CHAIRPERSON: Good morning, we are about to start the proceedings. For the record, it is Wednesday, the 28th of July 1999. We are continuing with the amnesty applications in Port Elizabeth. Perhaps just before we commence the proceedings, we would like to indicate that due to certain logistical difficulties that had arisen, we have not been able to commence the proceedings at the usual time, we apologise for any inconvenience that might have been caused, but the delay in starting was unavoidable. The panel is constituted as has been indicated earlier on the record and we are hearing the applications today of Lungelwa Lupuwana, amnesty reference AM6371/97 and the application of Ntobeco William Matyolo, amnesty reference AM6078/97. For the record, I am going to ask the legal representatives to place themselves on the record. Mr Van Breda?
MR VAN BREDA: My name is Henry van Breda, from the firm Chainford, Skin, Van Breda Attorneys in East London and I represent Lungelwa Lupuwana in this application.
CHAIRPERSON: Thank you Mr Van Breda. Then Mr Nomtenja?
MR NOMTENJA: My name is Clayton Sululami Nomtenja from a firm of Attorneys, SC Nomtenja Attorneys in Umtata. I represent Ntobeco Matyolo.
CHAIRPERSON: Thank you Mr Nomtenja. Then for the victims, Mr Lesele?
MR LESELE: I am Linda Ronnie Lesele, I represent both families of the victims.
CHAIRPERSON: Thank you Mr Lesele. Ms Nketse?
MS NKETSE: My name is Nomvuyu Nketse, I am from the firm Nyoka Attorneys and I represent Mr Mgudlwa, who has been implicated in this.
CHAIRPERSON: Mr Mgudlwa? Yes, thank you, we have noted that Ms Nketse. Ms Thabethe?
MS THABETHE: Thank you Mr Chair, I am Ms Thabethe for the TRC, the Evidence Leader.
CHAIRPERSON: Thank you Ms Thabethe. Mr Van Breda, is there anything that you want to raise before we commence or would you like your client to be sworn in and to proceed with his application?
MR VAN BREDA: Thank you Mr Chair, I would like my client to be sworn in (microphone not on)
CHAIRPERSON: Mr Lupuwana, can you hear the translation? Do you hear? I want you to just switch on the microphone in front of you, leave it switched on and I am going to ask you to stand to take the oath. Can you give your full names for the record please?
LUNGELWA LUPUWANA: (sworn states)
CHAIRPERSON: Thank you, you may be seated. Mr Van Breda?
EXAMINATION BY MR VAN BREDA: Mr Chairperson, my client would like to give his evidence in Xhosa. Mr Lupuwana, how old are you now?
MR LUPUWANA: I am 42 years old.
MR VAN BREDA: Where do you reside presently?
MR LUPUWANA: Butterworth.
MR VAN BREDA: And your occupation?
MR LUPUWANA: I am not working.
MR VAN BREDA: Is it correct that during 1993 you were a member of the Transkei Defence Force?
MR LUPUWANA: Yes.
MR VAN BREDA: May I just remind you Mr Lupuwana, that you can answer in Xhosa.
MR LUPUWANA: Yes.
MR VAN BREDA: Can you please indicate when did you join the Transkei Defence Force?
MR LUPUWANA: I joined the Defence Force in 1980.
MR VAN BREDA: And up until when were you a member of the Transkei Defence Force?
MR LUPUWANA: Up to the 31st of March 1999, 1998 sorry.
MR VAN BREDA: Your Force number, can you recall that?
MR LUPUWANA: 94780061PE.
MR VAN BREDA: Your rank?
MR LUPUWANA: Sergeant.
MR VAN BREDA: Now Mr Lupuwana, on or about the 21st of May 1993, you were instructed to go to Butterworth, is that correct?
MR LUPUWANA: That is correct.
MR VAN BREDA: At that stage, where were you stationed?
MR LUPUWANA: I was stationed at Port St Johns military base.
MR VAN BREDA: Which Unit was that?
MR LUPUWANA: Special Forces Unit.
MR VAN BREDA: Who gave you the instruction to go to Butterworth that day?
MR LUPUWANA: I got the instruction from Captain Mtse.
MR VAN BREDA: Was he your superior at that stage?
MR LUPUWANA: He was my superior.
MR VAN BREDA: What was the instruction that he gave you?
MR LUPUWANA: He said to me I must take off my uniform because I've got to drive a civilian car from Port St Johns to Butterworth.
MR VAN BREDA: Did he tell you why?
MR LUPUWANA: No, he did not specify why.
MR VAN BREDA: And where did you have to take the vehicle to?
MR LUPUWANA: I had to take the vehicle from Port St Johns to Military Intelligence in Butterworth.
MR VAN BREDA: Did he inform you who you were supposed to meet in Butterworth?
MR LUPUWANA: No, he said he was going to accompany me because I've got no driver's licence.
MR VAN BREDA: Did the two of you then go to Butterworth?
MR LUPUWANA: Yes, we moved from Port St Johns to Butterworth.
MR VAN BREDA: And in Butterworth, what happened there?
MR LUPUWANA: On our arrival in Butterworth, on our way to Butterworth, he said that we are to meet Captain Matyolo to bring this car to Captain Matyolo.
MR VAN BREDA: Just one second. Did you then meet up with Captain Matyolo in Butterworth?
MR LUPUWANA: Say again?
MR VAN BREDA: Did you meet up with Captain Matyolo in Butterworth?
MR LUPUWANA: Yes, on our arrival we met Captain Matyolo and another guy that were there in that office.
MR VAN BREDA: Do you recall his name?
MR LUPUWANA: One guy that I can recall is Corporal Powa and the others I didn't know, but I can just look at them.
MR VAN BREDA: What happened from there?
MR LUPUWANA: From there, Captain Mtse spoke to Captain Matyolo, then at the time he was greeting Corporal Powa and the other guys.
MR VAN BREDA: And where did you go to from Butterworth?
MR LUPUWANA: I didn't know where I was going to, but Captain just told me that we are to move from East London, from Butterworth to East London.
CHAIRPERSON: Sorry, who told you to do that?
MR LUPUWANA: Captain Mtse told me to do that.
CHAIRPERSON: Which Captain?
MR LUPUWANA: Captain Mtse.
CHAIRPERSON: Mtse?
MR LUPUWANA: Yes. He told me that Captain Matyolo said that we were to move from Butterworth to East London.
MR VAN BREDA: At that stage, did you know why you were going to East London?
MR LUPUWANA: No, I didn't know.
MR VAN BREDA: Who of you then proceeded to East London?
MR LUPUWANA: It is Captain Matyolo, Captain Mtse ...
MR VAN BREDA: A bit slower. Matyolo and?
MR LUPUWANA: Corporal Powa and myself.
MR VAN BREDA: And what vehicle was used?
MR LUPUWANA: It was a Sentra, white car.
MR VAN BREDA: Is that a Nissan Sentra?
MR LUPUWANA: Yes, a Nissan Sentra.
MR VAN BREDA: Where to did you go when you arrived in East London?
MR LUPUWANA: On our way to East London, Captain Matyolo told us that we are to meet Mr Zonwabela Mgudlwa.
MR VAN BREDA: Just repeat that name for the record.
MR LUPUWANA: Mr Zonwabela Mgudlwa.
MR VAN BREDA: Did Captain Matyolo tell you why you were going to East London?
MR LUPUWANA: No, he did not specify but he told us that there is a task, he is going to meet and talk with Mr Zonwabela Mgudlwa.
MR VAN BREDA: Where did you meet this Zonwabela Mgudlwa?
MR LUPUWANA: That was when we arrived there, we did not meet Mr Zonwabela Mgudlwa, we arrived there.
MR VAN BREDA: Just one second.
MR LUPUWANA: We did not meet him in East London, we met in Amalinda, go to his house.
MR VAN BREDA: Okay. At Zonwabela's house?
MR LUPUWANA: Yes.
MR VAN BREDA: What happened at Zonwabela's house?
MR LUPUWANA: On our arrival there, we met with Zonwabela's wife.
MR VAN BREDA: Yes?
MR LUPUWANA: After that, Captain Matyolo asked where is Zonwabela, but his wife said that he is not there at the present moment, but we can wait for him, because he is coming.
MR VAN BREDA: Did you then wait for him?
MR LUPUWANA: Yes, we waited for him.
MR VAN BREDA: Did he arrive at a later stage?
MR LUPUWANA: No, before he arrived there arrived another guy, Papama Mgudlwa.
MR VAN BREDA: Do you know whether he is a relative of Zonwabela Mgudlwa?
MR LUPUWANA: No, I didn't know him, I know after Captain Matyolo made an introduction to us.
MR VAN BREDA: And did you know either Papama Mgudlwa or Zonwabela Mgudlwa before this day?
MR LUPUWANA: No, I didn't know both of them.
MR VAN BREDA: Papama arrived and what happened then?
MR LUPUWANA: On our arrival, Papama, we just sit there, the four of us and Papama was the fifth guy, then we waited for Mr Mgudlwa, then Mr Mgudlwa arrived at a later stage.
MR VAN BREDA: Is that Zonwabela?
MR LUPUWANA: Yes.
MR VAN BREDA: What happened then?
MR LUPUWANA: Captain Matyolo told us that the gent we are waiting for, has arrived, now we are going to have a few talks about the mission of what we have come to do here.
MR VAN BREDA: And up until that stage, did you know what this mission entailed?
MR LUPUWANA: No, I did not know that mission, but they both, Mr Mgudlwa and Captain Matyolo had a few talks alone, then they came after that.
MR VAN BREDA: Just for clarity purposes, will you please refer because there are more than one Mgudlwa involved, please refer to the first names.
MR LUPUWANA: Oh, Mr Zonwabela.
MR VAN BREDA: It was Zonwabela and Captain Matyolo who spoke aside?
MR LUPUWANA: Yes, yes.
ADV SANDI: Sorry, where was Mtse at that stage?
MR LUPUWANA: He was here. He was in the house.
ADV SANDI: Okay, just give a picture of this, you say that Zonwabela and Matyolo, they go aside and talk?
MR LUPUWANA: Yes, there was, we were sitting in a sitting room, now they just stand up and converse together and then they come back at a later stage.
ADV SANDI: They left Captain Mtse there with you when they went aside?
MR LUPUWANA: Yes, and Papama and Corporal Powa.
MR VAN BREDA: So Zonwabela and Captain Matyolo joined your group again?
MR LUPUWANA: Yes.
MR VAN BREDA: And what happened then?
MR LUPUWANA: They told us that we must wait till dark because we are to do a mission in - Mr Wana's house was as far from the place where I am sitting now.
ADV SANDI: Who was saying you must wait until it is dark?
MR LUPUWANA: It was Captain Matyolo.
MR VAN BREDA: What else did he say?
MR LUPUWANA: He said we must wait until it becomes dark, so that we can move to the house, because the house is far away, this car, we are going to use it, it's been spotted.
MR VAN BREDA: Were you informed why you had to go to Wana's house?
MR LUPUWANA: I was informed, we were informed by Captain Matyolo that we are to get Mr Wana.
MR VAN BREDA: Yes?
MR LUPUWANA: Then Mr Wana must be taken from East London to Umtata.
MR VAN BREDA: What was the reason?
MR LUPUWANA: The reason was that (indistinct) said that he has been instructed by his superiors to get this guy to Transkei.
MR VAN BREDA: Were you informed what was the reason why they were looking for this person by the name of Wana?
MR LUPUWANA: The reason was not in full details at Captain Matyolo told us, to get him because we wanted to answer his cases from Transkei.
MR VAN BREDA: What case was that?
MR LUPUWANA: The case was, he was involved in a coup to overthrow Gen Bantu Holomisa's government in Transkei.
MR VAN BREDA: When was that?
MR LUPUWANA: That was in 1990.
MR VAN BREDA: Just before we proceed, can you please first tell us who was the Head of State during 1990 to 1993?
MR LUPUWANA: At that stage it was General Holomisa as Head of the State.
MR VAN BREDA: Of Transkei?
MR LUPUWANA: Yes.
MR VAN BREDA: Who was the leader of the group that attempted to overthrow the said government in 1990?
MR LUPUWANA: As far and as I know, but not in full detail, it was Colonel Duly.
MR VAN BREDA: That attempt did not succeed?
MR LUPUWANA: Yes.
MR VAN BREDA: All right, let's go back to the house of Zonwabela Mgudlwa. Did Captain Matyolo inform you of the reason for this operation?
MR LUPUWANA: The reason was we must get this guy so that he must face his justice in Transkei, back in Transkei because he had been sent by his superiors to get Mr Wana.
MR VAN BREDA: The information that you have given us now was that given to you by Captain Matyolo?
MR LUPUWANA: Yes.
MR VAN BREDA: Then did you wait until it was dark at Zonwabela's house?
MR LUPUWANA: Yes.
MR VAN BREDA: What happened then?
MR LUPUWANA: When, I cannot recall at what time was it, but we left the house, the five of us, no the six of us, in the same car.
MR VAN BREDA: Did you know where you were going to?
MR LUPUWANA: No.
MR VAN BREDA: Who gave you directions?
MR LUPUWANA: The direction, I didn't get it, but the car was driven by Mr Zonwabela.
CHAIRPERSON: Is that the Nissan car that you were driving earlier?
MR LUPUWANA: Say again sir?
CHAIRPERSON: Was that the Nissan, the white Nissan Sentra that you were driving earlier?
MR LUPUWANA: One Nissan, yes.
CHAIRPERSON: It was now being driven by Zonwabela?
MR LUPUWANA: Yes.
CHAIRPERSON: Mgudlwa?
MR LUPUWANA: Yes.
MR VAN BREDA: And where did you go to from Zonwabela's house?
MR LUPUWANA: From Zonwabela's I didn't recall, I don't know whether it was East London or King Williamstown, but it is a stretch from Amalinda.
MR VAN BREDA: You say a stretch, do you mean quite a distance?
MR LUPUWANA: Yes.
MR VAN BREDA: What happened then?
MR LUPUWANA: On our way, Mr Zonwabela gave me a pistol and gave the other one to Captain Mtse.
ADV SANDI: Sorry, can you just repeat that? On the way, Zonwabela gives a pistol to Captain Mtse?
MR LUPUWANA: Yes.
MR VAN BREDA: This Zonwabela and Papama, were they members of the Transkei Defence Force?
MR LUPUWANA: No.
MR VAN BREDA: Do you know whether they were perhaps members of the South African Defence Force or Police Force at that stage?
MR LUPUWANA: No, I didn't know them, who were they.
MR VAN BREDA: The pistol that was handed to you, was it a 9mm pistol?
MR LUPUWANA: Yes.
MR VAN BREDA: Did he check the magazine for any rounds?
MR LUPUWANA: No, he gave us, we didn't count how many rounds was there in the magazine, but there is the magazine there, how many rounds have the magazine?
MR VAN BREDA: Did you take this firearm?
MR LUPUWANA: Yes, I took it.
MR VAN BREDA: And what did you do with the firearm?
MR LUPUWANA: I just made safety precautions before that, then I put it in my belt.
MR VAN BREDA: And what happened then?
MR LUPUWANA: Then we proceeded on our way, then we were briefed on our way that Papama Mgudlwa has got a key, we must not worry, because I couldn't get that guy in his house, he's got the key, he is going to open the house, then we are to wait outside on our arrival there.
MR VAN BREDA: One second. Who said that Papama has a key?
MR LUPUWANA: It is Zonwabela Mgudlwa who said that Papama's got the key.
MR VAN BREDA: Did you then drive to the said house?
MR LUPUWANA: Then we go and we arrived there, then we parked next to the house.
MR VAN BREDA: What happened there at the house?
MR LUPUWANA: When we stopped there, Papama go outside, go out of the car and then a knock, and then he found there is nobody, then we opened with the key.
MR VAN BREDA: One second. And then?
MR LUPUWANA: Then he opened the house, then it was found that there was nobody inside. Then he came back to us and said that those guys who were supposed to enter inside, that is me, and Captain Matyolo and Papama and Captain Mtse, we can enter there.
MR VAN BREDA: Just a bit slower, it was yourself?
MR LUPUWANA: Yes.
MR VAN BREDA: Captain Mtse?
MR LUPUWANA: Yes.
MR VAN BREDA: Captain matyolo?
MR LUPUWANA: Yes.
MR VAN BREDA: Who else?
MR LUPUWANA: And Papama.
MR VAN BREDA: Did you all go into the said house?
MR LUPUWANA: Yes, we all got inside the house.
MR VAN BREDA: So Zonwabela ...
MR LUPUWANA: Zonwabela and Powa were in the car.
MR VAN BREDA: What happened as you entered the house?
MR LUPUWANA: When we entered the house, Captain Matyolo gave us the position where to sit, as look-outs, me and Captain Mtse.
MR VAN BREDA: Yes?
MR LUPUWANA: Then they proceeded, because you've got a passage - it is a kitchen and the dining room and the back, there is a, I am not sure if it was a bedroom or what, but there is a room on the other side, so they proceeded, Captain Matyolo and Papama.
MR VAN BREDA: Were you instructed to wait inside the house?
MR LUPUWANA: Yes, they said under the table, Captain Mtse was to wait next to the fridge.
MR VAN BREDA: Were you waiting for Wana to arrive?
MR LUPUWANA: Yes, they were waiting for Wana to arrive.
MR VAN BREDA: What happened then?
MR LUPUWANA: Then they searched that house, then I heard them saying that "here are the files that we are looking for."
MR VAN BREDA: One second. If you say they searched the house, who are they?
MR LUPUWANA: It is Papama and Captain Matyolo.
MR VAN BREDA: Do you know what documents they were talking about?
MR LUPUWANA: No, I did not know what they were talking about, but Captain Matyolo only told me that these are documents that he was looking for.
MR VAN BREDA: Sorry for the interruption, Captain Matyolo, with which Unit was he at that stage?
MR LUPUWANA: He was in the Intelligence Unit, stationed at Umtata.
MR VAN BREDA: You found the documents and what happened then?
MR LUPUWANA: When they were still finding those documents, we heard the car waiting inside, just arriving outside. Then after that, they said that we must be quiet.
CHAIRPERSON: I am sorry, where was the Nissan Sentra, was it still parked next to the house or ...
MR LUPUWANA: I don't know whether it was still parked next to the house, because we were inside the house and the house was locked at that stage, we were inside.
CHAIRPERSON: And the car that had arrived, whereabout was that, was that also on the premises or out in the street or what?
MR LUPUWANA: What?
CHAIRPERSON: Was it on the premises, the car that you heard arriving?
MR LUPUWANA: Yes.
CHAIRPERSON: So you are not sure whether the Sentra was still there or whether it was gone at that time?
MR LUPUWANA: No, I am not sure whether it was there or not.
CHAIRPERSON: Yes, sorry Mr Van Breda?
MR VAN BREDA: Thank you Mr Chairperson. You heard the vehicle stop outside?
MR LUPUWANA: Yes.
MR VAN BREDA: What happened then?
MR LUPUWANA: Then we heard the doors banging outside, then we heard the lock, the door was opened by the lock, then arrived three guys.
MR VAN BREDA: When they entered, were there any lights on at that stage?
MR LUPUWANA: The lights were off at the time the cars were arriving, but they put on the lights.
MR VAN BREDA: And the three guys then entered?
MR LUPUWANA: Yes, the guys entered, then Papama was there in front with Captain Matyolo, then they go straight to the place where they were searching for. When they reach them, (indistinct) said "stand still", so the guys just stand and then they open (indistinct), pull out his pistol, saying "stand still".
MR VAN BREDA: One second, you are going a bit quick.
MR LUPUWANA: When these guys entered the house, they go passed to me and Captain Mtse.
MR VAN BREDA: Okay, one second. Didn't they see ... (tape ends) ... were?
MR LUPUWANA: Yes.
MR VAN BREDA: And then?
MR LUPUWANA: I heard Captain Matyolo saying "stand still", because the lights were on at that stage.
MR VAN BREDA: Just to clarify this, did the three people that entered, did they put on the lights?
MR LUPUWANA: Yes.
MR VAN BREDA: Captain Matyolo said "stand still" and what happened then?
MR LUPUWANA: Then the guys, he said they must put their hands on, up, pull their hands up.
MR VAN BREDA: As you indicate now, both hands in the air?
MR LUPUWANA: Yes.
MR VAN BREDA: Proceed.
MR LUPUWANA: At that stage, I heard one of the guys cried and say "no, sorry, we are innocent", the Captain Mtse said ...
MR VAN BREDA: One second.
MR LUPUWANA: Then I saw Captain Mtse open the door and running out of the house.
MR VAN BREDA: Captain Mtse ran outside?
MR LUPUWANA: Yes.
MR VAN BREDA: Did you remain inside?
MR LUPUWANA: Yes.
MR VAN BREDA: What happened then?
MR LUPUWANA: Then these guys, I don't know what has Papama or Matyolo asked "who are you by the way"?
MR VAN BREDA: Did they reply?
MR LUPUWANA: No, these guys did not reply, but they said that "we know you", referring to Papama, "sorry, we are not aggressive to you."
MR VAN BREDA: Did one or all three of them say that?
MR LUPUWANA: No, it is one of them.
MR VAN BREDA: Okay, right proceed.
MR LUPUWANA: I cannot remember who asked "where is Mr Wana", but I heard one saying "no, he is not here, he is in Capt Town, but we are to look the house."
MR VAN BREDA: They said he was in Cape Town?
MR LUPUWANA: They said he was in Cape Town.
MR VAN BREDA: Yes, what happened then?
MR LUPUWANA: Captain Matyolo told us "where is your key", then gave the key to Papama, then Papama took the key of the car.
MR VAN BREDA: Did Captain Matyolo ask for the key?
MR LUPUWANA: Yes.
MR VAN BREDA: And the key you are referring to, is that the car key?
MR LUPUWANA: Yes.
MR VAN BREDA: Did they hand the key over?
MR LUPUWANA: They handed, then Captain took the key and gave it to Papama.
ADV SANDI: I don't follow this part now. Whose car key is this?
MR LUPUWANA: The car keys for these three cars who were just arriving.
MR VAN BREDA: Captain Matyolo took the keys and gave it to Papama?
MR LUPUWANA: Yes.
MR VAN BREDA: Please proceed?
MR LUPUWANA: Then he said we must all come out, but I was the first to go outside, then Papama the second, the three guys were between me and Captain Matyolo, then Papama went and opened the car.
MR VAN BREDA: Can you recall what vehicle this was?
MR LUPUWANA: I cannot recall what vehicle, but it was a Volkswagen, it was a Volkswagen car.
ADV SANDI: Do you remember the colour of this car?
MR LUPUWANA: No, I cannot recall, but it was not white, since it was dark.
MR VAN BREDA: You say it was dark outside?
MR LUPUWANA: Yes.
CHAIRPERSON: Sorry Mr Van Breda, at that time, did you then see your vehicle that you were driving earlier?
MR LUPUWANA: No, our vehicle was not there at that time.
CHAIRPERSON: It was not on the premises?
MR LUPUWANA: It was not on the premises.
CHAIRPERSON: Not in the immediate vicinity?
MR LUPUWANA: No.
CHAIRPERSON: Yes, thank you.
MR VAN BREDA: Please proceed.
MR LUPUWANA: Then Captain Matyolo told Papama that we must take these guys and go back to Mr Zonwabela's house.
MR VAN BREDA: Did he say why?
MR LUPUWANA: No.
MR VAN BREDA: What did you people then do?
MR LUPUWANA: Then Papama opened the boot, then Captain Matyolo said that two of the guys must enter at the boot.
MR VAN BREDA: Yes?
MR LUPUWANA: The two guys entered the boot, then the boot was closed, then the other guy entered inside. I cannot recall whether I was at the front or in the back, but the car at that time, it was driven by Papama.
MR VAN BREDA: Did you then go back to Zonwabela's house?
MR LUPUWANA: Yes, we proceeded to, we went back to Mr Zonwabela's house.
ADV SANDI: Sorry, just explain one thing here. You say two of these three gentlemen are told to get into the boot of the car, now you get inside the car, Papama is driving the car?
MR LUPUWANA: Yes.
ADV SANDI: Who else was inside the car?
MR LUPUWANA: It was since these guys were three, one of them was inside the car, the two were in the boot.
ADV SANDI: And where was Captain Mtse and Matyolo, they didn't get into the same car?
MR LUPUWANA: No, Captain Mtse already ran away, we were with Papama and Captain Matyolo at that stage.
MR VAN BREDA: So it was only the three Defence Force members, you - no pardon me, the two Defence Force members, yourself and Captain Matyolo?
MR LUPUWANA: Yes.
MR VAN BREDA: Together with Papama?
MR LUPUWANA: Yes and the three guys.
MR VAN BREDA: Did you know any of these three persons?
MR LUPUWANA: No, I didn't know the three of them.
MR VAN BREDA: And then you proceeded to Zonwabela's house?
MR LUPUWANA: Yes. On our arrival there, Captain Matyolo went outside the house and then Mr Zonwabela's wife came outside. Captain Matyolo, I didn't hear what he was talking with that woman.
MR VAN BREDA: Did - or who got out of the vehicle there at Zonwabela's house?
MR LUPUWANA: Captain Matyolo. Me and Papama and the three guys remained in the car.
MR VAN BREDA: Did he then come back to the vehicle?
MR LUPUWANA: Then he came back, he said that we must go.
MR VAN BREDA: Did he say anything else?
MR LUPUWANA: No, he didn't say, but he said Papama must drive back.
MR VAN BREDA: Drive back where to?
MR LUPUWANA: I didn't know the place where we were going to at that stage.
CHAIRPERSON: Sorry, but what did he tell Papama?
MR LUPUWANA: He said to Papama, Papama must just drive the car.
CHAIRPERSON: Just drive?
MR LUPUWANA: Yes.
CHAIRPERSON: He didn't mention any destination?
MR LUPUWANA: No.
CHAIRPERSON: So Papama just started driving?
MR LUPUWANA: Papama just started the car, then made a u-turn, then go back, but I cannot recall which direction were we following or the direction where we were from Mr Wana's house to.
CHAIRPERSON: Yes, thank you.
MR VAN BREDA: Was Papama starting driving?
MR LUPUWANA: Yes.
MR VAN BREDA: Did anybody say anything about where you were going to?
MR LUPUWANA: No, there is nobody who said where we were going to, but I heard Papama saying that "these guys, they know me. So what are we going to do about them"?
MR VAN BREDA: To whom did he say that?
MR LUPUWANA: He was referring to us, me and Captain Matyolo.
MR VAN BREDA: Did anybody answer Papama on that question?
MR LUPUWANA: That question, Captain Matyolo said that "if you want to do anything, you can kill them if you wish so."
MR VAN BREDA: Sorry, I couldn't hear.
MR LUPUWANA: He said "if there is anything you are going to do to these guys, you can kill them if there is anything that you want to."
DR TSOTSI: Who said this?
MR VAN BREDA: The question is who said that?
MR LUPUWANA: Who was answering Papama?
DR TSOTSI: Who said that you can kill these guys?
MR LUPUWANA: Captain Matyolo.
CHAIRPERSON: Did he say that if you want to do anything to these people, you can kill them?
MR LUPUWANA: Yes, if there is nothing that you can do, then kill the guys, because I see that they know you.
CHAIRPERSON: Or was he saying if you want to do anything about the situation, if you want to do anything about this, you can kill them?
MR LUPUWANA: If there is anything that you are going to do to these guys, you can kill them, if you wish so.
CHAIRPERSON: So he left the option, the choice to Papama?
MR LUPUWANA: Yes.
CHAIRPERSON: So, "if you want to do anything, you can kill them"?
MR LUPUWANA: Yes.
CHAIRPERSON: Yes, thank you.
MR VAN BREDA: Thank you Mr Chairperson. Was this the first time that the word "killing" was mentioned?
MR LUPUWANA: It was my first time to hear that at that stage.
MR VAN BREDA: The mere mention of the people being killed, was that suggested by Papama before Captain Matyolo gave this reply?
MR LUPUWANA: No, I didn't hear Papama before, but I heard it at the time he was asking.
MR VAN BREDA: What I am trying to establish is did Papama suggest or say anything to the effect that they should be killed, or did Captain Matyolo use those words for the first time?
MR LUPUWANA: No, it was not the first time, the first he said that, Captain Matyolo said that "if you don't want to tell us where is Mr Wana, we are going to kill you."
MR VAN BREDA: Was that at the house or where was that?
MR LUPUWANA: On the way, on our way from Mr Wana's place to Mr Zonwabela.
MR VAN BREDA: Okay.
ADV SANDI: I think Mr Van Breda, you will have to be quite careful how you go about dealing with this aspect of the evidence, because it may be quite problematic and controversial along the way, you can just ask him questions and then he must just answer those questions.
MR VAN BREDA: Yes, as it pleases you. So, if I understand you correctly, this Captain Matyolo just said to Papama "you can kill them if you want to"?
MR LUPUWANA: Yes.
MR VAN BREDA: Okay.
ADV SANDI: How exactly did he put this to him, as I understand your evidence, Papama was raising a problem, he was saying "what are we going to do now, these chaps, they know me", how did Matyolo respond to that? Can you try and say exactly how he answered him, how did he answer him?
MR LUPUWANA: Say again sir.
ADV SANDI: How did Matyolo respond to this question by Papama, when Papama said "these guys, they know me", what did Matyolo say?
MR LUPUWANA: He was aggressive at that time, saying that "the mission won't come out if these guys can be left still alive, so you can shoot them because they know, you are known by these guys".
MR VAN BREDA: Can you recall the direct words that were said or not?
MR LUPUWANA: Who, Captain Matyolo?
MR VAN BREDA: Yes.
MR LUPUWANA: No, I cannot recall them.
CHAIRPERSON: Sorry, was Captain Matyolo speaking in Xhosa?
MR LUPUWANA: Yes.
CHAIRPERSON: Are you able to reconstruct what he was saying in Xhosa?
MR LUPUWANA: Yes, I can recall that.
CHAIRPERSON: Yes, won't you try and reconstruct it in Xhosa?
MR LUPUWANA: He said "if these people know you Papama, there is no other way, you should just kill them, because the mission won't be successful."
CHAIRPERSON: Yes, thank you and then I just want to go back to the earlier point that you made, on the way from Wana's house to Zonwabela's house, there was also talk of killing at that time, is that correct?
MR LUPUWANA: Yes.
CHAIRPERSON: And was it again Captain Matyolo that was talking about killing?
MR LUPUWANA: Yes, he was asking "if you don't tell us where Mr Wana is, we are going to kill you."
CHAIRPERSON: Who was he speaking to then?
MR LUPUWANA: It was Captain Matyolo who was speaking at that time.
CHAIRPERSON: To whom?
MR LUPUWANA: To the guy that was here, who was sitting in the car, because the two of them were in the boot.
CHAIRPERSON: So the one who was inside the car, he was speaking to?
MR LUPUWANA: Yes.
ADV SANDI: Sorry, can you just repeat, what did he say to the chap in the car?
MR LUPUWANA: He asked "where is Mr Wana, just tell us the real truth where he is, because we are looking for him and then if you don't tell us the real truth, we are going to kill you."
MR VAN BREDA: Thank you. So after Captain Matyolo uttered those words, what then?
MR LUPUWANA: Then Papama was still driving the car.
MR VAN BREDA: In which direction were they travelling at that stage, can you tell?
MR LUPUWANA: I cannot tell you in which direction, because I was new at that time in that place.
MR VAN BREDA: Proceed.
MR LUPUWANA: Then as we go, Papama, as I've got a memory, it was plus minus of the kilometres that we have travelled to Mr Wana's place, then he made a right turn.
MR VAN BREDA: One second. Please proceed.
MR LUPUWANA: When he made a right turn, just travelling on a gravel road now, not on the tar, we were off the tar road.
MR VAN BREDA: Did you perhaps see any notices or sign board which direction this road was leading to?
MR LUPUWANA: No, I didn't see anything, it was Papama who was driving all the time and who knows the road.
MR VAN BREDA: Please proceed.
MR LUPUWANA: Then we proceeded on that gravel road, as I have a memory it was a river or a "vlei" in front of us where he stopped the car.
MR VAN BREDA: Just one second, the place where he stopped the vehicle, were there any houses or buildings in the area?
MR LUPUWANA: No, I didn't see any houses or any buildings, but I just saw the "vlei", he just stopped next to the "vlei".
MR VAN BREDA: Was it in the veld?
MR LUPUWANA: It was in the veld, yes.
MR VAN BREDA: He stopped and what happened then?
MR LUPUWANA: On our arrival there, Papama stopped the car, then he came outside, then Captain Matyolo grabbed the guy that we were sitting with in the car. Then he told one of the guys, that guy, "just lay down", then that time Papama just went to the boot and opened the boot.
MR VAN BREDA: So the person that was inside the vehicle, was instructed to lay on the ground?
MR LUPUWANA: Yes, he was to lay in front of the car.
MR VAN BREDA: And thereafter the other two?
MR LUPUWANA: The other two, Papama at that time was opening the boot.
MR VAN BREDA: And what did Papama do with the two?
MR LUPUWANA: He took them and then said that they must lay next to this guy.
MR VAN BREDA: Was the vehicle still idling at that stage?
MR LUPUWANA: No, the vehicle was switched off at that stage.
MR VAN BREDA: And the lights of the vehicle?
MR LUPUWANA: No, the lights were off.
MR VAN BREDA: Were there any other form of lights in the near vicinity?
MR LUPUWANA: No, there was no form of light in that vicinity, it was dark.
MR VAN BREDA: Did the three gentlemen then lay on the ground?
MR LUPUWANA: Yes, they all lay, the three of them, they lay down.
MR VAN BREDA: On their backs or stomach? Pardon sir.
ADV SANDI: Sorry, did they try to show any resistance?
MR LUPUWANA: No, there was no resistance.
MR VAN BREDA: Can you just come back to my question, were they laying on their backs or stomachs?
MR LUPUWANA: They were laying on their stomachs.
MR VAN BREDA: Were they tied up or anything to that effect?
MR LUPUWANA: No, they were not tied.
MR VAN BREDA: What happened then?
MR LUPUWANA: Then Captain Matyolo told Papama that "shoot them", then he took his pistol and gave it to Papama to shoot those guys.
DR TSOTSI: Just repeat that please, I didn't get that. Just repeat what he was saying.
MR LUPUWANA: He said Papama must kill the guys, then he took his weapon and gave it to Papama.
MR VAN BREDA: What did Papama do?
MR LUPUWANA: Papama, at that time I was scared, but I heard some shots, I didn't count how many shots he had shot.
MR VAN BREDA: One second. In the first place, did Papama take the firearm?
MR LUPUWANA: Yes, he took the firearm.
MR VAN BREDA: When he took the firearm, what did you do?
MR LUPUWANA: At that stage, I just took some, it was plus minus two or three paces away from the place where I was standing, next to, I came next to the car.
MR VAN BREDA: What did Papama do?
MR LUPUWANA: Papama shot - I didn't know whether he shot the three of them or two of them or one of them, but I just heard some shots, then after that Captain Matyolo said "stop now".
MR VAN BREDA: Wait - when you heard the shots, did you look at Papama or Captain Matyolo or the three persons laying there?
MR LUPUWANA: Say again.
MR VAN BREDA: When you heard the shots, did you look at Papama or Captain Matyolo or the three persons?
MR LUPUWANA: No, I was not looking,b ut the first time I heard the shot, I was just scared because I didn't know why these guys were killed for, but I just took some paces, but I didn't look at them.
MR VAN BREDA: What I am trying to establish is whether you looked at the actual shooting?
MR LUPUWANA: Yes.
MR VAN BREDA: In other words did you see the person who fired the shots?
MR LUPUWANA: Yes, I saw the ...
MR VAN BREDA: Did you look at it?
MR LUPUWANA: I saw the person was firing the shots.
MR VAN BREDA: Who was that?
MR LUPUWANA: It was Papama.
MR VAN BREDA: How did he go about to fire or discharge the firearm?
MR LUPUWANA: Who, Papama?
MR VAN BREDA: Papama?
MR LUPUWANA: He was standing at the back of these guys.
CHAIRPERSON: Just tell us what was happening, these three persons were laying on their stomachs?
MR LUPUWANA: Yes.
CHAIRPERSON: In front of the car?
MR LUPUWANA: Yes.
CHAIRPERSON: Were they facing towards the car or away from the car?
MR LUPUWANA: No, the car was facing direction, then they lay facing this direction.
CHAIRPERSON: They faced the same direction as the car?
MR LUPUWANA: Yes.
CHAIRPERSON: Where was Papama standing when he shot them?
MR LUPUWANA: Papama when he shot, he was, seeing they were facing this direction, he was at the back.
CHAIRPERSON: He was at their feet?
MR LUPUWANA: Yes.
MR VAN BREDA: When the first shot was fired, were you still looking at what was happening in front of you, or did you look away?
MR LUPUWANA: No, I looked away when I heard the first shot.
MR VAN BREDA: Can you tell exactly how many shots there were fired at that stage?
MR LUPUWANA: I cannot count how many shots that were fired at that stage.
MR VAN BREDA: What happened?
MR LUPUWANA: Then when Papama was shooting, Captain Matyolo said "stop now, give me my weapon", then he told me ...
MR VAN BREDA: Just one second. Captain Matyolo said?
MR LUPUWANA: He said "stop now, give me my weapon", then he asked me "where is my weapon", but I didn't answer, but he gave it to me.
MR VAN BREDA: What did you do?
MR LUPUWANA: I took up, I gave the weapon to Captain Matyolo, then he gave it to Papama, then Papama started shooting again.
MR VAN BREDA: Then Papama started shooting again?
MR LUPUWANA: Yes.
MR VAN BREDA: Can you recall exactly how many shots?
MR LUPUWANA: I cannot recall how many shots Papama fired.
MR VAN BREDA: Did you look at him as he was firing?
MR LUPUWANA: No, I didn't look at him when it was fired, but I heard some shots, but I was not facing exactly at the position where it was firing.
MR VAN BREDA: What happened after the shots stopped?
MR LUPUWANA: Captain Matyolo said "stop now, we must go back, we have finished our mission".
MR VAN BREDA: When Captain Matyolo uttered those words, what did you do?
MR LUPUWANA: Then I just opened the car, then Papama, he started the car and made a reverse and made a u-turn, and then we went back.
MR VAN BREDA: Did all three of you get back into the vehicle?
MR LUPUWANA: Yes.
MR VAN BREDA: Where was your firearm at that stage?
MR LUPUWANA: At that stage Papama gave it to Captain Matyolo and then Captain Matyolo gave the weapon back to me.
DR TSOTSI: Any reason why Captain Matyolo gave your weapon to Papama to shoot, Papama had already had the weapon belonging to the Captain, didn't he?
MR LUPUWANA: No, Papama shot the first shots at that time, then Captain said "stop now", then he took that weapon from Papama, then he said "where is your weapon", my weapon, then he said "give it to me", then he took that weapon from me, then he gave it to Papama and then Papama said that he must shoot again.
DR TSOTSI: Why was that necessary, I mean couldn't Papama have used Captain's weapon all the time?
MR LUPUWANA: It was already used, but I don't know, Captain can answer that question, I didn't know the reason why.
CHAIRPERSON: What weapon did Captain Matyolo have?
MR LUPUWANA: I cannot recall but it was a, it is not a gun.
CHAIRPERSON: Is it a pistol?
MR LUPUWANA: Yes.
CHAIRPERSON: Was it a handgun?
MR LUPUWANA: It was a handgun yes, since it was dark, I cannot recall what kind of weapon it was.
CHAIRPERSON: You don't know whether the ... (tape ends) ... ammunition?
MR LUPUWANA: What sir?
CHAIRPERSON: You don't know whether that one possibly ran out of ammunition?
MR LUPUWANA: No, I didn't know.
CHAIRPERSON: You are not sure?
MR LUPUWANA: Not sure sir.
CHAIRPERSON: Yes, thank you.
MR VAN BREDA: Thank you. So before you got into the vehicle, did you at any stage go closer to the three gentlemen?
MR LUPUWANA: me?
MR VAN BREDA: Yes?
MR LUPUWANA: No.
ADV SANDI: Did anyone of these gentlemen say anything before they were shot and killed?
MR LUPUWANA: Yes, I heard one of the guys, I don't know "no sorry, we are innocent, we are (indistinct) as Transkeians, but we do look the house", but when they said ...
MR VAN BREDA: Just a bit slower, they said, or the one said "we are innocent?"
MR LUPUWANA: "We are innocent, we are to keep there at Mr Wana's place only".
MR VAN BREDA: Yes?
MR LUPUWANA: Then they said sorry to Papama because "we don't know these two guys, but we know, you are the only one that we know." Then Matyolo told them that "tomorrow you are going to tell Mr Wana that I was here.
CHAIRPERSON: Were they asking not to be shot?
MR LUPUWANA: What sir?
CHAIRPERSON: Were they asking not to be shot? You said they said sorry, but were they saying "don't shoot us"?
MR LUPUWANA: Yes, they said sorry, no, they didn't say "don't shoot us", they said "sorry, we were not going to kill you in that house, but we were to keep the house for Mr Wana only."
CHAIRPERSON: That was whilst they were laying on the ground?
MR LUPUWANA: Yes.
CHAIRPERSON: They couldn't see what was going on behind them?
MR LUPUWANA: No.
CHAIRPERSON: All right, thank you.
MR VAN BREDA: That was said before the actual shooting started?
MR LUPUWANA: Yes.
MR VAN BREDA: Just to come back to the Advocate's question, as the shooting started, could you hear whether any one of them said anything?
MR LUPUWANA: No, since they were laying there, I didn't hear them tell anything, talking anything.
ADV SANDI: Did anyone promise not to tell Wana that you were there?
MR LUPUWANA: No, they did not say about that, they said we know that we are going to kill me and Captain Matyolo, to kill them, but they said sorry, because we know you, we cannot tell Mr Wana that we had met Sergeants like these.
ADV SANDI: Thank you.
MR VAN BREDA: So you all three got back into the vehicle?
MR LUPUWANA: Yes.
MR VAN BREDA: Who was the driver of the vehicle then?
MR LUPUWANA: It was still Papama.
MR VAN BREDA: Where were you going to at that stage?
MR LUPUWANA: I didn't know where we were going to, but since I was new in that vicinity, in that area, but we just go back and then met the tar road again. Then he proceeded driving, then when I see, we were still coming back to Mr Zonwabela's house, on our arrival.
MR VAN BREDA: Did anyone of the three of you say anything whilst travelling to Zonwabela's house at that stage?
MR LUPUWANA: No, we were not talking, Captain said that we must rest so that we couldn't be earlier, so that we can reach Transkei, then we are to look for our car that we were using.
ADV SANDI: What does that mean? Is that to say that you had no conversation whatsoever from the place where these three gentlemen were killed until you got back to the house of Mr ...
MR LUPUWANA: No, (indistinct), Captain Matyolo said "no gentlemen, you have worked hard, you have worked, acted correctly, you must go back so that you can give the result and I've got documents that I am going to proceed to my seniors in the Intelligence Unit in Umtata.
MR VAN BREDA: You got to Zonwabela's house?
MR LUPUWANA: Yes, on our arrival there, we met Mr Zonwabela, Captain Mtse and Corporal Powa.
MR VAN BREDA: Did you tell them what happened, or did anybody tell them what happened?
MR LUPUWANA: No, Mr Zonwabela asked Captain Matyolo, asked us "where are you from gentlemen", then Captain Matyolo said we are from the killing of these guys that we had captured at that house.
MR VAN BREDA: Pardon, I couldn't hear.
MR LUPUWANA: He said we were from the killing of the guys that we captured in that house.
MR VAN BREDA: What happened then?
MR LUPUWANA: At that stage, Captain Mtse asked who killed these guys, Papama said "I killed them because they knew me", it was no solution.
MR VAN BREDA: Did Captain Mtse ask?
MR LUPUWANA: Yes, asked.
MR VAN BREDA: And was it Papama that replied?
MR LUPUWANA: Yes, but Captain Mtse asked him "who killed these guys", said it is Papama, then Papama said "no, I killed them, because they know me", why, there was no answer.
MR VAN BREDA: Was it also Captain Mtse who asked why?
MR LUPUWANA: Yes.
MR VAN BREDA: What happened then?
MR LUPUWANA: Then at that stage, Captain Mtse said that we must all enter the house with our car, our Nissan. Then Captain said to Powa he must drive the car, Powa said "no, I cannot drive the car", because ...
MR VAN BREDA: You are going a bit fast, sorry.
MR LUPUWANA: Captain said we must go back, then we must leave Captain Matyolo here, and Powa must drive the car, that Nissan Sentra.
MR VAN BREDA: One second. Did Captain Mtse say what should be done with the Volkswagen vehicle?
MR LUPUWANA: No, he was talking about the Nissan Sentra that we were using.
MR VAN BREDA: What about this vehicle?
MR LUPUWANA: That vehicle was to be left behind, but Mr Zonwabela and Papama said "no, this car cannot move here, because it can be a source of the police to get the information". Then after that Captain Matyolo said that this car must be taken back to Transkei, they instructed me "drive the car, because you are here to drive only. Take this car and then follow us."
MR VAN BREDA: Who gave that instruction?
MR LUPUWANA: It is Captain Matyolo who said I must take this vehicle.
MR VAN BREDA: Did you all get into the vehicles then?
MR LUPUWANA: We all got into the vehicle, but I was to be left behind, then I was given the key by Captain Matyolo to drive the car and follow them with that Nissan Sentra.
MR VAN BREDA: Okay. Did you take the keys?
MR LUPUWANA: I took the keys.
MR VAN BREDA: Who were with you in the said vehicle at that stage?
MR LUPUWANA: I was alone at that stage because they said I am going to be left here, and I didn't know, that is why I took the key.
MR VAN BREDA: The others all got into the Nissan?
MR LUPUWANA: Yes, Captain Mtse, Captain Matyolo and Corporal Powa, they got into the Nissan.
MR VAN BREDA: And where did you go to from there, from Zonwabela's house?
MR LUPUWANA: From Zonwabela's house I followed them, because I did not know that Amalinda place, I just know East London town, not outside. Then I followed them.
MR VAN BREDA: Where did you go to?
MR LUPUWANA: They said we are going back to Transkei, I followed them straight, as I see the road when (indistinct) East London, they stopped, they said we are going to set alight in this car.
MR VAN BREDA: One second. Let's just take it a bit slower, you left East London?
MR LUPUWANA: Yes.
MR VAN BREDA: They were driving in front?
MR LUPUWANA: Yes.
MR VAN BREDA: You were following?
MR LUPUWANA: Yes.
MR VAN BREDA: How did it happen that you stopped again?
MR LUPUWANA: No, they first stopped with that Nissan Sentra, with put hazards on that Sentra, on their Sentra and seeing that I followed them, I just stopped at the back of them.
MR VAN BREDA: Where was that more or less?
MR LUPUWANA: About 15 to 20 kilometres away from East London, but before we reached that place, it is a slopey place from East London. It is before you reach (indistinct).
MR VAN BREDA: Did they there then inform you that the vehicle should be set alight?
MR LUPUWANA: No, they said when we stopped there, yes.
MR VAN BREDA: Yes, I just want to clarify this. What did they say when they stopped the vehicle?
MR LUPUWANA: When they stopped, they said "am I still safe there", because I am alone, I said "don't worry - because we are going to put fire on this car".
ADV SANDI: Just explain that. They stopped the car in front, you were following them. Did they come to you?
MR LUPUWANA: Yes, Captain Matyolo came to me.
ADV SANDI: Was it just Mr Matyolo who came to you?
MR LUPUWANA: Yes. Corporal Powa and Mtse was sitting inside the car.
ADV SANDI: Then he said ...
MR LUPUWANA: He said I must not worry, because we are going to put fire to this car, I can just drive and follow them.
ADV SANDI: Thank you.
MR VAN BREDA: You then start, or proceeding ...
MR LUPUWANA: Then we proceeded.
MR VAN BREDA: Towards Transkei?
MR LUPUWANA: Well, we were driving towards the border post of Transkei, but before we reached there, they stopped next to Komga Junction.
MR VAN BREDA: Komga Junction?
MR LUPUWANA: Yes.
MR VAN BREDA: What happened there at Komga Junction?
MR LUPUWANA: Then they stopped there, then I stopped at the back of them, then Captain Matyolo said that this car must face the direction of Komga, since we are going down to the border post.
MR VAN BREDA: So the vehicle that you were driving in, did you actually take the turn off to Komga?
MR LUPUWANA: Yes, since I was parked at the back of them, then I made a left turn, then parked on the right hand side of the road.
MR VAN BREDA: What happened then?
MR LUPUWANA: There was a grass that was being cut there, we don't know by the Municipality but those guys who were cutting the grass on the way. We collect some grass with me and Captain Matyolo and put the light on the car, then we left it, seeing that the car was burning.
MR VAN BREDA: Did you put the grass inside the vehicle?
MR LUPUWANA: Inside and outside, we opened the engine.
MR VAN BREDA: And who set the car actually alight?
MR LUPUWANA: It is Captain Matyolo.
MR VAN BREDA: What did you then do?
MR LUPUWANA: Then we left the car, thinking that the car is burning, then we proceed to the (indistinct) border post.
ADV SANDI: You say you left the car thinking that it was burning, was it in fact burning?
MR LUPUWANA: What sir?
ADV SANDI: You say you left the car thinking that it was burning, was it actually burning?
MR LUPUWANA: No, it is grass that was burning.
MR VAN BREDA: Did you then first go to Butterworth?
MR LUPUWANA: Yes, and then proceed to Umtata.
MR VAN BREDA: Why to Umtata?
MR LUPUWANA: What sir?
MR VAN BREDA: Why did you go to Umtata?
MR LUPUWANA: No, we were on our way to Port St Johns, they went to drop me and Captain Mtse to Port St Johns.
MR VAN BREDA: At your base?
MR LUPUWANA: At our base.
MR VAN BREDA: Did all four of you go to Butterworth, I mean to Port St Johns?
MR LUPUWANA: Yes.
MR VAN BREDA: What happened to the Nissan Sentra vehicle?
MR LUPUWANA: We were driving it.
MR VAN BREDA: And after they dropped you?
MR LUPUWANA: When they dropped me, Papama, it was Corporal Powa and Captain Matyolo, (indistinct) after you have left the town, then they left (indistinct), I don't know whether they go to Umtata or ...
MR VAN BREDA: Mr Lupuwana, was that the only operation that you were involved in together with Captain Matyolo?
MR LUPUWANA: This was the my first operation.
MR VAN BREDA: Now, did you report this incident to anybody that following day?
MR LUPUWANA: No, the following day, that day it was on Sunday. We just slept for the whole day with Captain Mtse. Then we met after supper on Sunday.
MR VAN BREDA: Who is now we?
MR LUPUWANA: Me and Captain Mtse.
MR VAN BREDA: What was decided?
MR LUPUWANA: He asked me "where, how did I know whether it is Matyolo and Corporal Powa go back or else they go to, because Powa is staying in Lusikisiki, but he is stationed in Umtata."
MR VAN BREDA: Let me just cut the proceedings short at this stage, did Captain Mtse or yourself suggest that you should report this incident to anybody?
MR LUPUWANA: No, Captain Mtse just said that he is going to report it, because it was not the first time we go for this operation with Captain Matyolo.
MR VAN BREDA: Mr Lupuwana, did you receive anything from either Captain Matyolo or the Defence Force for this operation?
MR LUPUWANA: No, nothing.
MR VAN BREDA: You already told us that you didn't know the three persons, the unknown persons or Papama or Zonwabela before this incident?
MR LUPUWANA: No, I didn't know all of them.
MR VAN BREDA: Did you know this Wana person before the incident?
MR LUPUWANA: I don't know him at this stage.
MR VAN BREDA: What was the role that the Defence Force of the Transkei played during those years?
MR LUPUWANA: The role of Transkei, it was to keep the safety and the security of the Transkei.
MR VAN BREDA: And did you regard the operation to abduct Wana, as such?
MR LUPUWANA: No, I didn't regard it, but I took instructions to do the operation.
MR VAN BREDA: Let me put it that way, when Matyolo, pardon when Captain Matyolo told you why you are going to East London to abduct a person and take him back to the Transkei, for the attempted overthrow in 1990, did you see anything wrong with that?
MR LUPUWANA: In my mind I saw it was wrong, but it was wrong as planned at that stage, because when you go to an operation, you are first being called by your own Commander then given some orders, not just to be grabbed and go to an operation.
MR VAN BREDA: Why did you go along with this operation?
MR LUPUWANA: I didn't go along, just because I was given orders to do this and this.
ADV SANDI: Did you understand your participation in this operation as something following within the cause and scope of your duties as a member of the Transkei Defence Force?
MR LUPUWANA: Come again sir?
ADV SANDI: This participation, this operation you took part in, did you understand it as something that fell within the cause and scope of your duties as a member of the Transkei Defence Force?
MR LUPUWANA: No.
ADV SANDI: Can you explain that?
MR LUPUWANA: I can, but not fully. As a member it was not my duty, it is the duty of a policeman to do that duty. But due to the fact that if you are given an order by your senior, you cannot ask, you are just given an order.
ADV SANDI: Yes, but if there was information that Mr Wana was threatening the security of the Transkei, was it not part of your duties to assist, to stop, to prevent people like Mr Wana threatening the security of the Transkei?
MR LUPUWANA: As far as my level is concerned, we have got some steps why you can act and you cannot act, but due to the fact that you are given orders and the fact that there are some guys who are threatening Transkei, it is not my duty, it is Intelligence's duty.
MR VAN BREDA: What we are trying to establish is at that stage, did you regard it as your duty to go along with Captain Matyolo and then to fulfil this task?
MR LUPUWANA: Say again your answer?
MR VAN BREDA: At that stage, when you were given the instruction to go on this operation, did you regard that as being part of you being a soldier, it is your order in other words to take part in that?
MR LUPUWANA: I cannot reply that question.
MR VAN BREDA: What is important is what you thought at that stage, not today, at that stage.
MR LUPUWANA: At that stage, if somebody is doing wrong for our country, for our keeping safety and security, he must face his charges.
MR VAN BREDA: Okay. Did you then in the light of what you have just told us now, regard that as one of your duties then?
MR LUPUWANA: No, it is not one of my duties.
MR VAN BREDA: If I can just try and break it down and simplify it. The duty of the Defence Force was to make sure that there is safety and security in the Transkei?
MR LUPUWANA: Yes.
MR VAN BREDA: To bring a person to the Transkei to face charges of attempted overthrow of the government or whatever, that would then fall within their task, within their duties, the Defence Force duties?
MR LUPUWANA: No.
MR VAN BREDA: Can you maybe explain that?
MR LUPUWANA: We are to keep the safety and security here in Transkei, we are not to go outside.
MR VAN BREDA: Yes.
ADV SANDI: Sorry Mr Van Breda, carry on.
MR VAN BREDA: Did you know that the Transkei code made provision for fetching a person, say from the RSA, bring him back to the Transkei, to face charges?
MR LUPUWANA: No, as far as my level, I cannot reply to that question because it is a superior's question to do that thing, duties.
MR VAN BREDA: Were you acting as a soldier that day?
MR LUPUWANA: Yes.
MR VAN BREDA: You already informed us that you were only told by Captain Matyolo should be abducted and taken back to the Transkei?
MR LUPUWANA: Yes.
MR VAN BREDA: What was the objective behind this, do you know, why was it important in other words, for Wana to be taken back?
MR LUPUWANA: The reason, I cannot answer, but as far as I think, because if somebody has done something that is wrong in our country, then an example must be set, because he can regroup outside again and then he can overthrow the government.
MR VAN BREDA: Gen Holomisa was not only a military leader at that stage, but also Head of State?
MR LUPUWANA: He was the Head of the State, not only a soldier, he was the Head of the State.
MR VAN BREDA: Just bear with me for one moment. Is there anything that you would like to say to this Committee today and or the family members of the three deceased persons?
MR LUPUWANA: Yes, there is something that I can say. The first thing that I can say is that I am applying for amnesty, just because I was involved in the incident of killing of the three guys, but wrongly, it was wrongly planned to be taken out to do that duty, but due to the fact that our operation failed, then we do wrongly by kidnapping some guys. Thirdly, I made a wrong, but I was scared, to be given a weapon, then I take that weapon to the second and third person, to shoot, but to those families, I just want to say to them sorry, because of my involvement in that incident.
MR VAN BREDA: Is there anything else you would like to add or is that all?
MR LUPUWANA: No, that is all.
MR VAN BREDA: Thank you Mr Chairman.
NO FURTHER QUESTIONS BY MR VAN BREDA
CHAIRPERSON: Thank you Mr Van Breda. Mr Nomtenja, have you got any questions?
MR NOMTENJA: Thank you, not right now. I am not ready right now with the questions, taking into account the time, I don't know whether we will be adjourning for lunch, it is only five minutes left before one, unless we proceed and get into it.
CHAIRPERSON: Yes, yes. So you need a bit of time to look at this?
MR NOMTENJA: Yes.
CHAIRPERSON: Yes, well, we have lost a bit of time this morning, we haven't started at the usual time, so hopefully we can make up for that loss. We will take the luncheon adjournment and we will reconvene at two o'clock.
COMMITTEE ADJOURNS
CHAIRPERSON: We would just like to say before we proceed, that it is necessary for various good reasons for us to conclude these proceedings today and for that purpose, we would be sitting until we have heard the whole case, possibly resulting in us having to sit slightly beyond the normal finishing time.
LUNGELWA LUPUWANA: (s.u.o.)
CHAIRPERSON: Mr Nomtenja, have you got any questions?
CROSS-EXAMINATION BY MR NOMTENJA: Mr Lupuwana, as you were travelling from Butterworth to East London together with Captain Matyolo, were you advised of the mission?
MR LUPUWANA: Yes, I was informed on the way.
MR NOMTENJA: Who informed you?
MR LUPUWANA: It is Captain Matyolo.
MR NOMTENJA: What did he say to you?
MR LUPUWANA: He said that we are going to have a task there in East London, so we are going to meet Zonwabela there, but he will tell the details when we arrive or on our arrival there.
MR NOMTENJA: Did you make a statement to the police?
MR LUPUWANA: Yes, I put a statement to the police.
MR NOMTENJA: Can you remember what you said to them in that statement?
MR LUPUWANA: I cannot remember now, but it is just what I am saying.
MR NOMTENJA: Were you armed?
MR LUPUWANA: No, I was not armed.
MR NOMTENJA: With whom did you travel from Port St Johns to Butterworth?
MR LUPUWANA: It was Captain Mtse.
MR NOMTENJA: Was he armed?
MR LUPUWANA: I didn't know as to whether he was armed or not armed.
MR NOMTENJA: What was your attitude when you were advised that there was a mission to be undertaken knowing that you were not armed?
MR LUPUWANA: Captain Matyolo told us that we must not worry because the weapons are in front, we meet them in East London.
MR NOMTENJA: Why didn't you mention that in your evidence in chief?
MR LUPUWANA: Say again sir.
MR NOMTENJA: Why didn't you mention that in your evidence in chief?
MR LUPUWANA: I have forgotten it.
MR NOMTENJA: You say Zonwabela was not a member of the TDF?
MR LUPUWANA: Yes.
MR NOMTENJA: And you say it is Zonwabela who gave you the pistol?
MR LUPUWANA: Yes.
MR NOMTENJA: Did you ask him as to where he got the pistol from?
MR LUPUWANA: No, I did not ask.
MR NOMTENJA: Surely you were an officer, is that correct?
MR LUPUWANA: No, I was not an officer.
MR NOMTENJA: But you were serving under TDF as a soldier, is that correct?
MR LUPUWANA: Yes, correct.
MR NOMTENJA: So you were a member of the Transkei Defence Force soldiers?
MR LUPUWANA: Yes.
MR NOMTENJA: Did you enquire from this Zonwabela as to why he was giving you the pistol?
MR LUPUWANA: No, I did not enquire.
MR NOMTENJA: Why?
MR LUPUWANA: Because he said that everybody must have his own weapon.
MR NOMTENJA: And was Papama armed at that point in time?
MR LUPUWANA: I did not know as to whether he was armed or unarmed.
MR NOMTENJA: How many pistols were given out by Zonwabela?
MR LUPUWANA: He gave me one and the other one, he gave to Captain Mtse.
MR NOMTENJA: What type of pistols were these?
MR LUPUWANA: I got a 9mm, I did not notice what kind, but it was a pistol, that was given to Captain Mtse, I don't know as to what kind of pistol was it actually exactly.
MR NOMTENJA: Now, let's get to Wana's house. When you were there, you were aware very much alive, to the mission that was to be undertaken, is that correct?
MR LUPUWANA: Yes.
MR NOMTENJA: And you knew for a fact that there was a possibility of an exchange of bullets?
MR LUPUWANA: Yes.
MR NOMTENJA: And you were aware of the fact that you could be engaged in a fight?
MR LUPUWANA: Yes.
MR NOMTENJA: When those three victims arrived, what made you to be scared in the circumstances?
MR LUPUWANA: What made me to be scared is that we were not waiting for three guys, we were waiting for one guy.
MR NOMTENJA: But as the situation was, you were expecting anything more than one guy? Is it not so?
MR LUPUWANA: I cannot say so.
MR NOMTENJA: What made Captain Mtse to flee?
MR LUPUWANA: I don't know.
MR NOMTENJA: How did it happen? At what stage did Captain Mtse run away?
MR LUPUWANA: He ran away when he heard the Commander saying "stand still, hands up".
MR NOMTENJA: Is it not a fact that those victims were ordered to lay down?
MR LUPUWANA: No, they were not ordered to lay down, they were ordered to hands up, to stand still and put their hands up.
MR NOMTENJA: Is it not a fact that the victims did lay down as ordered on that day, in that house?
MR LUPUWANA: No, they were not ordered to lay down.
MR NOMTENJA: Was Captain Matyolo armed?
MR LUPUWANA: I didn't see him that he was armed, but I saw him armed at the scene and on our way back to Transkei.
MR NOMTENJA: I don't quite understand your answer. The question is straight forward, was he armed? Did you see him being armed?
MR LUPUWANA: I didn't see him armed at that stage when we were doing the mission, but I saw him armed at the scene.
MR NOMTENJA: I think you are contradicting yourself. If you say you saw him armed during the mission, or what are you saying exactly?
ADV SANDI: Sorry, no, Mr Nomtenja, you must specify armed where, at the house, at the scene of the killing?
MR NOMTENJA: Thank you, thank you.
MR LUPUWANA: I saw him armed on the house, the time he took out his weapon, saying that these guys, they must stand still.
MR NOMTENJA: What type of weapon was he carrying?
MR LUPUWANA: It was a pistol, but I don't remember what type of pistol it actually was.
MR NOMTENJA: Where were you standing at that point in time?
MR LUPUWANA: I was standing next to the table.
MR NOMTENJA: In relation to the victims?
MR LUPUWANA: When, at the house?
MR NOMTENJA: At the time when Captain Matyolo gave orders to the three gentlemen, where were you, where were you standing, how far were you from the victims?
MR LUPUWANA: I was standing as far as that video TV.
MR NOMTENJA: Did they see you? Did they see you, did they take notice of your presence at that point in time?
MR LUPUWANA: No, they didn't take notice at that present, because they passed through me, they did not see me, because I was under the table at the time they entered the house.
MR NOMTENJA: Right, you say - a question was asked as to the whereabouts of this Wana whilst you were still in Wana's house, is that correct?
MR LUPUWANA: Yes.
MR NOMTENJA: And you say they immediately responded, stating that he was in Cape Town, is that correct?
MR LUPUWANA: Yes.
MR NOMTENJA: At what stage did Captain Matyolo, if he did, threaten those people that they will be killed if they didn't disclose the whereabouts of Wana?
MR LUPUWANA: The time he was asking "where is he, where can we find him now at the present moment." They said that he was in Cape Town. He said that "if you don't tell us the real truth, we are going to kill you."
ADV SANDI: Where was that Mr Lupuwana, in the house, in the car?
MR LUPUWANA: In the house, still in the house.
MR NOMTENJA: When you were led by your Counsel, you unhesitatingly stated that they without hesitation stated that Wana was in Cape Town, without duress.
MR LUPUWANA: Without what sir?
MR NOMTENJA: You said when you were led by your Counsel, that the three gentlemen, when asked of the whereabouts of Wana, unhesitatingly stated that he was in Cape Town, and nothing more you said?
MR LUPUWANA: Yes.
MR NOMTENJA: Is that correct?
MR LUPUWANA: Yes, it is correct.
MR VAN BREDA: Mr Chairman, may I please interrupt my learned friend, he is putting words into the mouth of the witness, words that he didn't actually use. He never stated that the three persons unhesitatingly said that he was in Cape Town, he indeed said that the person was in Cape Town. He also didn't say that was all that was said, so if I, my request is that my learned friend just be accurate whenever he puts statements to my client, thank you.
CHAIRPERSON: Yes thank you. Perhaps, Mr Nomtenja, you should pose it in the form of a question, whether they hesitated or not, perhaps that will assist.
MR NOMTENJA: Thank you, thank you Mr Chairperson. Thank you. Is it not a fact that the three victims unhesitatingly divulged the whereabouts of Wana?
MR LUPUWANA: No, they did not hesitate.
MR NOMTENJA: They didn't hesitate?
MR LUPUWANA: No.
MR NOMTENJA: Can you then advance any reason why a threat should have been imposed upon them by Captain Matyolo?
MR LUPUWANA: No, I don't know sir.
MR NOMTENJA: Right.
ADV SANDI: Did it appear to you that Captain Matyolo believed them when they said Mr Wana was in Cape Town?
MR LUPUWANA: No, I cannot answer Captain Matyolo's belief, whereas Captain Matyolo can answer that question.
ADV SANDI: But when they said Mr Wana is in Cape Town, was that before Mr Matyolo had said "if you don't tell us where Wana is, we will kill you", was it before that?
MR LUPUWANA: No, he asked them "where is Mr Wana", then they said that he is in Cape Town, then "if you don't tell us the real truth, we will kill you."
MR NOMTENJA: Thank you. Let's come to the issue of taking the guys to Zonwabela's house. Who gave those instructions? The three, that is the three victims, who gave the instructions that they should be taken to Zonwabela's house?
MR LUPUWANA: I am not quite sure who gave those orders, but one thing that I know is that Captain Matyolo gave the key to Papama and then we must strike back. Driving back, I didn't know, I didn't answer where to.
MR NOMTENJA: Now, who instructed Papama to stop en route to Zonwabela's house?
MR LUPUWANA: To go to Zonwabela's house?
MR NOMTENJA: Who instructed Papama who was driving the motor vehicle to stop on the way whilst you were going to Zonwabela's house?
MR LUPUWANA: No, we didn't stop, we go straight from Mr Wana to Mr Zonwabela's house.
MR NOMTENJA: Then what happened thereafter?
MR LUPUWANA: Thereafter, when we arrived there, Captain Matyolo met Mr Zonwabela's wife and they talked together then he came back again and said that Papama must drive.
MR NOMTENJA: Okay. According to your evidence, you stopped, in fact Papama stopped the motor vehicle in the veld near a "vlei" is that correct?
MR LUPUWANA: Yes.
MR NOMTENJA: Who instructed him to stop the motor vehicle at that point in time?
MR LUPUWANA: That is from Zonwabela's house, I didn't know who said he must make a stop, he first made a right turn from the tar road, then to the gravel road. I don't know whether it is Captain Matyolo or Papama, then they can answer both of them for that question.
MR NOMTENJA: When he took the turn off the main road to the gravel road, was he doing that on instructions or orders?
MR LUPUWANA: I cannot remember instructions or for his own sake.
MR NOMTENJA: You were in this car, is that correct?
MR LUPUWANA: Yes.
MR NOMTENJA: You do not remember Papama being instructed to take the off road?
MR LUPUWANA: No.
MR NOMTENJA: Now, when Papama stated the words that these guys knew him and what you were going to do about that, was he referring to anyone in particular in that motor vehicle?
MR LUPUWANA: He was referring to me and Captain Matyolo.
MR NOMTENJA: Did you make any comment?
MR LUPUWANA: No, I didn't comment.
MR NOMTENJA: What was the response of Captain Matyolo if any?
MR LUPUWANA: He said that he can do anything he likes to do, if there is any.
MR NOMTENJA: Is that all?
MR LUPUWANA: Yes.
MR NOMTENJA: Are you sure?
MR LUPUWANA: Yes.
MR NOMTENJA: In your evidence in chief you said Captain Matyolo said he may kill them, are you changing that now?
MR LUPUWANA: No, I am not changing, that is why I am saying, he said he can do anything he would like to do.
MR NOMTENJA: Mr Lupuwana, you have left out killing, the word killing. Did he say that?
MR LUPUWANA: Yes, he said so.
MR NOMTENJA: Are you sure?
MR LUPUWANA: Yes.
MR NOMTENJA: Can you put it in Xhosa, the exact words used by Captain Matyolo?
MR LUPUWANA: Yes, I can say so.
MR NOMTENJA: Go ahead.
MR LUPUWANA: He said, when Papama said that those people knew him, he said that "if you want to kill them, you can kill them, or you can do whatever you want with them."
MR NOMTENJA: What was your attitude towards that?
MR LUPUWANA: I was scared because I couldn't say any word at that time. I didn't know what was going on and what was to happen.
MR NOMTENJA: Were you still armed at that time?
MR LUPUWANA: Yes, I was still armed at that place.
MR NOMTENJA: Do you know whether or not Captain Matyolo was armed at that point in time?
MR LUPUWANA: Yes, he was still armed.
MR NOMTENJA: Right, you see, Papama stopped the motor vehicle, went to the boot and took out the two gentlemen who were there, is that correct?
MR LUPUWANA: Yes.
MR NOMTENJA: Was he doing that on anybody's instruction?
MR LUPUWANA: No, I cannot remember the word who was (indistinct) instructions.
MR NOMTENJA: Mr Lupuwana, it seems as if you remember some other issues and you forget others? Do you remember or not?
MR LUPUWANA: Remember those instructions?
MR NOMTENJA: Whether Papama was, went to take the two gentlemen who were in the boot on instructions or not?
MR LUPUWANA: I cannot remember sir.
MR NOMTENJA: Now, what happened to the gentleman who was inside the motor vehicle, the one of the three?
MR LUPUWANA: I cannot remember what happened, but the only question that was being asked was by Captain Matyolo, "where is Mr Wana? What do you want in that house?" Then his answer was "we were just to look after the house since Mr Wana is absent."
MR NOMTENJA: And then how did he come out of the motor vehicle?
MR LUPUWANA: Who?
MR NOMTENJA: The one who was inside?
MR LUPUWANA: The one who was inside, Captain Matyolo opened the door, then took the guy, then Papama said that he must lay down.
MR NOMTENJA: Can you repeat that, you said Captain Matyolo took the third guy out of the motor vehicle?
MR LUPUWANA: Yes, the one who was inside the motor vehicle.
MR NOMTENJA: He took him away?
MR LUPUWANA: To lay in front of the car.
MR NOMTENJA: Did he say he must lay in front of the car?
MR LUPUWANA: Yes.
MR NOMTENJA: Haven't you just said that Papama ordered that gentleman to lay in front of the car?
MR LUPUWANA: No, it is the two guys.
MR NOMTENJA: Who fired shots to the three guys?
MR LUPUWANA: Mr Papama.
MR NOMTENJA: Did you actually witness that?
MR LUPUWANA: Yes.
MR NOMTENJA: The whole three guys, all of them?
MR LUPUWANA: Yes.
MR NOMTENJA: Do you remember that in your evidence in chief you said when the first shot was fired, you turned away, you did not actually witness the killing of the other two or the actual killing?
MR LUPUWANA: No, I didn't turn away, I just took some few paces backwards.
MR NOMTENJA: Can you tell us what was the reason for the killing of the three guys as far as you know?
MR LUPUWANA: As far as I know, I've got nothing to say about that, I didn't know anything.
MR NOMTENJA: The problem is Mr Lupuwana, you were present and none of us were there, surely you should have known what was the actual reason for the killing of the three teachers?
MR LUPUWANA: The reason that I can say, that I heard is that these guys, they know Papama and they are going to tell Mr Wana that he was in his house to capture them. That is the only reason I can say.
MR NOMTENJA: Was it not then at the initiative of Papama because of that reason?
MR LUPUWANA: I cannot say so.
MR NOMTENJA: Was it not Papama who said that something should be done about these teachers because they knew him?
MR LUPUWANA: Yes, it is Papama.
MR NOMTENJA: Let's come to this point, you see Captain Matyolo ordered Papama to stop shooting when he was still using the pistol which was with him, is that correct?
MR LUPUWANA: Yes.
MR NOMTENJA: What happened to the pistol that he was using when he was supplied with the one which was in your possession?
MR LUPUWANA: Say again your question, sir.
MR NOMTENJA: What did he do, what did Papama do with the pistol which he used initially before he was supplied with the one which was in your possession?
MR LUPUWANA: I didn't notice what he did, but I just hear that he is still shooting.
MR NOMTENJA: Were you not requested to hand over your firearm direct to Papama?
MR LUPUWANA: No, I did not hand it direct to Papama.
MR NOMTENJA: Where were the victims at the time of the exchange of the pistols?
MR LUPUWANA: They were still laying in front of the car.
MR NOMTENJA: Were they still alive?
MR LUPUWANA: I cannot say as to whether they were alive or dead.
MR NOMTENJA: Whereabout was the exchange of the pistols done in relation to where the deceased were laying?
MR LUPUWANA: It was - since they were laying facing this direction, we were at their back, on their foot, since their heads were facing the front direction.
MR NOMTENJA: Did you also witness the second shooting?
MR LUPUWANA: Yes, I heard some shots.
MR NOMTENJA: Did you see the actual shooting?
MR LUPUWANA: I didn't see the actual shooting, but I heard that Papama was still shooting.
MR NOMTENJA: Why, why did you fail to see that because you were very close?
MR LUPUWANA: No, I was scared of seeing somebody shooting other guys.
MR NOMTENJA: Were you not scared at the time you actually witnessed the shooting by Papama of the victims at the first instance?
MR LUPUWANA: I was still scared at that time.
MR NOMTENJA: But you witnessed it?
MR LUPUWANA: I witnessed it because I was still there, there was no place to go.
MR NOMTENJA: You actually saw the shooting, the first shooting?
MR LUPUWANA: I didn't see the first shooting, but I heard that Papama was shooting. I did not see the shooting, but just somebody is shooting.
MR NOMTENJA: What I am saying, my question is did you actually witness the shooting by Papama of the victims?
MR LUPUWANA: Yes, that Papama was shooting, then I took some paces.
MR NOMTENJA: And for the second occasion?
MR LUPUWANA: Still at that stage.
MR NOMTENJA: You were witnessing the shooting, the actual shooting?
MR LUPUWANA: Yes.
MR NOMTENJA: Thank you, no further questions.
NO FURTHER QUESTIONS BY MR NOMTENJA
CHAIRPERSON: Thank you Mr Nomtenja. Mr Lesele, have you got any questions?
CROSS-EXAMINATION BY MR LESELE: Yes, I do Mr Chairperson. May I proceed with my questions? Mr Lupuwana, when you were giving your evidence in chief, your final words which you uttered, you said to this Committee that you want to convey to the family members how sorry you are about the events which took place in May 1993, do you remember that?
MR LUPUWANA: I didn't hear what you said now.
MR LESELE: Do you remember that when you were finalising your evidence in chief, you said I want to say sorry to the family for my involvement, don't you remember that?
MR LUPUWANA: Yes, I do because I was there at the scene where their kids were killed.
MR LESELE: I am bringing this to your attention Mr Lupuwana because you do you look sorry, you are only saying it in words that you are sorry, but you don't look sorry.
MR VAN BREDA: Mr Chairperson, may I interrupt again. I don't know on what this based. If my learned friend can maybe just show the basis for this statement, because I really don't know how a person can extract whether a person has grieve or sorrow or whatever his feelings are, as it pleases you.
CHAIRPERSON: Yes, perhaps you want to rephrase that Mr Lesele. If it is in dispute that the apology is a genuine one, then perhaps you want to put that to the witness.
MR LESELE: Mr Chairperson, the reason why I am making this allegation or this submission, it is because from the demeanour of the witness from where he is giving his evidence, he does not display the attitude of a person who is sorry about what he did.
CHAIRPERSON: Yes, perhaps, perhaps you must put it to him that that is what you will argue and give him an opportunity to comment if he wants to.
MR LESELE: As it pleases you Mr Chairperson. Mr Lupuwana, I want to put it to you that you do not appear like a person who is sorry for his involvement. Do you have any comment on that?
MR LUPUWANA: No, I feel very sorry.
MR LESELE: I want to put it to you further, Mr Lupuwana, that from the evidence that you have given, both under your evidence in chief and under cross-examination, you display yourself as an angel on that day, a person who did not take part in the acts which led to the killing of the three deceased?
MR LUPUWANA: It is just, of what I have said, we have done it the way I have said so.
MR LESELE: Mr Lupuwana, is it correct that when the events of the 13th of May 1993 was still fresh in your mind, you made a statement to the police?
MR LUPUWANA: Yes, I put a statement to the police.
MR LESELE: Is it also correct that the statement which you made, you made on the 24th of April 1997?
MR LUPUWANA: Yes. I am not sure about the date, but I know that I have made a statement to Inspector Radi.
MR LESELE: Is it also correct that the statement which you made, you made when the events of May 1993, were fresher in your mind than they are today?
MR LUPUWANA: Yes, I was fresh.
MR LESELE: Is it also correct that you signed for that statement?
MR LUPUWANA: Yes, I signed for the statement.
MR LESELE: Would it be fair to conclude that your signature in that statement, symbolised your satisfaction with the contents of the statement, when you appended your signature, you actually symbolised that you were happy with the contents?
MR LUPUWANA: No, I was not happy to give the statement, but I gave the statement.
MR LESELE: I don't know if you understand my question. Do you want me to repeat it?
MR LUPUWANA: Just repeat your question again.
MR LESELE: My question to you is when you signed that statement, your signature was saying to the person who reduced the statement into writing that you are happy that what is contained in that statement is what you have told him?
MR LUPUWANA: Yes, it is what I have done, or what I have said, it is what I have signed for.
MR LESELE: Is it correct that the statement which you made, before you signed, you actually read it?
MR LUPUWANA: Yes.
MR LESELE: Is it also correct that it was read back to you before you read it?
MR LUPUWANA: Yes. It was first, they wrote the statement, then I read it, then the statement was taken to be typed, then after that I read it again, then I sign for the statement.
MR LESELE: Who wrote the statement down?
MR LUPUWANA: What sir?
MR LESELE: Who wrote the statement down?
MR LUPUWANA: It was, I cannot remember because it was the Inspector or another policeman, but I am not actually sure who was writing, actually writing, but I read the statement after they written it.
MR LESELE: Is it correct that that statement was reduced into writing in English?
MR LUPUWANA: No, they first said that I must say of what I am going to say in Xhosa because it is better that he knows a little about Xhosa, then he said can he write it in English so that I can understand it. I said "no, I understand English, he can write it."
MR LESELE: Were you speaking in Xhosa with Inspector Radi?
MR LUPUWANA: Yes, I was speaking Xhosa at that time.
MR LESELE: And he was having no problem with the language?
MR LUPUWANA: No. They said first I must talk the statement in Xhosa, then they said okay, can you speak English and then we can write the statement, and I said "yes".
MR LESELE: Did you write the statement or did he write the statement?
MR LUPUWANA: No, I didn't write. I just talked.
MR LESELE: So Captain Radi in fact reduced it into writing? Is that so Mr Lupuwana?
MR LUPUWANA: Yes, I don't know if it was Inspector Radi or the other policeman, they were together, I cannot remember.
MR LESELE: I see. I wish to show you the signature which appears on pages 79, 80, 81, 82, 83 and 84 of the statement. All I want you to do is just to confirm whether that signature that appears there, is your signature.
MR LUPUWANA: Yes.
MR LESELE: Is it also correct Mr Lupuwana, that when you instructed your Attorney to bring this application on your behalf, a statement was taken?
MR LUPUWANA: My Attorney?
MR LESELE: Yes?
MR LUPUWANA: Yes, they took a statement from me.
MR LESELE: Is it also correct that the statement which you gave, was reduced into writing?
MR LUPUWANA: Yes, they wrote the statement.
MR LESELE: In what language did you give the statement?
MR LUPUWANA: I gave the statement in English.
MR LESELE: So you have no problem in expressing yourself in the language?
MR LUPUWANA: Yes.
MR LESELE: Is it also correct that you signed that statement?
MR LUPUWANA: Yes, I signed the statement.
MR LESELE: Would it also be fair to conclude that before you signed it, you read it?
MR LUPUWANA: Say again, what is it?
MR LESELE: Would it be fair to conclude as well that before you signed that statement, you also read it?
MR LUPUWANA: Yes, I was there.
MR LESELE: Did you read it or was it read back to you? Did you read the statement or was it read back to you or both things happened?
MR LUPUWANA: No, the statement, they wrote it in English, then it was typed, then I was called again on another day to come and read and sign for the statement.
MR LESELE: I am asking you these questions Mr Lupuwana because I notice that the contents of the statement which you made to your Attorney which you signed on the 10th of May 1997 is different insofar as the details are concerned, with the one which you made to the police when the events of May 1993 was still fresh in your mind. Can you comment on that?
MR LUPUWANA: I didn't make the statement in 1993.
MR LESELE: No, the statement which you made to Captain Radi on the 24th of April 1997, that statement is more detailed than the one which you made to your Attorney on the 10th of May 1997?
MR LUPUWANA: Yes, there is more detail. They are the same.
MR LESELE: I will bring a few paragraphs to your attention to show you that they are different. The first statement - may the Committee bear with me, I am just looking for the relevant paragraph - the paragraph before the last which is on page 3 reads as follows
"... Papama was supposed to lead us to Wana. We waited for some time at Wana's house because there were no people present. After a while, three gentlemen arrived in a motor vehicle. I did not know who these gentlemen were. Captain Matyolo instructed us to stop in the veld. All of us got out of the vehicle and Captain Matyolo instructed Papama Mgudlwa to kill these three gentlemen. The Captain handed his firearm to Papama in order to shoot these people and I was also instructed to hand my firearm to Papama for the same purpose. The three gentlemen were then shot dead by Papama Mgudlwa, we left the scene."
That is the first statement. Would it be fair to conclude from this statement that an inference which can be drawn is that the killing took place at the veld near the house of Mr Wana?
MR LUPUWANA: No.
MR LESELE: From the statement which I have just read, the paragraph which I have read, would it be fair to conclude that the events occurred near the veld of Mr Wana's house, where you saw these gentlemen coming out?
MR LUPUWANA: Say again your question sir.
MR LESELE: I want to know from you Mr Lupuwana, whether it would be fair to conclude that the only inference which can be drawn from this paragraph is that this incident happened near the veld of Mr Wana's house.
MR LUPUWANA: No.
MR VAN BREDA: Mr Chairperson, may I please intervene at this stage again, sorry for the intervention, but the statement has to be understood in the context. That specific statement consists of only four paragraphs. The first paragraph contains six lines, the second one, four lines, the third one four lines and the last one, eight lines whereas the other statement my learned friend is referring to, consists of several pages. It is quite clear that the statement that consists of four paragraphs, is a very, very brief summary of what transpired, and I can't agree with my learned friend's statement that the only inference is now that the incident occurred in the veld near Mr Wana's house. As it pleases this Committee.
CHAIRPERSON: Yes, well, yes, it is a possible inference. Perhaps the applicant should be allowed to deal with the question. Won't you repeat your proposition to the applicant and perhaps he can then respond?
MR LESELE: As it pleases the Committee Mr Chairperson. My question to you Mr Lupuwana is, from the statement that is the paragraph which I have read out to you, the inference one draws is that you were never inside, I will rephrase the question, you were never inside Mr Wana's house, there was no stage where the three gentlemen were asked to hold their hands up, there was no time where the gentlemen were asked about the whereabouts of Mr Wana. The only thing that happened is that you were in the veld, you saw the gentlemen and then you, the shooting occurred in the veld whereas in the statement which you gave to the police, you indicated that the gentlemen found you inside the house of Mr Wana and you were underneath the table and the shooting took place, the gentlemen were taken out to the boot and then you left with them?
MR LUPUWANA: No, there were no such (indistinct), I was inside, the time they entered the house, I was inside the house, I didn't say I was outside. I was inside the house.
CHAIRPERSON: What is your comment on this paragraph on page 3 of your amnesty application? Is that the full account of what happened or what?
MR LUPUWANA: Say again sir.
CHAIRPERSON: This account that appears on page 3 of your amnesty application, it is in response to paragraph 9(a)(i) of the amnesty application form, the four, five paragraphs which Mr Van Breda had spoken about just now, what is your comment on this, is this a full account of what happened?
MR LUPUWANA: Yes, what happened sir.
CHAIRPERSON: Is this everything that happened?
MR LUPUWANA: That is brief, not in details.
CHAIRPERSON: Oh, yes, thank you. Mr Lesele?
MR LESELE: Thank you Mr Chairperson. I will read to you on page 8 of the index, 81, I beg your pardon, the first paragraph and line, from line 6 thereof. I wish to read you a sentence which contradicts the evidence which you gave in chief and under cross-examination by my learned colleague, Mr Nomtenja
"... this guy said no, he is in Cape Town or Johannesburg."
Do you remember when you gave your evidence in chief and under cross-examination by my learned colleague, you indicated that Mr Wana was said to be in Cape Town?
MR LUPUWANA: No sir, he was in Cape Town not in Johannesburg.
MR LESELE: So would you agree with me that what is contained in this statement which you read back and signed, is in conflict with what you testified to this Committee today? Can you agree with me or not Mr Lupuwana? I don't want you to waste the time of the Committee by making unnecessary explanations, can you or can you not agree with me?
MR LUPUWANA: I agree with you.
MR LESELE: Thank you. I would read further in that statement, it will be page 81, unfortunately it is not properly paragraphed, I will have to use the lines, sentence number 18 where it reads as follows
"... Papama drove the car back towards King Williamstown."
Let me read before that sentence, the sentence before it so as to get it in proper context.
"... We then drove back to Mgudlwa's house, we did not find Madiba there, then when we did not find them at the house, Papama drove the car back towards King Williamstown. At a place we turned off the road into a gravel road."
When my learned colleague, Mr Van Breda and Mr Nomtenja were asking you questions, you have testified to this Committee that you did not know where the vehicle was driven to because you did not know the area, but when you gave your statement, when everything was still fresh in your mind, you knew the direction to which you were going from the Mgudlwa house? Do you remember that?
MR LUPUWANA: No, the time that I remember is that when we turned off from Zonwabela's house, we then proceeded with the same road. I did not know where are we going to now, the actual place where are we going to.
MR LESELE: Exactly, that is what you said when you were giving your evidence in chief and under cross-examination. But when you made a statement, when everything was still fresh in your mind, you said you drove towards the direction of King Williamstown? Can you agree with me once more that what is contained here, is different from what you gave in your evidence in this Committee, this morning?
MR VAN BREDA: Mr Chairperson, may I please intervene again? The witness testified in his evidence in chief that he did not know, or if I can use my own words, the location where they were going to. It is quite clear from this statement, it is a general direction in which they were travelling to. He still maintained that he did not know where exactly they were going to. In other words, the precise location.
MR LESELE: Mr Chairperson, let me also reply to my colleague.
CHAIRPERSON: Yes.
MR LESELE: I am sort of disturbed by the manner in which my colleague wishes to protect his client, to an extent that I can only conclude that he is sort of trying to give evidence on behalf of his client, because the client had already answered my question when he was intervening and my colleague seems to be giving evidence on behalf of his client. I must with respect, Chairperson, ask my colleague not to proceed in that line of protection because he is over protecting his client.
CHAIRPERSON: Yes.
MR LESELE: If it pleases you.
CHAIRPERSON: Yes, it seems though that the point is on page 81 of the record, the clause "towards King Williamstown" is also open to the interpretation of being in the direction, in the general direction of King Williamstown, not as King Williamstown as a destination. I think that was the point that Mr Van Breda was trying to make. I am not sure whether anything important turns on this question, whether you want to take it any further, I am not stopping you.
MR LESELE: The point which I am trying to establish Mr Chairperson is that we have here before you a witness who is not telling us the whole truth, that is the point which I am trying to establish.
CHAIRPERSON: Yes, you know you are entitled to do that. I am speaking about this particular point, I don't know, I am not stopping you to deal with this question. If there is any other questions you want to ask about this ...
MR LESELE: I have now finished it.
CHAIRPERSON: Have you done with this one, okay?
MR LESELE: I have finished Mr Chairperson.
CHAIRPERSON: No, no, please go ahead. May the Committee bear with me - won't you tell us Mr Lupuwana, who was your immediate supervisor or the person that you were reporting to at the time you were in the Transkei Defence Force?
MR LUPUWANA: What is your question sir?
MR LESELE: Who is the person who was your immediate supervisor at the time you were in the Transkei Defence Force?
MR LUPUWANA: I am just confused about the word supervisor.
CHAIRPERSON: Perhaps Commander?
MR LUPUWANA: Personal Commander?
CHAIRPERSON: Who was your immediate Commander? Who did you report to?
MR LESELE: The person you were taking instructions from?
MR LUPUWANA: When?
MR LESELE: The person that you, let me rephrase this question Mr Chairperson, is it correct that in the Defence Force you take instructions from people who are above you in terms of the ranks?
MR LUPUWANA: Yes.
MR LESELE: Now, at the time you were a member of the Transkei Defence Force, who was the person who was your immediate superior, the person who was, you were accountable to for your conduct?
MR LUPUWANA: I obeyed the orders from Captain Mtse from the very onset, the time we left Port St Johns.
MR LESELE: What is the instruction that Captain Mtse gave you?
MR LUPUWANA: He asked me to take off my uniform, he first asked me "how many guys are here for stand by", I said there is no one, "I am the only one". Then how many guys have got military driving licence, there was no one, I was the only one who was having a military driving licence. Then he instructed me to take the car with him, from Port St Johns to Butterworth.
MR LESELE: From Port St Johns to where?
MR LUPUWANA: To Butterworth.
MR LESELE: Did he say to you what for then?
MR LUPUWANA: What sir?
MR LESELE: Did he say to you why you should take that vehicle to Butterworth?
MR LUPUWANA: He said that this vehicle was from Intelligence, so it is going to be used by Captain Matyolo in Butterworth.
MR LESELE: I see. So you went to Butterworth with Captain Mtse?
MR LUPUWANA: Yes, yes.
MR LESELE: So on your arrival at Butterworth, who did you find?
MR LUPUWANA: We found Captain Matyolo, Corporal Powa, that is the two gentlemen that I knew, the other I didn't know whom they are.
MR LESELE: So you are now in Butterworth with the, is it the four gentlemen when you include yourself?
MR LUPUWANA: Yes.
MR LESELE: So from whom did you then take instructions?
MR LUPUWANA: Captain Mtse talked with Captain Matyolo, then they came, Captain Mtse said that we are going to East London, so I can accompany them.
MR LESELE: Is that Captain Mtse who told you that?
MR LUPUWANA: Yes.
MR LESELE: Did he tell you why you were now going to East London?
MR LUPUWANA: No, he did not tell me.
MR LESELE: Did you ask him?
MR LUPUWANA: No, I did not ask him.
MR LESELE: Why?
MR LUPUWANA: In the Army you don't answer your senior, you just take instructions.
MR LESELE: Are you suggesting to me that you can take instructions from the senior even if those instructions are not within the scope and - within the cause and scope of your employment?
MR LUPUWANA: No.
MR LESELE: So, did you conclude as you were taking these instructions, that that instruction was within the cause and scope?
MR LUPUWANA: As I took the instructions, the reason was as I was - they just told me that I must drive this car, still I was going to drive the car.
MR LESELE: Are you suggesting to this Committee that your instruction was merely to drive this vehicle, is that what you are suggesting, drive this vehicle to wherever it goes?
MR LUPUWANA: No.
MR LESELE: What are you telling us?
MR LUPUWANA: The reason is they say that Captain Matyolo has got a duty there in East London only.
MR LESELE: Why did you not ask what is this duty and how long is it going to take?
MR LUPUWANA: No, I did not ask.
MR LESELE: Why?
MR LUPUWANA: I cannot ask what are we going to do, because the only thing - we are going to East London, come back, so since it was the weekend, it was on Saturday, I can go, then I feel nothing, because I was to get another vehicle back to Port St Johns.
MR LESELE: I see.
ADV SANDI: Sorry, whilst you are on this, Mr Lupuwana, just tell us what were your duties generally speaking, what were your functions in the Army when you were based here?
MR LUPUWANA: In the base, I was a Platoon Sergeant.
ADV SANDI: What were your duties, what do you do when you are a Platoon Sergeant?
MR LUPUWANA: It was, I was an Instructor of the Platoon.
ADV SANDI: Did your duties include driving around people like Captain Mtse who cannot drive?
MR LUPUWANA: No sir, if it is a military vehicle, I knew, if it is left here, I can take it if it is going to be used by another Army, maybe the car is not right, then it will be left here, so I can take it back to its own unit.
ADV SANDI: Thank you.
MR LESELE: You left for East London in a Nissan Sentra, you know now it was a white Nissan Sentra which you drove in?
MR LUPUWANA: Yes.
MR LESELE: What time did you leave Butterworth?
MR LUPUWANA: What?
MR LESELE: What time did you leave Butterworth?
MR LUPUWANA: No, I am not sure about the time.
MR LESELE: Was it in the morning about about seven, in the afternoon, at about twelve o'clock, in the afternoon about two o'clock?
MR LUPUWANA: No, it was not seven, it was not afternoon, but it was before one o'clock.
MR LESELE: Before one, before 13H00, is that correct?
MR LUPUWANA: Yes.
MR LESELE: I see. So, you are now driving to East London?
MR LUPUWANA: Yes.
MR LESELE: Were you on the way to East London, informed of the task or the mission that you were to carry out at East London?
MR LUPUWANA: No, we stopped next to the Kei Bridge, then we exchanged that car, Captain Matyolo said that he was going to drive himself, because he knows the place where, the actual place where we are going to because we are going to have a mission there.
MR LESELE: It is the first time that we hear about that piece of evidence, Mr Lupuwana, interestingly enough.
MR LUPUWANA: What sir?
MR LESELE: The one about stopping on the way and then the changing of the drivers because when my learned colleague, Mr Van Breda was leading you, that was not mentioned. When my learned colleague, Mr Nomtenja was asking you, you also did not mention it. It is the first time that we hear that on the way, you stopped and then the drivers were changed. Why was that left out? Do you have an answer or not Mr Lupuwana?
MR LUPUWANA: No, I didn't mention that, but it was like that.
MR LESELE: The question is do you have an answer why was that not mentioned?
MR LUPUWANA: No sir.
MR LESELE: I see. So when you changed the drivers, who drove?
MR LUPUWANA: It is Captain Matyolo.
MR LESELE: Still even when the drivers were changed and Matyolo mentioned that he knew the place where you were going to, no mention was made of the mission which you were to carry out there?
MR LUPUWANA: No, he said we were going to meet Mr Zonwabela Mgudlwa in his place.
MR LESELE: And still you did not bother to ask, to meet him and do what?
MR LUPUWANA: No, he said we are going to East London, we are going to meet Mr Mgudlwa, we are going to carry a mission there.
MR LESELE: Please answer my question Mr Lupuwana, it is straight forward, still when this thing of a mission or a task is mentioned, again you don't ask what is this mission?
MR LUPUWANA: No, I did not ask.
ADV SANDI: What did you think they were talking about when they said there is a mission to be carried out, what did you understand that to mean?
MR LUPUWANA: I didn't ask the mission because they said we will get the details in the house we are going to.
ADV SANDI: Did you have any idea as to what ...
MR LUPUWANA: No.
ADV SANDI: You could not even speculate in your mind?
MR LUPUWANA: Say again?
ADV SANDI: You could not even take a guess in your mind, you didn't know, you didn't ask them what they were talking about, this mission they were talking about, you didn't ask?
MR LUPUWANA: No, I didn't ask.
MR LESELE: Was it the first time you carried out a mission of this nature?
MR LUPUWANA: It was my first time.
MR LESELE: And still it did not, it did not bother you that this word mission was used, you don't ask even then?
MR LUPUWANA: I know the mission, when you are given orders, it is a mission, so the mission has got more details underneath.
MR LESELE: Okay.
ADV SANDI: Generally in the Army, in your experience when people say there is a mission to be carried out, what do you understand that to mean?
MR LUPUWANA: When we have the word mission, it means there are many tasks that have to be done, under the word mission. Because that is the order, there is a task that we are going to do, we are going to carry out. Mission, you can analyse in many ways, the underneath according to the books of the Army, so other (indistinct) for details.
CHAIRPERSON: Yes, but why were you concerned about being not armed?
MR LUPUWANA: What sir?
CHAIRPERSON: Why were you concerned about not being armed?
MR LUPUWANA: Because they said we are going to a mission, when you are given orders, a mission, I know we are going on an operation. There is a roadblock, you must get your firearm, then when you are given orders, then I know that you go. (Indistinct) would not have any firearm.
CHAIRPERSON: Yes, well if I understood you correctly, you said that there was an indication that you would get the weapons...
MR LUPUWANA: Yes, he said we are going to a mission, but we must not mind about the weapons, we would get the weapons in front.
CHAIRPERSON: Yes, you will get the weapons in front? What did you then think?
MR LUPUWANA: What sir?
CHAIRPERSON: What did you then think, I mean now there was talk about weapons? What did you think what was going to happen, what kind of mission is this?
MR LUPUWANA: No, I didn't ask what kind of mission it was.
CHAIRPERSON: What did you think when you heard that you will get firearms?
MR LUPUWANA: I was still waiting to hear from the orders and details.
CHAIRPERSON: You had no idea at all?
MR LUPUWANA: No.
CHAIRPERSON: In spite of the fact that there was the fact that you are going to be armed, you will be armed later on for the purposes of this mission, you didn't form any ideas? If people say you are going to be armed, don't worry, you will get your firearms in front?
MR LUPUWANA: No, I didn't.
CHAIRPERSON: Didn't you think "well, this probably entails using firearms?"
MR LUPUWANA: No.
CHAIRPERSON: You didn't think?
MR LUPUWANA: No.
CHAIRPERSON: Yes, Mr Lesele?
MR LESELE: Mr Lupuwana, what is a firearm used for?
MR LUPUWANA: It is used for shooting.
MR LESELE: So when a person says to you you will get firearms in front, it did not come to you that there will be shooting, if you know that a firearm is used for shooting?
MR LUPUWANA: No, I didn't have that mind that we are going to shoot some person or that we are going to do a task of shooting.
MR LESELE: I put it to you Mr Lupuwana, that what you are telling this Committee is far from the truth. Do you have any comment on that?
MR LUPUWANA: Say again your question.
MR LESELE: I put it to you that what you are telling this Committee, especially this portion of not knowing what the firearm was going to be used for, that you are not telling this Committee the truth?
MR LUPUWANA: No, I am telling the truth.
MR LESELE: You arrived in East London?
MR LUPUWANA: Yes.
MR LESELE: What time did you arrive there?
MR LUPUWANA: I didn't gather the time, what time we arrived, but it was still daylight.
MR LESELE: When you arrived in East London, where did you go to?
MR LUPUWANA: We went straight to - in Mr Zonwabela's house.
MR LESELE: Did you find him there?
MR LUPUWANA: No, we didn't find him.
MR LESELE: Did you park the vehicle inside the premises or outside the premises?
MR LUPUWANA: I cannot remember whether we parked it outside or inside, because there was a BMW inside the garage, I cannot recall whether we parked it inside or outside.
MR LESELE: And when you went there, who came out of the vehicle?
MR LUPUWANA: It is Captain Matyolo, Captain Mtse, me and Corporal Powa.
MR LESELE: So all of you came out?
MR LUPUWANA: Yes.
MR LESELE: And who did you meet inside the house?
MR LUPUWANA: We met Mrs Mgudlwa inside.
MR LESELE: And where did she say Zonwabela is?
MR LUPUWANA: No, I didn't ask because it was my first time to see Mrs - Captain Matyolo asked, and she said no, he is coming.
MR LESELE: Did he eventually come?
MR LUPUWANA: No, he came later, at a later stage, but not - the guy who came first, it was Papama.
MR LESELE: Was Papama asked where Zonwabela is?
MR LUPUWANA: No, I cannot recall whether he asked or not asked.
MR LESELE: You may proceed.
ADV SANDI: How long did you have to wait before Zonwabela came into the house?
MR LUPUWANA: I am not quite sure, whether it is 45 minutes or an hour, but we stayed quite a few minutes before he arrived.
ADV SANDI: It was yourself, Mr Matyolo, Captain Mtse, Papama had also come in before Zonwabela?
MR LUPUWANA: No, including Corporal Powa because we were four, then Papama arrived there before Zonwabela.
ADV SANDI: What did you sit and do whilst you were waiting for Zonwabela to come?
MR LUPUWANA: No, Mrs Mgudlwa, she braaied meat, then we ate.
ADV SANDI: Did you eat anything, did you drink anything else whilst you were waiting?
MR LUPUWANA: Yes, we had some few drinks.
ADV SANDI: What sort of drinks?
MR LUPUWANA: Some few beers and brandy.
ADV SANDI: Did all of you partake of the liquor or was it just some of you?
MR LUPUWANA: I cannot recall whether all were drinking.
ADV SANDI: Did you personally partake of the liquor that was dished out?
MR LUPUWANA: Yes.
ADV SANDI: And Captain Matyolo?
MR LUPUWANA: Yes.
ADV SANDI: Thank you.
DR TSOTSI: Just a question about that, where did you pick up Corporal Powa?
MR LUPUWANA: Yes.
DR TSOTSI: Where did you pick him up?
MR LUPUWANA: Where did I meet him? We met him in Butterworth with Captain Matyolo.
DR TSOTSI: Oh, he came along with you and Captain Matyolo?
MR LUPUWANA: Yes.
DR TSOTSI: Did he have any responsibilities on this mission?
MR LUPUWANA: Yes.
DR TSOTSI: What was his responsibilities?
MR LUPUWANA: I don't know, but he was working under Captain Matyolo, because they were Intelligence.
DR TSOTSI: Was he also a driver?
MR LUPUWANA: He is also a driver.
DR TSOTSI: Why did he have to have two drivers?
MR LUPUWANA: Yes.
DR TSOTSI: What was the reason?
MR LUPUWANA: Captain Matyolo is a driver still.
DR TSOTSI: But Captain Matyolo doesn't drive normally, does he?
MR LUPUWANA: When?
DR TSOTSI: I mean is it his normal business to drive? Is the driving your normal business?
MR LUPUWANA: It is not my normal, but I usually do drive him.
DR TSOTSI: I see. So you could do other duties as well, apart from driving?
MR LUPUWANA: Yes.
DR TSOTSI: (Indistinct)
ADV SANDI: I suppose whilst you were waiting for Zonwabela to come, you spent some time having conversations amongst yourselves, not so?
MR LUPUWANA: No, the only thing that happened is that Captain Matyolo introduced us to Papama, how did he know him, where did he meet him, so he is a General that he is already working with him, since he is Intelligence, but Papama is staying in East London, so he works together. But not in detail, because I was not Intelligence.
ADV SANDI: Did you have any conversation, was there any mention of the mission, the operation you were about to carry out?
MR LUPUWANA: No, at that stage we did not have that mission, only when Mr Zonwabela arrived, Captain said "here is the gentleman you are going to work with".
ADV SANDI: Thank you.
MR LESELE: Thank you Mr Chairperson. Who is the person who is called Madiba?
MR LUPUWANA: Madiba is a clan name of Mr Zonwabela.
MR LESELE: Zonwabela Mgudlwa?
MR LUPUWANA: Yes.
MR LESELE: Did I understand you correctly to say that his house is at Amalinda?
MR LUPUWANA: Yes, it was at Amalinda.
MR LESELE: The house of Mr Wana which you were to go to, is it also at Amalinda?
MR LUPUWANA: I am not sure because I don't know that place, that area. I just know that it is Amalinda, (indistinct) this is Amalinda.
ADV SANDI: Is that house in East London?
MR LUPUWANA: No, I don't think it is East London, because you go a stretch before you reach Mr Wana's place, it is not in East London.
ADV SANDI: Could it be King Williamstown?
MR LUPUWANA: It can be as I count the time when we drove off to that house.
ADV SANDI: Did you know King Williamstown and East London at that time?
MR LUPUWANA: No, I don't know King Williamstown but I just know the town of East London, we usually go there for shopping only.
ADV SANDI: Thank you.
MR LESELE: Thank you Mr Chairperson. Mr Lupuwana, once more, it is the first time that we hear that when you were at Mr Zonwabela Mgudlwa's house, you had a braai and consumed alcohol.
DR TSOTSI: What is the significance of that as far as this application is concerned?
MR LESELE: If it pleases you sir, I would withdraw that question. May the Committee bear with me, I am just perusing the statement. If it pleases you Mr Chairperson, may I confer with my clients?
CHAIRPERSON: Yes, please do.
MR LESELE: Thank you. I am indebted to the Committee for the indulgence. When is the first time that you heard that the mission was to take Mr Wana from East London to Umtata so that he can face the charges regarding the coup of 1990?
MR LUPUWANA: The time when we were in the house of Mr Mgudlwa.
MR LESELE: Would it be fair to conclude that the instruction as far as you understood it, was to bring Wana from East London to Umtata alive?
MR LUPUWANA: Yes.
MR LESELE: The killing of the three gentlemen, would you say that it was part of the mission?
MR LUPUWANA: No, it was not part of our mission.
MR LESELE: So in other words the mission that you carried out, that is of shooting the gentlemen, was not part of your mission, that is ...
MR LUPUWANA: It was not.
MR LESELE: I see. Was Papama either in the South African Police Service or Transkei Defence Force at that time?
MR LUPUWANA: No, he was not in the Transkei Police or soldiers, I don't know what he actually was doing in East London.
MR LESELE: So whatever instructions that he carried out, he did not carry those instructions in the name of either the South African Police Service or the Transkei Defence Force?
MR LUPUWANA: No, I don't know, he was known by Captain Matyolo.
MR LESELE: I see. Chairperson, I will have nothing further for this witness, thank you.
NO FURTHER QUESTIONS BY MR LESELE
CHAIRPERSON: Thank you very much Mr Lesele. Ms Nketse, any questions?
CROSS-EXAMINATION BY MS NKETSE: Thank you Mr Chairman. Mr Lupuwana, just for the record, Mr Mgudlwa, Mr Papama Mgudlwa denies any involvement in this mission that were to take place or in the killing of the three victims, the deceased. Do you have any comment on that?
MR LUPUWANA: Me?
MS NKETSE: Yes, do you have any comment on the fact that he is denying any involvement in this matter?
MR LUPUWANA: That answer is difficult for me. Did Papama denies to do anything or what?
CHAIRPERSON: No Mr Lupuwana, Mr Papama Mgudlwa says that he wasn't involved in this incident at all?
MR LUPUWANA: He wasn't involved?
CHAIRPERSON: Yes, he doesn't know anything about this, that is what Ms Nketse is putting to you?
MR LUPUWANA: No, this is material, he knows everything.
CHAIRPERSON: She wants to hear if you have any comment that you want to make.
MR LUPUWANA: No, he knows everything.
MS NKETSE: Thank you Mr Chairman. As a matter of interest, how long have you known Papama before this incident?
MR LUPUWANA: Before?
MS NKETSE: Yes.
MR LUPUWANA: No, I didn't know him before.
MS NKETSE: And you say you were only introduced to him on that day by Captain Matyolo?
MR LUPUWANA: Yes.
MS NKETSE: Okay, during the stage when you said that you were sitting and waiting for Mr Mgudlwa, Zonwabela Mgudlwa to arrive, was anything said to Papama at any stage about the mission?
MR LUPUWANA: No, there was nothing said.
MS NKETSE: You were all sitting at one place?
MR LUPUWANA: We were all sitting in the sitting room.
MS NKETSE: And you did not discuss the mission?
MR LUPUWANA: No.
MS NKETSE: Okay, in your evidence in chief you said that you went there in the house to meet Zonwabela Mgudlwa?
MR LUPUWANA: Yes.
MS NKETSE: Okay, at what stage then according to you, did Papama get involved in any of this?
MR LUPUWANA: No, I don't know at what stage, because as I heard after Mgudlwa arrived, this was not the first time that they carried this operation, Papama and Captain Matyolo.
MS NKETSE: According to which Mgudlwa?
MR LUPUWANA: Pardon?
MS NKETSE: According - you said according to Mgudlwa, according to which one?
MR LUPUWANA: I just heard on the arrival of Mr Zonwabela that this mission, it is not the first time to be carried out, so Papama is already involved in this mission.
MS NKETSE: So the mission was discussed with all of you in the same room?
MR LUPUWANA: Yes.
MS NKETSE: As you are saying now, after Mr Mgudlwa arrived, Mr Zonwabela Mgudlwa?
MR LUPUWANA: Yes, after he arrived, yes.
MS NKETSE: Okay, and where were you when you were discussing this?
MR LUPUWANA: We were sitting in the sitting room.
MS NKETSE: Okay, I would like to refer you to the statement that you made on page 79. I also want to point out that you had said that you confirmed the contents of the statement, that you had signed it. On paragraph 3 of that statement you say
"... after that Mr Mgudlwa arrived. Matyolo told him we were back and he is to continue with the mission. Mgudlwa said that we must not finish the mission, we must meet, we must go out. The other members from Intelligence was Captain Powa. Mgudlwa then drove all of us, Matyolo, Mtse, Powa, Papama and myself to a forrest. On our arrival there, Madiba and Papama made a sketch plan of the house of Wana."
MR LUPUWANA: Yes.
MS NKETSE: Now according to this, you did not say any of this in your evidence in chief. In fact the impression that you gave was that you sat at the house and you were instructed to wait until dark, so that you can continue the mission. At no stage at all did you say anything about going to a forrest and plans being made for the sketches of the house?
MR LUPUWANA: I said that I made a brief and a short statement, not in details.
MS NKETSE: No, I am referring to your evidence here today. In your evidence that you gave here today?
MR LUPUWANA: Yes, I didn't mention but it is here in the statement.
MS NKETSE: Mr Lupuwana, I am referring to the oral evidence that you gave here today.
MR LUPUWANA: Yes.
MS NKETSE: There was no mention at any stage of you going to the forrest with Mr Mgudlwa.
MR LUPUWANA: Yes, I didn't mention it.
MS NKETSE: Why not? If I can just say that because you were asked by my learned colleagues here on cross-examination by two Attorneys and at any stage that you insisted that you sat there, you waited, you had drinks, Mrs Mgudlwa made meat for you. At any stage, did you mention that you went out to a forrest to discuss the plans?
MR LUPUWANA: No, I didn't mention it.
MS NKETSE: Okay, and I also wish to mention that before I showed you the statement, you said you discussed the thing in Mr Zonwabela Mgudlwa's house? Why didn't you say, take the opportunity to say that "no, in fact, what had happened is that we went to a forrest"?
MR LUPUWANA: I have just forgotten this paragraph.
MS NKETSE: You forgot the paragraph or you forgot the facts?
MR LUPUWANA: I forgotten it.
MS NKETSE: You forgot, what did you forget?
MR LUPUWANA: I forgot to mention this, but I knew it.
MS NKETSE: Okay.
CHAIRPERSON: What, did this actually happen?
MR LUPUWANA: Yes.
CHAIRPERSON: You did actually go to a forrest?
MR LUPUWANA: Yes.
CHAIRPERSON: And they made sketch plans of the house?
MR LUPUWANA: Yes.
CHAIRPERSON: All right. Sorry Ms Nketse.
MS NKETSE: Thank you Mr Chairman. In your cross-examination by Mr Nomtenja you said that you and Captain Mtse were given weapons, is that correct?
MR LUPUWANA: Yes.
MS NKETSE: Is it so then that Papama was not given a weapon?
MR LUPUWANA: No, he was not given a weapon.
MS NKETSE: When was he ever in possession of a weapon according to you?
MR LUPUWANA: Who?
MS NKETSE: Papama?
MR LUPUWANA: He was in possession of the weapon at the time the guys were to be killed there, the time they were laying down.
MS NKETSE: Who gave him the weapon?
MR LUPUWANA: Captain Matyolo.
MS NKETSE: Why was he given the weapons if he was not involved in any of the missions there?
MR LUPUWANA: I don't know.
MS NKETSE: So, if I can briefly sum up the incident that happened on that day, you went on a mission to take Mr Wana back to Transkei, Mr Wana was not there and instead you found the three deceased and you took them back to a spot near King Williamstown if I am correct, and all along you and Captain Matyolo as you have testified, and the other members, were involved in this thing, but at the end it was Papama who did the shooting?
MR LUPUWANA: Yes, it is Papama who did the shooting.
MS NKETSE: Why was it necessary for him to be given the guns when you were all there, being members of the Defence Force on a mission, why was it necessary?
MR LUPUWANA: I don't know.
MS NKETSE: Why was it necessary for him to do the shooting?
MR LUPUWANA: I don't know.
MS NKETSE: You said that on the way to Mr Wana's house, someone said that Papama had a key to the house, is that correct?
MR LUPUWANA: Yes.
MS NKETSE: Where was Papama, in which vehicle did this conversation happen?
MR LUPUWANA: We were all in the same vehicle.
MS NKETSE: Who is we?
MR LUPUWANA: It was Mr Zonwabela Mgudlwa, Captain Matyolo and Captain Mtse, Papama, Corporal Powa and myself, the six of us.
MS NKETSE: Okay, you were all in the Sentra?
MR LUPUWANA: Yes.
MS NKETSE: And did Papama produce this key?
MR LUPUWANA: No, he did not show us the key.
MS NKETSE: At what stage then did you see the key?
MR LUPUWANA: The time he was opening the house.
MS NKETSE: Was he the one who opened the door of the house?
MR LUPUWANA: Yes, it is Papama.
MS NKETSE: And what happened, okay, let's go back to the stage now where you parked your vehicle, wherever you parked it, in the vicinity of Mr Wana's house, then what happened after that?
MR LUPUWANA: We parked there, then Papama go outside the car and opened the house, then he put on the lights to see that there is nobody. It was Papama who put on the lights because it was dark inside, then he (indistinct) the lights are on. Then, I don't know what he was doing inside but he came and said there is nobody, then he came back again.
MS NKETSE: So he got in, he switched on the lights and then came back to call you?
MR LUPUWANA: No, he switched off the lights, then come back to us.
MS NKETSE: Okay, you also testified that Papama at some stage said that these guys, these three guys know him. At which stage was this, was this on your way back from Mr Wana's house or was it on your way to the place where the three people ...
MR LUPUWANA: No, the time when we went to Mr Zonwabela's house and one of the guys, when they said "stand still", they said "no, sorry, we know you."
MS NKETSE: When was this now?
MR LUPUWANA: The first guy said that inside the house.
MS NKETSE: And then?
MR LUPUWANA: One of the guys said that he knows Papama, still at the time in the house.
MS NKETSE: Okay, now take us to the time when you went back to Zonwabela's house, what happened when you got there?
MR LUPUWANA: Where, then on the way or ...
MS NKETSE: Yes, the three guys as you said were in the car which was driven by Papama, is that correct?
MR LUPUWANA: Yes.
MS NKETSE: Okay, so Papama was driving this car with these three people who allegedly he had kept in the boot of his car? Is that correct?
MR LUPUWANA: Yes, they were in the boot, two of them were in the boot, one was inside the ...
MS NKETSE: Where was he sitting?
MR LUPUWANA: I cannot actually really be sure where he was sitting, in front or at the back.
MS NKETSE: Why was he the only one who was driving with them?
MR LUPUWANA: Who?
MS NKETSE: Papama?
MR LUPUWANA: No, me and Captain Matyolo we were in the car, in the same car.
MS NKETSE: So there were the three of you in this car?
MR LUPUWANA: Yes.
MS NKETSE: And then the two guys in the boot?
MR LUPUWANA: Yes.
MS NKETSE: Where were you sitting?
MR LUPUWANA: I am not actually sure whether I was in the front or at the back.
MS NKETSE: Where was Captain Matyolo sitting?
MR LUPUWANA: He was inside the car, also inside the car.
MS NKETSE: Where, which part of the car?
MR LUPUWANA: Which part of the car?
MS NKETSE: Yes, was he in the front or at the back?
MR LUPUWANA: No, I am not actually sure, but - no, he was at the back, yes, he was at the back. He was at the back.
MS NKETSE: Captain Matyolo was at the back?
MR LUPUWANA: Yes, the back seat. I was sitting in front with Papama.
MS NKETSE: Okay. He was?
MR LUPUWANA: I was sitting with Papama in front, then one of the deceased and Captain Matyolo at the back.
MS NKETSE: So now you know that he was sitting at the back?
MR LUPUWANA: Yes.
MS NKETSE: You are sure now?
MR LUPUWANA: Yes, I've got that picture now, yes.
MS NKETSE: And then you got back to Zonwabela's place and then what happened?
MR LUPUWANA: When we arrived there, Captain Matyolo, in fact Mr Zonwabela's wife came outside and Captain Matyolo went and met her, I am not actually sure what they were talking about.
MS NKETSE: But you were in the same car?
MR LUPUWANA: Yes, I was in the car.
MS NKETSE: And Captain Matyolo was sitting at the back?
MR LUPUWANA: Yes.
MS NKETSE: And so, if I can just create a scenario, she came to the back ...
MR LUPUWANA: No, Captain Matyolo came out of the car and talked to Mr Zonwabela's wife.
MS NKETSE: Oh, so she didn't go to the car now?
MR LUPUWANA: No.
MS NKETSE: Okay. And what, you said that they spoke to each other and then what happened?
MR LUPUWANA: Then Captain Matyolo said that these guys are not here, I am sure - looking for Corporal Powa and Captain Mtse and Mr Mgudlwa, Zonwabela.
MS NKETSE: They were not at ...
MR LUPUWANA: Yes, they were not there. Since they left us there with the Sentra.
MS NKETSE: And then what happened?
MR LUPUWANA: Then Captain said that Papama - let's drive.
MS NKETSE: Who said that?
MR LUPUWANA: Captain Matyolo.
MS NKETSE: Did he say where Papama must drive to?
MR LUPUWANA: No.
MS NKETSE: If the panel could just excuse me.
DR TSOTSI: Can I just put a question to you, did you know that these three gentlemen whom were killed, were teachers?
MR LUPUWANA: No.
DR TSOTSI: Did any of you, did Captain Matyolo and anybody else, Captain Mtse, did any of you people know that these were teachers?
MR LUPUWANA: No, I don't know if they, if Captain Matyolo knew that they were teachers.
DR TSOTSI: If you knew that they were teachers, would it have made any difference?
MR LUPUWANA: Sir, your question again, sir.
DR TSOTSI: If you knew that these were teachers, would it have made any difference at all as far as you think?
MR LUPUWANA: I cannot answer that question, it is difficult for me.
DR TSOTSI: I see.
ADV SANDI: Did anyone of you identify the three gentlemen with any particular political organisation?
MR LUPUWANA: On my side, I say I don't know.
ADV SANDI: Did either Matyolo or Mtse suggest to you that one of them was a member of any political organisation?
MR LUPUWANA: No, I cannot remember anyone saying that.
ADV SANDI: Did anyone either Matyolo or Mtse suggest to you that they were assisting Mr Wana to carry out his intention to overthrow the government of the Transkei?
MR LUPUWANA: No, I don't know that, what I know is that these guys, they said that they were there to keep the house only.
ADV SANDI: As I understand your evidence, Mr Wana had to be abducted and taken to the Transkei because he was part of an attempt to overthrow the government, which existed in the Transkei? Did these three gentlemen assist Mr Wana in those attempts to overthrow the government of the Transkei?
MR LUPUWANA: No, I cannot say so.
ADV SANDI: I noticed that in your application, that at page 4, you say, this is under 10(a) where you are asked to state the political objective which you sought to achieve, you say
"... the mission included the tracing of persons involved in the attempt to overthrow Gen Bantu Holomisa's government. The object was to protect Gen Holomisa's position as leader and to create stability in the Transkei. I acted on the instructions of my superiors."
Now killing these three gentlemen, how would that assist to achieve those objectives?
MR LUPUWANA: No, I did not achieve.
ADV SANDI: I also notice on page 3 that you say
"... Mr Papama Mgudlwa was an informer."
Do you remember that statement.
MR LUPUWANA: He was what?
ADV SANDI: You say he was an informer, Mr Papama Mgudlwa?
MR LUPUWANA: Somebody who is working with your Intelligence on the other country, he is an informer of your Intelligence because he is not a member of the Defence Force. He is not a member of the Police of Transkei.
ADV SANDI: Whose informer was he?
MR LUPUWANA: He was Captain Matyolo's informer.
ADV SANDI: Who told you that?
MR LUPUWANA: The way he was introduced to us and the way he told us that he have had another mission with him before.
ADV SANDI: I don't follow you, you will have to explain that. Are you saying Mr Matyolo when he introduced Papama Mgudlwa, he said to you "this is my informer"?
MR LUPUWANA: No, he did not say that. He said that he knows this gentleman, Papama Mgudlwa from (indistinct), then we must accept him, he is the brother of the guy we are waiting for. Then he told us, in fact it was me and Captain Mtse. Papama already knew Corporal Powa.
ADV SANDI: That is hardly suggesting that he was an informer, he was just introducing him?
MR LUPUWANA: No, he did not say that at that present moment. So, somebody who is helping your Intelligence, is an informer.
ADV SANDI: Okay, thank you.
CHAIRPERSON: Do you see Mr Papama Mgudlwa here at this venue?
MR LUPUWANA: Now?
CHAIRPERSON: Yes?
MR LUPUWANA: Yes.
CHAIRPERSON: Where is he?
MR LUPUWANA: There is he sitting there.
CHAIRPERSON: Is it between Mr Lesele and Ms Nketse?
MR LUPUWANA: Yes.
CHAIRPERSON: Do you recognise him?
MR LUPUWANA: Yes, I recognise him.
CHAIRPERSON: All right, thank you. Ms Nketse, have you got anything else?
MS NKETSE: Thank you Mr Chairman, I have just one extra question. Mr Lupuwana, you said that when you - at the spot where the three people were shot, when Papama started firing, you did not look. How sure then can you be that he was the one who was firing the shots?
MR LUPUWANA: Say again your question.
MS NKETSE: You had testified earlier that you did not look, after Captain Matyolo gave Papama the gun, you did not look because you were scared, how then are you sure that it was him who was firing the shots?
MR LUPUWANA: I am sure because he was given a weapon by Captain Matyolo, because he had no gun for the whole time, a weapon.
MS NKETSE: But is it correct then if I say that you did not actually see him shooting?
MR LUPUWANA: I did not see him shooting. You can say so, because you were not there.
MS NKETSE: I am asking you if you saw him shooting or not?
MR LUPUWANA: I saw him shooting, but I heard the first shot, I just reverse.
MS NKETSE: Did you reverse still facing him, or did you reverse and look the other way?
MR LUPUWANA: No, I reversed facing that direction.
MS NKETSE: Then what did you mean when you were testifying here saying "I looked away after the first shot"?
MR LUPUWANA: I mean, I was just doing some few paces backwards.
MS NKETSE: Taking a few paces backwards and looking the other way, are two different things?
MR LUPUWANA: Say again your question.
MS NKETSE: I am saying that taking a few steps backwards and looking the other way, are two different things.
MR LUPUWANA: Looking the other way - I didn't turn straight looking at that, on the actual scene. I just take some few paces, I was scared, I was scared at that time.
MS NKETSE: So you did not look back as you had testified earlier?
MR LUPUWANA: I can say because it is him who was shooting. I can testify.
MS NKETSE: Okay, I want to repeat this again, you did not look back as you had said earlier?
MR LUPUWANA: No, I didn't look back, I just reversed.
MS NKETSE: So were you making a mistake when you said that you looked back when you were giving your evidence in chief here, were you making a mistake then?
MR LUPUWANA: I said I looked back?
MS NKETSE: Yes?
MR LUPUWANA: I made a mistake by saying I looked back.
MS NKETSE: Okay.
ADV SANDI: It is even more confusing now. Did you at any stage turn your eyes away from the position where Papama was shooting the three victims, did you take your eyes away at any stage?
MR LUPUWANA: I didn't do my eyes away, but I was just looking right at the corner of my eye.
ADV SANDI: I thought you said it was at night, did you have any lights, could you see, how could you see?
MR LUPUWANA: No, no lights, but when you see somebody shooting, the smoke that is coming out of the weapon.
ADV SANDI: It was dark?
MR LUPUWANA: Yes.
ADV SANDI: Was it very dark?
MR LUPUWANA: No, not very much dark.
MS NKETSE: Thank you Mr Chairman, I have no further questions.
NO FURTHER QUESTIONS BY MS NKETSE
CHAIRPERSON: Thank you Ms Nketse. Ms Thabethe, do you have any questions?
CROSS-EXAMINATION BY MS THABETHE: Yes, Mr Chair. Thank you. Mr Lupuwana, you - I just want to make sure that I am getting this correctly, you say your mission was to go to East London, to abduct Mr Wana and bring him back to Transkei alive, is that, was that your mission?
MR LUPUWANA: Yes.
MS THABETHE: Now, you have also indicated in your evidence that on your way to East London, you were given weapons by Captain Matyolo?
MR LUPUWANA: Were given weapons?
MS THABETHE: You were given weapons, yes?
MR LUPUWANA: No, he did not give us weapons, Captain Matyolo.
MS THABETHE: Who gave you weapons?
MR LUPUWANA: It is Zonwabela Mgudlwa.
MS THABETHE: Where, at what stage were you given weapons? Let me just clarify that.
MR LUPUWANA: It was on the way to Mr Wana's house.
MS THABETHE: Okay. I just want you to explain to me, what were you going to do with the weapons?
MR LUPUWANA: The weapon is to protect you.
MS THABETHE: Protect you?
MR LUPUWANA: Yes.
MS THABETHE: Okay. I just want to get a clear picture. There were how many of you, five of you plus Papama and Zonwabela, is that correct, when you went to Mr Wana's house?
MR LUPUWANA: We were six.
MS THABETHE: Six?
MR LUPUWANA: Yes.
MS THABETHE: Captain Matyolo?
MR LUPUWANA: Yes.
MS THABETHE: Lieutenant Mtse?
MR LUPUWANA: Yes.
MS THABETHE: Lupuwana?
MR LUPUWANA: Yes.
MS THABETHE: Powa?
MR LUPUWANA: Yes.
MS THABETHE: Papama?
MR LUPUWANA: Yes.
MS THABETHE: Zonwabela?
MR LUPUWANA: Yes.
MS THABETHE: Six of you, sorry, I didn't calculate correctly. You are saying there were six of you right, you were going to Mr Wana's house?
MR LUPUWANA: Yes.
MS THABETHE: With one intention to abduct him, take him back to Transkei, right?
MR LUPUWANA: Yes.
MS THABETHE: Now, I just want to understand, what were you going to do with the weapons, were you going to shoot him, were you going to scare him, exactly what did you foresee you were going to do with the weapons?
MR LUPUWANA: We were given weapons to protect, because when you are going to abduct another person from another country, you can expect anything that may happen.
MS THABETHE: But I would be correct to say that you had no intention to shoot him, because you had to take him back to Transkei alive, would I be correct to say that?
MR LUPUWANA: To abduct a person, we were not going to shoot him, we were not going to shoot him, just to get him.
MS THABETHE: Okay. Now, when you arrived at Mr Wana's house before the three guys came, right, you waited for them to come and you say they came inside and then they were asked questions, right, as to who Mr Wana was and they responded that he was in Cape Town. At some stage, I am not sure at what stage, you testified that they actually said that they were there to safekeep the house, would I be correct to say that?
MR LUPUWANA: Yes, they said so.
MS THABETHE: Right, now when did they say this, at the house?
MR LUPUWANA: Yes, inside the house.
MS THABETHE: Right, and then who decided that they should be taken along from the house, who made that decision?
MR LUPUWANA: I cannot remember whether it is Papama or Captain Matyolo.
MS THABETHE: Okay, was there any reason advanced why they were taken with you, more especially bearing in mind that they said they are there to keep the house, safekeep the house, was there any reason advanced why you had to take them along with you?
MR LUPUWANA: No, I cannot know the reason why, I do not know the reason why.
MS THABETHE: I mean in your belief at that time, why did you think, what did you believe you were taking them for?
MR LUPUWANA: To take them for?
MS THABETHE: Yes, what I am saying during that time, what did you believe was going to be done to them at that time?
MR LUPUWANA: No, I was still confused, I was not sure.
MS THABETHE: And you didn't question anybody why you were taking the three guys away?
MR LUPUWANA: I didn't ask the question why, because I was new in this mission.
MS THABETHE: Okay, can you remember, I know it is six years ago, but can you remember who actually gave an instruction that you must stop the car just before they were killed?
MR LUPUWANA: Who said we must stop the car?
MS THABETHE: Yes. You were driving, isn't it, and then you stopped the car and then they were taken out of the car?
MR LUPUWANA: No, I was not driving.
MS THABETHE: No, I am saying all of you were driving in a car, I am not necessarily saying you were the driver of the car, I say before they were killed, you were driving, isn't it, and then the car stopped and then they were taken out of the car before they were killed, that was your evidence, isn't it?
MR LUPUWANA: Yes.
MS THABETHE: I am asking you who instructed that the car should stop and they be taken out of the car?
MR LUPUWANA: I don't know who instructed the car to stop, it is Papama who knows that other route and he go and stop next to the river or "vlei", I am not sure if it was a river, if it was small or big.
MS THABETHE: I am asking you this because - let me just make sure - I am asking you this because if you go and check on page 3 of your application, the last paragraph, you stated that
"... Captain Matyolo instructed us to stop in the veld. All of us got out of the vehicle."
Would you say this is a correct reflection of what happened?
MR LUPUWANA: Say again your question. I am not clear about your question.
MS THABETHE: My question earlier on was who gave instructions that the car must stop and you said you can't remember and then I am referring you to your statement that in your statement you say that Captain Matyolo instructed you to stop. Would that be a true reflection of what happened that day?
MR LUPUWANA: I have just really forgotten who said that, but it is Papama who knows that route where we were driving to.
MS THABETHE: No, what I am asking, what do you say to the statement that you said that Captain Matyolo instructed you to stop in the veld, is that correct or is it a mistake?
MR VAN BREDA: I am just pointing out the sentence to the witness.
MR LUPUWANA: Oh, I see, just say your question again.
MS THABETHE: My question is would you say this is a true statement, that Captain Matyolo instructed you to stop in the veld?
MR LUPUWANA: Yes.
MS THABETHE: Did he tell you why you had to stop?
MR LUPUWANA: No.
MS THABETHE: Okay, what I also need to clarify from you is, I am not quite sure who gave instructions between Papama and Captain Matyolo. I am not sure who gave instructions that the three guys must be murdered. Can you help me here? On page 3 again of your statement you say
"... Captain Matyolo instructed Papama Mgudlwa to kill the three gentlemen."
Do you read that?
MR LUPUWANA: That is why I said this, Captain Matyolo ...
MS THABETHE: No, no, I just want to take you through before you answer my question.
MR LUPUWANA: Okay.
MS THABETHE: Do you see that?
MR LUPUWANA: Yes, I see.
MS THABETHE: Okay, and then let's come to page 4 of your application, 10(b), right, where you are asked about the justification, you say you
"... committed the act in execution of an order from Captain Matyolo."
Can you see that?
MR LUPUWANA: Yes.
MS THABETHE: Okay, if you turn to page 5, you also say almost the same thing
"... yes, on the instruction of Captain Matyolo who informed me that he received orders from his superiors."
Right?
MR LUPUWANA: Yes.
MS THABETHE: Okay, and then on page 9, page 9, that is Matyolo's application, he suggests that it was Papama's initiative that these people be killed, can you see that on page 9, the first paragraph?
MR LUPUWANA: What is that?
MS THABETHE: Do you want me to read it for you? It says - "... my co-perpetrators, one Papama Mgudlwa felt that as he was known to one of these victims, they would cause him to be arrested unless they killed them."
Can you see that one?
MR LUPUWANA: Yes, I see.
MS THABETHE: Yes. And then on page 81 of the statement that you wrote for court purposes, if I may just read it for you, it is towards the end. It says, it starts
"... at a place we turned off the road onto a gravel road."
Can you read that, can you see that?
MR LUPUWANA: Yes, I see.
MS THABETHE: Right, then it goes on to say
"... then near a little "vlei" or river, Papama turned right and stopped in the grass. We then all got out and then Papama instructed them to lay down, then he asked Matyolo for a gun. Matyolo gave him a gun, Papama then shot two shots, one at one guy and one at another guy."
Do you read that?
MR LUPUWANA: Yes, I see.
MS THABETHE: Now, I am confused as to exactly who gave instructions that these people must be killed, is it Papama or is it Captain Matyolo?
MR LUPUWANA: It is Captain Matyolo.
MS THABETHE: Captain Matyolo?
MR LUPUWANA: Yes.
MS THABETHE: Right, so it is not true that it is Papama who gave instructions as it is suggested in this?
MR LUPUWANA: No, no.
MS THABETHE: Okay. My next question is, what was the reason for killing these three people?
MR LUPUWANA: I don't know the reason for the killing of the guys.
MS THABETHE: But you testified earlier on that you also gave a gun to Papama?
MR LUPUWANA: Yes.
MS THABETHE: Do you remember saying that?
MR LUPUWANA: Yes.
MS THABETHE: Why, why did you give a gun to him if you didn't know why they were being killed?
MR LUPUWANA: I took instructions from Captain Matyolo to give Papama.
MS THABETHE: You were just following instructions?
MR LUPUWANA: Yes.
MS THABETHE: Right.
ADV SANDI: I think what is being attempted to be put to you, Ms Thabethe is, there was no political justification for this and I was just ...
MS THABETHE: Yes, I was still coming to that.
ADV SANDI: I think that is what he is trying to say.
MS THABETHE: Yes, yes. What I am trying to understand, is it your evidence that you were just following orders, you didn't know the reason why they were killed, is that your evidence?
MR LUPUWANA: The reason why, what?
MS THABETHE: The reason why the three people were killed, you were just following orders, is that your evidence?
MR LUPUWANA: No, I don't know what they were killed for.
MS THABETHE: Okay, you were just following orders?
MR LUPUWANA: Yes.
MS THABETHE: Okay. Now, you have also applied for amnesty, right?
MR LUPUWANA: Yes.
DR TSOTSI: I am sorry, following orders to kill these people?
MS THABETHE: Yes.
DR TSOTSI: Is that what the witness is saying?
MS THABETHE: Yes.
DR TSOTSI: I don't understand him to say that?
MS THABETHE: He just said that Member of the Committee?
DR TSOTSI: Did he say to kill the people? Because I thought that you added in your question, did you have orders to kill these people, I just want to ensure that that is what he means or what is he really saying?
MS THABETHE: Maybe I can clarify. My question was why were these three people killed and then my next question was, he handed the gun so that these people can be killed, why did he do that and then he said he was following orders.
CHAIRPERSON: Yes, he followed an order from Captain Matyolo to hand over his gun.
MS THABETHE: Yes, so that these people can be killed?
CHAIRPERSON: Yes.
MS THABETHE: Yes.
CHAIRPERSON: So the order was to hand over the gun?
MS THABETHE: Yes, oh, okay.
CHAIRPERSON: And that is the question that you have asked, so that seems to not be in dispute?
MS THABETHE: Yes, sure. My next question is, you have also applied for amnesty for this act and one of the requirements of the Act is that you must show that the act that was committed, is associated with a political objective or a political motive. My question is what was the political motive or objective of killing these three people?
MR LUPUWANA: The political motive to kill these guys, I am sure that since they were found in Mr Wana's house, who was wanted in Transkei.
MS THABETHE: I understand that, I understand that Mr Wana was wanted in the Transkei, but the evidence is clear, when you went there, you asked these guys and these guys told you that they were there for the reason of safekeeping the house.
MR LUPUWANA: Yes.
MS THABETHE: Now, what justification do you give for their killing when they were there to safekeep the house, politically, that is what I am trying to find out?
MR LUPUWANA: Politically? Politically I can say since they are with - there in Mr Wana's house, maybe they are the ones who can help him to overthrow the government again.
MS THABETHE: Is there proof of that, I mean did you have proof of that?
MR LUPUWANA: Of what?
MS THABETHE: Of the fact that they could overthrow the government by the mere reason that they were in Mr Wana's house?
MR LUPUWANA: I cannot be sure about that, because I did not know how did he regroup, how he can regroup again as he was involved before, (indistinct) that he was involved.
MS THABETHE: You did not know these guys?
MR LUPUWANA: No.
MS THABETHE: And your mission was clear, it was to abduct Mr Wana?
MR LUPUWANA: Yes.
MS THABETHE: Okay, I am coming now to the car, these guys' car that you took up until Komga Junction?
MR LUPUWANA: Yes.
MS THABETHE: How did it come about that a decision was made that this car must be burnt, who gave an instruction to that effect?
MR LUPUWANA: It is Captain Matyolo.
MS THABETHE: Was there a reason advanced for burning this car?
MR LUPUWANA: I cannot answer that question, because it seemed, when we stopped on the way from East London to Kei Bridge, they stopped the car, then he is the one who came to that I must drive safe, I must not worry because this car is going to burn on the way. I don't know which way and where.
MS THABETHE: Are you applying for the incident of burning the car as well?
MR LUPUWANA: Yes.
MS THABETHE: What political reason do you advance for that one?
MR LUPUWANA: It was not my car, it was not our car, that one.
MS THABETHE: The last aspect of my questioning, after you had committed this act, did you report this to any of your superiors?
MR LUPUWANA: Yes, since I arrived in Port St Johns, me and Captain Mtse on Monday, we met our second in command, and then after that, he phoned, he put all the incident, how did it happen, then he said I must tell him (indistinct), he phoned his Commander, that Officer Commanding, then the Officer Commanding said we must this (indistinct), we must be given a car and go straight to the Head of (indistinct), there we will meet Brigadier Jingla. On our arrival there, we met Brigadier Jingla. Then we told him all the matter.
MS THABETHE: Okay, what was his response?
MR LUPUWANA: His response was that since the paper came late in Port St Johns, after 12 o'clock, because there is no - to transport the paper, he showed us on the paper. He said no, they are going to sort it out, he is waiting for Gen (indistinct), because it is out of the country, that place.
MS THABETHE: Would I be correct if I say that the mission, the intended mission for which you had gone to East London for, had failed, it was a failure?
MR LUPUWANA: Yes, it failed.
MS THABETHE: Yes, okay. No further questions Mr Chairperson.
NO FURTHER QUESTIONS BY MS THABETHE
CHAIRPERSON: Yes, thank you Ms Thabethe. Has the panel got any questions?
ADV SANDI: No questions, except to ask for some clarification from Ms Nketse. I understand your client is - I just want to understand the extent of his denial. Is he simply denying having taken part in the killing of these people or is he saying that he never saw the applicant or the applicants and their group at all on that day?
MS NKETSE: Okay, what he is saying is that he saw them on that day, but then he denies that they left him from the stage where they said they went to Mr Wana's house. He says that when they arrived at the house, he was there. He sat with them and then they left in their car, he was left behind, so he doesn't know anything about the incident that happened from the time they left, up to the time the killings and everything happened.
ADV SANDI: Thank you.
CHAIRPERSON: Any re-examination Mr Van Breda?
MR VAN BREDA: There is nothing, thank you.
NO RE-EXAMINATION BY MR VAN BREDA
CHAIRPERSON: Thank you. Mr Lupuwana, you are excused, thank you.
WITNESS EXCUSED
CHAIRPERSON: Is there any other witnesses in this application or is that the case for the applicant?
MR VAN BREDA: That is the case for the applicant.
CHAIRPERSON: Thank you.
MR VAN BREDA: Thank you Mr Chairperson.
CHAIRPERSON: Yes, Mr Nomtenja?
MR NOMTENJA: Yes, Mr Chair. I am going to request for a two minute adjournment so that I can take further instructions from my client in the light of the evidence adduced up to this stage, so that if possible, we may consider our position.
CHAIRPERSON: Yes, we will stand down for a few moments.
MR NOMTENJA: Thank you Mr Chair.
COMMITTEE ADJOURNS
CHAIRPERSON: Yes, Mr Nomtenja?
MR NOMTENJA: Yes, thank you Mr Chair. According to my instructions by my client, at this point in time, we wish to state that we are withdrawing our application. Thank you Mr Chair.
CHAIRPERSON: Mr Nomtenja, just to confirm whether your client is aware of the fact that withdrawing his application, in effect means that it would not be open for him to get the matter decided at any further, any subsequent point, withdrawing the application means that that is the end of his application, he won't be able to renew it at any point?
MR NOMTENJA: Thank you Mr Chair, let me ask him to confirm, Mr Chair.
CAPT MATYOLO: I confirm that Your Honour.
CHAIRPERSON: Yes, you understand that it is not possible to withdraw an application at this point and to renew the application at a later point, coming back to the Committee and asking the Committee to decide your case? If you withdraw it at a hearing like this, that is the end of the case, that is the final end of it? Is that clear?
CAPT MATYOLO: It is clear sir.
CHAIRPERSON: Yes, thank you very much. Is there anything else that you want to say? Thank you very much.
MR NOMTENJA: Thank you Mr Chair.
CHAIRPERSON: I accept that none of the other parties would have any further comment on this. Have you got any, has anybody got any comment?
MR LESELE: Honourable Chair, I would have no objection or comment on that, on the application?
CHAIRPERSON: Yes, I assumed that would be the position with the rest.
MR NYOKA: Just for the record, Mr Chairperson, I am reserve for Ms Nketse, who is my Attorney.
CHAIRPERSON: Yes, thank you, I was going to say that there was quite a radical transformation that Ms Nketse has undergone, but I wouldn't say whether it is good or bad. Yes, well, then that is the position in regard to the application of Mr Matyolo, that one is withdrawn. It only leaves the application of Mr Lupuwana, who has in the meantime just for the record, been requesting the panel through Mr Van Breda, to be excused because - from further attendance, he has actually been excused earlier, because he has to travel back and he is concerned not to be on the road too late. Mr Van Breda, before I come to you, perhaps I can just formally hear from the other legal representatives, are there any other witnesses that any of you intend to call? Mr Lesele?
MR LESELE: If it pleases you Mr Chairman, may I confer with my clients.
CHAIRPERSON: Yes. Of course whilst I am waiting, Mr Nomtenja and Mr Matyolo, of course you are also excused. You are not compelled to be present, especially your client, you are not compelled to be present, so if you want to excuse yourself, you are welcome to do that.
MR NOMTENJA: Yes, sir.
CHAIRPERSON: Mr Nomtenja, if for any other reason you want to contribute on anything else, then you are free to do that, but if you want to be excused, you are free to do so.
MR NOMTENJA: Thank you Mr Chair, you have just hit the nail on the head, we were about to ask to be excused. Thank you Mr Chairman.
CHAIRPERSON: Yes, no, you are excused and we thank you for your assistance.
MR NOMTENJA: Thank you Mr Chair.
CHAIRPERSON: Thank you.
MR LESELE: I am indebted to the Committee for the indulgence. My instructions are that there will be no further evidence which would be coming from our side, as it pleases you.
CHAIRPERSON: Thank you Mr Lesele. Mr Nyoka, is there any witnesses that you intend to call?
MR NYOKA: No, no Chairperson.
CHAIRPERSON: Thank you. Ms Thabethe?
MS THABETHE: No witnesses, Mr Chair.
CHAIRPERSON: Thank you. Mr Van Breda, I think that brings us back to you. Have you got any submissions on the merits?
MR VAN BREDA IN ARGUMENT: Yes, thank you. I haven't prepared any Heads of argument, so I will just in light of the time factor, I am just going to address the Committee.
First of all, I think we should first establish what can be regarded as common cause in this matter. Firstly being - that Mr Lupuwana the applicant in this matter, was a member of the Defence Force, the Transkei Defence Force which was regarded as a Homeland during the time in question. Furthermore that there was an attempted overthrow of Mr Holomisa's government during 1990, there is no evidence to the contrary that the one Wana, was involved in this and that the Intelligence Unit of the Transkei Defence Force, was indeed looking for him. The instruction was given that he should be abducted from East London area and be taken back to Umtata. It appears and we have to speculate on this that the reason for that was for him to stand trial.
I will also ask the Committee to take into account not only the background, but also that we are dealing here with a Defence Force where there are certain structures. First of all the applicant in this matter, had the rank of Sergeant, that he was in the company firstly of Lieutenant Mtse and then Captain Matyolo. It appears as if Captain ...
CHAIRPERSON: I am sorry, Mr Van Breda, was Mtse, was he a Lieutenant?
MR VAN BREDA: Mtse, I picked it up from the statement made by one of the representatives on the other side.
CHAIRPERSON: Yes, although your client seemed to have referred to him as a Captain?
MR VAN BREDA: As a Captain, that is correct, that is correct, but both of them being Officers and the applicant was not an Officer. There is a big distinction between the two in the ranks of the Defence Force. Furthermore it should also be accepted that it is not for any Sergeant in this case, to question the instructions of an Officer and it is well known procedure that instructions will be given without explaining details or the reason behind the said instruction. If we keep this in mind and come to the merits of this case, then it is clear that there were several attempts one of which we know, made by Captain Matyolo and others not the applicant, in order to abduct Wana.
CHAIRPERSON: You say we can accept that?
MR VAN BREDA: There was at least one that we heard about today?
CHAIRPERSON: Yes, and that those would have been let's call it official attempts?
MR VAN BREDA: Official attempts.
CHAIRPERSON: It would have emanated from some or other source, a structure of authority in Transkei?
MR VAN BREDA: That is correct. According to the papers before this Committee, it appears as if the original instruction was given by Gen Bantu Holomisa and although the applicant, my client, was not aware who indeed gave the order, but it is clear from the documents before this Committee that this was indeed the case.
It is indeed correct and I have to concede at this point, that the instruction was to abduct and to bring back. The applicant was in a position where he could not ask many questions, it was his first time to be involved in an operation of this kind, he didn't know what to expect and one can understand that he must have been scared. I also have to say that it is quite clear that this is a mission that went wrong. It is my humble submission that we cannot from this one incident break it up in different compartments and say that a person who acted on the original authority, is now entitled to protection to a certain stage or for certain things, and not for others. The one thing led to the other, in this specific matter.
To emphasize what happened at the house, at Wana's house, it appeared from the applicant that Captain Matyolo was not satisfied with the explanation given by them in that Wana was in Cape Town and made a threat to them, but I think it can safely be said that at that stage there was no intention of any killing. As far as the abduction of the three members were concerned, one has to ask the logical question, why and if one applies your mind to it, I think the answer is actually simple. These three gentlemen recognised Papama, they could easily inform the South African Police at that stage which could lead to the arrest of all the members of the Transkei Force, Defence Force. They had to make some or other plan in order to protect themselves.
ADV SANDI: Sorry, if I can interrupt you for a moment, but isn't that where exactly the problem begins? Were they not acting for personal protection, how can that be political?
MR VAN BREDA: Should they have been arrested, everything would have come forward and the media would have known about this. Mr Holomisa would be implicated. In the wider sense, it was important that nobody should know about them because if they are caught, everyone will know that the Defence Force is involved and also the Head of State of the Transkei.
CHAIRPERSON: I am sorry Mr Van Breda, was the position or let me ask you, what was the position, would the victims have been aware of the fact that there were members of the Transkei Defence Force involved or is the evidence that they only knew Papama Mgudlwa?
MR VAN BREDA: It appears as if they knew that Wana was hiding and we have to infer that from what we have in front of us. The reason why I say that is because they immediately said he is in Cape Town, so we can infer that they knew that some people were looking for Wana or the people from the Defence Force and wanted to take him back. It is my submission that these three people were only there to look after the house, but they were well aware of the fact that Wana was a wanted man, if I can put it that way.
CHAIRPERSON: Yes. Now, they only knew Papama Mgudlwa of the group of people that were there, so that would have been the only person that they would have been able to identify? Assume that that would have happened, what sort of offence had been committed up to that point, assume they ...
MR VAN BREDA: Before the killing?
CHAIRPERSON: Yes? Assume they had asked the three where is Mr Wana and they said he is in Cape Town and the group left without doing anything further, what offences would have been committed by this group?
MR VAN BREDA: No offences, I have to concede that, but we have to keep in mind the subjective view of the persons involved at that stage. They were scared that if Papama is brought forward, then it is inevitable that the whole, yes, that everybody will be actually brought forward and that they will know about what was actually transpiring at that stage, of the so-called mission.
ADV SANDI: Does, sorry, does it not mean that it would be known that this group had been trespassing on the premises of Wana in his absence?
MR VAN BREDA: Sir, I don't understand you now, Mr Chairperson.
ADV SANDI: Does it not mean that up to the point where the deceased came to the house, and the applicant and his group were there, does it not mean that the deceased would have found the applicant and his group trespassing on his premises?
MR VAN BREDA: I didn't think further than on the previous question by the Chairperson, there was of course housebreaking and trespassing or housebreaking with an intent to commit an offence, unknown at that stage, I would say, so there are offences that I didn't think about two minutes ago. I am afraid I have to apply my mind to it, and trespass as you indeed say, but I think the reason, or not I think, the reason why the other offences were committed from that point, from the moment that they entered the house and they were informed to raise their hands, was the fear of what could have happened and if I talk about they, I talk in general terms, they had to ensure that this does not happen.
ADV SANDI: Can one justify killing three people simply because you don't want it to be known that you had broken into premises and trespassed on those premises?
MR VAN BREDA: Yes, no surely you don't want to be known, everybody will avoid, want to avoid criminal action, but I don't think the criminal action was essential at that stage, it was more a matter of protecting Bantu Holomisa and what they were actually busy doing. They were looking for Wana to take him back so this whole mission that they were onto, was actually a secret mission.
ADV SANDI: I hear you say it was more a case of protecting Holomisa, but these three gentlemen, the deceased, is there any evidence here that they knew that Holomisa had sent the applicant and his group to come and abduct Wana?
MR VAN BREDA: That is why I told Mr Chairperson earlier on, I think it is safe to infer that, that they knew that the Transkei Defence Force was looking for Wana because they immediately told them he is in Cape Town or wherever he was, and it is quite clear, he was aware of previous attempts to abduct him and that is the reason why he didn't stay at his house and that can also be regarded as common cause. These three gentlemen who were asked to stay in his house, we have to, I think it is in the papers, but the main reason given forward for that, according to the papers, is for the number of break-ins that took place during that period in time. So these three gentlemen knew that Wana was hiding. I am not saying that they were indeed involved, that is not what I am saying, I am just saying that they were aware of the fact that the people from the Defence Force in the Transkei, are looking for Wana.
DR TSOTSI: They would then deliberately go and stay in Wana's house, even though they knew that he was a wanted man? Don't you think that they would have gone and risk for their own lives?
MR VAN BREDA: Wana was the one that was wanted.
DR TSOTSI: That is right, and he had left his house because he was wanted?
MR VAN BREDA: That is right.
DR TSOTSI: These men knew that he was wanted?
MR VAN BREDA: Yes.
DR TSOTSI: And they still come and stay and come and occupy his house, when that is a risk, that is the question?
MR VAN BREDA: No, I don't think so, because Wana was the person they were looking for, and as far as we know, the Transkei Defence Force were not looking for them and there was actually no danger in the beginning, put it that way, for them to stay there, except for being attacked maybe by a person who wanted to break in. I mean breaking in as in the criminal sense.
DR TSOTSI: Well, as it happened, there was danger, because they were killed?
MR VAN BREDA: Yes, that is why I say initially. It turned out, if we have to speculate now on that, if those three, or one of the gentlemen didn't recognise Papama, then we can just as well speculate further that nothing would have happened to them. But the reason why further action was taken was because Papama was recognised by one of those three gentlemen and that is where things went wrong, if I can use that word.
DR TSOTSI: But couldn't Papama have gone across to the Transkei for protection, why was it necessary to kill these people? Surely he could have gone across, his home apparently is in the Transkei?
MR VAN BREDA: Well, he was, unfortunately I don't know where his home was, I just know that he was staying in Amalinda at that stage. It is easy now to say at this point, in retrospect, you could have done this or that or that, but when you are in that situation, I think we should place rather ourselves in that position and realise that these people were scared with what they were doing, they could have been caught, arrested and locked up in jail and I am not saying it was a right thing to do, or a sensible thing to do, but at that stage, between Matyolo and Papama they decided that that was a good option to ensure that nobody will talk, by eliminating the people.
ADV SANDI: It is very simple, isn't it, the operation has not been a success, one of the three gentlemen has identified Papama, is it not an easy thing for Mr Papama to do, he just runs away, he goes to the Transkei? We have heard many cases of people who carried out operations in the territory, the former territory of the Republic of South Africa and they would run away to the Transkei and they would never be arrested?
MR VAN BREDA: That is indeed the case with some of them, but it is - we have to place ourselves in the shoes of somebody else now and I have to speculate on why was there decided to kill these people? Of course, myself, I can forward many other things to do than killing a person for that reason. That is why I say none of this can be justified, but again, we have look at the circumstances of the events and the people being placed in that specific position, as what they regarded as a solution for the problem that they were facing. At that stage, they had to decide within a few minutes what to do and surely their senses were affected, they were nervous, they didn't know what to do, things went wrong, they didn't get Wana, what now? A person does not always think straight under those circumstances.
The applicant in this matter, was not the one that was actually doing the killing. He was indeed the one that acted on instructions to do certain things. As far as the reason why these three were abducted and killed, were - or my client acted as far as that was concerned, on the instructions of Matyolo and the only two persons, according to the evidence given to this Committee, of the killing or that can answer that question is Papama Mgudlwa and Captain Matyolo. Captain Matyolo refused - not to proceed with his application, Papama Mgudlwa did not even bring an application, so that is the evidence this Committee is left with. Unfortunately we have to speculate a lot to try and find solutions but the fact remains that we have to rely on the only tested evidence which was given by Mr Lupuwana and according to Mr Lupuwana, Captain Matyolo instructed that those people should be killed and he should hand his firearm over to Papama in order to kill them. It was also - no pardon me - he wasn't sure whether Matyolo gave in fact the instruction to, what to do with them initially, but it turns out from his statements that Matyolo was giving the initial instructions, that they should be taken to Zonwabela Mgudlwa's house and from there, proceeded in the direction of King Williamstown. This was all as a result of what went wrong in the house of Wana where they panicked and decisions had to be made, but the people who can answer those questions, elected not to testify at this hearing. On this point, I would like to emphasise the fact that we have to keep in mind that a person testifies today on events that happened six years ago, which must be extremely difficult. The first statement he made was in 1997 which was a warning statement to the police, not a sworn statement, a warning statement. And then of course the application as such. Four years went passed before he could sit down and try and recall everything, which also makes it more difficult. But it is my submission that Mr Lupuwana was honest. It was easy for him to come to this Committee today and thing of other political reasons why the people, the three people had to be killed, etc, etc, but he didn't. He told this Committee he didn't know about the operation up until they were in East London. He didn't even know who gave the initial instruction that Wana should be abducted. He told this Committee on questions by the Committee itself that he didn't even know whether these three gentlemen belonged to a political organisation and if he really wanted to fabricate any evidence, it would have been the most easiest thing for him to come and say, yes, we had information from our Intelligence sources that they were indeed involved in the attempted overthrow of the government or any other political organisation. But he didn't do it, he took the Committee in his confidence and told them exactly what he knew about the incident and he is the only person who took liberty in doing that.
Now of course the application goes further than that, and there are certain requirements to be met. When we look at these requirements, my request to the Committee is first of all not to only regard the initial instruction to abduct Wana and bring him back, as the objective behind all of this. It goes a bit further. When things went wrong, all of that was done in order to protect what they intended to protect, and that was safeguard the security and the safety of the Transkei and that was the whole mission, the whole purpose of this exercise. It is regrettable that it went wrong and those three gentlemen had to be killed, and as my client testified, he feels very, very sorry about that, but at that stage, he didn't see any outcome. He was not the man who gave instructions that the people should be killed or they should be abducted or whatever the case. He merely acted on instructions. It is also clear that it wasn't a well planned operation. At the end of the day, it can be said that he acted as a soldier, that the initial instruction was part of his duties. What followed there or upon that, although not part of his initial instructions to abduct and to bring back, was a consequence of the operation and I want to request this Committee to see it in that light. The consequences cannot be removed from the operation itself, but they go hand in hand. That is why the applicant brought his application to the committee because he feels he acted on instructions and their aim was indeed a political aim because we have to keep in mind that Gen Holomisa was not only a military leader but also a political leader. It is also accepted that Colonel Duly who was the leader of the group who tried to overthrow his government, was also a well known military group which can be regarded as a group busy with a liberation struggle. That is indeed what they wanted to do, to overthrow the government, to come into power.
I don't know whether this Committee would like me to go through the requirements, I don't think that is necessary, I think I have dealt with the requirements as I went along. It is indeed correct that my client himself, the applicant, could not forward all the answers as far as the political issues were involved, but it is clear from the surrounding circumstances and from the documents that have been filed in this application, that this was a politically motivated operation, that goes a bit further because the military was there, placed there to ensure safety and security. There is therefore a relation between the acts that were committed on the 21st of May 1993 and a political objective. I humbly request this Committee to see it in that light and especially in the light of Mr Lupuwana being honest and gave a detailed explanation today that this Committee will give him the opportunity not to face criminal charges, but grant him amnesty for the offences that were committed on this day and I can think of numerous offences such as housebreaking, trespassing, abducting, killing, burning of the motor vehicle, it can even be regarded as the theft of a motor vehicle. We are not sure where the firearm, to whom the firearm belonged because that could easily be contravening Section 2 of the Firearm and Ammunitions Act as well as 36 for the possession of ammunition without a licence, so we have to also keep that in mind, if we talk about offences, so there are at least nine offences that I can quickly think of. I think those are the nine offences that could be brought forward against any of my client or the other members that were implicated in this matter, but I will ask this Committee to find in his favour and grant him amnesty. Thank you Mr Chairperson.
CHAIRPERSON: Yes. Thank you Mr Van Breda. Mr Lesele?
MR LESELE IN ARGUMENT: Thank you Mr Chairperson. Mr Chairperson, we hold instructions from our clients that the applicant must be refused the amnesty that he is applying for. The basis of our instruction and submission is mainly that according to the evidence that we have before this Committee, the applicant does not satisfy the requirements of Section 20(1) of the Amnesty Act. I would read subsection (b) thereof which reads as follows
"... the act, omission or offence to which the application relates, is an act associated with a political objective committed in the cause of the conflict of the past in accordance with the provisions of subsections (2) and (3); (c) The applicant has made a full disclosure of all the relevant facts."
I will start with the first requirement that of political objective, which is defined in subsections (2) and (3). It is clear from the evidence which is before this Committee that the instruction which was given to the members of the Transkei Defence Force, they had to go to East London or King Williamstown to abduct Mr Wana, take Mr Wana from King Williamstown or East London to Umtata and take him alive so that he could face the law because of the 1990 coup which had failed. We have before you Members of this Honourable Committee, evidence to the effect that the members of the Transkei Defence Force went to East London and King Williamstown where they found the three deceased and they enquired from the deceased, as to the whereabouts of Mr Wana and they were advised that Mr Wana is in Cape Town. They decided to take the deceased, put two of them in the boot and the other one at the back seat. In the direction of Butterworth or Umtata near Komga Junction, they decided to stop, take out the deceased and maim them in the manner that has been described to this Honourable Committee. The reason that was advanced for that was that Papama realised that these gentlemen knew him and they might report him to the authorities. It is clear from that purpose that the purpose of maiming these young gentlemen, was for their personal protection and not for a political purpose.
Subsection 2(a) reads as follows -
"... any member or supporter of a publicly known political organisation or liberation movement, on behalf of or in support of such organisation or movement, bona fide in furtherance of a political struggle waged by such organisation or movement against the State or any former State or another publicly known political organisation or liberation movement."
It is clear from the evidence which is before this Committee that the intention of killing the three deceased, did not fall within the ambit of this subsection. Subsection (b) reads as follows -
"... any employee of the State or any former State or any member of the Security Forces of the State or any former State in the cause and scope of his or her duties, and within the scope of his or her express or implied authority, directed against a publicly known political organisation or liberation movement engaged in a political struggle against the State or a former State or against any members or supporters of such organisation or movement and which was committed bona fide with the object of countering or otherwise resisting the said struggle."
We submit with the greatest respect that also their purpose for killing these three gentlemen, did not fall in the ambit of this subsection. May we proceed to read subsection (c) -
"... any employee of the State or any former State or any member of the Security Forces of the State or any former State in the cause or scope of his or her duties and in the scope of his or her express or implied authority, directed (i) in the case of the State against any former State; (ii) in the case of the former State."
I do not know if the Committee wishes me to proceed and read all this subsection, because I think they are known to the Committee.
CHAIRPERSON: Yes.
MR LESELE: I do not want to delay your time, Mr Chairman.
CHAIRPERSON: Yes, no, I think you can assume that we are aware of the effect of those subsections.
MR LESELE: As it pleases you Mr Chair.
CHAIRPERSON: Perhaps you can just draw our attention to your submissions in the light of those.
MR LESELE: As it pleases you. We also wish to place it on record Mr Chairperson, that from the evidence of the applicant, we cannot say with certainty that the second requirement of a full disclosure was made because before you we had a witness who has made a statement in 1997 to Mr Radi and we also have a witness who has made a statement to his Attorney which statement was also reduced into writing, on the 10th of May 1997 which statements we submit with respect, are in conflict with each other. In conflict, Members of the Committee, in the sense that the impression that is created in the first statement was that the events were committed outside Mr Wana's house in the veld, whereas in the second statement which was made to the police, we are taken through all the events when they entered into Mr Wana's house, when the three gentlemen arrived and when they were abducted to near Komga Junction where they were finally killed. We also have a witness who has contradicted himself in material respects in so far as the evidence which he gave, in chief and under cross-examination by Mr Nomtenja and by myself as well as Ms - let me just get the surname correct - Ms Nketse was it, that is correct, Nketse yes.
ADV SANDI: Sorry, if I can come in here, I hear you say the applicant has contradicted himself in material respects but is it not the crux of the matter that he confesses his involvement in the killing there of these people? He says he was there?
MR LESELE: If I may respond to that? That is not enough, he must confess his involvements, he must make a full disclosure, he must tell us exactly what happened, he must not distort his own testimony because at the end of the day, he is going to leave us in the dark. If, when he is asked under cross-examination, he gives this version and under evidence in chief, he gives that version. He leaves this Committee in the dark and in that way, the second requirement of full disclosure is not complied with completely, because there must be full disclosure of the relevant facts. I am not sure if I have answered the question.
ADV SANDI: Is it not something, a factor, one should take into account that the applicant was perhaps the most junior amongst these Officers, he was simply, he seems to have been literally following orders without asking anything?
MR LESELE: Indeed so, he was the most junior of all of them, but we submit with the greatest respect that even so, he could not follow orders which are not within the cause and scope of his employment, because the orders which he followed, were not within the cause and scope of his employment. If it pleases you.
ADV SANDI: If it is accepted that what is his name, Charles Wana, was a political enemy of the government of the Transkei, then surely it is part of the duty of any member of the Security Forces of the Transkei, to take part if he was to be abducted and brought to the Transkei?
MR LESELE: In so far as that is concerned, Member of the Committee, I must agree with you that it would have been a political objective or he would have been following the orders which are within the cause and scope of his employment, if he were to go to East London or King Williamstown for the purposes of abducting Mr Wana, but the application that he is asking for amnesty for, is the killing of the three gentlemen which was not the instruction which was given by either Captain Mtse or Captain Matyolo.
ADV SANDI: But if you are given an order to carry out, it may be a lawful order, it may be an unlawful order, does it not follow that you have a duty to ensure that it is not known that you are the person who has carried out that order, especially if it is an unlawful order? Don't you think the broader circumstances, the context of all this, is important?
MR LESELE: I cannot take my submission any further.
CHAIRPERSON: Should one not look at the participation of the applicant, the extent, the nature and the extent of his participation, he had driven a vehicle, he had been sitting in a conversation where there was a discussion about this operation, he had hidden underneath a table in possession of a firearm that was handed to him, he then drove in the vehicle, or accompanied these others in this vehicle that transported the victims and then he handed over the firearm that was in his possession, upon the order of the Captain? Isn't that what we must weigh up and wouldn't that, the extent of that participation, would it not be reasonable in the circumstances? Where would he have drawn the line, should he have refused to drive the car, or should he have refused to hand over his firearm?
MR LESELE: Chairperson, we submit with respect that indeed so, that one has to take the role which has been played by the applicant into consideration, however we wish to submit further that the ultimate outcome, it was, he made himself part of the outcome of the mission itself. He was acting in concert with even Papama who he alleges has shot the deceased, he - by submitting himself to the instructions from the beginning, being given a firearm, carrying that firearm, going into the house, hiding underneath the table, and when the gentlemen were caught and abducted and taken to the vehicle, as far as Komga, he was acting in concert with them although according to the evidence which we have, he did not take part in the shooting itself. By being there and doing all the acts which he has admitted that he has committed, he was acting in concert.
ADV SANDI: Yes, but he has not put that in dispute, he didn't say I did not agree with what was being done by my colleagues. I thought he simply set out what his role was?
MR LESELE: That is correct.
ADV SANDI: But did he have a choice, did he have a choice to say "look, I am not going to do that, I am not going to follow any of your orders because I don't agree with this operation", what was his choice as a very junior member of the Transkei Defence Force?
CHAIRPERSON: Or in Mr Wana's house for example, when it became apparent that they were now going to remove the victims from the house, would it be reasonable to expect of him, he tells us he doesn't know the area at all, to then say "look, I am not getting into this car with you, you can go wherever you want to, I am not going to accompany you in the car, I will somehow find my way", is it unreasonable to then get in the car with them and to drive along? Isn't that the relevant sort of factors that we have to look at and consider whether he played a role here?
MR LESELE: Chairperson, it is correct that it would have been unreasonable of him to refuse to go in the vehicle with them or to follow their instructions, however, we submit with respect that at least it would have been expected of him at the time when they realised that the person for whom they were looking is not there, to speak to his superiors, to his bosses perhaps, and persuade them not to harm the innocent gentlemen, especially that they were not the people that they were looking for. It would have been at least expected of him to even if he speaks to them and request them not to proceed with the abduction or the killing of them, but of course he would have no powers to authorise them or to instruct them not to do that. At least as a human being, it would have been expected of him to at least plead with them, with his bosses, we don't have that evidence before us, whether he had requested them not to continue with the abduction or the killing, all we have is that "I have blindly followed the instructions, I knew that I was following the wrong instructions, but I blindly followed them."
CHAIRPERSON: Is there evidence that indicate that he was in fact acting voluntarily in concert with them, to use the term that you have referred to? Is there evidence that justify us that he was a co-perpetrator, in other words he was an active participant, willing and active participant in this, in an illegal initiative, or was he as much a victim of the circumstances as the victims that eventually were killed, where he is left in an unknown area, where everything was fine, until these three people came on the scene and then things really started to get out of control?
MR LESELE: Mr Chairperson, we have evidence here that Mr Lupuwana knew that the instructions that he was following, were wrong. We don't have evidence that he was compelled to follow the instructions, we don't have evidence that he resisted. The only evidence that we have is that "I was told that I must follow these instructions", and we are not told whether he was informed that "if you don't follow the instructions, A, B, C, D will happen", so on those basis, we can assume that he voluntarily after being instructed, followed the instructions.
CHAIRPERSON: Yes, but you see the difficulty that I have, that I am grappling with is does one under those circumstances ask the question what was the specific role of this applicant? Say for example, he was the one that executed the victims, is there a difference between that situation and say somebody was with in the car and did what the applicant did, you know the limited role that he played? Is it significant, does it come into the picture at all, if one looks at his role and one sees that it is a very limited role under these particular circumstances, is it different from the person who actually goes and executes the, on an order goes and executes the victims without asking questions? Wouldn't one expect one the one who does the harsher side of things, to be more critical and say "you know, really, you want me to shoot these people, but who are they, do we know who they are, do we know whether they are part of the enemy?" But if you just stand on the scene, is there that same kind of duty on you? That is the kind of thing that I am grappling with, I am not sure whether it is relevant to this enquiry or not, but I am raising it.
MR LESELE: No, I must say with respect, Chairperson, that it is relevant, the role that he played. I have already submitted to this Honourable Committee that the evidence that we have, leaves us in doubt as to his participation, it leaves us in doubt in the sense that we have a witness here who we cannot rely on, we submit with respect, that there is more to this act than what we have before the Committee. We cannot rely on the evidence that we have before us, because I submit with respect that we have not, he has not fully disclosed the events of that day.
CHAIRPERSON: Yes, I've got that submission. Can I just ask you a final thing and I don't want to interrupt you, you must follow the train of your argument, but perhaps just think about this if you don't want to respond to it now. Does it assist this applicant if the incident objectively speaking, cannot be said to be associated with a political objective, in other words, it is not an action which is justified on some or other political basis, assume that to be the position, assume that it is not politically justified, does it, can that be held against the applicant who is the lowest in the rank in the hierarchy under those circumstances? Is it possible for the applicant to say "well, even if it was not an act which is associated with a political objective, that cannot be held against me. Captain Matyolo was the one who should have considered those factors, the seniors must do that, the Officers must consider that, I am just a footsoldier type of thing"?
MR LESELE: Chairperson, I submit with respect that for his application to be granted, he must meet both requirements, that of a political objective and as well as the one of full disclosure.
CHAIRPERSON: So he's got to ...
MR LESELE: He must satisfy both requirements. That would be our submission.
CHAIRPERSON: Yes, I've got that, thank you.
MR LESELE: I have nothing further.
ADV SANDI: Did not the next stage of the enquiry, if you say the act committed by the group cannot be classified as an act associated with a political objective as defined in the Act, would it not then be the next stage of the enquiry to ask what was going on in the mind of the applicant? What was his perception, is there any evidence here that the applicant perceived the victims, the three victims who were killed, is there any evidence that he perceived them as political enemies of the government of the Transkei at the time?
MR LESELE: We don't have such evidence.
CHAIRPERSON: On this point that my colleague makes, one might have to look at the evidence again, but was the effect of his version not that this was really not justified?
MR LESELE: That was the bottom line of his testimony.
CHAIRPERSON: Yes, this mission ...
MR LESELE: There was no justification.
CHAIRPERSON: No justification, this mission had failed?
MR LESELE: That is correct. I would have nothing further, unless there is further questions which the Committee has for me. As it pleases you, Mr Chairperson.
CHAIRPERSON: Thank you very much, Mr Lesele. Mr Nyoka, have you got any submissions?
MR NYOKA IN ARGUMENT: Yes, just briefly Mr Chairperson.
Mr Chairperson, without dealing with the fulfilment or not of the two essential requirements of the Act, my instructions are to reiterate my client's firm denial of complicity in this incident as alleged by the applicant, firstly. Secondly, he registers his profound displeasure at his name and that of his family being dragged falsely into this matter.
Our client did not bring any application, because he committed no crime in the first place. He respects the TRC process and its nobel objectives. He cannot apply to be excused of a crime which he did not commit. Finally, he was under no legal obligation to testify. We, his legal representatives, exercise his legal right to refute the allegations of the applicant in so far as they were inconsistent, in so far as they related to our client. Maybe Your Worship, also what is surprising in conclusion, that why would an apparent outsider take control of events, the car, the gun and the instructions when officialdom was fully there and why was the original instruction not carried back to the person who mandated them to Mr Holomisa? The obvious conclusion is that a weaker person, a so-called informer was made the scapegoat because of his basic untrustworthiness, again, that we firmly reject, the allegation that he was an informer. He was purely a scapegoat. Finally, the applicant, any charges that may be brought against him, resulted from the allegations made by the applicant, will be vigorously defended in any court of law, thank you.
CHAIRPERSON: Is the effect of the submission, Mr Nyoka, that in so far as the evidence implicates your client, it is untruthful and not a full disclosure?
MR NYOKA: Yes, it is untrue, he was not there, he was only there at Zonwabela's place, he never made any movement beyond that. It is untrue totally in so far as it relates to him, there is no full disclosure in so far as that is concerned. Yes, Mr Chair.
CHAIRPERSON: Yes. Ms Thabethe, have you got any submissions?
MS THABETHE IN ARGUMENT: Thank you Mr Chair, I do.
ADV SANDI: Ms Thabethe, just one thing, back to Mr Nyoka, but you see the difficulty I have now Mr Nyoka, in my mind when I am trying to look at all this, why would the applicant implicate your client, did they ever have a quarrel, did they ever have an argument about anything, why should he simply implicate him in this matter? He said he did not even know him? You don't have to answer that, it is just the problem I have in my mind.
MR NYOKA: I was just going to say, strange things do happen Mr Chairperson, we are in a world not of computers, strange things do happen. He must answer that question, not my client.
ADV SANDI: Thank you.
MS THABETHE: Thank you Mr Chair. I would like to draw the Committee to the papers in front of them. Yes, it is true as my learned colleague has conceived that the applicant is the only person who has testified, but we have papers in front of us. I will start with the issue which I think is material, which is the reason or the motive behind the killing of these three people. What is interesting Members of the Committee, is that out of the Task Team that had gone on this mission, Captain Matyolo in his statement and when I say in his statement, I am referring to his application on page 9 and also his statement on page 144 of the Bundle, more specifically paragraph 13 suggests or states that the reason behind the killing of these three people was because of Papama, that is the fact that Papama had stated that one of these people knew him, and if they were not killed, it could result in his arrest. Captain Matyolo's statement suggests this and also Mr Powa's statement, who also was part of this Task Team, on page 130, paragraph 13, also suggests the same issue that Papama had told them that one of these guys knew them.
CHAIRPERSON: Then Ms Thabethe, just by the way, just by the way, just looking at page 9 of the record, Captain Matyolo seems to suggest that he was not part of this decision to kill the deceased?
MS THABETHE: Captain who? Matyolo?
CHAIRPERSON: Yes, just the very next sentence after the one that you read, he says he was travelling in another car and he was not part of this decision?
MS THABETHE: Yes. He seems to be pointing out at Papama.
CHAIRPERSON: Yes. He seems to be extricating himself completely?
MS THABETHE: Yes, but what I would like the Committee members to take into consideration is the fact that even the applicant, in his first statement on page 81, he seems to suggest as well that Papama was the reason behind the killing of these three people. You can start at paragraph, at a place
"... we turned off the road onto a gravel road, then near a little river, Papama turned right."
It seems to suggest as well, that is the applicant's statement, that Papama was the reason behind the killing. My argument is simply that Captain Matyolo, Sergeant Lupuwana's statement, the first one, and Corporal Powa, all these three statements seem to suggest that the reason behind the killing of these people, was Papama.
ADV SANDI: In other words you have more than one person now implicating Papama?
MS THABETHE: Exactly, including the applicant. And then what is interesting is that when an application is prepared for him by his lawyers, the suggestion that Captain Matyolo gave instructions, cropped up. I would like the Committee to weigh the applicant's evidence today, his application against the statements that I have referred to in my argument. I would argue that this clearly indicates that the reason behind the killing of the three people, was to protect Papama as it was stated earlier on in 1997 by these statements, including the applicant's, however, if the Committee wants to maybe follow the reason advanced by the applicant or the motive behind the killing of these three people, which is ...
CHAIRPERSON: Yes, just before we go there, on this explanation of the reason for the killing, can that be political?
MS THABETHE: Sorry?
CHAIRPERSON: Can that be politically motivated?
MS THABETHE: Not at all.
CHAIRPERSON: On the Papama question?
MS THABETHE: Not at all, not at all.
ADV SANDI: What about proportionality? One considers the possible consequences of Papama being arrested, charged and convicted, if you weigh those, if you consider those consequences and weigh them against the act of killing three people only because they were found at the house of a political enemy of the Transkei, where does that take you?
MS THABETHE: The issue of proportionality does come in, into question here and I was going to address the Committee members on that because my next point was going to be even if the Committee members opt to believe or to take the applicant's view that he was merely following orders, you still have the evidence of Mr Papama who says he was not there, which again throws out the application of the applicant in the sense that then it would mean that he didn't make a full disclosure.
CHAIRPERSON: Perhaps not the evidence, but the suggestion.
MS THABETHE: The allegation, yes.
CHAIRPERSON: The suggestion that was put to the applicant just now, just to come back to my colleague's point of just taking the Papama explanation, Papama reason for the killing, apart from the political question which I raised with you, my colleague raises the question of proportionality. Can it be proportional to under those circumstances, to kill three persons in order to conceal a possible trespassing, because I mean what other offences could there seriously have been involved in Papama entering Wana's house without his permission?
MS THABETHE: On that question, Mr Chairperson, I would agree with you, it is not proportional and when you look at the history of this mission, there were two attempts that were made before this and when they sort of failed, because there was an attempt that was made when they went to this house, to the house of Mr Mgudlwa to try and attack Mr Wana, it failed and they left and then they went back to the Transkei.
CHAIRPERSON: Yes, that is when there was a party or something?
MS THABETHE: Yes, what I am saying is that that mission had failed, they went back, the second mission they could have done the same thing because they came there and they realised that the person whom they were looking for, wasn't there and then they could have left.
CHAIRPERSON: You mean on the first attempt, Wanasi was actually present?
MS THABETHE: Yes.
CHAIRPERSON: But they aborted because the circumstances were not ideal?
MS THABETHE: Yes, exactly. I mean in the second attempt, he was not even there, so I am just advancing my argument that this was really, the killing of these three people was not proportional to the objective they wanted to achieve, which was abducting Wanasi and just to refer the Committee members to the relevant Act, to the relevant section in the Act, it says, subsection (3), 20(3), because I want to argue it in the light of the argument that the applicant acted on orders, which would make him maybe qualify in terms of subsection (2)(f). Section 20(3) reads that
"... whether a particular act, omission or offence contemplated in subsection (2) is an act associated with a political objective, shall be decided with reference to the following criteria."
The criteria number (f) says -
"... the relationship between the act, omission or offence and the political objective pursued and in particular the directness and proximity of the relationship and proportionality of the act, omission or offence to the objective pursued."
My argument is that even if we would argue that he qualifies in terms of Section 20(2) in that he was merely acting on orders, we still need to go further than that, because subsection (3) says we have to take those factors into account.
CHAIRPERSON: Take those factors into account, yes.
MS THABETHE: The factor of proportionality in this case, really is the main issue which would throw out the applicant's application in that it was not proportional to the objective that was sought to be achieved in the first place.
CHAIRPERSON: And on Mr Van Breda's submission that the objective was really to avoid the role of the Head of State of Transkei in this illegal pursuit, to avoid that being made public, in other words to protect the integrity of Transkei, it was necessary to eliminate these potential witnesses against them?
MS THABETHE: I would argue, Mr Chair, that I know my learned colleague has made an inference that these people knew that Captain Matyolo and the applicant came there to look for Mr Wana for whatever reason, but we don't have evidence to the fact that they really knew that.
CHAIRPERSON: Or the identity of anybody else except for Papama?
MS THABETHE: Yes, yes.
CHAIRPERSON: That is the only one that they knew?
MS THABETHE: Yes, and if you read the statement of Mr Wanasi, he seems to suggest, it is on page 85 of the Bundle. It seems to suggest that he knew that the Transkei Defence Force were looking for him.
CHAIRPERSON: Yes, it seems to be common cause, that is why he was hiding.
MS THABETHE: There was nothing to hide, he knew of this factor and he had already suspected from the first attempts to assassinate him or to kill him per se.
CHAIRPERSON: There is little sense in trying to conceal the fact that the Transkei was out to capture Mr Wanasi?
MS THABETHE: Yes, I think he already suspected that.
CHAIRPERSON: Yes.
ADV SANDI: Yes, but is there anything in that statement by Mr Wana that he did tell or he told these three gentlemen that the Transkei Security Forces were looking for him, I have not found anything.
MS THABETHE: Actually, thank you for bringing that up because I had noted it in my argument. Actually Mr Wanasi in his statement, he says he didn't even speak to these three guys, he had spoken to a Sergeant Barns if my memory serves me, yes, he had phoned Sergeant Major Barns who in turn arranged with Nkosinathi who in turn called his friends to go to look after the house of Mr Wana, so there wasn't even a direct communication between Mr Wanasi and the three deceased.
CHAIRPERSON: So he just knew that in principle there were going to be steps taken to safeguard his house?
MS THABETHE: Yes, because he even says because there were lots of housebreaking at that time.
CHAIRPERSON: Yes.
MS THABETHE: Yes, yes.
ADV SANDI: Yes, but just give me your reaction to this, the applicant says - rather his lawyer says they acted on the spur of the moment, they didn't have time to think about proportionality and all that, they were just concerned that someone who was working for the Transkei Military Intelligence had been seen by one of the three deceased, he knew him, so his identity was going to be blown up? What is your reaction to that?
MS THABETHE: My reaction is there were many options that could have been taken in this situation. For one, when they came there, they asked these guys where Mr Wanasi was and these guys told them "look, we are here to safeguard the house", the evidence was clear from the applicant, so the applicants knew that these guys were here to safeguard the house. Fine, maybe it justifies their panic for them to take them along with them, but they could have taken them along with them to Transkei for all I know and you know, present them to the Commander who had initially given them this mission if I may put it so. There were many options that could have been taken.
CHAIRPERSON: In other words to take orders on what to do?
MS THABETHE: On what to do, yes. Since the wrong target had been abducted, and the second option that comes to mind is Mr - okay, from the statements again, we learn that eventually what happened after the mission had failed, Mr Papama Mgudlwa, the wife of his brother and his brother, Papama's brother, they were all taken to Transkei anyway for safekeeping, for lack of a better word. There is something to that effect, so the same thing could have happened. If Papama felt that his life was at stake, he could have gone and gotten protection from the Transkei Force which he had been helping, or which is suggested that he had been assisting. What I am saying is really there were options on how to deal with them, killing them was really not proportional to the objective that they had to achieve, which was of abduction. They could have abducted the wrong target, but not kill. Killing was never part of the mission.
CHAIRPERSON: You mean killing immediately?
MS THABETHE: Yes. If the Committee members could bear with me, just to make sure if I have covered all my points - thank you Chairperson, I think I have covered all my points, unless the Committee members want me to address them on something.
CHAIRPERSON: No, thank you very much Ms Thabethe. Mr Van Breda, any reply?
MR VAN BREDA IN REPLY: Firstly, it is my humble submission it cannot be said that Mr Lupuwana was not a reliable witness. To say that you contradict yourself because in 1997 you made a statement that says Johannesburg or Cape Town, today you say only Cape Town, with all respect, that cannot be regarded as material. It is my humble submission, he is the only one who came to the fore who testified, who was prepared to be tested, whose evidence could be tested.
CHAIRPERSON: It is the only version in front of us?
MR VAN BREDA: He is the only version in front of us, and that should be accepted. Mr Papama, there is nothing from his side, there is no evidence from his side to deny that and the question mark should be put behind that. This Committee has to decide on the evidence before the Committee, which is Mr Lupuwana's evidence. I just want to emphasise that the applicant acted on orders in the spur of the moment, they didn't have cellphones those days in order to phone quickly to find out what are our next orders, the protection that was given to the Mgudlwa's at a later stage, was instructions given by the Head of State which certain arrangements had to be made, so it is not a decision that could have been taken on the spur of the moment. I will ask the Committee to take those aspects as well into account. Lastly, there doesn't exist a thing in the Defence Force where a Sergeant can try and persuade an Officer to change his mind, as to what to do, that does not exist in the Defence Force and I also ask the Committee to see it in that light, thank you very much.
ADV SANDI: I understand that to be a well established culture in all military organisations, yes.
MR VAN BREDA: Yes, and that is the essence of a Military Force, the discipline that exists.
ADV SANDI: May I just ask one thing, the last thing from me now, you are not suggesting in your argument that any - let me put it this way - every act committed by a soldier in the cause of executing his duties, if it is accepted, those acts or that particular act which was committed by that soldier is or was politically motivated, does it then follow that everything he does in the cause of executing a politically motivated duty, is automatically an act associated with a political objective in terms of this legislation?
MR VAN BREDA: I believe that there should be a line drawn ...
ADV SANDI: Sorry, one has to draw a line somewhere, that is what you are trying to say?
MR VAN BREDA: That is correct and I think the line should be drawn before, on the one side what happened before 27 April 1994 and after that. This incident occurred well in those days before the election and therefore it is my submission that it falls within the ambit of this Act.
ADV SANDI: Yes, the Act is very clear on that, it says that one has to take the political context into account, but clearly that is not all about it, not so?
MR VAN BREDA: Yes, no there are a few requirements that should be taken into account.
ADV SANDI: Yes, one of those factors is proportionality of the act in relation to the stated objective?
MR VAN BREDA: That is indeed.
CHAIRPERSON: Yes, that is one of the characteristics of enquiries in terms of this Act, that there is a mixture of subjective and objective tests. The proportionality test that my colleague refers to, because is one of the objective ones.
MR VAN BREDA: Objective test, that is indeed so.
CHAIRPERSON: So if all the other questions are answered, we must still objectively assess the conduct to be satisfied that there is that proportionality and that there is that nexus between what has happened and what they were pursuing to achieve.
MR VAN BREDA: Yes, I think what we should keep in mind there Mr Chairperson is the fact first of all, the offences that were committed, I don't think that should be regarded as the major cause for them to kill the three persons, the offences were indeed trespassing and housebreaking at that stage, but the main objective was we should keep in mind that they failed already twice on an instruction given by Bantu Holomisa, so they couldn't fail in the third place, they should have success and which ended not to be the case. I think the most important aspect is the protection that they had to give to the operations that were taking place at that stage. I honestly believe that that was more important to them, than the offences that were committed up until before the killing or the abduction of the three persons.
CHAIRPERSON: The protection of Papama?
MR VAN BREDA: That is correct because everything could then, if Papama was arrested, then everything will come out and there was no other option and then they would have even more problems that was waiting for them.
ADV SANDI: As I understand you on this, you are saying the bona fides of the act has to be weighed vis-a-vis the objective factors of the case?
MR VAN BREDA: Yes, it is my submission that we should take all the factors into account. When it comes to proportionality, although it is an objective test, we should still view the subjective mind of the persons involved at that moment, when the incident occurred in order to determine what was proportional and what not, and what they wanted to achieve and what they wanted to protect and what they wanted to remain silent about.
ADV SANDI: Thank you.
MR VAN BREDA: Thank you very much.
DR TSOTSI: Can the culpability of the applicant in this matter, be equated with that of for instance Matyolo?
MR VAN BREDA: No, it is my submission that it was stated I think by the Chairperson, that the applicant played a very little role in all the offences that were committed, although he is the only one that decided to apply for amnesty, but the role he played was minor and throughout the whole proceedings, it is clear that he acted on instructions.
DR TSOTSI: Thank you.
CHAIRPERSON: Yes, thank you very much Mr Van Breda.
MR VAN BREDA: Thank you Mr Chairperson.
CHAIRPERSON: Yes, we have come to the end of this particular application. The application raises some questions that we need to consider and in the circumstances, we would take some time to decide the matter and to formulate a decision and we will notify all of the parties, as soon as that decision is available. We will therefore reserve the decision in the matter. It remains for us to thank the legal representatives who have been of great assistance to us in this matter, Mr Van Breda, Mr Lesele, Mr Nyoka and please convey our gratitude to Ms Nketse and Ms Thabethe, we appreciate your assistance in this matter and also to all of the interested parties, for their participation and their presence. We will in due course make our decision known in this matter.
MR LESELE: As it pleases you Mr Chairperson.
CHAIRPERSON: It concludes the proceedings for today, it has run a bit later than usual, but we were forced to do that to accommodate all of the parties involved. People have to travel back over some long distances and it was necessary for us to sit a bit later than usual. We appreciate your cooperation and your patience. We will adjourn the proceedings now and we will reconvene tomorrow morning at half past nine.
COMMITTEE ADJOURNS
