amntrans AMNESTY HEARINGS 2000-08-30 DURBAN 3 LUCKY SITHOLE AM6527/97 https://sabctrc.saha.org.za/hearing.php?id=54435&t=&tab=hearings https://sabctrc.saha.org.za/originals/amntrans/2000/200830db.htm CHAIRPERSON The Panel this morning is constituted as before. For the purpose of the record, I am going to ask the representatives of the various interested parties, in this application, to announce themselves for that purpose, of the record. MS MOHAMED Thank you Mr Chairman. My name is Miss Mohamed, from the firm Dehal Inc, on record for the applicant. MS THABETHE Thank you Mr Chair, I am Miss Thabethe for the TRC, the Evidence Leader. CHAIRPERSON Yes, Ms Mohamed? MS MOHAMED Mr Chairman, I call the applicant, Mr Lucky Sithole. CHAIRPERSON Mr Sithole, what language would you like to use in the first place? MR SITHOLE I would like to use Zulu. CHAIRPERSON Very well. LUCKY SITHOLE (sworn states) CHAIRPERSON Please be seated. EXAMINATION BY MS MOHAMED Thank you Mr Chairman. Mr Sithole, you have before you a bundle of documents. CHAIRPERSON Before you carry on, Ms Mohamed. Ms Thabethe, I see there is no representation for victims, what is the position about victims? MS THABETHE Mr Chair, the position is that there was an advert in the newspapers for victims, but nobody came forward. CHAIRPERSON Yes, proceed. MS MOHAMED Thank you Mr Chairman. MR LAX Sorry, just before you go on, Ms Thabethe, Mr Breed made a statement, did he not, that was at page 23 of the bundle, he was the owner of the Toyota Hi-Lux and it seems clear from his statement there, that he does not oppose the application. Is that not correct? MS THABETHE That is correct, thank you, I am indebted to you, Mr Lax. May I just add on, the advert appears on page 24 of the bundle. MS MOHAMED Thank you Mr Chairman. Mr Sithole, do you confirm your amnesty application, which is on pages 1 to 7 of this bundle? MR SITHOLE Yes, I do. MS MOHAMED Do you also confirm the supporting statement which is found on pages 8 to 11? MR SITHOLE Yes, I do. MS MOHAMED Now, on your instructions, Mr Sithole, I have drafted a four page statement, which you have earlier this morning signed, the statement has been made available. Do you confirm the contents of it? MR SITHOLE Yes, I do confirm it. CHAIRPERSON Before we carry on. You are confirming the contents of the statement and you have signed it, are you aware of its contents? MR SITHOLE Yes, I am aware of it, because I read it. CHAIRPERSON And you are quite satisfied with the contents? MR SITHOLE Yes, I am satisfied. CHAIRPERSON Is there anything that you would like to amend in the statement? MR SITHOLE There is nothing that I would like to change now, because there was a slight inaccuracy which we corrected with my Attorney. CHAIRPERSON I see, so all the others that have not been deleted or corrected, you are satisfied as being accurate and the truth as far as you are concerned? MR SITHOLE Yes, I am satisfied. CHAIRPERSON The statement on page 8 of the bundle, you are aware of the contents thereof? MR SITHOLE Yes, I am aware. CHAIRPERSON I see you signed it as well? Is that correct, or would you like time to read it? Would you like time to read it? It seems to me that you are not quite sure of the contents? MR SITHOLE I have read it already. CHAIRPERSON Are you satisfied that it properly reflects what you intended to say in that document, or do you want to amend something in that? MR SITHOLE No, I do not think there is any mistake or anything that needs to be corrected. CHAIRPERSON Your application that appears from pages 1 to page 7, I assume that you are aware of the contents thereof? MR SITHOLE Yes, I am aware. CHAIRPERSON Is there anything that you would like to amend in that document? MR SITHOLE No. There is nothing. CHAIRPERSON You are satisfied with the contents thereof? MR SITHOLE Yes, I am satisfied. CHAIRPERSON Yes, proceed Ms Mohamed. MS MOHAMED Thank you Mr Chairman. Mr Sithole, do you also confirm that a copy of this bundle was made available to you at Westville prison, last Friday, and you have had that copy with you, since that day? MR SITHOLE That is correct. MS MOHAMED Thank you. Mr Sithole, I am now going to take you to the statement that I have prepared and which you have signed. CHAIRPERSON Can you make that Exhibit A? MS MOHAMED Yes, Mr Chairperson. Isn't it correct that paragraphs 3 to 8, confirm your training and your involvement with the ANC as an MK operative? MR SITHOLE Yes, that is correct. MS MOHAMED Sorry, before we go on, can you tell us whether you are still a member of the ANC? MR SITHOLE Yes, I am a full member of the ANC. MS MOHAMED Okay. Do you occupy any position within the ANC structures at Westville prison? MR SITHOLE Yes, I am an organiser within the Executive Committee of the ANC at Westville prison. MS MOHAMED Thank you. I am going to take you to paragraph 9 of your statement which says "... Around 1992 I returned to South Africa, to my home in Umhlazi." MR SITHOLE That is correct. MS MOHAMED Shortly after your arrival at Umhlazi, there was a particular incident, can you just elaborate on that? MR SITHOLE The incident that I recall was one told to me by my Commanders of comrades, who had been attacked at Section Z in Umhlazi by the police. That attack, their firearms had been lost and those comrades have not been killed, that is the incident that I recall. MS MOHAMED Now, who were the Commanders that related this incident to you? MR SITHOLE The people who came to me were stalwarts in the ANC, Mr Mapomule as well as Commander Freza Shangasi, who was a Deputy Camp Commander in Angola. His MK name was Mzwaki, but his real name is Freza Shangasi. MS MOHAMED After this incident was related to you, what did you do? MR SITHOLE There was nothing else I could do, except to follow their instructions, because as an MK cadre, I had to follow instructions from my Commanders. CHAIRPERSON Ms Thabethe, these two Commanders, have they been given notice? MS THABETHE Can you give me time again, Mr Chair, I just want to check that one out. Mr Chair, I've got an investigation report done by (indistinct), it appears that both are deceased. CHAIRPERSON Both are deceased? MS THABETHE Yes. CHAIRPERSON Can you confirm whether your Commanders at the time, whether they are deceased at present or not? MR SITHOLE The information I received in 1997 from Commander Shangasi in prison, is that Mr Mapomule had been deceased. Mr Shangasi was also later arrested, and he was sentenced at Westville prison, whereupon he died. CHAIRPERSON Carry on. MS MOHAMED Thank you Mr Chairman. Mr Sithole, before these questions about your Commanders were put to you, you said that after this incident was related to you, you could do nothing but follow the instructions of your Commanders. What instructions did they give you? MR SITHOLE After relating that incident, they said as a trained soldier who worked as a Logistics Officer as well as an Ordinance Officer, they would appoint me to be an Ordinance Officer. Therefore I would be responsible for organising arms and ammunition, because after the death of these comrades, they did not know, they could not trace the DLBs, so I was going to be responsible for organising arms and ammunition, so that other cadres could be trained. CHAIRPERSON Is that the only reason why you had to organise arms, to effect the training of other cadres? MR SITHOLE That was the reason that was advanced to me. CHAIRPERSON Why I ask, in your original application although it is not really said to that extend, there seems to be a suggestion that you needed arms to protect defenceless people and to free the people from oppression? MR SITHOLE Yes, that is correct. CHAIRPERSON Can you tell me how that is related to each other? INTERPRETER Please repeat the question. CHAIRPERSON You, in your evidence tell us that you were given this order to obtain arms so that these arms could be used in order to train cadres, presumably in weaponry? In your application the suggestion is that really you needed these arms to protect defenceless people and to help them, free them from oppression? Do you agree that that was so? There is a bit of a conflict there, can you explain that? MR SITHOLE Please will you explain the conflict? CHAIRPERSON That on the one, the one answer you say that the only reason you were asked to obtain arms was to train cadres, the other one is that you were asked to obtain these arms in order to protect defenceless people, and to lead them into freedom from oppression? MR SITHOLE Yes, the arms would have been used to train cadres, and that would assist in freeing the people, because at the time there was ongoing political violence. The arms would have been obtained to train cadres to protect the community, because at the time they were not safe. CHAIRPERSON I see. MS MOHAMED Thank you Mr Chairman. Mr Sithole, after you were appointed as an Ordinance Officer, what did you do to fulfil your responsibilities, to obtain those arms and ammunition? MR SITHOLE Firstly I, Mr Mapomule and Mr Shangasi discussed my going to Mozambique to organise a contact. I did that and returned and gave them a full report. MS MOHAMED Why did you choose Mozambique as a destination? MR SITHOLE I chose Mozambique because it was near, also for the reason that when I left South Africa, the easiest route was through Mozambique. I realised that the easiest way of infiltrating arms into South Africa, would be from Mozambique. MR LAX Didn't you go through Swaziland when you left South Africa, not Mozambique? MR SITHOLE I did pass through Swaziland. MR LAX So, how would you, you didn't go through Mozambique, you said the easiest way was through Mozambique? MR SITHOLE When I was in Swaziland, I used to move around because I used to go towards the Mozambique border. When I went to Mozambique, I used the route that I knew well. MR LAX Who told you about the contact in Mozambique? MR SITHOLE I used my military training as to how to approach people in any area, as well as how to approach individuals when one seeks such items as arms and ammunition. I am in a position to mingle and interact with people from any other country. MR LAX You located the contact yourself, is that what you are saying? MR SITHOLE I arrived at Nomahasha in Mozambique and was able to locate and find myself that contact. The first person that I met was a peasant, thereafter he managed to get me into contact with that person. JUDGE POTGIETER You had no idea whether you would be able to make a contact when you went to Mozambique? MR SITHOLE I did not have anybody that I knew in Mozambique, but I was fluent in Portuguese, so I relied on that. JUDGE POTGIETER You just went there and you were just going to enquire around and hopefully come across an arms dealer, that was prepared to deal with you? MR SITHOLE When I left, I was hopeful that it would not be difficult because even here in KwaZulu Natal, I was aware that there were firearms that were being sold by Mozambique, but I did not want to access those, because I did not trust the people here, I wanted to go to Mozambique myself. JUDGE POTGIETER And then if I understand your statement correctly, this arms dealer gave you a purchase price of R36 000, is that right? MR SITHOLE That is correct. JUDGE POTGIETER Was that about the amount that you acquired in the two robberies, the one of the occupants of the kombi vehicle and the other one in the abortive robbery of the bottle store? MR SITHOLE I had hoped to obtain money from Commander Shangasi after they had conducted some reconnaissance at Empangeni. I also went to the NBS bank at Empangeni on the 2nd, and confirmed that indeed the situation was conducive to robbing that place, but on the following day, the 3rd, when we went there, it was no longer the case. JUDGE POTGIETER How did that dealer work out this purchase price of R36 000? MR SITHOLE As an Ordinance Officer, you do not deal in a small number of arms, you would be looking for a large number of weapons. The reason for the amount to be so high is because there were different types of weapons, such as rocket launchers, rockets and RPG7s as well as ammunition, as well as weapons of Soviet origin, such as Makarovs. Therefore it was not such a high price, because of the number of firearms that would have been obtained, that is why we settled on R36 000. Failing of which, we would have to provide a new vehicle, which would be a kombi. JUDGE POTGIETER Ms Mohamed. MS MOHAMED Thank you. MR LAX Can I just follow that up, please? In your hand-written statement which accompanies your application, page 14 and 15, you only talk about a large number of AK47s and ammunition, plus RPG7s with their rockets, you say nothing about other weaponry forming part of this consignment? Why is that? You say nothing about Makarovs and other Soviet origin weapons, in addition to what you refer to here? MR SITHOLE I assumed that because Makarovs and other firearms were small, I did not regard it as important to mention them. AK47s and RPG7s were large firearms and they were weapons of war, that would have been used in protecting the community. MR LAX Well an RPG7 isn't a firearm at all, it is in fact a rocket propelled grenade? CHAIRPERSON Do you agree with that? MR SITHOLE Yes, as I mentioned before it is a rocket launcher, commonly known as a Bazooka. MR LAX How were you going to use an RPG to defend your community? MR SITHOLE As far as I am concerned, such a weapon would not be handed out to anyone. Commander Shangasi had been a Commander, so he knew the type of persons he could hand such weapons to, because those are not just weapons you can use any how, they destroy. CHAIRPERSON That is precisely the point, what did you need a rocket launched for to defend people? Rocket launchers are used as a defensive weapon? MR LAX It is usually an anti-vehicle weapon, tank or trucks or things of that nature? MR SITHOLE That is true, but in a situation of war, you do not just target individuals, but institutions such as the Natal Command, I felt should be targeted because at that time, it is not that everything had been settled politically. There were still outstanding issues that were still being negotiated, that is why I regarded the situation as still that of war. CHAIRPERSON That is why we come back to your answers on the previous questions. What did you need these firearms for? You gave the following answers, that these firearms were needed to train cadres in order to defend the community and lead them from oppression, correct? MR SITHOLE That is correct. CHAIRPERSON That is defensive tactics? Rocket launchers and such like weapons are used in offensive tactics, whether you aim it at tanks or motor vehicles or buildings, or whatever, is that not so? MR SITHOLE That is correct. However, I would like to put it clear that as a soldier, you would not be in a position to not accept any kind of firearm that you know or whose power you are aware of. CHAIRPERSON It does not make sense to me that, you spoke to this Antonio, right, the person from whom you were going to buy these firearms? As I understand your evidence, when you went there, you knew specifically what you needed the firearms for. You needed firearms to defend the community and to train cadres in order to defend this community and lead them from oppression? You must have asked him "look here, we are looking for certain types of firearms", not so? MR SITHOLE That is so. CHAIRPERSON And then, if he offered you rocket launchers, why didn't you say "look, we don't need rocket launchers, we need firearms, conventional firearms"? You are negotiating a price for particular firearms? MR SITHOLE I was also excited at the prospect of getting those firearms, those weapons, because I was aware of how they could be used, so it did not occur to me that I should not accept... CHAIRPERSON No, come Mr Sithole, you are a trained cadre from MK. I know of very few MK members who are undisciplined. You were trained for five years, not so? MR SITHOLE Yes. CHAIRPERSON So you haven't got time as a cadre, to become excited about particular types of weaponry? Correct? If you were a trained MK member, you would not have got excited at the type of weaponry on offer, perhaps you would have got excited at the success of your mission of obtaining firearms, correct? MR SITHOLE Well, I see that now, but at that time it did not occur to me. JUDGE POTGIETER Mr Sithole, can you just help me there as well, you said you have this knowledge. This kind of arm that we are talking about here now, a rocket launcher, would that be effective against a armoured vehicle? MR SITHOLE Yes, they can be used because they are capable of destroying everything, even a wall. JUDGE POTGIETER If I say armoured vehicle like the vehicles that the Security Forces used to use, but also vehicles like say the Fidelity Guards would use to transport large amounts of cash? MR SITHOLE If you use that in such a mission, that is to rob money, it cannot be used for the reason that it will destroy everything, so you would not be able to get even that money. It is a weapon of war. JUDGE POTGIETER Yes, but I don't want to get involved in the niceties of this sort of operation, I just want to know whether it would be effective against those kind of vehicles that I have listed? MR SITHOLE It can be used, however you can only use it if you just want to destroy the vehicle, not if you have the intention of getting the money. JUDGE POTGIETER Yes, thank you. MR LAX Can I just follow up? Can you just help me with one little thing you have said earlier that worried me a little bit? You spoke about attacking Natal Command with such weapons, did I hear you right? MR SITHOLE I was making an example, that such a place could have been targeted, if you had such weapons in your possession. If I had been asked or ordered to do that, I would have done that. MR LAX You spoke about that being part of the struggle and you said South Africa was not yet at a time where those things were no longer necessary? Isn't that right? MR SITHOLE Yes, that is correct. MR LAX But the fact of the matter is that the armed struggle had already been ceased at that point in time, November 1992, it had been suspended? MR SITHOLE Yes, it had been suspended, but the situation was that people were dying like flies, for example the Boipatong and Bisho massacres, as well as the incident that I mentioned earlier at Z Section. As a trained cadre, yes, we were ordered to suspend the armed struggle, but the situation was such that it affected us and we did want to do something to combat the situation. MR LAX You wouldn't have wanted to do something on your own, you would have done something as a disciplined member of MK under proper orders and instructions of MK? At that stage you were part of a community formation? Is that not so, you were a community formation at that point in time? MR SITHOLE That is correct. MR LAX MK itself wasn't operating? MK had suspended its activities and its members, where they were based in communities, formed part of community structures? MR SITHOLE Yes, that is correct, but Mr Mapomule and Mr Shangasi were forced by circumstances on the ground, to come to me and I realised the need for me to accept what they were telling me. MR LAX Yes, but the point I am making is an attack on Natal Command would have been totally and utterly out of order, any kind of semblance of order because that was a direct attack on the Army of the then State in circumstances which amounted to an act of war, when the armed struggle had been suspended? It wasn't a question of defending your community? MR SITHOLE Yes, I would not dispute what you are saying. MS MOHAMED Thank you. CHAIRPERSON You went with two friends, colleagues pointed by your Commanders, to a bank you had identified as a prospective target, being the NBS in Empangeni? Correct? MR SITHOLE As I mentioned earlier, the NBS had been suggested to me the same way as the two persons had been handed over to me. Commander Freza Shangasi had already done the reconnaissance at NBS. CHAIRPERSON You see, on page 2 of your written statement, Exhibit A, in paragraph 13, the last sentence you say there "... I informed them (being your Commanders) of a suitable place to rob, which would be the NBS in Empangeni." Do you see that? MR SITHOLE Yes, I see it. I would just say that that must have been a mistake. CHAIRPERSON It must have been a mistake in a document that you yourself say you did not think it necessary to amend, and it is a document in which we in fact affected amendments this morning? Be that as it may, you say in the very document that you were provided with two recruits, presumably to assist you. Were you people armed when you went to the bank? MR SITHOLE Yes, I was given two AK47s as well as a revolver. CHAIRPERSON You say according to the statement that you went there and saw that it was too well protected by security guards? The result of which you decided that the job would be too risky and you abandoned the idea? Am I correct? MR SITHOLE Yes, that is correct. CHAIRPERSON Who was in command of that Unit when you went to the bank, you? MR SITHOLE Yes, I was the Commander. CHAIRPERSON Yes, then you people left the NBS bank in Empangeni and proceeded to Mike's Kitchen in Empangeni? MR SITHOLE Yes. CHAIRPERSON It was then decided, or you decided that you should steal this motor vehicle, a kombi parked outside, correct? MR SITHOLE The kombi was robbed from its owners. CHAIRPERSON But you decided that that kombi had to be taken? MR SITHOLE Yes, I made the decision. CHAIRPERSON Why did you decide that the kombi should be robbed? Why didn't you go to another bank that was not so well protected? MR SITHOLE It was not easy to proceed to another bank at which we had not done any reconnaissance. CHAIRPERSON Why did you decide to steal or rob the people of the kombi? MR SITHOLE I was running out of time to go back to Mozambique, and I decided that the kombi was ideal in that it would be used in exchange for the ammunition and firearms. CHAIRPERSON I see, you had then opted for the alternative mode of payment for all those arms which was valued at R36 000 or a kombi? Am I correct? MR SITHOLE That is correct, because that was our agreement with Mr Antonio. CHAIRPERSON Yes. And thereafter you proceeded to Stanger with the intention of robbing a bottle store there, on the suggestion of one of your colleagues? Correct? MR SITHOLE Yes, that is correct. The suggestion had been made by myself, but the person who knew the area of where we could obtain that money, was Temba. CHAIRPERSON Yes. And you agreed with that, as Commander of that Unit? MR SITHOLE Yes, I did say so because at that time, I realised that the vehicle must be shipped out of South Africa immediately, because if not, we would be in trouble with the law. CHAIRPERSON We will come to that later. Did you know of the existence of this bottle store before it was suggested as a target, to you? MR SITHOLE I didn't know the bottle store, but for the reason that Temba had studied at Ungoya and he was in the position to identify the bottle store ... CHAIRPERSON How is it that you agreed to go and rob the bottle store without a reconnaissance exercise, when in fact the idea of robbing another bank was rejected because of that reason? MR SITHOLE From my knowledge of bottle stores and shops in general, it is easy to undermine the security that would be there, also for the reason that the situation was urgent, we needed to acquire those arms from Mozambique quickly, back into KWaZulu Natal. CHAIRPERSON Immediately before you robbed the people of their kombi, you must have had an idea as to how you were going to take it to Antonio, not so? That is the reason you went to rob them of the kombi, because that was the alternative mode of payment? Correct? MR SITHOLE That is correct. CHAIRPERSON Were you going to drive it to Antonio or how were you going to get it to him? MR SITHOLE As I mentioned, I was driving that kombi, because when we left Stanger, I was on my way to Mozambique already. CHAIRPERSON So why was it necessary then to go and rob the bottle store, you were on your way with the mode of payment, together with R3,000 to Mozambique? MR SITHOLE Perhaps you did not understand me. After the robbery at the bottle store, I was on my way to Mozambique, and I left Temba and the other person along the way, so that they could collect the other vehicle. CHAIRPERSON Why didn't you go to Mozambique straight after the Mike's Kitchen incident, because now you had your alternative mode of payment, in the form of a kombi, in addition you had R3,000? MR SITHOLE That is true, however R3,000 would not have been enough to pay for petrol expenses. CHAIRPERSON You had R3,000? MR SITHOLE I was still explaining that that amount would not be able to take a vehicle to Mozambique as well as transport firearms from Mozambique into South Africa. CHAIRPERSON Why not? MR SITHOLE I do not see how it would enable one to do that, because firstly I did not know how much transport cost would be from Mozambique into South Africa. CHAIRPERSON Yes. Now, be that as it may. How long after this incident were you arrested? MR SITHOLE I was arrested on the same day, when I was in Greytown, just cooling the kombi off. I realised that the police had been notified in advance. CHAIRPERSON What happened to the R3,000? MR SITHOLE That money was inside my bag, together with my travelling document. I believe that it was the money that was confiscated by the police, alleging that it had been robbed from Stanger. However, that amount had been robbed from Mike's Kitchen, and it belonged to the owners of the kombi. CHAIRPERSON I have to ask you this question, from what you tell me now, it seems that you were at the kombi letting it cool down, when you were arrested? Correct? MR SITHOLE I was not inside the kombi, I had just parked it outside the city in Greytown. CHAIRPERSON Where were you in relation to that kombi? MR SITHOLE It was more than 100 metres away. CHAIRPERSON You see, in your written statement, Exhibit A, you say that you were subsequently arrested in Greytown as the police had traced you, because you had left your bag with your identity document in the stolen kombi? It gives me the impression it is because they found your identity document in the kombi, that they were able to find you and then arrest you? Is that correct or how did they manage to find you in Greytown? MR SITHOLE What I would like to say is before they found the bag in the vehicle, they had already located me. When they found the bag, I was already in their custody. CHAIRPERSON So it had nothing to do with your identity document, you were arrested without the help of your identity document? Do I understand you correctly? MR SITHOLE Yes, I was arrested before the police found the ID inside that bag. CHAIRPERSON Then please make sense with this statement you are making, paragraph 21 of Exhibit A regarding your arrest. It says here - "... I was subsequently arrested in Greytown, as the police had traced me since I left my bag with my identity document in the stolen kombi." MR SITHOLE That is not the case, the police arrested me before they found the bag inside the kombi. CHAIRPERSON That is the second problem you are having with your statement as being incorrect? MR SITHOLE It must have been a mistake made by the person who wrote the statement. CHAIRPERSON I want you to ponder this while we have tea, when we started this hearing, you were given the opportunity to amend whatever you wanted to, in that statement. Ponder about it, I am going to ask you a question now regarding that, when we resume. We will adjourn for tea. COMMITTEE ADJOURNS LUCKY SITHOLE (s.u.o.) CHAIRPERSON Do you remember the question I posed to you before we adjourned? It was how the police was able to arrest you and there is a conflict between what you tell us and what is written in your statement? Can you explain it or can't you? MR SITHOLE What I can explain is I was on my way, getting away from Stanger and I had no alternative but to flee. I cannot relate the leaving of the bag in the vehicle with my arrest, because the police located and arrested me while I was about 100 metres away from the vehicle. CHAIRPERSON Now one other question, you say when you were arrested, you were already on your way to Mozambique, but you were giving the kombi a chance to cool down? Correct? MR SITHOLE Yes, that is correct. CHAIRPERSON Why did you take the route through Greytown? That is not on the way to Mozambique? MR SITHOLE Yes, under such circumstances, it was not just running away as you would under normal circumstances. At that time, I was running away because the police had been alerted, and other people had also been alerted. That is why I was forced, or ended up heading that way, to Greytown, but Greytown was not my destination. CHAIRPERSON I know that but it is going in a different direction to the one which could be used to go to Mozambique? MR SITHOLE Yes, that is so. CHAIRPERSON How were you going to get to Mozambique on that route? MR SITHOLE I would explain again. When I arrived in Greytown, it was to the intent that I was allowing the car to cool down, and secondly I wanted to give enough time to enable myself to see that the police were not after my tail, so as to be able to plan effectively my route to Mozambique. In any case, under those circumstances I was not acting normally, because I was running away from the police. MR LAX How would you have gone to Mozambique, because you have already told us you didn't have enough money? How could you be on your way to Mozambique when you didn't have sufficient money for the logistical purposes that you said, to transport the arms back, and so on? That was the reason why you wanted to go and rob the other place, the bottle store? Your version is that you got no money at the bottle store, whatsoever, so how could you be on your way to Mozambique? MS THABETHE Can I clarify something, Mr Chair, because I am listening to both, sorry. I am listening to both, the translation and the Zulu version, and from what I hear, I hear him say in Zulu, it is not exactly the same thing, I don't know whether he is moving very fast, I don't know whether the Interpreter is comfortable with the speed. CHAIRPERSON Never mind the comfort, what are you saying, that there is no proper translation? MS THABETHE Not everything is being translated as he is saying it, I don't know if it is because he is moving fast or what. INTERPRETER What have I left out, that is what I would like to know? MR LAX Did you hear the question from the Interpreter? MS THABETHE Yes, yes, I did. I heard you saying that he was running away from the police, not that he was on his way to Mozambique from the time he left the bottle store. I don't know... MR LAX He said much earlier that he was on his way to Mozambique, he has confirmed that he was on his way to Mozambique. He has confirmed that Greytown isn't in the direction of Mozambique and he cannot explain that. MS THABETHE Yes. MR LAX That, it is not in issue that, from the time he dropped his comrades with the other vehicle, he was on his way to Mozambique. That is not in issue. CHAIRPERSON And it has been interpreted, his last answer was that "I was also running away from the police." MS THABETHE That is how he landed up in Greytown. MR LAX Correct. MS THABETHE As opposed to going to Mozambique. CHAIRPERSON He stopped in Greytown to let the kombi cool down and to check whether the police were after him. That is what was translated. MR LAX It is clearly understood by us. It doesn't change the nature of my question. MS THABETHE Okay, that is not how I heard it, but maybe the applicant should repeat. CHAIRPERSON What did you hear? MS THABETHE I heard him saying that from the bottle store, he ran away, that is how he landed up in Greytown. He was running away from the policeman, so it is not like he was going to Mozambique from the bottle store, but he ended up in Greytown, because he was running away from the policeman. CHAIRPERSON That is what was interpreted? MS THABETHE Oh, okay. CHAIRPERSON As Mr Lax says, in the context of his evidence as a whole, that is now the second reason why he went to Greytown, substantially or essentially he was on his way to Mozambique, but he, as I understand his evidence, he was taking a different route to avoid detection, as I broadly understand his answer, and that is what Mr Lax is asking him about. MR LAX You see, I am asking something completely different. What I am asking is this, as far as you were concerned, you were now ready to go to Mozambique, after laying low, to effect your transaction with Antonio Dios, is that right? MR SITHOLE I would like to explain again. As I was about to leave from Greytown, to Mozambique, I couldn't manage with the amount of money that I had, and I couldn't get any transport that would come from Mozambique to KWaZulu Natal. MR LAX Why did you tell us earlier, before tea, that you were on your way to Mozambique? CHAIRPERSON Let me help you remember. You said that with the kombi and the R3 000-00 that you robbed at Mike's Kitchen, there was insufficient funds to complete the mission, and that is why the Stanger bottle store came into the picture as a target for robbery. Do you understand? MR SITHOLE Yes, in all that you are saying, you are right, but the thing is maybe you did not understand me properly. I am going to explain again. CHAIRPERSON I cannot be right if I didn't understand you properly, then I cannot be right? You better get your story right. I am just reminding you about your answers and the context in which you gave them earlier today. Either when you were at Greytown, you landed up Greytown either on your way in the way you described, to Mozambique, or for some other reason. What is the position? MR SITHOLE I would like to explain again. In Stanger I was running away, when I left Stanger and the others, I told them to go back, but I had to proceed to Mozambique, but I was under pressure because I was running away, and the road to Greytown, doesn't proceed to Mozambique. I had to take any other route, I had to leave the car in Greytown, so that I will be able to move from there to Mozambique, to evade the police. It is not that I moved from Stanger to Mozambique. CHAIRPERSON So you were on your way to Mozambique when you were at Greytown? Do I understand you correctly? MR SITHOLE Yes, that is correct. CHAIRPERSON Mr Lax has asked you to explain the following, if that is so that you were on your way to Mozambique when you reached Greytown, how do you explain that when earlier today you told us that you had insufficient funds to go to, to complete the mission that you had in Mozambique, and that is why you decided you were going to rob another store, to obtain this R36 000? How do you explain that conflict? MR SITHOLE I want to explain again. After failing in the robbery in Stanger, it was important for us to make sure that the car crosses the border to Mozambique, even though we were not going to take the firearms but I had to get money for the firearms, but the car had to cross the border to Mozambique. That is why I say we had to leave for Mozambique on that particular day, because I couldn't stay for a night with this car that was obtained during a robbery. CHAIRPERSON Is that your answer to the question? MR SITHOLE Yes, that is my answer. CHAIRPERSON Very well. Now let's turn to page 34 in the bundle. This is a copy of your application for indemnity in respect of this matter? Correct? MR SITHOLE Yes, that is correct. CHAIRPERSON Is that your signature at the foot of that page? MR SITHOLE Yes. CHAIRPERSON At page 35 it seems to be a letter attached to the application? Correct? MR SITHOLE Yes, that is correct. I first wrote the letter, the form was sent to prison after writing this letter. CHAIRPERSON That is your signature at the foot of that page, page 35? MR SITHOLE Yes, that is correct. CHAIRPERSON And that letter on page 35 was written by you? MR SITHOLE Yes, that is correct. CHAIRPERSON And I assume you were satisfied with the contents thereof? MR SITHOLE Yes, I am satisfied, I am the one who wrote the letter. CHAIRPERSON Now, on page 35, in the middle thereof, you say there that you denied the case in court, but "... I feel that now I have to talk the truth in order to be indemnified on these grounds ...", did you write that? MR SITHOLE Yes, that is correct. CHAIRPERSON You say "... The ANC is the one to be blamed." Did you write that? MR SITHOLE Yes, that is correct. CHAIRPERSON "... Because it has failed to give us money or logistical support even to supply the troops." Did you write that? MR SITHOLE Yes, that is correct. CHAIRPERSON "... So understand that the political organisation is not (I don't know what is that word - it is not a ...)? MR LAX Company. CHAIRPERSON Company? "... But my wife as a foreigner occupy, including my three month baby (I don't know what that next word is) cannot understand that they are hungry and the kid is always in need of medication and there is no jobs. On those grounds I would like to appeal to be indemnified under those politically motivated reasons." Did you write all that? MR SITHOLE Yes, that is correct. CHAIRPERSON Was that the truth as you say in this letter that you want to talk the truth? MR SITHOLE I first wrote this letter before the TRC body was established and what I wrote here, I was together with the other comrades who were inmates. Because we did not want to reveal some of the organisation's activities, we had to do this in a specific manner, that is why I decided to write this letter in this way. CHAIRPERSON Was it the truth? MR SITHOLE Yes, it is the truth, but this does not necessarily mean that this letter is the same as the one that I drafted with my legal representative. The contents - I am saying what I wrote here, we were together with the other comrades in prison, we wanted to write this letter in a specific manner, because we did not want to reveal some of the activities because we did not know anything about the TRC. What is important is the one that we are talking about right now, and at the time we did not take the TRC seriously. MR LAX Mr Sithole, the TRC had not even been promulgated yet, this was in 1994 that you wrote this letter, in June 1994. This was a different process of indemnity under what was known as the Further Indemnity Act of 1992. The new government was already in power at that stage, the 20th of June, it is after the election? MR SITHOLE That is true, but if you are going to remember well, this was written after the Dr Nelson Mandela had already forwarded a statement saying that all the Security Forces should apply for indemnity, but we did not know more about this process, we wrote this letter because we wanted to be freed from jail. That is the reason why we did not know what was going to happen. CHAIRPERSON I am going to ask this question one more time, there are other matters on the roll. What is contained in this letter on page 35, is that the truth or not? You don't seem to want to answer the question? MR SITHOLE It is true. CHAIRPERSON That is how it happened? MR SITHOLE As I explained initially that everything in this letter was written by me, but what is important is this, during this process, we did not reveal all the activities of the ANC, because we couldn't trust even the authorities in jail, because we regarded them as our enemies. We wanted them to understand the indemnity, but had to understand what I had written here. CHAIRPERSON Now, when did you now decide to trust the authorities in an attempt to get out, at what stage of your term of imprisonment? MR SITHOLE Even today I cannot trust the authorities, and I will never trust them, but what I wrote here, I wrote it because I was with the ANC leadership, those who would pay us a visit, and they told us how to forward our applications. CHAIRPERSON When did you start to trust the authorities? MR SITHOLE I cannot trust them, even up to date. CHAIRPERSON So what made you tell the truth then in the amnesty application? MR SITHOLE I did that after meeting with the ANC leadership, who used to pay us visits in prison. They explained the procedure. CHAIRPERSON You trust the authorities now? MR SITHOLE I cannot trust the jail authorities, I only trust the ANC leaders. CHAIRPERSON Well, the ANC leaders were in power when you wrote that letter on page 35, Nelson Mandela was the President of the country? MR SITHOLE Yes, that is true. CHAIRPERSON When did you fill in this form? MR SITHOLE I cannot remember the date, but all I can say is that it was October 1994. CHAIRPERSON I am talking about your application for amnesty? MR LAX Page 7 has a date on, it looks like the 7th of April 2000, that is the date it was attested. MS MOHAMED Sorry Mr Chairman, if I may come in here and assist, when we initially received instructions in this matter, we contacted the TRC in an endeavour to find out whether the application had been finalised or not, we were then informed telephonically that when initial application was made, the file was closed administratively and should the applicant desire for his application to be reconsidered, he should make the necessary representations by means of the letter, and the TRC would then place it before the Committee for further consideration. By follow up through that, the TRC offices faxed the amnesty application to us for completion. We then duly attended to assisting the applicant fill in the form at Westville prison, and that was sent to the ... CHAIRPERSON Did he not fill in any initial forms? MS MOHAMED I am not certain what had happened to that initial form. CHAIRPERSON Now tell me, when did you feel comfortable now to make the application for indemnity then? MR SITHOLE Application for indemnity, is this separate letter, the one that you just talked about now? After that we talked about amnesty application, application for amnesty, not indemnity? CHAIRPERSON When did you feel comfortable making an application for indemnity? MR SITHOLE The first application for indemnity, if I remember well, I wrote that application after Nelson Mandela announced that people should apply for indemnity. CHAIRPERSON Were you satisfied then that you could trust whoever was going to hear the indemnity application, and that you should tell the truth? MR SITHOLE Truly speaking, I did not have much knowledge about whether my application was going to be considered. I never told myself that the time would come and a person would be sitting in this kind of a forum, testifying. CHAIRPERSON Yes, I am not talking about this kind of forum, I am talking about indemnity. When did you think that you stood a chance of being released by way of indemnity? MR SITHOLE I thought that people would just read this application and then the person would be convinced after reading my application. CHAIRPERSON You trusted the authorities then? MR SITHOLE It did not come to me directly, I was given it by the authorities, it was coming from the mail and then they told me that they were going to rewrite this letter again for me, as you can see that the handwritings are not the same, and then the person took the copy and rewrote the whole thing, and then they only asked for a few details like ID numbers and the like. CHAIRPERSON Who is that that wrote it? MR SITHOLE One of the jail authorities whose name is Morris Mbela. CHAIRPERSON Right. Now you read what he wrote in this form? MR SITHOLE He wrote this letter and then he read it out to me. CHAIRPERSON Yes, were you satisfied, did you not see what he wrote? MR SITHOLE The situation in prison is like this, after forwarding an appeal, no one will read it out to you, you would be told that it has failed, and then you would be sent back to the jail and you wouldn't have a say thereafter. Things are only changing now. CHAIRPERSON Before you signed this document, were you aware of its contents? MR SITHOLE I take it as what he wrote here is exactly what I told him, as I am reading it now, but when he was busy writing, I did not read this, but I only signed. CHAIRPERSON Are you satisfied that he wrote down what you told him? MR SITHOLE When I look at what I wrote and reconcile with this other, though it is not the same, but at least it is more or less the same thing. CHAIRPERSON That is not answering my question, my question is are you satisfied that he recorded what you told him? MR SITHOLE Yes, I am satisfied. CHAIRPERSON And thereafter, when you were satisfied, were you satisfied then? You are satisfied now, I am accept that, then, before you signed it, did you sign it on the basis that he had properly recorded what you had told him? MR SITHOLE As I have explained now, I am satisfied, but at the time you would be told to sign here, and you wouldn't be asked to say anything. CHAIRPERSON Right. Now you have already told us that you are satisfied that the contents of page 35 is in fact the truth and what occurred, and how it occurred, of the incident? MR SITHOLE Yes. CHAIRPERSON There is a similar version on page 34, under paragraph 11 and I am going to read it to you. MR LAX Page 34, paragraph 11. You are going away from it, go back to page 34. CHAIRPERSON Page 34. MR LAX Your finger is there, paragraph 11, just above your signature. CHAIRPERSON I am going to read it with you. The question is "your justification for regarding the offence referred to in paragraph 9(c), which was robbery, two counts of robbery, to be an act with a political objective, and your answer is as follows "... why I say my crime is politically motivated, because whenever we are seeking employment, nobody was prepared to employ us, because they (I think that word was supposedly) were saying we have communism ideologies. So I was from exile, I was forced by circumstances to commit this crime. There was no financial resources." That is in line with what you say on page 35. Do you agree? MR SITHOLE Yes, that is correct, but I would like to explain this. This was not the reason, if you look clearly. It is not a reason that can force a person to commit robbery. I did mention that when we were writing there, we had to write this letter to appear more personally, because one would be running away from revealing some of the activities, but after meeting with the leadership, we were free to say anything. I take this as the one that, as we were trying to, I wrote this information because I wanted to protect the organisation. CHAIRPERSON Why, the organisation had already attained rule of the country by then? MR SITHOLE Yes, that is correct. CHAIRPERSON So how does that fit in with your explanation now that you didn't tell them the real reasons, because you didn't want to divulge the truth, because you were not interested in embarrassing the organisation? How would you be embarrassing the organisation, if the organisation was in power already? MR SITHOLE I would like to explain this, any time, if the ANC, there is something, if there is something that should happen, but it would offend the ANC, I always try by all means, not to do that because I am trying to make sure that even if it is in power, I cannot just embarrass the ANC with something that is not within its principles. CHAIRPERSON But yet you say that is how it happened, why it happened, the crime? You accept that now? That is actually the reason, as contained on page 35 and page 34 as to why you committed the crime? MR SITHOLE Yes, I mentioned that, and I did explain that the reason for me to say that, I wanted to, this whole crime to appear as a personal gain, because I didn't want to divulge information. I couldn't just tell anyone about the ANC's problems, or some of the activities. MR LAX Would that have helped you to get out of jail? How would that be regarded, how would personal gain be regarded as a political objective? MR SITHOLE That would depend solely on the Committee who would be there to deal with the application, but what I think even today, I am always on the side of the ANC, I can even get into trouble rather than divulging some of the activities of the ANC. CHAIRPERSON Yes, you may continue. MS MOHAMED Thank you Mr Chair. Mr Sithole, I want to take you to page 17 of the bundle. Mr Sithole, I refer you to page 17 of the bundle, this is a statement that is made by Mr Munsami Govender, and he was one of the employees in the bottle store on that day. Towards the end of that statement, there is a sentence which says "... on inspection my employer found an amount of R2 500-00 missing from the till." MR SITHOLE I cannot dispute that, but all I can remember is the R3,000 that I took from the owners of the car. I know nothing about the R2,000, but I am the one who was there, taking the money, but I was disturbed after hearing the gunshot, I couldn't do anything further. MS MOHAMED You see, you were disturbed when you heard a gunshot. Who fired this gunshot? MR SITHOLE There was an exchange of fire, between Temba who was holding an AK47 and a person who had a small firearm, while Mr Munsami was inside. MS MOHAMED So Temba had a gun? MR SITHOLE We were armed with two AK47s. MS MOHAMED So you were also armed with an AK47? MR SITHOLE Yes, that is correct. MS MOHAMED Okay, now between who was this gunfire being exchanged, I am sorry, I am not following this too clearly. You said Temba had a gun? MR SITHOLE When Munsami came, he came with a firearm and they shot at each other, but I cannot remember whether he first shot at me, but I was just disturbed during the process. When he came out of the door, he was coming directly to me, but I cannot say whether he first shot at me, but one thing I am sure about is that what actually disturbed me there, was this gunshot. MS MOHAMED Okay, because on page 20 there is a further statement by Mr Govender. This is a hand-written statement, and if you look at the last three lines of that statement, Mr Govender says "... we never returned fire towards the suspects, because we have got no guns." Can you comment on that? MR SITHOLE I cannot dispute that, because he is not even here right now, but all I am saying is what I know. I did not see Mr Govender, but I remember seeing Mr Munsami on his coming back. MS MOHAMED Mr Sithole, Mr Munsami and Govender is one and the same person. MR SITHOLE I apologise, the manager who was in the bottle store, I cannot remember his name, but it is him. MR LAX This is the manager, Mr Munsami Govender was the manager, he went to call the owner who was another man, Mr Pillay. MS MOHAMED That is correct. MR LAX Mr Pillay. He says both of them didn't have a firearm and they never fired any shots at you? MR SITHOLE What I say is this, there was exchange of fire, thank you for correcting me about Munsami Govender. He is the one who brought the firearm, I can even identify him, even today. He is the one who came with a firearm. I did not see the second person. I only see this for the first time, that there was a second person. MS MOHAMED Thank you. Mr Sithole, now if you can refer to page 21, that is the continuation of that statement. The penultimate paragraph reads "... the sum of R2,442 was robbed on the 9th of November 1992. I received this sum of R940 from Sgt Croukamp which was recovered by them." MR SITHOLE As he says, there was money, I want to dismiss this amount of money that was recovered. The money that I remember that was left in the pocket was R3,000, but in Stanger, I cannot remember anything. I was disturbed, I am the one who was there trying to get the money, but I couldn't continue because of some disturbance. MS MOHAMED This amount of R940 that was returned to Mr Govender, is presumably the money that they recovered, and it was your evidence earlier that the R3,000 that you received from Mike's Kitchen, was in the kombi, so can you explain to the Committee the discrepancy of these amounts, and why only R940 was returned? MR SITHOLE I am not in a position to explain that, but all I know is that the money, the whole amount was R3,000, therefore it means that some amount is missing, if we see this R940 here. MS MOHAMED Did you take any of that money for your personal use? MR SITHOLE It did not come to my mind, and I was getting out of the car as a person who was trying to run away. Even the bag and some travelling documents were left behind, things that are supposed to be with me. MS MOHAMED Thank you Mr Sithole, Mr Chairman, I have no further questions. NO FURTHER QUESTIONS BY MS MOHAMED CROSS-EXAMINATION BY MS THABETHE Thank you Mr Chair. Mr Sithole, did you go to school? MR SITHOLE Yes. MS THABETHE How far? MR SITHOLE As far as standard 10. MS THABETHE Now, when you completed the ... MR LAX Sorry, I didn't hear the answer? MS THABETHE Standard 10. MR LAX It wasn't translated unfortunately. MS THABETHE Because he spoke in English, he said as far as standard 10. MR LAX I just couldn't hear him at all. MS THABETHE Okay. MR SITHOLE I did not pass matric. MR LAX But you can read and write English? MR SITHOLE Yes, that is correct. MS THABETHE I want to go back to your indemnity form on page 34, paragraph 11 which says you must give a political justification. Why did you give an answer, did you think this answer was a political justification? MR SITHOLE As I explained before, during this process when it was announced that people should apply, I took it easy, I thought that people would be convinced by writing this letter. CHAIRPERSON Answer the question, did you think that that was political in nature? That is what you were asked. MR SITHOLE It is personal, but what was on my mind, I thought that it would be connected to politics, so that it doesn't actually get into the organisation's activities. MS THABETHE Did you have any legal advice when you completed this form? MR SITHOLE No. MS THABETHE I just want to follow up on another aspect of your evidence that you gave earlier on. When you were talking about having left the bottle store, and having gone to Greytown, what led you to leave the car in Greytown and walk the 100 metres that you were referring to earlier on? Can you just explain that, how did it come about that you left the car and then you walked, and then the policeman found you? MR SITHOLE When I was in Greytown, I was alone. I left the car because I wanted to put it there to cool off, it was not that I was abandoning the car. I had to run away and I had to use the same car crossing the border to Mozambique, I was not abandoning the car, I just wanted to leave it there for a while. MS THABETHE What do you mean that you left the car to cool down, what do you mean by that? MR SITHOLE I wanted to leave the car there and make sure, and make sure that the police are not following me, and even if they would find the car, they wouldn't, I wanted the police not to find me in the car, and I would later go back and get the car. MS THABETHE What about the money and the ID that you left in the car, didn't you think they could trace you if they found the car and your ID? MR SITHOLE When I was running away, that did not come to my mind, I did not think that my identity document and the money in the bag, but what was important to me was to leave the car there for a while. I didn't even think that the bag was in the car, I thought that some of my colleagues had taken the bag and the travel document and the ID. It was a mistake from me to leave them in the car, because those were the things that would implicate me, if found. MR LAX How were you going to get across the border into Mozambique, without travel documents, if you thought that your colleagues had taken it? MR SITHOLE In my mind I didn't think that the ID and the travel document were in the bag, I thought that they were in my jacket, as I was wearing a suit. Those are the things that I normally kept in my jacket. MR LAX You have just told us two seconds ago that you thought they were in the bag and that your colleague took them? Those were your very words? Carry on Ms Thabethe. MS THABETHE Thank you. I just want to finalise one thing, is it your evidence that the robbery and the attempted robbery that you committed, was done under the auspices of the ANC? Is that your evidence? MR SITHOLE Yes, that is correct. MS THABETHE Do you know Mr Tom Madlala? MR SITHOLE Yes, I know him. MS THABETHE Have you spoken to him with regard to this incident before? MR SITHOLE Yes. When we saw each other in prison, he had been there for quite a long time, and we would discuss about these things, together with other comrades. We would make a joke about all these incidents. MS THABETHE I am not talking about an informal meeting, was there a situation where there was a formal meeting, that is between you prisoners and the ANC officials, to discuss your incidents? MR SITHOLE Yes, it happened. If I am not mistaken, it was in 1996. We had a meeting, a very important meeting, where the ANC leaders were there and we discussed about this. MS THABETHE Just to clarify, was the ANC leadership aware of your incident, your specific incident? MR SITHOLE Those who were present, visiting us on that particular day, they did not know about this incident, but I am not sure among them, who knew about this incident. But as we were discussing there, no one knew a thing about this incident. MS THABETHE Thank you Mr Chair, I have no further questions. NO FURTHER QUESTIONS BY MS THABETHE MS MOHAMED I have no questions, Mr Chair. NO RE-EXAMINATION BY MS MOHAMED CHAIRPERSON Thank you, you are excused. WITNESS EXCUSED CHAIRPERSON Any more witnesses, Ms Mohamed? MS MOHAMED Mr Chairman, I would like to call Mr Tom Madlala. CHAIRPERSON I am in your hands, if you want to call him, you call him. MS MOHAMED Thank you Mr Chairman. CHAIRPERSON Mr Madlala, what language would you prefer to use? MR MADLALA Zulu. TOM MADLALA (sworn states) EXAMINATION BY MS MOHAMED Thank you Mr Chairman. Mr Madlala, do you know the applicant seated here? MR MADLALA Yes. MS MOHAMED How did it come about that you knew him? MR MADLALA I first saw him in prison, in Westville prison. He was with the other ANC members. MS MOHAMED When you were at Westville prison, were you an ANC member? MR MADLALA Yes. MS MOHAMED Did you feature on the ANC structures at the prison? MR MADLALA Yes. MS MOHAMED What position did you occupy? MR MADLALA I was the Chairperson of the ANC. MS MOHAMED Do you recall the applicant ever discussing these incidents with you? MR MADLALA The one that I first heard about was on the 6th of September 1995, when we were paid a visit by the ANC leadership, who were coming from the national organisation. The comrade, Carl Niehaus was from the National Executive, there was Bheki Cele who was a Deputy Secretary in the province at the time. There was Sanso Nxunu who was the First Secretary of the ANC. There was a mass meeting of all the ANC comrades in church hall in the prison. That is when I first heard about the cases where comrades were involved, almost half of them, and the complaints that the comrades had, we heard about them on that particular day. As usual the MK members in prison, Lucky Sithole would be the one who would represent all the MK cadres in prison. Their living conditions and the ANC activities, he would talk about those, and he would even talk about the integration after they are released and about their pensions. That was Lucky's task to forward that information to the leadership. MS MOHAMED Can you recall whether Mr Sithole discussed this incident, in other words his involvement in this incident, with the ANC leadership at that meeting? MR MADLALA Yes, he made mention of that. Can I say something? What Lucky stated there, it was an accusation that was directed to the ANC leadership, in that mass meeting. Not in the caucus, but he stated that specifically in that mass meeting he was open about it, and then he said after coming from the exile, they were given instructions by the Commanders to commit crimes like robbery in order to help the organisation. But the very same organisation now is in power and is doing nothing to help them get amnesty. The responses came from comrades like Carl Niehaus, who said the ANC had given itself time to change all the laws, concerning indemnity. Early in 1996 they promised that a TRC body would be established. Everybody who was in prison for politically motivated crimes, they should use the opportunity to apply for amnesty, and these people should reveal everything that they know. That was the only first forum that was established by the ANC government, it was this TRC. MS MOHAMED Thank you Mr Chairman, I have no further questions. NO FURTHER QUESTIONS BY MS MOHAMED CHAIRPERSON What about indemnity? MR MADLALA About indemnity, it came about in 1990 during the negotiations that were in Groote Schuur in Cape Town. When there was this law that would be passed by the National Party government, that law was passed in November 1990, and then people had to apply for indemnity early in 1991. I was in prison at the time. The manner in which things were happening, was very disorganised. There was no formal structure like the TRC. I am one of the people who applied. The prison warder would fill in the form for you, if you would try and show that you know something about politics, at least you would get a form, but there would be additional statements that had to be done by the prison warders and in their own handwriting. I actually think that the ANC did not like this process of indemnity, nationally. That is why there was a problem in 1992 in September. The indemnity did not make any move to release the ANC prisoners, because this was just a cover up to save the National Party prisoners, the ANC submitted a list of about 1500 people who were in prison, but only 40 people were released, and those people were criminals. The people who were arrested for political activities, were still in jail. That is why this TRC body was established, this was the only platform where all the people who were arrested for political reasons, would be released. As far as I am concerned, this indemnity was not such a good process at all. Including the Indemnity Act of 1992, was not a good process. CHAIRPERSON Yes, Ms Thabethe? CROSS-EXAMINATION BY MS THABETHE Thank you Mr Chair. Mr Madlala, Mr Sithole have applied to the Committee for amnesty for a robbery, you were listening, for the robberies and the attempted robbery? MR MADLALA Yes. MS THABETHE He claims that he did this under the auspices of the ANC. MR MADLALA Yes. MS THABETHE What would you say in response to that, what would be your comment to the Amnesty Committee in terms of granting or refusing amnesty? MR MADLALA About granting amnesty, I am not, I want to explain about what I heard from him. ANC is a very organised organisation. The ANC President, the current President was the one who had been to the ANC, to the TRC, for submissions, submissions that were covering each and every activity of the ANC. If the TRC is considering Mr Sithole's application, they would use those that were covered in the submission. I would also like to request the TRC to take a note, this is not for the first time for me to come here to the TRC, long before the establishment of this TRC, Lucky Sithole had mentioned something like instructions. I remember at some stage he was very, very angry, he staged a walkout. It is not for the first time that he speaks here about the instructions that were given to him by the ANC, he started talking about that as early as 1995. I would further request that the TRC when considering his application, should take note of those issues. As a person who was a former Chairperson of the ANC in prison, all these applications were in my hands, all the members of the ANC who were in prison in KwaZulu Natal, were in my hand. I started working with them while I was in prison. When I was released in this year in March, the ANC gave me a portfolio of going ahead with these applications, up until the last date of the TRC. I am so used to communicating with the TRC office in Cape Town. There are problems that sometimes I would be told that a person did not get amnesty, but the same person would be called again, because of some problems. I am not sure whether there is a communication breakdown or not. The example of Dannyboy, I received a letter that Dannyboy, his application was turned down, but yesterday he was here to appear before the TRC. I think that I know more about Sithole and the others' applications. I am not hearing about them for the first time here. MS THABETHE Thank you Mr Chair, I have no further questions. NO FURTHER QUESTIONS BY MS THABETHE CHAIRPERSON Ms Mohamed? MS MOHAMED Thank you Mr Chairman, I have no further questions. NO RE-EXAMINATION BY MS MOHAMED CHAIRPERSON Thank you, you are excused. MR MADLALA Okay, thank you. WITNESS EXCUSED CHAIRPERSON Are there any other witnesses? MS MOHAMED No, Mr Chairman, that is the applicant's case. MS THABETHE No witnesses. CHAIRPERSON Any submissions, Ms Mohamed? MS MOHAMED IN ARGUMENT Mr Chairman, I would just like to address you very briefly. I understand that in the course of his evidence the applicant mentioned certain statements, and then later on it turned out to be inconsistencies and the like. I understand if viewed, if one particular view is taken, then obviously that is totally detrimental to his application and it could go to the very foundation and basis of that application, but what I would like to say is that on instructions received from the applicant himself, it seems that given the finer details of the operation at Stanger may not have been canvassed properly and things like that, but he at all stages, was the Ordinance Officer as appointed by the Commanders in the Umhlazi area. He was a trained MK person and he was quite familiar with the manner in which ... CHAIRPERSON I don't think, and I speak for myself, but I don't think we've got any illusions about his training and his affiliations. MS MOHAMED Okay. CHAIRPERSON I speak for myself. The difficulty I have is the reasons why the crimes were committed. He has told us one version now, accompanied by the statement which he signed and handed up by you, this morning, Exhibit A, but yet in all other statements which was canvassed with him, some different reasons. He has made valiant attempts as far as I am concerned, to explain that away, but fundamentally, and really significantly, he concedes that the contents of the letter on page 35, read together with the application for indemnity on page 34, is in fact the truth? That is the difficulty with which I am confronted. MS MOHAMED Yes, Mr Chairman, I understand that and that can be an insurmountable difficulty. CHAIRPERSON I appreciate your position, I mean sometimes those mountains cannot be climbed. MS MOHAMED It is my instructions that the applicant views this as a forum at which he can actually speak quite freely, and the evidence given by Mr Madlala clearly indicates his bona fides and his involvement in this activity, from as early as 1995. CHAIRPERSON Well, the trouble with Mr Madlala's evidence is that it does not reflect on the actual offences? MS MOHAMED Yes, I understand that, Mr Chairman. CHAIRPERSON It doesn't deal with it. MS MOHAMED Yes, but the applicant has maintained that he was acting under instructions and apart from those submissions, I can take it no further, and I leave it in the hands of the Committee. Thank you. MS THABETHE IN ARGUMENT Thank you Mr Chair. I have no submissions, except to say that I support Ms Mohamed's. CHAIRPERSON Why? MS THABETHE Mr Chair, it is because from the evidence led, it appears, and also from Mr Madlala, it appears that the applicant was acting under instructions when he committed these actions. With regard to the indemnity form, what I would submit Mr Chair is that it appears that the applicant did not have legal representation or legal advice. CHAIRPERSON So what? MS THABETHE As to how to, as to what information should be revealed in this form. My submission Mr Chair, would be that what he has written is the truth. CHAIRPERSON If he is telling us the truth today, then he lied in the indemnity form, isn't it? MS THABETHE I wouldn't argue so, Mr Chair, because these could be his personal, these facts could be correct in as far as his personal capacity is concerned, the fact that he had kids, the fact that the ANC didn't take care of its own. CHAIRPERSON But he tenders that paragraph as reasons for committing the crime or crimes? MS THABETHE Which is why, Mr Chair, I am arguing that I think that can be ascribed to the fact that he did not have legal representation as to what factors should have been revealed by him, and as to what reasons he should put forth in order to get indemnity. MR LAX You see my difficulty, if I could speak for myself, is based on Mr Madlala's evidence. We are not dealing with your average lay person, we are dealing with someone who was the leader of the prisoners, who made representations on their behalf, who dealt with these kinds of things? Do you understand, we are not dealing with somebody who was just an uneducated somebody who didn't know what all of this was about? Whether he had a lawyer or not, is irrelevant and Mr Madlala has given evidence to that effect? MS THABETHE With respect, honourable member of the Committee, the indemnity form was completed in 1994 and it is clear that at that stage most prisoners did not know exactly what information should be revealed in those indemnity application forms. MR LAX There is no evidence to that effect, there is no evidence whatsoever to that effect? There is evidence to the contrary, that this person was the leader of the prisoners and that he was helping them do all these things. MS THABETHE At what stage though, Mr Lax? MR LAX That was Mr Madlala's evidence. MS THABETHE From what I heard, Mr Madlala was talking about the period from 1995 onwards, when the leaders ... MR LAX He said he was in the prison from 1990, this man came there in 1992, 1993, after his conviction, then his evidence was, they used to talk about these matters before and regarded them as a joke, before the meeting? MS THABETHE Well, that is not how I gathered the information from Mr Madlala. I thought he was saying from 1995, that is when they started pursuing for amnesty, but ... CHAIRPERSON Let's leave that point, we will discuss it. What do you say about Mr Sithole's credibility? How do we handle his failure to deal with certain conflicts? How do we deal with the particular conflict that is germane to this application, the one hand he gives us what appears to be a well-founded political reason for committing this offence, whereas he says what is contained in his indemnity letter, is in fact the truth? How do we deal with it? MS THABETHE Mr Chair ... CHAIRPERSON How would you like to deal with it? MS THABETHE I would like to argue it, Mr Chair, the way I understood his evidence, of course I was following it in Zulu, I would say I didn't see any material contradictions or conflicts in his evidence, more than an issue that maybe some issues were not canvassed, especially as to what happened after the bottle store was robbed, up to where he got arrested. But with regard to the indemnity form, I would argue, Mr Chair, that what was written in the indemnity form, is the truth, in as far as his personal reasons are concerned. CHAIRPERSON But he says that is the truth, and that is why it happened, he admits that under oath today? MS THABETHE But he did concede Mr Chair, with respect that what he wrote in his application, was the personal aspect. CHAIRPERSON Yes. But it is the truth? MR LAX It wasn't the personal aspects, it was an attempt, you see, this is my problem, it was an attempt to deflect responsibility from the ANC. If that is the case, then it is not the truth, because the truth is that he got orders from the ANC to commit the act, that is the truth. Now many applicants have appeared before us, as you well know, and they have said "yes, I have lied in my indemnity application, but I lied because I wanted to protect the ANC." MS THABETHE Yes. MR LAX This man isn't saying that he lied because he wanted to protect the ANC, he says he told the truth. CHAIRPERSON As it happened? MS THABETHE Oh, that is not how I understood it. I thought he was saying he spoke about his personal circumstances in the indemnity form, as opposed to the political circumstances because he did not want to reveal the incidents, thus exposing the name of the ANC, that is how I heard him, but of course I was listening in Zulu. I don't know whether my learned colleague heard the same thing, maybe being translated? CHAIRPERSON Well, Ms Thabethe, if I can remind you, you in fact asked him a particular question related to that. MS THABETHE Yes. CHAIRPERSON The question, he was in effect, that in the indemnity paragraph ... MS THABETHE Paragraph 11? CHAIRPERSON Paragraph 11, he is specifically asked to explain how the act for which he seeks indemnity is one that is politically justifiable. MS THABETHE Yes. CHAIRPERSON I think you are the third or the fourth person to ask him that question. What did he answer? MS THABETHE I cannot remember precisely Mr Chair, what he answered. CHAIRPERSON That is when he said that he didn't choose to tell the truth in order to protect the image of the ANC. MS THABETHE Okay. CHAIRPERSON But we must remember he has also said under oath that what is contained therein, is in effect the actual truth, the actual reasons why he did it. That is a conflict that we are saddled with. MS THABETHE Yes. Mr Chair, I would leave it at that, thank you. CHAIRPERSON Thank you. We will take time to consider this application and deliver the decision in due course. MS MOHAMED As the Committee pleases. MS THABETHE As the Committee pleases. CHAIRPERSON We will adjourn until two o'clock. COMMITTEE ADJOURNS CHAIRPERSON Good afternoon. We now come to a new matter and for the purposes of the record, the Panel is as before. I am going to ask the representatives to identify themselves for the purpose of that record. MS MOHAMED Thank you Mr Chairman, I am Ms Mohamed, from the firm Dehal Inc, on record for Mr Mpanza. MR PANDAY Thank you Mr Chairman, I appear on behalf of the victims, Mr S. Panday. Mr Chairman, just to place on record, there were two victims located in this matter, however there is only one present, that being Mr Jobe, from the Jobe family. Thank you. MS THABETHE Thank you Mr Chair. CHAIRPERSON What is the position about the other? MR PANDAY Mr Chairman, in principle the application is not being opposed, save to say that the family seeks full disclosure as to the incidents. CHAIRPERSON But are you representing both victims? MR PANDAY Yes, that is correct. CHAIRPERSON Despite the absence? MR PANDAY Well, unfortunately one cannot be present. CHAIRPERSON No, no, I accept, but you carry instructions of that victim? MR PANDAY Yes, that is correct Mr Chairman. CHAIRPERSON What are the names of those victims? MR PANDAY The first victim is Mergen Raymond Samuel. CHAIRPERSON Yes, and the other? MR PANDAY And the second set of victims is Anthony Jobe. CHAIRPERSON Spell the surname please. MR PANDAY J-o-b-e. That is the next-of-kin of Kanyile Petrus Jobe. CHAIRPERSON Yes? Ms Thabethe? MS THABETHE Thank you Mr Chair. I am Ms Thabile THABETHE, the Evidence Leader. MS MOHAMED Thank you Mr Chairman. Mr Chairman, with your leave, prior to commencing the application of Mr Mpanza, there is a matter that I would like to address you on. If you are aware, there are two other persons involved in this matter, according to Mr Mpanza's application are Mr Mzwake Cleopa Shandu and Mr Sifiso Goodman . Mr Chairman, there was a High Court application brought on Monday in the Natal Provincial Division, to have these two applications be joined and recognised as applicants for the purposes of this hearing, that was done pursuant to previous proceedings before the Amnesty Committee, when the matter could not proceed because Mr Malevu and Mr Shandu were not recognised as applicants at that stage. Given the directions from the previous Committee that heard the matter, we were asked then to follow up on the relevant High Court application. The position is that the matter was heard in the NPD on Monday, the 28th of August before Justice Msimang and the Judge found that he is not in a position to decide the issue, and he ordered that the matter be referred to this Amnesty Committee to consider whether the applications of Mr Malevu and Mr Shandu is properly before the Committee. Mr Chairman, with your leave, I would like to address you on that basis then, and possibly place the status of their application before you, so that you can make the necessary decision. CHAIRPERSON Ms Mohamed, the Act stipulates, I think peremptory regulations that applications by each person who seeks amnesty for whatever offence, must firstly make such application on a prescribed form. I think it is around Section 16 or 17. MS MOHAMED Yes, I think it is in Section 18. CHAIRPERSON Whatever. There are other formalities that have to be complied with for an application to be regarded as before a Committee. Now, we are not in possession of any form purporting to be an application by either Mr Shandu or Malevu. I don't know if you are in possession of such a document? MS MOHAMED No, Mr Chairman, I am not in possession of such a form. CHAIRPERSON Do you know whether such forms were completed? MS MOHAMED On the instructions I have received, sorry, I am going to use the word applicants just for easy reference, that both of them have completed their forms. Mr Malevu at that time, on completion of the form, around May 1997, was at Westville prison and the form was completed and then duly sent to the prison authorities for onward transmission to the TRC. Mr Shandu at that stage was at Waterval prison, and he says he did likewise, where the form was sent to prison authorities for forward transmission. It is also my instructions that they received no further communication from the TRC about the outcome of that application. At some stage, Mr Chairman, just to clarify the position ... CHAIRPERSON Have you got a copy of the papers that were served on the Court? MS MOHAMED Yes, Mr Chairman. CHAIRPERSON Could I have a copy of that, please. MR PANDAY Mr Chairman, if you seek to use mine, because I am not involved in this problem, so it would be easier for you, it is just a fax copy that was sent to my office. JUDGE POTGIETER What the other applicant, is it Mr Malevu? MS MOHAMED Yes. JUDGE POTGIETER Where did he submit his application to, which prison was it? MS MOHAMED Mr Malevu was at Westville prison. JUDGE POTGIETER Westville? And he also completed a form and handed it to the authorities at the prison? MS MOHAMED Yes. And Mr Shandu was at Waterval. JUDGE POTGIETER He was at Waterval prison you said? MS MOHAMED Yes. JUDGE POTGIETER Have you got a date roughly when all of this happened? MS MOHAMED Around May 1997. JUDGE POTGIETER In respect of both Shandu and Malevu? MS MOHAMED Yes. Mr Chairman, if I may with your leave, I want to explain the situation to you. After these forms, according to Mr Malevu and Shandu, after they had sent it to the prison authorities, they received no further word from the TRC about their application per se. What had happened was around July 1999, the TRC Investigator, Mr Joshua Cele called at Westville prison to speak to Mr Malevu, I think at that stage he had just been cited as an implicated party in Mr Mpanza's matter. During the course of the consultation an affidavit was drawn up which Mr Malevu had signed and I am aware that that affidavit is included in the bundle. MR LAX Is that at 4 to 10 of the papers? MS MOHAMED Yes, Mr Lax. And likewise, Ms Sheila Mkhize and Mr Joshua Cele again consulted with Mr Shandu at Waterval prison and a similar affidavit was then drawn up, and that is also included in the bundle, on page 11 to 16. MR LAX Those affidavits though were for the purposes of their implication in Mr Mpanza's application? MS MOHAMED That is correct Mr Lax. What had happened at that stage was in these affidavits, both Mr Shandu and Mr Malevu in the relevant paragraphs, if I may point you to that ... JUDGE POTGIETER Where is that? MS MOHAMED Mr Malevu's affidavit, for ease of reference I am going to refer to the typed version so that we can locate it quicker, on page 4. JUDGE POTGIETER Yes, what paragraph? MS MOHAMED Sorry, on page 5, paragraph 10, this is dealing with the status of their application, page 5, paragraph 10, the second sentence of paragraph 10, Mr Malevu says "... in addition I wish to state that when the Act of the Truth Commission came into effect, I and Ziba and Mzwake Shandu gathered and applied for amnesty unilaterally in one form, which was signed by Ziba. This was through lack of knowledge that individuals should submit his own forms, and I am of the opinion that I am being considered as one of the applicants. This is all that I wish to state." MR LAX With the greatest of respect, how can that be in line with what you have just told us? MS MOHAMED Mr Lax ... MR LAX Let me just finish. You have just told us that they individually applied at Westville and Waterval in May 1997, this says all three of them were together and they all made one application in one form? Those are two totally different versions? MS MOHAMED Yes, Mr Lax, if I may, I do apologise. JUDGE POTGIETER Take us to the other affidavit as well, and just, you were busy pointing out where these things appear, and I accept you will then explain? MS MOHAMED Yes. JUDGE POTGIETER Yes. And Mr Shandu's affidavit, the typed form on page 11. JUDGE POTGIETER Paragraph? MS MOHAMED Paragraph 2. That is the typed version, Mr Shandu says "... according to my knowledge, I also applied for amnesty together with Sifiso Malevu and Ziba Mpanza, co-perpetrators of the robbery, we were convicted for. Although I did not sign any form, I remember that we included our names and Ziba had signed the application form. It was between early 1997 and late 1996." JUDGE POTGIETER Thank you. MS MOHAMED Those are the relevant paragraphs. And then Mr Chairman, what had happened is, based on that affidavits, the TRC then said to, actually by means of a letter, to both these applicants that it seems as if they had applied unilaterally, one application, and the necessary applications will then have to be made to a Committee who hears the matter. The TRC then confirmed that they didn't have any written application before them. So what has happened is, when the matter came before the Committee on a previous occasion, I think it was in March this year, the Committee was then appraised of the situation and the two applicants at that stage were not represented. It was at that stage, after that adjournment, that we became involved in the matter, upon receiving instructions from Mr Shandu and Mr Malevu. They said to us that the contents of this affidavit was put to them, because by that stage we had received the previous bundle that was prepared in this matter. They said to us that these affidavits incorrectly represent the position, in that there was a misunderstanding at some level, between themselves and the Investigators who took down these affidavits. They then said to me that they wrote out their applications, it was sent to prison authorities and they had each done this on their individual forms. The High Court papers which were then submitted to the NPD were then drawn on the same lines. CHAIRPERSON Which they understood? MS MOHAMED Yes. CHAIRPERSON And they signed? MS MOHAMED Yes, Mr Chairman. It is on that basis now, that I am before you. I have, apart from these submissions, I don't have anything further to make. I am aware that the Act clearly says that application has to be made on the prescribed form. But given the, I understand that there is also a difficulty about the different versions and if need be, Mr Chairman, both the applicants are willing to testify as to the correctness or incorrectness of various versions that have been put forward. MR LAX If I may, have you made any enquiries at either Westville prison or Waterval prison, as to whether their names appear on any list of applications forwarded to the Truth Commission in about May 1997 as we have heard that there were such lists compiled, of various people's applications? MS MOHAMED Mr Lax, we had taken the applicants' word for it, that the forms were forwarded and I cannot say that we actually did an enquiry, no. MR LAX So the answer is no? MS MOHAMED Yes. CHAIRPERSON Ms Mohamed, we are of the view that we need to consider this application, we cannot obviously do it here. I don't think it is going to affect you or this hearing, if we proceed to listen to the application that is properly before us and make a decision thereafter about joining the other two. Have you got any objections to that? MS MOHAMED Not an objection, Mr Chairman, if I may just clarify then, would you then, if we do proceed with Mr Mpanza's matter, at the conclusion of his evidence and the relevant witnesses ... CHAIRPERSON Then we can decide whether the other two can be joined or not. MS MOHAMED Yes, so will it be necessary for me to then call Mr Malevu and Mr Shandu at that stage, or should I just hold on to that? CHAIRPERSON For what purposes? MS MOHAMED Because - okay no, I follow what you are saying. Thank you Mr Chairman. CHAIRPERSON If we decide that they are, or can be joined, then you call them as applicants. MS MOHAMED Okay. CHAIRPERSON If we decide or find that they cannot be joined, then that is the end of the matter. MS MOHAMED Okay. MR LAX Sorry, there is a third permutation. I didn't understand you quite clearly, but you may want to call them as separate witnesses in Mr Mpanza's application? MS MOHAMED Yes. MR LAX To back up his version, as opposed to them being applicants, is that what you were asking? CHAIRPERSON Well, then that doesn't matter, because then they come here in their capacity as witnesses. I would think that you first wait for a decision on their status in this application first, it does not stop you from calling them as witnesses for this application. Mr Panday, have you got any objections to the proposed ... MR PANDAY No, Mr Chairman, no. CHAIRPERSON Ms Thabethe? MS THABETHE It is just a concern, Mr Chair. My learned colleague has indicated that the two, perhaps have indicated that there was a misunderstanding in them having stated the same thing, that they completed one application form, which they signed, and also they add that there was no, they did not furnish individual forms. Now, I don't know whether it is necessary, but I would wish them to come if possible, and state the correct position because all of them are Zulu speakers and I am not sure whether there is a suggestion that maybe there was a misunderstanding, in terms of language, but because it is clearly stated what they said. I think it would be necessary to call the people who also took the statement. CHAIRPERSON Well, we will see at the end of the day what we decide. Mr Mpanza, what language would you like to use? MR MPANZA I would like to use Zulu.