amntrans AMNESTY HEARINGS 2000-07-25 PRETORIA 5 THALEDI EPHRAIM MFALAPITSA AM3592/96 MURDER OF THEMBISILE TUKU https://sabctrc.saha.org.za/hearing.php?id=54370&t=&tab=hearings https://sabctrc.saha.org.za/originals/amntrans/2000/200725pt.htm CHAIRPERSON Are we now starting with the application of Mr Mfalapitsa? MR MAPOMA Yes, indeed Chairperson. CHAIRPERSON Which is A on the bundle and I think I am correct, am I not, in saying that all the legal representatives have already placed themselves on record? MR KNIGHT That is correct, Mr Chairman. CHAIRPERSON Except they haven't - their voices are on record, but they haven't indicated what function they are performing. Could we have that? MR KOOPEDI Thank you Chairperson. My name is Brian Koopedi. I appear here for the implicated parties who are Mr Keith Mokoape and Mr Joe Modise. MS MAKHUBELE I'm Adv Nana Makhubele appearing on behalf of the next of kin of the deceased, Mr Thembakazi Tuku. MR MAPOMA Chairperson, Zuko Mapoma, the Leader of Evidence as usual. MR KNIGHT Mr Chairman, Julian Knight, appearing for the applicant Mr Mfalapitsa. Mr Chairman, the applicant will be testifying in English. THALEDI EPHRAIM MFALAPITSA (sworn states) EXAMINATION BY MR KNIGHT Thank you Mr Chairman. Mr Chairman the applicant's application is found in the bundle marked as bundle A, from pages 1 to 23. Mr Chairman, I'll continue with ... thank you. Mr Mfalapitsa, you're the applicant in this matter, is that correct? MR MFALAPITSA Yes. MR KNIGHT ; And your application is before this Commission, Bundle A from pages 1 to 23. MR MFALAPITSA Yes. MR KNIGHT Do you confirm your personal details as well as the content of your application as it appears from the amnesty application? MR MFALAPITSA Yes. MR KNIGHT You left South Africa in 1976 to go into exile, is that correct? MR MFALAPITSA Yes. MR KNIGHT From Botswana, you first went to Botswana and then to Tanzania and Angola as well as the GDR, Eastern Germany, where you received 6 months military training. Is that correct? MR MFALAPITSA Yes. MR KNIGHT When you were based in Botswana, that was your first station, that was your first deployment, is that correct? MR MFALAPITSA Yes. MR KNIGHT And at that time you were a member of the African National Congress? MR MFALAPITSA Yes. MR KNIGHT In 1979 you were arrested in Botswana, is that correct? MR MFALAPITSA Yes, Sir. MR KNIGHT What were you charged with? MR MFALAPITSA I was charged with illegal possession of arms of war. MR KNIGHT And you were in fact then convicted and sentenced, is it true, to three and a half years imprisonment? MR MFALAPITSA Yes. MR KNIGHT Is it also correct that after four months in prison you were released and deported to Zambia? MR MFALAPITSA Yes, Sir. MR KNIGHT And during the period 1979 after your release to approximately 1982, you were based in Lusaka, is that correct? MR MFALAPITSA Yes. MR KNIGHT Now when you were based in Lusaka, who were your direct Commanders? MR MFALAPITSA Mr Joe Modise and Keith Mokoape. MR KNIGHT And were they members of the African National Congress? MR MFALAPITSA Yes, Sir. MR KNIGHT When did you first become a member of the African National Congress? MR MFALAPITSA 1977, 76, sorry, 1976, I think around about September. MR KNIGHT Now just for the Committee's background, can you give an idea of precisely how you fell into, what was the structure of the ANC in Lusaka and how you came to fall under Modise and Mokoape? MR MFALAPITSA Well within the office of the ANC in the Headquarters area, there were different departments such as international department, publicity and operations, to which unit I belonged and intelligence, logistics and ordinance. MR KNIGHT And which department were you in? MR MFALAPITSA I belonged to the Department of Operations. MR KNIGHT The Operations Department. MR MFALAPITSA Now, in 1980 according to your application, you make mention that you were ordered to kill a person by the name of Shorty. Can you tell the Commission the details of this? MR MFALAPITSA In fact, we were instructed ...(indistinct) the command structure of the unit that was in Zimbabwe, that was from Zimbabwe based in Zambia by then, to order the command structure there to assassinate a person known by Shorty, since he was a security risk and according to the plan, we were to be present when the deceased was to be taken from the camp up to a point where he would be taken to a hill and be executed and that's exactly what we did. The Commanders took upon themselves, Simelane and Simon and the other one whom I can't remember. They took him to a bush along the camp and then we left them there, but they reported later that they executed that ...(intervention) JUDGE DE JAGER Sorry, could you kindly repeat the names of the Commanders who took him to the bush? MR MFALAPITSA The Commanders were Simelane and Simon, those were alias names they used. MR KNIGHT Do you know the proper names of these people? MR MFALAPITSA No we were not allowed to use our proper names in exile. MR KNIGHT What was your particular role? Did you merely convey the order that you had received to these two individuals? MR MFALAPITSA yes, because I was in charge of logistics for these military units and in charge of ordinance, their weaponry, so I used to go between them and the officials, so anything that was to come from the officials to them, or from them to the officials, was conveyed by me, or through me. MR KNIGHT Were you present when the orders were executed? MR MFALAPITSA I was not present when the actual killing took place. MR KNIGHT How did you come to learn of the killing? MR MFALAPITSA they reported to us the following day that they executed the order of Joe Modise and Keith Mokoape and that the chairperson executed. MR KNIGHT And these are the people that you referred to, are Simelane and Simon, the code names for the two people. MR MFALAPITSA That is true. MR KNIGHT And they ...(intervention) CHAIRPERSON Sorry. Did you convey the order? You said you conveyed orders from officials, did you convey an order from Joe Modise and Keith Mokoape? MR MFALAPITSA Yes, we conveyed them to the Commander at the base. CHAIRPERSON And the Commander would have been Simelane. MR MFALAPITSA Simelane and Simon, yes. MR KNIGHT Now at the time that the order was conveyed, did you associate yourself with the order? MR MFALAPITSA Implicitly I would say no, but in an objective situation where the structure of the movement was surpassing every other feeling or ...(indistinct) I ought to carry out the order. MR KNIGHT So in other words you were following an order? MR MFALAPITSA Yes. MR KNIGHT If I can refer you to the bundle which is - it's the last page of the bundle before you which is A2, it is a document for the record, list of ANC members who died in exile, March 1960 to December 1993. MR MFALAPITSA Yes, Sir. CHAIRPERSON Sorry, where's this? MR KNIGHT Mr Chairman it is the last of the amnesty applications, of bundle A, it's the last document before we get to the next ... Marked as A2, Mr Chairman. JUDGE DE JAGER Ja, the last one, page ...(indistinct - mike not on) MR KNIGHT It would be page 23 until 24. Thank you Mr Chairman. The name appearing at no 21 is that of a person who was also known as Shorty. MR MFALAPITSA Yes. CHAIRPERSON Sorry, where on the ...? MR KNIGHT Mr Chairman, on the first paragraph on the left, paragraph 22 Thembisile and it's dated the 11th of August 1986. Do you have any comment regarding that date? MR MFALAPITSA Well regarding the name I would have no say in that because then it might have been, this might be the true name of this person and we did not use two names in exile. The date, I'm not very sure, but this incident occurred after the withdrawal of the ANC troops in Zimbabwe, after the return of all Zimbabwe's Freedom Fighters to Zimbabwe, the ANC unit withdrawal, I think it was round about 87 or 89. So in 1986 ... (intervention) MR KNIGHT No, I think you must be - you can't be correct with regard to the - well, let me rephrase it. You left the ANC at the end of 82, so the incident that we are referring to here, the Shorty that you are referring to in your amnesty application was a person who died, or was reported to you that died in 1981. MR MFALAPITSA 1981, yes, yes. MR KNIGHT Is that correct? MR MFALAPITSA Yes, yes. CHAIRPERSON So it couldn't be this one who died in 86? MR MFALAPITSA No., if this report is true. JUDGE DE JAGER Now you've been training in Botswana in 1979. MR MFALAPITSA That's correct. JUDGE DE JAGER You were released at the end of 1979 or during 1980? MR MFALAPITSA I think it was during 1979, yes, when I was released from jail. JUDGE DE JAGER And how long after your release did this take place, or how long before you left the ANC? MR MFALAPITSA I think it was about a year or two years or so, but if I made my recollection right, it must have been 1980 or early 81. MR KNIGHT Thank you Mr Chairman. Moving on. The other part of your - the other incident for which you ...(intervention) CHAIRPERSON You're not being recorded. MR KNIGHT Thank you Mr Chairman. The other incident for which you see amnesty relates to the assault and interrogation of various members of the ANC. Can you please tell the Committee the circumstances surrounding the background and what you can recall of those incidents? MR MFALAPITSA Yes, I think the circumstances that led to what I may describe in very limited terms as mass arrest within the ANC during that period, was as a result of geographical change of balance of forces regarding liberation movements at the time. It was immediately after Zimbabwe got it's independence. Zimbabwe worked closely with the ANC and Namibian case was a case to be accomplished in a very near future, it was under United Nation auspices, so the ANC found itself basically alone in exile, with no prospect of either making inroad into the situation of South Africa through war, as it was by then, so many cadres began to question the structures, the authority, the planning of ANC in terms of the ...(indistinct) of war in South Africa and some of those members who questioned the ANC were members who were from Zimbabwe, who were from a war situation, who were then withdrawn into Zambia because of the complaint of South African to the Zimbabwean Government and some of those members met with the members of the ANC who were in exile, who were serving under Headquarters Departments from Publicity to Security, to Logistics and the situation was such that if I remember quite well, 1989 there was a Youth Conference in which all the youth members of the different departments were represented ... (intervention) JUDGE DE JAGER But you're now talking about 1989. MR MFALAPITSA I'm referring to the ANC raid in which the arrest of other members of the ANC took place, not this incident. JUDGE DE JAGER Ja, so you're sure about the date, 1989, because you're jumping now from 1979 to 1989, ten years later? MR MFALAPITSA As from 1979 up to 1981, I was in Zambia. JUDGE DE JAGER Ja. MR MFALAPITSA I was based there and the incident of arrest took place round about from 1980 to 1981, the one which I witnessed. JUDGE DE JAGER Yes, but I'm saying you've mentioned in your evidence 1989 and that must be a mistake because ... (intervention) MR MFALAPITSA That must be a mistake ...(indistinct) MR KNIGHT Thank you. Can you just stick to the incident that you bear personal knowledge of. MR MFALAPITSA So prior to this arrest, the ANC convened - they allowed the youth to convene a general meeting in which all their grievances were to be aired and that happened at R C offices in Lusaka. MR KNIGHT Where was that? MR MFALAPITSA R C, Revolutionary Council Offices. MR KNIGHT Revolutionary Council Offices in Lusaka and what date was that? MR MFALAPITSA I'm not sure about the date. MR KNIGHT But it was in the time before you left Lusaka? MR MFALAPITSA That's it, before I left Lusaka. And then eventually the general meeting of all the members of the ANC within the region of Headquarters was called and all the NEC members were present and Oliver Tambo, who was the president by then, addressed the meeting regarding the situation of the ANC in exile and his aim about armed struggles, and his plan about all the cadres who were to be deployed in different areas for the purpose of advancing the struggle. Immediately after this conference, or after this general meeting, arrests of different cadres took place, that is arrests in which some members of the armed forces, that is from Zimbabwe, arrests from members who were from Zimbabwe, arrests of members who were from Publicity Department and arrest of members who attempted to run away because they suspected that they were going to be arrested and sent to Tanzania. One of the members who was arrested, whom I witnessed the arrest and the torture was Dumisang. MR KNIGHT You say the name Dumisang, is that a Christian name, a code name? MR MFALAPITSA No that was just a code name. MR KNIGHT Now you do not have any idea of the person's particulars other than his code name? MR MFALAPITSA Yes, yes. MR KNIGHT Did you act, did you just witness the assault, or did you actively take part? MR MFALAPITSA Dumisang, I witnessed the assault, I was present. The other name was Disco. I took part in the assault together with Joe Modise who was present. MR KNIGHT Was Mr Modise present? MR MFALAPITSA Yes and Keith was present. MR KNIGHT You say - did Mr Modise take part in the assault? MR MFALAPITSA Actually Mr Modise did most of the assault because I remember he was beating under the feet with something like a golf stick or something. MR KNIGHT And who further? MR MFALAPITSA And then the other one is ... MR KNIGHT Keith. MR MFALAPITSA Ja, Keith was present also. MR KNIGHT Did he take part as well? MR MFALAPITSA Yes, he took part in the assault. Mr knight What was your role in the assault? MR MFALAPITSA Well, as we were in charge of the torture and the interrogation, we used to hold them all and then as they apply the force, to extract what they called information from them. MR KNIGHT Mr Modise would have been your Commander, he surely would have been in charge? MR MFALAPITSA He was in charge of the whole interrogation process. CHAIRPERSON What did you do? MR MFALAPITSA Members who were to arrest these people and during the interrogation we subdued them by force, so that force could be applied and then the information ...(intervention) CHAIRPERSON What did you do? MR MFALAPITSA I said I hold these people on the ground. CHAIRPERSON Right. Thank you. You held them on the ground. MR MFALAPITSA That's it. Thanks very much. CHAIRPERSON So the other people could assault them? MR MFALAPITSA That's it. Yes, yes. MR KNIGHT Did you physically take part in the assault yourself, apart from subduing the people, for other people to assault them? MR MFALAPITSA Let me just make my reconciliation, not to Disco, not to Dumisang but to one person called - what is his name again - Ace. MR KNIGHT That was a code name again? MR MFALAPITSA Ja, that was a code name again, yes. And to another person called - to Dladla, no, I only arrested Dladla, I was sent to go and arrest Dladla, but during the torture ... MR KNIGHT You're referring now to page 3. MR MFALAPITSA Page 3 yes. MR KNIGHT Paginated page 3. MR MFALAPITSA Yes, yes. I was only sent to arrest him and bring him to the Revolutionary Council where people would actually interrogate him. And then to ...(intervention) MR KNIGHT Mr Knight, how legible is your copy of the application? MR KNIGHT Mr Chairman I have difficulty in some parts, it's a photostat Mr Chairman. CHAIRPERSON Has anybody got a legible copy? Nobody. MR MFALAPITSA Another one Mosha Dijane, I did not get involved in his interrogation or assault, the other one is Wellington. MR KNIGHT Say that again. MR MFALAPITSA Wellington yes. MR KNIGHT Wellington. MR MFALAPITSA Yes, yes, I was also involved - not involved in this assault but I was present when he was accidentally shot and then he was nursed by some of the medical officers there. MR KNIGHT Who shot him? MR MFALAPITSA Keith Mokoape. MR SIBANYONI Can you repeat the two names you have just mentioned? MR MFALAPITSA Dladla and Wellington. And the other one was Oshkosh, whom I was present when he was assaulted though I didn't take part in his beating. MR KNIGHT Now with regard to the circumstances that surrounded those assaults that took place over a period of time, you were following orders? MR MFALAPITSA Precisely because the main body which was in charge of interrogation was Security Unit, we were only assisting the Security Unit seeing that we come from the Operational Department. MR KNIGHT Did you receive any reward? MR MFALAPITSA No. MR KNIGHT Gain from your activities? MR MFALAPITSA No, no, no. MR KNIGHT Mr Chairman, unless there's anything else that you wish me to lead the witness on, that will be the evidence- in-chief. NO FURTHER QUESTIONS BY MR KNIGHT JUDGE DE JAGER Who was in charge of Security? MR MFALAPITSA I'm not very certain as to who was actually in charge of Security but I know of one - what is his name again? There were various people but they were not residing in Lusaka here, they used to come and go so I wouldn't definitely say who was in charge of Security but one official member whom I know to have been in charge is Philiso, Mzwai Philiso. MR SIBANYONI Mr Knight, I understood his application also to be in respect of people who died when he was now serving for the South African Police. MR KNIGHT Thank you Mr Chairman. That matter is before a separate Committee. It has already been heard earlier. It relates to the COSAS 4. That matter was heard in Johannesburg I think about 18 months ago. It is finalised. Thank you. CHAIRPERSON Who is going to start with the cross-examination? MR KOOPEDI Thank you Chairperson and thanks to my colleagues for letting me start. CROSS-EXAMINATION BY MR KOOPEDI Mr Mfalapitsa, I am appearing here for the implicated persons, as you heard me say. Now my instructions are that you are now a minister of religion, is that correct? MR MFALAPITSA That's correct, Sir. MR KOOPEDI I take it that the oath you took before you started giving evidence, is binding on your conscience. MR MFALAPITSA That's correct. MR KOOPEDI And you therefore know that being a minister of religion, it is not only a sin to lie under oath, but it's also criminal. MR MFALAPITSA That's correct. MR KOOPEDI Thank you. Now, you said you belonged to a Department of Operations. MR MFALAPITSA That's correct. MR KOOPEDI And there were four of you in this department. MR MFALAPITSA That's correct. MR KOOPEDI My instructions are that there was no such a department, however, before you even comment on what my instructions are, what, other than having been arrested in Botswana, what operations were you involved in for the ANC? MR MFALAPITSA Well if such a case is relevant to your presentation, I had been involved inside the country from 1977, I was in charge of reconnaissance along the border, I was in charge of infiltrations, I was in charge of ordinance in Botswana, I was in charge of weapons that were sent from Lusaka, in Botswana, which were supposed to be the arms given to the cadres who were infiltrated in South Africa, so I had been long in the history of operations in the area of Lusaka. MR KOOPEDI The operations inside the country you're referring to, were they only reconnaissance operations, or anything other than that? MR MFALAPITSA Well there were some authorisation of military nature, one mission which I remember quite well was the one in which we were sent into an area, weaponry and foodstuff to last six months were sent and we entered the area as a unit of three. When we arrived at the place, the weapons and the foodstuff were removed, so we retreated to Botswana, we thought that the Security Branch had discovered our plans. And other missions were basically of recruiting conduct around Mafikeng and Rustenburg, missions which were indeed accomplished. MR KOOPEDI So in your entire history of operations inside the country, the only things that you were involved in were the reconnaissance and the time when you came in with these other two persons and having weapons? MR MFALAPITSA Well, it was not just reconnaissance. You understand, in the military situation, you were bringing out men into the country and make sure that they survive, they had a safe place, they find the correct base, they live longer than three months in different bases and those were missions, in my own understanding of operations. MR KOOPEDI So you have not injured, killed, or caused an explosion, or anything of that sort, in your entire operations career? MR MFALAPITSA I don't remember instruction to injure people, but I remember at one stage we were sent to destroy a pylon and our mission was aborted because some of our members decided to go their own way in the mission areas and therefore we had to withdraw for security reasons. MR KOOPEDI Okay. Now this person known as Shorty, reference was made or Shorty was said to be a person known as Thembisile Tuku. You have stated now that perhaps this could not be the same person whom you're referring to. MR MFALAPITSA Yes because if you bring in names that may be the true names, then it created difficulties for me because then we are not using true names in exile, but this, Chairperson, I know he was Shorty and he was from the group which was fighting in Zimbabwe and it was alleged that he gave problems in Zimbabwe and then it was only in Zambia that it was decided, yes, we can no longer keep him any longer. MR KOOPEDI My instructions are that there's no person known as Shorty who died or was killed around that time, around the times when you were an ANC members. MR MFALAPITSA Why does this surprise you, because the people you are representing are not even present you and that implied that ...(intervention) MR KOOPEDI That is not what I asked you and perhaps if you could steer to the...(intervention) MR MFALAPITSA Yes, but that implies that you will refute all the evidence that I'm presenting today. MR KOOPEDI Well that is so, because other than your allegation, there hasn't been any other proof that there is a person by the name of Short who died at that time. MR MFALAPITSA And the proof belongs to the people who share the same mentality as the people you are representing, so who will ...(indistinct) against their own seniors? MR KOOPEDI I will also perhaps proceed on that one and I will first deal with what my instructions are. My instructions are further that Mr Joe Modise, Mr Keith Mokoape did not belong to a unit with you and particularly an operations unit. MR MFALAPITSA You see, that is why I say to you, ...(indistinct) it will become a very difficult issue because as I said, the structure of the ANC in Headquarters Lusaka, was composed of units such as International Department, the President, Thabo Mbeki was the leader, Secretary of the Department of which the late Alfred Nzo was the leader, Transport Department, the late Nkobi was the leaders, Ordinance Office, Masondo was the leader, those who were in charge of weaponry, Operation of which Joe Modise was the leader and all these departments are represented in a body called RC, Revolutionary Council and from there, they were also represented in a body called NEC ...(intervention) MR KOOPEDI I understand all that and perhaps I also know how the structures were. I believe this Committee has also bee, on a number of occasions, told and there were a number of submissions give so they know exactly what the structures were. MR MFALAPITSA My point is, I want to create the situation in which you understand that Operation Department in the Headquarters could not have not existed because in the first place, all the man power that came from Angola, came from Tanzania, went to the area called Lusaka which was the Headquarters of the ANC and from there they will be sent to places such as Botswana, that is the Western Front and Zimbabwe and all the Military Combat uniforms and the weaponry which were offered to them, were offered by me under the order of Keith and Joe Modise. They were armed in a camp called RC - AZAPO camp around Zambia where ANC members and AZAPO armies were staying, so to suggest that ANC had no Headquarters in Lusaka, it is to imply that ANC did not have a military structure. MR KOOPEDI That's not what I suggested. What I said to you and I'm still waiting to get your comment on, is the fact that Mr Joe Modise and Mr Keith Mokoape did not belong to any unit together with you. MR MFALAPITSA That is what I'm saying, that a person who is denying evidence ...(intervention) JUDGE DE JAGER You could only say they belonged, we don't want argument here. Give us straight forward answers, they belonged to the same unit, I've been with them, or they may deny it if they want to, but I don't agree, whatever your answer may be. MR MFALAPITSA That's it. They belonged to the structure in which I belonged, Military structure. CHAIRPERSON That is the problem I have. What does unit mean in your question, the whole structure, or a separate portion of that structure? MR KOOPEDI In all terms, Chairperson, as you have described them in your question. My instructions are that the two people had nothing to do with this man in any broader structure, in any smaller structure as he has depicted it in his application form, he says there were four of them in that unit and that is the basis of our denial, that's what I'm putting to him, that they did not belong to this unit he talks about. CHAIRPERSON Well, he said he was in the Department of Operations of which there were four members. They didn't belong to that, but as I understood the evidence we've heard, they were senior officers, with an overall Command, who gave orders to the various departments what to do. MR KOOPEDI But my - what I'm putting to the applicant, Chairperson, the fact that Joe Modise, Keith Mokoape did not belong to any structure that had this applicant in it. CHAIRPERSON Right. Do you understand the question now? MR MFALAPITSA I said to the representative of the two here, that they were first my Command and they were running the army that was based n AZAPO camp, through me and all those army members, some of them are still alive today, they knew that any communication between me and Joe Modise and Keith, was done through me. I was driving a car which was transporting their foodstuff, their uniforms, their weapons, from the Ordinance Department who were instructed by the Operation Department, Joe Modise and Keith, to give me weapons to arm the people who had to lead the group, ...(indistinct) MR KOOPEDI Any my instructions were that I should put it to you that the only reason why you would alleged that you belonged with the two in a unit and also implicate them, is the fact that you are a known askari and you have an agenda against the ANC. MR MFALAPITSA I think you ...(indistinct) honesty before you started you debate. I'm not going to make allegation about how dear do I respect that honesty, but all in all, AZAPO officials who were working closely with us by then, all their camps, major and minor camps, we had people there who had been training with them, we ate with them, we used their houses, we trained people underground in their places, ...(intervention) MR KOOPEDI But that's not what I put to you. MR MFALAPITSA So also, if your instruction was based on refuting an evidence that ...(indistinct) implication of the people you represent, then that is a different case. MR KOOPEDI Maybe let me ask you about something else. You've mentioned a number of names here, Simelane, Simon, you've mentioned Ace, Oshkosh, Wellington, now all these people that you've mentioned, you've also mentioned that these were their alias names, is it correct that the only two people whose real names you've referred to are Joe Modise and Keith Mokoape.? MR MFALAPITSA Of course, because official of the ANC ...(intervention) MR KOOPEDI I just needed you to tell me if that's correct, or not. MR MFALAPITSA That's correct. MR KOOPEDI Thank you very much. Now, the other names that you have mentioned, since you came into the country, these names, have you seen any of these people? Have you ever heard or met any of the people you've referred to? MR MFALAPITSA Other than Joe Modise and Keith? MR KOOPEDI Yes. MR MFALAPITSA No. MR KOOPEDI I was instructed that indeed the names that you will mention, you would not have any other knowledge about them because most of the names are fictitious. Now maybe let's ask - let's go to the ...(intervention) JUDGE DE JAGER Sorry to interrupt here, but how did you come to know the real names of Joe Modise and Mokoape? MR MFALAPITSA All the High Officials of the ANC were known by their names, Thabo Mbeki and the rest, they were known by their names. MR KOOPEDI Let's go to another area. MR SIBANYONI I'm sorry Mr Koopedi. What is your response to the suggestion that the names you have mentioned are fictitious, those people didn't exist? MR MFALAPITSA Well all of us we carried fictitious names, I was Francis for instance, it was a normal thing in exile for us to carry such names for security reasons. MR SIBANYONI Maybe let me follow up on that. What's the reason why you haven't met any of the people you have mentioned, Simelane, Simon etc.? MR MFALAPITSA Well, I met quite a lot of chaps whom I was with in the camp, but if I did not meet one of the chaps named here, I don't think that is an issue of cause or may be reasons for that. MR KOOPEDI You say that you were asked, or you were assisting with dealing with the discontent that was within ANC members. Now, my instructions were to put to you that you did no such assistance ... MR MFALAPITSA I don't think ... MR KOOPEDI If I may go on? You did no such assistance and in fact at all times, all arrests were done by members of the Security and Intelligence Department and this was nothing that people in Operations would be involved in. Your comment. MR MFALAPITSA I don't think I ever said I did anything to ...(indistinct) the unrest, but I was used to arrest certain members like Dladla. Dladla was my closest friend, but I was instructed by Joe Modise to go and tell him that we have a mission to go and take food to Angola, because normally we should transport food to Angola to the camps, so I was instructed again to take him under the pretext that we are taking food to Angola with trucks and he came with me as a friend, but suddenly he was arrested, so we used to arrest people ...(indistinct) Operation Department, under the instructions of either Joe Modise or Keith. MR KOOPEDI Yes. My further instructions are at no stage was Joe Modise the army Commander, in a position to order arrests. This was purely a Security matter which he did not ... MR MFALAPITSA Actually the difference between Security at that time and the Operation was blood, hence I said Joe Modise was actually in charge of most of the torture in which I was present. As I say Disco, he assaulted him with the golf course instrument until he bled under his feet, so to bring in formalities of structures and their operations here, actually due to the fact that context is not taken into account and that it cannot be taken into account unless you were present there, or sufficiently taken into account unless one was present there. MR KOOPEDI Dladla, where did he come from? Your close friend Dladla, where did he come from? MR MFALAPITSA He was from - he was staying in a place called Elandia, at the Logistics Centre. MR KOOPEDI Home, where was his home, originally where did he come for? MR MFALAPITSA Well normally we were forbidden to speak about where one comes from for security reasons, but I presume he was from Soweto. MR KOOPEDI So you don't know. MR MFALAPITSA No, I don't know. MR KOOPEDI And perhaps that's why you wouldn't have followed up what happened to Dladla. MR MFALAPITSA Yes. MR KOOPEDI Well, I will finally put it to you that your evidence, in as far as it relates to being involved in the killing of this mysterious Short and the assault on these people that you've mentioned, my instructions are that your entire evidence on that aspect is fabricated. It's non-existent, nothing like that happened and the only reason why you would want to discredit these people, it's simply because they are high ranking ANC officials and you are known the carry an askari agenda. MR MFALAPITSA Well I think it's not a secret that leaders in both these countries, both National Party leaders and ANC leaders have exonerated themselves from all the torture and the inhumanity they caused particularly to black people, so it actually wonders to me whether they have the interest of black people at heart if they still deny the inhumanity they caused to these people. So I'm not surprised if they deny all these things and as I say, fundamentally they don't have the interests of black people at heart because they caused inhumanity to them and they still deny to acknowledge such inhumanity when the national platform exists for them to do so. MR KOOPEDI Well for what it is worth, those people have applied for amnesty on other matters, so it's not correct that people are denying anything, leaders are denying. MR MFALAPITSA But it's selective amnesty, why can't they apply amnesty in terms of all atrocities that were done to people, because people are people, irrespective of who suffers how much and who suffered how much? MR KOOPEDI Mr Chairperson, no further questions from me. NO FURTHER QUESTIONS BY MR KOOPEDI CROSS-EXAMINATION BY MS MAKHUBELE Thank you Chairperson. Mr Mfalapitsa, as I indicated, I'm representing the next of kin of Short, so my questions will be limited to him only and not the other incidents you're applying for amnesty for. If I may start here, can you tell me what's the purpose of code names? MR MFALAPITSA Well the purpose of code names were such that because we will be sending back home, sent back home, it is necessary that if one is arrested, he may not actually name the name of a person and therefore compromise such a person on a security basis, or for security reasons. MS MAKHUBELE Okay and other than say that danger that may exist as far as maybe the enemy is concerned, within the, say the ANC, is there any reason why people would have code names? MR MFALAPITSA I think that is the only reason that I know of. MS MAKHUBELE That's the only reason you know of? MR MFALAPITSA Yes. MS MAKHUBELE Have you heard of an incident where people say are sharing code names? MR MFALAPITSA Yes, it did happen when other people are in Angola, the other in Tanzania, that they come to share one name, but a name could change if a person had to go to a mission and another suitable name may be offered when he leaves the area of exile into the area of operation, that used to happen. MS MAKHUBELE So this code name thing, you would say be able to know if they said Disco, you would know the person they are referring to? MR MFALAPITSA Yes, particularly if you were with him in a camp and you sort of had prior knowledge of the person, then you would know. MS MAKHUBELE Did you know this Shorty personally? MR MFALAPITSA Yes, I knew him personally. MS MAKHUBELE Just tell us what you know about him, anything you know about him. MR MFALAPITSA Well, he was a Short person, Xhosa speaking, talkative, lively. MS MAKHUBELE Just slow down please. MR MFALAPITSA Short person. MS MAKHUBELE Yes. Height? MR MFALAPITSA He was very short. MS MAKHUBELE Oh, he's short. Okay. Complexion? MR MFALAPITSA Light in complexion. MS MAKHUBELE Any other identifying features you recall? MR MFALAPITSA He was hefty, medium build. MS MAKHUBELE You mentioned he was Xhosa speaking. MR MFALAPITSA Yes. MS MAKHUBELE Did you come to know where he comes from? MR MFALAPITSA Well, I presume that he must be ... (indistinct) Cape Town because all Xhosa speaking people normally come from Cape Town or P E or so, for instance. MS MAKHUBELE Any other thing about him you knew? MR MFALAPITSA Well he was almost a township person. MS MAKHUBELE Well I don't know what that means. MR MFALAPITSA Township person would mean that a person who is familiar with the ethos of townships you know, tsotsi ... (indistinct) MS MAKHUBELE Okay. You being the person who was in this Operational Department with Joe, Keith and Charles, you were four you said. MR MFALAPITSA Yes. CHAIRPERSON Do you say that it was Joe, Keith, you and Charles were the four people in your Operational Unit? MR MFALAPITSA That's right, yes. CHAIRPERSON Who are these Joe and Keith? Joe Modise? MR MFALAPITSA Joe Modise, Keith Mokoape was his assistant and Charles was - Charles came later actually, we were three first and then he came and joined us, we then became four. But originally we were three, it was me and Joe and Keith. MR SIBANYONI What was Charles's surname? MR MFALAPITSA I don't know what was his surname, but I think it was an operational name, also, because he was from Lesotho, he was an injured person from Lesotho, then he was no longer operationally fit, he was therefore placed in a ... (indistinct) area with us. MS MAKHUBELE Thank you. Can you go to page 10 of the bundle? I just want to - this application is illegible, I think it has been photocopied several time, that some writings have been deleted. Line number 12. MR MFALAPITSA Yes. MS MAKHUBELE Line number 11 ends with "Commander of MK section based" I don't know whether you left this out or ... MR MFALAPITSA Near Lusaka, I think, near Lusaka. MS MAKHUBELE You mean there was nothing written between based and near? MR MFALAPITSA No, I think based near Lusaka. MS MAKHUBELE Okay. So I wanted to ask you that you being in that Operational Unit which unit I presume decided on the fate of this Shorty, that he was a security risk, were you present when a decision was taken on him? MR MFALAPITSA No, what happened is that the Commander instructed us to inform Joe Modise and Keith that this person was a ...(indistinct) person in the camp and then the decision came back that we must inform the Commanders to eliminate this Shorty. MS MAKHUBELE Do you know if he was brought to some Committee where he was asked and finally a decision was taken? MR MFALAPITSA I think he was court martialled at one stage. He was tied to a tree for a night as a punishment, but after that I think he went on a drinking spree, I think he went a whole, because there were villages around the camp and he came back drunk and what they were suggesting was that because what they heard is that when he was in Zimbabwe he fought with a local in Zimbabwe over a woman and he shot the husband of this woman. Now they were suspecting that he might turn the gun upon himself because he seems to be sometimes becoming agitated. MS MAKHUBELE Did you see him during any of these events when he was court martialled? MR MFALAPITSA I saw him after he was being court martialled, but he was set free and he was - well he used to communicate with me very intimately, he used to portray a sense of: "I can change things", but the Commander had a different view completely about him. MS MAKHUBELE So up to that stage, you are certain that this Shorty is the Shorty that you know, this Xhosa speaking, this? MR MFALAPITSA I'm not sure, because there were many many Shorties and that is why I was saying that in the photo, if it was a photo, but in the police albums that you have for people who were in exile, he was there, I could recognise him in the photo. MS MAKHUBELE You said there were many Shorties? MR MFALAPITSA Ja, there were many Shorties. I was also Shorty for instance, my nickname in exile. MS MAKHUBELE ; Do you know where this Short was based, the Shorty that ... MR MFALAPITSA The one I'm speaking about? MS MAKHUBELE Yes, yes. MR MFALAPITSA This man was in a unit that was sent in Zimbabwe, he was fighting along Zimbabwe, along AZAPO in Zimbabwe and when South African Government discovered this unit in Zimbabwe, they were withdrawn into Zambia, that was when this information about him having conducted himself unbecomingly in a battlefield, that he seems to be having this recurring in the rear area and then the matter was reported to High Command. JUDGE DE JAGER You said that his photo was in the police album? MR MFALAPITSA Yes, he was in the police album. JUDGE DE JAGER I think that album still exists, isn't it? MR MFALAPITSA I don't know if it does exist, he will still be there. JUDGE DE JAGER Because I think they've referred to it in one of the hearings and perhaps it could be of assistance to the victims if that album can be shown to them and the Shorty that you say was eliminated could be pointed out so that they could see whether it's their family or not. MR MFALAPITSA Yes. JUDGE DE JAGER I don't know whether the Evidence Leader could assist us. Do you know Mr Mapoma whether that album still exists? I think they've referred to it I think in the Williamson trial and I think they - actually I was under the impression that they still had this album somewhere. MR MAPOMA Where, in the TRC? JUDGE DE JAGER Ja, I think perhaps - no I don't think it was handed to the TRC but I think it's still in the police archives, may be some of the senior police could assist in that. If you would perhaps ask Gen van der Merwe, I think he could assist if it's still in existence, he may be able to assist. MR MAPOMA I will try and do that Chairperson. MR KNIGHT Commissioner de Jager, if it - it could also be possible if the family had a photograph, that would possibly be an easier way of identifying - for my client to identify him. JUDGE DE JAGER Yes, if you possibly have a photo to show him and ask him whether this is the man that's been killed. MS MAKHUBELE Yes, that's a possibility Chairperson, but under the circumstances, yes the family will bring the photo, we don't have it now, but then obviously under the circumstances, if the family brings a photo of a man who died in 1986, which he says is not the year that this Shorty died, obviously it's not going to assist us, rather he point him out from the police photographs, then the family can then confirm if that's him and also produce the photo of their son or their brother. JUDGE DE JAGER Ja, if that could be done, but if they haven't got that album available, it may bring sort of finality in the minds of your clients, if they know well this isn't the man, he wasn't killed there, or this is the man, then it might assist them, but that could be negotiated between you and the attorneys afterwards. CHAIRPERSON Sorry, I'm getting totally confused. Do I understand that the man, the family, Shorty, who you are representing, was killed in 1986? MS MAKHUBELE That's correct, Chairperson. CHAIRPERSON Isn't it clear that it could not have been - as I understand the evidence of this applicant, he left the ANC in 1982, so he cannot be talking about the same incident. Perhaps we can take the short adjournment now and you can start investigating the possibility of obtaining photographs and what have you. We'll take the short adjournment. COMMITTEE ADJOURNS ON RESUMPTION THALEDI EPHRAIM MFALAPITSA (sworn states) MR MAPOMA Chairperson, maybe just before we proceed, let me just report the progress so far in relation to the search of the photo. I have spoken to Andre Steenkamp who is one of the Evidence Leaders in the Security Force matters and he has advised me that in one of the hearing there's been on record testimony to the effect that those photos were destroyed, but on the other hand I have spoken to the Cape Town office and one person has advised me that the Research Department did have that photo, so I have just asked him to look for that one and report to me later on. Thank you. CROSS-EXAMINATION BY MS MAKHUBELE (cont.) Thank you. Mr Mfalapitsa, in which camp or which country did you come to know this Shorty? MR MFALAPITSA That was in Zambia, in FC camp. MS MAKHUBELE When was that? MR MFALAPITSA It was, I think, 1980 when there were from Zimbabwe. MS MAKHUBELE 1980. MR MFALAPITSA Yes. MS MAKHUBELE Do you know when this Shorty joined the ANC military? MR MFALAPITSA No. MS MAKHUBELE Do you know if this Shorty has ever been to Botswana? MR MFALAPITSA No. MS MAKHUBELE My instructions from the family are that their Shorty, since he left the country in 1979, he was based in Botswana, he had been in Botswana where he communicated with his family until his death in 1986, that's the country where he was based in. MR MFALAPITSA Well, if it is the same Shorty, that part of history I did not know. MS MAKHUBELE Furthermore ...(intervention) JUDGE DE JAGER Ja and they've had communication with him say in 1984, 1985 round, up till 1986? MS MAKHUBELE That's correct. In fact the last letter they received from him was just a few months before his death. The last letter was in May 1986 and they were then informed of his death in September of 1986. JUDGE DE JAGER So surely then we're not speaking of the same person, if there was a person like Shorty in 90. MS MAKHUBELE Furthermore, my instructions, after you described him, during the break I - the sister sitting next to me confirmed that the description you gave to the Commission, fitted her brother. The other Shorties that you knew, would you say they were also of the description you gave? MR MFALAPITSA Well I only know this Shorty who was basically in a military context, that is in Zimbabwe, and I don't think he could have been in Botswana from my own, how I understood their mission to be in Zimbabwe. MS MAKHUBELE And where was this - where was it reported to you that - rather when Simelane and Simon gave report to you, did they tell you where they had killed this Shorty? MR MFALAPITSA Yes, along the road towards FC, from Lusaka to the camp, it was near Lusaka, FC camp. MS MAKHUBELE Did you see his body? MR MFALAPITSA No, all that I know is that when we left him with them he said we must continue the struggle, that is what he said. MS MAKHUBELE Who said what? MR MFALAPITSA He said we must continue with the struggle, when we left him with them, with the Commanders. MS MAKHUBELE Who said you must continue the struggle? MR MFALAPITSA Those were the last words he said to me, we must continue the struggle, when we left him with the Commanders at the spot where he was supposed to be killed. MS MAKHUBELE I don't understand you. You were there when he was abducted. MR MFALAPITSA We picked him up at the camp. MS MAKHUBELE Yes. MR MFALAPITSA Along the road we dropped them. Where we left them there at the spot chosen by the Commanders, we left them there then what he said, his last words were that we must continue the struggle. That is the only words he said. MS MAKHUBELE So you left him with Simelane and Simon? MS MFALAPITSA Yes at the spot they have chosen. MS MAKHUBELE They have chosen to kill him and then you left and then after how long did they come to ...? MR MFALAPITSA Then the following day we went to the camp and then they reported to us that they have executed him. MS MAKHUBELE Were you with these Commanders, Joe and Keith, when you were ... MR MFALAPITSA No, it was only me and Charles. MS MAKHUBELE And Charles? MR MFALAPITSA Yes. MS MAKHUBELE And Joe and Simelane and Simon? MR MFALAPITSA And Joe and Simelane and Simon, yes. CHAIRPERSON Sorry. Do you say that Joe, is that Joe Modise was with them when they killed him? MR MFALAPITSA No, he was not present, it was only me, Charles, Simelane and Simon. MR SIBANYONI Was he told that he was going to be killed there? MR MFALAPITSA He was not told but we left him with the Commanders, because he knew military rules of court martialling and executions, he was certain that he's going to be killed. MR SIBANYONI He was aware that he was being court martialled? MR MFALAPITSA Yes and he was aware that at that point the atmosphere was that he was aware that he was going to be killed. MS MAKHUBELE Do you know if Shorty knew - rather how his relationship was with Simelane and Simon. MR MFALAPITSA Well, what I know, I don't know about personal relationship, but in the military situation, Commander and junior, they have very little personal contact except through orders, because that situation was a totally military situation. MS MAKHUBELE If you were not going to be present when he is killed, but just to make certain they reach the spot, why were you accompanying them? MR MFALAPITSA Well the instruction was that they, as Commanders and people who were in the battlefield together, there was an institutional function that they ought to do without us being present physically. JUDGE DE JAGER Ms Makhubele, as I understand the position, it's quite clear that on the evidence it couldn't have been your client's brother that's been killed in 1981. MS MAKHUBELE Honourable Panel, the reason we cannot say that, because there's the version which maybe, when I put it to him now, it will appear far-fetched and imaginary, but then depending on what we see when we finally get these photos. The version will be that he killed him in Botswana in 1986. JUDGE DE JAGER Well put it to him then, because otherwise we're ... MS MAKHUBELE If I may proceed to do so. How certain were you that he was killed on the day that you ordered Simelane and Simon to kill him, because you never came to see his body? MR MFALAPITSA As I say, in a military situation we deal with orders, total and certain and any deviation from formal orders, may have actually not implicated us alone but even the Commanders, so it could have been also in a way - you could have been court martialled or judge militarily. CHAIRPERSON As I understand it, technically speaking you did not order them to do anything. MR MFALAPITSA No. CHAIRPERSON You passed on an order from your superiors to them because they were also your seniors. MR MFALAPITSA That's correct, Mr Chair. MS MAKHUBELE I put it to you that you came into contact with Shorty, whom we know as Thembisile Tuku in Botswana, because Shorty was never based anywhere other than Botswana, but that you only came to know him after the period that you had defected to be a Security Police, that is after 1981. MR MFALAPITSA I think people who were with me in an underground machinery in Botswana, we had a very intimate, close relationship. I remember each one of them and their behaviour, because it was a small unit in charge of infiltrating operative members inside the country, so there's no way in which I could have mistaken anyone. MS MAKHUBELE Are you saying that the period that you spent in Botswana before you defected to be a police officer, you never came to know of a Shorty in Botswana? MR MFALAPITSA No. MS MAKHUBELE I further put it to you that this is - this was the only Shorty, ANC Shorty in Botswana and he was killed in Botswana and not elsewhere. MR MFALAPITSA Well, if that is the case, for instance if you say 1986, I was not in exile in 1986, I was in South Africa in 1986. MS MAKHUBELE Yes and that you did not kill him under the circumstances where you were taking ANC orders, but that when you were already what is called an askari, that is a Security Police officer. MR MFALAPITSA I think the ...(indistinct) should also consider premises upon which they are based. If it is wild inferences, then there's nothing I can say about it. MR KNIGHT Mr Chairman, I really object to this line of questioning, in view of the fact that it is mere speculation, there doesn't appear to be any factual basis for putting to the applicant what is currently being put to the applicant. This is an attempt to ambush the applicant. If the applicant had - if there was any truth in these allegations which I do not believe that my learned colleague is going to be bringing any evidence to substantiate these allegations, then surely given the wide parameters of the process, we would have applied for amnesty on that basis. I just believe that the line of questioning is going nowhere and it's turning into an irrelevant ambush, with due respect, Mr Chairman. CHAIRPERSON My problem is, and I think it's something you ought to consider, that it hasn't been suggested, as I understand it, that he was ever on duty as a Security Branch - South African Security Branch askari, in Botswana, has it? Is there any evidence? Was any such evidence led? Were you present at that hearing? MR KNIGHT Yes, Mr Chairman, that is correct. All the matters relating to Mr Mfalapitsa happened within the territorial limits of South Africa, there were no operations in Botswana as an askari. MS MAKHUBELE If I may first respond to the last part, I - when I made reference to his defection in Botswana, it's a - I'm basing this on what appears on page 20 of the bundle. It starts at page 14, rather at paragraph 14 which is on page 19 where he describes how he became disillusioned and then defecting to South Africa the end of 1981. "While on a mission in Botswana I crossed the border and surrendered myself at the police station at Derdepoort." That's how, that was the start of his - what do you call it? CHAIRPERSON Being an askari? He crossed the border into South Africa, when he was on an ANC mission in Botswana and handed himself over to the police. MS MAKHUBELE Yes and then it goes on to say that he was debriefed on paragraph 15, that's why I'm saying that was the beginning of his career as a Security Police. CHAIRPERSON Yes, but we're talking about an event that happened in 1986. MS MAKHUBELE Yes, Chairperson, that is why the basis on which I was proceeding was that this Shorty was in Botswana at the time, that's where he could have met him, but anyway regarding the alleged ambush, I don't know, maybe I should have stopped my questioning at the time when we were supposed to have waited for proof from the police photos that we are actually talking about one and the same Shorty. CHAIRPERSON The problem is the questions, I've got a note of you putting it, you say "Thembisile Tuku, you met him in Botswana, you only met him after you joined the Security Branch in 1981." MS MAKHUBELE That's correct. CHAIRPERSON This passage you're relying on is before he joined the Security Branch he says he was in Botswana. You said he only met Shorty after he had joined the Security Branch, that is after this incident, so there is no shred of evidence that he was ever in Botswana after he joined the Security Police. MS MAKHUBELE Thank you Chairperson. On that basis then I would say I don't know what the procedure is going to be after we have received confirmation say from the photographs that we will proceed and any photos that may come from the archives, the TRC archives. CHAIRPERSON Well quite clearly, and I think this will be agreed by Mr Knight, if the photograph shows that you are talking about this man who was killed in 1986, then his application falls away as being not a complete disclosure. MR KNIGHT If one could qualify that to the point of when this person, whether we could have a factual basis upon which one could say that the person died at a particular place at a particular time, because there doesn't seem to be any accuracy with regard to substantive evidence that would record a death such as ...(intervention) CHAIRPERSON ...would have to show that he did die in 1986. Who notified your clients of the death? MS MAKHUBELE The ANC. JUDGE DE JAGER And as I understood the evidence, your client actually went to Botswana in order to see the grave and she was promised that she would be shown the grave? MS MAKHUBELE That's correct. JUDGE DE JAGER Now it's already the year 2000, has she been shown the grave? MS MAKHUBELE Not yet. JUDGE DE JAGER But she met people who said they know where the grave is? MS MAKHUBELE No, she was supposed to meet people from Lusaka who knew where the grave is, but then they never got to see it, but the thing is, the ANC has been at the forefront of helping her to see the grave since then. CHAIRPERSON Well, who in the ANC, when you say the ANC? Officials in the ANC? MS MAKHUBELE She mentioned names like Alfred Nzo, she spoke to a person like Chris Hani, then, in 1986, people who were in - the leaders then, they are the people who were in contact with her, they are the people who were assisting her. JUDGE DE JAGER According to the information, how was her brother killed, what happened to him? MS MAKHUBELE He was shot, he was found between his base and mattress with a gun on his head, so it was made to look like it's suicide, but it was between the base and mattress. MR KNIGHT Mr Chairman, it might also be equally probable and it's a question for argument, that in the event of the fact of my client's version being that Mr Modise gave the order for the person's assassination, for execution, it would be hardly likely that at this time they would want to come forward if they are going to deny their role, that they would equally - the balance is equally there that they may very well lie about the whereabouts, the circumstances of the death to conceal the truth and in the absence of corroboration, on way or the other, it becomes very difficult to make a finding of fact. As the Commission pleases. MR SIBANYONI Although they may not say he died in 1986, if he died in 1981. MR KNIGHT Quite correct, Mr Commissioner, you could have a situation, if we do not have any independent corroboration of the - a body, or a post-mortem report, it becomes, it's merely speculation. From the applicant's point of view, he, on his own version was not present, so what was relayed to him, although he associated himself with the commission of an offence at that time, it doesn't necessarily imply that the person was murdered there. JUDGE DE JAGER Ja, but on the evidence we've got, it's clear that the Shorty who died in Botswana in 1986, couldn't have been the Shorty he's referring to as being a victim in 1981. MR KNIGHT Yes. JUDGE DE JAGER Because this person wasn't based in Botswana in the first place. The Shorty the victims are referring to was only based in Botswana. He died in 1986 and not in 1981. So either we had two Shorties that's been referred to, the one who was never based in Botswana, but was based in Zimbabwe and Zambia and who probably died in 1981. If he wasn't killed in 1981, it seems as though it still is not the same Shorty because that Shorty was never based in Zambia or who was later killed and the name Shorty, the description, all short people are sort-of known as Shorty. There's nothing in the description that would tie up with a specific Shorty, except that he was also Xhosa speaking, so I think as far as this is concerned, we in the end will have to decide whether we're talking about the same Shorty. If it's the same Shorty, it seems as though the applicant is referring to something else and that wouldn't be a full disclosure as far as this Shorty is concerned, if he's been involved with the later Shorty, but we're speculating and unless we have evidence, if one is putting a question in speculation and you've got an answer, you should abide by the answer, you can't proceed unless you've got further evidence, that's the rules of evidence. Let's proceed and see whether we can get to a point where we can finish this matter. MS MAKHUBELE I was willing to abandon my questioning but I asked what the procedure is going to be after we have produced a photograph or we have received a photograph. I hope the Committee can only reach, or rather make a conclusion that we're not talking about one and the same Shorty once the Commission has been in a position where a photograph is placed before it. JUDGE DE JAGER Well, what do you suggest, would you get a photograph, how would it be put, would it be available today, would it be available in a month's time, what would the position be? MS MAKHUBELE I thought I heard Zuko saying he's waiting for a response from Cape Town. If we can verify if ever we'll get a photo from Cape Town then that one I believe we can view very soon, but the photo that will come from the family, obviously it will be later because she still has to go home and fetch it. JUDGE DE JAGER Well I think you should make an arrangement between you as attorneys and if something transpires, then you should let us know about the result but we can't wait for a month for a photo to be brought up or whatever it may be. CHAIRPERSON Forgetting about photographs for a moment, I understand from what you've said, the senior members of the ANC have been extremely helpful towards your client, have indicated their intention to assist. Would it not be possible to find out from the ANC without too much delay, whether they have a record, I can't find it in their books, but whether they have a record of this suicide in September 1986, was it and whether they have any record of how long the person concerned had been stationed in Botswana? MR KOOPEDI Yes, I will do that Chairperson. CHAIRPERSON If he was in Botswana as they suggest. MR MAPOMA Yes, Chairperson, I will do that, but Chairperson I think it needs to be taken note of that it was put to the applicant that this event of killing this Shorty, is neither here nor there, unless I got it wrong from what was put by Mr Koopedi of the implicated persons, perhaps he can clarify that. MR KOOPEDI Your look, Chairperson, tells me I must respond. I'm not sure whether I heard Mr Mapoma correctly, but I know that I put to the applicant a version of my instructions, which was to the effect that there's no person known as Shorty died under any circumstances during the times the applicant referred to and that his evidence was a mere fabrication, that is what I put to the applicant. CHAIRPERSON Yes. This young man, as I understand what's been put, went to Botswana in 1979. If he was there till he apparently committed suicide in 1986, there can be no doubt at all that we're talking about two different people, with or without a photograph and if so, I don't know if such information is available, but if it is available through ANC records with just a quick check, it could perhaps save a great deal of time. MS MAKHUBELE But then, Chairperson, unless that then would mean that the Committee is looking at this - say the version of Mr Koopedi in isolation, and then in which case then it would mean that this is the end of the story, the family should still await for someone else to apply for amnesty, but I see a link here ...(intervention) CHAIRPERSON It means he is not talking about the same person. If he is talking about somebody he knew and worked with at the time your Shorty was in Botswana, it means it's a different Shorty. JUDGE DE JAGER We can't grant him amnesty for the killing of Mr Thembisile Tuku on the 11th of November 1986 in Botswana, because he's not applying for that, so we can't grant him amnesty for that on whatever - because we haven't got a - he didn't apply for that, it's a separate incident as far as time and name is concerned and we can never grant him amnesty for that so it wouldn't affect your client's rights as far as he is concerned, in for instance a civil case. CHAIRPERSON Haven't you any evidence that you can put before us, any evidence to suggest that the applicant had any dealings with your young man, or any reason to want to kill him? MS MAKHUBELE I don't know how to respond to that, Chairperson, but I don't want to testify, I was merely taking this matter one step further that if the people who are said to have instructed him, did not, then what are the possibilities, but I understand that one cannot work on speculations when there's no evidence. I can't respond further than that. CHAIRPERSON Have you any further questions? MS MAKHUBELE I had already indicated no. NO FURTHER QUESTIONS BY MS MAKHUBELE CHAIRPERSON We are awaiting, as we all know, information from Cape Town, as to whether this photograph is available or not. If it is available we may then have to consider what should be done. If we're told it is not available, that I think is an end to the matter. Cross-examination? MR MAPOMA Thank you Chairperson. CROSS-EXAMINATION BY MR MAPOMA Mr Mfalapitsa, in your evidence-in-chief you said that you did not associate yourself with the order to kill Shorty. Is that correct? MR MFALAPITSA Yes, implicitly, yes, but objectively I was bound by order. MR MAPOMA I understand that, that you were bound to carry on the order, but you did not associate yourself with that order. MR MFALAPITSA I cannot allocate myself the right to remove the life of a person, if ...(indistinct) the full authority to do so. MR MAPOMA I didn't get you. MR MFALAPITSA In other words, I could not have done that if authority was vested on me alone, I could not have done that, I could have opted for other ways, disciplinary corrections. MR MAPOMA In that unit which you are saying you were part of, did you have any portfolio? MR MFALAPITSA Yes, in the civil sense, because I had the authority to convey orders and to mediate between the authority and the men under arms in the camps. MR MAPOMA No, I want to be clear. Did you have a portfolio, were you Commander or what, that's what I want to find out. MR MFALAPITSA Let me say I was a Junior Commander. MR MAPOMA Pardon? MR MFALAPITSA I was a Junior Commander. MR MAPOMA And you were not party to the decision which was taken to kill Shorty? MR MFALAPITSA All decisions such as those are taken by the Head of the Department and Revolutionary Council Meeting, it's not a sole single person decision. MR MAPOMA So all you did was to convey the information from the leadership? MR MFALAPITSA That's correct. MR MAPOMA And you are not the only person who conveyed that information, isn't it so? MR MFALAPITSA It was me and Charles. MR MAPOMA And when you left the deceased together with those persons who must have killed the deceased, did Charles leave as well? MR MFALAPITSA We all left together, we were driving in the same car. MR MAPOMA Did you have any code name? MR MFALAPITSA I was Francis. CHAIRPERSON Who? MR MFALAPITSA Francis. MR MAPOMA Francis who? MR MFALAPITSA That was my only name, but sometimes when I travel for mission, I used to be called Francis Tladi. MR MAPOMA Now this even of the murder of Shorty took place during the period, or I mean- let me leave that one. In your affidavit on page - will the Committee bear with me please? On page 19 and paragraph 14 you say "These events led me to become disillusioned in the ANC" and then you go on. Which events are you talking about? MR MFALAPITSA The events of what I call mass arrest and subsequent events of the killing of this person because it was the first time I indirectly participated in life, in the taking away of somebody's life, so that sundered my entire being which I always carried with me even while ...(indistinct - speaking softly) MR MAPOMA So the even of the killing of Shorty is one of those events which made you to be disillusioned with the ANC? MR MFALAPITSA In fact it inflicted serious fear in me that I could not even carry myself around and immediately after that I was removed from the Headquarters because I could not function well fundamentally. MR MAPOMA Now, regarding the assault and interrogation of persons, actually in respect of whose assault and interrogation are you applying for amnesty? MR MFALAPITSA All of members mentioned. MR MAPOMA Pardon? MR MFALAPITSA All of members of the ANC mentioned were involved in arrest and subsequent interrogation. MR MAPOMA No, no, no, let me be clear. MR MFALAPITSA Should I have named names? MR MAPOMA Yes, you must tell the Committee the assault of whom must the Committee grant you amnesty for? MR MFALAPITSA That is Disco, that is Dladla, that is Dumisang, that is ...(intervention) JUDGE DE JAGER Sorry, the last name mentioned? MR MAPOMA Dumisang. JUDGE DE JAGER Dumisang. MR MFALAPITSA Yes. That is Wellington, Oshkosh. MR MAPOMA In fact your evidence-in-chief was that when Dumisang and Disco were assaulted, no, no, you said you witnessed the assault that took place on Dumisang, is it so? MR MFALAPITSA Yes. MR MAPOMA And you were just a witness there, you didn't participate? MR MFALAPITSA No, not in Dumisang's ..(indistinct - speaking too softly) MR MAPOMA And you said in Disco, all you did was to hold him? MR MFALAPITSA yes. MR MAPOMA You didn't assault him as well? MR MFALAPITSA No, he was only assaulted by one person, in this case Joe Modise. MR MAPOMA Why did you hold him? MR MFALAPITSA It was an instruction. MR MAPOMA Were you happy with the instruction? MR MFALAPITSA In a situation of war, you are implicit feeling about anything, it's yourself, it doesn't belong to outward expression. I was not happy internally, but I could not say anything. MR MAPOMA Yes, in fact it's one of these things which made you to be disillusioned with this ANC. MR MFALAPITSA Precisely because the objective of freedom and what happened that time, contradicted one another. CHAIRPERSON And this sort of assault was completely contrary to the regulations of the ANC's discipline, wasn't it? MR MFALAPITSA Yes. MR MAPOMA And this attitude that you are telling us, was applicable to Dladla, Wellington and Oshkosh as well? MR MFALAPITSA Yes, because I can say now to you that all members who were arrested, whom I've witnessed either their torture or their arrest, there is no single one whom I can with clear conscience say he was an enemy agent. MR MAPOMA Thank you Chairperson, I've got no further questions. Thank you Mr Mfalapitsa. NO FURTHER QUESTIONS BY MR MAPOMA MR KNIGHT Thank you Mr Chairman. Just a few aspects that I'd like to take up. RE-EXAMINATION BY MR KNIGHT You mentioned Mr Mfalapitsa that you didn't assault Disco, but you held him. you will agree with me that holding a person without consent is a form of assault? MR MFALAPITSA Yes, I agree. MR KNIGHT You were a policeman for a time? MR MFALAPITSA ...(indistinct) MR KNIGHT Thank you. You also didn't mention a name, you mentioned it previously but not again here, was a person by the name of Mosha Dijane, it was another person that was assaulted. MR MFALAPITSA Yes. JUDGE DE JAGER Again the name? MR MFALAPITSA Mosha Dijane. MR KNIGHT And just so that there is no misunderstanding with regard to your orders at the time, in respect of both the murder and/or the conveying of the order to murder, as well as with regard to the assaults, you effectively followed orders, is that correct? MR MFALAPITSA That's correct. MR KNIGHT Mr Chairman I have no further questions. NO FURTHER QUESTIONS BY MR KNIGHT CHAIRPERSON But I think as you've already said, you knew these orders, some of them, were contrary to the ANC regulations? MR MFALAPITSA That's correct. MR SIBANYONI Just a single question Mr Chairperson. Mr Mfalapitsa, you went into exile to become a soldier. MR MFALAPITSA That's correct. MR SIBANYONI But the picture you are giving us, or me in particular, is that of a person with a soft heart and that made you to return to South Africa. Can you comment on that? MR MFALAPITSA In fact I'm not a soft-heart as such, but I assume that my humanity is something I can't suspend. When I go into war, there is a personal morality that partakes in conflict and death should be just ...(indistinct) so I thought when I was going to war, all procedures of war will be maintained but when ever something happened to another person I thought what if it could happen to me, so which means I'm partaking in something that doesn't secure my safety, so in that sense it contradicted my objective and demoralised me. MR SIBANYONI Lastly, but your duties as a soldier are not to question it's just to carry out orders as they come. MR MFALAPITSA Yes, legitimate orders and in a version in which enemies attack each other with justifiable methods, one would have no problem with that, but arresting a person, after arresting him inflicting another pain upon the person ...(indistinct), for me constituted the problem. MR SIBANYONI Thank you Mr Chairperson, no further questions. CHAIRPERSON Thank you. MR KNIGHT Thank you Mr Chairman. That is the evidence of the applicant. There is no further evidence to be led for the application. Mr Chairman, with regard to the offences for which amnesty would be sought, would be the murder of the person known as Shorty during or about 1981 in Zambia and then I would say with regard to the second, would be assault with the intent to commit grievous bodily harm of various persons in Lusaka during or about 1981 and the persons would be in respect of the assaults that were inflicted upon the persons whose code names were known as Dumisang, Disco, Dladla, Mosha Dijane, Wellington and Oshkosh. Mr Chairman, as it pleases the Committee, is the application. MR KOOPEDI Chairperson... CHAIRPERSON Was there a person called Ace whom you assaulted? MR MFALAPITSA Yes, there was, Sir. MR KNIGHT Mr Chairman with your leave, if Ace could be included on the list. Ace as well, on the list. CHAIRPERSON Shall we add that? MR KNIGHT Add that to the list please. CHAIRPERSON One other question on this, shouldn't the murder be defined as the murder of Shorty, in conjunction or as an accessory to Simelane and what's his name? To link it so it cannot be a separate murder of Short? He has not given evidence of that, of he having personally murdered him, so we say with Simelane and - I keep forgetting. MR KNIGHT Yes, I agree with you Mr Chairman. CHAIRPERSON And Simon. JUDGE DE JAGER And Zombe is quite a big place, wouldn't it be at or near Lusaka? MR KNIGHT Yes, Mr Chairman, I'd agree with you. MR KOOPEDI Chairperson, may we be permitted to ask a few questions of the applicant? One of my questions was my fault, I should have asked it when I had the chance. Some of them arose from the re-examinations and the questions asked by learned colleagues. CHAIRPERSON You don't have any objection? MR KNIGHT No, Mr Chairman. CHAIRPERSON Carry on. MR KOOPEDI Thank you Chairperson. FURTHER CROSS-EXAMINATION BY MR KOOPEDI I'll start with what I should have asked first, the order which you gave to the two Commanders, was this order from Joe Modise or was the order from Keith Mokoape? MR MFALAPITSA This order came from Keith Mokoape, but by all procedure we knew that it came from Joe Modise. He also mentioned that it came from Joe Modise. MR KOOPEDI Okay, now what I need to understand is who spoke to you about this order, was it Keith Mokoape or was it Joe Modise? MR MFALAPITSA It's Keith Mokoape. MR KOOPEDI So Joe Modise did not say anything to you about this thing? MR MFALAPITSA Not at all. MR KOOPEDI Thank you. Now you spoke about two Commanders who are Simelane and Simon, did these two belong to the same camp? MR MFALAPITSA Yes, they were in Command Headquarters within the camp. MR KOOPEDI Well, I put it to you that that is not probable, there's no situation where you can have two Commanders existing in one camp. Your response? MR MFALAPITSA You have senior officers and junior officers. They all do the function of commanding within the same camp. MR KOOPEDI So your response is that you could have two Commanders in one place? MR MFALAPITSA Actually that's exactly how it was. MR KOOPEDI Now, the other thing is, do you know for sure whether this Shorty died or you were just told by Simelane and them that they had killed Shorty? MR MFALAPITSA Well I'm sure because if they could not have done it and Shorty could have been maybe trapped by Zambian police, they could have themselves been killed as enemy agents. MR KOOPEDI But other than them having told you that they have killed Shorty, do you have any other knowledge or evidence that indicates that Shorty died? MR MFALAPITSA In an objective situation in which they were trusted Commanders, tested ...(indistinct) we agree, I believed that they executed orders as they were said. MR KOOPEDI I take it from your response, what you are saying is, other than what they told you, you have no idea whether this Shorty was killed or was let loose? MR MFALAPITSA ...(indistinct) CHAIRPERSON Sorry, before you go on, let me follow up on this. Do you know where this Shorty used to live? MR MFALAPITSA Here at home, Mr Chairman. CHAIRPERSON No, the camp? MR MFALAPITSA The camp? Yes, the camp was called FC Camp, it was an AZAPO camp. CHAIRPERSON Yes. MR MFALAPITSA Accommodating both AZAPO and the ANC. CHAIRPERSON And do you know where he lived in it? MR MFALAPITSA Yes, he was - it was - there were sort of different post dwellings where different units or sections were residing. CHAIRPERSON Did you live there? MR MFALAPITSA I was living in Lusaka, but I was frequently, daily in contact with them. CHAIRPERSON Did you ever see any sign of him again? MR MFALAPITSA No, no, no, I never had any sign of him again. CHAIRPERSON Carry on. MR KOOPEDI Thank you Chairperson. You spoke about court martialling when Adv Makhubele was asking you questions. Now I need to understand this, what was the order? Was the order, the order that you were supposed to convey, was it that you must order the Commanders to court martial and execute, or was it that they must execute? MR MFALAPITSA The order was to execute because court martialling came discretionally from them, they applied this court martialling procedure first and only when they realised the situation could not be solved, did they report for a further decision by the Higher Command. MR KOOPEDI I'm getting confused. MR MFALAPITSA The order was to execute, not to court martial. MR KOOPEDI You never said to them they must court martial and there was no court martialling that led to the execution? MR MFALAPITSA No. MR KOOPEDI Okay. Now perhaps my final question. you say that one of the people for whom you're asking for amnesty for having assaulted or participated is Mosha Dijane. Why, in your application form, you refer to Mosha Dijane as a person whom you witnessed his torture and today you are saying you actually took part in his assault? Page 11 Chairperson of the amnesty application. MR MFALAPITSA Yes, perhaps when the application was written, the recollection of the events could not chronologically occur as they happened, but Mosha Dijane was arrested and I was there when he was interrogated and subsequently referring this to Angola. MR KOOPEDI I seem to be hearing you saying something else. Did you assault Mosha Dijane? MR MFALAPITSA I didn't assault Mosha Dijane, but I was present when he was assaulted. MR KOOPEDI So you witnessed his ... MR MFALAPITSA That's it, yes. MR KOOPEDI Okay, I won't take this any further Chairperson, thank you, no further questions. NO FURTHER QUESTIONS BY MR KOOPEDI MR SIBANYONI You said the name was FC, what? MR MFALAPITSA FC. MR SIBANYONI What did FC stand for? MR MFALAPITSA I don't know what, we found it being called FC, I don't know what it stood for. MR SIBANYONI Okay. CHAIRPERSON No evidence? MR KOOPEDI No, we will not be leading any evidence from the implicated persons, Chairperson, thank you. MS MAKHUBELE Thank you Chairperson. The victim understands that as the evidence stands, she doesn't have to say anything. Thank you. MR MAPOMA There's no further evidence, Chairperson. CHAIRPERSON We propose to stand this matter down till 2 o'clock because we may have information and some availability of some photographs. ...(indistinct) is record that this matter is to stand down till 2 o'clock to see whether photographs are available or not. We now proceed to the next matter. MR KOOPEDI If I'm allowed to only respond later, Chairperson, the reason is simply that I am in a position to inform the Committee about one withdrawal and I had hoped that there can be more than one and I wanted to do them in one lot. JUDGE DE JAGER No we only want to estimate whether we'll - what would be the position at the end of the day because people should make arrangements for flights and that sort of thing and that's why we want to know as early as possible, so that they could make their necessary arrangements. MR KOOPEDI I believe all matters will be finalised today, Chairperson. CHAIRPERSON Let us know as soon as you're ready. MR MAPOMA Kakole and Saliwa, under G in the paginated bundle. CHAIRPERSON Kakole and Saliwa? MR MAPOMA Yes. CHAIRPERSON And what has been agreed there? MR MAPOMA In that matter Chairperson the appearance is Mr Brian Koopedi for the applicants and Dr Serethe for the victims. The parties of have agreed that the matter may be postponed to Thursday, next week, at the JISS Centre. CHAIRPERSON So it's agreed by the parties who are both here and represented by their legal advisers that the matter will be adjourned till Thursday the 3rd of August at the JISS Centre in Johannesburg at 9.00 a.m. I have spoken to the Judge presiding over that hearing and he has agreed to hear the matter there, but they must be present at that time for the matter to be disposed of. Have the parties heard that? Very well. The matter can then be adjourned on those terms. COMMITTEE ADJOURNS ON RESUMPTION CHAIRPERSON We now revert to the matter we were dealing with before the adjournment. We have heard all the evidence, I gather, the only question that remains to be decided is the question of the photographs. I notice the representative is not here, but I think he was party to the discussions. We have discovered that there is a volume of photographs available in Cape Town. What I propose to do is to adjourn this matter. My colleague will be in Cape Town next week and he will inspect the volume and ascertain whether it is possible to identify the photograph concerned. He would also appreciate it if the family could please arrange to make the copy of their photograph available to him at the Cape Town office as early as possible. If the sister of the victim is going home today or tomorrow, she could post it tomorrow so it should be awaiting him in Cape Town and he will then compare the photograph and decide whether it is necessary for there to be a further inquiry into the identity of the people or persons concerned and if so, we will ask our evidence leader to make the inquiries I have already suggested could be made from the ANC relating to this. I want to make it clear to the victim that we wish to do all we can to try to identify the people concerned and I trust that the ANC will again approach with a view to assisting her to visit the grave which they say is that of her brother, but I think that is the best we can do at the moment. If the photographs are of different persons, you will all be notified and we will then ask you to submit written argument. Has anyone anything to say in that regard? JUDGE DE JAGER Mr Knight came in a bit late. Mr Knight I think Dr d'Oliviera or Gen van der Merwe may assist you in getting a copy of this photo album. If your client could identify the person named Shorty, I think all the photos are numbered and then we could identify that photo and we could make a copy of that specific photo and we'll later, after I've seen it, and see whether it's the same person mentioned by the family, then it's another matter. If it's not the same person, we'll even try and give a copy of the photos to both parties, so that they could see it's not the same person. CHAIRPERSON Can I interrupt there? If it is the same volume available here and in Cape Town, it would suffice I think, if you could notify my colleague as to the number of the photograph that your client has identified, it might speed things up. As a safeguard, you could perhaps have a copy made, but if you notify him the number, he will be then getting the other photograph and can compare the two. MR KNIGHT Thank you Mr Chairman, I think it's a good idea and I will try possibly even this afternoon to go past the AG's office on the way back to my office to see whether I can locate this photograph. Thank you. CHAIRPERSON That matter is adjourned until a further decision is made by the Committee. MR KNIGHT Mr Chairman, may we be excused then? CHAIRPERSON Certainly. Thank you for your assistance. MR KNIGHT Thank you Mr Chairman.