amntrans AMNESTY HEARING 1996-05-13 BLOEMFONTEIN 1 MR N JACK MENERA https://sabctrc.saha.org.za/hearing.php?id=54602&t=&tab=hearings https://sabctrc.saha.org.za/originals/amntrans/bloem/bloem2_menera.htm ADV THABETHA The Committee will now proceed with the Jack Menera matter which was supposed to be heard tomorrow. Mr Phelane is sitting next to me because he said he would like to conduct his own matter. I'll just confirm it for the record. JUDGE WILSON That doesn't cause anybody any problems does it? ADV MEMANI No prejudice. ADV THABETHA Members of the Committee, I would like to hand over to Advocate Memani. ADV MEMANI Chairman may I call Mr Jack Menera? Chairperson, Mr Menera is Xhosa speaking. N JACK MENERA (sworn states) ADV MEMANI Let us hear your full names? MR MENERA The name is Jack Menera. ADV MEMANI Mr Chair, this is an application for amnesty which is ...(indistinct) already before the Committee. They applied for amnesty in respect of the following offences Murder committed on the 14th of July 1991 at Majanas(?) Field in Brandfort. The name of the victim is Susan Phelane. ADV DE JAGER Mr Memani have you got a copy of the indictment before you? ADV MEMANI Indeed I'm reading from the indictment Mr Commissioner. And the second offence in respect of which application is made for amnesty is for that of attempted murder committed on 14 July 1991 at Matemasu near Brandfort and the name of the victim is Patrick Phelane. The third offence in respect of which application is made for amnesty is arson which was committed on 14 July 1991 at Kamduza Cafe at Matemasu in Brandfort. The owner of the property was one Morgan Phelane and he's thus also the victim of the offence. The fourth person in respect of which amnesty's applied for is assault with the intent of doing grievous bodily harm which was committed on the 14th of July 1991 at Matemasu in Brandfort. The victim of the assault was Edward Phelane. The next offence in respect of which amnesty is applied for is malicious damage to property which arises out of the burning of a motor vehicle on the 14th of July 1991 at Marjorie Maswewu in Brandfort and the victim there was Edward Phelane. Now Mr Chairperson I('m now going to proceed to lead Mr Menera, the applicant. ADV THABETHA Excuse me Mr Chair. I don't know, in the application form the act or omission or offence applied for is the murdering of Susan Phelane and in the last hearing there was talk of an amendment of application forms to encompass all the other acts. So I don't know whether that was finalised. JUDGE WILSON Well as I understand it, if you look at page 350 of the record, you will see that I there asked Counsel if he was applying to amend the application to cover these counts and it was said he then said that was his application. And we then pointed out that had nothing to do with escaping from custody, and that was then dropped. And although there was, I don't think we formerly said we granted the amendment, my impression was, and it I think the application was supported by Mr Mpshe at the time, that the amendment should be granted. And we then continued, the matter was then adjourned. If necessary we will at this stage grant him leave to amend by setting out the acts, except in Count 1 he was convicted of attempted murder, not of murder as charged and the application can be amended by inserting these particulars in paragraph 9A. 'I took part in' and these facts set out in the... As was pointed out at the last hearing he filled in the form himself and he is not a particularly learned gentleman and he didn't appreciate the necessity of setting out in detail, and I think that it was certainly in the, I think all the Committee members understood that we would adjourn it to hear the application on that basis. EXAMINATION BY ADV MEMANI ADV MEMANI Mr Menera is it correct that you were born in Brandfort? JUDGE WILSON Sorry, could I say something else? Although we have granted the leave to amend I would ask you to bear in mind that the application in particular in respect paragraph 10.B does not contain any details of the offences other than a general statement as to why the acts were committed, and he might have to deal with the separate, there is a general, he's classified everything together in 10.B as a general justification. He can just deal with each one of the separate offences now. ADV MEMANI As the Chair pleases. JUDGE WILSON In the application he refers only to, 'I took part in murdering a councillor by burning him'. It's obviously a sexual aberration there, it should be her. Then as I mentioned, 'I took part in the killing of a councillor', he doesn't mention the other acts which were committed in conjunction with it, so he will I'm sure now deal with all the acts. ADV MEMANI As the Chair pleases. Now Mr Menera, is it correct that you were born in Brandfort? MR MENERA That's true Sir. ADV MEMANI And did you later in life become involved in the political activities of Brandfort? MR MENERA That's true Sir. ADV MEMANI And would you please tell the Committee how you became involved in these activities? MR MENERA Without a problem I would explain that. ADV MEMANI Mr Chair may I point out that although Mr Menera is Xhosa-speaking, he's at present testifying in Sotho. He appears to have chosen to testify in Sotho and he's sufficiently proficient in the language. Yes Mr Menera? MR MENERA I will start to explain to the Commission about myself, before I would explain how we committed this act in 1991 on the 14th of July. JUDGE WILSON Could you repeat the interpretation of the last answer please? ADV MEMANI It was just a phrase so we are waiting for the sentence to be completed. Mr Menera will you please continue. MR MENERA It happened in 1995, it was between March and Aril that there was a conflict between myself and the organisation called Mathemaswu Youth Congress. ADV MEMANI You said that there was conflict between yourself and Michael in 1995 but you were in prison in 1995? You should be referring to 1985. MR MENERA I'm talking about '85 Sir. I had two friends and one of them was Mosala, his surname was Munoto, and the other one was Edwin Sishoba. These two people were my friends, it happened that there was a conflict between myself between Musala and his other friends whom were called the Three Million Gang. I want to explain shortly, the background about my friends and the Three Million, so that I want the Truth Commission to understand the whole background. About 1984 to 1985 there was a gang in the township called KUYOK. As it was called KUYOKO, the gang in Kroonstad, it was known as the Three Million Gang. All these people were friends with the son of Mr Phelane whose name is Edward Phelane. It happened just about 1985 that they made a housebreak in the farms around Brandfort, then they fought among themselves, fighting for money. They were robbed of money by Edward Phelane. Then that is the source of the conflict among themselves. When that conflict started, Mr Phelane by that time was known as a member of the ANC Matemasu Brandfort Branch. ADV MEMANI You have now mentioned Mr Phelane, are you still referring to Edward Phelane? Yes I'm talking about Mr Phelane who is in front of the Commission today. Sitting next to the evidence Leader, Edward Phelane. ADV MEMANI Who is Michael Phelane? You don't know Michael Phelane. MR MENERA No. ADV MEMANI Do you know Morgan Phelane? MR MENERA Morgan Phelane? ADV MEMANI Who is Morgan Phelane? MR MENERA Mr Phelane is the person who is standing between the evidence presenter, that's Morgan Phelane. ADV MEMANI Is it correct that when you say Mr Phelane, you are referring to Mr Morgan Phelane and not Edward Phelane? MR MENERA That's correct, and not Mr Edward Phelane. ADV MEMANI You may now proceed. JUDGE WILSON He was a member of what organisation? MR MENERA By that time he was known, he was one of the group known as the activists in the township. The youth at that time was known as Matemaswu Youth Congress. He was in the leadership of Matemaswu Youth Congress. I'm talking about Morgan Phelane. JUDGE WILSON This gentleman sitting here on the stage was in the leadership of the Youth Congress in 1988? Is that what you're saying? MR MENERA Yes, I'm explaining that he was one of the people who were activists in that area and this Matemaswu Youth Congress, when there was violence in the township, Mr Morgan Phelane used to help them to look for advocates for them who would represent them and make bail available for them when they were detained. ADV MEMANI You may proceed. ADV DE JAGER The person who robbed the money, was that Edward Phelane or Mr Morgan Phelane? MR MENERA No the person who was together with Three Million Gang was the son of Morgan Phelane who is Edward Phelane. They fought among themselves and because I was together with Musala, we were involved because Sibikhoto, who is Edward Phelane went to Matemaswu Youth Congress and showed them that I am against him and them and the way his father and himself were involved in politics and were the three people who were also fighting for freedom in Brandfort. Those were allegations which I learned during that conflict among ourselves, that.. ADV MEMANI What was the cause of the conflict? MR MENERA It was not for that we were fighting against this Matemaswu Youth Congress but we knew that there was a conflict among themselves about money that they went and robbed in the farms and Edward Phelane took the money. That is the story we had, but I myself and Edwin Seshu were ...(indistinct) that because were together with Musala who was also our friend. It happened again in 1986.. ADV MEMANI Before you proceed to 1986, I want to clarify something with you, you were saying, are you saying that members of Matemaswu Youth Congress were fighting that had been robbed from a farmer? MR MENERA Matemasu Youth Congress was misused by Edward Phelane and his father Morgan Phelane, because as I explained that Morgan Phelane was one of the leadership of the activist group, so anything which he was telling the youth that whoever, that the picture was painting about a person, they were accepting because he was respected as part of the leadership. So any instruction, they would take it from him, that is the cause of the conflict between ourselves and this youth we called Michael. It happened that ourselves and Michael met and negotiated about the source of the conflict. I told them the truth as far as I knew but when they analysed my opinion they could see that we were fighting for nothing. So we were able to reconcile in peace. therefore we built this Michael to the point where they would see the direction how to fight an enemy. ADV MEMANI Tell me, you've told us that there were negotiations between yourself and Michael, and who were present at that meeting? MR MENERA I would explain in this way. This issue was raised by my father because there was my brother called, his surname is Jackson, he was nicknamed Bamba, he is my brother because his mother or his father and my father were related. One day my father told us these allegations that Jack was fighting with Bamba, so I gave him the correct perspectives that the reasons I know of this conflict is that the Michael group was misused and were used for things which were far from them. We were worried that they were fighting for money which was robbed from the farms. I want to tell this Commission that this Michael group at the time when they said we were fighting us. ADV MEMANI I seem to be missing you at some point. You had the meeting with your father and your half brother, is that correct? MR MENERA That's true. ADV MEMANI Now what was discussed at the meeting between your half brother and your father? MR MENERA The issue was that myself and Bamba were fighting. As I explained that one day my father asked us, which means myself and Bamba, why we were fighting. ADV MEMANI Was an explanation given as to why you were fighting? MR MENERA I told him that the reason of our conflict is that people are fighting Musala and then people are fighting me because of Musala and also Edward, because those two people were my friends, and because Musala was a friend of the Three Million and he was also associated with KUYOK and Musala took part in all the activities, and by that time there was that conflict about money among the ...(indistinct) group and the Michael group. That's the conflict between ourselves and Michael continued. ADV MEMANI Did your half brother give and explanation to your father about why you were fighting? MR MENERA I don't want to tell lies before this Commission because my brother Bamba, I don't remember that he denied what I said on that day. I was telling my father in his presence because I was not able to tell him myself or ask him myself why he was making allegations that I was fighting him. But on that day I got an opportunity to tell him of the reasons and all those facts which I told him was aware of the reality. And then he began to be aware of the KUYOKO and the Three Million that Sibikotho who is Edward Phelane, that for the Three Million Gang to be known in Brandfort was known by Phelane who is Edward. ADV MEMANI Sorry can you tell this meeting between yourself, or involving yourself, your father, your half brother and so on and so forth, was it after or before you reconciled with Michael. MR MENERA I would say it happened before my reconciliation with Michael. ADV MEMANI Now take us from the time after you reconciled with Michael and take us forward from that point. MR MENERA Alright it happened that after those conflicts we were able to resolve our differences, then I became as Jack Menera, I was able to be aware that Michael Group was fighting for liberation and I was also one of the oppressed, so I joined Michael to fight the apartheid government. ADV MEMANI Now once you became involved with Michael, what was your relation with Mr Morgan Phelane? Morgan, the old man. MR MENERA We had a very good relationship, even that we had a conflict before but it was not visible after our reconciliation. What I would explain is that after being a member of Michael it happened that one day comrades, I would say Virginia comrades, went together with Edward Phelane from Brandfort to Virginia, to go and fetch the dynamite. It happened that on their return from Virginia to Brandfort, Edward Phelane, as he was the driver to fetch that dynamite from Virginia, was detained together with the comrades who went to Virginia. Edward Phelane became the state witness in that case, and those comrades were convicted and were at Grootvlei in those years 1986. It happened that in 1986 we were arrested together with Morgan Phelane, it was on the 12th of June 1986, we were detained under the State of Emergency. It happened that during that detention the comrades who were detained then in 1986, I'm not sure of the number but approximately it was about 100, all of those people who were detained were members of AZAPO, PAC and ANC. No one knew when he would be released. I was surprised to learn from Mr Morgan Phelane that when he told us together with Mnani(?) that next week, the following week he would be released from prison. That happened, he was released from detention. After his detention, we asked ourselves that for... ADV THABETHA After his release, not after his detention, after his release. MR MENERA After his release, yes I think that's true. After his release, when he was told that he was going to be released from detention, we were detained with him, when he told us that he was going to be released the following week, then he was truly released the following week. Then he went out. We the comrades asked among ourselves, how did he know that he would be released whereas there were more than a 100 people who were detained and that didn't know when they would be released. Why did he know that he was going to be released? We noted that concern. It happened that we were released after three months from detention. In 1987, 1988 there were local council elections in 1988. Mr Morgan Phelane, we saw his name appearing on the candidates' list as members of the local Councils. Before the elections we as members of Michael, we approached him.. ADV MEMANI Before you tell us about what occurred once you saw Mr Phelane's name in the candidate list, can you tell us about Mrs Phelane was she engaged in any civic activity? MR MENERA Also her name appeared on the candidate list on which Mr Morgan Phelane appeared. I don't remember how many people were there on the list but Susan Phelane and Morgan Phelane, their names appeared on the candidate list for local council elections. ADV MEMANI For elections for the first time? MR MENERA No it was not for her first time. If I remember well in 1986 and that issue was discussed in Grootvlei Maximum whilst we were detained together with Mr Morgan Phelane that he was questioned by comrades. People who were living with him were saying, how did it happen that Susan Phelane should be a councillor whereas her husband was an activist and a member of African National Congress, how did that happen? We responded by saying Mr Phelane likes to ask that at the end of the year Susan Phelane would be resigning at the end of that year but that didn't happen until 1988 when we saw both their names appearing on the candidates' list. ADV MEMANI Did Susan Phelane ever approach and ask to resign as a councillor? MR MENERA Before 1988? ADV MEMANI That is correct. MR MENERA We did discuss about it many times but we didn't approach her directly but we did once approach her directly, we used to approach Mr Morgan Phelane, so that is the person who promised us that Susan Phelane would be resigning by the end of the year and that didn't happen. ADV MEMANI You may now proceed as from 1988. MR MENERA In 1988 we approached Mr Morgan Phelane and negotiated with him that we are afraid when you see your name appearing on the local government's candidate list because we knew that all along you were together with us to fight for freedom and you were together with us. It seems now your name is appearing on the candidate's list for local councils. What's happening? The answer from Mr Morgan Phelane was that we don't know anything about politics, we should not question all those kinds of questions, why he should participate in local council elections. ADV MEMANI What happened thereafter? MR MENERA We continued with the discussions and we as Michael never gave up. We knew him as part of the comrades, we showed him many reasons why he should resign. I remember that those councillors who were supposed to be elected, the people were serving on mine who were to be elected, then we called a meeting in Brandfort where we wanted the councillors to attend the meeting so that we should explain to them that their work as councillors is not relevant without torture and assault and that happened. The councillors I'm talking about except Susan Phelane came to the meeting and we did negotiate with them therefore they resigned as councillors. In the same year in 1988 Mr Morgan Phelane didn't attend that meeting. Susan Phelane didn't attend that meeting. During that time we still intended to approach Mr Morgan Phelane that he should step down. In 1990 we called for the Bloemfontein branch, that is the regional branch of the regional office of ANC in Bloemfontein that they should try to show Mr Morgan Phelane about his work as a local councillor. His response to the regional office who went to approach him in the shop was that he will never discuss politics with stupids. ADV MEMANI And what followed his response that he would not discuss politics with stupids? MR MENERA People who attended the meeting on that day decided to take an action against Mr Phelane. They said this is the last step, we will not kill or burn, we will take the buckets which were used in the toilet and spill them in his shop. We will inform people that they should not buy in his shop and we will also tell people that they should not board his taxi which was driven by his son. People went there, took the toilet buckets and spilled them inside and outside Mr Phelane's shop. That was the first step which was taken against Mr Phelane. ADV MEMANI Did this prompt Mr Phelane to resign as a councillor? MR MENERA After that action taken by the residents to spill the toilet buckets at his business, Mr Phelane decided not to resign, what he did, he formed a gang which I cannot recall its name, whether it was Inkatha or Morgan Phelane Gang, it was referred to by many names, people who are against liberation. This gangster continued in Brandfort assaulting comrades, killing comrades. ADV MEMANI And what else did the gangster do? MR MENERA As I've explained that these gangsters, the operations that they carried out, the aims or objectives of these gangsters or the aims of the former gangsters of Mr Phelane was to shut the ANC down in Brandfort, that there's be no one talk about AN or shout Viva or toyi-toyi around Brandfort. This gangster took such operations that the ANC must be shut down in Brandfort. ADV MEMANI You mentioned that comrades were assaulted and killed by these gangsters. Do you know of any person who was assaulted by members of this gang? MR MENERA Yes I do. They are so many, I would request in this manner. The one that I'm sure that he was killed were twins, two brothers, the other one was Billy and Sammy. Sammy was accused No 7 in my case or trial that cell in Jail 4. Sammy was killed by a guy referred to as Rabana Mutsi who was killed at that time in the township. ADV DE JAGER But you're now telling us of things that happened after your trial. Sammy was accused No 7 in your trial and he was killed after your trial. Could you kindly tell us...(intervention) MR MENERA He was killed before as we took the action on 14th of July, he was already dead then, Billy, I'm referring here to Billy. ADV DE JAGER But...(intervention) ADV MEMANI Commissioner, if I may be of assistance. The person who died, Billy he is the twin brother of Sammy who was the co-accused. Billy was killed Mr Commissioner. JUDGE WILSON What trial are we talking about? ADV MEMANI The trial that has given rise to this application My Lord. JUDGE WILSON Have you got a copy of the indictment in front of you? ADV MEMANI That is so My Lord, Mr Chair. JUDGE WILSON How many accused were there? ADV MEMANI There were about three. JUDGE WILSON Yes. ADV MEMANI My instructions are that initially there were about, I think, 10 people and charges were withdrawn against...(intervention) JUDGE WILSON So they weren't at the trial? He has said Sammy was accused No 7 at my trial, but he wasn't, there were only three accused? ADV MEMANI I think a ...(indistinct) he would have referred to the Section 119 Proceedings as the trial My Lord. May we My Lord, for the sake of the witness accept that the Section 119 Proceedings were the trial and that's how he refers to the Section 119 Proceedings? JUDGE WILSON Is that what he believed? Have you consulted with him? ADV MEMANI On the aspect, that is correct Mr Chair. Now he told us that Billy was killed by the gangsters. MR MENERA Yes that is correct. This incident of Billy caused that, or rather shown to us that as we were known as members of the ANC, this gangster would come after us and kill us. What we must do is to defend ourselves against them. ADV MEMANI Were the killers of Billy arrested and tried for the offence? MR MENERA I would explain it quite broadly to the Commission. I do not believe that they were arrested because whatever was done by this gangster would not be seen as an offence. They would not be arrested. You would not know what happened about their case. For example after we were arrested in 1991, the same year explosives were found in Mr Phelane's house. He was arrested but later bailed. We do not know what happened. Nobody knows what happened about the trial. Himself and the police know what happened. Many other activities done by those gangsters, when reaching the ears of the police would end there. Even in court such things would not be dealt with because this gangster assisted the Boers to oppress the black people, because they shut the ANC down in Brandfort. They did such kind of operations, nothing happened about them. I can make an example again. Accused No 8 who died in my trial Zola Christian Bosman, he's accused No 8 in my case. After Zola was released from trial, the attorney general released him because there wasn't adequate evidence at our trial. After two months of his release he left for Johannesburg for about two weeks. On his return at Brandfort he had an argument with Edward Phelane's son and he was shot with Zola. When the comrades explained the following day that the person who shot Zola Bosman was Sibikhoto. The very witness was arrested and lashed and assaulted and the blame was laid on him. As ANC members we knew quite well that he was the person, this Edward Phelane who killed Christian Bosman. The police when investigating, or rather dealing with the inquest of Christian Bosman, we never heard of the suspect regarding Christian Bosman's murder. The person who was questioned about Zola's death was Morgan Phelane. I want to put this that the police knew very well who the killer was, and I'm referring here to Zola's killer or murderer. ADV MEMANI Now you were telling us about the activities of the gang, did the gang in any way openly collaborate against the police in circumstances where activists were, let's say for instance holding meetings? MR MENERA I will explain it in this manner so that the Commission understands when I say that the gangster had a good relationship with the police. When I refer to the first action taken against Mr Phelane, these toilet bucket action that we spilled at his house, the comrades were arrested on that day were not arrested by the police, they were arrested by the gangster, taking them in these police vehicles. In this case which I'm still on trial for, after we took this first action against Mr Morgan Phelane, these two comrades from Virginia were not arrested by the police, they were arrested by this gangster and he took them to these police vehicles. I want to say, the gangster and the police collaborated, they worked together. ADV DE JAGER Who was driving the police vehicle? MR MENERA Are you referring to the day we took the first action against Mr Morgan Phelane or on the arrest? ADV DE JAGER They arrested, the gangsters arrested some of you and took them into the police vehicles. When the gangsters arrested some of you and took you to the police vehicles, who was driving the police vehicles, the gangsters or the police? MR MENERA The police vehicles were driven by the police themselves. ADV MEMANI Now you told us earlier on that Mr Phelane was amongst people who were detained during the state of emergency 1986 and that about three months later you were released. Is it correct that Mr Phelane was released before you were released? MR MENERA Yes he was released before us. ADV MEMANI Now did, you have earlier on referred to Mr Phelane as a person who was in a leadership position vis a vis the youth activists in Brandfort. Once you joined Michael did Mr Phelane still act as a leader. MR MENERA Yes that is correct. ADV MEMANI Did you have, what activities did you engage in this capacity as the leader of the youth? MR MENERA ADV MEMANI Can you recall any other things that he used to do to assist the youth? MR MENERA I would say Mr Morgan Phelane as I have said, was in the leadership. If there was an action taken by the police against one of the youth and we decided to attack the specific policeman, anything that we would do we would consult Mr Phelane beforehand and tell him that Sergeant So and So did this and that and at this very moment we want to go and burn him, or rather burn his house. And I do not remember Mr Phelane denying our suggestions or actions that we were about to take, even petrol bombs that we used mostly to burn policemen houses. We used to prepare them at his cafe. The petrol, or rather fuel that we used to make these petrol bombs were taken from his cars, he voluntarily gave petrol to us that we can prepare those petrol bombs and take out our action. ADV MEMANI Now you had come to the stage where you told us that Mr Phelane formed a gang that was essentially anti-comrades and you also described the activities of the gangsters. Can you then tell us what the effect of Mr Phelane's and Mrs Phelane's refusal to resign and the activities of the gangster were in the community of Brandfort? MR MENERA I just want to explain this to the Committee so that you understand perfectly well. We were the Matemasu Youth Congress and we engaged in consumer boycotts and we would discuss it among ourselves that we are not going to buy in town for a certain period until our demands are met. What was happening and during this consumer boycott, when people were at work, we would have members of the youth to stand at the gate where we know is a passing point for everybody who was going to town, and we would make it a point that every person who comes from town doesn't have anything in his possession that he has bought in town. Any car that was coming from the town would be stopped and we searched it. But Mr Morgan Phelane's car and the car belonging to his son, Edward Phelane, they would not stop, even if we requested them to stop. Even a person who wanted to buy would do that freely knowing that he will be given a lift because that car won't be searched. Mr Phelane knew very well our intentions. In other words, Mr Morgan Phelane was not happy at all about our activities. He was also involved in the politics and he knew very well that consumer boycott was a strategy used by the ANC to cripple the De Klerk Government but himself, Mr Morgan Phelane showed the public that he was against the freedom of the people. One day the school kids were marching, they were marching from the school into the township. I am not sure as to the direction they were marching to, I don't know where they were really going to, I'm sorry. It happened that as they were marching from the school, his son's car approached, that is Morgan Phelane, and it was driving at a very high speed and it went to the marchers but the children were very careful, they saw it from far away and they managed to jump out of the road because they realised that this car was speeding and there was a possibility that it would never stop. And it was known that the driver of the car was against the song the kids were singing. When this gangster heard the slogans or the people toyi-toyi'ing, they would harass the youth and they would start violence and at the end of the slogan there would be fighting. All these activities were done by Mr Phelane's gangster. As the self defence units of Brandfort we also realised that these people are going too far, we have to take a step to counteract what they were doing in the community and truly we came together as the self defence unit and we planned how to kill them. That is the gangster and including its leadership, like Mr Morgan Phelane. ADV MEMANI In the trial during which you gave evidence before sentence was passed, there you referred to an underground structure of the Youth League as having decided on what action had to be taken. MR MENERA You were too fast Sir, I was still on my way to explain that. We elected people in the self defence unit whom we called underground structure. We were going to elect a person we know very well and a person we know his activities. It was during those difficult times, you wouldn't get into a hall and call a mass meeting and tell people that day, listen today we're going to burn a certain person. You'd never do that in the past, that is why we had this underground structure to come and co-ordinate and work underground. In other words you were not supposed to see what I was going to do to you, and you were not going to be in a position to understand anything that we were going to do in future. Now this underground structure met and they realised that we have to kill Mr Morgan Phelane, we have to kill Susan Phelane, Edward Phelane and his gangsters. The person who was on top of the list was the person that he passed away, Rabela Mutsi and a certain Mr Obuta, I think he is among us as we are talking now. He is one of those people who we deemed that they were an obstacle and the people were not going to achieve their freedom while these people were still present. Now we had to remove this obstacle so that the people can move forward because there was nothing that the people in Brandfort could do while the group that I've mentioned to was still present because they were the obstacle. I am explaining that the same gangsters are still fighting as now, they are still fighting the comrades of the township, even today there are still comrades who go to the charge office to lay charges against these gangsters. As I'm talking to you now this still continues. ADV MEMANI Mr Menera tell us now about the circumstances surrounding the death of Mrs Phelane. MR MENERA Right I am going straight to that. I already said that as the underground structure we sat together and planned, Mr Morgan Phelane, Susan Phelane and Edward Phelane and his gangster Bhuto Rabamutsi and them were supposed to be removed from the society and we agreed as the group of the underground structure of the ANC. We left on the 14th of July in 1991, we went to the shop where we knew that Mr Phelane and Susan Phelane, they were always in that shop. We didn't have a doubt. ADV MEMANI But Mr Menera it will help us a lot and everyone else and you in particular, if you could give your opinions in an unemotional way so that we can follow your flow of thought and understand you. We are being taxed a little bit too much in trying to follow your flow of thought. Now why was a decision taken to kill these people. We must first know why it was so decided and if a decision was taken, where, by whom and then lead us nicely in a step by step fashion to the ultimate point. Now we're starting as to the reason why these people had to be attacked. MR MENERA The first reason, according to our knowledge and the education that we were given, or the instruction that we were given by the same person Mr Phelane, this is what we knew. If you were a member of the organisation at the time of the struggle, if I was to resign from the ANC, Mr Phelane taught us that the person who is resigning will have to be eradicated from the community, he would have to be killed because he's a sell-out. This is a lesson that we received from the same Mr Phelane. Now his teachings got into our heads, everything he taught us was practised and we were doing in turn what he taught us to do. I have explained that there are policemen who (end of tape)...and that their houses were burned Mr Phelane knew very well and he knew indeed and I am sure...(intervention). ADV MEMANI I appreciate your explanation and the teachings the lectures you received from Mr Phelane, now tell us why these people were to be attacked? MR MENERA Let us first talk about the issue of councillors. We saw councillors as people working for an apartheid structure. Now when you were a councillor you were an informer and it was a well-known thing that an informer was to be burned. That is the reason for Mr Phelane and his wife Susan. Let's now consider Edward Phelane. Edward is the organiser of this gangster that was terrorising the people in the township. I've explained that we took a decision that these people have to be eradicated because of their activities. The ANC couldn't go anywhere and it couldn't do anything in the presence of this gangster, that is the reason we reached a conclusion to remove them from our way. They were blocking the community way. Can I now carry on and tell you how the attacks were? ADV MEMANI You must first tell us where was the decision taken, under what circumstances and by whom? MR MENERA There is no person within the ANC that we can say, this is the decision-maker. Even the State President Mr Mandela, he doesn't take decisions on his own. Within the ANC we sit down and discuss the issues. Everyone takes out hid programmes and you are the Commission and you are 10 in number, if you are six...(intervention) ADV MEMANI Mr Menera it does not matter who or how many people took the decision, I'm asking you who took the decision and where? It does not matter in what manner the decision was taken. MR MENERA Let me put it this way. Nobody took this decision but as the SDU, in Brandfort we came together and we agreed because of the situation at that time, we agreed, nobody specifically who said to us as the ANC Youth League, go and commit this act to Phelane. No as the ANC in Brandfort we took that decision. JUDGE NGOEPE Mr Commissioner may I try to be of assistance in this aspect? ADV MEMANI No I want to clear up something with him first. Are you saying the ANC took the decision or are you saying the SDU took the decision, or are you the one who took this decision? MR MENERA The SDU reached that conclusion that these people have to be killed because they were also killing us. ADV MEMANI Tell us about that day when the decision was taken, tell us about that meeting. Mr Menera this was an important decision to kill people. We want to know about that, we want to know about the circumstances under which the decision to kill people was taken? We can't just gloss over it and rush to talk about the attack and the like, we want to know about who took the decision and under what circumstances. MR MENERA Let me put it this way, I have explained earlier on the activities of this gangster in the township and to our comrades. At the time of taking this decision, everybody who was there knew very well what was happening in Brandfort and they were in good terms with the situation in Brandfort. Now there was nobody to stand in front of this. The emotions were very high. ADV DE JAGER Could I try and assist you? My colleague here repeatedly asked you where was this decision taken and by whom, now tell us, did you gather at a house, did you gather in the bush, where was this decision taken, at which place? At your house or where? MR MENERA We were at Mandela Square squatter camp, that is where we came together and discussed the issue of eradicating these people. ADV MEMANI Who was with you when the issue of eradicating these people was discussed? MR MENERA Patrick Maloyisani, Nicholas Mayani, Ou Bench, I am giving you their nick names, I don't have their proper names, I am sorry, the Commission will forgive me for that. And Christian Bosman. The five names that I have mentioned I have indicated before that we were the SDU. Now within the Self Defence Unit, we elected these five people according to their activities, they were known in the community that these people can come together and cooperate and work underground. There were very important things that we did not have time to take to the community. ADV MEMANI Mr Menera may I interrupt you? You must now tell us that at the meeting a decision was taken to eliminate or eradicate these people as you say. Now who are these people? MR MENERA: Are you referring to the people we are supposed to eradicate? ADV MEMANI Yes. MR MENERA I indicated that it was Mr Morgan Phelane, Susan Phelane, Edward Phelane, Rabana Mudsi, I told you that he has since died, I think is in 1985 and a certain Mr Buda, he is present among us here. Now the names that I have mentioned were the people who were supposed to be removed. It was realised that if we can remove them, the ANC will be in a position to run smoothly in the township. ADV DE JAGER Can we then, your answer is the decision was taken at Mandela Square? And the decision was taken by five people. MR MENERA Let me put it this way, ADV DE JAGER No step by step please, then I could follow you too. And the five people were Patrick, Nicholas, Ou Bench, Christian Bosman, or is Christian Bosman one man? MR MENERA: It's one person. ADV DE JAGER You've got four names and the fifth was yourself? MR MENERA Yes I was the fifth one. ADV DE JAGER This meeting, it wasn't a public meeting. You were on the ground section but you gather as an underground section on Mandela Square. MR MENERA I have told the Commission that these five people were called an underground structure. In other words, everything that they were doing was never taken to the community to be discussed. To discuss anything with the members of the community. It was a risk because Mr Phelane would ultimately receive the news before actions are taken now. Every decision that was taken about the attacks on the policemen and everybody, was discussed at an underground structure. ADV MEMANI And you five, were you members of the self-defence unit? MR MENERA All of us Sir. ADV MEMANI Now is it correct that it was believed that if Mr Morgan and Mrs Susan Phelane and their son Edward Phelane were killed, the ANC would make progress because of the activities you, because they were believed to be connected to the activities you have referred to earlier on. MR MENERA That's correct. ADV MEMANI Was Buda a councillor? MR MENERA No Buda is one member of the gang. He was a giant and Phelane trusted him because anything that they were doing, Rabana Mudsi and Buda were at the forefront of Mr Phelane's gang. ADV MEMANI Thank you Mr Chairman. Now Mr Menera, when was the decision taken? Now according to the indictment the incident occurred on the 14th of July 1991, was a decision to kill these people taken on the 14th of July or was it taken on an earlier date? MR MENERA Let me elaborate a little on your question Sir. ADV MEMANI Sorry I don't think that your answer to this question needs elaborating. We will understand your answer. The question is, was the decision taken on that day or before? Surely we will understand your answer without elaboration. MR MENERA We took the decision on the 12th, it was a Friday. ADV MEMANI You see we have no problem in understanding that you took a decision on the 12th without elaboration. MR MENERA I wanted to explain something about the question that Mr Memani asked, that the issue of being killed, since the years that Mr Phelane was involved in the council and form a gag, we've been discussing all these uncertainties, but we took the decision to kill on the 12th of July. We said we are now tired of these people. We wanted to show them that the ANC is alive and it will shut their mouths. That is when we took the decision of killing them. ADV MEMANI Now once the decision was taken on the 12th of July, what happened? MR MENERA We left Mandela Square on Sunday on the 14th of July and we went to the shop, a place where we knew that whether we like it or not, we will find Phelane and his wife in that shop. We went into the shop. ADV DE JAGER You said, we left, we went into the shop, who are we? Who went with you? MR MENERA The people that I've mentioned that they were present, these are the people who took the decision. We left Mandela Square, all of us. ADV DE JAGER The five of you? MR MENERA Yes the five of us. We went to the shop and we went into the shop and I asked Susan Phelane, where is your husband. That is the question I asked her, and she said, my husband is not here, he is at the station to help his son Pirate and while asking that question accused No 2 Nicholas Mayani went behind the counter and he attacked the words. He said, we are not going to discuss anything with an informer, an informer has to be killed, and he took a bar and he hit her. Myself and Patrick followed suit. We stabbed her, I had a jungle, a big knife in my hand and Cheetah also had a weapon, and we started chopping her. Bench went outside to the switch and he switched off the lights and we were left in the shop, the four of us. We stabbed her and then we chopped her. That is Mr Phelane's wife. She fell. I don't want to lie before this Commission that she died immediately, or we left her in a state of dying, I do not know. We stabbed her to such an extent that she would never survive. I can as well say she was killed by our attack. After stabbing her I went to the kitchen at the shop, I tried to get hold of something that will make the fire. We wanted to do our things so fast. As I was trying to pull a gas cylinder that was in the shop, I heard a cry next to the office. That is next to where we stabbed Susan. It was just a few minutes or just two minutes after stabbing Susan, I heard a cry in the shop and I went back to investigate who was crying. Accused No 3 Patrick Maluwisani was stabbing someone on the floor, it was dark in the shop, I couldn't see who this person was and I asked Muthlatsi, who is this person you are stabbing, and he said to me it's a dog belonging to Modern. I said, wait a minute and I took matches and I lit the matches and I said, this is a child, and this was Patrick Phelane. Muthlatsi understood me and he stopped his attack. I myself took Patrick, I dragged him out of the shop because I knew we going to burn the shop down. We wouldn't like him to burn inside the shop. I dragged him outside at the kitchen door and we started burning the shop. ADV DE JAGER You dragged Patrick out? MR MENERA Yes Patrick. ADV DE JAGER Or did you drag the child out? MR MENERA The child's name is Patrick. He was eleven years old, this Patrick was dragged out of the house and he was stabbed by Patrick. ADV DE JAGER One of your co-assailants was also, his name was also Patrick? MR MENERA Yes you are correct. Patrick the co-accused stabbed Patrick the son of to Mr Phelane. Now Patrick the co-accused was stopped by me to leave Mr Phelane's son who is Patrick and I then dragged Patrick outside the shop and we started now burning the shop. After burning the shop, we realised that the fire was so strong that nobody could stop it, then we left the shop. We knew that Modern Phelane must be somewhere in the car and he is pirating and his son was doing the same, he was on the road pirating. We will catch them on the road. And we knew that his gang was a group of drunkards, we're going to get hold of them nicely after having beer. Now on our way we saw a car belonging to his son Edward Phelane. It was parked next to the tavern. Because the plan was already in the pipeline, we went into the tavern and we got hold of him. I personally grabbed him on the neck, he was wearing a black leather jacket. I grabbed him by his leather jacket on the neck and he was talking to a security lady at the tavern and I pulled him. And when he looked back as to who was pulling him I took out my jungle knife, the one I used to kill his mother, the same jungle I used to stab him. During the stabbing he was not even defending himself. You know if a person hits you with a fist you try to stop but Edward was not stopping me as I was busy stabbing him. At that time he was busy taking out his 9mm gun that he hid somewhere and he wanted to shoot me with this. I realised that this is a gun that this person is pulling out. When I realised that this man is having a gun in his hand I threw away my jungle knife and I got hold of his hand. He was holding a gun with his two hands and I used mine to grab his and we fought over this gun. With God's help until the gun was in my hands and I thanked God that the gun was now in my hands. At that time he got a chance to run into the tavern. I realised that leaving him would be a danger because he was the most dangerous person in the gang. And I didn't feel anything forcing me to withdraw from this action. went into the tavern with his gun and we were told by the people in the tavern that he used the back door and he ran away. When I got out of the tavern, I saw my co-accused busy. His car was already burning. When I got out of the door his car was already burning, and the person who was at the car was Patrick Maloyisani and Mayani and Ou Bench. I said to them while the car was burning, I said, Comrades, we have done this here at the tavern, let us leave this area, let us not be close to the tavern. We went back to Mandela Square. ADV MEMANI What did you do after you went to Mandela Square, did you remain at Brandfort? MR MENERA I told my comrades, I said comrades, we have committed this act, it is better to run away and immediately then and there we ran away, we only left behind Christian Bosman, Myself, Patrick Maloyisani, Nicholas Mayani and Ou Bench left. We went to spend a night 10 km out of Brandfort on route to Welkom. Four o'clock in the morning we woke up in the veld and we started hiking to Welkom. It was at about four to half past four when we got a lift and we were dropped off at Welkom. At Welkom I left the three comrades, Maloyisani, Cheetah and Ou Bench, I left them and I went to Johannesburg. I went to Winnie Mandela's and I was told she's at work, and I went to Shell House where she was working and I found her and I related her the incident. I told her the reasons of my presence in Johannesburg, I told her what we did in Brandfort. JUDGE WILSON Did you tell her that you had killed these people, you had burned a house, that you'd stabbed a 13-year old child? MR MENERA I didn't leave anything behind, I told her everything. ADV MEMANI Is the Chair finished? Thank you Mr Chair. And what was her reaction when you told her these things? MR MENERA There was no reaction and there was nothing at all, and I was not asking her, I was telling her what we did, I was not asking her as to how she feels, I wasn't asking for her advice. I was telling her that we, the ANC in Brandfort committed an act. ADV MEMANI I don't know how the impression is interpreted to you, but let me try and put the question in a different way. Did she say anything that indicated that she approved of what you did or say anything to show that she disapproved of what you had done? MR MENERA She did not show any sign of being against this, but she was concerned about our safety, because she said, if we were still in the country after committing this, she said we should leave the country, we must be outside the country. In other words we were supposed to go in exile. And I didn't see it necessary to leave the country for exile because there was nothing I couldn't do at that time. Because I didn't want to leave for exile just to waste my time, I considered that even if I'm in the country, even if I get arrested, there is no problem because what I did, I did not hide myself, I was Jack and in future when you met me you would see me and you'd say, I saw Jack committing this act. I was prepared to be killed by the government, I was prepared to be sentenced but the government was supposed to know the reasons behind our action. That is why I got into the tavern with a gun, I knew that there's a policeman inside the tavern. ADV MEMANI Now Mr Menera ...(intervention) JUDGE NGOEPE Can I, do you want to move on to something? ADV MEMANI: Yes. JUDGE NGOEPE You have said that, or didn't you say that. That Mrs Mandela did not say anything to show that she disapproved? Is that what you said. I want to know whether what you said was that Mrs Mandela did not say anything to show that she disapproved, is that what you're saying? MR MENERA She was not against that, she was not against. If I say she was not against this, she knows the situation in Brandfort area very well. If she could have said to me, Jack you are wrong, I would be telling you as the Commission that Winnie disapproved, she was against, but I didn't say that to you, I was telling Winnie about our actions, now what she said to me was, after this incident you have to leave this country. JUDGE NGOEPE Give me the chance to ask you the question I wanted to ask you. Listen to the question. Did she say anything to show that she approves of what you did. You have said that she didn't say anything to show that she disapproved, now I am asking you, did she say anything to show that she approved of what you did? MR MENERA I've explained to the Commission that she said to us that we have to leave the country after this incident. That is the only thing she said to us. ADV DE JAGER Now you say, she said to us, who was the us, weren't you alone there? MR MENERA I explained that I went alone in Johannesburg, my co-accused were left in Welkom. ADV MEMANI Now Mr Menera, how did you conclude, what happened after you explained to Mrs Mandela what you had done in Brandfort? MR MENERA I have explained that it was not necessary for me to leave for exile, I saw this was an individual feeling. ADV MEMANI Let me interrupt you. You are with Mrs Mandela at work. You are explaining to her that you have done something in Brandfort and she says that you must leave the country. You refused to leave the country. When you leave her office, where do you say to her you are going? What transpires after you refuse to leave the country? MR MENERA Then I've explained that Winnie gave us her opinion and I must say she accommodated me at Safari Hotel in Hillbrow and I stayed there for about a week. That was at the hotel. And after a week I left Johannesburg, I came back to Brandfort. My intention to go back to Brandfort, I knew that Edward Phelane was a dangerous person in the community. I have indicated the nature of the people who were supposed to be eradicated. Now Morgan Phelane and his son Edward were left behind and it was my mission to remove them, and I was happy because my mission was going to be conducted easily because of the gun I took from his son and I would do the job on my own, I would just shoot one or each of them with one bullet and then that will be the job well done. And after this the people would have been eradicated. That is my intention of leaving Johannesburg for Brandfort. ADV MEMANI Brandfort? MR MENERA Yes. ADV MEMANI And what happened when you reached Brandfort? MR MENERA On my arrival in Brandfort the shop was destroyed at the time, it was gone when I arrived in Brandfort and there was nobody in the shop because it was destroyed. I went to Mr Morgan Phelane's house and I saw policemen, two in number, they were guarding his house. And I realised that these policemen were going to disturb me with my mission. Now what was important was to give myself a time and stand at the right position where I would be in a position to get hold of him. I was just planning to get hold of him spent about days in Brandfort seeking a way to get him but I couldn't get to him and I decided to leave Brandfort again because the police were now guarding his house. In other words there might be a suspicion that I am around Brandfort and I said to myself, let me go back and when they've forgotten about this incident I will come back and kill them. I went back to...(intervention) ADV MEMANI Just before you go back to Johannesburg, where and with whom did you spend four days in Brandfort? MR MENERA I was alone. I was hiding at the church in Morgan Phelane's church. ADV MEMANI Why? MR MENERA Because I knew that nobody would suspect that I was at the church belonging to Mr Phelane. I was alone. I would spend the day in the church and leave at night to go and fetch Mr Phelane and his son and Rabana Mutsi and Buda. I failed to get hold of them, the four of them. ADV MEMANI Now how did you travel from Brandfort to Johannesburg? MR MENERA I had money. We had money. ADV MEMANI Did anyone have to assist you with your travelling between Brandfort and Johannesburg? MR MENERA I have indicated that I had money. ADV MEMANI And where did you get the money from? MR MENERA The money to transport me from Brandfort to Johannesburg? ADV MEMANI Correct. MR MENERA We were always in possession of money. When we committed this act we had money in our pockets. ADV MEMANI And did you reach Johannesburg? MR MENERA Yes. ADV MEMANI And by what means did you travel to Johannesburg? MR MENERA I used a taxi. ADV MEMANI And once you were in Johannesburg, what happened? MR MENERA I explained that I met Winnie Mandela and she accommodated me at the Safari Hotel in Hillbrow, that is in Johannesburg, and I spent a week there. ADV DE JAGER Then you came back to Brandfort, did you again leave for Johannesburg after four days in Brandfort? Don't go back to the old story, we want to know what happened afterwards? MR MENERA I am explaining. I didn't go back to Johannesburg after I left Brandfort, I went to Welkom, that is where I met my co-accused. JUDGE WILSON Did you go to Welkom by taxi? MR MENERA Yes. JUDGE WILSON You met your co-accused? MR MENERA That's correct. ADV MEMANI And what transpired? MR MENERA Sorry? ADV MEMANI What happened? MR MENERA Where? ADV MEMANI Mr Menera, you were at the stage that you told us that you spent four days at the Phelane's and that on the fourth day or the fifth day you gave up and you left the Phelane's. Now when you left the Phelanes on that day what was your destination? MR MENERA I was going back to Welkom. ADV MEMANI How did you travel from Brandfort to Welkom? MR MENERA I hiked. It was in the morning at about four o'clock. I went to the road where we used to hike and I hiked until I was in Welkom. ADV MEMANI And what happened at Welkom? MR MENERA I met my co-accused and I told them that I was in Johannesburg and I told them that I met with Winnie Mandela and I told her what we did in Brandfort and I told them my feeling about what Winnie suggested. My co-accused left me in Welkom, they were heading for Brandfort and I was left alone in Welkom and I went to the two friends of mine who were in Virginia. At their offices, they had their offices in Mandela Square in Virginia. I was arrested there by the Virginia police and I was transferred to Brandfort and Brandfort police took me to Brandfort prison. I realised while in prison that I am not going to remain in jail because the people were still alive and I then planned and escape. ADV MEMANI: Yes you then escaped? MR MENERA Yes I escaped and I went back to the Brandfort township and I hid myself at Tom Jacob's house who is a civic leader. I spent my time at his home, it was on a Thursday evening and Friday morning the chairperson of the African National Congress, Comrade Bosman arrived at the place where I was hiding and I told him the situation, and I told him that I wanted to go to Johannesburg and I didn't have money for transport. Then they couldn't get me transport on Friday, not on Saturday but on Sunday they organised me transport. Unfortunately the person they were negotiating with for transport heard where I was but before he could do anything he started at the police and he told them that at a certain time I'm going to collect Jack. Now wait for us on the way. It happened just that way. He collected me and we used the normal route out of Brandfort and we joined the main road to Welkom. Between Brandfort an Theunissen there was a road block by the police. That was my arrest, taken to maximum prison Grootvlei. I want to comment about this. During our trial, I believe what I'm telling you is not new, it's the truth and it's even on the tapes. I explained to the court about myself and my co-accused that we were members of the African National Congress. We committed this act because of the reasons I've already put before the Commission and that Mr Phelane did not want to resign as a councillor. Mr Morgan Phelane was asked by my advocate Essop Patel and he said Mr Phelane you yourself are of the ANC. Mr Phelane said no he had never joined politics, he rejected that. I was very shocked because Mr Phelane was an old man and he was a priest and he was telling lies that he never took part in politics, whereas the whole of Brandfort township knew him as a leader of the people. ADV MEMANI MR MENERA Mr Phelane rejected that in court, he said he'd never been involved in politics. Now the advocate asked him the question about our arrest in Grootvlei maximum prison under the state of emergency together with him Mr Phelane rejected that he was arrested for political issues. He said he was arrested for other things. ADV MEMANI Just try and be slow and speak soft ...(indistinct). MR MENERA Please forgive me Mr Memani and the Commissioners. This is how I am. If you do not know me you will think I am emotional and yet not. This is how I express myself, please do forgive me. I want to explain a few points that we noticed during the judgement when this case was presented. Mr Phelane explained that he had never been involved in politics in Brandfort, and we asked him, Mr Phelane, why did you refuse to resign as a councillor while the other members resigned? His answer was, my colleagues who were councillors were intimidated by the youth. He explained it , he gave it a certain name and he said he wasn't going to be intimidated by children. This shocked me because in 1986 we were detained with Mr Phelane under the state of emergency. I remember very well. I'm not mistaken. When he addressed the people who were arrested for the state of emergency, he said he was a member of the ANC and SACP from 1948, if not mistaken, 1958 and I was now shocked when he was telling his ...(indistinct) before the judge that he never took part in the peoples' struggle. The cassette was reminded about the discussions I had with him about burning the police houses. I did many things that I planned with him, I'll give you an example. JUDGE WILSON Is this relevant? If so tell me why. ADV MEMANI I am pondering the point Mr Chairman. However the difficult that I have at this stage is that it has a tendency to suggest that Mr Phelane testified during the trial and when he testified during the trial, he told some lies, and that might have some kind of relevance taking into account that he is here and Mr Menera is likely to be cross examined on what occurred at the trial. It is for that ...(intervention). ADV DE JAGER But didn't everybody tell lies at the trial? ADV MEMANI I wouldn't like to say what he is saying about this but what I'm saying is regarding what he's testifying about at the moment, it tends to suggest that Mr Phelane told a lie and I'm also alive to the fact that he's likely to be cross examined about what was said at the trial. It is for that reason that I haven't stopped him from saying these things because he's now telling us what occurred at the trial as well and...(intervention) JUDGE WILSON But he's not being very truthful about it, is he? If you look at the judgement you'll see that Mr Phelane said he had been engaged in politics from 1939 to 1950, he'd been a member of the communist party. Your client says he said he was never involved in politics. That's not true is it? ADV MEMANI Mr Chairperson, these are matters that have to be dealt with, I think by way of cross examination or by way of seeking clarifications from the Bench. What I'm saying, and the question that I'm responding to is your question as to whether is there any relevance to these proceedings. JUDGE WILSON He's now not telling us about what happened at the trial, he is telling us about acts that he alleged that he committed in conjunction with Mr Phelane isn't he? He's gone beyond the trial, he's now starting to tell you about acts that he allegedly committed, which have nothing to do with the trial. ADV DE JAGER And perhaps he should recognise that he's not applying for those acts and he's revealing acts that he's not being prosecuted for as far as I know and he's not asking for amnesty for those acts. ADV MEMANI Mr Chairperson, with due respect, I think the Committee is kind of asking me to sensor the applicant. JUDGE WILSON Not to sensor but merely to lead evidence as to which is relevant to the proceedings before us and which is of the interests of your client. If he wants to now start confessing to offences for which he cannot claim amnesty, the cut-off date having passed, let him go on. ADV MEMANI Mr Chairperson I think the crux of the matter here is whether the evidence, the main thrust of his evidence is relevant and I'm saying that will be determined by your attitude to the matter, whether he is at any stage going to be asked about what occurred at the trial because we are understanding that he is now going to what occurred at the trial. He says at the trial, Mr Phelane lied, he said he was not an activist when I knew him to be an activist and I was involved with him...(intervention). JUDGE WILSON But he didn't go on and tell us about his activities now, the acts he committed with Mr Phelane...(intervention) ADV MEMANI At the same time Mr Chair, I kind of agree that we must draw some line at some point, and this is what I see as a function of the Committee rather than my function. JUDGE WILSON Which is precisely why I asked you what the relevance of what he was now saying was, because it is our function. If he wants to now tell us about acts, criminal acts that he committed, please let him do so, he's your client. ADV MEMANI Mr Menera, let us stop where you stopped. That is the evidence Mr Chairman. MR MENERA There is just one thing that I want to tell the Commission before I keep quiet, especially when we come to the issue of a firearm that I took from Edward Phelane. When the Commission interrogates him, please I want it to be clear. It was asked in the court about this firearm. Mr Edward Phelane was asked about this firearm. Mr Phelane, you agree that Jack stole this firearm from you and he was asked the question, where did you get hold of this firearm? And he said he was given that gun by a policeman. He said the policeman was paying him with this gun, seemingly the policeman owed him. Why do I include this issue. I want the Commission to be clear that the gun did not come to me according to the story he put forward to the judge. I have indicated that the gang was in cahoots with the police and the policeman who gave Edward Phelane the gun had an intention of Edward Phelane using this gun against us members of the ANC. I want that to be clear. He agreed that a policeman owed him and he gave him this firearm instead. I am giving you the real reason. That is my point of view. The reason for him to get a gun was to come and use it against us. Thank you. NO FURTHER QUESTIONS BY ADV MEMANI CROSS EXAMINATION BY MR PHELANE (VICTIM) JUDGE WILSON Who is going to ask questions first? Does Mr Phelane intend to, as a victim to ask questions? I think he should ask his questions first and then you can come up afterwards. MR PHELANE The Applicant's story so long Mr Chairman that it can take us the whole afternoon. I'll be very brief. I will just start from 1985 when he said the thing started. According to my records in 1985 the applicant, he himself, they formed a gang in our township there. These gangster were fighting against the scholars. They were scholars there at the primary school or a secondary school ...(indistinct). They started to boycott the Afrikaans and then they started roaming the township, not attending classes, they did not want Afrikaans in their schools. One of the police was a member of the school board there. Then this policeman, it happened that his son was fighting, one of ...(intervention) ADV DE JAGER Mr Phelane...(intervention) MR PHELANE COSAS boys in the township, that's where the trouble started. ADV MEMANI Mr Phelane, I was going to interrupt you but I see one of my colleagues also wanted to interrupt you. In fact can you stop for a minute. I want to discuss something with... JUDGE WILSON I want you to understand the procedure that is followed. At the moment you are entitled this applicant questions about the evidence he has given, and it would be wise to ask him questions about matters that you dispute, but you will then be given an opportunity yourself to give evidence to tell us your version, so there is no need to put the whole of your version to him but you should put anywhere where there is a very marked difference of fact, that you should put to him so he can answer it, then ...(intervention) MR PHELANE Thank you Mr Chairman. Mr Applicant, when did you join the ANC? In what year? JUDGE WILSON Sorry Mr Phelane, I'm afraid we will have to take a very short adjournment at this stage, I gather the applicant would like a short adjournment so we will take a short adjournment. COMMITTEE ADJOURNS ADV DE JAGER Mr Phelane did...(indistinct) inform you that you're entitled to a legal representative who could represent you and ask questions on your behalf? MR PHELANE According to the report I got or the notice, I asked for a legal aid, I did not get a reply and I faxed a letter to Cape Town somewhere. The fax was sent to Cape Town for a legal aid, I did not get any reply. ADV DE JAGER Do you know anything about it Ms Thabetha? MS THABETHA No I don't know anything about it except that when we set form to our procedure that we usually annex a form where if a person wants to apply for legal aid he may do so, but what happens is that the form after it has been filled up it's faxed to our office whereby Mr Machaka arranges for a legal representation. All I know is that I got a call from a Mr Ishmael two weeks back who said that he was Mr Phelane's Legal rep but he was in Joburg and he heard that Mr Phelane was arranging to get legal representation from the Legal Aid. So all along I thought he did have legal representation, but when I spoke to him today he informed me that he did not have legal representation but was ready to represent himself. So that that's as far as I know. ADV MEMANI In fact, last time when we were here Mr Phelane, you remember you saw us, you were here. MR PHELANE Yes I was here last time. ADV MEMANI And I think, you can correct me if I'm wrong, I think the question of, you were informed then that you could have a legal representative if you wanted. That was when we were at Breton High School. You remember we spoke to you when, at the veranda of the staff room, when we spoke to you in the afternoon. MR PHELANE When the news was faxed me then there was an attached form, so I phoned Cape Town and they gave me a fax number, the Cape Town office. ADV MEMANI No what I mean is that you do know that you're entitled to a legal representative. You're aware that you that you've got a right? MR PHELANE Yes I'm aware. ADV MEMANI That was discussed with you at Breton High School time. Is that correct? MR PHELANE Yes. ADV MEMANI I'm not blaming you in any way but I just want to clear this up that you are aware of such... ADV DE JAGER And you received the form and did you fill in the form and fax it to Cape Town? JUDGE WILSON That fax number on the back, is it a fax number, 021 233280? MR PHELANE That's correct Mr Chairman, that's correct. JUDGE WILSON Is that the... MR PHELANE It's the one I received from Cape Town when I phoned them. JUDGE WILSON That is the Amnesty fax number? MR PHELANE Yes. JUDGE WILSON When did you fax it? Oh the 21st of April '97? MR PHELANE That's correct. JUDGE WILSON It went to the Amnesty Office and they should have attended to it. MS THABETHA Mr Machaka deals with legal aid forms so I wouldn't know. JUDGE WILSON Well it seems that you did try Mr Phelane and that due to some clerical error somewhere it wasn't dealt with. Are you prepared to go on representing yourself? MR PHELANE I think so Mr Chairman, I want to get the matter over. JUDGE WILSON As I have explained to you, it's not necessary, nobody will draw any inferences against you if you do not put everything in cross examination, so I think you should only ask questions of relevant matters that you think this witness has perhaps forgotten to tell us about or should tell us about and as I have said, you will get an opportunity to give your version later. It's not necessary to put the whole of that to this witness in these circumstances. MR PHELANE Thank you Mr Chairman. When did you Mr Applicant join with the ANC's? In what year? MR MENERA It was late in 1985 if I'm not mistaken, it was in August or September. MR PHELANE In that year who was the actual leader of the ANC, the chairman and so forth and the youth and all such things? MR MENERA Are you referring to Brandfort or nation-wide? MR PHELANE The chairperson or the chairlady, whoever was in charge with the ANC during that time in 1985? Was there an ANC movement during 1985 at Brandfort? MR MENERA The organisation was known as Majesmasweyu Youth Congress. MR PHELANE Mr Applicant, are you not telling the Commission a lie, because don't you think that during that time all these parties were banned and restricted? MR MENERA I have explained Matemasu Youth Congress. MR PHELANE Do you know anything about COSAS? MR MENERA Yes I think COSAS is a student organisation. I was out of school at that time and I had nothing to do with school issues. MR PHELANE Did you ever attend a school? MR MENERA Yes. MR PHELANE Where. MR MENERA Brandfort. MR PHELANE Then how does it come that you don't know about COSAS? MR MENERA Let me explain this to you. I want to give you a very relevant answer. I left school, I think it was in 1982. During my school-going years there was no political organisation at all. MR PHELANE Let me ask just a few things. Do you know the students or the youngsters who were the leaders of COSAS in Brandfort during 1985? MR MENERA Which organisation? MR PHELANE COSAS. MR MENERA I have explained to you that there is nothing I will answer with regard to school matters because I was not attending school. MR PHELANE Do you remember the gangster which was informed you as (being) the leaders of it? MR MENERA I don't know which gangster you referred to. MR PHELANE Mr Mukalake? MR MENERA No I've never stayed at Mukalake's house but I know him. MR PHELANE Have you ever assaulted, stabbed Sibikhoto(?) with a knife in town? MR MENERA No I've never stabbed Sibikhoto, I hit him with a fist, I never stabbed her. MR PHELANE You still remember that in 1986 the Stealer(?) gang assaulted him in town? MR MENERA I'm referring to that day, I remember very well, he laid charges against me, he lied to the court that I stabbed him with a knife and yet it was not true. He was just lying, I never stabbed him with a knife, I just hit him with my fist. MR PHELANE You stabbed him with a knife the day you killed Batistang(?)?. Your gang killed Batistang that Saturday afternoon? MR MENERA No you are not telling the truth, I was in Brandfort on that day and there was nobody, myself or either any person among my group who assaulted Batistang. You have a right question but a wrong person, don't ask me because I was not there. MR PHELANE I am asking you because you were a gang leader of that day man, that year, because you had been harassing around there chasing people with pangas and so forth. That's why I'm asking these questions. MR MENERA According to me, there is nobody who was with me who could stand before the Commission and say Jack Phulu or Masala stabbed me with a knife. Among us, and I have indicated that there was conflict between myself and the other group but nobody will come and testify before this Commission that I stabbed them, nobody. JUDGE WILSON Were you not convicted of assault with intent to cause grievous bodily harm using a knife? MR MENERA No the case was dismissed because Sibikhoto was telling lies, he said I stabbed him whereas I hit him with a fist. MR PHELANE Are you not telling the Commission a lie ...(intervention) ? JUDGE WILSON We are talking about 1981. You were given a sentence to a whipping and seven strokes with a light cane. Do you remember that? MR MENERA Let me tell the Commission about that issue. JUDGE WILSON I just want to know, were you convicted of that in 1981. MR MENERA Yes and the person you referred to that I have stabbed him is the child to my brother, he's my cousin, so this was not politically motivated at all. At that time there were no political ...(intervention). JUDGE WILSON Nobody asked you if you, nobody asked you if it was political, you are now telling us you stabbed your cousin. Is that so. MR MENERA Yes. MR PHELANE During 1985 could you just tell who killed that comrade J J Khotweni(?). MR MENERA The question you are asking is right and it will answer itself. The person who killed JJ was arrested, convicted and sentenced. And he served his sentence. And I do not know him. I was not even present at the court. I did not even see him, but I know of such a person who killed JJ who was sentenced. MR PHELANE Who killed that young man Theunissen, Manganga? MR MENERA Who? I do not know. MR PHELANE Were you not with a gang went to Theunissen killing some of the comrades there. Were you in that group? MR MENERA No, I was in Cape Town when I heard that story. The people who can be in a position to give you an answer are the people who were in Brandfort and Theunissen, I didn't see it myself, so I will not give you an answer. MR PHELANE How many rape cases have been against you in Brandfort? MR MENERA I don't remember one of them and I don't have a record to that effect, and I'm going to request this. I will answer the questions in regard to what I did to you and your family. I'm prepared to answer such questions, but what you are asking me, I do not know and I do not want to give an answer, and I've never been convicted, I don't have a record to that effect. ADV MEMANI Mr Chairperson, as the state matter, the issue that Mr Menera is raising, is one that's been concerning me. I understand that we must be lenient towards Mr Phelane because he's a lay person, but at the same time there appears to be a danger that the applicant might be discredited unjustified. For instance we first do not know what his basis for putting these questions is, but it might be, and I'm simply speculating, it might be that he's trying to establish that Mr Menera is a person of criminal character and that he committed these acts out of pure criminality, however, at the same time we are not certain whether he's going to come and lead evidence and say these things as positive fact, and I would think that it might be better if it was brought to his attention that there are limits to what he can put and if he puts something he must be able or be prepared to come and substantiate it? JUDGE WILSON Well so far as I understand the questioning he hasn't put, he's asked if he knows of events, he hasn't said the applicant was responsible for any of these killings, has he? He's asked if he knows of them. But I do think we should know whether, are you going to be giving evidence about this? MR PHELANE No Mr Chairman, I ...(intervention) JUDGE WILSON What is the purpose asking these questions. MR PHELANE As my friend said here that I want to say that Mr Jack is criminal and so forth. The applicant said so many things which I don't about in his statement there, why should I be now saying that I can not mention some other things which I know about him. JUDGE WILSON Yes you've come to give evidence, but if you are not going to mention these in your evidence what is the relevance of them? MR PHELANE They will be mentioned in my ...(intervention) JUDGE WILSON If you're going to mention them then carry on. ADV MEMANI Should I understand that answer to mean...(intervention) JUDGE WILSON It's only fair, he's going to give evidence about these things, that he should put them to your client and he can try and answer them if he wants to. ADV MEMANI I'm not opposing the suggestion but I need clarification on whether, is he suggesting, should I accept it that he's going to lead evidence that Mr Menera killed the people he has referred to, that Mr Menera raped certain persons and is he going to tell us...(intervention) JUDGE WILSON Not necessarily, it can be relevant to lead evidence to show the tension that existed in that area, the gangs that operated there. If as he suggests the applicant was a member of a gang. We know only too well, with great regret, what gang warfare is doing to certain parts of the country today and the purpose may be for that. I don't know. As you know I have not consulted with this person at all, but where a person is unrepresented, it is very difficult to tell him to stop and then you later find that they should have put something and they haven't. And I can't see that up to now, your client has been prejudiced by the questions when he simply says he doesn't know about them. ADV MEMANI Mr Chairperson, I understand, but at the same time I feel as the representative of Mr Menera, that it is not fair to him that certain questions should be put to him about his knowledge of criminal activities, if the purpose is not to associate him or connect him with those activities, why else should we allow this line of cross examination to go on, I understand the concerns, I understand that Mr Phelane is a lay person, but I'm asking the Committee to sort of guide him on how he should conduct the matter. For instance, Mr Chairperson, I'm left wondering why we would sit and listen to a person simply asking questions about, do you know about the death of someone, do you know about the death of X,Y,Z? He has referred to a gangster, he has then said what the name of the gang was, he has then told us who the people that, he's not suggesting that the people who killed the people who he's referring to, were associated with the person. We do not know who the women who were raped are and all we have is this kind of innuendo that my client knows something about these rapes and that he was somehow associated with them. I don't think it could be fair to the applicant. JUDGE NGOEPE But Mr Memani, I mean you raised that point and you made your point and the Chairperson then addressed himself to Mr Phelane, you remember on two questions, twice he asked Mr Phelane...(intervention) ADV MEMANI What is the purpose of asking these questions? JUDGE NGOEPE And then later he explained to Mr Phelane how he should restrict himself to an extent that Mr Phelane sort of complained that, well I'm being restricted in saying things which I wanted to say, it was precisely because the Chairperson listened to your argument and then he tried as far as it can be done at a later stage to try and direct Mr Phelane what he shouldn't ask him and what he should ask. And thereafter, after he'd indicated the parameters to Mr Phelane, and he said well Mr Phelane, I've explained the parameters to you, then you can go ahead and ask the questions, and then he went back again to say, well can I ask you for clarification, does it mean, then we started, we went back again to start again from the beginning. Surely he understood the question to be that the Chairperson has indicated to Mr Phelane the parameters of those questions and the relevance thereof. And I think we should leave it and see whether that works. ADV MEMANI I'm indebted to you Mr Commissioner. JUDGE NGOEPE Mr Phelane you understood that the Chairperson explained to you that one can't just ask questions for the sake of asking the questions, of probing and so forth. You should ask questions about things which you believe are relevant and on which you are subsequently going to testify, and not just ask questions and then leave them hanging there if you are not later going to ask questions, to testify about those things. You must ask questions which you will be able to tie up as it were, when you give evidence, we shouldn't just tabulate questions here, did you kill Godoyi, no; did you kill people in Theunissen, no; and then they just remain there. If you ask those questions, if you want to ask questions, it must be questions which you will be able to come back to later in your evidence and substantiate. Do you understand? MR PHELANE I understand Mr Chair, I wouldn't just ask a person a question which I'm not going to clarify to him why I asked him that particular question. JUDGE NGOEPE It must also be clear to us why you are asking the question, the background of it. MS THABETHA Can I ask you a question. Is Mr Phelane comfortable with English? MR PHELANE Yes I am. ADV MEMANI Well you were at a point where you had asked about Theunissen. We had gone past that point, if we need to refresh you, I'm sure you will remember where you are now. MR PHELANE Mr Applicant, do you know anything about a Communist party which was in Brandfort? MR MENERA I know nothing of the Communist Party. MR PHELANE How do you know that I was a member of the ANC? MR MENERA I explained this earlier. That we heard this from you personally when you related the matter to us in 1986 at Grootvlei Maximum Prison while were detained under the state of emergency together with you. MR PHELANE being under the state of emergency Mr Chairman, does it mean that I was a member of the ANC or the Communist Party, because I was detained under the state of emergency. Is that how he put it? JUDGE WILSON As I understood his answer, he said you told them in Grootvlei that you were a member of the ANC. Is that what you said? MR PHELANE Why should you come and tell the Commission just lies here Mr Applicant? MR MENERA Which lies? MR PHELANE ...(indistinct) against me, just a bunch of lies. MR MENERA Mr Morgan Phelane, I'm sorry, if you ask a question, ask your question, then I'll give an answer. If you accuse me that I'm lying, I've mentioned so many things about you. Now be specific, say Jack you said this and this about me, then I'll give an answer to that effect. If you say I'm lying about you, about things that I've said here, I don't know which ones are you specifically referring to, because I am telling you personally told us that you are a member of the ANC/SACP. We heard that from your mouth. MR PHELANE Mr applicant, you know that when I was at Grootvlei, I was detained with Caleb Mustabi, one sided, not with you youngsters. JUDGE WILSON Was he detained with you or were the older people detained separately. MR MENERA He was in a single cell but during the exercise time we met with them. MR PHELANE Mr Chairman I'm very sorry, I do not want to come and waste the Commission's time here with a bunch of lies ...(indistinct). JUDGE WILSON You don't want to ask any more questions? Very well. MR PHELANE It's a waste of time. NO MORE QUESTIONS BY MR PHELANE JUDGE WILSON Do you have any questions? MS THABETHA Mr Chairperson before I proceed with my questioning, I think the best would be later on to just allow Mr Phelane to lead his story because I think it is difficult for him to separate...(intervention) JUDGE WILSON If he's going to give evidence, yes. MS THABETHA Yes, yes he is. CROSS EXAMINATION BY MS THABETHA MS THABETHA Mr Menera when you committed the act of killing Susan Phelane on 14th July 1991, were you a registered member of the ANC? MR MENERA Yes, at that time in 1985, there was no organisation issuing membership cards. To be a member of MAICO which is Matemasu Youth Congress, who would know you by merely attending meetings and your being active, then we would know, this is a comrade, but there were no membership cards issued for membership to those parties. MS THABETHA Are you talking about 1985 or 1991 or both? MR MENERA Which year were you referring to? MS THABETHA By 1991 when you murdered Susan Phelane? MR MENERA Yes I was a member of the ANC and since then I've been a member of the ANC. It goes back to 1985. Mr Morgan Phelane knows me very well. He didn't hear this from other sources. MS THABETHA Besides Mr Phelane, can anybody else who is an official of the ANC verify that you were? MR MENERA The whole community of Brandfort knows very well where Jack Menera belongs or which organisation he belongs to. ADV DE JAGER Have you ever had a membership card? MR MENERA Yes. ADV DE JAGER Have you still got one? MR MENERA Yes. I lost my membership card in Cape Town, I remember I received my membership card in 1991 and it went missing in Cape Town. I had the ANC Youth League membership card. I'm not just a street member, I am known member. ADV DE JAGER Don't give the whole history, I asked you whether you have got a membership card, and whether you've still got one and you told me yes you had one but you've lost it, and that's all I want to know. Didn't they issue a new one to you since 1991? MR MENERA No I didn't go for a new one. JUDGE WILSON Where was this card issued from? What branch? MR MENERA I was in Soweto, it was in Pimville(?). It is in Pimville Soweto, Klipspruit. MS THABETHA I'm asking you for the name of an official who can verify this because I since called the ANC officials and they didn't know your name and I spoke to somebody in the Orange Free State Branch, that's why I'm asking you if you can refer us to somebody who can verify that for us. MR MENERA Let me put it this way, the person who might give you clarity or the Committee my background is Comrade Nomsa Madikizela Mandela. The Commission will get my background. Winnie Mandela knows me and she will tell you about my political activity. MS THABETHA Maybe I should ask this question. What was your relationship with Winnie Mandela? MR MENERA Do you allow me to explain ...(indistinct) your question? MS THABETHA Reply to my question. MR MENERA I grew up in Winnie Mandela's home in Brandfort. Myself and Winnie would leave her place at night with packets of soup and maize meal and go and dish out for the elderly people of Brandfort, for instance widows, people who were struggling. Winnie Mandela was helping such people. Now Winnie and myself would leave her house on foot, get into the township and give these people these packets of soup and maize meal. We've been doing this since the 1980's. That is my relationship with Winnie. Moses Menera, whom I come after, also grew up in Winnie's house and Winnie took him to Transkei to attend school. He came back with his matric. My younger brother who comes after me, was raised by Winnie Mandela and he left and he died in Johannesburg and he was staying at Winnie' house. Now I grew up in front of Winnie. MS THABETHA Would it be correct to say you were living with Winnie, is that what you're saying? MR MENERA That's correct, but not permanently. I would sometimes go and spend the night there, and come back but there were days when I would spend nights at he home. MS THABETHA (speaker's mike is not on) MR MENERA No. Myself and the Mandela family are relatives. Winnie's husband, Madiba is Mulhomo, now the same with me, I'm Madiba. Now the structural functions that Winnie held were also attended by my family. MS THABETHA You said something about Edward Phelane having a gang. What I want to know from you is that how did this gang hinder the progress of the community or rather hinder the progress of the ANC in Brandfort? MR MENERA Sibikhoto's gang, I have early on explained that Sibikhoto, there was a bucket action and we took all the buckets and poured them at his home and he started forming a gang to fight against the activities of the ANC in the township. As I'm talking to you now, member of the African National Congress Youth League were assaulted by Sibikhoto's gang. Mention was made earlier on that we embarked on consumer boycotts not to buy in town and Sibikhoto was against these actions. As we stopped cars, his and his father's would never be stopped and inside he would be loading people who bought something in town and knew very well we were against these actions at the ANC. MS THABETHA I don't know, you are talking about Sibikhoto's gang. I'm talking about Edward Phelane's gang. Is that the same gang? MR MENERA Maybe I do not understand you well, Edward Phelane has another name, it's Sibikhoto, now Sibikhoto is a founder member of the gang that was against us. I have indicated that when the gang heard freedom songs, it would come and there would be a conflict between the two groups and the slogan would die and there would be a fight. JUDGE WILSON Do I understand from what you've just said, I may have misheard you, that he formed this gang after you started dumping buckets of sewage into his father's shop. MR MENERA The gang started acting, or rather he put members of the gang together and they started reacting against the ANC. JUDGE WILSON You were dumping buckets of sewage into his father's shop. MR MENERA That's correct. MS THABETHA You say a meeting was called where Mr Phelane made a remark that he was not prepared to talk to stupid people. To whom did he specifically make such a statement? MR MENERA He was telling two of our comrades that people were sent to fetch him. I think one of them if I remember very well, is Accused No 3, he is Patrick Maloyisani and among the people who came to Brandfort from Bloemfontein region, the people were requested to come and interfere, one of them is Sada Mutsabi who Mr Phelane referred to earlier on, he was one of the people who were present to come and interfere to talk to him because they were together in Grootvlei Maximum Prison in 1986. The meeting was called by the ANC. MS THABETHA The five of you? MR MENERA No. MS THABETHA In your evidence you said the objective of wanting to kill the Phelane's was to run the community smoothly. Can you mainly explain to the Committee members how was the community going to run smoothly without the Phelanes? Maybe to lead you, can you start by explaining to the Committee how the community wasn't running smoothly because of the presence of the Phelanes? MR MENERA I explained to your question earlier on that the that gang was hampering the activities of the ANC and we realised that these people are against the ANC. I've just made an example, a very small example of the Consumer Boycott. Lets say we have a consumer boycott and he approaches the people...(intervention) MS THABETHA I don't think you understand the question. I'm not talking about the gang. I'm talking about the Phelane family. You said you wanted to eliminate them so that the community can run smoothly. What I'm asking you, how was eliminating them going to make the community run smoothly? I'm not talking about the gang, I'm talking about the Phelane family, namely Susan Phelane whom you killed and Mr Phelane, just the Phelane family, not the gangs. JUDGE NGOEPE I think, let him complete his answer because the trend of his evidence is that associating the gang with the Phelanes. So I think that will complete the account of what he was telling us. Can I leave you to take it further from there? MS THABETHA Very well. MR MENERA The gang and Phelane are one and the same. They were terrorising the ANC in the township. Phelane knows politics. When there was a call from the top structure of the ANC, that all councillors should resign because they were the structure of apartheid, I believed Mr Phelane knows such calls very well and he knew very well that even he said he wasn't going to resign at all, there was going to be an action following up which was what happened his wife. He knew very well the consequences of not resigning, he expected anything to happen to himself or to his wife, because the two of them did not resign. We're now concentrating on their work as councillors. They created a gang to protect themselves and to reduce the activities of the ANC in the community. In full I can say your questions about the Phelane family, why was it so necessary to eradicate this. Phelane knew very well and he knew that he had to expect such an action. MS THABETHA I want to ask you a question now about the stabbing of Patrick Phelane in the shop. You say Patrick Molusani stabbed Patrick Phelane. Is that correct? MR MENERA Yes that's true. MS THABETHA When he stabbed him did Patrick Phelane scream or cry? MR MENERA He screamed. He was screaming, that's how I heard him whilst I was in the kitchen. MS THABETHA So it wouldn't be correct to say then Patrick Molusane mistakenly took him for a dog as you alleged earlier on? JUDGE WILSON He didn't say he mistook him for a dog. He said he said, this is a dog, which is a term of insult. MS THABETHA Oh I understood him to be saying that he thought he was stabbing a dog. JUDGE WILSON Not as I understood it. ADV DE JAGER But then why did he light the match to see whether it was child or not? If he realised it was a child and not a dog. JUDGE NGOEPE No no, I thought Mr Wilson has answered the question which was asked by the evidence presenter, when he said he was dog he was explaining that, let's say his father is a sell-out, therefore the slogan used by the ANC is that the dog must be killed together with its children, he was saying that he was a dog belonging to the Phelane family, do I think I've answered your question. MS THABETHA If I remember very well, you said you asked Mr Patrick why was he stabbing a small boy and then he said because it was dark he thought it was a dog. MR MENERA No maybe I put it differently, you didn't understand it quite well. JUDGE NGOEPE Well if that is really your answer then you should answer the question which was raised last by Adv de Jager, because if you knew when you came back from wherever, whether from the kitchen or wherever, if you actually were aware that Patrick was a human being and when Patrick said I'm stabbing a dog, if you understood Patrick to mean that he was stabbing a child of a sell-out, then you must explain to us why you lit the matches. MR MENERA The reason for me to light a match, I didn't see who this person was, who Patrick was stabbing, I have indicated that when we stabbed Susan Phelane the lights went off, and I am sure that Patrick himself didn't see what was happening, because when we entered the shop, this child Patrick, I didn't see him myself. I only saw his mother. I only came to know of his presence when I heard that there was a person crying in the shop and then I went back. JUDGE NGOEPE You're now saying that Patrick thought that he was in fact stabbing an animal. MR MENERA No. JUDGE NGOEPE Patrick knew that he was stabbing a human being? Are you saying that Patrick, when he stabbed a child he was aware that he was stabbing a human being? MR MENERA Yes he knew. JUDGE NGOEPE What was the purpose of your lighting matches, because you gave us the impression that in lighting matches you wanted to ascertain whether it was a human being or an animal. MR MENERA I must have put my point in a different way that you didn't understand it. JUDGE NGOEPE I accept that I didn't understand it but now I've made to understand it. I understand it, you can proceed with something else. ADV DE JAGER My note is that, I asked Patrick, who are you stabbing, he said a dog, I lit a match. I said no, you're stabbing a child, not a dog. JUDGE NGOEPE Mr Chairperson of the evidence has always been that the applicant heard a scream. He then went to the shop and it was dark, he struck a match and he then said you are stabbing a child. However there was not suggestion that Mr Patrick Malusane thought that he was stabbing an animal and the lighting was for the purpose of identifying the person who was being stabbed. That has always been my understanding of his evidence. MS THABETHA Can I comment for purposes of direction, can I suggest that we listen to the tape again because I had the same diction...(indistinct)the other set. JUDGE WILSON Let us go on, during the adjournment you can do that because we are going to be adjourning fairly soon. Continue now. MS THABETHA That's what I am suggesting, we continue. One last question Mr Menera, you say from Johannesburg you went to back to Brandfort and your intention was kill the rest of the family. Is that correct? MR MENERA That's correct. MS THABETHA If amnesty were to be granted to you today, and you are released, would you still want to pursue that intention? MR MENERA No. The reason why I am before the Commission today is to ask amnesty, not from the Commission but from Mr Phelane and his family and the community as a whole. What I have indicated that it was our intention. I think people have achieved what they wanted, there is no time presently for me to fight Mr Phelane or him to fight me, as he is doing. I'm telling you that the people in our township are still being harassed by Mr Phelane's gangsters. I was very happy to see him here because he will understand what I am [presenting before the Commission, because he knows very well that what I am saying here is the truth. The most important thing is this one. Mr Morgan Phelane made some mistakes, Mr Morgan Phelane has to forgive so that we can forgive him back, and I will take him to the community to ask forgiveness on his behalf. I have mentioned our comrades who had been killed by Mr Phelane's gangsters. Nobody was arrested but the parents know very well who killed their children. I am here and I am in Brandfort. I am prepared to intervene. I was expecting that people that I have referred to today like Christian Bosman, Billy, we know exactly what happened to them. We were also expecting that Mr Phelane himself or Edward Phelane would be standing here before the Commission asking amnesty. As people we would forgive him and then maybe he would forgive us. I am asking now, Mr Phelane, stop the attacks in the township or stop the attacks conducted by your group, because at the end of the day you are the only person who will be faced with all these things. I am here to ask amnesty, forgiveness from Mr Phelane in what we did to his family. JUDGE WILSON Aren't you in prison at the moment? MR MENERA Yes. JUDGE WILSON How long have you been there? MR MENERA It's about six years. JUDGE WILSON So how can you tell us what is happening in the township today? MR MENERA Judge Wilson there is a kind of situation. I requested my advocate that the forgiveness that I am going to ask from Mr Phelane should be done collectively as a group of people who committed these acts. The TRC gave my co-accused a date to appear before the Commission. I believe they will also come and give their version of the story an they're going to ask for forgiveness from Mr Phelane and his family. JUDGE WILSON Once again you have not answered the question but you can leave it. MS THABETHA No further questions. NO FURTHER QUESTIONS FROM MS THABETHA CROSS EXAMINATION BY JUDGE WILSON JUDGE WILSON I want to ask you some questions now. The trial court that convicted you heard the evidence of Patrick, didn't it? MR MENERA Patrick Malusasni or Phelane? JUDGE WILSON And Patrick told the court how he saw you stabbing Mrs Phelane in the neck with a knife and also near the left shoulder. You remember that? MR MENERA I remember everything that was said on that day. JUDGE WILSON And Patrick then said that you then came to him and stabbed him a number of times with a knife. But while you were stabbing him, the other two accused whom he recognised which included Patrick Malusani were breaking up things on the counter. MR MENERA This is an answer to your question. Judge Wilson I want you to understand correctly that the evidence that was given in court by Patrick is not true. If Patrick really saw what happened that day at the shop, Patrick would have seen who killed his mother JUDGE WILSON He saw you stabbing her. MR MENERA I'm explaining this to you. What happened at the shop on that day, on the 14th of July, Patrick was asleep and I believe that he woke up when he was stabbed and that he was stabbed...(intervention) JUDGE WILSON He woke up when his mother was being attacked, he gave that evidence, and let us go on now, keep quiet till I've finished. Mr Menera you then gave evidence to the court and told the judge that you stabbed Patrick. Do you remember doing that? MR MENERA I made an amnesty application because of murder but in the court I was convicted for attempted murder. I didn't tell the court the truth because if I had to tell the judge that Patrick Maloyisani committed such an act, we were going to be defeated. JUDGE WILSON Don't you forget Mr Menera that you gave this evidence after you had been convicted. It had nothing to do with your conviction, you had already been convicted when you admitted to the judge that you had stabbed Patrick because you wanted to frighten them, so he wouldn't recognise you. Do you remember telling the judge that? After your conviction. MR MENERA I am rightfully answering your question and I repeat at that time, or at the time before the judge was lies, the truth is what I told you here before the Commission. Let me give you a reason Mr Wilson, the reason why we didn't tell the truth in the court of law. As the ANC we didn't want to spend our days in jail. I there was in evidence specifically connected to me, it would be difficult to say no, it was myself and so and so, then we would go to jail in large numbers. As the ANC you commit an act and only one is arrested. That one person will have to stand on his own. Now Patrick was explaining that the three of us stabbed his mother. Allow me to tell you that Patrick Phelane didn't see anything. If he had seen something on that day he would have told the judge that Jack Mutlatsi and Cheetah stabbed my mother. I had to stand on my own and not involve the others because by not doing so the three of were going to jail because he claimed that I am Jack and I did those and I said well let me accept the accusation so that the other two can go out and carry forward the struggle of the people. I shielded in short Malusani and Mayani. JUDGE WILSON Were they not convicted? MR MENERA They were convicted. JUDGE WILSON How many years did they get? MR MENERA The other one was sentenced to three years and the other one 18 months. All of us could have been in jail still if we told the truth. Our strategy worked. JUDGE WILSON ....that's how you saved Patrick's life by taking him out of the building, remember that? MR MENERA Yes Patrick gave evidence as you will remember saying that he was left lying in the building when it was burning and he couldn't move, so his young brother ran out and fetched somebody. You remember that evidence? MR MENERA Yes. JUDGE WILSON ...the man Alfred Shlalea who gave evidence that he was called and he went in and found Patrick lying in the kitchen and took him out. You remember that evidence being given? MR MENERA Yes. JUDGE WILSON You're saying that they were lying? MR MENERA I repeat the evidence that was given in court is not the truth. We wouldn't stand against the witness, deep down in our hearts we knew the truth and the truth is what I'm telling you now, that Patrick could have died together with his mother in the shop or he could also have been killed by my co-accused and I repeat, I saved him. I stopped Patrick my co-accused. JUDGE WILSON That's not what he said, that's not what the man who fetched him out of the building said, is it. MR MENERA The Commission shouldn't base it's argument on that evidence, we agreed with some of the issues in court because I was shielding my co-accused. JUDGE WILSON I'm not talking about what you agreed with. Patrick would want to implicate the person who stabbed him. He wouldn't pick you so you could help your co-accused, would he? MR MENERA May I repeat, I say Patrick Phelane was stabbed by my co-accused, he was saved by myself and I dragged him outside and the person who said he found him lying on the floor in the shop is not the truth. The truth is he found him lying outside the shop at the door. If we left him in the shop nobody could have got into the shop because of the strong fire that we left behind. JUDGE WILSON Thank you I have no more questions. NO MERE QUESTIONS BY JUDGE WILSON JUDGE WILSON Any re-examination. ADV DE JAGER I want to put a letter to you written by the African National Congress. To Mr Phelane. ...(indistinct) What has been done to you is completely not in keeping with the policies of our organisation and one is ashamed to be informed that these things are said to be done in the name of the African National Congress. What's your comment on this? MR MENERA I do not know who wrote the letter. ADV DE JAGER Makgothi of the head office in Shell House. MR MENERA I do not know that Makgothi, I'm not going to base my answer on the letter. What I can tell you is that during our trial the advocate who represented us in court was the advocate sent by the African National Congress and present advocate who is defending me has been provided by the ANC. Now the letter that you've just referred to, I do not consider. I do not understand it and I do not approve of it's contents. ADV DE JAGER In court, your advocate, being sent by the ANC and you yourself said you never intended to kill Mrs Phelane, you only intended to discipline her, and there was no intention at all to kill her. So I could presume that that was perhaps the ANC's policy. MR MENERA I was so that in court before the judge because we were charged with murder. ADV DE JAGER Why were you supposed to say that in court, who told you to tell it the court. MR MENERA Let us understand the reason behind this. At that time we were defending ourselves against the murder case because we were afraid we would be sentenced to death. That is why we rejected the other evidence like arson, we rejected that in court because if we had agreed to that evidence the victims in the Phelane family, it was going to be clear they'd been killed by us. Now I have told the Commission the truth, the reasons behind our intention. I am now going to request my advocate to investigate about the letter that you have given. ADV DE JAGER ...(indistinct) of what you have done at that time, at the time when you have done it. MR MENERA If you follow my evidence during the trial...(intervention) ADV DE JAGER ...evidence during the trial, because ...(intervention) MR MENERA No Mr Commissioner I beg your pardon, I want to answer on the question you asked, because the same question was asked by the judge, Judge Menega. You have killed Susan Phelane, now what do you say to the Phelane family. I refused to ask forgiveness from the judge, I would never go out of my way and ask forgiveness from apartheid, as if we did our act without any knowledge or we didn't have any objective. I told the court, I said, Judge the question that you are asking me, is a nice one but I'm not going to ask for forgiveness from Mr Phelane, and he asked me if they were to release me now would I go back and attack again and I answered that very easily I said I'm not at loggerheads with Mr Phelane, I'm answering the question he asked whether I am proud of what I did. My answer is no, I'm not proud of what I did. I wanted to explain that such a question was raised but I refused to ask forgiveness but the reason to appear before the Commission now is that we are asking forgiveness and amnesty and you should understand the reasons why we committed that act. ADV DE JAGER I can understand that but I think three big men, to attack a woman and a child, that's cowards. MR MENERA That is how you perceive it Sir. We were supposed to do anything to anybody who was against us at that time. JUDGE WILSON ...adjourn now till tomorrow morning. MR MENERA I just have a question, will I be needed tomorrow morning? MS THABETHA Yes you will be needed tomorrow morning because Mr Phelane is still going to give evidence. JUDGE WILSON Well you wanted to go and check with something on the tape and then ask him about that too as I understood. MS THABETHA Yes. COMMITTEE ADJOURNS JUDGE WILSON I notice that Mr Phelane is no longer sitting with Counsel or the lawyers appearing and that his place has been taken by someone else, could you please place yourself on record? CROSS QUESTIONING BY MR VAN DER MERWE MR VAN DER MERWE Mr Chairperson I am Andre van der Merwe and I am representing Mr Phelane, and I have been appointed by the legal aid board. My instruction was that the hearing will start today which is the 14th, I wasn't alerted to the fact that it could be starting on the 13th. I give my apologies to the effect to the Committee and I have consulted and I would like to proceed in cross examining. JUDGE WILSON Yes unfortunately we asked Mr Phelane yesterday as to whether he had a legal representative and he said that his application has not been replied to, so there was misunderstanding and we are sorry that you were not informed timeously that the matter might be proceeding yesterday, but I gather you have had a chance of listening to the tape recording of the evidence given by Menera yesterday. MR VAN DER MERWE Indeed Sir. JUDGE WILSON And we will obviously have regard to the fact that you weren't here, you didn't hear it and if you have any problems, just let us know. MR VAN DER MERWE Indeed Sir. Mr Chairperson if I can say I have listened to the tapes till the end of Evidence in Chief, I would say, if it happens that I do ask questions which have been asked in cross examination, I tender my apologies before hand but I will proceed if... JUDGE WILSON Well my notes of cross examination which are not in detail are one and a half pages, so I don't think you will repeat a great deal. MR VAN DER MERWE I'm indebted to you. MS THABETHA Mr Chair can I say something? I just want to place it on record that last night I got a message, rather a call from a Miss Patience from the Johannesburg TRC/ANC desk, who has confirmed that Mr Jack Menera is an ANC member. JUDGE WILSON Do you know the person who spoke to you, can you confirm that that person is a responsible member of the ANC and authorised to speak on behalf or that organisation. MS THABETHA Well usually I speak to the person, I deal with her when I deal with ANC matters, but I asked her to put it in writing and fax it to me. JUDGE WILSON But it is someone you have dealt with in the past? MS THABETHA Yes. JUDGE WILSON What I'm getting at, this isn't a stray telephone call from some unknown person. It is someone you have dealt with in the past..? MS THABETHA Yes. JUDGE WILSON ..when making contact with the ANC MS THABETHA With the ANC, yes. JUDGE WILSON Thank you. That will be recorded then. MR VAN DER MERWE Mr Chairperson may I proceed? Mr Menera in your evidence you stated that at the time and during 1985-1986 you together with Mr Pehlane and that you were held in prison. Is that correct? MR MENERA That's true. MR VAN DER MERWE And you then further testified that you were shocked to be told by Mr Phelane that he was being released within a week. Is that so? MR MENERA Yes as we were arrested with him he told us that next week he will be released from prison. MR VAN DER MERWE And you further testified that he indeed released prior top you, all of you, is that so? MR MEMANI The evidence is that he was indeed released at about the same time. The evidence didn't go to say that he was released before everybody was released. In so far as before was concerned, the evidence was Mr Phelane was released before Mr Menera was released. ADV DE JAGER It is in fact that he was released before the applicant. MR MEMANI That is correct but the statement being made now, that is being put to him is that he said that Mr Phelane was released before everybody else was released. JUDGE WILSON He didn't say everybody else but he did as I understand it say he was released three months before the others. Three months before the applicant, the applicant's evidence was, we were released after three months detention. MR VAN DER MERWE Thank you Mr Chairperson. Mr Menera during that time you said that the conversation took place of the early release of Mr Phelane in jail, is that correct? MR MENERA Yes that's true. MR VAN DER MERWE Were you all kept in one common cell? MR MENERA No. He was in a single cell together with a few other comrades and we were staying in other cells with other comrades. MR VAN DER MERWE But Mr Phelane was in a single cell, is that correct? MR MENERA That's true. MR VAN DER MERWE I wasn't aware that an Afrikaans interpreting facility was available, I'd like to switch to Afrikaans. Where did this conversation take place? MR MENERA This discussion took place in this way. As we were still with Mr Phelane in Brandfort, when he told us that next week I'll be released, that exactly happened. We asked ourselves that how did Mr Phelane know that he was going to be released. Where did he get this information because the comrades who were detained there in June 1986, no one knew when he was going to be released. We were in the back all the time. They will just call you and say you are released. We take that as luck, but what I'm explaining is that we were surprised that how did he know that he was going to be released. MR MEMANI The question is I think, seeing that Mr Phelane was kept alone in a separate cell, where did he tell you about his early release because you were not in the same cell?...(intervention) JUDGE WILSON In Brandfort he said. MR MENERA I did explain yesterday that Mr Morgan Phelane was arrested in a single cell but during the time for exercises we used to meet with him. Even yesterday I did explain it that way. JUDGE WILSON A moment ago I think you said, my recollection is, The discussion took place as we were staying with him in Brandfort. You said that about two minutes ago, The discussion took place as we were staying with him in Brandfort, he told us he would be released in a week. MR VAN DER MERWE Indeed so Mr Chairperson. JUDGE WILSON ... it took place while you were exercising in Grootvlei Prison. JUDGE NGOEPE I must say that if that was the interpretation then there must have been a misunderstanding between the interpreter and the applicant, he did not in his language say that the discussion took place in Brandfort. He started, instead of giving a direct answer, he started going back to give a long history as to how they came from Brandfort etc, etc. But certainly he didn't say that the discussion, the information was given in Brandfort. JUDGE WILSON Thanks. MR VAN DER MERWE Chairperson I accept that, I'm indebted to the chair. JUDGE NGOEPE I think that try as far as possible to be brief and to the question. You see you have this tendency of coming with long stories before you get to the point. that is why these types of confusions arise, and chances are that more confusion is likely to arise in future if you are going to answer in that style. MR MENERA Thank you Sir, I will try to make this way. There are questions that this question wants yes or no but you find that there are questions which need further explanations so that the person who's questioning must get to the real answer and the background of that answer. MR VAN DER MERWE Mr Menera if I understand your testimony correctly, at that time, I'm now talking of this arrest under the state of the emergency, if I've understood correctly then your evidence was that Mrs Phelane was a leader figure and that she belonged to the Youth Unit, is that correct? MR MENERA That is true. MR VAN DER MERWE Mr Phelane will when he gives evidence testify that he was considered to be a leadership figure, and it was for that reason that he was placed in a single cell, and he was not allowed at any time to have any kind of contact with any of the other persons who were arrested with him. MR MENERA I mean to answer shortly. May I answer? what is said by Mr Phelane, it is true because he had been placed in a single cell. I still repeat this answer. We were meeting with him during break time as we would meet, though we sleep in different cells but during the exercise time we would meet. That was the position, it was only myself but we were not only the two of us who were arrested but many comrades who were arrested who knew him, who knew his cell. I have many comrades right inside this sitting who'd testify how I knew Mr Phelane. How did we meet in a single cell? He will answer that we used to meet him during the exercise time. MR VAN DER MERWE Mr Phelane will deny that after six months of imprisonment only was he released. In other words this was long after the three months mentioned earlier. MR MENERA I would answer you this way. It is a lie, that is a blue lie that he would be saying, if he's going to say that way. because Morgan Phelane left me in prison. I stayed in prison for three months, that is June, July and August. All the comrades who belonged to Brandfort youth, we were released in August. We found Morgan Phelane outside, he must not come here and tell that he was detained for six months because that is a blue lie. MR VAN DER MERWE During the time in which you were in detention, and Mr Phelane was also in prison with you, is it correct that his deceased wife Susan regularly sent food and money, not sent, but brought food and money for all those in prison. From her people she brought this to those in prison. Is that true? MR MENERA Let me answer this way. I want to ask a question, I want to understand your question correctly. I said to you were more that 100 comrades who were detained. Then you're saying Susan Phelane was bringing food and money to all the prisoners. I want you to be specific on that question. That money and food, where they directed to? I want to when I answer you, I've got to understand your question correctly. MR VAN DER MERWE Just to summarise, she was merely a courier then who on behalf of the people of Brandfort, on a regular basis then took food and money and other consumable items on the instruction of the people of Brandfort. Is that correct? MR MENERA I want to answer in this way. As Jack Menera and together with my co-detainees from Brandfort, I don't remember one of them who said, Susan Phelane has come today and brought a bag of tobacco. I don't talk about money or food, that is a lie, there is nothing like that. To my knowledge, that time during the state of emergency, there was no food allowed from outside. Only money was allowed to come in and we would use that money to buy food on our own. What Mr Phelane's saying is a lie. MR VAN DER MERWE During your evidence you referred, and if I can just point it out. Perhaps I'm not using the right words, you can point this out to me, that the son of Mr Phelane was arrested along with other people in a house where there was dynamite. Is that correct? MR MENERA I don't want to think of your question and answer a different way. I hear you but I don't understand you, can you try to clarify your question so that I should answer you correctly? JUDGE WILSON Do you know that Mr Phelane's son was arrested in a house where dynamite was found? MR MENERA What happened is that I did explain yesterday, that the son to Mr Phelane, we went from Brandfort to Virginia. They went to fetch dynamite, then they were arrested and then Sibikhoto was not arrested and he was a state witness because he left Brandfort to go and fetch those explosives from Virginia, then he returned with them to Brandfort. So that is my testimony because what I'm saying is on the record and if you want the records of those cases you will find that Edward Phelane was the state witness against those two comrades from Virginia. If I remember well it's 1986. Those comrades were sentenced, then they were put in Grootvlei Maximum Prison. One of them is Seth and his brother was Ten Percent. Those were the people who were sentenced by the evidence given by Edward Phelane who gave it in court. I think I've answered your question. MR VAN DER MERWE Are you saying that in that case it was testified by the son of Mr Phelane...(intervention), ADV DE JAGER If I can help you, his name was Edward, MR VAN DER MERWE Thank you Chairperson, Edward, it was testified by Edward that he went to fetch these things in Virginia. MR MENERA Let me tell you shortly. I'm saying Edward Phelane became the state witness in this case. I wasn't present during the court case. What I heard from the comrades is that Edward Phelane is a state witness in that case. JUDGE NGOEPE Just try to speak Sesotho. MR MENERA Alright. Thank you Sir. MR VAN DER MERWE Edward was at that time a Taxi owner and an active taxi driver, in other words that was his work? MR MENERA Yes he was a taxi driver. MR VAN DER MERWE Is it correct that you have told everything about the dynamite and the arrest and that you heard everything about this from your colleagues? MR MENERA Shortly the way I was told by my fellow comrades such as Seth and Ten Percent, and other comrades who were not arrested and attended the case, those are the people who gave me that information. MR VAN DER MERWE In other words you only heard all of this? MR MENERA It is as I have explained, I only heard from my comrades. I just want to understand, there was nothing happening in the Youth League which we could not understand that who did what. MR VAN DER MERWE Thus you don't know what the evidence was which was given in court. You didn't hear this yourself and therefore you cannot give evidence on it? Is that correct. MR MENERA It is like that but the point is as I've explained there was nothing which would happen by one of my comrades which was not known. So Seth and this Ten Percent, we knew them as comrades, therefore what happened to them we had to follow so that we should enquire and find out what happened to them. MR VAN DER MERWE You also testified that there was another incident where dynamite was found at the home of Mr Phelane and he was not prosecuted. Is that correct? MR MENERA That information I got because it happened whilst i was in prison. MR VAN DER MERWE ... in 1991? MR MENERA I think I was attending this Phelane case. I remember the first time I heard about this. I heard it from the police who fetched me from prison to take me to the magistrate court. That is Mr John Tauw(?), that is the person who informed me that they have arrested Mr Morgan Phelane with explosives which were found in his home or at his shop, I don't understand whether it was in his shop or at his home. I asked from the comrades in Brandfort, I asked them as to whether I heard this kind of thing as to whether Mr Phelane was arrested with explosives, so the comrades told me that they heard that Mr Morgan Phelane was arrested with explosives and he was never trialed for that. MR VAN DER MERWE If I understand correctly in both of these cases, the first case when the dynamite was found and the second case when dynamite was found, you believed what was told you? MR MENERA I want to tell you something. I would not agree with anything which I was told by my comrades who would just say somebody is like this. I would accept what he tells me as a comrade. MR VAN DER MERWE The question is merely the following. Did you accept this information to be the truth, this information coming from your comrades, did you accept it as the truth? MR MENERA I did explain before that I would not doubt what I am told by my comrades but firstly after that I would investigate that kind of information to verify as whether it is the truth because I heard from the police and when I was in court I met my fellow comrades and they verified that that was true. MR VAN DER MERWE Do I understand you correctly, any information then which was given to you by your colleagues, you investigated afterwards to acquaint yourself of the truth? Is that correct? MR MENERA I would not explain in a different way more than I did explain. MR VAN DER MERWE The question I just want to ask is, you didn't just accept what was told you to be true, you went to investigate it, always? MR MENERA I did explain to you that for the first time I heard this allegation I heard it from the policemen. After that I went back to the comrades to enquire as whether this has happened. I want to tell you something. In Brandfort, it is a small township. We would know everything that happened last nigh, even if we didn't see. If somebody did something during the night, in the morning we will know. There was nothing that happened which we didn't know. MR VAN DER MERWE I'm going to repeat my question. If I've understood the evidence correctly, you according to your own evidence, after any particular incident, and you'd been informed about it by your colleagues, you went to investigate it to confirm whether it was true or not? Or are you saying something else now? MR MENERA Let me try to give you this answer, maybe you will understand. The first thing, I didn't have that right to go and investigate in the first place from the police as to...(intervention) JUDGE WILSON Mr Menera he is not asking you about this one incident. He asking you what your normal practice was, because you told us three minutes ago that I believed what somebody told me as a comrade, I would investigate such information to discover it was true. You have been asked by Counsel, was that your normal practice? If you were told something would you investigate to see if it was true? MR MENERA That's correct. MR VAN DER MERWE I'm indebted to you Chair. Therefore I can then accept that you wouldn't just merely act on information given you, but you would take this a step further ? ADV DE JAGER Mr van der Merwe I think you can accept that he is saying that he received information and then he made certain, or didn't make sure but he tried to verify the information afterwards. ADV DE JAGER I'm again indebted to the chairperson. Am I correct Mr Menera. MR MENERA Yes you are correct Sir. MR VAN DER MERWE At the time of the second case involving dynamite which you testified about in '91 and '92, you also testified that you heard about this. You mentioned that you were in prison at the time, is that correct or not? MR MENERA Are you referring to the arrest of Mr Phelane because of the explosive? I heard you talking of 1991, I want your questions to be very straight Sir, I want to answer you straight. Now I would appreciate if your questions are very clear and straight so that I can give you a relevant answer, because like the question that you are asking now, I do not know which answer to give because you say there was a dynamite issue in 1991, what are you actually talking about? ADV DE JAGER He's talking about the second dynamite charge against Mr Phelane, the second instance of dynamite found at Mr Phelane's house, he's dealing with that matter and he's asked you, when that matter came before the court, were you in jail at that time and that's what he wants to know? MR MENERA I indicated already that I heard this from a policeman who transported me to court from prison. MR VAN DER MERWE Mr Menera, you testified that according to your understanding this case was withdrawn against Mr Phelane, is that correct? MR MENERA Yes and that is my knowledge. We were arrested and I wanted to know the end of this case because I was in prison but my comrades told me that they do not know what happened to this case. All this information was said to me while I was in jail. JUDGE NGOEPE Mr van der Merwe, really what is this story about this case? Are you wanting to put it to the witness that Mr Phelane denies that he was ever arrested with that? In which case you can just simply put it him or deny that the case was withdrawn against him, in which case you can just simply put to the witness. I mean we are talking with somebody who was in jail during that time. MR VAN DER MERWE I'm indebted to the Chair. That is what I am trying to get to. Mr Phelane will come and testify that the case did in fact continue, that he was found not guilty, he used the attorney company Webber and Webber in Bloemfontein and he instructed them to assist him in this case. Advocate Laubscher was the person who defended him. ADV MEMANI Do you have any comment on that Mr Menera? MR MENERA I don't want to stand against him and I am happy to hear that it is true he was in possession of dynamite but the case was dismissed. Let me just leave it there. JUDGE NGOEPE I think just leave it there. MR VAN DER MERWE Thank you Chairperson. During your evidence you testified that Edward had stormed on a group of school children with his vehicle at a high speed. Is that correct. MR MENERA Yes it is true. Edward Phelane did such an act. MR VAN DER MERWE The reason that you have given is that he didn't like the song they were singing. Is that correct? MR MENERA: Yes they were against the freedom songs. JUDGE NGOEPE Who were against the freedom songs? MR MENERA Phelane and his gang. MR VAN DER MERWE The gang to whom you are referring, who were the members of that gang? I'm speaking about Mr Phelane's gang? MR MENERA Rabana Mudsi was a member, Dada was a member, Bhuda and the second Bhuda, Koliki and the other who I do not know their names. But the ones I've mentioned were the co-leaders in this gang belonging to Mr Phelane. MR VAN DER MERWE Mr Phelane will deny when he testifies that he ever had such a gang. I'm referring to Mr Morgan Phelane. ADV MEMANI When Mr Phelane is referred to it's Morgan Phelane, and Edward Phelane is referred to as Edward Totsidikhoto Phelane. MR MENERA I do understand that Mr Phelane is going to stand against the issue of owning a gang, but let me shortly tell you this. He was unfaithful to the community and there is nothing that he's going to say here that will appear as truth to the community. Everything that happened to him was because of not having faith and he was not trusted by the people. Those who knew him as an activist, I told you already that they knew him as a member of the ANC, but what he was doing in Brandfort, is a different story, they led to the incident that took place. When he comes here and says Jack you are lying, I won't stand against him because since long ago he has not been faithful. It's not going to surprise me when he appears here and says everything I'm saying is lies. JUDGE WILSON Mr Menera you have frequently, when you have given evidence, spoken about the community as if you can speak on behalf of the community, that is so is it not? MR MENERA Don't lose temper with me please. I want to explain this. I was asked a question by the judge as to whether I ask for forgiveness from Mr Phelane. I said shortly, no Mr Morgan Phelane did wrong against the community, that is what I said to the Judge. I'm not speaking on behalf of Jack Menera, I am standing here on behalf of the ANC and the Youth League as the whole. I thank you. JUDGE WILSON Was Mr Phelane a councillor? MR MENERA That's correct. JUDGE WILSON Was he elected a councillor in 1991 by a majority of members of the community? MR MENERA No he was not elected in 1991, he was elected in 1988. JUDGE WILSON Was he re-elected in 1991 or there abouts? MR MENERA He was not re-elected and in the democratic elections of 1995 again he was not chosen. If he really was qualified as a councillor he would have been elected again, so it means he was not right to the people at all. That is why at this moment he is not a councillor. He could have taken part in the 1995 elections but people did not elect him because they knew his past experience. MR VAN DER MERWE Mr Chairperson, I would like to put it clearly that Mr Edward Phelane will also deny that any such gang existed. Mr Edward Phelane will also furthermore deny that there had ever been an incident in which he was driving his car and steered it into these pupils and that he had any problem with the songs that they sang. ADV DE JAGER Mr van der Merwe, I would like you to help me. The dispute in this issue, is it not the fact that Mr and Mrs Phelane were members of the township's board or the council. And the fact that they were members of the council didn't carry the approval of the ANC? It was contrary to the policy of the ANC at that stage that people should serve on these kinds of councils and as a result of the fact that they did not wish to resign, some of the members of the ANC decided that they should be forced to resign, and that that forcing them which was exercised ultimately led to the death of Mrs Phelane and the souring friendship between the other Phelanes? And is that not the route of this whole matter and what lies at the basis of the amnesty application and that all these other aspects are really side issues when seen against the real matter which we have to decide on today? MR VAN DER MERWE Chairperson I'm indebted to you. The applicant has interwoven the two. He has the one aspect relating to gangs and then the fact that they were officials of the community. I don't intend staying on these points for long, it's just to try and bring these two aspects together. Mr Menera, you have testified that the Bloemfontein branch visited Mr Phelane in order to try to convince him to stop from being part of the council of Brandfort. Is that correct? MR MENERA Can you please repeat your question? MR VAN DER MERWE You've testified that members of the ANC, the Bloemfontein branch of the ANC, visited Mr Phelane and his wife to try to persuade them not to be part of the council of Brandfort any more. JUDGE NGOEPE May I clarify the evidence of the applicant. His evidence was that they communicated with Mr Phelane about their desire that Mrs Phelane should resign. It was not his evidence but they revisited Mr and Mrs Phelane to discuss the resignation of Mrs Phelane from the council. MR VAN DER MERWE Mr Chairperson, I stand to be corrected, but if I recall correctly the evidence when I was listening was that members of the ANC branch in Bloemfontein did in fact visit Mr Phelane. MR MENERA Maybe you understood it differently. Let me tell you this. As the ANC we called the regional office in Bloemfontein to go to Brandfort where we would ask Mr Morgan Phelane together with his wife to attend that gathering so that they could be convinced to step down. That is what I said. ADV DE JAGER And did they come to Brandfort? MR MENERA They did come to Brandfort. MR MENERA Please don't interrupt him if you're not sure about it either. JUDGE NGOEPE Mr Commissioner I am certain what the witness is saying is different to what was put to him by Mr van der Merwe. MR VAN DER MERWE Mr Menera who were the people from the Bloemfontein branch who went to see Mr Phelane? MR MENERA Sammy Mutsape was one of them and the other comrade who was with him but Mutsape was one of them. MR VAN DER MERWE You have given evidence that the firs step was to use the buckets, the night buckets at the shop or house of Mr Phelane to empty these buckets there, was it the shop or the house? MR MENERA It was at the shop Sir. MR VAN DER MERWE And your evidence was that these night buckets were emptied in the shop. Is that correct? MR MENERA That's true. MR VAN DER MERWE Mr Morgan Phelane will testify that the buckets were not emptied in his shop, but that these were put down in front of the shop and that the people involved with this were members of SANCO. Do you have any comments on that? MR MENERA I want to answer your question precisely. I said to you we took those buckets and spilled them at the shop. What he is saying is that they are members of SANCO who did that. He's not wrong, he's right because all organisations they fell under SANCO. In SANCO there are members of the ANC, there are members of AZAPO, there are members of PAC and Inkatha and all political organisations fell under the umbrella of SANCO. As he says that members of SANCO did that he's right. So which means the community did that, not the way he was thinking, it's the community who did that to spill those toilet buckets at his shop. We were ANC, AZAPO, PAC and all people who were residents of that community. He is right when he says it's SANCO. MR MENERA Mr Morgan Phelane will further testify that it concerned the consumers' boycott and that it had nothing to do with his serving on the council. MR MENERA Let me answer you in this way. Maybe you don't understand the politics of that day in the same fashion. He was an ANC member. For him to be a councillor he was guilty. That is the first fact which I want you to understand. For him to be a councillor, that was the beginning of his unfaithfulness despite what he has done before but the strong point was that he was a councillor and that was a problem. You know well that he was an ANC member, which means that he was a member of SACP, he knew politics. Mr Morgan Phelane said something in the Truth Commission in the Human Rights Violations that he has been encouraged by Winnie Mandela to be the councillor. I want to challenge what he said, that he must come and explain that before this Commission that Winnie Mandela encouraged him to be the councillor. He could have come before the community because we encouraged him many times that he should step down, many times. He didn't agree with us. I learned last year during the Truth Commission Human Rights Violations that he was encouraged by Winnie Mandela to be the councillor. I want to say he is lying. If Winnie Mandela can be asked she would deny that she encouraged Mr Morgan that he should be a councillor. If Winnie Mandela could have been at Brandfort, Winnie Mandela could have been the Accused No 1 and I could have been Accused No 2, because Winnie Mandela didn't want and informer and together with all the leadership of the ANC there was nobody who would be happy to associate himself or herself with an informer. MR VAN DER MERWE Mr Menera at the beginning of your evidence you testified that Mr Phelane was regularly visited by you during the 80's to inform you of which house you should burn down or identify it and then to ask him whether it is the right thing. MR MENERA I'm sorry? MR VAN DER MERWE Is it correct that you testified at the beginning of your evidence that when you were still on friendly terms with Mr Phelane during the whole youth movement that you regularly, or you and the comrades regularly went to Mr Phelane to find out from him whether this house could be burned down or whether something else must be done against the government. Is that correct? MR MENERA Yes. MR VAN DER MERWE Did you go yourself? MR MENERA That's true. MR VAN DER MERWE In other words you thought it was necessary to find out from the leaders and to have peace of mind that what you're going to do carried their approval. Is that correct? MR MENERA Yes it depends which kind of act you would require from whom. There were things which we did on our own volition as the youth, there the things before we'd do we'd go to the leadership and enquire about a certain problem so that they would help us with the solution, but there were things which we would do which didn't meet the approval or the advice of the leadership, then we would approve of that thing and do it on our own. That is my answer to that question. ADV MEMANI Mr Chairperson may I request the applicant to repeat his answer? JUDGE WILSON If he can remember it. MR MENERA What I'm explaining is that there were things, we'd say that we have a problem, there were things which we would enquire or look for direction from the leadership, and again there were things which we as the youth would use our own discretion, like as we did we just decided on our own that we should not look for advice from the leadership. Like for example in this incident we did it on our own discretion. MR VAN DER MERWE Mr Chairperson I notice that its nearly the customary time, perhaps this would be a good opportunity. ADV MEMANI Mr Chairperson I ask this question because I have some doubts as to the correctness of the interpretation of his initial answer and am wondering whether you are accepting the second answer as the correct answer or whether you have in mind what ...(intervention). JUDGE WILSON Well tell us what the mistake was. What you say you had doubts about the interpretation. How was it misinterpreted, tell us? ADV MEMANI I didn't understand him to mean that, well Mr Chairperson to mean what was interpreted I can't recall what the exact interpretation was and that is why I asked the answer to be repeated. JUDGE WILSON Basically it was that we would consult with the leadership about something but the self defence units would do other things which didn't need leadership approval or consultation and we would do it on our own. ADV DE JAGER The only difference was that in the second, when he repeated it he said the youth and not the SDU. ADV MEMANI I'm indebted to the chair. COMMITTEE ADJOURNS ON RESUMPTION JUDGE WILSON Right we can now continue with this matter. MR VAN DER MERWE Chairperson before I continue with my questions, it is my instruction from both my clients that they do not intend testifying. I also have a further instruction to only ask a few questions to the applicant. ADV MEMANI I beg Mr van der Merwe's pardon. If the victims now do not intend to testify, on what basis may we continue to cross examine him. I believe that the cross examination was allowed on the assumption that the victims were going to come and be cross examined on the things that they have put to the applicant. JUDGE WILSON No one cannot attach any weight now to what was put to the applicants on the basis, the victim will say, because he's not going to say it, but someone objecting to the grant of amnesty is entitled to question the applicant and the victims are objecting, as I understand it and are still objecting to the grant of amnesty. It does not of necessity mean that they must give evidence. ADV MEMANI Should I understand therefore that the cross examination now will be limited to a kind of testing of the version without putting matters to the witness. JUDGE WILSON He can put a great deal to the witness that is history, that is common knowledge, that has been said by others publicly. He cannot put something that he says that the witness is going to say if he's not going to call that witness, but you know very well when you cross-examine, you say, how can you say that, it was announce two years ago that this was going to happen. How can you say that, you know we had a change of government. ADV MEMANI As the chair pleases. JUDGE WILSON Carry on. MR VAN DER MERWE I am indebted to you Chairperson. Mr Menera, you testified that the reason why you committed this act was to show that the ANC, in your own words is alive. Is that correct? MR MENERA That's correct. MR VAN DER MERWE Did you, or let me rephrase that. What made you think that the ANC would ever agree to something like that, approve of something like that? MR MENERA The question is simple. What I was explaining is that the ANC or what was done by ANC which was an obstacle to those objectives, we as ANC members we should remove that obstacle in front of the people or the movement. The organisation was fighting for the people and whatever was an obstacle to those objectives should be removed from the activities of the ANC so that the ANC should operate smoothly. That's what I meant. MR VAN DER MERWE If I understand you correctly, you say that the ANC would have approved this act? MR MENERA Yes as now it is supporting me with that act which I committed. MR VAN DER MERWE In other words you are saying that you acted out of your own accord and you were convinced that this act, namely the killing of Mrs Phelane and also attacking her 13 year old son with a knife and also attacking her other son with a knife and then also burning her shop and then also burning her son's motor vehicle, that the ANC would have approved that? Is that what you are saying? MR MENERA I want to answer you directly because I understand your question. Firstly I want you to understand that there was a call from the ANC that councillors should step down. That call was not made by Jack Menera, it was made by ANC. I want you to understand that where the call came from, that these people should step down as councillors. For us to negotiate with him that he should step down, we were not doing that on our own accord but were doing that on the direct instructions of the ANC. I think I've answered your question. JUDGE WILSON Could I come in here and say that I want you to explain to me. As I understand your evidence before us, there was no intention when you went to that place of causing any harm to this little boy. Is that correct? MR MENERA That's correct Sir. JUDGE WILSON You yourself did not harm him in any way? MR MENERA Yes I protected him, as he is still alive today. JUDGE WILSON That as soon as you realised that Patrick Moluisani was attacking him, you stopped him? MR MENERA That's true. JUDGE WILSON So you were clearly not guilty in any way of any attack on this boy Patrick Phelane? MR MENERA Yes Sir. JUDGE WILSON Carry on. MR VAN DER MERWE I am indebted to you Chairperson. The reason why you launched this attack on the Phelane family was to let you progress and to make Brandfort a better place for you too. Is that correct? MR MENERA You will forgive me Sir. In regard to the question you asked, I want you to repeat the question Sir. MR MENERA The reason why this attack had to take place was in order for the community of Brandfort to move forward, to progress and so that that it could be made a better place for everyone and yourself included? MR MENERA That's true Sir. MR VAN DER MERWE How did you think that you would, after it had become known, that you and these other four members of the Self Defence Unit, that you were responsible for this attack, how would you have fitted in with Brandfort's future plans? MR MENERA We saw that we were not able to continue with the future plans of ANC because ANC could not operate freely whilst Mr Morgan Phelane and his gang were still alive. That is why we decided that Morgan Phelane, Susan Phelane and the people I've named should be removed. MR VAN DER MERWE My question to you was also, how would you and your four colleagues have gained any benefit from this? MR MENERA The benefit you are asking me about or the benefit of what we were fighting for, I think is the present government which we have now, which we live under, that was the benefit. We wanted to achieve on behalf of the community. We were fighting for this government which is governing myself and you today, and the reasons for doing all those acts is that those people or that the Phelane family were supporting the previous government which was segregating people. I think I've answered your question. MR VAN DER MERWE No my question is if you had been the suspect, how would then have fitted in to the Brandfort community again. What advantage would that have had for you? You and your four colleagues? MR MENERA May you try to put it in a different way because I don't understand your question, I want to answer you correctly. MR VAN DER MERWE Chairperson, I don't want to labour this point, could I just rephrase this question? Mr Menera, before you committed this act and you had known that these people would have been killed, and as you also testified and the next day everybody in Brandfort knows what had happened and who committed it. How did you view the advantage for yourself and your colleagues in the context of the future Brandfort after the Phelane householding were killed? MR MENERA I explained that whatever we did, we were doing it on the benefit for the community. Mr Advocate you ask me a question, I just wanted to remind myself the question you have asked me you did ask me a question before then I answered that question. MR VAN DER MERWE This is the third time that I'm going to put this question and the question is...(intervention) MR MENERA Well I explained that whatever we did we were not doing it on our own behalf but we were doing it on behalf of the community. MR VAN DER MERWE Did the idea cross your mind ever that you would have been an escapee for a very long time. ADV MEMANI What's the relevance of this question if I may ask? ADV DE JAGER We'll decide on that when we give judgement. ADV MEMANI Essentially Mr Chairperson, I'm making an objection and I would thought that Counsel would be given an opportunity to explain the relevance of his question and the objection would then be determined after he has answered the question. JUDGE WILSON I don't think the question is so irrelevant as to be one that counsel must explain, I think it can be covered by what is the gist of the whole questioning and that he be permitted to carry on with the question. ADV MEMANI As the Chair pleases. MR VAN DER MERWE Did you foresee it that for a long time you would be on the run from the law for a very long time? MR MENERA Do you mean after this act or.....(intervention) MR VAN DER MERWE Yes. MR MENERA Even if I did escape or run away, but we knew only one thing that people would take the government and we would come back to the people. If people didn't understand why we did that act then the people would be clarified on that issue. There would be no person that would ask us, why did you do that because they knew exactly what was happening in Brandfort, that they knew his actions against the people. I think that kind of a question should be asked by the people, JUDGE WILSON Did you realise that you might be punished severely for what you had done? MR MENERA Yes I knew. JUDGE WILSON And you were prepared to face that? MR MENERA I was even prepared to die. I was prepared to die if it was possible. JUDGE WILSON Is it correct Mr Menera that when you were before the court who was trying you and you realised you had been convicted, you still told the judge that. Can I read from the end of the questioning, your evidence after you gave evidence after you'd been convicted. You were asked If you are asked to shoot Morgan, to kill him or to burn him, that you would do that .--- If the community says that then I would do it. MR MENERA That's correct Sir, that was my answer. JUDGE WILSON Carry on. MR VAN DER MERWE No further questions at this stage. NO MORE QUESTIONS BY MR VAN DER MERWE JUDGE WILSON Any re-examination? ADV MEMANI No re-examination my Lord. JUDGE WILSON Chris? ADV DE JAGER No thank you. MR MENERA I have a request to put to the Commission. Firstly I'm appearing here before this Commission to ask for forgiveness of the acts which I have committed against Mr Phelane and his family. According to ...(indistinct) I was not prepared to return back to prison before I hear from him. Mr Morgan Phelane knows very well that this action which we took against him was a political action. It is clear even to him. What I wanted to understand from him was that is he forgiving us? If I don't have the right to ask this question but I want this Commission to ask on my behalf to Mr Phelane, is he prepared to forgive us. JUDGE WILSON Any comment? MR VAN DER MERWE I've got no instruction to that effect Mr Chairman. JUDGE WILSON That is very much a matter for Mr Phelane to decide himself, it is a matter that the Truth and Reconciliation Commission, not the Amnesty Committee takes in hand. They have a reconciliation body who seeks to bring about reconciliation between perpetrator and victim that both can face up together to the new South Africa, and I have no doubt at all that body will approach Mr Phelane with a view to ascertaining whether reconciliation can be achieved between you. I do not think it's a matter that we should investigate at a public hearing of h this nature. It can only cause further distress. ADV MEMANI Mr Chair I intended calling Patrick Maluisane, essentially to corroborate Mr Menera on the question whether it is Mr Menera or Mr Patrick Moluisane who stabbed Patrick the child. If however the Committee is satisfied or accepts the evidence as presented by Mr Menera on that aspect, it may be that this the end of Mr Menera's case. JUDGE WILSON Well you realise that on the evidence presented by him he can not ask for amnesty in that aspect. He cannot ask for amnesty in respect of the stabbing of the child. He denies having committed that act. We only grant amnesty to people who come before us and ask for amnesty in respect of acts they have committed. We are not a court of appeal to set aside convictions where somebody has been wrongly convicted. I asked him and he confirmed that what he has said in his evidence is that there was no common purpose on the attack on this child, that he played no part on the attack on the child and that he thought to prevent it as soon as he saw it happening. Accordingly it does not fall within the provisions of the act. ADV MEMANI Mr Chairperson I would not agree that view would necessarily be tenable or be within the spirit of the Act. What the Act requires of Mr Menera is to tell truth and the whole truth. JUDGE WILSON ADV MEMANI Mr Chairperson this is not a case where Mr Menera is approaching you to alter a completely wrong conviction. He says that we set out together with a common purpose to murder certain people and during the course of that conduct a child was stabbed and I am not the person who stabbed the child. Now Mr Chairperson, if he were to say that he stabbed, take a scenario where he says that in order to get amnesty then he says to you, I stabbed Patrick Maluisane (Phelane?) and I was convicted, I'm sorry give me amnesty, then objective is produced to show that he did not in fact stab Patrick Phelane, but it is Patrick Maluisani who stabbed the child, he will not be able to grant him the amnesty because he has not told you the whole truth about his involvement in the commission of the offence in respect of which he was tried. JUDGE WILSON If we believe him when he says he stabbed the child then he would have been telling the truth. ADV MEMANI Mr Chairperson I understand the difficulty that arises here but it is my submission that if you separate these offences in the fashion that you do, then there is possibility of error and in fact there is a possibility of stifling the very objectives to Act 6 to achieve. That is knowing what happens to victims, he is telling these victims present here that you know, in court it was said that I stabbed Patrick your son ...(intervention) JUDGE WILSON Not it was said, I said I stabbed him. Now he says he didn't. ADV MEMANI That is correct and that was the accepted evidence, but in fact that evidence that evidence was correct, now if it was incorrect, the truth is that it is Patrick Maluisani who stabbed him, now in my submission Mr Chairperson that would stifle the objects of the Act. Now however Mr Chairperson I think...(intervention) JUDGE WILSON Would you like to submit argument in that respect you can do so. ADV MEMANI Well I think I'm taken by surprise, I did not expect you to take that stance and it would require me to kind of prepare...(intervention) JUDGE WILSON Yes it is substantive...(intervention) ADV MEMANI ... the matter for that purpose. JUDGE WILSON But this Committee has regularly taken, we only grant amnesty where a person admits having committed offences. ADV MEMANI Now is it then the case that we are going adjourn this matter...(intervention) JUDGE WILSON And you can submit written argument. You're not suggesting your client's going to come and give different evidence and now say he did something else are you? ADV MEMANI No in fact...(intervention) JUDGE WILSON The evidence is finished? ADV MEMANI In fact Mr Chairperson I intend calling Patrick Maluisani. Patrick Maluisani was here in the morning but apparently he...(intervention) JUDGE WILSON It does not help if he says he stabbed this young boy. That does not affect the position. ADV MEMANI But there's a related question on that aspect, that is whether do you accept then his evidence as correct and true that he stabbed Mr Patrick Maluisani (Phelane?) and if you accept that as being true then there is no need for corroboration but the impression that I...(intervention) JUDGE WILSON He said that he didn't stab him. ADV MEMANI And if that is so, as I have explained to you, we are not hearing an application for amnesty for an act he did not commit. ADV MEMANI Now but then I've got this submission that I wish to make at the end of his case, that you have to give him amnesty on those...(intervention) JUDGE WILSON Well you can make it in writing, you're not prepared to argue it now, you said. You can submit it in your written argument. I have indicated to you the approach that this Committee adopts where persons deny having committed offences they do not get amnesty in respect of that offence. ADV MEMANI Should I accept it Mr Chairperson that you accept his evidence as correct and being the truth that he did not stab. JUDGE WILSON We accept that that is the basis on which he is applying for amnesty. ADV DE JAGER There's no other evidence before us, before this Committee, we've got only the evidence of himself saying he didn't stab him, he didn't commit this offence. ADV MEMANI And you are not going to have due regard to the context of the court record in so far as it says that he stabbed the child? JUDGE WILSON Well then we find he's a liar and he hasn't been frank with the Committee, if we do that. Do you want us to do that? ADV MEMANI Mr Chairperson I don't want you to find that he's a liar. What I'm saying to you is that we've got essentially his version and some evidence which contra as some evidential material which stands to contradict what you said, and now I'm asking you if you are accepting his evidence now as being correct or are you going to accept the record as being correct and if you haven't made up your mind about that at this stage then I would have to call Patrick Maluisani to come and say that what he said in court was incorrect and it is correct that I stabbed the child. JUDGE NGOEPE Sorry Mr Memani, the gentleman you want to call is not here, is he here? ADV MEMANI At the present moment he's not here Mr Commission. JUDGE NGOEPE So you would be in fact asking for a postponement of the matter so that he could go and look for that person so that he should come and testify. ADV MEMANI Yes My Lord, in fact he said that he's going to be, he came here fortuitously, but he's going to be here tomorrow because he's got a kind of subpoena saying that he must be here tomorrow, otherwise if we want to get him today we must arrange with his employers to be here today. JUDGE NGOEPE: But then again we would have to take into account that that particular witness is not available here today and as a the matter has been going for some time, but most importantly though, we know you want him to come and repeat what the applicant says, namely to come and confirm that it was not the applicant who stabbed the child. ADV MEMANI That is correct and despite the fact it has to confirm what has been said already I think it tends to strengthen the evidence and he says that someone else admits to having committed an offence and one who didn't lightly admit to having committed an offence if he didn't commit that offence. JUDGE NGOEPE But we must take into account the fact that there is no evidence contradicting the evidence given by the applicant that he has not stabbed that child, so what my colleagues are trying to tell you is that given the fact that there is no evidence competing against that of the applicant, that he did not stab the child, why should we adjourn the matter for somebody who is not here, solely for him to come and simply repeat to us what the applicant has said, when in fact there is no contra-evidence against the applicant? ADV MEMANI I accept the point which has been made. However Mr Chairperson, I still need an adjournment then for the purpose of specifically addressing the Committee either under these circumstances. Mr Menera is entitled to amnesty in respect of the attempted murder on the child Patrick Maluisani (Phelane?). JUDGE NGOEPE No I don't think that is the point at this stage. Let's take the matter in instalments. Whether of not the applicant is entitled to amnesty in respect to the stabbing of the child, is an aspect which is going to be decided together with all other aspects. In other words, it is going to be decided together when we decide on the other related offences. What we are concerned now at this stage is your request for the adjournment of the matter to go and call that person and personally I think that we should rule against you and say that we are not adjourning the matter solely for the purpose of going to call a witness who is coming to repeat something which the applicant has said, which something is not being opposed by anybody and I don't think we need to adjourn the matter so that you should come and address us on that point. As far as addressing us on the question of whether or not the applicant is entitled to amnesty in respect of an offence which he denies, that will be dealt with together with the other offences as well. He doesn't enjoy any special treatment at this stage. At this stage we are just concerned with whether or not you should postpone the matter so that you can go and call a witness who is coming what the applicant has said, which thing is not being contradicted by anybody. ADV MEMANI Mr Commissioner I made this request in the light of the impression that I had gained yesterday, that the committee was giving weight to the contents of the record in so far as the evidence suggests to that he stabbed the child and if the Committee is not going to attach any weight to that, I agree that it's not necessary to call Mr Menera to Mr Maluisani. JUDGE WILSON I asked him about it yesterday and he explained why he gave that evidence, do you recollect that? ADV MEMANI I do My Lord. JUDGE WILSON And nobody has seen fit to call any of those other witnesses to rebut it. ADV MEMANI I'm indebted to Mr Chair. MS THABETHA Mr Chair can I say something. I don't know whether I will be clarifying or might be complicating the whole issue. I was under the impression that there are two types of denial. Where a person has been charged or convicted of an certain act, let's say attempted murder and he was convict on attempted murder on the basis of common purpose, then the Amnesty Committee can decide to grant amnesty or refuse amnesty on those bases even though the person may come here and say, I actually didn't murder the person but I was convicted on basis of common purpose. So that would be denial but the person would still be charged of murder because of common purpose. And then another scenario would be the situation where the person says, I wasn't even there at the scene, I didn't do it, and that would be the denial we are talking about where the Amnesty does not have jurisdiction to ...(intervention) JUDGE WILSON But here he has denied the common purpose, that is the problem facing his application. It's not a case, we have many of them where someone says, well actually I wasn't one of the people who did it but I was part of the mob who were there. He specifically said, and he was led at great length on this, that they resolved to kill five named people, that they went there to kill those people only, that as soon as he heard this child screaming he went and intervened and stopped the attack on the child. You remember all that evidence he gave? MS THABETHA I remember that but with due respect ...(intervention) JUDGE WILSON So on that evidence can you say there is common purpose? ADV DE JAGER But with all due respect now, do you want to argue the whole case now or do you want to go and have a look at the Act, both of you and prepare good written argument or do you want to argue the case and finish the case and then if you want to argue it, we'll finish the argument today and we won't postpone it for further argument? If you want to prepare for further argument, please ask for a postponement and we'll give you the opportunity to prepare and argument. But we're not going to waste time to listen to arguments that's not well founded and not well studied at this stage. If you want time to really prepare a good argument we'll grant you the time. MS THABETHA With due respect Member of the Committee, I was not addressing my argument but I was merely trying to clarify an issue of denial that I thought can be differentiated into two perspectives. ADV DE JAGER That's a legal argument, isn't it? It needs no evidence to be given? Are we finished with the evidence and then you could prepare your legal argument and give it to us. MS THABETHA Very well. ADV MEMANI Mr Chair, that concludes the case of Mr Menera and I withdraw the application which I made earlier on, and in so far as argument is concerned, I am of the view that argument should be heard today and that the balance of the argument on the question whether he may granted amnesty in respect of the killing or the attempted murder on Patrick Phelane should be heard tomorrow, first thing in the morning. I do not want to find myself being saddled with a matter which I could have finalised today or tomorrow morning, because essentially if this matter is postponed, it entails then the spending of more time at a separate stage on this matter and I believe that we can deal with that tomorrow morning. MS THABETHA Mr Chair, can I suggest something? JUDGE WILSON Are you just trying to avoid having to submit written argument? ADV MEMANI There is also financial implications for it. I do not know who's going to pay for the typing, I'm not going to be paid for the typing, I'm not going to be paid for dictating time and so on. JUDGE WILSON And who's going to pay for your fees till tomorrow? ADV MEMANI I doubt if anyone is going pay because I'm on Legal Aid Board in this matter and as far as I'm aware, they don't pay for things like dictation time and typing costs. JUDGE WILSON It's Heads of Argument you're charging for, not dictation time and typing costs. ADV MEMANI I don't believe that according to the scale that has been made available to me that I am entitled to that. And any way to me it seems as though it is a quicker way of dealing with the matter, costs aside. If we can finalise ...(intervention) JUDGE WILSON Well I'm not prepared to hear argument in two pieces. If you want to adjourn now and submit argument tomorrow you can do so, but we're not going to hear two bits, one half today and one half tomorrow. Are we prepared to hear it tomorrow morning? 9 o'clock tomorrow morning. MS THABETHA Thank you. MR VAN DER MERWE Mr Chairman...(intervention) JUDGE WILSON Do you want to participate? MR VAN DER MERWE No I want to do a written, I won't be able to be here tomorrow, that is my problem. So if I could put my heads of argument in writing and be excused by excused by the proceedings of tomorrow. JUDGE WILSON Yes. MR VAN DER MERWE I'm indebted to you. JUDGE WILSON And you'll submit your argument to the other parties? MR VAN DER MERWE Indeed Sir. ADV DE JAGER And could it be done before the end of the month? MR VAN DER MERWE Indeed Sir. Is there a specific date, then I can do it before that day? ADV DE JAGER Well let's fix a date say the 25th of May would that be okay? MR VAN DER MERWE That is in order. JUDGE WILSON I thought so, let's make it the 26th, the 25th's a Sunday. MS THABETHA Mr Chair I won't be handing my argument tomorrow because there are a few points I still need to verify with the investigators. So I will also hand in my argument in writing. JUDGE WILSON Are you suggesting that more information may be available? MS THABETHA More information but based on what Mr Phelane has said. JUDGE WILSON Or what the witness has, what the applicant has said. MS THABETHA Sorry on what the applicant has said. JUDGE WILSON Well then it will be wrong if you are going to seek to place more information before us to ask anybody to submit argument tomorrow morning. MS THABETHA It's on matters like how long was Mr Phelane detained and...(intervention) JUDGE WILSON Those are relevant matters...(intervention)..credibility. MS THABETHA What I'm saying is my learned friend can proceed to...(intervention) JUDGE WILSON He can't argue in bits and pieces. If he puts up one argument suggesting that his witness is entirely credible and then you produce information showing that his applicant is not, he then has to reframe his argument and approach it from a different aspect. And I think it's unfair on him to say he must commit himself to one line now when you might come forward with all sorts of other things which he will have to explain. MS THABETHA I will make sure that I've got that information by tomorrow morning. JUDGE WILSON Well if you could let him have it before he argues, fine. MS THABETHA So that would conclude the matter. JUDGE WILSON Right. But get the information, don't just because it hasn't come tomorrow morning decide it's no longer of any importance. MS THABETHA I wont do that Mr ...(intervention) ADV DE JAGER And when will you submit your argument then? JUDGE WILSON By the 26th. MS THABETHA My argument? ADV DE JAGER Ja. MS THABETHA Tomorrow then. JUDGE WILSON You said you were going to let us have written argument. MS THABETHA Based on the fact that I was going to look for this information...(intervention) JUDGE WILSON Very well. This matter is adjourned till 9 o'clock tomorrow morning. Mr van der Merwe is excused from further attendance. MR VAN DER MERWE I'm indebted to you. JUDGE WILSON Would it be convenient if we were to take a short adjournment to all people to move their papers, books and other things into position for the hearing of the next matter? ADV MEMANI Mr Chairperson, is the matter of Menera and I'm involved in that matter Ngo, and I've asked to be excused to prepare argument first of all and secondly I have also indicated in Chambers that there is a difficulty which has arisen in that the applications of Ngo and Motsamai have been consolidated now whereas ...(intervention) JUDGE WILSON They have not been consolidated, they are being heard together. ADV MEMANI I don't know what the difference in terminology means, but my understanding is that they are going to be heard simultaneously, Ngo is going to be sitting there, Motsamai is going to be sitting there and as we are dealing with Ngo we will be dealing with Motsamai as well. I am not prepared for that type of situation and I indicated that I will try my best to be ready by tomorrow morning for that situation. JUDGE WILSON I'm afraid I don't understand what you mean, that situation. Are you not prepared to appear for Mr Motsamai? Are you appearing for him? ADV MEMANI For Mr Motsamai? JUDGE WILSON Yes. ADV MEMANI That is correct. JUDGE WILSON And you were told some time ago the matter was set down. ADV MEMANI I was told that it was set down for tomorrow and I was told that the matters would be heard in succession, I was not told that they were going to be heard tied together. ADV DE JAGER Okay we'll meet you this way, we'll deal Mr Ngo's matter this afternoon as far as we could go and if we reach the other matter, we'll proceed with that. MS THABETHA Mr Chair can I say this? In the notifications of matters I did specify that the applicants must be here the day before so that if a matter that is set for that day is dealt with earlier we can proceed top the next matter. So what I'm saying is that in as much as Motsamai's matter was set for yesterday, he was supposed to be here today. He was supposed to be here for today and he's lawyer as well. JUDGE WILSON Yes, were his lawyers told that they could now be heard with Ngo's matter? MS THABETHA His lawyers were not told that the matter will be heard with Ngo but they notified that they have to be here today and the matter might be heard today instead of tomorrow. ADV MEMANI Mr Chair I'm not aware of that unfortunately Mr Mthembu is not in front of me to admit or deny that, but I have in front of me a memorandum dated the 6th of May emanating from the speaker which says that I have decided to add on our role Mr Motsamai's application on Thursday 15 May 1997 together with Mr Ngo's matter for reasons that some of the incidents related in their applications are the same. Now there is attached...(intervention) MS THABETHA Sorry can I object to that? This is a memo addressed to Advocate Mpshe, Judge Ngoepe, Judge Wilson and Advocate de Jager. I lent this copy to Advocate Memani solely for purposes of him to photocopy. I don't see why it should be read into their record because it's a memo, not addressed to him but to the Committee members. The relevant letter addressed to Mr Mthembu, who is Mr Motsamai's lawyer knows that he had to be here early today to proceed with the matter, if we finish early with the other matter. ADV MEMANI Mr Chairperson there's also attached to it the role. The role says that on...(intervention) JUDGE WILSON It seems to me that this is a matter that could perhaps be discussed in Chambers but I do say, looking at the role, it indicates that Mr Ngo's matter is to be heard on Wednesday and then only on Thursday do we see Mr Motsamai's matter. JUDGE NGOEPE But you're not appearing for Mr Motsamai are you? ADV MEMANI I am Judge. JUDGE WILSON We will adjourn and discuss the matter in chambers together with the other lawyers concerned. COMMITTEE ADJOURNS