CHAIRPERSON: Good morning. We want to start the proceedings. For the record it's Thursday 21 November 1991. We are continuing with the session of the Amnesty Committee at Cape Town. The Panel is constituted as has been indicated earlier on in the record and we will be hearing the application of Mr Siyali this morning, Amnesty Reference AM 7997/97. Mr Rheeder, are you appearing for the applicant?
MR RHEEDER: That's correct, Honourable Chairperson.
CHAIRPERSON: Thank you, Mr Rheeder.
MR RHEEDER: As the Committee pleases. Good morning from this side of the applicant and myself.
CHAIRPERSON: Thank you. And then Mr Williams, are you appearing for Mr Jonas?
MR WILLIAMS: That is correct, Mr Chairman.
CHAIRPERSON: Thank you. And I assume Ms Patel that you are appearing as the Leader of Evidence?
MS PATEL: That is correct, Honourable Chairperson.
CHAIRPERSON: Thank you very much. Yes, you are all on record. Mr Rheeder, is there anything else that you want to put on record before we listen to the testimony of your client?
MR RHEEDER: Just a formal matter. I have in my possession the original duly signed affidavit of Mr Siyali, which I just would like to hand up to the Committee. It is exactly the same as the copies that were handed in earlier on, at that stage Mr Siyali was just out of town.
CHAIRPERSON: Yes, so this is the originally signed one.
MR RHEEDER: It was - this one was signed later again, but it is exactly the same affidavit.
CHAIRPERSON: Yes, well, in any case just for the sake of completeness, Mr Rheeder, we'll mark it as Exhibit A. It is really identical to the one on pages 10 to 14 of the bundle.
MR RHEEDER: That's correct, Honourable Chairperson.
CHAIRPERSON: Yes, very well. So that will be Exhibit A. Would you want your client to be sworn in?
MR RHEEDER: If the Chair pleases.
ISAIAH PATRICK SIYALI: (sworn states)
MR RHEEDER: As the Chair pleases. Honourable Chairperson,
we are again going to start off by my client just reading his statement into the evidence, which will naturally be done in English. Thereafter, I'll ask him a few questions to clarify a few points and certain general question and then turn him over for questioning.
EXAMINATION BY MR RHEEDER: Mr Siyali, if you can just, your affidavit that you've made in your application, if you can just read that into the record.
"I, the undersigned, Isaiah Patrick Siyali, declare under oath as follows
I am a 39 year old male. A Sergeant in the employ of the South African Police Service. I'm presently stationed at Cape Town, with Organised Crime Unit, Narcotics. My home address is number 10 Delta Road, Graceland, Khayelitsha. I'm married, with one child. I have no previous conviction of any nature.
I attended Hammanskraal Police College and when I left the College in March 1985, I was posted to the Security Branch of the South African Police, as it was then called. I was stationed Culemborg Office of the Security Branch, Cape Town, from 1985 until 1992, when I was transferred to the Organised Crime Unit. Through this period I've held the rank of Constable.
My main duties at the Security Branch consisted of taking care of the so-called Section 29 detainees. I fetched and escorted them to and from the various police stations, where they were detained. I made lists of personal items and food which they requested and I bought and delivered it to them. I also escorted them to and from medical doctors.
During approximately September 1987, I'm not able to recall the exact date, Tony Yengeni, who was a Commander of the military wing of the ANC in the Western Cape, according to my knowledge, was arrested by members of the Security Branch, together with a number of approximately 15 askaris. The askaris came from the Transvaal, as it was then called, to assist the Security with the combatting of the terrorism.
I was not present during the arrest. I was, however, on duty when Mr Yengeni was brought into the office at Culemborg. According to my knowledge he was handled by my senior, Mr Liebenberg, and by Mr Benzine. They conducted the interrogation of Mr Yengeni, which I did not witness. I was deemed too junior in the rank to witness the interrogation. It also seemed to me that African policemen were not trusted by white policemen in taking part or witnessing any interrogation.
After Mr Yengeni's interrogation, several persons were arrested, whose names I cannot remember and illegal weapons were found. Mr Yengeni was placed in my care. I was informed that Mr Yengeni would take us to the location of an apparent meeting between himself and Mr Bongani Jonas, who was at that time part of Mr Yengeni's ANC cell.
My duty was to escort Mr Yengeni and to ensure that he did not escape. I was ordered to the Milnerton Police Station, where I arrived at approximately 17h00 on that day. Upon my arrival, my Commanding Officer was already present, together with approximately 15 askaris, who were briefed and informed of the specific plan to arrest Mr Jonas. The plan was that myself, Mr Yengeni and one askari will take a civilian motor vehicle to the meeting place, as pointed out by Mr Yengeni. Other members of the Security Branch and the askaris will follow us and we will remain in radio contact. The plan was to arrest Mr Jonas.
According to the plan, Mr Yengeni, myself and the askari with the name of David, I cannot recall his surname, got in the civilian motor vehicle and proceeded to the meeting place. Mr Yengeni was seated in the passenger seat and David was the driver. I was ordered to sit in the back seat, due to the fact that it was my duty to escort Mr Yengeni and to ensure that he did not escape. The other policemen and askaris, as well as my Commanding Officers, followed at a considerable distance behind us.
The meeting was to take place in Athlone. As we drove along the main road near Athlone, a Mercedes with three passengers approached us from the front. David turned to Mr Yengeni and asked him whether this vehicle was driven by Mr Jonas. Mr Yengeni nodded and we subsequently turned around and followed the Mercedes Benz.
Our Commanding Officer and the rest of the policemen and the askaris were not aware that we turned around. Our radio did not work at the time and we could accordingly not contact them.
We kept on following the Mercedes as it went on the N2, in the direction of Somerset West. It seemed at the time that the driver and the passengers of the vehicle, were not aware that we were following them. After we passed the Gugulethu turn-off on the N2, David drove alongside the Mercedes. The Mercedes drove in the left lane and he drove in the right lane. I thought David would try to force the vehicle off the road.
As we came next to the vehicle, David shouted at me to shoot at the driver of the vehicle, who we believed to be Mr Jonas. The driver of the vehicle was approximately 2 metres from me. I took out my service pistol, turned down the car window and pointed the pistol in the direction of the driver of the Mercedes Benz. Neither the driver or any passenger were aware that we were alongside them. I was very nervous and I also decided that I was not going to shoot directly at the driver of the Mercedes. I fired one shot in the air, whereafter it seemed that Mr Jonas became aware of our presence. David, who was driving the motor vehicle, rebuked me for the fact that I did not shoot at the motor vehicle itself and he then took out his pistol. David started shooting at the Mercedes and I do not remember how many shots were fired.
Mr Jonas then attempted to flee with Mercedes Benz and we gave chase. At some stage during the chase, we left the N2, but later returned. We then crossed the middle of the N2 and pursued Mr Jonas, as he was driving against the flow of the traffic, on the wrong side of the N2, still in the direction of Somerset West.
When Mr Jonas realised that he would not be able to get away, he brought the Mercedes to a stop next to the N2, on the southern side of the N2. Mr Jonas and the one male passenger got out of the Mercedes and fled into the bushes. David stopped our vehicle behind the Mercedes and got out. David followed Mr Jonas into the bushes. I stayed behind with Mr Yengeni as it was my duty to look after him. The female passenger of the Mercedes stayed in the Mercedes. Whilst we were waiting, I heard a shot. A while later appeared with Mr Jonas. I could clearly see that Mr Jonas was shot in the leg.
We then managed to contact the other askaris who were nearby. We took the female passenger, Mr Jonas and Mr Yengeni back to our headquarters at Culemborg. I know that Mr Jonas was interrogated at Culemborg by policemen from the Security Branch. I was however not present during the interrogation. I conducted certain investigation regarding the female passenger of the Mercedes, but could not establish that she was in any way connected with terrorist activities. She was accordingly released.
In view of the above, I respectfully submit that I was at all times acting in my capacity as a constable policeman of the Security Branch. My aforementioned action was done in the bona fide belief that we were combating terrorists and terrorist activities.
MR RHEEDER: Thank you, Mr Siyali. Do you then confirm your statement as the correct version of the events that day?
MR RHEEDER: It is also so that after Mr Jonas was injured, he was not taken directly to Culemborg?
MR SIYALI: Yes, that is correct.
MR RHEEDER: Can you just explain in detail exactly what happened, where you went and what happened and what did you see from the time that you left the N2 until the time that you arrived at Culemborg?
MR SIYALI: After Bongani was shot, David took him and he threw him across the road, on the other side of the fence. He then went to his car, we went by this car to the Athlone police station where other police were waiting for us. When we arrived there, they asked us where we were and then David, the askari, said: "Here is Bongani. He's in the car." They were all happy and they went to Bongani and they affected his injured leg and they assaulted him and they went with him to Culemborg and then they interrogated him. I went with Yengeni to the other office.
MR RHEEDER: It has now been translated that they affected his leg, it is correct that he was shot in the leg?
MR SIYALI: Yes, that is correct.
MR RHEEDER: When you say, what did they do to his leg at the time, at Athlone Police Station?
MR SIYALI: The leg that was shot was also assaulted there.
MR RHEEDER: Could you see that Mr Jonas...(intervention)
ADV SIGODI: Sorry, Ms Interpreter, I think the applicant said ..., meaning that he twisted the leg.
MR RHEEDER: Thank you, Honourable Committee member. So, and who did this? Who twisted Mr Bongani Jonas's sore leg?
MR SIYALI: There were a lot of people there. Mr Benzine was also there. He was also twisting his leg. Each and every person wanted to hold something to Mr Jonas, so that he can feel pain.
MR RHEEDER: You said that you went back to Athlone Police Station and there were policemen waiting for you. Were these the policemen, the Commanding Officers and the other Security Branch policemen and the askaris, which would have followed you to the meeting place?
MR RHEEDER: And after Athlone police station, Mr Jonas was taken to Culemborg. Did you see what they did to him at Culemborg, at your Headquarters?
MR SIYALI: When they were taking him out of the car, when we were going inside, they were kicking him in this leg and they would hold this leg and kick this leg when we were going to Culemborg.
MR RHEEDER: Whilst, you also testified and said that you were at the Security Branch from 1985 to 1992. You also said that your main duties consisted of taking care of the Section 29 detainees. Can you maybe explain that a bit more? What were you doing at the Security Branch?
MR SIYALI: At the Security Branch, we as the police, were also oppressed. We would be given duties as security people because if a person would be tortured, he would be handed over to us. We would take that person to the doctor and then we would give them food and clothes that they needed, etc. Those were the duties of the black officers.
MR RHEEDER: How many black officers were there, or policemen?
MR RHEEDER: And all of them had these duties? Those were your and the other 6/7, those were your main duties?
MR SIYALI: Yes, that is correct.
MR RHEEDER: It's also correct that you acted as interpreters?
MR RHEEDER: The David that you mentioned, you also mentioned whilst you were testifying that you're not able to recall his surname, were you able up until today to remember what his surname is or was?
MR SIYALI: I don't remember because the identity of the askaris was hidden from us. We didn't have the information about them as black members of the Security Branch.
MR RHEEDER: During your testimony, you also mentioned that David at some stage, whilst you were driving to the meeting place, requested from, or when you saw the Mercedes Benz approaching from the opposite direction, David asked Mr Yengeni if that is Mr Bongani Jonas. Did you have a description of his motor vehicle at that stage?
MR SIYALI: The askaris knew, as they were also trained, they knew Bongani as they were also trained.
MR RHEEDER: At the time when you, or the time period that you acted as a policeman at the Security Branch, did you see any other people being tortured?
MR SIYALI: Yes a lot of people. One would try to see what was happening but this whole process was hidden from us.
MR RHEEDER: Can you maybe remember some of the people that you saw that were tortured?
CHAIRPERSON: Mr Rheeder, is that going to assist us?
MR RHEEDER: Just general - I'll leave it at that, Honourable Chairperson, it's not ...
MR RHEEDER: Is there anything that you would like to add at this stage, Mr Siyali?
MR SIYALI: Yes. I am going to be out of context a little bit. I want to say thank you to Bongani and I am so glad that I never triggered the bullet. I'm here because I'm hurt. I want to say thank you to Mr Yengeni because during those times of the askaris, it was very difficult for us because even if you would try to escape there, it wouldn't be easy for us to do anything. Thank you.
MR RHEEDER: No further evidence at this stage.
NO FURTHER QUESTIONS BY MR RHEEDER
CHAIRPERSON: Thank you, Mr Rheeder. Mr Williams, have you got any questions?
MR WILLIAMS: Yes, thank you, Mr Chairman.
CROSS-EXAMINATION BY MR WILLIAMS: Good morning Mr Siyali.
MR WILLIAMS: Mr Siyali, for which specific acts are you applying for amnesty?
MR SIYALI: Pointing Bongani with a firearm and shooting at Bongani and during the shooting, I was also present.
MR WILLIAMS: Now on page 2 of the bundle, you state that you are applying for
"any acts, offence or omission during my time in the Security Police in Cape Town from 1985 to 1992."
You obviously know that you cannot apply for amnesty for a particular incident without disclosing the incident, is that correct?
MR SIYALI: Yes, that is correct.
MR WILLIAMS: Can you tell this Committee, why do you only remember one or two human rights violations that you were involved in over a period of seven to eight years at the Security Branch? Are these the only incidents that you were involved in?
MR SIYALI: Yes, we would not be taken with on trips, that is the only incident that I'm involved in.
MR WILLIAMS: Did you ever torture people or did you ever kill people?
MR WILLIAMS: Now you've stated to the Committee just now that you acted as interpreters. Now surely if you act as an interpreter, you must be at the scene where things are happening, is that correct?
MR SIYALI: Yes, that is correct.
MR WILLIAMS: And you've also stated that you've witnessed tortures, but my question to you is did you ever participate in any of these tortures?
MR WILLIAMS: Now you've just stated to the Committee that you are applying for amnesty for pointing a firearm and shooting etc.
MR WILLIAMS: Is it an offence to point a firearm or to shoot a person - would you consider it an offence to point a firearm or to shoot a person under the conditions under which you did?
MR SIYALI: Yes, it is an offence to point a person with a firearm.
MR WILLIAMS: Why do you say that? I'm talking about the specific conditions under which that act was committed by yourself.
MR SIYALI: Yes, it is an offence under any circumstances. It is always an offence to point a person with a gun.
MR WILLIAMS: Is it an offence for a policeman if he attempts to arrest a person in a bona fide manner, to point a firearm or if you want to apprehend a suspect, is it an offence to point a firearm at that person?
MR SIYALI: Yes, it is an offence because I shot at the person.
MR WILLIAMS: Okay, Mr Siyali, I will return to that later. Now it seems from your statement that you had a meeting at Milnerton police station and that you were briefed there. Can you inform the Committee, who is the person who did the actual briefing?
MR SIYALI: It was Captain Benzine and Bellinghan, the head of the askaris from Pretoria.
MR WILLIAMS: And were the two of them in overall command of this particular operation?
MR SIYALI: Yes, that is correct.
MR WILLIAMS: What were the terms of the briefing at Milnerton police station?
MR SIYALI: There was a meeting and Bongani was about to be apprehended and I was told to get into the car and David and Yengeni would be in the front, occupy the front seats and we would go to Athlone.
MR WILLIAMS: But what exactly was the mission of this entire operation? Was it to arrest Mr Bongani Jonas, or was it to kill him, or to shoot him, or to injure him? What exactly was the mission of this operation?
MR SIYALI: The mission was to apprehend him, but I cannot say for sure that he was going to be killed, because the black people would be taken and would be sent to places. You wouldn't know anything about the real thing because they couldn't trust even myself.
MR WILLIAMS: No, but I'm talking about what was said at this briefing session at Milnerton police station, if there were any plans that he should be shot, or he should be injured or killed, then surely those were mentioned there at the briefing session where you were present then, you heard those things.
MR SIYALI: Whenever people are going for an operation a lot of things are mentioned, if a person would be apprehended and be shot, that depends on the people who'd be doing that job because that would be determined by the conditions that they later encounter.
MR WILLIAMS: Now, how were you - how exactly were you gong to execute this order, or this brief that you had?
MR SIYALI: What order? What kind of an order?
MR WILLIAMS: What was the order that you were given when you met at Milnerton police station?
MR SIYALI: It was to apprehend Bongani Jonas.
MR WILLIAMS: Now my question is, how exactly were you going to effect that?
MR SIYALI: As I've already explained, there were askaris there to apprehend Jonas, but I don't know how was that going to be executed.
MR WILLIAMS: But wasn't that discussed at Milnerton police station?
MR SIYALI: It was said they were going to apprehend Bongani Jonas.
MR WILLIAMS: At the time of the incident, were you aware of the existence of Vlakplaas?
MR WILLIAMS: Did you at that stage know how Vlakplaas operated?
MR SIYALI: No, I just knew that there were askaris at Vlakplaas and whenever they are needed in Cape Town, they would just come. We wouldn't be told, we'd just see them in Cape Town.
MR WILLIAMS: Now why was the assistance of Valkplaas people called in for this particular operation, when you had such a lot of able policemen and women in Cape Town to effect a simple arrest? Why call in the assistance of Valkplaas? What was the motive behind that?
MR SIYALI: The motive was to get hold of Bongani's cell, it was here in Cape Town. We were not trained as MK soldiers were, we were just ordinary policemen, we were just used as helpers. That was not our job to apprehend people.
MR WILLIAMS: No, but surely the Security Police weren't ordinary policemen, they were a cut above the rest, they had particular duties. They were specifically involved in so-called political offences at the time. Surely they had the expertise to effect a simple arrest?
MR SIYALI: Are you talking about the black officers?
MR WILLIAMS: I'm talking about the officers generally who were stationed at the Security Branch.
MR SIYALI: Yes, they were able to arrest, but askaris were coming from somewhere else and they knew people, I didn't even know how Mr Yengeni looked like and I didn't even know Bongani, so they knew one another, that is why they were called to assist, to point out these people, Bongani and Yengeni.
MR WILLIAMS: No, but you see at the stage when you met at Milnerton police station, you already had Mr Yengeni.
MR SIYALI: Yes, that is correct.
MR WILLIAMS: So there was no need for the askaris to identify him.
MR SIYALI: The askaris were there for this particular cell. This cell of Mr Bongani and Mr Yengeni was so big and they were there to apprehend those people belonging to that cell because they knew one another and even the askaris could be able to identify them, that is why they were called, for help.
MR WILLIAMS: Now, did you know that these askaris and Vlakplaas in general, were involved in numerous killings?
MR SIYALI: ; I heard that later because that was the information that wouldn't be revealed to us. I just got that information later and the way they used to behave or act when they were in Cape Town.
MR WILLIAMS: How can you only hear that later, you were part of a unit that was tasked with specific tasks. It was an elite unit, so why wouldn't these things, why didn't it come to your attention?
MR SIYALI: I knew that in Cape Town the people were coming on specific days, or specific months or if there is a certain operation like this one of apprehending Bongani and Yengeni, some of the things were done privately. Yes, I knew that they were involved in some atrocities.
MR WILLIAMS: Now, did you know that at that stage, at the date of the incident?
MR SIYALI: ; Will you please repeat your question, Sir?
MR WILLIAMS: You said that you know that they were involved in atrocities. My question is, at the stage of or at the date of this incident, was that knowledge available to you then?
MR SIYALI: Yes, that is correct.
MR WILLIAMS: Now if you say atrocities, are you talking about tortures, or are you talking about murders, or is that the general term for tortures and murders?
MR SIYALI: The askaris, their duties were not to torture, they were killers.
MR WILLIAMS: Okay and you knew that at the date of this incident?
MR SIYALI: Yes, I knew that very well.
MR WILLIAMS: At the date of the incident, did you foresee the possibility that Mr Jonas could be killed, bearing in mind that there are now askaris that's also part of your group, that's now going for Mr Jonas?
MR SIYALI: Yes, that was possible. I could foresee that that was possible.
MR WILLIAMS: Now was that discussed also, you know, in the group? Did people maybe joke about it, or you know maybe say: "We're going to get this guy" or "We're going to shoot him" or "We're going to kill this guy", you know?
MR SIYALI: As I've already explained that during - if the askaris are present, they knew that they were powerful and they were experts in murders, so that was not to be discussed, there was no need to discuss that.
MR WILLIAMS: There wasn't a need to discuss that. You also worked a lot, I assume, with Mr Benzine and Mr Barnard, is that correct?
MR SIYALI: No, I never worked with Barnard. Yes, I did work with Benzine, but not Barnard.
MR WILLIAMS: And did you also know some of the modus operandi of Mr Benzine? I'm specifically referring to him being known or being accused of torturing people.
MR SIYALI: ; Yes, that is correct.
MR WILLIAMS: Then I'm sure you also foresaw the possibility that if Mr Jonas was captured, that he would definitely be tortured by these men, not so?
MR SIYALI: Yes, that is correct.
MR WILLIAMS: ; Now at what time was Mr Yengeni's meeting supposed to take place with Mr Jonas?
MR SIYALI: It was going to take place at 7 o'clock in the evening.
MR WILLIAMS: And at what time did the police proceed to the area where the meeting place was to be held?
MR SIYALI: I think myself and Mr Yengeni and David, the askari, we left at about quarter past Six from Milnerton.
MR WILLIAMS: So, was the intention to be there before Mr Jonas could arrive there? In other words, to wait for him there?
MR SIYALI: ; Yes, that is correct.
MR WILLIAMS: And to surprise him there, obviously?
MR SIYALI: Yes, that is correct.
MR WILLIAMS: And did you anticipate a possible shoot-out?
MR SIYALI: Yes, that was always the case whenever the people are going for this kind of an operation, that would be anticipated.
MR WILLIAMS: Okay, let's just go to the actual incident itself. You said you were driving a civilian motor vehicle. Is it correct that it was Mr Yengeni's vehicle?
MR SIYALI: If I'm not mistaken, I think the vehicle belonged to - yes, we got that vehicle from Mr Yengeni. That is correct.
MR WILLIAMS: And can you tell the Committee, David, was he an askari or was he a policeman with a rank?
MR SIYALI: I knew David as an askari.
MR WILLIAMS: Now isn't it correct that at that stage the askaris weren't integrated into the police force as such? I think they only became integrated in the 90's, in the early 90's, but at that stage they weren't actual policemen?
MR SIYALI: Yes, that is correct.
MR WILLIAMS: And I put it to you that you were higher in rank than the askaris at that stage.
MR WILLIAMS: Yes, but weren't you higher in rank than those people? I can't here what you say.
MR SIYALI: Yes, my position was a bit higher than the askaris because they were not policemen.
MR WILLIAMS: Now you also state in your affidavit and in your evidence earlier, that David shouted at you to shoot the driver of the vehicle.
MR SIYALI: Yes, that is correct.
MR WILLIAMS: Somewhere else you also say that you obeyed an order or you were commanded to do something and I think you were referring to this shouting, that you should shoot the driver. Now isn't it correct that that is not an order?
MR SIYALI: I can say that it's an order.
MR WILLIAMS: I put it to you that a junior can never give an order to a senior person in the police force. Also a person that is not incorporated into the police force, as the askaris were at that stage, could not give an order to a policeman.
MR SIYALI: I want to say, David was a senior in the murderers and I was not a murderer, therefore he was in a position to give me that kind of an order. He told me to do so because he was so used to killing, so he wanted me to do the same, killing, that is why I couldn't shoot at Bongani.
MR WILLIAMS: No, but the point is, he might have been a senior amongst these non-commissioned officers, or non-commissioned people or agents of the State or whatever, he might have been their senior, but he couldn't have been your senior, he wasn't even in the police force, he didn't have a police number as you. How could he be your senior?
MR SIYALI: That doesn't work that way. It never used to be the case in those days. The askari would be a senior person, even if they were not policemen, but they were expert in killings and they were the favourite of the boers, more than the ordinary policemen in those days.
MR WILLIAMS: So did you shoot him because you wanted to win favour with the boers back then?
MR SIYALI: I did not shoot at him.
MR WILLIAMS: And it seems also as if you decided not to shoot directly at him because you were nervous, not so?
MR SIYALI: Yes, I was nervous but that was not the reason that led me not to kill him, that was from my heart. Bongani was not armed and Bongani could not see him and Bongani was not a threat to my life, that is why I did not shoot. I did it purposely for me not to shoot Bongani.
MR WILLIAMS: Now are you aware that Mr Jonas was shot at point blank range? In fact he faced the person who shot him.
MR SIYALI: That took place in some forest and I could not see that happening.
MR WILLIAMS: Okay, but I put it to you that he was shot at point-blank range. Can you comment on that?
MR SIYALI: What is it that you want me to comment about, Sir?
MR WILLIAMS: That he was shot under circumstances that did not warrant his shooting.
MR SIYALI: As I've already explained, I did not shoot him, the askari was there to shoot. What happened in the bushes, I have no knowledge about because Jonas had no firearm with him.
MR WILLIAMS: But didn't the askaris boast about it afterwards, or didn't you discuss it? Didn't someone say: "Ag, it wasn't necessary to shoot him, but I shot him"? It's like a trophy on his shoulder.
MR SIYALI: David made some utterances. He said that I hurt him and even in court he mentioned that he was not in a position to waste the bullet, that is why he had to make sure that the bullet penetrated Bongani's body.
MR WILLIAMS: So is it your understanding that he shot him merely because he did not want to waste the bullet?
MR SIYALI: Yes, that is correct and the other reason was that he was cruel.
MR WILLIAMS: So do you in fact concede that he was shot under circumstances where it was not necessary for them to shoot him? Is that your understanding?
MR SIYALI: Yes, there was no need for him to be shot at.
MR WILLIAMS: Not only shot at, but there was no need for them to shoot him, to actually wound him.
MR SIYALI: Yes, that is correct.
MR WILLIAMS: Mr Siyali, I just want to turn very briefly to the person who was in the vehicle with Mr Jonas at the time of the incident. This woman, I think her name is Thembetha.
CHAIRPERSON: Yes, do you want him to comment, Mr Williams, or what? Do you know the name of the lady who was accompanying Mr Jonas in the vehicle? Was it Thembetha?
MR SIYALI: I think the surname was Zimbitha, her surname, Thembetha, yes that was her name.
CHAIRPERSON: Yes. Mr Williams.
MR WILLIAMS: Thank you, Mr Chairman. Was she arrested on that day?
MR SIYALI: Yes, that is correct.
MR SIYALI: She was in detention for something like three weeks.
MR WILLIAMS: You also say in your statement that you investigated and you ascertained that she was not involved in any way. Is that correct?
MR SIYALI: Yes, that is correct.
MR WILLIAMS: How did you ascertain this?
MR SIYALI: I went to the township where she was residing and I inquired about her and I realised that she was just a young person who was not involved in this and then I had to speak to the authorities to release her.
MR WILLIAMS: Now did you visit her place frequently after she was released?
MR SIYALI: Yes, I used to visit the township.
MR WILLIAMS: No but the question is, did you visit her place frequently after her release?
MR SIYALI: Yes, that is correct.
MR WILLIAMS: What was the purpose of those visits?
MR SIYALI: Each and every person who would be released and a person who'd be in my hands, would become a friend of mine automatically and I had a right to go and visit that particular person in the name of Ubuntu and as a black person.
MR WILLIAMS: Yes, but I'm sure that at that stage there was no talk of Ubuntu. At that stage the struggle for freedom was at its peak. Wasn't it perhaps to obtain information from her?
MR SIYALI: I was not that type of a person.
MR WILLIAMS: Did she ever supply you with information regarding Mr Bongani Jonas?
MR WILLIAMS: Did you ever attempt to obtain information from her, or to use her as an informer?
MR WILLIAMS: So what was the purpose of your frequent visits to her?
MR SIYALI: If I am working in the township, that was just on the way and I would just go there.
MR WILLIAMS: Okay, Mr Siyali, I will leave it at that. I just want to - second last question - I just want to ask you a personal question. You state in your statement that African men were not trusted by the white policemen and if that was the case, why did you still stay on in the police for so long, bearing in mind that the struggle for freedom in South Africa only really started during those periods, in 1985, it gained momentum during that period. Why did you stay on in the police force?
MR SIYALI: If I did not do so, these two gentlemen wouldn't be here today, therefore it was of great help for me to be there. If there is no black person there in that particular place, the boers would do anything to a black person, but most of the times they would be scared or rather nervous to do some of the things.
MR MATTHEWS: But they tortured people in your presence. They committed atrocities whether you were there or not and you witnessed some of it, I'm sure. So I pu ...(intervention)
MR SIYALI: I did mention that they would torture people and if the people were about to say something, they would call us and they would assault them in front of us and we would even interpret things that were stated during our absence.
MR MATTHEWS: If you weren't trusted by the police, why were you tasked with such a dangerous and important mission, namely to go and assist with the apprehension of terrorists? Surely they must have trusted you?
MR SIYALI: I did mention that Bongani Jonas was the very first person who was apprehended during my presence. As Mr Yengeni was under me and I had to look at him, that was the very first operation to involve me as a black person.
MR MATTHEWS: Mr Siyali, do you have any children?
MR SIYALI: Yes, that is correct.
MR MATTHEWS: I'm sure that one day if you must tell them about some of the things that you've witnessed in your stint at the Security Branch, that they wouldn't believe half of the things, not so?
MR SIYALI: What do you mean if you say they are not going to believe this?
MR MATTHEWS: Well the atrocities that were committed in your presence and torturing and killings and those things, they wouldn't believe half of those things.
MR SIYALI: I am going to repeat this. People were tortured and we would be on the other side because our offices, as black officers, were at the back. After the torturing we'd be called in.
MR MATTHEWS: I don't understand that because if you had to act as an interpreter there, how did the white policemen know what black suspects are saying if they had to torture these people without black policemen to interpret.
MR SIYALI: You are asking me one question for many times. A person who can speak English or Afrikaans but after the assault they would call us to interpret. You've been asking me that question and I am giving you the same answer, I'm not going to change. The black officers were not present during the torturing. We'd be called after the assault and during our interpreting, we would be - they would be still assaulted, but when they start this whole thing, we would not be there.
MR MATTHEWS: So is my understanding correct that first they will take the people into the office, assault that person and then later - ask no questions, just assault the person, ask no questions and then later after the assault, call in you guys to interpret. Is that what you're saying?
MR SIYALI: It looks like you don't understand this answer. People would be assaulted and asked questions at the same time and we would be called when the person is about to say something, then they would realise that the person was prepared to talk and they would call us at that time.
MR MATTHEWS: In all respect, it doesn't make sense, but I'm going to leave it at that.
MR SIYALI: You are not going to understand it because you don't understand what I'm saying.
MR MATTHEWS: You say in paragraph 16 of your statement that
"I respectfully submit that I was at all times acting in my capacity as a constable policeman of the Security Branch."
MR SIYALI: Yes, that is correct.
MR MATTHEWS: Was it policy of the police or the Security Branch to torture people or to kill people?
MR SIYALI: Yes, that is correct.
MR MATTHEWS: Where did you learn that, when you went to Hammanskraal to do your basic training, or where did you learn that policy?
MR SIYALI: This was a procedure when you joined the Special Branch. There would be tortures. That's what I found when I joined the office.
MR MATTHEWS: Did your Commander tell you when you joined there , that that was expected of you?
MR SIYALI: Are you talking about the Special Branch?
MR SIYALI: I was told that if you join this office, you are supposed to be brave.
MR MATTHEWS: Yes, but I want to know who told you that policy was part of - that torture and killings were part of the policy of the police? Did your seniors do that, or explain that to you when you joined the Security Branch?
MR SIYALI: You are not told direct, but rather indirect and you would also see what was happening, but no-one would come to you and tell you exactly, but that is the situation that you find when you get there.
MR MATTHEWS: Did your seniors per chance tell you that indirectly?
MR SIYALI: When you get there, you find them doing what I'm talking about. As a black person you'd be given an instruction to do 1, 2 and 3. You do not question anything.
MR MATTHEWS: Mr Chairman, can I just see if my client wants me to ask any other ... Thank you, Mr Chairman.
Mr Siyali, you stated earlier in your evidence that you saw that there were people that tortured Mr Bongani. Everybody wanted to twist his leg or whatever. Would you mind giving names to the Committee, besides Benzine, that you've already mentioned?
MR SIYALI: Benzine Liebenberg, Bellinghan, or the askaris, there were more people there who also wanted to hurt Bongani.
MR MATTHEWS: Did you say you saw Mr Liebenberg also torturing Mr Jonas?
MR SIYALI: Yes, that is correct. When we get into that particular office or place.
MR MATTHEWS: Was he a Captain at that stage, if I remember correctly, Captain Liebenberg?
MR SIYALI: Yes, that is correct.
MR MATTHEWS: And he was in charge of the Security Branch, not so?
MR SIYALI: He was in charge at Culemborg.
MR MATTHEWS: Did you personally witness Capt Liebenberg torturing Mr Jonas?
MR SIYALI: Yes, that is correct. When I was getting inside there, I saw him doing that.
MR MATTHEWS: And then, maybe just very lastly, on behalf of Mr Jonas, he asked me to inform you that he appreciated the fact that you came to him way before this new dispensation to say that you were sorry about this particular incident, I think it was in 1991 when you came to him and you said that you felt guilty about this incident.
MR MATTHEWS: He wants you to know that he appreciates that. Mr Chairman, I've got no further questions.
NO FURTHER QUESTIONS BY MR WILLIAMS
CHAIRPERSON: Thank you Mr Williams. Ms Patel, have you got any questions?
MR MATTHEWS: Sorry, Mr Chairman. Mr Tony Yengeni is here. He's been mentioned, he's implicated, he's here, he's representing himself and he wants to know if he can ask, pose a few questions to the witness?
CHAIRPERSON: Yes. He's not necessarily implicated in any wrongdoing on the face of it. He's mentioned as being present, but seeing that he is here and he wishes to raise something, it might be that he wants to put a proper perspective on what has been said. We will allow him to do so. Mr Yengeni, will you be doing that yourself?
MR YENGENI: In fact what I wanted to do was to be allowed an opportunity to pose a few questions to Mr Siyali, hoping that by doing that, certain things would be put into context.
CHAIRPERSON: Yes. Will you do that? In fact you've heard the testimony in so far as it concerns you, it's a very limited aspect, but please go ahead and deal with the issues that you think might be of assistance.
CROSS-EXAMINATION BY MR YENGENI: The first question that I want to ask Mr Siyali is, in his testimony he said that the askaris knew Bongani. Can I confirm that again with him?
MR SIYALI: Yes, that is correct.
MR YENGENI: Can I also confirm with him that he indicated that the askaris also knew the Mercedes Benz?
MR SIYALI: Yes, that is correct.
MR YENGENI: Can I also confirm with him that he said that the meeting place between the car that they were travelling in was going to be Athlone?
MR YENGENI: Can I also confirm with him that the shooting of Bongani took place, not in Athlone, but somewhere along the N2?
MR SIYALI: Yes, that is correct.
MR YENGENI: If the askaris knew Bongani's face and knew the car he was travelling in, if that is correct and David knew Bongani and his car, why was it necessary for him to ask me to point Bongani out?
MR SIYALI: You were not asked by me.
MR YENGENI: Now, the next question I want to ask you is, you said that you were not trusted by the boers, but they were able to put you in charge of a person they considered very dangerous, that is myself and to accompany us to Bongani. How did that happen?
MR SIYALI: In this earth there's no one who's dangerous to Patrick Siyali, no matter what that person does or no matter who he is.
MR YENGENI: No, what I'm saying Patrick is that, if you are saying we're not trusted, how come did it happen that you were put in charge of myself and be put in charge of an operation to arrest Bongani, if you're not trusted?
MR SIYALI: What I'm not going to answer to is the fact that I was in charge. I was told to go and guard Mr Yengeni, it's not that I was in charge. Yes, I was not trusted, but on that specific day Yengeni was already tortured and he was handed over to me, so I had to be with him every time and he was cuffed at the time when he was in the car, so I was not in charge.
MR YENGENI: Now, Mr Siyali also indicated in his testimony that black Security Branch policemen were mainly used by the white Security Force Branch policemen, is that correct?
MR YENGENI: And the question that I wanted to ask following that is, why did you allow yourselves to be used?
MR SIYALI: I cannot answer that question. Your question wants me to be out of context, or what are you asking for exactly?
MR YENGENI: My question is meant to understand why you say you were used, whereas you stayed in that environment, you didn't go out, so I then want to understand, you know, why did you remain in a situation, in an environment like that? Why did you allow askaris to give you order? Why did you allow the boers to give you orders and do the things that you did? Why did you allow that?
MR SIYALI: Which things that I did, before I answer the question?
MR YENGENI: Everything that you have stated in your testimony.
MR SIYALI: As I've already said, when you join the Special Branch you are in and when you want to be out, you are signing your death certificate. When you are in that branch, you are in, except when you do something that would lead them to transfer you to another branch. I've already explained why I remained there, because I would sign my death certificate if I resigned and you would not be sitting there Mr Tony Yengeni. The reason why I was there, I was helping our people because you yourself, you wouldn't be there, you wouldn't be sitting there and you know very well what was happening at Culemborg and you know how many askaris would be there on that day when Mr Jonas was arrested. If I was not there, you would not be sitting there. You know that very well.
MR YENGENI: I would leave it that way.
MR SIYALI: Continue with it, don't leave it.
MR YENGENI: I want to leave it there because I can see that you don't want to answer why you remained in those circumstances, because you could see that you were being used against your own people. It seems as if you are running away from that point. Do you agree with the fact that the black police were used against their own people?
MR SIYALI: Yes, I agree with that, but I remained in that place, or in that branch and as you are sitting there, you must thank Patrick Siyali, because you wouldn't be there and it is clear that Bongani would not be sitting there, if I had shot at him, at his head, so you must thank me as you are sitting there. It's not that we were there to oppress black people, we were there to work and after you were tortured, you came to us offices, we helped you to calm you down. If the court would allow me, you said that within 5 years we would take over South Africa and we were sitting there laughing and indeed, in 1994 it happened, South Africa was under black control. Isn't that true Mr Yengeni?
MR YENGENI: I do understand exactly what you are saying, but I would like you to be free to say whatever you want to say, not to hold things back because there's something that you want to rectify here, it's not that we want to oppress you or to put you down, but there are things that are to be said, so that we can go forward. What I want to know is that, do you agree that black police were being used? What I want to know from you is that, why did you, Patrick, allow that to happen to you? I want you to be straightforward, to be free and I'm asking that question, not because I want to put you down, I just want your opinion, what was happening in your own mind.
MR SIYALI: About what Mr Yengeni?
MR YENGENI: About the fact that you remained there, although seeing that you were being used against your own people?
MR SIYALI: Mr Yengeni, this was very painful in my mind. You know that we were together with Mr Bongani for a year and what was happening is that, even if I was tortured or even now, I would still remain in that Branch, but in the case of being at the Special Branch, I remained there so that we can all be liberated. I was not torturing anybody there, I was helping you people, I was taking you to the hospitals and doing different things for you, that is why I remained there.
MR YENGENI: In other words, you remained there to assist the freedom fighters?
MR SIYALI: Yes, that is correct, Sir and you know how I operated, even though you are not going to reveal that in public.
MR YENGENI: I know how you operated, we were together for a long time and sometimes we would talk about these things when you were guarding me, but now you are here to ask for amnesty and I think that I personally, I don't want you to be defensive. I want you to be free to say everything, because by doing that, that would help in the reconciliation and there would be unity amongst the people that were oppressed before.
MR SIYALI: Yes, I'm listening.
MR YENGENI: When there were preparations for this hearing today, there are newspapers that reported about this particular hearing, saying that at that particular time, during the 1980's I was working for the police. Do you agree with that?
MR SIYALI: I read the newspaper report, but I don't agree with that and I have a reason for disagreeing with that.
MR YENGENI: I can recall that as Bongani said through his lawyer, after 1990 you came to me and we discussed this whole issue and you explained your own position to me and you came to me. Do you agree with that?
MR YENGENI: And I would also like to say that I appreciate what you did and we hope that you would continue doing that. Thank you.
NO FURTHER QUESTIONS BY MR YENGENI
CHAIRPERSON: Thank you, Mr Yengeni. Ms Patel, have you got any questions?
MS PATEL: Thank you, Honourable Chairperson, there's just one point that I would like clarity on.
CROSS-EXAMINATION BY MS PATEL: Mr Siyali, you've stated in your affidavit to us on page 14 of the bundle, paragraph 16, as part of your political motivation you say that
"My aforementioned actions were done in the bona fide belief that we were combatting terrorists and terrorist activities."
Yet today in response to questions from Mr Yengeni, you state that you were helping your people and you remained there with the Security Branch to assist freedom fighters. Do you care to comment on this contradiction?
MR SIYALI: When I'm saying I was helping them, yes indeed, we were fighting terrorists, but I was also oppressed, so I was supposed to help our people. Yes, we were fighting terrorists, but I was also oppressed.
MS PATEL: Your response, with respect, I don't understand your response. It doesn't make any sense to me. Are you saying that when you committed this offence, that you were fighting terrorism, you were combatting terrorism? Is that what you are saying to us?
MR SIYALI: Can you please repeat your question?
MS PATEL: The offence for which you are applying for amnesty here today, are you saying that when you committed that offence, you were fighting terrorism?
MR SIYALI: Yes, that is correct.
MS PATEL: And during that, at what stage were you then, according to your oral evidence here today, assisting freedom fighters?
MR SIYALI: I was at the office and that office was supposed to combat terrorist acts, but as a black person, as I've already stated before, we were not trusted. All the freedom fighters would be tortured and then they would be handed over to us as Africans. We would send them to hospitals and to help them in general, or whatever they needed. They were under my care. I was supposed to take them to doctors, buy clothes for them, those that were detained under Section 29.
MS PATEL: Are you saying to us that the objective of the Security Branch at that stage, was to combat terrorists, but you personally, in carrying out your duties, was not to carry out that objective or not to try to achieve that objective, your own objective was in fact quite contrary to that and it was to assist the people who had been arrested.
MR SIYALI: Yes, that is correct, because I was also oppressed.
MS PATEL: Thank you, Honourable Chairperson, I have no further questions.
NO FURTHER QUESTIONS BY MS PATEL
CHAIRPERSON: Thank you, Ms Patel. Has the Panel got any questions?
ADV SIGODI: You say that when David, the askari, shot Mr Jonas, you were not present. That happened in the bush?
ADV SIGODI: And you also mentioned that, in your opinion, it was not necessary for David to shoot Mr Jonas?
MR SIYALI: Yes, that is correct.
ADV SIGODI: What I want to find out from you is, did you at that time align yourself with what David did, that is the shooting of Mr Jonas? Did you consider yourself part of that action and did you align yourself, did you agree with it at that time?
MR SIYALI: No, I didn't agree with it at that time.
ADV SIGODI: Are you also applying for amnesty in respect of that shooting?
ADV SIGODI: Well, what offence do you consider yourself to have committed, if you didn't agree with that shooting? What offence are you really applying for, if you did not align yourself with the shooting per se?
MR SIYALI: As I've already said, I pointed Mr Jonas with a gun. That is similar to attempted murder. I pulled the trigger, but I didn't hit anybody because I shot in the air.
ADV SIGODI: I'm still coming to that, I'm still dealing with the shooting in the bush. You say you did not align yourself with the shooting by David, the actual shooting of Mr Jonas, so what I'm asking is, if you did not align yourself with that shooting, then what offence, in respect of what offence are you applying for amnesty for, if you did not consider yourself to be part of that offence?
MR SIYALI: It is because before he ran to the bushes, I shot in the air, that is why I applied for amnesty.
ADV SIGODI: Did you foresee that David, the askari, would shoot Mr Jonas in the bush? Did you foresee that possibility?
MR SIYALI: Yes, as I was sitting with Mr Yengeni in the car, I foresaw that.
ADV SIGODI: Okay, that is all Chairperson. Oh, do you perhaps know what happened to David the askari? What has happened to him?
ADV SIGODI: You've never seen him since that incident?
MR SIYALI: I saw him again in 1989 or 1990.
ADV SIGODI: But you wouldn't know where to find him today?
MS PATEL: Honourable Committee Member, if I may, sorry, just in response to that question now, investigations. From my investigations that certain David was subsequently integrated into the police force, but they unfortunately have no record of him and we couldn't trace him either.
ADV BOSMAN: Mr Siyali, why did you fire the shot in the air?
MR SIYALI: It is because Mr Bongani Jonas, he was busy discussing or talking or chatting with the passengers in his car, so as the person who was not used to the askari operation, I thought that there was no need to shoot Bongani, so I just wanted, I shot in the air so that he can run away, to scare him.
ADV BOSMAN: In other words, are you telling me that you wanted to warn Mr Jonas? Did you want to warn him so that he could get away, is that what you are saying? I'm not sure whether I understand you correctly.
MR SIYALI: Yes, I wanted him to know that we were there, so that he can run away.
ADV BOSMAN: One more question. How did it come about that you joined the Security Branch? Were you invited to, did you apply to go to the Security Branch or were you simply told to go there?
MR SIYALI: I joined in Aliwal-North for SAP. After three months, I was sent to the Hammanskraal College. After that Col ...(indistinct) came to Hammanskraal from Cape Town Special Branch. He wanted people that would join the Special Branch in Cape Town, so I was surprised when he mentioned my name. He knew my name and my family in Aliwal-North. He called my name and other people. He told me that after College, I should go to the Special Branch. I did not apply, but they fetched me in Hammanskraal.
ADV BOSMAN: Thank you, Chairperson.
CHAIRPERSON: Thank you very much.
ADV SIGODI: I just want to get some clarity on your political objective, because you said that in response to Adv Bosman's question, you fired a shot in the air because you wanted Mr Jonas to know that you were there. You wanted him to be aware of your presence, in other words to give him a chance to run away. So what is it that you sought to achieve? What political motive did you actually seek to achieve? Were you fighting terrorists, or were you giving terrorists a chance to run away?
CHAIRPERSON: So in other words, were you on the side of the liberation struggle, or were you on the side of the Security Police?
MR SIYALI: What is important is that I was supposed to be one of the MK members in Aliwal-North, but because my mother was very sick, I joined the police, that is why I ended up being at the Special Branch. I am from a small town in Aliwal-North, so I have a sense of Ubuntu with me and I also respect the concept of Ubuntu.
ADV SIGODI: Yes, but you still haven't answered the question. In order for us to be able to consider your application, we have to ascertain what political objective you sought to achieve. Now it confuses me in my mind what it was that you sought to achieve when you fired the shot in the air. Were you giving Mr Jonas an opportunity to run away, or were you trying to apprehend him? What is it that you sought to achieve?
MR SIYALI: I was giving him a chance to run away.
ADV SIGODI: On which side were you?
MR SIYALI: I was on the side that was fighting for my freedom.
ADV SIGODI: But then in paragraph 16 you say you were at all times acting in your capacity as a constable policeman of the Security Branch. Now that I find contradictory.
MR SIYALI: Yes, what is written here is true. I was doing my job, but on the other hand, I do agree that I was doing my job as the Special Branch, but on the other hand, as a black person, I turned and as I joined the Special Branch in 1985, I became the person that I was when Bongani was arrested. In 1986 I was turned and I could see the way. Yes, I was fighting for what is written here in point 16. I do agree with that, but because I was also oppressed at the Special Branch I was turned and I became the person that I am.
ADV SIGODI: The other - the last part which I want to clarify with you is what the legal representative for Mr Jonas has already asked. I just want to know, why did you deem it necessary to obey David the askari? You had not duty to take any orders from him, isn't it?
MR SIYALI: As I've already said, the askaris were senior in position to us as black people because they were associates of these white people, they would have braais with them and we were not allowed to go with them.
ADV SIGODI: Okay thank you, Chairperson.
MR WILLIAMS: Mr Chairperson, can I be allowed to ask a few questions based on the questions that the Panel have asked him?
CHAIRPERSON: I note that you say a few Williams.
MR WILLIAMS: Maybe three points that I want to clarify.
CHAIRPERSON: Yes. We'll allow you to do that. Mr Siyali, just one more thing, would it be correct to say that you never intended, during this incident, to cause any harm to Mr Jonas?
MR SIYALI: Yes, that is correct.
CHAIRPERSON: And you never associated yourself with the conduct of anyone of the police or askaris who in fact caused or wanted to cause harm to Mr Jonas?
CHAIRPERSON: Yes, Mr Williams.
MR WILLIAMS: Thank you, Mr Chairperson.
FURTHER CROSS-EXAMINATION BY MR WILLIAMS: Mr Siyali, Mr Jonas tells me that David is known as David Moseneki, that's his surname. Can you confirm that?
MR SIYALI: Yes, thank you Mr Jonas for reminding me, I had forgotten.
MR WILLIAMS: Now you've already said that you did not agree with the shooting of Mr Jonas. You're saying that you did not commit that act of shooting Mr Jonas. If I understand you correctly, you are saying that you had no part in the shooting of Mr Jonas. In other words David Moseneki acted on a frolic of his own, is that correct?
MR WILLIAMS: So what you're in effect saying is that you did not commit the offence of shooting Mr Bongani Jonas, is that correct?
MR SIYALI: After shooting at the car, I tried to shoot while he was driving the car.
MR WILLIAMS: Let me just understand you correctly. What you're say or what I understand is that you did not mean to shoot Mr Bongani Jonas and in your opinion, I'm sure, he should not have been shot. You don't associate yourself with the shooting of Mr Jonas, is that correct?
MR WILLIAMS: David Moseneki acted on a frolic of his own.
MR SIYALI: Yes, that is correct, he shot at him.
MR WILLIAMS: So as far as the offence, whatever offence it might be to have shot Mr Jonas, you have nothing to do with that and consequently you can't apply for amnesty for an offence with which you don't associate yourself with, do you understand what I'm saying?
MR SIYALI: Yes, I understand what you're saying.
MR WILLIAMS: Now secondly, you've stated earlier that you consider the offence of pointing a firearm to be equal, to be one of attempted murder. Now Mr Siyali, you've been in the force for 15 years, you've been a member of the police service for 15 years and do you want to tell, or do you want this Committee to believe, that you do not know the distinction between the offence of the pointing of a firearm and the one of attempted murder?
MR WILLIAMS: The question is, do you really want the Committee to believe that you do not know the difference between these two offences?
MR SIYALI: I'm listening, Sir.
CHAIRPERSON: I don't know if you're going to be able to take it much further than that Mr Williams. Possibly a lot of this is material for argument.
MR WILLIAMS: Mr Chairperson, then can I take it then further? Mr Siyali, did you shoot at Mr Jonas with the intention to murder him?
MR SIYALI: I was going to shoot at him and kill him, but instead of doing that, I shot in the air.
MR WILLIAMS: Mr Siyali, I get the impression you're evading the question. The question is simple. Did you shoot at Mr Jonas with the intention of murdering him?
MR SIYALI: As I was pointing in the air, I was pointing in the air.
MR WILLIAMS: So in other words, you did not point the firearm directly, or you did not shoot directly at Mr Jonas, is that correct?
MR WILLIAMS: So one can then eliminate a possible offence of attempted murder, is that correct? You did not commit the offence of the attempted murder?
MR WILLIAMS: But I think your testimony is clear that you did not attempt to murder Mr Jonas. Mr Siyali I'm asking you these questions, because I'm trying to get clarity in my own mind, for what specific offence are we here today.
CHAIRPERSON: Often it is, even policemen in the applicant's position, it's often not the easiest of things to formulate as lawyers would formulate them and that's why often these things are left for argument. I mean, if the evidence constitutes an offence, it does, if it doesn't, it doesn't. I mean you know it's a matter of fact. There's the evidence. We have to decide whether there's an offence. Mr Rheeder will address us. You'll address us. Ms Patel will address us and we'll decide the matter. I don't know whether whatever this witness is going to say is going to assist us very much in that regard. We are all lawyers.
MR WILLIAMS: Mr Chairman, with your permission then, a very last question. Mr Siyali, did you fire a shot in the air?
MR SIYALI: Yes, that is correct, Sir.
MR WILLIAMS: Now what was the purpose of that shot?
MR SIYALI: Can you repeat the question, Mr Williams?
MR WILLIAMS: Sorry, okay I'm not going to take it much further, but maybe that's ...(interventon)
ADV SIGODI: He already stated the answer. He stated the answer that he wanted Mr Jonas to be aware of their presence, so he could run away. That was the answer.
CHAIRPERSON: You might ...(intervention).
MR WILLIAMS: Thank you, Mr Chairman, I'll leave it there.
CHAIRPERSON: You might kill the point dead.
MR WILLIAMS: I'll leave it there.
CHAIRPERSON: Mr Rheeder, have you got any re-examination?
MR RHEEDER: No re-examination, Honourable Chairperson.
NO RE-EXAMINATION BY MR RHEEDER
CHAIRPERSON: Is that the case for the applicant?
MR RHEEDER: That's the case for the applicant.
CHAIRPERSON: Mr Williams, did you intend to present any evidence?
MR WILLIAMS: No, Mr Chairperson.
CHAIRPERSON: Thank you. Ms Patel?
MS PATEL: Same here, Honourable Chairperson, we do not, thank you.
CHAIRPERSON: Yes. Mr Rheeder, are you in a position to address us?
MR RHEEDER: Honourable Chairperson, can I maybe ask for a short adjournment just to get everything ready for that? Ten to fifteen minutes, if it will suite the Committee.
CHAIRPERSON: We'll adjourn for 15 minutes and we'll reconvene to take the addresses. We're adjourned.
MS PATEL: Would everyone please rise?
CHAIRPERSON: Yes, the addresses remain. We unfortunately took slightly longer than we anticipated we would, but we had to attend to an internal matter of some importance, so we apologise that we're running slightly late. Mr Rheeder, have you got any submissions on the merits of the application?
MR RHEEDER: There are certain submissions I wish to make Honourable Chairperson.
MR RHEEDER IN ARGUMENT: Honourable Committee Members, Mr Patrick Siyali is sitting today in front of you applying for amnesty and a lot of questions were raised by a lot of people attending, relating to but was any offence committed, what was your intention that day, what did you do, why did you do it and so forth. I, with respect, wish to refer the Committee back to the Act which I'm sure the Committee knows by heart at this stage. It is not only offences that one applies for, for amnesty and I would clearly like to, my learned colleague especially who hammered on the fact of an offence, would like to draw the Committee's attention to it that it's not only offences, but any act, omission or offence and those type of acts associated with a political objective. That is again defined as any act or omission which constitutes an offence or delict.
It is at best, I submit, difficult to try and think up, or try and conjure up what kind of offences or omissions, or delicts, one deals with, in many of these applications and it is my respectful submission and just as examples, it's possible that Mr Siyali can be tried for the offence of negligently firing a firearm or shooting a firearm in a municipal area. Mr Siyali was also in the vicinity as a policeman when Mr Jonas was in actual fact shot. There are certain delictual, civil remedies that Mr Jonas might look at in that sense and where Mr Siyali can possibly be held responsible for. In that sense, and I respectfully submit that the Act allows the Committee to grant Mr Siyali amnesty and I want to frame it as follows. Amnesty for all acts, omissions or offences relating to the apprehension, shooting and arrest of Mr Bongani Jonas.
I further would like to submit it's not necessary for the Committee to specifically decide if Mr Siyali acted with the political motive of the struggle or with the political motive of the State as long as the Committee is satisfied that the acts, omissions, or offences committed in the presence and/or by Mr Siyali on a specific date, are associated with political objectives.
I would submit that is enough to consider granting amnesty for Mr Siyali. Just on that point and dealing with acts and omissions, the Act also provides in Section 20 any person who associated himself/herself with any act or omission committed." The chasing of Mr Jonas, surely Mr Siyali associated himself with that.
On one point of fact, it is my instructions that Mr Siyali at all times intended to testify and that it is his testimony that when he took out his firearm in the motor vehicle, he had the intention of shooting at Mr Jonas and it was only at a later stage that he changed his mind and fired a shot in the air. I would again submit that it is very difficult for us today to try and establish if Mr Siyali might be guilty of any offence or not.
I am and I would like to submit, that it is quite certain that there were certain acts, omissions and offences committed that day and it is certain that Mr Siyali might be held responsible in a criminal fashion or civil fashion and for that he's applying to this Committee for amnesty. As the Committee pleases.
CHAIRPERSON: Thank you Mr Rheeder. Mr Williams, have you got any submissions?
MR WILLIAMS: Mr Chairman, would you just allow me one minute to confer with my client? Thank you, Mr Chairperson.
MR WILLIAMS IN ARGUMENT: Mr Chairperson, I just want to deal with just two issues.
The first one is that the Committee must find that the act, omission or offence that was committed, was an act associated with a political objective and in order for the Committee to find that there was a political objective, the Committee must be able to find clearly what that political objective was. Now it is my respectful submission that it is not clear from the testimony of the applicant here today, what his political objective was at the time because in this regard, he tendered vastly contradictory evidence here and it is my respectful submission that the Committee can't rely on that evidence because it would in any case be difficult for the Committee to accept which version is the correct version because on the one hand he says he tried to assist the freedom fighters and on the other hand he says that he was combating terrorism. It is clear that these contradictions differ as day differs from night.
There are also other contradictions in his testimony. I'm not going to still bother to pick out all the contradictions, save to say that in the one instance he said that he had an intention of shooting and then later on he says that he had no intention whatsoever of shooting Mr Bongani and he actually wanted to alert him, he actually wanted to help the person, so it's my respectful submission that there's not a clear coherent application here before this application, which would enable this Committee to find that what the applicant's saying here is in fact correct and I'll submit that amnesty cannot be granted on the basis of that. That's my submissions Mr Chairperson.
CHAIRPERSON: Thank you Mr Williams. Mr Yengeni was there anything that you wanted to say? Thank you.
Ms Patel, have you got any submissions?
MS PATEL IN ARGUMENT: Thank you, Honourable Chairperson. My learned friend Mr Williams, I believe has adequately dealt with the submissions I would have made in respect of the applicant not complying with the requirements of the Act insofar as his political objective remains a mystery, given his contradictory evidence to us. Thank you Honourable Chairperson.
CHAIRPERSON: Is there anything further that you wanted to add Mr Rheeder?
MR RHEEDER IN REPLY: A short reply Honourable Chairperson. I would like to differ from my two learned colleagues and I, with respect, submit that they should also differentiation between the political motive of a person and I submit that they're both referring to his political motive and not the political objective of the act. The political motive of Mr Siyali is only one of many factors to be taken into account in determining the political objective. The political objective as described in sub-section (ii) of Section 20 of the Act, relates to various numbers of situations, either acting on behalf of the struggle, or acting on behalf of the State.
I submit it's not necessary for this Committee to decide on which side Mr Siyali acted at the stage when he committed one of the possible offences that he could be prosecuted for as long as it was committed in a political context, as defined in sub-section (ii). His political motive as a requirement described in sub-section (iii) (a) is not so important because there are further other factors also to be taken into account. Nothing further Honourable Chairperson.
CHAIRPERSON: Thank you, Mr Rheeder. Yes, that concludes the formal part of the application. We will consider the matter and we will notify all of the parties once the decision in the matter has been formulated. Under the those circumstances the decision in the matter will then be reserved. We thank you Mr Rheeder for your assistance, Mr Williams, your client Mr Yengeni, Ms Patel. That concludes the matter and I have an idea that that concludes the roll that we had for the week.
MS PATEL: Yes, it does, Honourable Chairperson.
CHAIRPERSON: Yes. And if I'm not mistaken the Panel here will reconvene on Tuesday. On Monday there's a session in Port Elizabeth.
MS PATEL: That is correct, Chairperson.
CHAIRPERSON: Very well, then we will adjourn this session and we will reconvene at this venue on Tuesday at 9 o'clock or as soon thereafter as possible, to proceed with the remaining matters on the roll. We will now adjourn.