Amnesty Hearings

ON RESUMPTION

CHAIRPERSON: The next that is before us is the application of Fernando Brian Ndlovu, amnesty reference AM5484/97. The Panel is constituted as would be apparent from the record. The Leader of Evidence is still Ms Mtanga. I'm going to ask the lawyer for the applicant and for the interested parties to place themselves on record. Mr Koopedi?

MR KOOPEDI: Thank you Chairperson. My name is Brian Koopedi, I'm appearing here on behalf of the applicant, Mr Brian Ndlovu.

CHAIRPERSON: Thank you Mr Koopedi. Ms Vilakazi?

MS VILAKAZI: Thank you Chairperson. My name is Linda Vilakazi, I'm appearing for the family of Majokane, being Mr Habit Majokane and Mrs Lydia Majokane. Thank you.

CHAIRPERSON: Thank you ma'am. Mr Koopedi?

MR KOOPEDI: Thank you Chairperson. The applicant is before you, we believe we are ready to proceed and before we do that I wish to express my indebtedness to this Committee for accommodating my other commitments today. He is ready to be sworn in, Chairperson.

CHAIRPERSON: Yes, thank you Mr Koopedi. We were told it's in the national interests. Very well, can you just check for us whether you can hear the interpreter over your headset?

MR KOOPEDI: He will testify in English, Chairperson.

CHAIRPERSON: Oh, he will testify in English? Oh, very well.

FERNANDO BRIAN NDLOVU: (sworn states)

EXAMINATION BY MR KOOPEDI: Thank you Chairperson.

Mr Ndlovu, is it correct that you are an applicant in this matter and this matter involves an incident that occurred in Tembisa during 1985?

MR NDLOVU: Yes that is correct.

MR KOOPEDI: The document I'm showing you - Chairperson, page 1 of your bundle of documents - is this your application form and on page 6 thereof? There is a signature, is that your signature?

MR NDLOVU: Correct.

MR KOOPEDI: Now would you tell this Honourable Committee as to were you a member of a political organisation when this incident occurred?

MR NDLOVU: Yes, I've been a member of the ANC and Umkhonto weSizwe the armed wing.

MR KOOPEDI: When did you join the ANC?

MR NDLOVU: In 1994 - sorry, 1984.

MR KOOPEDI: 1984. And perhaps whilst we are on dates, Chairperson, I would want to confirm in fact that the date that appears on page 2, paragraph 9(a)ii should actually be 1985 and may I confirm the applicant? Is it correct, you have stated in your application form that this occurred in February 1995, is it correct that you actually wanted to mention 1985?

MR NDLOVU: That is correct.

MR KOOPEDI: Now during 1985, February 1985, you being a member of the ANC. Where were you based? Where were you?

MR NDLOVU: I was based in Botswana and I was infiltrated back in the country in February, towards the end of February and I was actually ordered to accomplish a mission by my commander who was based in Botswana also.

MR KOOPEDI: Who was your commander?

MR NDLOVU: Tami Nyeli.

MR KOOPEDI: Tami Nyeli. What was this order that you were given, what were you ordered to do?

MR NDLOVU: Okay, the order was to actually attack Mr Majokane's home who was a councillor at the time.

MR KOOPEDI: How were you to attack this home?

MR NDLOVU: Okay. My instructions were loud and clear that here's a grenade, go and attack Majokane's house.

MR KOOPEDI: Were you told why?

MR NDLOVU: Well the initiative was part of the ongoing mass mobilisation through armed operations.

MR KOOPEDI: Now did you proceed to do as you were ordered?

MR NDLOVU: Yes, that's what I did.

MR KOOPEDI: Who accompanied you when you executed the order?

MR NDLOVU: ...(inaudible)

MR KOOPEDI: Okay and after accomplishing the mission which you say you were told to throw a handgrenade, after accomplishing the mission what did you do?

MR NDLOVU: I disappeared into hiding.

MR KOOPEDI: Where did you go to?

MR NDLOVU: I was operating locally underground and I was out of the township to another township.

MR KOOPEDI: Did you have any opportunity to report to your commander as to what did you do?

MR NDLOVU: Well, according to the instruction I had to report back. I did report that the mission was accomplished but the question of going back to the scene and check was not my duty, it was not part of my instructions.

MR KOOPEDI: Now having said what you've said, do you consider your actions as having been politically motivated?

MR NDLOVU: Yes, it was politically motivated.

MR KOOPEDI: And perhaps can you tell the Committee why do you say it was politically motivated?

MR NDLOVU: Okay, at the time everybody, almost everyone knew that those apartheid structures, be it councillors or any other form of administration were actually targeted by the ANC and the armed wing to actually undermine those structures, to render the country ungovernable, to make sure that there should be a smooth transition to people's power.

MR KOOPEDI: Now did you benefit anything material, you financially, at a personal level for having executed this operation?

MR NDLOVU: No, it didn't involve any incentives.

MR KOOPEDI: Having regard to what you have said in your application form, have you complied with the requirement of full disclosure, that is have you told this Honourable Committee the whole truth about all the relevant facts to this matter?

MR NDLOVU: Yes to the best of my knowledge I think I've covered almost everything.

MR KOOPEDI: Thank you Chairperson, that would be the evidence-in-chief.

NO FURTHER QUESTIONS BY MR KOOPEDI

CHAIRPERSON: Thank you Mr Koopedi. Ms Vilakazi?

CROSS-EXAMINATION BY MS VILAKAZI: Thank you Honourable Chairperson.

Mr Ndlovu, you have just said that you have disclosed everything. Can you explain to this hearing the relationship between yourself and the family of Majokane?

MR NDLOVU: I think I knew them very well. I knew Mr Majokane personally though I was a kid basically so we had a different relationship. But with Ms Majokane, she was my teacher at school. I also had a very good relationship with their kids. So that was the level of our relationship.

MS VILAKAZI: Now with that kind of knowledge that you had, you should have known the role that Mr Majokane also played in the community, not so?

MR NDLOVU: What are you referring to?

MS VILAKAZI: The fact that he was assisting families who were to be evicted from their houses, that he was opposed to that?

MR NDLOVU: Well I should say that I was acting under instructions on number one. When number two, I was not aware of the availability of that information. Even if that information was available it was not my call, I was acting under orders.

MS VILAKAZI: Were there no other ways of trying to dissuade Mr Majokane from participating other than that handgrenade attack on the house?

MR NDLOVU: Well, like I said initially it was an order, a military order.

MS VILAKAZI: Now how do you feel about having caused harm to the family?

MR NDLOVU: Okay ...(intervention)

MS VILAKAZI: Especially being the family that you knew that well?

MR NDLOVU: Well, the same question could be asked to me, what if it was your dad? If indeed he is my dad, it's not a good thing, I'm not proud of seeing somebody hurt but the reality is I was acting under instructions, it had to be done.

MS VILAKAZI: No further questions, thank you.

NO FURTHER QUESTIONS BY MS VILAKAZI

CHAIRPERSON: Thank you Ms Vilakazi. Ms Mtanga?

CROSS-EXAMINATION BY MS MTANGA: Just one question, Chairperson.

Mr Ndlovu, when you got your instructions were you told what was the intention? Was the intention just to throw the handgrenade and kill people or to just throw it?

MR NDLOVU: Okay. My answer will be twofold. One, carrying an order you do what you're told but the intention was not to kill but there was a likelihood that somebody could actually die, knowing the kind weapon that I've used.

MS MTANGA: How were you going to ensure that no one was killed?

MR NDLOVU: I was not going to ensure when a person gets killed or not. The point I'm trying to make here, knowing the nature or the type of weapon that I used, somebody could have died but that was not the intention to kill a person.

MS MTANGA: So it wasn't really made clear to you whether you were there to kill or not in your instructions, are you saying that?

MR NDLOVU: Okay, yes the instruction was not to go and kill but I'm saying that with that kind of weapons somebody could have died including myself if I didn't handle it properly, I could have actually died myself.

MS MTANGA: Okay, I have no further questions, Chairperson.

NO FURTHER QUESTIONS BY MS MTANGA

CHAIRPERSON: Thank you Ms Mtanga. Panel, any questions?

ADV BOSMAN: One question. Did you have anything to do with the identification of the victim or didn't you identify him as a target?

MR NDLOVU: Okay, like I said my answer is always twofold, that I knew them personally so when I was given an instruction actually it clicked directly and I was given an instruction with all the details.

ADV BOSMAN: No, but my question is actually that you have something to do with saying this man is joining the apartheid establishment or was that done by someone else.

MR NDLOVU: I don't know, I was given the instruction to say it is the person that I needed to go and attack.

ADV BOSMAN: Okay fine, thank you.

CHAIRPERSON: Thank you. Mr Koopedi, any re-examination?

MR KOOPEDI: Nothing in re-examination, thank you Chairperson.

CHAIRPERSON: Thank you. Anything else on behalf of the applicant?

MR KOOPEDI: Chairperson, that would be the applicant's case. We intend calling no other witness, thank you.

CHAIRPERSON: Thank you Mr Koopedi. Ms Vilakazi, are you going to present anything?

MS VILAKAZI IN ADDRESSES: Thank you Chairperson. I refer the Honourable Panel to the submission by Mr Majokane on pages 15 to 17 of the bundle.

CHAIRPERSON: Yes.

MS VILAKAZI: Specifically I would refer to the hand-written submission.

CHAIRPERSON: Yes.

MS VILAKAZI: And I wish to correct just two things on that submission. The first being on page 16, paragraph 3, line 3. The line starts with "shrapnel in her right ear". Right should be changed to left.

And the next paragraph, in the second line, starting with "feel himself man enough to tell be" that "be" should be changed to "me".

Those are the corrections, Honourable Chairperson.

CHAIRPERSON: Thank you.

MS VILAKAZI: I'll submit that the Committee should accept the submission as the evidence on behalf of the Majokane family.

CHAIRPERSON: Yes and you're not going to present any viva voce evidence?

MS VILAKAZI: No viva voce evidence except that there's a special request by Mr Majokane to address the applicant.

CHAIRPERSON: Yes, perhaps we should do it straight away before I go to Ms Mtanga. Yes, can you just give him access to

the microphone?

Mr Majokane, I'm told by Advocate Vilakazi that you wanted to say something? You don't want to give evidence under oath, you simply want to address or talk to the applicant?

MR MAJOKANE: Chairperson, I don't want to give evidence under oath, I just want to address the applicant.

CHAIRPERSON: Yes, very well, we'll give you that opportunity now.

MR MAJOKANE: Thank you Chairperson.

Mr Ndlovu, I want to thank you for having come forward with this matter, especially that it was never known that it was you who threw the handgrenade at my house and you were never charged but you ...(indistinct) upon yourself to come forward and reveal that it was you who threw the handgrenade at my house fifteen years ago and ask for amnesty. I also do take into consideration the fact that you feel at the moment that it was not a good act that you had committed. Conceivably the fact that you knew the family well and the relationship that was there between me and especially your parents because as you rightfully said you were just a kid at the time and I want to thank you for that but I also want to further say, my family and I forgive you for what you have done and we pray that God should forgive you as well for the act that you had committed. I consider the fact that you say that you had received an instruction and I also look back fifteen years ago, you were only about 19/20 years. Maybe you didn't have much resistance to your commanders or you couldn't really weigh and consider the facts, your relationship with my family and the command you were getting from your commanders. So let's consider it water under the bridge. I thank you, Chairperson.

CHAIRPERSON: Thank you Mr Majokane, it's a pleasure. Does that conclude what you wanted to?

MS VILAKAZI: That will be all on behalf of the victims, thank you Chairperson.

CHAIRPERSON: Thank you Ms Vilakazi. Ms Mtanga, are you presenting any evidence?

MS MTANGA: No Chairperson.

CHAIRPERSON: Very well. Mr Koopedi?

MR KOOPEDI: Chairperson, perhaps before I make my submission there is a request by the applicant to respond to what the victim has said. It may be appropriate that I ask the Chair to allow me to do that?

CHAIRPERSON: Yes, no very well. Let us do that. Mr Ndlovu?

MR NDLOVU: I'd like to thank Mr Majokane, not only him as he said, including the family, that they're not angry. It was part f a process and I say thanks to them.

CHAIRPERSON: Thank you.

WITNESS EXCUSED

MR KOOPEDI IN ARGUMENT: If I may, Chairperson, make a very brief submission. Chairperson, Honourable Committee Members, it is my very brief submission that the applicant before you here has complied with the requirements of the Act for the granting of amnesty in that it's my submission that he has complied with the requisite of full disclosure. This is an applicant that came forward on his own. This is an applicant who was not in prison or threatened by imminent arrest. There was no pressure on him to come forward, no one outside certain circles had information that he had in fact thrown this grenade and I further wish to submit that as it has appeared from the evidence and the version of the applicant, the bundle of documents before us, or before you rather, there was nothing material or financially that was gained by this applicant after having taken or participated in this operation.

And I would wish to submit finally that as the evidence indicated the action was politically motivated and further that this applicant more than anything else acted on instructions from his superiors. I thank you Chairperson.

CHAIRPERSON: Thank you Mr Koopedi. Ms Vilakazi, have you got anything that you want to put on record?

MS VILAKAZI: Honourable Chairperson, the submission on behalf of the family of Majokane would be that as it is already on record that the application is not opposed and we'll leave it to the Panel to decide whether the applicant qualifies for amnesty, but that the family should be considered, declared victims, in terms of Section 22 of the Promotion of National Unity and Reconciliation Act. Thank you Chairperson.

CHAIRPERSON: Thank you Ms Vilakazi. Ms Mtanga?

MS MTANGA: No submission Chairperson, I wish to leave this matter in your hands.

CHAIRPERSON: Thank you ma'am. Yes, I can't really think of any reason why you would want to respond, but it's alright.

MR KOOPEDI: No response, Chairperson, I'm indebted to my colleagues.

CHAIRPERSON: Thank you. Yes, well that concludes the matter. We will prepare a decision in the matter and we'll make it available as soon as circumstances permit. So we'll reserve the decision in the matter and take the opportunity to thank the legal representatives for their assistance. Mr Koopedi, Ms Vilakazi and also Mr Majokane, we thank you. We have noted your attitude and we have noted the requests that were put to us by Ms Vilakazi and we will respond to that appropriately but thank you for having attended and for your attitude. And of course Ms Mtanga as well, thank you very much.

Yes, Ms Mtanga, the other matters, the Patsha matter that is not proceeding, the applicant is deceased I'm told in that matter so it's no longer on the roll?

MS MTANGA: Yes Chairperson, that's the situation.

CHAIRPERSON: And that should take care of what was on the roll then for today?

MS MTANGA: Yes Chairperson.

CHAIRPERSON: Very well. Well, under those circumstances we are going to adjourn the proceedings and we will reconvene. Ms Mtanga, just give me an indication how many matters are on the roll for tomorrow?

MS MTANGA: We have two matters, Chairperson. The first one involves four applicants, that is Kgoete and three other people and then the second one it's the Selepi matter, which is an SDU application. So we've got two for tomorrow.

CHAIRPERSON: Yes, would it not place unnecessary pressure on us if we were to start at 9.30?

MS MTANGA: 9.30 will be fine, Chairperson.

CHAIRPERSON: Will it be okay with you?

MS MTANGA: Yes it will be fine.

CHAIRPERSON: Very well. We'll then adjourn the proceedings and we'll reconvene here tomorrow morning at 9.30.

COMMITTEE ADJOURNS