amntrans AMNESTY HEARING 1998-01-14 CAPE TOWN 1 SOLA MABALA, LUYANDA GQOMFA, VUYISILE MADASI https://sabctrc.saha.org.za/hearing.php?id=54656&t=&tab=hearings https://sabctrc.saha.org.za/originals/amntrans/capetown/capetown_3heidelb.htm ON RESUMPTION - 14 JANUARY 1998 CHAIRPERSON This is the resumed hearing in the matter of Messrs Gqomfa, Madasi and Mabala. Mr Prior, as we ready? EXAMINATION BY MR PRIOR MR PRIOR Mr Atkinson, could you sit next to Mr Donan please? JUDGE WILSON MR PRIOR Thank you Mr Chairman. CHAIRPERSON What are your full names? MR ATKINSON Gary Donovan Atkinson. CHAIRPERSON Are you prepared to take the Oath Mr Atkinson? GARY DONOVAN ATKINSON (sworn states) MR PRIOR Thank you Mr Chairman. Mr Atkinson, is it correct that during the year 1993 and particularly on the 30th of December 1993, you were the proprietor of the Heidelberg Tavern situated in Observatory in Cape Town? MR ATKINSON MR PRIOR MR ATKINSON MR PRIOR Were you present at that time? MR ATKINSON Yes. MR PRIOR Please look at the bundle in front of you: "Submissions by Victims", is it correct that your submission is itemised as number eight and appears at pages 76 and 77 of the paginated pages? MR ATKINSON MR PRIOR MR ATKINSON MR PRIOR And do you pray that they be incorporated in your evidence this morning? MR ATKINSON Yes. MR PRIOR Just to summarise, there were allegations made during the hearing and in papers presented at the hearing, that the Heidelberg Tavern was regarded - particularly by APLA, as a military target. Could you comment on that? MR ATKINSON MR PRIOR Was it in any way connected - during the course of your proprietorship, with the military or with the South African Police? MR ATKINSON MR PRIOR Now, at the time of the shooting, were you injured at all? MR ATKINSON No. MR PRIOR Was there any damage to your property? MR ATKINSON There was extensive damage to the property. MR PRIOR Is that set out in your submissions from (a) to (f) - paragraphs (a) to (f)? MR ATKINSON (a) to (f). MR PRIOR Thank you Mr Chairman. NO FURTHER QUESTIONS BY MR PRIOR CHAIRPERSON Mr Arendse, are there any questions you wish to put to this witness? MR ARENDSE No thank you, Mr Chairman. NO QUESTIONS BY MR ARENDSE CHAIRPERSON For how long had you been the proprietor of this place Mr Atkinson? MR ATKINSON From April 1987. CHAIRPERSON Were you in the tavern itself when the shooting occurred? MR ATKINSON CHAIRPERSON Did you at any time leave the tavern and go outside after the shooting - immediately after the shooting? MR ATKINSON Not immediately, maybe 15 - the first time I left the tavern was to take the one person to hospital - to Groote Schuur up the road Your Honour. CHAIRPERSON Do you know anything at all about the shooting that occurred outside the tavern? MR ATKINSON CHAIRPERSON Andrew? ADV SANDI Did the attackers come inside the tavern or were they shooting from the outside? MR ATKINSON I cannot say. ADV SANDI Did you see anyone of them whilst they were shooting? MR ATKINSON ADV SANDI If one of the attackers had come inside the tavern, would it have been possible for you to see him from where you were sitting? MR ATKINSON normally stay down. CHAIRPERSON MR ATKINSON MR PRIOR CHAIRPERSON Yes, please. RE-EXAMINATION BY MR PRIOR MR ATKINSON MR PRIOR There are double doors that appear to be closed on the photograph? MR ATKINSON MR PRIOR Are you able to remember ...[intervention] MR ATKINSON They were closed. MR PRIOR Why do you remember that? MR ATKINSON Because I always keep them closed because the entrance is through the smaller door on the left-hand side. MR PRIOR Is that the door visible on the photograph (a)? MR ATKINSON MR PRIOR Thank you Mr Chairman, I have no further questions. CHAIRPERSON Mr Atkinson, thank you very much. MR ATKINSON Thank you. WITNESS EXCUSED MR PRIOR Mr Chairman, I have taken the liberty of preparing an additional bundle of documents which is headed: "Heidelberg Tavern Attack" in items 1 to 8. I understand from my learned friend Mr Arendse, that in respect of the formal evidence regarding the powder residue tests carried out on the hands of Mr Cerqueira - the deceased from the Machado Restaurant - those are the affidavits of Mr du Plessis and Stoltz, that he has no objection to those affidavits handed up as exhibits and that they are not contested - in the sense that I do not have to prove that they were in fact - the acts referred to there were in fact completed by those persons, as well as the affidavit of Mr Kompion of ballistics who retrieved certain or examined certain cartridge casings and made certain finding on those affidavits set out at pages 9 to 12. CHAIRPERSON Thank you. Do these go in by consent Mr Arendse? MR ARENDSE Yes, Mr Chairman. The basis really is that as far as the gun residue test is concerned, - yes, those specimens were taken, they were sent to Pretoria, they were analysed and the tests As far as the cartridges are concerned - yes, they were picked up, they were sent away for analysis, they do reveal that they were issued out of R4 rifles and in those respects they go in by consent. MR PRIOR JUDGE WILSON As far as I can see, the last exhibit was F. MR PRIOR F(g) JUDGE WILSON: F was the photograph of the motor car. MR PRIOR That is - yes, thank you Mr Chairman, so could we mark this bundle G? CHAIRPERSON Very well, the bundle of documents headed: "Heidelberg Tavern Attack", will go in as Exhibit G MR PRIOR: Mr Chairman, may I also refer to an additional affidavit of Mr Kompion which was circulated this morning, it is dated the 14th of January of this year and may that be marked Exhibit H? I simply place on record - the Committee will recall that during cross-examination of the applicants, the evidence leader suggested that - given the locality of the cartridges within the Heidelberg Tavern, that the firing or the shooting at the victims must have occurred from a very close proximity - this affidavit Exhibit H belies that. CHAIRPERSON Yes. MR PRIOR CHAIRPERSON Yes. MR ARENDSE CHAIRPERSON Thank you. JUDGE WILSON What is the purpose Mr Prior, of the amnesty application that has now been filed - in Exhibit G? MR PRIOR "The purpose was not the loss of life or of a human being, it was to pressurise the electorate" JUDGE WILSON INTERPRETER JUDGE WILSON MR PRIOR "Message" JUDGE WILSON ...[inaudible] MR PRIOR That was the only significance of incorporating that in the bundle and that would depend if the Committee would allow me to put that - it may also be a matter of argument but I felt that the applicant ought to be able to - should be given an opportunity to respond to that. And in the last item on Exhibit G was the affidavit of Mr Sibaya insofar as his evidence, he recanted his evidence given before this Committee during the previous hearing. Mr Chairman, he is available and subject to anything the Committee wanted to ask me before I call him, I call Mr Sibaya. CHAIRPERSON Purely by way of procedure, do you want to clear this up with Mr Gqomfa first or do you want to call Mr Sibaya first? MR PRIOR As a matter of procedure, I would like to clear it up with Mr Gqomfa first and then end off the evidence with Mr Sibaya. CHAIRPERSON Yes. CHAIRPERSON ...[inaudible] INTERPRETER LUYANDA GQOMFA (sworn states) CHAIRPERSON Thank you. CROSS EXAMINATION BY MR PRIOR Thank you Mr Chairman. MR GQOMFA Yes. MR PRIOR Could you please turn to page 5 - it is the highlighted portion in orange and just the sentence before that, could I read that out to you for the record? You said in the second paragraph "This attack on this farm was to persuade and to force the Government to take African people seriously in their struggle for national liberation" Is that word: "hence electorate" "were used" Sorry, could you just assist me there, what are those last two words after: "for national liberation"? MR GQOMFA "hence electorate were used" MR PRIOR I see. MR GQOMFA Yes. MR PRIOR MR GQOMFA Electorate. MR PRIOR Oh, the people? MR GQOMFA Yes. MR PRIOR The voting people. MR GQOMFA Yes. MR PRIOR "As it was already known that the main house will be vacant that night, as the purpose was not the loss of life of a human being. The operation was executed for pressurising the electorate to persuade the their Government to commit itself in peaceful settlement" Is that correct? MR GQOMFA MR PRIOR Do you agree that there were other ways - other than taking of human life, to pressure the electorate into persuading the Government to change their ways? MR GQOMFA Before I answer your question, I would like to know the relevance of this question and this particular application to what we are about here. MR PRIOR CHAIRPERSON Just try and answer the question as well as you can - the relevance or otherwise of it, will be decided by this Committee. MR GQOMFA Yes. CHAIRPERSON MR PRIOR Like you did or mentioned in the Lady Grey matter. MR GQOMFA First of all, this operation - or this question can be answered by the APLA commanders because they select the targets, they assemble the personnel, they draft the strategy for the army and the tactics that are used thereof. MR PRIOR CHAIRPERSON MR PRIOR I see, thank you Mr Chairman, I have no further questions. NO FURTHER QUESTIONS BY MR PRIOR CHAIRPERSON Mr Arendse, any questions you wish to put on this matter? MR ARENDSE None Mr Chairman. CHAIRPERSON Thank you. Andrew? Yes, Mr Gqomfa, thank you. MR GQOMFA Thank you. WITNESS EXCUSED MR PRIOR Mr Chairman, before Mr Sibaya is called, may I also place on record copies of the final report of Mr Justice Richard Goldstone - was circulated, could that be marked exhibit ...[intervention] CHAIRPERSON J. MR PRIOR CHAIRPERSON No. MR PRIOR Thank you. CHAIRPERSON Thank you. MR PRIOR I call Mr Sibaya. MR DONAN Mr Chairperson, may I place myself of record? - Michael Donan, I now appear for Mr Sibaya. ADV SANDI Mr Sibaya, please stand up. BENNET SIBAYA (sworn states) CHAIRPERSON Do sit down. Yes, Mr Donan? EXAMINATION BY MR DONAN Thank you Mr Chair. Mr Sibaya, do you have any personal knowledge of the attack on the Heidelberg Tavern, either by the three gentlemen - the three applicants before this Committee, or by anybody else? MR SIBAYA No. MR DONAN JUDGE WILSON MR DONAN Perhaps I put it before the Committee wrongly, but there was a suggestion that he had personal knowledge of acts which were associated with the attack and I was intending to say precisely what Judge Wilson has said and deal with each of those statements which were made. CHAIRPERSON Yes, proceed. MR DONAN If I may. On the 5th of January 1994, you signed a statement before Mr Etsebeth in which you said that you had been in Guguletu on the night of the 30th of December 1993 and seen weapons being transferred to a white Audi XA12848, is that correct - you made that statement? MR SIBAYA MR DONAN CHAIRPERSON ...[inaudible] Mr Segal and what was the other name? MR SIBAYA No English translation. CHAIRPERSON Mr Donan, I have difficulty in that name, do you know what it is? MR DONAN Mr Fulani. CHAIRPERSON Fulani? MR DONAN Fulani. CHAIRPERSON And who else? MR DONAN And Mr Segal and Mr Etsebeth - perhaps I should clear this up. CHAIRPERSON Yes, could you? MR DONAN Mr Sibaya, all I want to know from you is, whether the statement which you signed before Mr Etsebeth was true or whether it was false? MR SIBAYA It was not true because I got there, the statement was ready and I just had to sign something I knew nothing about because they tortured us before we signed. MR DONAN Now, you made a subsequent statement to Mr Lubbe ...[intervention] INTERPRETER MR DONAN You made a subsequent statement to Mr Lubbe - a policeman or a police investigator acting for the Truth Commission, on the 12th of August 1997, is that correct? MR SIBAYA MR DONAN And in that statement, you repeated what you had previously signed before Mr Etsebeth and you added two little bits of information - (1) that you had seen a map to the Heidelberg Tavern fall out of the Audi and you had heard one of the people carrying the weapons say that "Someone had forgotten their cap in the first vehicle from which the weapons were transported" Is that correct, you made such a statement to Mr Lubbe? MR SIBAYA That is correct. MR DONAN And was that statement true or was it false? MR SIBAYA MR DONAN But the fact is, you have no personal knowledge of whether or not Mr Ntsebeza was involved in the attack on the Heidelberg Tavern, is that correct? MR SIBAYA I have no knowledge, it is Mr Segal who told me that Mr Ntsebeza was involved, I know nothing about it. JUDGE WILSON You were being asked - as I understood it, about the statement you may de to Mr Lubbe. MR DONAN That is so Judge. MR DONAN With respect, the question was not: "Why it was said" but whether the witness had any personal knowledge and whether the statement was true or false. JUDGE WILSON MR DONAN That was so Judge. JUDGE WILSON MR DONAN When you made the statement to Mr Lubbe, was it true or was it false? MR SIBAYA It was not true because truly speaking, I know nothing about this. MR DONAN Why did you make the statement to Mr Lubbe if it was false? MR SIBAYA MR DONAN You testified also for a number of days before this Committee, in which you - and on one of those occasions you pointed out Mr Ntsebeza and you also repeated what you had said in your affidavits, is that correct? MR SIBAYA That is correct. MR DONAN But you falsely pointed him out and you had no personal knowledge of the attack - of the information which you gave the court - I beg your pardon, the Committee, the information was in fact false, is that correct? MR SIBAYA That is correct. MR DONAN Why did you give false information to the Committee? MR SIBAYA Mr Segal had said that he would destroy my home, he would burn down my house - he had a huge rifle. He said I must not change my story - Mr Mazibuku was already dead and everything depended on me. MR DONAN Just for the record, you say that you were arrested by Mr Segal and you were assaulted by Mr Segal and Fulani and Mr Mazibuku was the person who was arrested and assaulted with you, is that correct? MR SIBAYA That is correct. MR DONAN And shortly after that, did he co-operate with Mr Segal in assisting him make statements and finding Mr Ntsebeza? Did Mr Mazibuku help Mr Segal like you did? MR SIBAYA MR DONAN What did Mr Segal say to you when Mr Mazibuku refused to co-operate? MR SIBAYA INTERPRETER The witness is going too fast. CHAIRPERSON Tell the witness to ...[intervention] MR DONAN Slower, a little bit slower. CHAIRPERSON Please. MR SIBAYA The last time Mr Segal said I must wait by a restaurant in Kenilworth when it was dark, we then went to 121 where all this had happened - 129, I apologise. He said that I must say that I knocked on number 3 on 129 and he asked me if I still knew the registration number and I said: "Yes", he said: "Those are the important things. He said that I must say that the map had fallen off from the car and Mr Madasi had left the cap from the black car or the darker car, these are the things he told me to say. JUDGE WILSON When was this that he told you to say these things? MR SIBAYA Early 1994. MR DONAN Did you satisfy yourself that Mr Mazibuku in fact had been murdered? MR SIBAYA I was shocked when I heard this but then I thought taxi drivers fight all the time but I was a bit scared. MR DONAN When was he murdered? MR SIBAYA MR DONAN Mr Chairperson, may we have a very short adjournment, my client is not feeling well and he just wants to be excused if he may? CHAIRPERSON COMMITTEE ADJOURNS ON RESUMPTION BENNET SIBAYA (s.u.o.) CHAIRPERSON Yes, Mr Donan? MR DONAN MR SIBAYA MR DONAN MR SIBAYA MR DONAN Is that correct? MR SIBAYA MR DONAN Did you see the device in the car? MR SIBAYA Yes, he opened the boot and I could see it. MR DONAN And what did he tell you? MR SIBAYA He said I must never ever change that information because he was going to kill me and my children because he wanted to go to the Judge with full information so that he can be able to implicate Mr Ntsebeza. MR DONAN Now, after you made that statement, you were persuaded by Archbishop Tutu to go into protective custody, is that correct? MR SIBAYA MR DONAN And you remained in protective custody till all the evidence before the Goldstone Commission of Enquiry had been concluded, is that correct? MR SIBAYA Yes, Sir. MR DONAN You tendered and testified before the Goldstone Commission, is that correct? MR SIBAYA MR DONAN It is correct too - will you confirm that Mr Lubbe testified before that Commission and said that he too was not prepared to take the Truth Commission into his confidence and therefore withheld certain documents from it when he was investigating the allegations which you had made? MR SIBAYA May you please repeat the question? MR DONAN Mr Lubbe testified before the Goldstone Commission and he said that - he presented certain documents there which he had not presented to the Truth Commission when he had already received them during the second half of 1997, he said he did not present those documents because he did not trust the Truth Commission? JUDGE WILSON Where does that appear in the Goldstone Report? MR DONAN JUDGE WILSON ...[inaudible] INTERPRETER JUDGE WILSON MR DONAN Now, between the time that you testified before the Goldstone Commission and the present day, have you remained in fear of the police? MR SIBAYA MR DONAN When did this event occur - this latest episode with the police? MR SIBAYA MR DONAN Have you ever been a police spy? MR SIBAYA No, not at all. MR DONAN And have you ever received payment from the police, either for spying or for testifying in their favour? MR SIBAYA MR DONAN Thank you Mr Chairperson. Thank you Mr Sibaya. NO FURTHER QUESTIONS BY MR DONAN CHAIRPERSON Mr Arendse, any questions you wish to put to this witness? MR ARENDSE CHAIRPERSON Yes? MR ARENDSE May I proceed Mr Chairman? CHAIRPERSON Yes. CROSS-EXAMINATION BY MR ARENDSE Mr Sibaya, Mr Prior asked you the following question "Were you able to describe any person that you saw in the street at or near either the dark vehicle or the white coloured vehicle"? Mr Sibaya, you replied: "I said to the police there was people that arrived with weapons, I could not identify them because it was dark. I just heard one of them saying: "Madasi, you left a cap in the car", however the one we had found in the car - I told them it was a well-built man" MR SIBAYA CHAIRPERSON MR SIBAYA CHAIRPERSON Yes, carry on Mr Arendse. MR ARENDSE MR SIBAYA MR ARENDSE MR SIBAYA CHAIRPERSON Anyway the answer is that Mr Lubbe told him Mr Arendse. MR ARENDSE Did Mr Lubbe tell you to use his name Mr Sibaya? MR SIBAYA Yes, he also wanted to - he did so because he wanted to involve Mr Ntsebeza in that incident because of the cap that was found in the car. MR ARENDSE MR SIBAYA MR ARENDSE MR SIBAYA They instructed me to do so afterwards. JUDGE WILSON Who instructed you to do so Mr Sibaya? MR SIBAYA MR ARENDSE MR SIBAYA MR ARENDSE So Mr Sibaya, can we accept that between the period that you made your last statement on the 12th of August and when you gave evidence before this Committee in October - when was it, 28/29 October, that you were also briefed by Mr Lubbe and/or Mr Benado as to what to say before this Committee? MR SIBAYA Yes, they advised me on what to say in front of the Commission, they were advising me on what to say in front of the Commission. MR ARENDSE Was it just before you gave evidence before this Commission or was it also while you were giving evidence before the Committee? MR SIBAYA The very first day they told me what to say and every morning they would brief me and tell me what to say and advise me on what to say in front of the Commission. NO FURTHER QUESTIONS BY MR ARENDSE ADV SANDI MR SIBAYA CHAIRPERSON Mr Prior, do you have any questions to put to this witness? CROSS-EXAMINATION BY MR PRIOR MR SIBAYA Yes, I was afraid Sir, I had no - I was not trusting anybody. MR PRIOR Was there any reason why you did not ask this Committee to call or have Archbishop Tutu called to speak to you for you ...[intervention] CHAIRPERSON MR PRIOR As the Chair pleases. CHAIRPERSON About his value, about ...[intervention] MR PRIOR Well, did he not think to ask for Archbishop to be called? CHAIRPERSON Well, the fact of the matter is, he came with a version and he gave that version. MR PRIOR All right. And lastly, do you agree that before you gave your evidence, you were informed by Mr Benado that Mr Segal had passed away during May of last year and that - if there was anything that you had feared from his side, that fear was no longer present? MR SIBAYA Mr Benado told me afterwards that Mr Segal passed away, he told me on the very last day of the hearing. MR PRIOR And not before you gave your evidence? MR SIBAYA MR PRIOR Thank you Mr Chairman. NO FURTHER QUESTIONS BY MR PRIOR CHAIRPERSON Andrew? JUDGE WILSON Now, in this statement you made on the 3rd of November, were you now telling the truth? MR SIBAYA JUDGE WILSON Is the truth that you were caught poaching crayfish on the night of the 4th of January or the morning of the 4th of January? MR SIBAYA JUDGE WILSON And Mr Segal was called in to investigate a case of poaching crayfish? MR SIBAYA The inspector said they are calling us because there was a buyer coming to buy our crayfish, he came to fetch us and we later realised that he was not a buyer, he was going to torture us - he came as a buyer who was going to buy our crayfish. JUDGE WILSON MR SIBAYA JUDGE WILSON But he in fact arrested you and Mazibuku? MR SIBAYA Yes, he took us to the Bellville South Police Station and he took our crayfish. JUDGE WILSON And you were taken into custody there? MR SIBAYA Yes, we were arrested and locked up. JUDGE WILSON Locked up in a cell? MR SIBAYA Yes. JUDGE WILSON So, there should be a record of this in the occurrence book in the Bellville South Police Station. MR DONAN JUDGE WILSON Well, I will cause enquiries to be made as to whether it was recorded. MR DONAN Judge, you will see in the report that there is no record of Mr Sibaya ever being in there. JUDGE WILSON No record at all to say he was detained in a cell? Are you telling us the truth Mr Sibaya? MR SIBAYA JUDGE WILSON What happened to this case about the crayfish? MR SIBAYA But what he wanted us to do was to implicate Mr Ntsebeza, therefore he gave us his photo and registration and he instructed us to memorise the car registration and he even told us to call the flying squad whenever we see Mr Ntsebeza and he told us that Mr Ntsebeza was in Cape Town but my question was this ...[intervention] JUDGE WILSON He told you Mr Ntsebeza was in Cape Town, he knew that and he told you that you must call the flying squad if you saw Mr Ntsebeza? MR SIBAYA JUDGE WILSON MR DONAN With respect Judge, it was mentioned and it was also common cause that Mr Ntsebeza was in Cape Town. JUDGE WILSON That he had seen him on two occasions in Cape Town, was not mentioned as far as I recollect Mr Donan. MR DONAN Well, with respect, as far as I recollect, the evidence was led but ...[intervention] JUDGE WILSON At the Goldstone hearing? MR DONAN Yes, at the Goldstone hearing. Mr Ntsebeza is present in court, he could probably confirm that. MR ARENDSE He did mention he saw him on two occasions while he was in Cape Town. JUDGE WILSON You were also locked up on the 6th of January in the - again in the Bellville South Police Station, were you - 6th of January 1994? Is that correct? MR SIBAYA We were arrested on the 4th of January, not on the 6th - half past two on the 4th of January, not on the 6th. JUDGE WILSON "Mr Nonguaza fetched me on the 6th of January in Guguletu and I was taken to the Bellville South Police Station. Mr Segal and Mr Fulani arrived and they put me in a cell" What do you say about that? MR SIBAYA JUDGE WILSON MR SIBAYA We were arrested on the 4th and on the 3rd day Mr Nonguaza came to fetch me. JUDGE WILSON On the what day? MR SIBAYA It was on the third day, I think it was on the 6th. JUDGE WILSON MR SIBAYA Which affidavit are you referring to, the one in front of me? JUDGE WILSON The one you are looking at. MR SIBAYA JUDGE WILSON That you were taken to the Bellville South Police Station and put into a cell on the 6th of January? MR SIBAYA On the 4th of January. JUDGE WILSON I am reading from your affidavit - you are looking at the same passage, your counsel has pointed it out to you. MR DONAN The witness is looking at the same paragraph as ...[intervention] CHAIRPERSON Can you read English? Will you please read that paragraph just to refresh your memory? MR SIBAYA Yes, I can see it now. JUDGE WILSON Is it true? MR SIBAYA Yes, it is true. JUDGE WILSON So, you were again locked up and confined in a cell at the Bellville South Police Station on the 6th of January 1994? MR SIBAYA JUDGE WILSON Why did you take such a long time to say that Mr Sibaya? MR SIBAYA JUDGE WILSON And are you sure it was Inspector - I think it is, Fulani who you saw? MR SIBAYA Yes, I know him, it was him. JUDGE WILSON Because I gather from the Goldstone Report that you were unable to identify him and pointed out somebody else - a photograph of somebody else which did not look like him. MR SIBAYA CHAIRPERSON Mr Donan, is there anything you wish to ...[intervention] MR DONAN Just one question if I may? CHAIRPERSON Yes. RE-EXAMINATION BY MR DONAN MR DONAN Mr Sibaya, in October of last year, did you come to the TRC to testify freely and voluntarily or were you induced to do so - were you forced to do so? MR SIBAYA MR DONAN Did they tell you what would happen to you if you did not come and testify? MR SIBAYA They said I would be sentenced to two years in prison. MR DONAN And who told you this? MR SIBAYA It was Mr Benado. MR DONAN Thank you Mr Chairman. NO FURTHER QUESTIONS BY MR DONAN CHAIRPERSON Thank you. WITNESS EXCUSED MR PRIOR CHAIRPERSON Mr Arendse, are you proposing to call any witnesses at this stage? MR ARENDSE No further witnesses Mr Chairman. CHAIRPERSON Thank you Mr Arendse. MR PRIOR Please all rise. COMMITTEE ADJOURNS ON RESUMPTION CHAIRPERSON Mr Donan, do you have any further interest in this matter? MR DONAN I have no further interest, may I be excused? CHAIRPERSON You are excused. MR DONAN Thank you. MR PRIOR CHAIRPERSON MR PRIOR CHAIRPERSON Yes. Mr Arendse? MR ARENDSE Mr Chairman, may the matter just - everyone else seems to have them except the members of the Committee, may the matter just then stand down for a minute or so until they find them. I came here with 10 copies and I sit with the original Mr Chairman. CHAIRPERSON MR ARENDSE Thank you. CHAIRPERSON Yes, you may proceed Mr Arendse. MR ARENDSE Thank you. Mr Chairman, the reference in my heads to the record would be reference to the original bundle which was before the Committee as we were proceeding. Reference to the transcript will be to the typed record of the evidence given in this matter. These are the principal submissions on behalf of the applicants. On 7 December 1994, the applicants were found guilty in the Cape High Court by Judge Conradie of amongst other things, murdering Bernadette Langford, Lindy-Ann Fourie, Rolanda Palm and Noselino Cerqueira, attempting to murder Benjamin Joseph Brode, attempting to murder Quentin Cornelius, Dave Deglin, Justin Fouche, Michael January and other persons and they were also found guilty of the unlawful possession of arms and ammunition, two ...[indistinct] R4 or R5 rifles and AK47 machine guns and ammunition as well as hand grenades. These offences were committed by the applicants on the 30th of December 1993 at the Heidelberg Tavern in Observatory, Cape Town. The applicants pleaded not guilty and did not give any evidence in their defence. Judge Conradie sentenced Madasi to 24 years imprisonment, Mabala and Gqomfa to an effective 27 years imprisonment each. They currently serve their sentences in various prisons throughout the Republic. Gqomfa applied for amnesty by completing the prescribed form on the 20th of March 1997, while he was being held at the Grootvlei Maximum Prison, Madasi signed his form on the 3rd of May 1997 and Mabala also signed his form within the prescribed cut-off date. Save for Gqomfa, the applicants provided very little or any detail of their participation in the Heidelberg Tavern murders, however on the day the amnesty hearings commenced and before the applicants separately began to give their evidence under oath, written statements containing details of their individual participation were provided to the Committee. In his written application, Gqomfa states that after he and five others including Madasi and Mabala had commandeered a vehicle, they drove to the Heidelberg Tavern in Observatory - this is on the night of the 30th of December 1993. There they parked in front of the tavern entrance door, Gqomfa jumped out of the vehicle and shot through the tavern windows and double-door. Madasi had fired a rifle grenade but this did not explode. On their withdrawal, they passed a certain corner shop and a person who fired at them was shot while they were driving by. He later found out that the person who was shot and killed was Mr Jose Cerqueira. In his application, Gqomfa states that the Heidelberg Tavern was attacked because according to the APLA Intelligence Sources, it is "frequented by security forces". The attack he says, was carried out on the instructions of the APLA High Command and the names of Bulelani Xuma, alias Sipho Polite, Sikumiso Nonuba who is now deceased and Raymond Leklapa Mpashlela who are also mentioned in their applications. At the time of the attack on the Heidelberg Tavern and immediately before that when they took the blue Opel Record by force, Gqomfa was armed with an AK47 assault rifle. In his application Gqomfa states that he sincerely regrets the loss of life caused by the attack and he extends his deepest and honest apologies to the families of the victims. He acknowledges the pain, agony and sorrow he and others caused as a result of the attack on the tavern. As stated earlier, the order to attack not only the Heidelberg Tavern but before that the Nyanga East Army base and the Lingelethu West Police Station, was given by members of the APLA High Command and these operations were supported logistically by members of the PAC Regional Executive Committee in the Western Cape. It is not in dispute that the applicants were all members of the PAC and members of APLA. It is also not in dispute that prior to the Heidelberg Tavern incident, the applicants were involved - together as a unit, in attacks on the Nyanga East Army Base and the Lingelethu West Police Station. It is also not in dispute that the applicants have also applied for amnesty in respect of other offences committed by them before the Heidelberg Tavern incident. It is submitted that it is also not in issue that the attack on the Heidelberg Tavern which was preceded by attacks on the Nyanga East Army Base and the Lingelethu West Police Station, was ordered by members of the APLA High Command which included Mpashlela, Xuma and Nonuba. Indeed the trial court expressed the following view when sentencing the applicants: And as the Judge unflatteringly put it: "They were plain stupid" That the murder of innocent, young and unarmed persons constitutes a gross violation of human rights is beyond question. That the applicants in the ordinary course got what they deserved when they were sentenced to lengthy terms of imprisonment is beyond debate. That justice prevailed is not in issue. However, as much as the trial court valiantly tried to piece together the pieces of what happened at the Heidelberg Tavern that fateful night, it nonetheless could not succeed in putting together the complete picture of what took place here. The applicants had refused to testify as they were entitled to do and there was otherwise no direct identification of the applicants by any of the witnesses who were at the tavern that night. The promotion of National Unity and Reconciliation Act provides for the Amnesty Committee to grant amnesty if it is satisfied after considering an application, that: (a) the application complies with the requirements of the Act (b) that the act, omission or offence to which the application relates, is an act associated with a political objective committed in the course of the conflicts of the past in accordance with the provisions of Sub-Sections 2 and 3 of Section 20 and thirdly that the applicant has made a full disclosure of all relevant facts. In the matter of AZAPO and others versus the President of the Republic of South Africa which is reported in 1996: 4SA671, the Constitutional Court per Mohammed who was then the Deputy President and who is now the Chief Justice, said on behalf of the Constitutional Court that - and of course, very few of us can set it out more eloquently than he does: "The effect of an amnesty undoubtedly impacts upon very fundamental rights. All persons are entitled to the protection of the law against unlawful invasions of their right to life, their right to respect for and protection for dignity and their right not to be subjected to torture of any kind. When those rights are invaded, those ...[intervention] CHAIRPERSON MR ARENDSE Fine. CHAIRPERSON We have it before us. It might be useful if you highlight what you think should be highlighted in this document instead of repeating the whole thing. MR ARENDSE As you please Mr Chairman.] CHAIRPERSON Yes. The point that I wish to make - arising out of the AZAPO case, is the distinction between the ordinary criminal justice process as a result of which the applicants are serving long terms of imprisonment and this particular process. Thus, whereas the criminal process resulted in the suppression of the truth by the applicants using their right to remain silent, the amnesty process has encouraged the applicants to openly and publicly disclose what they did and why they did it. The inherent value of the amnesty process is nowhere better illustrated than in an exchange which I had with one of the victims, Mr Quentin Cornelius who gave evidence both at the criminal trial and before this Committee. After he was asked how he felt when the applicants were found guilty and sentenced, he said - and I quote: "I felt in the first place that due to the evidence that was there - and they were convicted on that evidence, that is was the right thing to have happened - for them to be jailed or sentenced for crimes committed, so I felt that that was correct. Paragraph 15 on page 12: It is submitted that it is otherwise common cause that the applicants have complied with the formal requirements of the Act and that the offences which they committed as a result of the attack on the Heidelberg Tavern are offences associated with a political objective committed in the course of the conflicts of the past in accordance with the provisions of Section 20(2) and (3) of the Act. In this regard it is common cause that the applicants are members of the PAC and of APLA and that they were trained soldiers of APLA. Both the PAC and APLA are publicly known as political organisations and liberation movements which advised, planned, directed, commanded, ordered and committed offences in furtherance of the liberation struggle waged against the apartheid State, crucially before 10 May 1994. Accordingly, it is submitted that the whole of the amnesty process must be located in the struggle for the liberation of the majority of people in this country. During the course of that struggle or conflict against the apartheid State, many, many, gross human rights violations were committed on both sides of the divide. Both the Constitution and the Act recognise this. Parliament has indicated by law that the cut-off date beyond which no amnesty applications would be entertained, is the 10th of May 1994. In other words, were any act, omission or offence was committed before the 10th of May 1994 and which essentially had a political objective or was ordered, directed, commanded etc., by a political party or liberation movement, then provided a full disclosure of the relevant facts is made, then such an act, omission or offence would attract amnesty. Thus, however heinous, reprehensible or morally indefensible the deed, act or offence, amnesty could be applied for an be granted provided the requirements of the Act are met. Now, I mention this at this point Mr Chairman, because of two things, the one is the line of cross-examination - which again I understand and have no problem with which I picked up from the questions put by my learned friend Mr Prior, was the morally reprehensible nature of the deed - there were lots of questions about how close they were to the victims, they were shot at point blank range etc. And the other is the aspect that during December 1993, negotiations were going on at Kempton Park, appeared to be quite well advanced - question: "Why did this attack take place notwithstanding the fact that people were talking and they were busy negotiating"? Answer to that is that: "Parliament, all the political parties have recognised the cut-off date is the 10th of May 1994, not December 1993 as it was originally as it was extended" So, provided the requirements of the Act can be met and most important, that the acts can be associated with a political objective and all the relevant facts are disclosed, then that is not in issue. That is the point that arises out of that section of my Heads of Argument. But both those cases - from pages 13 through to page 16, I highlight to make a point and that is, in both those cases - in the case of Dirk Coetzee, Griffiths Ngenge was brutally murdered, hacked to death, disembowelled, it was a terrible, terrible deed, amnesty was granted. This Committee found that Coetzee had received an order even though van der Hoven denied that he gave Coetzee a direct order, the Committee nevertheless found from the evidence, that he did get an order. Of course, in turn Coetzee had directed members of the task group - whom he had assembled to kill Ngenge, that they were under his orders. So in that case presumably - well, one must accept, full disclosure was made and Coetzee was granted amnesty for that particular offence. Mitchell likewise collected a group of special constables, ordered them to burn down a hut. Unfortunately the wrong victims were killed, they were men women and I think young children were killed - it was a most awful deed which certainly compares with what happened at the Heidelberg Tavern if not worse. Again in that case Mitchell was under orders, he was fighting against the ANC and the UDF - this Committee accepted that he acted under those instructions and that he believed subjectively, that what he did was in furtherance of the political aims and objectives of the Government of the day. And then from page 17 onwards, I proceed to deal with the facts. My submission is that the only requirement which this Committee should be considering in this application is whether or not the applicants have made a full disclosure of the relevant facts. Now, from page 17 I say that it is common cause that the applicants at the time of the attack, were members of APLA and that they were given this instruction. Then if I may move to page 19, paragraph 22. Without going into much detail at this point, it is submitted that it is evident that: (a) The applicants were members of a political party, namely the PAC and a liberation army namely APLA. Secondly, that the applicants were ordered by members of the APLA High Command to carry out the attack on the tavern on the basis that the tavern was frequented by members of the security forces. Just to make a point here - that during the Coetzee application I remember reading your decision that this Committee found that if those who instruct you or who give you a command, if they satisfied themselves that it was necessary to carry out a certain act or deed, then it is not incumbent on the foot soldiers to question that - it is enough for this Committee to satisfy themselves that they in fact carried out an order. Because that too was in issue here: "When you came to the tavern and when you were so close to the people in the tavern, you could surely have seen that they were young and they were there to enjoy themselves" CHAIRPERSON MR ARENDSE CHAIRPERSON MR ARENDSE CHAIRPERSON Clearly there is a distinction between those who are employed by the Government on the one hand and members of a voluntary organisation. MR ARENDSE CHAIRPERSON MR ARENDSE JUDGE WILSON MR ARENDSE Well, that is a valid distinction to draw. The point I want to make is that if one has regard to Section 20(2), no such distinction is made between what you can call statutory forces and non-statutory forces - you are either employed by the State or you were a member of a liberation army. My submission is that is quite clear that the orders that they carried out, were from the APLA High Command, they were clearly not - and the trial court also found, they were clearly not doing what they did for personal gain or had any personal motive for doing what they did. If I may proceed Mr Chairman, paragraph C on page 20: The attack on the tavern - ...[indistinct] it mistakenly, was carried out in order to further the political objectives of APLA, namely to win the land back for the oppressed Black masses of this country before May 1994. As found by the trial court, none of the applicants made any personal gain out of these attacks and had any personal motive for committing the offences. Madasi was supposed to have launched a rifle grenade by entering the side door of the tavern, Mabala was to throw a grenade and Sebeko - who is not before this Committee, was a look-out and Matebo was the driver. After getting into the car and driving away, Gqomfa alleges that Mr Jose Cerqueira had come out Machados Restaurant - which is on the corner of Station Road and Lower Main Road Observatory, armed with a gun and that it appeared that Cerqueira was firing shots in his direction whereupon he shot Cerqueira with his AK47 rifle. This version i.e., that Cerqueira had initially been alone appears to be supported by the evidence given during the criminal trial by John Jacobs - John Jacobs Mr Chairman was a or is probably still an employee of the City Council, he was in the truck and they had approached the corner of Lower Main Road and Station Road just at the time that Mr Cerqueira had emerged from Machados and he had then also seen the attackers inside this vehicle. And I also submit that it is substantiated by Madasi and Mabala who also claimed to have heard shots coming from the vicinity of Machados restaurant. After the applicants left the scene, the car was abandoned by Makebo and Madasi in Guguletu. The car itself was not damaged, which lends credence to the view that the applicant was - as the Judge put it in the criminal trial: "No an ordinary gang of robbers" Thereafter the applicants split up into pairs and went their separate ways. In fact Madasi and Mabala were arrested together at Elliot in the Transkei on the 4th of January 1994 while they were together on a bus. Gqomfa was arrested on the 14th of July 1994. Mr Chairman, it remains for me to deal with a few of the more controversial aspects with relate to full disclosure of the relevant facts requirement, firstly the issue of the order. It is submitted that it cannot be disputed that the applicants were under orders to carry out the attack on the Heidelberg Tavern. The order emanated from the APLA High Command which comprised Mpashlela who is the Director or Operations, Xuma the Deputy Director of Operations and Nonuba who is a senior member of the High Command - Nonuba is also now deceased. They planned, directed and conceived of the idea that the Heidelberg Tavern be attacked because according to their information, it was a place frequented by members of the security forces. Nonuba had given the order directly to Gqomfa before the 13th of November 1993, as the commander of the unit and on 30th December 1993, Gqomfa had ordered Madasi, Mabala and the other members of the group to attack the tavern. Then the attack on the tavern itself. A witness had - during the criminal trial, testified that she had seen two men inside the tavern that night wearing balaclavas, one shorter than the other. This witness was not called to give evidence before this Committee. Now we know that only a cap was found subsequently in the abandoned Opel Record and that no balaclavas were found in the car or in the black bags that were subsequently dug up. The applicants deny that there were two attackers inside the tavern. Madasi disclosed that he was the only attacker inside the tavern and that he used an R4 rifle to "Protect" his comrades. In this regard Madasi had deviated from his original instructions to launch the rifle grenade only. He did say in his evidence - which cannot be disputed with respect, that as a soldier he is allowed some "Flexibility" when it come to "Protecting his comrades". He had seen a movement while he was in the passage and this had alerted him to a possible counter-attack against his comrades - Mr Chairman, bearing in mind that they are told that this is a place frequented by the security forces - we now know obviously that that was wrong information. He had seen a movement while he was in the passage and this had alerted him to a possible counter-attack against his comrades. He then used his initiative to open fire with his R4 rifle. The fact that some 46 R4 cartridges were found inside the tavern, testifies to the fact that Madasi had been inside the tavern armed with an R4 rifle. He had fired indiscriminately at those inside the tavern, aiming to kill as many people as possible. It is clear - it is submitted, from the photographs which is Exhibit A, that shots were also fired through the double-doors of the tavern and the windows of the tavern, these shots were fired by Jantjie and Gqomfa - 48 R4 cartridges were picked up outside the tavern. On examination, it was found that the cartridges were fired from three separate R4 rifles. Gqomfa alleges however that he was armed with an AK47 machine gun. It is submitted that it is probable that Gqomfa was in fact armed with an AK47 machine gun. An AK47 machine gun was used in the attack on the Lingelethu West Police Station - that was established in the criminal trial. The evidence in the criminal trial was also that earlier that night before the Heidelberg Tavern incident, one of the applicants was armed with an AK47 machine gun and that Mrs Nkolise Nkebwa - who was in the house when the car was highjacked by the applicants in Khayelitsha, that she handed a cartridge to the investigating officer, the late Don Segal. It was established that the cartridge was fired from an AK47 machine gun. In fact, if one has regard to the charge sheet and the summary of the facts used in the criminal trial, then it would appear that the prosecution - that their case obviously before evidence was led, was that one of the accused in that case was in fact armed with an AK47 machine gun. It is submitted however, that it might be that Gqomfa was mistaken and that he in fact used an R4 rifle during the attack. It is submitted Mr Chairman, that what is material and relevant is that Gqomfa has admitted responsibility for the killing of the victims of the Heidelberg Tavern attack and that he caused the deaths of the victims by shooting them. It is respectfully submitted that is matters not whether the victims were murdered with R4 rifles or AK47 machine guns. Then the next and last controversial aspect which I want to deal with Mr Chairman, is the killing of Mr Jose Cerqueira. Now Gqomfa alleges that Cerqueira - while he was alone outside the Machados restaurant, had fired shots in their direction and that as a result he shot and fatally wounded him. In this regard it is submitted that the evidence given by Gqomfa is supported in material respects by evidence given in the trial court. Reference has already been made to the evidence given by John Jacobs - who is a City Council employee, in the criminal trial. Benjamin Brode had given evidence in the criminal trial and during his testimony he made no mention that he was Mr Francesco Cerqueira or the other waiter by the name of Michael, when he went outside and saw the attackers. The trial court in fact said that: "It is however clear that the deceased had to have moved past Brode to the exit at some or other stage" It is submitted that this corresponds with what Jacobs had seen namely, that at one stage Cerqueira was the only person who had emerged from the Machados Restaurant. After shots were fired, Jacobs had taken cover in his van and while he did so, Brode had emerged from the restaurant and he then saw the car moving in his direction and shots were then fired at him. He ran inside shouting for Cerqueira and his gun but Cerqueira had already gone outside with the gun. After he had taken refuge inside the restaurant, he returned to the front door and there he saw the deceased lying in the gutter - Francesco Cerqueira and the other waiter followed him. It is submitted that this is the more probable version It is submitted that Mr Cerqueira - his evidence in this regard, must be treated with caution as he was - by his own admission, upset whilst giving evidence - I accept some responsibility for that I suppose. In fact seriously, Mr Cerqueira told us here that he decided to give evidence before this Committee because he heard an allegation that his brother would have fired a shot or shots at the Heidelberg Tavern attackers. Brode himself has failed to answer this question. Secondly: "Why did Brode give the gun to Mr F Cerqueira to give to the police if it had not been used at all"? Thirdly: "Why was specimens taken from the hands of the deceased for the purpose of a gun residue test at 4H30 a.m. on the 31st of December 1993, after the deceased had been shot and killed at 11H30 p.m. the previous night on the 30th of December 1993, if it had not been for the fact that the deceased had fired his firearm"? Now, just on that ...[intervention] JUDGE WILSON Might it not been for exactly the opposite reason, to show that he had not fired a firearm? MR ARENDSE That may be so Judge, I just wanted to mention that in a discussion with the officer concerned, he did say that it is routine for these specimens to be taken from deceased persons. I just want to then mention - and if you could just insert this in the Heads, the further point that in the letter which du Plessis - who took these specimens, in the letter which is dated the 11th of January 1994, which he wrote when he sent the specimens to Pretoria, he says in the first paragraph that - in Afrikaans: " That it had been alleged that the deceased had fired a firearm". JUDGE WILSON ...[inaudible] MR ARENDSE JUDGE WILSON ...[inaudible] MR ARENDSE Yes, the date is the 11th. JUDGE WILSON Two of the persons involved had been arrested the week before? MR ARENDSE That is correct but not Gqomfa, Gqomfa was arrested in July and even if one has regard - and I did, to the so-called confessions that were extracted from both Mabala and Madasi, no mention was made of Cerqueira or him having a gun. Mr Chairman, if I may proceed? Another question that arises: "Why was an analysis not done of the specimen taken from the hands of the deceased after it was sent for analysis in January 1994"? JUDGE WILSON When did he die? MR ARENDSE ADV SANDI MR ARENDSE My answer to that is that this all happened very quickly, they were in the process of getting away and in that sense that act is associated with what they did - which is the main act, by going into the Heidelberg Tavern. Yes, according to Gqomfa, it was possibly a case of self-preservation that Cerqueira shot at him or that he was under the impression that he was being shot at. Because at that stage we must also remember and I think the same thing applies to Madasi, I think we must remember that the applicants are at that stage under the impression mistakenly - we now know, that this place is teeming with soldiers and policemen although they may obviously be out of uniform, there are people in this place that are armed with guns. CHAIRPERSON What is the explanation for the shots were found to have been fired at the building? MR ARENDSE Sorry Mr Chairman? CHAIRPERSON Outside the tavern. MR ARENDSE What is the? CHAIRPERSON The building across the road. MR ARENDSE Sorry? CHAIRPERSON How did that come about? MR ARENDSE CHAIRPERSON But none of them said anything at all about firing shots across the road? MR ARENDSE CHAIRPERSON What do you make of that failure on their part to disclose that? MR ARENDSE JUDGE WILSON ...[inaudible] MR ARENDSE CHAIRPERSON They were together as a team. MR ARENDSE Then Mr Chairman, just again on some of the questions raised by the Cerqueira gun incident. Lastly or second lastly, I make the point that no evidence was led before this Committee that any policeman had examined the deceased firearm and had established that no bullets were fired from the gun although this was put to one of the applicants - I think, by Mr Prior and I speak under correction. And then lastly, the firearm itself has never been produced here. It is respectfully submitted that in all probability Mr Jose Cerqueira was armed with a firearm and had shot at the Heidelberg attackers. I submit that it is however unnecessary for the purposes of this application, for the Committee to make a finding in this regard. In fact, Gqomfa could quite easily have failed or refused to disclose the fact that he shot and killed Cerqueira, this is particularly so in the light of the fact that the three other attackers are not before the Amnesty Committee. Nevertheless, Gqomfa has done so and I submit that he deserves credit for it. It is respectfully submitted that whatever differences there may be regarding the evidence before the Committee, the fact remains that the applicants have admitted and have accepted responsibility for causing the deaths of four people and thereby having committed gross violation of human rights. They have also admitted to attempting to murder a number of people and having had in their possession unlawfully, arms and ammunition. One cannot think of any reason why the applicants would not want to make a full and proper disclosure of all the relevant facts. They have already been convicted and sentenced to terms of imprisonment ranging from 24 to 27 years, it must surely be in their interest to make a full disclosure of all the relevant facts within their personal knowledge. The applicants have all said that they regret deeply the loss of life caused by the attack on the tavern and that they regret what they did and that they seek the forgiveness of the victims and the families of the victims. It is respectfully submitted that the truth of what happened at the Heidelberg Tavern on the night of the 30th of December 1993, has been revealed before this Committee and that the whole process has gone a long way towards healing the wounds caused by that dreadful attack which took place on the 30th of December 1993. In conclusion Mr Chairman, it is submitted that the applicants have met the requirements of the Act for amnesty to be granted to them in respect of the offences committed during the attack on the tavern. It is submitted furthermore, that there is no reason why this Committee cannot decide to grant the amnesty sought as soon as possible. In this regard Mr Chairman, the PAC and APLA and the applicants note with concern that this Committee has seemingly had no difficulty in granting amnesty to White and Black perpetrators of gross violations of the human rights of Black persons killed during the course of the conflicts of the past, such as the amnesty granted to Coetzee, Mitchell and others. However, when it comes to the granting of amnesty to Black applicants - in particular ex-APLA soldiers where White or Coloured lives have been taken, this Committee seems not to be able to make any decision at all. CHAIRPERSON Is this a personal view or are you saying that on behalf of your clients? MR ARENDSE It is respectfully submitted that it is in the interest of this Committee and in the interest of the Truth and Reconciliation Commission as a whole, that this Committee give a decision - one way or the other, in this matter as soon as possible to allay any such concerns or fears. Thank you Mr Chairman. JUDGE WILSON Sorry, before you finish, can you look at Exhibit D, the photograph? Have you got that? MR ARENDSE Is this ...[inaudible] (d) of A? JUDGE WILSON Pardon? MR ARENDSE (d) of A? JUDGE WILSON Exhibit D. MR ARENDSE Oh, the one with Mr Cerqueira? Yes, Sir? JUDGE WILSON Now behind - in the background of the first photograph, you can see the Heidelberg Tavern, you can see the sign sticking out, can you see that? MR ARENDSE Yes. JUDGE WILSON Now, were they driving down the road past the body? MR ARENDSE JUDGE WILSON So, if the body - and they said the shooting started when they reached the robot, so they would have passed the deceased before the shooting started? MR ARENDSE JUDGE WILSON But they did, they did. So, that would mean - if they looked backwards, the shooting would have come from the direction from the Heidelberg Tavern and they assumed it was the deceased who was shooting whereas it might have been someone else who had come out of the tavern. MR ARENDSE JUDGE WILSON Yes, he was facing them ...[intervention] MR ARENDSE Yes, he was facing them. JUDGE WILSON MR ARENDSE JUDGE WILSON "After I got into the car we approached a robot and some shots were fired in my direction" So it would have been when the deceased was behind them, between them and the tavern, do you agree? MR ARENDSE JUDGE WILSON MR ARENDSE MR PRIOR Mr Chairman, I submit that this matter - this amnesty application, must be seen against the light of the political situation as of the 30th of December 1993. I think it is singularly important to have regard to the fact that the controlling - the political arm, the PAC were party to those negotiations and it was made very clear during the submissions of the security forces - particularly that of the APLA, that the controlling organ within the organisation was the political structure. At page 183 of the first bundle - that is of the bundle of documents, Brigadier Fitla on behalf of APLA said the following - the last four lines: "But the command structure was such that the commander at the end of the day, has got to be politically accountable and he had to be politically accountable through consultation with the political Commissar" And on page 184, he went on to say: "So whatever we did had to enjoy the blessing of the Commissariat because at the end of the day, all our actions had to be politically justified" I also refer the Committee to page 197 of the same submission or the bundle where Mr Makwinazi on behalf of the PAC stated at the bottom of the page, the last three lines: "APLA is an organisation with the principles and the rules and regulations. We perfected and developed it as an organisation that is subordinate to the Pan Africanist Congress. It has the power" And I go on to page 198: "authority, the command to execute the armed struggle as it perceived it correct" Now, Mr Chairman, it would see from the other submissions made during that presentation, that at some stage there was a breakdown in the desired line of communication where the political organ of the PAC in ...[indistinct] were unable to pass on the decisions that would have a military impact and it was then said that as a result of the breakdown of that communication, local commanders - and particularly in a large amount of the cases people without sufficient or adequate political education, were called upon to make decisions regarding targets to be attacked. ADV SANDI Sorry, Mr Prior, can I interrupt for a moment, where is all this - which page are you referring to now? MR PRIOR The first bundle that was handed up at the outset of the proceedings. ADV SANDI MR PRIOR 184 of that bundle and 183 and 197, yes. ADV SANDI MR PRIOR Yes ...[inaudible] My microphone keeps going off. CHAIRPERSON Yes, do carry on. MR PRIOR And the reference to the breakdown of communications was given by Brigadier Fitla at page 189 of that same bundle. Now, it was conceded by the APLA or alternatively, PAC - at page 190 of those - of the bundle that is of their submissions, where the attack on White people - sorry, at page 190 the passage read: And it went on to say that: "This advantage had a disadvantage, there was little political work done and so on" Now, if I may refer the Committee also to page 201 of that submission and 202 where the delegation were in fact taxed on this question of authorisation for these attacks and whether this was a departure and whether it had been countenanced by the High Command, Brigadier Mophokeng said the following at page 201 at the bottom: "I want to add here to the answer, when these attacks took place and before the attacks took place, the leadership - the political leadership, was not informed, it was only the military people who were aware of these attacks when the attacks took place. Some of these explanations and the context of the changing environment and they needed to carry with us the constituencies that were the main support or pillars of support of APLA" My submission in this regard is that APLA had difficulty in deciding whether the military High Command in fact had ordered these specific attacks inter alias the Heidelberg Tavern attack or whether these were simply the decisions made by local commanders close to the targets. Now, I raise these aspects because one of the difficulties that one faces in this application is the acceptance of the political objective indicated by the three applicants. The political objective stated does not seem to marry with what the military command of APLA was saying during their submissions made before the TRC Human Rights Committee during the week of the 7th of October because what was indicated at page 220 of that bundle, Brigadier Mophokeng again stated that: "We were very much concerned about the killings of the African people attending the night vigils, commuting to work, the Boipatong etc., and so forth and we were concerned that only the African people are suffering in this regard and of course the oppressors were also to feel the pinch. I quote the late Chairman of the PAC, John Netai Pukela: "That it is high time that the oppressor also bury their dead" Further on, on page 221, a member of the delegation said the following: "Yes, I just want to add Comrade Chairman, that during the time when our people were being killed in the townships, members of APLA - those commanders who were inside the country, were very angry, to the extent that they thought that maybe our people will say they are not protecting them properly or successfully. That is one of the things which made them to take this decision of mounting these operations. They feel guilty that if the war is being taken to the Black townships, they must also take the war to the White areas - this was one of the reasons" Mr Chairman, Section 20(3) sets out the criteria with which this Committee must approach the evidence before it - there are six criteria. The motivation of the offender is particularly - is an important criteria to be considered. The circumstances in which the offence has been committed have been adequately presented before the Committee. I do not propose to go into any length at all about the discrepancies on the evidence, I think it suffices to accept that the attack took place as described by my learned friend, that three people were killed inside the tavern premises, there were three or four people that were injured and Mr Cerqueira was shot on the street. Whether a hundred rounds were used or a thousand rounds were used, whether an AK47 was used or an R4 rifle used, I think pails into insignificance. I think - and my submission is, that given the gravity of the offence or of the occurrence, I submit one cannot lose sight of the fact that the attack was a sustained - whether it took only a few seconds or not, it was a sustained attack, it was sustained gunfire and the intention certainly was to create as much death or to cause as much death as possible and that is evidences by the nail studded rifle grenade that failed to explode. An important criteria with submission, is the fifth criteria: "Whether the object of the offence, whether it was committed against Government personnel or property or directed primarily against private citizens" Mr Chairman, it seems from all the literature that is available - if one reads the literature on International Law, International Constitutional law, if one deals with the judgements - with the opinions written by Professor Noorgaard and the various supporting or the various commentaries on the Noorgaard opinions, it would seem that civilians or attacks on civilians are specifically excluded when one has to determine whether there is proportionality between the objective of the offence and the object of the - sorry, the political objective. ADV SANDI MR PRIOR JUDGE WILSON CHAIRPERSON Well now, it was aimed at people who had believed to be ANC supporters. MR PRIOR CHAIRPERSON Yes, it turned out that they were civilians belonging to a different political ...[indistinct] MR PRIOR Well, my only argument is that, in the case ...[intervention] CHAIRPERSON MR PRIOR Those were obviously targets - military targets within the perception and within the range of the applicants - cadres, soldiers of APLA but where we were dealing with Heidelberg - a restaurant in a built up area, the applicants explanation is that they were simply carrying out orders blindly. That seemed to fly in the face of the surveillance done the day before or some days before by one of the applicants - I think it was Mr Gqomfa. That they would have been convinced that it was a military installation, that the people there would have been all armed to the teeth, as suggested by my learned friend, that they were expecting a possible resistance - testified to by Mr Mabala and/or Mr Madasi, I submit that that is improbable on the evidence as we know it. Mr Chairman, if one possibly accepts - for the purpose of the argument, that Heidelberg was a military target within the understanding of the applicants and they each simply carried out what they been instructed to do, then one has difficulty in understanding why Mr Cerqueira was gunned down because geographically he was not part of the Heidelberg situation, he was clearly at a position removed from Heidelberg. I submit that Mr Gqomfa has not adequately explained - has not made an adequate disclosure as to why he gunned down or shot at Mr Cerqueira. I submit - to make his version sound somewhat more palatable, Mr Cerqueira is firing shots at him - he raises a type of self-defence although that would not avail him in these proceedings but it certainly - if one seeks some moral justification for shooting at Mr Cerqueira, then that would be it - that the man was firing at us. What the Committee has to decide then and which I submit is an important decision to make, is whether in fact Mr Cerqueira was armed or not because if he was not ...[intervention] CHAIRPERSON MR PRIOR No, not at all. CHAIRPERSON MR PRIOR No, just that he was emotional and he had come forward because he had heard that people or the press reports were saying that Mr Cerqueira had been shooting at the applicants and he felt strongly about that and he came to set the record straight. ADV SANDI Sorry, Mr Prior, what about the possibility that the firing may not have come from Mr Cerqueira but from someone behind him in the tavern? MR PRIOR Yes, as Judge Wilson had indicated, that is also a possibility, then we have a situation where Mr Gqomfa was completely mistaken then and if that is the case then one could safely reject his evidence by saying that - if I recall correctly, Mr Cerqueira either raised his hand or shot in his direction, then that could not have been the case. One has to then ask oneself: "Well why does he then say what he says"?, if at all to possibly exonerate - to whatever extent, himself from that situation. ADV SANDI MR PRIOR CHAIRPERSON ...[inaudible] was to go and attack the Heidelberg Tavern and as obedient soldiers they carried out that mandate to attack the Heidelberg Tavern, does that cover them in respect of the attack on Cerqueira? MR PRIOR Mr Chairman, unless the mandate was to eradicate or get rid of all resistance ...[intervention] CHAIRPERSON ...[inaudible] MR PRIOR Yes. With submission, if that was their mandate then clearly anything outside of that - for example other premises, would not be covered by that because the Heidelberg was specifically targeted, it was specifically identified. CHAIRPERSON Yes. MR PRIOR People coming out of Machados, like Mr Brode, Mr Cerqueira, his brother and Michael, were clearly not part of the military establishment within the minds - if we accept that, within the minds of the applicants. JUDGE WILSON MR PRIOR Yes. Mr Chairman, I was going to conclude by referring the Committee to: "South African Criminal Law and Procedure - General Principles" where it deals with the nature and rationale behind superior orders, whether that can be of any assistance to the Committee. "That the law of warfare however does not authorise certain acts, such as rape, looting, killing of civilians and the like. The defence presently under consideration is pertinent to the situation where a soldier is ordered to perform an act which is not authorised by civil or military law" An they go on to - if I may just refer to page 110, where they say: "State versus Andreas - 1989 : Two ...[indistinct] Reports - H38, South West Africa" But again those authorities come from the old regime. May I just - possibly in conclusion, refer the Committee to an interesting remark dealing with proportionality made by - I think, Brigadier Fitla. It was interesting at the open submissions or the open hearings, that the Committee questioned APLA on whether there were any limiting factors to the amount of force or the military - or the application of force and military operations and at page 220 - at halfway down the page Mr Chairman, there was a quote from an earlier submission that: "The decision was aimed at carrying out legitimate reprisals and forcing the regime to end the killings of South African civilians. This was done both in reprisal and self-defence and the only requirement was proportionality" "What were the limiting principles"? And at page 230, the answer was: "Wherever an operation is not politically motivated, that operation falls outside our ambit of our definition of a target" JUDGE WILSON What page is that? MR PRIOR JUDGE WILSON Page 230? MR PRIOR Some of the things we could also politically justify and defend. If we had gone for children in a nursery school, we would not be in a position to stand on this platform today and proudly speak of those activities, so we had to look at our operations on two levels as well. First the political benefits that we derived from those activities in terms of also the support that both APLA and PAC would enjoy. Also when we talk about the psychological effect to put pressure on the White community as well" "We believed this was a military target" And for whatever reason, those persons were not called. I understood that Mr Bulelani Xuma in fact was present at the last session - he was present at these proceedings, he was not called to give evidence. One has a difficulty in understanding whether in fact those orders were in fact given by them or whether they were decided upon by persons like Mr Gqomfa - for the reasons supplied in the APLA submissions, as pure acts of reprisal against what was happening against the Black population. Mr Chairman, those are my submissions. ADV SANDI MR PRIOR Sorry, do you want my comment? ADV SANDI Yes, the impression I get from that is that the applicants are people who have not even been trained on those matters - to draw distinctions between so-called hard targets and civilians. MR PRIOR And the emphasis that they spelt out in their submissions, that the political training - no military act made sense without a political objective. JUDGE WILSON Perhaps you should look at the previous page where the Brigadier says "I got the meaning of what International Human Law is when I integrated into the South African National Defence Force, equally the form of South African Defence Force did not even know what International Humanitarian Law was" It would seem the lack of knowledge was widespread. ADV SANDI And where does that put - Mr Prior, where does that put the applicants? Would one expect them to know anything about those matters? MR PRIOR ADV SANDI If I recall, last time when this Committee was sitting hearing all the evidence on this matter, one of the applicants - I think it was Mr Madasi, when he was asked as to whether they had any conversation in the vehicle whilst driving to the tavern, his answer was "We never had any conversation, we were just singing" There was not attempt whatsoever to find out - to get any information about the place they were going to and the impression I get from that is, these were just people who wanted to carry out the orders. MR PRIOR I must agree with you, that was the evidence and whatever questions were put to them, they stuck to that that they never discussed the target - although it was suggested at some stage that that was improbable, that they would not even have discussed afterwards what had happened because that was the evidence. CHAIRPERSON Mr Arendse, are you going to reply to the argument advanced by Mr Prior? MR ARENDSE Just briefly Mr Chairman. CHAIRPERSON Yes? MR ARENDSE Mr Chairman, ...[intervention] CHAIRPERSON Would it be convenient for you to do it now? MR ARENDSE CHAIRPERSON MR ARENDSE This Committee has - the Act recognises this and the Committee has recognised it by granting amnesty to - for example These youngsters were sitting in the Transkei, you have a command who is sitting in Dar es Salaam or wherever - in the situation which prevailed at the time, it is impossible for them to have had communicated to them what exactly this strategy would be, how this strategy would be carried out. There was a lot of misinformation, miscommunication yes, and that often led to misinterpretation of instructions and orders and it may well be that the Heidelberg and the St James may be such examples. But the fact of the matter is that these applicants did not commit the Heidelberg Tavern massacres on their own account or for their own benefit, clearly they did not do so - the evidence cannot be attacked. In fact, one of the regional PAC members applied for amnesty and was granted amnesty by this Committee - Mr Siyolo, for harbouring - I think, APLA members, so there was a support structure. They believed that they were given a genuine order and they carried out that order and that is how far it should be taken otherwise you get into a situation whereby you now have to call PW Botha and FW de Klerk to come here and say to you exactly what they meant when they told people to carry out certain instructions. In fact, it is of interest to note that they have publicly said - maybe not before this Committee, that: "We never told Dirk Coetzee and other people to do all these terrible things that they did" and the Generals have also said so. Notwithstanding that, this Committee has accepted in amnesty applications, that people during the course and scope of their duties, they believed they were conducting a war against the ANC, against the UDF, against APLA, against the liberation movements - they had a genuine belief that they did that. If we go too far, then I think the Committee runs the risk that it then begins to make political choices and passes value judgements and that - with respect, should be avoided. Just another aspect, it is also common knowledge and a fact that is sufficiently notorious for this Committee to accept and that is that the PAC had not as at December 1993, renounced the armed struggle - that is a fact of the matter and we also know as a fact that APLA was the armed wing. CHAIRPERSON ...[inaudible] that the PAC may have made statements but APLA had not. In other words, the military wing had not taken the decision, though the political wing may have, is that not the position? MR ARENDSE No, that is not the position with respect Mr Chairman. CHAIRPERSON So, although their decision was not taken, the PAC was involved in these negotiations? MR ARENDSE CHAIRPERSON MR ARENDSE As you please Mr Chairman. CHAIRPERSON We will now adjourn. COMMITTEE ADJOURNS