CHAIRPERSON: Who is next, Mr Shai?
MR SHAI: Mr Thabiso, Thabiso Tekane.
CHAIRPERSON: Can he come forward please. Please remain standing and give your full names.
THABISO TEKANE: (sworn states)
CHAIRPERSON: Thank you, please sit down. Mr Shai?
EXAMINATION BY MR SHAI: Mr Shai says that he's going to proceed in English.
Mr Tekane, you are the younger brother to Nathaniel Eric Tekane, is that correct?
MR SHAI: And I presume that you were also born in Rockville, you stayed in Rockville during the time of the incident.
MR TEKANE: Yes, that's right.
MR SHAI: How far have you studied?
MR TEKANE: Until matric, although I did not complete it.
MR SHAI: Now I'm just going through posed questions relating to aspects that were alluded to and that relate to you. Now it's said by Nathaniel and Mr Mayisela, that you were at a stage a commander of the unit under which they carried out their duties, correct?
MR TEKANE: That's correct, yes.
MR SHAI: Who were you reporting to?
MR TEKANE: To comrade Magret Stofile.
MR SHAI: Were you trained in some way?
MR TEKANE: Yes, I did receive a crash course, similar to the one my brother had in Lesotho, and later when I was, when I joined this unit of Magret Stofile, I again received a crash course. MR SHAI: Were you at that stage a member of any political organisation or just a mere supporter?
MR TEKANE: During the training in Lesotho, I was a mere supporter and I think I was being recruited. And during the other training session I was a member.
MR SHAI: Now just one aspect that causes confusion on the shooting incident. We heard evidence that you are the first person to actually approach the police officer, is that correct?
MR TEKANE: That's correct, yes.
MR SHAI: Now just briefly tell us what happened behind the wall when you so approached him.
MR TEKANE: As I arrived at the scene, unfortunately he saw me when I emerged from behind the wall and that time he was getting into the car and he made a move that could easily be reaching for a gun or taking cover. I panicked at that time and assumed that he was reaching for a gun because the lights were in my direction and I had a gun in my hand and I fired a shot in his direction. At the same time passing the door to take cover behind the back of the truck.
MR SHAI: As a commander of the unit, did you intend to kill the policeman, initially?
MR TEKANE: No.
MR SHAI: No further questions.
NO FURTHER QUESTIONS BY MR SHAI
CHAIRPERSON: Yes, thank you, Mr Shai. Any questions, Mr Richard?
CROSS-EXAMINATION BY MR RICHARD: Thank you, Chairperson.
From your brother Nathaniel's evidence I gather you are serving a sentence for the murder of this policeman, is that correct.
MR TEKANE: Yes, that's correct.
MR RICHARD: And how long is that sentence effectively?
MR TEKANE: 39 years.
MR RICHARD: 39 years. When were you sentenced?
MR TEKANE: In June 1998.
MR RICHARD: June last year.
MR TEKANE: Yes.
MR RICHARD: Now when were you arrested?
MR TEKANE: In 1995.
MR RICHARD: Now on the 13th of March 1997, you made a statement to the South African Police, do you remember the incident?
MR TEKANE: Yes.
MR RICHARD: And if I refer to Exhibit C, paragraph 11.2, 11.1 and 2, there - do you understand Afrikaans or shall I translate?
MR TEKANE: Please translate.
MR RICHARD: And there at paragraph 1 of paragraph 11, it says
"Do you expect any benefit in return for making a statement?"
And your answer was:
"Yes"
And then it says:
"If yes, what benefit?"
And your answer was:
"So that my punishment would be lighter and I will get amnesty. I intend making application therefore."
Do you recall that?
MR TEKANE: Yes.
MR RICHARD: Now why did you make the statement that you intended to apply for amnesty?
MR TEKANE: It was my intention and that question kind of surprised me and after I'd said "yes", I had to give a reason, but most of the things that I said in that statement and I contested it in Court.
MR RICHARD: Now I understand that you did file an application for amnesty.
MR TEKANE: Yes, I did.
MR RICHARD: When did you complete the forms?
MR TEKANE: I was in Grootvlei Prison.
MR RICHARD: When was that?
MR TEKANE: Shortly after that incident, towards to the end of the month of March 1997.
MR RICHARD: End of March 1997?
MR TEKANE: Yes.
MR RICHARD: Now at that stage in 1997, were you legally represented?
MR TEKANE: Yes.
MR RICHARD: By who?
MR TEKANE: I'm sorry, I've forgotten his name, but I had an attorney.
MR RICHARD: I might be able to assist you. Was it not - and I might be wrong, I might have misunderstood it, Mohammed Randera?
MR TEKANE: Yes, he was my lawyer at that stage, but not actively. He was waiting for me to be transferred over to Johannesburg, so that we could commence the case for which he was representing me.
MR RICHARD: Now who advised you of the nature and defect of the amnesty applications and how they worked?
MR TEKANE: Well I did get in touch with my comrades from the movement. I was reluctant to apply to some extent, that is why I applied so late, just before the deadline and they advised me to apply.
MR RICHARD: Now before your trial, did you tell your legal advisors, legal representatives, that you had made an application?
MR TEKANE: Yes.
MR RICHARD: And what was their advice to you? If that's a privileged question you don't have to answer it, but I'm inviting you to and also saying if you choose not to, you don't have to.
MR TEKANE: I'm sorry, please repeat.
MR RICHARD: My question, which you do not have to answer is, what advice did you legal practitioners give you when you told them that you had applied for amnesty.
MR TEKANE: I don't remember if they gave any advice.
MR RICHARD: Was it ever said to you that you had applied for amnesty, something else might happen in your criminal trial?
MR TEKANE: Something like?
MR RICHARD: The criminal trial might not take place until after your amnesty hearing had been heard.
MR TEKANE: I know that it happened in some cases, but in our case they said it would not.
MR RICHARD: Was a reason given?
MR TEKANE: No, not that I remember.
MR RICHARD: However, as at the time that you made this statement you understood what an application for amnesty was and intended to bring an amnesty application?
MR TEKANE: Yes, although not clearly.
MR RICHARD: Now was it explained to you that if you made a full and complete disclosure and could satisfy the requirements of the Act, that there was an order, that there was a bona fide political objective and so on, you could tell the truth, you were free?
CHAIRPERSON: Mr Richard, to whom?
MR RICHARD: Did anyone explain that to you?
CHAIRPERSON: No, no. If he makes that disclosure to whom?
MR RICHARD: In his amnesty application.
CHAIRPERSON: To whom, to the Amnesty Committee?
MR RICHARD: Yes.
CHAIRPERSON: Yes, put it to him. Make it clear, please.
MR RICHARD: Thank you, Chairperson, I apologise.
Were you told that if you made disclosure to an Amnesty Committee, and your application and disclosure satisfied the requirements of the Act, you could feel confident to tell the truth, to an Amnesty Committee?
MR TEKANE: Yes, although I wasn't told by anyone in particular, but it is something that I knew.
MR RICHARD: So the inference then is that at the time you made the statement to the police on the 13th of March, you were confident that you could tell the truth?
MR TEKANE: Where was this?
MR RICHARD: To the police now.
MR TEKANE: Not to the police, no.
MR RICHARD: Then why did you make this statement to the police?
MR TEKANE: It's what they wanted.
MR RICHARD: Didn't they tell you you had a right to remain silent?
MR TEKANE: No.
MR RICHARD: Because at page 1 of the statement, paragraph 1, the question is
"Do you understand the warning and notwithstanding (at paragraph 2) you want to make a statement?"
Wasn't that explained to you?
MR TEKANE: What is that?
MR RICHARD: When a statement such as this is made to the police, as at '97 the Constitution had come into effect and had been in effect since '94, in fact for three years, and there's a procedure that they followed. The first is that you are warned ...(intervention)
MR SHAI: Objection, Mr Chairman. Mr Richard is actually inferring that the person who took the statement actually followed the correct procedure. We still have cases today - not testifying exactly from where I am, wherein the procedure is not followed. Unless he lays a basis for that as far as this specific statement is concerned.
CHAIRPERSON: Yes, perhaps Mr Richard, you should ask him what happened. If this is going to assist us in this application before us, if it is relevant for the moment. I'm assuming it is.
MR RICHARD: Thank you, Chairperson.
Were you warned that there was no obligation on you to make a statement before you made a statement?
MR TEKANE: No.
MR RICHARD: Very well. Now your relationship with the ANC, when did you first make contact with the ANC?
MR TEKANE: Well I could say I grew up in the ANC. My parents have always been supportive of the ANC, as far back as I can remember.
MR RICHARD: When were you firmly invited, first formally invited to join the ANC as a member?
MR TEKANE: In 1986.
MR RICHARD: Did you join in 1986?
MR TEKANE: I first joined the MK before I joined the ANC, and I joined and became a card-carrying member in 1992, I think. Yes, in 1986 I became an MK member.
ADV DE JAGER: In 1992, or when was this, 1993 when this happened, this incident, you were already a card-carrying member of the ANC?
MR TEKANE: Yes.
ADV DE JAGER: Thanks.
MR RICHARD: While you might have been a member of the MK in 1986, if I understood, where were you in 1986?
MR TEKANE: I was in Soweto.
MR RICHARD: And when were you in Lesotho?
MR TEKANE: Earlier in the '80's.
MR RICHARD: Was it before 1986, or after 1986?
MR TEKANE: Earlier, before.
MR RICHARD: Before. And there you received training from the ANC, from one or other of its wings.
MR TEKANE: Yes.
MR RICHARD: Which wing trained you?
MR TEKANE: Sorry?
MR RICHARD: Which - who trained you in Lesotho?
MR TEKANE: A man names Siphwe.
MR RICHARD: Siphwe Khumalo, if I remember correctly.
MR TEKANE: Yes.
MR RICHARD: And how long was that training for?
MR TEKANE: Well you could say a week or two.
MR RICHARD: So between 1986 and 1992, what did you do politically?
MR TEKANE: Well in the beginning, as in my brother's case, we used to carry literature from Lesotho, into the country.
ADV DE JAGER: Mr Richard, would it really be relevant what he was doing during the '80's? We're dealing with an incident in the '90's.
MR RICHARD: My question is leading as to whether at the time of the incident he believed that as an SDU member, not as an MK soldier, it was legitimate to attack a policeman.
ADV DE JAGER: Well suppose it wasn't legitimate, he as a member of a certain organisation attacked a member of the opposition, isn't that the only requirement of the Act?
MR RICHARD: He gave an order to his ...(intervention)
ADV DE JAGER: ...(indistinct)
MR RICHARD: Chairperson, I'll approach it completely differently. On a day, or the day before this particular incident, why did you believe it was permissible to attack that policeman?
MR TEKANE: Because the order had been given.
MR RICHARD: By who had the order been given?
MR TEKANE: It came from higher up, but I received it from Magret.
MR RICHARD: When had you received that order?
MR TEKANE: At the formation of the SDUs.
MR RICHARD: When was that?
MR TEKANE: It was have been 1990, or '91, early in the '90's. I'm not sure about the year.
MR RICHARD: When did you become the commander of this particular unit?
MR TEKANE: I don't remember exactly the date, but when comrade Molefe died the unit of which he was commander, was absolved by the unit which I was commanding at that time.
MR RICHARD: So what your relationship with Oupa Moreme?
MR TEKANE: Oupa Monareng.
MR RICHARD: Monareng, sorry.
MR TEKANE: Well he is my superior in the MK.
MR RICHARD: And who did he account to and report to?
MR TEKANE: I'm sorry?
MR RICHARD: Who did he account and report to?
MR TEKANE: Who did he report to?
MR RICHARD: Yes.
MR TEKANE: I do not know.
MR RICHARD: But he was your superior in the MK.
MR TEKANE: Yes.
MR RICHARD: What was the relationship between him and Magret Stofile?
MR TEKANE: As I took over Molefe's unit, he asked me how had I been operating before I met him and I told him I was operating under comrade Magret, that's how I sent my reports through. And I don't if he met comrade Magret and if so, how and where, but he told me to continue to report to her.
MR RICHARD: Now did you ever discuss the suspension of the armed struggle with anyone, be it Magret or Oupa?
MR TEKANE: No, not with anybody higher than me, but we discussed ...(indistinct).
MR RICHARD: You discussed it with who?
MR TEKANE: With my group.
MR RICHARD: And what did you understand the suspension of the armed struggle to mean to you and your group?
MR TEKANE: That a climate should be created for a negotiation.
MR RICHARD: Now when was this discussion within your group? Was it continuous, ongoing or just once or twice?
MR TEKANE: No, just once or twice.
MR RICHARD: And when was that?
MR TEKANE: At the time when we first heard about the suspension.
MR RICHARD: And when was that?
MR TEKANE: I don't remember clearly the year in which it was suspended.
MR RICHARD: Was it before you attacked the late Constable Sitege?
MR TEKANE: Yes, it was.
MR RICHARD: Now when you heard that the armed struggle had been suspended and you should create a climate consistent with negotiations, what did that mean to you, did it mean that you could continue attacking South African Police?
MR TEKANE: No.
MR RICHARD: So you agree then that after you had the communications that the armed struggle had been suspended, attacks against the South African Police were not encouraged or permitted? I'm asking what you meant by your "no".
MR TEKANE: An order was later given to disarm the police.
MR RICHARD: When was that order given?
MR TEKANE: At the formation of SDUs.
MR RICHARD: At the formation of the Self Defence Units, that was during 1990 or '91, if I understand.
MR TEKANE: Yes, but after the suspension of the armed struggle.
MR RICHARD: The suspension of the armed struggle first happened in 1990, but then some time later, were you aware that the late comrade Hani made a statement about the armed struggle? Were you aware that he had made a statement?
MS SHAI: Objection, Mr Chairman. I think the late Mr Hani made several statements. May my colleague be specific as to what statements he's referring to.
CHAIRPERSON: Yes. Mr Richard, are you disputing that there was an order to disarm policemen?
MR RICHARD: I'm not disputing that during 1990, there was such an order.
CHAIRPERSON: Yes.
MR RICHARD: I'm asking the witness whether he was aware of any other statements subsequent to that order.
CHAIRPERSON: Yes. Mr Tekane, are you aware of any other statements after you were ordered to disarm policemen? - contrary to that order.
MR TEKANE: No.
CHAIRPERSON: Thank you. Mr Richard?
MR RICHARD: So we then turn to the incident. When did you first plan to attack Constable Sitege, a week or two weeks before the incident?
MR TEKANE: About a week before.
MR RICHARD: Then the evidence is that you decided to keep him under observation, is that not correct?
MR TEKANE: Yes.
MR RICHARD: Who conducted the observation, who did the reconnaissance?
MR TEKANE: Almost all of us had a chance to reconnoitre.
MR RICHARD: Now you've been sitting in the room, Mrs Sitege has filed an affidavit with the South African Police, saying something to the effect that her husband's ritual, routine in the morning was to wake at 4 o'clock and leave for work at about 5 o'clock, and on this particular day he left at four thirty and came back at five. Do you have any reason to dispute her statement?
MR TEKANE: On that day that I did the reconnaissance it was not my observation. The truck had been in the yard since the night before and on the day of the attack we found the truck idling in the yard. I cannot say if he, it had just arrived or if it had been there since the night before.
MR RICHARD: Now during the hour between 4 o'clock and 5 o'clock, that's the incident at the Terminus Cafe and the incident at the late Constable Sitege's house, where were you?
MR TEKANE: Sorry?
MR RICHARD: The attack on, or the incident with the Albany Bakery delivery van at 4a.m. and then the attack on Constable Sitege, at about 5a.m., there was about an hour in-between the two, is that not correct? - from what we've heard.
MR TEKANE: Yes.
MR RICHARD: Where were you for that hour?
MR TEKANE: During that hour?
MR RICHARD: Mm.
MR TEKANE: Somewhere between the two places. Now far apart are the two places?
MR TEKANE: Not so far apart.
MR RICHARD: Approximately 150 metres, or more, or less?
MR TEKANE: Yes, it could be more.
MR RICHARD: How much more?
MR TEKANE: A little more.
MR RICHARD: 200 metres, half a kilometre?
MR TEKANE: Maybe a little less than 200.
MR RICHARD: So that means, for that entire hour, could you see - and I put it to you, you could see, the Sitege household.
MR TEKANE: No, no. It might be visible maybe if you look at it from above, but then there are houses in-between, it cannot be seen from quite far.
MR RICHARD: So for that hour, where precisely did you hide or where were you for that hour?
MR TEKANE: For the hour?
MR RICHARD: Yes.
MR TEKANE: I don't if it's an hour that I spent from when I left the room, when we all left the room at the shop, until we reached the house of Mr Sitege.
MR RICHARD: Let me put it another way. Were you present at, or near the Terminus Cafe in Rockville, when your older brother met, shot at, according to his evidence, the bread delivery van?
MR TEKANE: Yes, although not with him.
MR RICHARD: You were there.
MR TEKANE: Yes, I was.
MR RICHARD: That, according to what we've heard, happened at 4a.m., correct, or not? Was it later or earlier?
MR TEKANE: Well I didn't have a watch on, I don't know exactly if it was four.
MR RICHARD: Now from the time of that incident to the time of the beginning of the incident at Constable Sitege's house, where were you? Whether it was an hour more or less, I don't mind. Where were you?
MR TEKANE: Well from the time I left the room at the shop, we were disturbed by this truck and as we've heard evidence of the other witnesses, there was a shooting and a delay, then we left for our planned destination. We went to an observation point where we saw the truck reversing out, then we rushed to the house next door, to Mr Sitege's. And I guess that's where I was during the hour, if it was an hour.
MR RICHARD: As I understand it then, you went from the scene outside the Terminus Cafe, to Constable Sitege's house and as you arrived at Constable Sitege's house you saw the truck reversing out, is that what you're saying?
MR TEKANE: Yes, it reversed while we were there.
MR RICHARD: Now my proposition is that Constable Sitege's house is less than quarter of a kilometre away from the Terminus Cafe. There's an hour between the two incidents, according to what we've heard, or thereabouts, I'm not saying precisely an hour. To walk a couple of hundred metres doesn't take an hour, there's time unaccounted for, or the time periods are wrong.
MR TEKANE: I don't know if the people who gave these times are making estimates or are being accurate, but I suspect that they are estimating.
CHAIRPERSON: And besides, Mr Richard, how does it help us to decide this application.
MR RICHARD: So you saw the truck - now we go to the incident. Before the truck reversed out, did you see Sitege's house?
MR TEKANE: Yes.
MR RICHARD: And what was happening before, was the truck there or not?
MR TEKANE: It was there.
MR RICHARD: It was idling. Now did you see Sitege come out of the front door, or the back door? You were at an observation point.
MR TEKANE: Yes.
MR RICHARD: And what did he do?
MR TEKANE: He reversed the car.
MR RICHARD: My question is, he came out of his house, did you see him come out of his house?
MR TEKANE: No.
MR RICHARD: When did you first see him?
MR TEKANE: When I accosted him.
MR RICHARD: So that means you didn't see him at any time between him leaving the house and get into the truck, you first saw him at the house, at the truck, sorry.
MR TEKANE: Yes, when he was climbing into the truck.
MR RICHARD: And where were you when you saw him climbing into the truck?
MR TEKANE: I was next to him.
MR RICHARD: How far away, one or two metres?
MR TEKANE: Maybe 1½, although we were separated by the car door.
MR RICHARD: And what did you do?
MR TEKANE: I pointed the firearm in his direction and shouted to him to freeze.
MR RICHARD: And what did he do?
MR TEKANE: He went further into the vehicle and sort of lied on the seat.
MR RICHARD: And what did you do in response?
MR TEKANE: I fired a shot in his direction.
MR RICHARD: Now where were the others in your group?
MR TEKANE: I don't know at that time, but it was only a matter of seconds before they appeared, although I was under the impression that they were following me. They were at my heels as we had planned.
MR RICHARD: Now we know that the truck was idling and Constable Sitege went into the cab of the truck. How long did it take him to get the truck into motion?
MR TEKANE: In no time at all it was, started moving.
MR RICHARD: And what did you and your group do then? A shot had already been fired.
MR TEKANE: Well they appeared and fired. At that time I was behind the truck, so I shot at the wheels, trying to bring the truck to a stop.
MR RICHARD: Now your evidence is that you didn't set out with a plan to murder the policeman, you set out with the intention of robbing the firearm, is that correct?
MR TEKANE: Yes.
MR RICHARD: Now I also understand that there were five of you in your group.
MR TEKANE: Yes.
MR RICHARD: Why isn't it that you were not in place before Constable Sitege got into the truck, or got near the truck door?
MR TEKANE: We were delayed by the incident of the bakery.
MR RICHARD: No further questions.
NO FURTHER QUESTIONS BY MR RICHARD
CHAIRPERSON: Thank you, Mr Richard. Ms Mtanga, any questions?
MS MTANGA: No questions, Chairperson.
NO QUESTIONS BY MS MTANGA
ADV DE JAGER: Have you read this statement that you've made to the magistrate?
MR TEKANE: Yes.
ADV DE JAGER: I don't want to go through this statement, but could they show it to you, your legal representative put it before you and could you tell me what in this statement isn't the truth.
MR SHAI: May I just put it to Mr Chairman, that I actually translated this statement to him, so I'll have to go through it again with him, so that I should tell him this is what ...
ADV DE JAGER: Your legal representative has gone through this statement with you, what in that statement isn't correct?
MR TEKANE: There is a part where I say: "We decided to rob the bakery firm".
ADV DE JAGER: Yes. That is not correct?
MR TEKANE: No, that is not correct.
ADV DE JAGER: And you're not applying for amnesty for a robbery on the bakery van, or an attempted robbery on the bakery van?
MR TEKANE: I'm sorry?
MR SHAI: ...(indistinct) get some clarity. I think the Committee's not listening to the amnesty application for this witness.
ADV DE JAGER: Yes, but he told us he's applied for amnesty. Did you apply for amnesty for robbing, or an attempt to rob the bakery van?
MR TEKANE: No.
ADV DE JAGER: Right. Now in this statement ...(intervention)
MR TEKANE: Although I was convicted for it.
ADV DE JAGER: Ja. So you're not applying for that. Right. What else in this statement is not correct?
MR TEKANE: May I have a look at the statement?
ADV DE JAGER: Okay, I'll help you. In a paragraph you say: "We rushed at the policeman", you and Mogatle ran next to each other, Mogatle was on your right-hand side. Is that correct, or is it wrong?
MR TEKANE: No, that is wrong.
ADV DE JAGER: Where was Mogatle?
MR TEKANE: As I rushed forward I was under the impression that he was following me, he was at my heels.
ADV DE JAGER: At your heels.
MR TEKANE: Yes, but then I later heard that he was left behind.
ADV DE JAGER: And you then continued to say
"I went to the driver's side of the vehicle and Mogatle to the front of the vehicle".
Is that correct?
MR TEKANE: No, that's not correct.
ADV DE JAGER: Then you continue and ...(intervention)
MR TEKANE: Or part of it is correct, because I did go to the right-hand side of the vehicle, the other side.
ADV DE JAGER: Yes. Then you said, when the policeman saw you he put his vehicle into movement before he closed the door.
MR TEKANE: That is also not precise, but close.
ADV DE JAGER: Then you say
"We approached the vehicle from the front"
Using the word "we" approached the vehicle from the front.
"The headlights were on and he could see us."
MR TEKANE: Yes, but only me.
ADV DE JAGER: Only you.
MR TEKANE: As I later learnt.
ADV DE JAGER: Then you say
I and Mogatle fired shots at the vehicle."
MR TEKANE: I fired a shot and he fired after me.
ADV DE JAGER: How many shots round about were fired?
MR TEKANE: Did I fire, or were fired?
ADV DE JAGER: Were fired at the vehicle, as far as you, or can't you say?
MR TEKANE: I can't say for sure, but I fired, I myself fired several shots.
ADV DE JAGER: Because according to the post-mortem there was about, between 10 and 16 bullets wounds in the body.
MR TEKANE: I fired several shots and as my comrades told me, they also fired several shots in the form of shot bursts from an automatic weapon.
ADV DE JAGER: Yes. Now you've told us that you had no intention to kill this person.
MR TEKANE: Yes.
ADV DE JAGER: Now you've been convicted of murder.
MR TEKANE: Yes.
ADV DE JAGER: Could you tell me, what political motive you had in killing him then, because you acted spontaneously? Did you ever consider what would happen if you kill him?
MR TEKANE: Since my presence at that place was politically motivated, everything that transpired there I regard as being politically motivated.
ADV DE JAGER: Didn't you shoot him in self-defence when he reached for his weapon?
MR TEKANE: That's correct.
ADV DE JAGER: So you did you kill him for political reasons or in self-defence?
MR TEKANE: Well you could say in self-defence, but since I was there for political reasons, because if it wasn't for those reasons I wouldn't be there in the first place, I wouldn't have to defend myself against anything.
ADV DE JAGER: But your motive was only to get a weapon, not to kill anybody.
MR TEKANE: Exactly, but I couldn't rule out the possibility of there being a firefight. Even on the way to that place we could have been involved in a firefight, which could have resulted in injuries or loss of life.
ADV DE JAGER: And at the bakery you were also involved in a firefight.
MR TEKANE: Not directly, but members of my unit.
ADV DE JAGER: How many shots were fired at the bakery van?
MR TEKANE: Well there was one followed by a short burst of two or three rounds.
ADV DE JAGER: Of two or three rounds.
MR TEKANE: Yes.
ADV DE JAGER: Ned said five round, plus-minus.
MR TEKANE: Yes.
ADV DE JAGER: Ja. And in your statement here you said Ned fired only one shot. So that's also a mistake in this statement, or a false ...
MR TEKANE: Yes, some things I made up, others was to satisfy they police, go according to what they would like me to say.
ADV DE JAGER: Now when you approached this vehicle, the door was open.
MR TEKANE: Yes.
ADV DE JAGER: He was still standing outside the vehicle?
MR TEKANE: No, he was climbing in.
ADV DE JAGER: Climbing in.
MR TEKANE: Yes.
ADV DE JAGER: So he couldn't see you in the light because you were next to the vehicle when he sort of got into position behind the steering wheel.
MR TEKANE: Sorry?
ADV DE JAGER: Where were you when he was climbing in?
MR TEKANE: I was arriving.
ADV DE JAGER: About 1½ yards from him, isn't that so?
MR TEKANE: Yes.
ADV DE JAGER: So that must be on the side of the vehicle already?
MR TEKANE: Yes, to the front.
ADV DE JAGER: Ja. And the door, was the door still open?
MR TEKANE: Yes, we were separated by the door.
ADV DE JAGER: You fired a shot, did you fire it through or how?
MR TEKANE: No. The door was open like this and I was on this side of the door and I came out shouting because I saw that he had noticed me, so I shouted for him to freeze and he continued to climb in, and then I passed the door and fired the shot as I passed.
ADV DE JAGER: And where did you hit him?
MR TEKANE: I didn't see where I hit him or if I had hit him at all, but I was pretty close, I must have hit him. And I passed on towards the back of the truck and took cover behind ...
ADV DE JAGER: Now what did he reach for when you fired the shot?
MR TEKANE: I wasn't sure what he was doing, but ...(intervention)
ADV DE JAGER: You couldn't see whether he was reaching or not, isn't it?
MR TEKANE: Sorry?
ADV DE JAGER: You couldn't see whether he was reaching at all or not, he only got into the car.
MR TEKANE: Yes, but made like he was lying on the seat.
ADV DE JAGER: Ja, because he saw you pointing the gun at him. Wouldn't that be the natural thing to do, to get the door between you and the one pointing a gun at you?
MR TEKANE: Well he might have been going for his gun.
ADV DE JAGER: You don't know even if he had a gun.
MR TEKANE: Yes, I can't be sure.
ADV DE JAGER: It's probably that he had one, I'll concede that.
MR TEKANE: Sorry?
ADV DE JAGER: I think it's probable that he would have had a gun because he's a policeman.
MR TEKANE: Yes.
ADV DE JAGER: But you never saw him trying to get out the gun or where the gun was.
MR TEKANE: Yes, as I say I panicked when he didn't freeze.
ADV DE JAGER: Ja.
MR TEKANE: So the first thought that came to me was that he would react by firing. As soon as maybe he found himself in relative safety, then ...(intervention)
ADV DE JAGER: And then, what was the reason for you shooting?
MR TEKANE: To deprive him of the chance to get out his gun and fire until I get into safe cover.
ADV DE JAGER: So it was to protect yourself.
MR TEKANE: Yes, in a way.
ADV DE JAGER: What other reason, why did you shoot?
MR TEKANE: Well to protect myself.
ADV DE JAGER: Was that the only reason?
MR TEKANE: Yes, otherwise I wouldn't have shot.
ADV DE JAGER: Thank you.
CHAIRPERSON: Mr Tekane, I'm interested in the application that you've submitted. As you know that has not been located in our offices. I want you just to give me the details of that. You were at Grootvlei Prison.
MR TEKANE: Yes.
CHAIRPERSON: Were you awaiting trial?
MR TEKANE: Yes.
CHAIRPERSON: And did you submit your application on an official amnesty application form?
MR TEKANE: Yes.
CHAIRPERSON: Where did you get the form from?
MR TEKANE: From the prison.
CHAIRPERSON: Were you with your brother at that time?
MR TEKANE: No, he had left, he had been transferred already to Johannesburg.
CHAIRPERSON: So you got the from the prison officials and what did you, did you complete it yourself or what happened?
MR TEKANE: I completed it myself, with the help of a friend of mine and a fellow inmate, who is a member of Apla.
CHAIRPERSON: And after having completed the form, what did you do - or before we get there, what did you apply for, in respect of which incident did you apply for in that particular form?
MR TEKANE: It was for the murder of Mr Sitege and possession of a firearm and ammunition.
CHAIRPERSON: Anything else?
MR TEKANE: No, I don't remember what else I wrote in there.
CHAIRPERSON: You didn't apply for the robbery, as you've said earlier, of this bakery truck.
MR TEKANE: No, I didn't.
CHAIRPERSON: What did do with the form after you had completed it?
MR TEKANE: I asked a member of the Correctional Services, who was nearby, we were locked in the cells, so I shouted for him to assist me and he escorted me to the offices in front where I handed the form to another member I know as Sam.
CHAIRPERSON: What did you say his name was, Sam?
MR TEKANE: Yes. And this member who escorted me is known to me as Mr Gholotsa.
CHAIRPERSON: What did you tell Sam he should do with this form?
MR TEKANE: To send it to the TRC.
CHAIRPERSON: And what was his response?
MR TEKANE: He said he would do it.
CHAIRPERSON: Were you also transferred away from Grootvlei?
MR TEKANE: Sorry?
CHAIRPERSON: Were you also transferred from Grootvlei, subsequent ...(intervention)
MR TEKANE: Yes, shortly thereafter, yes. I was convicted and thereafter transferred.
CHAIRPERSON: Do you say it was shortly after you had handed in the amnesty application form?
MR TEKANE: Yes.
CHAIRPERSON: You were convicted and you were transferred away to go and serve your sentence.
MR TEKANE: Yes.
CHAIRPERSON: And then, what happened subsequently, did you enquire about your application or did you speak to your brother and other members of your unit, or what happened?
MR TEKANE: Well my family has been trying to find what happened to the application, since I heard - at the beginning of the trial in which I was convicted for the killing of Mr Sitege, my legal representative informed me that my form could not be traced. So from then onwards my family and comrades and friends have been trying to trace my application.
CHAIRPERSON: So do you say that during the trial your lawyer said that they couldn't find your form?
MR TEKANE: Yes.
CHAIRPERSON: Where? They couldn't find it where? Do you know what enquiries he made?
MR TEKANE: Sorry, let me get the question clearly.
CHAIRPERSON: Do you know where he went to enquire? What did he say, where couldn't they locate the form, was it at the TRC, or at the prison or where?
MR TEKANE: He said he contacted the TRC, the Truth and Reconciliation Desk at the Albert Lithuli Building in Johannesburg and he found only my brother's application.
CHAIRPERSON: Was your brother standing trial with you?
MR TEKANE: Yes.
CHAIRPERSON: But that trial continued in spite of the fact that you had indicated that you've applied for amnesty and the application, the actual application of your brother having been located, the trial continued?
MR TEKANE: Yes, it did.
CHAIRPERSON: Now you have - you or your family, I'm not sure, have recently made enquiries at the offices of the TRC, or Amnesty Committee, in regard to your amnesty application, is that correct?
MR TEKANE: Yes.
CHAIRPERSON: Why did that happen?
MR TEKANE: Why did they make enquiries?
CHAIRPERSON: Yes, how did that happen, what is the background to that enquiry?
MR TEKANE: Well in the form of phone calls. They made contact with whoever they were sent to ...(intervention)
CHAIRPERSON: Is it your family?
MR TEKANE: Yes, and friends and also comrades in the struggle.
CHAIRPERSON: And why did they do that, was it because they heard that this matter was going to be heard or what?
MR TEKANE: I'm sorry, I'm a bit lost.
CHAIRPERSON: Why did they make this recent enquiry, were they getting worried because this matter was to be heard, or did they find out that your brother and Mr Mayisela have received notices that the case is going to be heard, or what was the background to that enquiry?
MR TEKANE: Oh, it started quite a while ago. At the beginning of the trial last year the enquiries started and it continued and intensified ...(intervention)
CHAIRPERSON: Last year. Sorry, was the trial last year? When was the trial?
MR TEKANE: The trial yes, it was last year.
CHAIRPERSON: Last year.
MR TEKANE: Yes, in March.
CHAIRPERSON: So since then they have been ...(intervention)
MR TEKANE: ... trying to locate the ...(intervention)
CHAIRPERSON: There have been attempts to locate your application.
MR TEKANE: Yes.
CHAIRPERSON: Did you hear that this case is going to be heard by the Committee?
MR TEKANE: Yes, I did. In actual fact I was phoned by a man by the name of Pumzo, while I was at Johannesburg Prison, about a week before this matter was to be heard and he informed me that I would appear, but not as an applicant and I requested him to try and trace my application.
CHAIRPERSON: And did he come back to you at all?
MR TEKANE: No.
CHAIRPERSON: Yes. Is there anything else that you can tell in connection with the, that might assist in connection with your application, or have you now told me everything?
MR TEKANE: Yes. I don't know who, but somebody advised my father to tell me to make an affidavit, have it signed at the prison and fax it out. I could not get assistance from the prison authorities, so I had it with me when we came here and I gave it to my father and requested him to fax it to the TRC offices in Cape Town. He did that and he was promised that it would be looked into and it would be faxed with notes to this hearing. I was expecting that it might have returned. I'm surprised that I don't hear anything about it.
CHAIRPERSON: Do you say that you brought that affidavit here to this venue?
MR TEKANE: Yes.
CHAIRPERSON: And you gave it to whom?
MR TEKANE: To my father.
CHAIRPERSON: To your father?
MR TEKANE: Yes.
CHAIRPERSON: And what did he do with it?
MR TEKANE: He faxed it to Cape Town.
CHAIRPERSON: He faxed it to the Amnesty Committee in Cape Town?
MR TEKANE: Yes, yes.
CHAIRPERSON: But you haven't heard anything further about that?
MR TEKANE: No.
CHAIRPERSON: Oh, yes. Oh I see, I've got a copy of it here. We got it two days ago or so and it seems to have been faxed to Pumzo Pofile, of the Committee.
ADV DE JAGER: At the trial, or before the trial, you mentioned this to your legal representative, who appeared at the trial for you.
MR TEKANE: Yes.
ADV DE JAGER: Who was he?
MR TEKANE: Mr Henk Ackerman.
ADV DE JAGER: Henk Ackerman.
MR TEKANE: Yes.
ADV DE JAGER: From? Do you know from where?
MR TEKANE: In his chambers.
ADV DE JAGER: In Johannesburg or in Pretoria?
MR TEKANE: In Johannesburg.
ADV DE JAGER: In Johannesburg.
MR TEKANE: Yes.
ADV DE JAGER: Is he an advocate or an attorney?
MR TEKANE: He's an advocate.
ADV DE JAGER: Advocate.
MR TEKANE: Yes.
ADV DE JAGER: Can you perhaps tell us round about when did you complete this form and send it off? Could you mention a month or ...
MR TEKANE: It was towards the end of March in 1997.
ADV DE JAGER: Soon after you've made this statement?
MR TEKANE: Yes.
ADV DE JAGER: To the magistrate.
MR TEKANE: Yes. I was taken from Bloemfontein to Johannesburg, to make this statement and on my return to Bloemfontein, when I was transferred back there, I applied and I almost missed the deadline because I missed the first one and then after it was extended I applied.
ADV DE JAGER: So it was just before the deadline. What was the second deadline?
MS MTANGA: It was 30th September '97, the second one. 30th September.
ADV DE JAGER: 1997.
MR TEKANE: Yes.
ADV DE JAGER: And you were aware of the deadline? You've discussed it in prison with your co-prisoners.
MR TEKANE: Yes. As I've said before, I was a bit reluctant to apply and I was encouraged by my comrades to apply.
ADV DE JAGER: And this APLA man who assisted you in completing the form, do you know his name?
MR TEKANE: Yes, his name is also Thabiso.
ADV DE JAGER: Thabiso?
MR TEKANE: Thabiso Makwala.
ADV DE JAGER: Makwala.
MR TEKANE: Yes.
ADV DE JAGER: Do you know whether he's still in prison, or where he could be?
MR TEKANE: Unfortunately he died in prison. I heard from a man who was transferred, who I had met in that prison.
CHAIRPERSON: Mr Shai, have you got any re-examination?
MR SHAI: I beg your pardon?
CHAIRPERSON: Have you got any re-examination?
MR SHAI: No re-examination.
NO RE-EXAMINATION BY MR SHAI
CHAIRPERSON: Yes, Mr Tekane, you are excused.
WITNESS EXCUSED
CHAIRPERSON: Thank you, Mr Shai. Mr Richard, have you got any evidence?
MR RICHARD: No further evidence.
NO FURTHER EVIDENCE BY MR RICHARD
CHAIRPERSON: Ms Mtanga, have you got any evidence?
MS MTANGA: No further evidence, Chairperson.
NO FURTHER EVIDENCE BY MS MTANGA
CHAIRPERSON: Thank you. Have you got any submissions?
MR SHAI IN ARGUMENT: That's correct, Mr Chairman.
Mr Chairperson, for the sake of convenience, I'm going to start by addressing the incident of the 5th of February 1993, and then I'll come later to the issues of the car theft of the second applicant.
Now it's common cause that in a matter of this nature, one has to look at the provisions of Section 20, which are whether the applicant did indeed comply with the requirements of the Act, or whether this Act was associated with any political objective, committed in the course of the conflicts of the past and according to the conditions of (2) and (3), and whether the applicant has made a full disclosure of all relevant facts.
The issue of - the provisions of (1)(a), I don't have to address the Committee on that because I think he fully complies with the provisions of this Act, otherwise they wouldn't have actually granted him a hearing.
Then I'm going to start to the issues relating to (c) of - paragraph (c) of (1), whether they had actually made a full disclosure as far as the facts and issues relating to the incident on the 5th of February 1993 is concerned.
It's my submission that the only aspect that weighs against them having not made a full disclosure, is the issue pertaining to the confessions that were made and that is where my learned colleague, Mr Richard, was actually quoting from when he said they could be lying in this respect, they could be lying in that respect. I'm going to quote specifically from the exhibits that were submitted. That is Exhibit A up to D. Now if one looks at these exhibits, the one of Anna Sitege and Exhibit B, which is a statement by Frank Tekane and Exhibit D, which is a statement by Sidiso Moketsi, and Exhibit C, which is a statement by Thabiso Tekane, if one looks - I'm not going to go into a detailed ...(intervention)
CHAIRPERSON: Yes, I just wanted to ask you, Mr Shai, how different is this from the situation where you have a Court record which tells a totally different story from the application?
MR SHAI: Actually I was just going to argue like that and I was just going to allude to the fact that if one looks at the confession contained in Exhibit C, the confession in Exhibit B and the confession in Exhibit D, as far as the incident itself is concerned, they are totally different. They actually mention different aspects of how the incident actually occurred.
Even the one that my learned colleague says maybe it could be the best description of what happened on that particular day, the one of Frank Tekane. It has some inconsistencies in it and it actually contradicts the statement of Sediso.
And my submission is, it should be treated as a factor or a fact that weighs in the same way as a Court record. These are statements which were given to the police and we know how the situation is, even now. We still have cases wherein police force people to actually confess to things that they didn't do. And in the light of that, and if one looks at the confession by Thabiso himself, he says:
"Dat my straf ligter sal wees en ek "amnesty" kan kry. Ek is van voorneme om daarvoor aansoek te doen."
So in other words, he knew that there was some political motive actually involved in this, but as to where he mentioned it in this statement to the police, it's not given. So in other words he knew there was something that was politically related, but that was never mentioned to the police. And as such, from the very same paragraph 11, one can actually come to the conclusion that he knew what the true position was, as far as his act was concerned and that was never disclosed to the police officer in questions, but nevertheless he came today and he disclosed the basis of ...(intervention)
CHAIRPERSON: Yes, I mean it appears to me as if there can be very, very little weight attached to a so-called confession which the applicant says he contested at his trial even. Even at that stage this was in contention, these confessions.
MR SHAI: That is correct. It was actually in contention from the time when he was actually being tried by the High Court.
Now I'm going to move to the provisions of (2) and (3), in actually looking at whether they satisfy the requirements inasfar as (2) is concerned, the Section 20 is concerned. Now for that one has to actually look at what is it that has to be satisfied before they could actually be granted amnesty. And as far as (2)(a) is concerned, I'm just going to deal briefly with them and then when there is actually a contentious issue that I have to address, then I'm going to dwell on that, but I'm just going to go through the whole sub-section. Then I'm going to look at (2)(a). Applicant number one says that he was actually a supporter of the African National Congress, and he was a member of the SDU, which was actually a creature of the ANC. My submission is ...(intervention)
CHAIRPERSON: Both applicants and Mr Thabiso Tekane? It doesn't seem as if that is seriously attacked, it doesn't seem as if it's really in dispute.
MR SHAI: I'm going to skip number (b) and I'm going to concentrate on (f).
"Any person referred to in paragraph (b), (c) and (d), who on reasonable grounds believe that he or she was acting in the course and scope of his or her duties, and within the scope of his or her express or implied authority, or any person - that's (g), any person who associated himself or herself with any act or omission committed for the purposes referred in paragraphs (a), (b), (c), (d)".
That's whether it was actually for the purposes of any political objective. And for this I think this is where I have to dwell, and this I'm going to actually address in conjunction with the provisions of (3)(a), (b) and (d).
Now if one looks at the act in question which is herein involved, one will at first come to the conclusion that this was a mere criminal offence, and that is how it was actually interpreted by the judge who actually dealt with it in the trial. I fully submit that looked at without the political objective that was involved, it's a pure a robbery case, it's a pure murder case which has in it a foreseeability that the person who was killed could have been killed in the process of actually robbing.
I'm going to - for the purpose of the criminal offence, use robbing as such, as is. But now if one looks at the directions or the instructions that were given to the people who actually were performing the task of robbing and in their political parlance they it's disarming, one comes to a different conclusion. If one were to look at whether they are seeking amnesty for murder which was, according to their evidence, not the intended consequence of their action, then my submission is there are too many cases in which amnesty was granted in which it was not supposed to be granted, if that kind of reasoning was being followed.
For example, I will take a case in which a person goes to a place and he places a landmine or a timebomb, with the sole intention of destroying the building as a State apparatus, then in the process of destroying the building a person is killed, the person can actually - and they do, apply amnesty for the murders that actually come out of the said bombing. But now the intention was not to kill the person inside the building, it was to destroy the building. Even if the person foresaw the possibility of a person being killed in the process of destroying the building, then I think the Truth Committee will be failing if they were looking at what was the intention when the act was actually committed.
CHAIRPERSON: I don't know, I don't know if the term "wish" isn't a more appropriate one there, because you know if you refer to the term "intention", of course it's a technical term. You take this case before us, the applicants didn't necessarily wish to kill the policeman that had to be disarmed, but clearly if you look at the circumstances there was a legal intention to kill. When you first with automatic, short bursts of automatic fire at a person, what else? I mean it's dolus eventualis, there's no question about that. So often when an applicant comes before the Committee and he refers to the question of intention, I don't believe that he or she refers to the technical sort of term "intention", and that is why I say perhaps the word "wish" is a more sort of appropriate term, because the word "intention" can lead to confusion.
MR SHAI: Mr Chair, I was just ...(intervention)
ADV DE JAGER: If you look at the wording of the Act: "associated with a political objective", now we've got the robbery, the robbery was strictly intended, the motive was there or political purposes. I don't think anybody would differ from that. Wasn't the murder associated ? The murder in itself didn't have a political objective - well, we haven't got evidence about that, but wasn't the murder associated with the other objective?
MR SHAI: Chair, that's what I'm saying. I say if we were to look at what the intention was and we were to decide on the intention, the intended consequence of the action then murder will be excluded, but since that is not what we're looking at, we're looking at the act itself, what was actually the political objective as far as the robbery itself was concerned? And then the issue of intention is thereby excluded, and then we come with the associated consequence of the action, which was politically motivated.
And in that instance, in that light, murder itself is going to be covered even though it was not the intended consequence of their actions, then my submission is it's an act which was associated with a political objective that they sought to achieve. And in this case they clearly stated they wanted to rob. If we were to use the ordinary legal term, and they use disarm, their objective was to disarm, but in the consequence of disarming something happened and that was murder, which was associated with the act of robbing. If we were to take an armchair approach we will say that, as the questions were actually being posed to the applicant, "but didn't you foresee that something like that could happen?". But they have an explanation for that, they say things didn't go according to plan, what they thought would happen, never happened and that is where things began going the wrong way and therefore something wrong, as a result of the wrong-going of the actions, happened.
And my submission is even the murder, if one has to look at it, whether it's associated with a political objective, then it is covered by the provisions of (2). That will be my submissions.
CHAIRPERSON: Yes, no, no, I understand that, but also the point is that what you're applying for is an act which constitutes an offence and it's in that context where this whole question of intention becomes confusing. If you don't distinguish between what they wish the situation could possibly have been ideally, and what eventually happened, constitutes an offence in terms of the technical understanding of intention. And that's why - of course if there was no intention, there's no offence, so you can't apply for amnesty for it because it's not, it's an offence, it's ...(intervention)
MR SHAI: ...(indistinct). I fully submit that they committed an offence and I've got no doubt about that. They committed an offence by being in possession of firearms without any valid licence for the firearms. But what is the purpose of the Act itself, it's to remedy that situation, provided they satisfy the requirements of the Act, and my submission is, they fully complied with the requirements of the Act. Unless there is anything in particular that I have to address. It's common cause, or there is no evidence to the contrary that there was anything gained by the applicant personally and there is nothing to the contrary that indicates that they acted our of malice or they didn't like the deceased. And my submission is, if one were to look at the provisions as alluded to, they fully comply with them.
But finally, I would like to deal with the provisions of (3)(f), the relationship between the act, omission or offence and the political objective pursued. It's my submission that there is in life nothing that can be equated to life itself and in all applications where life was actually lost, one cannot come about and say this proportionate to, the consequence is proportionate to the action. Life can never be equated to anything. And my submission is, this is also a case in which life cannot e equated to the action, the consequence, that is loss of life, can never be equated to the actions that were actually being used, looked at in the light of what happened on the fateful day. And my submission is, in the light of life having no proportionate, then they fully comply with the provisions of (3)(f), if looked at, not in the form of an armchair approach, but if one were to actually go into the shoes of the applicants and then ...(intervention)
CHAIRPERSON: Ja, perhaps there would have been something to say in regard to that element if the deceased had surrendered and he was executed, he was still shot, but I hear your submission, that's not what happened.
ADV GCABASHE: Mr Shai, I don't want to interrupt you, but can you in your submissions deal with the question self-defence, whether it plays a role at all in any of the actions of the applicants, and if so, what we should do with that. You know, in relation to political motive, political objective. Self-defence, they shot to protect themselves.
MR SHAI: In this case I would say, in a case whereby one is out to actually perform some political duty, in this case the disarming, in the first instance they went there carrying firearms, they foresaw the possibility of - even if they say they wanted to actually surprise him with the firearms, scare him and then let him surrender, but my submission is even though they foresaw the possibility of him resisting and them using the firearms, I will submit that if in each and every situation wherein members of the SDUs were involved inasfar as - without testifying from where I am, inasfar as my knowledge actually goes, people were in possession of firearms, they were always ready for any retaliation by the victims, if any.
Now this actually is one of the cases that fall within the ambit of self-defence Units. Members were armed, they knew that they were approaching a person who was also armed and in this case, who was going to be disarmed. So in other words, he was in a position to use the firearm that they were going to take away from him. Now, they needed something to actually fight back if that firearm was actually going to be used against them. And in that case, even though they were the first people to actually go to him, which was an offence anyway, they had to actually defend themselves.
ADV DE JAGER: Suppose he would raise the self-defence at the trial, wouldn't he be confronted with this: "but you've created the possession, so you can't rely on self-defence, because you've placed yourself, you've created the emergency"? And if he wouldn't succeed in the defence of self-defence, then he would still be guilty of murder. So whether he may say it's self-defence, he's created that emergency and it can't be a defence in law.
MR SHAI: Mr Chair, in a trial, in a criminal trial the position will be different. In this case, in this application we're dealing with an offence that is committed already. In other words, self-defence is eliminated, it's already an offence, so we can't actually say they have to be given amnesty because there is self-defence.
We know that in the final run an offence is committed and they want amnesty for that offence, and in this case it's murder. In other words, that offence, and in this case it's murder. So in other words, we actually exclude the possibility of self-defence being raise as a defence in a criminal trial, we actually conclude and we come and we come to the conclusion and we accept it as a fact that an offence has been committed. So my submission is, the issue of self-defence doesn't actually weigh much on the application itself, but it will be an issue if it was dealt with in a criminal trial.
CHAIRPERSON: Are there any other submissions?
MR SHAI: I just want to deal quickly with the car theft story. It's common cause that at the time of the commission of the offence he was not a member of the African National Congress or its military wing, Umkhonto weSizwe, but it's common cause that he was on the way to joining the organisation and he was actually going to use the motor vehicle to further the aims of actually being in a position to join the organisation.
CHAIRPERSON: Yes, wasn't he a supporter as he had indicated?
MR SHAI: Yes, he was a supporter of the organisation, as he said in his submission. And my submission is, it also falls within the ambit of Section 20. That will be all, unless there is something specific that I have to address.
CHAIRPERSON: Thank you very much, Mr Shai. Mr Richard, have you got any submissions?
MR RICHARD IN ARGUMENT: Yes, Chairperson. I will not be long.
The issues before the Committee are essentially factual and I don't think much can be said beyond saying the question is whether on that morning in February 1993, the applicants were - to use the words of the Act, committing the admitted crime, which constitutes an event, with the associated or associated political objective.
Now what is particular about this particular application is that the last two witnesses were tried last year, and that is long after the Act creating this Committee came into effect, and the first applicant indeed was sentenced by His Lordship, Justice de Villiers, on the 20th of May last year.
If one has reference to page 64 of the bundle, there the High Court makes a factual finding. In clear unambiguous terms the Court found, no political motive was found by the Court. To take it further ...(intervention)
CHAIRPERSON: What is the relevance of that for our purposes, Mr Richard? Given the submission of Mr Shai, that we should look at these confessions and all these other things in the light of the reality out there at this, when it comes to criminal cases and the approach to criminal cases etc., etc. In other words, he was saying we shouldn't adopt an armchair approach, we know what the reality is.
MR RICHARD: The last two witnesses, second applicant and his brother, were represented in the High Court by, we assume, competent counsel. If they had wished to take advantage of these proceedings before the Truth Commission, it would have been a simple matter to stay the proceedings pending the outcome. I think there's only consistent inference, that they thought factually they could succeed. So it's not an armchair statement. What would appear to be the only consistent inference again is that in their confessions they indeed told the truth. I don't think one can likely dismiss the last witness' statement that why he wanted to make this statement was to get a lighter sentence and to support his amnesty application.
So certainly, for the second applicant - I will deal with the first applicant separately because he was tried prior to 1994, I find it singularly appropriate to ask, if he had a valid application which he was confident of presenting to this Committee, what happened? He certainly didn't seem to believe that his factual statement before this Committee would be believed, and I believe that we can infer all sorts of consequences from that.
Then to turn to the first applicant, certainly he signed his confession during the pre-1994 period and also was tried before the Truth Commission Act came into existence. So the same inference can't be applied. Now "associated with a political objective". Here we have the following situation: we have a sitting member of the Provincial Legislature, we have Magret Stofile, we have various other persons, who could have been called, they haven't. Again an inference self-defence ...(intervention)
CHAIRPERSON: Is there an onus created by Act 34 of 1995?
MR RICHARD: Chairperson, I ...(intervention)
CHAIRPERSON: What is the affect of the words "we as a Panel must be satisfied"? Is there an onus?
MR RICHARD: My submission on that is that the Committee, through its proceedings - and the proceedings are inherently run by the Committee, must satisfy itself. In other words, the analogy is to administrative law, not to confrontational, adversarial proceedings.
However, amnesty is a privilege, not a right, it's a claim that the individual applicant makes. I do believe it's incumbent on the applicant to establish to the Committee, the basis on which the Committee must inquire into his position, to satisfy itself in that sense. As with any licensed application or any similar proceedings, the applicant must establish for the Committee, the legitimacy of the claim.
I deliberately don't want to get into a long drawn out ... I think the various proceedings before the Truth Commission, have long since settled those ...
CHAIRPERSON: Yes, in fact I'm simply raising the point in the context of your reference to the existence of witnesses out there who could have been called. That's the kind of issue that comes up in terms of the law of evidence, when you deal with a trial in a criminal or civil Court and so forth and so on. But I think you've made the point yourself. I mean we're not in that realm.
MR RICHARD: ...(indistinct) I really don't want to take it, what I believe would be sideways.
CHAIRPERSON: Yes, I mean with a person in custody and with a Committee with all the facilities at its disposal, sitting as an administrative tribunal, investigating a matter before it, I mean there's very little scope for adverse inferences in regard to witnesses who are called and not called and so on. So there's not very much scope for that sort of argument.
MR RICHARD: It's for those reasons that I don't seriously go into the question as to whether in 1993, police were legitimate or inappropriate targets. I believe that evidence has been canvassed at length in various proceedings.
Proportionality however, is appropriate. We've used the concept of self-defence. I don't think the notion in the legal sense of self-defence, is really appropriate. In a legal sense the person who was entitled to the rights of self-defence was the deceased, he could have done, in the situation, whatever he felt like, with almost complete impunity when faced with five armed men. The factual before the Committee is whether taking into account that five armed men had one single man to accost and disarm, according to their admitted intention and wishes, whether their acts were proportionate or not.
Here we know, and I think it has been established by the record and the evidence, except for the last witness, that the two places where the incidents took place, the Terminus Cafe and the deceased's house are less that 250 metres apart, they are close. In other words, to move from one position to the next is a matter of minutes. Certainly not the hour that is established between the two incidents in time. So that means that the five men who accosted the deceased had more than adequate time to set themselves up in whatever form of ambush they wished to set up.
Their arguments factually that the deceased's movements took them by surprise, have to be treated with the utmost scepticism. It's impossible to understand how they could not have been in exact position by the time the deceased moved about. Taking that into account, if five men wanted to disarm a man who was innocently going on his way to work and probably not suspecting an attack, they could have done so with the utmost of ease.
It would appear, according to the applicants' evidence, that their plans went wrong. I believe that that claim must be dismissed as a fabrication after the event. The real truth would appear to be consistent with what was said in the various admissions and confessions and in accordance with the High Court's judgment that they ambushed and shot. The reason and the motive for the fabrication is interesting, it is to overcome the very point of proportionality.
To continue onto the car theft aspect of the second applicant's application, there I have no comment. I am not briefed by the victims of the car theft, I leave that lie. No further submissions.
CHAIRPERSON: Thank you, Mr Richard. Ms Mtanga?
MS MTANGA: Chairperson, I have no submissions to make.
CHAIRPERSON: Have you got any reply, Mr Shai?
MR SHAI IN REPLY: Mr Chairman, I just want to reply to two issues that were raised by my learned colleague. The first issue is - I think it's already dealt with by the Panel in the form of a question to Mr Richard, the issue of the applicants not calling Oupa Monareng and this Magret. The applicants have actually called their immediate commander and that is Thabiso. And as to how far the chain goes nobody knows, maybe they could have called Oupa Monareng and Mr Richard would have liked to know who gave orders to Oupa Monareng. And as to ...(end of tape)
... we wouldn't have actually have been in a position to actually call all these superiors to, the commanders. And my submission is, they have done what was reasonably possible by calling their immediate commander and they've ...(indistinct) alluded to that. And I've already in my submission prior to the commencement of the hearing, or on the second day, informed the Panel that we actually tried to get in touch with this Oupa Monareng, and it's difficult. The Evidence Leader can actually confirm what I'm saying.
Then as to the issue of my learned colleague saying they had more time to act in any other way, other than the way they acted. My submission is that that is taking an armchair approach. If my learned colleague at a stage was in a position in which they were, as a member of the SDU, he would actually have known and he would have actually experienced situations wherein plans don't actually go the way the participants thought they would go. And this is one issue.
If you are sitting at a table with a cup of coffee in your hand, then you will think these people never thought out the plan, but that is how they planned and that is how they wanted to carry it out and it actually failed. We have got situations whereby bombs are actually set up and the explosion time is not actually the one that was intended. And this is just one of them. That is my submission.
CHAIRPERSON: Yes, thank you, Mr Shai. Yes, we have come to the end of this matter. We would need some time to consider the decision in the matter. We need to have the Committee to look into this situation of Mr Thabiso Tekane and his application. So for the moment the decision in this matter will be reserved and we will inform the interested parties as soon as the decision is available.
I believe that this takes care of our roll here. Ms Mtanga?
MS MTANGA: Yes, Chairperson, that is so.
CHAIRPERSON: Yes, in fact that concludes the proceedings here. It just remains for us to thank the legal representatives, Mr Shai, Mr Richard and Ms Mtanga, for your assistance in this matter. And in general, we need to thank all those people who made it possible to have this hearing here, our staff, interpreters, the security, the police, the proprietors of this facility, Telkom. We owe a debt of gratitude to all those people. It's not easy to arrange proceedings of this nature and we always appreciate the assistance in this regard. Also, I need to express my gratitude towards my colleagues on this Panel for their assistance. We're adjourned.
HEARING ADJOURNS
