Amnesty Hearings

ON RESUMPTION

CHAIRPERSON: Mr Schubart, are we ready to proceed? I think the ball is in your court.

MR SCHUBART: Yes, I am, thank you. I have no further questions, thank you.

NO FURTHER QUESTIONS BY MR SCHUBART

CHAIRPERSON: Mr Stemele, we are proceeding with your evidence. Yesterday we stopped the matter when you were being cross-examined by Mr Schubart. I just want to remind you that you are still under your former oath, do you understand?

LINDILE STEMELE: (s.u.o.)

CHAIRPERSON: You will now be questioned by Ms Patel, if she has any questions to put to you.

Ms Patel, do you have any questions to put to Mr Stemele?

MS PATEL: I do, just a few, Honourable Chairperson.

CHAIRPERSON: Thank you.

CROSS-EXAMINATION BY MS PATEL: Mr Stemele, you recall yesterday that your discussion with Sammy initially was around the question of your low salary, and this is how it came about that Mr de Villiers' farm came up in the discussion and that the initial discussion was about money only, do you recall that?

MR STEMELE: Our discussion was about going to the farm in Addo to get weapons as he had told me that there were weapons and money in that farm.

MS PATEL: Are you saying that you initially had a discussion based on both the money and the weapons and that Sammy was aware that you were going to the farm for purposes of stealing both money and the weapons?

MR STEMELE: It was more about the weapon issue.

CHAIRPERSON: Wasn't your evidence yesterday that Sammy spoke to you about money because central to your discussion was a need to supplement your income because you were both getting low salaries? Wasn't that the evidence you tendered yesterday?

MR STEMELE: Yes, I did say that. When we were discussing with Sammy, in our discussion the farm issue came about and I said to him, I asked him whether we can go to this farm to see this farm and he agreed and he told me that there were weapons there and also money. I then said to him it is okay, we can go to the farm, we can go there and get money.

All this time I was lying to him by saying that the reason why we were going there was money, we were actually going there to get weapons.

CHAIRPERSON: But your evidence was that as far as Sammy was concerned the reason why you would have gone to the farm was to get money.

MR STEMELE: Yes, that's how I put it to him and he knew that as we were going to the farm we were going to look for money, and that was not the case.

MS PATEL: Thank you, Honourable Chairperson.

ADV MOTATA: Ms Patel, before you do ...

Mr Stemele, you said you were once disturbed when you, Xholani and Sammy went to this farm, did I follow you when you said that?

MR STEMELE: Disturbed in which way?

ADV MOTATA: I say when you found that the lady of the house was walking in quickly and another person got out of the car, walked quickly into the car (s.ic.) and your mission couldn't be accomplished. Do you recall saying that? You, Xholani and Sammy did go to the farm or did I mishear you?

MR STEMELE: We did go to the farm, Sammy, Xholani and myself, before. We went there to inspect the farm and Sammy's mind as I have told him that we're looking for money, he was thinking that the reason why we went to the farm was about money. I was lying to him about the issue of money, we went there to inspect the farm.

ADV MOTATA: Thank you, Ms Patel, you can continue.

MS PATEL: Do you recall that you stated yesterday that your co-applicant, in his mind you were going there for weapons only and that the question of money was never raised with him or with the other persons who had gone with you to the farm, is that correct?

MR STEMELE: Yes, that is correct.

MS PATEL: Alright. You also stated yesterday that after you had had the discussion with Sammy you took him through to Xholani and you left them alone whilst they discussed this issue, is that correct?

MR STEMELE: Yes, that is correct.

MS PATEL: Now did you ask Sammy at any stage not to raise the question of money with Xholani?

MR STEMELE: What I told Sammy was the fact that he would tell Xholani about the weapons that were there. The money issue was between myself and Sammy because I lied to him saying that we wanted to get money in that farm. He did not tell Xholani about money.

CHAIRPERSON: How would you know? Didn't you say yesterday that you were not party to the discussion that took place between Sammy and Xholani?

MR STEMELE: The reason why I'm saying this is because Xholani didn't say to me that Sammy told him that there's money there.

CHAIRPERSON: Did that issue ever arise which would have prompted Xholani to tell you whether that discussion did or did not take place? If so, under what circumstances did it arise?

MR STEMELE: The money issue didn't arise but what we talked about was that we were going to that farm to look for weapons.

CHAIRPERSON: So you would speculate if you were to say to Ms Patel that Xholani did not know anything about the money? That information that could have been provided to him by Sammy, you'd be speculating that respect, is it not so?

MR STEMELE: That is so.

CHAIRPERSON: Ms Patel?

MS PATEL: Given that you've based that evidence on speculation, you can't say for certain whether the issue of money then wasn't ever discussed with your co-applicant here as well by Xholani, not so?

MR STEMELE: I don't think he told him about money.

MS PATEL: But you can't say that for certain?

MR STEMELE: I'm not certain.

MS PATEL: Okay. Then another issue that I find strange, you and Sammy were in the same position financially in a sense because you were both complaining about your low salary, not so?

MR STEMELE: I was complaining to him because he had told me about this farm that had weapons. So that was a way to lie to him so that he can agree to show us where the farm was.

MS PATEL: And did Sammy not want anything out of this? He was willing to risk his life by taking you there and pointing out, he gave you all this crucial information and for nothing in return, why would he do that?

MR STEMELE: Sammy thought that we would go to the farm to rob money. He didn't know the exact reason that we went to the farm, that we went there to get weapons. In other words I can say yes, Sammy thought that he would get something out of this.

CHAIRPERSON: Why should you say "you thought", wasn't there a discussion about that? In any event your evidence is that what was important was that you both wanted to supplement your income. Didn't you come to some firm arrangement about what share Sammy would get after this robbery had been committed?

MR STEMELE: In Sammy's mind he thought he thought he would get money in that farm but because we didn't get any money in the farm, and when we went there for the second time there was no money that we found.

CHAIRPERSON: What arrangements had you and Sammy made about how you were going to divide the proceeds from the farm?

MR STEMELE: There were no arrangements that we made with Sammy.

CHAIRPERSON: On what basis would he have thought that he would get something if you had not made any arrangements?

MR STEMELE: In his mind he thought that we would go to the farm and we would find money and he would also get money, that we didn't know how much it would be. But I was lying to him, knowing very well that our intentions were to get weapons there.

CHAIRPERSON: Are you saying that during your discussion you didn't come to some kind of arrangement that; look in the event of us getting something we will give you a portion of what we would have received? Was there no such discussion?

MR STEMELE: No, there were no such discussions.

CHAIRPERSON: He simply thought you would give him something without you having discussed that aspect?

MR STEMELE: When we went there for the second time to the farm, Sammy was not there. There were four of us ...(intervention)

CHAIRPERSON: What Ms Patel wants to know is whether there was any arrangement made between you and Sammy on what portion of the proceeds that would have been derived from your mission would he receive.

MR STEMELE: In his mind he thought that we would go there and get that money and we would divide that money even, but we didn't know how much it would be.

CHAIRPERSON: But you intimated to him that if you got something you would give him something also?

MR STEMELE: As we went there before, it was myself, Sammy and Xholani, I told him that the money that we would get he would receive something. All that time I was lying to him saying that we wanted money in the farm.

CHAIRPERSON: Thank you. It has taken a while but you have responded to Ms Patel's question.

MS PATEL: Thank you, Honourable Chairperson.

So Sammy would have got a share of this, was this agreed with the rest of the members of the unit?

MR STEMELE: It was not the rest of the unit at that time, Sammy and myself were there. It was only two of us. I'm not counting Xholani in that number.

MS PATEL: The question is, did you come to an agreement with the rest of the persons who had gone with you to the farm, that Sammy would get a share of whatever you got there?

MR STEMELE: No, we didn't take that decision that Sammy would get a share.

CHAIRPERSON: The question is, did you discuss with your members about your discussion with Sammy that he would get a share of whatever you would get from the mission? Did you tell your members that you had had this discussion with Sammy and that he was expecting a share from whatever would be obtained from the mission?

MR STEMELE: No, I didn't tell them anything.

MS PATEL: Now if your intention, as you want us to believe, was to go there to get weapons only, what were you going to do about Sammy eventually after the robbery? What were you going to tell him, why can't you pay him or why can't you give him a share of whatever?

MR STEMELE: After we came back from Addo I didn't see Sammy again. I didn't have any contact with him again after that operation.

MS PATEL: My question is simple. You knew that you were going there only to get weapons, not to get money so you say, and you knew also that you had an arrangement with Sammy whereby you would give him a portion of whatever you had got on the farm. Now if you didn't intend to go there for money, what were you going to say to Sammy, regardless of whether you ever saw him again or not, that's not important. What in your mind were you going to say to Sammy?

MR STEMELE: I would have told him that what we went there to do was not successful.

CHAIRPERSON: But how would you have concealed that fact that what you had gone there to do you didn't do? You are aware that Sammy once worked in that farm and Sammy would have made enquiries. He must have known workers in that farm who probably would have disclosed to Sammy that a robbery had been committed.

MR STEMELE: I didn't say that I wouldn't tell him that the mission was not successful, what I'm saying is if I had met him I would have told him that the mission we went there for was not successful so there was nothing that we gained there.

CHAIRPERSON: Yes, I'm saying why would you have thought he'd buy that story because Sammy was obviously aware of the other workers who were resident in that farm and who would have told him that a robbery had taken place and movables had been taken by those robbers, even though they would not be able to name the robbers?

MR STEMELE: Unfortunately, Chairperson, the robbery was not successful and he would also see on television or read in the newspapers that nothing was robbed there as we were not successful in the robbery.

CHAIRPERSON: The question that Ms Patel posed to you was not on the basis of the success or not of the robbery, her question was; what were you going to do about Sammy after the robbery, and your response thereto was that you would have told him that the mission was unsuccessful and thereby preventing him getting his share of the proceeds. Now the question was posed on the basis of the mission being successful, and your response that even if the mission had been successful you would have lied to Sammy, you would have said the mission had not been successful. Unless you want to correct us, that is how I understood your evidence. Did I understand it wrongly?

MR STEMELE: Chairperson, you didn't understand me well. I didn't say that we'd mislead Sammy or not tell him the truth. What I said is if I had seen him I would have told him that the mission was not successful so there was nothing that we gained there.

CHAIRPERSON: Now let me put this question to you, had you mission been successful, what would you have said to Sammy?

MR STEMELE: If the mission was successful we would have taken the weapons that we were looking for and I would tell him that we didn't get money, we only got weapons.

CHAIRPERSON: Thank you. Ms Patel?

MS PATEL: And you think that Sammy would have believed this? Sammy is the person who has worked there and according to you Sammy is the person who said there is money in the house, so what makes you think Sammy would have believed this?

MR STEMELE: He would have believed that because there would have been nothing else that was going to be taken there.

MS PATEL: Alright, I'll move onto another point. You were saying that shots were fired at the house because you didn't want them to see your faces and you also went a step further than your co-applicant, you said there was a big light in the driveway, is that correct?

MR STEMELE: That is correct.

MS PATEL: And the light is bright enough to see what is going on in the driveway?

MR STEMELE: Yes, that is correct.

MS PATEL: Which means that Mr de Villiers would have been able to see your faces and been able to identify you?

MR STEMELE: Yes, that is correct.

MS PATEL: And yet you will persist in your submission to us that you merely intended to immobilise Mr de Villiers and not kill him, despite the fact that he was closer to you than the people in the house and that he was able to identify you.

MR STEMELE: Yes, that is correct.

MS PATEL: Thank you, Honourable Chairperson, I have no further questions.

NO FURTHER QUESTIONS BY MS PATEL

CHAIRPERSON: Thank you, Ms Patel.

Before I come to the members of the Committee, Mr Nyoka, do you have any re-examination to do on Mr Stemele?

MR NYOKA: None, Honourable Chairperson.

NO RE-EXAMINATION BY MR NYOKA

CHAIRPERSON: Mr Motata, do you have any questions to put to Mr Stemele?

ADV MOTATA: Just one, Chairperson.

Just help me out, Mr Stemele, how many were you when you went to this farm of de Villiers?

MR STEMELE: There were four of us, Sir.

ADV MOTATA: And you say in part of your evidence that there was a light where the bakkie came to a halt, do you recall that?

MR STEMELE: Yes.

ADV MOTATA: Was it well lit, that area? We know there is light but was it well lit because it was in the evening?

MR STEMELE: Yes.

ADV MOTATA: In fairness to you, in terms of the documentation we have before us here there is one Elizabeth Brenda de Villiers who made a statement and she says when she heard gunshots she peeped through the window and saw five black males. That would be in paragraph 5 of that statement. You don't agree with that, do you? I just want to give you an opportunity to respond to what she is saying, because I cannot ignore the document which is before me.

MR STEMELE: I disagree with her, Chairperson, there were four of us.

ADV MOTATA: People in the house whom you saw peeping, would you think they had clear sight of what obtained outside?

MR STEMELE: Yes, Sir.

ADV MOTATA: Just lastly to assist me, I don't know about my colleagues here, you said the mission failed, and I tried to get an answer from you yesterday and I must be honest with you I did not follow you because you said the trigger didn't work and you were taken aback when Xholani fired, would I be right?

MR STEMELE: Can you please repeat your question, Sir?

ADV MOTATA: That one of the firearms they had was defective and they were taken aback when it fired because they never thought that one would fire.

MR STEMELE: Yes, one the triggers of our firearms was not working properly, Sir.

ADV MOTATA: When did it come to your attention that one of the triggers of, the trigger of that firearm was not working? I'm asking this in all honesty to get clarity because we could not get from your evidence when you actually saw the two firearms which were in the possession of your comrades when you went there. We couldn't get clarity when they were obtained or when you first saw them. I just want you to tell us when did you first come to notice those things, the trigger actually of that firearm or that gun.

MR STEMELE: I heard about that from Kenneth when we came back from Addo.

CHAIRPERSON: Okay. When did you see the firearms for the first time?

MR STEMELE: I saw the firearms when we were going to go to Addo.

ADV MOTATA: The same day?

MR STEMELE: Yes, the same day.

ADV MOTATA: And also that you panicked because you realised the mission had failed, you also heard after the event, would I be right?

MR STEMELE: After Mr de Villiers was shot we ran away because we realised that the mission was not successful, it failed.

ADV MOTATA: Thank you, Chairperson, I've got no further questions.

CHAIRPERSON: Thank you, Mr Motata.

CHAIRPERSON: Ms Bosman, do you have any questions to put to me Stemele?

ADV BOSMAN: One question, thank you, Chairperson.

Mr Stemele, I don't know whether I perhaps misheard you but according to my notes you said:

"I told Sammy that we would be looking for money."

You wanted him to believe that you were going to money. And then you said:

"I told Sammy that he should tell Xholani about the weapons."

Is that correct, did I hear you correctly?

MR STEMELE: I said I told Sammy to tell Xholani about what he knows and what he saw on the farm, about the weapons that he told me about and the money that he told me about.

ADV BOSMAN: But if you wanted him to believe that you were going for money, why did you tell him to tell Xholani about the weapons? That I don't understand.

MR STEMELE: The reason why I said so is because I knew that we were struggling, we wanted weapons, so I wanted him to tell Xholani that in this farm that he was telling us about there are weapons.

ADV BOSMAN: But surely then he must have realised that you were going for weapons as well as money? Then your evidence does not make sense to me, but we'll leave it at that.

CHAIRPERSON: Mr Stemele, were you aware that the weapons at Mr de Villiers' house were kept in a safe?

MR STEMELE: As he told me, Chairperson, that the weapons there were kept in a safe, he told me that.

CHAIRPERSON: And this is the information you shared with your commander, the late Xholani Xnani?

MR STEMELE: Yes, that is correct.

CHAIRPERSON: During your planning for this operation, was it ever your intention to break into the house with a view of establishing where the safe was in the house?

MR STEMELE: We were not going to break into the house but what we were going to do was to take Mr de Villiers with us inside the house so that he can show us where the weapons were.

CHAIRPERSON: Did you ever consider breaking into the house with a view of establishing on your own where the safe was?

MR STEMELE: No, we didn't consider, I didn't consider that.

CHAIRPERSON: You were told by Sammy about this farm, when? Was that in July?

MR STEMELE: Yes, it was during those months.

CHAIRPERSON: And immediately after being told you then attempted to rob that farm, you, Xholani and Sammy, correct?

MR STEMELE: We went with Sammy and Xholani. Sammy was going to show us where the farm was. We went there to inspect the farm so that we can see where we can go in or how.

CHAIRPERSON: Are you saying you didn't make any attempt to rob the farm?

MR STEMELE: No, we didn't make attempts to rob the farm.

CHAIRPERSON: I thought yesterday you ultimately conceded that you did that and that you were unsuccessful, in July.

MR STEMELE: We didn't go there to rob it when we went there before, we just went there to check how the farm was.

CHAIRPERSON: So your presence there in July was to do some reconnaissance?

MR STEMELE: Yes, that is correct.

CHAIRPERSON: If I remember your evidence well you said you only reconnoitred the place once and that was in July.

MR STEMELE: Yes, that is correct.

CHAIRPERSON: Was that the only occasion you reconnoitred the place? I think yesterday you said that was so, do you still say so?

MR STEMELE: Yes, we went there once to reconnoitre the place.

CHAIRPERSON: And that was in July?

MR STEMELE: Yes, Chairperson.

CHAIRPERSON: What would your response be if we tell you, and you obviously are aware of this because you've been present throughout these proceedings when your co-applicant was giving evidence before this Committee, that his version was that the place was reconnoitred three days before the incident took place?

MR STEMELE: That is correct, Chairperson.

CHAIRPERSON: Why are you saying "kunjalo"? Was the place reconnoitred three days before this operation took place or was it reconnoitred in July, which of the two is correct?

MR STEMELE: We reconnoitred the place once.

CHAIRPERSON: I understand that, and in your evidence you say that happened in July. What I'm saying is, your co-applicant stated that the place was reconnoitred three days before the incident took place, which of the two versions is correct? You are putting two completely different version, one is saying in July, that's yourself, and your co-applicant states that the place was reconnoitred three days before the incident which would be in August.

MR STEMELE: Chairperson, maybe he made a mistake. This place was reconnoitred once. Maybe he made a mistake.

CHAIRPERSON: When did you have your first meeting wherein you planned that you would go and rob this place? When did your meeting as a unit take place? I'm not talking of the meeting with Sammy, I'm talking of you as members of this unit meeting to prepare for this mission, when did that meeting take place?

MR STEMELE: The meeting was on the same day, the same day of the incident, the operation.

CHAIRPERSON: And prior to that day, had you not had any meeting to discuss plans on how the mission would be carried out?

MR STEMELE: No, Chairperson.

CHAIRPERSON: So you as a unit, you only had one meeting and that was on the day of the incident, nothing had been arranged prior to that day about this mission?

MR STEMELE: There were no other arrangements that were made.

CHAIRPERSON: Was there no meeting that took place amongst you as members of this unit?

MR STEMELE: We only met in the morning when they came to me and we then left in the afternoon.

CHAIRPERSON: Just take us through what happened between July and the morning of the incident. You reconnoitred the place in July, what happened between July and the day before the incident took place?

MR STEMELE: We didn't go to that place and after a month, the following month my commander together with Mali and Kenneth, they came and he told us that as the person who went there before to look at the place with my commander, he then said we should go, we should proceed and go to that place.

CHAIRPERSON: When did your commander tell you to prepare yourself to go to that place? This incident happened on the 26th of October, am I correct?

MR NYOKA: 17th of August.

CHAIRPERSON: 17th of August, sorry. This happened on the 17th of August, now can you just approximate to us when around August you were informed by your commander to prepare yourself for this mission. Was it a day before the mission was to take place, a few days, can you just give us an indication?

MR STEMELE: He came to me in the morning and in that same afternoon we left.

CHAIRPERSON: And between July and the 17th of August, had you as a unit met at all?

MR STEMELE: I was told about Tamsanqa Mali with my commander because I used to see him at the sea. I didn't know him but I would see him at the sea when we were training. I got to know him well on the day of the mission when we went to Addo.

CHAIRPERSON: Oh, are you sure about the evidence you are giving now? You didn't know Mr Mali until you went onto the mission on the 17th of August?

MR STEMELE: I would see him but I didn't know him. Even Kenneth, it was the first time I saw Kenneth, the day of this incident when we went to Addo.

CHAIRPERSON: Now I thought you all belonged to a unit, that you were members of a unit which was established in 1992, and we have been given names of these members. I just cannot recall offhand but I think I have made notes to that effect. When you say you did not know Mr Mali it really causes us concern, that did you ever operate as a unit at all. So you did not in fact operate as a unit?

MR STEMELE: The person that I was under was Xholani. I was under his command. I was Xholani's unit, Mr Xnani.

CHAIRPERSON: Did you belong to a unit that consisted of members other than Xholani? Did you believe yourself to be a member of a unit, or you only knew that you had Xholani that you had to report to and you didn't know any other person?

MR STEMELE: I didn't know other members of the unit. I knew Xholani and other members who were training us together with Xholani.

CHAIRPERSON: So you wouldn't know then when your unit was formed, would you?

MR STEMELE: The unit that went to Addo, I knew them, I knew the other members on that same day.

CHAIRPERSON: That's very interesting. You are aware that obviously it contradicts what Mr Mali has said, about there having been a unit which had been formed which had an objective and which had been trying to obtain arms but were unable to do so because it didn't have the necessary weaponry to be able to execute its tasks? Your evidence stands in stark contrast to that already given by your co-applicant.

MR STEMELE: Mr Mali had his own unit.

CHAIRPERSON: How do you know that, and what unit was it?

MR STEMELE: As I would see him at the sea when I was being trained by Xholani and when we would be with other members that were trained by Xholani.

CHAIRPERSON: So you were never a member of Mr Mali's unit?

MR STEMELE: I was under the command of Xholani.

CHAIRPERSON: Answer my question. You were never a member in which Mr Mali was also a member - you were never a member of a unit in which Mr Mali was also a member?

MR STEMELE: I became a member when we went to Addo. I then became a member at that time.

CHAIRPERSON: You became a member of Mr Mali's unit on the 17th of August for purposes of this operation? You only became a member on the 17th of August when you went to rob the farm, otherwise you were never a member?

MR STEMELE: Yes, that is correct.

CHAIRPERSON: Then it would not even be necessary for us to find out the operations conducted by your unit because you were not a member of this unit. So we shouldn't ask you anything about the operations conducted by this unit because you wouldn't know whether there were any operations conducted by the unit that Mr Mali has testified to, that is so isn't it?

MR STEMELE: As Mr Mali has explained before that there were no other operations except for this one that happened on the 17th of August.

CHAIRPERSON: But how would you know because you were not a member of that unit?

MR STEMELE: I would be told by Xholani, the one who was training me.

CHAIRPERSON: You keep on referring to the training that you were given by Xholani, when was that training given to you?

MR STEMELE: When Xholani came back from exile in 1991 he came to me and he would train me and he told me to bring people that would be able to join the Self Defence Units. He started training me in 1991 after he came back from exile.

CHAIRPERSON: Was he still training you on the 17th of August?

MR STEMELE: We used to go to the sea before the 17th of August and he would give us physical training at the sea.

CHAIRPERSON: So you were still a trainee by the 17th of August?

MR STEMELE: Yes.

CHAIRPERSON: And you as a trainee did not belong to any special unit that had been created for the objectives identified by Mr Mali in his evidence yesterday?

MR STEMELE: They came to me when we were supposed to go to Addo.

CHAIRPERSON: Now when you took Sammy Xagwana to Xholani in July to have a discussion with him about the information he had with regard to Mr de Villiers' farm, you just took Sammy to Xholani because Xholani was your trainer, is that not so?

MR STEMELE: That is correct.

CHAIRPERSON: And not because you and Xholani belonged to a particular unit, is that not so?

MR STEMELE: I took him to Xholani because I was being trained by Xholani and I was under his command.

CHAIRPERSON: Yes, you didn't take Sammy to Xholani because you believed yourself to belong to a unit?

MR STEMELE: I took him because I believed that I was a member of the Self Defence Unit.

CHAIRPERSON: But not the unit identified by Mr Mali, a special unit?

MR STEMELE: I became a member of the special unit on the day that we were supposed to go to Addo because I was one of the people who reconnoitred the farm. Because I knew the road or the way to the farm and I saw this farm, I was then selected to go with them.

CHAIRPERSON: I think Mr Stemele, it will do us a lot of good if we were merely to understand each other. I want to know that you didn't take Sammy Xagwana to Xholani because you were a member of a special unit that Xholani also belonged to, you simply took Sammy Xagwana to Xholani because Xholani was your trainer and not because Xholani was a commander of a special unit, is that not so?

MR STEMELE: I took him to Xholani because I was a member of the Self Defence Unit.

CHAIRPERSON: You know, let's not make this to be so complex and complicated. You have just stated that you were not a member of a special unit that Mr Mali has testified to. You didn't take Xagwana to Xholani because you were a member of a special unit that Mr Mali belonged to, is it not so?

MR STEMELE: I was not yet a member of that unit, yes, that is correct.

CHAIRPERSON: It's simple, that's all that I'm trying to find out from you. So you simply took him because you knew Xholani?

MR STEMELE: Yes, that is correct.

CHAIRPERSON: Thank you.

Mr Nyoka, emanating from the questions posed by the Committee, do you have any re-examination?

MR NYOKA: None, Honourable Chair.

NO QUESTIONS BY MR NYOKA

CHAIRPERSON: Mr Nyoka, where do you propose to take us from here?

MR NYOKA: Argument, Honourable Chair.

CHAIRPERSON: Do you close your case?

MR NYOKA: Yes.

WITNESS EXCUSED

CHAIRPERSON: We are ready to hear your argument, Sir.

MR NYOKA IN ARGUMENT: Honourable Chair, Honourable Members of the Committee, there is no doubt that the actions of the day were morally repugnant, politically disastrous and criminally offensive, but all that repugnance, disaster and criminality is based on a motive which was political.

As far as applicant number one is concerned, we do know that Section 21 requires three requirements for an applicant to fulfil for amnesty to be granted for any act, omission or offence, namely that the formal one, the application must comply with the requirements of the Act. The second one, that the act, omission or offence is associated with a political objective committed in the course of the conflicts of the past by inter alia a member or supporter of a publicly known organisation, liberation movement on its behalf or in support thereof bona fide of a political struggle waged by such organisation. The final one is that the applicant must have made a full disclosure of all relevant facts.

Firstly, there is no doubt that the first formal requirement has been met by both applicants. With regard to the second requirement of the Act, being associated with a political objective. It is being submitted that applicant Mali has required with that requirement for the following reasons:

Firstly, the purpose for attacking the farm was robbery. Robbery is a crime. There is no criminal robbery or political robbery, but for the purpose of the Act you can say it was political robbery. The goal was to acquire firearms and the basic motive on which everything was premised was political. That is, to go to the farm to take firearms, to return to the community in question, to train the community in firearms through the particular SDU structure, to defend it and to advance its cause.

Secondly, the acts of the night in question were not extraneous or outside of this basic objective. As this acts in totality as to time, duration, place and their nature occurred as one component in a very short time. And it would be factually and illegally inaccurate to compartmentalise the acts and to separate them from the basic overriding motive and objective which was essentially political in nature.

Even the High Court said there was no evidence before it at the time suggesting that there was a political motive behind the incident. (see page 36 of the bundle). The High Court did therefore not rule out the possibility that there could have been political motive behind the incident but that such was not placed before it. And the applicants today, at least for applicant Mali, are supply or furnishing that political motive, namely to acquire firearms for political action. They never testified in Court to deny the existence of a political motive.

Thirdly, to the important question as to why this SDU structure did not inform the ANC of either its existence or planned action. The answer is that the SDUs were under no obligation to report to the ANC or any political organisation. Page 9 of the guidelines states quite clearly that:

"These Self Defence structures should embrace all people's political, social, cultural organisations irrespective of ideological differences and political affiliation."

That is the first sentence. The second sentence says:

"In other others defence units should not be affiliated to any political party or movement but with the protective force which serves the community as a whole."

Maybe applicant Mali did not state this, but he was asked whether he was acquainted fully with the contents of the guidelines and he said he had a broad understanding. Maybe that broad understanding included these two clauses.

Fourthly, as to why the applicants took a whole year from August 1991 to August 1992 before attacking a farm to acquire weaponry. The answer is that firstly, the applicants were not exclusively preoccupied with the acquisition of weaponry. They were in the meantime during that year engaged in other SDU work which was physical training and political education and which was fundamental to lay the basis for further action. These were multidimensional aspects or components of self defence by any serious defence structure and were preparatory in nature to more serious activities, like usage of weaponry. Furthermore, applicant Mali testified further that it was not an easy task.

CHAIRPERSON: May I interrupt you on that one, before I lose momentum of your argument, please. You say the applicants between the period August 1991 to August 1992, were engaged in other activities with in the broad SDU structures, amongst others, the training of other members and we are fully aware, those of us who have been involved, I think you know of various communities, in such structures. That is quite possible, but what I actually find difficult to comprehend in the application of Mr Mali and Stemele, is that according to Mr Stemele, he wasn't really occupied in training other people, he was a trainee himself?

He was only involved with Mr Xholani most of the time, not involved within the broad structures of the SDU. What do you say to that, and my also - cause of concern is the evidence tendered by Mr Mali that the Unit came into existence in August 1991, whereas Mr Stemele has stated that he only became a member of this Unit in August 1992. Can you address me on those issues?

MR NYOKA: Yes, firstly Honourable Chairperson, I am going straight on the evidence of applicant Mali, this is what he said, maybe applicant Stemele was a very, very absent Unit member. Maybe he was an incompetent and inefficient Unit member, who was absent most of the time, but I am talking about applicant Mali, who was apparently diligent. Can I move on, thank you.

CHAIRPERSON: You will still come back to address me on this issue. If you feel that I am interrupting the flow of your argument, you may move on to other issues, but this is an issue I would like you to return on.

MR NYOKA: Furthermore, applicant Mali testified that it was not an easy task to either acquire weapons or to identify or attack a farm for the purpose of acquiring weapons.

Maybe the delay or dilatory nature of their Unit, indicated incompetence on its part, rather than a lie that there was no such an SDU Unit in the first place, but just a small bunch of greedy criminals.

We have to realise that at the time, there was the embarrassing Operation Vula, where weapons were found to be in the possession of a certain political organisation, and gathering weapons was a very sensitive issue in 1991 to 1992.

I am not sure exactly ...(intervention)

CHAIRPERSON: Has it ever never been a sensitive issue, it has always been a sensitive issue?

MR NYOKA: ... politically sensitive issue, maybe sensitive under general, but I am narrowing to politics. As to the related question, why afterwards did they not tell the ANC of their fatal mistake in killing an ANC collaborator, the answers are that they were shocked as they said, by this. Maybe they felt so ashamed of having done so, that they resorted to accepting blame. They co-operated with the police and made confessions and did not even testify in court and maybe also they feared that what will happen to them, will be expulsion from the ANC. As to why they did not say in their confession, it was because they were protecting some other Unit members, including the organisation itself, from public ridicule. That is why they didn't mention it.

The opportunity arose today for them to mention everything because the operation apparently which they shielding, is now in power. As to the ANC's denial that a meeting was held in PE between ...(intervention)

ADV BOSMAN: Mr Nyoka, I don't want to interrupt your argument. Are you not perhaps speculating here, you say that they now had the opportunity to say why they did not report to the ANC afterwards that they had killed Mr De Villiers, and you say that they feared expulsion. I do not recall that they gave that evidence?

MR NYOKA: I am saying maybe they feared expulsion, I am saying maybe. When I sat down and thought about this yesterday, I included it. I am saying maybe. Thank you.

As to the denial that a meeting was held in PE between the late Mr Hani and some MK or SDU members in early 1992, as per letter of the ANC, applicant Mali explained that he had made a mistake in his affidavit about the date and period, that it was not in early 1992, but some time in August 1991.

This explains why perhaps the ANC could not confirm this meeting, because of the date, but outside information like the recent application by the Minister of Public Works that the SDUs sought the guidance of the late Mr Hani on the acquisition of weapons, confirms that there could have been such a meeting.

On the question which effects the proportionality issue, this also bothered me, I must be honest, and therefore the question whether the applicants' acts constituted politically motivated acts, indeed the following questions raised as alternatives to the murder of the deceased and attempted murder, are valid for example why they did not bind the deceased with the rope if they just wanted to demobilise him? Why did they not shoot him on the foot, why did the not take the motor vehicle away and leave the deceased unharmed, but perhaps bound?

Why did they not perhaps deflate the motor vehicle tyres with a knife, applicant Mali heard. Why did they not leave the deceased untouched or not shoot family members or other alternatives? It is suggested that the reasons why the applicants did not embark upon any or all of these alternatives, are the following: the sudden emergence and unexpected emergence of the other person, Mr Higgens from the bakkie, was an element, a great element of surprise which created a sudden emergency so to speak as there was now danger to the applicants' parties. Hence they made plans for a speedy exit.

The parties, that is the applicants, though knowing that there were two of the four members carrying one weapon each and though knowing that one or both could be used and though knowing that someone could die, there was no time or opportunity to perhaps think straight in a typical armchair manner after the incident, as to why the applicants did not do any or all of the other reasonable acts of demobilisation.

Most importantly with regard to both the murder and attempted murder, to which these alternatives relate, not to robbery count, both applicants were convicted in the High Court on the basis of common purpose and foreseeability of death regarding murder and probably death regarding attempted murder.

The fact of the matter which is very, very important for the Committee to note, is that it is not the two applicants who had firearms that night, but Xholani and Kenneth. It is they, Xholani and Kenneth who misfired a shot and fired shots. The said persons are the ones best qualified, if they were present, to answer why they did not act in any of the reasonable manners and they fired a shot after Mr Higgens suddenly appeared from the bakkie.

The present applicants' versions that they themselves did not have firearms, was not rejected by the High Court, but accepted, and today they are applying for amnesty on the same basis though with a different explanation as in the High Court, which basis is common purpose and foreseeability.

Note well, there was no discussion amongst the four of them, there was no opportunity for discussions. Each one had to move separate directions.

CHAIRPERSON: That is not the evidence before us. Mr Mali was asked whether there was a discussion as soon as they realised that their plans had defaulted and his response was that there was a discussion. I recall asking him because this was based on the evidence that appeared in his affidavit, when he said they decided to retreat and leave the area and used words like we realised, decided and he said there was a discussion that ensued amongst themselves. That is the evidence that I recall, so how can you say that there was never a discussion about what was to happen?

MR NYOKA: I did not recall that. Maybe if they said let's leave, and that constitutes a discussion, then that constitutes discussion. What I meant was people gathering together and say, gentlemen, what do we do now? Here are the alternatives, let's do A, B or C. That was never the case.

Maybe by saying let's run away, and if that is a discussion, then there was a discussion, but in the true meaning of the word, or meaning of discussion, that was not a discussion.

CHAIRPERSON: I think his evidence was that as soon as they realised that they were in difficulties, there was a discussion and they decided to demobilise? That was his evidence, they then decided, they had a discussion and decided to demobilise Mr De Villiers?

MR NYOKA: Even if that was the case Honourable Chair, I would not argue with you, but was the discussion about the manner in which the demobilisation was to take place and the answer is no. There was no, because there was no opportunity to discuss exactly the details of the demobilisation.

CHAIRPERSON: Well, I ask that question because that was what was worrying me, because in his affidavit, that would seem to suggest that there was a discussion and I just couldn't fathom how a discussion could have taken place under those trying circumstances.

But it is your argument we are listening to.

MR NYOKA: Maybe there was a discussion or something to the effect, let's demobilise him, but there was no discussion as to the manner of this demobilisation or further discussion on the demobilisation itself.

Therefore rather than considering reasonable alternative steps to have been taken by people who factually could not have taken such steps as above, that is the two applicants, we should only be asking the following simple question: were the actions of Xholani and Kenneth imported as a question of law to the two applicants, disproportionate to the goals sought to be achieved in the circumstances by them? If the answer is yes, then the applicants' actions were that day similarly disproportionate and therefore not political acts.

In other words, the applicants taken by complete surprise by the sudden turn of events, did not know exactly what was happening in that mobile and confusing scene of that day, but intended in terms of the law, to commit all the three offences for which they were charged, convicted and sentenced.

Today they are applying for amnesty for all three offences, basically on the same principles of law and almost on the same version found to have been fact by the High Court.

I take the opportunity to quote the High Court on page 41 in the bundle where it says on the act or actus reus, "association in a common illegal purpose constitutes the participation, the actus reus. It is not necessary to show that each party did a specific act towards the attainment of the joint object. Association in the common design, makes the act of the principal offender, the act of all. Significantly, we cannot ask them what they could have done when what was done, was not in fact done by them. Though in law, it was done by them. We also cannot ask them what they could have done only after the fatal act of killing the deceased and the shooting at the windows, were already done by others, who could have been best qualified to answer those questions and where such shootings occurred, as to space and time, closely and very briefly."

During 1992, the conflicts of the past had not ceased as they were the following: 8 April 1992, there was the Polla Park incident, 16 June 1992, the ANC tri-partheid alliance embarked on a national programme of rolling mass action, 17 June 1992, the Boipatong massacre incident occurred, 27 June 1992, the ANC withdrew from the negotiations and there was intense mass mobilisation and political action. On the 3rd and 4th of August there was a successful two day stay-away, 7 September, the Bisho massacre. The fact that the armed struggle was suspended, did not mean that the conflicts of the past, were absent. As indicated, there were such conflicts which are not defined by the Act and we should therefore construe the term conflicts of the past, in its ordinary, general meaning and it is a golden rule of the law of interpretation that words must be given their ordinary grammatical meaning in the context in which they appear.

With regard to full disclosure, applicant Mali has made a full disclosure, including the fact that he had lied previously about this incident. Having lied in court and not at the amnesty hearing, does not mean one has failed only by virtue of lies of the past, to have satisfied the requirements of full disclosure.

One is given an opportunity today to come to make a full disclosure about past lies, about past half-disclosures and about non-disclosures, past non-disclosures.

With regard to applicant 2, it seems applicant 2 went to the farm for mixed reasons, to obtain money and to acquire firearms, and the Act is clear that you cannot obtain amnesty if you go for personal gain. I do not know what weight can be attached if one has got mixed objectives, but I will leave that in the able hands of the Committee, but we must bear in mind that he never shared his money discussion with applicant Mali.

He never discussed even once at the scene or afterwards or even yesterday, that he had money discussions with Sammy. Sammy ...(indistinct) was not part of the group that went to the farm.

To show that other members went to the farm to rob money, they went to the farm to rob for political purposes. Even Kenneth who was not charged later on, was a political person, was the one from whom the gun was borrowed to show that there is a political linkage or political logic regarding all this.

No one who was not political, was involved. Applicant Stemele never told the other three members of the group that day of the money discussions he had with Sammy. It is only him who knows. I am not dumping my own applicant, but I have to honestly state the truth. My client, I leave it in the able hands of the Committee. I have nothing further to say about Mr Stemele.

I think Mr Mali satisfied all the three requirements of the Act and should be granted amnesty. Regarding that question by the Honourable Chairperson, I have now forgotten, maybe I can be, you know, reminded what the question was.

CHAIRPERSON: What weight should we attach to the fact that the evidence tendered by Mr Mali with regard to the formation of this Unit, the Special Unit, and that tendered by Mr Stemele is different. Mr Mali you will recall, stated that when the Unit was formed from August 1991 up to the time it undertook this operation, it consisted also of Mr Stemele.

As we have just heard from Mr Stemele, he only became a member of that Unit on the 17th of August.

MR NYOKA: To me Honourable Chair, I think the balance of probabilities are such that the version of Mr Mali that there was an SDU Unit is the one that is more probable than that of Mr Stemele.

Having said that, we have got two applicants, although the applicants, they are applying the same day, the next logical question is, what weight should we attach to this conflicting evidence where it so conflicts? I would want to say that each applicant must be treated separately as if he came on his own on a particular day.

Let's look separate at what Mr Mali is saying and look separately at what Mr Stemele is saying. I will make an example, in the previous hearing where the application of Mr Nieuwoudt was separated in the Biko hearing from the others, the judgement did not - Mr Nieuwoudt's application was treated on its own. Those of the others, separately.

Let's treat them as if they are coming on different days, thank you.

CHAIRPERSON: Yes, I understand that but my only concern is the fact that Mr Stemele would know very well when he became a member of the Special Unit and Mr Mali would equally know quite well when Mr Stemele was a member of the Special Unit. This was a very small Unit.

MR NYOKA: Maybe Mr Stemele did not understand what a Unit was or how it worked. Just because he was in an organisation who was reporting to Xholani Dingane, he thought then it was the same Unit.

As we all know, Mr Mali came, he was an MK person from 1985 to 1991, he fully knows MK structures. Mr Stemele was not privileged in the sense that he knows exactly MK structures, he was relatively new. He thought he was under the same Unit just because there was a linkage somehow between Xholani Dingane and applicant Mali. That is why I am saying the probabilities are such that Mr Mali is more correct than Mr Stemele.

CHAIRPERSON: Thank you.

MR NYOKA: Thank you.

CHAIRPERSON: Mr Schubart?

MR SCHUBART IN ARGUMENT: Honourable Chairperson, thank you. It is the contention of the family of the late Mr De Villiers that the applications of both the applicants should fail.

I intend dealing with the quality of the two applicants as witnesses very briefly and then in general with regard to the evidence that was given and whether they have in fact complied or fall within the ambit of the Act.

Firstly with regard to Mr Mali, it is my submission that he was a very evasive witness. He often didn't answer questions that were put to him. For example he didn't know or he contradicted himself as to when he knew about the existence of weapons. He contradicted himself on occasions.

Again, for example, he said that they shot at the windows so as to prevent identification of the perpetrators that particular evening. Later when he realised that identity wouldn't be the issue any more, he then changed his evidence to say that they shot at windows so that the people looking out of the windows, wouldn't be able to see where they were running to.

This was apparent because he realised that they had also dressed in such a fashion, that identity wouldn't be easy to make, and certainly not if they were running away with their backs to people who were looking out of windows.

He at first said that he didn't know where the guns were contained in the farm house. At a later stage he said it was known that they were contained in the safe. The date of the meeting with Mr Chris Hani, initially in his affidavit he said it was early, during 1992 and then he later changed his evidence to August 1991. There is a considerable difference in those two dates. It is not merely a few days' difference. It is a matter of a number of months difference.

It is my submission that the reason why he changed his evidence in that regard, is because of the content of the letter from the ANC which appears on page 64 of the papers. It was only in an endeavour to try and circumvent the content of that letter, that he changed his evidence.

He said that there was never any mention made of money in his presence by himself or by anybody else, yet that was the very basis upon which the criminal trial was based. Certainly it was mentioned in his presence at the criminal trial.

He contradicted himself with regard to the criminal trial, where as I have indicated, the emphasis was on money. He says that the reason why he lied at the criminal trial was that he didn't want the police to harass the SDUs, but with all due respect, I would believe that the police would probably harass the SDUs whether they were in fact attempting to rob for money or whether they were attempting to rob for weapons. The fact that they were SDUs and part of the ANC, would have meant that they would have been harassed by the Police in any event.

I submit that his reasoning for changing his whole approach, isn't a valid one.

With regard to Mr Stemele, again it is my submission that he was a very bad witness. He was extremely evasive. There were very few questions that he answered directly and I can recall on one occasion at least yesterday that he said that he didn't have an answer to a question.

Many of his replies to questions and today in particular, I say today in particular, I think because he had an opportunity of reflecting on his own evidence and probably realised that it hadn't been so good, but many of his replies today, were extremely improbable.

I would submit that a lot of what he said, just can't be accepted. For example and this was really from yesterday as well, as to why he didn't tell Sammy the reason for going to the farm, if that reason was in fact to obtain firearms, just doesn't ring true and it just doesn't with all due respect, make any sense.

With regard to the confession that he made at the criminal trail, it was difficult to try and ascertain from them and with all due respect, Honourable Chairperson, you tried to find out from him on a number of occasions whether it was his contention or his evidence that he made the confession, or whether he in fact didn't make the confession and whether what was contained in that, is what he actually said to the police or not, irrespective as to whether it was a lie or not a lie.

With regard to - further with regard to the confession, he then said that the whole confession was a lie, but again in questioning by the learned Commissioner, Mr Motata, he conceded that some of it was in fact true. It wasn't all a lie, he was selective in what he wanted to contend was a lie and what he wanted to contend, was the truth.

It is my submission that his answers were highly improbable on a number of occasions. He contradicted himself as to when he knew about the existence of firearms for this particular mission and also his evidence with regard to yesterday and today - yesterday he said that the told Sammy that, or he asked Sammy about the money on the farm and made no mention of weapons and he had a reason for stating why he had no, why he didn't want to discuss weapons with Sammy. Today and probably on reflection of his evidence, he said they discussed both money and weapons and in fact, weapons was more central than in fact was the money.

It is also highly improbable on his version and as also indicated by the learned Commissioner, that he would speak to Sammy about money only, but yet ask Sammy to tell Mr Xholani about weapons. That just doesn't make sense, why Sammy would in fact address the weapons issue with Mr Xholani and yet not discuss weapons with Mr Stemele.

It is my submission that if one looks at the quality of the witnesses and their credibility, that one would reject them as credible witnesses. There was also a contradiction amongst themselves, and that is with regard to the Unit and when the Unit, if at all, was formed and who the members of the Unit were.

There was also a contradiction as to when this reconnoitring took place, whether it was a month before the incident or three days before the incident. Again, we are not talking about a day or two difference, we are talking about a considerable period which just shouldn't exist if there was any truth in what they are trying to tell us here today.

The onus must be on the applicants to show that they fall within the ambit of the Act and also to show that the action in question, was one of a political nature.

It is the submission of the family that what the applicants really were involved in, was a pure robbery for money and that in fact was the purpose that they had in going to the house of Mr De Villiers on the night in question.

ADV MOTATA: Just to interrupt you there Mr Schubart, if for a moment we were to accept that the motive of going to the farm, was purely robbery and in that respect, wanting money only, we don't have evidence that they probably frisked Mr De Villiers whilst he was in his car and according to Stemele that he knew that Mr De Villiers was running a business and he would at times, come back late and if now, the purpose was solely money, wouldn't they have looked for money just at that moment from Mr De Villiers?

MR SCHUBART: They might have, but they might very well have panicked and for that reason not have looked for money. There was no indication that they looked for any arms on Mr De Villiers either. If their purpose was solely for arms, one would have expected them to find out which, he in all likelihood had an arm with him, if he had arms, if he was travelling around at night, he would probably have had a firearm with him, but they didn't look for anything like that either.

It is my submission that on the probabilities, they weren't merely looking for firearms that night. If that was the case, one with all due respect, wouldn't have expected them to wait for Mr De Villiers to arrive at the farm house. Their answers in that regard are I submit, not acceptable. Surely they would have gone into the farm house, they would have looked for the guns themselves. The farm house would have been a relatively soft of certainly softer target than it would have been, had Mr De Villiers had been there.

If they couldn't find firearms, well then they could have waited for him inside the house. There was no reason to first wait for him to arrive and then to look for firearms. Of course if they were looking for money, well, then one would expect them to wait for Mr De Villiers to arrive, because it would be expected that he would bring money from his business, home.

Certainly at the criminal trial, there was no suggestion of firearms and again on the probabilities, it is my submission that the robbery was intended to be one in respect of money only, and not firearms.

Again, if this was a robbery for firearms, and I am going to deal with the Unit briefly in due course, but if this was a robbery for firearms, and if this was emanating from a meeting with Mr Chris Hani in August 1991, then it is highly unlikely that a Unit would have attempted to obtain firearms and it was a pretty poor attempt as it is, but attempt it for the first time, a year after that meeting, if one of its objectives was to obtain firearms.

It is my submission that this Unit in all probability didn't exist in the first place. I say that because if this had been a proper SDU Unit, one would have expected that the members would have been aware of each other, certainly if there were only eight of them in the Unit.

Mr Stemele was very clear in the fact that he wasn't part of the Unit prior to this particular day. If that is so, well, then Mr Mali's evidence with regard to the Unit, cannot be accepted.

Mr Mali can't be accepted in some instances and not in other instances. It is highly unlikely I would submit, that there would have been an SDU Unit that would have gone on a mission of this nature, without any plans.

Mr Mali was asked about the plans that were made beforehand and his answers were extremely vague, but certainly didn't indicate any specific plans that they had with regard to this particular robbery.

The only actual plans that he spoke about, were going there, obtaining firearms and leaving. That with all due respect, really didn't set out any plans.

One would also have expected a vehicle to have been used. I think that as a question put by the Honourable Chairperson. One would have expected them to have had some means of, first of all removing themselves from the scene and back to Port Elizabeth. I don't know if it is common cause, but Addo is quite some distance from Port Elizabeth, it is probably a good 60 km away from the Port Elizabeth area.

Certainly one would expect that they would have had some means to transport the weapons. They would hardly expect themselves, I would imagine to walk for a distance, carrying an arm full of firearms or trying to get a taxi, carrying an arm full of firearms, to get back to Port Elizabeth. It is highly unlikely that this Unit existed in the first place.

It was certainly a poorly planned operation, and again I would expect that if this had been a SDU Unit, which had been trained for this particular purpose, that it would have certainly carried out it tasks in a much more efficient manner than what was the case on this evening in question.

It is also significant that the ANC doesn't support this application.

ADV BOSMAN: May I interpose there. What evidence do we have before us, except this letter and what value can, evidential value, can we attach to the letter Mr Schubart? Could you perhaps just deal with that very briefly?

MR SCHUBART: The - it is my submission that - well, the letter certainly indicates that there was no meeting on the date that was originally suggested by the applicants. I think that that is why Mr Mali changed his evidence in that regard.

It also indicates that the information at the disposal of the ANC was that the motive here was armed robbery and not political at all. It is the only information that we have from the ANC before us, in so far as this application is concerned.

I can only suggest that whatever weight it carries, there is nothing to counter it in any way and there is certainly no counter evidence or anything to the contrary. Again the onus being on the applicants to show that this was an operation of a political nature, one would have expected them to have solicited the assistance and also the support of the ANC in bringing this application, but they haven't done so.

ADV BOSMAN: But surely the fact that we have this letter before us, isn't the evidential value of the letter simply proof of the existence of the letter and not truth of the contents of the letter? Shouldn't you have presented evidence to proof that the content of the letter is true so that whoever had written the letter, could have been cross-examined on the issue of content, the truth of the content?

MR SCHUBART: That might be correct, and I quite honestly don't know. I understood that the onus was on the applicants to show that they had the support of the ANC and not for the family to show that they didn't have that support.

ADV MOTATA: But again looking at the letter itself, it says it could not be established that a meeting took place where Chris Hani was present. It doesn't not categorically say no meeting every took place. It says it could not be established, because reliance on the letter, emanates from you.

I am in agreement with my colleague here, that you should have advanced such evidence that the contents of this letter, could be traversed and the veracity thereof be clarified.

MR SCHUBART: Well, then I am sorry, then that was my error, then I didn't understand the task of the family to be that. I thought the onus being on the applicants, that it would be their task. If it was for the family to do so, then it was my fault and I can however, state that although it says that they couldn't establish a meeting in early 1992, the letter does go on though to indicate that the information was that it was an armed robbery and not political.

Whether there was in fact or wasn't a meeting, it is my submission that the motive behind the incident, is what is of relevance in this application.

With regard to the actual shooting and the killing of Mr De Villiers, it is my submission further there that the act there clearly wasn't commensurate with the objective at the time. The objective being two-fold, one robbery and possibly once it was realised that the robbery wasn't to proceed, the objective then became one to escape.

In respect of neither of those two objectives, would shooting Mr De Villiers and killing him, have been justified.

It is my submission that the act here certainly goes far beyond the objective that was sought to be obtained. It appears that the shooting wasn't to avoid identification, which if that was the case, one could then say well, then they shot Mr De Villiers to kill him, but that wasn't the evidence.

If the shooting was merely to immobilise him, and one must assume that there must have been some consensus amongst the four people who were there as to what was going to happen next, it is hardly or it is highly unlikely that they would all have just done the same things at the same time, without any discussion and certainly it was the evidence of Mr Mali that there was discussion, well if the discussion was then to immobilise Mr De Villiers, and to run away, well, then with all due respect, they did it in the worst possible manner.

They could have as the questions were put, they could have immobilised him in a manner that he would not have died, but now have been able to chase them, and that would have been relatively easy for them to do, by for instance shooting him in the foot or by tying him up, taking the vehicle, immobilising the vehicle. It would have been a simple task for them to immobilise the vehicle, it could have been done very quickly. Even if they didn't ...(intervention)

ADV MOTATA: ... may Mr Schubart, and the argument was tendered by their counsel that the two who are appearing before us, were unarmed. If we were to attribute the decision where to shoot, would we be treating their evidence fairly, because they were not armed? Even in court, the court record says both were not armed.

So to demobilise Mr De Villiers, could we wholly attribute to them that the decision lay with them, what to do at that present moment when they were seeking to run away?

MR SCHUBART: I think it must be accepted certainly for the purposes of this argument, that they weren't armed. The evidence was that they certainly by the time the incident commenced, or they got to the farm, were aware of the existence of the arms, that they associated themselves with whatever occurred thereafter.

I understood their evidence to say that they associated themselves with the actions of those who did have the arms as well, and there was no indication that they would have done anything different and certainly, their evidence wasn't, well, if we had the opportunity, we would have done this or that instead.

ADV MOTATA: Wouldn't that revolve on dolus eventualis?

MR SCHUBART: Yes, it would, yes. The whole criminal intention also - and by criminal intention, I am removing it from political intention, also seems to come out from the fact that they shot at the people who were in the house, and this is while they were running away. Again, it is the other two who did the shooting, but again the two applicants associated themselves with that.

There appears to have been no really good reason for shooting at those people who were looking out of the house. The initial reason proffered was to avoid identification, but they had already told us that they had dressed in a manner, so that they wouldn't easily be identified, it was dark, we know there was a light near the house, but it was dark, they were running away and with all due respect, the identification by the people who were looking out of the window at that stage, would have been highly unlikely and probably impossible.

There can, I would submit be no other reason for the shooting, other than to try and injure or kill the people who were looking out of the window, and again, that action wasn't commensurate with their fleeing the scene at that stage.

There is certainly no indication that any of the actions of the perpetrators and this includes the two applicants, was in any way, an action in self defence, they themselves were not in any danger. I don't know what danger, they spoke of some, they said that the commission they realised was at an end when there was a shot fired by Kenneth, but certainly they at that stage, were in no greater danger than they would have been, had they merely left and run away as they eventually did. I say left and run away, they could have immobilised the vehicle or Mr De Villiers in a different way, but they were never themselves in any personal danger, physical danger on the night in question.

The criteria as I understand it, and if I can just refer to certain sections of the Act, which my learned friend has also referred to, if we look at Section 22(a), again any member, as I understand it, this deals with a member or supporter of a publicly known political organisation or liberation movement, on behalf of or in support of such organisation or movement, certainly Mr Stemele on his own version, wasn't a member of a political organisation.

He says he was there that particular day. With all due respect, I don't think it can be accepted that even if the Unit existed, that he joined it officially on that particular occasion. He was there because he knew about the fact that there was money. That was I would submit, his primary objective.

Whether there were or weren't arms, and whether that was or wasn't discussed, and by arms I am talking about at the farm house, his objective was apparently one of personal gain and as such, he would be excluded from falling within the ambit of the Act.

With regard to Mr Mali, it is my submission that ...(intervention)

CHAIRPERSON: Mr Schubart, why do you say Mr Stemele has not alleged that he was a member of any liberation movement or political organisation?

MR SCHUBART: He said he was a member of the ANC, but he wasn't an MK member and it would appear that he wasn't a member of any SDU.

CHAIRPERSON: But being a member of the ANC, doesn't make you to be a member of a liberation movement? Surely that falls within that section that you have quoted, unless of course you have tendered evidence to contradict his membership?

MR SCHUBART: There is no indication that he was not a member. The whole reason for him being there though, he doesn't seem to have been there in his capacity as a member of the ANC. The evidence of Mr Mali was that there was this SDU Unit which I put in question in the first place, but the mere fact that he was a member of the ANC, I would submit with respect, not be sufficient if he wasn't there on some basis to further the aims of the ANC.

If he was merely there, being a member of the ANC, but to rob for money, that wouldn't assist him.

CHAIRPERSON: But you will recall that we were given Exhibit B, shouldn't his membership be read, shouldn't you take his membership in relation to the Exhibit that has been given to the Committee, which explains how the SDU came into being and the support that the ANC gave to the SDUs?

ADV MOTATA: And before you respond Mr Schubart, if we have regard to the bundle of papers, page 8 is confirmation of him having left the country and having regard to page 8 and Exhibit B read together.

CHAIRPERSON: You are now talking about which applicant, Mali or Stemele?

MR SCHUBART: It is Stemele I was talking about.

CHAIRPERSON: Yes, I was trying to correct my colleague, because he is now referring to Mali and you are referring to Stemele.

I think if you have regard to the content of Exhibit B, you will realise, I think we must accept that he was a member of the ANC and he says that he also was a member of the SDU, he should comply in terms of Section 21(a).

MR SCHUBART: Honourable Chairperson, if he was a member of an SDU, yes. We actually question whether the SDU, which was testified to be Mr Mali, existed. Certainly on Mr Stemele's version, he only joined this group of persons on the day in question.

I submit with respect, that it can't be held that he was a member of the SDU at the time of this incident. Even if that SDU did exist. He was merely there for whatever reason, but certainly not as a member of the SDU.

If he was, then I accept that he would certainly fall

within the Act, yes.

With regard to Section 20(3), where the criteria are set out, again it is our submission that the motive here was one of robbery for money, and not for firearms, and as such, the applicants should not be successful.

If one also then looks at the gravity of the Act, again, it is our submission that the killing of the person, the murder of Mr De Villiers was of such an extent that it just wasn't commensurate with the objective of what the applicants wish this Committee to believe they were there, and that is to obtain firearms, or even to flee at that stage.

One must also look at whether the object was primarily directed at a political opponent or against a private property or individual, well, in this particular instance, in fact it was against an individual and in fact an individual who wasn't a political opponent but in fact an individual who was trying to support or assist the ANC with information.

Then under Section 20(3)(f), if one looks at the relationship between the act and the objective, it is my submission that the act was far beyond the objective that was being sought, even if the objective is looked at at the best scenario for the applicants.

If one looks at Section 20(3)(f)(i) as I understand it, it deals here with that this does not include any act, omission or offence committed by any person referred to in subsection (2), who acted for political gain. It doesn't say only political gain, at least for personal gain. As I understand it, where personal gain is an objective, whether it is the objective or an objective, then the applicants would not fall within the scope of the Act.

Certainly on Mr Stemele's version, the objective or at least one of the objectives was for personal gain, it is highly unlikely that if he was there, to seek money and it was his evidence as well, that he would have taken money if Mr Xholani had decided to do so once they had gone into the house. Clearly the other members of the group, were also well aware of the fact that they were there to rob for money.

That must include Mr Mali. If he is a member, if in fact it was a SDU of which he was a member and of which Mr Xholani was the leader, well then again, he must associate himself with the objective of the SDU at that stage, and that would have been to take money, and again, that would have been personal gain.

I submit that for that reason as well, they would fall beyond the scope of the Act.

If you could just bear with me - perhaps just finally, with regard to the applicants and my learned friend had suggested that they should be dealt with individually and not collectively. Whereas that might be correct, one can't ignore the evidence of the one in evaluating the other, especially if they were together for a common purpose and with a common intention on that day in question, and purportedly members of the same group, whether it was a SDU or just a gang of people who were there to rob.

I don't think with all due respect, that it can be argued that Mr Mali in viewing his application, that no cognisance must be taken of what Mr Stemele said.

Mr Stemele might be the one who is telling the truth, with regard to the fact that the Unit or that he wasn't a member of the Unit, and that it didn't exist. If he says that he wasn't a member of the Unit, then one must question Mr Mali's evidence in that regard, because Mr Mali said he was a member of the Unit.

Surely Mr Stemele would know whether that is or isn't so, and if one looks at the evidence of both of them, it is my submission that one has to do that, and then question the existence of this Unit in the very first place. If the Unit itself is not established, well then I would submit that that would in fact be the end of the matter in so far as the applicants are concerned. Thank you.

CHAIRPERSON: Thank you Mr Schubart. Ms Patel?

MS PATEL IN ARGUMENT: Thank you Honourable Chairperson, there is just one aspect of my learned friend, Mr Nyoka's address to you that I would like to respond to.

It in fact follows on from Adv Schubart's last point, regarding assessing the applications of the two applicants separately. Mr Nyoka raised the situation of Nieuwoudt, or the application of Nieuwoudt, I would just like to bring to the attention of the Honourable Committee that that trial was in fact separated based on the fact that the panel had made a decision on one of the applications, one of the incidents that Mr Nieuwoudt himself had applied for.

The basis or the merits of that application being separated, has nothing in fact to do with the question of assessing two independent applications or independent applicants' stories separately, especially if the versions or the issues to which the two applicants testified to, are so integrally related to each other.

Thank you Honourable Chairperson.

CHAIRPERSON: Thank you Ms Patel. Mr Nyoka, do you wish to have a response?

MR NYOKA IN REPLY: Just one minute Honourable Chairperson, two issues.

The first one was as to why the applicants did not go inside before the deceased came to the house. It was explained by Mr Mali, that they wanted everyone to be inside the house, so that the head of the family so to speak, could lead them to where the firearms were. That is the deceased. This was a reasonable explanation.

If they wanted to rob, they could have gone in and robbed those people and waited for the rest of the people, or for Mr De Villiers to come in. They had two paper bags, they could have filled in those paper bags with whatever, and whilst he was stationary in the car, they could have robbed him of whatever he had in his possession, especially as he was coming from work.

It is reasonable that he had money with him, and they could even have robbed him of the very van and tried to search it of money.

Why will someone armed, run away, if there was no danger? The background which I omitted to mention in my earlier argument is that their background, even if faulty, was that farmers had firearms, that is the first one, the second one is that they were police reservists. The High Court has found that after the deceased was shot, he had a firearm which he handed to his son and say protect my family. The applicants ran away, maybe, I am not saying he is supposed to ...(intervention)

CHAIRPERSON: Are you not speculating yourself in this case? I think your address should be based on the evidence tendered before this Committee.

Not so much on what happened at the court a quo, particularly where no evidence which impinges on that trial, has been led before us.

MR NYOKA: The final Honourable Chairperson, is the letter. The letter of the ANC was not in support or against the application.

All it said was that they found no such evidence of a meeting, end of the matter. Thank you.

CHAIRPERSON: Thank you. May I extend the Committee's gratitude to the legal representatives in this matter, for the assistance that you have rendered to the Committee in assisting us to reach an equitable decision.

We shall reserve judgement in this matter, and the legal representatives will be advised of the judgement, in due course. Thank you.

Ms Patel, I suppose we won't have any application to hear, because of the arrangement of Correctional Services, that they need to leave at four o'clock, and also the VIP people also have to leave by four o'clock, is that not so?

MS PATEL: That is correct Honourable Chairperson.

CHAIRPERSON: So, that being the case, we will adjourn and convene at what time Ms Patel, tomorrow?

MS PATEL: I would like to suggest half past eight, but Correctional Services generally only get in at about quarter to nine, so I would suggest 9 o'clock.

CHAIRPERSON: We will reconvene at 9 o'clock. Thank you very much for your attendance.

COMMITTEE ADJOURNS