CHAIRPERSON: Good morning to you all. Today is the 31st of January 2000. We are here to hear the applications of Philip Makwale Nyalunga, John Ithumeleng Dube in relation to an incident referred to as the Witbank Bomb Blast.
My name is Judge Sisi Khampepe, I will be chairing these proceedings. On my right-hand side is Judge Motata, on my left-hand side is Judge de Jager. This will be the Panel that will sit to consider these two applications.
I am now going to request the legal representatives who are going to appear on behalf of the applicants and the victims to kindly place their names on record.
MR MBETHE: My name is Mr Mbethe, Mr S T R Mbethe and I'm from Mbethe attorneys...(indistinct - mike not on). I represent the Msina family. Sorry and also Mr Diyale.
CHAIRPERSON: Thank you Madam Chair. My name is Andre Steenkamp, I will be the Evidence Leader in this matter. Thank you.
CHAIRPERSON: Thank you Mr Steenkamp.
MR SCHULTZ: Madam Chair, my name is Conrad Schultz, I'm from the firm of attorneys Potgieter Coetzee in Witbank. I act on behalf of 15 of the victims.
MR KOOPEDI: Thank you Madam Chairperson. My name is Brian Koopedi. I appear on behalf of the two applicants in this matter. May I point out at this moment Madam Chairperson, that I was missing one of my applicants, but he is here and we are ready to proceed.
CHAIRPERSON: Thank you Mr Koopedi. Mr Steenkamp, how many victims are involved in this incident?
MR STEENKAMP: Madam Chair, at this moment, if I'm not mistaken, I think it's more or less 30. A list of victims has been prepared, it's in the process of being copied and it will be handed to you during the hearing and the full details of all the victims will be handed to you as required by the Act. Madam Chair if I may at this time just ask, there's a household matter. I've been requested by my learned colleagues if they will be allowed to remove their jackets during the time of this Hearing. Thank you Madam Chair.
CHAIRPERSON: They may do so, Mr Steenkamp. Can an indication be given to this Committee whether all the victims were notified in terms of Section 19(4)?
MR STEENKAMP: Indeed Madam Chair. It is my humble submission that the requirements of Section 94 were indeed met. All victims were notified. Those who were not notified, efforts were undertaken to notify them. The Investigator in this matter, Captain Moyma is present. If any questions arise in any notification, any victims or implicated people were done, I can just maybe indicate at this stage the specific building owners of the Nedbank and the Standard Bank and the NBS branches were also notified and they have indicated that they are not interested in attending this hearing whatsoever and for that reason, Madam Chair, I will suggest that this specific requirements were met and the Chair can proceed with this Hearing. Thank you Madam.
CHAIRPERSON: Thank you. Mr Koopedi, are we in a position to commence?
MR KOOPEDI: Indeed we are, Chairperson and perhaps may I point out that the two applicants will not be calling any victims so their application will consist mainly of ...(intervention)
CHAIRPERSON: Any witnesses?
MR KOOPEDI: Yes, no witnesses. Their application will consist solely of their two testimonies and the first person to be called, if you will allow us, would be Philip Makwale Nyalunga and he's ready to be sworn in Chairperson.
CHAIRPERSON: What language will he be testifying in?
MR KOOPEDI: He will testify in English, Chairperson.
PHILIP MAKWALE NYALUNGA: (sworn states)
MR KOOPEDI: Thank you Chairperson, may we proceed?
CHAIRPERSON: You may proceed Mr Koopedi.
MR KOOPEDI: Thank you. We seem to have a problem with the mike. I can't have my mike and his on at the same time.
CHAIRPERSON: We'll require the technician to come to your assistance.
MR KOOPEDI: We have been assisted, thank you.
EXAMINATION BY MR KOOPEDI: Mr Nyalunga, is it correct that you are an applicant in this matter?
MR NYALUNGA: Yes.
MR KOOPEDI: Is it also correct that Mr Dube is your co-applicant?
MR NYALUNGA: Yes.
MR KOOPEDI: I will refer you to page 3 of the bundle of documents which this Honourable Committee has in front. Is this your application form?
MR NYALUNGA: Yes.
MR KOOPEDI: The said form is signed on page 8 of this same bundle of documents. Would this be your signature?
MR NYALUNGA: Yes.
MR KOOPEDI: Now, you were involved in this incident, the car bomb blast at Witbank, is that correct?
MR NYALUNGA: Yes.
MR KOOPEDI: Would you briefly tell this Honourable Committee as to what was your involvement?
MR NYALUNGA: I joined the ANC in 1979, January in Swaziland. I did military training in Angola and specialised in GDR. In 1981 I joined the special operations ...(intervention)
CHAIRPERSON: Mr Nyalunga, we are going to ask you to try and speak at a pace that will enable our translators to translate to the many victims that you see sitting here in different languages and also afford us an opportunity to be able to take down what you are saying.
MR NYALUNGA: Okay.
CHAIRPERSON: Thank you.
JUDGE DE JAGER: Mr Koopedi, I note he's reading from a paper. Haven't you got copies available for us?
MR KOOPEDI: I'm afraid not. He's reading from a statement which we just prepared. It is hand-written and we do not have copies. If we had, we would have loved to supply the Honourable Committee members and my learned friends that side, but we do not have.
CHAIRPERSON: You may proceed.
MR KOOPEDI: Thank you, Chairperson.
MR NYALUNGA
In 1981 I joined Special Operations Unit based at Maputo. I was infiltrated into the country during December of 1987. I became a member of an underground unit of MK based at Vosloorus. Thabang Kholile Sam was my Commander and I was the Commissar of the Unit. The Unit comprised only of the two of us but we would recruit people to assist us on an operation to operation basis. Thabang advised me that he has considered the police headquarters in Witbank as a target for bombing.
CHAIRPERSON: Who advised you?
MR NYALUNGA: Thabang.
CHAIRPERSON: What's his surname? Surname?
MR NYALUNGA: His real name is Kholile Sam.
CHAIRPERSON: That's your Commander?
MR NYALUNGA: Ja, That's my Commander.
CHAIRPERSON: Yes?
MR NYALUNGA
He undertook to do the necessary entails of checking out the area and getting the necessary material for the creation of the bomb. On one or two occasions I went on a reconnaissance trip with Thabane. He showed me a building in the town which he told me was the Headquarters of the Security Police in Witbank. Thabang advised me that he will also get Comrade Silver, my co-applicant to join us in this operation, as he was an expert in the connection of the remote control device.
On a Sunday evening Comrade Thabang and Silver came to my place and picked me up. We proceeded to Witbank. We slept at a house in Witbank. It was my sister's house. Thabang had the keys to the house, my sister and her husband knew Thabang very well. Thabang advised us that we were going to plant the bomb the following morning and told us further that all the necessary material was in the house.
On Monday morning I saw that there was a Ford Cortina car in the garage and we started to assemble the bomb in the boot of the Cortina as Thabang ordered. We took turns in providing security ...(intervention).
JUDGE DE JAGER: Sorry, was this car in your sister's garage?
MR NYALUNGA: Yes.
JUDGE DE JAGER: Were they at home or were they away?
MR NYALUNGA: No, they were not there.
We took turns in providing security by going outside and checking for passers by. Thabang did the real assembling and we assisted and then Comrade Silver connected the remote control gadget. During that very morning, Thabang asked to proceed as this was the day the Security Police and their friends were going to get the shock of their lives. Thabang ordered me to drive the Mazda, the vehicle which we used to go to Witbank the previous night. He ordered Silver to come with me in the Mazda.
Thabang further told me that I should follow him into town and when we reached the taxi rank we should stop and that after parking that bomb car, he will return to us on foot. The taxi rank, if I remember well, was on the same street as the Special Branch Offices.
CHAIRPERSON: What car was Thabang driving?
MR NYALUNGA: A Cortina.
I indeed followed Thabang's car and parked at the taxi rank. ... (indistinct) proceed and parked the car and he walked back to us. He told me to drive off, which I did. As I was driving, he pressed the button on the remote control gadget and I heard an explosion. Smoke was visible from the direction of the said offices. I was told to go straight to Bigaiwe and we went to Vosloorus.
I'd like to thank the Committee for giving me the opportunity to appear and I'd like to apologise to the innocent people who were caught during the cross-fire who were not the intended targets and I would like to apologise for those who got arrested for this matter. Thank you.
MR KOOPEDI: Now, Mr Nyalunga, do you regard this action as having been politically motivated, despite the fact that you were acting under orders of someone senior to you? Do you regard this matter as having been politically motivated?
MR NYALUNGA: Yes, I do.
MR KOOPEDI: What would have been the political motivation?
MR NYALUNGA: I think basically to know that by then the Special Branch were the cutting edge for the Government of the day, they were the people who were used to oppress all political discontent in the country and therefore, by virtue of their role, they were a target and that was political.
MR KOOPEDI: Okay.
CHAIRPERSON: May I interpose Mr Koopedi?
MR KOOPEDI: Yes, Madam Chair.
CHAIRPERSON: In your evidence-in-chief you have just stated that Kholile or Thabang as you have referred to him, was the one who selected the target. Were you aware of the what the target was?
MR NYALUNGA: Yes, because at one point I went to check out the place.
CHAIRPERSON: So you knew that this was ...(intervention)
MR NYALUNGA: That these were the offices ...(intervention)
CHAIRPERSON: The offices of the ...(intervention)
MR NYALUNGA: The offices of the Special Branch.
CHAIRPERSON: Yes. Mr Koopedi, that should come to our assistance.
MR KOOPEDI: Yes, thank you, Chairperson. Now in as far as you can recall, do you think you have told this Honourable Committee all there is to tell? That is you have fully disclosed what your involvement has been or was in this operation?
MR NYALUNGA: Yes, I think I've done it.
MR KOOPEDI: Now did you receive any personal gain? Were you paid? Did you receive anything materially for having participated in this operation?
MR NYALUNGA: Not at all. MK was not - was a volunteer, I never used to get any salaries, it was only your dedication that counted.
MR KOOPEDI: Chairperson that will be the evidence for the applicant. Thank you.
NO FURTHER QUESTIONS BY MR KOOPEDI
CHAIRPERSON: Thank you Mr Koopedi. Mr Mbethe, do you have any questions to put to Mr Nyalunga?
CROSS-EXAMINATION BY MR MBETHE: Yes Madam Chair and my first question relates to what Mr ...
CHAIRPERSON: Nyalunga.
MR MBETHE: Nyalunga stated before he finished, the fact that he knew the target and he had seen the target before. Now my question is, did you at any stage, or rather maybe my question should be phrased this way, on what day in particular of the week, did you yourself go and see the target? Do you remember whether it was during the week or it was on a weekend?
MR NYALUNGA: No, it was during the week. I cannot be exact to the day.
MR MBETHE: And I will tell you why I'm asking you this question, the reason is you have told this Committee already that when you went to Witbank it was on a Sunday and when you placed the bomb, it was on a Monday. Now you know everyone would know that the conditions and the situation and the environment would not be the same in the vicinity if it is in a Sunday, than it would be if it is a Monday, so basically my question is related to you having checked the target and having satisfied yourself that the target is a proper one, so have you done enough research or have you seen enough of the target to can decide whether it was indeed a proper target?
MR NYALUNGA: I didn't go to Witbank on that Sunday, I've been to Witbank on other occasions. When we went to Witbank on Sunday it was on the final date of the operation.
MR NYALUNGA: I think maybe I didn't make my question clear. My question is, we know that the conditions would not be the same on a Sunday than they would be on a Monday. In other words, there would be people on a Monday, it's a working day. People would be moving up and down. Now have you familiarised yourself with the conditions as they would be on the day when the bomb would have to go off?
CHAIRPERSON: Mr Mbethe, I thought he had responded to that question and his response was pertinently that he went there during the week, not on a Sunday.
MR MBETHE: Yes.
CHAIRPERSON: When he accompanied Thabang on that reconnaissance mission.
MR MBETHE: Thank you Madam Chair. Now, I think you have been told already that none of the people that were targeted, this is the Security Forces, were affected by the bomb and in fact innocent people were the ones who were targeted. Do you now in retrospect still believe that enough research was done by yourself and your Commander as to the properness of the place that you had targeted?
MR NYALUNGA: I have no idea with regards of the casualties that were involved but in our consideration of the case will be that the possibilities might be there of innocent people being killed, but the main target was the offices of the Special Branch, I don't know whether there were no people by then because according to what we checked out, there were people in the building. If they were not hurt, I don't know how come.
MR MBETHE: Do you remember exactly what time the bomb was to take off, or to explode?
MR NYALUNGA: I can't remember the exact time, but it was in the morning hours.
MR MBETHE: We know now that you were involved in the setting up of the bomb itself. What type of a bomb was it? Was it a time bomb, or what type?
MR NYALUNGA: I think I've explained that Thabane detonated the bomb to a remote control mechanism. It's a remote control which would detonate immediately you want it to detonate.
MR MBETHE: And nothing was said as to when the remote control should be made ready for the bomb to explode, this is when you were busy assembling the bomb?
MR NYALUNGA: No there was a time device, that is for protection, for transportation, during the process of transporting the bomb so that nothing happens, but immediately that it's armed, depended on the remote control mechanism.
CHAIRPERSON: But you were aware that the bomb would be detonated during that morning?
MR NYALUNGA: Yes.
MR MBETHE: So basically the consideration was that the bomb should not explode whilst you were still travelling to the place. But what happened thereafter, there doesn't seem to have been consideration thereof, would this be a correct assessment?
CHAIRPERSON: I don't get your question Mr Mbethe.
MR MBETHE: ; He already, Madam Chair, has said that there were devices that were put in the bomb for it not to explode whilst they were travelling towards the place. Now my question relates to what happened thereafter, you know, as to what time the bomb would go off, you know, as soon as they had left, that was never discussed and it was never a consideration.
CHAIRPERSON: Hasn't his response in that regard been made by him, over discussion around when the bomb would be detonated, was made and the discussion was it would be detonated during that morning.
MR MBETHE: Yes, Madam Chair, but ...(intervention)
CHAIRPERSON: You want to know the precise hour?
MR MBETHE: Yes, morning is a very long time.
MR KOOPEDI: If I could interpose, Chairperson? The witness has testified that a remote control gadget was used. This bomb was to be detonated by way of a remote control. I think it should be clear in terms of his, of the applicant's testimony, that this was not a bomb that was to be left without caring as to what will happen when.
CHAIRPERSON: I think Mr Mbethe is aware of that. He's quite aware of the Mr Koopedi. He wants to know whether there was a time limit specifically put to when the detonation would be made by the one who was going to handle the remote control.
MR KOOPEDI: ; Okay Chairperson.
MR NYALUNGA: Thank you. I've explained, immediately the bomb was in place next to the target, from then onwards the person who was in command could detonate it, there was no specific time, that 11 or 12 or whatever, but immediately the bomb was in place.
MR MBETHE: In other words, Mr Nyalunga, is that you assembled this device during the morning.
MR NYALUNGA: Yes.
MR MBETHE: And you left towards the targeted place.
MR NYALUNGA: Yes.
JUDGE MOTATA: But could you give an indication when you left for the actual target and left the car there and detonated? That's what I think Mr Mbethe is looking for. Would I be correct?
MR MBETHE: Thank you, Mr Chair, yes, that is true.
MR NYALUNGA: I think it was between 8 and 9 somewhere.
MR MBETHE: So your involvement in the whole incident simply to assemble the bomb and leave the area and there was someone who was to see to the explosion or to the time period as to when exactly this bomb would explode, would I be understanding you correct if I say that?
MR NYALUNGA: I think I explained that he immediately parked the car, came back and joined us in the other vehicle and immediately detonated the bomb, we were together in the same car driving off.
MR MBETHE: So when the bomb was exploding, all of you were in a car and you were driving out of Witbank?
MR NYALUNGA: Yes.
MR MBETHE: In that case Mr Nyalunga, did you, did any of you, yourself or the other two comrades that you've told us about, not foresee that some innocent people might be killed by the bomb?
MR NYALUNGA: That we did consider that the possibilities are there. There was no way we could avoid it.
MR MBETHE: And in fact we know now that indeed innocent people were the ones who were affected by the bomb. Now, I would assume, I am not necessarily well-versed with the operations in the military, but seeing that it was not in the field where two sets of armies were fighting, this was a place which would have casual people who would not even know about the bomb being in the place. What is it that either you yourself or the other people who were involved in the car did in order to make sure that even though we don't have victims, that we must not have too much casualties, so to put it?
MR NYALUNGA: I think we are talking about a situation that is completely different. We were involved in an urban guerrilla warfare, it's not a situation where the enemy is that side and we are this side and you'll find that the enemy has placed itself in buildings, that there are civilian offices underneath. We did consider that well other people will be injured, but there was no way you are going to stand there and write there "Warning important, people not to pass there" because that is going to happen, otherwise we won't achieve our goal, we are sorry for those who passed there during that time.
MR MBETHE: So basically what you are saying is there were no rules as to how this whole thing had to be done.
MR NYALUNGA: I do not understand the question you ask.
MR MBETHE: You've already alluded to the fact that there was a possibility that innocent people would be killed. Now I would assume an operation like that one could have casualties, people who are innocent, but the target, at least the bomb should do the damage to the target. Now the way I understand it, whilst you did consider that some innocent people might be injured ...(indistinct), but there were no particular steps that were taken in order for it to, or for you people to make sure that the real target is hit.
MR NYALUNGA: I think that was considered by the mere fact of the time that was chosen, by that I mean, it was not yet that busy, particularly in that area.
MR MBETHE: In the morning?
MR NYALUNGA: In that time in the morning, particularly down in that area next to those offices.
JUDGE DE JAGER: Wouldn't that be the time when all the people are going to work between 8 and 9, still moving in the streets towards their offices?
MR NYALUNGA: Yes, that will be the time but I think if it would have gone off later, it would have been worse, so during that morning, according to the information that we had, is that the intended targets report in the morning to get their task and then go out, so ...(indistinct) during the day you would find very few of them.
MR MBETHE: According to the information that you had, who gave you this information?
MR NYALUNGA: I think I did explain to ...
CHAIRPERSON: The Commander, Mr Mbethe.
MR MBETHE: Yes, but my question essentially relates to the fact that whilst you had made considerations and you had taken steps to assure or to ensure that the target that you had was going to be there at the time or the people who you were targeting were going to be there at the time, but we know now that none of those people were hit by the bomb, so what I'm asking you is, did this not - did you not think about this prior?
MR NYALUNGA: Did I not think about what?
MR MBETHE: About the fact that innocent people, between 8 and 9 o'clock, this is the time when people are going to work.
MR NYALUNGA: That was considered.
CHAIRPERSON: Can I rephrase your question, Mr Mbethe?
MR MBETHE: Thank you, Madam Chair.
CHAIRPERSON: What Mr Mbethe is trying to find out is whether there were any steps that were taken to minimise casualties around the target, bearing in mind that the bomb was going to be placed in a busy area, frequented not only by the intended target, but by a number of civilians at about 8 to 9 in the morning.
MR NYALUNGA: I think that was considered. If the bomb was planted earlier in the morning, particularly in those offices, the people who were reporting in the morning were the police at that time and not necessarily civilians, civilians who will be caught in the cross-fire would be people who are passing, but these would not be intended targets, it's just unfortunate that some of them died, but that was considered.
JUDGE DE JAGER: Did you have any knowledge that the police would only report for work as late as between 8 and 9 in the morning and not at 8 o'clock or earlier? Later than 8 o'clock?
MR NYALUNGA: According to the reconnaissance that we have done before, we could see that their cars start, because in the area that the car was parked, because it was above written, parking reserved for police vehicles only, it would start filling up from half-past 7 upwards, but if you go there during the day, you will find that these cars, they are not there, they have gone out maybe for duties or whatever, so we thought the appropriate time would be when they are reporting in order to get whatever task that they are supposed to be doing.
CHAIRPERSON: Mr Mbethe?
MR MBETHE: Just one more question. Did you know the magnitude of the bomb? Was it clear to you yourself as to how big an area this bomb would damage if it went off?
MR NYALUNGA: Well, the problem is the explosive, it can not be detonated, because it depends whether it's a built-up area or it's an open area or whatever, but at least you should have had more or less knowledge as to if we put this bomb here, this area, this circumference of the area would at least be affected.
MR NYALUNGA: I wouldn't be exact on that one.
MR MBETHE: Do you agree with me that the place where the bomb was placed is inside town and it's between buildings, or there are buildings surrounding the area?
MR NYALUNGA: Yes.
MR MBETHE: Not only is there a building as you have already stated, that was used by the Security Forces, but there were other buildings that were in the area?
MR NYALUNGA: Yes.
MR MBETHE: Now what were your - what did you think about that, that in other buildings where there would be normal and casual people, in those buildings, what did you think of it, did you try to possibly warn those people and in the other buildings that look, something like this might happen? Could you have done that?
MR NYALUNGA: That wouldn't indeed have been possible.
MR MBETHE: You wouldn't have warned the people of that, even if you wanted to, it wouldn't have been possible. As it pleases the Committee, Madam Chair, no further questions.
NO FURTHER QUESTIONS BY MR MBETHE
CHAIRPERSON: Thank you Mr Mbethe. Mr Schultz?
MR SCHULTZ: Thank you Madam Chair.
CROSS-EXAMINATION BY MR SCHULTZ: Mr Nyalunga, just to go back to your infiltration into the country during 1987, did I hear correctly that you had joined this Special Op Unit in which country?
MR NYALUNGA: Maputo, Mozambique.
MR SCHULTZ: And were you infiltrated from Mozambique into South Africa?
MR NYALUNGA: No. Is this relevant to the case?
CHAIRPERSON: Are you in a position to respond to that Mr Nyalunga? We will determine the relevance or otherwise of that question.
MR NYALUNGA: No from Botswana.
MR SCHULTZ: So you were infiltrated from Botswana. At that stage did you go directly as you said to Vosloorus where you became a member of the underground unit?
MR NYALUNGA: Yes.
MR SCHULTZ: When you came to Vosloorus, did you know this person known as Thabang already, or did you only meet him there?
MR NYALUNGA: We infiltrated together with him.
MR SCHULTZ: So the two of you came together from Botswana.
MR NYALUNGA: Yes.
MR SCHULTZ: What was the extent of your training regarding bombs, the building and the placing of bombs? Did you receive any specific training in that regard?
MR NYALUNGA: Yes, I did.
MR SCHULTZ: What did it consist of?
MR NYALUNGA: Engineering military ...(indistinct)
MR SCHULTZ: Were you taught how to wire up a bomb, to put it that way?
MR NYALUNGA: Yes.
MR SCHULTZ: Were you also taught how to connect a bomb to a timing device?
MR NYALUNGA: Yes.
MR SCHULTZ: I didn't quite catch Thabang's real name, what was his real name?
MR NYALUNGA: Kholile Sam.
MR SCHULTZ: And Thabang was a pseudonym.
MR NYALUNGA: Thabang was a pseudonym.
JUDGE DE JAGER: Would you kindly repeat his real name again.
MR NYALUNGA: Kholile Sam.
JUDGE DE JAGER: Kholile ...
MR NYALUNGA: Kholile Sam.
JUDGE DE JAGER: Sam.
MR NYALUNGA: Yes.
JUDGE DE JAGER: Thank you.
MR SCHULTZ: Now did you and Thabang both undergo the same training with regards to specifically the making of bombs and the placing of bombs?
MR NYALUNGA: I cannot confirm that because we trained during different time, different countries.
MR SCHULTZ: Now the underground unit to which you belonged in Vosloorus, how many members did it consist of?
MR NYALUNGA: I think I've state, myself and Thabang.
CHAIRPERSON: Two.
MR SCHULTZ: Now you are aware that two persons were found guilty of 70 charges relating to the specific bomb explosion during 1990, Joseph Vilakazi and Ramuede Mabuya. What was their involvement in all the circumstances surrounding the explosion of the bomb?
MR NYALUNGA: I think I've explained here what happened on the day of the explosion of the bomb. They are involved as far - because they were people who were handled by Thabang as the Commander of which I did not know anything about them. There are things that he did, that I did not have to know about them.
MR SCHULTZ: So the way, if I understand you correctly, the way in which it worked was that you knew as few people as possible.
MR NYALUNGA: Yes and besides, I'm from the area, I had to play a low profile. He's not from that area.
MR SCHULTZ: You did not for instance know that the two persons who were found guilty as I stated, were the persons who collected the components of the bomb from the so-called dead letter box where the components were kept?
MR NYALUNGA: I was not there ...(indistinct) do that.
MR SCHULTZ: You've never met these people?
MR NYALUNGA: No, I've known them, I've seen them, but I didn't know they are involved.
CHAIRPERSON: Did you know about their involvement with regard to the collection of ...
MR NYALUNGA: No I was not aware with whom he went to collect those things, I only learned of it later.
MR SCHULTZ: Do you know what or where Thabang is?
MR NYALUNGA: He's dead.
MR SCHULTZ: Do you know when he died?
MR NYALUNGA: Yes.
MR SCHULTZ: When was that?
MR NYALUNGA: It was November 7, 1998.
MR SCHULTZ: Do you know how he died?
MR NYALUNGA: I heard recently there were people applying for amnesty for his death.
MR SCHULTZ: Was he killed by the police?
MR NYALUNGA: So it was confirmed here in this hearing.
MR SCHULTZ: Is that what you heard?
MR NYALUNGA: That's what I heard.
JUDGE DE JAGER: Sorry, was it 19?
MR NYALUNGA: 1988.
JUDGE DE JAGER: 1988.
MR NYALUNGA: Yes.
JUDGE DE JAGER: Thank you.
MR SCHULTZ: You said that you went on a reconnaissance with Thabang once or twice to Witbank, do I understand that correctly?
MR NYALUNGA: Yes.
MR SCHULTZ: Now was it once or was it twice?
MR NYALUNGA: It's more than once.
MR SCHULTZ: Was it more than twice?
MR NYALUNGA: It could have been more than twice, but it's more than once.
MR SCHULTZ: If you have to speculate about how many times exactly, how many times would you state that you went on reconnaissance to Witbank?
MR NYALUNGA: I cannot remember exactly, it could have been thrice or four times.
MR SCHULTZ: Now every time when you went on reconnaissance, was it just - did you every time go together with Thabang, or did you go with different people?
CHAIRPERSON: I think the evidence is specific that he went with Thabang.
MR SCHULTZ: Thank you Madam Chair. Now, can you explain exactly what you did when you did this reconnaissance of the area where the bomb was to be placed? How did you go about it?
MR NYALUNGA: ...(indistinct) the area during different times of the day, going around the shops opposite there and check what's happening. That was the best we could do because we couldn't just get in there and check inside what's happening.
MR SCHULTZ: And do I understand also correctly that you did not only look at the area itself? Did you also look at the movements of the police and civilians in this area?
MR NYALUNGA: We checked the building and that building was used by the police mostly.
MR SCHULTZ: During the course of your reconnaissance, did you notice that this building is not only occupied by the police?
MR NYALUNGA: Yes, we did.
MR SCHULTZ: Did you notice that the police actually occupied only a small portion of the building?
MR NYALUNGA: I was not sure about the portion, how big it is that they were occupying.
MR SCHULTZ: Did you notice that one portion of the building was taken up by the NBS Bank?
MR NYALUNGA: Yes.
MR SCHULTZ: And another portion by Protea Furnishers, a furniture shop.
MR NYALUNGA: I cannot recall how far it was or how close it was, but I remember there was a furniture shop somewhere.
MR SCHULTZ: Did you notice that part of the building was taken up by a Doctor's surgery?
MR NYALUNGA: I can't remember that.
MR SCHULTZ: Now what can you remember exactly about this building?
MR NYALUNGA: No, that there was a bank, I remember that, but these other business premises, I cannot recall all of them, Santam Bank.
MR SCHULTZ: Now your reconnaissances to this area where the bomb was to be placed, it took place on different days and different times. What were the times which you can remember when you visited these premises or checked out these premises, to put it that way?
MR NYALUNGA: From the morning hours.
MR SCHULTZ: Sorry?
MR NYALUNGA: Morning hours.
MR SCHULTZ: Was it mostly in the morning hours?
MR NYALUNGA: Morning hours day and afternoons.
MR SCHULTZ: Now can you just explain again, there's one aspect that I don't quite understand. Why specifically was it decided that the bomb would explode in the morning?
MR NYALUNGA: That was according to what we found out is that the police report there for duty in the morning and then they go out into foreign tasks, so the morning part was a time when you get the majority of them going there.
MR SCHULTZ: Is that also the reason why a Monday morning was chosen?
MR NYALUNGA: On the particular day, I'm not sure, I don't think there was any particular reason whether it could have been a Monday or Wednesday, I don't know.
MR SCHULTZ: Now, as you previously stated, there was definite danger for civilians, innocent civilians to be injured and killed in this bomb explosion. Did you, during the course of your reconnaissance, take note of times when there probably would be the least civilians present when a bomb could explode?
MR NYALUNGA: I think I did explain that earlier, that we, to an extent, we did consider that the civilians will be hit during the courses.
MR SCHULTZ: That is indeed what you said, but that's not my question. My question is did you take note of times when the least possible civilian casualties or injuries would be caused by the explosion of the bomb?
MR NYALUNGA: According to our analysis of the situation, at that time of the morning, it was not yet that easy. If it would have happened a bit later, I think we would have had more civilian casualties.
CHAIRPERSON: So you did take note?
MR NYALUNGA: Ja, we did.
CHAIRPERSON: In thought.
MR SCHULTZ: Are you aware now that this bomb exploded at 8.14 exactly on that morning of the 24th of October?
MR NYALUNGA: I cannot comment on the exact time.
JUDGE DE JAGER: 1 - 4, 14, date.
MR NYALUNGA: 1 - 4.
JUDGE DE JAGER: Thanks.
CHAIRPERSON: Yes, Mr Schultz.
MR SCHULTZ: Thank you Madam Chair. You, when you reconnoitred the area, you were aware that civilians would be injured. How did you feel at that stage in 1988 about innocent civilians doing their banking business, probably being killed, or seriously injured by this explosion?
MR NYALUNGA: The main consideration was our target and then the civilians, we thought about them, but if we were intending solely to kill civilians, we would have placed the bomb somewhere else and targeted civilians, but that civilians were not our target, it's just unfortunate that we could not avoid the death of innocent people.
MR SCHULTZ: Mr Nyalunga, I want to refer you to your application for amnesty, specifically on page 5, going over to page 6 of the bundle of documents, specifically question 10 (a) where you have to state the political objectives sought to be achieved by this act. You say there
"To kill all those who associated and enforced the policies of the previous government"
and then in 10 (b) I take it that you say that the police force members were regarded as enemies of the people, so your main objective was to kill police force members?
MR NYALUNGA: Yes.
MR SCHULTZ: Was there not, in your opinion, another way to kill police force members without the risk or with lessening of the risk of killing innocent civilians?
MR NYALUNGA: I think on this one, we know for a fact that previously, the Special Branch particularly, had hired offices in premises that are business premises and our people were being tortured in those buildings and they're using those premises in order to avoid being erased. At one point in time we had to target those buildings.
MR SCHULTZ: Was it your specific intention to kill members of the Special Branch of the police or would any member of the police have done?
MR NYALUNGA: Can you repeat your question?
MR SCHULTZ: Was it your specific intention to kill members of the Special Branch of the police, or would you have been satisfied to kill any member of the South African Police?
MR NYALUNGA: Both.
CHAIRPERSON: Mr Schultz, is this emanating from what you've referred him to, pertinently page 6 and paragraph 10 (b)?
MR SCHULTZ: That is correct. That is correct, Madam Chair.
CHAIRPERSON: Yes, hasn't he been specific in that regard, that all police force members and army personnel, he's given a wider category of the people that were the intended targets?
MR SCHULTZ: Thank you Madam Chair, I appreciate you showing me that. There is one question following from all of this which I would ask in finalisation of this specific matter. Sir, Mr Nyalunga, could you not have placed a bomb at the Witbank Police Station which was further away from the centre of town, the centre of business?
MR NYALUNGA: I was not making the decisions, I had a Commandeer.
MR SCHULTZ: Was this not discussed at all?
MR NYALUNGA: He took the final decision.
CHAIRPERSON: Was this discussed at all? That was the question.
MR NYALUNGA: No, it was never discussed.
MR SCHULTZ: And the Commander to which you refer?
MR NYALUNGA: Thabane, Kholile Sam.
MR SCHULTZ: Just to get to the assembling of the bomb itself, you said that you were present there when the bomb was assembled in the car and you and Comrade Silver, your co-applicant, took turns watching out for passing civilians or passers by. What exact part did you take in the assembling of the bomb itself, what exactly did you do?
MR NYALUNGA: I mean we had to put things in order in the boot, so that the whole thing doesn't shake, assist there and in connecting certain wires, we would assist there.
MR SCHULTZ: Both of you?
MR NYALUNGA: Ja and then in turns go out and whilst the other one is outside, the other one is inside.
MR SCHULTZ: No, if you can just refresh my memory, who connected the timer device to the bomb?
MR NYALUNGA: I think straight to that ...(indistinct) of the remote control mechanism that was to be used which we are not familiar with, myself and Thabang. It was Comrade Silver who specifically did that.
CHAIRPERSON: And by Comrade Silver you mean John Ithumeleng Dube?
MR NYALUNGA: Yes.
CHAIRPERSON: Can you, just for purposes of our proceedings, simply refer to him as Mr Dube?
MR NYALUNGA: Okay.
MR SCHULTZ: Was it early on the Monday morning that the bomb was so put together?
MR NYALUNGA: Yes.
MR SCHULTZ: Did Thabang drive the bomb vehicle by himself, or was there someone with him in the vehicle?
MR NYALUNGA: No, he drove it by himself.
MR SCHULTZ: And did both of you, you and your co-applicant, follow him in another vehicle?
MR NYALUNGA: Yes.
MR SCHULTZ: Did I also understand correctly that you waited for Thabang at the taxi rank?
MR NYALUNGA: Yes.
MR SCHULTZ: That is the taxi rank further down the street, about 500 metres from where the bomb exploded.
MR NYALUNGA: I'm not sure about the distance.
MR SCHULTZ: How far were you away from the taxi rank when the bomb exploded?
MR NYALUNGA: We were on our way to the highway when it exploded. We were far from the taxi rank.
MR SCHULTZ: Was it exploded by remote control or by a timing device.
MR NYALUNGA: Remote control, as stated before.
MR SCHULTZ: Who handled the remote control.
MR NYALUNGA: Thabang as the Commander of the Unit.
MR SCHULTZ: And who was driving, let's call it the get-away car?
MR NYALUNGA: I did.
MR SCHULTZ: I want to refer you to page 60, sorry page 70 and further of the first bundle of documents which contains the Judgment in the criminal matter which followed from this explosion. In this Judgment there is reference to one Steve Nyalunga, is that you?
MR NYALUNGA: Yes.
MR SCHULTZ: And you spoke about your sister and your brother-in-law, what are their names?
MR NYALUNGA: Lere Ngala.
MR SCHULTZ: And her husband's name is...
MR NYALUNGA: Thabe
MR SCHULTZ: Thabe Ngala.
MR NYALUNGA: Yes.
MR SCHULTZ: What was their involvement in the whole matter? Did their involvement only go so far as to provide a place for the bomb to be put together?
MR NYALUNGA: They are not involved, we only used their house.
MR SCHULTZ: Did they know that you are going to use their house? Did you ask them to use their house?
MR NYALUNGA: I do not know what arrangements Thabang made with them because when we went there it was Thabang who had arranged already and he had familiarised himself with my sister and my brother-in-law.
MR SCHULTZ: And all the times when - first let me ask you that, let me just rephrase. How many times were you there when you visited Witbank during the reconnaissance and the building of the bomb. How many times did you visit your sister's house?
MR NYALUNGA: I never specifically visited her for the planting of the bomb or reconnaissance, I used to visit her just as a sister, nothing else. I can't remember how many times.
CHAIRPERSON: But during the reconnaissance, did you ever go past her place?
MR NYALUNGA: Ja, I would pass her place, she would not know whether I'm from reconnaissance or what, I used to visit her as a sister.
JUDGE DE JAGER: How did she come to know Thabang, or how did Thabang...?
MR NYALUNGA: No, she came to know Thabang through me.
JUDGE DE JAGER: So you introduced them?
MR NYALUNGA: Yes.
JUDGE DE JAGER: When was that?
MR NYALUNGA: It was some time early in 88.
JUDGE DE JAGER: Was that after you started planning the bomb?
MR NYALUNGA: Not yet.
CHAIRPERSON: Was it before the target was even selected by Thabang?
MR NYALUNGA: Ja, it was long before.
CHAIRPERSON: Mr Schultz.
MR SCHULTZ: Thank you, Madam Chair. When you arrived there together with Thabang to build the bomb there at your sister's house, how did you gain entrance into the house? Were you in possession of keys? Was Thabang in possession of keys?
MR NYALUNGA: Thabang had arranged prior before and he picked up the key under the dustbin and he left it there when he left.
MR SCHULTZ: Now your sister ...(intervention)
CHAIRPERSON: Mr Schultz, is this line of cross-examination getting us anywhere with regard to the pertinent issues we have to decide in considering whether Mr Nyalunga qualifies for amnesty or not?
MR SCHULTZ: I think I will leave it there, thank you Madam Chair.
CHAIRPERSON: Yes.
MR MBETHE: Madam Chair, sorry, with the permission of the Tribunal, I would like to just put one final question which was left over in my cross-examination.
CHAIRPERSON: You will be allowed, but Mr Schultz is still conducting his cross-examination.
MR MBETHE: Oh, sorry, I thought he said that was the last, sorry.
CHAIRPERSON: No, he was simply abandoning the line of cross-examination he had started embarking upon.
MR MBETHE: Sorry.
CHAIRPERSON: You may proceed Mr Schultz.
MR SCHULTZ: Thank you Madam. You did not see yourself, Mr Nyalunga, where specifically the car was parked, the bomb vehicle was parked?
MR NYALUNGA: It was parked next to the building, just where there was a board written: "S A P vehicles parking only".
MR SCHULTZ: Did you see it being parked there?
MR NYALUNGA: Yes.
MR SCHULTZ: And did you see Thabang returning from the parked vehicle?
MR NYALUNGA: Okay, yes.
MR SCHULTZ: Now the people who were killed during this bomb explosion, I'm specifically referring to a Mr Jacob Masuku, a Mr Jacob Samuel Masuku, he was on his way to doing his banking business on this morning. If you could speak to his family, his wife and his four children and say to them, and say anything to them with regards to his death on this morning of the 24th of October, what would you say to them?
MR NYALUNGA: I would very much apologise to them, he was not our intended target, it's just unfortunate that he passed there when this thing happened.
MR SCHULTZ: I have no further questions at this stage, thank you Madam Chair.
CHAIRPERSON: Thank you Mr Schultz. Mr Mbethe we'll now afford you an opportunity to put one question which you omitted to put to Mr Nyalunga.
MR MBETHE: Thank you Madam Chair. Madam Chair my question in a way relates to what Mr Schultz just asked now, but I will just put the question.
CHAIRPERSON: And has it not been covered?
MR MBETHE: No, Madam Chair, I think it has not been covered.
CHAIRPERSON: Yes, you may proceed.
FURTHER CROSS-EXAMINATION BY MR MBETHE: In retrospect Mr Nyalunga, do you think that you made a mistake the way that you planted the bomb and if so, would you have done it differently? Thank you.
MR NYALUNGA: It's a difficult question to answer, whether I would have done it differently, because those were different times by then and now you are asking me this question at this point in time.
CHAIRPERSON: The question is, do you think you made a mistake by planting the bomb where you planted it at that time?
MR NYALUNGA: I do not think we have made a mistake.
CHAIRPERSON: Yes. Mr Mbethe.
MR MBETHE: Thank you Madam Chair, nothing further.
NO FURTHER QUESTIONS BY MR MBETHE
CHAIRPERSON: Mr Koopedi, do you want to re-examine?
MR KOOPEDI: Nothing in re-exam thank you Chairperson.
NO QUESTIONS BY MR KOOPEDI
CHAIRPERSON: Mr Motata do you wish to put any questions to Mr Nyalunga?
JUDGE MOTATA: None, Madam Chair.
CHAIRPERSON: Sorry, Judge Motata. Judge de Jager?
JUDGE DE JAGER: Did you use explosive, loose explosives to make the bomb or was the bomb already pre-prepared like a limpet mine or a personal mine?
MR NYALUNGA: ...(indistinct) and concentrated charges.
JUDGE DE JAGER: Sorry.
MR NYALUNGA: ... (indistinct) elongated and concentrated charges.
JUDGE DE JAGER: Oh. How many kilograms did you use?
MR NYALUNGA: I cannot remember exactly how many kgs we used.
JUDGE DE JAGER: Approximately?
MR NYALUNGA: Above 20.
JUDGE DE JAGER: Above 20. This building, is it a single story or a double story building?
MR NYALUNGA: It's not a single story. I cannot remember whether it's more than three stories or whatever.
JUDGE DE JAGER: Where were the offices of the police?
MR NYALUNGA: I think they were on the second floor.
JUDGE DE JAGER: On the second floor. Why didn't you consider planting a bomb for instance in the lavatories on the second floor?
MR NYALUNGA: I think that maybe it was not possible, but all the decisions came from my Commander.
JUDGE DE JAGER: Yes, but you say it wasn't possible, so tell me why wasn't it possible?
MR NYALUNGA: I think maybe the security inside, to go inside with an explosive into a police ...
JUDGE DE JAGER: At night time?
MR NYALUNGA: At night time I don't think there will be access because there wasn't anyone there except for people who are guarding the building.
JUDGE DE JAGER: You see, if you target specific people, we've got 30, 40 people injured here. Not a single policeman.
JUDGE MOTATA: My colleague cannot be correct in that respect, if he has regard to the bundle, the second bundle where you have statements, 58, there is a policeman Zondi who was walking out and he was injured. There was another policeman who was across the building doing some business and he was injured by ...(indistinct)
MR KOOPEDI: And if I may, Chairperson, just to add on what Judge Motata has said, I believe there are about three or four people who were at that time employed by the SAPS who were either in the offices or have just left the offices. One was going to his car, who was also injured, so I am backing what Judge Motata says.
JUDGE DE JAGER: Could you kindly give me the reference.
MR KOOPEDI: I will start with, on page 22, I ...(indistinct - mike not on) I mean 27,
INTERPRETER: The speaker's mike.
CHAIRPERSON: Your microphone Mr Koopedi.
MR KOOPEDI: Sorry, Chairperson. On page 27, there was a female constable Roelene Stiglingh, if I'm pronouncing it correctly,
CHAIRPERSON: Yes.
MR KOOPEDI: If you could bear with me Chairperson, I will find these people.
CHAIRPERSON: Yes, whilst you are still trying to find more names, can you give a number to this bundle? Can you refer to this bundle containing statements of witnesses at the criminal court as Bundle B.
MR KOOPEDI: Thank you.
CHAIRPERSON: And the application documents as Bundle A?
MR KOOPEDI: Thank you, Chairperson. On page 5 also, page 5 Bundle B. 58, Zondi ...(indistinct- mike not on). 58 on Bundle B.
CHAIRPERSON: Are you still looking, Mr Koopedi?
MR KOOPEDI: I am Chairperson.
JUDGE DE JAGER: Yes, you could perhaps give it to her, so I will continue with my next question. Three people killed, Dinah Elizabeth Mula, Elias Msina and Jacob Masuku, is there any evidence that they've been connected with the police?
MR NYALUNGA: I don't know that, I never knew that.
JUDGE DE JAGER: Did you also foresee that women and children could be killed in this attack?
MR NYALUNGA: Yes, that we did know.
JUDGE DE JAGER: Were there any steps taken to avoid that or did you regard it as, well they may be killed, it wouldn't matter?
MR NYALUNGA: It's what I've said earlier that according to our assessment, if it could have gone off later, more civilians would have been killed, that is why it was considered.
JUDGE DE JAGER: Well the great majority of the people who were injured were civilians.
MR NYALUNGA: That's what I'm made to understand.
CHAIRPERSON: Mr Koopedi, I note that you are still locating the other pages. In order to facilitate these proceedings, we'll afford you to continue doing so and once we come back from lunch, you can then be in a position to simply tell us the pages, if you have located other pages which will have reference to other policemen who were killed in this incident.
MR KOOPEDI: Chairperson, I'm prepared to concede to the three that we've referred to at the moment. Should I find any other, I will bring that to the attention of this Committee.
CHAIRPERSON: You can bring it up during your legal argument.
MR KOOPEDI: Yes, I'll do that, Chairperson.
CHAIRPERSON: Yes. Mr Nyalunga, I'm aware that you only accompanied your Commander after the target had been selected. Is my assessment correct of your evidence in that regard?
MR NYALUNGA: Yes.
CHAIRPERSON: You did not therefore take part in the actual selection of the target, that was done by Kholile all by himself.
MR NYALUNGA: Yes.
CHAIRPERSON: Was it, to your knowledge, customary for a Commander to undertake some kind of reconnaissance before selecting a target?
MR NYALUNGA: Yes.
CHAIRPERSON: I didn't get your response.
MR NYALUNGA: I said yes.
CHAIRPERSON: Did you know with regard to this particular incident whether Kholile or Thabang, as he has been referred to in these proceedings, had undertaken such reconnaissance prior to him advising you of the target that had been selected?
MR NYALUNGA: I didn't have that information, but I thought maybe he should have done that before. I didn't know that.
CHAIRPERSON: Yes. Were you able to deduce from what you knew to have happened in the past, that you don't select a target unless you have conducted some kind of reconnaissance?
MR NYALUNGA: Yes, I thought maybe he got some information from somewhere. Maybe he's done his reconnaissance before he informed me.
CHAIRPERSON: So you only accompanied him after you had been informed of the selected target?
MR NYALUNGA: Yes.
CHAIRPERSON: Once you were informed of the selected target, was the reconnaissance you conducted in his company, did that reconnaissance follow immediately after the target had been selected, o to your knowledge, after he had informed you of the selected target, he conducted some kind of reconnaissance all by himself before you also participated in the further reconnaissance that you've evinced before this Committee?
MR NYALUNGA: I think yes, he must have reconnaissance prior to informing me because he was not familiar with the are which means he had been to the area prior before informing me of the area of the target.
CHAIRPERSON: What I want to know is, after you had been informed of the selected target, did you immediately accompany him during the reconnaissance that you've referred to in your evidence?
MR NYALUNGA: No, it was not done immediately. He informed me until we started doing it a bit later.
CHAIRPERSON: How long after you had been informed of the selected target, did you personally accompany him to those reconnaissances you've referred to?
MR NYALUNGA: I think it's about a month or so.
CHAIRPERSON: And how long did it take for the operation to be ultimately executed after the target had been selected?
MR NYALUNGA: I cannot be exact because there were other technicalities which had to be fixed before the target could be ...(indistinct)
CHAIRPERSON: Yes. Can you not approximate whether, after you had been informed, it took six weeks, or more than six weeks, for the operation to be ultimately executed?
MR NYALUNGA: It took more than 4 months.
CHAIRPERSON: 4 Months.
MR NYALUNGA: Yes.
CHAIRPERSON: Thank you. Mr Koopedi, emanating from questions from the Bench, do you have any questions you want to clear with Mr Nyalunga?
MR KOOPEDI: No questions, thank you Chairperson.
NO FURTHER QUESTIONS BY MR KOOPEDI
CHAIRPERSON: Yes. That closes Mr Nyalunga's application.
MR KOOPEDI: That is his application, Chairperson, thank you.
WITNESS EXCUSED
CHAIRPERSON: Yes. Are we in a position to proceed with the Evidence-in-Chief of Mr Dube?
MR KOOPEDI: Yes we are Chairperson.
CHAIRPERSON: Yes, you may proceed.
MR KOOPEDI: Thank you Chairperson.
