CHAIRPERSON: Good morning. We are about to start the proceedings. Just for purposes of the record this is a hearing of the Amnesty Committee sitting in Port Elizabeth. Today is Monday 26th July 1999. The Panel is Chaired by myself, Denzil Potgieter and with me is Dr Tsotsi and Adv Sandi. We will be hearing the matter of Sandile Msongelwa, Amnesty Reference AM6288/97. For purposes of the record for the applicant, Mr Mbandazayo.
MR MBANDAZAYO: Thank you Chairperson and Honourable Members of the Committee. My name is Lunge Mbandazayo, I am representing the applicant in this matter. Thank you.
CHAIRPERSON: Thank you, Mr Mbandazayo. And then for the victims, Mr Nel.
MR NEL: Thank you, Mr Chairman. My name is Greg Nel. I represent the families of the victims, Mrs Zengetwa.
CHAIRPERSON: Thank you Mr Nel. And the Evidence Leader.
MS THABETHE: Thank you Chairperson. My name is Ms Thabile Thabethe. I am the Evidence Leader for the TRC.
CHAIRPERSON: Thank you Ms Thabethe. Mr Mbandazayo, your client is present?
MR MBANDAZAYO: Yes, ChairpeRson, my client is present. Yes, we are ready for the hearing.
CHAIRPERSON: Is there anything else that you want to put on record, or do you want us to administer the oath to him?
MR MBANDAZAYO: Chairperson, I want the oath to be administered.
CHAIRPERSON: Certainly.
SANDILE MSONGELWA: (sworn states)
EXAMINATION BY MR MBANDAZAYO: Thank you Chairperson. Chairperson, I would like - we have just supplied an Affidavit this morning which we intend to use as a basis for this application. I would like if the affidavit can be marked as Exhibit A.
CHAIRPERSON: Yes, we will mark the affidavit of the applicant dated the 26th of July 1999 as Exhibit A.
MR MBANDAZAYO: Thank you, Chairperson.
Can I proceed, Chairperson?
CHAIRPERSON: Yes, please.
MR MBANDAZAYO: Mr Msongelwa, the affidavit which is in front of you, is also before the Honourable Committee Members of the Committee. Do you confirm that this affidavit was made by yourself and you do abide by its contents?
MR MSONGELWA: Yes, that is correct.
MR MBANDAZAYO: Chairperson, I will proceed and read the affidavit for the purposes of the record. Thereafter I'll lead to the applicant for explanation on certain aspects of the affidavit. The affidavit reads thus
"I the undersigned Sandile Msongelwa, do hereby make an oath and state that I'm the applicant herein. The facts to which I depose herein are true and correct and within my personal knowledge, unless the context indicates otherwise.
I was born on the 12th December 1964 at Iningwana location, Idogwa. I grew up in Tsolo until 1977 and I went to Umtata in 1978 where I did standards 3 to 8. In 1986 I went to Umtanzani where I did standards 9 and 10 in Owongalithu High School until 1988. I joined PAC through Azanu in 1986 and 1989 January, I left the country via Lesotho, to Tanzania. I did my basic military training in Tanzania. In 1991 I went to Guinea where I did my further training in Infantry and guerilla warfare. From Guinea I went to Egypt where I was trained in Counter Intelligence and Anti-Terrorism. I came back to Tanzania in December 1992. On my return I became a Company Commander. In May 1993 I was call Mbulelo Raymond Figla and told me that I was to be deployed inside the country.
On leaving Tanzania were two of us, it was myself and Dloks. We were taken by motor vehicle from Bugamoyo to the airport where we flew to Zimbabwe. At the airport we were met by the late Comrade Musi and took us to Hartfield where we met Comrade Keith. We stayed for about a month in Zimbabwe. In Zimbabwe we were joined by Keith and Morapapa. We travelled by train to Bulawayo. We travelled from Bulawayo by motor vehicle to borders of Zimbabwe and Botswana. We jumped the fence. We were met by Lebo and Eddie on the side of Botswana. A Comrade from Johannesburg came to fetch us to Katlehong. Keith was the Commander of the unit.
On arrival at Katlehong, Comrade Morapapa joined his old unit and I also became part of that unit. Comrade Keith received instructions that he must go to Transkei and I was requested to accompany him since he did not know Transkei. It was myself, Comrade Keith and Dloks. We were met in Transkei by the Director of Operations, Comrade Letlapa Mphahlele. I was told that I'm not going to go back to Johannesburg, I was to be deployed in another area and further briefing would follow.
Around the beginning of July I was called by Sandile Ngigelala who was known as Mandla Power or Mzala, who was also an Administrator of Apla. He told me that I'm being deployed in Timbasa in the former Ciskei where I will conduct training of the Task Force members. I started doing the physical training and I did not have arms to train them. I contacted Comrade Mandla and I told him that I do not have arms and ammunition to train the Task Force. I only had one Z88 9mm. He then asked me whether there is no police station in Timbasa. I told him that there is a police station. He told me that I'm a trained cadre of Apla and I must get the arms from the police at the police station or any policeman.
I then made reconnaissance of the police station and discovered that on Fridays and Saturdays the policemen are always drunk at the police station and there are few and can be overcome by only two people without firing a single bullet.
As an Apla operative, my general instructions from Apla High Command was to prosecute the arms struggle with all means against the then racist minority regime which was undemocratic and oppressive. The said arms struggle was in essence a guerilla warfare during which we as Apla cadres had to seek and attack the bastions minions of the then aforesaid regime.
The ultimate objective of PAC and Apla was not only to topple the then racist minority regime but to eventually return the land to the majority of the people of this country. The bastions and minions of the then erstwhile regime were in terms of Apla perspective, the members of the South African Police and Reservists in general, the members of the South African Defence Force, the farmers, as they belonged to the Commando structures, over and above the fact that they occupied the farms which we had to drive them away from, so as to widen our territorial operational base, which was aimed at eventually consolidating the liberated and repossessed land, the white homes which were regarded as garrisons of apartheid.
My general instructions were to seek, identify and attack the enemy who was seen in the context of the above stated bastions and minions of the regime and also to train other cadres and command them in whatever operation that is being embarked upon, In consequence of and in pursuit of the above stated objective, during or about the 9th day of October 1993, I was the Commander of the unit of Apla that launched an attack on the Timbasa police station and as a result thereof one Luke Loyolo Bright Zengetwa lost his life and also my Comrade Mzokolo Mtsungwana, alias Kholi lost his life.
I then went there with Kholi on Friday. I was the only person who was armed with Z88 9mm pistol. On arrival at the police station I pointed the two policemen with the pistol. One of the policemen stood up and at the same time he was drawing his pistol and I immediately shot at him. The other one also shot at us and we retreated. Kholi died on the street and I was also injured and I was arrested by the police and taken to Bisho Hospital. I stayed there for three days and was transferred to Cecilia Makuwana Hospital and I was transferred back to Bisho after three days under the police guard. I stayed there for four days and upon or about the 17th to the 18th of October 93, I escaped from hospital under the police guard. I was re-arrested in 1997 and again upon or about the 6th day of November 1997 and at or near Timbasa I escaped at Timbasa police station but I was re-arrested. I am presently in custody awaiting trial at Bisho High Court. The trial was postponed pending the outcome of the amnesty application.
While in custody I made statement to the police and the statement I made was in accordance with what the police wanted to hear and what was also in line with my intended basis of defence. I respectfully submit that my application complies with the requirements of the Act and that I have made full and proper disclosure of my involvement in this operation.
Signed by the applicant."
Chairperson as I indicated I will just lead the applicant on some aspects of his affidavit and if there's nothing, I will start at paragraph 5. Mr Msongelwa can you tell them about Mbulelo Figla, what was the rank of Mbulelo Figla then when he called you that we are being deployed and where is he presently and what is he doing?
MR MSONGELWA: Comrade Figla was in the High Command of Apla. He was also in exile. As a person who was in his
directorate in the Military Intelligence, he's the person who sent me to the country. He is now in the SADF.
MR MBANDAZAYO: Chairperson and Honourable Members if I may add Figla then was a Director of Intelligence, he was the head of Intelligence in Apla and is presently Brigadier General in the SADF, so it means the second in command in the Military Intelligence in the SADF.
Can you tell the Committee whose real name was Dloks? Where is he presently?
MR MSONGELWA: Comrade Dloks' real name is Madoda, but I am not sure of his surname, I do not know his surname. He passed away.
MR MBANDAZAYO: Chairperson, as he indicated he was one of the people who died in Port St Johns in the ambush, where 5 Apla cadres were ambushed in Port St Johns, that's Dloks, it's Madoda.
Can you tell them about, at paragraph 6, Chairperson, Keith and Morapapa?
MR MSONGELWA: Comrade Keith was in the High Command of Apla. He was also in the Communications Department. He is also serving in the South African National Defence Force, but I am not sure of his position. Comrade Dloks, that is Morapapa, is also late, he passed away in one of the operations that he was involved in.
MR MBANDAZAYO: Chairperson, the real name of Keith is Bongani Dlamini, he is presently stationed at Mpumalanga, at the South African National Defence Force. Morapapa, Chairperson, I just forgot, he has been in many of these applications, his name always crops up in these applications, I have just replaced his real name, but he passed away. As you still remember, he was buried when, on the day of the arrival of the coffin of Sadelo Papa.
Now, Chairperson, I will for the purposes of this application, Chairperson, I would like - can you go to - I'll go to the paragraph which involves the actual incident in question. Can you in paragraph 13, can you tell the Committee, in your own words, exactly, take the Committee step by step, your preparation for going to Timbasa police station and also what happened in the Timbasa police and how this incident occurred.
MR MSONGELWA: As I'm saying, I had already received the mandate from above. I went to the police station. First of all I made a thorough surveillance. For a month I used to go there and check the place and check that place if things were still in the same order and the security was still in the same order. I was checking everything, following up on information, sending out Comrade Kholi from time to time to go and check the place and I realised that there was nothing new, nothing had changed and the security as I have indicated here, that during the weekends police were always drunk. We would find them in places like taverns, we would see them and even the information from their side would leak to the public. I went there on that particular day and when we arrived there it was round about 12 or 1, I'm not sure about the time.
CHAIRPERSON: Mr Msongelwa, I'm going to ask you now when you give us the details, just to go a bit slower, we are taking notes of what you are saying and you must also give the interpreter an opportunity to translate to us, interpret to us what you say. So go just a bit slow so that we can just get everything down now, alright?
Go ahead, tell us then exactly what happened.
MR MSONGELWA: When we arrived there, I knocked there. After knocking, they responded saying "Come in". When I came in I made them "hold up", I told them to lie down immediately. This other policeman stood up. He opposed us instead of lying down. I saw his action, that he was trying to take out a firearm. He reached for his waist trying to take out something. My firearm was in the ready position and I fired. The other policemen fired because there were two policemen in the police station. This other policeman didn't give up, he continued firing. I heard that I was shot because I felt something hot on my shoulder.
I called the other Comrade to retreat. We then retreated. On our way out the firing continued. There were other barracks that were next to the police station. That is there when we went there our aim was not to shoot at because we were going to alert the other police who were in the barracks to come and reinforce at the police station. During the exchange of fire, they came to assist the other policemen in the police station. I held Comrade Kholi, trying to run away with him. I could see that he was injured. I was not sure if he was shot at. I was trying to run away with him and I was also losing power because I was also shot. Comrade Kholi fell just across the street that was next to the police station. There was a yard nearby. I got into that yard, that is where the police got me because I was already lying down because I did not have more power at the time. When the police came where Kholani was, they were looking for me. They got to me in that yard. They dragged me next to Kholi and they announced that Kholi was dead. They took me to the van. They were taking us to Bisho hospital.
MR MBANDAZAYO: Now Mr Msongelwa can you tell the Committee what was your purpose of going to Timbasa police station?
MR MSONGELWA: The aim to go to Timbasa police station was to take the arms or firearms in order to continue with the war against the apartheid regime.
MR MBANDAZAYO: No, I understand that you also escaped at Bisho Hospital. What was your purpose of escaping?
MR MSONGELWA: First of all I couldn't sit there and hand myself over to the former racist regime. Secondly I also wanted to continue with the struggle to liberate our country. By staying there it means there would be no progress for me, therefore I could feel that I was still capable of going on in the struggle.
MR MBANDAZAYO: I understand you escaped and again you were rearrested in 1997. Now again you escape in 1997, what was your purpose then, because at that time there was no longer any struggle. What was your purpose of escaping?
MR MSONGELWA: The reason for me to escape for the second time, yes, it is true that everything had come to an end but I used to get threats from the police. They were saying they were going to kill me that is why I had to escape.
MR MBANDAZAYO: Now Mr Msongelwa, you also made a statement to the Police and your statement which you made to the police is different to what you told the Committee today. You told the Committee - the statement in the police that you worked in Umtata and you were given this task by Malo Sibondo. Why are you not mentioning Malo Sibondo today as the person who gave you an order to train the Apla's Task Force?
MR MSONGELWA: First of all the statement that I made to the Police is not true. There's no truth in it in the sense that even the police themselves when they came to me, I realised that they were coming with some information that I had to implicate Sibondo as the person who ordered me in that particular operation and even to me it became clear that it's what they wanted and they knew very well that they were going to assault and torture me. I decided to do what they wanted me to do and I did exactly what they wanted. Right now in this application, I have not mentioned Sibondo because he was not involved in the underground operations because he was training the VIP protection and in his case he was not working as an underground. I couldn't take any orders from Comrade Sibondo.
MR MBANDAZAYO: Chairperson, that's the evidence of the application.
NO FURTHER QUESTIONS BY MR MBANDAZAYO
CHAIRPERSON: Yes, thank you Mr Mbandazayo.
Mr Nel, have you got any questions?
MR NEL: Thank you Mr Chairman. May I ask if at all possible if I could have 5 minutes just to consult with the family. This is an issue I'd like to raise with them. Thank you.
CHAIRPERSON: We will take a short adjournment. You will indicate to us when you are ready Mr Nel?
MR NEL: Thank you Mr Chairman, I'll come back to you.
CHAIRPERSON: We'll stand down.
COMMITTEE ADJOURNS
SANDILE MSONGELWA: (s.u.o.)
CHAIRPERSON: Mr Nel, have you got any questions?
MR NEL: Yes thank you Mr Chairman, I thank you for the kind indulgence.
CROSS-EXAMINATION BY MR NEL: Mr Msongelwa unfortunately we haven't been furnished with copies of the police docket, but the wife of the deceased policeman instructs me that she obviously had an opportunity of consulting with the police officer concerned who survived the incident as well as other police officers, who indicate that the circumstances surrounding the attack itself was such that yourself and your deceased colleague arrived at the Timbasa police station requesting access on the basis that you were going to lay a complaint. Is that correct?
MR MSONGELWA: No, that is not true.
MR NEL: It is also my instruction from Mrs Zengetwa that the version that has been furnished to herself is also that once you were allowed access to the police station, her husband began to take your complaint, or indicated that he was going to take your complaint, when you immediately opened fire on the police officers inside. Is that correct?
MR MSONGELWA: No that is not true.
MR NEL: In other words the version of the deceased's family is effectively that there was no provocation whatsoever, there was no need to use the violence that was used and that were your motives simply to take firearms, it would have been possible to do so without killing the police officers or attacking them in the fashion that they were attacked.
MR MSONGELWA: That was not possible, as I have mentioned earlier that we did not aim to shoot at the police because there were barracks around the police station. By shooting at the police the police would wake up and come and assist the other police, therefore we couldn't stand that kind of a situation.
MR NEL: Sir, I also noticed that during the course of your evidence you said that the statement made to the South African police during September 1997 is not correct and contains a number of false aspects. The one you mentioned was a particular gentleman that you say the police were trying to implicate. Is there anything else false about this statement that you made to the police?
MR MSONGELWA: Yes, another thing that I mentioned is that I was absent without leave in Transkei.
MR NEL: Sorry, do you say that's also an aspect that's incorrect?
MR MSONGELWA: This is one of the points that is not true in the statement. It is in my statement but it's not true.
MR NEL: You see I also notice in the statement that you made to the police, apart from a very small aspects, which I don't see how they affect your application, a lot of that statement seems to match up very much with the evidence that you're giving today. Would you agree with me? Let me put the question differently. You've given a lot more detail in the affidavit that you filed today, but other than for example a name of a person who you say gave you the instruction or the fact that you talked about being absent without leave in the Transkei, do you not agree with me that the statement that has been furnished to ourselves, and would appear that you made to the South African Police, is very much in accordance with what you're saying today.
MR MSONGELWA: Yes, there are parts that are in accordance. I said the statement that I've made to the police in that statement I just added up some things that were not true. That is not the right statement at all.
MR NEL: Can you just tell us again what the purpose was for making the false statement? That being the one to the police.
MR MSONGELWA: My aim to do that false statement, it's because the manner in which they came to me, the police that is, they were actually guiding me as to what to say and I had to implicate Malo Sibondo as a person who had instructed me to undertake the operation. I made that statement because I wanted to survive in court, in the criminal court. I was not making that statement for the purposes of the Truth Commission. The right statement for the purpose of the Truth Commission was the latest statement.
MR NEL: So I don't understand why - sorry.
MR MSONGELWA: When I made this statement this statement that I made because I was guided by the police, they wanted me to implicate Malo Sibondo because they knew him as one of the Apla combatants and they knew him in that area. They wanted me to implicate him as a person who had instructed me to undertake that particular operation of which he was not involved in the underground operations.
MR NEL: And if it's not true, then why were you prepared to do it in a statement to the police?
MR MSONGELWA: I was giving this statement because I wanted to survive throughout the criminal trial.
MR NEL: How would falsely implicating somebody assist you in the criminal trial?
MR MSONGELWA: That is exactly why I did not say he is the one who instructed me to do that, I said it was my initiative. I did not implicate him directly. I did not implicate him, I said that was my initiative, he deployed me there and I took the initiative.
MR NEL: Yes, but you're saying that you mentioned his name because the South African Police wanted you to mention his name and implicate him and that you did so to save yourself in the criminal trial. How would it save you or assist you in the criminal trial to falsely implicate him?
MR MSONGELWA: I am saying I did not implicate him, I just said he is the one who deployed me there, but for the operation that took place, I did not involve him. He was not involved in the operation, I just said I took an initiative after I'd been deployed there by him, I took an initiative to undertake an operation.
MR NEL: You see, if I understand your evidence correctly, it appears that what you're saying is that you made a false statement to the police, or you made certain false allegations in that statement because it would assist you in the criminal trial. Is that what you're saying?
MR MSONGELWA: Yes.
MR NEL: How would it assist you in the criminal trial to make these false allegations?
MR MSONGELWA: First of all I did not want to mention and person's name in court. I was not supposed to put the organisation and the members at risk or a security threat in court. I am not sure if you do understand me.
MR NEL: I'm sorry, I don't understand you. Your evidence was "I made the false allegations to survive the court case and to assist myself in the court case."
MR MSONGELWA: Yes, without involving another person's name, but that had to be clear, that was for the organisation under any circumstances I wanted it to be clear that was a political action or a political operation though I did not have to involve people.
MR NEL: In other words you would make the false allegation so that you could make it into a political operation. Is that what you're saying? These names you use here are correct in the statement you made to the police, including the Comrade that you went to the police station with. You see, you made no attempt to protect him.
MR MSONGELWA: Yes.
MR NEL: So is it not correct that you would make the false allegations because it would assist you in the criminal trial. How would the Commission now accept that the Affidavit you're now making, is not just to protect yourself again? Now that it suits you because amnesty is hanging like a carrot in front of you?
MR MSONGELWA: First of all, this platform of the Truth Commission is free as compared to the criminal court. This Committee is different from the court. This Committee is willing to accept political issues. The treatment would be different in the criminal court whether it was political or non-political, a particular decision would be reached in the criminal trial. Therefore I feel that this is a free environment where I am able to express everything, unlike in the criminal court.
MR NEL: In other words what you are saying, if I understand you correctly, the criminal court would look only at the acts that you committed and not the purpose that you committed them for, is that what you're saying?
MR MSONGELWA: Yes, that is exactly what I am saying.
MR NEL: So in other words what you're also saying is that it's fine to lie in a statement that will be presented to the criminal court, because they're only interested in the act that you committed, but you wouldn't lie here now because they're interested in why you did it.
MR MSONGELWA: Yes, that is what I'm saying.
MR NEL: So if that is what you're saying, how can this body now accept that this affidavit and the evidence you're giving today is the truth, when you've indicated on your own version that you don't see a problem in lying when it suits you?
MR MSONGELWA: I am saying I lied in the criminal court because I know that the procedure in the criminal trial, it is still racist some part and the procedures are still racist and they have some attitude and even the people in the hierarchy are formed from the former racist regime, so this Committee is neutral, that is why I am free to express myself in any manner.
MR NEL: Sir, can you tell me why you would - or maybe you can tell us first if it's true that on the night of the incident you claim, in your statement dated September 1997, that you first went out for a couple of beers at a local shebeen before you attacked the police station. Is that true?
MR MSONGELWA: No, that is not true, but we did go to a shebeen. The shebeen that we went to is next to the police station. The reason for us to go there is because that is the place, the only place whereas we couldn't just be in the public place, that would raise suspicions with the police, the shebeen was a place where we had to go for the last reconnaissance, so that we could go on with the operation thereafter.
MR NEL: So in your statement, if I could just read you the three lines concerned. It reads, it's page 4 of the bundle of documents
"Before we invaded the said police station, we had some few beers in the local shebeen so that we could carry out the operation."
What would be the purpose of inserting that lie into this statement if it's not true?
MR MSONGELWA: I said in the statement that I made for the criminal trial purposes, there's a lot of false in it. To say that I had a few beers, I was saying that so that they could think that I did this because I was drunk.
MR NEL: So in other words you were preparing your defence in anticipation of a criminal trial?
MR MSONGELWA: Yes, I was preparing for my defence, that is what I said.
MR NEL: So in other words, whenever you're on the line and you have to answer for something, you will then manufacture a version, or you will start to prepare a manufactured version?
MR MSONGELWA: That would depend on the type of question that would be asked at that particular moment.
MR NEL: So first of all you anticipate the questions, then prepare the answers, is that what you're saying?
MR MSONGELWA: No, some of the questions in that statement were the questions that were being asked by the Investigating Officer, therefore I was responding to those questions.
MR NEL: So are you certain that you didn't in fact maybe go to the shebeen that night and having a criminal motive, as soon as you'd had enough liquor to be brave enough, you attacked the police station with a view to getting weapons, but with a purely criminal motive?
MR MSONGELWA: I don't understand the question Sir.
MR NEL: I apologise. Is it not perhaps correct, or more truth or a more truthful ring to it that you went to the shebeen that night, you did drink beer and once you were brave enough, yourself and your colleague attacked the police station, possibly to obtain weapons, but with a purely criminal motive?
MR MSONGELWA: It was mentioned that I was an Apla combatant, I see no reason for me after (end of tape)...I had to be brave by being influenced by beer. Everything that I do is coming from the bottom of my heart, I do the right thing.
MR NEL: So you're saying that you wouldn't have required beers to be brave enough?
MR MSONGELWA: I'm trying to say whenever we had to go and fight with the racist regime, we did not have to go and drink beers and something, that is not true.
MR NEL: So if I understand you correctly, it would just be an untruth then in the statement you made to the investigating officer that you had beers before attacking the police station?
MR MSONGELWA: Yes, that is what I mentioned earlier.
MR NEL: Yes, but can you tell me the purpose of that lie, or untruth?
MR MSONGELWA: I said, my aim to lie, I was preparing a defence because I knew - I wanted the criminal court to sympathise with me, I wanted to be acquitted if possible.
MR NEL: And now you're asking the Commission to sympathise with you as well, with an adapted version?
MR MSONGELWA: I just wanted to tell the Commission or the Committee the truth about what happened. It is in the hands of the Committee. It is for them to evaluate the truth, but I have no other truth that I can tell to the Committee, except the one that I'm telling today.
MR NEL: So apart from what you've set out in your affidavit of all the names and places that you mention, do you have any other proof that you were a Commander or a cadre in the PAC and that you carried out any of this training or know any of these people, apart from the fact that you can mention names and places?
MR MSONGELWA: You want to know the proof about what?
MR NEL: Do you have anything else that proves any of what you've set out in this affidavit?
MR MSONGELWA: I have no other proof, except the one that I've mentioned here in this affidavit.
MR NEL: So would you not agree with me that were I to obtain the correct names and possible training areas, I could simply make an affidavit and say that I was a member of a body that was involved in the liberation struggle and if I presented it, are you asking that it just should be accepted?
MR MSONGELWA: You can call any member, any Apla member, well-known Apla member who is available even Romero Daniels, the one who is the head in the Eastern Cape in the military, he can mention that he can attest to that. I don't have a problem with that.
MR NEL: Thank you Mr Chairman I have nothing further.
NO FURTHER QUESTIONS BY MR NEL
CHAIRPERSON: Thank you Mr Nel. Ms Thabethe, any questions?
MS THABETHE: Just one aspect Mr Chair.
CROSS-EXAMINATION BY MS THABETHE: Mr Msongelwa, before you actually went to commit this offence, for lack of a better word, did you sit down and plan this whole incident?
MR MSONGELWA: Yes, that is correct, because we were only going with two people who would be involved, so we planned as two people.
MS THABETHE: Because in your application you've mentioned Sandile Ngigelala, known as Mandla, when you were asked a question as to who gave an order. Would you say that's a correct reflection?
MR MSONGELWA: He is the one who was giving us the order. He was in the Transkei.
MS THABETHE: Exactly what was the order that he gave you?
MR MSONGELWA: I am the one who wanted arms and ammunition from him and myself, as a person who was training the Task Force, he asked me as to whether there were no police station in the area, because as an Apla combatant, he wanted to know if I was never told about initiative and flexibility.
MS THABETHE: So are you saying, you sat down with Kholi and you planned this act? Exactly, during your planning, how were you going to - did you plan as to how you were going to attack the police station?
MR NEL: No, I could not be told that because I was a Commander, I knew everything about launching an attack, or undertaking an operation.
MS THABETHE: No, no, that's not my question. My question is, I understand you were going to go there and attack, I mean did you plan that you were going to shoot right away, were you going to check out what was happening? I mean, just those details. What was your intention. How were you going to actually take the firearms from the policemen?
MR MSONGELWA: The purpose of the attack was a raid and the raid was to capture the arms and ammunition, not to destroy or kill. That the main purpose of the operation.
MS THABETHE: I don't know, you correct me, if I understand you, are you saying when you planned this thing and when you actually went there, your intention was not necessarily to shoot at the policemen.
MR MSONGELWA: Yes, that is correct, that was the intention. Yes, I'm saying yes, our intention was not to shoot.
MS THABETHE: How did it come about that you actually shot at the policemen? What led to the shooting?
MR MSONGELWA: It is because, if I had issued an order to them to lie down so that I could disarm them first and get access to the safe to get more firearms, then this other policeman stood up and he approached us. He took out a firearm from his waist, approaching us. That is when the shooting started.
MS THABETHE: Now, that's my last question. Would you - I'm trying to link that what you've just said with a political objective, you see. Are you saying, I just want clarity on this, are you saying you actually shot because the policemen wanted to shoot at you, which would make it self-defence, or are you saying something else? Maybe I'm not understanding you.
MR MSONGELWA: We were defending ourselves because he was about to shoot us because he saw us, that we had a firearm. In responding he stood up and he reached for his firearm and that is when we started firing.
MS THABETHE: So are you saying that if the policeman did not take out his firearm, you wouldn't have shot?
MR MSONGELWA: Yes, we were not going to shoot, we were looking for what we were looking for, that is all.
MS THABETHE: No further questions, thank you.
NO FURTHER QUESTIONS BY MS THABETHE
CHAIRPERSON: Thank you Ms Thabethe. Has the Panel got any questions?
ADV SANDI: Yes, just one question Mr Chairman. Mr Msongelwa, I'm trying to get a picture of what exactly occurred at that police station when you came in. Did you not have a chance, an opportunity to say to this policeman, to warn him, to give him a warning not to move, otherwise you are going to shoot him? Did you have that opportunity?
MR MSONGELWA: I said when we came in, immediately I just say "Hold-up". So I was instructing them, I told them straight to lie down and he did not lie down, he stood up and he reached for his firearm. I had warned them because I was not there to shoot, I just wanted them to lie down so that I can get whatever I was looking for. Perhaps he took us for granted, or he thought that we were going to shoot at him and he thought that he cannot just die without shooting.
ADV SANDI: Where was his firearm when you shot him?
MR MSONGELWA: It was in his hand as he was taking it out of his waist, but when I was shooting it was already in his hand.
ADV SANDI: Did you give any report to anyone say for example in the High Command of Apla after carrying out this operation?
MR MSONGELWA: After escaping from the hospital at Bisho, I went back and I did a report. I submitted a report.
ADV SANDI: That report was given to whom?
MR MSONGELWA: I submitted it to Power, that is Mandla.
ADV SANDI: Was that report in writing or in what form was this report?
MR MSONGELWA: I did the report verbally and there was another written report because as I was verbally reporting to him, he instructed me to write a report.
ADV SANDI: Was it a practice amongst members of Apla that every time they carry out an operation, they give a report?
MR MSONGELWA: Yes, that used to be Apla tradition, that after doing a job, we have to report back.
ADV SANDI: Thank you. Thank you Chair.
DR TSOTSI: At the time that you escaped from the hospital, where was the policeman who was guarding you?
MR MSONGELWA: The police who were guarding me were four at the time but what happened was this. On that particular Sunday Viyani Nene was involved in a boxing game and when they came, when the police came they were already drunk. I told myself that that was the only chance, there was no other chance.
DR TSOTSI: So the police were there. Did they see you going out?
MR MSONGELWA: No, but what happened is that I was in the ward and they were in one other room just nearby that was opposite the ward that I was in. I used to look at them as I was in the bed, on the bed I could see them in their particular positions and when I was about to leave, I saw that they were sleeping because they were drunk. I shaped the blanket as if there was someone under the blanket and I went through the window.
DR TSOTSI: What injury did you sustain?
MR MSONGELWA: Two bullets on my upper body on my chest and one bullet on my leg.
ADV SANDI: The Z88 mm pistol, where did you get that? Whose pistol was this?
MR MSONGELWA: I got it from Umtata from Mandla when he was deploying me.
ADV SANDI: Concerning one of the offenses for which you have applied, that is escaping from prison, from police custody in 1997, what was your political objective when you escaped from custody in 1997?
MR MSONGELWA: I did mention that the police were not treating me well and even I was apprehended, they were telling me that I should follow the deceased. They were going to kill me. They were telling me such things so I was not comfortable, I decided to escape again.
ADV SANDI: Who were those police who were threatening you?
MR MSONGELWA: The police who used to come in the cell. When the investigator comes to take me there will be other police accompanying him and they would take turns in accompanying the investigating officer.
ADV SANDI: What does that mean? Do you mean to say that you do not know the name of a single policeman?
MR MSONGELWA: No, I know no one of them, but there is someone but he is deceased. He is now deceased. Let me say, I don't know their names. I used to hear them calling one another, chatting. I don't know their names because the person who used to fetch me was not, they would not use the same person, they would take turns fetching me, therefore I couldn't know them very well and I was still new with them in 1997.
ADV SANDI: Is there any other reason why you escaped from police custody save for the one you've mentioned?
MR MSONGELWA: I cannot say at the moment.
ADV SANDI: Did you have a lawyer representing you at that stage?
MR MSONGELWA: No, not at that time.
ADV SANDI: Thank you. Thank you Chair.
CHAIRPERSON: Thank you. Yes Mbandazayo, any re-examination?
MR MBANDAZAYO: None Chairperson.
NO RE-EXAMINATION BY MR MBANDAZAYO
CHAIRPERSON: Yes, Mr Msongelwa, you're excused.
WITNESS EXCUSED
CHAIRPERSON: Is there any further evidence that you intend leading Mr Mbandazayo.
MR MBANDAZAYO: Chairperson, I don't have the person I was intending to call which he mentioned lastly, Romero Daniels, Commander of the Eastern Cape of South African Defence Force. Unfortunately he went to course yesterday. He left this morning so I couldn't, he was the person I was going to call, so that's the applicant's case, Chairperson.
CHAIRPERSON: Yes. Thank you Mr Mbandazayo. Mr Nel did you intend leading any evidence?
MR NEL: No evidence, thank you, Mr Chairman.
CHAIRPERSON: Ms Thabethe, did you intend to lead any evidence?
MS THABETHE: No evidence.
CHAIRPERSON: Thank you. Mr Mbandazayo, do you want to address us on the merits of the application?
MR MBANDAZAYO: Yes, Chairperson, I'm ready.
MR MBANDAZAYO IN ARGUMENT: Thank you Chairperson. Chairperson, I submit on behalf of the applicant that the applicant has complied with the requirements of Section 20 sub-section 1 and also sub-section 2. That he was clearly acting on behalf of Apla, a publicly known political organisation and a liberation movement, which was engaged in political struggle against the State at that time. Chairperson, it is also clear that the applicant did not act for any personal gain when he acted on the day in question. Also Chairperson, if we can go to the evidence which has been adduced by the applicant, it's clear Chairperson that he is not from the area of Timbasa, he is originally from Transkei and there is no evidence to say that he has any personal knowledge of the said policeman who died or the policemen who were the police at the Timbasa police station, except to know that
they were policemen and as such it's clear that there is no way that he can travel himself all the way from Umtata to go to Timbasa and kill policemen just for the sake of criminality, after passing all the other police stations.
It is clear Chairperson that Mandla Ngigelala has appeared, his name has been mentioned many times in the applications of the Apla cadres because he was an Administrator also in the Logistics. Chairperson, also the names he has mentioned starting by the person who deployed him, Raymond Mbulelo Figla, is known by the Committee. He has testified in many, the last one being the end of the month in Tzaneen, Brig Gen Figla, testifying on behalf of the Apla combatants. So also Leglapa Mphahlele, the Director of Operations who told him that he is no longer going to go back to Johannesburg, he is going to stay here. He is known Chairperson, he has been mentioned many a times and also Morapapa in known. All the names mentioned Chairperson, have been mentioned before the Committee and other various Committees which indicates that what he did, he did it on behalf of Apla and that what he did was politically motivated.
We know Chairperson, that in terms of Apla perspective and operations South African National Defence Force, South African Police, the farmers and the whites were the targets. Even if, Chairperson as it is clear in his affidavit, even if they were not going there particularly for arms, it was still within their scope to kill the policemen because it was within Apla's perspective and operational framework to kill the policemen because they were regarded as bastions and minions of the regime then. So there was nothing wrong in terms of Apla, if they killed policemen, because it was within their scope.
Chairperson, coming to the statement he made to the police. Chairperson we know, all of us, in all the cases everybody, whenever you go to court, you go to court, some even deny their involvement. When you have a court record you find that he was denying even if he was present, because he only wants to get away from the case, that's why. So, there's not much emphasis that can be put on the statement he made to the police and taking into account that they never even told him about his rights, also that he's supposed to have an attorney of his own, all he did, he did on his own, not knowing anything. Now taking all those things that he mentioned that the purpose is that the policemen came with information, they already knew that Malo Sibondo was an Apla Cadre and they would believe him because he was in that area, Malo Sibondo, a known Apla cadre, they'd believe that he has been sent by him and as such that is why he said he was deployed by him. But it's clear from the statement that he made sure that the political motive of his actions was always there. Chairperson, I won't like to waste the time of the Committee. It is therefore my submission that the applicant has made his case, that he was, he is an Apla cadre and he acted on behalf of Apla and that he did not act for any personal gain or act out of malice, but he acted within the course and scope of his organisation and therefore Chairperson, it's my humble submission and my request that the applicant should therefore be granted amnesty. Chairperson, unless the Committee would like me to address it on any other specific point?
CHAIRPERSON: Just one thing, Mr Mbandazayo, what is the exact date of this incident?
MR MBANDAZAYO: Chairperson I think the incident happened on the night, that's why we mentioned the - we are not clear whether it was 12 or 1 o'clock, that's why we mentioned this date being the, we are saying the 9th day of October 1993, Chairperson. It was the 9th day of October 1993, Chairperson, when it happened. It was between 12 and 1 o'clock.
CHAIRPERSON: Alright. Yes, thank you Mr Mbandazayo.
Mr Nel, have you got any submissions?
MR NEL: Yes thank you Mr Chairperson.
MR NEL IN ARGUMENT: Mr Chairperson it is my instruction on behalf of the family that they have reservations relating to the application of the applicant, obviously, and I'd be the first to
concede the majority of which are probably more emotional than anything else, nothing that this Committee may decide will bring back the husband and brother of the persons present today.
Mr Chairman it is my humble submission however that it is, the onus rests on the applicant to satisfy the Commission that his acts comply with the relevant Act in that he be granted amnesty. In evaluating that evidence, I trust that the Committee take into consideration that my learned colleague representing the applicant indicates that all the names and the places and dates in his affidavit, which he now asks you to rely on, can be verified or have been verified by various other persons that have at some stage testified before this particular Committee or others sitting for a similar purpose. In that regard Mr Chairman, it will be my humble submission that it would be the simplest thing on earth then, to be able to tie up those names then and simply use them in a defence.
The applicant hasn't made any effort to, and I understand their predicament relating to the calling of a witness, but they've made no effort to place affidavits or confirmation, in any form whatsoever, before the Commission.
Mr Chairman, in respect of the application, the applicant has asked that he be indemnified, or granted amnesty in respect of all of the offenSes for which he has been charged. It is my humble submission Mr Chairman that if this Commission were to find that this shooting incident which occurred in October 1993 was purely politically motivated, and obviously that naturally falls into the possession of the firearms and ammunition, yes then I will agree that amnesty should be granted, if this Commission accepts that he escaped from custody in 1993 to further the aims of the Apla cause and that was a purely political consideration, I would accept yes, that amnesty must be granted. However in respect of the offence of September 1997, I apologise, November 1997, the escaping from police custody, the applicant has placed no political motive whatsoever for that before this Commission. He'd by then already filed his application to this Honourable Body asking for amnesty and his own evidence is that he has absolute faith in the objectivity of this body. No report has ever been made of any police harassment, etc. that'd been his only motive for the escape from custody. I would ask that this Commission would find that there can be no basis for the granting of amnesty in respect of the escaping from custody of November 1997.
However, it is again my instruction from the family that they accept absolutely the independence and the objectivity of this Commission and they will accept any decision that the Commission makes and in that regard I leave it in the hands of
this competent Board.
CHAIRPERSON: Thank you Mr Nel. Ms Thabethe, have you got any submissions?
MS THABETHE: No submissions Mr Chair.
NO ARGUMENT BY MS THABETHE
CHAIRPERSON: Thank you. Mr Mbandazayo, have you got anything further that you want to add?
MR MBANDAZAYO: Chairperson, just on the last aspect.
REPLY BY MR MBANDAZAYO: Chairperson I would like just to concede on the last aspect of 1997, that definitely even if, Chairperson, was it politically motivated, it was already outside the date of application even if it was politically motivated. Definitely Chairperson, I concede on that aspect, definitely, at the time he committed that offence, he had already applied for amnesty so there's no amnesty application for that aspect, but we put it on the affidavit for the completeness of the application, as to what transpired during, from 1993 up to the time of his arrest, Chairperson. It was for purposes of making a full disclosure as to what happened, not necessarily that we are applying now before this Committee for it. I concedE Chairperson, that the last escape definitely falls outside the scope of this hearing. Thank you Chairperson.
CHAIRPERSON: Thank you Mr Mbandazayo. Is that one of the charges that the applicant is facing now?
MR MBANDAZAYO: Yes, Chairperson, he's facing those charges but of course we are just banking our hopes on the fact that if the Committee grants him amnesty on the, if the Committee decides to grant him amnesty, automatically it will fall away, the question of escaping from custody. It has been my experience in some other cases, because the reason for the escape fell away, so definitely if the reason for the escape falls away, definitely there's no escape.
CHAIRPERSON: Yes. So it might be an academic question. Yes, well thank you. That concludes the proceedings. The Panel will consider the matter and notify the parties as soon as the decision in the matter is available, so in the circumstances, the decision in the matter will be reserved.
It just remains for us to thank the legal representatives, Mr Mbandazayo and Mr Nel and Ms Thabethe for your assistance in this matter and for the interested parties, the family, for having attended and for having put their case before us.
We will consider everything that was said and will decide the matter in terms of the criteria which are laid down in the law for deciding matters of this nature, but we thank you. Ms Thabethe, what else is on the roll for today, or do you want us to adjourn for a while?
MS THABETHE: I would have suggested a tea adjournment Mr Chair and then we proceed with the matter of Mr Malgas.
CHAIRPERSON: Yes.
MS THABETHE: Yes, because as you are aware, Mr Chair, there is an affidavit from our Mr Sadi to the effect that Mr Sokia has withdrawn his application.
CHAIRPERSON: Yes.
MS THABETHE: So at this stage I would suggest a tea adjournment.
CHAIRPERSON: Yes.
MR MBANDAZAYO: Chairperson, I would like that I have been given this but Mr Malgas has no attorney. I have been asked by members to assist the applicant in this coming case.
Looking at it it is very quick and I still have time, I would request that if we can adjourn until 2 o'clock, to be able to go through the paperwork, to be able to assist, Chairperson.
CHAIRPERSON: Yes, I think that's a fair request. I haven't kept my eye on the watch in any event. I see that it's already in the afternoon, so we will then adjourn and allow sufficient opportunity for Mr Mbandazayo to prepare the presentation of the
next matter which it appears he has been approached to attend to on fairly short notice and then we will reconvene at 2 o'clock, to hear the matter of Mr Malgas.
So we're adjourned.
MS THABETHE: As the Committee pleases.
COMMITTEE ADJOURNS
