CHAIRPERSON: We'll now start with the final matter that's on our roll, that is the application of Mr Thembinkosi Mabika. At this stage I'd request the legal representatives to kindly place themselves on record.
MS RAZAK: Certainly, Chairperson. I'm Radia Razak, instructed by Nthembo and Mohammed attorneys to represent the applicant in this matter.
CHAIRPERSON: Thank you Ms Razak.
MS COLERIDGE: Lyn Coleridge, Chairperson, representing Ms Sonya May Spicer, the victim in this incident. Also, my instructions are to oppose the application, Chairperson.
CHAIRPERSON: Thank you Ms Coleridge.
JUDGE DE JAGER: He was accused number one in the trial, which is referred to on page 40, the indictment appears on pages 40. 41 and 42, is that correct?
MS RAZAK: That is correct. That's correct, Judge.
CHAIRPERSON: Ms Razak, I take it the applicant will be giving evidence?
MS RAZAK: Yes, certainly, Chairperson.
THEMBINKOSI MABIKA: (sworn states)
CHAIRPERSON: Thank you. Ms Razak.
MS RAZAK: Chairperson, at the outset, perhaps - I want to refer to the application itself. If you have regard to the bundle, there seems to be about three copies of the application.
CHAIRPERSON: Yes, I've noticed that.
MS RAZAK: None of them have been signed by a Commissioner of Oaths. Perhaps it would be ...(indistinct) for me to take the applicant through the application and let him confirm it?
CHAIRPERSON: Yes, I think also perhaps if the applicant can take a look at the application and whether he can confirm in the first instance that it is in fact his application and secondly that the contents contained therein are true and correct and then we can condone the non attestation of the application form once he's done that.
MS RAZAK: Thank you Chairperson, if I may just be given an opportunity. Mr Mabika, this is your application for amnesty. Would you please take a look at this document and confirm that the contents thereof were attested to by yourself and that you agree with everything contained therein?
MR MABIKA: Yes, this is my own handwriting. I confirm the contents of the statement.
MS RAZAK: Thank you Mr Mabika. May I continue with the application?
MS RAZAK: Thank you Chairperson.
EXAMINATION BY MS RAZAK: Mr Mabika, you are applying for amnesty for your participation in a robbery of Acme Dry cleaners, that took place in Kimberley on the 18th of January 1992, do you agree with that?
MR MABIKA: Yes, that is correct.
MS RAZAK: You, in your application, Mr Mabika, you say that you were at the time a member of a political organisation. What political organisation did you belong to?
MR MABIKA: I was an Azapo member.
MS RAZAK: Since when were you an Azapo member?
MR MABIKA: I joined Azapo in 1982.
MS RAZAK: That was ten years prior to this incident. Mr Mabika, please explain to me your involvement in this particular robbery or this operation, this incident that took place on the 18th of January.
MR MABIKA: The condition or situation in the country, led us to be involved in that robbery. In the Northern Cape in the township called Galeshewe ...(intervention)
CHAIRPERSON: Sorry, Mr Mabika, could you just mention the name of that township again, please?
MR MABIKA: Galeshewe township in Kimberley.
There was Comrade Shimi who was a member of a Trade Union. One day I phoned him, sorry he's the one who actually phoned me. He told me that things were bad. ANC people were attacking them and they had burned a few houses. As I was still listening to him, he put down the phone, but he put the phone down and I phoned me again and I tried to phone him and then a child answered the phone and I asked where Shimi was and then the child told me that the comrades were after him.
After that I phoned Harare, the Chief Commander of Azapo, Musibudi Mangena, who was a Chief Commander. I told him that we were dying inside the country, we wanted him to give us the go-ahead to defend ourselves as the black people fighting for the liberation of the black people, but there was another group of black people who were collaborating with the white people. He told us that he was going to try and get assistance somewhere else and he asked me to phone him again.
JUDGE DE JAGER: Ja, just a moment. You phoned who?
MR MABIKA: Musibudi Mangena who was a Chief Commander in Harare.
Just before I could get help, the following week Shimi came to Johannesburg and I asked him as to what was happening in Kimberley and then he related the story to me. I said we had to do something to protect ourselves and the organisation at large.
We had to check first whether we had resources, but we realised that Azapo was the only organisation that did not have any donors and we also didn't have money and we thought that what can actually help us, is to go and repossess from our oppressors, commit robberies and get money and buy weapons so that we would be able to neutralise ANC and fact the real enemy. We could even get the firearms in the police stations as those were some of our targets. We agreed upon that. We said if we go to Kimberley, we'll be able to get money there because crimes like armed robbery was not a common thing in Kimberley.
After some days, there were other young men who were supporters of our organisation and there was this other one whom I used to know very well and even Shimi knew him very well, that was Mr Vundla who was selling in the trains. I told him that firearms were not a problem, there was a certain building in Johannesburg. There's a man, Mr Mashaba, a man that we used to know, I got a Makarov from him for a price. he told me that there were so many firearms in Mozambique, if I can bring the money, I will get everything that I needed.
I talked to Jomo and I told him that the best thing for us to acquire firearms, we should go and visit Kimberley, Shimi in Kimberley. After a few days Shimi called telling me to come over. I left Johannesburg with Jomo and his brother Wisdom. We took a train and when we were in Klerksdorp, Shimi was there waiting for us in a car.
JUDGE DE JAGER: Can you go a bit slower please, so that we can write down?
JUDGE DE JAGER: You left Jo'burg with whom?
I left. It was myself, Rudolf Vundla and Wisdom Vundla. They were not the members and they were not even aware of what was happening.
CHAIRPERSON: So if they were not members and they did not know what was happening, why did you go with them then, Mr Mabika?
Rudolf was the person that I used to know very well and he supported our organisation, but he was so fond of the struggle, he would attend the Trade Union meetings with me. He had so much interest in the struggle. They only thought that we were visiting Shimi in Kimberley because that's what I told them. We met with Shimi in Klerksdorp. We left for Kimberley.
We went straight to Shimi's house, who told us that we were not going to spend a night in his house because he didn't want the people in the neighbourhood to see us there. He took us to a certain house where there were two ladies. There were two people, the other one was called Tomboy and Albert Sehere. When Shimi took us at Klerksdorp, he was with a certain person by the name of Ralph Marutle, who would be in his company when he was visiting our office in Johannesburg.
We spent four days at the Sehere house. Shimi told me that there was a dry cleaner in Kimberley. He got that information through a person who was the driver of this dry cleaner. There were other dry cleaners too, four of them, and they would collect that money and take it to this particular depot and he said that is the first target. I agreed with him, because I was in need of the firearms. The seven of us left, I think it was on a Saturday. I was armed with a Makarov.
When we got into this dry cleaner, driving in this car, when I got inside I saw a white person and I told them that it was a hold-up, they mustn't move and I stood at the door. Wisdom Vundla approached the lady who was screaming at the time and I thought that if she was continuing screaming, she would alert the police and then I tried to indicate to her that this was not a toy gun, that it was a real thing, but she continued screaming and I tried to scare her. When I was trying and she tried to grab the firearm and it fired by mistake and after that I told the others that we should leave the premises because our intention was not to injure anyone, but we just wanted to get the money and buy the weapons.
That's how we left the premises. When we got into our car, we discovered that Wisdom was shot in his hand, meaning the bullet penetrated through his hand to the lady and then we went to the township. I asked him why he couldn't hold the lady and try to stop her from screaming. Late during the night we were arrested. That's how our mission failed.
Everything that I did, I was doing it for the sake of getting money and buy the firearms. We had no alternative, because of the violence that was escalating in trains and the taxis. People were dying, to such an extent that I knew that I would die any time, therefore I had to get money and defend myself because if we would leave the situation as it was at the time, people were going to be in danger and perhaps I would be co-opted by the same system that was oppressing us, or I would die. Most of the people in those times, ended up working with the enemy, getting money by killing people, therefore if I didn't want to collaborate with the enemy, becoming an askari, therefore meaning I would be killed. If you can remember very well, during those times some of the things that were happening were horrible. By being a black person meant politics, oppression without a say, many of our brothers decided to leave for exile. People like me who were left inside our country trying to fight and I had told myself that I was going to fight until the last drop of my blood, rather than selling my own people, because as the Azapo people, our intention in this country was to liberate the black people, get our land, the land that was taken away from us.
CHAIRPERSON: Mr Mabika, could you take a look at page 44 of the documents? I just want - you know, this is the record from the courts, the trial and you'll see there were seven people who were accused persons, your name being the first one. Now who else went with you to the dry cleaner that day? Was it all of you, or not? All of those people listed there, or not? There's yourself, you've mentioned, there's Shimi, you've mentioned Wisdom, he's number seven and you've mentioned Rudolf, he's number eight, what about these other people? Ralph Marutle, Sonkie Sehere and Selo? Were they there with you?
MR MABIKA: Yes, all of us, the seven of us were involved. Shimi was our driver.
CHAIRPERSON: Yes. Thank you. Sorry Ms Razak.
MS RAZAK: Mr Mabika at the time that you got involved with this incident, were you employed?
MR MABIKA: Yes, I was employed.
MR RAZAK: Who were you employed with?
MR MABIKA: I was working for Black Allied Mining and Construction Workers Union.
MR RAZAK: To which organisation was this Union affiliated?
MR MABIKA: It was an Azapo affiliate.
MS RAZAK: And in the court, you pleaded not guilty to these crimes.
MR MABIKA: Yes, that is correct.
MS RAZAK: Can you tell me why you did this?
MR MABIKA: I was terrified because during those times, if I had mentioned in Court that what I did was politically motivated, I would be given the death sentence, that is why I decided to plead not guilty, because I knew what was going to happen.
MS RAZAK: But you did in fact, at the beginning of the proceedings, mention that you are a member of Azapo to the Court, is that not correct?
MR MABIKA: Yes, that is correct.
MS RAZAK: I refer to page 128 of the bundle and 129. This is not in relation to the charges that were put to you, but with regard to the whole question of legal representation and the need for pro deo counsel at that time, do you recall this?
MR MABIKA: Would you please repeat the question?
MS RAZAK: I beg your pardon. When Mr Mabika mentioned this in the Court, it was not in relation to the trial, but it was in the proceedings relating to his need for legal representation.
MR MABIKA: Yes, that is correct. During those times, a legal representative would be coming from the side of the Government. I told them that as an Azapo members, I did not want to be represented by the State, because the State was my enemy.
MS RAZAK: Mr Mabika, there are a few more questions I'd like to ask you. With regard to Shimi, the person you refer to as Shimi, he was not sentenced in these proceedings, is that correct?
MR MABIKA: Yes, that is correct. I can explain further. Shimi, we were arrested together, when we appeared in Court, as Accused Number One, I'm the one who told the Court that Shimi was not involved in the incident and he was not even present. Shimi didn't even see me in Kimberley, he had no knowledge that I was around in Kimberley, that's what I said. I was actually trying to defend him as my comrade and again I was trying to protect the car belonging to the organisation. I was successful in that and he was acquitted.
MS RAZAK: Thank you Mr Mabika. No further questions, Chairperson.
NO FURTHER QUESTIONS BY MS RAZAK
CHAIRPERSON: Thank you Ms Razak. Ms Coleridge, do you have any questions you'd like to put to the applicant?
MS COLERIDGE: Yes, thank you Chairperson.
CROSS-EXAMINATION BY MS COLERIDGE: You said you were an Azapo member, how long were you an Azapo member, Mr Mabika?
CHAIRPERSON: He said he joined in 1982.
MS COLERIDGE: Thank you Chairperson, I'm indebted to you. Who planned this whole operation?
MR MABIKA: It was myself and Shimi.
MS COLERIDGE: You were the person with the firearm on this day. Where did you get your firearm from?
MR MABIKA: A friend of mine, Mr Mashaba, was in Hillbrow. I bought the firearm from him in 1991, round about July/August. I bought the firearm for R600.
MS COLERIDGE: Because Accused Number Two states, on page 90 of the bundle, that he gave you the firearm, that is Hendrik, on page 90 of the bundle, just line 22 Chairperson, he states that - is says here that
"Accused One gave Accused Two a firearm"
MR MABIKA: No, my intention to come here is to tell the truth. That firearm belonged to me.
CHAIRPERSON: Did Shimi, at the trial, say that he gave you the firearm, whether it was the truth or not, did he say that?
MR MABIKA: No, I do not remember him uttering such words. As I said, Shimi in this case, as Accused Number One when they asked me questions I told them that Shimi didn't even know that we were in Kimberley, he was immediately acquitted. I do not remember him telling anyone that, maybe he told the police about that during my absence. If he did that, that was a mistake, because the firearm belonged to me.
MS COLERIDGE: Can you just explain in detail to us what occurred at the dry cleaners, from the time that you entered the dry cleaners?
MR MABIKA: When I got into the dry cleaner, I shouted: "Don't move, hold-up" and I stood at the door, but inside the dry cleaners. The other people also got inside the dry cleaners, to the different directions. Wisdom went straight to the lady who was inside and she was busy screaming and I decided that the police would hear the noise and come and arrest us. I came closer to her because I wanted to scare her. She tried to wrestle with the firearm. By mistake, the firearm released a bullet and I told the comrades to get out of the premises and we went straight to the township.
CHAIRPERSON: Sorry, Ms Coleridge, before you proceed. Mr Mabika, this dry cleaner, was it like a shop where you walk off onto the pavement, or was it the actual place where the clothes are dry cleaned that's not open to the public? If you could just describe the place that you entered into at the dry cleaner.
MR MABIKA: According to the information that I got from Shimi, he got this information from the driver. There were other dry cleaners around in Kimberley. This driver would collect all the money from different dry cleaners and take it to this particular dry cleaner. We went there with the intention of getting the money from the other branches, the one that was kept in that one.
CHAIRPERSON: This place where the incident took place, where you went and pointed the gun and the shot went off, did you get into that room straight from the pavement? Was it where the public would go if they wanted to get their clothes clean, would they walk in there, or did you go in a back door where the machines were that were cleaning the clothes?
MR MABIKA: We got in through a public door, because as I just - I got there for the very first time on the right-hand side of the room, there was a counter and the lady was standing there, that is when I told her to hold up.
CHAIRPERSON: Besides the lady, were there any other people there, other than you and your companions who entered? Did you see anybody else in the dry cleaning place, other than the lady?
MR MABIKA: No, but when we were in Court, we heard that there were employees who saw us at the dry cleaning and they got in through the back door, they were inside, that's the information that I got from the Court that when we got into the dry clean, there were employees inside, but I only saw the lady.
MS COLERIDGE: I just want to sketch what Ms Spicer is saying, what occurred on that day, which is different to what you're saying. I want to refer to page 325 of the bundle, Chairperson, just as to what happened on that day. Just at the bottom of page 324
"You looked up, what did you see?
I looked straight into the gun.
"Yes."
"And what happened then?
Then I started screaming and then the one came around the inside and started pushing me around.
He pushed me further in and then he told me to shut-up.
He had me on the ground with his hand over my mouth. (it's incorrect there, mouth).
Yes, the one with the gun was about a metre in front of me.
And then I heard the gun go off. They ran away."
Ms Spicer states further that she at no stage wrestled with you in a sense as to take the gun away from you or any attempt like that. She said she was overwhelmed because you were seven people that entered the dry cleaners, you had the firearm, she was shoved and pushed around by people, one had a hand over her mouth and she says that the one person was holding her down and that's when you shot and that's why the bullet wound went straight through your co-applicant's hand, because he was holding her. What is your comment about that?
MR MABIKA: I disagree with her, first of all I said we were seven, but when we got into the dry cleaner, Shimi was in the car. Six of us got into the dry cleaner. When I got into the building, Wisdom Vundla is the one who approached the lady and he held here, but she continued screaming. As she was screaming, I left my position at the door. As she was standing there, I went close to here and Ralph Marutle was standing there where I was, next to the door and when this firearm fired, I got a fright and then I told the other guys to leave, but she was never held down.
CHAIRPERSON: That was what I was asking you. So are you saying that before the shot was fired, she was never on the ground, being held down on the ground, she was standing up?
MR MABIKA: Yes, that is correct.
MS COLERIDGE: One other question in relation to this, was it your intention to shoot and to injure Ms Spicer, or did this happen by complete accident?
MR MABIKA: Truly speaking it was a mistake. When we went there, we didn't have any intention of injuring anyone.
MR SIBANYONI: So why did you carry the gun along?
MR MABIKA: We just wanted to scare people in order to get the money and further the objectives of the organisation but that was a pure mistake and it was all because of her, because if she had listened to me when I said that she mustn't move, that couldn't have happened, because I said: "Please hold up, don't move", but she started screaming. If she didn't scream, I would never have come closer to her and then she also tried to hold the firearm, that's when the firearm released a bullet and if she wasn't screaming, I couldn't have been closer to her.
MR SIBANYONI: Didn't you foresee that if there was resistance from the people you intended to scare, you could use the firearm?
MR MABIKA: I had told myself that I was not going to shoot. We had planned this whole thing properly that we were not going to shed any blood, we had to make sure that no one sustains injuries. When we went there, the intention was not to shoot, but because of the mistake of what she did, we were forced.
JUDGE DE JAGER: Well, why didn't you turn round when she started screaming, if it wasn't your intention to frighten her or to shoot her?
MR MABIKA: We wanted the money to buy the weapons. Money is something that we wanted because we wanted to buy the firearms because we were in the battle.
CHAIRPERSON: Mr Mabika, when you went in to the place, did you have any idea of the amount of money that you may get, had you robbery been successful? What were you thinking of? Were you thinking of getting R600 or were you thinking of getting R40 or were you thinking of getting R40 000, what did you have in your mind?
MR MABIKA: The driver of the dry cleaner, told us about R70 000 to R100 000 because he was collecting the money from different branches. We were so sure that we were going to get money.
MS COLERIDGE: Thank you, Chairperson. And then just in relation to Themba taking the watch from Ms Spicer, as well. What happened? Did Themba take the watch? Was it your intention to rob Ms Spicer as well?
CHAIRPERSON: Yes, that's the applicant himself.
MR MABIKA: I heard that information in Court about the watch. No one took any watch there and when I got that information, it never surprised me, because during those times of the old regime, it was a common thing, when they arrest you they would even accuse you of things that you did not do. Truly speaking, we did not take any watch in the building.
MS COLERIDGE: Because one of your co-accused also stated that you had taken the watch and Ms Spicer had stated that the watch was removed.
MR MABIKA: I know nothing about that and even my co-accused, I do not remember him uttering such words, telling the Court that I had taken a watch.
MS COLERIDGE: It's on page 92 of the bundle Chairperson, the third line from the bottom of the page.
CHAIRPERSON: Mr Mabika, when you and your companions went in there to commit the robbery, did you disguise yourselves at all? Did you wear balaclavas, or stockings over your head, copper hats, whatever, or did you just go in openly, undisguised?
MR MABIKA: We were not disguised.
MR MABIKA: We did not see it necessary for us to hide our faces.
MS COLERIDGE: Just one last aspect, Chairperson. I just want to find the portion where it states, page 95, that Accused Number Seven held Ms Spicer down, so in fact one of ...(intervention)
CHAIRPERSON: Accused Number Seven is Wisdom, is it? Wisdom Vundla?
MS COLERIDGE: Correct, Chairperson, he held Ms Spicer down.
CHAIRPERSON: And he's the same person who got shot through the hand?
MS COLERIDGE: The hand, that's correct. And what is your comment about that, saying that no-one held her down, Mabika?
MR MABIKA: I still maintain that she was never held down. She was standing straight up and even when the firearm released a bullet, she was still standing.
CHAIRPERSON: Sorry, Ms Coleridge. What time of the day did this take place, approximately, Mr Mabika, more or less?
MR MABIKA: I cannot be so certain, but it was early in the morning, perhaps between Eight and Nine.
MS COLERIDGE: Did you report this incident to your Commander at Azapo?
MR MABIKA: No. On the very same day I got arrested, I never got a chance to tell my Commander.
CHAIRPERSON: Do you know how it came about that you were arrested so quickly?
MR MABIKA: We spent the whole day in the township. Late we drove around, but Wisdom was left behind with Rudolf and I was driving the other people from Kimberley and then we came across a road block and I was found with the firearm and when I got to the police station, I saw my other co-accused, Ralph Marutle and Shimi, they were already arrested. I cannot remember if Albert was there, but I remember Tomboy was arrested later and Rudolf, together with Wisdom.
MS COLERIDGE: At Court you asked the Judge that you wanted the assistance from the Azapo in relation to your legal assistance and so forth, did you get any assistance eventually from the organisation?
MR MABIKA: I never got assistance from the organisation. I told them that I was going to represent myself. I was not prepared to get a legal representative from the State, because the State was my enemy and the case was postponed and when I was attending the trial, I did not get the opportunity to communicate with Azapo and Azapo was never informed by myself, I only talked to Mr Mangena, therefore I had to report back to him about the incident, but even with him, I couldn't get the opportunity to communicate.
CHAIRPERSON: Sorry, Mr Mabika, you refer to Mr Mangena as your Commander, usually the term Commander is used in relation to military or para military organisations, could you just explain? Why did you call him your Commander? Was he a military man, or what?
MR MABIKA: Yes, he was in charge of the Azanian forces in Harare. I called him and I asked for permission to fight the ANC because we were fighting the whites this other side and even the ANC was fighting us together with the same group of whites. He told me to take a post, he was going to talk to the Executive to help and he said I had to phone him back, but I couldn't do that because the level of violence was escalating in trains and taxis, therefore I decided to take an initiative as a freedom fighter, I had to do something to defend myself and the organisation at large.
JUDGE DE JAGER: But why couldn't you phone him back? It would have taken you five minutes.
MR MABIKA: The situation prevailing at the time, I couldn't phone him back, as he had told me to wait, I couldn't wait until I die. As a freedom fighter, I saw it necessary for me to take an initiative, rather than waiting for him. I couldn't do it and fold my hands and wait for my death, because we were dying in the country, because I had two options, I had to die or I had to fight.
CHAIRPERSON: Mr Mabika, when you refer to yourself as a freedom fighter, did you belong to any unit, had you undergone any military training?
MR MABIKA: No, but as the people who were inside the country, we used to refer to ourselves as soldiers when we were attending the rallies and toy-toying. By being a freedom fighter, I didn't necessarily mean that I have to go to the bush and get military training, I was fighting inside the country.
JUDGE DE JAGER: You were staying in Johannesburg at that time?
MR MABIKA: Yes, that is correct.
JUDGE DE JAGER: Did the ANC kill Azapo people in Johannesburg?
MR MABIKA: Yes, we also had problems because as I said, the situation was getting worse. When the houses were burned down in Kimberley, we phoned Comrade Mabasa, who got a call ...(intervention)
JUDGE DE JAGER: No, I'm talking about Johannesburg. Please let's finish Johannesburg. Did they kill any Azapo people in Johannesburg where you were staying?
MR MABIKA: The person that I know was Mr Lingane, who was residing at Moletsane, whose body was burned down.
JUDGE DE JAGER: Where's Moletsane?
MS COLERIDGE: Did you attend any meetings, any Azapo meetings?
MS COLERIDGE: How often did you participate in any activities
MR MABIKA: Occasions like June 16, September 12th, Steve Biko's occasions and I would even attend the conferences, but most especially I was involved in the field mobilising the workers. If I wasn't with the Unions, I would be attending the Azapo activities.
MS COLERIDGE: Thank you, Chairperson, I have no further questions.
NO FURTHER QUESTIONS BY MS COLERIDGE
CHAIRPERSON: Did you have any re-examination Ms Razak?
MS RAZAK: Just one aspect please, Chairperson.
RE-EXAMINATION BY MS RAZAK: Mr Mabika, when you shot at Ms Spicer in the dry cleaners, was she standing up or was she lying down?
MR MABIKA: She was standing up.
MS RAZAK: Where, in relation to you, was she standing?
MR MABIKA: She was standing next to the counter and when she screamed, I moved from the door, I went closer to her and Wisdom was holding her, trying to stop her from screaming and then I came closer to her and then she tried to hold the gun and the shot was fired. I think it was a distance of two metres.
JUDGE DE JAGER: Now how could she hold the firearm if she was two metres away from the firearm?
MR MABIKA: I think I was in the distance of one or two metres because she was actually trying to hold the firearm and the shot was fired.
CHAIRPERSON: So what you're saying, she didn't actually get hold of you, she was stretching towards you?
MR MABIKA: No, she tried to touch the firearm, but then I was trying to move backwards and then the shot was fired.
CHAIRPERSON: Are you saying the shot was fired as you were moving backwards? Because two metres, if you take a look here Mr Mabika, two metres would be from about the end of the table where Judge de Jager is to about where I'm sitting.
MR MABIKA: I am not certain about two metres, it might happen that it was one metre, not two metres, because I was very close. I cannot say for sure if it was two metres, but I was very close to her.
MS RAZAK: Ms Spicer was hysterical throughout this entire incident, is that correct?
MS RAZAK: Were you also nervous?
MR MABIKA: I just wanted her to stop screaming, to stop making noise, but when the shot was fired, I also got a scare and I decided to tell my people to leave the premises.
MS RAZAK: When did you find out that your co-accused was shot in the hand?
MR MABIKA: That is when we got into the car, when we got into the car he stood next to the car and told me that he was shot at and we went to Shimi's house. At Shimi's house, tried to dress up the wound.
MS RAZAK: Thank you, no further questions, Chairperson.
NO FURTHER QUESTIONS BY MS RAZAK
CHAIRPERSON: Thank you. Mr Sibanyoni, do you have any questions you would like to put to the applicant?
MR SIBANYONI: Yes, thank you Mr Chairperson. You mentioned Lingane who was residing at Moletsane, you said his body was burned, did Lingane hold any position in Azapo?
MR MABIKA: No, he was a family man, who did not hold any position, but his family were members. I remember because there were death threats from the ANC. We were guarding his premises and I remember at some stage we took him and all his belongings to different places in the township and we took him to Johannesburg Hostel and he spent a short while there and then he went back to his house. The ANC people came during the night and they killed him and they burned him.
MR SIBANYONI: Was he personally a member of Azapo?
MR MABIKA: His children were Azapo members. He was more like a supporter.
MR SIBANYONI: Do you know why the ANC would have killed him?
MR MABIKA: We took, as I said we took him to town because they wanted to attack the house, we decided to take him to town, so that he could be safe.
MR SIBANYONI: But for what reason? Why should they, why did they want to?
MR MABIKA: Just because he was Azapo, he was referred to as an Azapo member.
MR SIBANYONI: Did the ANC ever fight Azapo?
MR SIBANYONI: In what places? At what places?
MR MABIKA: Mostly here in Soweto, Burgersdal, Kroonstad, even in Kimberley. Even myself in 1986 in Rustenburg, I had a narrow escape. They had me, the ANC people, they wanted to stab me because they said I was a sellout and I ran to the township.
MR SIBANYONI: You also referred to a group of people who were assisted by whites in fighting Azapo, who are those black people you are referring to?
MR MABIKA: Azapo in this country was the only organisation of black people who were concerned with fighting for the liberation of a black person. ANC was claiming to be fighting for the black people but they were collaborating with the whites and ANC would in turn fight the Azapo organisation and it was a confusing state because during the nineties there was third force involved and the askaris, therefore the very same ANC would turn around with the whites, instead of fighting for the black liberation, they would fight the ANC members. Azapo was an organisation with black people only, there was no white.
MR SIBANYONI: Lastly, did Ms Spicer ever get hold of the firearm? Did she touch the gun when she was trying to wrestle it from you?
MR MABIKA: I cannot say for sure because I was also scared, but I cannot say whether she touched the firearm or not.
MR SIBANYONI: Thank you Mr Chairperson.
CHAIRPERSON: Thank you. Judge de Jager, do you have any questions you'd like to put?
JUDGE DE JAGER: Who travelled with you from Johannesburg?
MR MABIKA: It was myself, Rudolf Vundla and Wisdom Vundla. When we got to Klerksdorp we found Shimi and Ralph waiting for us in a car.
JUDGE DE JAGER: Right and Rudolf and Wisdom, they were not members of Azapo?
MR MABIKA: Yes, that is correct, they were not members. Rudolf was also not a member, he was just a mere supporter, as I explained initially. He was so fond of the struggle, he would even attend the Union meetings, but he was not a member.
JUDGE DE JAGER: So he attended Union meetings, but not Azapo meetings, is that correct?
MR MABIKA: Yes, that is correct, but he supported Azapo.
JUDGE DE JAGER: Ja. Then you met two people in Klerksdorp, Shimi and Ralph.
MR MABIKA: Yes, Shimi and Ralph.
JUDGE DE JAGER: Were they members of Azapo?
MR MABIKA: Yes, Shimi was a member of Azapo.
JUDGE DE JAGER: And in Kimberley you met?
MR MABIKA: We met with Albert Sehere and his brother, Tomboy.
JUDGE DE JAGER: Right. Were they members of Azapo?
MR MABIKA: No, they were not Azapo members.
CHAIRPERSON: Sorry. These people Albert and Tomboy, I'm just looking at the list of the persons who stood trial on page 44, we've dealt with yourself, we've dealt with Shimi, we've dealt with Ralph. Albert, is he the person, this Sonkie, Sonkie Albert Simon?
CHAIRPERSON: You say he's not a member and what about Selo Petrus Sehere?
MR MABIKA: He was also not a member.
CHAIRPERSON: And what - okay, so who's Tomboy? Is he there in that list? Is he Selo?
CHAIRPERSON: Ja. So the members, just to make sure here, of Azapo at that time were yourself and Shimi, that's all?
CHAIRPERSON: And the others you say were either sympathisers or supporters but not members?
JUDGE DE JAGER: But did you tell him you want to buy weapons?
MR MABIKA: The person that I told was Rudolf because he was also looking for a firearm and I told him that I have a way of acquiring the firearms only if we had money. He was also part of the planning.
JUDGE DE JAGER: Yes. Did you tell them that you want to buy firearms so that you could shoot the ANC?
MR MABIKA: All these people were not aware, the only person who knew about this whole issue was myself, Shimi and Rudolf, the rest of the people didn't know a thing about the mission.
CHAIRPERSON: Sorry, if I could just intervene. So when you went to the dry cleaner and entered the premises there, the other people, for instance Albert and Petrus and Wisdom, as far as they were concerned, they were involving themselves in a straight-forward robbery? What did they think you were doing in the dry cleaner?
MR MABIKA: I cannot say on their behalf, I can only talk about myself because of the situation that I was in, I had to try by all means to get money, that's why I had to part with anyone, I had to work with anyone to get the money.
CHAIRPERSON: But what I don't understand, Mabika, if you could just enlighten me is, you go in there, there's seven people. As far as you are concerned, you're going there to get money by violent means. Of the seven, there's only yourself, Shimi and Rudolf who know why you're going there, the other four have got no knowledge at all that you're going to rob, this is what you're saying. Now why take those people? Didn't you think they would panic and start screaming and running around and let you down? How can you have a smoothly planned operation with people who've got no idea that they're involved in it?
MR MABIKA: The situation that we were facing was very tense and I was forced to try by all means to take this mission and we planned with Shimi and when I got to Kimberley with Shimi, Shimi talked to the Sehere brothers and even the driver of the dry cleaner was a close friend of the Sehere brothers. Even the Sehere brothers didn't have enough information as to why I was in Kimberley, it was only Shimi who knew what was happening. They also needed the money.
CHAIRPERSON: So what you say,the Sehere brothers needed the money?
MR MABIKA: Yes, because we had agreed upon going to rob the dry cleaner. They knew very well that we were going to get the money.
CHAIRPERSON: Okay, no that was where I was confused, I was under the impression they had no idea why you were going at all, not even to rob. So they knew that, as far as they were concerned, it was a straight-forward robbery and they were going to get some money out of it? Okay.
JUDGE DE JAGER: Was there an agreement that you would share the money with them?
JUDGE DE JAGER: On what basis would you share, each one getting one seventh, or would you get more or some people more and others less?
MR MABIKA: I was going to get my money and each and every person was going to get his own share.
CHAIRPERSON: So would it be equal shares? Seven people, if you get R70 000, R10 000 each?
MR MABIKA: I was the person who was going to get a bigger share because of the firearms. I was going to get a share for two people, the one for the firearm and the one that I was going to use.
CHAIRPERSON: So you would divide the money by eight, you would get two and the others would each get an eighth.
JUDGE DE JAGER: And you say the watch was never stolen? You're sure about that?
MR MABIKA: Yes, I am certain about that.
JUDGE DE JAGER: Vundla never took the watch, Wisdom?
MR MABIKA: Vundla was the one who was holding the lady. i never saw the watch, I only heard about the watch in Court.
JUDGE DE JAGER: So if the lady testified in Court that her watch was taken or if she'd say that today here, she would be lying?
MR MABIKA: I cannot say, I cannot talk on behalf of Wisdom, all I know is that I was charged for robbery, attempted murder and firearm, I know nothing about the watch. As I have mentioned earlier on that in those days it was a common thing that when you are arrested, they would use anything to implicate you. Many people died because of crimes that they did not commit and the fabrications that were done by the police and even when I heard this in Court, I was not surprised because I just thought it was one of those things.
JUDGE DE JAGER: So I finally ask you, if Ms Spicer would today tell us that you people robbed her of her watch, would she be lying? I'm not talking about the police now.
MR MABIKA: If she says that I took her watch, that is not true. Even in Court I do not remember that she mentioned that I took her watch. If she mentions that today, then ...
JUDGE DE JAGER: No, it was alleged that, was it Rudolf - Vundla took the watch. Did he take the watch or not?
MR MABIKA: No, I never saw the watch at all.
MS COLERIDGE: Chairperson, just for the record, it was Themba, that is the applicant. It was alleged that the applicant had taken her watch.
JUDGE DE JAGER: They said you took the watch. Sorry, it's not Rudolf, it was you, they alleged you took the watch.
MR MABIKA: As I said initially, that by coming to this Commission, the charges that I'm facing is the armed robbery and attempted murder and firearm, together with ammunition. I know nothing about the watch and I did indicate that it was common thing that charges - the way that the Government was using that, when we got arrested they would tell all kinds of lies. This is one of those things, it was a common thing, I know nothing about the watch. My aim to go there was not to get the watch, I wanted the money but when the shot was fired, we left the premises immediately.
CHAIRPERSON: Sorry, Mr Sibanyoni indicated he wants to ask a further question.
MR SIBANYONI: Indeed, sorry Mr Chairperson. Mr Mabika, are you familiar with the term amaZimzim?
MR SIBANYONI: That term is used in relation to which organisation or members of which organisation?
MR MABIKA: Azapo was referred to as amaZimzim and we used to call ANC as the ...(indistinct) and they would call us amaZimzim and amaVarara.
MR SIBANYONI: Those two terms, amaZimzim and amaVarara, were they said even in good faith or were they degrading terms?
MR MABIKA: They were not used in good spirits, these terms came about in 1985. The ANC, when they started ...(indistinct) people, we called them amaVarara and they called us amaZimzim, because at some stage Azapo attacked ANC members, but I was never involved, that was from 1985.
MR SIBANYONI: So you are saying there was enmity between ANC and Azapo members?
MR SIBANYONI: Thank you, Mr Chairperson.
JUDGE DE JAGER: Who was your leader in Johannesburg, the Azapo leader or Commander, whatever you may call him?
MR MABIKA: We did not have a Commander, there was an ...(indistinct). We had Comrade Liebe Mabaso.
JUDGE DE JAGER: Did you inform him about this mission of yours?
MR MABIKA: No, I never told him
JUDGE DE JAGER: Did you belong to an Azapo branch, or unit?
MR MABIKA: I was in the Azapo branch.
JUDGE DE JAGER: Who was your Chairman?
MR MABIKA: I cannot remember him.
JUDGE DE JAGER: Can you remember the secretary?
JUDGE DE JAGER: And you've already told us that you didn't inform him of this mission of yours.
MR MABIKA: Yes. Comrade Mangena told me that he was going to talk to Liebe Mabaso and Mabaso is going to help me, but if he fails, I had to phone him back, but I couldn't do that because of the situation.
CHAIRPERSON: Did you at any stage go to Mr Mabaso and say: "Has Mr Mangena got hold of you?" Did you make inquiries from Mabaso?
MR MABIKA: No, when I got arrested, I did not get a chance to meet with him until I was arrested.
CHAIRPERSON: Ms Razak, do you have any questions arising out of questions that have been put by members of the Panel?
MS RAZAK: Thank you Chairperson.
FURTHER RE-EXAMINATIOn BY MS RAZAK: Mr Mabika, what were you going to do with your share of the money?
MR MABIKA: Myself and Comrade Shimi, we were going to Mr Mashaba to buy the weapons because we had told ourselves that we were going to commit only one robbery and buy the weapons and attack the Government, more especially the police station and the first target was Madigane police station, that was my first target, therefore we knew that we were going to get firearms in that police station.
MS RAZAK: Why did you decide to take such drastic action to get money for weapons, Mr Mabika? You didn't, as you admit, consult any of your superiors in the Azapo organisation.
MR MABIKA: The situation that we were facing was very difficult. As a freedom fighter, it's something that I had to do to make sure that I protect myself and my organisation, therefore we had to get the money to buy the firearms, because if I was failing, I was going to die.
MS RAZAK: Thank you. No further questions.
NO FURTHER QUESTIONS BY MS RAZAK
CHAIRPERSON: Ms Coleridge, do you have any questions arising?
MS COLERIDGE: No questions, thank you Chairperson.
CHAIRPERSON: Mr Mabika, that concludes your evidence, thank you.
CHAIRPERSON: Ms Razak do you have any further witnesses to call?
MS RAZAK: No Chairperson that will be the sum total of the case.
CHAIRPERSON: Thank you. Ms Coleridge?
MS COLERIDGE: Chairperson, that is the case for the victims. Ms Spicer does not wish to testify.
CHAIRPERSON: Yes, thank you. That then concludes the evidence in this matter. Ms Razak, do you have any submission you would like to make?
MS RAZAK IN ARGUMENT: Chairperson, save to say that I'll try to keep this as short as possible. This particular inquiry, as the Honourable Committee Members are all aware, is not about the guilt or innocence of the applicant. It's not about the correctness of what was reflected in the Court record, but it's simply an exercise to ascertain the truth of the events that occurred on that day and more importantly the motive and objective with which these acts were perpetrated. The other accused, for some reason or the other, have not applied for amnesty. I'm not sure what their status is.
CHAIRPERSON: We don't hold that against anybody because certain people didn't apply for amnesty because they were unaware of it. Certain people didn't apply for amnesty because they weren't in agreement with the process, so we're not going to draw any conclusions from the fact that other people haven't applied. We certainly won't hold that against anybody.
MS RAZAK: Thank you, I'm indebted to you Chairperson, for that information. And given the circumstances as set out and the evidence given today, there are certain things that emerge from here. One of them that emerges quite clearly is the conviction of the applicant to the policies of Azapo. There might be some confusion as to whether there were instructions given, or in fact that there were no instructions given and he admitted to this. He did not pretend that there were instructions given, he did not give a false version about his involvement in it, he quite openly set out his policy views, his beliefs at the time and the way he perceived his situation to be at that time. It's obvious that there was some level of internecine violence that was taking place, the exact degree of this, there is no evidence of, but all we have to do is go to relevant news reports at the time to confirm that there was a very torrid situation, to say the least. We had, on the one side the internecine violence and on the other side, we had incidents of violence against the State. In this political climate, the important thing to consider here is, what was the state of mind of the applicant at that time when he decided to take on these dastardly acts, which he firmly believed, was in the course of the struggle. He believed himself to be in a war, he believed himself to need ammunition to defend his life, these were his perceptions. The right and wrong of his perceptions is not what is in question, but simply that these perceptions existed and that he was in fact a fully fledged member of Azapo for ten years prior to the incident. There has been testimony that he constantly reiterated that he considered this a situation of emergency and he wanted desperately to acquire funds to acquire the ammunition in Mozambique. He obviously did not consult leadership at a local level, but there is evidence that he did consult leadership at an international level, namely Mr Mangena from Harare and the fact that he did not pursue this is more indicative of his impatience and his frustration with the situation, Chairperson, and it points to and it confirms that his motives and objectives herein, whether they were morally right or wrong, were most decidedly politically motivated and it is in the light of this that I appeal to the Committee to consider his application favourably.
There are in addition inconsistencies that have come out. There are also very strong convictions which have been expressed and if one has regard to the criteria in the Promotion of National Unity and Reconciliation Act, which must be regarded when making decisions of this sort, the motive and the context in which this offence was committed, was obviously within a political framework, and if, to a large extent, this existed as a paranoia with regard to the applicant, it was nonetheless his true perception at the time.
At no stage is there an indication that he wanted to do this for personal gain. He was employed. He was employed in fact with a Union which was an affiliate of Azapo. If one has a recollection of politics during the early nineties and the late eighties, there was very little distinction between Union matters and Union organisation matters and political matters, they were pretty much intertwined at the time and even in his discussions of people having been present at Union meetings, to him and to many people at that time, it would amount to one and the same thing because politics and unionism was pretty much interlinked.
He was not only employed with them, but he was also a member of them for a number of years.
The objectives, he has clearly set out, were that he wanted to acquire funds for ammunition, we need not reiterate this.
Yes certainly, the nature of the offence and the acts that took place here, are not by any stretch of the imagination pleasant, they are not to be looked upon favourably, because there are people, there are human lives at stake, but one has to take into account that Azapo particularly and that the mindset and the political ethos that was perpetuated by Azapo and it's affiliates, were pretty much a black consciousness movement that was concerned primarily with the preservation of black people, even if it was at the expense of white people, or at the expense of members of the public, that this was pretty much the attitude that was prevailing at the time, be it right or wrong and in the light of all the aforesaid evidence and the argument that I've afforded, I pretty much appeal that the applicant's application be considered in a favourable light and that he be granted amnesty. Thank you.
CHAIRPERSON: Thank you Ms Razak. Ms Coleridge, do you wish to make any submissions?
MS COLERIDGE: Yes, thank you Chairperson.
MS COLERIDGE IN ARGUMENT: I just want to touch on the issues of the inconsistencies in relation to the applicant's version and in relation to the facts and what the victim has stated and the Court Judgment. Firstly the issue of the gun, the firearm. In the Court Judgment it was stated that Shimi acknowledged the fact that he had actually presented the applicant with a firearm, where, under the evidence, under cross-examination the applicant stated that he himself, actually it was his firearm and he went out to purchase it himself, Chairperson, so there's that one consistency that does exist.
The issue of Ms Spicer trying to actually take the gun and trying to take the gun away from him, is inconsistent to what the victim is stating, Chairperson. She states that she was overwhelmed by six males, basically, who pinned her down and she admits that she did scream and shout like any normal person would do. She states that she never tried to reach out for the gun.
JUDGE DE JAGER: Ms Coleridge, but she didn't give evidence at this hearing. They didn't have the opportunity to cross-examine her and test her evidence.
MS COLERIDGE: Chairperson, she states in her Court Judgment and she also to myself, informed me that she ...(intervention)
JUDGE DE JAGER: Ja, well she - you can't give that evidence.
MS COLERIDGE: I take the point.
CHAIRPERSON: But what about the position, just for your views, the fact that Wisdom got shot through the hand? That sort of doesn't seem to indicate that the shot was aimed particularly, because otherwise he wouldn't aim to shoot your companion's hand.
MS COLERIDGE: Yes, the victim's version is, Chairperson, that they pushed her down on the ground and she was just coming up and that's when, because they were holding her, Vundla was holding her and that is when he shot at her and it so happened that it went through Accused Number Seven's hand, because they were in that position.
Chairperson, I did ask her, Ms Spicer, whether she'd like to testify.
CHAIRPERSON: Yes. No, we understand, certainly and respect her decision not to testify and it's not very common that we in fact do have victims who have gone through a traumatic experience like that, who wish to testify, so we understand that Ms Spicer, completely.
MS COLERIDGE: Chairperson, in relation to the applicant. It's not in dispute that he belonged to the Azapo and to the Union, Chairperson, the only fact, that is our submission is that the applicant surrounded himself with criminals. According to him it was just himself and Shimi belonging to Azapo organisation and the other persons were really into it for personal gain.
CHAIRPERSON: And then, then thereby watered down the end profit.
MS COLERIDGE: ; The end profit, exactly Chairperson.
CHAIRPERSON: Dividing by eight instead of by two.
MS COLERIDGE: By two, correct and it is our submission Chairperson that this was a basic criminal activity on the part of the applicant, Chairperson.
It is our submission, Chairperson, that the applicant's application for amnesty must be refused, Chairperson. Thank you.
CHAIRPERSON: Ms Razak, any reply?
MS RAZAK IN REPLY: Thank you Chairperson. In relation to the allegation or the submission that the applicant surrounded himself with criminals, I think it became evident that certainly the other people were not aware, he did not try to hide this fact, he said that it appeared in the context to be more of an inducement for their participation. He was obviously nervous, he had never done something like this before. There was only one weapon and they wanted this operation or this robbery to be successful for whatever purposes for each of the individual members, the fact that they'd coerced, or they'd - I beg your pardon co-opted the assistance, so to speak, of criminals has no bearing on the fact that the applicant and Shimi, for example who is not here to give testimony, but certainly the applicant was interested in one thing and one thing only and that is that he wanted to get money. He obviously thought that there would be safety in numbers, therefore six or seven of them went and the operation itself, the way it was carried out was obviously amateurish, everything about it showed that there was no premeditated kind of an efficient planning by criminals. The issue here is what is the applicant's involvement in this and he was prepared to share out this money with the other criminals, but certainly his share of the money and he claimed Shimi's share of the money, was going to go for ... (intervention)
JUDGE DE JAGER: But if he really wanted money for the organisation, why wouldn't he take six Azapo members and all the money would go to Azapo?
MS RAZAK: Yes, I understand your difficulty with this Judge. It just appears to me that there was not a very good communication link between the applicant and the rest of the Azapo members. He obviously had to go and find assistance from Harare which was not forthcoming. He then took the only Azapo member that he knew.
JUDGE DE JAGER: Was that then a frolic of his own? He didn't consider the other Azapo members, he didn't ask his superiors, he didn't bother to make another phone call?
MS RAZAK: Agreed, Judge, that his decision was certainly hasty, it was not well thought out, it was not well executed either and he didn't get the requisite authority from his superiors. In fact he averted that, because his insistence is that he could not wait for that kind of authority, he could not wait for that whole process to complete itself, because had he done so, he believed he would be wasting time.
JUDGE DE JAGER: He's in Johannesburg, he's got a Chairman, he's got a secretary there, what time would that involve, to go to them and ask: "Listen, I'm going to do this, would this meet with your approval?"
MS RAZAK: It appears that his lack of doing this was that he was not going to get consent forthcoming and my point is that his particular perception was that it needed urgent action and this may not necessarily have concurred with the opinion of his superiors.
JUDGE DE JAGER: But suppose he would have asked and they would have said no, would that then be a politically motivated, would he qualify for amnesty if he's acted against his organisation's wishes?
MS RAZAK: With all due respect, that is a hypothetical scenario, that has not been put to the applicant and it is not the case that has to be considered, but if we take the hypothetical scenario, had he been refused, had he actually been refused permission, it might have shed a different light on it, but in the circumstances ...(intervention)
JUDGE DE JAGER: The trouble is, you argued it, I didn't argue it, you put it to me.
MS RAZAK: I understand that, but under the circumstances there was somebody who was aware of this operation, Mr Mangena, and he neither gave confirmation, nor did he give resistance to the idea.
CHAIRPERSON: He wasn't aware of the Acme Dry Cleaning, of an operation to ...
MS RAZAK: No he was aware that the applicant wanted to ...
MS RAZAK: Yes, to get himself armed and to proceed with an operation of this type.
CHAIRPERSON: Yes, but he wasn't aware of - yes of that type, not of that particular operation.
MS RAZAK: Yes, not of that particular operation. But given that there was no dissent forthcoming, that even Mr Mangena, being aware that this kind of an operation was in the forefront or was being planned, there was no resistance from him, there was no: "Don't go ahead and do that, are you crazy?" This indicates that these kinds of operations, if you want to call them, be they horrid, were part of the policy of the organisation at that time, the they certainly were - it was not incommensurate with what was taking place at a broader level.
CHAIRPERSON: Thank you Ms Razak. That then concludes this hearing. Like in the other matters, we shall be handing down a written decision, which is our policy, certainly my policy, which we shall endeavour to do as soon as possible. Ms Razak thank you very much for your co-operation in this matter, Ms Coleridge. Mr Mabika, that's the end, as you hear, of your hearing and we'll hand down the - we'll reserve our decision to be handed down in the near future.
Before we adjourn, I'd just like to thank everybody who made these hearings here possible. I'd like to thank the
interpreters who have a very difficult task trying to keep up with all the talking that's going on all week. Thank you very much indeed Ms Coleridge for your assistance, the sound technicians, the TV person, the caterers who looked after us so well, Jo, the liaison officer, my secretary Molly, everybody concerned, thank you very much and also the owners of this very convenient nice venue, thank you very much. We'll now adjourn. That's the end of our roll. Thank you.