Amnesty Hearings

CHAIRPERSON: ... nine this morning and I suppose that was an indication that we would start round about half past nine and I would appreciate if the representatives see to it that they're punctually on time.

MR RICHARD: Thank you Chair. I call the next witness, Mr Petrus Mahlangu.

SMANEKWA PETRUS MAHLANGU: (sworn states)

CHAIRPERSON: Mr Cornelius, am I correct, you're seeking amnesty or your client is seeking amnesty for an assault on Solomon Mahlangu?

MR CORNELIUS: That is correct.

CHAIRPERSON: He mentioned it was for Lucky Mahlangu, but Lucky, it's clear that the person who had been assaulted was Solomon?

MR CORNELIUS: Yes and on pages 40 and 41 of the bundle it is clear that Lucky is the one who escaped.

CHAIRPERSON: Yes. And he is seeking amnesty for the assault on George.

MR CORNELIUS: Correct.

CHAIRPERSON: He's seeking amnesty for the assault on Nomsa and Phosa.

MR CORNELIUS: Correct.

CHAIRPERSON: He's not seeking amnesty for an assault on Edward.

MR CORNELIUS: Yes, he didn't assault him.

CHAIRPERSON: But in connection with the Edward Mokati arrest, he's seeking amnesty for assault on two male persons.

MR CORNELIUS: That is correct, unknown male persons.

CHAIRPERSON: Ja. Those two male persons were arrested as a result of the pointing out by Edward.

MR CORNELIUS: Correct.

CHAIRPERSON: He's not seeking amnesty for any assault on the witness of yesterday afternoon.

MR CORNELIUS: Mr ...(indistinct), he's not seeking amnesty for that.

CHAIRPERSON: Not in any respect?

MR CORNELIUS: In any respect, he denies the total assault.

CHAIRPERSON: Thank you.

MR CORNELIUS: Thank you Chairperson.

MR RICHARD: Thank you Chairperson.

EXAMINATION BY MR RICHARD: Mr Mahlangu, you are related to either Lucky or Solomon Mahlangu, is that not correct?

MR MAHLANGU: I am connected to Lucky. He's my nephew.

MR RICHARD: And is it your brother or Lucky's parent ...

MR MAHLANGU: He is my sister's son.

MR RICHARD: Thank you. And now your sister's name is?

MR MAHLANGU: Anna Mahlangu.

MR RICHARD: Now is there any relationship between you and Solomon Mahlangu?

MR MAHLANGU: No, the only similarity is in the surname.

MR RICHARD: Now at the time, that's 1977, what occupation did you pursue?

MR MAHLANGU: I was a detective in the criminal department, stationed at Springs.

MR RICHARD: And now on the day of the incident, how did you learn that there had been an incident, what did you discover?

MR MAHLANGU: I heard during the day that there are so-called terrorists who had caused damage in Johannesburg. I, at the time, was not aware that my nephew was involved. I was at work.

MR RICHARD: Who told you about the incident?

MR MAHLANGU: Our Section Head.

MR RICHARD: And what did he want you to do?

MR MAHLANGU: We were informed that we should remain on stand-by and the vehicles should be filled with petrol.

MR RICHARD: Now when was it that you were asked to go across from Springs to Johannesburg?

MR MAHLANGU: I was informed the following day.

MR RICHARD: Not on the day of the incident, the next day?

MR MAHLANGU: Not on the day of the incident.

MR RICHARD: Now who told you to go across to Johannesburg?

MR MAHLANGU: They left a message at home, that is the SB's.

CHAIRPERSON: Who are the SB's? Special Branch?

MR MAHLANGU: Special Branch, yes.

MR RICHARD: Now did they involve your superior officers, your Commanding Officers?

MR MAHLANGU: Yes, superiors of the SB's.

MR RICHARD: Now did you go across to Johannesburg to John Vorster Square as it was then known?

MR MAHLANGU: Before answering that question, I'd like to say on that very same day in the evening I went home and found a message that the police had come earlier on. When I got into the kitchen there were groceries lying all over the place. The first question that I asked my mom was: "Where's my father?" and she said he had been taken and I thought this could be the SB's because they frequented my home ever since Lucky disappeared and my mom then told me that they said I should report at ...(indistinct) building and then I spent the night and the following day I went to work as usual and as I was busy handling or preparing my cases in court ...(intervention)

CHAIRPERSON: We want to know what you've done in connection with this incident here.

MR RICHARD: Did you go across to John Vorster Square?

MR MAHLANGU: Yes, I did. I was accompanied by the Commanding Officer of SB's in Springs.

MR RICHARD: And where did he take you in John Vorster Square.

MR MAHLANGU: We went to John Vorster.

MR RICHARD: And where in John Vorster Square did you go?

MR MAHLANGU: We went to the 10th floor, that's the Security Department.

MR RICHARD: And did you see either Solomon or anyone else there?

MR MAHLANGU: The first person that I saw there was Solomon. I was seeing him for the first time that day. he was in the company of Monty in that office. Monty was seated, leaning against the wall and he had his head full of plasters and bandages and they then asked Solomon whether they saw me when they were introduced and I was pointed out.

MR RICHARD: Now did you see the applicant before the Committee there that morning?

MR MAHLANGU: We met him upon arrival.

MR RICHARD: Where did you meet him on arrival?

MR MAHLANGU: The tenth floor.

MR RICHARD: What was he doing?

MR MAHLANGU: They were in their offices, I don't know what they were doing but I think they were busy with this investigation.

MR RICHARD: Now tell me why was the applicant introduced to you?

MR MAHLANGU: There was no introduction at the time because they were very angry, very emotional.

MR RICHARD: And now when did you learn the applicant's name?

MR MAHLANGU: I only got to know his name here, I only knew him by sight.

MR RICHARD: Now why do you remember him? What characteristics make you remember his face?

MR MAHLANGU: I know him because he was very aggressive with me.

MR RICHARD: Would you please explain to the Committee in what manner he was aggressive?

MR MAHLANGU: His cross-questioning, his threats and all those things together are reasons why I remember him so well.

MR RICHARD: What threats did he make?

MR MAHLANGU: He told me that they will take me to Robben Island where I will rot with Mandela.

MR RICHARD: And any other threats?

MR MAHLANGU: Death.

MR RICHARD: Now you were describing how Monty looked, could you please tell us more?

MR MAHLANGU: He had bandages all over his head, swollen face, couldn't talk.

MR RICHARD: And Solomon, what was his appearance?

MR MAHLANGU: He had a swollen face and a gun shot wound on the leg.

MR RICHARD: In what way was his face swollen?

MR MAHLANGU: As a person who had been beaten up.

MR RICHARD: Now why do you say beaten up? On what basis?

MR MAHLANGU: When a person has been hit with a fist, he swells.

MR RICHARD: Now tell me, did you talk to Solomon?

MR MAHLANGU: Not at that stage.

CHAIRPERSON: What was swollen on his face?

MR MAHLANGU: The face was swollen as well as the foot that had a wound.

MR RICHARD: Were his eyes normal?

MR MAHLANGU: No.

MR RICHARD: And his lips?

MR MAHLANGU: As I stated, he had a swollen face.

MR RICHARD: Did he have any bandages on him?

MR MAHLANGU: No. That was an indication that he had not received any medication.

MR RICHARD: Now what questions did the applicant ask you? You say he cross-examined you. What questions did he put to you?

INTERPRETER: Chairperson, may I draw your attention to the fact that the witness is tuned to Channel 2 which is English and that somehow makes it difficult for us to keep up with him, because he answers before I can interpret.

MR RICHARD: What channel would you like him to be on?

CHAIRPERSON: Should he be on Channel 1? On channel 4?

MR RICHARD: It's now on channel 4.

CHAIRPERSON: He's now I presume on channel 4 and let's see how it goes and please inform me if there are any problems.

MR RICHARD: Now my last question was, you say that the applicant Mr van Heerden, put various questions to you. What did he ask you?

MR MAHLANGU: He said where was I when Lucky and others were at Duduza.

CHAIRPERSON: What language did he speak?

MR MAHLANGU: Afrikaans.

MR RICHARD: And now where is Duduza?

MR MAHLANGU: In Nigel.

MR RICHARD: Now did he speak any other languages?

MR MAHLANGU: No, only Afrikaans.

MR RICHARD: Now how long did he question you for?

MR MAHLANGU: Several questions were asked. He was not the only one, there were several of them, each one of them asking questions in turn.

MR RICHARD: Other than the story about Duduza, what other questions did they put to you?

MR MAHLANGU: They wanted to know where Lucky had trained and I told them I don't know because they'd left.

MR RICHARD: Now you say you saw ...(intervention)

CHAIRPERSON: Could you perhaps assist us? Do you know any of the other persons who questioned you?

MR MAHLANGU: Others came from Springs, as well as those who were based in John Vorster, including the applicant.

CHAIRPERSON: Yes, but could you give us any names?

MR MAHLANGU: Lieut Kriel, van Niekerk, Col Cruywagen and Smit. I don't know his rank.

CHAIRPERSON: They were all senior people?

MR MAHLANGU: Yes.

CHAIRPERSON: And at that time, what was the rank of the applicant?

MR MAHLANGU: I don't know because they were in plain clothes, so you couldn't establish the rank until he was dressed.

CHAIRPERSON: Didn't the senior people take the lead in questioning you?

MR MAHLANGU: Indeed, those were the people who were leading the questioning.

CHAIRPERSON: Were they also very aggressive?

MR MAHLANGU: There was no peace, there was no mercy and I would not be given a chance to breathe.

MR RICHARD: Were you assaulted in any manner or threatened?

MR MAHLANGU: No, I was not assaulted. Maybe they were afraid of something.

MR RICHARD: Now you say you saw Lucky on a subsequent occasion, some time later. How long later was it?

MR MAHLANGU: After years.

MR RICHARD: You never saw him again in...?

MR MAHLANGU: I never ...(intervention)

MR RICHARD: Forgive me, I made the same mistake as before. You say you saw Solomon some time later?

MR MAHLANGU: Solomon, yes I did see Solomon the following day, it could have been on Tuesday because the incident happened on Monday, I therefore must have seen him on Tuesday when I went for an identification parade at John Vorster.

MR RICHARD: Did you get a chance to talk to Solomon then?

MR MAHLANGU: No, not during the time of the identification parade. We came back late in the evening, around 11 o'clock, that's when I spoke to him.

ADV SIGODI: Sorry Mr Richard. The other question that you asked, we didn't get it quite clearly. Who did you say you saw some years later?

MR RICHARD: That was my mistake, I mixed up Solomon and Lucky. I said

"Did you see Lucky some time later?"

and he said:

"Yes, I saw Lucky many years later."

ADV SIGODI: Yes, was it Lucky - not the applicant?

MR RICHARD: Not the applicant, I made a mistake by using Lucky instead of Solomon.

CHAIRPERSON: So he saw Lucky...

MR RICHARD: Years later and Solomon ...

CHAIRPERSON: Have you known Lucky before?

MR MAHLANGU: Before the incident?

CHAIRPERSON: Ja.

MR MAHLANGU: No, I did not see him.

MR RICHARD: Did you know Lucky your nephew before the incident, not Solomon?

MR MAHLANGU: Yes, we stayed in the same house.

CHAIRPERSON: Oh yes, Lucky was the ...

ADV SIGODI: The nephew.

CHAIRPERSON: Ja.

MR RICHARD: No sorry, that was exactly where I ...

CHAIRPERSON: Ja. You didn't know Solomon before this incident?

MR MAHLANGU: I saw him for the first time at John Vorster.

CHAIRPERSON: First time at John Vorster, thank you.

MR RICHARD: Now as I understand the chronology, you had the report that there had been an incident in Johannesburg. The next day you went with the Commander of the Security Branch, Springs, you were questioned by the applicant and other senior officers. Now my next question was, when did you see Solomon again? I gather there was an identity parade.

MR MAHLANGU: That is correct.

MR RICHARD: Did you, at the time of the identity parade, get a chance to speak to Solomon?

MR MAHLANGU: No, they did not give me that chance, I only got chance late in the evening, that was on Tuesday around 11 o'clock.

MR RICHARD: Now at the i.d. parade, what did Solomon look like?

MR MAHLANGU: He was in that situation, he was limping, he had been injured. You see when we got to John Vorster, he was called, he was sleeping at a place as far as that wall and he was called to a distance as far as where I'm sitting and he came to us limping.

MR RICHARD: And his physical appearance?

CHAIRPERSON: It's common cause, he'd been assaulted.

MR MAHLANGU: By the look of things, yes, he had been assaulted.

MR RICHARD: Now you spoke to him that evening?

MR MAHLANGU: The people in my company as well as this applicant said we should ask him, because he's my brother, I should question him, then I started questioning him.

MR RICHARD: Now, forgive me, I'm getting slightly lost in the chronology. When, during the stage of the various events, did the applicant ask you to question Solomon Mahlangu?

MR MAHLANGU: It was in the evening around 11 o'clock, that was on the day when I arrived in the company of the two people from Springs, that's when he requested me that I question Solomon.

MR RICHARD: Now ...(intervention)

CHAIRPERSON: Did the applicant instruct you to question Solomon, or did one of the senior offices instruct you to question Solomon?

MR MAHLANGU: All of them, not one person was talking, all of them were talking, instructing me what to do, together with ...(indistinct), he was instructing me.

CHAIRPERSON: Ja, that's all I want to know, whether he specifically instructed you, or whether all of them or whether a single other person instructed you, that's all I'm inquiring about because you said he instructed you to do the questioning and now you say all of them instructed you to do the questioning.

MR RICHARD: Now my next question is, what did they want you to ask Solomon Mahlangu?

MR MAHLANGU: They instructed me to ask him where he comes from, where he had met Lucky and why did they come here.

MR RICHARD: Now did you do what they asked you to do?

MR MAHLANGU: Yes, I did.

MR RICHARD: Were you alone when you did it?

MR MAHLANGU: There were several of us, other policemen including myself.

MR RICHARD: And where did the questioning take place?

MR MAHLANGU: In his cell.

MR RICHARD: Now do you remember the names of any of the other policemen that went down to the cell with you to question Solomon Mahlangu?

MR MAHLANGU: The applicant was present and the Springs Commanding Officer who was a Major, Templeton Sebata, was also present.

MR RICHARD: Now what did the suspect, that's Solomon Mahlangu, answer to your questions?

INTERPRETER: May the question please be repeated.

MR RICHARD: When you put - let me change the question altogether. What questions did you put to Solomon Mahlangu?

MR MAHLANGU: I asked him where he had met Lucky and he said they met in Luanda. Shall I continue?

MR RICHARD: Yes.

MR MAHLANGU: Secondly, I said: "Now that you had left, why did you come back?" and he said: "We came here to liberate South Africa", he said that in English within their earshot.

MR RICHARD: Now did he say anything about his physical condition?

CHAIRPERSON: What did he say, why did they come back?

MR MAHLANGU: "We came back to liberate South Africa." That question was: "How can you liberate South Africa when there are three of you?" and he said: "We are all over the country."

MR RICHARD: Now did Solomon say anything about his physical condition, his health?

MR MAHLANGU: I asked him who assaulted him and he said the police at John Vorster assaulted him.

MR RICHARD: Did he describe how he had been assaulted?

MR MAHLANGU: No, he did not because they did not want me to elaborate on such matters.

MR RICHARD: And where was the applicant when you asked that question?

MR MAHLANGU: He was present, we were all standing there at the cell door.

MR RICHARD: Did you do anything ...(intervention)

CHAIRPERSON: I don't want to interfere but the applicant admits that he assaulted Solomon, so why should we dwell on that? He's admitted that he severely assaulted him.

MR RICHARD: The applicant denies having anything to do with Solomon after the evening of the incident. We now have an incident some time later where we are given evidence that ...(intervention)

CHAIRPERSON: How much later? The next day, the evening of the next day?

MR MAHLANGU: On the following day. Let me say when we left Solomon that evening, I was taken to another office where I found Absolom and he had a swollen neck and face and couldn't talk.

MR RICHARD: After you had this incident the next day where the applicant was present, did you see Solomon Mahlangu again?

MR MAHLANGU: Not after that.

MR RICHARD: During that visit to the police station now known as Johannesburg Central, did you see the next witness, that's Absolom Hlatshwayo?

MR MAHLANGU: Yes. That was before we went to see Solomon. He was alone in that office, but he was under guard.

MR RICHARD: Is that the same office as you saw the applicant in, or another office?

MR MAHLANGU: We were going in and out of offices, but yes, these are the people we met when we arrived. These are the people who received us and others and they took us, they took me from one office to another.

MR RICHARD: At some point in the evening, it's clear that the applicant would have seen Mr Hlatshwayo.

MR MAHLANGU: Yes, I saw him and they said I should talk to him.

MR RICHARD: Now, what Mr Hlatshwayo look like when you saw him?

MR MAHLANGU: He had a swollen face, swollen neck, could not even turn his neck and the arms were swollen too, he couldn't turn his body, he couldn't move.

MR RICHARD: Did you talk to Mr Hlatshwayo?

MR MAHLANGU: Yes, I tried, but he signalled by hand that he couldn't talk.

MR RICHARD: Did you talk to Mr Hlatshwayo at any later point in time?

MR MAHLANGU: I never saw him again.

MR RICHARD: Now you said your father had been taken into detention, did you see your father?

MR MAHLANGU: I said I wanted to see him and they said I cannot.

MR RICHARD: No further questions.

NO FURTHER QUESTIONS BY MR RICHARD

CHAIRPERSON: Thank you.

MR CORNELIUS: Thank you Mr Chair.

CROSS-EXAMINATION BY MR CORNELIUS: How do you recognise Mr van Heerden after all this period of years?

MR MAHLANGU: I know him, I was trained to identify people as a cop.

MR CORNELIUS: But how do you recognise him?

MR MAHLANGU: I can see him because I know him.

MR CORNELIUS: Can you describe Mr ...(indistinct)

INTERPRETER: ; May you please repeat?

MR CORNELIUS: Can you describe Mr Cartwright to me, or Mr Struwig?

MR MAHLANGU: Who is Struwig?

MR CORNELIUS: You mentioned him it was one of the people that were present.

MR MAHLANGU: I said Cruywagen, not Struwig.

MR CORNELIUS: Okay, describe Mr Cruywagen to me.

MR MAHLANGU: He was a short, stout man with very very big eyes and very hefty with short hands and very hairy.

MR CORNELIUS: So you would be able to identify him again?

MR MAHLANGU: Yes.

MR CORNELIUS: ; Now on what do you identify Mr van Heerden?

MR MAHLANGU: Tall, he had short hair at the time, a bit light in complexion, he used to wear denim jeans. He was wearing denim jeans on the day.

MR CORNELIUS: A lot of policemen wear denim jeans when they are in civilian clothes, that is not particular.

MR MAHLANGU: I'm saying he was tall, short hair, with an aggressive voice.

MR CORNELIUS: I put it to you that there could have been other policemen that were tall, short hair, according to the regulations, that could have been aggressive.

CHAIRPERSON: What was the colour of his eyes, the colour of his hair or what features did he have ...(indistinct - mike not on)

MR MAHLANGU: I was not concentrating on that, but I know him. When I tell you he is the one, I mean exactly that, nothing else.

MR CORNELIUS: Yes, mr Mahlangu, you weren't concentrating on him and if you say it's him, it's him. We are purely asking on what do you recognise him.

MR MAHLANGU: I know him and I can still identify him today, he is the one.

MR CORNELIUS: It's very easy when you sit in the witness chair and the poor applicant sits in front of you, to say it is him, especially if his name is on record. On what do you identify him?

MR MAHLANGU: Because he's one of those who were questioning me, threatening me.

MR CORNELIUS: But there were many people questioning and threatening you, is that correct?

MR MAHLANGU: But he was playing the leading role.

MR CORNELIUS: I am asking you, there were many people threatening and questioning you, Mr Mahlangu.

MR MAHLANGU: I am saying he was playing the leading role, that is why I had my concentration on him.

MR CORNELIUS: You don't want to answer my question, don't you want to answer my question?

MR MAHLANGU: I am saying he is the one, no one else.

MR CORNELIUS: Don't you want to answer my question?

MR MAHLANGU: Repeat your question.

MR CORNELIUS: You must listen carefully to the interpreters. There were many people questioning you that night and they were all aggressive, according to your own testimony.

MR MAHLANGU: That is correct.

MR CORNELIUS: Then why must I go through this little battle to get this answer? And there were many people wearing jeans, Mr Mahlangu.

MR MAHLANGU: He was one of them.

MR CORNELIUS: But if he was one of them, there were many people wearing jeans. ...(indistinct) ... as much as we are, give us the truth.

MR MAHLANGU: Yes, he was one of them, but he's the one who was asking me more questions.

MR CORNELIUS: There were many people wearing jeans, they were all ...(indistinct), in the absence of a facial description, it is possible that you might be making a mistake.

MR MAHLANGU: No, I'm not making a mistake, I know him, that is why I am saying he's the one.

MR CORNELIUS: Let's see how good your observation is. Was he wearing spectacles?

MR MAHLANGU: Not on that day.

MR CORNELIUS: Are you sure?

MR MAHLANGU: Yes.

MR CORNELIUS: Was his hair grey, was it dark?

MR MAHLANGU: It was blackish, brown, short, blackish brown short hair.

MR CORNELIUS: ; The colour of his eyes, can you remember it, scars?

MR MAHLANGU: No, I didn't take notice of the colour of the eyes.

MR CORNELIUS: I put it to you that Mr van Heerden was a Constable two months stationed there and that he was an insignificant little figure against the other chief officials who were running the operation.

MR MAHLANGU: He is the one and there is no one else that I saw that day whom I can recognise so clearly.

MR CORNELIUS: But you just described Mr Cruywagen. Have you now forgotten?

MR MAHLANGU: No.

MR CORNELIUS: So there is somebody else you can describe.

MR MAHLANGU: Like who.

CHAIRPERSON: Did he have a beard?

MR MAHLANGU: No.

CHAIRPERSON: A moustache?

MR MAHLANGU: Yes, but very short.

MR CORNELIUS: Who was the Chief in command there, you were a policeman at that time, who was in command there?

MR MAHLANGU: I have forgotten his surname, but he was a Major at the time.

MR CORNELIUS: Was he in charge?

MR MAHLANGU: Yes, he was in charge of the entire SBS at Springs.

MR CORNELIUS: But that night in the office there, you were there, who was the Senior Office there who was running the show?

MR MAHLANGU: I would not know because I didn't know their ranks. I did say that it's not easy to identify a person in plain clothes until that person is addressed.

MR CORNELIUS: But you never knew van Heerden's name till he came to this Committee?

MR MAHLANGU: Yes, I did not know his name, only his face.

MR CORNELIUS: Did you see Mr Cartwright?

MR MAHLANGU: I do not know the names of some of them. Today I still don't know the names of some of them.

MR CORNELIUS: Did all the people give you orders? The way I understand your evidence, everybody gave you orders.

MR MAHLANGU: Each one of them was saying what they wanted to say, including the asking of questions.

MR CORNELIUS: Because you see, the applicant says that he was stationed at John Vorster Square, it's possible that you saw him there, but he most definitely didn't enter into an instructing position that he was instructing who to cross-examine who and take control of the whole investigation. He says he was a junior, a constable, two months of standing and he couldn't do that.

MR MAHLANGU: I, upon arrival at John Vorster, met him, that is why I know him. He gave me those instructions and questioned me and I gave him answers. That he was two months in that place doesn't make a difference.

MR CORNELIUS: He's two months in a new police station and he can shunt around the senior officers in a major investigation of a shooting right next to the police station, is that what you're trying to tell me?

MR MAHLANGU: I'm saying even when you are one day at a police station, you're going to - should I say that even if he was one day at the police station, I would still be expected to do as he was instructing me to because I had to recognise him.

MR CORNELIUS: What language did Mr van Heerden speak with you?

MR MAHLANGU: Afrikaans.

MR CORNELIUS: That's also unlikely. You know, Mr van Heerden testified and you were sitting and hearing that he speaks fluent African languages and he's used extensively because of that nature and his art to speak the African language. Let me please finish, Mr Mahlangu.

MR MAHLANGU: Okay.

MR CORNELIUS: And that is why they used him for certain things and he would always speak to you in a black language.

MR MAHLANGU: He spoke Afrikaans to me, most probably because he knew that I was a police and I understood both English and Afrikaans.

MR CORNELIUS: Did he speak to Solomon?

MR MAHLANGU: Solomon said when these other people questioned him in the cells, he said he did not want to talk to them and wanted to go and sleep.

MR CORNELIUS: But did the applicant talk to Solomon?

MR MAHLANGU: Not in my presence, because Solomon refused to talk. He said he was tired and he was in pain.

CHAIRPERSON: When Solomon refused to talk, did they assault him?

MR MAHLANGU: Are you saying in my presence?

CHAIRPERSON: That's all you can testify about, is what happened in your presence, Mr Mahlangu, did they assault him when he refused to talk?

MR MAHLANGU: No, they did not. What he told me is that he had been assaulted, that's why he was in that condition.

MR CORNELIUS: Who gave you instructions to go to John Vorster, what rank?

MR MAHLANGU: I went with the Commanding Officer from Springs.

MR CORNELIUS: Did he give you instructions?

MR MAHLANGU: He told me that he was taking me as a suspect to an I.D. parade in Johannesburg.

MR CORNELIUS: On whose instructions did he act, do you know?

MR MAHLANGU: I would assume that he made a decision on his own because he was in a commanding position at Springs, or whether he got these instructions from the A-G, I have no idea.

CHAIRPERSON: Were you stationed at Springs too?

MR MAHLANGU: Yes.

CHAIRPERSON: So he was your Commanding Officer?

MR MAHLANGU: No. He was in the Security Department and I was in the Criminal Department.

CHAIRPERSON: Did you know him well?

MR MAHLANGU: Not very well. I only got to know him closer when we were here at John Vorster.

CHAIRPERSON: Do you know where he got his instructions from to take you as a suspect?

MR MAHLANGU: As I have indicated, that maybe the instruction came from the Attorney General or from the Commissioner of Police, or really I have no idea.

MR CORNELIUS: Didn't you ask him? You're being taken as a suspect, I mean, that must be a shock. Didn't you ask him: "Where does this instruction come from?"

MR MAHLANGU: There was no time for such questions because we were being harassed and handled in that manner, so there was no way of talking nicely.

MR CORNELIUS: Are you now saying that your Commanding Officer that you know well at Springs, harassed you?

MR MAHLANGU: May you please repeat?

MR CORNELIUS: Your Commanding Officer at Springs that you know well, did he now harass you?

CHAIRPERSON: He wasn't taken by his Commanding Officer, he was taken by the Commanding Officer of the Security Police at Springs.

MR CORNELIUS: I see. I'll rephrase that. Were you harassed by the Commanding Officer of the Security Police at Springs?

MR MAHLANGU: Yes, he's the one who was harassing me the most.

MR CORNELIUS: Who was he?

MR MAHLANGU: I cannot recall his surname but he was a Major at the time.

MR CORNELIUS: So you would agree that its obvious that van Heerden couldn't have given an instruction to the Major to come and pick you up?

MR MAHLANGU: The instruction that I should be taken from Springs to John Vorster, I did mention that I don't know where it came from, whether from Pretoria or from Commissioner or District Commissioner, I said I do not know really.

MR CORNELIUS: Were you assaulted by this Security Officer from Springs?

MR MAHLANGU: No, only threats.

CHAIRPERSON: Mr Cornelius, I don't want to interrupt you, but I'm trying to find out from both of you what's the purpose of calling this witness and what's the purpose of cross-examining him because it's common cause that your client in fact assaulted Solomon. He testified so himself, so whether he this witness was there or not, it's neither here nor there because we've got the facts and it's common cause that he was assaulted by your client and your client is asking amnesty for the assault on Solomon.

MR CORNELIUS: I think you're quite correct here, Chairman, this doesn't take it any further on further assaults that might have been committed by other would be applicants. So I quite agree with you, I think it's just superfluous to go ...

CHAIRPERSON: He was never assaulted in the presence of this witness, he was told by Solomon that he's been assaulted before, that might have been the early warning the previous night or whatever, during the day he was at the identification parade and there was no evidence that he was assaulted at the parade or after the parade.

MR CORNELIUS: Yes and I think I've made it quite clear that my client couldn't have given instructions to him due to certain things, but I'll leave that for argument, I think that will be easier. In the light of that, I don't have any further questions, thank you Chairperson.

NO FURTHER QUESTIONS BY MR CORNELIUS

MR RICHARD: Chairperson, my submission is that the evidence is most relevant.

CHAIRPERSON: You can argue that at that stage. I've put it to you, I've allowed you to lead your clients evidence and you could argue afterwards how relevant it would be. I didn't stop you in a single question you've asked.

MR RICHARD: My next question is, I intend to call Mr Hlatshwayo, also to discredit the applicant, may I proceed to call Mr Hlatshwayo?

CHAIRPERSON: You could call whichever one you want to.

MR MAPOMA: I've not asked some questions - I've not been given opportunity to ask questions of this witness.

CHAIRPERSON: Oh, sorry, Mr Mapoma.

CROSS-EXAMINATION BY MR MAPOMA: Mr Mahlangu, when you arrived at John Vorster Square, you say there are these senior policemen whom you have mentioned, do you recall that?

MR MAHLANGU: Yes.

MR MAPOMA: Lieut Kriel, van Niekerk, Cruywagen and Smit.

MR MAHLANGU: Yes.

MR MAPOMA: The applicant was amongst them. Are there other Security Police officials who were there other than those persons whom you have just mentioned?

MR MAHLANGU: There were others, but I didn't know their names.

MR MAPOMA: Are you in a position to say that those others whose names you can't recall, were junior or senior officers?

MR MAHLANGU: I would not be in a position to say at the time whether they were junior or senior.

MR MAPOMA: Thank you. That is all, Chairperson.

NO FURTHER QUESTIONS BY MR MAPOMA

CHAIRPERSON: Thank you.

ADV SIGODI: In your experience ...

MR RICHARD: Sorry.

ADV SIGODI: In your experience as a policeman, what criteria or measures would be used to promote somebody to a senior rank?

MR MAHLANGU: First of all they would look at the educational qualifications. Secondly they would depend on how much relationship you had with the Security Forces. If you were toeing the line, you would be recommended, some recommendations would be sent to the promotion board and you would thus be promoted.

ADV SIGODI: So if you worked hard and you showed people that you were very serious, then you were more likely to get a recommendation and be promoted to a senior rank?

MR MAHLANGU: No doubt about that, especially when you were in the SB's good books. You would get the promotion in no time.

ADV SIGODI: Then what would people do to try and get themselves into good books?

MR MAHLANGU: Being an informer of the SB's, saying bad things about other policemen, saying bad things about the community, helping them in gathering in evidence, etc.

ADV SIGODI: Now tell me, why do you think you were arrested? Why was it necessary to arrest you? Why do you think you were arrested to be questioned?

MR MAHLANGU: I was arrested because my nephew was a terrorists and they thought I also knew much about his terrorist activities.

ADV SIGODI: Thank you Chairperson.

MR SIBANYONI: Now after you were taken to John Vorster Square and asked to ask Solomon questions, what happened to you? Was that the end of your involvement in sort-of questioning Solomon?

MR MAHLANGU: No, the Springs Commanding Officer told me that we were going to work together, myself and them, until such time that they get hold of Lucky.

MR SIBANYONI: And what did you do then in trying to get hold of Lucky?

MR MAHLANGU: I would report to them every morning. I was no longer reporting at my own station, I would now report at ...(indistinct) building.

MR SIBANYONI: That is the police building at what place?

MR MAHLANGU: At Springs.

MR SIBANYONI: When you asked Solomon what happened to him, what was his exact answer when you asked him about his condition?

MR MAHLANGU: He said he had been assaulted by the Johannesburg Police.

MR SIBANYONI: Did he mention any name or any indication?

MR MAHLANGU: He said it was the SB's in Johannesburg, because they would not involve police from other branches, it would strictly be the SB's from within that branch.

MR SIBANYONI: And as he was talking like that, the applicant was standing at the door of the cell, you said so, isn't it?

MR MAHLANGU: Yes, he was standing there at the cell door.

MR SIBANYONI: Was Solomon free, or brave to speak, or did he appear to be afraid to speak?

MR MAHLANGU: He did not care, he had abdicated himself and he said if they beat him to death, that's okay, but they're not going to get what they want.

MR SIBANYONI: Apart from the applicant, how many more police from John Vorster Square were present when you were talking to him?

MR MAHLANGU: I cannot recall, but there were a few of them including the ones that had come from Springs.

MR SIBANYONI: Thank you Chairperson, I have no further questions.

CHAIRPERSON: Thank you. Anybody else want to ask any questions? The witness can be excused now.

WITNESS EXCUSED

MR RICHARD: Thank you. And my next witness is Mr Hlatshwayo.

ABSOLOM HLATSHWAYO: (sworn states)

MR RICHARD: Thank you Chairperson, may I proceed? Thank you.

EXAMINATION BY MR RICHARD: Mr Hlatshwayo, you were present yesterday when the applicant gave evidence to the effect that he had never had anything to do with you and had no knowledge about you at all at any level. Do you remember his evidence to you to that effect?

MR HLATSHWAYO: He was involved.

MR RICHARD: You say he was involved. Now when did you first see the applicant?

MR HLATSHWAYO: When they came to pick me up at Nigel, they were many of them. They brought me to John Vorster Square and I saw him and van Niekerk and Smit.

MR RICHARD: Now go back to the Nigel incident, you say when they came to pick you up at Nigel, who came to pick you up?

MR HLATSHWAYO: Van Niekerk and Smit and he too were present, there were several of them, six vehicles and a mini bus, that was the seventh vehicle.

CHAIRPERSON: I don't follow now. Were there six people, or six vehicles plus another vehicle? Seven vehicles in total, or seven people in total?

MR HLATSHWAYO: They were in seven cars, there were four of them in these seven cars when they came to pick me up.

CHAIRPERSON: ...(indistinct - mike not on)

INTERPRETER: The speaker's mike is not active.

CHAIRPERSON: That could be round about 30 people, roughly saying, I'm not keeping you to that?

MR HLATSHWAYO: There were many, I did not know these people. I only got to know them when we came to John Vorster.

MR RICHARD: Now you say that the applicant was most definitely amongst the people who came to fetch you in Nigel, yes or no?

MR HLATSHWAYO: Yes, he was part of them.

MR RICHARD: What was the applicant doing at that stage?

MR HLATSHWAYO: When they came to fetch me, he was present. He was speaking Tswana mostly.

MR RICHARD: To who was he speaking Tswana?

MR HLATSHWAYO: With me as we were travelling in the kombi. You see, I don't understand Tswana very well, but he was busy with Tswana and we then travelled to John Vorster.

MR RICHARD: But he travelled in the same vehicle as you were taken back to John Vorster, with you?

MR HLATSHWAYO: They transported me in a kombi and Mahlangu was travelling in another vehicle, a black Datsun with tinted windows.

CHAIRPERSON: Sorry, did you and the applicant travel in the same kombi?

MR HLATSHWAYO: Yes.

CHAIRPERSON: How many arrested persons were travelling in that kombi or were you the only one arrested there at Nigel?

MR HLATSHWAYO: Solomon Mahlangu had been brought along to point out, so that they could get things that he had left behind.

CHAIRPERSON: I see. Did Solomon point out the house? Did you see him doing that, or how did it come about that they arrested you?

MR HLATSHWAYO: They came to me on a Sunday, it was Lucky and Monty as well as Solomon. They came carrying paper bags and there were no people, there was nobody at Solomon's parents and they came to my place. They wanted to leave these things for safekeeping and they did not come back until Monday.

MR RICHARD: Now, ...(intervention)

MR SIBANYONI: I'm sorry Mr Richard. I want to ask, at what place there was nobody, can you just repeat that question?

MR HLATSHWAYO: At Lucky's place, that was my neighbour.

MR SIBANYONI: Thank you.

MR RICHARD: Chairperson, with leave, let me clear this up. Now do you know Solomon Mahlangu, or did you know Solomon Mahlangu?

MR HLATSHWAYO: He is one person that I did not know, I was seeing him for the first time. He came in the company of Lucky and Monty.

MR RICHARD: Did you know Monty and Lucky?

MR HLATSHWAYO: Yes, Monty and Lucky, these are young boys who grew up in the neighbourhood, I knew them.

MR RICHARD: Now you say on one Sunday, if I remember correctly, they came to you because there was no one at some house and they asked you to do something, what did they ask you to do?

MR HLATSHWAYO: They requested to leave their parcels at my place and they said they would come and pick them up once the parents of Lucky had come back.

MR RICHARD: Now what did these parcels consist of? What did you see?

MR HLATSHWAYO: Omo, Lactogen, Colgate and some such things. I did not look further than that.

MR RICHARD: Where did they leave them? Where in your house did they leave them, in the garden or in the?

MR HLATSHWAYO: In the kitchen.

MR RICHARD: Right. Now when did you first become aware that there had been a shootout between terrorists and the police in Johannesburg?

MR HLATSHWAYO: They came to me on Monday around 2 o'clock.

MR RICHARD: And did you know - where did they come to you, sorry, I beg pardon, where were you when they came to you?

MR HLATSHWAYO: I was at work.

MR SIBANYONI: Who came to you?

MR HLATSHWAYO: The police, Solomon Mahlangu and my neighbour, Mr Ndaga, Lucky's grandfather. He came to show them my workplace and me.

MR RICHARD: Now was the applicant with them?

MR HLATSHWAYO: Which one?

MR RICHARD: Was Mr van Heerden the applicant with them?

MR HLATSHWAYO: Yes, he was present.

MR RICHARD: Now if I understand your chronology correctly, this is at approximately 2 p.m. on the day of the shoot-out in Johannesburg. Now what did they find inside your house?

MR HLATSHWAYO: They found these bags, the bags that had been left behind by these boys. They took these bags and they took this old man, who was my neighbour and they came looking for me and they went to my workplace where they picked me up. They were now carrying these bags. Nobody was at home. They had broken the door and they took the things, the bags, which were in the kitchen.

MR RICHARD: Now what was in fact in these bags? Was it what you thought them to be, or was it something different?

MR HLATSHWAYO: There were these huge Lactogen containers and soap. There was basically some groceries.

MR RICHARD: Did they find firearms hidden in the grocery containers?

MR HLATSHWAYO: When I arrived at John Vorster Square and when I was beaten up, they said to me: "Can you see what things we found in your house?" and they took these things out of the plastic bags and the containers?

MR RICHARD: Now, you say you were beaten up at John Vorster Square, in what way were you beaten up?

MR HLATSHWAYO: I was severely assaulted. I had a swollen neck and I was broken, or I had some part of me broken, I could not function for about three weeks and after the assault, I was kept in a cell for one week.

MR RICHARD: Now before I go into details of the assault and how you were assaulted, can you tell us who assaulted you, can you point out any particular person?

MR HLATSHWAYO: This gentleman who is sitting here, Smit, as well as van Niekerk. There were many others whom I am not sure about, but the ones I am sure of are the applicant, Smit and van Niekerk.

MR RICHARD: Now when you were assaulted, how were you assaulted? With the open hand, the balled fist, were you kicked, were you shocked, were you tubed, by suffocation?

MR HLATSHWAYO: I was tied up, put into a sack, assaulted. I don't know what they were using to assault me and they were applying some electric shocks and there came a time when I could not feel pain any more and I thought I had died and somehow they stopped assaulting me.

MR RICHARD: When you say they put a sack on you, please describe how they put a sack on you.

MR HLATSHWAYO: On my head, they pulled the sack around my head.

MR RICHARD: Could you see what was happening after you had the sack put over your head?

MR HLATSHWAYO: No, I could not see.

MR RICHARD: Were you undressed, or did you still have your clothing on?

MR HLATSHWAYO: When I regained consciousness, I was wearing a pair of trousers, but nothing on my upper body.

MR RICHARD: Now you say and you pointed across the room at the applicant, why do you say he assaulted you? How do you know it was him if you had a sack over your head?

MR HLATSHWAYO: Before the sack was pulled around my head, he was present in the company of the others, such as van Niekerk. They were all there and the people that I saw there was himself, van Niekerk and Smit and he was present as all these things were unfolding.

MR RICHARD: Now why do you say he couldn't have left the room after they put the sack over your head? You say he was present, why do you say he was still present when they started shocking you?

MR HLATSHWAYO: I cannot say, but I know he was present.

MR RICHARD: Did you hear his voice?

MR HLATSHWAYO: You cannot make out which voice this is, or whose voice that is, but I know he was.

MR RICHARD: But one thing is for certain in your memory at the time they put the sack over your head, he was definitely in the room in which you got tortured?

MR CORNELIUS: Mr Chair, I've got problems with the leading questions. You know, to put a leading question, did he hear his voice, now to put a further leading question, "you are convinced that he was in the room" because ...(intervention)

CHAIRPERSON: Obviously he wants him to say something that he hasn't said up to this stage and he's trying his best to get it.

MR CORNELIUS: Yes, but it's...

MR RICHARD: I will go a longer way round, they were leading questions, I cannot argue other.

CHAIRPERSON: Well you've got the experience, why do you put it?

MR RICHARD: At various times the rules regarding leading questions varied in the TRC but I ...(intervention)

CHAIRPERSON: But it can't be put when it's a matter that's in dispute.

MR RICHARD: Now when the sack was put over your head, who was in the room?

MR HLATSHWAYO: All of them, including van Niekerk and himself, he too was present in that office.

MR RICHARD: Where was the applicant?

MR HLATSHWAYO: He was present and he was speaking Tswana, he spoke to me in Tswana.

MR RICHARD: Now, did you see the applicant after the sack was taken off your head?

MR HLATSHWAYO: After they had removed the sack, they moved the sack when they were already gone and van Niekerk was gone at the time and a black officer removed the sack, as I was left there lying down with the sack over my head, a police officer by the name of Joe Nyambula came to remove the sack and they were gone by that time.

MR RICHARD: Did you ever see the applicant again?

MR HLATSHWAYO: After that I stayed at John Vorster for three months. I would see him walking past the cells and I was later transferred to Warmbaths.

MR RICHARD: Did the applicant and you ever talk to each other again after the period in the office with the sack?

MR HLATSHWAYO: No, I would see him walking past. The person that I would talk to was Mr Smith and van Niekerk because he once came to me when I was in Warmbaths.

MR RICHARD: Now, nonetheless, to recap, with whom did you travel from Nigel to John Vorster Square? Who was in your company when you travelled with the police from Nigel to John Vorster Square?

MR HLATSHWAYO: There were many of them driving different cars. He was also there and van Niekerk was there.

CHAIRPERSON: Who was driving with you in the same vehicle? Who was sitting next to you, who was sitting behind you, who was sitting in front of you?

MR HLATSHWAYO: I was at the back of the car and there were, the other one was driving and they would even give me cigarettes.

MR RICHARD: Now do you remember who was in the car with you, in the kombi with you?

MR HLATSHWAYO: No, in this kombi there were policemen that I did not know. I only got to know them when we got to John Vorster.

MR RICHARD: Where was the applicant when you travelled back?

MR HLATSHWAYO: He was present in the kombi.

MR RICHARD: Did he talk to you?

MR HLATSHWAYO: Yes, he did talk to me speaking Tswana language and I did not understand the language and he was asking me to what had happened and I told him that I knew nothing and they told me that because of the parcel that they found at my home, those are the parcels that put me into trouble.

MR RICHARD: Then ...(intervention)

CHAIRPERSON: Did they tell you what was in the parcels?

MR HLATSHWAYO: They told me when I was in jail, it was after being assaulted, they opened the parcels and they wanted to show me what happened and they said to me I nearly killed many people because of those parcels and they said to me I was also associated with the terrorists and I told them that somebody brought the parcels at my home, I've got nothing to do with the parcels.

MR RICHARD: Now the next question is, at the stage that they showed you what was in the parcels, had they already assaulted you?

MR HLATSHWAYO: It was days after, four days after I was detained, they only showed the parcels to me, because when they assaulted me, I was still in the dark, I did not know what was happening.

MR RICHARD: Did they assault you that first day that they came to arrest you from work?

MR HLATSHWAYO: When I arrived, they never wasted time, they assaulted me.

MR RICHARD: How did they assault you?

MR HLATSHWAYO: They assaulted me with anything and they even put the sack over my head.

CHAIRPERSON: Who offered you the cigarettes?

MR HLATSHWAYO: It was Mr van Heerden, he was in the kombi with me. There were other people also in the kombi, but he's the person who offered me cigarettes.

CHAIRPERSON: At that stage, he was kind of playing nice to you?

MR HLATSHWAYO: Yes, he was pretending to be nice, because I did not know what is it that I had done.

MR RICHARD: Now before they put the sack over your head, had you been assaulted?

MR HLATSHWAYO: I was assaulted at first and they took a pause. I heard Solomon Mahlangu screaming from the other side and they came back with a sack and they put that sack over my head and they said to me I have to tell the truth.

MR RICHARD: Had you been assaulted? Had anyone hit you, kicked you, punched you?

MR HLATSHWAYO: I was severely assaulted with fists and after that they took a pause. I was cuffed behind my back and they disappeared. I heard Solomon from the other office. After that they came to me, that's when they put a sack.

MR RICHARD: Right, we've now established that you were hit and punched and beaten before you were shocked and before the sack was put on your head. Now who assaulted you?

MR HLATSHWAYO: Mr van Niekerk, Mr Smit and Mr van Heerden was also there and he continued speaking this Tswana language to me.

CHAIRPERSON: That's not the question, who hit you, Smit or Van Heerden, or who was the person hitting you with the fist?

MR HLATSHWAYO: Mr van Heerden.

CHAIRPERSON: Now why didn't you tell us that?

MR HLATSHWAYO: I was trying to say all of them were assaulting me, but Mr van Heerden was the first person to hit me.

MR RICHARD: Now we've heard from you that it was Solomon Mahlangu who was with them and pointed out where they should go. Now when you got back to John Vorster Square, where was Solomon Mahlangu?

MR HLATSHWAYO: He was in this other car, black in colour. When I left the van, they opened the window of the car and they asked Solomon if this was the person that they were looking for and Solomon Mahlangu said yes, this was the person.

MR RICHARD: Now when you got back to John Vorster Square, where was Solomon Mahlangu? Was he with you or had they taken him away where you didn't know?

MR HLATSHWAYO: Mahlangu was in this other car, he was not in the same car with me.

MR RICHARD: Now you get out of the car and you go into the building at John Vorster Square and you've left the cars behind in the parking garage, did Solomon come with you into the same office in John Vorster Square, or did he go somewhere else where you don't know?

MR HLATSHWAYO: They left before me. He was taken to the other office and I was also taken in a separate office, I only heard when he was screaming and after that they came back to me to assault me. They put this sack over my head.

MR RICHARD: How did you know it was Solomon that was screaming?

MR HLATSHWAYO: They came to the office that was next to the office I was in. they got into that office with Solomon Mahlangu.

MR RICHARD: Now when you heard Solomon screaming, where was the applicant?

MR HLATSHWAYO: Please repeat the question.

MR RICHARD: You were in the one office, Solomon was in another office, you had seen them take Solomon into that other office. Now you heard Solomon screaming. At the time you heard Solomon screaming, where was the applicant?

MR HLATSHWAYO: He was present there. Those are the people who took Solomon Mahlangu there into that office and then the other officers took him to the other office. When I heard Solomon screaming, a short while after that they came to the office where I was in and when they came for a second time, they put this sack over my head and they told me to tell the truth.

MR RICHARD: Now when you heard Solomon screaming, was Mr van Heerden in the office where you were, or outside that office?

MR HLATSHWAYO: He got into that office with Solomon and after assaulting Solomon, all of them they came to the room where I was in, that's when I was assaulted.

MR RICHARD: Now, you heard Petrus Mahlangu, the previous witness, give his testimony. When did you first meet Petrus Mahlangu?

MR HLATSHWAYO: Petrus is my neighbour, he's my next-door neighbour, he grew up in the neighbourhood.

MR RICHARD: Now did you meet him at John Vorster Square?

MR HLATSHWAYO: Yes, I saw him in the company of others. He saw me lying there as I was swollen and he tried to talk to me but I couldn't talk back.

MR RICHARD: Now how often did you see him?

MR HLATSHWAYO: I saw him on that particular day when he came to check us, that was the last day.

MR RICHARD: Now you said you saw Monty Motloung when they came to arrest you. Now what did Monty look like when you saw him?

MR HLATSHWAYO: I found him lying on the floor. He was bleeding on his head, but he was lying down on the floor.

CHAIRPERSON: Did Monty come to Nigel, or did you find him at John Vorster Square?

MR HLATSHWAYO: I found him in John Vorster Square.

MR RICHARD: Now was he in the same office as you, some other office, or the same office as Solomon, or were you in three different offices?

MR HLATSHWAYO: I found him in the office where I was put in. After some time he was removed from that office. I do not know where he was taken, but he had blood on his head.

MR RICHARD: Now tell me, how was his mouth?

MR HLATSHWAYO: He was full of blood. I couldn't check anything further than that.

MR RICHARD: And his eyes?

MR HLATSHWAYO: A person who's been assaulted, you cannot be able to see properly what was the position of his eyes, because he was just full of blood.

MR RICHARD: Now, when you were in the room with Monty Motloung, where was the applicant? Was he in the same room or some other room, or didn't you know where he was?

MR HLATSHWAYO: When Monty was removed, he was taken by the black officers. It was when they were with Solomon Mahlangu and then I was left alone after Monty was taken by these black officers.

MR RICHARD: Where was the applicant when the black officers took Monty?

MR HLATSHWAYO: It is when they were - I think they were with Solomon, I'm not sure, but they were not in that office.

MR RICHARD: Thank you. Now after they took him out of the room, did you see Monty again?

MR HLATSHWAYO: No.

MR RICHARD: Did you ever get a chance to talk to Solomon after you heard him scream?

MR HLATSHWAYO: We were not allowed to converse. I would sleep alone in my cell and my wife was also alone in her cell and Monty was there, we couldn't meet.

MR RICHARD: Did you see Solomon Mahlangu after you heard him scream?

MR HLATSHWAYO: No.

MR RICHARD: Now you say your wife was also in the cells, did you ever have a chance to speak to your wife?

MR HLATSHWAYO: No, not at all, I was never given that opportunity, they prevented such meetings.

MR RICHARD: Thank you. No further questions.

NO FURTHER QUESTIONS BY MR RICHARD

CHAIRPERSON: Ja, perhaps we should ...(indistinct - mike not on) adjourn until half-past eleven.

COMMITTEE ADJOURNS

ABSOLOM HLATSHWAYO: (s.u.o.)

CHAIRPERSON: Yes, any further questions?

MR RICHARD: No further questions.

CHAIRPERSON: Mr Cornelius.

MR CORNELIUS: Thank you Mr Chair.

CROSS-EXAMINATION BY MR CORNELIUS: Did the Security Branch from Nigel fetch you, or who fetched you?

MR HLATSHWAYO: I was fetched by the police from John Vorster Square.

MR CORNELIUS: Because you see, we find it strange that the Security Branch of Nigel fetched the police official from there, why did he not fetch you?

MR HLATSHWAYO: Those were the people who fetched me, the police officers from John Vorster Square.

MR CORNELIUS: How many of them were there, how many officers?

MR HLATSHWAYO: They were in six different cars and a kombi, there were so many of them.

MR CORNELIUS: Were they in civilian clothes?

MR HLATSHWAYO: They were in their civilian clothes.

MR CORNELIUS: Can you remember how many white people and how many black people?

MR HLATSHWAYO: There were two coloured guys that I saw, but most of them were white officers.

MR CORNELIUS: Can you remember how Mr van Heerden was dressed?

MR HLATSHWAYO: He was in his civilian clothes.

MR CORNELIUS: Yes, what type, what colour? Can you remember?

MR HLATSHWAYO: I cannot remember the colour of the clothes, but he was in his civilian clothes.

MR CORNELIUS: Yes. Was he wearing a hat?

MR HLATSHWAYO: No, all of them did not have hats on.

MR CORNELIUS: Was he wearing spectacles?

MR HLATSHWAYO: No, not at the time.

MR CORNELIUS: And did he have a beard or moustache?

MR HLATSHWAYO: No, he would shave like a normal policeman, because they don't have beards.

MR CORNELIUS: So are you saying because he was a normal policeman, you would think he would shave?

MR HLATSHWAYO: Yes, he was shaved.

MR CORNELIUS: Because he was a policeman.

MR HLATSHWAYO: No, what I'm trying to say is he did not have beard and all of them did not have.

MR CORNELIUS: On what do you recognise the applicant?

MR HLATSHWAYO: He is the person who was talking to me most of the time and he is the person who was speaking to me in Tswana.

MR CORNELIUS: All the other people spoke to you as well.

MR HLATSHWAYO: The person who was leading, it was himself, follow van Niekerk and Smit.

MR CORNELIUS: But Mr van Heerden was a junior ranking constable, the other people were all higher ranks than him.

MR HLATSHWAYO: I cannot comment about that because I was not in the police force.

MR CORNELIUS: Who accompanied you when you pointed out the groceries?

MR HLATSHWAYO: As I have mentioned, when they came to me, they had already broken into the house because my wife was in town, they broke the kitchen door and Solomon Mahlangu pointed at the groceries. When they came to me, they had already taken the groceries. We moved from my workplace to John Vorster and they had the groceries with them at the time.

MR CORNELIUS: Who brought the groceries to your house?

MR HLATSHWAYO: It was Solomon, Lucky and Monty, the three of them.

MR CORNELIUS: What was wrong with the groceries?

MR HLATSHWAYO: There was nobody at that house, they decided to leave it at my house, that's how the groceries landed at my place.

MR CORNELIUS: Yes, but Mr Hlatshwayo, what was wrong with the groceries? You get arrested and assaulted, what was wrong with the groceries?

MR HLATSHWAYO: I saw the Omo, Lactogen milk, soap, I do not know what else was in there because these were sealed, these products were sealed.

CHAIRPERSON: Did it later turn out that in these grocery parcels were also weapons or explosives?

MR HLATSHWAYO: After some time I was shown at John Vorster when it was opened and I was show what was inside. I only got that when I was in John Vorster Square.

CHAIRPERSON: Ja, no you didn't know at the time, but later on they told you and they've shown you these grocery parcels and they told you that there were some explosives in, or weaponry or rounds of ammunition. What did they show you, or what did they tell you?

MR HLATSHWAYO: They told me that there were firearms, bombs and a lot of other things. They told me that those were the articles that were left there, it was not ordinary groceries.

MR CORNELIUS: Thank you Mr Chairman. So you were in fact in possession of illegal firearms and ammunition. That was your problem.

MR HLATSHWAYO: The problem was that they said I was associated with the terrorists. I told them that I knew nothing about that.

MR CORNELIUS: It was found in your kitchen.

MR HLATSHWAYO: They found them there because they were waiting for somebody to come and fetch them, they were going to my neighbour's house.

MR CORNELIUS: Did you know in what Solomon was involved in? Did you know that he was an active terrorist?

MR HLATSHWAYO: No, I did not know that.

MR CORNELIUS: Didn't he ever sit and speak to you and tell you about his doings for the ANC?

MR HLATSHWAYO: Solomon Mahlangu, I just saw him for the first time when he came with Lucky. The only person that I knew who grew up in my neighbourhood was Monty and Lucky Mahlangu. Solomon was coming for the first time at my home, the person who left those parcels there was Lucky Mahlangu, the person who talked to me, who wanted to leave those articles at my house and then he would later take them next door.

CHAIRPERSON: Did you know that Lucky and Monty were involved in the freedom struggle?

MR HLATSHWAYO: No, I did not know that. I only knew that they were schooling in Swaziland, that is all.

MR CORNELIUS: You see because I find it strange they trust you so much, they put their bombs and ammunition in safeguarding in your kitchen.

MR HLATSHWAYO: They did not tell me that there were bombs in there, there were no signs that there were firearms or bombs. I only saw these articles when I was in John Vorster.

MR CORNELIUS: You were probably cross with them for leaving bombs and ammunition in your kitchen when you found out, were you?

MR HLATSHWAYO: Will you please repeat your question Sir?

MR CORNELIUS: You were cross with them, they got you into terrible trouble for leaving bombs and ammunition in your kitchen.

MR HLATSHWAYO: I realised it later on, but that was not going to help because I was already in deep trouble.

MR CORNELIUS: On what do you recognise Mr van Heerden now, eleven years later, what feature?

MR HLATSHWAYO: I will never forget their faces. Even if I can see the two of them, I can be able to identify them.

MR CORNELIUS: If you can see what? Repeat that.

MR HLATSHWAYO: I know them very well, van Niekerk, van Heerden and Smit, I know them very well. Even when I was in Warmbaths where I was locked up, Mr Smit and van Niekerk would come and see my living conditions.

MR CORNELIUS: And did you lay a charge of assault against these?

MR HLATSHWAYO: I couldn't do that because at the time I could not do a thing about it and when I came back I had lost my job and I had to stay home unemployed up until today.

MR CORNELIUS: Didn't you later lay a charge of assault?

MR HLATSHWAYO: Where would I institute a case like that because at the time you wouldn't be successful if you were trying to lay a charge against a policeman.

MR CORNELIUS: You could have approached a lawyer.

MR HLATSHWAYO: That did not occur to me. I accepted the situation as it was.

MR CORNELIUS: The other people that were assaulted all approached lawyers and lay charges, all excepting you. Did you testify in the Supreme Court in this matter of Solomon?

MR HLATSHWAYO: Yes.

MR CORNELIUS: Oh and did you tell the Supreme Court about this terrible assault, mention the names?

MR HLATSHWAYO: When we got to Kempton Park, the story was turned around. They wanted to turn myself and my wife into State witnesses. ...(indistinct) was turned around and we were made State witnesses.

MR CORNELIUS: Well that's excellent, then you could really tell the truth because now you're State witness, what did you testify?

MR HLATSHWAYO: I was not involved at that time, only my wife who testified because they said our statements were the same so they decided to let my wife only testify.

MR CORNELIUS: But you should have testified, you were arrested there, it was found in your kitchen, didn't you testify at all?

MR HLATSHWAYO: I compiled a statement, but when it got to the Court, only my wife was called to testify because the State, it was enough to have my wife's statement only because both statements, mine and my wife's statements were the same.

MR CORNELIUS: And in your statement you clearly set out how you were beaten up, as a potential State witness, did you set that up fully in your statement?

MR HLATSHWAYO: In my statement we were relating the story and how did they find the groceries, the issue about the assault was never involved in the statement.

MR CORNELIUS: Why not?

MR HLATSHWAYO: I do not know how do these things work, these legal things work.

MR CORNELIUS: Mr Hlatshwayo, you are asked to give a statement to the State, you are severely assaulted on the scene at their arrival at your work, you are later severely assaulted resulting in some broken bones, which we'll get to still, later on there's a sack over your head, you were shocked, you were beaten about and you don't mention it in your statement, why not?

MR HLATSHWAYO: As I'm saying, I was never called to testify in court, only my wife was called to testify. They just said it was not necessary for me to testify because our statements were the same.

MR CORNELIUS: Don't try and side-step my question. Why didn't you mention it in your statement?

MR HLATSHWAYO: Assault was the first thing and what we are talking about was what happened in court, but I could not testify in court because I was told that it was not necessary for me to testify as my statement was the same as my wife's statement.

MR CORNELIUS: Please Mr Hlatshwayo, don't side-step the issue. I want to know why you did not reflect the assaults in your statement, not why you testified or didn't testify, that is the question.

ADV SIGODI: Sorry, may I just come in here, Mr Cornelius. Who took your statement before you - the statement that was going to be used in court?

MR HLATSHWAYO: It was van Niekerk and Smit.

ADV SIGODI: And did they tell you why they wanted your statement?

MR HLATSHWAYO: ...(not translated)

ADV SIGODI: Did they say why they wanted your statement?

MR HLATSHWAYO: They said they needed the statement for court purposes, but in court I was never allowed to testify.

ADV SIGODI: No I'm not asking what happened in court, I'm talking about the time that you were making the statement that was supposed to have been used in court. So where did they take this statement? Were you at home, or were you still in detention?

MR HLATSHWAYO: I was in John Vorster Square.

ADV SIGODI: Were you still in detention?

MR HLATSHWAYO: Yes, I was still in detention.

ADV SIGODI: Now when they said that they wanted a statement which they were going to use for court, why didn't you mention in your statement that you had been assaulted?

MR HLATSHWAYO: This was the statement about this matter. After that, I wanted to mention that I was assaulted, but they did not give me the chance to do that. I do not know how did that happen, because I know nothing about the law.

ADV SIGODI: In other words, you wanted to mention the assault, but they did not give you the chance to do so? You wanted to mention the assault but the people who had assaulted you and who had taken your statement, would not allow you to mention the assault in the statement?

MR HLATSHWAYO: Yes, that is correct.

CHAIRPERSON: I can't understand the answer because he said: "...(ethnic)" and he shook his head and you say he said yes.

MR HLATSHWAYO: They compiled the statement there, they did not mention about the assault when they were compiling that statement because those were the people who were assaulting me who were taking the statement from me.

MR SIBANYONI: What was the purpose of the statement? Did they tell you why they needed the statement?

MR HLATSHWAYO: Yes, they told me because even my wife made a statement and we were told that it's needed for court purposes.

MR SIBANYONI: Were they asking you specific questions about the statement or they just said: "Tell everything you want to say"?

MR HLATSHWAYO: They wanted me to explain how did these groceries come to my house. I explained that. That was the end. About other details, they did not canvass that with me.

MR SIBANYONI: In other words the statement they wanted from you, was to explain how the groceries came to your house?

MR HLATSHWAYO: That was the only subject, they did not say anything about the assault, I was never instructed to tell about the assault, because those were the people who were assaulting me.

CHAIRPERSON: Right, you know the witness next to you, he was a policeman, Mr Mahlangu, Petrus Mahlangu, sitting next to you, do you know him and did you know him at the time?

MR HLATSHWAYO: Yes, I knew him but he was in kwaThema at the time. I was staying next to his home, but he was in kwaThema.

CHAIRPERSON: Well after you've been released, why didn't you go to him and complain about all these assaults and lay a charge? You've got this contact in the police now.

MR HLATSHWAYO: I did not know that procedure and there was no way that one could lay a charge against a police, you would never be given that opportunity.

CHAIRPERSON: Well perhaps I could give you the advice now. The applicant is not asking for amnesty for assaulting you, you could go to the police tomorrow and lay a charge against him, because we can't give him amnesty for assaulting you because he's denied that he assaulted you and you'll still be entitled to lay a charge against him, next week, or whenever you wish to.

MR HLATSHWAYO: I only got information like that today, but in those older days, you did not have that right.

CHAIRPERSON: No, I'm only telling you what you could still do there.

MR HLATSHWAYO: Thank you very much.

MR CORNELIUS: Did they take your statement to a Magistrate, to sign it in front of a Magistrate?

MR HLATSHWAYO: Yes, I signed this statement at John Vorster Square.

MR CORNELIUS: No, listen to the question. Did they take you to a Magistrate, "'n Landdros" to have it signed in front of a Magistrate?

MR HLATSHWAYO: I am trying to say that at the time they were doing everything, taking advantage of the fact that I did not know anything, I did not know where to sign the statement, how they would instruct ...(intervention)

CHAIRPERSON: No, the only question is, did they take you to the Magistrate or not?

MR HLATSHWAYO: No.

CHAIRPERSON: Well that's the answer.

MR CORNELIUS: Did you not sign a confession?

ADV SIGODI: In fairness to the witness, he may not understand the implications of the word confession.

MR CORNELIUS: I will rephrase it. You did not sign a document in front of a Magistrate indicating that you had knowledge of your illegal possession or co-operation with the arms and ammunition that was found?

MR HLATSHWAYO: No, I was called to sign at John Vorster Square. I took an oath, that was all.

ADV SIGODI: Tell me, was this statement that you signed and when you took an oath, was it read to you?

MR HLATSHWAYO: I was - I took an oath, I was told to raise my hand and sign the statement.

ADV SIGODI: Did you read the statement?

MR HLATSHWAYO: No.

ADV SIGODI: Have you been to school?

MR HLATSHWAYO: I left school at standard 1.

ADV SIGODI: Can you read English and Afrikaans?

MR HLATSHWAYO: No.

ADV SIGODI: Do you know in what language the statement was written in?

MR HLATSHWAYO: It was not written in Zulu, because at least I can read Zulu.

ADV SIGODI: So in other words you did not read the statement?

MR HLATSHWAYO: No, I did not read the statement, because I cannot read.

ADV SIGODI: Was there an interpreter when the statement was taken?

MR HLATSHWAYO: There was no interpreter, I was just told, they read it out to me, that's all, and I was - an oath was administered and that was the end.

CHAIRPERSON: How do you know what was in this statement? You're taking an oath saying it was the truth and you don't know what's written in the statement.

MR HLATSHWAYO: I had no option, because I could not read, no one else was going to read the statement for me.

CHAIRPERSON: Didn't they tell you what's in the statement?

MR HLATSHWAYO: They read it out to me, that's all, I'm not sure whether that was right or wrong, I was made to sign, that's all.

CHAIRPERSON: But you've been asked a minute ago whether they read it out to you and you said no, and now you're telling me they've read it out to you.

MR CORNELIUS: I actually think, Mr Chair, that seeing as we're not applying for amnesty for the assaults, my defence is a pure denial, that it will be a total waste of time to enter into a massive cross-examination as to the exact nature of the assaults, so I'm going to put a blanket statement to him. My client will deny and he has denied that he ever picked you up in Nigel and then subsequently assaulted you.

MR HLATSHWAYO: I am sure that he was present.

MR CORNELIUS: He was stationed at John Vorster Square, but the assault, it seems to me, was perpetrated by Smit and van Niekerk, isn't that so?

MR HLATSHWAYO: He was with them. He was with van Niekerk and Smit, he was present there.

MR CORNELIUS: Smit and van Niekerk were the people assaulting him, is that correct?

MR HLATSHWAYO: He was present, he was involved.

MR CORNELIUS: Answer my question. Were Smit and van Niekerk assaulting you?

MR HLATSHWAYO: All of them were partaking in the assault. As I'm saying all of them were assaulting me. Van Niekerk, Smit and the gentlemen, they were assaulting me.

MR CORNELIUS: What did Smit do to you? You can identify Smit and you will be able to tell us what he did to you. What did Smit do to you?

MR HLATSHWAYO: They were assaulting me. He was also taking part in the assault and Mr van Heerden, all of them were assaulting me.

MR CORNELIUS: Please Mr Hlatshwayo, answer the question. What did Smit do? Did he kick you, did he hammer you, did he shock you, did he choke you, what did he do?

MR HLATSHWAYO: If you assault a person, being a number of people assaulting one person, it's not easy for one to see what method did this person use in the assault.

MR CORNELIUS: Who hit you first?

MR HLATSHWAYO: It's the gentleman sitting next to you, he's the first person.

MR CORNELIUS: He first hit me with the back of his hand as I was sitting next to the door. When he came in, he just hit me with the back of his hand. After I was cuffed, after that Smit and van Niekerk ...(intervention)

MR CORNELIUS: No, stop now. What else did van Heerden do then, bar hit you with the back of his hand?

MR HLATSHWAYO: All of them, after that, they came, the three of them, they started assaulting me, all of them.

MR CORNELIUS: Please don't avoid the question. What did van Heerden do next?

MR HLATSHWAYO: He's the first person to hit me and when the others joined the whole three of them assaulted me, I couldn't see who was doing what, but all of them were assaulting me, I did not get the opportunity to see how did they assault me.

CHAIRPERSON: Were there any other persons, policemen present in the room who also joined in and assaulted you, or were they the only three people in the room?

MR HLATSHWAYO: There were many people, but the people that I saw them doing this, are the three people that I have mentioned. I cannot identify the other people.

MR CORNELIUS: How can you say it's the two people that you've identified? Which two people did you identify?

MR HLATSHWAYO: Van Niekerk, Smit and van Heerden.

MR CORNELIUS: That's three people.

MR HLATSHWAYO: There were other people also, but the people that I can identify, those are the three people, I cannot identify the other people, because there were so many of them.

MR CORNELIUS: And how did van Niekerk assault you?

MR HLATSHWAYO: I was assaulted, I was kicked, I was beaten with fist and after that they put this sack over my head.

MR CORNELIUS: Alright so you don't know how Smit assaulted you, you don't know how van Niekerk assaulted you, but you just know that this applicant gave you one shot with the back of his hand?

MR HLATSHWAYO: They were also kicking me. As I was still looking at Mr van Heerden who was hitting me, the others came and they assaulted me, but the first person to hit me was Mr van Heerden.

MR CORNELIUS: But it seems that Mr van Heerden gave you one shot with the back hand and that was it because after that you don't know who did what.

MR HLATSHWAYO: He did not end there. He came again and he assaulted me and the others came. He continued assaulting me.

MR CORNELIUS: How? How did he continue?

MR HLATSHWAYO: He was beating me with fists, kicking me, I was being kicked like a ball. I cannot say who did this and that.

CHAIRPERSON: Yes. That seems to be the answer. There was a general assault and you can't say who did what, is that correct?

MR HLATSHWAYO: Yes, that is correct, but the people that I could identify are the three people that I have mentioned.

CHAIRPERSON: Ja, they were in the room and you can identify them and he slapped you and then they joined in and then he came in again, but you can't say whether he slapped you then, or hit you with the fist, or whether he kicked you, is that correct?

MR HLATSHWAYO: I couldn't see that because the first person to hit me was van Niekerk, as I was still listening to that, the others joined. I was hit between my eyes, that's why I could not see.

CHAIRPERSON: Ja. Now you told us the first person who hit you was van Niekerk, is that correct, or is that a mistake?

MR HLATSHWAYO: The first person to hit me first was Mr van Heerden.

CHAIRPERSON: Ja, so that was a mistake when you said a minute ago it's Mr van Niekerk, I accept that.

MR HLATSHWAYO: I said the first person to hit me was this gentlemen and van Niekerk and Smith joined later.

MR CORNELIUS: Who put the sack over your head?

MR HLATSHWAYO: This is the gentleman who brought the sack. This gentleman who is here with us, Mr van Heerden.

MR CORNELIUS: And then?

MR HLATSHWAYO: He put the sack over my head. I was shocked. I could not see what was used to shock me but I was shaking, I did not know what was used.

MR CORNELIUS: How many people were in the room?

MR HLATSHWAYO: There were many people. I cannot say for sure as to the number, but van Niekerk, Smit and Mr van Heerden were there. These are the people who were leading.

MR CORNELIUS: Ten people in the room ...?

CHAIRPERSON: Mr Cornelius could I just have clarity ...(intervention)

MR HLATSHWAYO: More than ten people in that room.

CHAIRPERSON: Your client asked for amnesty in connection with the assault on two unknown, unidentified people. You're not going to ask that the unidentified black gentlemen were in fact this gentleman and any other one that may give evidence here?

MR CORNELIUS: No, no you see, that is, this specific incident was in relation to Solomon Mahlangu and the two unidentified black gentlemen ...(indistinct - speaking simultaneously)

CHAIRPERSON: In connection with any other witnesses.

MR CORNELIUS: Yes, if there were any instructions to this nature, we would have made an application for that too, this specific one -we're only asking ...(indistinct) for two black unidentified black gentlemen.

CHAIRPERSON: Yes, I see.

MR CORNELIUS: The only reason why I'm really cross-examining here is because attacks the credibility of my client.

CHAIRPERSON: Ja.

MR CORNELIUS: And then you say there were more than ten people in this room when you were blindfolded, sacked?

MR HLATSHWAYO: There were many people. The person who came with the sack was Mr van Heerden and he's the one who put that sack over my head. After that I was shocked.

MR CORNELIUS: Yes.

MR HLATSHWAYO: With electricity, I cannot say what method was used.

MR CORNELIUS: Yes, but you can't also say who shocked you because you didn't see.

MR HLATSHWAYO: This gentleman had blindfolded me, I could not see anything.

MR CORNELIUS: Yes. So anybody, any of the ten people could have shocked you.

MR HLATSHWAYO: I am talking about the person who put the blindfold on me was this gentleman, because he did not want me to see what was happening.

MR CORNELIUS: Mr Hlatshwayo, we know that but you can't say who shocked you because you couldn't see. You couldn't even identify the voices according to a leading question put by your counsel.

MR HLATSHWAYO: How could I see who was shocking me with my eyes blindfolded?

MR CORNELIUS: Yes, so you couldn't see.

MR SIBANYONI: I wanted to assist. Mr Hlatshwayo, he asked you, as you were blindfolded you couldn't see, it's either yes or no and that will save time. You see if you answer that in that way, then he would move forward, but if you say: "How would I have seen because I was blindfolded", you may think you are giving an answer but in terms of cross-examination directly it's not an answer. If possible, if the question needs an answer yes, or an answer no, if you can resort to that you'll see it will assist you even. Do you understand what I'm trying to explain to you?

MR HLATSHWAYO: Yes, I understand. Thank you.

MR CORNELIUS: Thank you Mr Sibanyoni. And when the blindfold was taken off, they were gone, because another black man came and took the blindfold off, is that correct?

MR HLATSHWAYO: Correct, yes, they had left. A black person came to remove the sack.

MR CORNELIUS: So you don't know who assaulted you?

MR HLATSHWAYO: I cannot say who shocked me. I would assume the person who beat me up and others are the ones.

MR CORNELIUS: Yes, but you are presuming, you don't know, you won't be able to point anybody out, so it's impossible to say who assaulted you while you were blindfolded.

MR HLATSHWAYO: You see, when you blindfold a person and then assault him thereafter the simple assumption is that it is you who is continuing with the beatings and the assault.

MR CORNELIUS: The assumption is also that there are ten other people in that room and you can't make a simple assumption, that is the problem. So you agree that you can't say who assaulted you, the answer is yes.

MR HLATSHWAYO: Yes, there were many people in the room, but one person who came with the sack and put it in my head was this very same person.

MR CORNELIUS: Thank you Chair.

NO FURTHER QUESTIONS BY MR CORNELIUS

CHAIRPERSON: Thank you.

MR MAPOMA: I have no questions, Chairperson, thank you.

NO QUESTIONS BY MR MAPOMA

CHAIRPERSON: ...(indistinct - mike not on)

MR RICHARD: I have two questions.

CHAIRPERSON: ...(indistinct - mike not on)

MR SIBANYONI: I have no questions Chairperson.

CHAIRPERSON: So you don't have to deal with our questions. Right so there are no questions so you could continue with re-examination.

RE-EXAMINATION BY MR RICHARD: After your assault and electrocution at the hands of the policemen in John Vorster Square, did you trust the police?

MR HLATSHWAYO: Not at all.

MR RICHARD: If you made a complaint to the police about your torture, what do you think would have happened? What do you think they would have done?

MR HLATSHWAYO: You see at the time you would not lay a charge against a policeman.

MR RICHARD: No further questions and that is my case.

NO FURTHER QUESTIONS BY MR RICHARD

WITNESS EXCUSED

CHAIRPERSON: No further witnesses?

MR RICHARD: No further witnesses. No it will become repetitive and not take it any further.

CHAIRPERSON: Thank you. Could we hear argument at this stage and, what's the time now? I see it's already half past twelve. I saw a gentleman sitting here waiting for another application to begin. If you could get in touch with him, I'd like to start with that application at half past one. We'll adjourn as soon as we've heard argument in this one. He can be excused up to then, if you could send him a message.

MR MAPOMA: I'll do that Chairperson, thank you.

CHAIRPERSON: Yes, Mr Cornelius.

MR CORNELIUS: Thank you Mr Chair.

MR CORNELIUS IN ARGUMENT: Mr Chair, if we look at the application at ...(indistinct) Johannes van Heerden, we've actually got three applications, ...(indistinct) Lucky Mahlangu and the Makoti matter. We do not proceed with the IFP weapons and the other matter as well. That will be resolved I think, when I've negotiated with the TRC on that because I think there are various notices which should be given to implicated parties and there are various applicants which are also ...(intervention)

CHAIRPERSON: No, we accept that. Fine.

MR CORNELIUS: So we are only addressing then Cafe Zurich, Mahlangu and Makoti.

CHAIRPERSON: And Cafe Zurich would be the assault on George.

MR CORNELIUS: That is correct, George, Nomsa and Phosa CHAIRPERSON: And Edward Makoti and the two unknown. Right. Could you first deal with George and the Zurich one and then with Edward and at the end deal with the Solomon Mahlangu.

MR CORNELIUS: I'll do so, Chairperson. Formerly, just in a blanket address, it is my submission that my client fully complied with the requirements as set out in Section 18 of the Act in that it was formally filed in the formal notices, he co-operated fully with the investigation team of the Truth and Reconciliation Commission. It is furthermore as envisaged as an applicant, he is an applicant as seen in Section 20 (2) (b) and Section 20 (2) (f) of the Act and the 20 (2) (f) is further supported by the fact that there was no disciplinary action ever taken against him for his participation in these matters.

What I want to Commission to pay specific attention to, is the fact that he was approached by Goldstone Commission. He was placed under the witness protection team. He in fact, with a certain chap Holtzhausen and a Willie Nortje, were moved to Denmark where they were kept for a considerable period of time in protection from their own comrades, as he was one of the chief witnesses accompanied by Willie Nortje, against Eugene de Kock in the exposure of the atrocities committed by Vlakplaas. Now the reason why I'm mentioning this is to indicate if we're going to make any suggestions towards the credibility of my client, that he has no reason to hide facts, or he has no reason to not want to co-operate with the Truth and Reconciliation Commission. It should also be taken into account and it's well-known that there was very little time allowed for the drawing of all the statements to the Goldstone Commission, as there was incredible pressure up until the signing, I think the signing was in Mauritius, if I ... in Copenhagen, that's where the documents were signed. Thereafter my client fully co-operated with the Attorney-General in the prosecution and the final sentencing of Eugene de Kock. He has on previous occasions made full disclosure in murder cases, which I've personally attended to where severe torture was afflicted, where the people in fact died and he has not hidden one fact, especially in the matter of Moses Ntalang, who was an askari who was murdered in the canteen at Vlakplaas. That was I think it's a case that really tried his credibility to the utmost.

No disciplinary inquiries were ever initiated against him for any of these matters before this Committee today. It is my submission that he did have a clear political motive and objective. He was a supporter at that time of the Nationalist Party and he carried the interests of the Government in rule at that time on his sleeve and that was his motivation. He was a policeman and he felt he was fighting against the ANC Alliance in protection of the country.

CHAIRPERSON: The only real problem you may have is whether he made a full disclosure.

MR CORNELIUS: Quite correct.

CHAIRPERSON: In this particular matter of Solomon.

MR CORNELIUS: Yes.

CHAIRPERSON: The other - what he said in the other things was not attacked.

MR CORNELIUS: Yes, as a matter of fact there was no attack in the matter of Cafe Zurich.

CHAIRPERSON: So would that be your submission as far as the other matters are concerned?

MR CORNELIUS: Yes, that's quite correct.

CHAIRPERSON: I'd like members of the Panel to put any problems we may have in connection with the other matters before we deal with the Solomon matter.

MR CORNELIUS: That will suite me fine, Mr Chair. I do have a terrible hum on my machine here. Thank you.

CHAIRPERSON: What about the fact that we're dealing with a Dlamini and a Nomsa and a Phosa who figured in another matter?

MR CORNELIUS: I don't think that it changes the picture in this respect. If you look at the amplified information given by the applicant on Nomsa and Phosa, addresses, where they worked, they worked at I.G.I., he knew exactly where they were, who the victims were.

CHAIRPERSON: Could you help me, I see I've missed it in my note. Where were they arrested?

MR CORNELIUS: They were arrested in Dube if I remember correctly.

MR VAN HEERDEN: Nomsa, the two ladies were arrested in Berea. Mr Chair, just for your ...

CHAIRPERSON: Were they arrested in Berea?

MR CORNELIUS: They were arrested in a flat in Berea and in Pretoria, we indicated to Capt Zeelie at a previous appearance, where they might trace Nomsa and Phosa with full details, and we also gave it to the Investigating Officer of the TRC in an effort to trace them and they are traceable according to us, but we did definitely not arrest the one lady in Badplaas, that we are quite certain of.

CHAIRPERSON: Ja, thank you.

MR CORNELIUS: So as far as Cafe Zurich is concerned, it is my submission that although offences were committed, it was the exercise of the day to obtain information from the people, they were in serious search of Peter Dlamini, they did in fact extract evidence and information from Geroge, which led them to Phosa and Nomsa and from there he handed the investigation over to Zeelie to carry on with and that is the last we heard of it. Shortly after that I think he left the Force. No, he was transferred to Vlakplaas, that is what happened. The Peter Dlamini that was subsequently arrested it's clear ...(indistinct) HRV statements.

CHAIRPERSON: ...(indistinct - mike not on) Sorry, you're appearing in the next application? You've been out and I've ruled that we'll start with that application at half-past one.

MR CORNELIUS: So it is my submission that my client would then definitely qualify to be granted amnesty for Phosa and Nomsa and Geroge's assaults. There was a clear political motive attached to the assaults and he did succeed in the ends that he was seeking. Eventually some of the family members were in fact prosecuted in terms of the Act on terrorism and he had a clear political motive there. I can't really take Cafe Zurich much further.

There was a retaliatory attack on the Why Not bar which followed this, but that was a subject for quite a different amnesty hearing than this one, which has already been finalised.

CHAIRPERSON: ...(indistinct - mike not on) in the Solomon case, he admitted that he assaulted Solomon.

MR CORNELIUS: Yes, that is correct Chairperson, he admitted, in fact, well in his amnesty application as a matter of fact he started off with Lucky Mahlangu, but it was quite clear that there was confusion and if we look at the annexures annexed to the bundle ...

CHAIRPERSON: Yes, we accept that.

MR CORNELIUS: It's clear that he escaped and he in fact, in his evidence-in-chief, said he did assault Solomon.

CHAIRPERSON: But the Solomon Mahlangu incident involved other people too, other people were arrested.

MR CORNELIUS: Involved various other people. Regarding the follow-up operation there were other people arrested and I'm quite certain there were further assaults carried out on Solomon, but not by this applicant. That is quite clear.

CHAIRPERSON: Yes and what about the other suspected people being arrested, what - didn't your client take any part in that?

MR CORNELIUS: No, he did not participate in any further torture or assaults or anything on the balance of the people that were arrested at that time. He says in his application on page 24

"Tydens ondervragings is die persone aangerand",

but he was not part and parcel of that.

Once again in this matter Mr Chair - I beg your pardon, Adv Sigodi?

ADV SIGODI: Ja, his evidence was that after assaulting Solomon, he went out and he was given instructions to go to Park Station and to the taxi rank and subsequent to that he was never involved in the investigation concerning that he knows nothing that happened afterwards.

MR CORNELIUS: Thank you Adv Sigodi, that's exactly what the evidence was, I recall it now. Yes, and that's why he wasn't involved.

ADV SIGODI: But now we have people from the Defence or if ...(indistinct) from the victims' side who's saying that he was involved in subsequent investigations, that is the arrest of Mr Absolom Hlatshwayo, the others, Petrus Mahlangu including the assault, now the problem that the Committee would have in that respect is whether or not, when he says that he only slapped Lucky and went to the taxi rank and to the Park Station and we have people who are saying that he was involved in a subsequent investigation, whether or not he has made a full disclosure insofar as the arrest and assault on Lucky Mahlangu is concerned. That is the problem that the Committee will be having.

MR CORNELIUS: Well, let me, if possible, alleviate the problem of the Committee. If we look - we have two sets of circumstances. The one says he was there present, he did assault the other witnesses, our version is we were not there. We left the Park Station, we only assaulted Solomon Mahlangu and that was the end of the story. Now to evaluate the facts, if the people were in fact there or not, we will look at the witness who testified. If we look at the testimony of Petrus Mahlangu, we'll have to make some type of a credibility finding. Petrus Mahlangu said he tries to place van Heerden on the scene. van Heerden committed no assault on Petrus Mahlangu and his testimony is purely called to say that he saw van Heerden on the scene. Then he comes with a strange version, he says that van Heerden take over total control, gives instructions, questions, makes inquiries to Solomon, but where it's clear and we can't just make it off as if it doesn't exist, the applicant at that time was two months a constable there, there were senior officers there, there were a multitude of people. It's quite clear that quite a large amount of chaos existed at the time when this investigation was being investigated. We've got Struwig there, we've got Cartwright there, various people mentioned in the documentation and in the Court trial and here it's trying to be made as if my client in fact controlled this whole investigation, he gave instructions, shunted the people around. He testified, he said: "I was a constable, I couldn't do that, I wasn't the chief investigator in this thing, I was new at the branch, I couldn't give orders and move the people around" and then furthermore we've got this massive problem with I.D.

Now there's trite law and many decided cases on identification. Now if we look at Petrus's I.D. of the applicant, it's no positive I.D. He says they all ...(indistinct), I had quite a battle with him to get this out of him. They wore jeans, they were in civilian clothes, he can't - he had short hair, he can give no positive feature as an I.D. This took place eleven years ago. What a difficult position the applicant is placed in. He comes to the Amnesty Committee, he sits at a long table with his lawyer with a multitude of witnesses on the other side. I don't definitely look like van Heerden, I don't think the police wore bow ties at that time, but obviously they're going to point to him and they're going to say: "But this is the man, this is him" and there's two reasons why this is important: here's an application for amnesty, there will be a declaration of victims, there will be evaluation made for compensation possibly ...

CHAIRPERSON: But is that correct? If he's not applying for amnesty in regard to them, they were not victims in regard to the Act for which he is applying, if we deal with it as an attack on Solomon, then the others, although associated with that incident, can we declare them to be victims in the instance where we give amnesty?

MR CORNELIUS: I think what my learned colleague, I don't want to argue on his behalf, would say is that they were associated in the investigation and they got hurt and damaged as part of the investigation by van Heerden, so what I'm saying, if we then say it is van Heerden, you've got ...

CHAIRPERSON: But if we declare them victims and I think Mr Richard you should address us on that, they would have a civil claim still against the police, the Government, against van Heerden and they would get compensation as victims.

MR CORNELIUS: Correct, correct bar if my amnesty application is obviously totally refused, I think then that will all become operative and I won't be absconded from the civil claim either.

CHAIRPERSON: Yes, but if you're applying for an assault on them, which you're not doing,

MR CORNELIUS: No, I'm not.

CHAIRPERSON: And we could say you didn't make a full disclosure, then in that instance them could declare him still to be victims and maybe even in this case we could declare them to be victims because of the association. I'm not clear, I'd like to get assistance from the legal representatives.

MR CORNELIUS: Yes, I think if they - I don't know how wide your ambit can go, if you can declare them victims, because if they're not, their claims would prescribe. It's some years ago, but if they are brought in under the Act, then obviously the prescription problem is no longer and issue, so the civil effect will be ...(indistinct)

It is my submission as far as Petrus Mahlangu's evidence is concerned, that he gave poor evidence on the identification of van Heerden. The possibility strongly exists that he could be confused with any one of the other young policemen who were there, who also wore jeans. If the jeans are the main factor, then there's confusion. That being the case, it can not then be said that the applicant is not right in saying: "But I went to Park Station, I did not get involved any further, I left".

A further issue that indicates that van Heerden is telling the truth and making a full disclosure, he's the only applicant. There should have been a multitude of applicants here, at least ten or 12 applications. Nobody else applied, he was the only one that said: "I know about this and I did it". Now why wouldn't he then amplify it a little bit and say: "But I also assaulted Hlatshwayo"? There's no reason whatsoever why he shouldn't do that.

Then as far as the witness Hlatshwayo is concerned, I see he's a bit older, but it is logical that Nigel Security Branch will go and fetch the people there, why would they send a constable with a whole brigade down to Nigel to go and fetch him? Once again van Heerden's an easy target. Hlatshwayo looks up and says it's him. I asked Hlatshwayo about the i.d. There we find a bigger problem than we got with Petrus, he can't even remember what he wore. He can't remember the clothes, he can't remember the colours, he can't remember any distinguishing features on his face and really on that basis, just to say: "I know him", there are many decided cases, is not sufficient identification.

Once again, why would the applicant deny assaulting him? There's no reason whatsoever for him to do that. And if it ever came to his mind that he did assault him, I would have applied for the assault of two unknown persons. My client is emphatic. He said: "I never assaulted him". The evidence of Hlatshwayo was confusing. He can't remember. He can't say who assaulted him. He just knows van Heerden definitely hit him once and thereafter all chaos broke loose. We find this strange contradiction, after he was assaulted at his house, when he gets in the car with van Heerden, which is denied, van Heerden gives him a cigarette. The two don't tally. The fact that Hlatshwayo made a statement, to be used as a State witness and he mentions no mention of the assault at all, if he came along and he said: "But look, I was threatened by van Niekerk and Smit, if I say anything about these assaults..."

CHAIRPERSON: Mr Cornelius, suppose he would give a statement to the police that he'll be a State witness and in that statement he would say: "I've been assaulted", would the court then accept that he made this statement out of his own volition and that it's the truth in this statement?

MR CORNELIUS: Most definitely so. I, over the past, led evidence on many statements where my State witnesses were assaulted and as a matter of fact, it proves more the credibility of that witness than somebody who says he was not assaulted.

CHAIRPERSON: If afterwards he would confirm this statement.

MR CORNELIUS: Yes.

CHAIRPERSON: He says: "Well, initially I've given this statement, maybe because I was assaulted, but I stand by it".

MR CORNELIUS: Yes, I stand by - "That is what happened, I'm giving a factual situation, exactly what happened", and that's the problem I've got with Hlatshwayo's statement. he kicks off with an assault. When they got to his house, he was assaulted there and that led to certain things, so he would obviously say: "I was beaten up and then I showed them the groceries. I was beaten up and I was then asked: 'Where's this and this and this?' What do I know about this and this and this?" So he won't say in his statement: "I voluntarily decided not to tell them", or "I decided to tell them I know about the groceries", or whatever, he was beaten, that was part of his statement, that's how the statement ran.

CHAIRPERSON: No, but in his evidence he said he didn't know even that they had been at his house, he only ascertained that later.

MR CORNELIUS: Yes, but he was beaten up there to obtain information which is so closely knit into his statement, I think it's very difficult for us to undo.

CHAIRPERSON: Right.

MR SIBANYONI: Apparently the people who took down the statement from him are the very same people who assaulted him.

MR CORNELIUS: That's what he said. He said it's van Niekerk and Smit.

MR SIBANYONI: Now my question is, will that be easy for say to start by writing down that you assaulted me before I explain how the groceries came to my house?

MR CORNELIUS: Well it depends. If they decide to use him as a State witness, I don't know if they - there's no indication, if he said, van Niekerk said: "You don't mention anything about the assault", but that's not his testimony.

ADV SIGODI: But Mr Cornelius, we must be mindful of the reality of the situation. We all know what the situation was like in the olden days and when this statement was taken, this man was in detention and he is not a sophisticated person to know what he should put and what he should not put into the statement, that is the reality of the situation. Now can we really expect him to say to people who have assaulted him that: "Look I was assaulted" and they want a statement which they are going to use in Court, the reality of it.

MR CORNELIUS: I make reference to this because I find it strange, but I mean I would have found, if he was threatened to leave it out, he would have made mention in his testimony-in-chief today about it. There's no mention made that van Niekerk or Smith said: "You don't put it in", because that's his perfect opportunity today to say. I mean at that time, I quite agree with you, it might have been difficult, he might have been scared to put it in, but today is a different situation.

That is as far as witness Hlatshwayo. I thin the other witness Shezi testified regarding the other issue of Mokati. Yes.

So as far as to sum up where Solomon Mahlangu is concerned, it is my submission that the Committee can find that he in fact hit Solomon Mahlangu through the face with the open hand a couple of time and with the fist and that was the end of the assault. You must remember this took place in the warehouse, he was thereafter taken out the warehouse to some floor on the John Vorster Square, so this is not something that took place all in one room, which would obviously make the situation different.

Is there anything specific...?

CHAIRPERSON: ...(indistinct - mike not on)

INTERPRETER: The speaker's mike is not active.

CHAIRPERSON: Perhaps you should deal with Ms Shezi's evidence too.

MR CORNELIUS: Okay. Ms Shezi gave evidence as far as this Mokati, Edward Mokati is concerned.

CHAIRPERSON: Ja.

MR CORNELIUS: Now once again here my client is the only applicant out of quite a large group of apparently senior police, people like Struwig and van Wyk, Niels van Wyk whom he referred to, but we're the only applicant once again and we are placed in a very difficult position as far as identification is concerned because here we sit. Now the only thing we can do then is to look at Shezi's evidence. Now Shezi says they were sleeping when approximately 10 white people arrived. The assault took place on her. Her mother said: "Go and kill her somewhere else" and then she says the person she can never forgive is Mr van Heerden, that was etched into her memory for the rest of her life. The only thing that makes her identify van Heerden today is that etched picture and the name Mr van Heerden.

Now it's quite - we can accept that in any police force, he was a constable at that time, the chances of anybody calling him Mr van Heerden in a scene where an attack is taking place, the door is being kicked down and then calling Mr van Heerden, I think is ludicrous. Furthermore he is well known in the police, even at that time, as Brood. For what that's worth, that is what he was normally called. He denies that he ever assaulted this woman. She says van Heerden fist slapped her, she fell to the ground, they all came to her and an attack took place. She's not sure if he continued, van Heerden continued to assault her when the others started assaulting her as she was protecting her face. So there we have a slap and she fell to the floor.

She doesn't know to which police station she was taken. She says it was a stressful situation but she doesn't know if it was Sandton or John Vorster Square, which I also find strange. She doesn't know the name or can't describe the person who was the inquirer that in fact directed questions to her, but she says that she can remember Sam who cuffed her hands and her feet, but strangely enough she's got no issue with Sam. His face is not etched into her mind. He cuffed her. I mean he immobilised her so she couldn't defend herself, but she's got no issue with Sam.

CHAIRPERSON: But in this case he's also not applying for amnesty and she would be still - could go and lay a charge today even for the rape that occurred, if she wants to.

MR CORNELIUS: Yes, correct.

CHAIRPERSON: The only thing is whether this is also so closely associated that it could affect his credibility as far as his main application in this regard is concerned.

MR CORNELIUS: Yes, she's welcome. As a matter of fact I find it extremely strange that the legal counsel at that time that she consulted and I was also practising at that time and I knew what I could obtain by pushing legal issues in the government and I find it extremely strange that she didn't approach - nothing was done, nor did she go to the Black Sash Association, put pressure on people, there was absolutely nothing done by her legal counsel to cash or promote a prosecution on the perpetrators of a hideous rape, a terrible assault, it was just left and as a matter of fact she came along and she testified before this Committee that she decided to just let it go, which I find totally unacceptable. Then she says van Heerden put leg irons, a white sack was put over her head, van Heerden was present. Then Sam takes her and he utters words and he warns here: "You better talk" in Zulu, he says: "You better tell us the truth." They take her out to another room and there we have the problem of now we don't know who attacked who and what's going on. The strange thing is that all the people that spoke to her, spoke to her in Afrikaans and it was testified and it was not contested that my client always spoke in the black languages, fluently and cross-examined in black languages, so the Afrikaans speaking guys, and she couldn't identify his voice either, it's quite clear that my client was not present in the room at the time the assault took place. She couldn't see anything, she said she felt objects like needles, that might be the effect of the dynamo, she doesn't know who did it and she conceded van Heerden might not have been present. She says that she suffocated and she bit her tongue.

ADV SIGODI: Mr Cornelius I asked the applicant if he had ever - I can't remember if I asked if he'd ever tortured but the question came on the torture of women and he said he's never tortured a woman in all his life as a policeman, he only went as far as assaulting a woman and he tried to bring a distinction between an assault and a torture, saying that slapping is an assault, so when you torture, it's when you put the electric shocks and all that stuff. Now according to Ms Shezi and this is a problem I'm having with the full disclosure aspect, she says he instructed Sam to put the cuffs on her, he instructed Sam to put the sack on her, he instructed Sam to take her to the "waarheidskamer". Now we all know what happens in the "waarheidskamer", now wasn't he party to the torture of Ms Shezi and can you say he has made a full disclosure insofar as torturing women, if he says that he only went as far as the assault.

MR CORNELIUS: Yes, that is only Adv Sigodi if you find that my client's denial can be rejected because you must remember you are now saying you're accepting Shezi's evidence that - no I'm just saying to you ...(intervention)

ADV SIGODI: I'm not accepting any evidence, I'm just asking on the basis of what she has said.

MR CORNELIUS: On the basis of what she has said, if her evidence is accepted that he gave instructions, he moved her, he put her in there, he was present when she was shocked, sure he's a co-perpetrator, there can be no doubt about it but what I'm indicating to the Committee now is that her evidence is so suspect and weighed up against my client's evidence and that's two single witnesses. We mustn't forget the evidential aspect of this either, that you cannot find that the evidence of Shezi is credible. There's a doubt created in the mind of this Committee and that doubt should swing in the favour of the applicant, because there was nothing stopping the applicant applying for this assault, if he knew about it, but there's evidence before this Committee that there were various assaults carried out by various people in different rooms, they were taken in and out of the cells. There were assaults going on, there was a crowd in excess of ten, fifteen policemen there all torturing people and if this lady's evidence is true, they raped her. Now what I understand ...

ADV SIGODI: But you do accept that she was arrested and detained under Section 29, kept at Sun City for six months or so, do you accept that?

MR CORNELIUS: I can't deny that, but you know a Section 29 detainee is visited by a District Surgeon every 14 days and they I would have expected quite a good trail, paper trail for the TRC to follow up to support her allegations if it's so, because she must most definitely have suffered damages as a result of the rape, blue marks, scratches, whatever. I didn't for the pure sake of the victim's case, go into great detail regarding the rape.

ADV SIGODI: Ja but I suppose that is why we're having the Truth Commission to unravel some of the things that ought to have happened, but did not actually happen.

MR CORNELIUS: Yes, no I quite agree with you. My client emphatically denies he was present and obviously that he did not rape and then we find what makes Ms Shezi's evidence more suspect is the fact that she went to an attorney and had all the rights to investigate this matter, further this matter with the Minister and Commissioner of Police, he could have approached the Attorney-General of Transvaal, he could have initiated various actions, there was the State Attorney, there were various venues for them to use to make certain the prosecution does take place, but that was not done. It's my submission that if we do accept that there was an assault on Ms Shezi and a rape on Ms Shezi, it is my submission it was not committed in the presence of my client and not, definitely not within his knowledge and I think that fact we can find in all clarity because when the cover was removed from her head, he wasn't there. But aren't the rapists' faces etched on her mind? Why can't she remember those? I mean, that was one of the worst things that happened. So I'm saying, on the basis of single evidence, we're entitled to the benefit of this doubt that is created.

What my client well does admit, he says: "I did assault two people" and he explained in detail how he assaulted them. Two black people, two black men, he doesn't know their names and he's applying for amnesty for the assault on these two black unknown men. He did not assault Edward Mokati and as indicated on page 30 of the documents, it was also in the Supreme Court hearing clearly indicated that he was not involved in the assault on Mokati.

That basically sums up my argument Mr Chair. I'll then ask for amnesty to be granted as prayed.

CHAIRPERSON: It seems as though I've underestimated or overestimated the - our capability of finishing before lunch. I thought we'll finish rather early. We would then adjourn now for lunch and we'll resume at 2 o'clock and not half-past one and we'll have argument from you and other argument.

MR RICHARD: Thank you.

COMMITTEE ADJOURNS

ON RESUMPTION

CHAIRPERSON: ...punctually before time.

MR RICHARD: Thank you Chairperson. May I proceed?

CHAIRPERSON: Yes.

MR RICHARD: Thank you.

MR RICHARD IN ARGUMENT: The first thing that needs to be observed in this matter is the nature of the opposition and in that regard I immediately turn to Ms Shezi's evidence in the Edward Mokati incident. Her version is that yes, she was one of the suspects, or as he calls them "verdagtes", that were detained and interrogated as a result of Edward Mokati's information and that unlike what the applicant says, a gross human rights violation did eventuate and she was tortured. In other words, in her case, if she is believed, it is plain that the applicant has not made a full disclosure or an honest disclosure and is not entitled to amnesty.

CHAIRPERSON: But on her version even, she didn't implicate the applicant in the rape for instance.

MR RICHARD: On that point I would argue very simply. If a man either, depending on which incident, puts a sack over somebody's head or instructs somebody else to put a sack over the victim's head and then immediately thereafter that person is tortured and/or raped, there's one compelling inference that can be drawn and no other inference, that the person who put the sack on, did it with the deliberate and calculated intention of making sure, as is the common practice of torturers, of disabling the victim from giving evidence further and that act of putting a sack over the victim's head is a sufficient act of association and it's sufficiently evidential of the state of mind of the person who did it, to associate that person with the consequences of the person being unable to ...(intervention)

CHAIRPERSON: No, but there were two different consequences. The one was a sack over the head in order to torture her, the other a later rape.

MR RICHARD: Also with the sack over the head.

CHAIRPERSON: Yes, that may be so, but could you say he might have had the intention of blindfolding her so that she couldn't see who's assaulting her, but could you really say that you should draw the inference that he would have foreseen at that stage that she would have been raped, if she's been raped by totally four other people?

MR RICHARD: The argument is that the torture and then the rape were consecutive events, not separated in either geographic space or time.

CHAIRPERSON: Yes, she was raped in another cell, in another room at a later stage.

MR RICHARD: How much later?

CHAIRPERSON: After the assault.

MR RICHARD: Certainly after the assault, but not long after. It wasn't as if there was a day or two or an hour or five, separating the two events.

CHAIRPERSON: Well, we don't know. Not a day or two, but it might have been an hour or so.

MR RICHARD: So certainly, she is in the situation that in fact the vast majority of victims of police abuse and torture find themselves in. She can give completely credible and coherent evidence about what happened to her, but she cannot give evidence as to who did it, because of the very tactics that ...(intervention)

CHAIRPERSON: We've got in every case almost, I may be able to say I've been assaulted walking out of this building this afternoon and I wouldn't know who's done it.

MR RICHARD: Yes, but if I walk out of this building and go to my motor vehicle, I do not do it with a sack over my head and in proximate time to ...(intervention)

CHAIRPERSON: But would you then suggest that once you, suppose a blind man would be assaulted, that the inference would be anybody in the vicinity is guilty of that assault?

MR RICHARD: We have a very special situation. It's trite law to say that a detainee in the hands of the police is the object of a custodial duty of care on the part of the police.

CHAIRPERSON: Yes, I agree.

MR RICHARD: Here we have a closed environment where other than other suspects or accused and maybe some complainants ...

CHAIRPERSON: Would all the police in the building be guilty?

MR RICHARD: Well, all those police starting with the person who was instrumental in putting the blindfold on, unlike the blind man who suffers from a personal problem, that questions must be asked as to why that person was disabled from being able to give evidence as to what went on. There's a person who disabled the person from knowing, the victim from knowing what happened further.

We've all and unfortunately due to the past, been part of investigations into torture. We know that the first problem is the extreme difficulty that the complainant has in getting an investigation going. The complete culture of denial and ...(indistinct - speaking simultaneously)

CHAIRPERSON: We're accepting, for argument sake, I'm accepting that she's been tortured, I'm accepting that she's been raped. Now it's a question of whether the applicant tortured her and whether he raped her.

MR RICHARD: I can give no direct evidence through Ms Shezi, that the applicant raped her. She could not see who was in the room around her. Why she could not see was because the applicant disabled her from being able to see. It's his act that disabled her from being able to give evidence as to who was doing what to her.

CHAIRPERSON: And because of that, he's guilty of rape?

MR RICHARD: Well the inference is why would he disable her from seeing?

CHAIRPERSON: From seeing who tortured her.

MR RICHARD: And the rapists.

CHAIRPERSON: No, not necessarily.

MR RICHARD: Why should the rape and the torture be separated? Why - you know ...

CHAIRPERSON: Well it was what was in his mind when he blindfolded her. He was never asked whether he had foreseen that she could have been raped when he blindfolded her, if he blindfolded her.

MR RICHARD: Now the first question that I thought of as I made my notes was in an amnesty hearing, what is the evidential onus resting on who? It's not a question of onus. That's been argued until we've all become more than familiar, but at the end of the day the question is, what is on the balance of probabilities, that's a question that the Committee must address to itself. Now when it comes to questions of identity, argument about what may be proved beyond a reasonable doubt is completely irrelevant. That's not the test. It's not applicable. What inferences may be drawn, is relevant. Now with regard to the rape, I have no difficulty in conceding that there is no evidence directly linking the applicant to the rape. There was a movement from one room to the next, she can't say who followed from where to where, so that means it may well be that on a balance of probabilities his involvement in the rape is not established. However I can also argue that by his act of disabling her, the inferences are that he foresaw what else might happen to her and deliberately did not want ...(intervention)

CHAIRPERSON: Can you argue that in the event that you didn't put it to him?

MR RICHARD: The question's put on the basis that there is no evidence to directly link him to the rape, but that the rape did happen. He denied all and any involvement in the rape. He said he was not associated. In fact, he denied assaulting the applicant in the first instance, in other words, once his denial was on record that he had no involvement with the victim, what further needed to be put to him is nothing at all. He denies ...(indistinct), knowing the victim. There's no need to put various permutations of cases to him because he's denied everything.

Now in Shezi's case, the victim Shezi, the next question is if she's not going to be put to the test of proving a case beyond a reasonable doubt, what has been established? Now without going into a mass of learning, there are huge difference in the civil test of balance of probabilities in the criminal test of beyond reasonable doubt. Nowhere in her evidence or for that matter in the next incident, did people rely on saying: "I identified that person because he had a particular scar over his left eye". There was no such evidence to rely on. In Shezi's case it was: "I saw him, he spoke to me, I remembered his face". On the balance of probabilities, there's no reason to disbelieve that version, it's not inherently dishonest, she was undergoing a traumatic and highly memorable unfortunate experience and the leader of her torturing is somebody whose face she would remember.

Now the memory of somebody's face isn't dependent on particular characteristics like scars or moles or eye colour. In the ordinary course we recognise people as has often been observed in cases, without such particular incidents and particular aids. The power of human recognition of the human face, is far more than simply being able to recall a particular characteristic. What I say is that well certainly on a beyond reasonable doubt test, questions could be raised if this were a criminal prosecution, but it's not. A comparison between a criminal prosecution and these proceedings, is most inaccurate. The question is whether it's beyond the powers of that particular witness to recognise somebody and whether that witness is honest or not. Now when I relate Ms Shezi's evidence, can it be faulted on any of the normal tests that would attack credibility? What was her demeanour? My submission and argument is her demeanour was impeccable. She gave evidence in a clear, unembellished, concise manner, she did not attempt to improve her case when she could not, as is evidenced by the argument regarding what happened after she was blindfolded. However, what else can we criticise her for? She was not contradictory, she was not vague.

Now instead to weigh her evidence against the applicant's, while its not germane to the Edward Mokati issue, I point to one clear glaring inconsistency in his evidence and that is in the Cafe Zurich matter, when he talks about three individuals with identical names, two of whom are married to each other, who are identified by the information given to him by one George. I believe that his answer that the victims of that torture must be somebody else who coincidentally have the same names, is patently preposterous. That degree of coincidence stretches anyone's imagination and clearly his answer evidences a desire to be dishonest and to cover up ...(intervention)

CHAIRPERSON: Now Mr Dlamini is sitting there. He's saying: "I have not been tortured by this man."

MR RICHARD: Mr Dlamini, I was not briefed by Mr Dlamini, so I can't speculate as to what ...(intervention)

CHAIRPERSON: No but he was here and what evidence is there that that's not the position?

MR RICHARD: I can only speculate and say that by the same token as others who had sacks over their heads, I didn't know who was doing what to me, I can't speak for Mr Dlamini as to why he made the statement that he was not ...

CHAIRPERSON: Well, he made the statement and that's evidence before us, we can't ignore it.

MR RICHARD: I'll leave that point rest. I didn't act for Mr Dlamini, but I do say that the coincidences of the same three names, George, ...(intervention)

CHAIRPERSON: Yes, it's a coincidence and I mean improbable.

MR RICHARD: It's improbable and I can only take it that far.

CHAIRPERSON: But on the other hand, on that improbability, why would he admit assaulting two women, admit assaulting Nomsa and Phosa, if there was no such assault?

MR RICHARD: When the evidence leader read an HRV statement into the record, it was interesting to note that the maker of that statement also accused the applicant of torture. We can't take anything too far from that statement except to say it may be argued that the reason for not identifying that particular victim, was that she too would come forward, as did Ms Shezi and the other victims and say: "His version of his degree of participation in the torture and ..."

CHAIRPERSON: He was invited to be here.

MR RICHARD: I did concede, I cannot take it much further than what I've argued, because I didn't consult with the witness, I heard what my learned colleague read into the record.

CHAIRPERSON: It's no - we're speculating about something now and we've got to act according to the evidence and what happened, before us in that event. I'm not talking about yours.

MR RICHARD: Now, an argument that I make and do put forward, is we look at the applicant. What has he confessed to and what does he say he has done? He admits torturing various people, he admits assaulting various people, he admits murdering. Now I've started developing the point. What is characteristic of police abuse, present or past? First of all, the difficulty of getting a complaint acted on, secondly culture of denial and impunity with which the police commit such acts and thirdly, the modus operandi of the torture. In all cases, torture is committed, so to speak, in the dark on hooded people, people who'd been driven around in vehicles so they got disorientated. In other words, it is committed in a manner so as to disable the victim from giving evidence that can prove what happened or who did the torture.

Now the applicant, but his own admission, is not unfamiliar with these matters. What we have is a highly watered-down version of what happened in certain highly specific incidents. Taking into account the nature of the crime, that is torture and the atrocity associated with that practice, isn't it more probable to find that the applicant, for reasons which we can only speculate again, chose to distance himself from the real enormity of what happened, rather than make the full and complete disclosure. I go back to Shezi's case, where can one fault her evidence, beyond saying it relates to the events which took place eleven years ago? Beyond that it was credible, plausible and in my belief and submission, the truth and her version needs to be taken as the truth.

Now to turn to another attack on the credibility of both Ms Shezi and the witnesses in the Mahlangu matter, I've already alluded to how torture is practised by the police and was practised but in addition I need to allude to the opinion and confidence people had in the police during both the seventies and the eighties. We have Ms Shezi's evidence ...(intervention)

CHAIRPERSON: I think we'll accept that the witnesses didn't have confidence in ...

MR RICHARD: My submission in that regard, to terminate the point, is that the fact that the victims did not run to the police in an attempt to get compensation and/or prosecutions, is just evidence of the reality.

Now, to turn to the Solomon Mahlangu matter. There the argument, to keep it short, is the same. We had witnesses who placed the applicant, so to speak, at the scene, in other words involved in the investigation, committing the torture long after he said he terminated his involvement. One of his arguments as to why this is improbable, is that he was a junior constable at the time. At the time he was 24, which is hardly a juvenile's age. I find it convenient and suspicious that he chooses to say that he didn't take an active role in what was going on, disingenuous, indeed, the greater probability is that the more senior left it to him to do what they might not personally feel inclined to do themselves, in other words not get their hands dirty.

Again, the points regarding why the evidence of Petrus Mahlangu and Absolom, is credible, are much the same. Petrus Mahlangu is taken to a place by Security Police where he knows and can see for his own eyes the results of assaults. He is familiar with the people that he works with. His evidence regarding the identity of the applicant cannot be faulted on the general tests and what's more, his evidence is then corroborated by Mr Hlatshwayo's.

Now the extent of the torture is again the only material difference and the time of the dissociation the next difference. Clearly Solomon Mahlangu was far more seriously injured than is consistent with somebody being hit over the head. Indeed ...(intervention)

CHAIRPERSON: ... Monty?

MR RICHARD: Yes Monty, I beg pardon. Solomon Mahlangu was equally and obviously the victim of assaults and probably torture. Hlatshwayo gives evidence as to hearing Solomon Mahlangu scream. He gives evidence that he was unable to talk as a result of the severity of the assaults on him. In Mr Hlatshwayo's situation, certainly he can't give evidence identifying marks or characteristics, but he can give evidence as to the fact that he travelled from a fair distance away from Johannesburg, back to Johannesburg in a kombi with him. He was given cigarettes by him.

CHAIRPERSON: Mr Richard, could you assist me there about the screaming incident? That was after Mr Hlatshwayo was arrested and brought to the police station, to John Vorster. That was after Solomon pointed out the house where the groceries and ammunition were stored. After Solomon co-operated with the police, pointing out inter alia confirming that Mr Hlatshwayo is the person owning the house and where the ammunition was stored. I'm not sure whether the arrest of Mr Hlatshwayo occurred the day after the incident at Goch Street, or whether it was a few days after.

MR RICHARD: On that point, Chairperson, as I've noted it, it happened at 2.00 p.m. on the same day as the shooting in Goch street, not a day later, that is Mr Hlatshwayo's arrest from his place of employment.

CHAIRPERSON: Well, 2.00 p.m.

MR RICHARD: The incident happened at about 11 in the morning.

CHAIRPERSON: 11 in the morning and at 2 o'clock Mr Solomon already co-operated and pointed out or gave information about where the ammunition could be found.

MR RICHARD: That does not exclude the possibility of him being consistently and continuously assaulted from when he was arrested that morning, right through to that night.

CHAIRPERSON: But if he co-operated, why assault him again?

MR RICHARD: Perhaps he had withheld information. Perhaps there was more information that the interrogators wanted.

CHAIRPERSON: Ja, okay. Thanks.

MR RICHARD: We do know, on that point, that there was a confession in his criminal prosecution which was contested, which Judge Theron allowed in and we do know now, as a matter of very high probability, incorrectly. Again, thanks to the commonality of a sack over the victim's head, the evidential chain connecting the applicant tot he confession is not there and I cannot say it, on anything more than a speculative basis and a possibility basis that it might be there, but what I can submit is that the applicant's version that he disassociated himself and went and did other things after the incident in the street and never had anything to do with the investigation again, is palpably untrue. The evidence of ...

CHAIRPERSON: Is a possibility, attack in the warehouse, somebody escaping, trying to find him, going to the station because he may try to get on a train, going to the taxi rank to prevent him from getting on a taxi, isn't that highly probable?

MR RICHARD: But then what - then why would the applicant say he didn't go and arrest people such as Mr Hlatshwayo and had nothing further to do with the matter after what he's just been described, when we now have coherent and direct evidence that he was involved? In fact he was involved for a very much longer period in a very intimate manner. In fact he was part and parcel of the assaults and continued torture of the victims. In other words, what might have been an assault, is, according to the victims' evidence, a gross human rights violation, very different to what is disclosed in his evidence-in-chief, or in the papers filed with the Amnesty Committee. The essence again in the Mahlangu matter is why should his evidence be given preference to that of the victims and he be believed and not them? Again Mr Petrus Mahlangu's demeanour left nothing to be criticised. Mr Hlatshwayo's answers might have been off the point on many occasions, gave a consistent and uncontradicted version. He may have answered ...(intervention)

CHAIRPERSON: ... Petrus Mahlangu implicate him on the assaults?

MR RICHARD: Mr Petrus Mahlangu gave evidence that ...(intervention)

CHAIRPERSON: He was at the building.

MR RICHARD: He was at John Vorster Square, as Johannesburg Police Station used to be known and that he saw people identified to him as Solomon Mahlangu and somebody whom he did know, Monty and that they had been assaulted and were in an injured condition. That's his evidence in summary, according to my recollection. he then continues to say that certainly Monty could not talk and that Solomon was not placed in the situation where he could talk freely, because there was him and a whole lot of others around. Now he also says that he saw Mr Hlatshwayo.

CHAIRPERSON: Yes and he couldn't talk.

MR RICHARD: So again the severity and extent of the assaults on the suspects is corroborated by his evidence and he then proceeds to corroborate by the factors which I don't think I need to relist. What Mr Hlatshwayo says: "Yes, I was seen there by Mr Mahlangu, Petrus and I couldn't talk and". So the picture presented by their combined evidence is coherent, corroborated and in my mind, acceptable. if there's a criticism in this regard of the applicant's case, it is his evidence which is uncorroborated, not the victims".

CHAIRPERSON: His evidence is corroborated in the sense that he admits that he assaulted Solomon and Solomon was assaulted.

MR RICHARD: He admits to assaulting Solomon by slapping him, not ...

CHAIRPERSON: More than that.

MR RICHARD: That is not my recollection. It was not a severe, consistent and enduring assault which would produce the type of injuries consistent with what both Petrus Mahlangu and Mr Hlatshwayo ...

CHAIRPERSON: I may be mistaken but I had in mind that he hit him with the fist too.

MR RICHARD: On this point, I'm quite clear. Unfortunately I didn't take verbatim notes. The impression that we were left with by Mr van Heerden's evidence, was that Solomon Mahlangu was not badly assaulted when he left the warehouse or whatever it was, in Goch street and then he had nothing further to do with it. However then, through the two witnesses that I'm discussing at the moment, we place him back at John Vorster Square, at a time they are in a severely assaulted manner. Mr Hlatshwayo says he heard Solomon Mahlangu screaming at a time when Mr van Heerden was at that very place, not necessarily in the same room, but certainly a room no distance of any relevance away, which means that Mr van Heerden's version that he had nothing to do with that, cannot stand. The two versions are mutually exclusive and incapable of reconciliation.

The further point that I would make is that as I have said, the nature and gravity of the act, has now been established as different to that admitted to by the applicant. I would then refer the Committee to sub-section 3 (c) of Section 20 of the Act, which lists as one of the factors to be taken into account, the "legal and factual nature of the act, omission or offence, including the gravity of the acts, omission or offence." I do not believe that I have to quote any authority beyond the act itself, to say that torture is a gross violation of human rights and at international law is a crime against ...

CHAIRPERSON: That's why we've got a public hearing, we consider it to be ...

MR RICHARD: It's pertinent to point out that, thanks to the TRC, the victims' version of a gross violation has been put forward. It was not put forward through the applicant in this matter. The applicant reduced it to a lesser matter, a common assault, not torture.

Now for that reason, when something is as grave and serious as acts of torture, the question is asked whether indeed such a serious act is capable of being the object of an amnesty in terms of the Act in the light of the way that the applicant has put it forward. I would submit not.

CHAIRPERSON: Suppose he would have said: "I severely assaulted him and tortured him", then it would have been within the framework of the Act?

MR RICHARD: If he had said: "Yes", under cross-examination, "I concede that I wrongfully and unlawfully applied electric current to torture and induce severe pain and suffering in the victim:, it would have fallen within the Act, but that was not his evidence. His evidence was: "No, I had nothing to do with it".

CHAIRPERSON: But he conceded that the other people might have done it.

MR RICHARD: He conceded that other people might have done it, in circumstances where, as I have argued, the inference is ...

CHAIRPERSON: Is that he should have known about it at least.

MR RICHARD: It's greater than should have know, in fact did positively know.

In the circumstances I need only quote from Judge Mohammed of the Constitutional Court, as he then was, saying that amnesty:

"It is only available where there is a full disclosure of all facts to the Amnesty Committee and where it is clear that the particular transgression was perpetrated during the prescribed period and with the political objective".

Now in the case of Azanian People's Organisation, AZAPO, and others vs the President, I need not, we all are aware of the case. The emphasis is that without full disclosure, amnesty is impossible. Then in the same quote from page 691 that I'm reading from, the Judge continues to say:

"Including the very important relationship which the perpetrated bears in proportion to the object pursued".

My submission is that taking sub-section 3(c) of Section 20, torture of the severity and nature is completely disproportionate and is not a matter wherein amnesty should properly be granted.

With regard to full disclosure, I refer again to Judge Mohamed's comment at page 686 of the same Law Report.

"If the offender does not and in consequence thereof the victim or his family is not able to discover the truth, the application for amnesty will fail."

It is my submission in conclusion that for the reasons that I have argued, there was no full disclosure. Certainly Solomon Mahlangu's family are not in a position to know what happened, when it's patently obvious that the applicant could and failed to assist the situation, that he has lost and should not be granted the right to amnesty.

With regard to my final point, it is correct that the applicant did not apply for amnesty for torturing Ms Shezi with electric current, or torturing Mr Hlatshwayo. Clearly from this evidence, prima facie evidence, from this hearing prima facie evidence has been revealed of serious offences which I submit should be referred to the Attorney General for investigation and prosecution.

CHAIRPERSON: But your client's could lay a charge.

MR RICHARD: My clients will proceed to lay a charge.

CHAIRPERSON: Ja.

MR RICHARD: What my clients raise, that's Ms Shezi and Mr Hlatshwayo in relation to the hearing, are not matters for which Mr van Heerden has applied for amnesty. On the point of prescription, ...

CHAIRPERSON: Well, that's not relevant. He's not applied for amnesty, we can't give him amnesty.

MR RICHARD: My question is in reply to the victim declaration that I was asked to prepare.

CHAIRPERSON: Yes.

MR RICHARD: I would submit that in this regard it is still open to Ms Shezi and to Mr Hlatshwayo to institute civil actions and to overcome the point of prescription because of the manner and method whereby the information came to their knowledge and before that point has been resolved, it's premature for this Committee or the TRC to make any decision as to their status as victims.

CHAIRPERSON: The trouble is, if we wouldn't make a recommendation, the TRC's life is coming to an end very soon.

MR RICHARD: This year, I believe.

CHAIRPERSON: And if there's no recommendation and I don't know whether they have applied to be declared victims.

MR RICHARD: They haven't applied.

CHAIRPERSON: Because they would have been entitled to apply, well at a stage they would have been entitled to apply.

MR RICHARD: They haven't applied.

CHAIRPERSON: They haven't applied. Now suppose we wouldn't make a recommendation, wouldn't they be prejudiced, or would you rather say they should, that could prejudice their claims against the police, their civil claims and it can't prejudice the criminal prosecution?

MR RICHARD: Over lunch the debate that I had with myself was, no I could never apply for a recommendation on the basis that it be without prejudice to their other remedies, to sue Mr van Heerden and the State, that I could not do. I must do one or the other. I can't approbate and reprobate and claim everything. As soon as they are declared victims and work within this framework, that is their compensation. The fact that mr van Heerden may not get amnesty for what they complain about, is another question, it's whether the TRC can even entertain their claims as victims and I thought that the proper and correct method of recommending to them what to do next, would be to institute action against the State and join Mr van Heerden in the action and also take into account that in terms of Section 11, there's an injunction that disputes should be resolved in an informal, non litigious manner, that's a problem that I will have to overcome in the future, not today. I don't think - it is not my application to beg, to ask for a declaration or a recommendation. I believe the correct action is to take the ordinary simple law of remedies.

CHAIRPERSON: Yes, thank you.

MR RICHARD: Thank you Chairperson. That concludes.

MR MAPOMA IN ARGUMENT: Thank you Chairperson. Chairperson, I will address the Committee on the Cafe Zurich incident, in particular about these two persons called Nomsa and Phosa.

Chairperson, my submission is that the applicant has not given this Committee full disclosure as to exactly who the persons are that he assaulted. I am saying this, Chairperson, because Nomsa Raraze and Virginia Phosa, whose names are in our disposal as investigations, are not the persons who were assaulted or arrested in connection of the Zurich Cafe. At this point in time, we do not know who those persons are and we do not know the extent to which they were assaulted and Chairperson, I submit it is very important, it is crucial actually, that the extent to which those two women were assaulted is centred in the application concerned, regarding the assault on those persons. I am saying this, Chairperson, because we have got evidence before this Committee to the extent that a certain woman was assaulted and tortured and that evidence has to be weighed against a version of the applicant who claims that he has got ethics not to torture women and claims that he never tortured women. I am mindful, Chairperson, of the fact that at this point there is some handicap on my argument in the sense that I do not have those persons and it is my submission, Chairperson, that had we been given the correct facts as to who those persons were, we would have been able to notify those persons and get their evidence if possible, before this Committee, so that the Committee can be satisfied as to whether what the applicant is saying is actually what happened.

CHAIRPERSON: He's given the names of Nomsa and Phosa.

MR MAPOMA: Yes.

CHAIRPERSON: It was not effort on behalf of the TRC to get those names.

MR MAPOMA: We did, Chairperson, get the names.

CHAIRPERSON: Ja, but you got it from him, from the applicant.

MR MAPOMA: No, well, the names, yes.

CHAIRPERSON: I understood, he told where they lived, where they could be found, how they could be interviewed.

MR MAPOMA: Yes, what he said, Chairperson, is that Nomsa and Phosa are the persons who were the members of the family of Peter Dlamini,

CHAIRPERSON: Ja.

MR MAPOMA: And we managed to get Peter Dlamini.

CHAIRPERSON: yes.

MR MAPOMA: And we got the family of Peter Dlamini, which involved Nomsa, who had a friend who was Virginia Phosa, so the set of facts that were given, is the set of facts which gave us the information that the persons for whose assault amnesty is sought, are these persons in question.

CHAIRPERSON: Ja. But now Peter Dlamini is denying that he's the Peter that's been involved in the Vanderbijlpark bus stop incident.

MR MAPOMA: Yes, Chairperson.

CHAIRPERSON: But the reason for his denial may equally be because he didn't apply for amnesty and if he would admit it now, he could still be prosecuted.

MR MAPOMA: Yes. Chairperson, it is not only him who denies involvement in that. Nomsa herself has got a statement before us where she has nothing to do with that assault, that incident. Her arrest had nothing to do with that incident. Admittedly her arrest had something to do with the whereabouts of Peter Dlamini, but not that incident. Same as Virginia. I am saying Chairperson, it is highly a coincidence, it is highly impossible a coincidence that we may have three separate persons.

CHAIRPERSON: Yes, that's what the coincidence seems to be. Peter Dlamini, is as far as I could see, common cause that he's been involved with the bus stop incident.

MR MAPOMA: Yes.

CHAIRPERSON: The Peter Dlamini coming forward, denies that he's been involved, so we presume that there must be another Peter Dlamini.

MR MAPOMA: Chairperson, I would not say it's common cause.

CHAIRPERSON: But it's very strange that this Peter Dlamini had the association with Nomsa too, so the other Peter Dlamini, if there is another one, couldn't have the same association with Nomsa?

MR MAPOMA: Yes.

CHAIRPERSON: There is - he may be mistaken, that may be one extreme, one side of the scale, the other side of the scale is the others might have been involved but they couldn't admit to it now because then they can be prosecuted because they didn't apply for amnesty.

MR MAPOMA: I agree Chairperson, that's a possibility, but let us look at it on the other hand as well. It is possible that a Peter Dlamini, whose family is the Nomsa that we have got now, may have been victims of the applicant because Nomsa in his statement says that white policemen came looking for the whereabouts of Peter Dlamini and they tortured her in the manner which she describes, a manner which differs completely from what the applicant says. There is that possibility as well, so it's possible that the applicant may deliberately give a wrong picture of what happened in this particular case. He may well have mistaken the names, but what it boils down to is that he cannot be given amnesty in respect of assault to Nomsa and Phosa because the manner in which he describes assault of those persons, is completely different from the manner in which Nomsa ...(intervention)

CHAIRPERSON: Unless we accept in the same way as we accept this un-understandable coincidence, that there would be two Peter Dlaminis, now there's two Nomsas and there's two Phosas.

MR MAPOMA: Yes, unless that extreme situation happens Chairperson, yes, which I'm saying.

ADV SIGODI: But hasn't he now given us an indication of where to find these people?

MR MAPOMA: Well in the light, he has Chairperson, and in the light of that perhaps the most convenient ...(indistinct) is to conduct further investigation as to exactly who the women are who were arrested in connection with the Zurich incident and get their version as to exactly what happened, which can be tested before this Committee now in the circumstances, otherwise Chairperson, it would be seriously compromising the Committee.

CHAIRPERSON: Well, could we reserve Judgment, Decision on this one and ask you to try and get the information within fourteen days. If anything is coming forward, could you have statements and we could forward it to Mr Cornelius, and if necessary, we will reconvene a hearing.

MR MAPOMA: Yes, I would appreciate that Chairperson, in the circumstances.

CHAIRPERSON: Would that suite you Mr Cornelius?

MR CORNELIUS: We're in your hands, Sir.

CHAIRPERSON: Right thank you.

MR MAPOMA: Yes, that is all Chairperson.

CHAIRPERSON: Ja. Thanks.

ADV SIGODI: Have you no comment on the declaration of victims?

MR MAPOMA: Chairperson, these victims, whilst there is no application being sought for their torture, it doesn't seem to be contested that they were in fact tortured in fact in the manner in which they have described and that evidence came out of this hearing and I would submit with respect, Chairperson, that these are the persons whom the Committee may identify as victims arising out of this particular hearing.

CHAIRPERSON: But on the other hand, we've got this statement now that they don't want to be victims. They're not applying to be victims. In fact they're asking us not to declare them victims, through their legal representative.

MR MAPOMA: Well I get that Chairperson, but the Committee does not necessarily have to process their application. The Committee, all that it has to do, is to identify certain persons as victims arising out of this incident and then it will be up to the TRC to decide, but the fact that they do not want to be referred as victims, cannot stop the TRC from doing it.

CHAIRPERSON: Was it ever the intention of the Legislature to allow you to have two bites at the cherry? Didn't the Chief Justice say: "This is what - victims are asked to sacrifice their rights for compensation against a perpetrator and be declared a victim"?

MR MAPOMA: Yes, I agree Chairperson, but if one judges it, not only now insofar as the Amnesty Committee is concerned, but as to the responsibility of the TRC as the Truth and Reconciliation Commission, these persons who now appear to be victims out of this particular forum of the TRC, can be identified as such.

CHAIRPERSON: Yes and some victims would have two claims and other victims would only have one expectation of compensation in the sense they've been declared victims and then they've only got that claim, but these victims would have two bites at the cherry.

MR MAPOMA: Chair, we at this stage now, are dealing with a prospective remedy which we do not know whether it will take off at all on their behalf and we can't, on the basis of that, say they were there having two cherries, because the only forum that is available to them at this point in time is the TRC. They have come to the TRC and narrated their stories to the TRC and out of what they are saying, it appears that they suffered and they are victims as such. We do not know whether they will in fact pursue the civil proceedings and if they do, if that will succeed at all. I'm saying ...(intervention)

CHAIRPERSON: No, I understand, I understand the problem. We'll have to consider it and I understand your submission here and because on the evidence before us, they seem to be victims of the system, not necessarily on any version, even if they're not victims of the applicant, they're victims of the system.

MR MAPOMA: Yes. Thank you Chairperson, that's all.

CHAIRPERSON: Thank you. Mr Cornelius, any reply?

MR CORNELIUS: No, I have nothing to add, thanks.

CHAIRPERSON: The next one? We'll adjourn for a minute.

COMMITTEE ADJOURNS