amntrans AMNESTY HEARING 1998-10-15 PORT ELIZABETH 4 TAMSANCA ARTHUR TSHIKILA FARM KILLINGS https://sabctrc.saha.org.za/hearing.php?id=52906&t=&tab=hearings https://sabctrc.saha.org.za/originals/amntrans/1998/98101216_pe_portel4.htm CHAIRPERSON Good morning everybody. At the conclusion of yesterday's proceedings it finished with the evidence of Mr Snoek. Mr Mbandazayo? MR MBANDAZAYO Thank you Mr Chairperson. My next applicant is Tamsanca Arthur Tshikila. May he be sworn in Mr Chairperson. TAMSANCA ARTHUR TSHIKILA (sworn states) CHAIRPERSON Thank you. Mr Mbandazayo? EXAMINATION BY MR MBANDAZAYO Thank you Mr Chairperson. Mr Tshikila, the affidavit which is in front of you, is also before the Honourable Committee. Do you confirm that this affidavit was made by yourself and you abide by its contents? MR TSHIKILA Yes, I do. MR MBANDAZAYO Mr Chairperson, as indicated, it is a short affidavit, it is only confirming Mr Snoek's affidavit. It won't take the time of the Committee about it. CHAIRPERSON Yes, I think we can just accept it as Exhibit B. MR MBANDAZAYO Thank you Mr Chairperson. Mr Chairperson, I don't know whether it would be necessary to read it except to go ahead with the main. CHAIRPERSON I don't think it would be necessary to read it. MR MBANDAZAYO Thank you Mr Chairperson. Mr Tshikila, can you tell the Committee in your own words, the role you played in this incident at Mr Sharp's farm, when you went there with Mr Snoek? MR TSHIKILA Yes, I will. I will proceed. It was in 1990 when I went to the farm in Steytlerville, Mr Sharp's farm. We went there with the intention as Mr Snoek, that we were in need of weapons in order to defend ourselves in Uitenhage. We went to this one in Steytlerville. When we arrived there, Mr Matthews was the driver, who was the cousin to my colleague. When we arrived at the farm, we entered. We broke inside and we got into the house, we broke the window. When we were inside the house, we checked in the main bedroom. After we had checked thoroughly, we found a key and there was also a safe key in these keys. We went to open the safe and we found a rifle there. After that, we took that weapon and we went out of the house with the intention as if we are going back, but we didn't, we instead went to another farm, where we were trying to get transport. We took the transport, we tried to push the vehicle with the intention that we wanted to get vehicle in order to have a transport, but those means did not succeed. So that forced us to go back to the farm that we left already. But we had to wait there, because it was already in the early hours of the morning, so we waited there because we were sure that they will come to the cars on their way to church, so we waited there up until the morning comes. In the morning, the wife came out. She was white, an old lady. When she arrived, she went into the garage, she was shocked because the garage door was opened. When she got inside the garage, she met Mr Snoek, because he was inside the garage, and he told her that I am not doing you any harm, just listen and obey, don't scream, because the lady was screaming. He tried to persuade her not to scream, because he won't do any harm to her. So, Mrs Sharp couldn't take it, so Mr Snoek decided to assault her, and he hit her with the back of the rifle and he took the bags that were in this garage, full of mealies, and put the bags on top of Mrs Sharp, in order to support her. He then asked me to watch over her and I waited there, because he said he was going inside. When I was with this lady ... CHAIRPERSON Sorry, Mr Tshikila, sorry to interrupt, if you can just speak a little bit slower, the Interpreters, while you are speaking, she is interpreting at the same time, and it is very difficult for her to do it quickly, thank you. If you could just start again with that sentence. MR TSHIKILA When he left me with the lady, I stayed inside the garage with her as she was quiet by then. What happened, she tried to move, tried to take these bags away from her. I also persuaded her to sit down, even during that time, because the main thing with me, I was scared, I asked her to keep quiet, but she couldn't. There was a spade there, and I hit her by the spade, in order to keep her quiet, and then she kept quiet from screaming. I left her inside the garage after Mr Snoek shouted, calling me and I responded to his call. When I left the garage, going inside the house, I went right inside the house, I met Mr Snoek inside, Snoek and Mr Sharp. They were fighting. I tried to intervene, any way, trying to assist Mr Snoek to tie Mr Sharp. We managed to tie him up and managed to let him sit down. We persuaded him to give us the key, but he didn't want to. At last, we managed to get the key and we took the key, we took some stuff as well, like sleeping duvets, sheets, and then we drove off with the car. MR MBANDAZAYO Now, Mr Tshikila, in your, when you were arrested by the Police, you told the Police that you went there, when you went there, Mr Snoek told you that you are going to get money there, and now you are not telling us about that, you are telling us that you went there with the purpose of getting a firearm. What do you say to that? MR TSHIKILA Yes, sir. When I told the Police my main intention, I was trying to cover up of what our intentions were, because during that period of the past regime, if you were telling the exact thing, like if an organisation has sent you to do such a job, you will be in very big trouble. I didn't want the organisation to be involved in this thing, that is why I made this statement. MR MBANDAZAYO What also do you say to that, you also indicated also to the Investigator of the TRC, that you first, initially the other car was in the first house of the farm, where you tried to start it, and because you could not start it, and you then decided to go to the other farm? MR TSHIKILA Maybe it was a mistake that I made because this thing happened a long time already, but the car, we got from the second house, maybe I just made a mistake. But I am definitely sure it happened on the second farm. MR MBANDAZAYO Also that in your statement to the Police, you indicated that it was Mr Snoek who hit the deceased with the spade? MR TSHIKILA In some of the things that I said during that time, I didn't want them to get something that was going to get me into trouble, because they were sometimes trying to push me to say what they want me to say, but I was trying to run away from that, and I had to cover for that. MR MBANDAZAYO That is all Mr Chairman, at this stage. NO FURTHER QUESTIONS BY MR MBANDAZAYO CHAIRPERSON Thank you Mr Mbandazayo. Ms Patel, do you have any questions to ask this witness? CROSS-EXAMINATION BY MS PATEL I do, thank you Honourable Chairperson. Mr Tshikila, can you just very briefly tell us when was the first time that you met Mr Snoek? MR TSHIKILA I first met Mr Snoek in 1988. MS PATEL In what capacity was it, was it on a friendship basis, or was it as part of him being a member of the organisation? What was the nature of the relationship then? MR TSHIKILA I knew him as one of the members of the PAC, he was working in the offices as well with Mr Jantyi. MS PATEL Were you a member of the PAC at that time? MR TSHIKILA I was a member of the PAC, but I was a student. I was in the PASO organisation. CHAIRPERSON Sorry Ms Patel, Mr Tshikila, I noticed from the affidavit, Exhibit B, that you say you were born in 1976, is that correct? MR TSHIKILA Yes, it is true. CHAIRPERSON So, on the 29th of November? So at the time of the incident, you would then have been 14 years of age? MR TSHIKILA I was still very young, that can be true. CHAIRPERSON Thank you. MS PATEL Did you know that Mr Snoek had undergone training and that he was a member of APLA during that time? MR TSHIKILA He told me that he got some training in Transkei, that is as far as I know about him. MS PATEL Were you, yourself ever a member of APLA or were you just a member of PAC? MR TSHIKILA I was just an ordinary member of the PAC, but I was still a student. MS PATEL Did you have any training in the use of firearms during that time? MR TSHIKILA No, I never got any training during that time. MS PATEL Did you know how to use a firearm though? MR TSHIKILA Yes, but I was never trained to do that. MS PATEL Okay, who taught you how to use the firearm? MR TSHIKILA One of, some of the comrades trained me. MS PATEL Okay, it wasn't Mr Snoek who had assisted you? MR TSHIKILA No, it was not him. MS PATEL Okay. Can you tell us a bit about your involvement in the conflict in your area? To what extent were you personally involved? MR TSHIKILA Firstly I would say as I was a student, or still in school, in the PASO organisation, there was a conflict in Uitenhage between two amaButhu and amaAfrica, there was this conflict because of a political difference. As I was a member of PASO, what would happen, we were ill-treated in school with the member of COSAS under the ANC at that time. The conflict was happening in the township, students were being killed and there was conflict between ourselves and members of COSAS. MS PATEL Okay, and you were personally effected by this as well? Were you ever ... CHAIRPERSON Sorry. MR TSHIKILA Please repeat your question Ma'am. MS PATEL Were you personally involved in any of the fighting that took place, or were you personally effected by any of it? MR TSHIKILA I was involved or effected because each and every student at that time, in our black townships, especially in Uitenhage, was effected in violence that was happening, the conflict that was there. Even if you were a member of a political organisation or not, you were not safe. At that time, I was part and parcel of the situation that was prevailing at that time. CHAIRPERSON Sorry, Mr Tshikila, you have talked about there being conflict between these PASO and COSAS, did that conflict reduce itself to violence, were people getting killed or injured, was it getting physical or ... MR TSHIKILA Yes, that is correct sir. CHAIRPERSON Thank you. MS PATEL Thank you Honourable Chairperson. The weapons that you requested from Mr Snoek, were they for your own personal use, to defend yourself or would they have been used by somebody else? MR TSHIKILA The weapons, we were going to use them to protect ourselves. MS PATEL When you approached Mr Snoek, what exactly did you tell him? MR TSHIKILA When I approached Mr Litho Snoek about this, I told him that as he was seeing what was happening at that time, I asked him to find, to get us arms so that we could protect ourselves, in what was happening at Uitenhage. MS PATEL Okay, was your request limited only to arms or did you ask for other things as well? MR TSHIKILA My request to him was that we wanted arms, weapons to defend us, nothing else. There was nothing else apart from weapons. MS PATEL Were you present with Mr Snoek when he asked for authorisation for this operation? MR TSHIKILA Please repeat your question. MS PATEL Were you with Mr Snoek when he went to ask for authorisation for this operation, did you go with him to explain what it was that you needed the weapons for, or did he go on his own? MR TSHIKILA I was not with him. MS PATEL All right, after Mr Snoek came back and said that it was okay for this operation to be undertaken, did he discuss the plans with you? Did he explain to you exactly what you were going to do and how you were going to do it, and where you were going to? MR TSHIKILA No, we didn't discuss the plan. MS PATEL Would it be fair to say though that when you went along, in your mind the idea was that you would only go there to get weapons? MR TSHIKILA As I have already said before, in my mind, I thought that we were going to get weapons, but I also thought that whatever was necessary, maybe things that would help us, that would help the organisation, anything that would help us, I would take it. That I knew. MS PATEL And what made you believe that this was okay for you to do, that it was fine, even though you only went there for weapons, that in terms of furthering your aims of protecting yourself, you know, that you could go beyond just going there to get the weapons? MR TSHIKILA The reason why I thought that I would take anything that I found, it would be helpful to us, it is because as a student I was responsible for donating things and we were told that there were visitors, so we were supposed to organise things that would be donated for those people who are coming outside. That is why I thought that if I saw something that was necessary, I would take it. CHAIRPERSON Sorry, Mr Tshikila, when you and Mr Snoek when to get these arms, were either of you armed, did you have any weapons with you? MR TSHIKILA No, I was not armed. CHAIRPERSON Do you know whether or not Mr Snoek was armed? MR TSHIKILA According to my knowledge, Mr Snoek was not armed. CHAIRPERSON Thank you. MS PATEL Who were these visitors that you had referred to? MR TSHIKILA We were told that we would see people around that were not familiar, and then I believed that there were people who were helping us. MS PATEL I am sorry, I don't understand you. You referred to visitors. MR TSHIKILA What I am trying to say is that we would be told that there would be visitors from outside, but I didn't know who these people were. I would just see that there were people who were not from that area. As I was just an ordinary member of the organisation, I was just told that there would be visitors and we had to donate things for those visitors. MS PATEL Are you saying that the leadership of your organisation told you that there would be visitors, and that provision had to be made for them? MR TSHIKILA What would happen, we would hear these things from the meetings, that there would be visitors. Leaders would tell us and the residents in general would tell us. MS PATEL You see, you don't know, you can't tell for what purposes those visitors were coming? MR TSHIKILA I cannot explain why they would be there, because they would come and there would be meetings and such things. MS PATEL Meetings about what? MR TSHIKILA The PAC meetings. MS PATEL But you can't say whether they were actively involved in the organisation, whether they were members of the organisation or whether they were just part of the community or community's family who had come in? MR TSHIKILA What I can say is that they were not people that I used to see in the township. It is very difficult for me to explain why they were there. I just knew that they were members of an organisation. MS PATEL Okay, did you discuss this with Mr Snoek before you went on the operation, did you tell him that I don't only need weapons but I need anything else, because people in the area are expecting visitors? MR TSHIKILA No, that was not something that I thought I should tell him. I thought that he knew this because he was a member of the organisation. Everybody knew that anything that was necessary or that could be used, we can take it so there was no need for me to tell him that. MS PATEL Was there anything else that you want us to accept, that there wasn't a need to discuss between the two of you, that it would be an understanding because you were members of the organisation, in terms of this specific plan? What else did you think you didn't need to tell him, because he would know, in terms of the operation, in terms of your needs? MR TSHIKILA First of all, as I have already said, things that we needed, or if you see something that would be helpful to people, as I have already said that things that we took there, I took it because I wanted to donate them to the organisation. I just took it as my responsibility to take whatever I wanted to take, that is what I didn't tell him, because I didn't think that it was necessary for me to tell him that. MS PATEL Was this accepted PAC policy? MR TSHIKILA I can say that it was an accepted policy of the PAC. MS PATEL That PAC members could decide on their own, what people generally needed and go out and get it and go out and steal it, that was accepted general PAC policy, without any authorisation from anybody? MR TSHIKILA It would depend on the situation you were under because there would be times that situation forces you to do whatever you were doing, so you wouldn't wait for an order from superiors, because the situation forces you to do that. MS PATEL My question is very specific. My question is, Mr Tshikila, whether you as an ordinary member of the PAC were entitled to determine what the needs of the organisation were, and then go out in terms of material goods, and then go out and steal those goods or take them or repossess them, however you want to phrase them, that you were entitled to do that without the necessary authorisation? That this was accepted PAC policy, that is my question. We are not dealing with specific situations. MR TSHIKILA I do understand your question. If you take something with the intention of using it for the organisation, I didn't take that as stealing. For example, if you repossess something that is necessary or is a need to the organisation, I didn't take that as stealing, because that was necessary for the organisation. MS PATEL You didn't need authorisation for that? All I need to know is, was this accepted policy that you didn't need authorisation for it as an ordinary member of the PAC? Either yes or no? MR TSHIKILA There was no need for the authorisation. MS PATEL Okay, who of the PAC in terms of perhaps senior members in your organisation, who had told you that this was accepted policy that you didn't need authorisation? How did you come to that understanding? MR TSHIKILA Please repeat your question Ma'am. MS PATEL My question is, in terms of the policy that you didn't need authorisation, how did you know that you didn't need authorisation? Who had in a sense, trained you in terms of the policy of the organisation? Who had explained this to you? MR TSHIKILA As I have already said, some of the things you would do without waiting for an order, so there is no one who told me to do this. I took a decision that this was necessary because I knew that I would not benefit, but the organisation would benefit. MS PATEL Okay. You accept though that the only thing that you told Mr Snoek, was that you needed weapons, and that his brief in terms of his authorisation, was that the two of you were going to go out to take weapons? That the authorisation was limited to that, it didn't extend to assaulting, killing anybody. It didn't extend to taking any goods besides the firearms from wherever you were going to? MR TSHIKILA Will you please repeat your question because it was not clear to me? MS PATEL My question is, do you accept that you were authorised only to go and get firearms, and nothing else? MR TSHIKILA As I have said that when he went to ask for a permission, I was not there. I don't know the decision they took with the people that gave him orders or instructions. My answer is I was not there when the instructions were given. MS PATEL But it was necessary to get instructions to go and get the firearms, to go and steal the firearms MR TSHIKILA Come again please. MS PATEL Was it necessary to get instructions to get the firearms? MR TSHIKILA For him, yes, it was necessary because he said he got training. I for one, I didn't think there was any necessity for me to do that, to go and ask for permission or go and get orders, but I ask him to do so as he told me that he was a soldier. MS PATEL Okay, so the distinction in terms of the necessity for authorisation, is that he was trained and you weren't? CHAIRPERSON Sorry Ms Patel, just on this, is it really getting us anywhere? If the two of them went, if the authority was given for the - call it the operation, to be conducted, is it necessary that each and every individual had to go? The mere fact that he wasn't present, does that mean he didn't go without the necessary authorisation? MS PATEL No Honourable Chairperson, with respect, the basis of the questions that I am putting to this applicant is that he is saying that for certain things, authorisation was necessary and for others, not. I am merely trying to establish where the necessity came in to in fact, even for Mr Snoek, to request authorisation, if his understanding is that authorisation wasn't necessary if ordinary members of the organisation were able, or entitled to determine what the needs of organisation were, and then embark on operations to meet those needs. CHAIRPERSON But hasn't he answered that, he said that Mr Snoek went to get authorisation, he didn't feel it was necessary for him to go. He was a kid of 14. But you can carry on. MS PATEL In terms of the plan to go to the farm, did you say that Mr Snoek didn't tell you anything about the plan at all, that you just went along? MR TSHIKILA I am sorry, will you please repeat your question? MS PATEL In terms of the plan to go to the farm and steal the weapons, that before you got there, Mr Snoek, didn't - sorry is there a problem with your ... MR TSHIKILA Yes, the sound is not clear. MR LAX As long as you don't put it between the water and the - there is the aerial up there for that sound thing, so as long as it is clear, you should be all right. We will get you a spare one. MR TSHIKILA It is better now. CHAIRPERSON Ms Patel, would you please repeat the last question? MS PATEL Thank you. Mr Tshikila, can you hear, is it okay? MR TSHIKILA Yes, it is okay. MS PATEL Okay. I just wanted to know in terms of the plan, when you and Mr Snoek were on your way or before then, to the farm, he didn't explain the details of the operation to you? You just went along? MR TSHIKILA What he explained to me is that as we have met before, and requesting firearms, I know a place where we can get them. He explained to me that this is a farm, it is in such a place. That is all he told me. MS PATEL Okay, he didn't explain to you how he knew that there would be firearms there, or whether he had been there before? MR TSHIKILA When he explained to me, when I wanted to know, he just told me that he got an information from one of the employees, ex-employees of that farm in Steytlerville. MS PATEL Okay. When you got to the farm, to the first farmhouse, you stated in your statement that the front door was in fact broken, you said that Willy had gotten an iron rod and broken open the door, and we both got in. But today you changed that. You are saying that you gained entry through a window. Mr Mbandazayo, it is on page 15. CHAIRPERSON It is the second paragraph from the top, the second paragraph on page 15. MR TSHIKILA What happened, we got in there through the window, yes, he did break the door with the iron rod, but we got there through the window. That was a mistake. Because this iron thing happened on the second farm, on the door of the garage. It is because this happened a long time ago. MS PATEL I accept that it happened a long time ago and that your memory could be slightly hazy, but this is something that you had repeated to Mr Keiser from our Investigative Unit when he came to see you, and that he even read the statement back to you, and that you had signed it and you confirmed the contents to him. MR TSHIKILA Maybe I am the one who make a mistake because I clearly remember that we got inside the house, through the window. He did break that door, the garage door with the iron rod, but on the second farm. But I know something like this, happened. Maybe it is because it has been a long time ago, I couldn't clearly explain. MS PATEL You also said today that you searched for the keys in the house, in the first house. Is that correct? MR TSHIKILA Are you talking about the first house, inside? MS PATEL Yes, we are still at the first house. MR TSHIKILA Yes, we looked for the keys. MS PATEL Why did you tell Mr Keiser that it is in fact Mr Snoek who had gone to fetch the keys? Not that you had gone to look for it, but that he had gone to fetch it? MR TSHIKILA Maybe he understood me wrongly, because he couldn't just go and fetch the keys, he looked for them inside and I was there with him. Maybe this is his mistake or my mistake if I said that, but what I remember is that he searched for the keys inside this room. MS PATEL You also stated in your statement that after he fetched the keys, the two of you then went and opened the safe. You didn't say anywhere that you had to look for the safe. MR TSHIKILA Please repeat your question Ma'am. MS PATEL The question is sir, that after you say that Mr Snoek went to fetch the keys, that the two of you together then went to open the safe. Nowhere in your statement did you state that you had to look for the safe in the house? MR TSHIKILA Maybe even there, it was a mistake. As I have already said this happened a long time ago, but we checked or searched for the safe inside the rooms in that house. CHAIRPERSON Sorry Ms Patel, if I could just intervene. What sort of safe was it Mr Tshikila, was it a safe that was contained in a cupboard or built into a wall, or was it a stand alone safe, and approximately how big was this? MR TSHIKILA If I remember, it was a safe standing on its own. CHAIRPERSON Could you just indicate more or less the size of it? MR TSHIKILA It was a bit long, standing on its own. MR LAX Mr Tshikila, those sorts of safes, gun safes, are usually bolted to the wall, so they can't usually be taken away. Was this thing against the wall? MR TSHIKILA It was not on the wall sir, it was not a built in safe. MR LAX No, I am not saying it was a built in safe. There is a big difference, it is a stand alone safe, but it is usually bolted to the wall, so it can't be removed very easily. MR TSHIKILA The one that I am talking about, was not attached on the wall. It was on its own. MR LAX So where was it, standing in the middle of the room? MR TSHIKILA Not in the middle of the, but it was next to the wall. MR LAX Thanks. MS PATEL Did you take any money out of the safe? MR TSHIKILA Yes, we did find some money. MS PATEL About how much was it? MR TSHIKILA I cannot be sure how much was it, but it wasn't that much. MS PATEL Was there anything else in the safe, besides the money and the rifle that you took? CHAIRPERSON Sorry Mr Patel, I didn't catch the first part of the question. If you can just repeat the question, I didn't catch the first part? MS PATEL The question was, was there anything else in the safe. MR TSHIKILA It was money and the rifle. Nothing else was there, only money and the rifle. CHAIRPERSON Sorry Ms Patel, you say the money wasn't much. Would it have been about R1 000 or less than that, or more? MR TSHIKILA It would have been less than that, it wasn't that much, because there were many coins, silver coins. MR LAX If I may just come in here, R1 000 in silver, as you have put it in the statement here, would be many, many coins, it wouldn't just be a few coins. MS PATEL Sorry, if I may just come in. I have just been handed, sorry Mr Tshikila, before you answer that, I have just been handed the original hand-written, and it appears that there is a typographical error, that it is R100. I was misled by the typed version. My apologies. MR LAX Okay. The question then doesn't need to be asked any further. MS PATEL Okay. MR LAX Just one little thing, before we move too far away from it. Did I hear you right earlier when you were talking about getting in and being asked about the door, whether the house door was broken or not, I made a note that you said that it wasn't the door that was broken, it was the window that was broken. Was that right, did I hear you correctly? MR TSHIKILA Yes, it is like that. MR LAX Well, you see, your co-applicant yesterday said that the window was open and that is how you got into the house? Why did you have to break it to get in? MR TSHIKILA Maybe I am the one who is making a mistake. I cannot remember, but we got there through the window. MR LAX Well, first you say it was the door that was broken in your statement, then you say maybe you have made a mistake. Then you correct that mistake by saying it is the window that you broke, when I point out to you what your co-applicant said, now you say well, maybe you are making another mistake? MR TSHIKILA What I was trying to explain is something about breaking the door happened on the second farm. Maybe it was a mistake that I mentioned it on the first farm, but I am sure of the window. We got into that house, through the window, because it was a long time ago and I was a bit young then. MR LAX Yes, I understand it was a long time ago, but you corrected the door by saying you broke the window to get in. Whether you got in through the window, that is not necessarily the problem, the problem is the breaking of the window. If it was open, you wouldn't have needed to break it? MR TSHIKILA The window was open and we got in. We opened the window, and we got in. MR LAX It is a mistake then when you said that you broke that window? MR TSHIKILA Maybe when I was explaining, I made a mistake. MR LAX Thank you, please carry on. MS PATEL Thank you. Mr Tshikila, are you also absolutely sure that you are making another mistake, when you state that the vehicle that you tried to start first, wasn't at the first farmhouse, it was at the second farmhouse? MR TSHIKILA I didn't specify that I already made a mistake. Maybe the person who was writing, also made a mistake, but I told the person that we got the vehicle on the second farm, not on the first one. MS PATEL No, no Mr Tshikila, this statement was read back to you and you signed it. If it was a mistake, why didn't you say so? Why didn't you explain to Mr Keiser, he would very gladly have changed it, but you didn't say that to him? You signed the statement. MR TSHIKILA When Mr Keiser came to me, he came there as a person from the Maximum Prison, came to get clarity of what I have been accused of. I can't remember whether he wrote back the statement to me or not. MR MBANDAZAYO Chairperson, just on the interpretation. He said that Mr Mbete went to him to confirm what he has been told by his co-accused in Maximum Prison, not what he has been accused of, to confirm what has been said by his co-accused. CHAIRPERSON Thank you Mr Mbandazayo. MS PATEL I am sorry I missed that, I was talking to Mr Keiser at the time, will you please repeat. MR MBANDAZAYO Okay, I am saying that the interpretation was not as was put by the applicant. He said that Mr Mbete went to him from Maximum, from his co-accused to confirm what he has been told by his co-applicant, that is by Mr Snoek. MS PATEL If that is the case, if it was merely for confirmation, but your version differs from that of Mr Snoek, it is not the same. So it wasn't merely for confirmation, it was to hear your side of the story? It was to get clarity from you as to your involvement in the matter? Otherwise your version and Mr Snoek's version would have been exactly the same? MR TSHIKILA According to what he told me, the fact that the statement is different, if he went there to confirm what Mr Snoek said, that is what he told me. MR LAX Can you just slow down a little bit. The Interpreters are really struggling and you are talking very fast. Just try and talk a little bit slowly, that will help everybody please. MR TSHIKILA As you are saying that he didn't go there to confirm what Mr Snoek said to him, he didn't tell me that he was there to hear my side of the story. He said that he was there to confirm what Mr Snoek told me and he also was there to take my statement so that he could compare those. What I am saying here, and what is written in my affidavit, is what I know. MS PATEL That is exactly the point Mr Tshikila, what is written in the statement, is what you knew and that is what you signed for. Is that not correct? MR TSHIKILA In which statement? CHAIRPERSON The statement that appears on pages 14 and 15, which is almost identical to the statement that appears on pages 16, 17 and 18 of the papers. While they are taking a look at it, Ms Patel, you've got the statement on pages 14 and 15 and then there is a statement on pages 16, 17 and 18. Which statement was Mr Mbete involved in the taking of, or was it in respect of both of them? MS PATEL I will just confirm that. CHAIRPERSON They are very similar, although they are not exactly the same. MS PATEL It is the first one, Honourable Chairperson, page 14 and 15. CHAIRPERSON Thank you. Perhaps you can repeat your question. MS PATEL Okay, Mr Tshikila, this statement on page 14 and 15, the question to you was that this was your statement to Mr Keiser here, is that correct and what is put down here, is what you said to him? MR TSHIKILA Who is Mr Keiser, is he the TRC Investigator? MS PATEL Yes, the gentleman sitting with me. MR TSHIKILA One of the things that he had written here, I have given that to him, some of them. MS PATEL But not all of it? MR TSHIKILA I cannot clearly remember, because he never read them to me. I do hear you saying that he read them to me. He never read them to me, so I cannot say all of them. MS PATEL That is emphatically denied by my colleague sitting with me, that he never read it back to you. Do you still persist in stating that he included things in here that you never said to him? MR TSHIKILA As I have said, when he arrived to me, he came to confirm what my co-accused said. I also tried to give him a statement, anything else that is there, that I don't know, I will say that I don't know that. CHAIRPERSON Sorry Ms Patel, Mr Tshikila, this statement as you can see is written in English. Do you understand English? MR TSHIKILA No sir, I need some interpretation in it. CHAIRPERSON You can understand a bit, but not very well, is that what you say or don't you understand it at all? MR TSHIKILA I am not very good in English. CHAIRPERSON Yes, thank you. MS PATEL May I just ask you Mr Tshikila, how far did you get at school? MR TSHIKILA Standard 5. MS PATEL Thank you. Just on that point, I am advised that the statement was translated back to the applicant in his mother tongue and then confirmed. It wasn't read back to him in English, it was actually translated back to him. Do you confirm that, Mr Tshikila, that he translated ... MR TSHIKILA Maybe you don't understand me. I am saying I cannot remember whether the statement was read to me or not, as he came to me, saying he is here, he is with me to confirm what my co-accused has said to him, but the only thing that I know is he came to me for confirmation. MS PATEL Okay Mr Tshikila, let's move on. We started at the point where I asked you to confirm whether it was a mistake or not that the vehicle, the first vehicle that you tried to start, was at the first farmhouse or at the second farmhouse, and you are sure that it was at the second farmhouse and you had agreed to that. My question to you is, in your statement, you are quite clear about this, in fact, if one looks at the detail, you say that it was then that Willy said we must go to the other farmhouse, to get the 4 x 4 Isuzu used by the farm owner. Where was the need to say that, if you had in fact been at the second farmhouse at the time, already? Or, is this also a mistake on the part of the statement taker? Did he just include that of his own will? MR TSHIKILA As I have said in my first statement, that the car we took from the second farm, and then when we got the car from the second farm, we tried to start it and push it. In order for us to get the second car, it is because we have tried to take the first car, but we couldn't manage to start it, and we decided to go back and get the second one, the 4 x 4. MR LAX You have misunderstood the question, or maybe you haven't, I am not sure, but let me help you. What Ms Patel is putting to you is that from the statement you give a reason why it was necessary to go to the second farm and that is to fetch the 4 x 4 and from the way you have written the statement, it is as if Mr Snoek knew there was a 4 x 4 there, even though you hadn't been there yet. Do you understood, that is how you are seen to be telling the story in the statement. Do you understand what I am saying to you? CHAIRPERSON That is on the third paragraph of page 15 of the statement. It was then and I am reading from it, it was then that Willy said we must go to the other farmhouse to get the 4 x 4 Isuzu belonging to the farm owner. MR LAX Do you understand now the question and the context of the question? The question is why did you give a reason why you should go to the second farm, because something had already happened at the first farm, if there was no vehicle at the first farm at all? Do you understand? MR TSHIKILA If you do hear me clearly when I am trying to explain, I have said when we got to the first farm ... MR LAX Just slow down. CHAIRPERSON Sorry, the Interpreters lost you there, if you could just repeat that please Mr Tshikila. MR TSHIKILA If you understand me clearly, I am saying there was a Ford, a bakkie, that we tried to start, but we couldn't. It didn't start, so we were forced to go to the second car, to that second farmhouse, this 4 x 4 Isuzu which belonged to the farm owner. MR LAX You still haven't answered my question. The question is, why do you create a reason to go from the first farm to the second farm in your statement? What you say is, we needed a vehicle, we couldn't start the first vehicle at the first farm, therefore Mr Snoek said we will go to the next farm, where there is a 4 x 4 and we will try and take that 4 x 4. That is how you put it in your statement, that is how it has been taken down. The question we are asking you, why give the impression that you had, that the reason that you went from the one farm to the other farm is to get a vehicle, if there was no vehicle at all at the first farm? MR TSHIKILA This what is written in this statement about a car, about finding a car in the first farm and we proceeded to the second farm, I don't know anything about this, because these cars were parked in the, both of these cars were parked in the second farmhouse. I don't remember saying that we found a car in the first farm. MS PATEL Okay. ADV BOSMAN Did Mr Snoek tell you that you must get a 4 x 4 Isuzu, did he give you that detail as you put it here? MR TSHIKILA He didn't tell me about an Isuzu. I referred to it because I knew, I found out what it was, but he didn't' say it, he didn't tell me the name of the car that we were going to find there. ADV BOSMAN Why did you explain it in so much detail here? MR TSHIKILA As I have already said, the Isuzu 4 x 4, I explained it this way because I know now what kind of a car is it. I know what kind of a car we used, that is why I explained it this way. MR LAX Just one small little thing. How did you or Mr Snoek know that that 4 x 4 belonged to the man of the farm and not to the woman of the farm? MR TSHIKILA Sir, if you understand me clearly, I am saying that the 4 x 4, I knew about the 4 x 4 when I was in prison, because I know that I was using the 4 x 4. I didn't know anything about it before. MR LAX So these are details you added in afterwards? It didn't quite happen like that? MR TSHIKILA Yes, concerning the car, those are the details because I didn't know anything about it. MR LAX Very well, please carry on. MS PATEL Mr Tshikila, the purpose of getting the car was to take both of you to Uitenhage, is that right? MR TSHIKILA The purpose of getting a car was to leave that place, it depended on the driver, but I wanted to bring back the firearms to Uitenhage. MS PATEL So, did the driver tell you or not tell you, that you are going to get a car so that you can go to Uitenhage, or did you not know where you were going to with the car afterwards? MR TSHIKILA As he didn't use the route that we went, we used when we went there, he used another route, so I didn't know exactly where we were going. MS PATEL You see, the reason I ask you this is in your affidavit, if you look at Mr Snoek's affidavit, that you have in fact confirmed, if you look at paragraph 8, the second line onwards ... CHAIRPERSON That is Exhibit A. MS PATEL You say there that we then proceeded to the second farm of Mr Sharp with the purpose of getting a motor vehicle to take us to Uitenhage. That is what Mr Snoek says in his affidavit and this is what you have confirmed and have agreed to. Now you are saying that it depends on the driver. Are you saying that this affidavit is incorrect? MR TSHIKILA I am not saying that we were going back to Uitenhage or not, but what I knew is that I was going to go to Uitenhage, but that depended on the driver. Maybe he was going to take another way that we didn't use when we were going to that farm. That is why I am saying what I am saying, but what I am sure about is that we were going to Uitenhage, because we were from Uitenhage. MS PATEL Okay, but you wouldn't be going through Transkei to Uitenhage, would you? It doesn't make any sense, does it? It is not on route? MR TSHIKILA Please repeat your question Ma'am. MS PATEL You are saying that the intention was to get to Uitenhage, whichever route that took. My question to you is that you wouldn't go through Transkei to get to Uitenhage? MR TSHIKILA As I have already said before, that depended on the driver, but what I knew was that as I was staying in Uitenhage, I was sure that we would eventually go to Uitenhage. He might decide to go to the Transkei as a driver, but I didn't know anything about that. MS PATEL Okay. Was the purpose of going to the second house, purely to get a motor vehicle to get away? MR TSHIKILA Yes, the intention was to get a car that we would use and we would check if we will find something that we will take back. MS PATEL When was this agreed that you will check for other things that you could take back? When did you discuss this with Mr Snoek? MR TSHIKILA What I am trying to explain is that we wanted a car that will take us back. MS PATEL So the taking of the goods was just an after thought, it had nothing to do with the plans? And that is the reason it is not included in your affidavit, it is not included in your statement? It is because it wasn't the intention, the intention was to go there to get a car? MR TSHIKILA What happened is, as it was early in the morning, we decided to wait there so that we can get the car keys, so that we can use that car which was in the garage, to go back to Uitenhage. Our intention was to get the car keys and we were then forced to wait there for people to wake up so that we can take the car and go back. MS PATEL Whose idea was it to wait until they woke up? MR TSHIKILA That was our decision, we decided to wait there. As Mr Snoek said it was early in the morning, we should wait there. Surely there is going to be one of them who will be going to the car in the garage. MS PATEL Mr Snoek knew that somebody would come out early in the morning to go to the car? Is that what he said to you? MR TSHIKILA As it was on Sunday morning, we were sure that they would come to the car, maybe they will use the car to go to church. MS PATEL There is something I find curious, and it has just occurred to me. That is that if the intention was to wait for them to come out to the car, to go to church, why didn't you wait a bit longer to check if the woman who had come out, wasn't going to go to the car to open it, because then she would have the keys with her? Why did you choose to confront her at that stage? MR TSHIKILA We waited for her and she went to the car because she was on her way to the garage. MS PATEL Okay, so you were hoping that she would have the car keys with her? MR TSHIKILA Yes, we hoped that she had the car keys. MS PATEL Okay, can you remember how she was dressed? Was she dressed to go out or what? MR TSHIKILA Yes, I can remember. If I am not mistaken, I think she was wearing a dress if I remember clearly. MS PATEL Can you remember what time of the morning this was? MR TSHIKILA It was in the morning. CHAIRPERSON Had the sun risen, was it light? MR TSHIKILA No, not exactly, but it was early in the morning. MR LAX Mr Tshikila, it was very early in the morning, the sun hadn't risen yet, correct? It was light, but the sun wasn't shining in the sun yet? MR TSHIKILA Yes, there was light and it was early in the morning. MR LAX The woman was wearing a night dress, they still were sleeping? MR TSHIKILA Maybe she was wearing a night dress. MR LAX From the court record, it is obvious that that was what she was wearing. She wasn't going anywhere yet? She had come out to feed her animals and get stuff from the store room, correct? MR TSHIKILA It might be so sir. CHAIRPERSON Yes, Ms Patel? MS PATEL If you will just grant me a moment. CHAIRPERSON If we could just, sorry to interrupt, take a short adjournment, I am requested for a short adjournment, just five minutes. COMMITTEE ADJOURNS TAMSANCA ARTHUR TSHIKILA (still under oath) CHAIRPERSON Yes, thank you. Ms Patel, you may continue. CROSS-EXAMINATION BY MS PATEL (continued) Okay, Mr Tshikila, were you present in the garage when Mr Snoek confronted the old lady? MR TSHIKILA When he confronted this lady, I was inside the garage, I was not confronting him. I was inside the garage. MS PATEL If you were in the garage, then where was he? Where were the two of them? Were they not in the garage as well? MR TSHIKILA What happened is when this lady came to the garage, I was in the garage. I was on the other side of the garage, and she was at the door of the garage. MS PATEL Could you see what was happening between them? MR TSHIKILA As I was far, but I could see what was happening to her at that time. MS PATEL Could you hear what was happening? MR TSHIKILA Yes, I heard what happened. MS PATEL Can you tell us what you heard, what you can remember? I know it is a long time ago, but if you can please help us. What did you hear them saying to each other, if anything? MR TSHIKILA What I remember, what I heard he told her to keep quiet and listen or obey to his instructions. If she did that, he was not going to do anything to her, because he was there, he was looking for the car keys, and then he asked who was inside the house. I don't know what her answer was, he then called me. I then looked for a rope that was in that boot. MS PATEL And you helped him tie her legs? MR TSHIKILA Yes, I tried to help him. MS PATEL Can you describe to us, at that time when you were tying her legs, what was her condition? Was she still very vocal, was she still screaming, or, you know was she still quite strong or was she weak as a result of the assault on her? Can you briefly tell us? MR TSHIKILA She was still screaming and she was resisting, and I was trying to help him tying. As I was young at that time, I couldn't succeed. There was no one else to help him tying this lady. MS PATEL The cloth over her mouth, when did that happen? Did it happen after you came out of the house, after you helped him with Mr Sharp, or was it before, before he went in? MR TSHIKILA What was happening, whilst he was trying to cover her mouth with the hand, because she was busy talking with him, trying to stop her from screaming, he had to come out of the house, and the woman was still screaming, but in a very low mood. I was scared, so I took the cloth that was near in that vicinity and put the mouth in the cloth, because I was scared that the neighbours or somebody who was in the house, would hear her screaming. MR LAX Sorry, the translation was put the mouth in the cloth, you meant it the other way around, I assume. INTERPRETER Sorry, the cloth in the mouth. MR LAX Thank you. MS PATEL When did you hit her with the spade? Was it after you tied the cloth over her mouth, or before then? MR TSHIKILA What was happening was this, as she was struggling to take off the bags that were on top of her, I tried during that period to hit her with the spade in order for her to be quiet. That is when I started to take the cloth, after I have hit her with the spade. MS PATEL Okay. How many bags were on top of her? MR TSHIKILA If I can remember well, it was a bag that was on top of her. MS PATEL Could you please describe what do you mean by on top of her? On top of her head, was she standing, was she sitting, in what position was she, and where exactly on top of her, was the bag? MR TSHIKILA The bag was on top of her, on the shoulders, breast, so that she couldn't be able to get up. MS PATEL Was she laying down? MR TSHIKILA Yes, it was the time she was falling down. MR LAX Sorry, you indicate with your body that she was laying sort of forward down, or slightly on the side with her hands up against her chest. That is what you indicate to us, as I am demonstrating. Is that right? MR TSHIKILA No, not as I am indicating, because her hands were tied. They were not on her chest. The bag was on top of her, not the hands. CHAIRPERSON Was she laying on her back? Was she laying on her back? MR TSHIKILA The bags were on top of her. CHAIRPERSON She was on her back? MR TSHIKILA Yes, she was on her back. MR LAX Were her hands tied in front of her? MR TSHIKILA Her hands were almost loose because they were not that much tight. MR LAX The question is were they in front of her or behind? CHAIRPERSON The question was whether they were tied in front of her or behind her back? MR TSHIKILA In front of her. MR LAX And how many bags were on top of her? DR TSOTSI Did you say that you hit her with a spade? Did you hit her with a spade, in what position she was laying at the time that you hit her with the spade? MR TSHIKILA She was still conscious then. Her hands were almost loose, because I was tying her. DR TSOTSI You say she was laying on her back as I understand it? MR TSHIKILA I was trying to explain according to the question that was asked. DR TSOTSI Yes, now you did say that you hit her with a spade, is that correct? MR TSHIKILA Yes. DR TSOTSI Where, at the back of the head, is it? MR TSHIKILA I hit her on the head. DR TSOTSI Whereabout on the head? MR TSHIKILA Just on top of the head. DR TSOTSI And what was her position, at the time she was laying on her back, is that right? MR TSHIKILA She fell after I hit her. DR TSOTSI Yes, what I want to find out is, you said that thereafter she became quiet. Was that because you hit her, or was that because there was a load of heavy mealies on her breast or on her face? Why did she become quiet after you hit her? MR TSHIKILA The reason why she kept quiet, is because I had been pleading with her for a very long time because I told her that I won't do her any harm if she can be quiet. But she couldn't respond, and then I decided to hit her, in order to keep her quiet. MR LAX So the reason she was quiet, was because you hit her on the head? MR TSHIKILA Yes, she obeyed. MR LAX It would be difficult not to obey if you are unconscious. MR TSHIKILA For an example, I told her to be quiet. If she had obeyed, I wouldn't have hit her with the spade. The reason why I hit her with the spade, is because she couldn't be quiet, and then I decided to do that. MR LAX The question Dr Tsotsi asked you just now was, when you hit her with the spade, how was she laying. You didn't answer that for us. CHAIRPERSON No, he said he hit her with the spade, then she fell. MR LAX Can you tell us how she was, or where she was because on what you have told us already, the bags were on top of her when you hit her? How was she, how did she move the bags to get up so that you could hit her, so that she could then fall down again? That is what I don't understand. MR TSHIKILA By the time I was hitting her, it is the time she was still seated up straight, because the bags were still very low on her, not on top. MR LAX Did you move the bags on top of her chest? Mr Mbandazayo, do you want to make a correction? MR MBANDAZAYO Not a correction, it was not interpreted in full. MR LAX Yes. MR MBANDAZAYO The sentence when he said the bags were here on her, up until her chest, then he hit her with the spade, thereafter I think he said he himself, then pulled the bags over her. MR LAX Did he say that he pulled the bags over her after that? MR MBANDAZAYO That is what I got from the Xhosa side, but the interpretation did not come correctly Mr Chairperson. MR LAX Mr Tshikila, has Mr Mbandazayo pointed out correctly what you said? MR TSHIKILA Yes. MR LAX So it was you who put the bags on her chest? MR TSHIKILA The bags were already on her chest sir. MR LAX Well, you see, you can't have the bags lower down or on her chest. They've either got to be on her chest or not. You can't have it both ways. Do you understand? MR TSHIKILA They were on her chest at that time. MR LAX Well, that is what I thought you said originally. That is why I am asking the question in the first place, because if the bags were on her chest, how could she get up for you to hit her? MR TSHIKILA As she was laying down, she was not still, she was moving, trying to remove these bags. As I have already said that her hands were tied on her front. MR LAX If the bags were moving, did you put them back on her chest? MR TSHIKILA As she was moving, I hit her and the bags were still in her chest at that time. MR LAX Yes. These were quite heavy bags. CHAIRPERSON I think we keep talking about bags. If we can just finally establish whether it was bags or one bag. Was it bags or one bag, because we keep hearing about bags, but I was under the impression that it was only one bag. What is the position? MR TSHIKILA In that room, there were bags inside, but I don't remember how many bags were on top of her. This happened a long time ago. MR LAX You see the evidence in the courts, was that it was a heavy bag. They spoke of a 50 kg bag of mealie meel. MR TSHIKILA What I want to explain here is that the evidence I gave in court, I was trying by all means for them to believe what I did, I did it, or what I said was the truth. So whatever I was saying to them, I was trying to convince them I was telling them the truth. MR LAX Yes, but Mr Tshikila, the bag was found, it was covered in blood, they know which bag it was. I am not relying on your evidence, I am relying on the evidence of other people who found the bag afterwards. Don't you understand, that is what the issue is here. MR TSHIKILA Yes, there was a bag, but I don't remember how many bags were there. Yes, it is true that I put a bag on top of her. MR LAX You put the bag on top of her? MR TSHIKILA Mr Litho Snoek is the one who put the bag on top of her, who firstly put the bag on top of her. MR LAX Why did you just say it is true that I put the bag on top of her? MR TSHIKILA As there were a lot of bags inside there, I do remember that there was a bag that I put there, because we took them from where they were packed. MR LAX So you added a bag of your own, and that explains why you are referring to bags in the plural? MR TSHIKILA If I remember well, I said there were a lot of bags in that room. Some of those bags were laying down, and we tried to push them aside, so that we can get out of the garage. If you wanted to go out there, you had to push these bags aside. MR LAX Mr Tshikila, we are talking about the bag or bags that were placed on the deceased. We are not talking about all the other bags that might be in the room. You know that and I know that, correct? MR TSHIKILA Please repeat your question sir. MR LAX We are talking about the bag or bags that were on top of the deceased, we are not talking about the rest of the bags in the room. MR TSHIKILA I am trying to explain that a bag or bags that were on top of the deceased, I don't know how many they were. That is what I am testifying about today. MR LAX Yes, the question is did you put a bag on top of her in addition to the one that you say Mr Snoek put on top of her? MR TSHIKILA No, I didn't put a bag on top of her. I was just trying to help Mr Snoek. MR LAX A short while ago you told us that you put a bag on top of her? MR TSHIKILA Maybe I didn't understand the question clearly, but what I remember is that I did, I had something to do with the bag. MR LAX Yes. You see the medical evidence is that she was hit on the back of the head with a spade, not on the front of the head or on the top of the head as you have indicated? Is it possible that you are making a mistake? MR TSHIKILA I don't think I made a mistake, because what I know is that I hit her on the head with the spade. MR LAX And you are sure that she was sitting up when you hit her? MR TSHIKILA Yes, I am sure of that. MR LAX And that is in spite of the bag, the bag or bags that would have been on her chest at that time? MR TSHIKILA Yes, in spite of those bags being there. MR LAX If you look at page 15, the third last paragraph, you say and I hit her once with the spade at the back of her head. So you yourself say that in your statement here. Do you see that? MR TSHIKILA Yes, I can see this. MR LAX Is that a mistake? MR TSHIKILA I remember that I hit her on the head with the spade, and I can see what is written here, but I don't remember clearly. I just remember hitting her on the head with the spade. MR LAX This point at which you hit her, according to this statement, is at a very different point in time to what you have told us so far? The point in time at which you have hit her according to your statement with the spade, is after you had been inside the house with Mr Sharp? According to this statement, you went inside, you helped your co-applicant Mr Snoek, and then you came back into the garage and hit her with the spade. That is what your statement says here at page 15. Is that true? CHAIRPERSON If you take a look at the preceding paragraph, then you will get the description of the fight that took place in the house, etc. MR TSHIKILA The fact that I hit her after getting out of the house, that is not true because when we entered, after entering the house, I didn't go back to the garage except for making sure that this lady was still there, and then we went into the car. We didn't actually go back to the garage. MR LAX How could you make sure she was still there without going back into the garage? She was right at the back, in the store room part of the garage, how could you make sure without going in, that she was still there? MR TSHIKILA I don't remember saying that we were not going to go inside the garage, because after we finished in the house, I think Mr Litho Snoek went to check the garage. MR LAX You see, now you are saying Snoek went into the garage to check. You said we went to check? We is the two of you, not just him on his own? Either you went back into the garage, or you didn't. It is really quite simple. CHAIRPERSON It is you yourself, you yourself, he is talking about. Not you plural. MR TSHIKILA Between the two of us, one of us did go to the garage. But I am not sure, I don't remember going back to the garage after being inside the garage. MR LAX But then why does it appear in your statement? MR TSHIKILA In which statement? CHAIRPERSON It is in the statement on page 15, on the third last paragraph. When we got the car keys, this is after the fight in the house, and some ammunition, we went back to the woman outside and I tied a cloth over her mouth and I hit her once with a spade at the back of the head and then closed the door of the garage. I read that, that is what the third paragraph says. MR TSHIKILA I don't remember this. I didn't go back and hit her after we found the keys and the ammunition. I don't remember that at all. MR LAX So you can't explain how it appears in your statement in this way? MR TSHIKILA I can't explain this sir. What I can explain is that yes, I did hit her, but the fact that I hit her after getting out of the house, I don't remember doing that at all. MR LAX No fine, thank you Chair. Maybe we should take that adjournment. CHAIRPERSON Yes, I see it is now five past eleven. We will take the tea adjournment at this stage. COMMITTEE ADJOURNS TAMSANCA ARTHUR TSHIKILA (still under oath) CHAIRPERSON Yes, thank you Ms Patel. CROSS-EXAMINATION BY MS PATEL (continued) All right, Mr Tshikila, I just want to refer you to page 67 of the bundle Mr Mbandazayo. I want to refer you to the second last paragraph actually. I don't know, are the Afrikaans Interpreters here, okay great. You say there that after he hit the girl on her head and body, he pushed something against her body. He did that so that she wouldn't scream. The old woman then lay quietly on the ground. It showed that her head and neck was in a position towards the left. MR LAX Sorry Mr Interpreter, she used the word in a slack position towards the left. CHAIRPERSON Sorry before you proceed, just for record purposes, this extract on page 67 is part of the statement Mr Tshikila that you made to, I think it was Captain Jonker. MR TSHIKILA Will you please repeat the question? MS PATEL No, I haven't give you my question yet, I am still reading from the extract okay. And then it says the old woman was weeping quietly. If you look at this extract, you refer to bags firstly. You state that "ou boetie", I would refers to Mr Snoek, you said here that the bags were placed both on her head and her body. What is your comment on this? MR TSHIKILA In the statement of the bags, I do remember that Mr Snoek did put the bags on top of the woman. I assisted him to do so. I wanted to be clear that the reason why I involved myself in this, is also I participated in putting the bags on top of the woman. MS PATEL Can you confirm that the bags were then in fact both on her head and on her body because there was a bit of confusion earlier on whether it was bag or bags or where, which part of the body, so if you can just confirm that for us if possible. MR TSHIKILA What I can remember as this thing happened a long time ago, I do remember there was a bag on top of her chest. That is what I can remember. MS PATEL Just one on her chest that you can recall? You can't remember a bag on her head? MR TSHIKILA No, I don't remember any bag on top of her head. MS PATEL And this was before Mr Snoek went into the house, is that right? MR TSHIKILA Yes, before. He had already - the woman was with me and Mr Snoek had already left. MS PATEL Okay. It appears that when Mr Snoek had gone into the house, that at that stage already, that the old woman was incapacitated from this description, and that she wasn't making a noise, that she was just laying there, crying very quietly and not, you know, what you said to us earlier today was that she was still making a noise and she was moving around and that was the reason that you needed, you were scared and that you needed to hit her, but in terms of what you said here, that is not the condition in which the old woman was? MR TSHIKILA I gave another evidence to Captain Jonker. The reason why I did that, I wanted to satisfy him otherwise the other things that I said to them, I was just trying to please or satisfy the situation at that time. MS PATEL But given the fact that you assaulted her as a result of her still being in a position where she was a threat, where you felt that she posed a threat to you, wouldn't it have been in your favour then to say that you were still trying to subdue her then, and that is why you needed to hit her, rather than state that she was actually laying there quietly? Do you understand what I am trying to say to you Mr Tshikila? MR TSHIKILA Can you please try and explain that to me? MS PATEL Okay, you see you are saying in this statement the reason you made this statement in the way that you did, is that you were trying to please or appease the Policeman. I am putting to you that you hit this woman, and your explanation for that is that she still posed a threat to you and that is why you needed to hit her, to calm her down and get her to keep quiet. Now, it would have been better for you then at that stage to say that she was still in that position, that she was still posing a threat to you, rather than to state as you have here in this statement, the old statement to the Policeman? MR TSHIKILA Can you please repeat your question Ma'am, we didn't get you? CHAIRPERSON The Interpreter, I did notice for some reason, it seemed like something went wrong with your microphone. MS PATEL All right, let's try again. You see, what I am trying to say to you Mr Tshikila is that you are saying in this statement the reason you said that the woman was laying quietly was because you wanted to appease the Policeman to whom you were giving the statement. My question to you is, given that you hit this woman, and your reason for hitting this woman, is that she was still moving around and making a noise and posing a threat to you, you see, that would have been a defence to you to say that she was still moving around. That would have been a good enough reason for you to say look, I hit her because she still posed a threat. Not to state that she didn't pose a threat, that she was actually laying there quietly? That is what I am trying to get at. I would like you to explain that. CHAIRPERSON I think just to add on before you answer, the import of what Ms Patel is putting to you is that the version which you have given to us now, would probably have satisfied Captain Jonker more than what you said actually in your statement. MR TSHIKILA I want to explain about Captain Jonker. Captain Jonker wanted us to agree that we did kill her. The fact that I said she was still or she was moving, I don't think that is what he wanted, but he just wanted us to admit that yes, we killed her. That is why I agreed with Captain Jonker in whatever he was saying because I was scared of their torture and their assault. I then decided to agree with whatever he was saying. I then said it was Snoek, he said that I must say that it was Snoek who was hitting her, because I was still young at that time, so that is why I said it the way I said it here. MR LAX So you weren't trying to minimise his role, you were just following what he told you? MR TSHIKILA First of all sir, as I have already said, I didn't want to tell them exactly what our intention were. The situation was putting me into, as myself, I didn't want them to know our intention. I then decided to satisfy him and please him in whatever he was saying, because I didn't want to tell him exactly what our intentions were. MR LAX Well, you previously said that you told him what you told him, to minimise your role in this event. Now you are saying that because you were afraid of torture and you wanted to just say whatever he wanted you to say. That is two slightly different things. CHAIRPERSON I think, sorry Mr Lax, but there might be a bit of ambiguity because what the witness said was, he said what he said in the statement to satisfy Captain Jonker. Now that satisfy might mean to satisfy him, from a point of view of minimising his role or to satisfy him just to agree with what he is saying. But there is that bit of ambiguity. MR LAX I don't think it is that material, I think we can move on. MS PATEL Okay. The bag that was eventually placed over the deceased's face or head, did you do that or did Mr Snoek do that? MR TSHIKILA The bag that was put on her body, was put by Mr Litho Snoek. MS PATEL And the bag over her face, because she died as a result of suffocation. She didn't die as a result of the injuries that she had sustained, so there was a bag over her face. I want to know who put the bag over her face. MR TSHIKILA According to my knowledge, when I was there with them, I remember that there was a bag on her chest and the other bags around there, I do remember that. MS PATEL I am talking about the bag on her face, not the bags that were laying anywhere else. CHAIRPERSON Sorry Mr Tshikila, before you answer, let me just explain to you. A post mortem examination was conducted on the deceased and the finding of the medical practitioner who conducted the post mortem examination was that the cause of death was suffocation. It wasn't the blows to the head by either the rifle or the spade or anything else, suffocation and the finding of the Court was that suffocation was caused by a big bag that had been placed over the face of the woman which prevented her from breathing and thus causing her death by suffocation. What Ms Patel is asking you is, who put the bag on the face, the bag that caused the death? MR TSHIKILA I don't remember anyone putting a bag on her face, except for the bag that was on her chest as she was moving while she was laying down. Maybe it was that bag that was on her chest that led to covering her face as she was moving around. She was moving her body. MR LAX So you are saying that you didn't see a bag on her face at any time, and you know nothing about the bag on her face? You don't know how it happened that a bag came onto her face? MR TSHIKILA What I remember, I remember a bag that was on her chest as she was moving. Maybe that bag that was on her chest, was the one who was on the face, but I for one, I didn't see anybody putting a bag on her face. CHAIRPERSON Is what you saying then that her movement might have caused the bag to roll from her chest onto her face, by her moving? Not rolled, but moved from her chest onto her face? MR TSHIKILA The bag was on the shoulders, maybe as she was moving, the bag moved up. MS PATEL Are you saying that she was moving around, even after you hit her with the spade on the head? MR TSHIKILA As this bag was on her chest, it was at this time that I was hitting her because she was moving. I hit her because she was moving. DR TSOTSI I think the correct word is wriggling there. Was, when you say moving, do you mean walking up and down, or do you mean wriggling, wriggling her body? MR TSHIKILA She was wriggling. DR TSOTSI And you say it is that wriggling that caused the bag to shift from her chest onto her face? MR TSHIKILA Yes, it might be that. ADV BOSMAN Mr Tshikila, can I just get this clear. I may have it wrong here. I have written down here that you said a few minutes ago I assisted in putting bags on top of the woman. MR TSHIKILA To explain this clearly, I helped him. I carried a bag. I took part in carrying a bag and putting it on her body. As I was not strong enough, I couldn't carry this bag alone. They were heavy, so I tried to help him to put a bag on top of this lady. ADV BOSMAN But what I've got, is that you say, you said, I assisted in putting bags which means more than one, on top of her body. MR TSHIKILA Not bags, but a bag. ADV BOSMAN Thank you. MR LAX You see, can I just come in there with something? Mr Tshikila, I am very puzzled here. You told us previously in your evidence that after you hit her on the head, she was quiet, she didn't move much. How could she after that, have moved so that the bag would then roll onto her face? MR TSHIKILA I don't know whether you understand me clearly. I said that because she was crying and screaming, she kept quiet after I hit her. I don't know whether you know there is a difference between crying and wriggling. MR LAX So you are saying she carried on moving after you hit her on the head with a spade? MR TSHIKILA She tried to keep quiet, but she was not unconscious. MR LAX No, no, we are talking about moving, we are not talking about quiet. We are talking about movement, not noise. You yourself have now pointed out to me the difference between noise and movement. We are talking about movement, not quietness. Do you understand? My question remains the same. Are you telling us that she was moving after you hit her over the head with a spade? MR TSHIKILA Yes. MS PATEL Just to follow onto that. Did I hear you correctly, did you say that the bag was heavy and that you needed to help Mr Snoek actually carry that bag? You did say that, didn't you? MR TSHIKILA While I was trying to explain this, I said the bag was heavy for me to carry it alone. That is why I helped him to carry this bag. MS PATEL So it was a very heavy bag? MR TSHIKILA It was not that heavy, but as I have already said before, there were bags in this garage, so we had to take a bag from the other bags. MS PATEL Now, come now, come now Mr Tshikila, let's not play around. This bag was so heavy that it needed two of you to carry it. In fact Mr Snoek yesterday also said quite clearly do you think I am strong enough to carry a bag like that? He said I am not strong enough to carry a big bag, and now you want us to believe that a bag that requires two of you to carry it, is placed on top of an old woman who has already been severely assaulted, then hit by you with a spade on the head, does still have enough energy and strength to move around, so that that bag then per chance finds its way to her face and she then suffocates and dies? MR LAX Just for the record, if one looks at page 30 of the papers, you will see that the Judge made a finding that the bag was a three quarter full 50 kg bag of mealies. Three quarter full, 50 kg bag of mealies, so that is a pretty heavy bag. Do you dispute that that was the bag? MR TSHIKILA I am not sure about 50 kg, but I do remember that it had mealies in, but I do not know about the 50 kg. CHAIRPERSON It was I think on this description, it would be approximately 38 kg, because it was three quarters of 50 and a quarter of 50 is twelve and half, so it would be 37,5 kg. MR TSHIKILA I wouldn't disagree with you, but I can't say it was 50 kg or what, but it was not that heavy. MR LAX The point is that two of you could move a 37,5 kg bag, but for an old lady who has been hit over the head a few times to move it, that is a very different story, especially if it is laying on her chest as you have told us. Do you see the point that has been made? MR TSHIKILA What I would like to explain is that I tried to help Mr Snoek carrying a bag from where it was, with the intention of putting it on top of this lady. CHAIRPERSON I think what you have put to the witness, Ms Patel could also adequately be dealt with in argument. The witness has clearly stated what he saw there. MS PATEL Thank you Honourable Chairperson. I will move on. After you left the old woman in the garage, you responded to a call from Mr Snoek and so you went into the house to help him. Did you take the firearm with you or did he have it with him? MR TSHIKILA The rifle was not with me. It was with Mr Snoek. MS PATEL Did he take the rifle into the house with him? MR TSHIKILA As he left me there and the rifle was not with me, surely he took it with him. MS PATEL Okay, and when you got into the house, and there was a tussle between or Mr Snoek and Mr Sharp were already in a fight, do you know where that rifle was at that stage? MR TSHIKILA When I entered the house, I found out that the rifle was laying down in the bullets were also down there. MS PATEL Okay, so did you pick up this rifle and then hit Mr Sharp with it? MR TSHIKILA Please repeat your question Ma'am. MS PATEL I asked if you picked up the rifle and then hit Mr Sharp with the rifle? MR TSHIKILA No, I didn't attack Mr Sharp with the rifle. MS PATEL Did anybody use the rifle during that fight with Mr Sharp and yourself and Mr Snoek? MR TSHIKILA I wouldn't know because I was in the garage when he went inside, but when I was there, the rifle was laying down and they were fighting. MS PATEL Okay, and nobody used the rifle whilst you were there? MR TSHIKILA Whilst I was there? MS PATEL Yes? CHAIRPERSON When you were there present where the struggle was taking place, inside the house? MR TSHIKILA I don't remember clearly what exactly happened because this happened a long time ago. MS PATEL Can you say that the rifle that was in the house, or maybe I should ask, where was the rifle laying in relation to where the fight was going on between Mr Snoek and Mr Sharp? MR TSHIKILA What I still remember, I remember the bullets who were scattered around and there was a gun next to these bullets, but I am not sure where exactly it was. When I entered the door, it was laying down. I am not sure where. MS PATEL Did you enter by the kitchen? MR TSHIKILA Yes. MS PATEL Okay. And it was a rifle that was laying there, can you say? Can you tell the difference, was it a rifle or a pistol or what? MR TSHIKILA I can't tell the difference between a rifle and a pistol. I just saw the gun that we took there. CHAIRPERSON Mr Tshikila, a rifle has got a long barrel and a pistol has a short barrel. A pistol is a hand gun, and a rifle is a gun that you shoot by putting the but in your shoulder, and it's got a long, a rifle is like that, a pistol is like that? MR TSHIKILA It was a rifle then. MR LAX Was it the same rifle that you took from the first house? MR TSHIKILA Yes. MS PATEL So then what Mr Snoek told us yesterday, is not correct? He said he didn't enter the kitchen with the rifle, he said but if he did, he would have killed Mr Sharp, and that Mr Sharp was just very lucky. CHAIRPERSON I think what he said Ms Patel was that Mr Sharp was very lucky because the rifle wasn't working. He said it wasn't, it had problems and it wasn't working. He actually had the rifle, but it wasn't working and that was why Mr Sharp was lucky, because if it was working, he would have shot him. MR LAX In fact he said the bullets wouldn't go in and that was his problem. MS PATEL Yes, no, that is correct, I am sorry. My recollection is incorrect. The reason I ask you about the rifle is because in your statement on page 15 to Mr Keiser here, you say in the third last paragraph, oh, no sorry, sorry, it is incorrect. It is hitting the woman and not hitting Mr Sharp. No, but you say as well that it is the fourth last, not the third last, the fourth last paragraph, you say that I then heard Willy calling me. I took the rifle and went into the house where I fount Willy and the farmer fighting and I tried to disarm the farm owner. I hit him with the butt of the rifle and then tied his legs together, and his arms, and left him in the bathroom while we searched for the car keys. Do you want to explain it, do you want to retract it? What is the position? MR TSHIKILA On what is written here, the fact that I took a rifle and then I went to Mr Snoek inside the house, that is not true. When I got there, I had no rifle with me. I am sure that I had no rifle with me. I did hear him calling me while he was inside the house. I went to him, but I did not have a rifle with me. MS PATEL Did you hit him with the rifle though, did you hit him with the butt of the rifle or did you not do that either? MR TSHIKILA I don't remember hitting Mr Sharp with the butt of a rifle. MS PATEL Okay. MR LAX Sorry, you don't remember doing it, it is not to say you didn't do it? You just don't remember whether you did it or not? MR TSHIKILA I didn't do it. I didn't hit Mr Sharp with a rifle. MS PATEL Okay. After you had tied up Mr Sharp ... MR LAX Before you move onto that, can you explain why this version stands here in your statement, because again, this is a detailed description of something, which is completely different to what your colleague has said and what your other evidence has been? Please give us an explanation. MR TSHIKILA Can you please repeat your question sir? MR LAX My question is, please explain why this is so different in this statement at page 15, as you have been pointed out and read to you, from what you want us to believe now is in your evidence? MR TSHIKILA First of all, it is because I have previously said that the things that are written here, are things that I didn't say. I don't know how this happened, how it came to be written like this, because I don't remember saying that. MR LAX Are you saying that the Truth Commission Investigator made that story up, what appears there and wrote it down for you? MR TSHIKILA As I have already said before, when he came to me, he said he came to confirm my co-accused's statement and then to compare my evidence with that of Mr Snoek. Maybe he wrote this on his own, because he was from my co-accused at that time. MR LAX But your co-accused hasn't said any such thing, how could he write that from your co-accused? MR TSHIKILA Maybe you can ask him that question, because he is here to answer for that. I don't know anything about what is written here. MR LAX But you see, either he made it up himself or you told him that or your co-accused told him that. The possibilities are your co-accused didn't tell him such a thing because we have seen his statement, it doesn't say that. So either you told it to him, or he made it up? MR TSHIKILA I don't remember at all saying this. MR LAX Does that mean that you are not sure whether you said it, or that you never said it, and that you might have said it, but you can't remember saying it, or you never said it. Do you deny that you said it? MR TSHIKILA I am sure sir, but because this happened a long time ago, I don't remember at all. MR LAX Well, then you can't deny it if you don't remember? MR TSHIKILA This, what is written here, is not the truth sir. That is what I can say. MS PATEL Okay, so it is no longer a question of not remembering, it is you are denying that it is what you said? It has nothing to do with the fact that this happened a long time ago? It is just very simply that you never said this? MR TSHIKILA When I was trying to explain, I said I don't remember saying something like this and I have no knowledge of such. So, what I know is that he said he was from my co-accused, so he came to compare our evidence. MS PATEL All right, fine, we will leave that there. Just to move on, the decision to take the goods from the house, who decided what you should take? MR TSHIKILA As I knew that things that were needed for helping the people who were coming from outside, or people who did not have places to sleep as we were living under difficult conditions, I did this following the instructions of Mr Litho Snoek. MS PATEL So, he made this decision as to what was needed and you only took what he told you to take? MR TSHIKILA He didn't tell me what to take. He didn't say take this and that, I knew what was needed. MS PATEL But he said it was okay for you to take whatever you took? MR TSHIKILA He didn't say whatever I can take. MS PATEL I just want to know how you decided what you were going to take, it is very simple. The thing is you took things for a specific purpose. I want to know how you decided what you needed to take. MR TSHIKILA As I have already explained before, as a person who was used in organising things that could be donated for people coming from outside or people who didn't have places to sleep, I knew which things were needed. There was no need for me to get instructions so that we get these things that were needed to help the people. MS PATEL I don't want to go through the full list of what was taken, but just to pick up one or two things, and perhaps you can explain why these things were necessary. CHAIRPERSON It is on page 39 of the documents. MS PATEL I guess one understands the food, but the radio. Where is the need for the radio, the radio is item number 5. Then there is the Whisky at item number 12, there is clothes and there is sleeping goods as well, which I guess one understands. The binoculars? The keyrings, there is a watch. Surely these aren't necessities? What do your visitors need with these items? Bread cutter? MR TSHIKILA To explain about the bottle of Whisky, I think as we took these things as parcels. We found some of these things in one place, they were a parcel, we didn't know what was inside that parcel. I don't remember taking the Whisky or alcohol, because those things were not a necessity. CHAIRPERSON When you say in a parcel, were it in a box or a bag or something like that, and you just took the box? MR TSHIKILA Some of these things like the radio, binoculars and such things were in a box. It appeared as if they just got there, and then we took the whole box. MS PATEL Are you saying then that you didn't know what you were taking? You just took boxes? MR TSHIKILA As I am saying, in those boxes there were these items. I just saw on top of the box that there were binoculars that we could use in observing the situation. I just decided to take them and put them in the car. The fact that there was alcohol underneath, but I made sure that on top there were things that we needed, that we were going to use. MR LAX But you have just said not two seconds ago, that the binoculars and the radio were inside a box, and you didn't know they were there. You only realised afterwards. MR TSHIKILA If you understand me sir, I am saying that according to what I saw in the box, there were binoculars and the radio's on top. I then saw them as a necessity, I didn't see the bottles of Whisky or alcohol underneath because they were not needed. MS PATEL Okay, so then what was the plan, where would you have taken the goods to, who would you have handed it over to? MR TSHIKILA First of all, as there was a place where we held our meetings when we gathered to discuss certain issues, I would take these goods to wherever we were going to have that meeting. MS PATEL Did you not need to report to Mr Nkonki first, given that he was the person who authorised the operation? Did you not have to report back to him and say look, this is what we took, and then move off? MR TSHIKILA About Mr Nkonki, it was necessary if we came back from the operation, to tell him what happened and what we took but this all happened in our gathering place, where we held our meetings. MS PATEL Are you saying Mr Nkonki was a part of your particular constituency as well? That you knew Mr Nkonki personally, or as a member of the organisation? MR TSHIKILA As I have already said before, what we were told by the organisation was that people like Mr Nkonki, I was aware that they were people that were dealing with security and such things, but what would happen is, according to what he said to us as the youth, he told us that gentlemen, this is the time for the Africans to defend themselves. So I took that as an instruction from him. He didn't come to me personally that I should do this and that. MS PATEL Okay, then just to go back, there is something I forgot to raise with you. After you finished at the first farmhouse, who directed you to the second farmhouse? MR TSHIKILA If I still remember well, Mr Litho Snoek was the one who said we must go to the second farmhouse. MS PATEL My question is how did you know how to get to the second farmhouse? MR TSHIKILA Please repeat your question Ma'am. CHAIRPERSON The question was how did you know, when you were at the first house and now Mr Snoek said, okay, now we must go to the second farmhouse, how did you know how to get to the second farmhouse from the first one, which way to go, where it was? MR TSHIKILA First of all, this farm was not far from the first farm, it was not that far from the first farm. He just said we must go to that farm, the next one. CHAIRPERSON Can you see the one, if you are at the one house, can you see the other house? MR TSHIKILA Yes, you could see it because it was not that far. So you could see it. MS PATEL Are you absolutely sure about this? MR TSHIKILA Yes, I am sure. CHAIRPERSON Is there something on the record, I think, I don't know how accurate it is, but I read it somewhere in the record saying that the houses are about 300 metres apart? I couldn't point it to you now, but I can recall seeing that. I might be wrong though? MR LAX There was such a thing, but yesterday in his evidence the co-applicant said something quite different. He said it took a long time to get from the one house to the other house. As part of explaining why it took them so long between midnight and early morning. Do you remember your co-applicant said that yesterday, the houses were far apart and it took a long time to walk from the one place to the other place. There were so many things to do and that is why it took so long. Explain what you said in the light of that. MR TSHIKILA What my co-applicant said yesterday about whether this farmhouse was far from the other one, what I remember is that if you are in this farmhouse, you could see the fence leading to the second farmhouse. According to what I observed, it was not that far. MR LAX But you have just said you could see the house, now you are saying you could just see the fence. Why do you keep changing your story to try and fit what your co-applicant says? MR TSHIKILA I was trying to explain the distance of the farm, not the house exactly. Because if you are in that first house, you could see the fence of the second farm. MR LAX So you couldn't actually see the farmhouse? MR TSHIKILA There was a house there. MR LAX Well, could you see it, yes or no? MR TSHIKILA When you were in the first farm, you could see this house that I am referring to that was in the second farm. MR LAX Thank you. CHAIRPERSON Thank you Ms Patel. MS PATEL I am almost sure that I have covered this, but Mr Snoek didn't at any stage say that we need to go to Transkei or that he needed to go to Transkei, did he? MR TSHIKILA Whether he told me or not, I can't remember now because that happened a long time ago. Eight years ago is a long time, so I can't remember. MS PATEL Okay. You knew Mr Snoek by his birth name, is that right during that time? MR TSHIKILA His birth name? MS PATEL Yes, he didn't, he didn't ... CHAIRPERSON By what did you know him, did you know him as Willy or Litho Snoek? MR TSHIKILA I knew him as Litho. CHAIRPERSON Just as Litho or Litho Snoek? MR TSHIKILA He told me that he is Snoek, but I didn't think that much. CHAIRPERSON Did you know him by any other name? MR LAX The name that appears in your confession, is the name Ngingenya? MR TSHIKILA Is that his name? Whose name is this, is this my name or his name? MR LAX Well, is that your name? Is that your name? MR TSHIKILA That is my name. CHAIRPERSON I think in the statement that was referred to earlier, you referred to somebody as Boetie. Do you know the name Boetie? MR TSHIKILA No, I don't remember that name. MR MBANDAZAYO Chairperson, I think if I may come in here, I think it is the interpretation to Afrikaans Boetie, which is in Xhosa ubhuti. CHAIRPERSON The friendly, term of endearment or when you are referring to another person. MR MBANDAZAYO As a brother to him, it means senior to him. CHAIRPERSON So it is more as a ... MR MBANDAZAYO It is a prefix to that, getting like father, it is like a father to me. He is an old person. CHAIRPERSON Yes, although it comes in the statement as a name, with a capital B. Yes, I understand that Mr Mbandazayo. MR LAX Also in a sense like you would call someone Umpho, if you were addressing them. MR MBANDAZAYO Yes Chairperson. MR LAX Thank you. MS PATEL Are you also known by the name Ngingenya? MR TSHIKILA That is my nickname. MS PATEL Okay. Finally, just to round up, just one or two aspects. Did you think that it was necessary to use the extent of the force that you did on the old lady? MR TSHIKILA If you remember, because I told him that if she could listen to me and obey me, I wouldn't have done that. I did this because of the way she reacted. That is what made me do that. Whether it was necessary or not, it was necessary because of the situation that I was under at that time. I can say it was necessary. MS PATEL And then Mr Tshikila, I accept that you were a very very young person at the time that this happened. In fact, some people would even call you a child at the time. Mr Snoek was in fact the older person and that you followed him in this incident. You didn't plan it, he told you where you were going to, what you were going to get, he said let's go to the next farm. You followed him. He assaulted the old lady, you helped him, you were afraid after he left you, you left the woman and whatever happened. To a large extent, that you didn't have a constructive or a final say in your participation in these incidents. Is that fair to say? MR TSHIKILA Please repeat your question Ma'am. CHAIRPERSON I think the trust of the question Mr Tshikila is, that taking into account the fact that at the time that this incident occurred, you were still very young, it was just before your 14th birthday, what Ms Patel is asking you is, would it be fair to conclude that Mr Snoek played the dominant role in this incident. You merely followed Mr Snoek, would you agree with that? MR TSHIKILA I wouldn't agree with that, because I was the one that approached Mr Snoek about the weapons that we needed because of the situation we were living under. I was not safe, I was not secure, even though I was a child, I was not treated as a child. So I don't think you can put it that way. MS PATEL All right, thank you Mr Tshikila, I have no further questions for you. NO FURTHER QUESTIONS BY MS PATEL CHAIRPERSON Thank you Mr Patel. Dr Tsotsi, do you have any questions? DR TSOTSI Just one question as a matter of interest. When you got in the first house, you entered the first house, it was dark inside, wasn't it? It was dark and you switched on the light? MR TSHIKILA I cannot clearly remember whether the light was on or off, but it seems as if the light was on. DR TSOTSI The first house, which was unoccupied according to you? Were the lights on when you arrived there? MR TSHIKILA I am just thinking. I think the lights were on. DR TSOTSI You think the lights were on, so there was no trouble finding the switch, I think you might have some problem finding a switch and I wanted to know whether Snoek knew where the switch of the house was, to switch off the electricity in the house. It doesn't matter, it is all right then. CHAIRPERSON Thank you. Mr Lax, do you have any questions? MR LAX Just a few Chairperson. If you look at page 14, you say there on the third paragraph, that Willy used to tell me he was getting military training in the Transkei, where he said he had established a base for himself. He denied this. He denied saying such a thing yesterday. Why did you say that in this statement? MR TSHIKILA I do remember Willy explaining to me that he usually goes to Transkei and comes back. I do remember about this. MR LAX That is paragraph two, I am talking about paragraph three. I am talking about him establishing a base for himself in the Transkei. MR TSHIKILA Maybe I have just created this myself. What I remember is that he usually goes to Transkei for training and comes back, that is what I clearly know. Then the other one, I am not that much clear about it. MR LAX Well, you see, just slow down there, okay. How often did he go to the Transkei for training according to your understanding? MR TSHIKILA I know nothing concerning the military training or bases. As far as I know, he got some training. MR LAX Well, you have just said that he often went to the Transkei for training. I am saying how often did he go to the Transkei for training? Those are your words, I want to know how often he went to the Transkei for training? MR TSHIKILA As far as I know, he told me that he is from the Transkei, not that he was going in and out of Transkei frequently. MR LAX Well, your evidence has just been that he frequently went to the Transkei for training? I am asking you how often did he go there for training? Have you just made this up now, as well? MR TSHIKILA As I know that he was leaving and come back, I just assumed that he was doing that, he goes there and comes back. MR LAX So, it had nothing to do with him getting training? MR TSHIKILA Which one? Will you please repeat your question? MR LAX I am saying his trips to the Transkei had nothing to do with him receiving training? MR TSHIKILA To me, I assumed that it had something to do with training, because he told me once that he is moving up and down between Transkei and Uitenhage. MR LAX If you go to page 15, you have written there in the top paragraph, Willy told me there were two farmhouses in that farm, one of which the farm owner and his girlfriend were sleeping in, while the other one we were going to, would have no occupants. MR TSHIKILA What I can remember is this, he told me that he got the information from an ex-employee, but I cannot remember whether he told me about two farms, whereby the other one is sleeping with the wife or girlfriend. That I cannot remember. MR LAX Well, it is written here in your statement? Where would it have come from, if you didn't say it? MR TSHIKILA As I have said before, there are things that I denied in this statement, which I don't know how did they come across to be on this paper. As I have told you before about that person who visited me, the situation is still as that one. MR LAX So, Mr Snoek didn't say that to you? MR TSHIKILA I cannot remember him telling me this. MR LAX In paragraph three on that page, you say that Willy said that we must go to the other farmhouse to get the 4 x 4 belonging to the farm owner. So he knew that the farm owner had a 4 x 4, and that that would be at the other house? Is that right? MR TSHIKILA I have explained this 4 x 4 thing. I was told about it. I only knew about it when I saw it, now I am just saying it because I knew it was a 4 x 4. MR LAX The point is though, did Willy tell you that you must go to the other farmhouse to get a vehicle, if it wasn't a 4 x 4, some other kind of vehicle? Did he say that or didn't he? MR TSHIKILA He told me that we must go to another farm to get a car. He told me that. MR LAX So he knew there would be a car at the other place? MR TSHIKILA Maybe he knew, because he said we must go there. MR LAX Now, you told us earlier that - well, let's just go over this again, let's just be careful on how you say this thing, when the deceased came into the garage or came to the door of the garage, what exactly happened? MR TSHIKILA She entered the garage and then she came across with Litho Snoek. Then he assaulted her. MR LAX He just, once she saw him and he saw her, he just assaulted her? MR TSHIKILA No, he tried to wait for her to be inside the garage and then he tried to say something to her, to ask her to keep quiet, get seated, but she screamed instead. MR LAX Well, you see, on page 15 in the fourth paragraph, the last sentence reads like this: in the morning, it was however his girlfriend who came out and Willy grabbed her from behind and told her we did not want to harm her, but we only needed the keys for the van. On both your version, and his version, he spoke to her before he did anything, but in this statement he grabbed her first, and then spoke to her. Please explain why that version now appears in your statement and tell us which is the true version? MR TSHIKILA Will you please repeat your question for me? CHAIRPERSON The question Mr Tshikila is, you have said in giving evidence today, that before Mr Snoek did anything to the old lady, he waited for her to come to the garage and he asked her to be quiet, and to co-operate, and it was only after she started screaming, that he assaulted her. Mr Snoek gave much the same sort of version. But in the statement, in the fourth paragraph of page 15, you say or it is recorded in the statement that you say that the old lady came and Mr Snoek grabbed her from behind. So the first thing he did was to grab her, before he spoke to her, which is different to what has been said in this hearing. Mr Lax is asking, can you explain this difference and which is in fact the correct version, that is the question he asked you. MR TSHIKILA What I can explain is Mr Snoek told her to obey and to be quiet. He won't do any harm to her, he only needs what he needs, and then she screamed and then he started to attack her. What is, this grabbing and the other thing, no, I don't know. CHAIRPERSON Are you saying this paragraph four about being grabbed from behind, is wrong? You don't know how that came about to be in the statement? Did you tell that to the person who took the statement? The last sentence of paragraph four on page 15? In the morning, I will read that, in the morning it was however, his girlfriend who came out and Willy grabbed her from behind and told her that we did not want to harm her, but only needed the van's keys. If you will just bear with me, I want to just check the hand-written statement which has no typographical errors or anything like that, in it, just to check what you actually said because we have two different statements, which are slightly different. I will make a copy of this available Mr Mbandazayo for your purposes if you require it later. But I will read from it directly, if you will just give me one moment please. Perhaps Chairperson, some other questions could be asked in the interim, and I will just check this. CHAIRPERSON Yes, while Mr Lax is looking, Adv Bosman, do you have any questions to ask Mr Tshikila? ADV BOSMAN Thank you Chairperson. Mr Tshikila, at the time that you met Mr Snoek, you seemed to have been only 12 years old, is that correct? MR TSHIKILA I was still very young, the first time I met him. ADV BOSMAN Yes, you say you met him in 1988, that would have made you 12? MR TSHIKILA Yes. ADV BOSMAN And you say you then became friends later on. I find it a bit peculiar that a young boy of your age should befriend a man that is so much older. How did this friendship evolve? MR TSHIKILA I explained before that my friendship with him, he was in the offices of the organisation, so I was dealing with him time and again because I was still young and interested about politics. ADV BOSMAN At what age did you become involved in politics? MR TSHIKILA Maybe I was at the age of 11, I was already involved in politics at school. ADV BOSMAN You asked Mr Snoek to provide you with weapons, according to the statement on page 14. I asked him to provide me and my comrades with firearms. Why was it necessary for you to go along with him, only you and not your comrades? MR TSHIKILA I was motivated by the situation, that is why I went further and asked Mr Snoek myself. ADV BOSMAN I don't understand now. Did you say to Mr Snoek you wanted to go with him, or did Mr Snoek ask you to go with him? MR TSHIKILA Maybe, you don't understand me. The only person who wanted the weapons, was me. Then he came back with the report saying that I know a place where we can get the weapons. As a person who requested the weapons, I had to be with him when he was going for this operation or mission. ADV BOSMAN So you said to him that you will go with him, you offered to go with him? MR TSHIKILA As we didn't discuss on how to go about doing all of this, we just got into the transport on that day, and we went off. ADV BOSMAN What did you envisage would you do, what role did you see for yourself if you didn't discuss anything? MR TSHIKILA I knew that there was going to be a very big role that I am going to play because I wanted to be part and parcel because of the conflict that was happening in the townships, it involves young and old. ADV BOSMAN No, I am not talking about that role, I am talking about the role at the farms. What role did you see for yourself ad the farm, because Mr Snoek didn't tell you what he wanted. MR TSHIKILA I saw it that I could do anything that he asked me to do in order to assist him, to show him that I am interested in what I requested from him. ADV BOSMAN Just one more question, when Mr Snoek spoke to Mr Sharp, how did he address him? What name did he call him by? MR TSHIKILA I don't know because I didn't know that Mr Snoek had any communication or dealings with Mr Sharp. ADV BOSMAN But then surely he must have said something to him? He should have addressed him in some way? MR TSHIKILA Will you please repeat your question. ADV BOSMAN When you talk to a person, saying you must obey me, did he say hey you, did he say old man, or did he say "oubaas", or did he say Willy or Flippie or what did he call him? MR TSHIKILA I was not with him when he was talking to Mr Sharp. On how he addressed Mr Sharp or what, I don't know, because I was not in the house. ADV BOSMAN But at the time of the struggle, wasn't he sort of talking to him and saying keep quiet, I am not going to hurt you, just co-operate, where are the keys? Didn't he say anything while you were there? MR TSHIKILA I cannot remember him calling by his name, he just asked where are the keys. I can't remember any name being involved in that. CHAIRPERSON Mr Lax? MR LAX I will be very quick Chairperson. At the time that the old lady came into the barn, into the garage and Mr Snoek got hold of her, you said he asked her some questions, and you are not sure what her answer was, is that right? MR TSHIKILA Ask questions, except that he gave her instructions. All I know is that he gave her instructions to be quiet. MR LAX In your earlier evidence this morning, you said that he asked her some questions as well, but you don't remember what her answers were. MR TSHIKILA He requested her to sit down. He wanted to know where are the keys, the car keys. That is one of the questions he asked her. MR LAX Didn't he ask her who was in the house? MR TSHIKILA I cannot remember whether he asked her or not. I do remember that he gave her instructions to sit down. MR LAX Thank you Chairperson. CHAIRPERSON Thank you. Mr Mbandazayo, do you have any questions arising? MR MBANDAZAYO None Mr Chairperson. NO RE-EXAMINATION BY MR MBANDAZAYO CHAIRPERSON Thank you. Ms Patel? MS PATEL No, thank you Honourable Chairperson. NO FURTHER QUESTIONS BY MS PATEL CHAIRPERSON Thank you Mr Tshikila, that concludes your evidence. WITNESS EXCUSED . CHAIRPERSON You may stand down now, and I see that it is just about one o'clock, so I take it this will be then a convenient time to take the lunch adjournment. We will now adjourn for lunch, thank you. COMMITTEE ADJOURNS ON RESUMPTION CHAIRPERSON Thank you. Mr Mbandazayo? MR MBANDAZAYO Thank you Mr Chairperson. Mr Chairperson, I've got only one witness more to call and the name is Mandla Nkonki. MANDLA NKONKI (sworn states) CHAIRPERSON Thank you Mr Nkonki. Mr Mbandazayo? EXAMINATION BY MR MBANDAZAYO Thank you Mr Chairperson. Mr Nkonki, can you tell the Committee who you are, what position are you presently holding in the PAC structures? MR NKONKI My name is Mandla Nelson Nkonki, residing at 23 Mancapa Street, Uitenhage. I am presently the PAC regional organiser in the Eastern Cape Province. MR MBANDAZAYO Mr Nkonki, you are here, you have been called, the applicants have told the Committee that especially the first applicant, Willy Litho Snoek, that he was given an order by yourself to go and get firearms in the farm of Mr Sharp. What I want you to tell the Committee, what was your position then, in 1990, when you gave this order, if you did give this order? MR NKONKI Well, I did give the order and I gave it in my capacity as a regional political commissar of APLA operatives in the Eastern Cape Province. MR MBANDAZAYO Now, can you tell the Committee, what kind of order did you give to Mr Snoek? MR NKONKI Well, after I was approached by Mr Snoek, with the question that they have an information of firearms somewhere in a farm, I thoroughly considered the position they were bringing to me, in fact it was in fact my duty to ponder over whatever was brought forward to me. I then came to a conclusion that honestly we were in dire need of firearms and I therefore gave the order that comrades, I am therefore giving you the order to go and repossess the firearms from the farm. MR MBANDAZAYO Mr Nkonki, you have heard that they did not only repossess firearms, but they also assaulted and as a result, Mrs Sharp, one woman who was the owner of the farm, the woman was killed, and also that they took clothing and also a motor vehicle in the farm. Was it part of the order? MR NKONKI I want to put it on record that APLA was a guerrilla army to start with. Now as guerrillas we are also give a leeway of using our initiative and flexibility in whatever operations we take. Therefore that would mean, the order I had given of repossessing the firearms, would also give them as well, a position to take initiatives in whatever situation they find themselves in. Therefore the question or the principle of flexibility and initiative, it is indeed a standing order for all APLA operatives. Whatever they had taken there, they had used an initiative to take that for the good and the use of APLA. MR MBANDAZAYO Mr Nkonki, do you know what happened during this incident? Was there any report given to you after they had completed the mission? MR NKONKI I am very much sorry that I could not get the report because when I had given the order, I was also on my way out for briefings in Zimbabwe. When I came back, my comrades were already arrested, so I could not get the actual happenings in the whole process. MR MBANDAZAYO Did you report this matter to the higher structure of APLA, are they aware that there is something like this that did happen? MR NKONKI Yes, I reported this personally to comrade Leklapa Mpahlele as he was then our National Chief of Operations. CHAIRPERSON At what stage did you report to Mr Mpahlele Mr Nkonki? MR NKONKI Immediately, when I came back from Zimbabwe and heard of their arrest. MR MBANDAZAYO Mr Nkonki, did you know before this operation, Mr Snoek and Tshikila personally? MR NKONKI I know them as my comrades in the Uitenhage area. MR MBANDAZAYO Did you also know that Mr Snoek had some previous brush with the law? MR NKONKI Well, I did know that, that he was sort of involved in some minor offences. MR MBANDAZAYO Can you tell the Committee was it a policy of APLA to recruit people, though you know that they had some record, even if it was not minor? MR NKONKI It was indeed our policy at a later stage, more especially during the 1990's, because that period were regarded as a People's War. It was our policy as APLA to recruit whoever had a potential to carry over our duties. Specifically people like Snoek, we had used them for specific reasons, because of the potential they have. Therefore APLA had a programme of recruiting whoever and especially those we have identified as people who had potential to carry over our duties, without any hesitation. MR MBANDAZAYO Would you also in your recruitment, recruit people who are car thieves, who are regarded as car thieves? MR NKONKI Those we have liked the most. MR LAX Just repeat your answer, I didn't hear you very clearly. MR NKONKI Those we have liked the most. MR MBANDAZAYO Can you tell the Committee the reason why you liked the most those? MR NKONKI We liked those because they were ones who would help us in getting cars, so that we may pursue or rather, we may be in the position to carry over our operations in whatever manner we wanted to. As a result of that, some of the cars that we would get, we would use them even for our comrades outside the borders of South Africa. We appreciated their role they have played in the liberation struggle, therefore. MR MBANDAZAYO My last question Mr Nkonki. I know you have answered it, is it your evidence that what happened in Mr Sharp's farm, was authorised by yourself and it was carried out for the purposes of APLA? MR NKONKI As a proof of that, I would rather not want to seem to be making a mockery of this hearing here. I would even take their hands, to show that I appreciate what they had done. MR MBANDAZAYO Thank you Mr Chairman. MR NKONKI Thank you. NO FURTHER QUESTIONS BY MR MBANDAZAYO CHAIRPERSON Ms Patel, do you have any questions to ask the witness? CROSS-EXAMINATION BY MS PATEL Yes, thank you Honourable Chairperson. Mr Nkonki, are you saying that it was an understanding amongst the operatives generally that even though they may have been given an instruction to carry out something specific that they, whilst on their operation, were entitled to use their own initiative in order to further the ends of the operation? MR NKONKI Most definitely. MS PATEL Were there any limitations placed on what furthering the aims of the organisation would mean, or was that explained to them? MR NKONKI There weren't limitations. Whatever that was good for the party and for APLA in particular, that we had appreciated. As long as one would come back and report as our 15 points of attention would demand of them to do. MS PATEL Do you know whether Mr Snoek himself was trained in the 15 points of attention, whether he was aware of it? MR NKONKI Well, in that score I want to place it on record that as from the 1990's, leading to 1993 when we stopped fighting, it was rather not easy for us to train them in the 15 points of attention, for one simple reason, because we had already engaged in the People's War. That period would not demand us to get into more details of military training. What we trained our people during that period, are only a few things, for them to be able to carry over operations, not the finer details of military training. CHAIRPERSON If the training took place during the 1980's, the mid 1980's? MR NKONKI If then it had taken place during that period, most definitely one would have been in the position to know the 15 points of attention. MS PATEL Okay, can you explain during this period that this incident had taken place, whether PAC members were ever told that they were entitled to repossess goods for the purposes of serving the needs of what was termed visitors that would come to the area? Can you confirm that? MR NKONKI Please I want us to make a distinction here between PAC and APLA, because these are APLA operatives not PAC operatives, APLA operatives. Any APLA operative had a mandate to use his flexibility and initiative, in whatever they had repossessed from a particular operation. Once that was surrendered to the Commander in charge, that particular Commander would then use it for the betterment of APLA. Be that of providing the visitors or whatever other means that were available for APLA. CHAIRPERSON I think in this matter Mr Nkonki, certainly in so far as the second applicant is concerned, Mr Tshikila, from his evidence he stated that he was very young at the time. MR NKONKI Yes. CHAIRPERSON He was just, it was just short of his 14th birthday, so he was 13 years old and he didn't say he was a member of APLA, he said he was a member of the student organisation and that he now considers himself to be a member of the PAC, but never a member of APLA. MR NKONKI Yes, okay. CHAIRPERSON And he made mention about the organisation, and I think when he was talking, he was talking about the PAC in the Uitenhage area, rather than a particular APLA Unit or whatever, and visitors and goods needed for visitors. MR NKONKI Okay, I want to clarify one thing on that score. We even had a slogan for that, that PASO by day and APLA by night. Mr Tshikila was not very far therefore from APLA by the virtue of being a PASO member, he was at night an APLA operative. CHAIRPERSON Yes, in the sense of, well, he never received military training or anything like that. MR NKONKI No, no. MR LAX I might add, it is not said anywhere in his evidence, that he regarded himself as an APLA member, in fact, quite the opposite. The distinction between him and Mr Snoek was made in his evidence. I don't think you should try and construe that he was an APLA member, you would be going against what he has already said anyway. MR NKONKI Okay, I am not intending to do that - as I have indicated here, that we even had a slogan to that effect. MS PATEL Was there any policy or directive in terms of the use of force on an operation? MR NKONKI Ma'am, as I already indicated that a guerrilla or an operative had a leeway of using his initiative and flexibility. Use of force would only be demanded based on the conditions prevailing in a particular area and situation. MS PATEL During report backs, just generally, were APLA cadres ever disciplined for exceeding the bounds of reasonableness in terms of using force on an operation? MR NKONKI If that had come to our ears or understanding, definitely we would do that. MS PATEL Okay. You stated in your evidence in chief that Mr Snoek was specifically, was used for specific reasons because of the potential he had to carry out the duties. Can you perhaps just clarify for us what potential did you see in Mr Snoek? MR NKONKI There are so many of them. Number one, as a person that I know, he had a potential of not being afraid of going forward, when doing things. He was rather a man independent in doing his businesses. So that was the potential that APLA saw from him. With that, we said no, we cannot lose a man of his calibre. MS PATEL Are you saying that, correct me if I am wrong, but are you saying that certain members were recruited not necessarily because of their political convictions, but in terms of their skill and expertise that would then add value to your specific operations in terms of furthering your political aims and objectives? MR NKONKI I want you to note one thing again, I am sitting here as a political commissar, therefore my duty to any member of APLA was to politicise that person. After recruiting a person, it was therefore my duty to show him or her, that these are the positions taken by the PAC and APLA, so it is then proper for you to follow these before any operation could be given out to you. Therefore, whoever were recruited, we made it our point that we politicise that particular person and make it a point that that one does accept the rules and regulations of the game. MS PATEL Okay, and then just, you have stated that you were aware of Mr Snoek's previous convictions. I am not sure whether you know completely exactly what his previous convictions were, do you? MR NKONKI Not exactly, not the whole nitty gritty's of them. MS PATEL Can I just, maybe just run through a bit of it. I mean he has been involved in dealing for dagga for quite some time, and even after he became a member of your organisation. In 1986 he was convicted for dealing in dagga and sentenced to three and a half years. Released in February 1988, it is almost two years later, and then in 1988, he was then again sentenced for the use of a motor vehicle without consent. MR NKONKI Yes. MS PATEL So, for the better part of those in between years from when he had joined your organisation, when this incident had in fact occurred, he had spent that time in prison. Did that not effect your perception of him? MR NKONKI Not at all, because we knew, we understood the reasons why he had to do all that he had done, because these are purely what is called social political issues. MS PATEL Okay. In terms of your dealings with Mr Snoek, do you know whether he ever used to go to the Transkei? MR NKONKI Well, I wouldn't deny nor confirm that, because mine was only to deal with him on specific things. MS PATEL Your dealings with him then on those specific things, did they entail sending him or him going to Transkei? MR NKONKI Not that I know of right now. MS PATEL All right, thank you. I've got no further questions. NO FURTHER QUESTIONS BY MS PATEL CHAIRPERSON Thank you Mr Mbandazayo, do you have any re-examination? MR MBANDAZAYO None Mr Chairperson. NO RE-EXAMINATION BY MR MBANDAZAYO CHAIRPERSON Dr Tsotsi, do you have any questions to ask the witness? DR TSOTSI No. CHAIRPERSON Mr Lax? MR LAX Thank you Chairperson. Mr Nkonki, was this the first operation that you had authorised for these two people to go on? MR NKONKI Yes, this one was the first one for them. MR LAX Yes. Do you mean for them together or for them individually? MR NKONKI For them together. MR LAX Right, and had you authorised any other operations for either of them individually, with other people? MR NKONKI No, no. MR LAX So, neither Mr Tshikila or Mr Snoek, had been authorised by you to go on any other operations? MR NKONKI Not that I know of right now. MR LAX Well, you see Mr Snoek went on an operation to the same farm some time prior to this time, where he obtained two firearms from that very farm. You don't know about that? MR NKONKI No, I don't remember that. MR LAX And you were his political commissar? MR NKONKI Yes. MR LAX He never reported that to you ever? MR NKONKI Provided that he was instructed by me, then he would come and report it to me. MR LAX You see, what he told us was that he went on operations, and he would do things, and then he would come back and report to you. But you haven't heard of that? MR NKONKI No. MR LAX You see, he stole two firearms or repossessed them as you would call it, from the same farm and sold them, or he says handed them over to some base in the Transkei. MR NKONKI Yes. MR LAX And then he returned back. MR NKONKI Transkei and Uitenhage are two different places. MR LAX Of course they are, but you were his political commissar in the place that he was based. MR NKONKI Yes, so he will not tell me what he has done to Transkei then. That has nothing to do with me. MR LAX Well, he led us to believe that he reported to you. MR NKONKI He would report to me that he had been to Transkei, not what he has done to Transkei. MR LAX Yes, very well. Mr Tshikila was 13 years old at the time of this. MR NKONKI Yes. MR LAX He had no training whatsoever. Why did you send a 13 year old child on this operation? MR NKONKI let me first say to you, when I joined the UBPCO, the Uitenhage Black People Civic Organisation, I was 12 years old. Therefore that, by the virtue of being an African and an oppressed person, I had all the right to do whatever the African people required me to do. It was my prerogative therefore to send him as an oppressed person to go out and fend for himself, and fight for his people. Therefore the question of age had nothing to do with it. MR LAX But he had no discipline, he had no instruction in the, as you put it, the 15 points of attention. He didn't understand ... MR NKONKI Clarify one thing for me that he had no instruction, what do you mean by that? Instructions and 15 points of attention, are two separate things? Instructions come from me and 15 points of attention is something else. MR LAX Well, what instruction did you give him then? MR NKONKI I gave him instructions to go and repossess firearms in a farm. That is the instruction I gave him. MR LAX So, it wasn't an instruction to go and attack a farmer? MR NKONKI Attack and repossession, those go hand in hand. As I indicated here that a guerrilla has a leeway to use flexibility and initiative. I said here one would act according to concrete situations, on a particular situation. Attacking a farmer when resisting, is totally right and totally acceptable to APLA. That is the position of APLA. MR LAX I hear you, but the point being that the purpose of the mission was to repossess firearms? MR NKONKI And in the process they got stumbling blocks, then they have to get away from the stumbling blocks. MR LAX If you would just listen, you would hear what I am putting to you. You really are being very quick to try and answer the question, and you are missing the point that I am trying to make. MR NKONKI Okay, get to your, get on. MR LAX The point is that in the amnesty application, they say they were attacking farmers as part of the policy of APLA, to drive them off the land. In fact they weren't doing that, they were repossessing firearms. There is a fundamental difference between the two? MR NKONKI In this particular operation, the instruction was go and repossess those firearms that you had identified. MR LAX Precisely. MR NKONKI Yes. Now the fundamental principle of APLA was to fight the settlers, you see, in whatever corner we find them. Therefore for my comrades here, to have fought or killed whoever, whatever action they had taken there, in the process of repossessing or wanting to repossess, there was nothing wrong with them doing that because repossession and fighting, goes hand in hand. I want to put it to you as well that if I could come here now, I mean move from here, wanting to take off your jacket, definitely you would want to fight or rather resist me taking your jacket, you see? In the process of me now wanting that jacket from you, I would fight with you because I need that jacket. My aim was to take your jacket, not fight with you. MR LAX You are still missing the point but anyway. CHAIRPERSON Keep that for argument. MR LAX I have finished. CHAIRPERSON Adv Bosman, do you have any questions? ADV BOSMAN Thank you Mr Chairperson. Mr Nkonki, did you know that the first applicant, Mr Snoek, that he had stopped his military training at one stage because he was frustrated? MR NKONKI Ma'am, as I have indicated to you, that the comrade here as he also indicated to you, that his training, he got his training from Transkei, you see. I was based in Uitenhage, all my operations I have done, I have done here in Uitenhage and I instructed him from Uitenhage. What frustration he got from Transkei or wherever, you see, did not come to my knowledge. Therefore I cannot answer that he was ever frustrated or what. I do not know that. ADV BOSMAN If you knew about it, would this have effected his standing in the organisation? MR NKONKI As a political commissar, I would make it my duty to convince him otherwise. CHAIRPERSON Mr Nkonki, what was the practice at that time when authorisation was given to an operative to embark on an operation with regard to providing an operative with arms? We have heard in our experience in these hearings, that you often had Units and then they had their AK47's and hand grenades and whatever, they had arms when they went on an operation. If an operative did not have an arm, would he be issued with an arm, a weapon of some sort? MR NKONKI Well, that would be done when an operation is meant to fight. Operations like ambushes, those operations were specifically given firearms to go and pursue, but operations of repossession, you see, and moreover when you have data in front of you, collected by your Intelligence people, you see, you look at it and then you find that this operation is rather simple or easy, then there is no reason for you to hand over guns to a person. In an operation like that, because we had never anticipated any confrontation, because it was pointed to me that these firearms were stored somewhere, so it would be a question of breaking that particular storage and take the firearms and go. So there was no need for me to give any firearms then. CHAIRPERSON Thank you. Mr Mbandazayo, do you have any questions arising out of questions that have been put? MR LAX Just one moment Chair, if I could just ... CHAIRPERSON Sorry, just before you go. MR LAX Just two small issues. When you gave this order to these two operatives, where was that that you gave them that order? MR NKONKI Here in Uitenhage. MR LAX In Uitenhage? MR NKONKI Yes. MR LAX And you gave it to both of them? MR NKONKI Yes, I have it to Snoek, because he is the one who came to me saying that he went to Mr Jantyi you see, and Mr Jantyi rightfully so you see, sent him to me as a man who was responsible for security for amaAfrica, you see, and as a person who was dealing with APLA directly. So when he spoke to me, I sat down with him and I listened to him, and I said okay comrade, go ahead. You see, do you have any people to assist you in this, and he said no, he is going to look at that, then that was all, because I was also on my way out, you see for briefings in Zimbabwe as already indicated here. So, the briefing, the instructions that I had given you see, I had given him so half-heartedly, you see, because I was also against time. MR LAX So you only gave one comrade an instruction? MR NKONKI Yes, with an understanding that ... MR LAX That he would get others to go ahead? MR NKONKI Yes, he would get some people to go out. MR LAX Well, you see, in our earlier evidence you said when you gave them instructions, you said comrades, you, comrades, you go and do this in the plural, not in the singular. MR NKONKI Yes. So I don't think we will have to take any fuss about that. MR LAX Well, you gave us the impression that you were dealing with two people? MR NKONKI Okay, correct that, one person came to me. MR LAX Now, did Mr Snoek ever tell you that he wanted to leave the country? MR NKONKI No, no, I can never remember that because it is already now years ago, I cannot remember specifically what he said to me, there were so many things that we had discussed. MR LAX Well, he was waiting for permission to wait the country, that is what he told us. MR NKONKI Yes, he might have waited for it, but I cannot remember that now. MR LAX Well, as his political commissar, he would have asked you about that? MR NKONKI Yes. Yes, he would have asked me, yes. MR LAX But you can't remember that? MR NKONKI Yes, I cannot remember that now. MR LAX I see. MR NKONKI Yes. CHAIRPERSON Thank you. Mr Mbandazayo, do you have any questions arising out of questions that have been put by members of the panel? MR MBANDAZAYO None Mr Chairperson. NO FURTHER QUESTIONS BY MR MBANDAZAYO CHAIRPERSON Ms Patel, do you have any questions arising? FURTHER CROSS-EXAMINATION BY MS PATEL Yes, just one, thank you Honourable Chairperson. Mr Nkonki, just to draw a distinction if there is one to be drawn. In your example that you used earlier on with Mr Lax in terms of if you knew you wanted his jacket and he had it on, you knew that some degree of violence may have to be used in order to get the jacket from him, and that was acceptable, my question to you is, if it was possible for you to get the jacket from him, whilst he didn't have it on or whilst he was not around, would that have been a preferable alternative and would your operatives have known that they must consider each situation and if the use of force is not absolutely necessary, then it shouldn't be used? MR NKONKI I cannot get your clearly honestly. I want to answer you, but ... CHAIRPERSON I think the thrust and Ms Patel can correct me if I am wrong, but as I understood it, Mr Nkonki, the thrust of the question is, if it was possible to take goods, repossess goods without having to use violence, rather than place yourself in a situation where violence would result, was it policy to avoid the violent situation when a non-violent road could be followed in order to attain the object of the operation? MR NKONKI Okay. I am sure the principle of guerrilla warfare is interpreted as a hit and run situation. Now, therefore in this instance here, I would therefore say if my comrades had their way, that they would repossess these things without any alarm to the occupants of the house, definitely they would have opted for that road. It is just unfortunate that therefore an alarm was made, and they had then to take their initiative. What I am trying to say in essence is that if they had all the way of avoiding any violence, then it was good for them. MS PATEL Okay, thank you Mr Nkonki. MR NKONKI Thank you. NO FURTHER QUESTIONS BY MS PATEL CHAIRPERSON Thank you Mr Nkonki. That concludes your evidence. Mr Mbandazayo? MR MBANDAZAYO Thank you Mr Chairperson, that is the applicants' case. Thank you. CHAIRPERSON Thank you. CHAIRPERSON Ms Patel, is there going to be any further testimony? MS PATEL Yes, I would like to call the Investigating Officer Honourable Chairperson. Is Mzwandile Keiser Mbete. MZWANDILE KEISER MBETE (sworn states) CHAIRPERSON Thank you. Yes Ms Patel? EXAMINATION BY MS PATEL Mr Mbete, where are you employed? MR MBETE I am employed with the Truth and Reconciliation Commission. MS PATEL In what capacity are you employed there? MR MBETE I am an Investigator. MS PATEL Okay, were you tasked to investigate this matter that we are presently hearing? MR MBETE Yes, I was tasked to investigate this case. MS PATEL In the course of your investigations, did you meet the two applicants in this matter? MR MBETE Yes, I met them, but in different times. MS PATEL Okay, when you met them, did you explain to them who you were and what the purpose of your visit to them was? MR MBETE Our procedure as Investigators, when we meet applicants who made applications, we would tell them who we are, we will tell them that we are Investigators. We were there to investigate about matters concerning their applications. MS PATEL Okay, during the course of your investigations, you took a statement down from the applicant. Is that correct? MR MBETE That is correct. MS PATEL I have before me here a hand-written statement, is it in your handwriting? MR MBETE That is correct. MS PATEL Okay, and what was written down here, where did you get the information from? MR MBETE This information I got it from Tamsanca Arthur Tshikila. MS PATEL All right. CHAIRPERSON Ms Patel, is this, we were handed out a moment ago a photocopy, is this the document? MS PATEL It is the document. CHAIRPERSON Mr Mbandazayo, have you got a copy of this? MR MBANDAZAYO Yes, Mr Chairperson, I do have. CHAIRPERSON Can we mark this Exhibit C? MS PATEL Certainly. What is included in this statement, is all the information that you got here, did you get it from the applicant, Mr Tshikila? MR MBETE That is correct. MS PATEL Okay, did you translate the statement to him after you had written it? MR MBETE Yes, that is also our procedure as Investigators. When we made a statement from a person that doesn't understand English, we would then read that statement for that particular person with his or her own language. MS PATEL Did he confirm the contents of the statement to you? MR MBETE I read the statement and then he confirmed it and he signed. MS PATEL Did he ask for any amendments or changes to be made to the statement? MR MBETE No, he didn't ask for any amendments to be made. MS PATEL Thank you Honourable Chairperson. NO FURTHER QUESTIONS BY MS PATEL CHAIRPERSON Thank you Ms Patel. Mr Mbandazayo, do you have any questions to ask the witness? CROSS-EXAMINATION BY MR MBANDAZAYO Thank you Mr Chairperson. Mr Mbete, just on the last point, you have told the Committee that it is your procedure in terms of the TRC Investigation, that you have to read back the statement to the person who gave you, did I get it correct? MR MBETE That is correct. MR MBANDAZAYO Is it not your procedure that that must be shown that the statement was read back to the person who made it? CHAIRPERSON You mean that it be stated on the document? MR MBANDAZAYO Yes, Mr Chairperson, I am asking whether it is not standard procedure to be included in the statement, that the statement was read back to the applicant? MR MBETE According to my knowledge, we had to read the statement back to him and then he had to sign it and confirm it. CHAIRPERSON But what Mr Mbandazayo is asking you, was it not the procedure, or is it not the procedure that on the document itself, there should be a note saying statement read back to deponent and its contents confirmed, or a note to that effect, actually recorded on the document itself? MR MBETE I can't say that is our procedure or not. What we would do when we are taking down a statement, we would read out to this person and then he would sign the statement. MR MBANDAZAYO Thank you Mr Chairperson. So what you are telling this Committee is that we must rely on you that you did what you are telling the Committee today? MR MBETE Please repeat your question. MR MBANDAZAYO What I am asking you is that, you are telling this Committee that this Committee must rely on you that you read the statement back to the applicant, though there is nothing which shows that, something written or anything written on the statement, that the statement was read back to the applicant? MR MBETE I think that the applicant by including his signature here, that clearly shows that this was read to him, and then he confirmed it. We are not working like the Police, because they were threatening people and someone was forced to sign a statement, we are not using that procedure, going to these people, showing them that we are not on anybody's side. We are not there to make them victims. You read this statement and we would talk to them in friendly terms, so that means that a person signs here on his own will. MR MBANDAZAYO I am not disputing that Mr Mbete, what I am trying to say is that my instruction is that, the reason why I am asking you as such, is that the applicant disputes that, what he has told me is that he spoke to you in Xhosa and you wrote in English, and after that you asked him to sign that. You told him that is what, what he is signing is what he has told you? It is simple? MR MBETE As I have already explained, I think that the mere fact that he signed, he confirmed this as what he said. What I am saying is that the Committee should accept the way I am putting it, because there is no other reason, I don't have a reason to put, to disadvantage him. MR MBANDAZAYO My point is that Mr Mbete, I am not disputing what you are saying, that what you have told me, but what I am saying is that the applicant tells me that indeed he spoke to you in his mother tongue, but you wrote it in English. After that you said, sign here, it is what you have told me. MR LAX Mr Mbandazayo, he has told you that he has no reason to put your client's position in a different light. Even if he had written on the statement that I have read this back to the man and he confirms it, your client still wouldn't know what that meant. He would just sign because it would have been written in English anyway. It doesn't put your client's position in any better or worse light, whichever way you do it. If you see the point I am just trying to point out. MR MBANDAZAYO I do get your point through you Mr Chairperson. I will leave that point. Can you look at page 1 of your statement. CHAIRPERSON Is this Exhibit C? MR MBANDAZAYO Yes, Exhibit C. Do you see what you have scratched there? MR MBETE Yes. MR MBANDAZAYO Why did you scratch that? MR MBETE The reason for me to scratch here is that I sat down and I told him to tell me what happened. When I started writing, I just realised that there is another information that I had to get, I have to get details from him. That is why I scratched here. MR MBANDAZAYO Would you agree with me that what you have written here in the statement, it may not be necessary what the applicant actually told you, but it is your preference of words? It depended on the preference of words you use in the statement? MR MBETE It might be so, but I think that as I have already said before, this statement was read, so if there was something that he needed me to change or to put it in another way, he had a right to do so. I was not forcing him to accept what I wrote down. He had a right to change it and to tell me that he didn't say it that way. That is why I read the statement back to him. MR MBANDAZAYO Okay. Would you also agree with me that what is written in this statement, it does not necessarily mean that the events happened in this sequence? It is only the information you were getting from the applicant, sometimes when you are asking him more questions? MR MBETE I can agree with you, especially when I was sitting here and listening to his evidence, because he changed his evidence, maybe the sequence is not the same. CHAIRPERSON Sorry just before you proceed Mr Mbandazayo, just one little bit of information. Mr Mbete, can you recall when you took this actual statement? More or less when it was taken, was it very recently or was it some years ago? MR MBETE I think it was in June, June or July. CHAIRPERSON Of this year? MR MBETE 1998, yes. MR MBANDAZAYO Thank you Mr Chairperson. Do you know how many times did you visit the applicant in prison? MR MBETE Tamsanca Arthur Tshikila, I visited him once. The person that I visited more than one time, was Snoek. MR MBANDAZAYO The reason why I am asking you is because at page 16 there is another statement. Do you know who prepared the statement from page 16 to 18 of the bundle? MR MBETE I am the one who prepared the statement, who made the statement. MR MBANDAZAYO Can I ask you why is it not, why is it different from the one on page 14 to 15? MR MBETE What happened is, in this bundle when we were making, compiling a report, there is a place where you have to write details, so that you can highlight the original statement, and there would be another statement, who would be separate, but it would be together with the bundle. MR MBANDAZAYO My understanding is that even if the statement, you prepare your statement, it would be almost similar to the one you took from the applicant. MR MBETE I think this is the case even here. MR MBANDAZAYO But it is a question of (indistinct) MR MBETE Yes. MR MBANDAZAYO Thank you Chairperson. NO FURTHER QUESTIONS BY MR MBANDAZAYO CHAIRPERSON Thank you Mr Mbandazayo. Ms Patel, do you have any re-examination? RE-EXAMINATION BY MS PATEL Just one Honourable Chairperson. When you took down the statement, did you record the events as they were told to you by the applicant? MR MBETE That is correct. MS PATEL Thank you Honourable Chairperson, I've got no further questions, I have no further witnesses to call either. NO FURTHER QUESTIONS BY MS PATEL CHAIRPERSON Thank you. Dr Tsotsi, do you have any questions to ask Mr Mbete? DR TSOTSI Just one question Honourable Chair. It appears as if all the statements are not dated. Is that correct, the statements are not dated? MR MBETE That is correct. DR TSOTSI Is that the practice, not to date your statements? MR MBETE No, I think it was an omission on my part. CHAIRPERSON Mr Lax, do you have any questions to ask the witness? Adv Bosman, do you have any questions to ask the witness? ADV BOSMAN No thank you Mr Chairperson. CHAIRPERSON Thank you Mr Mbete, you may stand down. WITNESS EXCUSED . CHAIRPERSON That brings the evidence in this hearing, to a conclusion. All that remains is for the legal representatives to make submissions to the panel, and of course for the panel to then makes a decision. Mr Mbandazayo, Ms Patel, are you in a position to argue this afternoon? MR MBANDAZAYO Yes, Mr Chairperson. MS PATEL Yes, Mr Chairperson. CHAIRPERSON Do you wish to have a short break now, or are you going to get straight into it? MR MBANDAZAYO Chairperson, you can give us about five minutes. CHAIRPERSON Just so that you can rally your thoughts and stretch your legs, yes. We will now take a short adjournment for a few minutes and then thereafter we will reconvene and we will hear the argument in this matter. COMMITTEE ADJOURNS CHAIRPERSON Thank you. Mr Mbandazayo, are you in a position to commence your argument? MR MBANDAZAYO Yes Mr Chairperson. CHAIRPERSON Thank you very much. MR MBANDAZAYO IN ARGUMENT Thank you Mr Chairperson. Mr Chairperson, let me start by saying Section 29(1) of the Act provides as follows: if the Committee after considering an application for amnesty, is satisfied that the application complies with the requirements of the Act, the act, omission or offence to which the application relates is an act associated with political objective committed in the course of the conflicts of the past, in accordance with the provision of subsection (2) and (3) and the applicant has made full disclosure of all relevant facts, it shall grant amnesty in respect of that act. Section 20(2) provides in this Act, unless the context indicates otherwise, act associated with a political objective means any act or omission which constitute an offence or delict which according to the criteria in subsection (3) is associated with a political objective, and which was advised and planned, directed, commanded, ordered or committed within or outside the Republic, during the period of 1 March 1960 to the cut off date, by any member or supporter of a publicly known political organisation or liberation movement on behalf of or in support of such organisation, in furtherance of political struggle waged by such organisation against the State. Any member of a publicly known political organisation, in the course and scope of his duties and within the scope of his express or implied authority, any person referred in (d) who on reasonable grounds believed that he was acting in the course and scope of his duties, and within the scope of his expressed or implied authority. Mr Chairperson, it is submitted that the applicants have complied with the requirements of Section 20(1) and (2), that they were quite clearly acting on behalf of a publicly known organisation, a liberation movement which was engaged in a political struggle against the State at the time. Mr Chairperson, that organisation encompasses the PAC which in my argument, will include APLA and PASO since it was the mother body of both organisations. Mr Chairperson, I will only deal with, I will take, unless there are questions, I will take it that it is accepted by this Committee that they indeed belonged to the publicly known organisation and at that particular ... CHAIRPERSON Yes, I think we've got a document here which is contained in the papers, it is a letter from the PAC which in fact confirms that both the applicants are members. Where is it? MR LAX Page 21. CHAIRPERSON Page 21. MR MBANDAZAYO Thank you Mr Chairperson. That Mr Chairperson, that at the time, they were acting within the course and scope and in furtherance of the political objectives of that organisation Mr Chairperson. Mr Chairperson, my argument - what they have said will be based on the evidence of Mr Nkonki, he was the political commissar who came and confirmed that he gave an order for that operation to take place. If the Committee accepts that, which is accepted that they were members of the political organisation and that they were given an order to carry out the operation, then the next point which will have to be considered by this Committee, will be whether the applicants have made full disclosure with regard to that particular incident. Mr Chairperson, I am intending to deal with. ADV BOSMAN Mr Mbandazayo, could you not perhaps at this point, just deal with what the scope of their instructions were? MR MBANDAZAYO Mr Chairperson, definitely the scope of their instructions were that they must go and repossess arms from the farm of Mr Sharp or whatever farm Mr Chairperson, they were given order to. Mr Chairperson, then the order was clear to repossess arms. Within that scope of repossessing those arms, they indeed assaulted and killed one of the occupants of the farm. They also repossessed certain goods, including a motor vehicle. Mr Chairperson, as I read, Section 20(2), especially paragraph (f) which says any person referred to paragraph (d), who on reasonable grounds believed that he was acting within the course and scope of his expressed or implied authority. Definitely Mr Chairperson, as they have put it, they felt that what they did, to take those goods, the other goods was that it was within their scope. They took their initiative and they believed that it was for the good of the organisation, what they were doing. Mr Nkonki has also come and testified that they have a leeway, they have, it depends on the concrete conditions on the ground, where they are operating. If there is anything which will be for the benefit of the organisation, definitely they can take that particular - and surrender it to the organisation. Mr Chairperson, unfortunately we are dealing with a matter where it did not get to that stage of surrendering. It was left speculating whether it was going to be surrendered, but for the purposes of my argument Mr Chairperson, because the mission was not fulfilled, was not completed, because they were caught on the way, Mr Chairperson, I will argue on the basis that when they took that particular items, they were going to surrender them. That will be the (indistinct) of my argument and that they reasonably believed that it will be used by the organisation and it is for the benefit of the organisation. DR TSOTSI Mr Mbandazayo, can I just ask a question. In killing the old lady, didn't they in fact exceed the scope of their mandate? MR MBANDAZAYO Thank you Mr Chairperson. Mr Chairperson, I will take it that they killed the old lady intentionally, that the argument will be based on that, that she was killed intentionally. CHAIRPERSON I think the Court found that the basis of the murder was dolus eventualis, rather than dolus directus and I think my reading of the judgement, without having read the whole record, is that that sounded like a reasonable sort of conclusion to arrive at for the Court. MR MBANDAZAYO Thank you Mr Chairperson, that is why I am saying that Mr Chairperson, in as much as I know that the Court was the basis for their finding, but I am saying for the purposes of my argument, I will take it that it was intentional. MR LAX Mr Mbandazayo, if I could just ask you this much. It is something that worries me, and I would like you to consider it and maybe address us on it, in the criminal trial, they were convicted on the strength of the first applicant's admission that he put the bag on her face. However, before us, both of them have denied that they did that. In other words they don't concede that they caused her death? That creates a little problem and it would be interesting to know how you are going to argue that particular one. MR MBANDAZAYO Mr Chairperson, if I can deal with that point which was raised by Mr Lax, the last point. Mr Chairperson, if my memory serves me well, eventually yesterday when he was asked by Mr Lax, I think it was after some break, he was asked again about that, in fact referring to his statement, he finally agreed that he put the bag on the face. CHAIRPERSON Is that Mr Snoek? MR MBANDAZAYO Mr Snoek. He finally agreed that he is the person who put on the face, when he was confronted with his statement Mr Chairperson, but I was going to deal within another way, to put it in that admission of his, but I wanted not to forget it. But I think he finally agreed that I am the person that put it on her face. Mr Chairperson, since it was raised now, I felt that I must, but I am still going to deal with it. To deal with Dr Tsotsi's question, whether they had not exceeded their mandate, Mr Chairperson, I want again to say that they were given an order to go and repossess arms and they went there, and in the process they killed the lady, old lady. Mr Chairperson, it is my submission and what has been said here that, even if though the mandate was to repossess arms, but it was within, it was within their scope's (indistinct), that farms, farmers were still the targets of APLA. As Mr Nkonki put it there was nothing wrong, even if they killed them. Though this particular instruction was to repossess arms, but it was still within their scope and mandate. CHAIRPERSON I think, on that, I think also what Mr Nkonki said was that the - besides what you have said now, that with the authority to go and as he put it, repossess these arms, that if the operatives found themselves in a situation that required them to use their own initiative, then it was the general policy that that operatives use those initiative, even if that resulted in such a drastic result, namely the death of a person. MR MBANDAZAYO Thank you Mr Chairperson, I could not put it more than you have put it. That is what I was trying to get, that is how he put it Mr Chairperson. My argument is that, Mr Chairperson, based on what Mr Nkonki said, it is my submission that they have not exceeded the bounds on that score. They were still acting within the scope of their organisation. Mr Chairperson, just to go again to the question of disclosure. Mr Chairperson, my argument is that the applicants have made full disclosure. In that, Mr Chairperson, taking into account the time lapsed since the event, it is almost eight years now after the event. And also Mr Chairperson, taking into the account the fallibility of human beings, that the applicants have made full disclosure of the event. Mr Chairperson, I will deal with the second applicant, Tamsanca Arthur Tshikila. At the time of the event he was as Mr Chairperson put it, hardly 14 years. Taking into account that he was still young, now he has to reconstruct the events of the day, eight years thereafter, as to what actually happened. He also testified before this Committee that he was afraid at the time. I was afraid during the incident. You ask him to reconstruct it. Mr Chairperson, it is not a question that I am testifying more so of the Honourable members, are more experienced than myself, they have been through this, it is known that all of us that are here, we can witness one event, but when we are coming to tell the story, we will tell it differently. You even question yourself whether while that person in particular was present there when he is narrating the event, but it is not a question that he is laying or what, but the fallibility of human beings, it is in the human nature of people. My point is that Mr Chairperson, that the applicants, they have done all reasonably they can do, to try and reconstruct the event and tell the Committee what actually took place there. Hence my argument is that they have made full, proper and full disclosure with regard to the events of the day. Mr Chairperson, they admit that they are the people who went there to the farm, they went to the first farm, they robbed firearms, they went to the second farm, they broke into the garage, they took another vehicle, they couldn't start it, they decided to wait for them to come out and the old lady came first, and they assaulted the old lady and they tied her and they took bags and put it on top of her. As a result, she died of that. Mr Snoek went to the house and he confronted the old man, and he assaulted him. They wanted the keys. Mr Chairperson, hence I am saying that there is nothing to say that that is not what actually took place. Even the court record bear testimony to that that this is how the old lady died, as a result of suffocation. Mr Chairperson, I agree that it was difficult to get it, but Mr Chairperson, as I have indicated taking into account the time lapse after the event, to reconstruct people who are in jail, as it is difficult to people ordinary to narrate an event, even a social event where there is nothing, there is no pressure about it, what actually took place, to human beings. It is difficult, they come up with different versions as to what happened. If you take that in totality, Mr Chairperson, it is my submission that the applicants have made a full disclosure with regard to the incident on the farm. CHAIRPERSON Mr Mbandazayo, we know that the victims are not represented here or have not come here, but in the documents, there is a statement from one of them and if I could just put it to you I think out of fairness, where they conclude by stating that they oppose the application, just for you to address what has been put by the victims in this statement. The statement appears on page 19 and basically it is really from the second last paragraph, shall I read it, it says as far as I know the killing of Andriesa, that is the deceased, the theft, housebreaking and robbery had nothing to do with politics. This was a criminal case where the robbers' main objective was to steal a bakkie. This is further borne by the fact that Willy Snoek, the first applicant, was a well known car thief and he was unlike Tamsanca Tshikila, very aggressive. The 303 rifle they got, was registered in my name and they found it in the bakkie at the back of the seat. They never had any intentions to steal firearms, but wanted the van. The two robbers had tried to cock the 303 rifle, but failed to do so as they never underwent any military training, hence they could not shoot and kill my uncle. I pray that both robbers should not be granted amnesty as they are criminals and will only increase the crime rate in this country. That I have read directly from the statement of one of the victims, just for your comments on that please. MR MBANDAZAYO Thank you Mr Chairperson. Mr Chairperson, my comment will be as follows: I understand the victim, why he expresses that way. Mr Chairperson, the applicant, Mr Snoek, has not run away from his past, it is there for everybody. We know, have not run away from his past. But what we are saying is that for this particular operation, for this particular operation, he was there because he was given authority to carry out the operation. I understand the victims, that emotionally definitely they felt aggrieved by the whole thing as I would also myself, knowing that there is somebody who has a dubious record on people, have committed it. Definitely I will feel aggrieved in that respect. But Mr Chairperson, we don't have something concrete as evidence to rebut the applicant's case on that score that what they did on the day in question, was criminal, nothing else. Hence Mr Chairperson, it is my submission and my prayer to this Committee, that the applicants should be granted amnesty as they have fulfilled the requirements of the Act. Thank you Mr Chairperson, unless the Committee wants to ask any question with regard to any point. CHAIRPERSON Thank you Mr Mbandazayo? Ms Patel? MS PATEL IN ARGUMENT Honourable Chairperson, I will be very brief. Regarding the question of political motivation, it is my respectful submission Honourable Chairperson, that membership to a known political organisation, that that is not necessary carte blanche for members of those organisations to commit acts and then hope that they can expect people to believe that those acts were in furtherance of the aims and objectives of that particular organisation. It is my respectful submission that the failure to comply with the requirement of full disclosure, impacts directly on the question of the political motivation of the applicants. We have heard clearly from Mr Nkonki that members of the organisation were entitled to deviate from the operation, depending on the circumstances. He also stated quite clearly that violence should be avoided if it was possible. What are the facts of this case? I don't want to traverse too much of it, except to state that the motivation was to get firearms. This they got at the first farmhouse. There was no need to place themselves in the position where they were going to be confronted by the parties, in respect of gaining extra goods. That wasn't part of their primary function there. CHAIRPERSON Just on that, I think one of the reasons they said why they went to the motor vehicle, was they were there without transport. They had no wheels and they were now in possession of a rifle, one they had to get back and two, they didn't want the rifle obviously to be seen. What would you have said, once they had the rifle from the first house, that they should have what, walked home or catch a taxi or how then would they have hidden the rifle? MS PATEL My response to that is very simple Honourable Chairperson, they had made arrangements to be dropped off at the farm. They could very easily have made arrangements for that particular person to wait for them, at a secluded spot, this is a farming area, that couldn't have been too difficult. But it is clear that their intention was not only to go there and get weapons. If one looks at the question of proportionality between the act and the proposed objective, one looks at the acts of murder, the acts of assault with intent to commit grievous bodily harm. It is my respectful submission that those two acts have no link whatsoever to the proposed, initial objective - for the act for which they were authorised to carry out. To go back to the question of full disclosure, one looks at primarily the target selection, one looks at the contradictions between the evidence of both the applicants and within their own evidence. The question of whether he was there or not previously, whether he had ever worked there, how he knew to get from one farm to the other, and there are a whole range. The record, I am sure, speaks for itself on this issue. Then also if one just very briefly looks at the question of the necessity for the vehicle. Besides the fact that they say they needed the vehicle to get away, there is also the question of the first applicant wanting to get to Transkei which was never mentioned anywhere. Not in the affidavit. The first time that we heard of it, was here at the hearing. It is my respectful submission Honourable Chairperson, and given the modus operandi of the first applicant especially, I would submit that he acted out of malice, that he had some other reason for wanting to go to the second farmhouse, he knew the area, there is no doubt in my mind, that he knew the area. And then ... CHAIRPERSON I think it is quite clear that he knew the area, because he did concede that he had been there before. He wasn't quite sure when, but about a year before, or within a year before, and had stolen or taken guns from that very same place. He was returning there. MS PATEL But that information wasn't volunteered to us Honourable Chairperson. DR TSOTSI Yes, but were there any evidence of malice, while we are on that point? MS PATEL My submissions regarding malice Honourable Chairperson, is an inference that I wish you to draw from the manner in which this operation was carried out. It is very clear that the applicants could have left after the first farm. The use of the, the requirement of the vehicle wasn't absolutely essential to the fulfilment of this operation. Then regarding the second applicant, I would concede Honourable Chairperson, that he was very young, in fact he was a child at the time. It is my submission that to a large extent, he followed the lead of the first applicant. That he didn't make any of the important decisions in this matter. ADV BOSMAN Of what relevance is that to the granting of amnesty, Ms Patel? The fact that he followed the lead? MS PATEL It is relevant in so far as it is my submission that his acts were bona fide, that he didn't necessarily, that he wasn't necessarily aware of the motivation, of the true motivation of the first applicant. ADV BOSMAN What would you say in regard to him, in so far as it relates to full disclosure? Even if he was bona fide, would you say that there was full disclosure on his part? MS PATEL Regarding the question of full disclosure, I have to admit in a sense I am in two minds about this, because he was so young at the time, that I don't think that one can expect that a child of 13 years old would have acted of his own free will entirely and that he was influenced at that time. It is my submission that there is a possibility that even now, the co-applicant is still a young person, and that those influences still have a bearing on what he says. ADV BOSMAN If you look at the Act, the Act requires full disclosure of relevant or material facts. Looking at the evidence of both the applicants, what facts would you say were material facts that had not been disclosed by applicant 1 in the first instance? MS PATEL The material facts I would submit that weren't disclosed without him being cross-examined on it to a large extent are firstly the question of the ambit of the authority, that is of the authorisation that was given to him. The question of the choice of the target, whether he had been there before or not? The question of the taking of the money from the safe. The question of having searched the first farmhouse, the question of the knowledge of the second farmhouse and what he would find there in terms of especially the vehicle. Let me think, I think just off the top of my head, those would be what come to mind initially. So then, it is my respectful submission that especially in terms of the first applicant, that he not be granted amnesty. In respect of the second applicant, I would leave it in your hands. CHAIRPERSON Thank you Ms Patel. Any response to Ms Patel's submissions? MR MBANDAZAYO IN ARGUMENT Only on two aspects Mr Chairperson. Mr Chairperson, it is only on the question that Ms Patel is saying, my learned friend is saying that being a member of a political organisation, does not give you a carte blanche to do whatever pleases you. Mr Chairperson, I agree fully with her on that aspect, but my argument is that the evidence has been led for the applicant on behalf of the applicant, by Mr Nkonki, there is nothing to gainsay what they have said. That was not carte blanche, they did not do whatever pleased them on the day in question. Again Mr Chairperson, on the question of proportionality, Mr Chairperson, it is always a very thorny and a very difficult point to deal with, this question of proportionality. I know Mr Lax will always take me on that aspect, and I wouldn't like to go to argument with him on that, but Mr Chairperson, my argument is always like that, especially on incidents like this, that if a particular person has been given an order to carry out a mission, I always regard that particular person as a foot soldier. A foot soldier, his role is to carry out the instructions to the letter. An order has been given and that proportionality should be only applied to the higher up order, the person who took the decision. Definitely Mr Chairperson, as you heard Mr Nkonki here, he knew anything can happen. There is no doubt about that, he knew that anything can happen. Somebody can get killed in the process, as he made an example of Mr Lax, if he goes and take his jacket, he is not going to take it laying, and just give in. He will definitely fight and anything, as a result of that, can happen. He did not know what the applicant were armed with. It may have happened that they were armed with a knife, he can stab to death. Those were the consequences of an order. Definitely those things are expected, hence he said that he was not surprised as to what happened, that somebody died, and that they also took some other things. Definitely Mr Chairperson, my argument is that it was still within the scope and that proportionality, I would humbly request Mr Chairperson, as I indicated, it is one difficult point to argue, the question of proportionality, but my argument is always that it should be applied to the people who take decisions. Mr Chairperson, my final point will be that I have thought that I will make photo's that I think the Committee, Mr Lax have about the submission of PAC, which is general with (indistinct), though it does not still specifically, but it encompasses why certain people were targets, what motivated, what was the modus operandi of APLA with regard to incidents of this. It has been submitted to the Committee, I always thought that whenever the Committee is sitting on cases which involved PAC, always have the submissions, the latest one, with regard to their policy, of APLA with white people as targets, which PAC has put in writing, the modus operandi. That is all Mr Chairperson, unless there is another point. MR LAX Mr Mbandazayo, the point with regard to, and I am not going to deal with proportionality, but the point with regard to a general proposition of attacking farmers, is one thing, and you and I have heard of many operations where farms were attacked, which were completely different to this kind of operation, and you will concede that immediately, I am sure. Where operatives, properly armed as Mr Nkonki said, knowing they were going to attack, this wasn't this kind of operation. This was an attempt to go and repossess something. I don't think we should confuse APLA's general policy with regard to farmers and occupiers of land with this particular operation, which had a much narrower ambit. It is true that if in the course of resistance they needed to use force, they had a general discretion to do that. We are not disputing that specific aspect of it. But this is not an instance where they were out to attack those farmers in the normal sense of general APLA policy. I am sure you will concede that. What I would like you to address us on just briefly, that is something I forgot to ask you to in the beginning, that is why I am asking it now, it relates specifically to the point raised by Ms Patel, in terms of your clients' modus operandi as maybe being indicative of another agenda, if you like. You see, why was it necessary once Mr Sharp had been tied up and he was in the bathroom, for your client to want to try and shoot him? He says he did try, but the gun wouldn't work. Why did he want to kill him at that point? It is indicative of a different agenda, it wasn't necessary. The man was totally disabled at that point, the woman was disabled, they could have just got in the vehicle, they had the keys, they could have left? Do you follow? So his own conduct indicates that he had something else there? MR MBANDAZAYO Thank you Mr Chairperson. Mr Chairperson, I think the only aspect which we don't agree with, would be the question of trying to shoot him. I think it was the first instance, not after they had tied him up, Mr Sharp. If my memory, my notes are correct, he would have shot him had not the gun failed, when he approached, when he was at the door. I think it is thus the reason why he offered to help him, because he could not shoot him and as a result, they had the scuffle with Mr Sharp. But, be that as it may, your question still stands, it is (indistinct) because they went to get firearms and now what would have been the reason for him to want to shoot him, if at any other stage? Mr Chairperson, as Mr Lax correctly put it, understandable in most of this operations, they go there to attack, most of the time, but on this particular one, they went there for a specific purpose. Mr Chairperson, without wasting your time, if Mr Nkonki - listen Mr Nkonki very well, it is that they have to take initiative. Mr Chairperson, if you send somebody like Mr Snoek who had some training, even if he left it in the middle, knowing what is expected and knowing some of the policies, though not in full, that in any event, these people are also targets in terms of the attack. Definitely. He will do that Mr Chairperson, he will attack them. Not necessary Mr Chairperson, to say that - I get your point that it indicates that he has - but Mr Chairperson, that is only speculation on what he is saying and on his deeds, but there is nothing concrete to suggest that indeed that was the motive, there was another motive behind that. That is my argument Mr Chairperson, I can't take it any further, thank you. MR LAX You see Mr Mbandazayo, on his own evidence and on the evidence of the second co-applicant, they didn't want to harm these people according to them. If they had kept quiet, they wouldn't have done anything to them. That is their evidence, not anyone else's evidence, and that doesn't marry with what their real conduct was. Do you follow my point? MR MBANDAZAYO Mr Chairperson, as I indicated that (indistinct), I won't take it any further, except what I have already told the Committee that in as much as what he had said Mr Chairperson, but my point is that generally taking into account all what happened, is that the applicants have on the balance of probabilities, made their case, that what they did, was not for personal benefit or out of malice. What they did, they reasonably believed that it was for the benefit of their organisation. Thank you Mr Chairperson. CHAIRPERSON Thank you very much, Mr Mbandazayo and Ms Patel, for your helpful arguments. Thank you. We will reserve our decision in this matter and hand it down as soon as possible. Thank you ladies and gentlemen, that brings this particular hearing to an end. The Committee has reserved its decision and it will deliver its decision sometime in the future, hopefully as soon as possible. Thank you very much. I would like to thank the legal representatives, including Ms Patel for the assistance that they have rendered during the hearing. I think at this stage, we do have another matter on the roll, but we will adjourn at this stage and it might be helpful if we might see the legal representatives involved in the other matter, in the room at the back, before we reconvene. Thank you, we will now adjourn. COMMITTEE ADJOURNS ON RESUMPTION MR STIMELA AND MR MALI - POSTPONEMENT CHAIRPERSON COMMITTEE ADJOURNS