amntrans AMNESTY HEARINGS 1999-06-10 PRETORIA 6 THABISO TEKANE https://sabctrc.saha.org.za/hearing.php?id=53461&t=&tab=hearings https://sabctrc.saha.org.za/originals/amntrans/1999/99060310_pre_990610pr.htm CHAIRPERSON Who is next, Mr Shai? MR SHAI Mr Thabiso, Thabiso Tekane. CHAIRPERSON Can he come forward please. Please remain standing and give your full names. THABISO TEKANE (sworn states) CHAIRPERSON Thank you, please sit down. Mr Shai? EXAMINATION BY MR SHAI Mr Shai says that he's going to proceed in English. Mr Tekane, you are the younger brother to Nathaniel Eric Tekane, is that correct? MR SHAI And I presume that you were also born in Rockville, you stayed in Rockville during the time of the incident. MR TEKANE Yes, that's right. MR SHAI How far have you studied? MR TEKANE Until matric, although I did not complete it. MR SHAI Now I'm just going through posed questions relating to aspects that were alluded to and that relate to you. Now it's said by Nathaniel and Mr Mayisela, that you were at a stage a commander of the unit under which they carried out their duties, correct? MR TEKANE That's correct, yes. MR SHAI Who were you reporting to? MR TEKANE To comrade Magret Stofile. MR SHAI Were you trained in some way? MR TEKANE Yes, I did receive a crash course, similar to the one my brother had in Lesotho, and later when I was, when I joined this unit of Magret Stofile, I again received a crash course. MR SHAI: Were you at that stage a member of any political organisation or just a mere supporter? MR TEKANE During the training in Lesotho, I was a mere supporter and I think I was being recruited. And during the other training session I was a member. MR SHAI Now just one aspect that causes confusion on the shooting incident. We heard evidence that you are the first person to actually approach the police officer, is that correct? MR TEKANE That's correct, yes. MR SHAI Now just briefly tell us what happened behind the wall when you so approached him. MR TEKANE As I arrived at the scene, unfortunately he saw me when I emerged from behind the wall and that time he was getting into the car and he made a move that could easily be reaching for a gun or taking cover. I panicked at that time and assumed that he was reaching for a gun because the lights were in my direction and I had a gun in my hand and I fired a shot in his direction. At the same time passing the door to take cover behind the back of the truck. MR SHAI As a commander of the unit, did you intend to kill the policeman, initially? MR TEKANE No. MR SHAI No further questions. NO FURTHER QUESTIONS BY MR SHAI CHAIRPERSON Yes, thank you, Mr Shai. Any questions, Mr Richard? CROSS-EXAMINATION BY MR RICHARD Thank you, Chairperson. From your brother Nathaniel's evidence I gather you are serving a sentence for the murder of this policeman, is that correct. MR TEKANE Yes, that's correct. MR RICHARD And how long is that sentence effectively? MR TEKANE 39 years. MR RICHARD 39 years. When were you sentenced? MR TEKANE In June 1998. MR RICHARD June last year. MR TEKANE Yes. MR RICHARD Now when were you arrested? MR TEKANE In 1995. MR RICHARD Now on the 13th of March 1997, you made a statement to the South African Police, do you remember the incident? MR TEKANE Yes. MR RICHARD And if I refer to Exhibit C, paragraph 11.2, 11.1 and 2, there - do you understand Afrikaans or shall I translate? MR TEKANE Please translate. MR RICHARD And there at paragraph 1 of paragraph 11, it says "Do you expect any benefit in return for making a statement?" And your answer was: "Yes" And then it says: "If yes, what benefit?" And your answer was: "So that my punishment would be lighter and I will get amnesty. I intend making application therefore." Do you recall that? MR TEKANE Yes. MR RICHARD Now why did you make the statement that you intended to apply for amnesty? MR TEKANE It was my intention and that question kind of surprised me and after I'd said "yes", I had to give a reason, but most of the things that I said in that statement and I contested it in Court. MR RICHARD Now I understand that you did file an application for amnesty. MR TEKANE Yes, I did. MR RICHARD When did you complete the forms? MR TEKANE I was in Grootvlei Prison. MR RICHARD When was that? MR TEKANE Shortly after that incident, towards to the end of the month of March 1997. MR RICHARD End of March 1997? MR TEKANE Yes. MR RICHARD Now at that stage in 1997, were you legally represented? MR TEKANE Yes. MR RICHARD By who? MR TEKANE I'm sorry, I've forgotten his name, but I had an attorney. MR RICHARD I might be able to assist you. Was it not - and I might be wrong, I might have misunderstood it, Mohammed Randera? MR TEKANE Yes, he was my lawyer at that stage, but not actively. He was waiting for me to be transferred over to Johannesburg, so that we could commence the case for which he was representing me. MR RICHARD Now who advised you of the nature and defect of the amnesty applications and how they worked? MR TEKANE Well I did get in touch with my comrades from the movement. I was reluctant to apply to some extent, that is why I applied so late, just before the deadline and they advised me to apply. MR RICHARD Now before your trial, did you tell your legal advisors, legal representatives, that you had made an application? MR TEKANE Yes. MR RICHARD And what was their advice to you? If that's a privileged question you don't have to answer it, but I'm inviting you to and also saying if you choose not to, you don't have to. MR TEKANE I'm sorry, please repeat. MR RICHARD My question, which you do not have to answer is, what advice did you legal practitioners give you when you told them that you had applied for amnesty. MR TEKANE I don't remember if they gave any advice. MR RICHARD Was it ever said to you that you had applied for amnesty, something else might happen in your criminal trial? MR TEKANE Something like? MR RICHARD The criminal trial might not take place until after your amnesty hearing had been heard. MR TEKANE I know that it happened in some cases, but in our case they said it would not. MR RICHARD Was a reason given? MR TEKANE No, not that I remember. MR RICHARD However, as at the time that you made this statement you understood what an application for amnesty was and intended to bring an amnesty application? MR TEKANE Yes, although not clearly. MR RICHARD Now was it explained to you that if you made a full and complete disclosure and could satisfy the requirements of the Act, that there was an order, that there was a bona fide political objective and so on, you could tell the truth, you were free? CHAIRPERSON Mr Richard, to whom? MR RICHARD Did anyone explain that to you? CHAIRPERSON No, no. If he makes that disclosure to whom? MR RICHARD In his amnesty application. CHAIRPERSON To whom, to the Amnesty Committee? MR RICHARD Yes. CHAIRPERSON Yes, put it to him. Make it clear, please. MR RICHARD Thank you, Chairperson, I apologise. Were you told that if you made disclosure to an Amnesty Committee, and your application and disclosure satisfied the requirements of the Act, you could feel confident to tell the truth, to an Amnesty Committee? MR TEKANE Yes, although I wasn't told by anyone in particular, but it is something that I knew. MR RICHARD So the inference then is that at the time you made the statement to the police on the 13th of March, you were confident that you could tell the truth? MR TEKANE Where was this? MR RICHARD To the police now. MR TEKANE Not to the police, no. MR RICHARD Then why did you make this statement to the police? MR TEKANE It's what they wanted. MR RICHARD Didn't they tell you you had a right to remain silent? MR TEKANE No. MR RICHARD Because at page 1 of the statement, paragraph 1, the question is "Do you understand the warning and notwithstanding (at paragraph 2) you want to make a statement?" Wasn't that explained to you? MR TEKANE What is that? MR RICHARD When a statement such as this is made to the police, as at '97 the Constitution had come into effect and had been in effect since '94, in fact for three years, and there's a procedure that they followed. The first is that you are warned ...(intervention) MR SHAI Objection, Mr Chairman. Mr Richard is actually inferring that the person who took the statement actually followed the correct procedure. We still have cases today - not testifying exactly from where I am, wherein the procedure is not followed. Unless he lays a basis for that as far as this specific statement is concerned. CHAIRPERSON Yes, perhaps Mr Richard, you should ask him what happened. If this is going to assist us in this application before us, if it is relevant for the moment. I'm assuming it is. MR RICHARD Thank you, Chairperson. Were you warned that there was no obligation on you to make a statement before you made a statement? MR TEKANE No. MR RICHARD Very well. Now your relationship with the ANC, when did you first make contact with the ANC? MR TEKANE Well I could say I grew up in the ANC. My parents have always been supportive of the ANC, as far back as I can remember. MR RICHARD When were you firmly invited, first formally invited to join the ANC as a member? MR TEKANE In 1986. MR RICHARD Did you join in 1986? MR TEKANE I first joined the MK before I joined the ANC, and I joined and became a card-carrying member in 1992, I think. Yes, in 1986 I became an MK member. ADV DE JAGER In 1992, or when was this, 1993 when this happened, this incident, you were already a card-carrying member of the ANC? MR TEKANE Yes. ADV DE JAGER Thanks. MR RICHARD While you might have been a member of the MK in 1986, if I understood, where were you in 1986? MR TEKANE I was in Soweto. MR RICHARD And when were you in Lesotho? MR TEKANE Earlier in the '80's. MR RICHARD Was it before 1986, or after 1986? MR TEKANE Earlier, before. MR RICHARD Before. And there you received training from the ANC, from one or other of its wings. MR TEKANE Yes. MR RICHARD Which wing trained you? MR TEKANE Sorry? MR RICHARD Which - who trained you in Lesotho? MR TEKANE A man names Siphwe. MR RICHARD Siphwe Khumalo, if I remember correctly. MR TEKANE Yes. MR RICHARD And how long was that training for? MR TEKANE Well you could say a week or two. MR RICHARD So between 1986 and 1992, what did you do politically? MR TEKANE Well in the beginning, as in my brother's case, we used to carry literature from Lesotho, into the country. ADV DE JAGER Mr Richard, would it really be relevant what he was doing during the '80's? We're dealing with an incident in the '90's. MR RICHARD My question is leading as to whether at the time of the incident he believed that as an SDU member, not as an MK soldier, it was legitimate to attack a policeman. ADV DE JAGER Well suppose it wasn't legitimate, he as a member of a certain organisation attacked a member of the opposition, isn't that the only requirement of the Act? MR RICHARD He gave an order to his ...(intervention) ADV DE JAGER ...(indistinct) MR RICHARD Chairperson, I'll approach it completely differently. On a day, or the day before this particular incident, why did you believe it was permissible to attack that policeman? MR TEKANE Because the order had been given. MR RICHARD By who had the order been given? MR TEKANE It came from higher up, but I received it from Magret. MR RICHARD When had you received that order? MR TEKANE At the formation of the SDUs. MR RICHARD When was that? MR TEKANE It was have been 1990, or '91, early in the '90's. I'm not sure about the year. MR RICHARD When did you become the commander of this particular unit? MR TEKANE I don't remember exactly the date, but when comrade Molefe died the unit of which he was commander, was absolved by the unit which I was commanding at that time. MR RICHARD So what your relationship with Oupa Moreme? MR TEKANE Oupa Monareng. MR RICHARD Monareng, sorry. MR TEKANE Well he is my superior in the MK. MR RICHARD And who did he account to and report to? MR TEKANE I'm sorry? MR RICHARD Who did he account and report to? MR TEKANE Who did he report to? MR RICHARD Yes. MR TEKANE I do not know. MR RICHARD But he was your superior in the MK. MR TEKANE Yes. MR RICHARD What was the relationship between him and Magret Stofile? MR TEKANE As I took over Molefe's unit, he asked me how had I been operating before I met him and I told him I was operating under comrade Magret, that's how I sent my reports through. And I don't if he met comrade Magret and if so, how and where, but he told me to continue to report to her. MR RICHARD Now did you ever discuss the suspension of the armed struggle with anyone, be it Magret or Oupa? MR TEKANE No, not with anybody higher than me, but we discussed ...(indistinct). MR RICHARD You discussed it with who? MR TEKANE With my group. MR RICHARD And what did you understand the suspension of the armed struggle to mean to you and your group? MR TEKANE That a climate should be created for a negotiation. MR RICHARD Now when was this discussion within your group? Was it continuous, ongoing or just once or twice? MR TEKANE No, just once or twice. MR RICHARD And when was that? MR TEKANE At the time when we first heard about the suspension. MR RICHARD And when was that? MR TEKANE I don't remember clearly the year in which it was suspended. MR RICHARD Was it before you attacked the late Constable Sitege? MR TEKANE Yes, it was. MR RICHARD Now when you heard that the armed struggle had been suspended and you should create a climate consistent with negotiations, what did that mean to you, did it mean that you could continue attacking South African Police? MR TEKANE No. MR RICHARD So you agree then that after you had the communications that the armed struggle had been suspended, attacks against the South African Police were not encouraged or permitted? I'm asking what you meant by your "no". MR TEKANE An order was later given to disarm the police. MR RICHARD When was that order given? MR TEKANE At the formation of SDUs. MR RICHARD At the formation of the Self Defence Units, that was during 1990 or '91, if I understand. MR TEKANE Yes, but after the suspension of the armed struggle. MR RICHARD The suspension of the armed struggle first happened in 1990, but then some time later, were you aware that the late comrade Hani made a statement about the armed struggle? Were you aware that he had made a statement? MS SHAI Objection, Mr Chairman. I think the late Mr Hani made several statements. May my colleague be specific as to what statements he's referring to. CHAIRPERSON Yes. Mr Richard, are you disputing that there was an order to disarm policemen? MR RICHARD I'm not disputing that during 1990, there was such an order. CHAIRPERSON Yes. MR RICHARD I'm asking the witness whether he was aware of any other statements subsequent to that order. CHAIRPERSON Yes. Mr Tekane, are you aware of any other statements after you were ordered to disarm policemen? - contrary to that order. MR TEKANE No. CHAIRPERSON Thank you. Mr Richard? MR RICHARD So we then turn to the incident. When did you first plan to attack Constable Sitege, a week or two weeks before the incident? MR TEKANE About a week before. MR RICHARD Then the evidence is that you decided to keep him under observation, is that not correct? MR TEKANE Yes. MR RICHARD Who conducted the observation, who did the reconnaissance? MR TEKANE Almost all of us had a chance to reconnoitre. MR RICHARD Now you've been sitting in the room, Mrs Sitege has filed an affidavit with the South African Police, saying something to the effect that her husband's ritual, routine in the morning was to wake at 4 o'clock and leave for work at about 5 o'clock, and on this particular day he left at four thirty and came back at five. Do you have any reason to dispute her statement? MR TEKANE On that day that I did the reconnaissance it was not my observation. The truck had been in the yard since the night before and on the day of the attack we found the truck idling in the yard. I cannot say if he, it had just arrived or if it had been there since the night before. MR RICHARD Now during the hour between 4 o'clock and 5 o'clock, that's the incident at the Terminus Cafe and the incident at the late Constable Sitege's house, where were you? MR TEKANE Sorry? MR RICHARD The attack on, or the incident with the Albany Bakery delivery van at 4a.m. and then the attack on Constable Sitege, at about 5a.m., there was about an hour in-between the two, is that not correct? - from what we've heard. MR TEKANE Yes. MR RICHARD Where were you for that hour? MR TEKANE During that hour? MR RICHARD Mm. MR TEKANE Somewhere between the two places. Now far apart are the two places? MR TEKANE Not so far apart. MR RICHARD Approximately 150 metres, or more, or less? MR TEKANE Yes, it could be more. MR RICHARD How much more? MR TEKANE A little more. MR RICHARD 200 metres, half a kilometre? MR TEKANE Maybe a little less than 200. MR RICHARD So that means, for that entire hour, could you see - and I put it to you, you could see, the Sitege household. MR TEKANE No, no. It might be visible maybe if you look at it from above, but then there are houses in-between, it cannot be seen from quite far. MR RICHARD So for that hour, where precisely did you hide or where were you for that hour? MR TEKANE For the hour? MR RICHARD Yes. MR TEKANE I don't if it's an hour that I spent from when I left the room, when we all left the room at the shop, until we reached the house of Mr Sitege. MR RICHARD Let me put it another way. Were you present at, or near the Terminus Cafe in Rockville, when your older brother met, shot at, according to his evidence, the bread delivery van? MR TEKANE Yes, although not with him. MR RICHARD You were there. MR TEKANE Yes, I was. MR RICHARD That, according to what we've heard, happened at 4a.m., correct, or not? Was it later or earlier? MR TEKANE Well I didn't have a watch on, I don't know exactly if it was four. MR RICHARD Now from the time of that incident to the time of the beginning of the incident at Constable Sitege's house, where were you? Whether it was an hour more or less, I don't mind. Where were you? MR TEKANE Well from the time I left the room at the shop, we were disturbed by this truck and as we've heard evidence of the other witnesses, there was a shooting and a delay, then we left for our planned destination. We went to an observation point where we saw the truck reversing out, then we rushed to the house next door, to Mr Sitege's. And I guess that's where I was during the hour, if it was an hour. MR RICHARD As I understand it then, you went from the scene outside the Terminus Cafe, to Constable Sitege's house and as you arrived at Constable Sitege's house you saw the truck reversing out, is that what you're saying? MR TEKANE Yes, it reversed while we were there. MR RICHARD Now my proposition is that Constable Sitege's house is less than quarter of a kilometre away from the Terminus Cafe. There's an hour between the two incidents, according to what we've heard, or thereabouts, I'm not saying precisely an hour. To walk a couple of hundred metres doesn't take an hour, there's time unaccounted for, or the time periods are wrong. MR TEKANE I don't know if the people who gave these times are making estimates or are being accurate, but I suspect that they are estimating. CHAIRPERSON And besides, Mr Richard, how does it help us to decide this application. MR RICHARD So you saw the truck - now we go to the incident. Before the truck reversed out, did you see Sitege's house? MR TEKANE Yes. MR RICHARD And what was happening before, was the truck there or not? MR TEKANE It was there. MR RICHARD It was idling. Now did you see Sitege come out of the front door, or the back door? You were at an observation point. MR TEKANE Yes. MR RICHARD And what did he do? MR TEKANE He reversed the car. MR RICHARD My question is, he came out of his house, did you see him come out of his house? MR TEKANE No. MR RICHARD When did you first see him? MR TEKANE When I accosted him. MR RICHARD So that means you didn't see him at any time between him leaving the house and get into the truck, you first saw him at the house, at the truck, sorry. MR TEKANE Yes, when he was climbing into the truck. MR RICHARD And where were you when you saw him climbing into the truck? MR TEKANE I was next to him. MR RICHARD How far away, one or two metres? MR TEKANE MR RICHARD And what did you do? MR TEKANE I pointed the firearm in his direction and shouted to him to freeze. MR RICHARD And what did he do? MR TEKANE He went further into the vehicle and sort of lied on the seat. MR RICHARD And what did you do in response? MR TEKANE I fired a shot in his direction. MR RICHARD Now where were the others in your group? MR TEKANE I don't know at that time, but it was only a matter of seconds before they appeared, although I was under the impression that they were following me. They were at my heels as we had planned. MR RICHARD Now we know that the truck was idling and Constable Sitege went into the cab of the truck. How long did it take him to get the truck into motion? MR TEKANE In no time at all it was, started moving. MR RICHARD And what did you and your group do then? A shot had already been fired. MR TEKANE Well they appeared and fired. At that time I was behind the truck, so I shot at the wheels, trying to bring the truck to a stop. MR RICHARD Now your evidence is that you didn't set out with a plan to murder the policeman, you set out with the intention of robbing the firearm, is that correct? MR TEKANE Yes. MR RICHARD Now I also understand that there were five of you in your group. MR TEKANE Yes. MR RICHARD Why isn't it that you were not in place before Constable Sitege got into the truck, or got near the truck door? MR TEKANE We were delayed by the incident of the bakery. MR RICHARD No further questions. NO FURTHER QUESTIONS BY MR RICHARD CHAIRPERSON Thank you, Mr Richard. Ms Mtanga, any questions? MS MTANGA No questions, Chairperson. NO QUESTIONS BY MS MTANGA ADV DE JAGER Have you read this statement that you've made to the magistrate? MR TEKANE Yes. ADV DE JAGER I don't want to go through this statement, but could they show it to you, your legal representative put it before you and could you tell me what in this statement isn't the truth. MR SHAI May I just put it to Mr Chairman, that I actually translated this statement to him, so I'll have to go through it again with him, so that I should tell him this is what ... ADV DE JAGER Your legal representative has gone through this statement with you, what in that statement isn't correct? MR TEKANE There is a part where I say: "We decided to rob the bakery firm". ADV DE JAGER Yes. That is not correct? MR TEKANE No, that is not correct. ADV DE JAGER And you're not applying for amnesty for a robbery on the bakery van, or an attempted robbery on the bakery van? MR TEKANE I'm sorry? MR SHAI ...(indistinct) get some clarity. I think the Committee's not listening to the amnesty application for this witness. ADV DE JAGER Yes, but he told us he's applied for amnesty. Did you apply for amnesty for robbing, or an attempt to rob the bakery van? MR TEKANE No. ADV DE JAGER Right. Now in this statement ...(intervention) MR TEKANE Although I was convicted for it. ADV DE JAGER Ja. So you're not applying for that. Right. What else in this statement is not correct? MR TEKANE May I have a look at the statement? ADV DE JAGER Okay, I'll help you. In a paragraph you say: "We rushed at the policeman", you and Mogatle ran next to each other, Mogatle was on your right-hand side. Is that correct, or is it wrong? MR TEKANE No, that is wrong. ADV DE JAGER Where was Mogatle? MR TEKANE As I rushed forward I was under the impression that he was following me, he was at my heels. ADV DE JAGER At your heels. MR TEKANE Yes, but then I later heard that he was left behind. ADV DE JAGER And you then continued to say "I went to the driver's side of the vehicle and Mogatle to the front of the vehicle". Is that correct? MR TEKANE No, that's not correct. ADV DE JAGER Then you continue and ...(intervention) MR TEKANE Or part of it is correct, because I did go to the right-hand side of the vehicle, the other side. ADV DE JAGER Yes. Then you said, when the policeman saw you he put his vehicle into movement before he closed the door. MR TEKANE That is also not precise, but close. ADV DE JAGER Then you say "We approached the vehicle from the front" Using the word "we" approached the vehicle from the front. "The headlights were on and he could see us." MR TEKANE Yes, but only me. ADV DE JAGER Only you. MR TEKANE As I later learnt. ADV DE JAGER Then you say I and Mogatle fired shots at the vehicle." MR TEKANE I fired a shot and he fired after me. ADV DE JAGER How many shots round about were fired? MR TEKANE Did I fire, or were fired? ADV DE JAGER Were fired at the vehicle, as far as you, or can't you say? MR TEKANE I can't say for sure, but I fired, I myself fired several shots. ADV DE JAGER Because according to the post-mortem there was about, between 10 and 16 bullets wounds in the body. MR TEKANE I fired several shots and as my comrades told me, they also fired several shots in the form of shot bursts from an automatic weapon. ADV DE JAGER Yes. Now you've told us that you had no intention to kill this person. MR TEKANE Yes. ADV DE JAGER Now you've been convicted of murder. MR TEKANE Yes. ADV DE JAGER Could you tell me, what political motive you had in killing him then, because you acted spontaneously? Did you ever consider what would happen if you kill him? MR TEKANE Since my presence at that place was politically motivated, everything that transpired there I regard as being politically motivated. ADV DE JAGER Didn't you shoot him in self-defence when he reached for his weapon? MR TEKANE That's correct. ADV DE JAGER So you did you kill him for political reasons or in self-defence? MR TEKANE Well you could say in self-defence, but since I was there for political reasons, because if it wasn't for those reasons I wouldn't be there in the first place, I wouldn't have to defend myself against anything. ADV DE JAGER But your motive was only to get a weapon, not to kill anybody. MR TEKANE Exactly, but I couldn't rule out the possibility of there being a firefight. Even on the way to that place we could have been involved in a firefight, which could have resulted in injuries or loss of life. ADV DE JAGER And at the bakery you were also involved in a firefight. MR TEKANE Not directly, but members of my unit. ADV DE JAGER How many shots were fired at the bakery van? MR TEKANE Well there was one followed by a short burst of two or three rounds. ADV DE JAGER Of two or three rounds. MR TEKANE Yes. ADV DE JAGER Ned said five round, plus-minus. MR TEKANE Yes. ADV DE JAGER Ja. And in your statement here you said Ned fired only one shot. So that's also a mistake in this statement, or a false ... MR TEKANE Yes, some things I made up, others was to satisfy they police, go according to what they would like me to say. ADV DE JAGER Now when you approached this vehicle, the door was open. MR TEKANE Yes. ADV DE JAGER He was still standing outside the vehicle? MR TEKANE No, he was climbing in. ADV DE JAGER Climbing in. MR TEKANE Yes. ADV DE JAGER So he couldn't see you in the light because you were next to the vehicle when he sort of got into position behind the steering wheel. MR TEKANE Sorry? ADV DE JAGER Where were you when he was climbing in? MR TEKANE I was arriving. ADV DE JAGER MR TEKANE Yes. ADV DE JAGER So that must be on the side of the vehicle already? MR TEKANE Yes, to the front. ADV DE JAGER Ja. And the door, was the door still open? MR TEKANE Yes, we were separated by the door. ADV DE JAGER You fired a shot, did you fire it through or how? MR TEKANE No. The door was open like this and I was on this side of the door and I came out shouting because I saw that he had noticed me, so I shouted for him to freeze and he continued to climb in, and then I passed the door and fired the shot as I passed. ADV DE JAGER And where did you hit him? MR TEKANE I didn't see where I hit him or if I had hit him at all, but I was pretty close, I must have hit him. And I passed on towards the back of the truck and took cover behind ... ADV DE JAGER Now what did he reach for when you fired the shot? MR TEKANE I wasn't sure what he was doing, but ...(intervention) ADV DE JAGER You couldn't see whether he was reaching or not, isn't it? MR TEKANE Sorry? ADV DE JAGER You couldn't see whether he was reaching at all or not, he only got into the car. MR TEKANE Yes, but made like he was lying on the seat. ADV DE JAGER Ja, because he saw you pointing the gun at him. Wouldn't that be the natural thing to do, to get the door between you and the one pointing a gun at you? MR TEKANE Well he might have been going for his gun. ADV DE JAGER You don't know even if he had a gun. MR TEKANE Yes, I can't be sure. ADV DE JAGER It's probably that he had one, I'll concede that. MR TEKANE Sorry? ADV DE JAGER I think it's probable that he would have had a gun because he's a policeman. MR TEKANE Yes. ADV DE JAGER But you never saw him trying to get out the gun or where the gun was. MR TEKANE Yes, as I say I panicked when he didn't freeze. ADV DE JAGER Ja. MR TEKANE So the first thought that came to me was that he would react by firing. As soon as maybe he found himself in relative safety, then ...(intervention) ADV DE JAGER And then, what was the reason for you shooting? MR TEKANE To deprive him of the chance to get out his gun and fire until I get into safe cover. ADV DE JAGER So it was to protect yourself. MR TEKANE Yes, in a way. ADV DE JAGER What other reason, why did you shoot? MR TEKANE Well to protect myself. ADV DE JAGER Was that the only reason? MR TEKANE Yes, otherwise I wouldn't have shot. ADV DE JAGER Thank you. CHAIRPERSON Mr Tekane, I'm interested in the application that you've submitted. As you know that has not been located in our offices. I want you just to give me the details of that. You were at Grootvlei Prison. MR TEKANE Yes. CHAIRPERSON Were you awaiting trial? MR TEKANE Yes. CHAIRPERSON And did you submit your application on an official amnesty application form? MR TEKANE Yes. CHAIRPERSON Where did you get the form from? MR TEKANE From the prison. CHAIRPERSON Were you with your brother at that time? MR TEKANE No, he had left, he had been transferred already to Johannesburg. CHAIRPERSON So you got the from the prison officials and what did you, did you complete it yourself or what happened? MR TEKANE I completed it myself, with the help of a friend of mine and a fellow inmate, who is a member of Apla. CHAIRPERSON And after having completed the form, what did you do - or before we get there, what did you apply for, in respect of which incident did you apply for in that particular form? MR TEKANE It was for the murder of Mr Sitege and possession of a firearm and ammunition. CHAIRPERSON Anything else? MR TEKANE No, I don't remember what else I wrote in there. CHAIRPERSON You didn't apply for the robbery, as you've said earlier, of this bakery truck. MR TEKANE No, I didn't. CHAIRPERSON What did do with the form after you had completed it? MR TEKANE I asked a member of the Correctional Services, who was nearby, we were locked in the cells, so I shouted for him to assist me and he escorted me to the offices in front where I handed the form to another member I know as Sam. CHAIRPERSON What did you say his name was, Sam? MR TEKANE Yes. And this member who escorted me is known to me as Mr Gholotsa. CHAIRPERSON What did you tell Sam he should do with this form? MR TEKANE To send it to the TRC. CHAIRPERSON And what was his response? MR TEKANE He said he would do it. CHAIRPERSON Were you also transferred away from Grootvlei? MR TEKANE Sorry? CHAIRPERSON Were you also transferred from Grootvlei, subsequent ...(intervention) MR TEKANE Yes, shortly thereafter, yes. I was convicted and thereafter transferred. CHAIRPERSON Do you say it was shortly after you had handed in the amnesty application form? MR TEKANE Yes. CHAIRPERSON You were convicted and you were transferred away to go and serve your sentence. MR TEKANE Yes. CHAIRPERSON And then, what happened subsequently, did you enquire about your application or did you speak to your brother and other members of your unit, or what happened? MR TEKANE Well my family has been trying to find what happened to the application, since I heard - at the beginning of the trial in which I was convicted for the killing of Mr Sitege, my legal representative informed me that my form could not be traced. So from then onwards my family and comrades and friends have been trying to trace my application. CHAIRPERSON So do you say that during the trial your lawyer said that they couldn't find your form? MR TEKANE Yes. CHAIRPERSON Where? They couldn't find it where? Do you know what enquiries he made? MR TEKANE Sorry, let me get the question clearly. CHAIRPERSON Do you know where he went to enquire? What did he say, where couldn't they locate the form, was it at the TRC, or at the prison or where? MR TEKANE He said he contacted the TRC, the Truth and Reconciliation Desk at the Albert Lithuli Building in Johannesburg and he found only my brother's application. CHAIRPERSON Was your brother standing trial with you? MR TEKANE Yes. CHAIRPERSON But that trial continued in spite of the fact that you had indicated that you've applied for amnesty and the application, the actual application of your brother having been located, the trial continued? MR TEKANE Yes, it did. CHAIRPERSON Now you have - you or your family, I'm not sure, have recently made enquiries at the offices of the TRC, or Amnesty Committee, in regard to your amnesty application, is that correct? MR TEKANE Yes. CHAIRPERSON Why did that happen? MR TEKANE Why did they make enquiries? CHAIRPERSON Yes, how did that happen, what is the background to that enquiry? MR TEKANE Well in the form of phone calls. They made contact with whoever they were sent to ...(intervention) CHAIRPERSON Is it your family? MR TEKANE Yes, and friends and also comrades in the struggle. CHAIRPERSON And why did they do that, was it because they heard that this matter was going to be heard or what? MR TEKANE I'm sorry, I'm a bit lost. CHAIRPERSON Why did they make this recent enquiry, were they getting worried because this matter was to be heard, or did they find out that your brother and Mr Mayisela have received notices that the case is going to be heard, or what was the background to that enquiry? MR TEKANE Oh, it started quite a while ago. At the beginning of the trial last year the enquiries started and it continued and intensified ...(intervention) CHAIRPERSON Last year. Sorry, was the trial last year? When was the trial? MR TEKANE The trial yes, it was last year. CHAIRPERSON Last year. MR TEKANE Yes, in March. CHAIRPERSON So since then they have been ...(intervention) MR TEKANE ... trying to locate the ...(intervention) CHAIRPERSON There have been attempts to locate your application. MR TEKANE Yes. CHAIRPERSON Did you hear that this case is going to be heard by the Committee? MR TEKANE Yes, I did. In actual fact I was phoned by a man by the name of Pumzo, while I was at Johannesburg Prison, about a week before this matter was to be heard and he informed me that I would appear, but not as an applicant and I requested him to try and trace my application. CHAIRPERSON And did he come back to you at all? MR TEKANE No. CHAIRPERSON Yes. Is there anything else that you can tell in connection with the, that might assist in connection with your application, or have you now told me everything? MR TEKANE Yes. I don't know who, but somebody advised my father to tell me to make an affidavit, have it signed at the prison and fax it out. I could not get assistance from the prison authorities, so I had it with me when we came here and I gave it to my father and requested him to fax it to the TRC offices in Cape Town. He did that and he was promised that it would be looked into and it would be faxed with notes to this hearing. I was expecting that it might have returned. I'm surprised that I don't hear anything about it. CHAIRPERSON Do you say that you brought that affidavit here to this venue? MR TEKANE Yes. CHAIRPERSON And you gave it to whom? MR TEKANE To my father. CHAIRPERSON To your father? MR TEKANE Yes. CHAIRPERSON And what did he do with it? MR TEKANE He faxed it to Cape Town. CHAIRPERSON He faxed it to the Amnesty Committee in Cape Town? MR TEKANE Yes, yes. CHAIRPERSON But you haven't heard anything further about that? MR TEKANE No. CHAIRPERSON Oh, yes. Oh I see, I've got a copy of it here. We got it two days ago or so and it seems to have been faxed to Pumzo Pofile, of the Committee. ADV DE JAGER At the trial, or before the trial, you mentioned this to your legal representative, who appeared at the trial for you. MR TEKANE Yes. ADV DE JAGER Who was he? MR TEKANE Mr Henk Ackerman. ADV DE JAGER Henk Ackerman. MR TEKANE Yes. ADV DE JAGER From? Do you know from where? MR TEKANE In his chambers. ADV DE JAGER In Johannesburg or in Pretoria? MR TEKANE In Johannesburg. ADV DE JAGER In Johannesburg. MR TEKANE Yes. ADV DE JAGER Is he an advocate or an attorney? MR TEKANE He's an advocate. ADV DE JAGER Advocate. MR TEKANE Yes. ADV DE JAGER Can you perhaps tell us round about when did you complete this form and send it off? Could you mention a month or ... MR TEKANE It was towards the end of March in 1997. ADV DE JAGER Soon after you've made this statement? MR TEKANE Yes. ADV DE JAGER To the magistrate. MR TEKANE Yes. I was taken from Bloemfontein to Johannesburg, to make this statement and on my return to Bloemfontein, when I was transferred back there, I applied and I almost missed the deadline because I missed the first one and then after it was extended I applied. ADV DE JAGER So it was just before the deadline. What was the second deadline? MS MTANGA It was 30th September '97, the second one. 30th September. ADV DE JAGER 1997. MR TEKANE Yes. ADV DE JAGER And you were aware of the deadline? You've discussed it in prison with your co-prisoners. MR TEKANE Yes. As I've said before, I was a bit reluctant to apply and I was encouraged by my comrades to apply. ADV DE JAGER And this APLA man who assisted you in completing the form, do you know his name? MR TEKANE Yes, his name is also Thabiso. ADV DE JAGER Thabiso? MR TEKANE Thabiso Makwala. ADV DE JAGER Makwala. MR TEKANE Yes. ADV DE JAGER Do you know whether he's still in prison, or where he could be? MR TEKANE Unfortunately he died in prison. I heard from a man who was transferred, who I had met in that prison. CHAIRPERSON Mr Shai, have you got any re-examination? MR SHAI I beg your pardon? CHAIRPERSON Have you got any re-examination? MR SHAI No re-examination. NO RE-EXAMINATION BY MR SHAI CHAIRPERSON Yes, Mr Tekane, you are excused. WITNESS EXCUSED CHAIRPERSON Thank you, Mr Shai. Mr Richard, have you got any evidence? MR RICHARD No further evidence. NO FURTHER EVIDENCE BY MR RICHARD CHAIRPERSON Ms Mtanga, have you got any evidence? MS MTANGA No further evidence, Chairperson. NO FURTHER EVIDENCE BY MS MTANGA CHAIRPERSON Thank you. Have you got any submissions? MR SHAI IN ARGUMENT That's correct, Mr Chairman. Mr Chairperson, for the sake of convenience, I'm going to start by addressing the incident of the 5th of February 1993, and then I'll come later to the issues of the car theft of the second applicant. Now it's common cause that in a matter of this nature, one has to look at the provisions of Section 20, which are whether the applicant did indeed comply with the requirements of the Act, or whether this Act was associated with any political objective, committed in the course of the conflicts of the past and according to the conditions of (2) and (3), and whether the applicant has made a full disclosure of all relevant facts. The issue of - the provisions of (1)(a), I don't have to address the Committee on that because I think he fully complies with the provisions of this Act, otherwise they wouldn't have actually granted him a hearing. Then I'm going to start to the issues relating to (c) of - paragraph (c) of (1), whether they had actually made a full disclosure as far as the facts and issues relating to the incident on the 5th of February 1993 is concerned. It's my submission that the only aspect that weighs against them having not made a full disclosure, is the issue pertaining to the confessions that were made and that is where my learned colleague, Mr Richard, was actually quoting from when he said they could be lying in this respect, they could be lying in that respect. I'm going to quote specifically from the exhibits that were submitted. That is Exhibit A up to D. Now if one looks at these exhibits, the one of Anna Sitege and Exhibit B, which is a statement by Frank Tekane and Exhibit D, which is a statement by Sidiso Moketsi, and Exhibit C, which is a statement by Thabiso Tekane, if one looks - I'm not going to go into a detailed ...(intervention) CHAIRPERSON Yes, I just wanted to ask you, Mr Shai, how different is this from the situation where you have a Court record which tells a totally different story from the application? MR SHAI Actually I was just going to argue like that and I was just going to allude to the fact that if one looks at the confession contained in Exhibit C, the confession in Exhibit B and the confession in Exhibit D, as far as the incident itself is concerned, they are totally different. They actually mention different aspects of how the incident actually occurred. Even the one that my learned colleague says maybe it could be the best description of what happened on that particular day, the one of Frank Tekane. It has some inconsistencies in it and it actually contradicts the statement of Sediso. And my submission is, it should be treated as a factor or a fact that weighs in the same way as a Court record. These are statements which were given to the police and we know how the situation is, even now. We still have cases wherein police force people to actually confess to things that they didn't do. And in the light of that, and if one looks at the confession by Thabiso himself, he says: "Dat my straf ligter sal wees en ek "amnesty" kan kry. Ek is van voorneme om daarvoor aansoek te doen." So in other words, he knew that there was some political motive actually involved in this, but as to where he mentioned it in this statement to the police, it's not given. So in other words he knew there was something that was politically related, but that was never mentioned to the police. And as such, from the very same paragraph 11, one can actually come to the conclusion that he knew what the true position was, as far as his act was concerned and that was never disclosed to the police officer in questions, but nevertheless he came today and he disclosed the basis of ...(intervention) CHAIRPERSON Yes, I mean it appears to me as if there can be very, very little weight attached to a so-called confession which the applicant says he contested at his trial even. Even at that stage this was in contention, these confessions. MR SHAI That is correct. It was actually in contention from the time when he was actually being tried by the High Court. Now I'm going to move to the provisions of (2) and (3), in actually looking at whether they satisfy the requirements inasfar as (2) is concerned, the Section 20 is concerned. Now for that one has to actually look at what is it that has to be satisfied before they could actually be granted amnesty. And as far as (2)(a) is concerned, I'm just going to deal briefly with them and then when there is actually a contentious issue that I have to address, then I'm going to dwell on that, but I'm just going to go through the whole sub-section. Then I'm going to look at (2)(a). Applicant number one says that he was actually a supporter of the African National Congress, and he was a member of the SDU, which was actually a creature of the ANC. My submission is ...(intervention) CHAIRPERSON Both applicants and Mr Thabiso Tekane? It doesn't seem as if that is seriously attacked, it doesn't seem as if it's really in dispute. MR SHAI I'm going to skip number (b) and I'm going to concentrate on (f). "Any person referred to in paragraph (b), (c) and (d), who on reasonable grounds believe that he or she was acting in the course and scope of his or her duties, and within the scope of his or her express or implied authority, or any person - that's (g), any person who associated himself or herself with any act or omission committed for the purposes referred in paragraphs (a), (b), (c), (d)". That's whether it was actually for the purposes of any political objective. And for this I think this is where I have to dwell, and this I'm going to actually address in conjunction with the provisions of (3)(a), (b) and (d). Now if one looks at the act in question which is herein involved, one will at first come to the conclusion that this was a mere criminal offence, and that is how it was actually interpreted by the judge who actually dealt with it in the trial. I fully submit that looked at without the political objective that was involved, it's a pure a robbery case, it's a pure murder case which has in it a foreseeability that the person who was killed could have been killed in the process of actually robbing. I'm going to - for the purpose of the criminal offence, use robbing as such, as is. But now if one looks at the directions or the instructions that were given to the people who actually were performing the task of robbing and in their political parlance they it's disarming, one comes to a different conclusion. If one were to look at whether they are seeking amnesty for murder which was, according to their evidence, not the intended consequence of their action, then my submission is there are too many cases in which amnesty was granted in which it was not supposed to be granted, if that kind of reasoning was being followed. For example, I will take a case in which a person goes to a place and he places a landmine or a timebomb, with the sole intention of destroying the building as a State apparatus, then in the process of destroying the building a person is killed, the person can actually - and they do, apply amnesty for the murders that actually come out of the said bombing. But now the intention was not to kill the person inside the building, it was to destroy the building. Even if the person foresaw the possibility of a person being killed in the process of destroying the building, then I think the Truth Committee will be failing if they were looking at what was the intention when the act was actually committed. CHAIRPERSON I don't know, I don't know if the term "wish" isn't a more appropriate one there, because you know if you refer to the term "intention", of course it's a technical term. You take this case before us, the applicants didn't necessarily wish to kill the policeman that had to be disarmed, but clearly if you look at the circumstances there was a legal intention to kill. When you first with automatic, short bursts of automatic fire at a person, what else? I mean it's dolus eventualis, there's no question about that. So often when an applicant comes before the Committee and he refers to the question of intention, I don't believe that he or she refers to the technical sort of term "intention", and that is why I say perhaps the word "wish" is a more sort of appropriate term, because the word "intention" can lead to confusion. MR SHAI Mr Chair, I was just ...(intervention) ADV DE JAGER If you look at the wording of the Act: "associated with a political objective", now we've got the robbery, the robbery was strictly intended, the motive was there or political purposes. I don't think anybody would differ from that. Wasn't the murder associated ? The murder in itself didn't have a political objective - well, we haven't got evidence about that, but wasn't the murder associated with the other objective? MR SHAI Chair, that's what I'm saying. I say if we were to look at what the intention was and we were to decide on the intention, the intended consequence of the action then murder will be excluded, but since that is not what we're looking at, we're looking at the act itself, what was actually the political objective as far as the robbery itself was concerned? And then the issue of intention is thereby excluded, and then we come with the associated consequence of the action, which was politically motivated. And in that instance, in that light, murder itself is going to be covered even though it was not the intended consequence of their actions, then my submission is it's an act which was associated with a political objective that they sought to achieve. And in this case they clearly stated they wanted to rob. If we were to use the ordinary legal term, and they use disarm, their objective was to disarm, but in the consequence of disarming something happened and that was murder, which was associated with the act of robbing. If we were to take an armchair approach we will say that, as the questions were actually being posed to the applicant, "but didn't you foresee that something like that could happen?". But they have an explanation for that, they say things didn't go according to plan, what they thought would happen, never happened and that is where things began going the wrong way and therefore something wrong, as a result of the wrong-going of the actions, happened. And my submission is even the murder, if one has to look at it, whether it's associated with a political objective, then it is covered by the provisions of (2). That will be my submissions. CHAIRPERSON Yes, no, no, I understand that, but also the point is that what you're applying for is an act which constitutes an offence and it's in that context where this whole question of intention becomes confusing. If you don't distinguish between what they wish the situation could possibly have been ideally, and what eventually happened, constitutes an offence in terms of the technical understanding of intention. And that's why - of course if there was no intention, there's no offence, so you can't apply for amnesty for it because it's not, it's an offence, it's ...(intervention) MR SHAI ...(indistinct). I fully submit that they committed an offence and I've got no doubt about that. They committed an offence by being in possession of firearms without any valid licence for the firearms. But what is the purpose of the Act itself, it's to remedy that situation, provided they satisfy the requirements of the Act, and my submission is, they fully complied with the requirements of the Act. Unless there is anything in particular that I have to address. It's common cause, or there is no evidence to the contrary that there was anything gained by the applicant personally and there is nothing to the contrary that indicates that they acted our of malice or they didn't like the deceased. And my submission is, if one were to look at the provisions as alluded to, they fully comply with them. But finally, I would like to deal with the provisions of (3)(f), the relationship between the act, omission or offence and the political objective pursued. It's my submission that there is in life nothing that can be equated to life itself and in all applications where life was actually lost, one cannot come about and say this proportionate to, the consequence is proportionate to the action. Life can never be equated to anything. And my submission is, this is also a case in which life cannot e equated to the action, the consequence, that is loss of life, can never be equated to the actions that were actually being used, looked at in the light of what happened on the fateful day. And my submission is, in the light of life having no proportionate, then they fully comply with the provisions of (3)(f), if looked at, not in the form of an armchair approach, but if one were to actually go into the shoes of the applicants and then ...(intervention) CHAIRPERSON Ja, perhaps there would have been something to say in regard to that element if the deceased had surrendered and he was executed, he was still shot, but I hear your submission, that's not what happened. ADV GCABASHE Mr Shai, I don't want to interrupt you, but can you in your submissions deal with the question self-defence, whether it plays a role at all in any of the actions of the applicants, and if so, what we should do with that. You know, in relation to political motive, political objective. Self-defence, they shot to protect themselves. MR SHAI In this case I would say, in a case whereby one is out to actually perform some political duty, in this case the disarming, in the first instance they went there carrying firearms, they foresaw the possibility of - even if they say they wanted to actually surprise him with the firearms, scare him and then let him surrender, but my submission is even though they foresaw the possibility of him resisting and them using the firearms, I will submit that if in each and every situation wherein members of the SDUs were involved inasfar as - without testifying from where I am, inasfar as my knowledge actually goes, people were in possession of firearms, they were always ready for any retaliation by the victims, if any. Now this actually is one of the cases that fall within the ambit of self-defence Units. Members were armed, they knew that they were approaching a person who was also armed and in this case, who was going to be disarmed. So in other words, he was in a position to use the firearm that they were going to take away from him. Now, they needed something to actually fight back if that firearm was actually going to be used against them. And in that case, even though they were the first people to actually go to him, which was an offence anyway, they had to actually defend themselves. ADV DE JAGER Suppose he would raise the self-defence at the trial, wouldn't he be confronted with this: "but you've created the possession, so you can't rely on self-defence, because you've placed yourself, you've created the emergency"? And if he wouldn't succeed in the defence of self-defence, then he would still be guilty of murder. So whether he may say it's self-defence, he's created that emergency and it can't be a defence in law. MR SHAI Mr Chair, in a trial, in a criminal trial the position will be different. In this case, in this application we're dealing with an offence that is committed already. In other words, self-defence is eliminated, it's already an offence, so we can't actually say they have to be given amnesty because there is self-defence. We know that in the final run an offence is committed and they want amnesty for that offence, and in this case it's murder. In other words, that offence, and in this case it's murder. So in other words, we actually exclude the possibility of self-defence being raise as a defence in a criminal trial, we actually conclude and we come and we come to the conclusion and we accept it as a fact that an offence has been committed. So my submission is, the issue of self-defence doesn't actually weigh much on the application itself, but it will be an issue if it was dealt with in a criminal trial. CHAIRPERSON Are there any other submissions? MR SHAI I just want to deal quickly with the car theft story. It's common cause that at the time of the commission of the offence he was not a member of the African National Congress or its military wing, Umkhonto weSizwe, but it's common cause that he was on the way to joining the organisation and he was actually going to use the motor vehicle to further the aims of actually being in a position to join the organisation. CHAIRPERSON Yes, wasn't he a supporter as he had indicated? MR SHAI Yes, he was a supporter of the organisation, as he said in his submission. And my submission is, it also falls within the ambit of Section 20. That will be all, unless there is something specific that I have to address. CHAIRPERSON Thank you very much, Mr Shai. Mr Richard, have you got any submissions? MR RICHARD IN ARGUMENT Yes, Chairperson. I will not be long. The issues before the Committee are essentially factual and I don't think much can be said beyond saying the question is whether on that morning in February 1993, the applicants were - to use the words of the Act, committing the admitted crime, which constitutes an event, with the associated or associated political objective. Now what is particular about this particular application is that the last two witnesses were tried last year, and that is long after the Act creating this Committee came into effect, and the first applicant indeed was sentenced by His Lordship, Justice de Villiers, on the 20th of May last year. If one has reference to page 64 of the bundle, there the High Court makes a factual finding. In clear unambiguous terms the Court found, no political motive was found by the Court. To take it further ...(intervention) CHAIRPERSON What is the relevance of that for our purposes, Mr Richard? Given the submission of Mr Shai, that we should look at these confessions and all these other things in the light of the reality out there at this, when it comes to criminal cases and the approach to criminal cases etc., etc. In other words, he was saying we shouldn't adopt an armchair approach, we know what the reality is. MR RICHARD The last two witnesses, second applicant and his brother, were represented in the High Court by, we assume, competent counsel. If they had wished to take advantage of these proceedings before the Truth Commission, it would have been a simple matter to stay the proceedings pending the outcome. I think there's only consistent inference, that they thought factually they could succeed. So it's not an armchair statement. What would appear to be the only consistent inference again is that in their confessions they indeed told the truth. I don't think one can likely dismiss the last witness' statement that why he wanted to make this statement was to get a lighter sentence and to support his amnesty application. So certainly, for the second applicant - I will deal with the first applicant separately because he was tried prior to 1994, I find it singularly appropriate to ask, if he had a valid application which he was confident of presenting to this Committee, what happened? He certainly didn't seem to believe that his factual statement before this Committee would be believed, and I believe that we can infer all sorts of consequences from that. Then to turn to the first applicant, certainly he signed his confession during the pre-1994 period and also was tried before the Truth Commission Act came into existence. So the same inference can't be applied. Now "associated with a political objective". Here we have the following situation: we have a sitting member of the Provincial Legislature, we have Magret Stofile, we have various other persons, who could have been called, they haven't. Again an inference self-defence ...(intervention) CHAIRPERSON Is there an onus created by Act 34 of 1995? MR RICHARD Chairperson, I ...(intervention) CHAIRPERSON What is the affect of the words "we as a Panel must be satisfied"? Is there an onus? MR RICHARD My submission on that is that the Committee, through its proceedings - and the proceedings are inherently run by the Committee, must satisfy itself. In other words, the analogy is to administrative law, not to confrontational, adversarial proceedings. However, amnesty is a privilege, not a right, it's a claim that the individual applicant makes. I do believe it's incumbent on the applicant to establish to the Committee, the basis on which the Committee must inquire into his position, to satisfy itself in that sense. As with any licensed application or any similar proceedings, the applicant must establish for the Committee, the legitimacy of the claim. I deliberately don't want to get into a long drawn out ... I think the various proceedings before the Truth Commission, have long since settled those ... CHAIRPERSON Yes, in fact I'm simply raising the point in the context of your reference to the existence of witnesses out there who could have been called. That's the kind of issue that comes up in terms of the law of evidence, when you deal with a trial in a criminal or civil Court and so forth and so on. But I think you've made the point yourself. I mean we're not in that realm. MR RICHARD ...(indistinct) I really don't want to take it, what I believe would be sideways. CHAIRPERSON Yes, I mean with a person in custody and with a Committee with all the facilities at its disposal, sitting as an administrative tribunal, investigating a matter before it, I mean there's very little scope for adverse inferences in regard to witnesses who are called and not called and so on. So there's not very much scope for that sort of argument. MR RICHARD It's for those reasons that I don't seriously go into the question as to whether in 1993, police were legitimate or inappropriate targets. I believe that evidence has been canvassed at length in various proceedings. Proportionality however, is appropriate. We've used the concept of self-defence. I don't think the notion in the legal sense of self-defence, is really appropriate. In a legal sense the person who was entitled to the rights of self-defence was the deceased, he could have done, in the situation, whatever he felt like, with almost complete impunity when faced with five armed men. The factual before the Committee is whether taking into account that five armed men had one single man to accost and disarm, according to their admitted intention and wishes, whether their acts were proportionate or not. Here we know, and I think it has been established by the record and the evidence, except for the last witness, that the two places where the incidents took place, the Terminus Cafe and the deceased's house are less that 250 metres apart, they are close. In other words, to move from one position to the next is a matter of minutes. Certainly not the hour that is established between the two incidents in time. So that means that the five men who accosted the deceased had more than adequate time to set themselves up in whatever form of ambush they wished to set up. Their arguments factually that the deceased's movements took them by surprise, have to be treated with the utmost scepticism. It's impossible to understand how they could not have been in exact position by the time the deceased moved about. Taking that into account, if five men wanted to disarm a man who was innocently going on his way to work and probably not suspecting an attack, they could have done so with the utmost of ease. It would appear, according to the applicants' evidence, that their plans went wrong. I believe that that claim must be dismissed as a fabrication after the event. The real truth would appear to be consistent with what was said in the various admissions and confessions and in accordance with the High Court's judgment that they ambushed and shot. The reason and the motive for the fabrication is interesting, it is to overcome the very point of proportionality. To continue onto the car theft aspect of the second applicant's application, there I have no comment. I am not briefed by the victims of the car theft, I leave that lie. No further submissions. CHAIRPERSON Thank you, Mr Richard. Ms Mtanga? MS MTANGA Chairperson, I have no submissions to make. CHAIRPERSON Have you got any reply, Mr Shai? MR SHAI IN REPLY Mr Chairman, I just want to reply to two issues that were raised by my learned colleague. The first issue is - I think it's already dealt with by the Panel in the form of a question to Mr Richard, the issue of the applicants not calling Oupa Monareng and this Magret. The applicants have actually called their immediate commander and that is Thabiso. And as to how far the chain goes nobody knows, maybe they could have called Oupa Monareng and Mr Richard would have liked to know who gave orders to Oupa Monareng. And as to ...(end of tape) ... we wouldn't have actually have been in a position to actually call all these superiors to, the commanders. And my submission is, they have done what was reasonably possible by calling their immediate commander and they've ...(indistinct) alluded to that. And I've already in my submission prior to the commencement of the hearing, or on the second day, informed the Panel that we actually tried to get in touch with this Oupa Monareng, and it's difficult. The Evidence Leader can actually confirm what I'm saying. Then as to the issue of my learned colleague saying they had more time to act in any other way, other than the way they acted. My submission is that that is taking an armchair approach. If my learned colleague at a stage was in a position in which they were, as a member of the SDU, he would actually have known and he would have actually experienced situations wherein plans don't actually go the way the participants thought they would go. And this is one issue. If you are sitting at a table with a cup of coffee in your hand, then you will think these people never thought out the plan, but that is how they planned and that is how they wanted to carry it out and it actually failed. We have got situations whereby bombs are actually set up and the explosion time is not actually the one that was intended. And this is just one of them. That is my submission. CHAIRPERSON Yes, thank you, Mr Shai. Yes, we have come to the end of this matter. We would need some time to consider the decision in the matter. We need to have the Committee to look into this situation of Mr Thabiso Tekane and his application. So for the moment the decision in this matter will be reserved and we will inform the interested parties as soon as the decision is available. I believe that this takes care of our roll here. Ms Mtanga? MS MTANGA Yes, Chairperson, that is so. CHAIRPERSON Yes, in fact that concludes the proceedings here. It just remains for us to thank the legal representatives, Mr Shai, Mr Richard and Ms Mtanga, for your assistance in this matter. And in general, we need to thank all those people who made it possible to have this hearing here, our staff, interpreters, the security, the police, the proprietors of this facility, Telkom. We owe a debt of gratitude to all those people. It's not easy to arrange proceedings of this nature and we always appreciate the assistance in this regard. Also, I need to express my gratitude towards my colleagues on this Panel for their assistance. We're adjourned. HEARING ADJOURNS