MR KOOPEDI: The application of M A Damoyi AM 6303/97. It is alphabetic number K in the bundle. Thank you Chairperson, the applicant Mr Damoyi is here and ready to be sworn in.
MZWANDILE A DAMOYI: (sworn states)
MR MAPOMA: Thank you Chairperson. Chairperson may I at this stage, for the record, announce that the next of kin of Zaba Maledza and Edward Masuku have not been located. This application relates the death of these two persons and we notified the next of kin in the newspapers, Sowetan and Ilanga. Unfortunately we have not received a response from the next of kin. I ask the Committee to proceed, Chairperson.
MR KOOPEDI: Thank you Chairperson.
EXAMINATION BY MR KOOPEDI: Mr Damoyi, is it correct that you appear before this Committee in connection with two matters where two people died, the one being Zaba Maledza and the other one possibly being Edward Masuku?
MR KOOPEDI: Now I am showing to you a document. Chairperson, page 177 of your bundle of documents. Is this your application form?
MR KOOPEDI: And at the back of that form, of this form on page 182 just above the word "Deponent" there's a signature, is that your signature?
MR DAMOYI: That is my signature.
MR KOOPEDI: I am also showing to you a letter, page 185 Chairperson of your bundle of documents. This letter is a response to an inquiry by the Investigation Committee of the TRC. It's signed on page 187. Was this letter written by you?
MR DAMOYI: Yes, it was written by me.
MR KOOPEDI: Thank you. Now when these two incidents happened, were you a member of a political organisation?
MR DAMOYI: Yes, I was a member of the ANC.
MR KOOPEDI: And where were you based?
MR DAMOYI: I was based in Camp 32 in Angola.
MR KOOPEDI: What were your duties at Camp 32?
MR DAMOYI: I was a Camp Commander. Being a Camp Commander it meant that I was an overseer of everything that was taking place in the camp, both with the comrades and at the same time those that we have locked up.
MR KOOPEDI: It would be appropriate to refer to them as inmates, an easier term of reference. And Camp 32, would I be correct to suggest that it was a camp wherein, mainly where inmates were kept, people who were arrested were kept?
MR KOOPEDI: Now, let's ...(intervention)
CHAIRPERSON: They were prisoners.
MR DAMOYI: They were prisoners.
MR KOOPEDI: Thank you Chairperson. Now maybe let's start first with Zaba Maledza. Briefly tell this Committee how did this person die and what your involvement was in his death.
MR DAMOYI: I can't remember exactly the year, but I think it was around the eighties, maybe 84, 85, I can't remember exactly, but he was in solitary confinement.
MR KOOPEDI: What had he done? Do you know why was he ...(intervention)
MR DAMOYI: Definitely I won't know because it was a matter of need-to-know basis. He was kept there, I would believe for a crime that he'd committed against the movement.
MR DAMOYI: And then the following day when we opened up the cell, we find that he was dead in his cell. We believe that he must have committed suicide.
MR KOOPEDI: What was the position you found him in?
MR DAMOYI: I won't recall, but you know the cell ...(indistinct) and a small cell.
MR KOOPEDI: Can you perhaps tell the Honourable Committee how small was it? Can you estimate in terms of metres the width, height?
MR DAMOYI: I think it was a metre by a metre.
MR DAMOYI: And then the height it was maybe about half a metre from the roof, it was not very high.
CHAIRPERSON: How far? Half a metre high?
MR DAMOYI: Half a metre high. Thanks.
CHAIRPERSON: That's less than the height of the table you're sitting at.
MR KOOPEDI: Going from the floor to the roof, what would the metres be more or less? That is from the ground.
Almost next to the table, Chairperson, almost a metre.
MR SIBANYONI: What was the structure? What was the cell built of?
MR DAMOYI: The cell was built with concrete, reinforced concrete and at the same time there was just a small window by the side. It was made also of steel. In other words that window, it was just an open, a window but with no glasses, it was just a sieve and then this cell, this window was in between the cell and the outside wall. The window was just inside in the middle. This is a wall this side and another wall of the prison, then the window was inside here.
MR SIBANYONI: Do you get us correctly when we talk about the height? In other words, the person wouldn't stand in the cell, he would always remain seated.
MR DAMOYI: No, he would stand.
MR SIBANYONI: So when we talk about the height we mean from the ground up.
CHAIRPERSON: How can he stand if you have indicated, as I understood you had, that from the ground up was about the height of this table?
MR DAMOYI: No, I'm sorry, maybe I didn't understand that. But he could stand. When I said half a metre, it meant we he stood, when he was standing there was that allowance.
CHAIRPERSON: And could he lie down on the floor?
MR DAMOYI: Yes, he could lie down on the floor.
CHAIRPERSON: So that must have been longer than a metre.
MR DAMOYI: Maybe, I'm not very ...
CHAIRPERSON: Let's try to make it a little easier. If you could come round and demonstrate on the carpet here.
MR DAMOYI: More or less he was my height. ...(indistinct - not using mike) He could sit down this way and he could lie this way as well.
CHAIRPERSON: Now when you lay down, how much extra space was there?
MR DAMOYI: No there's not going to be much space. ...(indistinct)
MR SIBANYONI: In other words, if he was lying down there would be an extra space of the distance he's measuring.
CHAIRPERSON: What, half a metre?
JUDGE DE JAGER: Two and a half, by two and a half, by two and a half.
MR KOOPEDI: Now you've told this Honourable Committee that your suspicion was that he committed suicide. Why did you suspect that he committed suicide?
MR DAMOYI: There were globes in the cells, there were lights, lighting globes.
MR DAMOYI: Those lighting globes, you never find them, the globe which meant for him - which was used for lighting the cell, it was not there, so I assume that was, he might have swallowed that globe. How I don't know.
CHAIRPERSON: He might have done what?
MR DAMOYI: He might have swallowed the globe.
MR KOOPEDI: Do you know if any post-mortem was done on him?
MR DAMOYI: I won't know, honestly.
MR KOOPEDI: When you found him in that position, what did you then do?
MR DAMOYI: He was taken to the medical point.
MR KOOPEDI: And did you have anything further to do with him or his body?
MR DAMOYI: He was taken to the medical point and then from there transport was arranged to be taken to Luanda, I would assume for burial.
MR KOOPEDI: Now what would you say was your omission, as you've written the word omission in your application form? What was your fault with regard to Aba Maledza?
MR DAMOYI: I would say my omission was the - well the failure perhaps on the movement to build better cells but it should be understood by this Committee that the movement had limited resources, we couldn't go beyond that which we did because at the same time there were so many problems that we were facing, the movement.
JUDGE DE JAGER: But I've got this problem, you've now demonstrated a cell of about two and a half metres by two and a half metres and even the height two and a half metres. There's nothing wrong with such a cell, it's sufficient moving place, so why would - how could that have caused his death?
MR DAMOYI: I wouldn't know Your Worship, I wouldn't know because I believe that actually even myself, the members of the movement were surprised that we could find somebody committed to suicide, because ...
JUDGE DE JAGER: We've heard evidence that they had underground cells.
MR KOOPEDI: Chairperson the underground cells were at Camp 13.
JUDGE DE JAGER: There weren't any underground cells at Quatro Camp 32?
MR DAMOYI: During my presence there, there were no underground cells.
CHAIRPERSON: What sort of doors did these cells have?
MR DAMOYI: They had steel doors.
CHAIRPERSON: Steel doors and they had a window that was no glass, open window.
CHAIRPERSON: So they were ventilated. How often had you been using these cells for?
CHAIRPERSON: How long had these cells been used for?
MR DAMOYI: The cells I think were there, I think they were established around 1979.
CHAIRPERSON: So four or five years.
MR KOOPEDI: Now the other person, Edward Masuku, or the person who could have been Edward Masuku, what happened to him?
MR DAMOYI: If I still remember, I think he was dragged, he was taken from the cells to the medical point but the inmates that time told us that he just collapsed and was taken to the medical point and then from there, when I saw - the medical point practitioner showed me his palms and under feet, he said there was a problem of lack of blood in his body. By that time even his eyes were starting to turn, thereafter he died as well.
MR KOOPEDI: Was this attributed to the poor conditions in the cells?
MR DAMOYI: I will say so because in the cells sometimes you find you kept about - a large number of persons inside and there was a lot of, you find that the cell is stuffy itself even though there's ventilation and even though ...(indistinct)
MR KOOPEDI: You somewhere referred to the dampness of the cells, that was in your response. How would these cells become damp?
MR DAMOYI: In some instances you find there were heavy rains in Angola and those heavy rains and especially the - how our cells were built, that was one of the problems. You find that water is being trapped on the roof there, then even underneath, you would find out that there was dampness on the roof.
MR DAMOYI: I'm sorry, on the floor. So I think somehow these were also problems that were affecting the inmates there.
MR KOOPEDI: Now in your letter ...(intervention)
CHAIRPERSON: Sorry. How long had he been in a cell?
MR DAMOYI: I'm not sure exactly.
MR DAMOYI: I think in my submissions I have mentioned it was maybe around 83, 84, I can't remember the exact date, exact year.
CHAIRPERSON: And he was not in solitary confinement, he was in a cell with others.
MR DAMOYI: Ja, no this one I'm talking about was amongst other inmates.
CHAIRPERSON: How many in the cell, can you estimate?
MR DAMOYI: Sometimes there used to be twenty in a cell.
MR KOOPEDI: Now in your letter, in your response to the Investigation Committee, you say that this person, an inmate and you say "Whose name I cannot recall", when on your application form you have indicated him as Edward Masuku. Could you explain why you've listed, you have now written that you cannot recall the name?
MR DAMOYI: I think by the time I submitted this application, in the process I might have consulted one of the comrades, ...(indistinct) certain why this cannot be Edward Masuku, because I think the ...(indistinct) all the people who were there, what was ...(indistinct) what was problem. Maybe then Ismail knows exactly this could not be Edward Masuku.
MR KOOPEDI: So but when you completed your application form, you had thought that or believed that this person is Edward Masuku?
MR KOOPEDI: Thank you Chairperson, that's the evidence-in-chief.
NO FURTHER QUESTIONS BY MR KOOPEDI
JUDGE DE JAGER: You said this man was pale, he had a lack of blood. Was he bleeding somewhere, had he injuries so that he could have lost blood?
MR DAMOYI: I was told that by the medical practitioner really in our camp. He said if somebody is pale, his palm is pale it means lack of blood in his cells, but when I compared his palm and mine, I found that there was a difference. Mine was a bit reddish and his was pale, so I believed what he told me.
JUDGE DE JAGER: Did you see any wounds on there?
MR DAMOYI: No, there were no wounds.
JUDGE DE JAGER: Have you know this man? Had he been in the camp for quite a period?
MR DAMOYI: I think he was brought - I think he stayed about a year.
JUDGE DE JAGER: You also mention in your answer to the questions, I just want to find the reference, you speak about poor cell conditions
"Cells were at times overcrowded, hot and lacking ventilation. Hygienic and medical care were inadequate. Sometimes there was no food. There was a lack of water. Some of the cells used to be damp for a long time, especially after heavy rains. Detainees used to be held for a period of three to seven years without trial."
JUDGE DE JAGER: And could you explain about this lack of water? What lack of water was there?
MR DAMOYI: Lack of water - there was no running water like we have in South Africa, where everybody has a tap in his or her own yard. There it was a different case. We depended solely on water that was coming from the rivers and if there was no rain in some instances, then it means there won't be water for some time unless maybe when you are lucky, a truck would come maybe from Luanda which was about 210/250 kilometres or so to bring water, that we'll get water maybe around the surroundings, is what I mean by lack of water.
JUDGE DE JAGER: Was there a lack of drinking water too?
MR DAMOYI: Yes, that's what I'm saying.
JUDGE DE JAGER: And if there was a shortage of drinking water I presume the personnel, the staff people, would have preference and not the inmates? Were they rationed with water?
JUDGE DE JAGER: Rationed, did they only have say a glass per day or a glass per three days, or whatever?
MR DAMOYI: In those circumstances we had to ration water. I mean the little that we had at that particular moment, we had to ration it, so that we can continue to live, because we don't know when would rain come, or when will a truck come from Luanda to bring fresh water.
JUDGE DE JAGER: Now could you perhaps give us a picture how much water would I have as an inmate available per day? Sometimes no water, sometimes water, or what was the position?
MR DAMOYI: Sometimes there was water, sometimes there was no water at all.
JUDGE DE JAGER: For how long would I be without water?
MR DAMOYI: Even for a period of seven days.
JUDGE DE JAGER: Even up to seven days.
MR DAMOYI: It will depend. Sometimes he can go up to a month sometimes.
MR DAMOYI: Without food, but depending on maybe we say we get into the veld, the comrades get into the veld or into the bush, they can get ...(indistinct) the mangoes and whatever fruit that is available on the bush.
JUDGE DE JAGER: But the inmates wouldn't have that opportunity to go and collect food in the veld.
MR DAMOYI: No, certainly no, precisely because there was a problem there. There was a problem of the shortage of manpower, that is on our side as comrades and these people were more than we were, so now taking them to the veld, it means also opening up some risk of them maybe escaping or running away.
JUDGE DE JAGER: Were they kept in the cells for long period, or were they taken out everyday?
MR DAMOYI: I don't understand when you say taking them out everyday.
JUDGE DE JAGER: No, did you take him out of the cells to walk or to have exercise, or were they kept in the cells for the whole period?
MR DAMOYI: No, when there was time and there was enough - when there was time for doing that it was done and at the same time when there were enough comrades to do that, that could be done, but in short, they were not absolutely kept in cells.
JUDGE DE JAGER: For how long would they stay in a cell for instance without coming out?
MR DAMOYI: Maybe a period of five days.
JUDGE DE JAGER: And if they're in solitary confinement, would they be kept there without coming out for longer, or what would the position be? What would the difference be between solitary confinement and the other cells there?
MR DAMOYI: I can't remember those, but the only thing that I know, in some instances they'll be opened up and going to the administration to be asked some question regarding whatever they've written on their biographies. I think in a way they would also get some little exercise by doing that, but I don't remember a day whereby they were taken out solely for purpose of exercises.
JUDGE DE JAGER: So they were left in the cells for months on end.
MR DAMOYI: Not for months. In some instances, yes.
JUDGE DE JAGER: Was there a name list of all the inmates?
JUDGE DE JAGER: A list of all the inmates with their names on?
MR DAMOYI: Yes, they were kept by the Department of Administration.
JUDGE DE JAGER: Wouldn't it be possible to find out who this deceased was, because his family might be interested in at least seeing his bones or know where he's been buried.
MR DAMOYI: I think I'm not in a position to answer that question now because there must be some records somewhere which have been kept. I've left that place around 19 - I think around 87, so what remained of them, of the inmates I don't know, even about the records that I'm mentioning.
CHAIRPERSON: Well you do say in your letter that a medical report explaining the death of the inmate was compiled and sent to Luanda, the ANC Head Office. Unconfirmed reports indicate that comrade Spider died between 1993 and 1994. That's at page 185. So you say that there was a report, this is on the death of the man with the pale hands, that was sent to the Head Office in Luanda.
CHAIRPERSON: Was that the normal practice?
MR DAMOYI: That was the normal practice yes.
CHAIRPERSON: And the same would have been done for Zaba Maledza?
JUDGE DE JAGER: Can this date be correct? That Spider died between 1993 and 1994? That was a year before the election.
MR KOOPEDI: Spider is the medical officer Chairperson.
JUDGE DE JAGER: And the graveyard, where were these people buried?
MR DAMOYI: I would assume in Luanda, Your Worship.
JUDGE DE JAGER: How far from the camp was that?
MR DAMOYI: That was about three hours drive, it should be about 350 to maybe to 400 kilometres.
JUDGE DE JAGER: Why didn't you bury them there near the camp?
MR DAMOYI: That was beyond my - that was beyond my duty.
JUDGE DE JAGER: It wasn't your ...
MR DAMOYI: Ja, it wasn't within my duties, Chairman, it was decided by other people above me.
JUDGE DE JAGER: But you were the Commander of this camp.
MR DAMOYI: I was the Commander of the camp, yes.
JUDGE DE JAGER: Were you aware that some people were assaulted in the camp?
JUDGE DE JAGER: Do you know how they've been assaulted?
MR DAMOYI: Ja, assaulted by the guards and as a Commander of the camp I used to say - I used to put a ban on that that people must not be assaulted, but at the same time I would also understand that maybe it was a problem that they thought, because they were young comrades, they thought that they were the ones who were impeding the progress, because the aim of being outside, they wanted to come and fight in South Africa, but they were kept there in those conditions and maybe that's the way they ...
JUDGE DE JAGER: But they were in that sense not enemies of the ANC, they were sort of not adhering to the rules, but they never fought against the ANC, they never joined the government forces or gave information to the government forces, they were sort of going into mutiny because they wanted to fight and not sit back in Angola. Wasn't that the reason why they were involved in a mutiny?
MR DAMOYI: I don't seem to understand that question very clear.
MR KOOPEDI: And if I may assist, Chairperson, not all inmates at 32 were mutineers. Yes.
JUDGE DE JAGER: No, I understand that but the mutineers didn't defect from the ANC, they still supported the ANC and they, as I understand it and maybe I'm wrong, so you should correct me if I'm wrong, they wanted to get involved in a fight with the Government and not sit back in Angola. They were eager to get involved in actual war.
MR DAMOYI: I wouldn't like to answer that Your Worship, as I said because I was not part of those people who were curbing the mutineers. My own responsibility was to take all the people who were kept in 32 and look after them and if there was anybody who was dealing with the cases, it was their own case to deal with.
JUDGE DE JAGER: How many people were kept in the camp? I presume it differed at stages, but as an average, how many people would be in the camp?
MR DAMOYI: If we are to exclude - add those who came later on, it was about 40 to 50 persons.
JUDGE DE JAGER: And how many cells did you have?
MR DAMOYI: I'm just trying to think. It should be around about six cells.
JUDGE DE JAGER: And those cells, how many single cells and I presume there was a big cell, or two big cells or what was the position?
MR DAMOYI: They were almost all the same size cells.
JUDGE DE JAGER: No, but some cells could house twenty inmates, you've told us.
JUDGE DE JAGER: And others were small cells of - where a person could lie down.
MR DAMOYI: Those were solitary confinement cells.
JUDGE DE JAGER: How many solitary confinement cells did you have?
MR DAMOYI: Those I can remember were three.
JUDGE DE JAGER: And three big cells, is that correct, because you said: "We had six cells - approximately six cells", so you had three solitary confinement cells and three big ones, is that correct?
MR DAMOYI: Not three big ones, I think it was only one that can accommodate about twenty persons in that cell.
JUDGE DE JAGER: Well that - but make four cells then.
MR DAMOYI: No, no, within the seven that I've counted it was only one big that I can remember which can accommodate maybe say up to twenty.
JUDGE DE JAGER: Yes and then you had three solitary confinement cells, that would bring us to four.
CHAIRPERSON: Did you have other cells that could accommodate five, six people, in between the solitary confinement and the big cell?
MR DAMOYI: A single cell could accommodate only one person, not more than that.
CHAIRPERSON: You had three single solitary confinement cells. How many other cells did you have?
MR KOOPEDI: That was the evidence-in-chief.
MR MAPOMA: I have no questions Chairperson.
JUDGE DE JAGER: Mr Koopedi before you - on the evidence before us one person committed suicide, or presumably.
JUDGE DE JAGER: How could the applicant be blamed for that?
MR KOOPEDI: Chairperson, this applicant believes that the suicide was occasioned by the poor conditions in which inmates found themselves and the fact that he was the person who was
the overall Commander, he was responsible for those conditions and it is on that basis that he asks for amnesty.
CHAIRPERSON: As I understand his evidence and I may be incorrect here, this person was in a cell for one night, it was not a protracted period and bad conditions which depressed him. In one night he decided to kill himself and the applicant had nothing to do with his questioning, wasn't pressuring him, whereas other people may well have been doing so.
MR KOOPEDI: That's a possibility Chairperson, but what the applicant is asking amnesty for is the fact that he believes that this suicide was occasioned by the poor condition of the cell.
CHAIRPERSON: He's got no evidence to that effect at all.
MR KOOPEDI: That is indeed so, he cannot have that evidence Chairperson, but he believes that because he was the person who was in charge and if the suicide is - if the theory is correct that the suicide was occasioned by the poor conditions, he then asks for amnesty for that.
JUDGE DE JAGER: But we know there was evidence, we know that they've been interrogated, that they've been assaulted during interrogation, would that not be a more probable cause of suicide then being locked up in a cell for one night, a cell two and a half metres by two and a half metres, which wasn't a very small cell?
MR KOOPEDI: It may well be that this person wouldn't want to stay in that cell for longer and that is why on that very night, the person decided to commit suicide, deciding that: "I would not want to be in this solitary confinement cell for a long period".
JUDGE DE JAGER: ...(indistinct - speaking simultaneously)
CHAIRPERSON: There is no evidence that he was going to be for a long period.
JUDGE DE JAGER: Do you really think any Court could find him guilty of causing the death of that person on the evidence before us?
MR KOOPEDI: On the evidence before you, no. A definite no. However, if it is proved that suicide was caused by the very bad conditions that existed, he might then be found negligent in that he was the person responsible for that prison.
CHAIRPERSON: Has anybody proved suicide? We all know that people have heart attacks and die, particularly when subject to stress, don't we?
MR KOOPEDI: That is so, Chairperson.
CHAIRPERSON: The only evidence we have is that he was found dead the next morning and it appeared that a lamp bulb was missing.
MR KOOPEDI: And the suspicion was that it swallowed it because it could not be found anywhere else.
CHAIRPERSON: And there was no evidence about blood round his mouth or on his lips or on his tongue.
MR KOOPEDI: The medical officer ...(intervention)
CHAIRPERSON: They were told there was no sign of injury?
JUDGE DE JAGER: We appreciate the applicant coming forward and sort-of giving evidence about this, but I've got problems in saying he's guilty of an offence and I'm granting him amnesty for committing an offence, even the omission stated here, it's not - there's no evidence that at that stage this inmate had a lack of water or that he wasn't - there was no food available, or any of the conditions that he was responsible for.
MR KOOPEDI: That is so, Chairperson and I appreciate the difficulty in which you will find yourselves if you were to give amnesty or to sit down to write out a decision. This applicant says that he was a Commander at this camp and if you look at his application form, he was also motivated by the fact that it is an application form in support of other ANC application forms with relation to the camp. He took it upon himself as a Commander at a certain period, to say that: "I know that there were two people who died who, in my opinion, died because of the poor conditions", one suspected as having committed suicide because of the poor conditions, the other was said to have no blood. Now he did - he completed his forms and went on to say: "I'm lodging this application to go together with other application forms", so that where other people would have committed certain, or would be seen to have committed certain offences or missions due to the conditions in the area, this should also be attributed to him because he was the Commander, the person responsible for ...(indistinct - background noise), but like I said initially, I appreciate the predicament you would find yourselves in.
JUDGE DE JAGER: You see up to now we've only heard of assaults and that kind of thing, we haven't heard of anybody dying or coming forward and saying: "I should be a victim because they starved me" or "I haven't had water to drink", or whatever. So he's - I don't know whether in the other applications, I can't remember somebody accepting responsibility for the death of a person without him being assaulted or whatever. It's difficult to say we're granting him amnesty when the person wasn't killed, he wasn't assaulted, so I see omission or offence, but even omission in the end it should be an offence or a delict. Yes, thank you.
CHAIRPERSON: Do you have any questions?
MR MAPOMA: We have gone past Chairperson, the stage of questions. We are in arguments now.
CHAIRPERSON: In your letter, or in reply, you say that members of the National Executive Committee frequently visited the prison camp and Mr Andrew Masondo knows better the conditions in the prison camp. You remember that?
CHAIRPERSON: Is that Andrew Masondo, the person who is now General Masondo?
CHAIRPERSON: Who gave evidence at a hearing about conditions in the camp.
CHAIRPERSON: There were frequent inspections weren't there, by the Regional Command to whom you reported conditions?
CHAIRPERSON: I think it's clear from your letter that you were constantly in touch with those above you in Luanda, telling them what was happening in this prison.
MR SIBANYONI: Was Maledza his real name or his operative name?
MR DAMOYI: I won't know, that was the name I knew him since he even became and inmate when he was still working for the ANC.
MR SIBANYONI: Thank you. Thank you Mr Chairperson.
JUDGE DE JAGER: ; So you've been in this camp since 1979 up to 1985?
JUDGE DE JAGER: So you'd been there for six years?
JUDGE DE JAGER: So I take it you would be exact in saying there were six cells in total, you knew this camp very well.
MR DAMOYI: It's a long time ago. I might maybe omitting some cells, but I'm trying to - the figure that I've given you was the figure that I tried to get the picture of the sketch in my mind, so I will say that figure, that's right.
JUDGE DE JAGER: And you think the only people who might have died because of the conditions in the camp were the two you mentioned?
JUDGE DE JAGER: Are you aware of other inmates dying at that time, during the six years?
CHAIRPERSON: You were in the camp from 1979 were you? Since 1979 you were a member of the Centre?
MR DAMOYI: Yes, but not assuming a responsibility. I had no responsibility at that time, so that would be a soldier, a guard.
CHAIRPERSON: But you knew of no deaths then?
CHAIRPERSON: And then you took over as Commander in 1983 to 1985.
CHAIRPERSON: And these were the first deaths you heard of and the only ones you knew of.
CHAIRPERSON: It was not a case of continual - people dying continuously?
CHAIRPERSON: Only two. One with the blood complaint and one who committed suicide.
MR KOOPEDI: Chairperson, I will leave, if I'm supposed to do submission, I will leave this in the discretion of the Committee.
MR MAPOMA: No submissions Chairperson.
JUDGE DE JAGER: You people are not very helpful, hey.
MR KOOPEDI: We've already debated the issues Chairperson and perhaps that is why we're making no submissions.
CHAIRPERSON: Right. We've now agreed earlier that we would adjourn till 2 o'clock today, that is when the other part-heard matter will recommence.
CONTINUATION OF SPHAMBO MATTER
CHAIRPERSON: Reverting to the application of T J Sphambo, which was adjourned till 2 o'clock this afternoon to enable a witness to arrive. What is the position?
MS MAKHUBELE: Thank you Chair. The witness has still not arrived, that's the position.
JUDGE DE JAGER: Could you ascertain from the mother whether this man had asthma? Was he asthmatic?
MS MAKHUBELE: I can do that, Honourable Panel and I may say that as we discussed in chambers, if it's acceptable, because the version that I want to put to the applicant would be in those lines and also on other issues relating to the circumstances of the death of Eric. If it's acceptable, then the witness who was supposed to give evidence may make a statement to which the applicant may then respond. It is not a controversial statement in that she is not going to say she was present, but that the circumstances and from what he had, there is doubt for instance on a number of things, on the - the family's version is that he was assaulted.
JUDGE DE JAGER: But I haven't had an answer on the question yet. Was he an asthmatic person?
CHAIRPERSON: Are you happy to proceed on that basis?
MR KOOPEDI: I am happy to proceed Chairperson, thank you.
CROSS-EXAMINATION BY MS MAKHUBELE: Mr Sphambo, when a person is detained or arrested or joins the movement, do you know if his medical history is obtained?
MR SPHAMBO: Well the medical history of any cadre who joins the ranks of Umkhonto weSizwe, it stays with the medical department of the ANC, but the person himself or the member himself or herself usually reports his or her illness to the medical staff of the camp where he belongs to at that particular time.
MS MAKHUBELE: When a person is say to be interrogated or to be detained, do you know if it's procedure or not to obtain his medical history?
MR SPHAMBO: I don't get your point. Are you referring to ...(intervention)
MS MAKHUBELE: Do you obtain his medical history, say if you want to detain a person?
MR SPHAMBO: Ma'am, we're not detaining the person per se, the person was getting a punishment. That punishment he's getting was not, it's not a detention as such, but it's a place where he's being kept away from other cadres, to be in a position to attend to the duties that he has been given in terms of the punishment. It is not a detention as such. Detention, it's only at Camp 32, in other camps there was no detention, it was only a place where you keep in disciplinary actions or activities that have been committed by individuals within the ranks of MK. I just wanted to clarify that.
MS MAKHUBELE: Yes, but then if you have described this cell where he was supposed to - it's an underground cell.
MR SPHAMBO: You see Ma'am, when I'm saying it's an underground, it's not an underground in the true sense of the word, but that's how I can describe it because above it, right, those are the offices where the Commanding Structure was based, was staying, then underneath it was that room, so it's just one small room.
MS MAKHUBELE: You say that you didn't know that he had asthma.
MS MAKHUBELE: And had you known, obviously you would not have put him in that - you would not have ordered that he be put in that cell. You would have made some other arrangement.
MS MAKHUBELE: Okay. My instructions are that Eric was not asthmatic, these are my instructions from the family, from the mother and his sisters who also happened to have been with him in exile somewhere there in this Kibashe place and some were in Tanzania, according to their knowledge he was no suffering from asthma.
MR SPHAMBO: Ma'am I cannot really confirm that he was not or he wasn't suffering from that, but it's the report that we received after the post-mortem was conducted on him. And also to clarify something, the sister that you are referring to, the one whom you say she was in Angola, at that point in time the sister was not in Angola, she was in Sweden, travelling among the cultural ensemble of the ANC. Thank you.
MS MAKHUBELE: Yes, I don't know exactly which one that is. I have been given names that for instance not only the sister but a brother, one Nathaniel - Mrs Pharasi has several children, about maybe more than five of her children were either in Angola or Tanzania. If I may just confirm this with her? The sister may have been, at that particular week or day, have been travelling to wherever but the fact of the matter is that three of his siblings, Manto, Belinda and Thawu were in Angola and three more Mienkie, Timtim and Gele were based in Tanzania, so these are the people who know his medical condition because the mother, it can be said she was in South African, maybe his situation has changed there.
MR SPHAMBO: But what I'm trying to say to you Ma'am is that part of the asthmatic case of it I didn't know about it, as I've explained before, I only knew about it after the post-mortem had been conducted by the doctor and I can't dispute the report of the doctor.
MS MAKHUBELE: Let's proceed ...(intervention)
CHAIRPERSON: Before you - was this an official post-mortem?
MR SPHAMBO: Yes, it was an official post-mortem.
CHAIRPERSON: And were records kept?
MR SPHAMBO: The records were kept.
MR SPHAMBO: By the Regional Command of Umkhonto weSizwe in Angola.
JUDGE DE JAGER: And who was the Regional Command?
JUDGE DE JAGER: Who was the Regional Command at that stage?
MR SPHAMBO: By then, if I'm not making a mistake, really I can't really say because they changed regularly. They were taken to other countries, but by then, if I'm not making a mistake, it was - if it was not Julius, it was Timothy.
JUDGE DE JAGER: And what were their real names?
JUDGE DE JAGER: Their real names?
MR SPHAMBO: No, we don't know their real names.
JUDGE DE JAGER: You haven't seen them since?
MR SPHAMBO: Julius has passed away and I don't know about Timothy where he is.
MS MAKHUBELE: Thank you. Did you know that the people I mentioned to you were his siblings and they were in Angola for instance at that time?
MR SPHAMBO: No, I only knew about Belinda.
MR SPHAMBO: Yes. Because why I came to know Belinda, it's because in the process of Belinda's staying, practising for abroad, he used to give me some messages to tell the brother, that's how I knew Belinda.
MS MAKHUBELE: Is Belinda and Manto one and the same person?
MR SPHAMBO: I don't know but I know Belinda ...(indistinct)
MS MAKHUBELE: Yes, Manto, that's Manto. Anyway, it's the person, the witness we had been waiting for. Was she informed of the brother's death?
MR SPHAMBO: Well I don't know Ma'am because I was in the camp and immediately I reported the matter to the Regional Command, whether she was informed immediately, where she was abroad or she wasn't informed, I'm not really sure of that. I cannot confirm that.
MS MAKHUBELE: But then when, say a cadre has some say siblings in the same camp, would it be procedure to inform them about the death before the person is buried?
MR SPHAMBO: Yes, it does happen that way but not always because some of the people, let's say you are my sister, you are stationed in Zambia and in Angola there was a war situation and they cannot wait for two weeks or so because of the question of the flight, then they just explain to them when you come in they take you to the cemetery, that was the normal procedure.
MS MAKHUBELE: Yes, but if I'm in that particular camp, definitely I'll be informed.
MS MAKHUBELE: My instructions are that Eric was buried without Manto having been informed and she was only informed after he was buried, that's four days after his death, I'm not certain, but she was definitely informed long after he had been buried, so she was not in a position to even see his body before he was buried.
MR SPHAMBO: Well on that one, my sister, I cannot comment, because I was commanding the camp, right, and once I'd explained to the High Command, the High Command when they take a decision that this body of whoever cannot stay for a long time, to take a person to the grave side to see the body and all that, it depends on the High Command because I myself, I cannot communicate, we had no right to communicate with other camps directly, but we have to communicate with other camps through the High Command of the Regional Command.
MS MAKHUBELE: It's further my instructions from the family that the reason he was buried without even Belinda being informed or called to see his body before he was buried, is because he had been assaulted. Had she come to see the body, that's what she would have seen, that's why he had to be buried without the family knowing about it.
MR SPHAMBO: Well, Ma'am, on that one really I cannot account, because even myself I was in the camp when he was buried in Luanda, so I cannot comment on that.
MS MAKHUBELE: Do you know the person
JUDGE DE JAGER: But you can comment on the assault portion.
MR SPHAMBO: No, the part of the assault, there was no assault on that, there was no assault. You see, ...(indistinct) give you the description of our structure at that camp, then you'll understand. As that camp is station in a hilly place and the rains of that place, next to that place it's the river Kwanza, right, and that river it's always flooding when it's heavy rains and always the soil of that place is not, it's a clay soil that grabs water all the time, so underneath where they'd constructed this structure it's still clay soil and all the time it's having water, you see, so even if you're staying on top of that place, sometimes you'd see some white ... (what do they call this?) ...(intervention)
MR SPHAMBO: Like chalk of some sort, ja definitely, you see, so that's how the place was and it was always cold in that area.
MS MAKHUBELE: Are you in a position to confirm that no family member could be found, that's why he had to be buried?
MR SPHAMBO: Could I - come again.
MS MAKHUBELE: Are you in a position to confirm that the family members were actually traced but could not be found?
MR SPHAMBO: No I don't know about that, but I'm saying at the time of the incident, because I knew Belinda was in that group, the sister we're talking about, Manto, by then the group has left for Sweden, for a trip to Sweden, to perform in Sweden, so that was the person that I knew, the others I didn't know about.
MS MAKHUBELE: You said in your application that you don't know the junior member who put him in the cell.
MS MAKHUBELE: He was put in the cell by a junior member, but you can't remember his name.
MR SPHAMBO: Ja, exactly because I had a lot of soldiers under my command, you see.
MS MAKHUBELE: I have nothing further for now.
NO FURTHER QUESTIONS BY MS MAKHUBELE
JUDGE DE JAGER: So it seemed that he'd died of natural causes?
MR SPHAMBO: It's according to the doctor's results, he said like that.
JUDGE DE JAGER: It's like somebody having a heart attack.
JUDGE DE JAGER: So you've done nothing wrong.
MR SPHAMBO: I'm coming - I've applied for this amnesty with the sole purpose that as being a single person in that camp by then, that's why I'm applying for this amnesty, so that I must come and explain because I was the responsible person, responsible for the entire camp.
JUDGE DE JAGER: Ja, but you're not responsible for a person dying of a heart attack for instance, or because he had asthma.
MR SPHAMBO: Well, according to me, to my own understanding, it was that even if it's not me who killed the person, but there was a necessity for me to apply for amnesty, so that I must explain my situation and explain what happened in detail, so that the Commission, or the Committee will understand whether I was in a correct trend, or I was on the fault side of the story.
JUDGE DE JAGER: But you yourself?
JUDGE DE JAGER: Do you feel guilty that you've done something wrong?
MR SPHAMBO: Well, I'm feeling guilty because that was part of my personnel. He was part of the personnel under my command. I feel guilty that I lost such a person.
JUDGE DE JAGER: You feel sorry about it, but isn't there a difference between feeling sorry and feeling guilty?
MR SPHAMBO: No, I'm feeling sorry about it that it happened in my presence, you see. If it happened probably whilst I was away from the place, most probably I wouldn't say I would apply for that because I wasn't present when the incident happened.
JUDGE DE JAGER: But suppose he had a heart attack?
MR SPHAMBO: Still I was going to feel sorry, because he was under my command, I was responsible, accountable for each and every individual in the camp, to the senior command.
JUDGE DE JAGER: If he had a heart attack, would you also have applied for amnesty here?
JUDGE DE JAGER: I think your legal representative would explain to you that we could grant amnesty if you've done something wrong, but we can't grant amnesty to people who haven't done anything wrong and on the evidence before us, I'm - I can't see on your evidence and it's the only evidence before us, what you've done wrong. Thank you.
CHAIRPERSON: Any re-examination?
MR KOOPEDI: No re-exam thank you Chairperson.
NO RE-EXAMINATION BY MR KOOPEDI
MR KOOPEDI: Chairperson, that concludes the application by this applicant. We're not calling any further witnesses.
CHAIRPERSON: As I understand it, you want the matter to be adjourned now and you are going to file an affidavit with the applicant being given the right to respond to it.
MS MAKHUBELE: That's correct, Honourable Chair.
CHAIRPERSON: And what about argument?
MR KOOPEDI: I believe that should be done now, Chairperson and if the affidavit changes the matter, supplementary argument should be done.
CHAIRPERSON: Do you agree? Right, we'll adopt that course.
MR KOOPEDI: A very brief submission.
MR KOOPEDI IN ARGUMENT: Chairperson, Honourable Committee Members, and perhaps one should confine himself to a particular aspect which was raised by Judge de Jager.
My submission is that this applicant ordered that the deceased should be locked up in solitary confinement. He gave that order. This person went into this cell because of an order that came from him. Now the post-mortem results say that this person died of suffocation and because he was asthmatic, that's what the post-mortem result said. This is the evidence that is before you.
JUDGE DE JAGER: That he died of suffocation?
CHAIRPERSON: Suffocation? There's no such evidence before us.
MR KOOPEDI: Chairperson, if you look at a statement which was written, prepared by the applicant, page 63, the very last paragraph he says
"I did not know that Eric was asthmatic and as a result of his health condition, he died in the underground cell as he apparently suffocated."
CHAIRPERSON: Where is this post-mortem report?
MR KOOPEDI: When this applicant last saw this report, this was when it went to the Regional Commander. The applicant has no idea what or where the post-mortem report is, but however, my submission is that if the cause of death is or was said to be having locked up this person in solitary confinement, or was said to be suffocation because this person was in that cell, therefore the person who ordered that he be kept in that cell is the one who's responsible. He might be found to have been negligent.
CHAIRPERSON: But if we believe what has been said and put, that he was not suffering from asthma, then the post-mortem was incorrect.
MR KOOPEDI: Chairperson, there's no evidence that suggested that he was not suffering from asthma.
CHAIRPERSON: You're going to get an affidavit, as I understand it.
MR KOOPEDI: I also believe - I would also believe, Chairperson, that a person who is most qualified to say a person suffers from this ailment, would not necessarily be a relative, but it has to be somebody who is medically qualified to say so and here's a person who is medically qualified, conducts and post-mortem and says that this person died because he was asthmatic and on the basis of that information, the applicant then says
"I am the one..."
CHAIRPERSON: I would like to hear some medical evidence as to the accuracy of a conclusion of that nature effected at a post-mortem.
JUDGE DE JAGER: What was he - there's no evidence about the ventilation in that room, in this underground room. Did it have ventilation, were other people kept there and they didn't suffocate, or ...?
MR KOOPEDI: What I got from instructions is that this underground room was - perhaps one should say initially this camp, Camp 13, was a farm, a coffee farm, which was then given to the ANC at some stage. The usable parts of this farm was the administration, the building on top, but underneath there was a storage room, I don't know whether coffee or something was stored there, and this place which was initially a storeroom was a cell of some kind. From time to time, if people had committed an offence or if somebody had to be punished or put in solitary confinement, they would be put in there and that is why the deceased person was put there and that is why, when a question was asked, the applicant said: "Had I known that his health condition was such that he should not go in there, I would have tried to do other plans."
Well, the rest is that I would then submit ...
JUDGE DE JAGER: We're trying to put blame on him, but it's as far as I think you could go. I don't know.
MR KOOPEDI: I honestly understand and appreciate the concerns of the Committee. I am with you, but having made the initial submission, the rest that I will say is that it is evident that when this applicant acted, or when he gave that order, the order could have been nothing but political, further that he did not gain anything materially out of the whole incident and it's my final submission that he made full disclosure, he has not hidden anything, there's no reason for him to hide anything and on that basis, and if the Committee finds that the applicant has also told the truth about the contents of the post-mortem, my submission is that the Committee should seriously consider granting him amnesty.
MS MAKHUBELE: Thank you Honourable Chair. I don't know if it's correct for me to - if it will be correct for me to make a submission now, which will be based on a statement which is still to come?
CHAIRPERSON: If you want to base your argument on what you think will be in your affidavit, then I understand your difficulty.
MS MAKHUBELE: Yes, that's what I intend doing and I don't feel good about it.
JUDGE DE JAGER: But on the evidence before us, what do you say? Does the evidence expose any offence?
MS MAKHUBELE: I cannot comment.
CHAIRPERSON: As I understand it the applicant's case is that the victim had contravened the rules and regulations of the camp, that he was sentenced to imprisonment with hard labour and he was confined in a so-called underground cell were people
were usually confined. Is that grounds for applying for amnesty?
MS MAKHUBELE: I would think not.
MR MAPOMA IN ARGUMENT: Chairperson as I understand the evidence, the evidence is such that the deceased person was killed by two reasons. One that of being asthmatic and the other that of being put in solitary confinement. That is how the evidence goes.
Chairperson I submit it would be erroneous to say that the applicant has not done anything because this person died of natural causes. That is not the case, Chairperson, I submit with respect. What seems to have made him to die from the evidence as it is, is that it is because he was asthmatic, he was not a fit person to be put into solitary confinement. As it is then, it means there was negligence on the part of those who put him in solitary confinement.
JUDGE DE JAGER: No, but they didn't know he was an asthmatic person, so how could they be negligent?
MR MAPOMA: They may not have known, Chairperson, but the point of the matter is that if it happened, if it appears that ultimately the reason why this person died is because he was put into solitary confinement whereas he's asthmatic, then they cannot be said not to have been negligent. Negligence, Chairperson, does not need them to know as such, negligence is negligence, it's not - it does no need that a person must know that what's he's doing can lead to death. If at the end of the day it shows that look, there was negligence because had this person not been put there being asthmatic, he would not have died. That's a part of the evidence as it is now.
JUDGE DE JAGER: Well, can we conclude that, that he wouldn't have died, in any event?
MR MAPOMA: We can't conclude, but at the same time we cannot say that the only reason why he died is because of asthma. That's my argument, Chairperson, because the applicant himself says so. He says he died of asthma, well he was put into solitary confinement, these are two ...(intervention)
CHAIRPERSON: Are you suggesting that putting into solitary confinement is a cause of death?
MR MAPOMA: I am suggesting, Chairperson, that putting an asthmatic person in solitary confinement ...(intervention)
CHAIRPERSON: You are leaving out asthmatic, you said there was another cause, putting him into solitary confinement.
MR MAPOMA: Chairperson, my argument throughout is that these are two contributory factors which led to the death of this person from the evidence before us, that is my argument Chairperson.
CHAIRPERSON: Right thank you. This matter is now adjourned pending the filing of the affidavit and any subsequent affidavits by any of the parties. Furthermore they are all given leave, if they so desire, to file further written argument after such affidavits have been filed.
Can we put you on time, because I don't think I want to extend this to an unlimited period.
MS MAKHUBELE: Yes, Chair, I will be consulting with her tomorrow. When the mother goes home today, she will get in touch with her and ...(intervention)
CHAIRPERSON: Well let us say one week. The affidavits should be filed within one week of today.
JUDGE DE JAGER: Can it be filed Monday morning here while we're still sitting?
MS MAKHUBELE: Yes, yes, I will have prepared it.
MR MAPOMA: In fact Chairperson, I want to suggest that if that witness can be available tomorrow and can give viva voce evidence, she be allowed to do so and she be allowed to be cross-examined by the representative for the applicant as well, to the extent that they may want to cross-examine her.
CHAIRPERSON: Well, is she going to be available? Shall we do that? Yes, I think that if she is available tomorrow morning, bring her here. We will undoubtedly find some time in which we can hear her evidence and cross-examine and dispose of any further argument then as well.
MR KOOPEDI: I concur with the suggestion, Chairperson.
MS MAKHUBELE: She will be available.
CHAIRPERSON: And if she has any information and now I'm suggesting this merely, if consultation - she has any information that will corroborate the fact that he was not asthmatic, you might take what steps you can to obtain such evidence.
Right, what do we go on to now?
MR MAPOMA: Chairperson, I depend entirely on the availability of the applicants and I was told that there's no other applicant available at this point.
MR KOOPEDI: Well, Mr Mapoma is correct. We do not have any applicant that we can call now.
CHAIRPERSON: I understand and I sympathise with the parties that there has been a certain amount of disruption and disarray, but can we now please try to make arrangements to have the rest of the applicants who are within the country and available here tomorrow and on Friday because I understood yesterday, I think we all understood, that the applicants were all available and now they suddenly seem to have disappeared. Could you try to make arrangements to have as many as possible here on tomorrow and Friday, so we can dispose of as many of these matters as possible?
MR KOOPEDI: We'll do that Chairperson.
CHAIRPERSON: I think you should consult with the Evidence Leader so every effort can be made to have victims present too. Well, now we can do nothing but adjourn till tomorrow morning. What time?
MR MAPOMA: I suggest 9 o'clock, Chairperson.