ON RESUMPTION
CHAIRPERSON: For the record, today is Monday the 7th of June 1999, we are continuing with the Amnesty Committee hearings at Telkom Centre in Pretoria. The panel is constituted as has been indicated previously on the record. The first application this morning is that of Amos fish Mahlalela, reference number AM5646/97. Mr Koopedi, do you want to put yourself on record?
MR KOOPEDI: My name is Brian Koopedi, I appear for the applicant.
CHAIRPERSON: Thank you Mr Koopedi. And it is Ms Mtanga, the Evidence Leader, very well. Yes Mr Koopedi?
MR KOOPEDI: I believe we are ready to proceed and with leave of the Committee, may the applicant be sworn in as a witness?
CHAIRPERSON: Certainly. Mr Mahlalela, can you please stand and just switch on your microphone. Are your full names Amos Fish Mahlalela?
MR MAHLALELA: Yes.
AMOS FISH MAHLALELA: (sworn states)
CHAIRPERSON: Thank you, please sit down. Mr Koopedi?
EXAMINATION BY MR KOOPEDI: Chairperson, for the benefit of our Interpreters, the applicant will give his evidence in English. Thank you. Mr Mahlalela, you are an applicant in this matter, is that correct?
MR MAHLALELA: Yes.
MR KOOPEDI: Where do you stay?
MR MAHLALELA: I am staying at Mbuzini, Mpumalanga.
MR KOOPEDI: That is in Mpumalanga?
ADV DE JAGER: Sorry, I didn't hear where he is staying.
MR MAHLALELA: I am staying at Mbuzini in Mpumalanga.
MR KOOPEDI: Are you employed?
MR MAHLALELA: Yes.
MR KOOPEDI: Where?
MR MAHLALELA: By the Provincial Government of Mpumalanga.
MR KOOPEDI: Of Mpumalanga? Is it correct that you are appearing here in connecting with the killing of one Thomas Joshua Mangane?
MR MAHLALELA: Yes.
MR KOOPEDI: Would it be correct also to say that this happened on the 10th of January 1990 in Mbuzini?
MR MAHLALELA: Yes.
MR KOOPEDI: Now, when this happened, were you a member of any political organisation?
MR MAHLALELA: Yes.
MR KOOPEDI: Which organisation was that?
MR MAHLALELA: The African National Congress.
MR KOOPEDI: Okay, and where were you based, were you based internally or outside the country?
MR MAHLALELA: Well, I was based both internally and externally, because I was operating underground.
MR KOOPEDI: These operations that you did underground, what type of operations were they?
MR MAHLALELA: Firstly I was instructed to open routes to infiltrate members of the ANC/MK inside the country through Swaziland and secondly to establish the underground political structures and then thirdly, to remove whatsoever obstacle that will be on our way in assuring that we carry out the task given to me.
CHAIRPERSON: So were you a member of Umkhonto weSizwe?
MR MAHLALELA: Yes.
MR KOOPEDI: We all know that the Umkhonto weSizwe was based at different places, where were you based as a member of MK?
MR MAHLALELA: Firstly I was trained in Angola and then infiltrated inside the country through Swaziland, so I was reporting to my Regional Command in Swaziland.
MR KOOPEDI: Your Regional Command was in Swaziland?
MR MAHLALELA: Yes.
MR KOOPEDI: And who was your immediate Commander in the Regional Command?
MR MAHLALELA: My immediate command in the Regional Command was Duleleng.
MR KOOPEDI: Okay. The deceased, Thomas Mangane, do you know who killed him?
MR MAHLALELA: Yes.
MR KOOPEDI: Who did that?
MR MAHLALELA: It was myself.
MR KOOPEDI: Why, why was he killed? Is there any reason?
MR MAHLALELA: As I indicated earlier on when I was instructed to infiltrate in South Africa, there was a problem that all our routes to infiltrate from Swaziland to South Africa, were closed. I was given that specific instruction to go and open routes, but then in that process, the main reason why some of the, most of the routes were closed, I was briefed that there is a high concentration, there was a high concentration by that time, of informers and therefore I was then informed that I need to ensure that when I operate there, I identified those informers and where possible, remove them so that we were in a position to operate and Thomas Mangane was identified as one of those. He became a State witness in the case, where our own underground structures were operating and therefore, on those basis, he turned out and became a State informer with the intention of ensuring that he blocks all our operations in the area and for that matter, because the areas around Mbuzini were borders of Swaziland, where we will have to - even if you want to send someone inside the country, deep to Johannesburg, you will have to via through that route and therefore it was targeted by the State machinery as a point where you would have to create a high concentration of informers and Thomas Mangane became one of those.
MR KOOPEDI: Now who identified him as one of those obstacles, was it you, was it anyone you know?
MR MAHLALELA: It was - firstly I was informed that he became a State witness and therefore there is a suspect that he is part of the system, and when I infiltrated inside the country, I investigated that and discovered that it is true. It became worse immediately after one of our comrades were killed by the State Security Council Police, with the name of Dobe Makakhula and all the implications led to them being sold out by informers and there was no way to rule out Thomas Mangane in that process.
MR KOOPEDI: So when it became clear that in fact what you heard, is true, the fact that he is an informer, did you decide to kill him on your own or was there any order, was there any person in a position of authority who decided that for you?
MR MAHLALELA: I discussed it with my immediate Commander and we felt that it is appropriate and then I went personally and carried on my own.
MR KOOPEDI: How was he killed?
MR MAHLALELA: I came in, it was evening, I can't remember the time, it was around ten, eleven in the evening, I knocked at the door and then he opened, I mean he asked who is knocking and then I mentioned a name of his brother, which is Themba and then he opened the door and then when he opened the door, and then I then pulled out my Makarov and then he tried, instead of - then he ran away, outside the house and then in the process while he was running, then I shot him several times, I can't remember how many times.
MR KOOPEDI: Were you arrested for this killing?
MR MAHLALELA: Yes.
MR KOOPEDI: What happened to you after being arrested, were you sentenced to prison?
MR MAHLALELA: When I was arrested, I was released on a bail and then I appear, our last appearance was in Middelburg, High Court, where the case was adjourned pending the outcome of the indemnity, further indemnity application that we made through the lawyers.
MR KOOPEDI: Okay, now after having killed this person, were you able to report this to your Regional Command?
MR MAHLALELA: Yes.
MR KOOPEDI: And what was the response?
MR MAHLALELA: The response was that the mission had been carried and proceed on.
MR KOOPEDI: Now, were you given this indemnity you spoke about, were you granted indemnity?
MR MAHLALELA: Yes, as I am saying it was pending indemnity application which was granted somewhere on, I can't exactly the date, it was around the 26th if not the 25th of April 1994 by the then State President, F.W. de Klerk.
MR KOOPEDI: This indemnity that was granted to you, was it in relation to the killing of Thomas Mangane and also possession of arms and ammunition?
MR MAHLALELA: It was in relation with Thomas Mangane.
MR KOOPEDI: You did not apply for indemnity for having possessed arms and ammunition?
MR MAHLALELA: In that further, we never applied, we applied for the first one where in our own understanding through the lawyer, was that that was granted, the only one that was not granted was the one in relation to Thomas Mangane and through the Further Indemnity Act, we then applied for that one, which was then granted.
MR KOOPEDI: Okay, now you are appearing before this Committee, applying for amnesty for the killing of Thomas Mangane and also possessing arms and ammunition, would that be correct?
MR MAHLALELA: Yes.
ADV DE JAGER: Could you refer us to the page, I am not sure, I may have misread the application?
MR KOOPEDI: I am not sure when Honourable Committee members says "page", what he refers to. The application form, as you might have noticed, is very scanty on those details and mainly the application form will refer you to some declaration.
ADV DE JAGER: (Microphone not on)
CHAIRPERSON: Switch the other one off Mr Koopedi.
ADV DE JAGER: Further particulars were asked, isn't it?
MS MTANGA: Page 12.
ADV DE JAGER: (1) specify offences for which amnesty is sought and then only one offence is mentioned.
MR KOOPEDI: It is indeed correct that in response to that question of saying what offences, he referred to the killing only and not the possession and my consultation with him as to why did you not mention the arms and ammunition things, as a lay person he imagined that he could not have killed a person with his hands, he shot, so he thought that possession of weapons and ammunition would be encompassed within the killing of Thomas Mangane, and in fact my question to him now as to saying are you also applying for amnesty for the other offences which would be possession of the arms and the ammunition, the idea was to then request this Honourable Committee to amend his application as to include those two offences.
ADV DE JAGER: He didn't use a handgrenade to kill the person?
MR KOOPEDI: No, Your Honour. Thank you Honourable Committee member, now was there anything that you personally gained out of this killing?
MR MAHLALELA: Definitely none.
MR KOOPEDI: Would you regard this, regard your actions as having been politically motivated?
MR MAHLALELA: Yes.
MR KOOPEDI: And would you also regard your actions as having achieved a particular political objective?
MR MAHLALELA: Yes, I regard that because immediately after that incident, the activities of the informers in that area completely declined. The political activities in those areas, improved and we were in a position to operate in a more effective environment than it was previously.
MR KOOPEDI: Okay, now in the criminal trial, when you were arraigned, it was alleged that certain people may have assisted you in this matter, some names have been branded around, one of them being Frazer, yes. Do you know anything about these people?
MR MAHLALELA: Definitely in the operation I was alone, as I have indicated earlier on. But I know about Frazer, he was part of the Unit that was operating in the area, but he was not under my command, he was under my same immediate command, but we operate in parallel.
MR KOOPEDI: Okay, so there is no truth in an allegation that there may have been other people assisting you in this matter?
MR MAHLALELA: No, there is absolutely no truth in that.
MR KOOPEDI: Okay. Now do you think there is any other thing which you would like to bring to the attention of this Committee, which you have not?
MR MAHLALELA: No.
MR KOOPEDI: Chairperson, that will be the evidence of the applicant.
NO FURTHER QUESTIONS BY MR KOOPEDI
CHAIRPERSON: Thank you Mr Koopedi. Mr Mtanga, have you got any questions?
CROSS-EXAMINATION BY MS MTANGA: Yes, Chairperson, I do, thank you. Mr Mahlalela, in what year did Mr Mangane testify against the MK cadres?
MR MAHLALELA: In 1987.
MS MTANGA: What I also want to know is, you said in your application he was killed because of his testimony against MK cadres in that case, and also because of his activities against MK cadres and collaborating with the Police then, can you give the Committee facts surrounding these activities that he was involved in besides the court case?
MR MAHLALELA: Yes, as I say he was involved under those activities, of monitoring the activities of underground MK, he was liaising with the Police as an informer. At some stage he visited even Swaziland, he would go as far as Swaziland and try to - because initially he was operating with our own structures in Swaziland, he will even go to those areas and check whether our Unit are still existing in those areas. And also operating inside the country and monitoring all possible points where our own MK cadres can be located, even as far as surveilling and monitoring our homes and as far as surveilling and monitoring some of key activists whom he thinks when we come in, we can be in a position to be in touch with them, so those were the activities and that led to as I have earlier on indicated, to one of our cadres being killed in that process.
MS MTANGA: Have you got evidence as to how he got Dobe Makakhula killed, about his involvement in that, because it is just an allegation that you are making, there is no real basis for us to believe that he indeed got Makakhula killed?
MR MAHLALELA: Yes, as I am saying, he was involved in the sense that there were a Unit, not him alone, he was part of those Units and they will be in a position to communicate and link with the Police and then on those basis, be in a position to inform the Police exactly what is happening and monitor our activities as underground structures. When Dobe came into that area, if you can imagine how far is the Police station from that area, you will wonder how the Police knew his presence and they only knew his presence through that network of informers of which Thomas Mangane was part.
MS MTANGA: When did Makakhula die?
MR MAHLALELA: He died in 1989.
MS MTANGA: Mr Mahlalela, I still have a problem with this evidence, there isn't concrete evidence from you showing exactly what Mr Mangane did, you seemed to be acting on the suspicion that it was a feeling that he was co-operating with the Police, but you haven't given any concrete facts or evidence to how he was co-operating with them and who saw him doing that and the basis for that suspicion, you haven't given it in your evidence.
MR MAHLALELA: As I am saying there was a network and he was part of that network, and I will appreciate even in a situation where even those Police will come and tell the truth how they operated, because they know better, but what I am trying to say is that he was part of that network, a network that was established by the Security Force to ensure that there are no underground activities of MK that are taking place on those borders and secondly, as I am saying, he was once involved in our activities, and he knew all our key points, and he went there, I saw him even personally in Swaziland, but he never saw me. In those places where he thought, because there were original basis where he had in touch with our Unit, I saw him personally in Swaziland.
MS MTANGA: Another problem I have with your evidence is that in our investigation, the Police were approached to confirm that Mr Mangane was, whether he was a Police informer or not and the position of the Police is that if a person has died, they are willing to reveal that information and we are in possession of the facts that says Mr Mangane is not on the list of people who were Police informers during that time. What do you say to this?
MR MAHLALELA: I will say to this, the Police has never disclosed, I was arrested and I've got a belief that when I was arrested, there was an informer that informed them that I was there and they have never, even today, disclosed who the informer was and therefore I will not agree with that point.
MS MTANGA: If I may ask this, Mr Mangane testified against you and against the MK cadres in 1987, why wasn't he killed soon after that, why was he only killed in 1990?
MR MAHLALELA: Immediately when he testified, all our structures withdrew somewhere towards the end of 1988 because they were all arrested in Swaziland and then you will have to go back and start again to establish new structures and that is when I came in.
MS MTANGA: The problem that the family has in, they didn't know about their son's activities as you allege, what they know had happened was that he was arrested and when he came back after the arrest, he constantly got visits from the Security Police who were also harassing the family and making sure that he remained in Mbuzini and never left Mbuzini and they also felt that they were victims of the Security Police and he was also that victim. Based on what you have said today, the family is of the view that they don't know what exactly their son did, besides having testified in the case that you said, that you allege he testified in. There are no facts pointing to him directly, saying that this is what he did, he would go with so and so, act with this Police, this Policeman, there is no such evidence before the Committee.
MR MAHLALELA: No, no, the truth of the matter is he was always in touch with the Security Forces, not on the basis of harassment, but was always in touch with the Security Forces on the basis of information, to provide them with information and that was the basis and he was not confined at home as you are alleging, it is not correct. As I am saying, I saw him in Swaziland, he was not confined at home. I saw him moving around, around the area of (indistinct) which is a very huge area.
MS MTANGA: Well, what is the source of your information that he was in touch with the Police, how did you know that he was in touch with the Police?
MR MAHLALELA: I am saying I was operating underground there, I was monitoring all activities that were taking place in that area.
MS MTANGA: Are you saying you saw him?
MR MAHLALELA: Yes, I say I saw him.
MS MTANGA: Being in touch with the Police?
MR MAHLALELA: Yes.
MS MTANGA: Thank you Chairperson, no further questions.
NO FURTHER QUESTIONS BY MS MTANGA
CHAIRPERSON: Thank you Ms Mtanga. Mr Mahlalela, after you infiltrated back into South Africa and you re-established yourself in Mbuzini, did you form a Surveillance Unit?
MR MAHLALELA: At some stage yes, there was some form of some small Surveillance Unit, not necessarily monitoring him, but monitoring as I have indicated earlier on, I was instructed to establish political underground structures with the intention of monitoring the political situation inside the country.
CHAIRPERSON: Did you obtain any information about the activities of the deceased through the operations of this Surveillance Unit?
MR MAHLALELA: To some extent yes, but in most cases, I managed to get out of my own.
CHAIRPERSON: The observations of the Surveillance Unit, was that your own observations or was it contradicting your observations about the activities of the deceased?
MR MAHLALELA: Well, in most cases it was confirming that.
CHAIRPERSON: Did you, prior to executing this operation, did you report back to the Regional Command about your own observations and the observations of the Surveillance Unit, to say well, we have now confirmed that the deceased ...
MR MAHLALELA: Yes, immediately, because I never did it immediately, immediately after I had checked everything, I went back and then we discussed it and then we finally agreed that before anybody die, I mean before a next person died after Dobe Makakhula, we need to do something and therefore I went on and did that.
CHAIRPERSON: So it was only after reporting back to the Regional Command that you got the final order to eliminate the deceased?
MR MAHLALELA: Yes.
CHAIRPERSON: Now, it has been indicated that you are in addition to asking for amnesty for the killing, you are also asking amnesty for the possession of arms and ammunition. What kind of arms and ammunition were you in possession of?
MR MAHLALELA: Well, when I was arrested in 1991, I was in possession of two handgrenades and two detonators with a pistol, Makarov.
CHAIRPERSON: Was it the one Makarov pistol?
MR MAHLALELA: Yes.
CHAIRPERSON: Sorry, can you just remind me again, when were you arrested, what year was it?
MR MAHLALELA: I was arrested in 1991.
CHAIRPERSON: 1991?
MR MAHLALELA: In February, I can't remember the date exactly, but it was in February 1991.
CHAIRPERSON: And perhaps you can just explain to me again, I think I have missed when you dealt with that in your evidence in chief, you say that you have also applied for indemnity in respect of these arms and ammunition, possession of these things?
MR MAHLALELA: When I was arrested, I was charged I think with about 11 charges and we made an amnesty application and the response, I mean indemnity, I mean, and then the response that I was told by my lawyers was that it is only the two that has not been accepted, that of Mangane and the possession of arms and ammunition, the leaving of the country illegally, infiltrating the country illegally, those were given and then I, when I applied for amnesty, we applied on both, but we could not understand, I mean indemnity, the response was only on the Mangane one, but on the arms and ammunitions, it was denied.
ADV GCABASHE : That was the further indemnity application?
MR MAHLALELA: Yes, further indemnity application.
ADV GCABASHE : So the outstanding one now is arms and ammunition?
MR MAHLALELA: Yes.
CHAIRPERSON: We do have an order, yes, there is on pages 47 and 48 the decision from the Indemnity Council. There you were given indemnity in respect of the killing on the 10th of February 1990, in paragraph (a) of that decision and then in paragraph (b) they seem to deal with the possession of three handgrenades and one detonator and the decision seems to be there not to grant you indemnity in respect of the possession of the three handgrenades and one detonator. Is that how you understood it as well, because that seems to appear from what is before us here that you seem to have been given indemnity for the murder, but not indemnity for the possession of, particularly the handgrenades, three handgrenades they say here, and one detonator.
MR MAHLALELA: Yes, definitely that is how I understood it as well.
CHAIRPERSON: But this was all part of your initial indemnity application, because that was in respect of all 11 counts that you were charged with?
MR MAHLALELA: Yes.
CHAIRPERSON: And those 11 counts included the murder and the possession of these handgrenades?
MR MAHLALELA: Yes.
CHAIRPERSON: So there seems to be an earlier decision as well, which grant you indemnity for all those other loose things, leaving the country and all that sort of stuff apart from this one that I have referred to now.
MR MAHLALELA: Yes, out of my knowledge, that is what I was informed.
CHAIRPERSON: When you applied to the Amnesty Committee for amnesty here, in respect of which offences did you intend to apply?
MR MAHLALELA: When I applied, I intended to apply for the Mangane with the hope and understanding that it will go hand in hand with those arms and ammunition.
CHAIRPERSON: I think you have written a letter to the
Amnesty Committee and it appears on page 16 of our record, of
the Bundle of our documents. On page 17 of that letter,
paragraph 6, you say you deal with your reference to the ANC
declaration regarding your Umkhonto weSizwe operations and
you say that this is based on your submission to the Indemnity
Committee. Then you say in the second paragraph -
"... the operations included infiltration of MK
underground operatives with arms and ammunitions,
creating underground structures, etc."
The last sentence -
"... those, including this one, were my operations for which I apply for indemnity,"
and it was granted as you say there by De Klerk. What was that, was that, what were you explaining there in that paragraph? I am also just looking to see in response to which of the Amnesty Committee letters, you were responding to. Oh yes, you say the letter of the Amnesty Committee, dated the 1st of April 1999, I am just trying to locate that. I am not sure if we have that particular letter in our Bundle. It doesn't seem to be in the Bundle, so it is not clear exactly what is the query in regard to paragraph 6. Have you got any recollection in regard to this correspondence, or don't you have any recollection about that aspect?
MR MAHLALELA: I can't remember exactly what was the specific question on number 6, but it was talking about declarations of MK operative activities.
MR KOOPEDI: If I may assist Chairperson, I seem to remember having seen a letter where he was asked why did he keep on referring to the ANC submission as he did in his application form, and I believe paragraph 6 was an attempt to respond to that question as to why was he referring to the declaration.
CHAIRPERSON: Yes, thank you Mr Koopedi.
MS MTANGA: If it pleases the Committee, on page 14, question 3.
CHAIRPERSON: Is this a letter from Mr Mahlalela that you are referring to or am I looking at the wrong thing now?
MS MTANGA: The response on number 6 is his response to question 3, coming from our office, page 14, question 3 and then he responds on number 6 of his answers.
CHAIRPERSON: Although, oh, I see, so subsequent to this memorandum, somebody from the Committee must have written to Mr Mahlalela on the 1st of April.
MS MTANGA: That is how it appears.
CHAIRPERSON: Because this seems to be dated the 12th of March and it has been sent to our Investigative Unit in Gauteng. There is another letter somewhere that they have written to Mr Mahlalela that we don't have here?
MS MTANGA: That is possible Chairperson.
CHAIRPERSON: Yes, I think that my query has been clarified, my colleague has just drawn my attention to the last paragraph of, the concluding paragraph, of this letter of yours on page 17 where you refer us to your Attorneys who seem to have submitted further documentation explaining the charges against you and so on. Thank you very much. Are there other questions? Thank you, Mr Koopedi, have you got any re-examination?
MR KOOPEDI: Nothing in re-examination.
NO RE-EXAMINATION BY MR KOOPEDI
CHAIRPERSON: Have you got any other evidence?
WITNESS EXCUSED
MR KOOPEDI: Chairperson, may I ask for two minutes just to confer, the Committee does not need to move. Thank you Chairperson.
CHAIRPERSON: Thank you, is that the case for the applicant?
MR KOOPEDI: That will be the case for the applicant, Chairperson.
CHAIRPERSON: Thank you Mr Koopedi. Ms Mtanga, any evidence?
MS MTANGA: No evidence Chairperson, save for that the family would like to place on record a letter or a fax that they have received from the Police which states that they have no record of Mr Mangane being an informer. We are still waiting for the fax coming from our office and secondly, the family has requested that I put on record the fact that they were severely intimidated and harassed by the ANC during the trial of Mr Mahlalela and the sister of Mr Mangane, witnessed the murder and she couldn't testify in court because she was very scared and she was so scared, such that she wasn't able to attend the hearing, she was so badly intimidated by the community in Mbuzini. They wanted that to be on record.
ADV DE JAGER: I notice that you didn't put, you didn't dispute that he was the only one involved in the murder? (Microphone)
MS MTANGA: That is common cause, Chairperson.
CHAIRPERSON: Yes, you say there is a fax from the Police which is to the effect that the deceased in this matter, was not a Police informer?
MS MTANGA: Yes, it is so Chairperson and I would like the Committee to accept it for what it may be worth.
CHAIRPERSON: You say, has that fax been sent to the Amnesty Committee?
MS MTANGA: It has been sent to our office in Cape Town and the Cape Town office will fax it to us, here.
CHAIRPERSON: Was it sent to us by the Police?
MS MTANGA: Yes Chairperson. They were requested to confirm whether they have Mr Mangane on the list of informers that they were using at that time, and their response thereto was that he was never on their list of informers.
CHAIRPERSON: Is that the sum total of the contents?
MS MTANGA: Yes.
CHAIRPERSON: That the deceased was never on their list of informers?
MS MTANGA: That is so Chairperson.
CHAIRPERSON: Yes. Mr Koopedi, are you at all disputing that there is this fax, in other words are you insisting that that fax must be physically placed before the Committee before we are able to conclude this matter, because I had intended to endeavour to get the matter completed?
MR KOOPEDI: No Chairperson, the reason is my own feeling is that the fax or even the contents thereof, is not material to this application, so I accept what my learned friend says and accept the contents thereof as she puts it, but we have no problem with it not being here now.
CHAIRPERSON: Very well. Is there anything else that you wanted to raise Mr Mtanga?
MS MTANGA: No Chairperson.
WITNESS EXCUSED
CHAIRPERSON: Mr Koopedi, have you got any submissions?
MR KOOPEDI IN ARGUMENT: Thank you Chairperson, a very short address. Chairperson and Honourable Committee members, I take this opportunity to appeal to you to grant amnesty to the applicant in that I believe that he has fully disclosed all relevant and material facts pertaining to his application. I also believe that there is evidence before you to the effect that he did not get any personal gain out of this. There is also evidence before you that the applicant was a member of a political organisation and that his actions were actions done on behalf of a political organisation.
Chairperson, may I also briefly deal with the short response I have just given, with respect to the fax sent by the Police. We all know that the Police will say whatever they want to say at any stage. We all know that for instance in the Boipatong massacre, Police accounted for all the casspirs in South Africa, but one Policeman came and said he was in Boipatong with a casspir. I believe that the information contained in that fax, whether it be true or not, is not material, but would also want to say even if the information in the fax could be true, the applicant have done his own monitoring and surveillance. The deceased had acted as a State witness, he may have been forced to do that, but there was also information within the Regional Command to which the applicant belonged, to the effect that the deceased was a Police informer, so after having done his own investigations and having reported to his Regional Command, he was then given an order, I stress the word "an order" to proceed and remove or eliminate this person as it was within the mandate, the instructions that he had to come into the country, amongst others it was to remove all obstacles. Whether the deceased was an informer or not, I believe that is really not strictly speaking, not material. The applicant was given an order to carry out what was believed at that stage to be a politically motivated action. It is on those grounds that I say I do not think what the Police says in this matter, is relevant in terms of determining whether to grant or not to grant amnesty to the applicant.
May I also say that what my learned friend said in cross-examination, the fact that the Police harassed the Mangane family and went to that family, clearly anyone would know that during those times, if any family is frequently visited by Police or any person is frequently visited by the Police, a general perception is created that this person is an informer, whether that is correct or not, but the perception exists.
Chairperson and Honourable Committee members, I believe that all the relevant facts have been put before you and I believe that the requirement for true and full disclosure has been put before you. It is on those reasons that I ask that the applicant be granted amnesty. Thank you Chairperson.
CHAIRPERSON: Thank you Mr Koopedi. Do you submit that in respect of the arms and ammunitions that the papers before us, sufficiently cover that charge as part of the amnesty application? In other words taking the application and all of the correspondence and all of the annexures that were furnished to the Amnesty Committee, do you submit that that sufficiently covers the application in respect of the arms and ammunition?
MR KOOPEDI: Chairperson, I am going to tell the truth here. I see the documents before us not referring to the arms and ammunitions for which we seek amnesty, in particular the arms and ammunitions we are referring to, would be the Makarov and whatever ammunition he had during the killing. I believe that you know, on the documents before us, there is not much that makes mention of them, even when you look at the refusal of the indemnity, it does not deal with the possession of the Makarov and whatever ammunition that may have been in it.
I will therefore leave it in your capable hands Chairperson, as to whether the application to include the arms and ammunition, in particular the Makarov and ammunition that was in it, whether this can be, can also be added to the application of having killed the deceased.
CHAIRPERSON: Would that possession have constituted counts under the charge sheet, the original charge sheet? Your client refers to the fact that there was something like 11 counts on that charge sheet, would those counts encompass this arms and ammunition?
MR KOOPEDI: Indeed they do, they would encompass that.
CHAIRPERSON: Yes, because they - you see, the applicant obviously, you know reading the correspondence and some of the responses that came from him, he seemed to have relied to some extent on liaison between the Amnesty Committee and his Attorneys, as he does refer the Amnesty Committee to his Attorneys who would be able to furnish further information and as part of our papers, we have been furnished with the affidavits which he has submitted in his indemnity application which in turn refers to his charge sheet, which in turn seems to refer to the arms and ammunition charges?
MR KOOPEDI: That is indeed so Chairperson, in that I canvassed this fact with him to find out as to why wasn't anything said about the Makarov and the ammunition for instance and you know, his answer was I could not have shot him with my fingers. He had imagined that the people who handled this, would have included all these charges.
CHAIRPERSON: Because the application seems to be rather scant on specific acts. I don't know if there is any reference to it, I must just look at it again now.
MR KOOPEDI: There isn't Chairperson.
CHAIRPERSON: There is no reference to any specific acts in the application, it seems to be relying on other annexures or further documentation or whatever, further particulars or whatever it might be. It doesn't purport to be a complete application on its own, the application form as such that we have here? It looks as if the applicant is relying largely on whether there is a declaration from the ANC and all sorts of other annexures?
MR KOOPEDI: That is indeed so Chairperson.
CHAIRPERSON: It appears as if, taking all those documents together, that would really constitute his application?
MR KOOPEDI: That is correct.
CHAIRPERSON: Have you got any other submissions?
MR KOOPEDI: No other submissions, Chairperson.
ADV DE JAGER: The charge sheet in fact appears on page 20 and 21 and the summary on page 22, and the charge sheet in fact says, the summary of the evidence said he was standing as a watch while the killing proceeded, so they didn't charge him with possession of firearms or anything, except that in paragraph 1
"... they arrived there during the early hours of the morning on 10 January, and were armed with firearms. Several shots were fired at the deceased, outside his home, while the accused in executing their joint aim, stood guard." (Transcriber's own translation - no translation).
MR KOOPEDI: I must say that in his evidence the applicant tried to deal with that question, although it is 'us" now, to say that I was alone when I carried this and also, may I also add that this charge sheet and the summary, was drawn in those days to suit a particular way of convicting people, but according to his evidence, he was alone, he was not standing watch and he possessed the Makarov pistol and that is what he used to kill the deceased.
ADV DE JAGER: Yes, referring to weapons and ammunition in the charge sheet, wouldn't help him because he in fact - according to the charge sheet is wrong in this respect as they include other people and he was only standing watch, while the evidence before us that we could deal with, is that he was the only person acting in this incident?
MR KOOPEDI: Like I said, the information with relation to the possession of this firearm and the ammunition, is very scanty and if any, one has to dig for it and find for it, that is why I conceded from the word go, that not much has been said about those two offences, particularly possessing a Makarov and the ammunition. I then said I would leave it in the Committee's hand to see if this possession of the arms and the ammunition, can be incorporated into his application.
CHAIRPERSON: Have you got any other submissions?
MR KOOPEDI: No other submissions, Mr Chairperson.
CHAIRPERSON: Ms Mtanga?
MS MTANGA: Chairperson, I will make no submissions on behalf of the family, and I would like to leave this matter in your hands.
CHAIRPERSON: I assume you won't have any further submissions?
MR KOOPEDI: No further submissions Chairperson.
CHAIRPERSON: We will take the tea adjournment at this stage, we will adjourn for 15 minutes.
COMMITTEE ADJOURNS
CHAIRPERSON: That concludes the testimony and the addresses in regard to the application of Mr Mahlalela. We will take some time to consider the decision in this matter and as soon as the decision is available, we will advise all of the interested parties and communicate the decision to them. In the circumstances, the decision in the matter, will be reserved.
MR KOOPEDI: As it pleases the Honourable Committee. May we be excused then?
CHAIRPERSON: Yes, in fact, sorry Mr Koopedi, my colleague has just drawn my attention to something - your client has indicated in his testimony, to us, that he was found in possession when he was arrested, of two handgrenades and two detonators, amongst other things and we have referred to the decision of the Indemnity Council, referring to three handgrenades and one detonator. Have you got any clarity on that ostensible conflict?
MR KOOPEDI: May I consult on that Chairperson, thank you. ... I get is that when these grenades were found, it was after an arrest and after having been tortured. He cannot recall how many handgrenades were found in that he only took the Police to a place and at that stage, his face was even covered, so he cannot remember how many were there and actually did not see how many were taken from the DLB so to speak.
CHAIRPERSON: So, would it be fair to conclude from that that the reference in the indemnity decision, might be the more reliable one?
MR KOOPEDI: That is indeed so, particularly because his words are that he cannot remember, so we will have to rely on what we have.
CHAIRPERSON: Yes. Thank you very much, that does clarify something that has occurred to us as a query. Very well, thank you. The decision will then be reserved and we will notify the parties once it is available.
MR KOOPEDI: May we then be excused?
CHAIRPERSON: (Microphone not on), I think we have reached a lull in the proceedings. Ms Mtanga, is the other matter ready to proceed or will we have to adjourn for a while?
MS MTANGA: We will have to adjourn for a while Chairperson.
CHAIRPERSON: We will adjourn until we are ready to take the next matter, but you are excused Mr Koopedi.
MR KOOPEDI: I just hope she is not calling any of my matters today.
CHAIRPERSON: No, we don't think so, thank you, we are adjourned.
COMMITTEE ADJOURNS
ON RESUMPTION
CHAIRPERSON: For the record, we are hearing the applications of Marvin Mogatle Maesela, amnesty reference AM3149/96 and Mashene Eric Tekane, amnesty reference AM7197/97. The panel is as has been indicated on the record previously. Mr Shai, do you want to go on record for the applicants? Is it Shai?
MR SHAI: It is Shai. Actually we received instructions for two applicants, but it later on came to our attention that there are three and one has actually made an application, but it wasn't brought to our attention, but we consulted with all three today. If the Committee is ready to listen to all three, then we are equally ready.
CHAIRPERSON: Yes, well, what we have are the applications of Messrs Maesela and Tekane. Who is the third applicant Mr Shai?
MR SHAI: Thabiso Tekane.
CHAIRPERSON: Thabiso?
MR SHAI: Thabiso Tekane.
CHAIRPERSON: Ms Mtanga, do we have that application?
MS MTANGA: Chairperson, first of all I had no knowledge that there was a third applicant and my learned friends then advised me of that, so I wasn't able to check with the office. I am not in possession of his amnesty application and I wasn't briefed about it.
CHAIRPERSON: Yes, Mr Shai, have you got a copy of Mr Thabiso Tekane's application?
MR SHAI: Mr Chairperson, no, we don't. Actually the position as it stood when we initially received instructions, we received instructions for Marvin Maesela and in our consultation with Marvin Maesela, he made mention of this Thabiso Tekane and Nataniël Eric Tekane. When we formally received instructions from Cape Town, the documents from Cape Town, we actually noted at that stage that the second applicant on record is also included in the application and when we came here today, we learnt of the third applicant.
CHAIRPERSON: Does he, according to his instructions, has he submitted an application, an amnesty application?
MR SHAI: That is what he indicated to us.
CHAIRPERSON: Was it together with the second applicant before us now, Mashene Tekane?
MR SHAI: According to our instructions, the first person to make an application is this Marvin Maesela and then this Eric Tekane was the second person to make an application and later on they were joined by Thabiso Tekane.
CHAIRPERSON: Mashene and Thabiso Tekane, are they brothers?
MR SHAI: They are blood-brothers, Mr Chairman.
CHAIRPERSON: And is Mr Thabiso Tekane, is he present here? Is he present here at the proceedings?
MR SHAI: That is correct.
CHAIRPERSON: Is he here?
MR SHAI: He is here and what we actually learnt from them is the facts that are deposed to in the application of Marvin Maesela and the facts, actually they make an application for one and the same incident and in the application by Marvin Maesela, mention is made of this Thabiso Tekane and the brother as well, makes mention of the same person.
CHAIRPERSON: Yes. Are they the only three applicants in respect of this incident?
MR SHAI: That will be correct, Mr Chair.
CHAIRPERSON: None of the other people who were charged or who were involved, applied for amnesty?
MR SHAI: Not that I know of, Mr Chair.
CHAIRPERSON: Yes. Has Mr Thabiso Tekane, has he received any correspondence from the Amnesty Committee with a reference number on that we could utilise or anything else from the Amnesty Committee?
MR SHAI: Nothing that was actually brought to our attention.
CHAIRPERSON: Yes, Ms Mtanga, if we have this application of Mr Thabiso Tekane, then obviously you know, it will have to be joined with the ones that are before us at this stage otherwise it will be a total unacceptable sort of waste of resources to hear two of them when there is another applicant in respect of the same incident?
MS MTANGA: Yes Chairperson, that can be done, but it will mean we must enquire from Cape Town and find out if they had received the amnesty application of Thabiso Tekane and then if that is so, it can be faxed to us and then we can join him in the application.
CHAIRPERSON: Yes, I would - we would certainly prefer to see that happening, perhaps you should take as much detail from Mr Shai as you can, and perhaps with the assistance of your client, Mr Shai, and see if you can locate a reference to that application and let us know, we are going to adjourn briefly so that you can get in touch with the office. Mr Shai, according to the records before us, there are two other people who appear to have been involved in this incident, one is another Tekane, the names that we have is Frank Matsibogo Tekane, that is the one and there is another person, who appear to have also been involved with this, it is Gudiso Moiketsi Hlongwane.
MR SHAI: Mr Chairman, when we received instructions from them, mention was made of the two other people involved in here and according to our instructions, we understand that this Hlongwane is already sentenced to two years and apparently has served the two year sentence that was imposed on him, and may I just approach the applicant just to find out as to what happened to the other Tekane.
CHAIRPERSON: It looks as if Mr Hlongwane has not applied for amnesty, he has already served his sentence? Would you find out about the other Tekane?
MR SHAI: (Microphone not on)
CHAIRPERSON: So Frank Tekane has also not bothered to apply for amnesty?
MR SHAI: No.
CHAIRPERSON: It is only the three, the two applicants and Thabiso Tekane that have applied for amnesty?
MR SHAI: That is correct Mr Chairman.
CHAIRPERSON: All right, look, we are going to stand down just briefly so that Ms Mtanga can just try and find out from the office whether they do indeed have this application and then we will see what we can do to join that.
MS MTANGA: Can I suggest Chairperson, that I be given five minutes to make that enquiry and should they have the copy, then we can just go ahead with the two people and then, while they fax that application.
CHAIRPERSON: We will adjourn briefly.
COMMITTEE ADJOURNS
CHAIRPERSON: Ms Mtanga, did you have an opportunity to get in touch with the office in Cape Town?
MS MTANGA: Yes Chairperson, I have spoken to Pumsa Mpoya who is the person in charge of our data, data capturing and she has advised us that this matter was attended to last week when Thabiso Tekane had made an enquiry and it was discovered that he is not on our data and therefore we don't have any reference number for his amnesty application, meaning we never received any application from him. Following to that, there was a follow up made to Grootvlei prison where he had applied from, and even Grootvlei confirmed that they had nothing on his record reflecting that he had applied. They didn't have any copy, as usually would be the case. We are not in possession of Mr Tekane's application.
CHAIRPERSON: Are they looking into the matter in any event, in spite of all that?
MS MTANGA: Yes Chairperson, they said they will try and do something and Mr Tekane also said he will file an affidavit explaining exactly how he went about applying and whom he gave his application to.
CHAIRPERSON: Yes. But I mean will our office just deal with the matter immediately so that we at least would have an idea when we come to the end of the applications of the two existing applicants, what the position is with the application of Mr Thabiso Tekane?
MS MTANGA: Well, Chairperson, the position that I agreed on with Pumsa is that there was nothing else that they could do.
CHAIRPERSON: Yes. Is Mr Tekane in custody in connection with this thing, with this matter, Mr Shai?
MR SHAI: He is in custody.
CHAIRPERSON: Is he serving a sentence?
MR SHAI: He is serving a sentence, yes.
CHAIRPERSON: Arising from this incident?
MR SHAI: Arising from the very same incident.
CHAIRPERSON: Yes. Perhaps, can our staff just note that we would like them just to stay in touch with the office, just see if there is anything else that they can find out about this matter.
MS MTANGA: Yes Chairperson, we can do that, thank you.
CHAIRPERSON: Yes, Mr Shai, for the moment, we will be dealing with the two applications that are physically before us at this stage and we will see what else we can learn from the endeavours of our office in regard to the matter of Mr Thabiso Tekane.
MR SHAI: Thank you.
CHAIRPERSON: To complete the record, Mr Richard, do you want to put yourself on record?
MR RICHARD: Thank you Chairperson, my surname is Richard, Richard, initial A. I appear for the surviving widow of the deceased.
CHAIRPERSON: Thank you Mr Richard. Ms Mtanga, you are the Leader of Evidence as already indicated earlier on the record, thank you.
MR RICHARD: Chairperson, a further point I would like to put into the record is that arising out of this incident, various prosecutions did arise which did result as is apparent from what has already been said in various convictions. The prosecution against the first applicant, did go on appeal to what was then the Appellate Division, now known as the Supreme Court of Appeal and there are accordingly two judgements, that of the Court a quo and that of the Appellate Court, neither of these documents are filed on record. It is further (indistinct) that there is a transcript of the evidence received at the trial, that also has not been made available. These documents are available in Johannesburg, regrettably the Attorney General's staff could not find the documents within the time period that I allowed them this morning. I will do my best without them, but I do believe that when it comes to cross-examining the applicants, I am handicapped. Thank you Chairperson.
CHAIRPERSON: Yes. We will see how we can deal with that when we come to the cross-examination. Thank you Mr Richard.
MS MTANGA: Chairperson, I would like to add something on what my learned friend has just commented on. I have made an enquiry from the analyst who was preparing this matter and he also battled in trying to get the court documents, he made several, wrote several letters to the Johannesburg Court and the contact person that he used, was a lady by the name of Martha who also said they could not find any records in the court, so that is how this matter ended from our side.
