANDAZAYO: They have nothing to hide.
CHAIRPERSON: Yes.
MR MBANDAZAYO: There is no reason for them to come and lie here before this Committee. There is no reason for them to come and lie before the Committee.
ADV SANDI: Do they still have many years to serve?
MR MBANDAZAYO: They have many years to serve, Chairperson. What I'm trying to get at, why would they lie if they want to get out because they have already done it, they have already been convicted for this offence. Them is to spill the beans. What I'm referring to - I'm not referring to whether it was political motivated, I'm going to address that. I'm addressing the question of the facts, whether they have made full disclosure as to what happened on the day in question. There's no reason for them to lie on that aspect as to what happened, how did they kill the person, the said person and how it happened ...(intervention)
CHAIRPERSON: On the merits, on the actual pulling of the gun.
MR MBANDAZAYO: On the merits, Chairperson, there's no reason for them to lie. I agree maybe because they have served long jail, they may lie on the political motive but on the merits, Chairperson, they have no reason to lie, on the merits. That's what I'm trying to get at.
Now if - Chairperson, I would like the Committee to take into account that the time elapsed from the date of - it was 1993 and the people are in jail and most of the time when these people are committing these offences, never dawns in their minds that the other day - at that time, we'll come to recount what actually happened and the events may not come up, not necessarily they may not be specific on some of the issues, may not be correct as they happened, but not because they're deliberately misleading the Committee but because of the time elapsed since the incident occurred.
Now coming to the political motive. Chairperson, there is not dispute, there is nothing to gainsay to say they were not members of PAC at the time and Chairperson, I want also to put on record that there is a difference between APLA and Task Force. A very big difference. Members of APLA were properly trained members and it took them some time when they undergo training and they are taught various things as fifteen standing rules as APLA as is known by the Committee which is not done in Task Force. Task Forces are trained - they are like Self Defence Units and they were used to protect leadership and also VIP protection and they were also used as a pool for APLA. When there is a shortage, APLA was recruiting from the Task Force and trained them properly and sometimes they were used to pool certain mission led by APLA. But that year, it was a year which of course we know all of us, even the masses were taking their own initiative. That's why it was declared the Year of the Great Storm. So there was no order which has to come up anyway because Sabelo has declared it the Year of the Great Storm. So the masses have to take their own initiative in order to topple the then government.
Now Chairperson, it's my submission that there's nothing to say that the way they did and how they did it was not politically motivated, has no political motive. One may argue, Chairperson, one can come up with another idea, the other view that, that it was purely criminal. Of course, Chairperson, but there is no evidence to indicate that it was purely a criminal offence that took place on the day in question.
ADV SANDI: Just whilst you are on that one, Mr Mbandazayo? Do you accept that one may be a member of a political organisation but it does not necessarily follow that all the acts he commits are done on behalf of that organisation, maybe on a frolic of his own?
MR MBANDAZAYO: It does not give you, because you are a member of a political organisation, there automatically whatever you do, it was done in the pursuance of the political struggle or in line with that particular organisations policy, Chairperson. But what I'm saying in this instance, Chairperson, there are many cases, Chairperson, where even one would say he was a member but you can detect, simply detect that it has nothing to do with politics but he was doing it for his personal gain.
But Chairperson, what I'm saying in this particular case, there is nothing to say that, Chairperson, this was purely criminal, was purely a criminal offence on the part of the applicants.
Chairperson, they testify that they did that, amongst other things, Chairperson, they did not say it because of that, that because they were under - they said amongst other things it was the Year of the Great Storm, the PAC offices were raided, and Chairperson, we have heard evidence, that's why one of the applicants, Phila Dolo was arrested and APLA was hitting the Police on the other side, that they must intensify after the PAC offices were raided and it was after the attack on the sleeping children at Umtata, at Northcrest, and you know, Chairperson, what reaction followed after that incident. It's just like what followed after the killing of Chris Hani. People were just mad, Chairperson. We know that what followed after the killing of those people and some of the people were victims of that reaction from the people and the applicants are saying, amongst other things, was worse, the killing of the Mbendalosa family at Umtata. Those sleeping kids were killed.
So there were various reactions from various people and at that time we know that if there was instruction from APLA that you have to hit hard in response to what happened. So I'm saying, Chairperson, one cannot say purely, if you take those sequence, those events as to what took place in that year, that what they did was purely a criminal offence.
And Chairperson, we know that there were various units within APLA. Some were doing repossession, some were offensive units, Chairperson. But that year as it was indicated, it was the Year of the Great Storm as it was pronounced. So everybody was taking the initiative and we know, Chairperson, that reason - if I may, Chairperson, it's only one member of the Committee who was involved in the Delgama, Highgate, Delgama attack. Advocate Sandi, Member of the Committee. That when you read the evidence of Lehlape Mpahlele, he was asked when it was attacked after the church at Delgama why those people took the car away and the money which was there and it was simply a question in his court evidence:
"Why did you not condemn the South African Defence Force when they came back with ivory in Angola? Why didn't you say that it was a plain robbery?
Because they came back with ivory. And he said it was a war booty, everybody knows about that. To show that look, we have done this, here is the results of what we have done and the applicants, there's nothing to say that what they took away was for their personal gain, they were going to use it. Unfortunately, they were arrested the same day and they said look, we were going to take it to Umtata and they were also going to attend the funeral so they were going to hand it over as they were also going to Umtata to a funeral of the Mbendalosa family.
So Chairperson, there's nothing to gainsay that that was not the case. It's just a mere speculation that was done specifically for robbery. Therefore Chairperson, it's my submission that the applicants have met all the requirements of the Act and therefore they should be granted amnesty .
Chairperson, unless the Committee would like me to address it on any other specific point?
CHAIRPERSON: Yes, I think the question of the possession of the firearms is straightforward, it's a later one, we don't need anything on that.
MR MBANDAZAYO: Yes.
CHAIRPERSON: Mr Richard?
MR RICHARD IN ARGUMENT: Thank you Chairperson.
From a procedural point of view, I accept that there is an amnesty application for amnesty in respect of the various crimes of murder, robbery and possession of unlicensed firearms and ammunitions. There are some technical defects in the application which I don't believe are of any point of relevance.
My first thing, is if one looks at the requirements of the Act, in order to get amnesty the first premise is a full disclosure. We had today before us two applicants who in my respectful submission were patent and obvious liars. Their credibility has to be attacked to the core and the entirety of the evidence tainted by their lack of honesty.
To start with, one takes the story of the so-called fear of attack that the two applicants would wish us to believe they suffered under. It is patently absurd on the facts that they admit to be true to believe that Mr van Wyk posed any threat at any level at all to the PAC's office in Sebokeng. What he was doing was obviously of a non-Military or Security Force component nature and one wonders why on earth the applicants concocted what is such an obvious lie in their application.
Once one has such a serious flaw regarding the credibility of the application, one then has to address the question, full and proper disclosure. If there is dishonest disclosure it's axiomatic that there cannot be full disclosure. If a witnesses credibility is destroyed by the obvious performance that we were subject to today, nothing can be accepted and you know, the suggestion that the applicants made full disclosure, to me is absurd.
Now the next point that we look at is the circumstances of the particular incident for which they applied for amnesty and if we look at the facts as they are established, I believe we have the situation where a man parks his car next to the building site where he is working and works on it all day. The car is observed as a Mercedes which is a desirable object for a thief. They have many hours to plan and consider what to do. Towards the end of the day at a time appropriate to going home, he leaves the building the site and approaches his car. I don't believe the story of a window being broken is at all plausible so therefore I make no mention of it. He gets into the car, deactivates the immobiliser and for reasons to do with his operations, decides to get out of the car again. At this stage the two assailants approach the motor vehicle and while he is a little way away from his car but not very far at all, he is shot with a shotgun in his legs. Again, the person who shot him is clearly lying when he says he shot him in the stomach.
CHAIRPERSON: I think he said he directed his shot there.
MR RICHARD: Yes.
CHAIRPERSON: As opposed to the head I think what he was trying to say.
MR RICHARD: Yes, but the shot was into the legs, not the head or the stomach.
There's an ideal opportunistic situation for a thief to rob the motor car. The ignition is on, the car is running, the owner is out of the car and one need only think of various press reports where motorists leaving their garages have made the same mistake of not taking the ignition keys out of the car and turning off the car while locking the gates and have found themselves hi-jacked.
The version that the applicants intended to kill the deceased firstly is not born out by what they did. They did not fire a shot consistent with that attitude. The shot was to the legs which is manifestly consistent with nothing more than a straight hi-jacking robbery.
Then we take the next step. While I don't believe there are any facts upon which the applicants might bring their application within the Act, let's assume for the purposes of argument that the facts are that the story of the threat is simply untenable rubbish and the only reason for the attack was to kill the deceased. On that version we have a target which much at all international laws, norms and standards be classified as exclusively and totally civilian in nature. That person is then subjected to a completely unprovoked and gratuitous attack for no other reason that that person so happens to be white. No that, at international law, constitutes nothing less than a gross crime against humanity and one must merely then reflect upon proportionality and the Norgaard Principles. I cannot see how, if one takes the Norgaard Principles and the cases where one extracts the application so as the car park case which I won't go into because it's now well known, if the placing of a car bomb in a parking garage, set to go off late at night was held by Professor C A Norgaard to be disproportionate and inappropriate because of the possibility of members of the civilian population still being around, then what we have before us cannot never be brought within the ambit of proportionality as articulated by Professor C A Norgaard.
The nature of the person under attack, here we are asked to believe that it was permissible to attack any person of any age or category within the white group of the population merely because that person was white. I do not believe the Act which creates this Committee ever intended that result. I believe I've taken my argument as far as I can at this point and if the Committee requests written argument, I shall gladly oblige before the end of next weekend.
CHAIRPERSON: Thank you Mr Richard.
Mr Mapoma, do you wish to make any submissions?
MR MAPOMA IN ARGUMENT: Just a small aspect, Chairperson.
Chairperson, I just want to respond to the argument advanced by Mr Richard on the latter part of it, actually proportionality. Yes Chairperson, the Act, it is my submission, intends that a person who applies for amnesty must be granted amnesty if that person shows that what his or her intention was, to advance the political objective of his organisation, the question of bona fides is also important on that. It looks like an attempt is being made by my learned friend to challenge the policy of the PAC, squaring it up of course, comparing it with the international standards or other principles adopted. It is my submission, Chairperson, that it is not for this Committee to judge the policy of the PAC. However, it is for this Committee to consider whether the policy of the PAC as espoused by the PAC, well documented, has been followed by the applicants and it is my submission, Chairperson, at this point that the applicants have shown that all that what they did was not disproportionate to the intended objectives of the PAC.
In the circumstances, therefore, Chairperson, I recommend that the applicants be granted amnesty.
MR RICHARD IN REPLY: May it please, Chairperson. May I reply?
CHAIRPERSON: Yes.
MR RICHARD: I disagree with my learned colleague. For this Committee not to sit in judgement of the political policies and practises and procedures of the individual parties would make a mockery of the Act, it would reduce the Act to a mere technical press button switch machine which would be devoid of all substance. It would permit a party and come forward and propound the most absurd policies ex the past and simply because it substitutes - it satisfies the provisions of the Act in a formalistic manner, to demand the right to amnesty. That was certainly never the intention of the enactment guaranteed by the constitution. No, I do not believe the mere fact that as at present PAC says that every white settler was a legitimate target makes that a legitimate political opinion or makes the targets selected by them proportionate and the Act remains to be applied in the way the text requires. May it please, Chairperson, I conclude.
CHAIRPERSON: Thank you. Any reply Mr Mbandazayo?
MR MBANDAZAYO IN FURTHER ARGUMENT: Chairperson, just one aspect.
Chairperson, I agree with the Leader of Evidence that the purpose of the Committee is to implement the Act as it is. It's the duty of the parliament to go and change the Act and come up with the Geneva Convention principles and to be applicable at this hearing. I don't think at this late stage when this Committee is winding up its work now it has to come up with something new now because there is this hearing.
Now coming on the question of proportionality Chairperson, I won't go to what my learned colleague has already indicated but it's always my submission that you cannot apply proportionality to the messenger, Chairperson. The formulators of policies are the people who should, the proportionality principle be applied to, because at the end of the day they are the people who came up with all these principles and policies. The others were just to implement the policies, that was all. So it cannot be said that the proportionality must effect them and the people who are the authors of those principles and policies are just sitting there. Thank you Chairperson, that's all.
ADV SANDI: So is it not the position that really the policy of any organisation of which an applicant was a member or a supporter whatever the case may have been? Isn't that part of the picture when this Committee has to sit and evaluate the evidence that has been tendered so that he can come to a decision at the end of the day? You can't disregard such questions of policy to which applicants were members or supporters. It's all part of the picture, you can't disregard that.
CHAIRPERSON: Yes, but what Mr Mbandazayo was getting at, what I understood his argument was that if the policy of the political organisation falls without the ambit of proportionality, then one must look towards the formulators of that policy, not to the foot soldiers on the ground. Is that basically what you're saying?
MR MBANDAZAYO: Yes Chairperson, that was my point thank you.
CHAIRPERSON: Thank you very much for sitting late, I apologise to the translators, the sound people, TV people and I'd like to thank the Correctional Services for staying on to allow us to finish this matter. We will reserve judgment and a written decision will be handed down in this matter.
I'd like to thank the legal representatives very much for their assistance in this matter. That brings us to the end of this hearing and we shall now adjourn till tomorrow. At what time, half past nine? We'll adjourn till half past nine tomorrow when we will commence with another application, which one I'm not sure. Thank you.
COMMITTEE ADJOURNS
