amntrans AMNESTY HEARINGS 1998-06-24 PORT ELIZABETH 3 NDZIMENI DANSTER https://sabctrc.saha.org.za/hearing.php?id=52716&t=&tab=hearings https://sabctrc.saha.org.za/originals/amntrans/1998/98062225_pe_pevar4.htm MR WESSELS Thank you, Mr Chairman, I then wish to call the next applicant, which would be Mr Danster. Thank you, Mr Danster. We're going to ask you just to take the oath, will you please rise. MR DANSTER (sworn states) MR WESSELS Thank you, Mr Chairman. Mr Danster, how old are you? MR DANSTER 46 years old. MR WESSELS Did you grow up in the Cradock area? MR DANSTER Correct. MR WESSELS Do you have any relatives in the Cradock area? MR DANSTER Yes, I do. MR WESSELS A wife, children, or other relatives? MR DANSTER I don't have a wife, I just have a child. MR WESSELS Now you've heard the testimony of Mr Kundulu, MR DANSTER Yes. MR WESSELS And as far as that testimony relates to you, do you agree with that? MR DANSTER Yes. MR WESSELS You have also prepared or signed an affidavit setting out all the relevant particulars in this matter, this affidavit is before the Committee as Exhibit A. Do you confirm what is contained in this affidavit and adhere thereto? MR DANSTER Yes. MR WESSELS I do not propose to deal with or to lead your evidence on every aspect, I'm going to take you to the day when you were there at the dam. It was yourself and there were some youngsters swimming in the dam, is that correct, whilst the other applicant and Mr Lolosi went to the farmer's house? MR DANSTER Yes. MR WESSELS So you were not present when they first entered that house? MR DANSTER Correct. MR WESSELS When they came back, you eventually returned to the house - Lolosi's house? MR DANSTER Correct. MR WESSELS Had you been told what they had found in that house in your absence? MR DANSTER Yes, they told me. MR WESSELS Now in the course of the afternoon of that very same day the farmer and his wife returned in their motor vehicle to the farm? MR DANSTER Correct. MR WESSELS Now, I want you to tell the Committee what happened from then onwards, this is now when the car returned. What did you do and who accompanied you? MR DANSTER When we saw the car coming back, Lollie Kundulu and myself started running. When we got to the house Lollie and I got inside. Monwabisi was not able to go inside until the woman, the owner's wife, until she came in. She started swearing as she saw that the house was upside down. The husband then followed. Lollie and I were in the bathroom. Lollie had a knife, I had a hammer. We were waiting, there was a door that leads to the bathroom from the bedroom. Mr Palvie came in - Lollie then stabbed him. I left them there because I thought that the wife would come with her gun. I went and stood at the other door that leads to the kitchen from the bathroom. I was still waiting there and Lollie called for me. I went back to the bathroom. I got there and Lollie was being mishandled by the Boer. It seemed as if the Boer had more strength than him. I hit this man with the hammer on the head twice, and he fell. After I saw that the man had fallen down, I left them and I went and stood by the door, and the wife appeared at the door. I also hit this woman with the hammer in the head twice, and she fell. I saw that she had fallen, I left. I went to the window to - I was calling for Monwabisi to come inside. When I was coming back, going towards the kitchen, I was passing the bathroom door, Lollie came and asked for the hammer. I gave the hammer to him. I went to the kitchen, Monwabisi was busy searching the bag. I thought of two suitcases that Lollie had said we should leave with. I went and fetched the suitcases, put them in the car. Lollie came out with a wall clock and a gun. We got into the car or the bakkie, and left. MR WESSELS Would you just explain to the Committee what was your intention, your personal intention at the time when you went into that house. MR DANSTER We were looking for the two guns that Ndzimeni had told us about. We were also looking for the car keys. We wanted the car keys so that we could leave in the car or the bakkie. MR WESSELS And was it necessary to attack the farmer and his wife in order to achieve the object of getting the guns? MR DANSTER There was no other way for us because we know that those people were armed with dangerous weapons. We had to attack them in the manner that we did, because if they got a chance to take out the weapons, they would shoot us and kill us. We had not gone there to die, we'd gone there to get arms. MR WESSELS And how do you believe that what you did there at that farm helped you to pursue your object or what you had in mind to do with the guns? MR DANSTER It helped, because we did find guns. We also got the car to run away. MR WESSELS Were you a member of any organisation at the time? MR DANSTER I was a member of Cradoya. MR WESSELS And did you also serve the self-defence unit at Cradock? MR DANSTER That is correct. MR WESSELS Did you hold any position in the SDU? MR DANSTER No, I was just a member. MR WESSELS And in Cradoya, did you hold any position in that organisation? MR DANSTER No. MR WESSELS Who was your commander? MR DANSTER Comrade Xholile Lebensito. MR WESSELS The document which is before the Committee as Exhibit C, it is signed by Mr Ntombela, the Chairperson of Cradoya, and Mr Ngala, the Treasurer, do you know these two gentlemen? MR DANSTER I know Ngala. MR WESSELS Not Mr Ntombela? MR DANSTER No, perhaps if you can describe him or if I'd see him facially I would recognise him. MR WESSELS How is it that you know Mr Ngala? MR DANSTER Mr Ngala was a member of Cradoya for quite a while. MR WESSELS Did you have any personal dealings with Mr Ngala? MR DANSTER No. MR WESSELS In this letter it is stated, and I quote, "The motivation is that he responded to a call by the then banned ANC - African National Congress, that the youth should make our Townships a no-go area for Police and their informers." Are you aware of such an extraction? MR DANSTER Yes. MR WESSELS Did you personally attempt to adhere to or to act in accordance with that instruction? MR DANSTER I did by going to the farm to look for arms. MR WESSELS Would the arms have assisted in making the Townships a no-go area for the Police and their informers? MR DANSTER Yes, they could help. MR WESSELS Before the Committee is a document, and I refer in particular to page 17 of that bundle of documents, which purports to be a document relating to yourself. In the second paragraph of this document it is noted that, and I quote, "Monwabisi and Lollie had to use violence to get out of the situation and also obtain the guns." This is not in context, referring to an incident when those two persons, Monwabisi and Lollie were in the house, and that they had to use violence. Did it happen that way as it is stated in this document? MR DANSTER No, that's not how it happened. It's the attorney's mistakes. MR WESSELS In fact, even in the criminal court, as it is also reported in the later judgement of the Appellate Division, it was yourself and Lollie that was involved in the - that were in the house at the time when the farmers entered the house, is that right? MR DANSTER Correct. MR WESSELS Thank you, Mr Chairman, that is the evidence. MR NYOKA No questions, Mr Chairperson. MR MAPOMA After you hit Mrs Palvie, you say she fell? MR DANSTER That's correct. CROSS-EXAMINATION BY MR MAPOMA MR MAPOMA And them became harmless, or you realised that she was harmless when you went to call Mr Kundulu? MR DANSTER Yes, because she was not carrying anything in her hands as well. She didn't look armed. MR MAPOMA Did she wake up again? MR DANSTER No, she did not. MR MAPOMA Was she assaulted further? MR DANSTER As I saw the pictures, it was clear that she was beaten further a lot. CHAIRPERSON By pictures, do you mean the pictures that were produced at the trial, taken for the purposes of the post-mortem? MR DANSTER The pictures that we saw in court. MR MAPOMA Did you assault Mrs Palvie anymore after she fell, helpless? MR DANSTER I just hit her twice, the one time, I did not hit her again. MR MAPOMA Was she hit again at all? MR DANSTER Yes. MR MAPOMA By whom? MR DANSTER Lollie. MR MAPOMA What did Lollie use? MR DANSTER He asked for the hammer and I gave it to him, he must have used the hammer. MR MAPOMA Who took the suitcases to the car? MR DANSTER I took the suitcases into the car. MR MAPOMA Did you hear Mr Kundulu say that it is Lollie who took those suitcases into the car? MR DANSTER I did not hear him say that. MR MAPOMA If at all he said that, would you say it's incorrect what he said? MR DANSTER If he said that, he must have been mistaken. MR MAPOMA So you said you had to hit first to the - to Mr and Mrs Palvie because you thought they were armed? MR DANSTER Yes, I'm the first one to use the hammer. MR MAPOMA Did they assault you before you used that hammer? MR DANSTER No, I was not assaulted. MR MAPOMA Did they pose any threat to you, or to yourselves? MR DANSTER The reason why I hit Mr Palvie is that he was mishandling Lollie and he was overpowering Lollie. He was - that's why I hit him so that he can loose strength. MR MAPOMA Who was the first person to assault anyone there? MR DANSTER It is Lollie who first attacked Mr Palvie, he was trying to stab him. After that Mr Palvie held - was holding Lollie and overpowering him. Lollie called out for me, when I got there and I could see that Lollie was in trouble, then I hit Mr Palvie. MR MAPOMA When Mr Palvie was stabbed by Lollie for the first time, he was unarmed, is it so? MR DANSTER I did not see any weapon. MR MAPOMA And in fact Mr Palvie overpowered Lollie when they were already engaged in a scuffle, is it so? MR DANSTER That's correct. MR MAPOMA Why was it necessary to attack people who were not posing any threat to you? MR DANSTER What we knew was that those people were armed or they had firearms. We were in danger of being shot by them. We could not just request the firearms, we had to get there and hit them or attack them in order to get the firearms. MR MAPOMA I take it that the standard method of disarming these farmers, was to disarm them and if necessary use force, you have to use force when you get resistance, that's what I mean, was it not the command? MR DANSTER We could not just take their arms like that, because when we went there we did not have guns. We could not ask these people to lift their hands in the air whilst they had guns and we had knives. Nobody's going to hand over a gun to a person who is holding a knife. MR MAPOMA So are you saying that your intention was to attack them and kill them and thereafter get the guns? MR DANSTER We just had to attack them to get the firearms, that they died, I can't help it. MR MAPOMA So in other words you did not have to wait until they resist before you could assault them? MR DANSTER We could not talk to these people. If we had firearms, perhaps we could negotiate and talk to them, but because we did not have firearms we had to try as much as we could to get those firearms from them. MR MAPOMA Thank you, sir, I have no further questions. MR WESSELS No re-examination, thank you, Mr Chairman. ADV DE JAGER Why didn't you take the rifle and point that at them and threaten them with the rifle? MR DANSTER That would be difficult, a brainless person would do that. Those people - that was their rifle, they knew that that rifle did not have bullets, it's their rifle, if you were brainless you'd do that. ADV DE JAGER Do you think that they would have recognised the rifle if you've kept the rifle like this and pointed it at them? MR DANSTER Everybody knows what belongs to them. ADV DE JAGER MR DANSTER Even though I did not take clothing from there, perhaps I can try to explain on behalf of the person who took the clothing, because he told me his reasoning, is that what you would like me to do? ADV DE JAGER Yes, tell us, because you carried it out of the house. MR DANSTER When I asked Lollie when we were already arrested, why he wanted the clothing because we were not sent there to take the clothing, he said that he was going to sell the clothing so that we get money to pay the people who helped us with petrol and transporting us to these places, and also because we were not given transport when we were instructed to go to these people. He said that he wanted to sell this clothing to get money to pay these people, so that if we had to go on another mission again, they would help us again. ADV DE JAGER So that's the reason why for instance he took one Polaroid camera, one key on a piece of wood, do you think he could have sold that and get money for a key on a piece of wood? MR DANSTER I'm giving you an answer given to me by the person who was going to sell the goods. The suit and the clock had been sold, they got sold. ADV DE JAGER One washcloth, one receive money for that, selling it to give petrol to people? MR DANSTER What could be sold would be sold, and we'd get the money. What is not sold, he would see what he does with it. ADV DE JAGER Like the pairs of underpants, do you think that would be sold too? MR DANSTER If a person wanted to buy a pair of underpants, they'd buy the pair of underpants, if they don't want to buy the underpants, they don't buy the underpants. The person who took the stuff, Lollie, would see what he does with it. ADV DE JAGER And you associated you with what Lollie did because you went there with a common purpose, isn't it so, or didn't you associate yourself at all with what Lollie did? MR DANSTER Lollie was going to account to Xholile for haven taken this clothing, but unfortunately we didn't find Xholile until we were arrested. Lollie was going to account, I was not his leader, I could not stop him. ADV DE JAGER Now you people are putting all the blame on Lollie, he'd stolen the goods, he'd killed the two people, he first stabbed Mr Palvie, he thereafter asked you for the hammer again, and he again hit Mrs Palvie after she was helpless, according to you. And you two adult people standing by while this 14 year old child is doing all these things, and you say he should explain why he did it. MR DANSTER I never said that Lollie killed those people, I said I was the first one to beat Mr Palvie with a hammer in the head. The reason why ...(intervention) ADV DE JAGER I've heard your interpretation. He stabbed him with the knife? MR DANSTER He stabbed him with the knife. ADV DE JAGER Before you hit him with the hammer? MR DANSTER Before I hit him with the hammer. ADV DE JAGER So he was the first one to attack Mr Palvie? MR DANSTER Yes, with the knife. ADV DE JAGER And thereafter you hit Mrs Palvie? MR DANSTER Yes. ADV DE JAGER And after she was lying there he asked for the hammer again? MR DANSTER Correct. ADV DE JAGER And he attacked her again with the hammer? MR DANSTER Yes, he hit both of them with the hammer. ADV DE JAGER So he went back and hit Mr Palvie too with the hammer? MR DANSTER When I gave Lollie the hammer he went into the bathroom where Mr Palvie was. Mrs Palvie was not in the bathroom, so he first went back to the bathroom. ADV DE JAGER You see, Mr Danster, I find it difficult to believe that a young boy - he was doing all the damage, he was taking the goods, he was stabbing and he was slashing out with the hammer, while you, the two experienced people, the one did nothing as far as the attacks are concerned, and you only put them - help Lollie when Mr Palvie overpowered him. Did Mr Palvie have any weapon on him? MR DANSTER I did not see Mr Palvie with a weapon, but this is what must be understood, when Lollie was hitting these people with the hammer they were already on the floor, he was not struggling with them, he was just lifting his hand hitting them with the hammer, I had already beaten them down to the ground myself. ADV DE JAGER Now can you tell us where did you get the second pistol? MR DANSTER I don't know. ADV DE JAGER Who got it? MR DANSTER The gun that I saw was the one that Monwabisi had taken from the purse, I don't know about the second gun, and I did not see it in court as an exhibit. ADV DE JAGER Wasn't there a second pistol taken? MR DANSTER I know about the rifle and the small pistol. ADV DE JAGER So the only weapon taken there was the one in the bag, is that correct? MR DANSTER And the gun. ADV DE JAGER And the gun. MR DANSTER The rifle without the bullets and the gun. ADV DE JAGER So not one of the deceased had any gun on his body as such, or a pistol, when they were attacked? MR DANSTER I did not see any gun with Mr Palvie. I hit Mr Palvie because I could see that Lollie was in trouble. As for Mrs Palvie, I felt that she would appear armed with a pistol. When she appeared I hit her, then I saw that she was not carrying any arm as she was lying there on the floor. ADV DE JAGER And when Mr Kundulu came in there was not further resistance, and he didn't partake in any attacks? MR DANSTER No, when he got in the people were already lying on the floor. ADV DE JAGER And the purpose of taking the car was to get away from the scene? MR DANSTER Yes, it was to leave the place, because the Township was far off. ADV DE JAGER Was that the sole purpose of taking the car? MR DANSTER Yes, we had to take it so that we could get to the Township. It was far, these farms were far off. ADV DE JAGER So that had no political motivation, it was only to get to the Township? MR DANSTER This is all one story, you have to look at it holistically, you can't take the story apart. We went there to get weapons, we didn't know how we were going to get them. The farm was far off, we didn't even know how we were going to get there at the beginning, all we knew is that we had to get to the farm. ADV DE JAGER If we have to look at it holistically, should you also be responsible and give an explanation about the clothing that's been taken? MR DANSTER Yes, because the person who took the clothes explained to me as to the reason why he took the clothing, and I understood his reasoning. We're given instructions, we're not told how to get there, we have to find ways and means to get to the farm. ADV DE JAGER I see. What did they pay for the suit and for the wall clock, what money was offered? ADV DE JAGER He had not been paid yet, he was told he was going to be paid in the afternoon. ADV DE JAGER How much? MR DANSTER I don't know how much he charged them. ADV DE JAGER Weren't you present? MR DANSTER I was there, but I don't remember. ADV DE JAGER Thank you. CHAIRPERSON Right, you've told us that you came on the scene - you were called rather by Lollie and you arrived on the scene and found that he was being overpowered by Mr Palvie. MR DANSTER That is correct. CHAIRPERSON And you hit Mr Palvie a couple of times to - so you in turn could overpower him? MR DANSTER Yes, I hit him twice. CHAIRPERSON And he fell to the ground as I understand it? MR DANSTER Yes. CHAIRPERSON He was then also powerless? MR DANSTER Correct, that's why I left them. CHAIRPERSON And if he was armed you could have taken the weapon away from him? MR DANSTER Yes, if I had seen a gun I would have the gun from him. CHAIRPERSON And you went to guard against Mrs Palvie? MR DANSTER Correct. CHAIRPERSON And the same thing there, as soon as she came in you hit her because you thought she might be armed? MR DANSTER Correct. CHAIRPERSON And again, she fell down powerless, and you left her? MR DANSTER Yes. CHAIRPERSON After that Lollie came and asked you for the hammer and went back into the bathroom where Mr Palvie was lying? MR DANSTER Correct. ADV DE JAGER And I understand from the judgement that the evidence led at the trial was that he had very serious injuries. Did you see the photographs of him? MR DANSTER Yes, we saw the pictures. CHAIRPERSON Had he also been beaten a great deal more? MR DANSTER Yes, I saw in the pictures. Such that the doctors could not see certain veins, that's how beaten he was. CHAIRPERSON Much more that what you had done, you just knocked him down? MR DANSTER Yes. CHAIRPERSON And the same with Mrs Palvie I gather, that she had been beaten a great deal more around the head, you could see that in the photographs. MR DANSTER Correct. CHAIRPERSON Because after you had knocked her down, if she'd had a gun, you could have taken it away from her, there would have been no problem would there? MR DANSTER Yes, I was going to take the gun. CHAIRPERSON There wasn't one. The only gun that was found was the one in the handbag. MR DANSTER Yes. CHAIRPERSON And I think, I'm assuming now, that your counsel went through this list of stolen goods with you? MR DANSTER Yes, I saw the list. CHAIRPERSON And the only firearms was the .22 rifle and one pistol, they were the only firearms. MR DANSTER Yes. CHAIRPERSON Now you had only been out of prison for a few months - 9 months I gather. MR DANSTER That is correct. CHAIRPERSON After a long sentence. MR DANSTER Correct. CHAIRPERSON And I think, the evidence is that you were only released on the 28th of May 1986. MR DANSTER Yes. CHAIRPERSON So you hadn't had much to do with Cradoya or what was going on in the Townships before that date, you'd had nothing to do with it in fact. MR DANSTER Correct. CHAIRPERSON Last question, I don't know if you can help us with this, what sort of hammer was this, was it the ordinary hammer for knocking in nails, or was it a hammer with a heavy metal head? MR DANSTER It's the normal hammer that is used for nails. CHAIRPERSON It was produced as an exhibit at the trial, wasn't it? MR DANSTER Yes, the hammer was there. CHAIRPERSON Thank you. WITNESS EXCUSED MR WESSELS Thank you, Mr Chairman, that is the only evidence I wish to present on behalf of the applicants. CHAIRPERSON Mr Nyoka? MR NYOKA No witnesses, sir. CHAIRPERSON Mr Mapoma? MR MAPOMA No further evidence. CHAIRPERSON Is Lollie still here? MR MAPOMA Yes, he's here. ADV DE JAGER I would like you to call Lollie so that he could explain to us what happened on this occasion. MR MAPOMA As the Committee pleases, I'll do that, sir. CHAIRPERSON Does he want legal representation? MR MAPOMA I think I'll have to find out from him. CHAIRPERSON Would you like a very short adjournment to talk to him? MR MAPOMA Yes, yes please. HEARING ADJOURNS ON RESUMPTION CHAIRPERSON Mr Kwakwarie, you have been sitting here listening to the evidence that has been led here today, is that so? MR KWAKWARIE That's correct. CHAIRPERSON And as you heard, Mr de Jager feels that an attempt has been made to put all the blame on you, you heard Mr de Jager say that? MR KWAKWARIE Yes, that is correct. CHAIRPERSON And in those circumstances it was felt that you should perhaps be called to give evidence to enable you to give your version and to explain if you felt you had been harshly treated. Do you understand that? MR KWAKWARIE I would like to give an answer to that. CHAIRPERSON Certainly. Let me make it clear, we're not forcing you to give evidence now. If you want to give an answer do, explain, do so. Carry on. MR KWAKWARIE First of all, I was sentenced 36 years and 6 months in jail, I then stayed for 7 years in prison, I was under very difficult situations. I then finished my sentence, I was out on probation. I don't see a need for me to come here and give evidence because I've served my sentence. That is all. CHAIRPERSON What I was going to explain, but I think you've answered it, was that if you wanted to get legal advice and to consider the question of giving evidence, we would adjourn the matter till Friday to enable you to do that. If however you do not want to do so, if you have reached a firm decision, then there is no point in doing that. Do you understand what I'm saying? MR KWAKWARIE Yes. CHAIRPERSON Do you wish to have a chance to consult a lawyer, or are you quite happy to make your decision now? MR KWAKWARIE My decision is that I don't see a need for me to come and give evidence because I've served my sentence. ADV DE JAGER I think that's correct, if you feel that you've not been - there's nothing for you to clear your name about now or you're happy with what has been said, we're not going to force you to come and give evidence. It's an opportunity for you to put your side of the story. If you don't it, feel, well I've served my sentence, I'm happy, I'll go on with the future, then you could decide that way and we won't force you to do anything. MR KWAKWARIE Thank you. CHAIRPERSON Alright gentlemen, nobody wants to call any further witnesses, that's an end of the evidence, is that so? MR POTGIETER Yes, sir. CHAIRPERSON Would you like to address now, or tomorrow morning. MR WESSELS Thank you, Mr Chairman, I'm really in your hands. I'm ready to address, my address won't take particularly long, but I'm in your hands. CHAIRPERSON Mr Nyoka? MR NYOKA I was not going to make an address. CHAIRPERSON Mr Mapoma? MR MAPOMA Yes, sir, I don't have much to address on, he can address. CHAIRPERSON Alright. MR MAPOMA Sorry, sir, Mr Chairperson, we've got a patriotic duty to go and watch soccer immediately. CHAIRPERSON Mr Wessels has assured us he - are you engaged in tomorrow's matter? MR WESSELS No, Mr Chairman, but I am available for tomorrow, it is no problem. CHAIRPERSON Well, whichever you - I'm not going to put pressure on you. If you would prefer to address now, you can do so. MR WESSELS Well I think the general feeling is that we must do so tomorrow, then I'll ...(intervention) CHAIRPERSON Do you wish to address tomorrow? MR WESSELS I will do that tomorrow then, Mr Chairman. CHAIRPERSON Very well, 09h00 tomorrow morning. ADV DE JAGER The general feeling is that there's a soccer match on and we should support the people. HEARING ADJOURNS ON RESUMPTION - 25 JUNE 1998 CHAIRPERSON We're now returning to the case we completed the evidence in yesterday, that's the case of applications of Danster and Kundulu for the purpose of argument. Are counsel ready to proceed? MR WESSELS Thank you, Mr Chairman. CHAIRPERSON Very well. MR WESSELS IN ARGUMENT Mr Chairman, and members of the Committee, it is now for the Committee to consider whether first of all the application by these two applicants in fact comply with the requirements of the act. As far as the formalities are concerned, I submit that the applications in fact do comply with the requirements of the act. But the other two legs that must be considered, first of all, I'll deal with the question of whether there's been a full and frank disclosure of all the relevant facts. As far as that requirement is concerned, Mr Chairman, it can hardly be said, having heard the evidence, in particular of Mr Kundulu and the frankness and honesty with which he explained and described to this Committee how he felt about the deaths of the victims in this matter. It can hardly be said that under those circumstances he was not making a full disclosure of the facts. He was not trying to hide anything, and in the absence of any evidence, again saying what he claims, I'll ask the Committee to accept his evidence in toto, and to accept that in fact he made a full and honest disclosure of all the relevant facts. Mr Danster similarly, quite frankly and honestly explained to this Committee what his part was in the killing and in executing his orders, and as far as his version is concerned, the Committee cannot but find that he too had made a full and frank disclosure of all the relevant facts. CHAIRPERSON What about the two suitcases, Mr Wessels? MR WESSELS I think we should deal with that under the requirement of whether or not the actions fall within the requirement that it must be associated with a political objective, and ...(intervention) CHAIRPERSON Isn't it also a question of frank disclosure? MR WESSELS Indeed so, it goes hand in hand with that. Mr Chairman, you're quite correct in that, it goes hand in hand with that, but let me deal with that under the heading of whether or not that act can be associated with a political objective. Now, Mr Chairman, as I say, the only evidence before this Committee is the evidence of the two applicants, there's nothing to gain say that. The suggestion at one stage that the other applicant who withdrew his application, it is now conveniently placed all the blame on him, that suggestion is not really with any - there's no foundation for that suggestion, especially if one considers the position that that particular applicant has lodged a document which is before the Committee, reportedly made by him, it's part of the bundle of documents ...(intervention) CHAIRPERSON Can we place any value of that, it's unsigned, there is no information before us who prepared it? MR WESSELS That is so, Mr Chairman, but the fact remains that that document is before the Committee. It was placed before the Committee by the Evidence Leader, the bundle was prepared by the Evidence Leader. The origin of that document is not known to the Committee. However, when that particular applicant, or the former applicant, was called to the fore and asked whether he wanted to avail himself of the opportunity to counter the allegations which were made, he very readily decided and very definitely decided that he had nothing to say to this Committee. So if he was aggrieved by the allegations, and he was present when these allegations were made, if he was aggrieved by that, and if he felt that he was being placed in a bad light, one would have expected him under those circumstances to have saved face, to have at least have put his version before the Committee. He did not elect to do so, that was his right not to do so if he did not want to, but the very fact that he elected not to put his version before the Committee gives support for the contention that he did not feel aggrieved by that, and it is in line with what is contained in the document which is before the Committee on pages 23 and 25. CHAIRPERSON Well isn't fairer to ignore that document, to ignore the fact that he was an applicant and to consider him rather as an implicated party who was present, and then to take the point you have just made, he was present, he was given the opportunity to dispute the allegations that had been made, and he elected not to do so? MR WESSELS Point taken, Mr Chairman, that would probably be the best way to handle that. So the situation is still the same, the only evidence before this Committee is the evidence of the two applicants, and one must immediately bear in mind the idea of a 14 year old young boy, that was borne out by the observations of the trial court as it is reflected on page 42 of the bundle of documents. The Committee saw the applicant, but this is now some 10 years after he had appeared in Court, but the trial court's description of that particular person was, "Accused no 2 appeared to us to be much older than 14. In the witness box he was unruffled, composed and showed a maturity beyond the average juvenile." So not too much emphasis should be laid on the fact that he, according to the indictment he was only 14 years of age. He was certainly involved in a fighter's role as was put by Mr Kundulu, a comrade's role, taking orders and executing orders. But be that as it may, to consider further the evidence of the two applicants, they maintained that they were ...(intervention) CHAIRPERSON I'm sorry, before you go on, you said the only evidence before us is that of the applicants, but there is other information before us, such as the judgement, which we must have regard to. This is not a trial where one only has regard to the evidence led at the trial, it is clear from the act that we have regard to all the information, including results of our investigation. Do you agree with that? MR WESSELS Indeed so, ...(intervention) CHAIRPERSON So should we not go on and say that the court found, at page 42 a little further down, that he played a "The objective fact showed that he played a prominent role right from the inception of this criminal venture." MR WESSELS Well, that tends to support, indeed so, Mr Chairman, but ...(intervention) CHAIRPERSON Yes, that supports strongly your contention, and we - if we are going to have regard to findings of the trial court, that's one of the findings we should have regard to. MR WESSELS Well, I don't want to suggest this Committee should follow all the findings of the trial court, one must immediately ...(intervention) CHAIRPERSON We don't follow their conclusions, we follow - where they have made findings on the evidence, they had the benefit of seeing and hearing the witnesses when they say something, we accept that. We don't follow the conclusions they draw from that. MR WESSELS Indeed so, Mr Chairman, I'll go along with that. So, Mr Chairman, to come back to the evidence then of the two applicants, they maintained they were members of Cradoya, and there is support in that regard by way of Exhibit C and D, that in fact they were members of an organisation. They claim ...(intervention) CHAIRPERSON Sorry, I keep interrupting you, but I think I asked you during the course of the hearing yesterday what information we had about these people, what the organisation was, etc, which is Exhibit C and D, and it may appear that at that time I was suggesting that they might not be what they purport to be, but on reconsideration I suddenly realised that Mr Ngala is in fact represented here. MR WESSELS Yes. CHAIRPERSON So quite clearly he is what he purports to be, and if there was any suggesting that that was not so, his representative would have drawn that to our attention, which he didn't do, and he would have - if he said the signature was not, so I withdraw the suggestion I made to you yesterday that these documents might not have the value that they appear to have, because it appears quite clear from the fact that Mr Ngala has been represented, that these documents were in fact prepared by the Cradock advice office and were signed by the people that were purport to have signed it. Mr Nyoka, do you agree with that? MR NYOKA Yes, I agree. CHAIRPERSON Thank you. MR WESSELS Thank you, Mr Chairman. ADV DE JAGER While we're at the document, what would you suggest about, although they acceded the bound of the call, what should we make of it? MR WESSELS I wonder whether Mr de Jager, Mr Chairman, could we just consider that aspect, because I think that is an important aspect when we get to the dealings of, first of all, what the objective was of going there, and if the Committee will just bear with me on that score. The applicants claim that they had instructions to go and get firearms from this particular far. The two applicants had no knowledge, personal knowledge of the farm. That knowledge seemed to have come from Mr - the former third applicant, Mr Lollie, let's refer to him as Lollie, because he had some contact with a person that was employed on that farm. Now that was also the trend of the trial court's findings that as it is set out on page 43 of the record, there at line 10, "The probabilities are that as a result of accused no 2's association," accused no 2 was Lollie, "no 2's association with accused no 3," that accused no 3 was the former employee at the farm there, "he learned of Mr and Mrs Palvie on the farm, and that there were firearms in the farmhouse. Accused no 1 and accused no 4 believed that there were firearms in the farmhouse. According to them, although they put this in a different context, that is the reason why they went to the farmhouse." So the scene as it was set even at the trial court seemed to suggest that the information about the firearms emanated from Lollie, which is also the evidence of the two applicants in this matter. Coupled with what they claim their instructions were to go to that particular farm, an instruction given to them by their commander, with the main objective being the collection of firearms, and which would then be used for the political objective of keeping the Police Forces out of the Townships. And one must also bear in mind, although that's not evidence before this Committee in the present application, but in the previous application of Peter Madyoli, the same advice officers mentioned there that the ANC at the time said that the struggle must also be taken to the farmers. But it all goes hand in hand with the obtaining of firearms, and that was very clearly on the evidence of the applicants here and in the trial court, the main objective of going to that farm, to obtain firearms. CHAIRPERSON Wasn't it - correct me on this if I'm wrong, wasn't in fact the whole matter rather the other way around, that they were told by their leader, Xholile, to go, that they then got the information about what sort of firearms and this and that? Didn't they give their evidence - wasn't it that they got direct instructions from their leader to go? MR WESSELS Yes, Mr Chairman, but the leader must have got his information from somewhere. As I understood the situation, the leader did give them the instruction, but ...(intervention) CHAIRPERSON He had some information. MR WESSELS And that information would probably have emanated from Lollie, who was also part and parcel of the Cradoya group, and he accompanied the two applicants at the time. So it seems that Lollie was the conduit for the information which came from an employee of the farm, and this filtered through to the commander, and the commander in turn instructed the two applicants, together with Lollie, to go to that farm and do the necessary, get those firearms. ADV DE JAGER No, not those firearms, because when they got to the farm, they obtained new information that those firearms had been removed and they are in town now. MR WESSELS That is so, the information at the outset was that there was a large cachet of firearms on that farm, and that was the main objective of - or the object of going to that farm, to obtain a large quantity of firearms, which in the end they did not find there, but ...(intervention) CHAIRPERSON Isn't that one of the tragic aspects of this application, in so far as the deceased are concerned, that the target originally was somebody else who had a large supply of firearms, and that is why they were sent there. They then discovered that he had left, and we have had no information as to how long since he had left - it may have been a week earlier that he had gone, and that the deceased had moved in as supervisor. But they were then given the further information that there were other firearms available. MR WESSELS That is so, Mr Chairman, this whole incident is a tragic, a horrendous incident, but fact of the matter is that the information which the applicants had when they initially broke into that house and found only one firearm, left it there, obviously disappoint in not finding what they expected or anticipated in finding in that house, and then they were given information, but surely those people that will be - the victims that will be returning would have firearms on them, at least get hold of those firearms then to make up or to achieve some measure of success in getting some firearms. CHAIRPERSON Well, again, that's not quite what was said, what we were told is, those people have firearms. As they had searched the house for three to four hours and found no firearms, they assumed that they would have them on them. MR WESSELS That is ...(intervention) CHAIRPERSON They weren't told they would have, they made the assumption that as they weren't in the house, they must have taken them with them, and I didn't ask, and I was relying perhaps wrongly on my own knowledge of firearms, but it appears that these people all had some experience in this, they were not - don't seem to have been particularly impressed at getting a .22 rifle with no ammunition, which is understandable, isn't it? MR WESSELS Well a rifle without ammunition is of very little help in any event, because ...(intervention) CHAIRPERSON And a .22 is hardly what you would use in an arms struggle. MR WESSELS That may well be so, Mr Chairman, it can be a dangerous weapon in any event, it could result in death, but it would not be the ideal weapon for the struggle as - for the protection of a community as they had in mind. MR POTGIETER Mr Wessels, tragic as it is, this incident, should we not see it against the broader issue that was raised about disarming the farmers, doesn't this fall in line with that sort of objective as well? MR WESSELS That is so, I fully agree with that. I think that is - one must look at the whole object of disarming the farmers and using those arms that would then be obtained in the struggle against the Police Forces to keep them out of the neighbourhood where they were living and where the brutality as it is claimed took place. So one must view this as a whole - as an attempt to get all of the firearms that could be got and to use that then in furtherance of the struggle. MR POTGIETER So not so much an instruction to recover specific firearms, a .22 rifle or 9mm pistol, it's against the broader - a broader approach if I may put it that way? MR WESSELS It take your point, I think any firearm in the end would have been of use and would have been put to use, whatever the calibre, to achieve that particular object or the political objective as was set out by the leaders at the time. CHAIRPERSON: Carrying on from there and reverting to what I said earlier, the target as I understand the evidence, of targeting certain farmers, was that certain farmers were thought to be collaborating with the Police, assisting them, and those were the farmers who were to be attacked and disarmed. And in the present case on the information they had, which was that they farmer had a large stack of weapons, it would appear that they had some justification for thinking that he was one of those people, and the change takes place when they arrive too late and he's moved out with his stack of weapons. They continue with the raid on the house and then discover Police badges in there which brings back the belief that people in this farm are supporters of the Police Force. It's all an unfortunate mix-up which led them to this belief. MR WESSELS Indeed so, Mr Chairman, I think the finding of those Police badges must have resulted in the idea to really get at the occupants of that house. It must have, and this was in fact the claim of Mr Kundulu having found those articles there. One must also, just to get back to the clothing, one must also bear in mind that having searched the house for two to three hours, if they were bent on gathering other items other than firearms, they had ample opportunity to gather a lot more that only two suitcases full of clothing. ADV DE JAGER The foreman had more than that. MR WESSELS I beg your pardon? ADV DE JAGER If he had more than that. MR WESSELS Well, a husband and a wife in a farmhouse ...(intervention) ADV DE JAGER It's a foreman, Mr - it's not the farmer, the land owner. MR WESSELS But still, they ...(intervention) ADV DE JAGER There are poor whites too, we don't know whether they were poor or rich. MR WESSELS If one looks at the articles taken, two or three jerseys, two or three underpants, pyjamas, two pillow cases, certainly there must have been other items in that house, other items of value. The point I'm making is that the very fact that they only took two suitcases full of objects of clothing, etc, is indicative thereof that that was just a side issue, the taking of the clothing. That was not the main objective. CHAIRPERSON Isn't it equally indicative of the fact that there may have only been two suitcases there? MR WESSELS Well, we don't know, we see - I don't know where the other suitcase comes from, because according to a list of stolen ...(intervention) CHAIRPERSON It wasn't stolen. MR WESSELS ... a list of stolen items, there is only one suitcase if my memory serves me well. CHAIRPERSON But it does seem, it's a - as my brother has said, one suit - now that would indicate, if they're stealing suits, one would expect more if the man had more, wouldn't one? Doesn't it look as if these were poor people who had very little, and they took all they could find? MR WESSELS Well, we're really speculating on that score, Mr Chairman, because poor people - there were still firearms, there was a gold - a silver coloured cigarette lighter, a gold coloured flick - man's watch. Is this the type of - one Parker pen in grey ...(intervention) CHAIRPERSON One silver coloured cigarette lighter, not a silver cigarette lighter. You can buy those at Tobacconists for a few rand. MR WESSELS We don't know, Mr Chairman. I think it is rather the number of articles taken, although it amounts to 42 in total, to take a notebook and a washcloth and a khaki shirt, really, there must have been more items of value in that house, and the very fact that they only took these items, having had ample opportunity to search that house thoroughly is indicative of that the taking of the articles was just a side issue, that is the only point I wish to make as far as that is concerned. It was there, and as it was explained by Mr Danster, somewhere along the line they had to get petrol money again, this does not correspond with the claims of Mr Kundulu, he says they were not allowed to take anything else. All of this conflict could be ascribed to the very fact that there was no leader amongst the three of them, there was no leader, and I think that is ...(intervention) ADV DE JAGER Mr Wessels, what distinguishes this from the ordinary murders and housebreaking that's taking place even today, except for the fact that they say, we were ordered to go in order to get firearms for the struggle, isn't this an ordinary housebreaking, taking weapons as it being done today even, without a political motive, but we must accept here that they've been ordered, within bounds to get firearms? MR WESSELS Well, the moment the Committee accepts their claim that they acted on orders, then it will bring their actions within the ambit of a political motivated act, which would then entitle them to amnesty, and if the - that is the only evidence before the Committee, that they in fact acted on orders. I'm not saying within orders, they acted on orders. ADV DE JAGER Mr Wessels, I don't think that's the problem. The problem is the element of personal gain. MR WESSELS But is there any indication of personal gain here, Mr Chairman, one would have thought if they were bent on taking stuff for themselves, then they would have gone to the trouble of selling the motorcar, and they didn't do that, the motorcar was the most valuable item. What did they do, they used the motorcar to convey the items, amongst the items being this long rifle, which nobody would have expected them to have walked down the street with a long rifle on the way to the Townships, so they used the motorcar to convey the items there, and having conveyed the items to the Township, they went along and burned the motor vehicle, with no indication whatsoever to use the motor vehicle further for their personal gain, and that I think is an important aspect which would indicate that they were not bent on getting things for their personal gain, it was out and out throughout their intention to do this in furtherance of the struggle - of the objectives of the struggle at the time. CHAIRPERSON Mr Wessels, wasn't the motorcar the one item that the Police were likely to discover? It wasn't something small you could put in your back room, it was something that could be seen, so they got rid of it. They kept the things they could later sell and benefit themselves. Isn't the position that they may have been ordered to go and get firearms, but that they then decided that they would do a little bit for themselves while they were doing it? MR WESSELS But, Mr Chairman, would that not be speculation, is there any evidence ...(intervention) CHAIRPERSON There's evidence that they were told they must not take anything, that is your client's evidence. MR WESSELS That is the evidence of Mr Kundulu, it is not the evidence of Mr Danster. There is a conflict as far as that aspect is concerned, but this can be traced back to the very fact that there was no leader amongst the group. Fact of the matter at the end of the day, what was sold? A suit was sold and a clock was sold, and it was sold by neither of the two applicants, it was sold by another applicant, a former applicant. So it can - the fact that two items had been sold, can this now be laid before these two applicants as indicative thereof that they were acting in furtherance of their own personal interest? I submit with respect that would be taking it too far. If the other applicant could not explain properly why he sold certain items, even though the evidence indicates that he had not yet been paid therefore, then it's something that could be held against him, but it should not be held against these two applicants. CHAIRPERSON Well they have been convicted of it. We are only granting amnesty for acts committed with a political purpose. MR WESSELS Well, let us look at what acts were committed by these two applicants which is connected with the order with which they had obtained. It is to be accepted that the order of disarming the farmers, that that would incorporate the use of violence, not necessarily killing, but the use of violence, I think that goes without saying. So they went along to the farm, broke into the house - now there were technically speaking two break-ins, but the first break-in should not be seen in isolation, this was sort of a preparatory act for the final act when they attacked the farmers to disarm him and his wife then of the firearms which they thought they had. So on the charges as they were - on the charges of which they were convicted of, housebreaking with the intent to rob and to murder, now surely that count would fall squarely within what they intended to go and do? They two murder counts ...(intervention) CHAIRPERSON Was there a second break-in? MR WESSELS Well, we had the first break-in when only two went to the house and they searched and they found the rifle, and then they went back for the second time and entered the house again. Now, there's no evidence before the court that they moved the curtain, or that they opened the window again, but they did not go in through an open door, the house was still very much in the same situation as it was before the occupants had arrived, so I think it would be fair to accept that there was a second break-in, whether it was merely the moving of an object, but it was certainly a second entry of the house unlawfully ...(intervention) CHAIRPERSON Second entry, yes. MR WESSELS But I think the Committee should not be over careful as far as that aspect is concerned, and view the housebreaking as a full picture, the initial housebreaking together with the later re-entry of the house. Whether that also constituted in housebreaking or not should not really matter, it was all part and parcel of the initial breaking-in into that house which was after a stone had been thrown through the window, so it was clearly housebreaking at the very outset. So to get back to the charges, the housebreaking at the very outset was not to rob because there were not occupants at the first entry of the house, so you can't rob if you can't apply violence, and neither can you murder if there aren't any occupants, but when they entered the house on the second time it was clearly with one intention only, and that was now to disarm the persons on their arrival there. So the robbery and then the murder goes hand in hand with that intention at the time, so the first count clearly falls within the execution of what they had in mind there. The two counts of murder goes hand in hand with the robbery, it's most unfortunate that they went to those lengths of killing the two people, but the use of force and the way that force was applied is not totally unconnected with their objective of disarming those people. The robbery, count 4, with aggravating circumstances, there clearly the robbing of the firearms which is part and parcel of the schedule which has reference to count 4, the firearms - the two firearms, the ammunition and the car, so the four or certainly three of those valuables, as set out in the annexure, forms part and parcel of the robbery. The other items do not form part of the order. So by taking the other objects, on the evidence of Mr Kundulu, they would have exceeded the order. On the evidence of Mr Danster they would not have exceeded the order. So there's a conflict there, but even accepting that they may have overstepped the order in that regard, on the probabilities and on the evidence as it stands in any event, that was not the main objective of robbing those people. The purpose of robbing those people were to disarm them of their firearms and if they are entitled to amnesty on the fourth count of robbery, in that they disarmed them of their firearms, then I respectfully submit that they ought to get the benefit of those items, because - those items of clothing, because the Committee will not be able to give them a partial amnesty on the robbery count if they're entitled to that indeed, and to disregard the taking of the clothing. So there, they would benefit by that, under those circumstances, I submit that the Committee ought not to prejudice them in the sense that because clothing is involved, them not to grant them amnesty on the robbery charge. MR POTGIETER Mr Wessels, sorry, the clothing, was that packed into those suitcases on the first entry into the house? MR WESSELS It would appear so, because Mr Danster said that he had nothing to do with the packing of the clothing, he had merely removed the clothing, because it seems that on the second entry to the house the clothing had already been packed, because what took place there at that stage was the attack on the farmer and his wife. There was apparently very little time, except for the search of the bag, her sling-bag. MR POTGIETER They seemed to have spent a few hours in the house on the first occasion. MR WESSELS On the first occasion, indeed so. MR POTGIETER So it's more likely that those things would have been packed in then? MR WESSELS Would have been packed then by Lollie, who was in the house with Mr Kundulu at that stage, not with Mr Danster. MR WESSELS Which would be more in the form of a theft than in the form of a robbery? MR WESSELS That would be so, but one must also bear in mind now the State saw fit at the end to charge them with robbery with aggravating circumstances pertaining to, amongst other, the clothing and the firearms and everything, and robbery is theft by violence, so ...(intervention) MR POTGIETER Yes, I understand one has to take a broad view of this, but just for my own understanding, I think it's important, but thank you. MR WESSELS The theft would obviously have not been completed at the first instance because nothing had been removed from the farmhouse, it was merely packed there, so one could not argue that theft had already been completed at that visit. The theft, the removal of those articles from the farmhouse only took place after violence had actually been directed at the occupants of the house, both of them having been assaulted and then at that stage only were the items removed. MR POTGIETER Correct, and without that violence it might not have been possible to remove those suitcases? MR WESSELS Because those suitcases were removed in the motor vehicle, they needed the motor vehicle to remove it and they could only get the motor vehicle once the occupants had returned, in order to get the keys for the motor vehicle. So really, that must be seen under the robbery charge as it is framed here. MR POTGIETER Thank you. MR WESSELS On counts 5, 6 and 7, that directly relates to the firearm and the ammunition which is clearly within the ambit of what they intended to go and do there, and in execution of their order. And then count no 8, the malicious injury, and there is the word "injury", Mr Chairman, you raised the question of the damage to property, it's always been known as the malicious injury to property. The malicious injury to property of the motor vehicle which was taken with only one intention, and that is to move these items, including the .22 gun to the Township, so that too would be part and parcel of the execution of their acts. ADV DE JAGER But wasn't it because it was too far to walk, wasn't that the reason given? MR WESSELS Not only that reason, Mr ...(intervention) ADV DE JAGER Yes, the other reason was added by the other witness, but the one witness said, do you expect me to walk the long distance back to the town. MR WESSELS No, I think that aspect was raised with Mr Kundulu, Mr Chairman, and Mr Kundulu made it very clear, do you expect me to walk with a long rifle like this in the Townships in the streets, we must hide it, and that is exactly what it was needed for. How could they have got that rifle back to the Townships without hiding it in a way, and this ...(intervention) ADV DE JAGER So if it was only pistols then they wouldn't have taken the car? MR WESSELS Well that's a hypothetical question, Mr Chairman, the facts of this matter required the use of the motor vehicle and the taking of the motor vehicle was a necessity to finalise that act or the operation so to speak. So in that sense I submit that in casu, the taking of the motor vehicle and the malicious injury to that motor vehicle at the end to, as the trial court put it, "a futile attempt to cover their tracks", was certainly a necessity and would also bring their actions within the ambit of the requirements of this section. I submit in the end this Committee, even though there may well be a suspicion that there could have been a intention on some of the gang members, in particular Lollie, having taken all those items or packed those items, that he intended doing so for personal gain. I submit that on the direct denial of the two applicants before this Committee, the Committee in the absence of any evidence against their claims, will find in their favour, and that is that they had no intention for any personal gain, and that they merely acted on instructions and acted bone fide on instructions, and to the best of their ability they acted within those instructions. Although viewed objectively it may be argued that they did not stick in toto to the instructions, but in the end of the matter the Committee ought to consider their actions holistically and then find that they nevertheless acted bone fide and that they acted in furtherance of what is set out in Section 22(a), and that is that they as members of Cradoya acted on behalf of and in support of that organisation in a bone fide manner in furtherance of a political struggle waged by that organisation against the State and the Security Forces in particular in liberating the masses, as it were at the time. If there's nothing in particular, nothing else, Mr Chairman, then those are my submissions. CHAIRPERSON Thank you. MR NYOKA No submissions. MR MAPOMA Mr Chairman, I just want to explain the status of the documents from pages 23 - 25 of the bundle - which document forms part of the bundle, and I just want to make an explanation so as the enable the Committee to determine the status of this document and the weight to be laid on it. This document, Chairperson, is a document which we decided to include in this bundle, because at that time we were preparing the bundle we were operating under the premise that Mr Lollie Kwakwarie is one of the applicants, and should he be giving evidence he would be allowed an opportunity to verify what makes the contents of this document. Unfortunately he's no longer an applicant now, and that being the case therefor, Chairperson, it is my submission that this document has no reason now to be taken into account. CHAIRPERSON You have no idea where it came from, who prepared it? MR MAPOMA Yes, sir. That is all, Chairperson, thank you. CHAIRPERSON ...[inaudible]