ON RESUMPTION
CHAIRPERSON: The next matter that we will be hearing is the amnesty application of Kanyeso Malgas, Amnesty reference AM2707/96. The Panel is constituted as has been indicated earlier on the record today and perhaps just for purposes of the record it is Monday 26th July 1999 and it's sitting in Port Elizabeth. Mr Mbandazayo for the applicant.
MR MBANDAZAYO: Thank you Mr Chairman and Honourable Members of the Committee. My name is Lungelo Mbandazayo. I'm representing the applicant in this matter. Thank you. CHAIRPERSON: Thank you Mr Mbandazayo. Ms Thabethe is there any other appearances?
MS THABETHE: No Chairperson, it's only myself Evidence Leader.
CHAIRPERSON: Just yourself.
MS THABETHE: And maybe I should put it on record that the victims were notified and they expressed their intentions not to attend the hearings.
CHAIRPERSON: Yes, thank you very much. Are you happy that
we can proceed with the matter?
MS THABETHE: Certainly Mr Chair.
CHAIRPERSON: Thank you. Mr Mbandazayo, is there anything that you want to deal with preliminarily or do you want your client to be sworn in?
MR MBANDAZAYO: Chairperson can the applicant be sworn in?
KANYESO ARTHUR MALGAS: (sworn states)
CHAIRPERSON: Mr Mbandazayo.
MR MBANDAZAYO: Thank you Chairperson.
EXAMINATION BY MR MBANDAZAYO: For the purposes of this application Chairperson, I will use the affidavit, starting page 9 to page 11. Chairperson, I will proceed and read it for the record.
"I, the undersigned, Kanyeso Arthur Malgas, do hereby state I am the applicant in this matter. I am a single adult male, Lieutenant in the South African National Defence force and presently residing at 147 Nicky West Street, Zwelitsha township, Aldo.
I am currently a member of the African National Congress and formally a member of the United Democratic Front and of the Ado Youth League, which was in alliance with the UDF during the 1980s. I have been implicated in the commission of the murder of a white farmer and his wife, Mr and Mrs de Jager, the deceased, which occurred on the 17th June 1985 at Cape Wood, Eastern Cape. Inspector Erasmus of the South African Police Services, Louw le Grange Square, is the investigating officer in the matter.
Prior to the aforementioned murder a meeting was held by the Ado Youth League to launch attacks on white farmers in the district and in accordance with this decision, on the 17th June 1985 I was part of a group of approximately 12 males who went to the house of the deceased. Some of the group went inside the house, whilst I and three others kept watch outside for the police.
After a short while the other comrades emerged advising that the deceased were dead. I was never arrested for this charge, however, the police arrested 8 of the aforementioned males and all eight were later found guilty of murder and two of them were executed. I went to exile on the 27th July 1985 to Maseru, Lesotho, and later to Tanzania, Angola and Uganda for military training as a member of Umkhonto weSizwe, the military wing of the ANC. On the 21st June 1994, I returned from exile to my motherland, the Republic of South Africa and I was integrated in the South African National Defence Force.
I currently hold the rank of Lieutenant in the South African National Defence force and I'm stationed at Lebowakgomo, Pietersburg. I did not personally participate in the murder of the deceased but I associated myself with the consequences thereof.
At the time I was in active support of the movement to liberate the oppressed black majority and to remove the white racist and illegitimate minority regime of South Africa. I honestly thought at that stage that the crime committed was a justifiable means of obtaining the political goals of the national liberation movement.
I feel remorse for my deed and extend my deepest regret to the family members of the deceased. In my capacity as a member of the South African National Defence Force, I presently am a protector of the Constitution of the Republic of South Africa and I believe an asset to our country.
I humbly pray that God will forgive me for my deed and I'm confident that my application for amnesty will be dealt with fairly and justly.
Signed by the applicant."
Now before, Chairperson, I proceed to deal with specific issues, I would like the applicant to confirm whether - do you confirm whether this affidavit was made by yourself and you abide by its contents?
MR MALGAS: Yes, I do confirm that.
MR MBANDAZAYO: Can you, Mr Malgas, just take the Committee, give it some picture of what actually took place in that place but can you start with the planning stage, before you went to the farm of Mr and Mrs de Jager? In your own words, tell the Committee where the decision was taken, how did you go about up until this date when you went to the farm.
MR MALGAS: Before all this happened, there was a meeting that was held in Aldo by the members of Aldo Youth Congress and in that meeting one of the things that were discussed, or one of the decisions that were taken was that farmers should be killed. After that meeting Chairperson, an action was taken. We went from Aldo. We went to kill the farmers and then this first farmer was killed.
MR MBANDAZAYO: Can you then, after the meeting where it was decided, can you take us to what actually took place in the farm? How was this done and how was this farmer killed?
ADV SANDI: Sorry, can we not perhaps take this in stages?
Sorry for the interruption Mr Mbandazayo, can you get more information about this meeting? Who was at this meeting?
MR MALGAS: At this meeting members of the organisation that I'm talking about were there and I cannot mention all the names of the people that were there, but the 12 that went to this farm, they were also in that meeting.
ADV SANDI: ; Are you talking about a meeting that was attended by a large number of people?
MR MALGAS: Yes, it was attended by a large number of people.
ADV SANDI: Now you've said a decision was taken at this meeting that white farmers should be killed. Why should white farmers be killed?
MR MALGAS: The farmers, according to my belief, Chairperson, I can say they were part and parcel of the apartheid, they were the backbone of the apartheid, both in the economy and the apartheid regime itself. Even today, most of the farmers, they are armed, they have weapons and I think that it was one of the things that such a decision was taken.
ADV SANDI: And this Mr de Jager, who was he? Was he known - did you know him before you went to this meeting?
MR MALGAS: No, I didn't know him.
ADV SANDI: Was anything in particular mentioned about Mr de Jager at the meeting, that is before you went out to attack him on the farm?
MR MALGAS: No, the deceased was not mentioned, or the victims were not mentioned. It was referred to the farmers in general. There was no specific farmers that were supposed to be attacked, so Mr de Jager's name was never mentioned. We were talking about farmers at large.
ADV SANDI: But he was one of the farmers residing in the Aldo area?
MR MALGAS: That is correct.
ADV SANDI: Thank you very much. Thank you Mr Mbandazayo.
MR MBANDAZAYO: Thank you Chairperson. Mr Malgas, can you after then - you have put the reason why you went there, can you then take us in details as to what actually took place on your arrival? Who was in charge of this group of 12 people when you went there? How were you armed?
MR MALGAS: Thank you Chairperson. After this meeting, the meeting was on the 16th of June, the action was taken on the 17th if I'm not mistaken, we went from Aldo using a car. We were two groups if I'm not mistaken and this car dropped us near this farm of this white man. Jacky was the one who was in charge. I was given a pliers to cut the telephone wires. I did that. I'm not sure about the distance from the area where the car dropped us and the house of this farm but we walked to a near place, near this house and when we arrived in that area we were divided in different groups and were given specific tasks and I was one of the people who was supposed to be outside. Before the action started, one of the comrades cut the fence that was near to the farmhouse. We then went inside. We had 303 rifles, one 303 rifle, others had knives, weapons, things that were used to kill.
Zukisi Alwyn was the one carrying this 303 assault rifle and I had a torch with me. What would happen, we would known- it happened, one Comrade Maeleni knocked at the door and then when the farmer appeared, because it was dark it was during the night, I would light him with this torch and then Comrade Alwyn would shoot at this farmer and that happened that way but because we were not trained, we were not perfect at what we were doing, we were not trained on using the firearms, he missed this farmer when shooting at him and then this farmer went inside and he tried to defend himself. He shot the first person, Comrade Makwezana. He shot him under the arm, but he didn't die. He was arrested, after that he was found guilty and he was executed. When the plan A failed, we then decided to take plan B. We wanted to take out that farm inside. Jacky then went in to try and break the door. I went to assist him because those doors had a net inside. There were two doors, so it was very hard to break the other door, so we helped each other in breaking that door. Alwyn went inside and then the farmer was there waiting for him and then he shot at him. He fell down. At the time I didn't know whether he was dead or not and then I ran back. After some time Alwyn called. He was not dead inside there and when that farmer went to the door he tried to grab this firearm of this farmer. He then called out for us, he said that he grabbed the farmer. There were comrades that were next to the house and they went inside and they killed that farmer, together with his wife. Things were broken inside that house. Everything was disorganised inside the house. The windows were broken and the doors and everything was lying around. If I can still remember well, we found out there was a child in there. Then I was told that it was an albino because I did not see that child but what I noticed was that there was a division amongst us concerning this child, some said "this child must be killed", some of the comrades refused, they didn't want this child to be killed, but this child was not killed because Jacky took the final decision and that child survived. Things that were found wee two firearms and other things that I cannot remember. Maybe they are in that docket. A van was standing outside belonging to this farmer. When I was called they were already inside the van preparing to go and then we got inside this van and we left. And then we were involved in an accident with this van. Some of us were injured. We then tried to fix this van after that accident and then Jackie after that drove the van. We drove to Motherwell where one comrade Short welcomed us. I don't know his full name. He took everything that we brought with us from the farm. I don't know what he did with those things. I never saw him until today and this van was burned down. I think it was in Soweto, I'm not sure where it was burned down, but it was burned down. After that police were looking for us. We were running. We would go to Soweto and Uitenhage trying to run away from the police, but at the end of the day some of us, some of the comrades were found, they were arrested and some were sentenced, some were executed. I managed to escape from Port Elizabeth. I went to Johannesburg and we were assisted by other members of MK, two members of MK who were using combat names at the time.
Those were the people who helped us to cross the borders of South Africa to Lesotho, then from Lesotho we went to other countries where we got training, military training.
MR MBANDAZAYO: Now, what - you said the others were arrested and as a result some were executed. What happened to those who were not executed? Where are they now? Are they still in jail?
MR MALGAS: No, they are not in jail. When political prisoners were released from jail, they were also lucky. They were released when all the other political prisoners were released. Some of them are working in various places.
MR MBANDAZAYO: Where are the others who were not arrested?
MR MALGAS: Those who wee not arrested, they integrated in the South African National Defence Force like myself, some of them are in Umtata, others are in Pretoria, Kimberley and other places.
MR MBANDAZAYO: Do you know whether they applied for amnesty or not?
MR MALGAS: No I don't know.
MR MBANDAZAYO: That's all, Chairperson, at this stage. thank you.
NO FURTHER QUESTIONS BY MR MBANDAZAYO
CHAIRPERSON: Thank you Mr Mbandazayo. Ms Thabethe, have you got any questions.
MS THABETHE: Yes, Mr Chair, thank you.
CROSS-EXAMINATION BY MS THABETHE: Mr Malgas, you spoke about the fact that you had a meeting where it was discussed that you should launch attacks on white farmers. Why did you need to launch attacks on white farmers? What was the reason or the purpose for launching such attacks?
MR MALGAS: I think I will be answering this for the second time. Firstly when this question was asked, I said the farmers according to my belief, they were the backbone and they were the muscle at that time. Even today they are still used as Commandos and the decision was taken that they should be killed, so it is obvious that we would be able to arm ourselves if we attacked them, because they were part of the machinery of the apartheid, they were armed, they had weapons and everything. I think I'm repeating this the second time, maybe you are not satisfied.
MS THABETHE: Maybe you don't understand my question.
I understand the purpose for you to attack farmers, but what I'm asking you is, when you went to these farms, was your intention solely to kill them, or did you want something out of the farms? That's what I'm asking you.
MR MALGAS: Maybe I didn't understand your question. Our intention was to kill them, was to kill the farmers.
ADV SANDI: Maybe let us put it this way, Mr Malgas. What political objective would you say your group intended to achieve by killing the farmers in that area?
MR MALGAS: First of all attacking the farmers would create - this would make the farmers see that they were not secure and also the government, we would pressure on the government to listen to us because at the time it was the time of the struggle and we had one objective, we wanted to liberate this country so everything was done in order to put pressure on the government so that the government could feel that really we wanted to be liberated.
MS THABETHE: Thank you. How was this - I'm going to come back to why I asked you the first questions, but I just want you to tell me how was this farm specifically target? I understand your decision was to attack any farms, but how was this one specifically targeted?
MR MALGAS: In the group of the people who took part some of them they stayed in those farm areas, so we were not targeting the specific farms. It would be the same if we had started in one other farm, I would be asked the same questions. We did not target a specific farm, the farmers were killed and if our plans did not fail, I think that a lot of farmers would have been killed, more than one, but what happened is that our plan failed, so it was difficult for us to continue killing the farmers. So we did not target a specific farmer, we were killing farmers.
ADV SANDI: You say some of the people who were part of the crowd were staying on those farms. Did they have anything to say about the farmers, particularly the manner in which they were being treated? Did they say they had good relations with the farmers, or what?
MR MALGAS: No, I can't remember them saying anything.
ADV SANDI: Did they have any complaints for example about what was happening on the farms? What did they have to say about the relationship between people who were residing on farms and the farmers?
MR MALGAS: Amongst the comrades I'm referring to, I said that they were staying in those farms. For example ...(indistinct) was staying in one of the farms around Aldo, so they knew the farms, so I was putting this in general. I'm not trying to say that at that time they were staying there, but they knew the environment, they didn't say anything about the relationship of the people and the complaints, but I also resided once in a farm, so the farmers were practising oppression in an extreme way. We all know that. But those comrades, they didn't mention such a thing as a complaint.
MS THABETHE: Thank you. Why I asked you what your intention was of going to the farm and you answered "it was to kill the farmers", it's because if you read in the judgment it's on page 36 of the bundle, it indicates that there was property that belonged to this farmer that was taken by you. If I can just read it, it's towards the end, I think it's line 31, it says.
1 x .22 rifle was taken, 1 pellet gun, 1 long knife, 1 bayonet, R180 in cash, 1 portable radio, 2 torches, 1 thermos flask and the bakkie, assorted linen and foodstuff.
My question to you is, what was the reason for taking these things? Why did you take these things from the farm?
MR MALGAS: In answering this question, I would put it this way. In South Africa we had liberation armies like MK and Apla. As I've already mentioned here before that 2 members of the MK, they were responsible for us in certain things, so the instruction or the decision was that we should take whatever we found there to support people like those because they didn't have such things. Some of the things that are written here I didn't see them, so I['m not a witness to that but everything that was taken there, they were handed over to the Short guy, I don't know what happened to those things. Anything that would assist our underground members was to be taken.
MS THABETHE: Where was this decision taken? Was it taken in the meeting that you should take everything, foodstuffs and all?
MR MALGAS: Yes, it was taken in the meeting.
MS THABETHE: And I've heard you saying that you were going to take this stuff to your underground structure. Exactly who were you going to give it to?
MR MALGAS: We gave these things to Shorts and I think he knew what to do with them. I think I have mentioned that we had two MK members that were staying with us, they were from exile, they were our responsibility because they had nothing.
ADV SANDI: These two MK guys, do you know their names?
MR MALGAS: I don't know their real names because during the time of the struggle I was one of the guerillas, we used to use combat names, so I don't know their real names.
ADV SANDI: Do you know their combat names?
MR MALGAS: That is correct, Sir.
ADV SANDI: What were they?
MR MALGAS: One of them was Sepo, he was speaking Sotho, he was from Jo'burg area and the other was Aubrey.
ADV SANDI: How did you know that these were MK members?
MR MALGAS: We knew them, they were staying with us. They had illegal weapons from the Eastern Block, Makarov for instance. Even when we went to exile, they were the ones who helped us, so I knew them as being members of MK.
DR TSOTSI: Are these the two men that you say helped you to go to Lesotho?
MR MALGAS: Yes, they helped us up until Johannesburg and then from Johannesburg they made arrangements for us to be transported to Lesotho.
ADV SANDI: How did they help you up to Johannesburg? Did they take you there by car? What did they do?
MR MALGAS: From here we took a train, from the station we took a train and then we arrived in Johannesburg, there were people waiting for us and then we were taken by car to a place where we were staying.
MS THABETHE: I just want to find out how many transport did you have which took you to the farm?
MR MALGAS: One car took us in groups to the farm.
MS THABETHE: Okay, it's because somewhere in the Judgment it's indicated that you were travelling in two cars. Would you say that's incorrect?
MR MALGAS: I wouldn't be sure about that, but when we arrived in that place there was a group that was already there. That car dropped us and then it left and then it came with the other group, so I don't know how the first group arrived there. So I'm not sure whether there were two cars, it might be so, but I'm not sure.
MS THABETHE: Do you know to whom this car that came to drop you belonged?
MR MALGAS: The driver of the car was Jaban, we knew him as Jaban, so I was in his car.
MS THABETHE: Now, can you explain why you needed to take the farmer's bakkie with you when you left?
MR MALGAS: What happened is, the decision was that the car that would take us to that farm, it would drop us and then leave and then we would take a car from the farm to come back, so in each and every farm, we were supposed to do that. Take the farmer's car and come back. That was the decision, that the car would drop us and then we would take the farmer's car with us when we came back.
ADV SANDI: Why would you have to do that? Why would you have to take the farmer's car when you leave the farm?
MR MALGAS: I didn't question that, so I wouldn't be able to answer that question. It was a decision that was taken.
MS THABETHE: You've indicated that you actually stood outside, you didn't go inside and therefore would it be correct for me to say you don't know how exactly the farmers were killed?
MR MALGAS: The people who killed them, they told us how they killed them, so if I say that I don't know how they were killed, I'll be lying because Wocni said that he personally killed the wife. He stabbed the wife himself. The wife of the farmer, so according to Wocni's statement I know who killed them, but it is true that I didn't see how they were killed.
MS THABETHE: Was it also told to you that they were brutally assaulted?
MR MALGAS: This, as we were in a group, they told us like Wocni said that he stabbed the wife of the farmer. He said that he's the one who stabbed the wife of the farmer, so they would talk in general as we were in the group, they were not telling me as Malgas, but as we were in a group they would say so-and-so did such a thing, so they didn't tell me personally or they didn't tell me alone what happened but as we were in a group we would sit down and discuss what happened and those things would come up.
MS THABETHE: Was it common cause for your organisation to attack farmers, or was this your first assignment?
MR MALGAS: It was the first assignment.
ADV SANDI: You might be at cross purposes there. Your question was it common cause for your organisation to attack the farmers. Can you ask the question differently because I hear that he says "it was the first time that we attacked a farmer"
MS THABETHE: Yes, I'm interpreting that to say that it wasn't common cause.
ADV SANDI: I thought you were asking him about the policy of his organisation pertaining to attacking farmers. Was that the purpose of the question?
MS THABETHE: Well I can rephrase it. To your knowledge was it the policy of the ANC to attack farmers?
MR MALGAS: The ANC doesn't have such a policy. ANC never instructed people to kill, but people died during the cause of the struggle of the actions.
MS THABETHE: So is it your evidence today that you actually acted outside the policies of your organisation?
MR MALGAS: That is not so, maybe we don't understand each other. First of all at the time I was under Aldo Youth Congress, it was not the ANC. Secondly the ANC does not instruct the killing of people, but people do die during the course of the war.
MS THABETHE: On page 9 of your statement, I'm responding to your response that you were not an ANC aligned organisation. Did you say that? Or maybe I heard you wrongly, did you just say you were not - your organisation, and I'm taking it that it's the Aldo Youth League, was not ANC aligned? Did you just say that, or did I hear incorrectly?
MR MALGAS: Aldo Youth League was aligned with the UDF, Aldo Youth League. UDF which was an alliance of the ANC.
MS THABETHE: So it goes back to my question. Did you commit an act that was against your policy, the policy of your organisation which is the ANC, because according to your statement on page 9, you are a member of the ANC and you belong to the Aldo Youth League and what you did, you did it as an Aldo Youth League, which was aligned with the ANC or which was aligned with the UDF and the UDF with the ANC. My question still remains, would it be correct for me to say the act that you committed it was against the policies of your organisation?
MR MBANDAZAYO: Through you, Chairperson, I'm completely - that this question can be clear because I don't know which organisation is he talking about because at page 9 he's saying, was - is currently a member of the ANC, then he was not a member of the ANC.
CHAIRPERSON: Yes, this seems to have been an action that was decided upon by the Aldo Youth League. So if one talks of the organisation involved, then that would be the organisation.
MR MBANDAZAYO: Yes, Chairperson, that's why I'm saying I'm completely lost. Which organisation he's saying it was against the policies, of which organisation?
CHAIRPERSON: Yes. Yes Ms Thabethe, perhaps you must make it clear because as I understand the evidence, this was a decision that was taken by this particular organisation, so I don't know if - are you asking whether the policy of the Aldo Youth League was contravened, or are you asking whether the policy of the ANC was contravened?
MS THABETHE: Maybe I should clarify Chairperson, from the applicant because my understanding is that the Aldo Youth League was aligned to the UDF which in turn was aligned to the ANC.
CHAIRPERSON: Well, well, not to put tot fine a point on it. At that time when the UDF of course existed, the ANC was still a banned organisation so it wasn't strictly speaking aligned to the ANC it was supportive of the ANC. There couldn't be a formal alliance in those years, as the alliance between the Aldo Youth League and the UDF, that was a clear alliance, that was a formal alliance. The ANC was of course in exile so bear that in mind when you put your questions.
MS THABETHE: Okay, maybe I should rephrase my question. Mr Malgas was it the policy of the Aldo Youth League to attack farmers?
MR MALGAS: As we took this decision, it was the Aldo Youth League that took the decision to attack the farmers. It was the decision taken by the Aldo Youth League to attack the farmers.
ADV SANDI: The Aldo Youth League Organisation, what did it exist for? What were the aims and objectives of the Aldo Youth League?
MR MALGAS: Aldo Youth League was like other Youth Organisations that were present all over South Africa. Our aim as there was an unrest situation, especially in the Eastern Cape, Aldo was a quiet place, there was no action in that area, so a decision was taken to form that organisation, by the people who formed it with the aim of bringing people together and secondly to continue with the struggle. I think each and every organisation, the Youth Organisation that was present in South Africa, they were also having the same objectives, to unite the people and to continue with the struggle.
ADV SANDI: Is that to say that attacking white farmers in that area of Aldo, was part of, continuant with the struggle?
MR MALGAS: The war is a continuation of politics by violent means. When the struggle continues, that is a war. You would use anything to pursue your goal, so it is a continuation of politics by violent means. I am agreeing with you Chairperson.
ADV SANDI: No, you don't have to agree with me because I've not made a statement here, I was asking a question to you? I was asking if, in the light of what you said were the aims and objectives of the Aldo Youth League, now attacking farmers in the area of Aldo was that part of continuing with the struggle as you saw it. It was not a statement? It was a question.
MR MALGAS: Yes, Chairperson, it was the continuation of politics by violent means.
MS THABETHE: Thank you. My last question is, I want to find out who were you accountable to as the Aldo Youth League? Who did you report to?
MR MALGAS: Each and every organisation has a structure. Anything that would happen in that organisation would be decided and there are principles in each and every organisation, so Aldo Youth League had also a structure, like Mr Maekiso and others, they were members of the executive. So a report from that Executive, I'm not sure where they take their report as the Executive members.
MS THABETHE: What about all of the MK cadres that you spoke about earlier on, what was their role in the Aldo Youth League?
MR MALGAS: These people, the MK people, were not members of the Aldo Youth League. They came doing their own operations underground. That is all. They did not participate in anything that involved the Aldo Youth League.
MS THABETHE: Thank you Mr Chair, no further question.
NO FURTHER QUESTIONS BY MS THABETHE
CHAIRPERSON: Thank you Ms Thabethe.
Any questions by the Panel?
ADV SANDI: Thank you. Mr Malgas, did you say on that day some of you were armed with rifles? Where did they come from, these rifles?
MR MALGAS: Let me rectify this, there were not rifles, it was one rifle. I wouldn't ask where it came from at the time. I don't know where it came from but it was amongst us.
ADV SANDI: The leadership of UDF at Aldo, did you receive any warning or caution from them not to do anything like this again?
MR MALGAS: We didn't get the opportunity to meet with the people in Aldo after that incident or that action. From there we went to Motherwell and then after that the police were looking for us, so we didn't have a chance to get further instructions from the UDF. Another thing is that Aldo Youth League was an independent organisation so anything that would come would come from our Executive members and we didn't get that opportunity because the police were looking for us.
ADV SANDI: Now when you left the country and you went to join the ANC in exile, was it known in exile by the ANC that before you left the country, you had carried out an attack with the group at Aldo on Mr de Jager and his wife?
MR MALGAS: Yes Chairperson, they knew about it when we arrived. We wrote our personal background when we arrived there, so they are aware of that, but they didn't say anything and nothing was said. We were not praised as heros, they didn't say anything.
ADV SANDI: You were not warned? There was nothing, there was no statement - was there any statement from the ANC in exile, a statement directed to you to say "Look what you have done is against the policy of this organisation?" You never had a warning of that sort, did you?
MR MALGAS: I don't remember such. It didn't happen.
ADV SANDI: These items that were taken, what was going to be done with them?
MR MALGAS: Let me repeat this again. I am saying, the MK had underground structures and those people were our responsibility as the comrades, so whatever item that was valuable, we would take it to support such people, like those items we took them to Shorts, the person I said was in Motherwell, whom I don't know what happened to him and I don't know what he did with those items, but I'm sure that he used them in the right way, like I'm putting it.
ADV SANDI: This attack on Mr de Jager and his family, was it the first and the last attack on a farmer in that area of Aldo?
MR MALGAS: It was the first attack we were involved in. I don't know whether after that there were other attacks, but this was the first and the last attack for us because we left the country. We stayed a period of 9 or 10 years in exile. I don't know what happened in that period of 10 years. I don't know whether the farmers were attacked. I was never interested in following that up, so I'm not sure. Maybe there were farmers who were killed or not, I don't know, Chairperson.
ADV SANDI: In other neighbouring towns like Kirkwood, do you know if there were any attacks on farmers by people from the Youth Organisations?
MR MALGAS: No, I didn't hear any report about that, about farmers being killed again. I didn't hear that report.
ADV SANDI: Thank you. Thank you Chair.
DR TSOTSI: Who was the leader of the Aldo Youth League at the time?
MR MALGAS: It was Mr Maekiso.
DR TSOTSI: Where is he now?
MR MALGAS: Chairperson I don't know the people that were there, where they are. I never met him again. The person that I met with was Sokia. I don't know where others were, I never met them after that because I was in Pietersburg, then I was transferred to Kimberley, so I come here at certain time, maybe I will be back in December, I don't meet with the others, I don't know what happened to them.
DR TSOTSI: Okay. On what basis did you agree that 12 people should go and attack this particular farm and not for instance 6 on that farm and another 6 on another farm?
I'm trying to see whether - you said 12 of you went together to this farm. On what basis did you agree upon 12 as a number? Is there any reason why you didn't separate if you wanted to kill more farmers in the area? Is there any reason why you didn't separate and say 6 to one farm and 6 to another farm?
MR MALGAS: I don't think that - we wouldn't be organised if we operated in different groups, maybe that would cause a disorganisation amongst you, but I don't think that would have been a proper way. We took a decision that we are all going to go to that place. We wouldn't be separated, so we would all go to that same farm. That was the decision that was taken.
DR TSOTSI: Did you consider at all, or didn't you consider the question of splitting yourselves up into two or more groups so as to facilitate or to hasten the killing of the white farmers?
MR MALGAS: We did not consider that. Maybe if it was considered it would have been done.
ADV SANDI: Just again on the question of the property that was taken from the farm. Did you personally take anything from that house?
MR MALGAS: No I didn't take anything.
ADV SANDI: But you saw people grabbing items, property from the house?
MR MALGAS: Chairperson, I was outside the house. I saw those things when we arrived in Motherwell.
ADV SANDI: What did you see when you arrived in Motherwell?
MR MALGAS: 2 firearms, bullets, a torch and foodstuff.
ADV SANDI: Are those the items that you said were given to the MK member whom you described as Shorty, or short guy?
MR MALGAS: Yes, those are the items. I see that here it is written R180. I didn't see that money. Those are the things that are mentioned that I saw.
ADV SANDI: Who gave these items to Shorty?
MR MALGAS: Jackie Tana was the one who was responsible for us. I think he's the one who gave him, because Shorty would come to our hiding place and the first person he would meet with would be Jackie and they would talk to each other.
ADV SANDI: Did you personally see Jackie giving those items to Shorty?
MR MALGAS: No, I didn't see him.
ADV SANDI: One of the persons that were killed is Mrs de Jager. Why was Mrs de Jager killed, was it not enough to kill Mr de Jager, the husband?
MR MALGAS: Can you please repeat your question?
ADV SANDI: What was the purpose of killing Mrs de Jager?
MR MALGAS: The decision was taken in the meeting to kill the farmers. It was a decision that was taken in the meeting to kill the farmers. On that day farmers were killed so we wouldn't leave any farmer, that would be against the decision that was taken.
ADV SANDI: This decision that was taken at the farmer, is it to say that there was no distinction drawn between women and children? Was any discussion ever entertained on that subject, women and children, not killing them?
MR MALGAS: There was no such discussion. It was not specified. People wee not categorised. I can't remember that being discussed.
ADV SANDI: You said there was a child there as well?
MR MALGAS: Yes.
ADV SANDI: Can you give a description? I thought you said this was an albino? Can you give a description of this child?
MR MALGAS: Yes, they said it was an albino.
ADV SANDI: Did you see this child?
MR MALGAS: No I didn't see the child because they said that the child was in the bedroom sleeping, but whilst they were still arguing, others saying that the child must be killed and other saying the child must not be killed, that's when I heard about the child.
ADV SANDI: Those that were saying the child should not be killed, did they give any reason for making that suggestion, that the child should not be killed?
MR MALGAS: I was one of them, Chairperson. I don't think that the child has the knowledge. I don't care whether it is a child of my enemy, I don't think it's right to kill a child. I think that we had that feeling as others that the child did not have any knowledge, so the child should not be killed.
ADV SANDI: Thank you Mr Malgas. Thank you Chair.
CHAIRPERSON: Thank you. Any re-examination Mr Mbandazayo?
MR MBANDAZAYO: None Chairperson.
NO RE-EXAMINATION BY MR MBANDAZAYO
CHAIRPERSON: Yes, Mr Malgas, thank you, you are excused. Are there any other witnesses Mr Mbandazayo?
WITNESS EXCUSED
MR MBANDAZAYO: No other witness, Chairperson, just the case of the applicant, Chairperson.
CHAIRPERSON: Thank you. Miss Thabethe, any witnesses?
MS THABETHE: No, Mr Chair.
CHAIRPERSON: Have you got any submissions Mr Mbandazayo?
MR MBANDAZAYO: Yes, Chairperson.
MR MBANDAZAYO IN ARGUMENT: Chairperson and Honourable Members of the Committee, I want just to highlight certain points regarding the submission of the applicant. Firstly I would like when the Committee is deciding on this matter, to take into account that this incident happened more than 10 years ago which, if I'm not mistaken, is almost 14 years after the incident. So, some of the issues and some of the incidents that happened then is difficult to remember because some, nobody knew that at the end of the day he would be asked what was happening. More especially that it's even difficult to remember something even last month or the month before, so Chairperson I would like that to be taken into account, that whatever it is there and there should be taken into account the time frame that has elapsed since the incident.
The second point is that Chairperson, I would like the Committee to take into account the political climate that year, 1985 especially 1985, from 1983 to 1985, that was a volatile period in South Africa during the time of the UDF. We know, all of us what was happening at that time. Everybody was moved into action during that time. The political influence of the UDF moved everybody into action. People build structures in order to be also in action, so that is why you have Aldo Youth League, which also was formed also to be in action, to be in line with what was happening all over the country. So in that context the actions of the applicant should be seen in that context of the political climate at the time and that also with regard to especially the items which were taken, in as much as at that time, Chairperson, they didn't know that they took those items because they thought that it's going to help the leaders of the liberation movement. We all of us know that soldiers, there is something they call it a war booty, when they go to war they come up with something to show that they have done the mission they were sent to and they have been in that place and here is the evidence that they have been in that place. A vivid memory of that will be the South African Defence Force when they went to Angola, they always come up with ivory in Angola and it's documented, all of us we know about that. They call it war booty and I would like to be taken in that context. The items that were taken to be regarded as part of war booty, that they came with something to show that they have done what they have done and also which was of value, because as they indicated it was difficult at that time because the cadres were coming inside the country and they have to be prepared for, so some of them were not working people who were accommodating these people, it was difficult to mobilise almost everybody, also those who were working because they always fear that at the end of the day they will lose their jobs if they can be found out that they were doing these things, they were harbouring people. Chairperson in all what I am trying to ask the Committee is that the evidence presented by the applicant before the Commission today should be seen in that context, that the applicant whilst they were acting, they reasonably believed that what they were acting, they were acting within the cause and scope of their organisation which at that time was the Aldo Youth League, which of course at that time was in alliance at that time with the UDF. And as such, Chairperson, it is my humble submission that the applicant has met the requirements of Section 20 sub-section 1 and also Section 20 sub-section 2 and that at the time when he acted and they acted, they acted within the scope of their organisation and therefore it's my humble submission and request that he should be granted amnesty. Also Chairperson taking into account that the other comrades who were arrested and sentenced, when political prisoners were released, they were also released because they were regarded as political prisoners, because their actions were regarded as political.
Chairperson it's my humble submission that I doubt if they were not political prisoners they would have been released for that offence, So it is therefore my submission that also that should be taken into account that those who were convicted and sentenced to death, some were executed, those who were not executed were subsequently released during the release of the political prisoners. Chairperson, I don't know whether there is any aspect you want me to address you on.
DR TSOTSI: Have we got the acts or the offenses in respect of which your client is applying amnesty?
MR MBANDAZAYO: Chairperson, the offenses for which the applicant is applying for amnesty is in respect of the killing of the farmer in Aldo. Of course Chairperson, definitely the possession of firearms, though not personally, but he was aware that there was a firearm present and also of course the taking away of the goods, the robbery of the goods that were taken away. Those are they. Chairperson I would like to hasten to say that it should be taken into account when looking at the application - I know the application just refers to the killing, only killing, Chairperson - it should be taken into account that the applicants when they are filling in these applications are not well versed with the legal
jargon that is involved as to what actually is requested of them, that they have to enumerate, as we know legally that you can be charged with so many offenses and yet you only acted once for a single thing and they can be, in the legal sense, numerated to be many, so it's difficult for them to numerate those, that I'm applying for the killing, and the possession of arms and the robbery and all those things. So they take it as one thing because they were involved in one incident. So I would like that to be taken into account Chairperson.
CHAIRPERSON: So then he applies for the incident.
MR MBANDAZAYO: The incident. Thank you Chairperson.
CHAIRPERSON: Yes. Ms Thabethe, submissions?
MS THABETHE: Thank you Mr Chair.
MS THABETHE IN ARGUMENT: It appears that there's no evidence before the Committee which is contrary to the version that has been placed by the applicant. Furthermore if you look at page 45 of the Judgment and the indictment on page 34 of the bundle, it does suggest that there was a Youth League by the name of Aldo which conducted such act as specified by the applicant and it appears also in the indictment that there was a meeting which was held to plan this incident that the applicant has applied for. With regard to the goods that were taken on the farm, again we don't have any evidence which contradicts the one
that the applicant has placed before the Committee and on that basis I would humble leave the decision in the hands of the Committee.
CHAIRPERSON: Yes, thank you Ms Thabethe.
ADV SANDI: Mr Mbandazayo don't you think perhaps the applicant is even in a better position here because he did not personally expropriate anything from the house. It was just some of the members of the crowd of which he was part.
No question can be raised as to him having acted for personal gain in that area.
MR MBANDAZAYO: Yes, Chairperson, it's clear that he did not act for personal gain, but when it comes to the question of removing, of taking those goods, I have doubt if he was not aware. He associated himself because as he put it, they have to take anything of value that will assist, Chairperson, so definitely he associated himself, so he was part and parcel of it inasmuch as he did not personally take anything, but I agree with you that it's clear that he did not act for personal gain, because as he put it, that they handed over immediately on their arrival to Shorts all the goods taken.
CHAIRPERSON: Yes, thank you very much. Then just in order to get the record complete. The matter that was joined with this one that of Nkolisi Sokia AM1593/96, that one according to our
records, has been withdrawn. Would that be correct, Ms Thabethe?
MS THABETHE: It is correct, Mr Chair and I hope Mr Chair does have a copy of the statement by our Mr Govender.
CHAIRPERSON: Yes, thank you.
MS THABETHE: Yes. Yes.
CHAIRPERSON: Yes, so that matter is not proceeding. Yes, that concludes the proceedings around this particular application. The Committee will consider the matter and will inform the parties as soon as the decision in this matter is available so the decision in the matter will then be reserved. Mr Mbandazayo, we thank you again for your assistance and for being amenable to assist the applicant at fairly short notice. We appreciate your assistance and Ms Thabethe again, thank you.
Does that conclude the proceedings for the day and the roll for the day?
MS THABETHE: It does Mr Chair, until tomorrow.
CHAIRPERSON: Yes.
ADV SANDI: Just for tomorrow. What matters are for tomorrow?
MS THABETHE: We have the matter of Mr Cekwana and the matter of Mr Stokwe. I had requested that copies be made available for you, copies of the schedule and I'll make them available to you.
CHAIRPERSON: Yes, thank you very much. We will adjourn the proceedings at this stage and we will reconvene tomorrow morning at 9.30. We're adjourned.
MS THABETHE: As the Committee pleases.
COMMITTEE ADJOURNS
