CHAIRPERSON: This is the continuation of the amnesty hearings. The next matter is the applications of Obed Masina and others. Now Ms Mtanga, you must assist us. Mr Simelane is involved in one particular incident, the Shlube one, which was referred to in the previous application. Now what is the position here, because the other four applicants who are on the original papers before us, their applications of course relate to a whole number of incidents. How are we dealing with the matters, are we dealing with Shlube on its own, or how are we proceeding?
MS MTANGA: It's been agreed between myself and the attorneys for the applicants and Mr Koopedi, that the ...(indistinct) applicants will lead evidence of Mr Simelane and of Mr Masina, who are involved in the Shlube incident first and then we'll proceed with the rest of the incidents of the units afterwards.
CHAIRPERSON: Very well. Then for the record, we have before us the applications of Obed Masina, reference AM5886/97, Frans Ting-Ting Masango, AM7087/97, Neo Griffiths Potsane, AM7159/97, Joseph Elias Makhura, AM7695/97 and David Solomon Simelane, AM5305/97, specifically in respect of the Shlube incident.
For the record - Mr Berger, will you put yourself on record?
MR BERGER: Thank you, Chairperson, Honourable Members of the Committee. My name is D I Berger: B-E-R-G-E-R. I'm instructed in this matter by Mr K Lengane, of the firm Bell Dewar and Hall.
CHAIRPERSON: And on behalf of these four ...
MR BERGER: Chairperson, we act on behalf of Mr Masina, Masango, Potsane and Makhura.
CHAIRPERSON: Thank you, Mr Berger. What is the position of Mr Koopedi and Mr Simelane?
MS MTANGA: Mr Berger will lead the evidence of Mr Simelane.
CHAIRPERSON: Alright. And then for the interested parties, can you put yourselves on record?
MR BOOYSEN: Thank you, Mr Chairman. My name is Booysen, I'm from the firm ...(indistinct) and Booysen Attorneys and I'm acting on behalf of certain of the victims, in connection with the bombing in Silverton.
CHAIRPERSON: Thank you, Mr Booysen.
MR RAMMUTLA: Thank you, Mr Chairperson. My name is John Rammutla, from the firm ...(indistinct) Lamkhuzi and Mhlango. I'm acting on behalf of one of the victims, Mr Lukhele, whose husband was murdered in Mamelodi. Thank you, Mr Chairperson.
CHAIRPERSON: Thank you very much. Ms Mtanga, you're leading evidence.
Yes, Mr Berger, will you proceed?
MR BERGER: Thank you, Chairperson. Chairperson, as has already been indicated to you, what we've agreed to do is to lead the evidence surrounding the death of Mr Chaupe, also known as Shlube, first, because that incident happened in 1978, and then what we'll do is after - Mr Masina will only give evidence in relation to the death of Mr Chaupe and then Mr Simelane will also give evidence in relation to the death of Mr Chaupe and then after that we will then lead the evidence of the four applicants again, in relation to their work as a unit, because those incidents occurred much later, in 1986 in fact.
I might just say at the beginning, Chairperson, that the death of Mr Chaupe, formed part of several charges which were brought against the four people whom I represent and you'll know from the bundle of documents that has been prepared by the TRC, that from page 77 through to page 105, is the entire charge sheet. The matter was heard in the then Supreme Court and came before Judge de Klerk, sitting with two assessors, Dr Botha and Mr de Kock.
You will see also that charge 13, which is at page 80, was only in relation to then accused number 1, who was Mr Masina, and the particulars of the charge appear at page 87. It was a charge of murder relating to the death of Mr Orphan Chaupe on the 25th of June 1978, in Rockville, Soweto.
I can tell just a brief history of the trial. The four accused appeared before Judge de Klerk, and refused to plead to the charges, refused to recognise the jurisdiction of the Court, on the grounds that they were soldiers of Umkhonto weSizwe and that the Court as a civilian Court had no jurisdiction to try them. They dispensed with the services of counsel and were represented only by an attorney, Mr Peter Harris, who held a watching brief. He did not participate in the proceedings at all. And those were his instructions.
The trial proceeded and throughout the trial, after every witness had given evidence, the accused were asked whether they had anything to say or whether they had any questions to ask, and consistently throughout the trial they refused. They refused to participate, they refused to answer any questions. There was a trial within a trial, relating to confessions which had been extracted from them.
At the start of the trial, Mr Masina had made a statement saying that the confessions had been extracted under torture, but he didn't say anything further than that. Witness after witness was led in the trial within a trial, and the accused refused to participate at all. They were convicted on the basis of their confessions. Three of the accused were convicted of murder, amongst them the charge of murder of Mr Chaupe, that was Mr Masina, and the other incidents which we will come to. There was the murder of Sergeant Vuma. The first and second accused, Mr Masina and Mr Masango were convicted of that murder. And then there was the murder of Mr Lukhele and Mrs Dludlu. The first, second and third accused as they then were, Mr Masina, Mr Masango and Mr Potsane, were convicted of those murders and the attempted murder of Mrs Lukhele.
All four of the accused, including Mr Makhura, were convicted of planting the bomb in Silverton, and they were convicted thereof attempted murder because no-one was killed in that incident. They were also convicted of damage to property.
There's also an incident of planting a landmine Soshanguve, and all four of them were convicted of that charge as well. There is one incident which we will come to later, which is the planting of a landmine in Mamelodi, for which they seek amnesty, but for which they were never charged.
At the end of the case, on the merits, the judge then moved to the question of extenuating circumstances and he informed the accused that the onus was on them to establish extenuating circumstances and if they failed to lead any evidence and establish extenuating circumstances, there was a distinct possibility that they would be sentenced to death, because then the imposition of the death would be mandatory. They still refused to participate and they still maintained their position that they were soldiers of Umkhonto weSizwe, and that they were not going to participate in the proceedings at all.
At that point their families became very concerned for their welfare and instructed counsel - it was an Adv Kuny and Adv Revelas, to appear and to lead evidence in, to establish extenuating circumstances. The accused said "our families can do what they feel they must do, but we are not participating". The judge allowed the families to lead evidence in extenuation and one of the witnesses called was Prof Bundy, the present vice chancellor of Wits University, and he needed to consult with the accused and they said "well we can't consult with you because we are not participating in the proceedings".
At the end of the evidence in extenuation, the Court was split. The judge - even though the accused had not participated, the judge found extenuating circumstances. The two assessors however said there are no extenuating circumstances. And because a question of extenuating circumstances was a question of fact, not of law, the judge was overruled and he was bound and did impose the death sentence on Mr Masina, Mr Masango and Mr Potsane. Mr Makhura was sentenced to 25 years in prison, as were Mr Masina, Masango and Potsane, in relation to the other incidents, including the Silverton bombing. All the sentences were to run concurrently.
After they'd been sentenced to death, my clients persisted with their refusal to participate in the South African legal system, on the same grounds that they were soldiers of Umkhonto weSizwe, and were not prepared to appeal against the imposition of the death sentence. And it was only after an instruction came from Lusaka, instructing them to appeal, that they actually appealed. The appeal went to the Appellate Division and the decision there is reported as State vs Masina & Others 1990 (4) SA, starting at page 709, judgment of the Appellate Division. During the interval being sentenced to death, which incidentally was on the 27th of April 1989, and the hearing of the matter in the Appellate Division, the law was changed, giving an automatic right of appeal and changing the focus of death penalty cases from whether there was extenuating circumstances to whether there was any mitigation and giving the Court a wider and broader discretion as regard the imposition of the death penalty.
What happened then was that the Appellate Division set aside the death sentences and imposed a term of imprisonment of 25 years, to run concurrently with the other sentences. So after that judgment all four, Mr Masina, Masango, Potsane and Makhura were serving a term of imprisonment of 25 years. They were subsequently released in terms of the deals that were struck between the ANC and the then Government of South Africa.
I might add, after a hunger strike of 38 days, when they lost approximately 20% of their body weight, finally they were released. So they have been charged, convicted, sentenced and released and they now come and seek amnesty for those offences as well as for one offence for which they were never charged. Effectively the purpose of the amnesty applications is to set out the truth, the whole truth and ask this Committee to grant them amnesty so that their records can finally be cleared.
Chairperson, with your leave we will now begin with the evidence of Mr Masina, on the Shlube incident.
CHAIRPERSON: Yes, or Orphan Chaupe.
MR BERGER: Yes.
CHAIRPERSON: And this relates only to Mr Masina and to Mr Simelane?
MR BERGER: That is correct.
CHAIRPERSON: Very well. Could you please stand and give us your full names please.
JABU OBED MASINA: (sworn states)
CHAIRPERSON: Thank you, please sit down. Mr Berger?
EXAMINATION BY MR BERGER: Thank you, Chairperson.
Mr Masina, is it correct that you were born on the 26th of December 1950?
MR MASINA: That is correct.
MR BERGER: And you were born in Rockville, Soweto, is that correct?
MR MASINA: That is correct.
MR BERGER: When was it that you left South Africa?
MR MASINA: I left 1977, around December, if I still remember very well.
MR BERGER: Very briefly, could you tell the Committee what your reasons were for leaving the country.
MR MASINA: What happened was that I left school, I think it was in 1969, because my family did not the financial capacity to take me through school, and I went to work for eight years at a company in Selrose, but I spent the other three years working at CNA in Elandsfontein ...(intervention)
MR BERGER: Mr Masina, can I just ask you to speak a lot slower because your evidence needs to be interpreted and the Committee needs to write down your evidence.
MR MASINA: As I was working it happened that - it was on a Friday, I'd just been paid, I got robbed by thugs and they took all the wages that I had and they also stabbed me on the arm, injuring me. That led me into deciding to go back to school.
I went back to school even though I had passed Form 1, I went back to the same class because I did not have proof that I had completed this standard. The only thing that I had was my standard six certificate with no proof for my Form 1 class which I had passed.
MR BERGER: You returned to school in 1974, is that correct?
MR MASINA: That is correct.
MR BERGER: You remained there until 1977.
MR MASINA: That is correct.
MR BERGER: Why did you decide to leave after now being back at school for three years?
MR MASINA: I was driven into leaving because I saw no future in South Africa. I tried to work, I got injured and I decided to go back to school to improve myself to get a better job now that I had my arm injured, but then this 1976 thing started on the 16th of June, so that we were not able to sit for our exams. We did not sit for our exams and I repeated my Form 3, because I was doing my Form 3 in 1976.
MR BERGER: Mr Masina, were you doing Form 3 in Soweto in 1976, when the riots began?
MR MASINA: That is correct, I was studying at Sinownwe(?) Junior Secondary School.
MR BERGER: So as a result of that you had to repeat Form 3, in 1977?
MR MASINA: That is correct.
MR BERGER: At that stage, were you politically active at all?
MR MASINA: No, I was not, I knew nothing about politics.
MR BERGER: What happened in 1977, that made you leave?
MR MASINA: I happened to meet with one of the ANC people, his name was Vincent Simelane. He told me that if I wanted to go and study overseas he would facilitate that and he said I should not tell anyone, he make means that I should leave and study overseas.
MR BERGER: Did it happen then that you left the country, as a result of your conversation with Mr Selane?
MR MASINA: Yes, that is correct, I left.
MR BERGER: And your purpose then was to go and further your studies?
MR MASINA: That is correct, I left with an intention of studying, but I when I arrived in Swaziland we crossed the border into Swaziland. On that very same evening in Swaziland, we were supposed to cross the border yet again into Mozambique.
On arrival in Mozambique I met with comrade Solly Simelane, the following day of our arrival in Mozambique. I got to know him because he stayed in the same street as myself at home. We then conversed and I indicated to him that I wanted to further my studies and he committed to ...(intervention)
MR BERGER: Mr Simelane was also from Rockville?
MR MASINA: Yes, he came from Rockville.
MR BERGER: But he had left the country some time before you left the country, is that correct?
MR MASINA: Yes, he had left the country earlier.
MR BERGER: Did Mr Simelane make arrangements for you to study further?
MR MASINA: Yes, he tried. After I had spoken to him we came to an agreement that he would facilitate, but I got a surprise. When he came back the following day I actually told him that I am no longer to continue with my education, but instead to train as an MK member. The reason being that there was an evening, I cannot remember whether it was the following evening or not, I saw one comrade who was guarding in Maputo. He was sitting under a tree, but I could see that there was something next to him as he was sitting under the tree. This seemed like a firearm to me and this boy tried to chase me away because I was not supposed to be close to him.
I managed to speak to him and asked him about this stick, which I eventually discovered was an MK, and he explained to me about the soldiers etc.
MR BERGER: Mr Masina, did you say that the stick was an MK?
MR MASINA: AK.
MR BERGER: AK, yes.
INTERPRETER: Thank you, Chairperson.
MR MASINA: Basically that is how I changed my mind so that I joined the MK instead of going to school. And comrade Solly then told me that he was going to take me to a crash course.
Before that actually, he asked me if knew any police who stayed in Soweto, bad police. I explained to him that yes, there are such police and I gave him the names of such police. And he said there is a crash course which he wanted to take me through, after which I would have to go back home to eliminate these police. Indeed that was the case. I went through the crash. I attended this crash course at Funda in Angola. I think it could have taken three months. In was in 1978, in April or thereabouts. Then I came back to South Africa.
MR BERGER: Mr Masina, are you saying that you finished the course in about April of 1978?
MR MASINA: That is correct.
MR BERGER: And that was the course at Funda?
MR MASINA: That is correct. The course lasted for three months. It started in January, February, March. It ended in March, but I came to South Africa in April.
MR BERGER: Very briefly, could you tell the Committee what you learnt during this course?
MR MASINA: What I learnt during the crash course was to use an AK and pistol called TT, a Makarov. I learnt about war basically. I also learnt about politics, as well as military combat work, MCW.
MR BERGER: When you say you learnt about politics, could you elaborate a little on that? What were you taught, what areas did it cover?
MR MASINA: They were teaching us that an MK is not an organisation, or I should I say the ANC and the MK are not an organisation or organisations that kill innocent people or just kill people without reason. They explained that people should not go about killing people for no apparent reasons.
I would say they removed the haze in my eyes, which made me understand our position in relation to the boers and I got to understand why I was not able to continue with my studies. Because the people or the students were fighting in 1976, because they did not want to receive education in Afrikaans. I learnt about all those things. And basically that is that.
MR BERGER: You also mentioned, although it wasn't interpreted, that there were discussions about apartheid.
MR MASINA: Yes, we did.
MR BERGER: So would it be correct to say that the history of South Africa was also covered during this course?
MR MASINA: Yes, we did.
MR BERGER: Then you returned to Mozambique, and did you meet again with Mr Simelane?
MR MASINA: Yes, I met with him again.
MR BERGER: And what happened then?
MR MASINA: He told me that he had already made preparations for me to come back to South Africa to kill the one police person who was very troublesome, and he said that we were going to meet in Swaziland and we were going to meet with one now deceased, Dan, a comrade who was going to be my commander from Swaziland.
MR BERGER: Was the name of the policeman discussed, the one that you were going to go back to South Africa for?
MR MASINA: Yes, we did discuss the name in length, because he was known. He was notorious for shooting people and students and he told me that this person was a political target. If we could hit this Shlube, the ANC and Umkhonto weSizwe would be very delighted because what we were taught was that we should defend the people of South Africa, because Shlube was a person who was harassing the people of South Africa and if we hit him, the ANC and the MK would be pleased.
MR BERGER: Did you know Shlube, yourself?
MR MASINA: Yes, that is correct.
MR BERGER: And did you know about his reputation as a notorious policeman?
MR MASINA: Yes, I knew that, even though I cannot explain, but what I remember Shlube doing was that when we were still at school in 1976, there was a march for students, we were marching to his house with an intention of burning it.
One of the students was carrying a petrol bomb and just when this petrol bomb was just about to be thrown to his house, it hit the brick wall next to the burglar-proof and it fell outside the house instead of inside and we fled.
MR BERGER: You were then sent by Mr Simelane back into South Africa to eliminate Shlube, is that right?
MR MASINA: That is correct.
MR BERGER: Were you armed?
MR MASINA: Yes, I was armed.
MR BERGER: With what?
MR MASINA: The very same - we used to call this firearm "tete", it is actually TT, it is a Russian-made firearm.
MR BERGER: How was it possible for you to get back into the country, what arrangements were made?
MR MASINA: Solly introduced me to a comrade in Swaziland and I was given this Swaziland passport and this tete, which I then tied around my leg and I went through the Swaziland border. When you are in Swaziland, coming into the Republic of South Africa, they give you something like 14 days, so that I was given 14 to go back to Swaziland, because I was using a Swaziland passport. That is how I came back into the country.
MR BERGER: And did you return to Rockville?
MR MASINA: Yes, I went back to Rockville, my home. And the reason why I went back to Rockville was that I had a legend(?). I had relatives who stayed in Benoni. So people who were asking my whereabouts, I would tell them that I was with my relatives in Benoni.
MR BERGER: Did you say that you had a cover-story?
MR MASINA: That is correct.
MR BERGER: Did you then spend or start looking for Shlube, to kill him?
MR MASINA: That is correct.
MR BERGER: Were you successful?
MR MASINA: No, I did not manage to get hold of him in the 14 days that I had. I hunted him down until the end of the 14 days, and one of the boys with whom we were growing up indicated to me that the person knows that he is being sought by the MK, so he doesn't stay in one place. I sought him, did not get him, until I went back to Swaziland, where I reported to Dan.
I cannot recall whether comrade Solly was in Mozambique or where at the time, I did not see him. I reported to Dan, indicating to him that I did not manage to get hold of Shlube. He then got me a place to sleep over, saying that I would spend some time there because he wanted to speak to Solly.
After several days, it could have been three days, Solly then came. We had a discussion about my trip, indicated to him that I did not succeed in getting hold of this person and he asked if I wanted to go back to South Africa and I said yes. He said other arrangements would have to be made. Indeed I came back to South Africa. On that every same occasion I was give 14 days.
MR BERGER: Mr Masina, what did you understand was the purpose of Mr Simelane's question to you whether you wanted to go back to South Africa?
MR MASINA: According to my understanding I think he could have thought that I was afraid of shooting Shlube. In actual fact I did not see him. I think he could have thought that I was scared of shooting Shlube. I did not see him, that is why I did not shoot him.
MR BERGER: And when you said that you were prepared to go back into South Africa, what was your understanding of why you were going back into South Africa?
MR MASINA: I understood it to mean that indeed I would have to go back to South Africa, seek Shlube and shoot him. That is how I understood it, that it was very important for me to get hold of him so that I can shoot him.
ADV DE JAGER: Mr Berger, I think we'll accept that he received instructions to shoot Shlube, he didn't manage to do it on the first occasion. We've got the background and if you could try and get to the actual ...
MR BERGER: Thank you, Adv de Jager.
Having received now a second instruction to go back to South Africa to kill Shlube, were you successful this time round?
MR MASINA: Yes, the second time round I was a success, but though on the last day within the 14 days that I had, what happened on that day was that I knew he was travelling in a brown Ford Grenada. I saw this vehicle because I was monitoring the movements in his house often times. I saw this vehicle driving past the streets and it stopped at a corner where two girls alighted, after which it went to Shlube's home and then I saw him and confirmed it was him through the registration of the car as well.
I waited for him. You see it was this main taxi route in Rockville. Shlube came back to pick up these very same girls, but when I was supposed to draw my firearms so as to shoot him, a police vehicle came. You see the area is nearer the Moroko Police Station. I did not shoot him there and concluded that he would come back.
I went to a school called Ndondo. This school is opposite his home. I waited for him there and at midnight I was beginning to dose off myself, I heard this vehicle approaching and stop outside his house. He got out of his car to open the gate. I came out from a direction so as not for him to see me and approached him from the direction that would enable him to see me as I came. When he saw me he got a shock. He produced his firearm and on doing so - I was a little distance away from him, I pretended to be drunk because I wanted to get closer to him and he asked if I was alright and I said yes I am alright. He put back his firearm, put it back into the holster. I was close to him at the time, I drew mine and fired.
And on attempting the second shot the firearm jammed. I tried to cock it, I failed. At that time Shlube was now trying to draw him firearm and when he was just about to shoot I jumped to the other side of this vehicle, where I took cover and I tried to fix the firearm that I had. I failed and realised that this one is now going to shoot me. Indeed he fired a shot. I left from my cover and started fleeing. He fired, it could have been eight times, but kept missing because I was now trained in the guerrilla warfare. I zigzagged my way through home.
MR BERGER: Mr Masina, can you recall where on his body you shot him?
MR MASINA: If I am not mistaken I shot him on the side of his right arm, because he was not facing me directly, he was actually going towards his vehicle and he was coming from the side.
MR BERGER: You're indicating somewhere on the right-hand side of your chest near your right arm, would that be correct?
MR MASINA: Yes, that is correct.
MR BERGER: You ran away from the scene and then ultimately you left the country, is that correct?
MR MASINA: No. I indicated earlier on that I found Shlube on the last day of the days that I had, the days that I had been given by the Swaziland Government. I then did not go back through the border gate because I feared for questioning at the border gate. It was then known that the police were busy during those days at the border and in the township, so on that day I did not go to the border gate.
I then - I'm not sure whether the person that I later on met was working with the ANC or not, but he was working with Vincent Selane, who was the agent recruiter. And this Vincent Selane had already skipped the country at the time. He too helped me for the second time, to go back to Swaziland for the second time. I came though or I went back through the Botswana border.
MR BERGER: Eventually you returned to Swaziland, is that correct?
MR MASINA: That is correct. That was after the chief representative of Botswana had made arrangements for me because I told him who I was and that I was supposed to give a report in Maputo. I was supposed to report to Solly in Maputo, so that he made those necessary arrangements for me to leave Botswana to go and report.
MR BERGER: So from South Africa you went to Botswana, from Botswana you went to Swaziland?
MR MASINA: No, from Botswana this time I flew to Mozambique, where I reported.
MR BERGER: And who did you report to?
MR MASINA: To Solly.
MR BERGER: And you told him that you had successfully completed the instruction which he had given you.
MR MASINA: That is correct, but he had already received that information. He could have received it from the newspapers of the news. He was so excited. The only thing that I did was to give him the details of how I shot him.
MR BERGER: Your commander at that stage, the person you referred to as Dan, is it correct that when you returned to Maputo you received news that Dan had died?
MR MASINA: Yes, that is correct. I learnt that he was arrested by the Swaziland Police. But then there was no certainty as to whether he was killed by the Swaziland Police, because it also seemed like he was asthmatic. I don't know whether he died as a result thereof.
MR BERGER: And was a decision taken that you were going to take over - this is now after you had reported the successful completion of your mission, that you were going to take over from Dan?
MR MASINA: That is correct.
MR BERGER: And who told you that you were going to take over as commander from Dan?
MR MASINA: It was Solly.
MR BERGER: Chairperson, that would conclude the evidence relating to the death of Mr Chaupe.
CHAIRPERSON: Yes, thank you, Mr Berger. Gentlemen, I assume that you won't have any questions in regard to this incident?
MR BOOYSEN: None thank you, Mr Chairman.
NO QUESTIONS BY MR BOOYSEN
MR RAMMUTLA: No questions, Mr Chairman.
NO QUESTIONS BY MR RAMMUTLA
CHAIRPERSON: Ms Mtanga, have you got any questions in regard to this incident?
MS MTANGA: I have no questions, Chairperson. I would also like to state that the Chaupe family was notified, but they have not attended the hearing and they did acknowledge receipt of the notice. Thank you.
NO QUESTIONS BY MS MTANGA
CHAIRPERSON: Thank you, Ms Mtanga. I assume you wouldn't have anything else, Mr Berger.
MR BERGER: No, I have nothing further, thank you.
CHAIRPERSON: Yes. Mr Masina, you are excused in respect of this particular incident.
WITNESS EXCUSED
