CHAIRPERSON: Which is the next matter?
MS THABETHE: It's the application of E T Dlamini, Mr Chair.
JUDGE MOTATA: In what language is he going to testify, Mr Mbandazayo?
MR MBANDAZAYO: Xhosa, Chairperson.
ECTIM ZIWAWU DLAMINI: (sworn states)
CHAIRPERSON: Thank you. For the sake of the record, the Committee remains the same, the applicant's counsel is the same and the victims are represented by Ms Thabile Thabethe, and she also appears on behalf of the Amnesty Committee.
MS THABETHE: Correct, Mr Chair.
EXAMINATION BY MR MBANDAZAYO: Thank you, Chairperson.
Mr Dlamini, is it correct that you were born on the 20th of September 1960, in Port Elizabeth?
MR DLAMINI: Yes, that is correct.
MR MBANDAZAYO: Is it also correct that you became involved in politics in 1983?
MR DLAMINI: That is correct, Sir.
MR MBANDAZAYO: And you were involved in Azanyo.
MR DLAMINI: That is correct.
MR MBANDAZAYO: Which was the youth wing of the PAC.
MR DLAMINI: That is correct.
MR MBANDAZAYO: Now Mr Dlamini, is it correct that before you were convicted of this offence, it as not your first time to go to prison?
MR DLAMINI: That is correct.
MR MBANDAZAYO: Can you tell the Committee about your other incidents.
MR DLAMINI: During the 1986 violence we were arrested because we were fund raising to send the youth to the exile. I got arrested in 1986. I was arrested for armed robbery because we were fund raising to send the youth to the exile.
MR MBANDAZAYO: Yes, what was the other incident?
MR DLAMINI: The one that you are talking about now?
MR MBANDAZAYO: Was the only incident in which you were convicted of before this one?
MR DLAMINI: Yes, that is the only incident that I was involved in.
MR MBANDAZAYO: Now Mr Dlamini ...(intervention)
CHAIRPERSON: Sorry, was that a political incident? You said you were raising money to send youth to exile.
MR DLAMINI: Yes, it was politically motivated, Sir.
CHAIRPERSON: On behalf of who? What political party?
MR DLAMINI: We were students and it was during the times of violence and we wanted to send the students to the exile.
CHAIRPERSON: Carry on.
MR MBANDAZAYO: Now can you then tell the Committee, how long did you stay in prison?
MR DLAMINI: About three years and eight months, or ten months.
MR MBANDAZAYO: Now when did you join APLA?
MR DLAMINI: I joined APLA in 1991.
MR MBANDAZAYO: Under whom did you join APLA?
MR DLAMINI: Under Bonekele Filita.
MR MBANDAZAYO: Did you undergo any military training?
MR DLAMINI: Yes.
MR MBANDAZAYO: Where?
MR DLAMINI: In the Transkei. The name of the place was eTafalofefe.
MR MBANDAZAYO: From when until when?
MR DLAMINI: It was about two months. It was called a crash course.
MR MBANDAZAYO: Now which year was that?
MR DLAMINI: In 1991.
MR MBANDAZAYO: Am I correct to say that it was the same year in which you were released from prison?
MR DLAMINI: That is correct, Sir, that is true.
MR MBANDAZAYO: And you were released, if I'm correct, on the 4th of July 1991.
MR DLAMINI: That is correct.
MR MBANDAZAYO: How long after you release did you meet Mr Filita?
MR DLAMINI: I met Mr Filita a day after my release.
MR MBANDAZAYO: And according to you, you immediately went to Transkei.
MR DLAMINI: Yes.
MR MBANDAZAYO: And after how long did you come back?
MR DLAMINI: After two months.
MR MBANDAZAYO: Now can you come now to this incident.
MR DLAMINI
"On the 23rd of September 1991, I was visited by the Regional Commander called Mandla, at my home. We had a chat or a discussion about some financial difficulties that we were experiencing. He told about the target that he had identified, it's some engineering company. After that he told me as to how do they transport their money and he also commanded me to go and inspect the place, or the process.
On a Monday, the 24th, I went to the Exmico, the company that is, to inspect the processes in this company. I went there again the following day for reconnaissance, up until the 28th of the same month. Mandla came to my place. This reconnaissance would take place in the mornings. Mandla came to hear from me if I had done the reconnaissance and I told him that yes, I did that. He was satisfied and then he asked me about the whereabouts of the other unit combatants and I told him, and then we made another appointment to meet on a Sunday. He was going to give me the firearms.
He came indeed on a Sunday to give me the firearms. After parting on that particular Sunday, I contacted the deceased, Siphiwe, I told him that I received an order from the Regional Commander by the name of Mandla, to execute a target, that is Exmico Engineering Company.
I explained to Siphiwe that I received the order from the Regional Commander to execute this target, that was Exmico Engineering Company, and I also asked him - I told Siphiwe about the visit from the Regional Commander, who gave me a specific order to execute the target, Exmico Engineering Company. I told Siphiwe that this execution is supposed to take place on the 4th of October and Siphiwe is - I ordered him to arrange transport and I told him that he was going to be the second-in-command during this operation.
I told him to arrange for transport. He did so. I told him that we should meet as a unit on the Thursday, in order to discuss the plan as to how to attack the target. They came on a Thursday and I told them what to do, how to position ourselves and the role.
I told them that as the Commander I was going to use the firearm, .38 revolver, and Siphiwe was going to use the same firearm, .38 revolver, his own, and the driver was going to use the same type of firearm. And then Vuyani was going to use the 9mm pistol. Xholani was going to use the same type of firearm.
We parted on that day. On the 4th of October 1991 we waited in the house for transport. Within a few minutes the transport came. We boarded the car, we left for Exmico Engineering Company and we waited there, waiting for this bakkie. As we were still waiting there I saw this bakkie that was driving amongst the other cars and it came closer to the gate and the security guard opened for the car that got in and proceeded towards the parking area.
When the guard was about to close the gate, a white Isuzu bakkie came and stopped there, but when the security guards tried to close the gate I withdrew a firearm and I pointed it at the security guard and instructed him to open the gate, and the security guard got a fright and he ran towards the building. I got inside with Siphiwe following me. We went next to the guy who was alighting from this white car and I pointed a firearm at him and I told the guy that that was an armed robbery.
I told him to put the suitcase down, but instead he hit me with the suitcase and I ducked and I went straight to him and then I saw the guy reaching for his waist, trying to get his firearm, that's when I shot him on the arm and on the stomach and then he fell down.
After that I turned, Siphiwe took the suitcase and then we went back to our car. The car was facing a direction of the township. We boarded the car and the others followed. We went to New Brighton, where we left this car at Faku Street. We decided to wipe off the fingerprints because we didn't want to give the police a clue.
We changed our direction, we boarded a taxi home. When we got to the house I opened the suitcase. I counted the money, it was about R10 992. I collected the firearms because I had another arrangement to meet with the Regional Commander on that same day. I went to see him later that day and I gave him the money and the firearms and I told him about the operation and that one person died. That was the end of the story."
MR MBANDAZAYO: Now were these people you were involved with, members of your unit?
MR DLAMINI: Yes, that is correct.
MR MBANDAZAYO: Who was the Commander of this unit of yours?
MR DLAMINI: It was myself.
MR MBANDAZAYO: How long have you been a unit? How long had you been together as a unit before you executed this mission?
MR DLAMINI: After coming back from Transkei, I became the member of that Unit, Repossession Unit.
MR MBANDAZAYO: Was the unit already existing?
MR DLAMINI: Yes, Sir.
MR MBANDAZAYO: Did they themselves, the other members of the unit, had they been involved in any other operation except this one?
MR DLAMINI: I am not aware of the other operations that they were previously involved in, but this was the operation that I was with them.
MR MBANDAZAYO: What happened to them after the incident? I understand you were eventually arrested, what happened to the other members of the unit?
MR DLAMINI: When I as in prison in 1992, I heard that Mzimeni Pale and Tando Kondlo, Mbvuyise Mpande were shot at in Rocklands on the 11th of February. There was a shooting between them and the police. Mzingati Pagela was shot on the 9th of June 1995, then he died in Victoria Hospital in Alice. And with Mandla, I heard that he passed away during a shooting between himself and the police.
MR MBANDAZAYO: So all you are telling the Committee is that all the members of your unit, including the Regional Commander, passed away.
MR DLAMINI: Yes, Sir, that is correct.
MR MBANDAZAYO: You are the only one who is still alive.
MR DLAMINI: Yes.
JUDGE MILLER: Sorry, Mr Mbandazayo, if I could just ask one question at this stage, before you move on.
You said that this unit was in existence before you joined it, you've also told us that when you came out of prison you were almost immediately sent to Transkei for a crash course, which lasted two months and then you came back. Why were you appointed the Commander of the unit, when you had no operational experience as such, when the other people were already members of it? How did it come about that you were the Commander and not one of the other members?
MR DLAMINI: It is because of the skills that were identified from me during the training.
JUDGE MILLER: Yes, Mr Mbandazayo?
MR MBANDAZAYO: Thank you, Chair.
Now after the operation itself, what did you do with the money and the weapons?
MR DLAMINI: I gave the money to the Regional Commander, Mandla, and the firearms. If you are a combatant, after being given some - after taking something from the enemy, you have to take it straight to your officer.
MR MBANDAZAYO: Now how long after the incident were you arrested?
MR DLAMINI: I was arrested on the 13th of December 1991.
MR MBANDAZAYO: And the other members were never arrested.
MR DLAMINI: Yes, that is correct.
MR MBANDAZAYO: Now I understand you went to court and you were charged and convicted of this offence.
MR DLAMINI: Yes, that is correct.
MR MBANDAZAYO: Did you mention in court that you were a member of APLA?
MR DLAMINI: No, that was never mentioned.
MR MBANDAZAYO: And that you were doing it for the benefit of your organisation?
MR DLAMINI: I never mentioned that too.
MR MBANDAZAYO: Why didn't you mention it?
MR DLAMINI: Solely because we didn't have any respect for that government, the old government, because it was a government of boers and we did not recognise that government because we regarded them as illegitimate.
MR MBANDAZAYO: Before I make a follow-up to that answer, let me ask you this question, do you know who was heading the Repossession Unit within APLA?
MR DLAMINI: It was Tabelo Patrick Maseko. His combat name was Njebe.
MR MBANDAZAYO: Now did you know him personally?
MR DLAMINI: I once saw him.
MR MBANDAZAYO: Now you know him that he was also arrested, eventually arrested.
MR DLAMINI: Yes, I met him in prison.
MR MBANDAZAYO: Now the reason why I'm asking that question is because when - during that same period when he was arrested, he immediately told the police that he's a member of APLA and all what he was doing he was doing it on behalf of APLA. Of the PAC. And it was almost the same period in which you were also arrested.
MR DLAMINI: Please repeat your question, Sir.
MR MBANDAZAYO: The reason why I'm asking you the question, why didn't you mention that you were a member of APLA and you were doing it on behalf of PAC, it's because Tapelo Maseko, as you correctly put him, was the head of the Repossession Unit and he was arrested around the same period and immediately when he was arrested he told the police and the Court that he's a member of APLA and all what he was doing he was doing it on behalf of APLA and for the benefit of the PAC. Now my question is, why was it difficult for yourself to tell the police and the Court that look, what I was doing, I did not do it for personal gain, I was doing it on behalf of my organisation? So that should be taken into account.
MR DLAMINI: It is because we were not told to give information to the enemy, therefore I was following that rule, that I was not allowed to give anything, even if it's information to the enemy.
MR MBANDAZAYO: Now you heard in court that somebody died as a result of your action, am I correct? You mention it, Mr Nicol(?).
MR DLAMINI: Yes, that is correct.
MR MBANDAZAYO: Now what do you say now to the victims about the incident, that they lost somebody who was a breadwinner within the family because of your actions?
MR DLAMINI: I sympathise with the family, but I was just following the orders.
MR MBANDAZAYO: Now just before I finish, in your application form you mention a name of the person who gave you an order as Zakes Mbambatha and now you are telling the Commission about Mandla.
MR DLAMINI: The name that was familiar to me was Mandla, the pseudo name. I didn't know his real name and I was not allowed to ask the person's name as a soldier, because there were so many problems, people would be turned into askaris. I knew him with his pseudo name that was Mandla.
JUDGE MILLER: Sorry, are you saying Mr Dlamini, that Zakes Mbambatha are the same person?
MR DLAMINI: The only name that I knew was Mandla.
JUDGE MILLER: Yes, but when you filled in this form, did you know that Mandla was Zakes Mbambatha?
MR DLAMINI: I am saying I cannot dispute that his real name was Zakes Mbambatha. I didn't ask his name. The only thing that I knew was his pseudo name.
JUDGE MILLER: But this is your form, this is your application form which you signed and you say that you got the order from Zakes Mbambatha.
MR DLAMINI: Yes, this is one person.
CHAIRPERSON: Who is he?
MR DLAMINI: Zakes Mbambatha.
JUDGE MILLER: So how did you put Zakes Mbambatha when filling in this form, if you didn't know that Mandla was Zakes Mbambatha at that time? When did you learn for the first time that Mandla is in fact Zakes Mbambatha?
MR DLAMINI: I learnt that after some time, after this - after I had mentioned this name here.
JUDGE MILLER: I can't understand how you can put a name in your application form when you don't know who the person is. You're saying when you filled in your application form in December 1996, you didn't know who Zakes Mbambatha was?
MR DLAMINI: The only name that I knew was Mandla.
JUDGE MILLER: Perhaps if Mr Mbandazayo could try to clear this up, because I'm confused. He says on the one hand, that the only name he knows was Mandla, but yet here he says his real name is Zakes Mbambatha.
MR MBANDAZAYO: Through you, Chairperson, that's what I was trying to solicit, as to what actually is Zakes Mbambatha.
JUDGE MILLER: Yes, I think if you can carry on, just find out.
MR MBANDAZAYO: Because he mentioned Mandla now, what I was asking, but in his application form he also mentioned the name of Zakes Mbambatha, who also is not his real name. If I read it correctly.
JUDGE MILLER: Perhaps if you could just clear up this confusion between Mandla and Zakes.
MR DLAMINI: Those were the names that were used, referring to him.
CHAIRPERSON: Who used these names? Who used the names Zakes Mbambatha?
MR DLAMINI: The soldiers.
CHAIRPERSON: Who were they talking about?
MR DLAMINI: They were talking about Mandla.
CHAIRPERSON: So you now say that other people talking about the person you knew as Mandla, called him Zakes Mbambatha.
MR DLAMINI: Yes, Sir, that is correct.
JUDGE MILLER: Mr Mbandazayo.
MR MBANDAZAYO: Thank you, Chairperson, that's all I have for now. Thank you.
JUDGE MOTATA: Before you step off, Mr Mbandazayo, I think in the further particulars somewhere - I'm trying to find it, I read he's applying for car theft. When he was requested for further particulars, or am I making a mistake? I'm trying to find it, but I cannot at the moment.
MR MBANDAZAYO: Well Chairperson, I've read the further particulars, but I was guided by the application form. In the application form there's nothing which - it refers to an armed robbery only.
MS THABETHE: Page 12 of the bundle.
MR DLAMINI: If I'm not mistaken, correspondence that I received before, I was asked to specify about the incident that I was applying for and I explained that and I told them that it was car theft, murder and robbery. Because even when I was sentenced, I was sentenced for three offences.
JUDGE MILLER: Page 12, Mr Mbandazayo, paragraph 1, the second paragraph 1. There are two paragraphs marked one, this is the second one.
MR MBANDAZAYO: Thank you, Chair.
So the car theft you are referring to here is the car which was used in the -when you committed the robbery?
MR DLAMINI: Yes.
JUDGE MILLER: So who stole that car, Mr Dlamini?
MR DLAMINI: I am the person who issued the order to Mzimeni to arrange for the car.
JUDGE MILLER: Sorry, I just want his name, if you can repeat his name please. You told us that you issued an instruction for him to arrange transport, now who was this person who stole it, what was his name? Just mention it again.
MR DLAMINI: Mzimeni Pale.
MR MBANDAZAYO: Chairperson, at page 9 ...
JUDGE MILLER: Yes, I've got it.
CHAIRPERSON: Also on page 6 in his original application he says he is asking for amnesty on a charge of theft. "Armed robbery, murder and theft". And he explains at the other page, page 12 is it, that the theft that he means is car theft.
JUDGE MILLER: And you weren't present when the car was stolen, or were you?
MR DLAMINI: I was not present.
CHAIRPERSON: Didn't you steal it?
JUDGE MILLER: No, he said Pale did, Mzimeni Pale.
CHAIRPERSON: Page 12, is that your reply to questions? Is that your reply on page 12?
MR DLAMINI: Yes, Sir.
CHAIRPERSON: 'Cause question 2
"With regard to theft, what did you steal and why? Give full details."
and your answer is:
"Regarding your second question, I stole a car, a 1.3 Ford Escort and I used it as a getaway car from the robbery scene. I left this car at Faku Street in New Brighton."
MR DLAMINI: As a person who had issued the order to Mzimeni to steal the car, I had taken the sole responsibility because I was the Commander of the unit. That is why I am taking full responsibility for stealing the car.
CHAIRPERSON: Right.
MR MBANDAZAYO: Now finally, Mr Dlamini, the second offence you are talking about, that is this one you have been convicted of, there's also the first one. Why didn't you apply for amnesty for the first one? The one you committed in - you were released in 1991, July.
MR DLAMINI: Please repeat the question.
MR MBANDAZAYO: Why didn't you apply for amnesty in that offence for which you were released in 1991?
MR DLAMINI: It is because I have already served the sentence and I decided that it was not necessary for me to ask for amnesty.
MR MBANDAZAYO: But is it your evidence that both instances were politically motivated?
MR DLAMINI: Yes, that is correct.
MR MBANDAZAYO: Is it also your evidence that the offence for which you are applying for amnesty you did not personally gain anything, you handed everything to your Commander, Mandla?
MR DLAMINI: Yes, that is correct, Sir.
MR MBANDAZAYO: Is there any other thing you would like to add to your evidence, which you think that you have left out?
MR DLAMINI: No, there's nothing else, Sir.
MR MBANDAZAYO: That's the evidence of the applicant, Chairperson. Thank you.
NO FURTHER QUESTIONS BY MR MBANDAZAYO
MS THABETHE: Mr Chair, may I please ask for a very short adjournment?
CHAIRPERSON: Very well. We'll take a very short adjournment.
COMMITTEE ADJOURNS
ON RESUMPTION
ECTIM ZIWAWU DLAMINI: (s.u.o.)
CROSS-EXAMINATION BY MS THABETHE: Thank you, Mr Chair, I'm indebted to you.
Mr Dlamini, can you tell us what instructions were given to you? What were the exact instructions given to you with regard to this robbery?
MR DLAMINI: I was told to go there and repossess money. I was told to go and repossess.
MS THABETHE: And of course you say you did a reconnaissance, what did you observe during this reconnaissance?
MR DLAMINI: I saw how they transported their money from the bank and all the process of the company as a whole.
CHAIRPERSON: How often did they transport money from the bank?
MR DLAMINI: I went there on a Friday, the 28th, so I don't know about other days. I just went there on Friday and I also observed what was happening in that area as a whole.
MS THABETHE: Maybe I misunderstood you, Mr Dlamini, didn't you say earlier on that you did the reconnaissance for a month?
JUDGE MILLER: I don't think he said a month, but he said he went back - I was under the impression Mr Dlamini, that you didn't only go there once, when you were giving your evidence earlier.
MR DLAMINI: I said that I made a reconnaissance from the 24th. I went there to observe the process of that company and the whole building as a whole, and then the following day I went there again to reconnoitre that whole area, and then again on a Friday I observed Mr van Niekerk, when he was coming with the money from the bank.
JUDGE MILLER: Yes, because my note is: "On the 24th of September I went to the company to inspect the processes. Went again the next day and did so until the 28th of September."
That is what my note is.
CHAIRPERSON: Mine is the same.
JUDGE MILLER: So my impression was that you went there from the 24th every day until the 28th.
MS THABETHE: Then let me rephrase the question. Would I be correct if I say you did the reconnaissance then for five days?
MR DLAMINI: I reconnoitred the place for that whole week. I've also mentioned that in my statement, that I've reconnoitred that place for the whole week.
JUDGE MILLER: Well what Judge Wilson was asking you then was, how many times did you see money being transported during your reconnaissance?
MR DLAMINI: I saw that on Friday, on the 28th.
JUDGE MILLER: Sorry, just before you proceed, just for my own benefit, Mr Dlamini. What sort of premises were these? Was it a house or was it a factory? Was it in the industrial area or was it out in the countryside, what is the situation? Because I don't know it at all.
MR DLAMINI: This company, it is a company that is in Korsten, amongst other factories, so it's within the industrial area of Korsten.
CHAIRPERSON: Also to help on this, would they be the sort of company that would employ labourers, who would be paid on a weekly basis?
MR DLAMINI: That is so, according to my reconnaissance.
MS THABETHE: And you say on this Friday you saw Mr van Niekerk coming back from the bank.
MR DLAMINI: That is correct.
MS THABETHE: And then when you went back now to execute the mission, how did you intend getting the money from Exmico or from the messenger, the person who had gone to the bank?
MR DLAMINI: I was going to point a firearm at this person and then tell this person to give me the money.
MS THABETHE: And is it correct that that's what you did?
MR DLAMINI: Yes, that is so.
MS THABETHE: You pointed the firearm at him, you asked him to give you the money, correct?
MR DLAMINI: I pointed him with the firearm, I told him to put the suitcase down, to lift up - to put his hands at the back of his head and then he didn't obey my order, and then I observed that he was going to his waist, trying to draw a firearm, that is when I shot at him two times.
MS THABETHE: Now I'm a bit confused here, you point him with a firearm, you tell him it's an armed robbery and according to my instructions and also your evidence, he throws the suitcase at you, correct?
MR DLAMINI: That is correct.
CHAIRPERSON: Didn't you say "he tried to hit me with the suitcase"?
MS THABETHE: Well Mr Chair, my instructions are ...(intervention)
MR DLAMINI: He hit me with the suitcase and he was reluctant to my orders, he didn't obey my orders. I ducked the suitcase with ...(intervention)
MS THABETHE: Well my instructions are that he didn't hit you with the suitcase, he was acting - just hang on until I finish.
JUDGE MILLER: Just repeat your question.
MS THABETHE: Yes. My instructions are that he didn't hit you with the suitcase, he was responding to your order that he must give you the suitcase full of money.
MR DLAMINI: As the person who was there, he hit me with the suitcase, because he didn't want to obey the orders that I was giving him. He was reluctant to obey the orders. As a person who was there, who was present at the scene and I was the one involved in the operation.
JUDGE MILLER: You talk about a suitcase, how big was it, could you just give an indication with your hands?
MR DLAMINI: ...(no English interpretation)
JUDGE MILLER: So it's more of a briefcase?
MR DLAMINI: ...(no English interpretation)
JUDGE MILLER: Ja, but it's not a big suitcase that you go on a journey with, it's a ...
MR DLAMINI: No, it was a small suitcase to put a lunch box in, it's like a lunch box suitcase. There are different suitcases. It is the one that looks like a lunch box suitcase.
JUDGE MILLER: I think what the applicant is describing is the type of suitcase a child at primary school will have, the one that you have to put on its bottom and then you open it upwards, lift the lid upward. A small briefcase size case.
MS THABETHE: Isn't it correct, Mr Dlamini, that this suitcase is the suitcase that was full of money that you were demanding, or that you were robbing from him?
MR DLAMINI: Can you please repeat your question.
MS THABETHE: Isn't it correct that the suitcase we are talking about was full of the money that you were demanding, or that you were robbing from him, from Mr van Niekerk?
MR DLAMINI: ...(no English interpretation)
MS THABETHE: Isn't is correct?
MR DLAMINI: Yes, it was full of money, the suitcase that he was hitting me with, that Mzimeni took. It had money.
MS THABETHE: I want to put it to you, Mr Dlamini, that the probabilities are that he wasn't hitting you with the suitcase, but he was giving you the suitcase full of money because you had announced that you were conducting a robbery, so he was responding to your orders to give you the money. What is your response to that?
MR DLAMINI: What I'm saying is he was not giving me the suitcase, he was hitting me with the suitcase, trying to disturb my attention. To show that he was not giving me the suitcase he was reaching for his firearm, that is when I shot at him. That's why I'm saying that he was not obeying my orders.
MS THABETHE: Now one of these acts of throwing the suitcase or pulling the gun, one of them happened first, what occurred first? Did he throw the suitcase first, then pull out his gun, or what happened exactly?
MR DLAMINI: What he did first, he hit me with the suitcase, that's what he did first, and then he was reaching for his firearm in his waist. That is when I shot at him, when he was trying to take out his firearm.
MR DLAMINI: Sorry. Mr Dlamini, when you say he hit you with the suitcase, whereabout did he hit you? Which part of the body?
MR DLAMINI: He was trying to hit me on the face, but I ducked.
JUDGE MILLER: And it's not a question of that he threw the case at you, did he keep possession of the case? Did he hold it while he tried to hit you, or did he throw it?
MR DLAMINI: He was throwing it, trying to hit me on the fact as I was facing him.
JUDGE MILLER: And did you see a firearm at all in his possession?
MR DLAMINI: He had a firearm on his waist, as a person who was responsible for the money.
JUDGE MILLER: Yes, Ms Thabethe.
CHAIRPERSON: When he threw the suitcase at you and you ducked, did it go over your back and land somewhere behind you?
MR DLAMINI: Yes, it went behind me and then I was facing him and I was watching his action.
MS THABETHE: I just want to find out from you, Mr Dlamini, if you conduct a robbery of a person who is carrying a suitcase full of money and you say to that person "This is an armed robbery", right, and the person throws the suitcase at you - because on page 2 of your application you actually said
"I shot the person who was carrying the money after he had thrown a case which contained money and trying to draw his firearm."
my question is, when you are conducting a robbery and you are robbing a person of his money and he throws that briefcase full of money to you, why didn't you take that briefcase and go, because that's what your intention was? Why did you shoot him?
MR DLAMINI: As a soldier a person can try to disturb you in what you are doing, so that when you turn away that person can take a firearm and shoot at you, so I was facing him and I was watching his action. I was watching what he would do after he threw that suitcase.
MS THABETHE: My instructions, Mr Dlamini, are that the deceased did not have a firearm that day, that his firearm was kept at home, at his home on that day. What is your response to that?
MR DLAMINI: What I'm saying is that according to the reconnaissance that I made he had a firearm and even the day that I shot him he had a firearm with him.
JUDGE MILLER: Sorry. Mr Dlamini, did you - just to get back to my previous question, did you actually see the firearm, or did you believe he had a firearm because of his movements? There's a difference.
MR DLAMINI: If I still remember well, Mr van Niekerk was wearing a white shirt, if I still remember well, the firearm was in his waist, so I could see the firearm because he was not wearing a jacket or a jersey on top of his shirt.
MS THABETHE: My instructions - unfortunately we couldn't get the whole court record, but my instructions are that in court evidence was led to the effect that Mr van Niekerk did not carry a firearm. What is your response to that?
MR DLAMINI: What I'm saying, according to my reconnaissance and according to what I saw that day, he had a firearm with him.
MS THABETHE: Do you remember in court where evidence was led that he did not have a firearm? Do you remember that or don't you?
MR DLAMINI: In court that evidence was not led that he had a firearm or not. I was there in court, that evidence was not presented in court. I can still remember most of the things that were argued there.
MS THABETHE: Well I will call a witness who is going to testify that in court this was said.
CHAIRPERSON: Look at page 23 - sorry, no, no.
JUDGE MILLER: Mr Dlamini, when this incident occurred, when you took the money, were there other people around besides members of your unit? Were there other people in the premises of Exmico Engineering, or was Mr van Niekerk alone there at the time? When I say were other people present, could you see any other people there?
MR DLAMINI: I saw the security guard and a coloured person who came to Mr van Niekerk, and others that were in front of the gate.
MS THABETHE: Mr Dlamini, further, I'm going to call a witness who is going to testify that Mr van Niekerk did not carry a firearm every day, he would carry a firearm if he had to go and fetch money from the bank, but on that day it was not his turn to go and fetch money from the bank, so he did not have his firearm with him, but he had left it at home. Would you like to comment on that?
JUDGE MILLER: Sorry, before Mr Dlamini comments on that. Are you saying that Mr van Niekerk didn't go to the bank on that day?
MS THABETHE: No, I'm saying they took turns.
JUDGE MILLER: Yes. And he didn't go that day?
MS THABETHE: He did go that day, but it wasn't his turn to go, he was just sort of high-jacked to go.
JUDGE MILLER: He was asked at the last minute to go.
MS THABETHE: At the last minute, yes.
JUDGE MILLER: But it would seem from what you've put, that the practice was, whoever went to fetch the money had a gun.
MS THABETHE: Yes.
JUDGE MILLER: So now it's not my turn to go today, but X's turn and he comes to me and says "Look, I can't go, will you go?" And I say "Yes, but give me your gun." Wouldn't that be the normal thing to do?
MS THABETHE: Those are not my instructions, Mr Chair.
JUDGE MILLER: Okay, so they say he went without a gun.
MS THABETHE: Yes, Mr Chair.
JUDGE MILLER: Just put it again to Mr Dlamini.
MS THABETHE: Do you want to comment Mr Dlamini?
MR DLAMINI: What I'm saying is, he had a firearm. It is very difficult for a person to go and fetch money and not have a firearm with him. A person who is used to doing that job. Because during my reconnaissance I saw on the 28th that he had a firearm with him and then again I saw him on the day of the incident, that he had a firearm.
MS THABETHE: On page 11 of your application, number 6, on
"Who else in the PAC leadership bears knowledge of your activities?"
you mention Mike Xlashimba Vuyimiza and Lesley Vuka Pikoli. How do they know of your activities?
MR DLAMINI: They know as the leadership. As I was asked whether they know, so my reply is that they are aware of each and everything that was happening.
MS THABETHE: I have a statement, Mr Chair, which I would like to hand in as Exhibit A, from Lesley Vuka Pikoli. I've given copies to my learned colleague, and I would like to refer to that statement, Mr Chair.
Mr Dlamini, in Mr Pikoli's statement he bears no knowledge of the operation in which his name is mentioned, and he says he doesn't even know who you are. What is your comment to that?
MR DLAMINI: He knows me.
MS THABETHE: Do you know why when he's in the leadership, he would say he doesn't know you whereas he actually knows you?
MR DLAMINI: Because there's these differences in the PAC now, maybe he is on Makwetu's side, so if I mention his name, maybe he's trying to deny. There are two sides amongst the PAC. As we all know, there are those that follow Makwetu and there are those that follow Magoba, so maybe he is on Makwetu's side, so that is why maybe he's denying this.
MS THABETHE: But weren't you acting on behalf of the organisation? Wouldn't he know that?
MR DLAMINI: Yes, I was acting on behalf of the organisation. He is not the only person that I mentioned and he is not the only person that knows about this. There are three of them, they know about this incident.
JUDGE MILLER: Sorry, Mr Dlamini, how do you know that Mr Pikoli knows of this incident? Did you speak to him personally, or do you just assume that he knew of it?
MR DLAMINI: When such an incident happened, a report would be given to the organisation.
JUDGE MILLER: So would you have reported to Mandla?
MR DLAMINI: Yes, I reported to Mandla.
JUDGE MILLER: He was the only person you reported to about this robbery?
MR DLAMINI: Yes, as he was the person who gave me the order.
JUDGE MILLER: And then he should have reported up the line, but you don't know personally who he reported to?
MR DLAMINI: I reported to the person who gave me the command, so he would report to those who was higher in position.
JUDGE MILLER: So you can't say yourself personally, that Mr Pikoli was ever informed of this operation? He should have been informed, but he might not have been.
MR DLAMINI: Yes, that is correct.
CHAIRPERSON: When were you arrested?
MR DLAMINI: 13 December 1991.
CHAIRPERSON: And this happened on the 24th ...
MR DLAMINI: 24th October.
CHAIRPERSON: Well did anybody higher up in the organisation congratulate you or thank you during the month of November and the beginning of December, for having obtained this large sum of money for the PAC?
MR DLAMINI: It was my Commander, the one that I reported to, he's the one who congratulated me.
CHAIRPERSON: Yes, but you're now assuming that he reported back and that it goes up the tree and they all get told, but you didn't get any reaction from anyone.
MR DLAMINI: It was only my Commander who congratulated me.
MS THABETHE: Can I proceed, Mr Chair? Thank you.
On page 15 of the bundle there are previous convictions in 1987, and you've indicated that these were political. On behalf of which organisation were you acting then?
MR DLAMINI: In 1987 I was already arrested, I was arrested on the 12th in 1986. So I was already sentenced in 1987.
MS THABETHE: Okay. It's written here that you were actually sentenced on the 5th of November 1987, so what I'm asking you is that - you have indicated earlier on that you were acting on political objectives, what I want to find out is, on behalf of which organisation were you acting then.
MR DLAMINI: I was a member of Azanyo, under the PAC. Azanyo was a student organisation. Because the situation was violent at the time, so we were fund raising in order to send people outside, because we didn't have money.
MS THABETHE: Didn't you say earlier on you joined the PAC in 1991?
JUDGE MILLER: Yes, he said that he was a member of Azanyo from 1983, I think it was, and then when he came out of prison he joined PAC ...(intervention)
MR DLAMINI: APLA.
JUDGE MILLER: ... APLA, at least, in August 1991, or whatever it was.
MS THABETHE: I'm indebted to you, Mr Chair, thank you. Mr Chair, if you would bear with me, I just want to make sure that I've covered all the ground.
Mr Dlamini, one more question. Do you know a person by the name of Mava?
MR DLAMINI: Sorry?
MS THABETHE: Do you know a person by the name of Mava?
JUDGE MILLER: Is that M-a-v-a?
MS THABETHE: Yes, M-a-v-a.
MR DLAMINI: Yes.
MS THABETHE: Who was he? Was he involved in your operation?
MR DLAMINI: Mava was not involved, I mentioned him because of the pressure from the police. I didn't want to reveal that this operation was an APLA operation, so I mentioned his name because the police were torturing me. They were pressuring me at the time, so I just mentioned his name. I know him, he stays in my neighbourhood.
MS THABETHE: So what did you - did you say he committed the offence, is that it?
MR DLAMINI: I said that he was one of the people that were with me during this incident, because I was tortured by the police. I didn't want to reveal the truth that the operation was politically motivated, so I just mentioned a person who was not aware of the operation.
MS THABETHE: Out of all the people in your unit and out of all the people you knew in the APLA, why did you choose him specifically?
MR DLAMINI: I couldn't mention the operations that were done by the organisation, because I was told that the soldier is not supposed to give out any information to the enemy, so I mentioned a person who was not even involved in APLA, who was not aware of this incident. I didn't want to mention a person who knew about this because I didn't want the police to know that it was politically motivated.
MS THABETHE: And of course, Mr Dlamini, we are talking here of 1993, that you did not feel free to talk about your organisation, is that correct?
MR DLAMINI: Sorry?
MS THABETHE: This was in 1993, when your organisation was actually unbanned. When you were not free to talk about it.
MR DLAMINI: Let me correct you. Even your bundle or the statements there tell you when I was arrested, so I don't understand now which 1993 are you referring to.
JUDGE MILLER: The arrest was in 1991, December and on page 23 the date of sentence was on November 1992.
MS THABETHE: Sorry, Mr Chair, I mixed up cases, I'm sorry. I'm indebted to you, thank you.
JUDGE MILLER: Sorry, the date of the arrest is 13 December 1991. That's page 17. Date of sentence 19th November 1992.
MS THABETHE: Thank you, Mr Chair, I have no further questions.
Sorry, Mr Chair, can I follow it up please?
You were arrested in 1991, and the organisations were banned in 1990, still at that time ...(intervention)
JUDGE MOTATA: Unbanned.
MS THABETHE: Unbanned, sorry yes.
JUDGE MILLER: But Ms Thabethe, we know that, we know for a fact when they were unbanned, but we also know that the conflict was waged, there was still violence, political violence until a much later date, particularly by the APLA and PAC, which came to end - I'm sure Mr Mbandazayo will correct me, but it was during January 1994.
MR MBANDAZAYO: 1994.
MS THABETHE: Thank you, Mr Chair. Even though I wanted to put it to ...(intervention)
JUDGE MILLER: Yes, no you can put it, but I'm just saying we know - we don't have to get the evidence from this witness as to when organisations were unbanned etcetera, it's a question of record.
MS THABETHE: Even though I want to put it to you, Mr Dlamini, that on the question that was led earlier on about APLA activists who were arrested almost at the same time as you, they came forward and they did mention the fact that they were acting on behalf of APLA, you did not feel free to say the same. Is that correct?
CHAIRPERSON: Is it fair to say that? Some APLA activists may have, but from our experience here, and I'm sure from yours, the vast majority were still denying any political motives.
MS THABETHE: Indeed, Mr Chair, but I would like him to explain personally why he denied when other people were coming forward.
MR DLAMINI: Because the APLA had not uplifted the armed struggle, so I was forced not to tell about what I did, because I was a soldier and I was following the orders of the fifteen points of attention not to surrender any information to the enemy.
MS THABETHE: Thank you, Mr Chair, I have no further questions.
NO FURTHER QUESTIONS BY MS THABETHE
MR MBANDAZAYO: No re-examination, Mr Chairperson.
NO RE-EXAMINATION BY MR MBANDAZAYO
CHAIRPERSON: Thank you.
MR MBANDAZAYO: That's the evidence of the applicant, Chairperson.
WITNESS EXCUSED
MS THABETHE: Thank you, Mr Chair. I would like to call Peter Hart.
JUDGE MILLER: Could you spell the name please.
MS THABETHE: Peter H-a-r-t.
JUDGE MILLER: Peter, with or without an "e".
MS THABETHE: P-e-t-e-r.
CHAIRPERSON: Do you have any objection to taking the oath?
MR HART: No.
CHAIRPERSON: What are your full names?
PETER LAWRENCE HART: (sworn states)
EXAMINATION BY MS THABETHE: Mr Hart, can you tell the Committee Members how you are related to Mr van Niekerk, the deceased?
MR HART: I'm married to his daughter since 1990.
MS THABETHE: Did you know Mr van Niekerk very well?
MR HART: Yes, I did.
MS THABETHE: On the day in question you were not present, isn't it correct? When he was shot.
MR HART: No, I wasn't present.
MS THABETHE: You have heard the applicant giving evidence today.
MR HART: Yes.
MS THABETHE: To the effect that Mr van Niekerk was shot because he tried to pull a firearm.
MR HART: Yes.
MS THABETHE: What is your comment on that?
MR HART: It was not Mr van Niekerk's turn on that fateful Friday, to go to the bank to draw wages. When he was at worked he was asked. The person who was supposed to go and draw money was not at work, with the result that he was asked by management to go and draw the wages. They took it in turn and also at irregular times, and the wages were only drawn, either on a Thursday or a Friday. Mr van Niekerk's firearm was locked up at his house in a safe on that particular day.
MS THABETHE: And how do you know this? Do you have personal knowledge of this?
MR HART: This all came out in evidence in the court. I was at all the court hearings when the trial proceeded. He went to the bank with a lady from the office. He was not alone in the vehicle on the return to Exmico, and the lady climbed out the vehicle at the same time when Mr van Niekerk climbed out, and Mr van Niekerk was the one that took the suitcase off the seat and the rest happened.
MS THABETHE: You have heard the applicant giving evidence that he was acting on behalf of APLA, and he was acting on instructions of his Commander, and he's applying for amnesty. What is your response to that?
MR HART: Well after going through all the court procedures of the day, and looking at the application here and hearing what has been said so far, there has been quite a lot of contradictory statements made.
MS THABETHE: Thank you, Mr Chair, I have no further questions.
NO FURTHER QUESTIONS BY MS THABETHE
CROSS-EXAMINATION BY MR MBANDAZAYO: Mr Hart, just a few questions.
Am I correct that you never worked at the company where Mr van Niekerk was working?
MR HART: No, I didn't.
MR MBANDAZAYO: And what you are telling the Commission today, is what you heard from court, that it was not his turn to go to the bank.
MR HART: Yes, that wasn't just in the court, it was at home as well. I knew Mr van Niekerk very, very well and - I mean, I was there at the house virtually all the time basically.
MR MBANDAZAYO: Were you present when he went to work on the day, on this day in question?
MR HART: Just repeat.
MR MBANDAZAYO: When he went to work on the day in question, were you present?
JUDGE MILLER: Were you at Mr van Niekerk's home when Mr van Niekerk left for work that day?
MR HART: No, I wasn't, I was at my work.
MR MBANDAZAYO: Now how do you know that he was not carrying his firearm?
MR HART: Because it was locked in his safe at home. Everybody in the family knows that he never carried that firearm unless it was his turn to go to the bank, and this was something that they emphasised quite a bit. The fact is that he didn't even know he was going to land up going to the bank that day, because of the person whose turn it was ...(intervention)
CHAIRPERSON: Well did you speak to him that morning?
MR HART: To Mr van Niekerk?
CHAIRPERSON: Yes.
MR HART: No.
CHAIRPERSON: Well how do you know he didn't know he was going?
MR HART: It wasn't his turn. It came out in evidence in court.
CHAIRPERSON: But the person may have phoned him up the night before or early that morning, to say look, "I've got some problems, will you take over from me today?"
MR HART: That happened at Exmico on that particular day that he was told to go, only after being at work.
JUDGE MILLER: Whereabout did Mr van Niekerk live, Mr Hart?
MR HART: In Quebeka Park.
JUDGE MILLER: That's up the Old Cape Road or something.
MR HART: Yes, very close to Hunter's Retreat.
JUDGE MILLER: Now if he was going to the bank and he felt he needed to have a firearm, couldn't he have gone via home and picked up the firearm before he got to the bank and then gone to the bank with his firearm?
MR HART: I suppose he could have done that, but that definitely didn't happen because this is all evidence that's down in the court, that there was no firearm on him at all.
CHAIRPERSON: Was there - you keep telling us the firearm was locked up at home, did anybody find it locked up at home? Were you present when it was found, or was there evidence led?
MR HART: No, I wasn't present when the safe was opened or whatever, but he was a very keen sportsman as well and he had a very big safe with firearms in.
JUDGE MILLER: So he had more than one firearm, he had various firearms.
MR HART: They were rifles.
JUDGE MILLER: Oh he used them for sporting purposes, but he had various ...
MR HART: Ja, hunting. But it was a big safe that he had. Apparently my mother-in-law was present, she opened the safe - which is his wife.
MR MBANDAZAYO: I'm indebted to the Commission, Mr Chairman.
Lastly, Mr Hart, do you know whether when he was asked, as you put it, at work, whether he was given a firearm by somebody else?
MR HART: No, I wouldn't be able to - I wasn't present there, but what I am speaking for is for the evidence that came out in court, where it was specified that he had no weapon on him at all.
MR MBANDAZAYO: Now lastly, are you saying that the reason why you maybe are opposed to the amnesty, is because the evidence that came up in court is different to what the applicant is saying today before the Commission?
MR HART: Yes, and I'm also standing in a little bit here for my mother-in-law, because she wouldn't be able to go through this. It was a last decision thing as well, to come along here.
MR MBANDAZAYO: Thank you, Mr Chairperson.
NO FURTHER QUESTIONS BY MR MBANDAZAYO
CHAIRPERSON: Re-examination?
RE-EXAMINATION BY MS THABETHE: Yes, Mr Chair.
Mr Hart, you've indicated that you are a very close family, is that correct?
MR HART: Yes.
MS THABETHE: And you've also indicated that you were not present when the safe was unlocked.
MR HART: No.
MS THABETHE: So how would you know - the question would be, how would you know that his firearm was in the safe?
MR HART: Well that was where it was locked up.
MS THABETHE: Who actually unlocked the safe?
MR HART: My mother-in-law.
MS THABETHE: So how did you know about the fact that the firearm was there?
MR HART: Well everybody in the family was talking about it and at the court it all came out, that he was unarmed.
MS THABETHE: Thank you, Mr Chair.
NO FURTHER QUESTIONS BY MS THABETHE
JUDGE MOTATA: Mr Hart, was this firearm which was locked up in his safe, that is Mr van Niekerk, his personal firearm?
MR HART: Yes.
JUDGE MILLER: Do you know what sort of firearm it was?
MR HART: No, I just know it's a hand ...(intervention)
JUDGE MILLER: A hand gun, a revolver or a pistol.
MR HART: Yes, ja.
JUDGE MOTATA: Thank you, I've got nothing further, Chairperson.
JUDGE MILLER: And I suppose you wouldn't know, because you didn't work there, but when they went to the bank they always go with two people?
MR HART: No, not from what I understand, because as far as I know the lady was actually asked to go to the bank on that day and Mr van Niekerk stepped in and he landed up going with her to the bank and coming back with the money.
JUDGE MILLER: So she might have had her own gun?
MR HART: I don't know.
JUDGE MILLER: Which Mr van Niekerk might have had in his possession? I don't know, I'm just asking. I mean, it would seem that Mr van Niekerk was in the habit of taking a gun when going to the bank to draw the wages, I think for fairly obvious reasons.
MR HART: Ja.
JUDGE MILLER: Protection.
MR HART: Yes, when it's his turn.
JUDGE MILLER: When it's his turn. So if somebody else was to carry out that turn, it wouldn't be unreasonable to assume that they might, that that other person might also take a gun.
MR HART: Yes, but the person that was going to go to the bank that day, never turned up for work. That's ...(intervention)
JUDGE MILLER: No, but who was this lady that went with him then?
MR HART: I don't know her name, but I know it was one of the women in the office, who was called to ...(intervention)
JUDGE MILLER: Although he - ja.
MR HART: It was a spur of the moment decision when the person who was supposed to have ...(intervention)
JUDGE MILLER: No, we're being a bit unfair because you don't work there, you don't know what the procedures are, but there was this lady there - yes, in any event, because you weren't there you won't be able to answer.
CHAIRPERSON: Thank you.
MS THABETHE: No further witnesses.
CHAIRPERSON: Was there an inquest held?
MR HART: Yes.
CHAIRPERSON: Have we had sight of the inquest proceedings? Has any attempt been made?
MS THABETHE: Mr Chair, not from the Investigative Unit. We did investigate - we did go to the APLA cadres to try and ascertain information, whether the applicant was an APLA member. The investigation was more to that direction.
JUDGE MILLER: No, but we're talking about the inquest, a formal inquest by a Magistrate.
CHAIRPERSON: Well presumably some policeman would have given evidence about having found the body.
MS THABETHE: No, Mr Chair.
CHAIRPERSON: You say no further evidence?
MS THABETHE: No further evidence, Mr Chair.
CHAIRPERSON: Thank you.
WITNESS EXCUSED
CHAIRPERSON: Would you prefer to address now or tomorrow morning?
MR MBANDAZAYO: I will prefer now, Mr Chairperson, I won't ...
MS THABETHE: The same applies to me, Mr Chair.
CHAIRPERSON: Very well.
MR MBANDAZAYO IN ARGUMENT: Thank you, Chairperson.
Chairperson, I won't bore you with the provisions of the Act, but it's my submission that the applicant has complied with the requirements of Section 20(1) and also (2), that he was actually acting on behalf of APLA. Mr Chairperson, I'm saying this because there is no evidence to gainsay what he's saying, that on the day he was given an order by Mandla and he carried out reconnaissance up until the 28th and on the 4th of October he pulled the mission. It's therefore my submission, Mr Chairperson and Honourable Members of the Committee, that the applicant has made a full dislosure regarding his involvement in this incident and that there is nothing to gainsay what he's saying, that he was acting on behalf of APLA, and he actually carried out the order as given to him by Mandla.
CHAIRPERSON: What of Pikoli's statement?
MR MBANDAZAYO: Chairperson, as I indicated that I agree with Pikoli's statement, Mr Chairperson, but the question is, he was the only person who was referred to. And Chairperson, just to briefly, as the Chairperson knows the procedure, how the procedure works within APLA and also PAC, it's totally different because he reports to his Commander and it's his Commander to report to whoever, whether to PAC structure or to APLA High Command. He had nothing to do to go to the structures of PAC, which of course for obvious reasons, Mr Chairperson, also Mandla cannot divulge names of the people who were involved in operations, for obvious reasons, for security reasons. If he divulged, everybody would know that so-and-so is the one who pulled that mission. So definitely it would be difficult now for the applicant to be in a position to -on his own, to say Pikoli knew about it or was informed ...(intervention)
JUDGE MILLER: He assumes that he ...(intervention)
MR MBANDAZAYO: He assumes because he's in the leadership, that he was informed about the operation. But Chairperson, I want to say that the problem we have is that it's difficult, it was going to be difficult even for Mandla to tell even the structures of PAC. Of course with the exception of certain people, all of them, to say "Look, it was so-and-so who pulled the mission", except if he just hands the money, because it means it will defeat the whole purpose of security to secure those cadres.
JUDGE MILLER: It would seem on the evidence before us, Mr Mbandazayo, that of your client and that given by Mr Hart, that the main point of contradiction relates to whether or not Mr van Niekerk had a firearm in his possession on that morning of October the 5th, when he returned from the bank. What do you have to say about that contradiction, that difference in the evidence. Let me put it that way.
MR MBANDAZAYO: Chairperson, as much as I respect Mr Hart's view on this aspect, of course taking into account that they lost a loved on, which of course I'm -you know, it's something which affects almost everybody, but Chairperson if one looks at the whole scenario as to how this was operated, this person goes to the bank and definitely almost everybody goes to the bank, a company, a big company, to draw wages. It's not something which is known as a routine, that you can go to the bank without carrying a gun, without having some sort of security.
But the question is whether Mr van Niekerk on that day was carrying a firearm. According to the applicant, he's saying look if he remembers it very well, he was also wearing a white shirt and that on the white shirt there was something protruding on the other side and of course he saw hit as a gun. So he feels that on the day in question he was carrying a gun.
Of course, Mr Hart is saying that on the day in question, it was not his day to go to the bank, but Chairperson, the question is not whether it was his day or not, whether on the day in question he was carrying a gun, whether it was his gun or another person's gun.
CHAIRPERSON: What do you say about the question of him not having a gun but your client genuinely believing he had? 'Cause the impression I got listening to your client giving evidence on this point, is your client had a fixed view that this man was going to be armed and he must be very careful.
MR MBANDAZAYO: Yes, Chairperson, I was just going - I'm indebted to you to raise it now. I was going to go to that second leg to say that he made a reconnaissance of the area and also of the person who - he saw it that the person is always carrying a gun and of course at the time he genuinely believed that this person was carrying a gun. By also his actions of throwing the money to him and he interpreted that to be, according to him, that he was trying to distract him so that he can be able to pull his gun and shoot at him. That is why he said he ducked and kept on concentrating on him and he saw him try to pull something and it's then that he shot him. So in a way he genuinely believes that Mr van Niekerk was carrying a gun on the day in question.
Chairperson, unless this Commission would like me to address on any other specific points, it's my submission that the applicant should be granted amnesty as applied.
MS THABETHE IN ARGUMENT: Thank you, Mr Chair.
My instructions are to oppose the application on the basis that on the day in question, Mr van Niekerk did not have a gun in his possession. I've heard my learned colleague arguing that the applicant believed that the deceased had a gun with him, but if my memory serves me correctly, Mr Chair, the applicant was asked this question as to whether he believed or he saw a gun and his response was that the deceased was wearing a white shirt and he actually saw the gun behind the white shirt, not that he believed that he carried a gun. And on that issue, Mr Chair, my instructions are that the deceased did not have a gun on him, there was evidence led in court to that effect, and yes, Mr Chair and Honourable Members of the Committee, Mr Hart is not an Exmico employee and he was not present at the scene, but he has indicated, Mr Chair, and I don't see why we should not take his version, that they were a close-knit family, they discussed issues, his mother-in-law went to the safe, the gun was there, Mr Chair. So the probabilities I would like to argue are that he did not carry the firearm on that day. Of course my difficulty is, Mr Chair, that Mr Hart was not present at the scene.
Further, Mr Chair, I would like to put it on record that we tried to verify the applicant's membership, PAC membership, and according to our Investigator, he was confirmed to be a PAC member by Viwe Miza. Unfortunately we could not get hold of Mike Xlashimba and we couldn't get a statement from Viwe Miza, but according to our Investigators, he was confirmed as a PAC member.
And of course, Mr Chair, we've got a statement from Pikoli, Mr Pikoli, who suggests that he did not have any knowledge of the said robbery. And we would like to argue that he might not have known who the APLA cadres were who were involved in that mission, but as a person who holds authority, he should at least have had knowledge of the said robbery.
With regard to the car theft, Mr Chair, I would leave it in the hands of the Committee to make a decision. Those are my submissions, Mr Chair. I leave it in the hands of the Committee to make the proper decision. Thank you.
CHAIRPERSON: Thank you.
JUDGE MILLER: Any reply?
MR MBANDAZAYO IN REPLY: The only aspect, Chairperson, is the one of Mr Pikoli as a person who is in authority. Chairperson, it's my submission - luckily I'm talking to the some of the Members of the Committee who have been involved in some APLA cadre application regarding Repossession Units. Some PAC leadership, it's only the top one, National Executive, some of them, only knew about that the UNITRA robbery was an APLA - it's only when Maseko applied. Nobody knew about it, everybody was shocked.
So Chairperson, it's not necessary that if you are in a position of authority you'll know everything that is done by APLA. Some of them are known today because they have applied for amnesty. Like some didn't even know what Eikenhof was until they applied for amnesty. Everybody believed that those who have been convicted were involved in the Eikenhof incident. So Chairperson, some of these issues, Chairperson, should be taken in that context, that at the time these people were so secretive in some of the issues. Of course there are others which were of course leaking, you'd hear about it, that so-and-so, there's a rumour that it was done by so-and-so, but that's not always the case, Chairperson. Thank you, that's all, Chairperson.
CHAIRPERSON: Very well, we'll take time. Now tomorrow, who is appearing?
CHAIRPERSON: Who is appearing tomorrow? What matter are we doing first?
MS THABETHE: Mr Chair, Ms Candice May has been here for the whole day, she's the lawyer for the victims in the Mgandela matter. I would suggest we start with it tomorrow morning, because the Balega and Dingane matter, there are no victims in that matter, so we can always do it afterwards.
CHAIRPERSON: What time?
MS THABETHE: I leave it in the hands of my learned colleague and the Committee, Mr Chairman.
CHAIRPERSON: I see that a lot of the persons sitting waiting here are going elsewhere now and will have to be brought here tomorrow morning. What would be a convenient time? Half-past nine? Right, we'll adjourn until half-past nine tomorrow morning.
MS THABETHE: As the Committee pleases.
COMMITTEE ADJOURNS
