amntrans AMNESTY HEARINGS 1999-06-07 PRETORIA 3 MARVIN MOGATLE MAESELA 3149/96 https://sabctrc.saha.org.za/hearing.php?id=53448&t=&tab=hearings https://sabctrc.saha.org.za/originals/amntrans/1999/99060310_pre_990607pr.htm CHAIRPERSON Thank you. Yes, we have noted that, but we will proceed with the matter in the meantime. Mr Shai, who will be the first witness? Marvin Maesela? In what language will he be testifying? MR SHAI He indicated to us that he will proceed in English. CHAIRPERSON In English, very well. Mr Maesela, I want you to please stand to take the oath, will you please stand and just switch on. Are your full names Marvin Mogatle Maesela? MR MAESELA Yes, Honourable Chair. MARVIN MOGATLE MAESELA (sworn states) CHAIRPERSON Thank you, please sit down. Yes, Mr Shai? EXAMINATION BY MR SHAI Mr Maesela, just for the record, where, when and where were you born? MR MAESELA For the court record, my full names are Marvin Mogatle Maesela, I was born in Rockville in Baragwanath Hospital, on the 20th of October 1969. MR SHAI Is that where you were resident during the time of the incident for which you are applying for amnesty? MR MAESELA Yes. MR SHAI And what standard of education do you have? MR MAESELA The only exceptional period of absence from home, was when I attended school at Mulalathadi Lower Primary School for tutoring under my maternal grandmother. I then moved to do the Higher Primary School in Rockville, in Molapo, Soweto. After passing my general primary learning, I proceeded to Molapo Secondary School. I then studied at that school until standard 9, in 1986. I completed my matric as a private candidate in 1987. MR SHAI So at the time of the incident, were you studying or were you just idling? MR MAESELA At the time of the incident, I just abandoned studies at the Technikon Witwatersrand, where I was studying National Diploma in Engineering. MR SHAI You made an application for amnesty for an incident that took place on the 5th of February 1993, is that correct? MR MAESELA That is correct, yes. MR SHAI And the incident led to your conviction and sentence for murder, possession of a firearm and ammunition and attempted robbery, is that correct? MR MAESELA It is correct, yes. ADV GCABASHE Sorry, just go over those aspects again, the offences. MR SHAI It is murder, possession of a firearm and ammunition and attempted robbery. During the time of the incident, what was the situation like at Rockville where you resided as far as the political situation was concerned? MR MAESELA MR SHAI Were you a member of any political organisation at the time of the incident? MR MAESELA I was a supporter of the African National Congress. I was acting as a member of the SDU's which were established by the self same African National Congress. MR SHAI You say that Oupa Monareng gave you instructions, did you receive instructions directly from this Oupa Monareng or was there any person who relayed the instructions to you? MR MAESELA As I have said before that Mr Monareng was directly involved in giving us the crash course, he himself gave instructions, general instructions to the effect that members of the South African Police were to be disarmed. It came directly from Mr Monareng. MR SHAI The fire weapons that you used, who was supplying them to you? MR MAESELA The weapons that were in our possessions, came from the late Molife Metsing, as to where they came from, I have no idea up until this day. MR SHAI As far as the incident on the 5th of February 1993 is concerned, what was your specific instructions? MR MAESELA As I have mentioned before, that instructions were to the effect that members of the SAP were to be disarmed, so those instructions were of a general nature, which means that it was left unto us as to the identifications of the Police who were to be attacked, it was an initiative that was taken by our Unit. MR SHAI And by disarming these Police officers, did you see any possibility of death being inevitable at some given situations? MR MAESELA As a trained member of the South African Police Force who carried a weapon, we foresaw that the only way to disarm members of the Police, was that we ourselves, should be armed. It goes without saying that we had thought about eventualities at that time, but our major or rather our principal objective was to disarm and not to kill. MR SHAI What preparations preceded the incident of the 5th of February 1993? MR MAESELA As I have made mention here in the affidavit, that in pursuance of the Police disarmourment action plan in January 1993, we randomly identified certain Policemen from Rockville whose identity was revealed to me during the trial as Mr Satega. His special vulnerability was enhanced by his Police apparel and frequent driving of big Police trucks, which made him a prominent target for disarmourment. We began reconnoitring the regularity or otherwise of his movements, which means times of arrival from work, the types of weapons usually carried by the late Mr Satega, time of departure for work at all and after gathering of this information about his movements, we set about to do the following: It was designated that 4.30 am or 5.00 am was the hour which we were to disarm the late Mr Satega. We chose this time because we saw as it was policy of the African National Congress that members, civilians were - the safety of civilians were to be safeguarded and it was this time, 4.30 am or 5.00 am in the morning, was chosen because it was safe for members of the community and also we took into consideration the safety of his immediate family. At the time of driving out of his truck for work, we would lay and wait and at the time of closing the gate, we would pounce on him, point our firearms at him and disarm him, disarm him of his service pistol. We proposed to do that early so as not to endanger his life or his family's which may easily be caused by the excitement of passers-by. MR SHAI Was that part of your planning? MR MAESELA Part of our planning was - in fact the overall part of our planning was never to kill, but to disarm, principally we went there to disarm Mr Satega. MR SHAI On the 5th of February 1993, will you please take us through what led to the death of Mr Satega. MR MAESELA MR SHAI Why was it necessary to chase the truck after you had seen that your plan has not gone according to plan? MR MAESELA As I have explained before that because of the dividing wall between the position that we were in and the yard, Mr Satega's yard, we were unable to see as to who between my comrade Thabiso and the deceased, fired that shot. At that time when - after the incident of firing the shot had happened, Mr Satega sped passed and because of the confusion, because of not knowing who between my comrade and Mr Satega fired that shot, we acted impulsively and we thought it best at that time, we never had plan B, because plan A had gone awry, we never had plan B and we were just acting out of confusion at that time. As Thabiso motioned to me that we should follow, I immediately followed without even thinking clearly in my mind. MR SHAI At the time when Thabiso beckoned to you, could you see the other comrades you were with? MR MAESELA MR SHAI At what stage did you learn that the Policeman had passed away? MR MAESELA I only learned during the day, long after the incident had happened because his truck came to a halt at a bridge between Elka Stadium and I would like to concede and acknowledge before this Commission that I may have fired the fatal shot and I would never dispute that and because of the truck coming to a halt at the Stadium, it simply means that Mr Satega at that time was badly injured from the bullets fired from our guns. MR SHAI No further questions, Mr Chairman. NO FURTHER QUESTIONS BY MR SHAI CHAIRPERSON Thank you Mr Shai. Mr Richard, have you got any questions? CROSS-EXAMINATION BY MR RICHARD Yes, Mr Chairman, I do have questions. Sorry, I did not know I was not being recorded, I do have questions. My first question is the chronology. At the end of which year did you terminate your schooling? MR MAESELA That was 1991. MR RICHARD And that is when you were studying what? MR MAESELA Actually I was studying Architectural Technology at Wits Technikon, sir. MR RICHARD Then, at what - during what period were you inducted into MK? MR MAESELA The same year, 1991, sir. MR RICHARD And then what did your particular cell do during the year 1991/1992? Did it do any operations? MR MAESELA We were involved in the hostel operations at Merafi hostel. MR RICHARD That was 1991/1992? MR MAESELA Yes. MR RICHARD At page 11 of your Bundle, you record that Mr Molife, Mr Metsing, died? MR MAESELA Yes. MR RICHARD Do you remember the date? MR MAESELA That was 1992, but I don't remember the exact date. MR RICHARD Do you remember approximately the month? MR MAESELA No. MR RICHARD Was it at the beginning of the year or the end of the year? MR MAESELA It was probably the beginning of the year. MR RICHARD So the beginning of 1992, your Commander so to speak, passed away? MR MAESELA Yes. MR RICHARD Who took over? MR MAESELA Thabiso took over. MR RICHARD Now, do you know who Thabiso liaised with and reported to? MR MAESELA For the record, I do not really have the specific knowledge as to who he reported to, but what I know is that he did report to some authorities. MR RICHARD I didn't quite hear your answer, from your recollection, who did he report to? MR MAESELA I do not know specifically who he reported to. MR RICHARD When did ... ADV DE JAGER I don't know whether you have heard the second part, but he knew that they had reported, that he had reported, is that correct? MR MAESELA Yes. MR RICHARD When exactly were you introduced to Mr Oupa Monareng? MR MAESELA 1991 sir. MR RICHARD 1991? MR MAESELA Yes. MR RICHARD And for how long were you in communication with him? MR MAESELA The crash course lasted for about a week or two. MR RICHARD And after the conclusion of the crash course, what further communication did you have with him? MR MAESELA Like I said before, that we were then integrated into this Unit of Molife Metsing who was then responsible for whatever reports were to be made. MR RICHARD Tabo was now the person in charge of your cell and Mr Monareng was clearly an authority figure, is that not correct? MR MAESELA It is so. MR RICHARD Now after the crash course, did you have any communication with Mr Monareng? MR MAESELA Personally, no. MR RICHARD Do you know whether anyone else did? MR MAESELA Like I said Molife Metsing, before he died he was the Commander of this Unit and he did report, but I do not have any specifics as to who he reported to. MR RICHARD Tabo, do you know who he reported and took instructions from? MR MAESELA What I know is that Molife Metsing was a trained cadre, who he himself introduced us to Mr Monareng, so logically I would say that he was in contact with Mr Monareng. MR RICHARD However you had no personal knowledge about what happened above you? MR MAESELA No, no, I did not. MR RICHARD At the - as I understand your evidence, in 1991 your instructions per Mr Molife and then later by Mr Monareng was to the effect that Police were legitimate targets, is that correct? MR MAESELA It is correct, yes. MR RICHARD Now, when I use the word legitimate target, what do you understand that to mean? MR MAESELA As an organ of an illegitimate State, as people who implemented policies of an illegitimate State, I would understand legitimate in that context. MR RICHARD So part of the armed struggle was that legitimate targets could be attacked? MR MAESELA The armed struggle was against the apartheid State in its holistic term. It follows then sir, that if a Policeman or Police organisation or structure was a legitimate target, while the armed struggle was in progress, it was permissible to attack it, yes or no? MR MAESELA I don't understand your question, can you rephrase it? MR RICHARD Was it permissible during the period of the armed struggle, to attack Police or Police institutions? MR MAESELA But it is legitimate then? MR RICHARD Yes? MR MAESELA They are a security organ of an illegitimate government sir, which is the policies that passes from above, are implemented by the very same Police. It is like these policies are dependent on the Police apparatus for implementation, without the Security structures, it is difficult for the government to carry its duties. MR RICHARD During your evidence in chief, you made a very specific point of saying something about the role of external MK members? MR MAESELA Yes. MR RICHARD Why did you make a special point of that? MR MAESELA They were part of our Unit. MR RICHARD Did they enjoy any specific authority? MR MAESELA As experienced members of the MK, I should think it was important for our Unit, especially we, the people who trained internally, to have some form of people who knew exactly what was the procedure of going about MK duties. MR RICHARD So, who was superior to who, you had Tabo who as I understood - correct me if I am wrong, I might have made a mistake - he was internal? MR MAESELA MR RICHARD When the external members joined your cell, did they take command? MR MAESELA Yes. MR RICHARD And so that means that Tabo who was internal was subordinate to one of the external members, correct? MR MAESELA Yes. MR RICHARD To whom was he subordinate? MR MAESELA Tabo as I have mentioned in this affidavit, was one of those who received training internally. MR RICHARD Yes, but now your cell consisted of externally trained people and internally trained people? MR MAESELA Yes. MR RICHARD Now, Tabo at one point was the Commander of your cell. MR MAESELA Molife. Molife. MR RICHARD Yes, now which of the external people did you account to and report to within the cell? MR MAESELA Molife. MR RICHARD Thank you. Now, we then turn to the specifics of the deceased, when was he first identified as a target? MR MAESELA A few days before the incident. MR RICHARD A few days before the shooting? MR MAESELA Yes. MR RICHARD On what basis was he located, who located him? MR MAESELA Purely on the basis of being a member of the SAP. MR RICHARD Who located him? MR MAESELA He is in the same location as we are. MR RICHARD Yes, but which one of your cell members identified the deceased, who said ... MR MAESELA We all knew as to his location, we all knew that around our vicinity there was a member of the SAP. MR RICHARD For how long were you in that location? MR MAESELA I grew up in the location. MR RICHARD Then for how long did you know the deceased was a member of the South African Police? MR MAESELA Specifically I cannot say, but they were not long in that area. MR RICHARD That means the deceased was not long in that area, is that your answer? MR MAESELA Truly speaking. MR RICHARD So from when he moved into that area, you were aware that he was a Policeman? MR MAESELA Yes. MR RICHARD And for how long was that? MR MAESELA I cannot say specifically, I don't know. MR RICHARD Are you aware of anything else concerning the deceased, that he might have been attacked at some previous point in time? MR MAESELA No, no, I am not aware. MR RICHARD Had you ever met him before the shooting? MR MAESELA No, I did not know him personally. MR RICHARD Had any of your cell members met him? MR MAESELA We knew him from a distance. MR RICHARD But no one had spoken to him and met him directly? MR MAESELA No. MR RICHARD During this period between 1991 and 1993, how did you support yourself? MR MAESELA We had families who supported us. MR RICHARD Did you have any source of income? MR MAESELA Like I say we depended on our families. MR RICHARD So you had no source of income? MR MAESELA No. MR RICHARD What did your father do for a living at that time? MR MAESELA My father? MR RICHARD Yes. MR MAESELA He was working at (indistinct) Chambers. MR RICHARD As what? MR MAESELA As a clerk or a messenger. MR RICHARD And your mother, did she work? MR MAESELA Yes, (indistinct) MR RICHARD And do you have any brothers and sisters who contributed to the household income? MR MAESELA No. MR RICHARD And how many siblings are there in your family? MR MAESELA Two, I am the third. MR RICHARD When you planned this incident, am I not correct in making the submission that the intention at the planning stage, was that while the deceased was outside his truck and busy locking the gate, he would then be attacked and disarmed? MR MAESELA Those were the specifics of the plan. MR RICHARD Why did that go wrong? MR MAESELA Like I explained here on page 10, 9.3, that we then quartered in concealment next to a mine dump. This mine dump was about ... MR RICHARD Page 10, I beg your pardon? MR MAESELA 9.3. MR RICHARD Page 17, sorry. MR MAESELA Page 10 of the affidavit sir. Oh, it is page 17 on yours? CHAIRPERSON Yes, page 10, typed page 10 of the affidavit, but page 17 of the paginated record before us. Yes, Mr Richard. MR RICHARD Thank you Chairperson. We now understand each other, typed page 10, page 17 and you refer to paragraph ... MR MAESELA 9.3. MR RICHARD Yes, carry on. We quartered concealment next to a mine dump which was adjacent to his house. This mine dump was about 15 to 20 metres from the deceased's house, so from this mine dump, we could see directly into the yards nearby. What happened was that immediately when he reversed his truck out of the yard, we then ran towards the houses and it so happened that by the time he moved out of the gate, he closed his gate and then moved into the truck, it was at this time that we came running towards, so we were about a few seconds late of our plan, that is why it went awry, I should think. MR RICHARD Did he see you approaching? MR MAESELA I don't think so, he couldn't have. MR RICHARD And it is quite correct that at that stage, you could have aborted the attack? MR MAESELA No, no. MR RICHARD Why not? MR MAESELA There was still time. The only thing was that he had already closed the gate and moved into his truck, so there was about a quarter of a fraction late. MR RICHARD But now at this stage, had he closed the truck door? MR MAESELA That I cannot say because Thabiso was the first person who sprung into action and at that time, we were behind this wall, there was this wall partition and we could not see as to what was happening around that wall. MR RICHARD When you say "... Thabiso quickly sprung into action and pointing his firearm towards the deceased, he accosted him" did you see that? MR MAESELA Like I said there was a wall partition between and we could not see what was happening on the other side of the wall, so when Thabiso went towards the deceased, he went there pointing his firearm. As to what happened at that very scene, I am not aware. MR RICHARD What was Thabiso doing at the point that he went out of your range of vision, or out of your field of vision? MR MAESELA Like I said, he had his firearm on his hand and he went running towards the truck. MR RICHARD And then before he got to the truck, you lost sight of him because of the wall? MR MAESELA Because of the wall, yes. MR RICHARD Then how do you know that the deceased had got into the truck and closed the door? MR MAESELA Isn't it - Thabiso explained to us after the incident. MR RICHARD We have established you didn't see directly what was happening, but now, once the deceased was in the truck and the door shut, let us hypothesise, would it be still possible without the use of firearm, to disarm a Policeman and ... MR MAESELA It would still be possible. MR RICHARD How would that be done? MR MAESELA If you directly point your firearm and he would see that his life is in danger, according to our plan if he immediately saw that we were in possession of firearms, that in itself, was to count in our favour because we thought he wouldn't put his life in danger, so he logically would surrender the weapons. MR RICHARD But an equally possible method of subduing him, would be to open fire? MR MAESELA No. Logic is that if somebody points you with a gun, there is nothing that you can do, but surrender without even firing. He is a trained member of the SAP, he has used firearms before, so he knows as a member of the SAP, they were psyched towards such eventualities. MR RICHARD However, you did not see what happened between the Policeman and Thabiso? MR MAESELA Yes. MR RICHARD Why according to your version, did Thabiso open fire? MR MAESELA This is my version because Thabiso said that when he went there, as he will explain before this Committee, he pointed his firearm and at that time, the way he puts it is that the late Mr Satega went as if he was going for his firearm and because he had already exposed himself, he thought it best, because Mr Satega was going, he went as if he was going for his firearm, he thought it best that he should open fire. MR RICHARD However, that is information that was reported to you, which you did not see? At page, typed 11, indexed 18, 9.7 you say "... at that point, about eight seconds after Thabiso had approached the deceased, a shot rang out." What happened next, you heard the truck? Did you see the truck? MR MAESELA It went passed from where we were standing. After the shot rang, it just went passed. MR RICHARD What did you do then? MR MAESELA Like I have explained before the Honourable Committee, that we acted impulsively, we didn't know as to who between Thabiso and the deceased, fired that shot. We acted impulsively, a shot had just gone off and here is the truck speeding away, Thabiso could have been injured and we acted impulsively and then started firing. MR RICHARD Do you not agree that a more rational acts would have been to do nothing, to just let the truck drive away? MR MAESELA Looking at the time difference, we never had time to even think within that fraction of a moment. MR RICHARD Were you being shot at? MR MAESELA Like I say, we never knew, personally I didn't know as to who between Thabiso or the deceased fired that shot. I never knew because I couldn't see as to what was happening around that wall. I acted impulsively without even thinking. We had a plan A, we never had a plan B. There was confusion reigning at that time as to what was happening. The plan had gone awry at that time. MR RICHARD My submission and I would like your comment on this, is that there were three men and one Policeman. The Policeman according to all accounts, was not suspecting an attack and would be out of the truck for the duration of the time that it took him to lock the gate and return to the truck, climbing in and closed the door. Is it not so that it was completely disproportionate to use firearms, you could have simply overpowered him with physical force? MR MAESELA Members of the Police do carry firearms and again, logically one cannot disarm somebody who is carrying a firearm, with bare hands. Members of the SAP were trained, they were armed, the were professional in approach. MR RICHARD Did you see him lock the gate? MR MAESELA We never, like I said, we never saw what happened around the corner. MR RICHARD How was the gate locked? MR MAESELA I don't know. I never saw what happened around, there was a wall partition. MR RICHARD How long did it take for the truck to leave the gate, stop, and for the driver to come back into the truck, can you give an answer? MR MAESELA I don't understand, where from sir? MR RICHARD The truck was in the driveway of a property? MR MAESELA Yes. MR RICHARD You heard the truck starting up and revving and it moved out of the driveway? MR MAESELA Yes. MR RICHARD Now there was a gate to be shut, so that meant the truck had to stop, the driver had to get out and go to the gate, shut the gate which involved him doing something, either fiddling with keys, you can't answer, you didn't see and then once the gate was shut, climb back into the truck and shutting the door. How long do you estimate that that exercise would take? MR MAESELA I cannot specifically say how long. MR RICHARD But a fair number of seconds, if not half a minute, a minute, a minute and a quarter, I can only say a fair amount of time? MR MAESELA Like I say we were about 15 to 20 metres from his house, we had to come running at the house next door, so it all takes time. All of this action takes time, and at that time, he was already reversing out of his yard. MR RICHARD In the summary of substantial facts submitted by the Attorney General's office before the trial, at paragraph 3 ... ADV DE JAGER What page? MR RICHARD Indexed 51, there is the statement "numerous shots were fired at the truck". How many shots do you think were fired, do you have a recollection? MR MAESELA I don't know how many exactly shots were fired. MR RICHARD Was it more than two, was it more than 10? MR MAESELA Probably more than two were fired. I fired from an automatic rifle. MR RICHARD This summary then goes on to say "an attempt was then made to remove his firearm." Is that correct? MR MAESELA The primary, like I said the primary objective was to disarm the firearm, but we never had the chance to do so. MR RICHARD Did you attempt to remove the firearm, did you go up to the truck after it had become stationary, pulled to a stop, opened the door? MR MAESELA No, we never got to the truck. MR RICHARD What prevented you? MR MAESELA Like I said here, that we saw a car approaching, we saw car lights approaching, this was at the time when we decided to retreat out of that situation. MR RICHARD Once this other car arrived, did you know who was in that car? MR MAESELA I never noticed, at that time, I was retreating out of the situation, it was at a time when I was crawling on the ground and one could not see as to what was happening in the street. MR RICHARD Isn't it so that at any point in the operation, you could have done exactly that, because now we had another car on the scene with unknown occupants as far as you were concerned, and you managed to get away, so that means that at any time, you could have retreated from the attack and aborted it as you did when the new vehicle arrived on the scene? MR MAESELA As I have explained before sir, that just after Thabiso beckoned that we should follow the truck, it was at that time when confusion was reigning around, you know, and we went after the truck and it was only at the Stadium that I started to think rationally, to say that once I would stick in this situation, it would mean that I will not be realising the primary objectives which is to disarm and maybe it would lead that lives would be lost, so that is why I decided to retreat out of that situation. Like I said here, two members of the Police came straight towards me, but they couldn't see as to exactly where I was. I had the advantage over the two members, I could have shot at them. They didn't see exactly where I was and I had my rifle trained at them, but I couldn't do it because I battled with that in my mind, and eventually I thought of the primary objective which was not to kill, but to disarm members of the Police, MR RICHARD And ... MR MAESELA So, I got away. MR RICHARD And hence my proposition that at any point in time, the attack on the deceased could have been aborted and you could have disengaged and left him alone? MR MAESELA When, when was that sir? MR RICHARD At any point in time. MR MAESELA The only time this plan went awry was after a shot was fired and it was already late, that shot caused confusion, that shot made us to act impulsively. If that shot was not fired, my profound belief is that we would not even have fired at the deceased, because our intention, our plan was only to point firearms and disarm him of his service pistol and not to shoot, or rather to kill. That is why I even said that I can never justify murder. I mean even if it be committed for a just or an unjust cause, I can never justify murder. MR RICHARD Now, what flows from what has been said so far is that you had a target who you had observed and studied, is that not correct? MR MAESELA Can you repeat your question again. MR RICHARD You had a surveyed and considered your target, the deceased? MR MAESELA That is true sir. MR RICHARD You had made notes as to when he got home from work, when he left for work, what sort of firearm he carried? MR MAESELA Yes. MR RICHARD What sort of vehicle he drove, etc? MR MAESELA Yes. MR RICHARD So you knew your target's movements and habits and specifics, correct? MR MAESELA Correct. MR RICHARD The essence of it is that before you set out at four o'clock that morning, you knew you were going to attack an armed man, is that not correct? MR MAESELA That is correct sir, with the intention of disarming. MR RICHARD You have also confirmed in your evidence today, that a trained Policeman ought to know how to use his firearm, in your opinion so that meant that there was a very real and imminent possibility of a fire fight, a firearm, a fire exchange between you and the deceased? MR MAESELA Because of our number, we had thought this to be a very easy mission. We were five, three of us were armed with firearms and he was one, and our plan, like I said, was only to point and logically speaking, we thought that if he saw the firepower that we had, he naturally would surrender his firearm. MR RICHARD Let's go to the scene of the shooting, there were five of you? MR MAESELA Yes. MR RICHARD How near was the nearest person to the gate? MR MAESELA About three, four metres away. MR RICHARD And how far away from him, was the nearest other person? MR MAESELA The nearest other? MR RICHARD The other one of the five? You've got one who was two, three metres, or three, four metres away from the deceased when he was out of the truck, and now somebody was near him. How far away was that person? MR MAESELA We were all on the same place before Thabiso could run towards the deceased. MR RICHARD So that means that from what you have said earlier, you intended that the five of you, should confront the deceased so that he could see all five of you? MR MAESELA That is true. MR RICHARD And you knew where this wall was? MR MAESELA Where? MR RICHARD Where this wall was? MR MAESELA Yes, we knew. MR RICHARD The wall that so to speak, obscured your view? Isn't it strange that nonetheless, one person advances from the group of five and a shot goes off, instead of all five attacking the man when he is vulnerable, out of the vehicle, fiddling with his keys and his gate and, isn't that the moment that would have been appropriate for all five to accost him? MR MAESELA Like I said the appropriate moment that we chose was at the time when he would be locking his gate, but it so happened that when we came to that position' that he had already done so. MR RICHARD But you had all night to set up? You had all night to set up your ambush? MR MAESELA All night? MR RICHARD You left at four o'clock, you could have left at three o'clock, you had as much time as you wanted to get into position? MR MAESELA Because of that dividing wall sir, it was important on our part, that we should be like I said here on 10.17, it was important that we quarter concealment next to the mine dump, because if we would be next to his gate, we wouldn't know the time when he would be reversing his truck. But from our position, it was even safer to do so. MR RICHARD Now, I will return to the point, but after the event, you were arrested and it is correct according to your statement, that you were tortured? MR MAESELA Yes, I was tortured. MR RICHARD Now, during the course of your torture, what did you admit? MR MAESELA I admitted to the murder of Mr Satega. MR RICHARD You admitted to the murder in what terms? Did you admit being the person who pulled the trigger to kill the deceased? MR MAESELA As one of those who pulled the trigger, yes. MR RICHARD In fact you admitted to setting up an ambush, waiting for the deceased to go into it, and shooting him when he was in the killing field of the ambush, is that not correct? MR MAESELA Actually you should understand that when one is making a confession under duress sir, the whole cause or rather, that whole confession is put in such a way as the Police want it to be, not exactly how it happened. By the time I tried to explain that our principal objective was to disarm and not to fire, they did not entertain that and every time that I tried to explain as to the political surroundings or rather the political implications of this whole case, they wouldn't entertain that. MR RICHARD We haven't yet started with political objectives, but robbery consists of the taking by force of a thing from another person, so it is correct in terms of an ordinary Policeman's logic, that you intended to use force to take his firearm? MR MAESELA Yes. MR RICHARD And therefore commit robbery? That is what a Policeman would call it? MR MAESELA That was what was recorded on the confession. MR RICHARD Is there anything ... MR MAESELA But we do not refer to it as firearm robbery, we refer to it as Police disarmourment. On Police terms it is referred to as robbery. MR RICHARD Sir, I understand the difference between the difference in words now, but at the time, a Policeman investigating a crime without taking into account the politics of the time, would look at it this way, he would say did you go up to that particular address with the intention of using force to take a firearm? MR MAESELA Yes. MR RICHARD You said yes. MR MAESELA That was not the way he put it. MR RICHARD But that is in substance, what your confession says, you did? MR MAESELA Exactly. MR RICHARD And it is in substance what you have told this Committee, today, you did? MR MAESELA In a way, yes. MR RICHARD The only factual distinction is between whether you personally pulled the trigger which resulted in the shot which hit the deceased in the neck or whether one of the other people who shot as well as you were responsible for that particular shot? MR MAESELA Like I have submitted and acknowledged before the Honourable Committee that I might have fired the fatal shot, I will never dispute that fact. MR RICHARD Do you know which shot it was that you fired? MR MAESELA I don't know, like I say if it comes to a push, I will never even dispute that fact. I take full responsibility of my actions, sir. MR RICHARD And you have also admitted that you were part of a group that foresaw the probability, the very high probability that during the course of the taking of the firearm from an armed man, a gunfight would ensue? MR MAESELA We never entertained that eventuality. Like I said before that logic teaches us that if you are pointed with a firearm, you have to surrender your firearm. As a trained member of the Police, such psyching up happens in the course of one's training, one who produces his firearm first, is the one who normally ends up being the winner in that situation. You do not have to do anything that would endanger your life. ADV DE JAGER Mr Richard, as far as I could follow and having listened to your cross-examination, it seems to be common cause that he, the applicant, was a member of a group of people who wanted to rob a firearm and in that process, killed a Policeman? Or isn't that common cause? MR RICHARD Chairperson, the two issues that are being canvassed, whether the force used was proportionate or not, in other words the proportionality, and what comes next is whether the motive for the theft was purely commercial and a-political in other words an act of banditry or whether it was political. ADV DE JAGER It is not common cause that they as freedom fighters, wanted to rob a firearm? That part is not common cause? MR RICHARD What I have before me is the ipse dixit of the witness, the witness' own words saying the attack was committed with a political motive which it believed, there is not dispute, would fall within the ambit of the Act creating this Committee and the Commission. However, the duty and onus is on the applicant, the witness before the Committee to discharge the test as to whether it was committed with a political motive or not. My instructions are that that is not common cause, the only method of testing as to whether it is in fact so, is by cross-examination. What I am trying to establish Chairperson, is that there was an ambush during the course of which, disproportionate force was used with the intention of robbing the deceased and next the bread delivery van of their vehicles, their firearms and whatever else might be found. ADV DE JAGER You in fact put it to him at a stage that the Police at that stage, were let's put it in brackets, legitimate targets for freedom fighters? MR RICHARD (Microphone not on) ... all common cause. I have established that in his mind, they were legitimate targets. ADV DE JAGER Let me put it to you, I accept that you have mentioned the proportionality aspect and that would be argument and you have questioned and laid a basis for an argument. But I am not sure that you have contested that they had been members of MK, they received training, they targeted this man because he was a Policeman and the only thing that they could rob at that stage from him, as far as I can ascertain from their evidence, would be a firearm. (Microphone not on) ... evidence of that, there is no evidence of anything else he had with him that would contribute to an ordinary robbery for personal gain. MR RICHARD Chairperson, I would submit and argue that for a common bandit to rob a firearm from a Policeman, is as consistent as any other robbery. We need only reflect on our current times, Police remain the targets of attack for their firearms, for no political reason at all. What distinguishes this applicant from the modern situation to the situation that prevailed in 1993? Sir, once you had taken the firearm, what would you have done with it? MR MAESELA Given the situation at that time sir, there was a lot of violence in and around black townships and we witnessed such violence, violent attacks by Third Force activists and at the same time, Police were also involved in these attacks. First of all, it was imperative on our side, to disarm members of the Police of their firearms, secondly, we had to arm other members of our community for the purposes of self defence. Roundabout 12 000, 13 000 innocent people died in massacres, drive-by shootings as I have mentioned here. The situation was such that we could just not sit down and fold our arms. MR RICHARD Do you, or should I put it this way, did you at that time think that the Police had any shortage of firearms and if one was taken away from a particular Policeman, it could not be replaced? MR MAESELA It could be replaced but also that to demoralise the Police, they would know that they had people, there were people out there, trained people out there who were also fighting against what they were actually purporting. MR RICHARD But then it is also inherent and implicit in your statement of what you have just said, that from your point of view, you would be one firearm up which you certainly did suffer from a shortage of? MR MAESELA We would be one firearm up if we had disarmed his service pistol. MR RICHARD In other words the firearm had a value to you? MR MAESELA Yes, of course. MR RICHARD And at that time, how much would a firearm sell for? MR MAESELA We wouldn't even contemplate selling firearms. MR RICHARD That is not my question. MR MAESELA I don't know. I don't know how much it would sell for, I never sold firearms. MR RICHARD Would you dispute that it would have a commercial value? MR MAESELA I cannot answer that question because at that time I was not even interested in the commercial value of a firearm. The situation was such that the lives of innocent people came first, that is in the first instance what led to us voluntarily sacrificing our lives towards protecting innocent lives and taking the struggle forward. MR RICHARD Now, Chairperson, at this stage, I do have a disadvantage, I don't have a copy of the record of the proceedings, but nonetheless I will do what I can without it. During the course of your trial, did you ever mention to the High Court that you were an ANC member and an MK soldier? MR MAESELA Our strategic approach together with my legal representatives at that time, was that since I was pleading not guilty to the said crime, making mention of my underground activities, would in a way, influence the outcome of the trial, so I never made mention of my activities. MR RICHARD During the course of which year did your trial take place? MR MAESELA 1994. MR RICHARD Before 27 April 1994 or after 27 April 1994? MR MAESELA Before. MR RICHARD Now, how long before? MR MAESELA I was only sentenced March of 1994. MR RICHARD Would you not agree that during the period January, February, March 1994, it was common knowledge that a new government would come into being? MR MAESELA Prospects were a new government would come into the ruling, but we cannot say for sure that it would happen. MR RICHARD What did you believe at the time? MR MAESELA I was in prison sir, you should remember I was still in prison at that time, I was battling to secure my release. MR RICHARD Isn't it so that if then, as did happen, the changes did take place, if you had played open cards with the Court and said yes, there was a premeditated attack which I was part and parcel of, but it was political, you would have been in a far better position, a far more understandable ... MR SHAI Objection my Honourable Committee, Mr Richard is asking the applicant to give an opinion on what the Judge would have done, and I think it is unfair to the applicant. Nobody knows what would have actually happened to the outcome of the case if he had done that, only the Judge knows. CHAIRPERSON Yes. And besides, Mr Richard, the applicant seems to have indicated that in any case, this was a strategic decision which was taken on legal advice at that time, which is not so uncommon, especially in proceedings before us, of this nature. We are often taken aback by the little value that one can place on the proceedings before the Courts, it is just quite shocking sometimes. MR RICHARD Chairperson, I am in the fortunate or unfortunate position of also having defended a number of people at that time on highly similar situations. I would lead that point, I really can't draw an inference from his failure to take the Court into his confidence. However, as matters stand now, I believe that I can conclude my cross-examination, but would find it useful to at least have a discussion with someone who might have seen the record, because at the moment, I am trying to conjecture as to what the record might or might not have had which I think is entirely unfair to both the witness and myself. I do not know whether the whereabouts of this record will be located by tomorrow morning, by the clerks in the Attorney General's office. My suggestion and I do not put it on the level of an application, is that the matter stand down until Thursday so that I can spend the morning, tomorrow, at the High Court in Johannesburg, to see what I can find. CHAIRPERSON Yes. We have come to the end of the day so we are going to adjourn the proceedings at this stage. We have a fairly tight roll here, we have some other matters which we will have to get to tomorrow, so you know, and arrangements have been made with the legal representatives in those matters to be available tomorrow so that their matters can proceed. Those are matters which won't last for the day, at best it will take a portion of the day tomorrow to deal with. We would certainly not be able to postpone this matter to Thursday, we will have to postpone it until tomorrow, however, in all likelihood you would have some time tomorrow to look into the question of the court record and the other court documentation that you might want to have a look at, but at this stage, you know, I've got to indicate to you that the matter will have to proceed some time tomorrow, not the first thing in the morning though. You know, so there should be some time for you tomorrow to further look into this question of the record. MR RICHARD Chairperson, taking into account traffic between here and Johannesburg, would one o'clock be suitable to the Committee? I can make a firm commitment to be here at one and that will allow me between twelve and one, to get here. CHAIRPERSON Yes. Can I just hear from Ms Mtanga, we've got the matter where Adv Berger is involved and that one has been arranged to be heard tomorrow, not being aware at that time, of how this matter would be, what turn this matter would be taking. In fact we were confident that this matter would have started much, much earlier today and in fact, would have been close to conclusion. We thought that we would have disposed of it tomorrow, but we are committed to accommodate the other matter tomorrow, would that be correct? MS MTANGA Yes Chairperson, and we also have another matter which was postponed from Friday, the Simelane matter, so we've got two matters for tomorrow. We are going to start with Simelane and carry on with Mr Danny Berger's matter which is going to be quite long in my estimation. CHAIRPERSON Yes. Thank you Ms Mtanga. Mr Richard, of course we are trying to balance out, we want to accommodate you, we are looking at Mr Shai, we are looking at everybody, but by the looks of things, we are going to be tied up in the morning tomorrow, so it should be in order if you are able to be back at one o'clock as you have indicated. MR RICHARD As the Chair pleases. CHAIRPERSON Yes. Mr Shai, your matter obviously by the looks of things, are going to proceed for a while, at the very least tomorrow some time, we have accommodated Mr Richard, we were aware of the fact that he had actually gone back this morning to collect these documents that he needs and he has not been able to get it today. You know, in order to be fair to his case as well, we have to allow him a bit of time, we won't be able to start with the matter straight in the morning, as I have indicated to him already, we have some other commitments, so you know, your matter will have to carry on tomorrow in the afternoon, definitely not before one o'clock? MR SHAI Are we going to start at one o'clock or two o'clock? CHAIRPERSON Probably, it will probably start after lunch, it is going to be a short lunch, we take the lunch adjournment between one o'clock and half past one, so it should be - it wouldn't be before half past one, let me put it that way. One is never sure how these things works, so I am not sure if there is a more convenient arrangement, I am not sure if you are local or whether you have to travel here, what your circumstances are? MR SHAI No, I travel from Germiston, but two o'clock will suit me also, because in the morning, I also have some matters to do as well. CHAIRPERSON Okay, can we, Mr Richard as well, can we then rather call it two o'clock, we will say we are adjourning the matter until two o'clock tomorrow and we will start with it as soon as we can from two o'clock onwards. MR RICHARD I am indebted. CHAIRPERSON Yes. All right, we are adjourned. COMMITTEE ADJOURNS